SECU Committee Report

Compared with municipal and provincial witness protection programs, the Program administered by the RCMP is a last resort and much more limited in scope. This program is for witnesses requiring long-term protection. In the vast majority of cases, this involves long-term relocation and/or an identity change. The witnesses heard by the Committee were unanimous on one point: changing a witness's identity is an extreme measure to be used in special circumstances only. In a report commissioned by the Quebec Ministry of Public Security,([9]) Anne-Marie Boisvert notes that "identity change is a measure of last resort, extreme, difficult to implement from an administrative standpoint, and especially challenging for, and demanding on, the witnesses and their families in the short, medium and long-terms". For protectees, "secure identity changes require lying about their past and where they came from; they must carve off their personal history; their isolation and solitude inevitably result in the inability to form intimate, honest and real interpersonal relationships."([10])

This chapter describes the evolution of the federal Witness Protection Program and its administration and presents the data collected by the RCMP since the adoption of the WPPA in 1996.

1. THE WITNESS PROTECTION PROGRAM FROM 1984 TO 1996

The RCMP launched the Witness Protection Program in 1984([11]) in an effort to encourage the cooperation of witnesses in possession of information that could help the RCMP prosecute members of organized crime. The Program was created at a time when the fight against national and international drug trafficking rings had become a major priority.([12])

Until 1996, the RCMP program was governed by a series of internal policies and guidelines that were kept secret in order to prevent criminals from discovering the methods used by the RCMP to protect the individuals who had disclosed information about them. The RCMP viewed secrecy as essential to the safety of protectees.

The administration of the Program was widely criticized. Protectees and other people concerned about witness protection argued that those responsible for enforcing the Program were not sufficiently accountable for its administration. Furthermore, many people felt that the RCMP was not respecting the protection agreements.

Over time, serious disagreements arose between the RCMP and some Program protectees. Unable to resolve the disagreements internally, dissatisfied protectees went so far as to publicize their grievances, thereby possibly even jeopardizing their own safety.([13])

On 1 February 1994, in response to numerous criticisms,([14]) MP Tom Wappel introduced in the House of Commons Bill C-206, An Act to provide for the relocation and protection of witnesses. The aim of the bill was to make the RCMP's Witness Protection Program official by giving it a legislative basis, and to make it more accessible and transparent. Mr. Wappel thought it essential to respond to the absence of clear, precise rules regarding the administration of the Program in order to avoid misunderstandings.

Bill C-206 received strong support in the House of Commons. Although the government supported the bill's objectives, it nevertheless believed that more comprehensive studies were needed to assess the cost and effectiveness of the proposed modifications.

In 1995, Mr. Wappel did not proceed with the bill when the Solicitor General of Canada tabled similar legislation in the House of Commons. This was Bill C-78, the Witness Protection Program Act, which was adopted by Parliament in 1996, coming into force on 20 June of that year.

2. THE PROGRAM AFTER THE ADOPTION OF THE wppa

Enactment of the WPPA created, for the first time, a legislative basis for the RCMP's Witness Protection Program. It identified the Program objective, namely, to promote respect for the law by making it easier to protect persons involved directly or indirectly in providing assistance in relation to activities carried out by any law enforcement agency or international criminal court or tribunal in respect of which an arrangement or agreement with the RCMP has been reached.([15]) The Act also extended the scope of the Program by granting access to all Canadian law enforcement agencies, as well as those from around the world with which agreements have been reached.

All Canadian law enforcement agencies([16]) have access to the Program on a cost-recovery basis. However, once a police force determines that a new identity is required to protect a witness and/or family members, the police force concerned must submit an application to the RCMP in order to register that person in the federal Program. In such cases, the rules of the federal Program apply and it is possible that the RCMP could refuse to admit another police force's witness. This requirement can be explained by the fact that some of the documents needed for an identity change, such as social insurance numbers, criminal record numbers and passport must be obtained from the federal government.([17]) It can be assumed, then, that anyone who has ever received a new identity in the context of a witness protection program in Canada has, at one time or another, been admitted to the RCMP's Witness Protection Program.

(a) Administration

Under the WPPA, the administration of the Program is the responsibility of the Commissioner of the RCMP. However, the WPPA allows the Commissioner to delegate certain powers to other members of the organization. During the Committee's review, the Assistant Commissioner of the RCMP, Federal and International Operations, Raf Souccar, was the officer responsible for admitting and terminating protectees to and from the Program. It was also his responsibility to determine the extent of protection to be provided to protectees.([18])

(b) Protection

The protective services provided to protectees through the Witness Protection Program are also set out in the WPPA. Such services include moving, housing, provision of a new identity, and psychological and financial support. As stated earlier, witnesses in the Program face danger serious enough to warrant, in the vast majority of cases, an identity change and relocation, sometimes of their family as well.

(c) Admission

To ensure consistency in the processing of witness protection cases throughout the country, legislators also thought it worthwhile to list in the WPPA the Program eligibility criteria and factors to consider in the assessment of candidates. To be admitted to the Program, a witness must be recommended by a law enforcement agency or an international criminal court or tribunal with which an agreement has been reached. The witness must also provide the information required by regulation, and an agreement must be entered into between the Commissioner and the witness setting out the obligations of both parties.([19])

For the RCMP, a protection agreement is deemed to include the obligation to take any reasonable steps necessary to provide the protection referred to in the agreement. The protectee, on the other hand, is obligated to give all information or evidence required by the investigation or prosecution; to meet all financial and legal obligations; to refrain from the commission of federal offences or activities that may compromise the security of the protectee, another protectee, or the Program itself; and to accept and give effect to reasonable requests from the Commissioner in relation to protection provided to the protectee and his or her obligations (section 8 of the WPPA).

Before admitting a protectee, the Commissioner must also consider (section 7 of the WPPA):

• the nature of the risk to the security of the witness;
• the danger to the community if the witness is admitted to the Program;
• the nature of the inquiry, investigation or prosecution involving the witness and the importance of the witness in the matter;
• the value of the information or evidence given or agreed to be given or of the participation by the witness;
• the likelihood of the witness being able to adjust to the Program;
• the cost of maintaining the witness in the Program;
• alternative methods of protecting the witness without admitting the witness to the Program; and
• such other factors as the Commissioner deems relevant.

When an individual is admitted to the Program, it is presumed that he or she will remain a lifelong protectee. Protectees are therefore encouraged to support themselves and to become integrated into their new life as soon as possible.

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(d) Termination of Protection

The Commissioner may terminate the protection provided to a protectee at any time if there is evidence of a material misrepresentation or a failure to disclose information relevant to the admission of the protectee to the Program, or a deliberate and material contravention of the obligations of the protectee under the protection agreement (section 9 of the WPPA). In such instances, the Commissioner must notify the protectee of the impending termination of his or her protection and the reasons justifying that decision.([20]) The protectee shall be given 20 days from the moment he or she receives notification to dispute the decision. This timeframe can be extended at the protectee's request, if he or she needs more time to prepare his or her defence.([21])

Participation in the Witness Protection Program is voluntary. Thus, a protectee may decide to leave the Program at any time. During his testimony, Chief Superintendent Ogden informed the Committee of the main reasons given by protectees who left the Program between 2004 and 2007. He said:

We had 19 voluntary withdrawals from the Program in a three-year period, from April 2004 to April 2007. Out of that, we had three who returned to the area of threat. So they made the conscious decision to voluntarily withdraw from the Program and go back. We had one who thought it was too strict for family visits. One agreement was breached for association with gang members. One witness didn't want to comply with the terms of the protection agreement any longer. We had one who was charged with theft under $5,000. We had cases where people were using drugs, and they didn't want to stop, so they withdrew from the program.([22])

Lastly, it should be noted that when a protectee decides to leave the Program, or if the RCMP terminates his or her protection, the protectee's family will continue to be protected.

(e) Protecting the Identity of Protectees

The WPPA clearly states that no person shall knowingly disclose, directly or indirectly, information about the location or a change of identity of a protectee or former protectee. However, there are certain exceptions.([23]) Protectees and former protectees can, under the Act, disclose information about themselves if such disclosure does not endanger the safety of another protectee or former protectee and does not compromise the integrity of the Program. Information about the location or a change of identity of a protectee or former protectee may be disclosed by the Commissioner under the following conditions: with the consent of the protectee or former protectee; if the protectee or former protectee has previously disclosed the information; if the disclosure is essential in the public interest for purposes such as the prevention of the commission of a serious offence or national security or national defence or where there is reason to believe that the protectee or former protectee has been involved in the commission of an offence and can provide material information or evidence in relation to the offence; or in criminal proceedings where the disclosure is essential to establish the innocence of a person.

The Committee learned that, since 1996, a number of protectees have involuntarily revealed that they were participating in the Program. However, Assistant Commissioner Souccar could not give the Committee the exact number of involuntary violations that occurred since the Program was created in 1996. He also emphasized that he did not know if the RCMP compiles such statistics. David Bird, Legal Counsel for the RCMP Legal Services, noted that there have been cases in which protectees have had their identities disclosed as a result of court proceedings.([24]) A review of the annual reports tabled in Parliament shows that, in fiscal year 2002-2003, the RCMP involuntarily revealed information concerning a protectee in court, thereby jeopardizing the safety of that individual.([25]) The RCMP managed to resolve the matter "to the satisfaction of all concerned parties."([26])

Gerald Shur, Senior Associate Director (retired) of the Federal Witness Security Program, told the Committee that the Canadian program is much more restrictive regarding the disclosure of information concerning a current or past protectee than the American program. He stated: "We have a great deal of flexibility in our program [...] to make determinations such as whether we should disclose or not disclose, when it is appropriate, what the rules would be, and so on."([27]) When a Committee member asked whether the American program made it possible to disclose information to the family of a victim harmed by a protectee in the Program, he replied:

[.] with the assumption that the person commits a crime and the relatives of the victim wish to know who that person was, under our statute we have a victims compensation requirement - that is, we must offer to the family of any victim who is killed up to $25,000, I think, to cover medical expenses or funeral expenses, and so on. They certainly would have a right to know who that person really was who had killed their relative.

The one complicated area is that if disclosing that information would compromise an ongoing investigation, we might delay it for a bit. But that would happen so rarely. I can't recall it happening, as a matter of fact; it's just a potential.

By disclosing the name to the family, you give them some peace. The cost to the United States government to do that simply means relocating again the family of the witness who had committed the murder, so that the family of the victim has the peace of closure and the family of the witness has the safety of being relocated again, and the loss comes in a money sense to the United States government.([28])

According to David Bird, Counsel, RCMP Legal Services, section 11 of the WPPA imposes a "high onus" on the Commissioner to determine if it is in the public interest to disclose certain information. He continued:

The Commissioner cannot delegate that decision. [.] Parliament obviously intended for this to be at the highest level of the RCMP.([29])

Barry Swadron believes that this decision should not be made by the Commissioner. He said to the Committee:

I don't think the commissioner should be deciding what's in the public interest; I think it should be elected members of Parliament or ministers in the cabinet. The commissioner will not necessarily decide what is in the public interest; he will decide what is in the police interest, because he has to be true to himself. ([30])

The Committee recognizes the importance of this matter, but finds it has not heard enough evidence to make an informed decision. Perhaps the decision to disclose such information should be the responsibility of a qualified multidisciplinary team, rather than the Commissioner of the RCMP. The Committee suggests that this matter be studied and debated at the next federal-provincial-territorial meeting of ministers responsible for Justice and Public Safety.

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(f) Individuals to be Protected

The federal Witness Protection Program is intended to protect various types of witnesses. The WPPA defines a witness as a person who has given or agreed to give information or evidence, or has participated or agreed to participate in a matter relating to a criminal investigation or prosecution and who may need protection, along with anyone who, by virtue of being associated with the witness, may also require protection (section 2 of the WPPA). This could be a parent, child or any other person whose safety could be jeopardized by the witness's cooperation with the authorities. In his testimony before the Committee, Assistant Commissioner Souccar emphasized that anyone associated with the protectee whose life or safety may be in jeopardy would be offered the opportunity to participate in the Program. It is up to the RCMP to determine if an individual's safety is "seriously jeopardized."

The police officers who appeared before us during the Committee's review noted that the witnesses benefiting from the Witness Protection Program belong to two main groups: informers (informant sources and informants) and police agents (agent sources and agents)([31])

An informant source is a person who provides information gained through criminal activity or association with others involved in criminal activity. This source would generally not become a witness or require protection as a result of his/her investigational involvement. Payments to an informant source are expenses and awards.

An agent source is a person tasked by investigators to assist in the development of target operations. Direct involvement and association with a target may result in his/her becoming a material and compellable witness, i.e., a source used to introduce undercover operators, act as a courier for controlled deliveries or act in place of an RCMP undercover operator by obtaining evidence.

Assistant Commissioner Souccar emphasized the importance of distinguishing between agent sources and informant sources. He pointed out that, unlike informants, "agents - we [the RCMP] end up owning them, to the extent that they have to testify in court. They become compellable." Furthermore, it must be recognized that, "while information provided to police by informants is afforded a certain degree of protection by the courts, information from persons acting on behalf of the police, referred to as agents, is not protected and is revealed in its entirety to the accused party."([32])

Informant sources and agent sources are not necessarily criminals. They can be, in some cases, law-abiding citizens who happen to have information that the police can use. That being said, the evidence heard by the Committee seems to suggest that the vast majority of informant sources and agent sources registered in the Witness Protection Program are from the criminal milieu.

For an informant to obtain the status of an agent, the RCMP must proceed with an in-depth assessment of the case. The purpose of that assessment, conducted by RCMP staff trained in the field of witness protection,([33]) is to determine the quality of candidates and their ability to respect a potential contract with the RCMP, as well as to determine "whether we [the RCMP] can afford to own that person . to the extent of admitting her or him into the program and looking after her or his expenses."([34]) Apparently, many cases are eliminated at the assessment stage. According to Chief Superintendent Ogden:

We have a number of people who are informants and who want to come forward and volunteer to be a police agent, but a lot of those people are screened out for a number of different reasons. When we do use an agent, that situation normally involves a lot of police personnel, and it's usually one fairly high-level targeted operation. We only have the capacity to run a limited number of these operations at a time. We try to be as careful as we can with the people we bring into that agent status, because we want doing so to be to our greatest benefit.([35])

According to the evidence heard by the Committee, agent sources in particular belong, for the most part, to the criminal milieu. Assistant Commissioner Souccar explained to the Committee why this is:

They're individuals who have immersed themselves, over a lifetime sometimes, with a criminal element. That's where they become useful to us, because when we try to infiltrate a criminal organization, sometimes members of that criminal organization will not trust anybody they haven't known since childhood. Telephone intercepts are not always beneficial, because they guard themselves very much on the phone. Surveillance is sometimes not very effective, because they're very surveillance conscious. They don't trust anybody; they only talk to their circle.([36])

It is important to point out that their admission to the Witness Protection Program does not give individuals any immunity, and this is true for offences committed before or after their admission to the Program. As pointed out by Assistant Commissioner Souccar during his testimony: "Protectees remain subject to all Acts of Parliament, like any other Canadian citizen [.] . Their existing criminal history remains with them [.] . Their criminal history will follow them to their new identity."([37])

(g) Transparency

To ensure transparency, under the WPPA, the Commissioner of the RCMP is required to produce an annual report presenting general information on the administration of the Witness Protection Program. This requirement recognizes that the disclosure of detailed information could endanger the safety of protectees and the integrity of the Program. The annual report is tabled in Parliament by the Minister of Public Safety.

3. AVAILABLE DATA ON THE WITNESS PROTECTION PROGRAM

At the time of the Committee's review, there were approximately 1,000 protectees in the Witness Protection Program, including 700 managed by the RCMP and 300 from other law enforcement agencies.([38]) We learned that almost 30% of them had not acted as witnesses for the prosecution. They were accepted into the Program because of their relationships to witnesses.([39])

In June 2007, the Committee was informed that, since the Act was passed in 1996, 27 foreign nationals had been accepted into the Program through a memorandum of understanding (MOU) with the RCMP. The RCMP had signed four MOUs, two with other countries and two with international courts.([40]) In a letter submitted to the Committee, the RCMP was unable to disclose the countries or courts involved, emphasizing that this information could compromise the safety of the foreign nationals being protected in Canada, given the extremely small numbers (one or two) of international requests for assistance each year.

(a) Admissions to the Program

Analysis of the annual reports (see Table 1, below) reveals some interesting details about the Witness Protection Program over time. First, we note a considerable variation in the number of admissions to the Program since it was created in 1996. According to the most recent annual report,([41]) 66 protectees were accepted into the Program between 1 April 2005 and 31 March 2006, compared with 37 in the previous fiscal year - an increase of about 78%. Comparing the 1996-1997 figures (for the period from 20 June 1996, when the WPPA came into effect, to 31 March 1997) to those for 2005-2006, we see a substantial decline in admissions, from 152 in 1996-1997 to 66 in 2005-2006. Since the WPPA was passed, the lowest number of admissions recorded by the RCMP was in 2001-2002, when the RCMP accepted only 29 protectees into the Program.

Table 1
Witness Protection Program
1996 to 2006

*The category "number of admissions to Program" includes all protectees accepted into the Program during the fiscal year, including persons related to a primary witness.

**    This amount covers only those expenditures directly related to protective measures provided to witnesses. It does not include the salaries of RCMP members or the cost of investigations or subsequent legal costs.

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(b) Costs

Table 1 also shows important variations in the cost of the Program. We should first point out that the "cost" given in the annual reports is only a tiny part of the cost of protecting witnesses. This amount covers only those expenses directly related to the protection services offered to protectees being managed by the RCMP. Moreover, it does not include the salaries of RCMP members involved in the protection of protectees or the cost of investigations or subsequent legal costs. The RCMP informed the Committee that it intended to give more detailed data on Program costs in its 2006-2007 annual report.

The table shows that the Program cost cannot be explained simply by the number of protectees accepted into the Program in a year, as a simple comparison of the last two years demonstrates. In 2004-2005, the Program accepted 37 new protectees, as compared with 66 in 2005-2006. And yet the Program's annual cost was $2,565,288 in 2004-2005, and $1,932,761 in 2005-2006. These cost variations result from a great many factors, including law enforcement activities, the individual circumstances of the witnesses requiring relocation, and the safety of their close friends and family. In his appearance, Assistant Commissioner Souccar noted important variations in costs depending on the individual witness. He said:

The cost of relocating a witness varies tremendously, depending on the number of family members and the property in their possession. Furthermore, if the witness owns a house, it most be sold. If he owns a company, the assets must be liquidated. The costs vary considerably.([43])

Similarly, Chief Superintendent Ogden noted:

[I]t's hard to give an average cost per case because they vary so much. [.] The funding would change depending on what the requirements were around the witnesses we move. We may move witnesses who have had training and certificates in one certain area, and then once we move them and they assume their new identity, all that's lost, so we have to completely retrain them. They're starting from square one. They're starting a brand new life. So in some cases we may make agreements and say, okay, we'll agree to do this much training with you; we'll agree to make sure you're in a household that is similar to the one we took you out of, so that may be the type of house we buy for them, and the type of vehicle they drove before may be similar to the one they drive in the future, that type of thing.

During his testimony, he also urged the Committee to put the costs into the broader context of the fight against organized crime. This is what he said:

In some cases when we bring in a very valuable witness on an organized crime case, it may appear to be very expensive when you look at the actual cost of the award and the relocation. But when we put that in the context of what the police force will actually spend to investigate that particular group, when you think about the number of nights, perhaps, that we're eliminating in surveillance on a group, or of all the background work you have to do, we find, with the right witness, that we can quite often infiltrate that group at a level that allows us to do maximum damage to that organization in the shortest period of time.([44])

The significant cost of protection programs certainly plays a role in the finding by Anne-Marie Boisvert that most of the legislation she studied on witness protection programs "restricts the availability of these programs to investigations and prosecutions relating to the fight against serious crime, terrorism and organized crime."([45])

(c) Protection Refused

Table 1 also shows the large variations over time in the number of witnesses who refuse protection. The figures appear to have stabilized since 2001-2002, at between 11 and 15 refusals per year. According to witnesses who appeared before the Committee, the main reason given by people who refused to sign the protection contract was that the Program was too confining. Many witnesses were simply not prepared to leave their families and friends and make a new life in a new community. Similarly, the 2005-2006 annual report indicated that "The main reasons cited by witnesses for refusing to enter the Program were: numerous restrictions and an unwillingness to relocate."([46])

(d) Voluntary and Involuntary Termination

Since the WPPA was adopted, between four and 21 witnesses per year have decided to leave the Program. Their reasons are many, but the most frequent ones given were the Program's restrictions on family and friends and the difficulty of adapting to a new life. The number of voluntary terminations increased slightly from 16 in 2004-2005 to 21 in 2005-2006.

Considerable variation has also been seen, since the WPPA was adopted, in the Commissioner's decisions to terminate the protection of protectees. Since 1996, between one and eight protectees have been released involuntarily from the Program each year, including seven during 2005-2006. According to the annual report, all seven decisions were made in light of "serious breaches of security by the witnesses."([47]) In his appearance on 7 June 2007, Chief Superintendent Ogden informed the Committee that, from 1 April 2004 to 1 April 2007, protection was terminated in nine cases in which the protectee had committed a criminal offence. In his opinion, "it would be unrealistic to expect that none of the protectees would go on to commit further criminal offences."([48])

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(e) Relocation

According to the information in the annual reports, most protectees relocate outside their province of origin. In 2005-2006, 22 protectees were relocated outside their province of origin as compared with nine who moved within their home province. Only in 2000-2001 did more witnesses relocate within their own province than outside it (15 and 14 respectively).

(f) Complaints and Civil Litigation

Between 20 June 1996 and 30 May 2007, the Commission for Public Complaints Against the RCMP (the Commission)([49]) received 21 complaints relating to the Witness Protection Program and carried out five investigations. Table 2 shows the distribution of these complaints and investigations by Canadian province and territory.

Table 2
Complaints and Reviews Concerning the RCMP
Witness Protection Program, by Province and Territory,
20 June 1996 to 30 May 2007

It is important to note that most of the RCMP's contract services are provided in British Columbia and Alberta.

Source: Document submitted to the Committee by Paul E. Kennedy, Chair of the Commission for Public Complaints Against the RCMP, 1 June 2007.

In a document submitted to the Committee([50]) the Commission presented a list of the 21 complaints received, broken down by the issues raised in each, pointing out that a complaint or review could, nevertheless, be classified in more than one category. According to this information, more than half of the complaints (12 of 21) concerned a refusal to admit witnesses into the Program, nine concerned treatment the protectees considered unsatisfactory, four concerned improper disclosure of information by the RCMP and four others concerned inadequate compensation.

Since 1996, the Commission has not received any complaints concerning crimes committed by protectees from victims or families of victims.