SECU Committee Report

It is important to recognize right from the start that there is little information available for an in-depth analysis of the federal Witness Protection Program. Apart from the general information found in the annual reports, there are currently no data that would enable us to find out about the experiences of the Program's protectees or assess the value of their testimony in the prosecution or investigation that triggered their admission to the Program. Although the WPPA provides important information regarding the factors to be considered when deciding whether to admit a witness to the Program, the reasons that would justify exclusion from the Program and the mutual obligations of the witness and the Program administrator, very little information is available about current RCMP witness protection practices. This is hardly surprising, given that the protection of witnesses demands the greatest possible discretion, but it nevertheless constituted the major difficulty confronting us throughout our review.

A number of our questions have remained unanswered. Here are just some of them:

• What happens to children who undergo radical changes in their lives when one of their parents cooperates with the authorities?
• Could the Program accommodate a teenage member of a street gang whose safety was threatened because he/she had cooperated with the authorities?
• What percentage of witnesses who are admitted to the Program had ties to the criminal milieu before deciding to cooperate with the authorities? How many witnesses were inmates of the federal correctional system before their change of identity?
• What is the recidivism rate for prior offenders participating in the Program?

That being said, what we did learn from the evidence we heard made it clear that the federal Witness Protection Program serves primarily to protect people who have acted as either agent sources or informant sources for the police and who, because of their links with the criminal milieu, have been able to contribute to the success of an investigation or prosecution involving serious crimes. According to the police officers who appeared before us, reliance on testimony by criminals, whether agents or informants, is a necessary evil in fighting organized crime and terrorist groups, which, because of their closed nature, are difficult to penetrate by traditional investigative methods. If governments are prepared to accept this testimony as an essential means of effectively combating serious crime, they must also be prepared to take responsibility for the protection of informants and agents. As Yvon Dandurand told the Committee, "The protection of such individuals therefore takes on great significance, even if it raises a number of practical, ethical and legal issues."([51]) He also pointed out that the reputation of the organizations responsible for witness protection has a direct impact on the ability of the police to recruit new informers and agents and thereby continue their war on serious crime. According to RCMP Assistant Commissioner Raf Souccar, a loss of confidence in the federal Witness Protection Program could paralyze the work of the police:

Loss of confidence in the Witness Protection Program could have a very detrimental ripple effect. Witnesses would be reluctant to come forward, and police agents would refuse to provide assistance to our country's most complex organized crime and national security investigations.([52])

Our witnesses were unequivocal that the Program is an essential tool in the fight against serious crime, organized crime and terrorism. However, our review made it possible to identify certain weaknesses in the Program that, in our opinion, justify amendments to the Act. The following sections of this chapter discuss these weaknesses and set out our recommendations for rectifying them.

1. PROMOTING FAIR AND EFFICIENT MANAGEMENT OF THE PROGRAM

(a) Create a clear distinction between investigations and prosecutions on the one hand and the Witness Protection Program on the other by setting up an independent Office at the Department of Justice

Witness protection programs vary considerably from country to country, depending on the need for protection and the historic, geographic, legal and social contexts. At our hearings, witnesses explained to the Committee that the most striking difference between programs involves the choice of the entity responsible for making decisions about the admission of witnesses. Nick Fyfe,([53]) an expert in the field, said:

There are significant differences between jurisdictions in relation to the role that the police, the judiciary and the government play in decisions about inclusion in protection programs. The UK is similar to Canada and Australia in allowing such decisions to be taken by chief police officers, but if you look at a country like Belgium, decisions about who is included are taken by a witness protection board comprising public prosecutors, the police, and members of the Justice and Interior ministries. If you look at Italy, there's a central commission chaired by the Undersecretary of State, comprising judges and experts on organized crime.

In the opinion of the experts who appeared before us, the police are not necessarily best placed to decide on the admission of witnesses to witness protection programs. Professor Fyfe commented:

[F]rom the work we did in looking across Europe, there was some surprise that in some jurisdictions it was the police who were allowed to take this decision. It was felt that [the police] were perhaps too close to the whole investigation process and that you needed some people who had some distance from that, who perhaps could take a wider view as to whether the witness was essential to the prosecution and the investigation. I think there was a feeling in some cases that perhaps the police were too ready to take witnesses into protection programs, because it would allow the investigations to proceed more quickly. ([54])

According to Professor Dandurand, the problem with making the police responsible for admission decisions is that "they offer protection selectively based on what is useful for the police in attempting to obtain a conviction or advance a prosecution. [.] A person may well be] facing a serious threat but [be] of no real value as a witness to the police."([55]) Professor Dandurand also told the Committee about the findings of a Council of Europe study on best practices in witness protection: the Council concluded that it was important to separate witness protection agencies from investigative and prosecutorial units, with respect to both personnel and organization, in order to ensure the objectivity of the protective measures and to protect witnesses' rights.([56])

In agreement with the experts from whom we heard, we think it essential to separate the organization responsible for the Witness Protection Program from the police, in order to create a clear distinction between prosecution and investigation on the one hand and a witness's participation in the Program on the other. Such independence also strikes us as crucial for making it plain that protection is not a reward for cooperating with the authorities. We recognize that some witnesses are rewarded for their cooperation with the justice system (whether financially, by sentence reductions as a result of plea bargaining, or by leniency at the time of sentencing).([57]) But while such benefits happen once and conclude, protection must evolve over time according to the circumstances and witnesses' needs.([58])

Like the experts with whom we spoke, the Committee considers that the decision to admit a witness to the Program should be made by a multidisciplinary team within the Department of Justice, that could be made up of police officers, Crown attorneys, criminologists and/or psychologists. Such a team would be in a much better position to strike a balance between the public interest (vis-à-vis the risk posed by a witness's participation in the Program) and the interests of the prosecution (from the police standpoint). As Professor Fyfe said:

It may be that having that kind of group taking those decisions, one that is slightly removed from the police, may offer a more independent and perhaps more dispassionate view of whom it is appropriate to protect and who would be included and who should be excluded from these programs.([59])

In light of the above:

RECOMMENDATION 1:

The Committee recommends that the Witness Protection Program Act (WPPA) be amended to entrust the administration of the Witness Protection Program to an independent Office within the Department of Justice. A multidisciplinary team from the Office, which could consist of police officers, Crown attorneys and psychologists and/or criminologists with appropriate security clearance, should be responsible for making decisions about witness admission and for monitoring of protection agreements. Police forces should be responsible for threat assessments, determining the level of security and implementing the protective measures.

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(b) Carry out psychological assessments of candidates aged 18 and over

At the present time, candidates for the federal Witness Protection Program are assessed by members of the RCMP trained in the witness protection field. The assessment looks at the factors set out in the WPPA, including the nature of the risk to the witness's safety; the potential danger to the community if the witness is admitted to the Program; the value of the information or evidence given by the witness; and the likelihood of the witness's being able to adjust to life in the Program. According to the information we were given, candidate assessments do not systematically include a psychological evaluation designed to determine their ability to adapt and their likelihood of reoffending.

Gerald Shur([60]) explained to the Committee that in the American program the decision to accept a witness is based on a wide range of information, including a psychological assessment of the witness and every member of his/her family over the age of 18, to determine "whether or not the witness is likely to commit a violent act, how well [the witness and his/her family] would fit within the program, whether they would be able to follow the rules given to them, what sort of employment they would need, and what their skills are."([61])

On the basis of the evidence we heard, the Committee considers it would be preferable for potential candidates, including family members, to systematically undergo a psychological assessment, given the nature of this program of last resort and the fact that most witnesses admitted to it have had ties to the criminal milieu before cooperating with the authorities. The WPPA provision enabling the Commissioner to provide up to 90 days of protection in an emergency to a potential protectee who has not yet signed an agreement would not, in our opinion, be sufficient to allow for this type of evaluation without compromising investigations and/or prosecutions. Therefore:

RECOMMENDATION 2:

The Committee recommends that the Witness Protection Program Act be amended so that a psychological assessment of candidates over the age of 18, including family members, be automatically carried out before any candidate is admitted to the Program, particularly when a change of identity is being considered as a protective measure.

(c) Promote fair and equitable negotiations

At present, a potential protectee who is negotiating with the RCMP for individual protection, and in some cases for the protection of his or her family, is not offered the services of a lawyer. Several witnesses deplored this state of affairs, arguing that the uneven balance of power between a potential witness and the police justifies the automatic presence of a lawyer when the contract is being negotiated. Barry Swadron, QC, founder and senior member of the law firm of Swadron Associates, told the Committee:

Here you have the RCMP, or whatever organization, which has been doing this for years, and you have a vulnerable person who's never been involved, and you expect him or her to match them. They have it all over [him or her]. At least if that person had a lawyer who could say, "Watch what you're getting into [...  ."([62])

In agreement with the experts who appeared before us, the Committee considers that the presence of a legal adviser at the stage of negotiating and signing a protection contract is a decisive factor in making the negotiations fair and equitable, by ensuring that the protectee understands the conditions and scope of the document he/she is preparing to sign. The signing of such a contract marks a huge change in the life of a witness and his or her family. Although we have recommended the creation of an independent Office to administer the Witness Protection Program, we nevertheless consider that the negotiating and signing of such an important contract requires the informed consent of the witnesses being protected. Therefore:

RECOMMENDATION 3:

The Committee recommends that the Witness Protection Program Act be amended so that potential candidates are automatically offered the aid of legal counsel with an appropriate security clearance during the negotiation of the candidate's admission to the Witness Protection Program and the signing of the protection contract. The fees of such counsel should be paid by the independent Office responsible for witness protection at the Department of Justice.

(d) Establish a dispute resolution process

We learned in the course of our review that protectees who are dissatisfied with the Program are advised to contact their designated coordinator([63]) to discuss their complaints or express their disagreement with an RCMP decision. Throughout our review, witnesses criticized this arrangement, pointing out that it is not reasonable to expect a dissatisfied individual to complain to someone in the very organization that is responsible for his or her protection and monitoring.

The Commission for Public Complaints against the RCMP is currently empowered to hear complaints about the Witness Protection Program. The Chair of the Commission, Paul E. Kennedy, nevertheless told the Committee that the Royal Canadian Mounted Police Act([64]) limits the Commission's reviews, in particular by allowing the RCMP to refuse to disclose certain information. In Mr. Kennedy's opinion, this provision constitutes a major obstacle to this civilian oversight mechanism.

As we saw in the preceding chapter of this report, the Commission has received few complaints about the management of the Program since the WPPA was passed in 1996. Between 20 June 1996 and 30 May 2007, the Commission received 21 complaints about the Program and initiated five investigations. To explain these figures, Mr. Kennedy pointed out that the Commission is not well known to the public at large and probably not to protectees either.

Protectees who are dissatisfied with RCMP decisions can also appeal to the Federal Court for a review of the decisions. Despite this, some witnesses were of the opinion that protectees do not have access to a reasonable mechanism for appealing decisions made by the people administering the Program, or for making their complaints heard. Professor Dandurand argued that it is "time to address the need for an effective complaint and redress mechanism for witnesses at risk and for protected witnesses who are endangered or whose rights may be abused as a result of poor witness protection practices."([65]) In light of the above:

RECOMMENDATION 4:

The Committee recommends that the Witness Protection Program Act be amended to make the Commission for Public Complaints Against the RCMP responsible for handling complaints from candidates for, and protectees of, the Witness Protection Program. The Commission should have access to all documents it considers necessary for carrying out its review effectively, with the exception of Cabinet confidences subject to the appropriate safeguards. The Committee considers that candidates and protectees should be systematically informed of this recourse during negotiations for their admission to the Program.

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2. FacilitATING ACCESS TO THE WITNESS PROTECTION PROGRAM

(a) Resolve the funding issue

Although, in theory, the federal Witness Protection Program enables any law enforcement agency in Canada to relocate witnesses anywhere within Canada, the Committee was told that a number of police forces do not have the financial means to take advantage of the Program, because it operates on a cost-recovery basis. The costs incurred in protecting a witness who has collaborated with a law enforcement agency other than the RCMP are currently billed to that agency. When he appeared as a representative of the Canadian Association of Chiefs of Police, Gordon B. Schumacher made the following observation:

When police agencies first look at the national program for help with witness relocation and witness protection, they find substantial difficulties that have to be overcome, not the least of which is cost. The cost of placing an individual in the national program can be substantial and can be beyond the means of most Canadian police agencies.

[.] I can't emphasize that point enough, as it's one of the main problems with the federal Act. It's simply unaffordable.([66])

The problem of access to the federal Witness Protection Program is not new. The Committee learned that the Canadian Association of Chiefs of Police and the Manitoba Association of Chiefs of Police recommended a national witness protection funding regime to the provincial and federal ministers of Justice in 2005.([67]) During our review, the Canadian Association of Chiefs of Police reiterated the need for a federal funding program designed for all Canadian police forces that wish to relocate witnesses. The Association considers that the lack of such funding creates the risk that certain Canadian cities will become "safe havens for criminals". Association representative Gordon Schumacher said:

Organized crime, serious crime, does not discriminate relative to geographic boundaries. It can be found in every province, city and town throughout Canada. Failure to attack these groups in small communities creates safe havens; therefore, programs such as witness protection must be made available if we are to stay one step ahead of criminal organizations and those who commit serious crimes against the people of Canada.([68])

The Committee believes it is essential to resolve the issue of funding, in order to make sure that the Witness Protection Program is a truly national program and accessible to all Canadians whose safety is at serious risk because of their cooperation, or that of a member of their family, with the authorities. Therefore:

RECOMMENDATION 5:

The Committee recommends that the federal, provincial and territorial ministers responsible for Justice and Public Safety develop a funding agreement for participation in the Witness Protection Program that would recognize governments' shared responsibility for justice. The agreement should be designed to make the Witness Protection Program accessible to all Canadian police forces.

(b) Encourage collaboration among all agencies involved in witness protection

In agreement with our witnesses, the Committee considers that simply making more money available will not be enough to guarantee access to the Program. Governments' commitment to the protection of vulnerable and threatened witnesses must also involve the mobilization of all agencies involved in witness protection. To achieve this, the Committee considers it important to encourage the drafting of memoranda of understanding between the various parties involved in witness protection. Such memoranda could be drawn up between the Correctional Service of Canada, the provincial/territorial correctional services and the RCMP, or with provincial and territorial governments, in order to facilitate the assumption of responsibility for vulnerable and threatened witnesses and respect for their rights. Collaboration of this kind is indispensable for making a success of most of the protection agreements, because some protected witnesses must serve a term of imprisonment in the provincial or federal correctional system, a large number are relocated to another province or territory, and a change of identity is often required.

During our review, some police representatives suggested amending the WPPA to allow the organization responsible for administering the federal Witness Protection Program to reach memoranda of understanding with the provincial governments on funding for witnesses. At the present time, police forces that do not have the means to pay protection expenses from their regular budgets must arrange funding for their witness from their provincial justice ministry before applying for admission to the federal Program.([69]) Allowing ministries of justice to enter into agreements directly with the Office responsible for witness protection, or with the federal government, would have the advantage of accelerating the processing of protection files and making the process less cumbersome. In light of the testimony received:

RECOMMENDATION 6:

The Committee recommends that the Witness Protection Program Act be amended so that the RCMP or the independent Department of Justice Office responsible for witness protection can enter into agreements directly with provincial and territorial governments, in order to accelerate the processing of witness protection files. Until such time as memoranda of agreement are drafted, the RCMP should continue to enter into agreements with police forces.

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3. ESTABLISHING MINIMUM CANADIAN WITNESS PROTECTION STANDARDS

As we saw in the second chapter of this report, some Canadian provinces and municipalities have their own witness protection programs. Although the Committee did not study the operation of these programs in depth, the evidence we heard indicates that there is substantial variation in their operations and administration. The federal Witness Protection Program is currently the only one governed by statute, a situation that some witnesses found deplorable. Barry Swadron argued that:

Apart from the Witness Protection Program Act of Parliament, there is no other legislation anywhere in Canada. I'm of the view that where there is no legislation, there are no minimum standards. I'm sure there are standards, but these standards might be substandard. Moreover, they could be changed at will.([70])

Mr. Swadron urged the Committee to recommend that Parliament set minimum standards for the administration of all witness protection programs in the country, pointing out that "[t]here's no reason that Parliament cannot legislate across the board. It legislates the Criminal Code, and the Criminal Code is dealt with by the provinces and municipal police forces."([71])

The RCMP representatives who appeared before the Committee also said they were concerned about the lack of minimum standards. In June 2007, the protection and monitoring of 300 protectees in the federal Program was done entirely by either provincial or municipal police forces,(([72])) depending on the case. Chief Superintendent Ogden explained why:

Any time another agency approaches us and they request secure documents only, but they say, "No, we want to do the... we'll look after the person, we'll look after all the obligations in the supervision." They are technically in the Witness Protection Program. They are provided secure documents. That would be all of our involvement. From there, we're dependent on the other police agency to advise us if there have been breaches and what the action follow-up has been.([73])

The most disturbing aspect is that the RCMP does not seem able to ensure uniform treatment for all protectees in the Program. Indeed, it is highly probable that not all protectees supervised by other police forces are handled in the same way, with their treatment depending on the police force that provides their protection. Chief Superintendent Ogden said that in certain cases the RCMP is not even told when another police force decides to terminate the protection of a protectee, or why. In such cases the RCMP is unable to ensure that the protection has ended in a manner consistent with the standards it has established.([74])

To rectify this shortcoming, RCMP Assistant Commissioner Raf Souccar recommended setting up a single witness protection program. The model he proposed would entail the creation of integrated units made up of representatives of various law enforcement agencies from across the country, mandated to provide protection and monitoring for all protectees. Supervision of the integrated units and administration of the program would be done by the Commissioner of the RCMP, as under the existing Program. The suggested program would, in the Assistant Commissioner's opinion, make it possible to treat witness protection cases consistently all across Canada, by providing standardized training for police officers working with agent sources and informer sources.

We agree with the witnesses that minimum standards for the Witness Protection Program must be introduced as soon as possible. Police forces must respect the provisions of the protection contract when they admit witnesses to the federal program. We further consider that all witness protection programs should respect the same minimum protection standards. Therefore:

RecommEndation 7:

The Committee recommends that the federal, provincial and territorial ministers responsible for Justice and Public Safety elaborate minimum Canadian standards to ensure uniformity in the treatment of all witnesses admitted to witness protection programs.  This would include, wherever possible, an expansion of the options available as set out in section 486 of the Criminal Code and any provincial, territorial or municipal equivalents, in order to facilitate testimony by witnesses to crimes who do not wish to enter a formal witness protection program.

The Committee considers that the provinces and territories that wish to establish their own witness protection programs should be encouraged to do so. The Committee sees no reason why the provinces and territories should not take charge of the relocation and change in identity of their own witnesses, as long as the minimum rules are complied with.

4. PROMOTING TRANSPARENCY

Witness protection requires respect for confidentiality. The Committee realizes that publication of detailed data could compromise the safety of protectees and the integrity of the Witness Protection Program. However, it seems to us that the Program could be made more transparent by allowing independent research that respects case confidentiality, by improving the information in the annual reports, and by ensuring independent oversight of the RCMP's activities.

(a) Allow independent research

Independent research is difficult, given the nature of the Program, but it is not impossible. Nick Fyfe presented an example of research carried out in the United Kingdom that dealt with the experiences of protectees. When Yvon Dandurand appeared, he also discussed this possibility:

[U]sually this is done either by vetting a researcher or research team through a very stringent process to make sure you're not exposing witnesses, and that's complicated, but possible. It has been done. The second [way] is to [.] ask your questions of the witnesses through their handlers or through the people responsible for their protection.[75]

Professor Dandurand also discussed the recent work of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 in relation to witness protection. Subsection b.v. of the Commission's Terms of Reference calls for the Commissioner to analyze "whether existing practices or legislation provide adequate protection for witnesses against intimidation in the course of the investigation or prosecution of terrorism cases." Professor Dandurand noted that the Commission had distributed a questionnaire to some of its witnesses who were protected under the RCMP Witness Protection Program, to find out about their views. The Committee applauds the Commission's initiative and looks forward to its findings.

In common with the witnesses who appeared before it, the Committee considers that independent research is a key element for ensuring the Program's smooth operation and credibility.

RECOMMENDATION 8:

The Committee recommends that the independent Department of Justice witness protection Office (once it has been established) encourage and permit independent research into witness protection (for example, assessments of the Program's effectiveness and efficiency based on analysis of prosecutions; analyses of protectee feedback, involvement in crime and success at relocating). The Office should also systematically compile data about the Witness Protection Program, while respecting the confidentiality of protectees.

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(b) Improve the information found in the annual reports tabled to Parliament

During our review, some witnesses criticized the poor quality of the data presented in the Witness Protection Program's annual reports. Some said that the data did not make it possible to evaluate the Program's costs overall. The amount cited in the annual reports does not include the salaries of RCMP officers, the cost of investigations or the subsequent legal fees. One witness also noted that the reports contain no data making it possible to determine where the money is spent and, consequently, evaluate results per dollar spent. It is impossible to find out, for example, what percentage of funding goes to compensation as opposed to relocation, physical protection of witnesses, psychological monitoring, and so forth. Aware of this shortcoming, the RCMP told the Committee that it intends to present more detailed data on the Program's costs in its 2006-2007 annual report.

Some witnesses pointed out that the general public's ideas about the Program are sometimes erroneous. During the review, the Committee learned about one of these misconceptions, which is that people in the Program are offered immunity for any criminal acts they may commit in the future. Assistant Commissioner Souccar said of this idea that:

This perception that there is a bubble within which a person in the Witness Protection Program lives is completely false. They're not in any kind of bubble that allows them immunity from committing crimes. They are subject to all the laws of the country, as anybody else is. Their criminal record follows them. If they commit a crime, they will leave evidence behind. Their fingerprints don't change. Their DNA doesn't change. They will be investigated, and they will be prosecuted. They will go to jail, just like anybody else. The fact that they're in the Program does not allow them to hide. That's the perception that seems to be out there.([76])

In light of the above:

RECOMMENDATION 9:

The Committee recommends that the information contained in the annual report on the Witness Protection Program be enhanced so as to give a clearer picture of the Program, the reason for its existence and protectees' obligations.

(c) Provide for civilian oversight of RCMP activities

In recent years, the RCMP has been the subject of many reviews. In December 2007, the report of the Task Force on Governance and Cultural Change in the RCMP recommended the creation of an independent complaints and oversight commission. Witnesses who appeared before us supported the need for civilian oversight of the RCMP's activities. Paul E. Kennedy, Chair of the Commission for Public Complaints Against the RCMP, described to the Committee the legislative amendments that would make it possible to give this role to his Commission.

While the Committee realizes that these are important issues, we consider that they lie outside the scope of our mandate. In addition, proposed recommendations are already in the hands of the government.