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EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 18, 1995

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[English]

The Chairman: Today we begin Bill C-78, an act to provide for the establishment and operation of a program to enable certain persons to receive protection in relation to certain inquiries, investigations or prosecutions.

Our witness today is the Honourable Herb Gray. Perhaps Mr. Gray could introduce the witnesses who are with him to the members of the committee and we'll proceed with the presentation.

Mr. Gray, please.

Hon. Herb Gray (Leader of the Government in the House of Commons and Solicitor General of Canada): Thank you, Mr. Chairman. I have with me Inspector Lesser of the RCMP,Mr. Fournier, Deputy Solicitor General, and Mr. Warren Black of the Department of Justice.

With your permission I would like to give the committee a short statement.

The intent of the bill you're studying, the witness protection program act, is to ensure that our federal witness protection program will provide the best possible protection to potential witnesses and sources.

The legislation proposed by this bill creates for the first time a statutory foundation for the RCMP source witness protection program. The changes proposed in the bill will make that program, which has been in place since 1984 but only as an administrative program, operate more openly and effectively by establishing a solid legislative and regulatory foundation for it. In other words, we're creating a witness protection program with a legislative base.

The changes in the bill, Mr. Chairman, are intended to ensure clearly defined admission criteria for witnesses; consistent handling of cases across the country; a clear setting-out of the responsibilities and obligations of both the administrators of the program and individuals entering it; a more defined management structure within the RCMP for the day-to-day operation of the program, thereby increasing accountability; and a complaints procedure. Further, the Commissioner of the RCMP will submit to the Solicitor General an annual report on the operation of the program, which must be tabled in the House. I might add that if my recollection of the rules is correct, this report would then be automatically in the hands of the appropriate committee, likely this one, to hold hearings on it if it sees fit.

Mr. Chairman, the establishment of a clearly defined admission criteria, the requirement for an annual report, the role of the independent public complaints commission as a complaints resolution mechanism, in particular, will, I submit, all serve to make the program operate more openly and in a more accountable manner to the Canadian public.

[Translation]

Provincial and municipal law enforcement agencies will still, as they have done in the past, be able to participate in the RCMP Source/Witness Protection Program on a cost-recovery basis. However, the Bill is not intended to replace other witness protection programs run by various provinces and municipalities.

In keeping with the government's program of fiscal restraint, these changes to the RCMP Source Witness Protection Program will be funded out of existing resources.

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[English]

Mr. Chairman, the protection of witnesses and sources is, I believe, one of the most important and effective tools in the police arsenal for fighting crime, particularly organized crime.

Using a broad definition of organized crime, I'm told that approximately 50% of RCMP source witness protection program cases currently deal with organized crime. Also, based on available data, approximately 85% to 90% of cases involving witness protection result in convictions, usually because of the testimony of the protected person.

Overall, Mr. Chairman, I submit that the changes proposed by Bill C-78 will serve and protect the interests of sources and witnesses who enter the program, the RCMP, and as well, the Canadian public. I believe the act you're studying today is another important component in our overall effort to improve the safety and security of all Canadians.

In closing, I'd like to acknowledge the work done by our colleague, Tom Wappel, in the area of witness protection. I'd also like to thank members of the Bloc Québécois and the Reform Party for their support so far - and I hope it continues - of Bill C-78.

Mr. Chairman, this concludes my remarks, and I'd be pleased to attempt, with the assistance of the officials here, to at least try to answer the questions of the committee. Thank you.

The Chairman: Thank you, Mr. Minister.

From the Reform Party, will it be Mr. Hanger or Mr. Ramsay?

Mr. Hanger (Calgary Northeast): We'll split our time.

Often on warrant applications that name human sources or informants, for instance, wire-tap operations, the information is submitted through the courts and generally applications are made to protect the information that's on there, namely the sources. But I have known instances where, in spite of the methods to protect the sources, it has been argued successfully by defence to disclose and the information on those warrants is disclosed. Will this legislation prevent that?

Mr. Gray: Who would like to start off? Inspector Lesser, could you comment on this, or perhaps, Mr. Black, you could start off.

Mr. Warren Black (Senior General Counsel, Department of Justice): Mr. Chairman, I believe clause 11 of the bill deals with the matter of information about the location or change of identity of a protectee being disclosed.

Paragraph 11(3)(d) says:

Is that...?

Mr. Hanger: So regardless of what necessary steps are taken by law, that information still can be disclosed in a court of law or to a defence or through an application in court and the identity of the individual revealed.

Mr. Black: Yes, I would think so.

Mr. Hanger: So ultimately the individual -

Mr. Black: This is up to the commissioner. It's a decision of the commissioner.

Mr. Hanger: So there's still that option left. Is that good? Is that still in keeping with the intent of the legislation to protect the informant?

Mr. Gray: First of all, I think it should be stressed that any decision about the disclosure of information about the location or change of identity of a protectee or former protectee has to be done by the commissioner, at that level. So it's not automatic.

The circumstances of the disclosure are spelled out in the act, and I know you've studied them. When it comes to a balance of interests - the interests of the protectee, the interests of the accused person in the criminal proceedings, the interests of the community concerned with law enforcement - I would think the section has the right balance.

To say that a protectee's identity can never be disclosed could lead to some injustice.

Mr. Hanger: In what way, Mr. Minister?

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I guess what I'm wondering about, Mr. Minister, is that I see, and have experienced myself, certain fine points here where not enough care and not enough consideration has been given regarding disclosure. Maybe if it does reflect back into the commissioner it might solve that problem, but the courts have released information in the past to jeopardize the source.

Mr. Gray: I can only repeat that there's nothing automatic about this. Disclosure has to be made by the commissioner.

I think the first step would be a decision by the commissioner as to whether the allegations sworn to by the person seeking the warrant would contain -

Mr. Hanger: Most do, so you're looking at a wire-tap operation. The courts require that information.

I guess I'm curious as to whether the courts will and can override that commissioner's decision.

Mr. Gray: I think that's an issue where whatever answer I give, it ultimately will be tested in the courts themselves. But I would venture to say that if the commissioner does not disclose the information and it doesn't turn up in the affidavit in which the warrant is based, I'm not sure how the issue would arise.

I would submit that your point, which is an important one, would be dealt with by limiting the ability to disclose the information to the commissioner. If, as I say, there's a challenge of this in the courts, I cannot say how, in advance, a court would rule.

Mr. Black, do you have any other comments to add?

Mr. Black: I think this is a discretionary decision by the commissioner taken after taking into account certain factors. A court wouldn't be likely to second-guess the decision of the commissioner as long as it can be shown that he looked at all the factors and he complied with all of the requirements of the section.

For example, subclause 11(5) says:

If the commissioner followed all of these steps and made a decision, I think a court would be unlikely to interfere unless it could be shown that he considered something that was completely irrelevant for purposes of the statute, or something like that.

Mr. Hanger: With the emphasis on disclosure now, I guess that's where my concern is. I see that window still being there. The courts have opened it up before, and I'm assuming that this really hasn't changed any and could override even a commissioner's decision should a lawyer make application for disclosure. This is my concern.

Mr. Gray: I would just like to add the observation I made before, that if the commissioner does not agree to the disclosure of the information, I suggest - and you would know more about this than I would - the information would not turn up in the affidavits on the basis of which the warrant is sought. Am I right there?

Mr. Hanger: But it indeed has happened.

Mr. Gray: Well, I don't know under what program it's happened. I just put this before you for consideration.

Mr. Hanger: Okay.

The other point I have is that the majority of informants are going to fall into the area of the criminal element, but some are outside that. They step forward, assist the police and offer sufficient information - whatever circumstances they may find themselves in. They have gone into the witness protection program in the past. They've been given new identities. However, they've run into problems. When you're given a new identity, sometimes you don't even have a job history, if you will. You have no ties elsewhere because of the circumstance. This is part and parcel of being an informant. I guess you're going to be faced with these things.

Will there be further consideration given to individuals who fall into that category? All of a sudden they don't even have a job history to go and apply for a job. They don't have any records to support what their children may be involved in at school. All of a sudden they're cast into another category. A small element falls into that category, and I'm just wondering if this legislation accounts for that.

Mr. Gray: Inspector, you deal with these issues as part of your work. Perhaps you could add a comment.

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We should be aware that this legislation builds on the existing RCMP source witness protection program, which has been there since 1984. It carries it on, subject to the changes this act calls for. So there's some ongoing experience.

Inspector Bob Lesser (Officer in Charge, Federal Directorate Services Branch, Federal Services Directorate, Royal Canadian Mounted Police): Mr. Chair, clause 2 of the bill defines protection. It includes relocation and accommodation, and such things as:

Depending on the circumstances, then, this would open up the ability of the program to fund retraining, to fund further educational approaches, to fund whatever was reasonable to help them get re-established, including counselling and dealing with the children, if that's the case.

Mr. Hanger: Are you saying this is where it's leading? I know of circumstances right now, and you may yourself, even, where the program in the past has broken down in that very way. There was no training, no assistance rendered - apart from the moving and the new identity. That was basically it.

Insp Lesser: It's my understanding that one of the intentions of this legislation is to make it more transparent. The rights and obligations of both the force and the protectee and anybody who may be with the protectee will be clearly discussed right at the beginning. What can and cannot be done for the protectee will be clearly explained.

Mr. Gray: Not only that, but I presume this will be set out in the written agreements signed by both parties.

Insp Lesser: Yes.

Mr. Hanger: So in keeping with your last point, which would be point 5 in your submission, Mr. Minister, is this complaints procedure going to be open to the witness to complain through? Is that the formal procedure for him?

Mr. Gray: Yes. The act specifies that the public complaints commission, set up under the RCMP Act, will have the authority to hear and consider complaints of people who are applicants for protection and who become protectees under the act.

The Chairman: Ms Phinney.

Ms Phinney (Hamilton Mountain): My first question is regarding clause 19. I have two or three questions, so maybe I'll give you all the questions first.

Clause 19 provides that no action lies against the Government of Canada or against the RCMP. What will be the effect of this clause, and why do we need it? What impact, if any, will the adoption of this clause have on the litigation against the RCMP undertaken by an individual who's dissatisfied with their treatment in the current program?

Mr. Gray: I'm subject to correction by Mr. Black, but I don't think it'll have any effect on any pending litigation.

Am I correct in that?

Mr. Black: Yes.

Mr. Gray: Once the bill is passed it will have the effect of lessening the likelihood of litigation against the Crown by the people who were in the program. I don't want to create the impression that every application resulted in litigation. That wasn't the case. There have been some cases in the past, that's true, but as I say, the bottom line is that the effect of this clause will be to lessen the likelihood of litigation, or at least of successful litigation. It will not eliminate it completely, because if a court agrees that the RCMP did not act in good faith with respect to the matters complained of, the court could still find in favour of the applicant on grounds of either negligence or breach of contract.

As well, while this isn't spelled out in the bill, because the commissioner or his designate is making a discretionary decision, that decision will be subject to review under subsection 18(1), if I'm not mistaken, of the Federal Court Act.

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I'd be happy to give you some of the reasons for this clause being in the bill. One reason that I think is important is that in civil proceedings against the Crown, the RCMP is not in a position to give full answer in defence because to do so would be to disclose details, which would otherwise have to be confidential, about the program of protection of witnesses, or for that matter about the investigation or prosecution that brought the witness into the program. So the Crown is at a disadvantage.

Furthermore, it has been argued that in a program like this, the government is something like a good Samaritan assisting someone who comes forward to assist an investigation. It's interesting that the two countries that have legislation on which they have based their witness protection programs - the United States and Australia - both have clauses in that legislation limiting litigation in much the same way as clause 19. I suspect it's for similar reasons.

Also, the bill of our colleague, Tom Wappel, which helped inspire the work we're doing now, itself has a proposed clause limiting litigation against the Crown by people who are unhappy with the way they were treated as protectees in the program.

It's my view that if the House and Senate adopt this bill, the likelihood of litigation will be greatly reduced. Some of the circumstances that have led to litigation, with actual or past protectees claiming that things were not given or delivered to them as promised, are less likely to occur because there is a requirement for a written agreement spelling things out. There is a requirement that if the agreement is terminated before its expiry date, reasons are to be given and so on. The whole scheme here is to lessen the likelihood of litigation in any event.

Ms Phinney: My next question is regarding clause 14, which would allow the Solicitor General to enter into agreements with foreign jurisdictions. Do such agreements exist at the present time, and which countries do they exist with? Why would we need to do this?

Mr. Gray: I'm told that in about one case in the past five years, and perhaps two cases in the past fifteen, the RCMP did enter into an agreement with another country to accept a person into its witness protection program. In all these cases there were agreements with cost recovery provided.

The legislation will permit this to be done in the future, but the terms and conditions will be more clearly spelled out. There will have to be a formal request to the Solicitor General by the commissioner. The Solicitor General and the Minister of Citizenship and Immigration will have to agree. There will have to be an agreement with the foreign law enforcement agency on which the matter will be based and also providing for cost recovery.

Why is this considered worth putting in the program? First, I want to stress that it's not expected to be used very often, but we have to recognize the increasing internationalization or transnational nature of crime. It's felt that as part of Canada's contribution to fighting transnational crime, it could well be useful occasionally for Canada to accept into its program a witness in a criminal investigation or proceeding in another country, even though on the surface the proceeding in the other country may not directly involve activities in Canada. Speaking as a layman, I can see some situations where the proceedings are in another country, but it could be something that involves Canada, where the person was setting up something to do something illegal in Canada and so on.

This is not the major thrust of the legislation, but it is considered useful to have this opportunity in view of the increasingly transnational nature of crime, particularly organized crime.

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The Chairman: Mr. Ramsay.

Mr. Ramsay (Crowfoot): Thank you for your presentation. We certainly support the intent of this bill; there are just some questions I'd like to ask.

I understand that you did make some inquiries with other countries that have similar programs. Was a report submitted on this that would be available to the committee?

Mr. Gray: I'm told that officials of the Solicitor General's secretariat met with American officials and Australian officials. They also attended a meeting of the Council of Europe on this subject. They didn't prepare what you'd call a formal report, but rather took into account what they were told and what they learned in developing the policy on which this legislation was based and in drafting the legislation.

Mr. Ramsay: So they didn't submit a report on their findings?

Mr. Gray: No, not a report on their findings as such. Obviously I got recommendations on the way to proceed and I got comments that I'd be happy to pass on to you, as minister, about the way the other programs in Australia and the United Kingdom work and how they're different from our own and why. I'd be happy to assist the committee in that way, or for that matter to call on officials for that purpose.

Mr. Ramsay: Did they bring legislation from those countries?

Mr. Gray: We could provide to the committee the legislation adopted by the United States and Australia if you'd like.

Mr. Ramsay: Okay. I'd like to move on to another question.

Clause 20 states:

This in essence makes those agreements retroactive in that this act will support the agreements and guide those agreements.

Mr. Gray: I would agree with what you're getting at, but I'd put it a little differently. The act would apply to the agreements that are in existence from the moment the act gets royal assent. It wouldn't deal with any agreements that had run out, either been terminated before their due date or expired on their due date before the act was given royal assent. As I understand it, the minute this act gets royal assent, all the agreements in place at that time will be covered by the act to the extent that they aren't totally inconsistent with it. They will be covered by such things as the sections dealing with termination, giving reasons for termination, prohibition against disclosure of information, the vocation or change of identity of a protectee and so on.

Again, this is designed to have consistent treatment of the administration of the agreements, and I guess in some ways to provide some greater protection in terms of expectations for the people covered by them.

Mr. Ramsay: May I ask about the agreements under this -

Mr. Gray: Sure.

Mr. Ramsay: - not ones that are now in effect. Paragraph 21(b) refers to protection agreements. Are those verbal agreements, or will they be in writing or some more substantive form than, say, a verbal agreement?

Mr. Gray: As I understand it, they will be in writing. They have to be in writing.

Mr. Ramsay: Are any or all of the agreements that exist now in writing?

Mr. Gray: Inspector, could I ask you to help me on that?

Insp Lesser: Yes, they are. They are in writing.

Mr. Ramsay: Are they all different or are they similar? Could we see a copy of such an agreement?

Insp Lesser: They have changed over the last number of years as different problems have arisen to cover different concerns the protectees have had. There is a generic agreement we have provided to all our divisions to use as a draft, and that could certainly be provided.

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Mr. Ramsay: I see that one isn't contained as an appendix to the bill. I think it would be informative to the committee, and certainly to ourselves, if you could provide a copy of the agreements you intend to use under the authority of clause 21.

The Chairman: Mr. Gray, we don't have any people on the list from the government side, but I have a few questions for you.

The way this bill is set up, it allows the authorities to literally hide a witness, but it does not allow or show any means of how a court could ever produce such a witness if essential in any trial. It thereby really hinders the process of law if in certain circumstances a witness is necessary.

Let me give you an example. A short time ago, when I acted as a commission counsel, it would have been impossible with such rules for me to have called a particular witness under this program. But because the witness was still in custody and had not been released from custody, this witness then could be obtained by a court order getting the warden of the penitentiary to produce the witness. It appears this may be a shortcoming in the bill. Was that considered?

Mr. Gray: First of all, I would like to make an observation. As I indicated in my exchange with Mr. Hanger, the commissioner does have the authority, in the circumstances spelled out in the bill, to disclose the identity of the witness. The availability for court proceedings, broadly stated, is one of the areas.

Second, I suspect - and I could be contradicted on this by counsel from the Department of Justice - this is an area somebody could go to the Federal Court about and seek judicial review if counsel for...decided they wanted the witness and disagreed with the commissioner's decision if the decision was not to disclose or produce the witness.

Mr. Black might want to make a comment on this issue, which is an interesting one. By the way, it's sort of the flip side of the point raised by Mr. Hanger. It shows how these things can be complex.

Mr. Black: Mr. Chairman, I'm not sure I got the exact gist of the example you gave. Are you raising a question that such a witness couldn't be called because the commissioner wouldn't consent to disclose his or her identity?

The Chairman: That would be a problem because the bill simply says that the commissioner may disclose. There is no obligation on the commissioner to disclose anything. It would thereby allow, shall we say, the hiding of witnesses by putting them under this program and thereby not allowing counsel to get at such witnesses.

Mr. Black: I wouldn't imagine the problem would arise where it was a crown witness, certainly. Are you imagining a situation where the defence might want to call a witness?

The Chairman: Either defence or commissions of inquiry.

Mr. Black: The answer I would have to give you is that the commissioner is a very senior public official. The proposed act imposes on him certain factors that are to be taken into account, and one would have to assume that he would make that decision responsibly and take into account the factors. If he did not disclose and took account of extraneous factors, the court could review that, I would think.

The Chairman: Would it be possible to amend the bill in subclause 11(3) by substituting for the word ``may'' the word ``shall'' be disclosed?

The other question, because I too have time constraints, is this: would you not agree or would you disagree that this bill perhaps goes too far? Initially the witness protection plan is to protect witnesses under certain circumstances so they know the rules, how they get into a program. Now there's an obligation on everyone they may talk to not to disclose their identity. A person protected under the program can go to anyone, can go to a hundred people and tell them, I am a person under witness protection, my name is this and this, and that person cannot disclose - including the media.

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Does this put in effect a gag on the media and thereby is an infringement on freedom of speech and contrary to the Charter of Rights?

Mr. Gray: First of all, I think it's the duty of the Department of Justice to certify that all bills to be introduced to the House are, in their opinion, consistent with the charter. I presume they've done that in this case. If they haven't, I'd like to know about it.

Second, I would suggest that if a person did what you said, it would create circumstances that could lead to the commissioner terminating the agreement. If you look at the circumstances for termination of the agreement, a person who goes around doing what you said would I think create a situation that could lead to the termination. I think a person would think twice about acting in such a cavalier and irresponsible manner.

Furthermore, it would seem to me that if there were no prohibition in law on a person who receives information about the identity of a protectee, either from the protectee or otherwise, then the whole point of this would be undermined. If you're thinking of whether that person could be prosecuted for in turn making use of the information, I am told that while the word ``knowingly'' does not appear in the offence portion of the bill it's understood that intent or mens rea would be required. So if a protectee drops a remark to his pharmacist while getting a prescription filled, and the pharmacist blurts it out to his wife in the evening, I don't think that would lead to prosecution.

Perhaps I can turn to you, Mr. Black.

Mr. Black: Minister, I'm not sure I can add a great deal to your answer, but I would certainly say that if a protectee has told someone they're in the witness protection program it should not give that person a licence to tell anybody else. By the protectee disclosing to that person, he may not endanger himself or anybody else in the program, but by the other person disclosing it - and it would depend to whom it was disclosed, of course - that second disclosure could indeed cause damage to the protectee. I would certainly think you need a prohibition against further disclosure, even if in certain circumstances the protectee has chosen to disclose.

The Chairman: I won't pursue it. I was hoping that perhaps the bill would be going in the same direction as the informant privilege rule, where if the informant discloses his or her identity, privilege ends; it's all over. The same thing here: if the protectee discloses his or her identity, it's all over.

Mr. Ramsay, five minutes.

Mr. Ramsay: Mr. Chairman, I would just like to follow up on that. I think one of the duties of the committee is to ask questions with regard to the constitutionality of new bills.

Mr. Gray: Of course.

Mr. Ramsay: I have some concerns that if this bill grants the authority to the commissioner to enter into agreements that will protect the identity of witnesses, defence counsel may have the right to call...and in these cases it would be witnesses that the Crown would not be calling but simply witnesses that have provided information indirectly.

Where would a defence counsel be if they made application for those witnesses to appear for either cross-examination or before a commission of inquiry? I'm looking at the constitutionality of this.

As well, we saw just recently - well, within the last year - the identity of an individual on a witness protection program in Edmonton revealed by the news media. They had pictures of him and where he lived in Stony Plain, Alberta, I think it was.

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Would this deny the news media the chance to contact that person and run a story the way they did? Is this meant to deny the media doing that?

Mr. Gray: I'd like to start off by saying that if information came into the hands of third parties about a protectee, my understanding of the bill is that it would be an offence to knowingly disclose the information - unless the commissioner in effect terminated the agreement, or agreed to the disclosure.

By the way, Inspector Lesser reminded me that one of the reasons for which the commissioner could disclose information - if you look at paragraph 3(b) - is if the former protectee has previously disclosed the information or acted in a manner that results in the disclosure. I'm not saying that would automatically be a reason for agreeing to the disclosure, but as I suggested earlier, it could lead to that.

With respect to the case in Edmonton, I'm not sure whether that involved a witness in the RCMP program or another program.

Mr. Hanger: It was the RCMP program.

Mr. Gray: I see. Because as you know, this bill will not cause the RCMP program to replace all the other existing provincial or municipal programs. I think there are 15 others. They will still carry on as before, although there will be the right, as existed before, for them to make an agreement with the RCMP to have their witnesses accepted into this program on a cost-recovery basis. This gives me a chance to point out that this does not replace any existing programs.

In terms of the Edmonton case you mentioned, there's no legal framework for that, as will exist now.

Mr. Black, perhaps you can carry on.

Mr. Black: On the matter of whether the media would have a right to disclose, I think they clearly would not under the terms of subclause 11(1), which says:

On the other point, about where the defence called a witness, I think the example you gave is where the commissioner might deny the right to disclose the identity of the witness, and thereby the witness couldn't be called, and it would, I take it, place the accused in a very precarious position. I think that was your concern.

I would think a decision certainly would have to be made by the commissioner. He'd have to weigh the threat to the witness against the value of the prosecution. I suppose if it were a genuine case where he considered that the threat to the witness outweighed the need for the witness, then the Crown might have to consider abandoning the prosecution. If he, in good faith, looked at all the factors in clause 12 and decided that the identity should not be disclosed, and if that in fact prevented the defence from calling a key witness, then I suppose a decision would have to be made as to whether the Crown should abandon the prosecution or whether the court should dismiss the prosecution.

Mr. Ramsay: Would that not run the risk of bringing our system of justice into disrepute? In other words, you've suggested, from my understanding of what you've said, that the Crown would have to abandon the case because of the exercise of the rights of the defence counsel. Is that what I understood you to say?

Mr. Black: If the defence counsel wanted to call someone who was in the witness protection program and needed to know the identity, and the commissioner decided that for one reason or another, after considering the factors in clause 12, the identity of the witness should not be disclosed and the witness couldn't be summoned, then that's right. If defence counsel could convince the court that the testimony of the witness was essential to the defence, it indeed might jeopardize the prosecution.

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But there's a weighing process that has to be done here. I think you have to weigh the value of the prosecution against the threat to the witness. This is why the bill sets out all these criteria to be considered. I think you have to assume that a senior public official will do his or her best to act responsibly.

The Chairman: Ms Torsney.

Ms Torsney (Burlington): I have several questions for you, Mr. Minister. Perhaps I can give them all to you.

The first one relates to this war that's taking place in Quebec right now - and that's not the referendum, but the huge problem with organized crime. You mentioned in your comments that 50% of the RCMP source witness protection program cases currently deal with organized crime. How fast will this new program be up and running? Will it make a difference to the situation in Quebec and in other provinces? How many people are in the program now and how many can we accommodate? You mentioned it's the same budget. I don't think we have the budget figures in front of us, but I'm sure they're available somewhere.

Secondly, you mentioned in your statement that there are other witness protection programs run by the provinces and the municipalities. I wonder what kinds of programs are out there? Are people being shifted at all different levels? How complicated is it? Why isn't it all being done by the RCMP?

The last one's perhaps a little bit silly, but you talk about a change of identity in the bill. I wonder if we are giving everybody plastic surgery or something. What kind of change-of-identity provisions are in there? Is there a budget per person or something - you can have a new hairdo or...?

Mr. Gray: I'll try to remember all these questions and deal with them in reverse order.

Change of identity refers primarily to a change of documentation. The bill makes it clear that the federal departments have to cooperate for this purpose, and if they do, they aren't subject to any liability. I'm told the bill is broad enough to cover plastic surgery, but I'm also told this hasn't been done as of yet for anybody in the program.

Insp Lesser: It was done once.

Mr. Gray: It was done perhaps once, so it's not a frequent thing. The law is broad enough to encompass it, but past experience suggests it's not going to happen very frequently.

As for the other programs, I'm told there are fifteen. I suppose one could assume, without giving a list, that they involve provinces with their own provincial police - that's only two provinces - and a number of municipalities or major cities. Elsewhere, the program is effectively run by the mounted police.

As you know, the mounted police are the provincial police by contract in eight of the ten provinces and in the two territories. In the provinces where they are the provincial police, they are even municipal police in some 200 municipalities. So in many ways the program is the program for most of the country.

Why does it not replace the other programs? The answer is simple. Under our Constitution, the administration of justice is a provincial responsibility. If the provincial governments, where there are separate provincial police forces, agree to have their own programs, they have a right to do that. They can allow their municipal police forces to set up their own programs. So far, from what I'm told, the whole thing is working well, and there's good cooperation between the various programs. We're not trying to disrupt what's working now. What we're trying to do is improve things, not reinvent things that are working.

The budget now is approximately $3.4 million a year. So far there have been about fifty people admitted to the program each year. At any one time, I'm told, there are from eighty to a hundred in the program. These aren't all potential witnesses or sources. In some cases they could be children, spouses or relatives. As to how many it's anticipated the program will handle or can handle - and I'm going to turn to the inspector on this - I would guess the planning anticipates something in the same ballpark because there's been experience with this since 1984.

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How quickly can the program be up and running? It's anticipated there will be some period of time between the bill's adoption by the House and Senate and royal assent in order to make sure that all the things are ready, such as the draft contract, the response to this act and everything else; that any regulations spelling out information requirements and administrative procedures are ready. For example, the act spells out just what level of the RCMP is responsible for what decision-making, and I'm sure the commissioner will designate which assistant commissioner is in charge of the program and which chief superintendent works on the next level, and so on.

I wonder, Inspector, if you could give some idea of how long you think it would take between the House of Commons and the Senate passing the bill and getting everything in place to apply the bill so that royal assent could be given. Have you any information on that as of yet?

Insp Lesser: Yes, Mr. Minister. It should be able to happen fairly quickly. The policy is being developed now as this goes through the various processes and as it comes up past the Senate. At that time, we should be able to confirm all of the policy changes required to be in compliance with the act.

An hon. member: Are you talking weeks or months?

Insp Lesser: I would say within a week. If there were a delay of a few weeks between the Senate and royal assent, it would be out and ready by the time it was given royal assent.

The Chairman: Thank you.

Mr. Hanger.

Mr. Gray: I'm sorry, but I think I've neglected to deal with the first part of her question. It just came back to me.

The Chairman: Unfortunately, she had ten minutes' worth of questions in a five-minute period, but please, Mr. Minister, go ahead and finish.

Mr. Gray: I want to respond to your direction.

I would think a program like this can assist in dealing with organized crime situations. I have a feeling the use of informants would be very useful in dealing with the situations we see in the headlines in Quebec and elsewhere, to the extent that as soon as this bill can be passed, it will make the program more effective. It may help, hopefully, to speed up the efforts of the police in dealing with some of these situations.

The Chairman: Mr. Hanger.

Mr. Hanger: Just getting back to the circumstance in Edmonton to which Mr. Ramsay referred and its disclosure on television, to my knowledge that informant was an RCMP informant. He came out of Toronto initially and ended up being placed in British Columbia. Through a series of contacts, he ended up disclosing his own position to the media and the media took it and made a story out of it. He was upset with the RCMP over matters.

Would the media, in this particular case, hold any responsibility as far as a violation of clause 11 is concerned?

Mr. Black: I think they would, the way subclause 11(1) is drafted.

Mr. Hanger: But the individual disclosed himself. From what I can see here, if he discloses himself, he could then be charged.

Mr. Black: Are you talking about subclause 11(2) now?

Mr. Hanger: I'm talking about clause 11. The individual - the protectee, if you will - is the one who disclosed his own -

Mr. Black: No, the protectee could not be charged, but others could be, as I see it.

Mr. Hanger: So in spite of the fact the protectee had gone to the media himself, would the media still be in jeopardy?

Mr. Black: I certainly think it's one thing for him to tell certain individuals, or for certain individuals in the media to gain that knowledge. It's another thing to disseminate that knowledge widely. I would think this would be covered by the prohibition in subclause 11(1). But of course the Crown doesn't always have to prosecute simply because there's a violation. The Crown always looks at the circumstances, and there's a discretion in an appropriate case not to bring a prosecution if it's felt the circumstances warrant it.

Mr. Hanger: You see the step that would take place now if the informant decided on his own to reveal his identity. The commissioner, in a way, has authority to then cancel the agreement and the RCMP would no longer be bound. I guess that's why I'm asking this. Would the media in this event really be subject to any kind of litigation or court action?

Mr. Black: The subclause is pretty broad, Mr. Hanger. It talks about the identity of a protectee or a former protectee. So even if the agreement had been terminated because of the protectee's disclosure of his position, I think the prohibition in subclause 11(1) would still apply. But once again it would be up to the Crown to decide, under the circumstances, whether or not a prosecution is warranted.

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The Chairman: Subclause 11(4) probably applies to that, does it not? It says:

Mr. Black: But, Mr. Chairman, I think that subclause is referring to a disclosure made in accordance with the act.

The Chairman: I see.

Mr. Hanger: The amount that has been set aside to accommodate those applications is $3.4 million.

Mr. Gray: Yes.

Mr. Hanger: And that's pretty much in line with what occurred over the last year.

Mr. Gray: That's right.

Mr. Hanger: Is that sufficient? When you look at families and so on, that works out to an average of $68,000 per individual. This was one of the complaints I've heard from several individuals who had ended up in the witness protection program in the past.

Mr. Gray: Inspector, could you make a comment on that?

Insp Lesser: Yes.

Mr. Chairman, the budget for the witness protection program comes out of the general operating budget of the RCMP. As such, there's no specific allocation for the witness protection program. This has historically been the amount that the force has spent on these particular cases. So to answer your question, it would vary and it would be up to each division because they've been given financial control over their budgets and over how they spend. That would have to reflect from the commanding officers and from what their priorities were as far as other offences and other investigations that they have on the go are concerned.

Mr. Hanger: Do any of these allotted funds involve handlers' costs, or is that separate and above?

Insp Lesser: Again, they all come out of the general operating budget.

Mr. Hanger: Okay.

The Chairman: Mr. Regan.

Mr. Regan (Halifax West): Mr. Minister, there is one question I'm curious about. You say there are approximately fifty people per year added to this program, yet the total at any one time is eighty to a hundred individuals being protected. It looks as though, obviously, no one generally lasts for more than a couple of years on the program. I assume this means the resources of the department aren't spent for a period much longer than that. What does this mean? My understanding was that the average was $30,000, in terms of the average cost per individual being protected. Is that correct?

Mr. Gray: I suppose this means people stay in the program for varying periods of time. You can't say somebody goes into it in year one and is finished in year two. Some may only be in for a few months.

With respect to another individual, he or she may have a spouse or children or relatives in the program as well. I would gather that - and I would ask the inspector to help us here - a lot of the use of the program involves fairly short-term protection rather than a complete program involving all of the things I was talking to Beth Phinney about. I suspect that's likely the case. And I also suspect that where a threat is assessed, it may be decided the threat dissipates as the trial ends and so forth.

Inspector, perhaps you could help us based on your day-to-day involvement.

Insp Lesser: Yes, sir.

The average time on the program is about six months per person. As the minister explained, usually once court is over or the person is moved from the immediate area where the threat exists, only the larger organized crime groups are capable of perpetrating that threat across any distance. So very quickly after a relocation is done - within six months - people would usually be settled into their new environment and new lifestyle and their participation in the program would lapse.

Mr. Regan: What does that mean? I'm curious to understand how a person would be moved to a new location and then make a living or survive. Do a lot of them go on welfare? After the six-month period, when the government is no longer supporting them through this program, how do they generally find support? Do you know?

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Insp Lesser: Most of them, as we mentioned, are involved in criminal organizations themselves, or they are involved in illegal activities, and that's how they become witnesses or agents. So compared to a witness who is just an innocent witness who happened to see something, a lot of them don't have a pre-set lifestyle and an occupation where it's difficult to transfer around. Many of them can be very quickly assimilated into the new environments they've been moved into.

Mr. Gray: I suppose you're talking about general labour and the like.

Insp Lesser: Yes.

Mr. Regan: That brings me to my second question. What do you do with the person who is a witness and has been involved in organized crime for a long time when he's moved? I'm embarrassed to say that I'm thinking of a humourous movie called My Blue Heaven with Steve Martin. I don't know if you've seen it, but it's about a fellow who has been part of a crime group and is moved to a new location.

Obviously you're talking about people who have been involved in crime all their lives. That's their way of making a living. What do you do to watch people like that when they're in the new environment?

Insp Lesser: A lot of these people don't want to stay in the program for a very long period of time, especially with this legislation, where if they commit a crime they could be terminated from the program anyway. A lot of them will just take what is offered as far as relocation and then get out of the program and continue with whatever their expertise is.

Mr. Regan: That's scary. If you're a Canadian hearing this and know that this person could be moving to your neighbourhood without your knowledge, you'd probably want to feel a little more secure about what the government is doing to watch this kind of situation and make sure this person doesn't revert to his or her old ways.

Insp Lesser: In the general criteria the commissioner looks at, as to whether or not to admit somebody, the effect of having that person in a community is one of the elements that will be examined before a person is admitted into the program.

Mr. Ramsay: I'd like to come back to this issue for just a short time. Do you anticipate a charter challenge if you tell the news media it cannot do what it has been doing until now, and that is tracking down some notorious individual who's under the program and revealing the situation, as it has done in at least two cases I'm aware of on television? Do you anticipate a possible charter challenge to the rights of the news media to report?

Mr. Black: I suppose it's difficult to predict if anyone will bring a charter challenge. I couldn't give you any assurance that nobody would bring one. However, if one were brought in those circumstances, I think we'd have very good grounds for defending one.

Mr. Ramsay: Of course, you usually seek charter challenges when you're taking rights away from people. Members of the new media may look at clause 11 as doing just that to them because they will not be allowed to report in the manner prior to the enactment of this bill. From that viewpoint, I'm wondering when they'll challenge the court's decision to exclude them from the courtroom. They'll challenge them on the disclosure issues.

I think it's reasonable to assume that when you tell them they have to stop doing to them what they have done in the past, there may be a challenge, particularly if that right to do so is protected under the charter.

Mr. Black: I don't think we can prevent people from bringing charter challenges. I can only say that I think we would certainly have a defence to that.

Mr. Ramsay: I guess what I'm wondering about is whether you have charter-proofed the act. Have you looked at these possibilities?

Mr. Black: We've had people in the charter section in the Department of Justice look at the act, as they do with every piece of legislation that is brought forward. I know they've helped us with this section, and I think they're quite satisfied now that it is consistent with the charter.

Mr. Ramsay: Thank you. I'd like to move on to a question about clause 19. It's interesting that you've included this in this piece of legislation. Is there a similar clause in any other legislation that you're aware of?

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Mr. Gray: In Canadian legislation?

Mr. Ramsay: Yes, particularly in Criminal Code legislation.

Mr. Gray: I understand that some research was done on this and there are similar clauses in a lot of federal and provincial statutes. I can give you some federal examples. I don't have the actual text of the section, but I can give you examples, such as sections 66 and 74 of the Access to Information Act, sections 405, 406 and 504 of the Bank Act, section 251 of the Bankruptcy and Insolvency Act, and section 99 of the Canada Petroleum Resources Act. I have a number of others, and perhaps we can table them at the committee.

I know for a fact that there are similar clauses, as I said earlier, in both the American and Australian witness protection legislation.

Mr. Ramsay: Some of the information that has reached me regarding the witness protection program act is from dissatisfied individuals involved in it. They say they've been placed in a vulnerable position. They've been promised by the police that they would be looked after, and after six months or so they're dumped; the contract is terminated.

Clause 19 seems to grant the commissioner the power to terminate a contract by claiming it has been done in good faith and protects against any recourse from the people in the program.

Mr. Gray: I think you're raising an important point. First of all, even under the present situation where there is litigation, it isn't always successful. Even now when people bring civil complaints against the commissioner on grounds of breach of contract or negligence, the cases aren't always successful.

Secondly, it's my expectation that the application of this act will lessen the number of incidents where people feel it is necessary to complain. There will be much more stringent requirements with respect to the written agreement signed by both parties so the obligations of both sides are spelled out. If there's a termination before the termination date of the agreement, not only do reasons have to be given but the person has to be informed ahead of time and be given a chance to make representations.

The whole approach of the act is to lessen the likelihood of situations arising where a person would feel aggrieved. I can't say it will never occur, but if it does occur the person can then go to the RCMP Public Complaints Commission to ask that the complaint be looked into, that a ruling be made, and that a recommendation be made to the commissioner.

It's not enough, as I understand it, for the commissioner to assert that what he or his designates did was in good faith. This is a matter that would have to be demonstrated in a court case.

I understand from research that has been brought to my attention that the words ``in good faith'' have a certain meaning in law and have been tested in law. For example, if you acted on grounds of malice or for reasons unconnected with the act, or if there was a gross degree of negligence in carrying out the most elementary obligations, this may well lead to a finding that the force did not act in good faith. That's a legal matter, but it's not enough, as I understand it, for the commissioner to assert in defence that he or his designates acted in good faith.

Finally, while the act doesn't say this, there is what a layman would call a form of appeal to seek judicial review in the Federal Court under the Federal Court Act of the decision of the commissioner to terminate or not to admit, or the way the contract was applied.

The commissioner under this act is being called upon to make decisions of a discretionary nature within the structure established by the act, and the person the commissioner has designated has to act in a manner consistent with the act, pursuant to the concept of the Federal Court Act.

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Mr. Ramsay: I have one follow-up question, but I'm willing to wait until the next time around.

The Chairman: Ms Phinney.

Ms Phinney: I have a question to do with witness protection. If somebody is not involved in a crime - they're a witness - but the person spends five years in jail, then gets out, would this witness sometimes need protection after the person gets out of jail? Would that mean they would need protection until the person who had been convicted died? Do you have any cases in Canada where the protection goes on for more than six months? Are you protecting just for the trial period? What about afterwards?

Mr. Gray: First of all, I want to observe that this bill, unlike the American law, for example, protects not only people who are witnesses in court. It can provide protection to people who simply act as sources or informants or agents in an operation and who don't ever end up testifying in court. In this situation actually our legislation is broader than the American legislation.

As for the timing when it would click in, that's an interesting point. I don't know, Inspector, whether you can comment on that in light of the way the present program works.

Insp Lesser: Under the present program one of the main criteria we look at is the degree of threat to the potential protectee. So if there were an established threat to the protectee as a result of their involvement with the investigation or as a witness, then they would certainly be prime applicants to get back into the program.

Ms Phinney: Once the person who had been in jail got out.

Insp Lesser: Yes, whenever it happened, for basically the rest of the witness's life.

Mr. Gray: I am looking at the definition of ``witness''. It's not related to proceedings or the time leading up to and during a trial. I guess it's possible for it to apply ex post facto.

Insp Lesser: Yes.

Ms Phinney: Do you have some criteria written down? You receive letters and the person knows....

Insp Lesser: What we take a look at is a validated threat. It would depend. You'd have to go and discuss with the person why they feel threatened and on what grounds they feel their life is in danger. Based on that and any subsequent background checks that would be appropriate, the threat could be confirmed or wouldn't be confirmed.

Ms Phinney: Have you had any examples, to your knowledge, where somebody has contacted you and said ``I think I might be in trouble when this fellow gets out in two years'' and then you haven't done anything and something has happened to that person?

Insp Lesser: No, not to my knowledge.

The Chairman: Mr. Ramsay, you had a question.

Mr. Ramsay: Yes, Mr. Chairman. I would like to follow up on the intervention of the minister on clause 19.

Witnesses who are involved in the protection program, particularly family members, are in a vulnerable position. Their lives are in danger; otherwise they wouldn't be in the program. If a conflict arises within the contract and either it's not being lived up to its fullness or it's terminated or not extended according to the promises put forward or as understood by the witness, they are in a very difficult situation. They're not usually in a position where they can complain or go to the courts for some kind of a decision, or even to some of the commissions that are set up to deal with it.

I'm wondering about clause 19. Do you consider, in light of these factors, that there is a fair balance in the interest, of course, of the government, and in this case the commissioner of the mounted police, as well as in the fair interest of those who are involved in this program? We know police officers - and you have a couple of ex-ones sitting here - are prepared to promise not the world but pretty close to it if they will come forward and testify. ``Yes, we have all these programs, we'll look after you, we'll get you a new identity, we'll move you to a new location, we'll protect you.'' Yet I have had people who have been under the program - and not particularly the family members - tell me the rug has been pulled out from under them, and they have no recourse at all.

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So I ask, do you feel a fair balance is struck by clause 19?

Mr. Gray: First I want to say the points you made were of concern to me in considering this clause. I think the officials will confirm that in the past few months, in response to the questions I had, a lot of work was done on the rationale for this, and on whether there were examples of this type of limitation in other jurisdictions with similar laws. Therefore I would say I think on the basis of the information I put forward before the committee about the American legislation, the Australian legislation, the way this bill is structured there is a balance of the kind you are talking about.

I will ask the inspector to assist us on this, but one of the purposes of the bill is to clarify lines of decision-making and accountability for the program. An assistant commissioner will be designated as the overall person in charge. Certain decisions have to be made at that level, other decisions at the level of chief superintendent. It won't be something that will be handled simply by the local investigator who, for understandable reasons, wants to get the crime solved. So there will be that other layer of administrative review and accountability, which I think will help remove people in good faith making inducements that may not be borne out afterwards. Bear in mind that there will be the obligation to produce this detail with an agreement.

Also, I want to say that in my view, without your expertise in this, what will avoid the problem you've mentioned is a sound administrative system in terms of the support of the program within the force. I think we will have to agree, many legal proceedings are ex post facto. They come along after things have broken down, and they drag on in the courts for years. So what we want is not an ability to launch a civil lawsuit, which may not be of real value in avoiding the type of problem you have mentioned, but a system that works well from the beginning and throughout the period within which the person or that person's relative is in the program. In part, this is what this bill is designed to do.

Mr. Ramsay: Could I ask the inspector how many cases have resulted in the concerns I have expressed, where the witness has disagreed with the treatment, and had complained about the treatment? Maybe it is negligible. Over a number of years I have heard of a handful. To what extent is that a problem now?

Insp Lesser: A handful would probably be an accurate number; between five and ten over the last number of years.

It is hoped that with this bill in place, and with the signing of an agreement or letter of agreement or understanding, it would be made very clear with the potential protectee what exactly the force will provide, what it won't provide or can't provide, and what our expectations of the protectee would be once they have entered into the program. It won't help anything that may have been done in the beginning with the original investigators - it won't be able to change what may have been said there - but it will certainly clarify whether what was said is or is not accurate and is or is not part of the agreement from this moment forward.

The Chairman: Ms Torsney.

Ms Torsney: Does this program cover CSIS informants, such as Grant Bristow?

Mr. Gray: I can't confirm that Grant Bristow was a CSIS informant -

Ms Torsney: Right; sorry about that.

Mr. Gray: - but the law applies only to law-enforcement agencies, and CSIS is not a law-enforcement agency.

Ms Torsney: So is there a separate CSIS program?

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Mr. Gray: I can't get into that, but obviously if CSIS has sources, it also has obligations. As I say, CSIS is not a law enforcement agency under the terms of the act; it gathers information, so it wouldn't have access to this program.

Ms Torsney: Okay.

The Chairman: Thank you, Mr. Minister. The only concern that I have to finish things off today is that the person who is to be protected can speak and reveal information as to his own identity and is protected from prosecution, but the person he talks to is not. To me, there seems to be something wrong with that concept, but I simply leave that to your department for you to deal with. Thank you very much for appearing today before the committee and enlightening us on the bill.

Mr. Gray: Thank you.

The Chairman: The meeting is adjourned until tomorrow.

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