:
I'd like to call this meeting to order. This is the Standing Committee on Public Safety and National Security. This is meeting number 49.
For the first part of the meeting today, we are going to study the review of the witness protection program.
I will have to ask the cameras to leave. This is going to be recorded, but no cameras are allowed in here.
We have with us today, from the Department of Justice, Erin McKey, senior counsel in the criminal law policy division; from the Royal Canadian Mounted Police, Chief Superintendent Derek Ogden, a director general; from RCMP legal services, David Bird, counsel; and we have Superintendent Carl Busson, officer in charge of the drugs and organized crime division.
Welcome, everyone, to our committee. We look forward to your testimony.
I believe only Chief Superintendent Ogden has an opening statement. Is that right? Anytime you're ready, sir, you may go ahead. You have approximately ten minutes. If you need a little more than that, just let us know.
:
Thank you. I'll be very brief.
Good morning. It's my pleasure to appear before you again today. As you're aware, I'm the director general of the drugs and organized crime program for the Royal Canadian Mounted Police. As such, I oversee the source witness protection program as administered by the RCMP.
Today I would also like to introduce Superintendent Carl Busson. He's the officer in charge of the drug program in the province of British Columbia for the RCMP.
The witness protection program currently has approximately 1,000 protectees. Of these, approximately 700 are from RCMP cases, while approximately 300 are assistance cases to other law enforcement agencies.
I want to stress that none of these protectees has the benefit of immunity should he or she go on to commit further criminal offences. In fact, paragraph 8(b) of the Witness Protection Program Act clearly stipulates that as a condition of protection agreement, a protectee shall refrain from activities that constitute an offence against an act of Parliament. In addition, protectees are warned about committing criminal offences during the screening process, and they also have to sign protection agreements where these stipulations and undertakings are fully documented and outlined.
That said, it would be unrealistic to expect that none of the protectees would go on to commit further criminal offences. In fact, between April 1, 2004, and April 1, 2007, nine of the 1,000 protectees were terminated for commission of criminal offences. When a protectee has committed, or is suspected of committing, a criminal offence, the criminal investigation is pursued by the enforcement agency of jurisdiction.
In addition, it should be understood that all protectees retain their past criminal record. All protectees are subject to prosecution for the commission of criminal offences, and courts of criminal jurisdiction are provided with a protectee's criminal record for their consideration. Essentially, protectees are treated under the criminal justice system like any other Canadian citizen.
As the administrator of the current national program, I can advise you that we are constantly reviewing the program in an effort to provide program improvements. These efforts include both on-site reviews of individual witness protection sites and cases, as well as updates to the various courses we offer in the area of human source training and source witness protection. I welcome this opportunity to discuss how the program could be made better to serve the needs of Canadians as well as of all law enforcement agencies in Canada.
Thank you very much.
I would direct your attention to section 11 of the Witness Protection Program Act. That is the one that makes it an offence to knowingly disclose the identity or information about the location of a protectee or former protectee. The exceptions in it are set out so that the RCMP commissioner herself could only disclose information that's not permitted, by virtue of that section, which deals with the administration of the Witness Protection Program Act—actually, steps that would be taken to provide protection to the protectee, which would have to be done to provide it.... Where information is going to be disclosed that is potentially outside that mandate, that would put the protectee or another witness at risk or affect the integrity of the program, the commissioner must go through a series of considerations and steps.
The information in section 12 has to be provided to the commissioner before the commissioner can personally make a decision. The first question in section 12 is, “What are the reasons for the disclosure?” The authority has to relate to the exceptions in subsection 11(3) of the Witness Protection Program Act, which allows the commissioner to disclose it with the consent—that's a case where it's possible that the protectee or former protectee may consent to it.
If there's no consent, then you are into paragraph 11(3)(b), where you may have the protectee acting in a manner that results in disclosure. That's a question of the protectee's behaviour. An example of that may be where they become involved a criminal offence and it has come out as a result of that and there being a further requirement for information to be disclosed about that person.
It doesn't really make much difference whether it is that or the other exceptions in the public interest in paragraph 11(3)(c) that apply, where there's a public interest to be considered. There are examples of those public interests there. It's not limited to those, because it says “such as”, but the commissioner has to be concerned that it is in the public interest.
Both paragraphs 11(3)(b) and 11(3)(c) require that all the procedural steps be taken to allow the commissioner, in subsection 11(5), to also make sure that the person has a reasonable opportunity to make representations concerning the matter.
So there are a number of procedural steps that have to be taken as well—I would bring that to your attention—before the commissioner could exercise any public interest or determine that the person has acted in a way that results in disclosure.
Following in section 12, in paragraph (b), the commissioner must consider the danger or adverse consequences of the disclosure in relation to the person and the integrity of the program. There has to be some consideration of that.
There has to be, in paragraph 12(c), a consideration of “the likelihood that the information will be used solely for the purpose for which the disclosure is made”, which is an obvious intent of Parliament to take steps to make disclosure only to persons who would have a direct interest, and there must be some consideration of trying to limit the further disclosure of the information.
Section 12 in paragraph (d) requires the commissioner to consider “whether the need for the disclosure can be effectively met by another means”.
Finally, in paragraph (e) of section 12, there has to be a consideration of “whether there are effective means available to prevent further disclosure of the information”.
So the commissioner starts with those obligations, then goes back to the reasons, which are going to be before the commissioner, that would convince her that it's in the public interest.
Assuming the notice is given to the affected person--either a protectee or a former protectee--that person has the right to a hearing. The commissioner must consider those representations and finally make a decision. That decision would be a decision of a federal body, which means the commissioner's decision would be reviewable in Federal Court. The grounds of judicial review for a decision of a federal body or board is in the Federal Courts Act.
The grounds for judicial review in relation to that person would be similar: the commissioner acted without jurisdiction; the commissioner failed to observe a principle of natural justice--and I believe you heard evidence about that in another matter; he or she erred in law in making a decision with respect to the order; he or she based the decision on an erroneous finding of fact, or acted in a perverse or capricious way with regard to the material before him or her. The other grounds are that the commissioner acted or failed to act by reason of fraud or perjured evidence; and finally, that the commissioner acted in any other way that was contrary to law.
With respect to the identity or location of a protectee, in my view there is a high onus on the commissioner with respect to determining that something is in the public interest to disclose. The commissioner cannot delegate that decision. It's related to the commissioner, personally. Parliament obviously intended for this to be at the highest level of the RCMP. The commissioner must address his or her mind to all of these factors, follow all of these rules, and follow these procedural safeguards before coming to the conclusion that disclosure is in the public interest.
In my view, Parliament has set up the Witness Protection Program Act to protect the protectee and former protectees from disclosure by the police, except in the most serious cases. Before such steps are taken, the primary consideration must be for the benefit of people in the witness protection program, security of their lives and those related to them.
:
Thank you, Mr. Chairman.
First, while I'm always happy to hear that it doesn't show, I did start practising criminal law in Montreal in 1966, on the Crown's side, and later on the defence side most of the time, until I went into politics in 1993. At the time, there were no witness protection programs. I saw them come into being unofficially. And I have particularly seen them improve in terms of reliability, transparency and effectiveness.
I remember that at the time in Quebec there was a report by Mr. Justice Guy Guérin, which set out what type of written arrangements there should be with these individuals who had a criminal past but who were prepared to testify against others so that we could get a conviction. I very much appreciated the fact that the agreements were in writing, but I had some experience with the system when things were more or less improvised. Things were left entirely to the discretion of police officers. The arrangement was hidden and operated using police funds. There is no doubt that the current situation is much better.
This is an extremely difficult subject. The people with whom you have to work have a criminal past, and they have criminal tendencies as well. These people are not always reliable, almost by definition. I understand that it is difficult to develop a perfect system that is effective while controlling these people at the same time.
I think you have some experience running the program now. Do you have any suggestions for us as to how it could be improved? I think that if you are quite succinct, I will mention some of the improvements that have been suggested to us and ask for your opinion on them.
:
I thank you for your comments.
Yes, you're very correct that it's a high-risk program. And we know that we're not going to develop a perfect system.
One area where we have spent a lot of time is training, especially since 2003. We now have a complete training package on human source development and human source handling. It starts with an eight-hour Internet course that everybody can take at the RCMP; it's a mandatory training course now in Regina. The next step is a five- or six-day course focusing strictly on human source development. We also have a course on human source development for supervisors.
We recognize that the whole area of human source development is important; we have to have people who are trained and who understand that when somebody brings us information, we have to take independent steps on our own to corroborate the material being brought in. We have to have some method to evaluate the information that's being provided to us.
I think we've been quite proactive and have had an awful lot of strong partnerships across the country. We have presented our courses in the provinces of Quebec and Ontario. In Alberta they have essentially adopted the course, and our delivery net as such, exactly as we have written it. I know that in Quebec we work very closely with the people who manage the internal program in that province, and they also put a lot of focus on the intake, on the assessment, and on the protection agreement.
So I would say that training is one area. Another area, though, where I think there's a bit of a gap—
:
One area I see as a gap is that there are, as you are aware, quite a number of cases brought in under the Witness Protection Program Act where we're actually assisting other law enforcement agencies. We essentially can't ensure any consistency in that across the board or control what takes place with an individual up to that point.
The other thing that can cause us problems is that when we reach the termination process, there may be gaps and we may not be fully aware of why a person was terminated or aware if the termination was done in what we would feel to be in an equitable manner.
What can happen is that we'll see cases come in as assistance cases, and we will essentially have to take them on because they do meet the section 7 criteria of the act. So these people are provided secure identification and are made part of the witness protection program.
We take on all of that risk in the federal program without having any of the checks and balances in place. So if something goes wrong and the local program decides to terminate the person, we're left owning that person. When we look at any of the civil cases and stuff that arise around that, the first area they look to is the federal government side. That's one area where we see a bit of a gap.
In my mind, the best possible world would be to have an integrated national source witness protection program, where many different police agencies participate side by side and there is one program, rather than various versions of programs running across the country. Then I think you'd move closer to having a guarantee of really good consistency, and you'd know that the people doing the screening were all trained the same way and that the people doing the assessments and handling the moves were doing it the same way, and there will be much more exposure to those handling agents or to the high-risk protectees.
:
You're right. The difficulty is that there's only one agency in the country that can provide secure documentation, and that comes under the Witness Protection Program Act, the federal act, and it's the RCMP that looks after securing the secure identification. In the process right now, when these other agencies choose to actually move somebody with a secure identification, they're forced, basically, to come into the program.
I guess there are a few different options. One would be to amend the act and to allow the RCMP to obtain secure documentation for these other agencies, but we would not have responsibility, essentially, for those cases. So there would be a clause that would say you're allowed to provide this secure identification; however, the person doesn't technically come under the act.
The problem with that, of course, is that when you look back to why the act was originally created, the act was created to protect the witnesses, and they wanted to have a structured program that would bring witnesses under the full protection of the act. One of the key areas of protection under the Witness Protection Program Act is the disclosure side, and that's the only act, of course, that has addressed disclosure and said that it's a criminal offence to disclose.
We've had witnesses who have given us a great deal of information, and some of it from other jurisdictions, in particular Mr. Shur, from the United States, who had some very good information for the committee. One of the differences was they operate their program in a different way because the makeup of the law enforcement community is also different in the United States.
One of the things in Canada we have is CPIC, which all police agencies utilize. Are you aware, in the United States, whether they have a similar computer program as we do in the Canadian police information system, where we can query a name across the country? Do their local police have a similar system in the United States?
Thank you to the witnesses.
I appreciate that you have to work within the legislative framework that's currently in front of you, but from the point of view of elected people, it seems to me that it's a Catch-22. If we would recommend changes to the legislation, we're only dealing with half a deck, because we don't know, really, exactly what happened and what needs to be changed to fix a problem, if indeed there is a systemic problem in the legislation.
This is going to be dumb question; perhaps I should know the answer to this. All the witnesses we've had to date from various jurisdictions talking about witness protection programs talk very clearly about the fact that if a witness who's under a protection commits a crime, they come out of the witness protection program. They lose their protection.
Now, you've mentioned that former protected people are also protected. I know you're not legislators, but why would it be in the public interest to protect a former protected person, someone who has committed...? I think Mr. Young has been convicted of murder, has he not, if I'm not mistaken? So why would it be in Canada's national interest to protect a person like that?
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When you look at the broad scope, I'm sure one of the first reasons they probably would consider is we want to encourage people to come into the program. So they would try to restrict disclosure as much as possible.
Number two, I think they've recognized there have to be some exceptions to disclosure, but when you look at the act it appears it's when we have to be proactive. So if a person has committed a criminal act--the investigation's ongoing--perhaps that person's using an old identity or a new identity and they're trying to make it across the border, then we have the ability to disclose. If it's a national security type of case, then we have the ability. If it's a case where there may be a miscarriage of justice, yes, then we can step in and disclose.
I can't speak to exactly what the intent of the act was, but I don't think it's very clear right now that they've identified any types of categories where you can say “Okay, now that person has committed X, from this point on you can disclose their identity.” I think it's also something they would have to very carefully consider. If a person's name is revealed--and they may very well be found guilty--there have been several cases in this country where there has then been a review and they've been exonerated. Now they're out in the public; now we've exposed them to danger. Is that a risk the government would want to take as well?
It's a very, very complicated question. I don't have a direct answer as to why exactly they wouldn't want that, but I do know that at this point I don't believe we have the authority to do that.
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Something that concerns us in particular is that in one case, an individual who has committed murder in the past and was under the witness protection program committed another murder. I know it is difficult to try to prevent an offender from committing another crime or to determine whether or not he will commit one.
I also know that your program provides psychological services, that there can be psychological testing of sources when they join the program and that psychological support is provided to the witness, if he needs it, and to his family as well. But we cannot help but think, even though the act does not talk about this, that when the police assume responsibility for protecting a criminal who has killed in the past, even if it is in the public interest to provide this protection in order to convict other criminals even more dangerous than him, the police does not have the moral duty to ensure that the person will not reoffend and therefore it will not maintain a close enough relationship to the individual to try to prevent him from reoffending, even though this is difficult.
From the evidence we have heard, it seems that if any psychological support is offered, it is offered at the beginning of the process. However, once the individual seems to be reintegrated into a new type of life, he is left alone.
I would like to hear your comments on this, because I imagine this incident must have caused you as much concern as it causes us.
:
Referring to the British Columbia case, which I understand you'll probably want to talk about once you have the report, this individual had not had any criminal convictions, wasn't on probation, wasn't on parole. From that point of view, there were no indicators that the person would go on to commit this serious crime.
From the point of view of whether we will face the challenge at some point of dealing with somebody who has committed a murder and would know that ahead of time and still be forced to perhaps take them into the program, certainly we will, and again, we have to try to weigh the risks and mitigate the risk to the communities. That, I think, is what the act speaks to. I'm not sure what the magic solution to that would be.
Concerning psychological testing, just to be clear—I don't want to mislead the committee—it's not to determine whether the person is going to go on to commit further criminal offences. We use it, and it's not mandatory, but we offer it to all protectees. We do it from the point of view of helping him reintegrate into society.
Do we have a set method of maintaining some sort of surveillance or tracking of these people on a continuous basis while they're in the community? We don't. To do that, I would think, would require a continual refreshing of resources in that area. As the act stands now, that is one gap in the act: that although all law enforcement agencies in the country have access to bring people in, when we deal with outside agencies, it's on a cost recovery basis.
If you are the chief of a small police force, but you have a witness who requires protection, this may really make it a difficult choice. They may decide to take some measures on their own: to move the person, not to obtain a secure name, and not to bring them in under the witness protection program.
That's one reason why I was saying that if there were a funded, integrated, national program, then all police agencies in the country would be treated equally, because we don't know where these protectees are going to come from.
But you make an excellent point.
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I would agree with that assessment. The RCMP could not contract with an individual outside of the legal protections that Parliament has imposed upon someone in the witness protection program. In those cases, that person should never be in the witness protection program. Once the person has a status of a protectee, then they have all the legal protections.
I'd like to go back to an earlier question by Mr. Cullen, on why Parliament would conceive of such a scheme where, even though someone commits a serious offence, that information about their former identity should not be made public. I think if you were to have counsel here for the people who may be in that position, they could give you a number of arguments. One argument we are getting is that these persons in their former identity assisted the police. They were good citizens and witnesses in a proceeding. If you were to let them know later that because of some action by the police against them in some other proceeding, where they're charged with an offence, at some point in the proceedings that information would become public, and all the people who were after them....
Even if they're sentenced in jail, they would now be regarded as an informant, a rat, and would be subject to another punishment with regard to any other punishment the courts may have imposed upon them with regard to subsequent criminal activity that they maybe know--
:
I'd like to go back, chief, to one of the previous questions. I think it was Mr. Ménard who mentioned Mr. Shur and the placement of the administration of the program from the police into civilian hands.
Just to assist you, and I don't think I'm wrong here, but in the U.S. model, a civilian body determines who should or who should not be in the program, but it is the U.S. marshals who physically move the person and their family or the persons around. That's my understanding.
Mr. Shur from the U.S. seemed to indicate that Canada's program was a very good program, but because of the civilian oversight of the program, it took it out of the hands of the police and we seem to be, in this country, in this Parliament, in this specific time in the history of our Parliament, in our relationship with our national police force, in a time when everything you do as an organization will be under scrutiny because of certain other things that are occurring. That theme is now in this body.
You're here today particularly because of one instance in the entire program that some people are manipulating or trying to manipulate and are saying a whole lot of things are wrong with the program. No program, because we deal in human beings, and because doctors practise their trade and lawyers practise their trade, policemen aren't permitted to practise their trade.... We haven't said policemen practise law enforcement; we say policemen do law enforcement. Why you don't practise it is because the lawmakers of this country practise making laws. So I guess we're practising now by looking at the law and looking at what you do and how you do it, in order to determine, do we have one of the best programs in the world?
I'm going to make a very polite suggestion, as I made to a previous commissioner: that we from time to time need to--and I think as parliamentarians that's what we're doing here today--look at what we do in terms of best practices, and what other organizations do. I am quite certain the RCMP has a distinct ability to be able to go to the public safety minister and say this program may not be.... Here are some suggestions we have as to how to change them.
I think if there was that ebb and flow and seemed to have and be seen by the public.... Because what we're doing here is we need to make sure the public has faith, not only in our ability as legislators that we're doing our job, but that the people who are tasked with enforcing the law and making these programs work are doing so in an open way instead of in an opaque way.
My question is, would you not think it advisable that the RCMP look at the U.S. model, which may or may not be better than ours, but at least look at it, in terms of could it be.... And this body, they work within the RCMP, this civilian body may use you to do the physical part of it, but make the determination. Do you think that would be a worthy exercise?
:
You raised a number of points.
One thing I think we need to make clear is that when we run into a case in which we deal with a person who becomes an agent and we realize later that this agent didn't provide the best information, once we've exposed that agent to the criminal element, it's very clear that we absolutely have an obligation to protect that witness. I think most people would agree with that.
Second, there's been some talk that if the person doesn't provide the evidence we would expect in court, maybe we should walk away and terminate from that person. I don't agree with that position at all. It would mean we would basically extort that witness. We would tell them to go in; they'd know what they've got to say, and they'd have to make sure the court knows exactly our point of view, and if they don't do everything we expect--basically extorting them--then we'll terminate them from the program. I say that when we bring somebody in and it doesn't work out, we still have our obligation.
On the comparison to the U.S. system, the one thing I think is an advantage, a best practice in Canada, is that we're involved at the early stage. What I mean is that when an agency wants to bring somebody in as an agent and expose them to that threat, we go in with source witness protection coordinators. We interview and assess, and we advise the investigative team at that point as to whether we should continue with this or we shouldn't. If we don't do it that way, then we'd use the person all the way through, expose them to the risk, and then decide whether we should or should not take them on, and that's exactly what the U.S. model is.
In the U.S.model they will have people providing information and they'll expose them to that threat. They'll obviously house them in hotels and wait while they're in a temporary position, but they'll expose them to that threat. Then they'll go before the U.S. witness protection program system to say yea or nay to taking them in. At that point the witness is really left out in the cold. That witness is at the mercy of whatever agency decided to expose them to the criminal element and at the mercy of whatever type of side agreement they can negotiate--perhaps money to go somewhere else.
On your point about civilian oversight, I think that whatever system the government decides we should have, we should make sure that the process is done at a very early stage. I would hate to see a system in which we add more red tape and make it more complicated for agencies to be able to use the act. If we make it too complicated, a lot of police forces in Canada are just going to step away from it and say they'll risk-manage it and do it on their own. There's got to be a real balance there.
On the act side, I think we do a relatively good job, but from the point of view of Parliament, I can understand exactly why you would like to have a clear view of what really goes on behind that curtain. I'm not sure what mechanism could be put in place. Perhaps the act could be amended in such a manner that periodically people could be allowed to actually examine cases and follow them through.
:
I'll stop you there, because you've just hit my second question. That's one of the recommendations I believe Mr. Shur had.
I'm not going to the British model, because quite frankly ours is far superior to theirs, and we shouldn't waste any time talking or thinking about it. I think that because of our proximity to the United States and the societal relationships we have, we bear some of the same burdens from a law enforcement perspective.
It's very dangerous, I suppose, to ask the policemen this, but we're seriously thinking about a need for a periodic review of the program so that parliamentarians can feel better about it and so that we can have our constituents and Canada feel better about the program, in that it is working as we anticipated it should because we in fact made the law that made it work.
Could I have your thoughts on, first, a periodic review--my thinking is every three or five years--and then on a civilian oversight body? I think you addressed this, but succinctly give us your thoughts on a civilian oversight body that actually decides who should or shouldn't be in the program--or maybe, again, this periodic review should be a civilian body that examines that.
:
Thank you very much, Mr. Chairman.
Superintendent and gentlemen, I recall when the bill was first proposed by a colleague of mine in the very early 1990s, Mr. Tom Wappel. Unfortunately, he isn't here to be able to offer his reflections on just how well the system is working, to the extent to which it respects some of the concerns of the day.
As I read through the notes, Superintendent, it seems to me that if we are going to have any questions or judgments about the workability of the program today, we would take into consideration at least some of the following: number one, have we protected and do we continue to protect the new identity of both the individual and all of his dependants, i.e., his family? Excuse me for using the masculine here. I have used the singular, but I think most of the offenders, as I understand it, who enter into the program are masculine. That's the first thing.
Second, we must not undermine public security, police enforcement, and the integrity of the act or any acts in criminal law.
When I look at those and I see what the commissioner may do with respect to disclosing information, it would be a test. I guess somebody has to make an initial decision. In the event that the commissioner makes a decision that would, in the view of others, offend one of those two principles, then we have a serious problem. It would undermine all of the intentions and the work of parliamentarians that went into establishing this program.
I know that at the time--and I stand to be corrected--part of the debate focused around perhaps having an in camera meeting with members of Parliament sworn to secrecy in order to address some of the potential breaches on one side or the other, but I guess because we must always be above suspicion, as Caesar's wife was, the concern was more about the way that the government authorities, in this case the RCMP or maybe a local jurisdiction, would handle this.
Do you have any observations in that regard about going into a closed environment with people sworn to secrecy to address some of the issues that have been raised today and potential breaches of the program?
:
Do I personally? I'm not speaking for the RCMP, and no, I don't.
It's really a challenging issue because there are lots of times when we sit here and we'd like to be able to tell you that this is what happened, and not make it as difficult as it is.
I think that when the legislators got together to make that act, they knew it was going to be a challenge. They knew what we were going to face down the road, and there's not an easy answer.
Even if it's a group of parliamentarians sitting in secret, then where's the public interest really in that? I think people still think that for things to be truly transparent, everybody needs to know the story.
It's a case, I guess, that the more people are exposed to it, the more we could undermine the program.
But to your initial question, if I understand correctly, if there's a particular aspect that you want to examine, if it's a committee in secret and if the act allowed for that, then I would say certainly.
I have just a quick comment, I guess, to Mr. Bird and the chief superintendent.
The evidence we got from Mr. Shur would show that about 18% of the participants in the program are recidivists. And their policy, I think with very few exceptions, is that all of them are terminated. In response to a question I put to him, he said that none of them--it was an absolute--had suffered any physical harm as a result of being terminated from the program.
I want to ask this question to follow up on a question that I think Mr. Ménard asked. We have had this news report on Yves Trudeau being in the witness protection program and subsequently being charged with ten crimes. I am being left with the impression that the report identified him as being in the federal program, and in fact he may not be. Are you able to give us an answer as to whether he is in the federal program?
:
Thank you very much, Mr. Chair.
Thank you very much, officers. I think your input has been very informative and appreciated. You have a different perspective of what's going on in those issues.
Over the last few sessions on this issue, I can feel, just as anybody else does, that this is a very complex matter and that what we have been hearing in these meetings from our perspective is only a small corner of the whole operation. Because the acts have been here over ten years, I feel it's time to have a thorough review of that issue.
In one of the sessions there was a gentleman from Scotland on TV. He is a professor. He was doing an overview of the whole system they operate in Scotland. To me, in order for us to be able to have a good review of the program, I would suggest we appoint someone like that to review the operations of the last ten years in confidentiality and see with this policy if there are problems in the system. Would you have any problem, based on your experience, to allow such independent criminologists or lawyers or whatever to review that system?
Further to Mr. Chan's point, I think it would be very useful, especially as we have a longer time period of experience with the program, that we have some social science or humanities research to help us make our decisions. We have the difficulty of hearing your version from an enforcement or a court usefulness perspective that this is a beneficial program, but we're only seeing one side as evidence. The closest we've ever gotten to a protectee is through anecdotes from the lawyers, and just a few of those. It makes our job difficult.
I want to state at the outset that I think it's a valuable program and I'm pleased it's here, but like everything else, it could stand improvement.
I think there are two reasons we're here. One was the original reason why this hearing was called, and I had hoped to be able to do more today on it. When we get the review, we will try to pursue it further, because it will help with not only our understanding but the public's understanding of what happened.
But it's the second part: what recommendations, when we write our report, we will we do for the program as a whole. A couple of things have come up that are separate. Under agreements and arrangements with other jurisdictions, under the act, I see that the commissioner and the Solicitor General can make agreements to accept people into the program from other jurisdictions or other forces inside Canada.
What I don't see, statutorily, is our ability to export into another jurisdiction. How is that done, if it's done? Why is it not in the act? Is that something we should address at this time, if we wish to not only be taking incoming protectees but also having ours maybe travel outside of the jurisdiction? Was it an oversight, or have we done it some other way, or do you not want to get involved?
:
I'd like to reconvene this meeting.
We are now on the second part of our Standing Committee on Public Safety and National Security, meeting number 49. At this point we're going to entertain a briefing on the no-fly list.
I'd like to welcome as witnesses before the committee Mr. Brion Brandt, the director of security policy for the Department of Transport, and Linda Savoie, the director of access to information, privacy and reconsideration, and executive services. We welcome you both to the committee.
I understand, Ms. Savoie, that you have a brief that you're going to deliver to the committee.
:
You invited us to speak to you about the Office of Reconsideration. The invitation followed the testimony given by my colleague, Marc Grégoire, the Assistant Deputy Minister for Security and Safety at this committee on March 1, 2007. At that time, he described briefly the Passenger Protect Program, the procedure involved in issuing a no-fly order, and the reconsideration process.
I am here today to describe the process in more detail, to tell you how my office works, and of course to answer your questions.
I would like to start by giving you some general information about the Office before I get into the reconsideration procedure. I will say a few words about our mandate. Our role is to offer a simple, free remedy to individuals who receive a negative decision in the context of two different Transport Canada programs. The first is the Marine Transportation Security Clearance Program, and the second, the one you are interested in, is the Passenger Protect Program.
Our clients are not just passengers who have been put on the no-fly list, they are also marine workers whose security clearance has been turned down or cancelled. In both cases, however, our office allows the applicant to submit his or her case for consideration by individuals other than those who made the initial recommendation to the minister.
We expect to play an important role in the Passenger Protect Program, not only for passengers who want to challenge the minister's decision to put their name on the list, but also—and I would say especially—with those where there may be a problem of mistaken identity.
I will now give you some more concrete information about my office. We are located here in Ottawa. We report to the Assistant Deputy Minister for corporate services at Transport Canada. We are open from Monday to Friday, from 8:30 a.m. to 4:30 p.m. We have officers who look after the official request, who answer questions and concerns raised by applicants, and by the general public, and who do identity checks. In addition to these officers, there are independent security consultants hired on contract to conduct the reviews. Each year, my office reports on our activities to the minister—the number of applications and the results of the reviews.
I would now like to speak more specifically about the review process, particularly in the case of passengers who are not allowed to board an aircraft. For people who like visual representation, there is a chart outlying the process in the material we distributed earlier.
[English]
As I describe this process, you will note that it is fairly linear and straightforward. The intent is not to create bureaucratic obstacles, but rather to keep the process as simple as possible.
[Translation]
Does everyone have this document? All right.
[English]
Once the passenger has been denied boarding, the process begins with the individual submitting a written application to the office as soon as possible after being denied boarding. There is no set time limit for this. The application should outline the grounds for the reconsideration, and for privacy and for accuracy purposes we will require that it includes documents that confirm the identity of the applicant. There is a case officer available during regular office hours to assist the applicant in making this application to our office.
At that point, the applications--and that doesn't appear on your chart because it's an administrative function, but it is of significance--will be sorted according to whether the applicant is seeking reconsideration as a result of an error in identity, or is challenging the basis for being placed on a specified persons list.
In the first case, where it's a matter of an error in identity, our office will obtain from the applicant any new element of information, personal information primarily, that's necessary to differentiate the applicant from the person listed. Once the error is confirmed, we will take the measures to ensure that corrections and additions are made everywhere necessary to eliminate the error.
Getting back to my chart, this describes the next scenario where the applicant is in fact challenging the basis for being placed on the list. At that moment, the office will be assigning the file to one of the independent security advisers. The review process should differ, depending on whether or not we have new information that is submitted by the applicant. In the absence of new information--the grey arrows on the right-hand side of the chart--the adviser will conduct a review of the file to assess whether the information it contains could reasonably have led to a decision to place the person on a list.
The adviser then provides a report outlining any areas of concern that are apparent from the file, and submits an opinion as to the need for the minister to reassess the matter. The applicant is informed of both the recommendation of the office of reconsideration to the minister and of the final decision of the minister.
In the cases where the office of reconsideration receives new relevant elements of information--we're now on the left-hand side of your chart--our office is going to work with the program to ensure that the appropriate investigative bodies, and that would be CSIS and the RCMP, validate or invalidate this new information. The rest of the process follows through the same way once we've received this validation or not.
Timewise, our aim is to conduct this review within a 30-day timeframe. This being said, I completely realize that some of these files will be too complex to be disposed of in 30 days, but we will be making every effort to meet the standard we've set for ourselves.
A record of the reviews that we will be undertaking will be kept, and as I mentioned in French, an annual report will be submitted to the minister to ensure that lessons learned allow for the adjustments to be made as needed during the course of this program.
To conclude, while it's impossible to anticipate every possible scenario, we think this process will offer valuable assistance to all the passengers seeking reconsideration. It may, however, be particularly appreciated by those who are struggling with an unfamiliar process to have their identity distinguished from that of an individual with an identical name who is the person who is posing the threat to aviation security.
[Translation]
I would be pleased to answer any questions you may have.
:
First, I am quite sure that it is impossible to draw up a complete list, that it is impossible to make no mistake in a list of this type, mistakes that can happen both ways. Like leave off the names of some people who should be on the list, and we might include on the list the names of people who should not be there. So it works both ways.
When I look at the disadvantages you are imposing on people who should not be on the list and when I compare the harm of such a list to that caused by other security measures, I think that the list will never be perfect, will never be able to guarantee that people will be safe and secure.
What would give me the greatest security as a passenger? Would it be a list of this type, or would it rather be a focus on other procedures, such as making the cockpit secure, conducting searches, ensuring that everyone who has checked luggage and other property onboard has been properly checked?
I don't think there's any comparison between the benefits of the list and the difficulties that it could cause.
:
Thank you, Mr. Chairman.
Thank you to our witnesses.
I have to say that I have sympathies for what Mr. Comartin has to say, because I have a situation when I go to the United States where my name is on some list. There's some bad actor in a part of the United States who has a similar name, and I have to get special treatment. I carry a passport that indicates quite clearly that I'm a member of the House of Commons, but regardless....
I want to talk about how we can focus on those who are on this list and protect our aviation system and not inconvenience innocent travellers who are just trying to go about their business.
My understanding from the materials that I've read is that the proposed no-fly list is going to be a name-based system. Is that correct? This is a name-based system. You're not using any other way to identify people.
:
Excuse me for interrupting, but what I wanted to say is that there is a very clear process where, if the air carrier believes someone on the specified persons list is going to present themselves at the check-in gate, they can contact security and the police.
Also, when they contact Transport Canada—and this is another important part of the program—to verify that the person is in fact on the list, at Transport Canada we will have people 24-7 to contact the RCMP to advise them there is someone on a specified persons list who will be appearing at an airport, so they can make use of that information to carry out the functions they would deem necessary.
The purpose of this program is to prevent people who pose a threat to aviation from boarding a flight. That's the key—to keep them off the flight. And if the RCMP or any other police force of local jurisdiction have reason to believe there is something else, such as a warrant against this person, or something like that, they should be enforcing; it's up to them to enforce it.
Our role, really, is to make sure that the person who represents the threat does not get on the flight.
:
I wish to make a comment to complete what I was saying earlier. As a passenger, I would feel safer if I knew that all measures are taken to prevent a terrorist, should one be on board, to attempt anything.
I'd like to hear from Ms. Savoie. What can I say, or what should I say if I were on the list, for reasons unknown to me, in order to convince the authorities that I shouldn't be on the list? For example, I can name at least five reasons why I would be put on the list.
First, there are just as many Serge Ménards as there are Linda Savoies in the world, and they are not all...
In addition, for several months, I was in contact with people who were accused of exporting nuclear material to Pakistan. Even though they were acquitted, I'm convinced that the RCMP still believes that they are guilty, and that the accused simply had good lawyers.
Voices: Ah, ah!
Mr. Serge Ménard: Third, I travelled to Cuba, but I went to Club Med.
Fourth, when I was a young lawyer, before there was legal aid, I defended many terrorists to provide legal assistance. The difference between legal assistance and legal aid, is that lawyers are given low fees under the legal aid system, whereas at the time, we didn't receive anything by providing legal assistance. As a young lawyer, I felt that we had a duty toward society to provided services free-of-charge.
Fifthly, I interrogated several RCMP officers over the course of my career, and many did not appreciate the experience: they are probably still upset with me.
How many reasons would I be able to give you , if I do not know why I am on the list? Wouldn't it be easier to do a quick check to see if it is the real Serge Ménard who is on the list, or if it is someone else who has the same name, etc. Did I have a professional relationship with these people?
:
Well, you haven't allayed my suspicions that the Americans are dictating a lot to us.
I also have a Canadian passport that indicates I'm a member of the House of Commons. I always use it for identification when I travel. I'm flying from Edmonton to Ottawa, not normally over U.S. airspace, but when they scan my passport through the passport reader, it still isn't good enough, and they have to phone in to some 24-7 department, I presume--thankfully it was operating 24-7--so I could get on a plane to travel across Canada.
I thought that as far as I could tell, it was the Americans who were dictating this issue, because when I contacted your department, you said there was nothing you could do about getting my name off the list and that I should talk to the Americans. I talked to the U.S. embassy, and they said that in six months to a year they could maybe do something about it.
That, to me, isn't good enough for Canadians flying in Canadian airspace. I need to know what you're doing to protect our Canadian sovereignty for Canadians flying in Canadian airspace. There's no problem with doing what you want to try to ensure safety, but do not let it be dictated by a foreign country when we are flying as Canadians in Canada.
What do you say?
:
Thank you, Mr. Chairman.
Unlike some of my colleagues, I'm a big supporter of this program. I'm not sure it's going to be as quite as useful as the gun registry program, but I think it's probably ranking up there in terms of protecting Canadians.
The reality is that air carriers are using all sorts of lists. In the absence of our own list in Canada, they're using the U.S. no-fly list. On June 18 we'll have our own list. Frankly, the U.S. no-fly list was fraught with errors. We all know that. In my previous life on the other side, we helped people get off the lists. It didn't take six months. We had to go through the U.S. departments of transport and homeland security and we got a lot of people off the list. There'll be some of that on the Canadian list.
I have some other questions. First, are carriers coming into Canada or leaving from Canada obligated to use this Canadian passenger protect list? In other words, it's not an option, not a tool; it's a mandated requirement.
:
I'm leaning more towards agreement with Mr. Comartin about the effectiveness and usefulness of this program. At best, it's marginally effective and would only catch the dumbest terrorists. Yet it inflicts a great problem on the civil liberties of the ordinary citizen, and this is what I worry about.
I'll follow up on Mr. Cullen's question about stopping people from boarding a plane from overseas. If somebody is coming from Hong Kong, China, or India and wants to return to Canada, and they are Canadian and have not committed any crime, but barely might be a suspect or associated with a suspect, they will be denied a way to come back to their own country. This is unacceptable. I don't think that is fair.
The other thing is, I have some experience with Transport Canada and getting a security clearance through a department. I have a constituent who has worked in the Hong Kong airport on the air side doing maintenance as a Canadian, because he couldn't find a job in Canada. He went back to Hong Kong and worked for five years. He then came back and tried to get a job with Air Canada on the air side. He was denied clearance. It took me half a year with the interference of the minister before we could get him a security clearance. This is how complicated and difficult it is for an ordinary citizen to live like an ordinary Canadian.
This no-fly list is going to have a lot of impact on people for reasons that they would not be told. They wouldn't understand why, and they would not be told why they were on the list. They won't be able to defend themselves if they don't even know why they're on the list. To me, this is a great infraction on the civil liberty of Canadians, and it is also going to be very problematic for the minister, and at best maybe you'll catch the dumbest of the dumbest terrorists.
Thank you to the two panel members.
I agree 50% with Mr. Cullen, but I do believe that this program, not necessarily the other one he talked of, is effective.
When we talk about the civil liberties of the individuals who are refused the opportunity to fly, I understand that issue. But I believe, and I think most Canadians believe, that the civil liberties of people flying on the aircraft are also important. Those innocent people who get on the aircraft have every right to believe, as Mr. Cullen indicated, that there will be some way to check that the other passengers on that aircraft don't represent a threat to the travelling public. From that perspective, I agree with the plan. Equally, as he has indicated, I recognize that it won't be perfect, but without any plan, I don't know what protection there is for the travelling public.
I know that a great deal of the negative things have been focused on the American program, but this is not the American program. Would you confirm for Canadians that this is a Canadian program, made in Canada for Canadians, to protect them--