EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 26, 1995

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[English]

The Chairman: Order.

Today we continue with Bill C-78, dealing with the witness protection legislation. We have witnesses Steve Sullivan from the Canadian Resource Centre for Victims of Crime, and Sharon Rosenfeldt from Victims of Violence. A brief from Steve Sullivan was presented to us today.

If you wish to proceed with the presentation then we'll go to questions and answers when you're done. You two can decide who goes first.

Ms Sharon Rosenfeldt (President, Victims of Violence): Thank you very much. I am Sharon Rosenfeldt; Steve will be doing the actual presentation. We worked together, in consultation, to put this presentation together, because of the narrow timeframe. There has been quite a bit of discussion at our office and with our people across Canada about it. We decided it would be best if we could come out with one presentation. Hopefully we'll be able to answer any questions during the question period, which I will be taking part in as well.

At this point I'll just turn it over to Steve. Thank you.

Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Sharon.

As Sharon mentioned, I'll be presenting on behalf of the Canadian Resource Centre for Victims of Crime and the National Justice Network, of which we are a member, and which includes most of the major victims groups across Canada, including Victims of Violence, CAVEAT, CRY, and a number of other groups.

I want to thank the committee and yourself, Mr. Chairman, for allowing us to come today to present to you on this bill. Our presentation will be brief. We have few concerns with the bill, but I think they are important concerns. I hope the committee will address them.

The National Justice Network and the victim resource centre supported Mr. Wappel's bill - a private member's bill he presented last year - and we do support the spirit of this bill. We do recognize the inherent value in a system that will provide protection to people who assist in the prosecution of certain individuals.

However, we do have some serious questions that arose upon a closer examination of the bill and a comparison between Bill C-78 and Bill C-206.

One of the major differences we noticed between Bill C-78 and Bill C-206 is the kinds of people who will be allowed into the program. Bill C-78 defines a witness as:

a person who has given or has agreed to give information or evidence, or participates or has agreed to participate in a matter, relating to an inquiry or the investigation or prosecution of an offence

Bill C-206 is much more limited in that it only covers ``a witness or a potential witness''.

I think the difference is that Bill C-78 obviously includes informants, prison informants, and that kind of individual. That's a pretty significant difference and will encompass a lot more people.

We do recognize the philosophy of allowing informants into the program and we do realize that it's probably a necessary evil. What most of our concerns revolve around, as with any bill that we testify on, is protection of the public, and we feel that Bill C-78 doesn't provide the necessary mechanisms to do that.

Mr. Wappel's bill, in clause 4(2), sets out a specific clause that makes the risk or the danger to the public the paramount concern of the minister in deciding whether to admit someone to the program. Bill C-78 merely provides for a consideration of the danger to the community as one of eight factors the RCMP commissioner must consider when making his decision. There is nothing there that says it is the most important consideration.

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As we will discuss a little later, the RCMP have made some questionable decisions in the past as to who to admit to the program. I think the danger or the risk to the public needs to be their primary consideration.

We also have some major concerns about people in the program who continue to break the law, as many of the people in the program will be people with past criminal histories.

Subparagraph 7(2)(iii) of Bill C-206 sets out the responsibilities of the protected person ``not to commit a criminal offence''. Bill C-78 does contain a section that does require the protectee to ``refrain from activities that constitute an offence against an Act of Parliament''. However, there is no guarantee that someone who does break the law while in the program will be removed from the program. There are provisions in the bill that would allow for the removal, but it is up to the sole discretion of the RCMP commissioner. He or she considers whether the offence was serious enough to require the person to be removed.

Furthermore, there is no assurance that a protectee who does break the law will be prosecuted for that offence. It is possible that the RCMP could ignore a criminal offence or protect a protectee from criminal liability. The RCMP may have the power to interfere or influence the decisions of the National Parole Board, as this type of relationship is one of the considerations of the board when making a decision to release an offender.

We'll move now to some past situations that I'm sure have caused some embarrassment to the RCMP. I think they need to be looked at in order to get a better understanding of the type of individual the RCMP have to deal with. Probably the most infamous would be Clifford Olson.

Mrs. Rosenfeldt is here today. She'll explain to you later that Clifford Olson is the man who murdered her son. He also was an RCMP informant. We're not referring simply to the cash-for-bodies deal that has become so infamous; we're referring to a relationship that existed long before that, and existed during the murder of the 11 children.

While Olson spent most of his adult life in prison, he spent most of that in protective custody because he was an informant. In 1977 he became a star witness in the murder trial of Gary Marcoux, who was convicted of the first-degree murder of a nine-year-old girl.

At that time the crown attorney wrote a commendation for Olson to the National Parole Board, which in turn helped him get early release. Of course, as usual for Olson, he reoffended while on parole.

Allegations and suspicion of the RCMP involvement in a number of sexual offence charges being stayed or dropped in relation to Olson have surrounded the case since the 1980s.

But the Olson case is not a single incident. It bears resemblance to another case of an alleged RCMP informant who murdered a young man while on parole. Suspicion stills surrounds the relationship Paul Butler had with the RCMP when he murdered Dennis Fichtenberg. For obvious reasons, I have been unable to get a confirmation of this. As you know, it's a criminal offence for people to identify informants.

However, this committee may want to test the waters in relation to what kind of information you will have access to regarding RCMP informants. I know there is a condition in the bill that a report will be put before Parliament every year by the RCMP commissioner. I think you should be concerned about the type of information that report will contain and what kind of information you will not have access to.

Of course, these kinds of hearings will probably have to be held in camera, but I think if the committee would take some more time with this bill, and take, for example, the Butler case, examine the current practices the RCMP uses in letting informants into the program, you may find that the current system is flawed. Basically all this bill does is legislate that current system.

While all cases of RCMP informants who break the law may not be as high-profile as Paul Butler or Clifford Olson, or as serious, I think we can almost guarantee that there are many RCMP informants who do break the law, committing serious crimes and using their status as informants to cover up and to facilitate those crimes.

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If the committee were to take a little bit more time to look at the current practices and situations of people who are getting into the program and the recidivism rates of people who are in the program, I think you might have a better understanding of how the system really works.

In closing, I'll say that a national witness protection program has obvious benefits for Canada, but if it's not correctly legislated it could have grave repercussions as well. Minor but important amendments to this bill will definitely ensure that the protection of the public is the guiding factor for each and every decision made. Canadians expect and deserve nothing less.

Thank you, Mr. Chairman.

The Chairman: Thank you.

Ms Rosenfeldt, were there comments you wished to make before we go to questions and answers?

Ms Rosenfeldt: No, sir. I mentioned that we did go into consultation on this. We met on it yesterday and went through everything. I don't think there's anything more I need to add.

The Chairman: Thank you.

Mr. Ramsay.

Mr. Ramsay (Crowfoot): Thank you, Mr. Chairman.

Thank you both for appearing here today. We on the committee are indebted not only to you but also to other witnesses who have come before the committee and who have closer knowledge of what is really happening in the witness protection programs now in operation across the country, including the RCMP one that this bill would simply codify to some extent. It was pointed out by our chairman yesterday that it doesn't even codify all that is going on now.

It seems to me that the presentation you've given us this morning expresses the concern that for someone who gets into the RCMP protection program there is a possibility that he can be immune to the repercussions of other criminal offences he commits. You have cited the Clifford Olson case and the one you referred to as the Butler case to support that.

I would like more detail on that. Are you saying that the RCMP, prior to his final arrest for the offences that lead to his incarceration, was aware of sexual offences he committed but that he was never brought to justice and no charges were laid because he was in the witness protection program?

Ms Rosenfeldt: I can try my best to answer that. He was a known informant for many years. There was speculation that he was even offered - and I'm not too sure at this point - $3,000 or $3,500 a month by the RCMP to be an informant. It was certainly not new to him. Before he was arrested for the murders there were eight outstanding charges against him. He was out on mandatory supervision, which means he still had one-third of his sentence to do in the community. There were eight outstanding charges: rape of a 14-year-old girl, buggery, firearms, and impaired driving.... It totalled eight charges.

The RCMP tracked him down - and this is in court records - and told him because there was a warrant going to be issued for his arrest on this he had to go in and face a Justice of the Peace regarding these outstanding charges. He did. He was let out at that point on $5,000 bail, and within about three days he murdered my son Daryn.

It goes on and on with him. He was really more valuable on the streets informing.

In answer to the question of whether this system can get abused, I say yes, it can, because it has been proven by one person I know of. I know there are others, but this is one I can truly speak of. We have all the documentation.

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Can it be abused? Yes. It definitely does cover up more crime all the time.

Mr. Ramsay: I would like you to focus on a specific question.

Is there evidence in the Olson case that peace officers knew of offences - or an offence - committed by Clifford Olson that were never brought forward simply because they did not want to interfere with his role as an informant to them?

Ms Rosenfeldt: Yes, there is. I can't be specific right now, but I can certainly get that documentation for you.

Mr. Ramsay: This is a very serious allegation, because it means that some peace officer or peace officers may have been party to the offence after the fact. That's a very serious matter.

Now, all this bill deals with is the RCMP witness protection program. It doesn't deal with any of the other fifteen programs across the country that the provincial or the municipal police forces have. It only deals with codifying the RCMP program to some extent, and we're just getting a look at what that program has been doing. What you're telling this committee this morning is very disturbing in that we would be codifying something that would allow for the continuation of the kinds of situations you're talking about.

Ms Rosenfeldt: That's what I'm talking about. I would like to ask the committee to take a very serious look at this bill.

As far as I am concerned and as far as Victims of Violence is concerned, it cannot be put forward for recommendation for legislation in its present form until some of these - as you call them - allegations and situations are looked at and taken seriously.

This is a very serious piece of legislation this government may be codifying. I sit before you saying, please be careful, and have a look at it. I just didn't have time to put all the information together, but I can put something together and I can give it to each member of the committee, because this is very serious.

Mr. Ramsay: I don't think this bill is put forward with any intent at all to provide the kind of protection for police officers who would use it improperly, but if it creates an atmosphere conducive to that, then we should be aware of that when we look at the bill and look at possible amendments to it.

Ms Rosenfeldt: I can understand what you're saying, but what I see in Bill C-78 is that if there are improprieties and specific problems, how are we going to know about it? I don't believe the commissioner will make these things public. Who is the commissioner going to be accountable to?

Mr. Ramsay: I was a member of the RCMP for fourteen years. I know that you get beyond a certain level of the hierarchy and those members don't know what's going on at the grass-roots level unless they're informed. The commissioner may never know what's going on at the grass-roots level. If he did, I'm sure he would move to correct it.

But the problem identified by Mr. Newark from the Canadian Police Association is that the RCMP have a unique administration. Unlike any other police force, it's an internal administration. He recommended that there be a third party involved in the approval and authorization of who comes into the program.

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We have had concerns about clause 19. Have you looked at clause 19 of the bill, which allows for an immunity?

No action lies against Her Majesty in right of Canada or against the Commissioner or anyone acting on behalf of the Commissioner in respect of anything done or omitted to be done in good faith under this Act.

We discussed this at considerable length yesterday when another witness appeared. There was real concern raised about the kind of immunity that would be granted if anyone within the system did anything wrong as long as the shield of acting in good faith could be raised. There would be no opportunity for any kind of civil action or any kind of accountability. Have you considered that?

Mr. Sullivan: I don't think it's just a mere coincidence that this bill precedes recent lawsuits against the RCMP and the federal government concerning problems that have happened with performance in the past. I understand there's one outstanding now - a man is suing for $2.7 million. I understand that in the past, one was decided out of court. I don't think it is a mere coincidence that this legislation is coming out now. I think part of the intent of this legislation is to protect the government from further lawsuits like that.

The Chairman: Thank you.

Mrs. Barnes.

Mrs. Barnes (London West): Thank you for your testimony here today. I especially appreciate that you put it together on such short notice.

As one member of this committee, I feel we should go a little more slowly. I'm in total agreement that this is a bill that's needed. I again read the blues on all the other minutes of our meetings last night and I am concerned that we come up with a bill. I personally think we can improve this current bill, but accountability is important to me. I have some concerns with clause 19, which Mr. Ramsay was just talking about. I'm not sure it should even be there, or should be there with additions to it.

I think this committee likes to think about things and likes to listen to witnesses who are before us. I think we will have a bill in due course. I, for one, want to ponder a little bit more what people have been telling us, though, and work toward a bill that will not just codify what exists but perhaps do a little better than codifying the existing.

Yesterday I was very impressed with the witness who was doing important work on the other side of this issue, representing some of the people. You make the point in your brief that you think most of the people are engaging in criminal activity. At least for my own record, I just need for you to acknowledge that there are other innocents involved here - there are spouses, there may be children - and that this is not just a protection of a criminal sanction...that there is a reality out there that there are people who fear for their lives and who are innocent and important to our criminal justice system. They deserve the type of protection...together with the people who are necessary for our justice system.

For my own edification, if nothing else, I would like your comments on that first point.

Mr. Sullivan: Thank you for your comments about the committee taking more time to address the bill. I think you are right in doing that.

With regards to the people in the program, there is no doubt that some of the people who get into this program will be completely innocent of any wrongdoing.

I was here when Mr. Wappel addressed the committee and had a gentleman with him who had helped the RCMP - I don't have much here on the particulars of the case - and who, from what he said, needed protection but didn't get it. There's no doubt that this kind of bill needs to address those kinds of people. They need the utmost protection they can get.

You're right when you question clause 19. If the RCMP fails to do its job as best it can for these people, they have little recourse to take action against the RCMP. So I think you're right when say there are a lot of people who are innocent and who desperately need this kind of program.

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Ms Rosenfeldt: In response, Mrs. Barnes, I also think that's probably why we really strongly supported Mr. Wappel's Bill C-206. The difference between that bill and this one was the addition of the nicely worded term ``informants'' that is in here. Of course, being involved in the work we do, we basically see only one side. That's why this committee hears people with all types of different perspectives. So when we see, read, and ponder over what this bill could possibly entail without proper consultation with a number of other people before it's legislated, that is our biggest concern.

We were quite comfortable with Mr. Wappel's original bill. In this case, it has sort of thrown a number of different issues into the forefront. There are a number of things we haven't even been able to address.

Mrs. Barnes: For the record, I will state again that Mr. Wappel's bill was withdrawn. When Mr. Wappel testified, he obviously supported this bill and what we are doing here. He recommended some changes and I think this committee will give some serious thought to those changes, although I'm not saying that about all of them.

I really don't have a lot of questions for you. I have more of my own internal work to do on this bill before I'll say too much more about it.

Thank you very much for coming.

If anybody wants to share my time, he or she is welcome to it.

The Chairman: Thank you, Mrs. Barnes.

Mr. Ramsay, do you have any other questions?

Mr. Ramsay: I think this would perhaps be beneficial for at least some of the other members on the committee. I guess what I would like is to understand fully how a witness protection program can go awry and not function in the best interests of society, where it is turned in its function to the interest of the police officer, the section - whether it's a drug section or a criminal investigation section - or the entire police force itself rather than doing what it is designed to do. That's what we as parliamentarians are supposed to be doing. We are supposed to ensure the bill is passed and contains proper checks and balances to ensure the police have the legitimate tools to go forward and do the best job they can do to protect society and bring criminals to justice, while protecting members of society at the same time.

What I have heard so far raises concerns in my mind that there isn't a proper balance struck within this bill. What I'd be interested in knowing is more details about some of the problems the RCMP witness protection program has run into, bearing in mind what John Doe told the committee: that he has run into some bad apples. While over the years I have had some pretty serious criticisms of certain aspects of the RCMP, I still consider it to be an excellent police force; yet, my concern over the years has always been about a lack of adequate checks and balances to ensure that if something does go awry, there is enough legal basis for citizens to come forward and point out that information and to have something done about it.

So if there is anything you can add to what you've already given in testimony before the committee about some of the problems that you see in the existing system, or if there are any suggestions you might make that would improve the system, I would be very interested in hearing about them.

I have only five minutes, but my understanding of a witness protection program is that, in the first case, a witness need not come forward at all. He can remain silent. An informant may not offer his services unless he or she is brought in under the pressure of having committed an offence or of being investigated and thus finds it to be to his or her benefit to cooperate with the police, thereby becoming involved as an informant. There is no question that those people are in a vulnerable situation, particularly if their lives are threatened as witnesses. This creates a condition in which the leverage of the police officer over that individual is enormous. As John Doe indicated, they are practically willing to do anything to maintain their protection and maintain the benefits of the program they have.

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I have some real concerns about this. Unless there are proper checks and balances to it.... As Madison said about the Constitution of the United States, it'll only work for a righteous people; so too this will only work for good, honest policemen. It will not work for what John Doe calls ``the bad apples''. They will use it in a way that it is not designed for.

How can we ensure on the one hand that all policemen have access to this kind of an enforcement tool, while at the same time ensuring that what has been inferred here concerning the Clifford Olson matter does not occur again? Is there anything you can offer? Are there any more horror stories you can tell us? I don't want to hear horror stories for the sake of horror stories, but I'd like to hear of instances so that we can say that it happened here and determine what can we do to stop that. What can we do to amend this and to grant a greater degree of balance so that if it does begin to happen, it can be stopped as soon as possible?

Mr. Sullivan: Sharon discussed the Clifford Olson case - I'm sure the committee is familiar with it - but I mentioned the case of Paul Butler. Again, I can't tell you whether or not Paul Butler was an RCMP informant. I don't have that information. I think it's something the committee may want to find out about if it can perhaps get it at an in camera hearing. If the allegations and suspicions that surround that case are true, however, the RCMP played an instrumental role in helpingMr. Butler get day parole despite the fact that he was described as a psychopath in a Correctional Service Canada report. He did get day parole, and when he was free he did murder Dennis Fichtenberg.

Those are the kinds of situations occurring. Those are the current practices. And I don't mean to imply in any way that the RCMP wanted this to happen. I think they felt that if Butler was an RCMP informant, he could help them get other people. But I think you need to examine the current practices of who gets in and what favours the RCMP are doing for these people who may not even officially be in the witness protection program.

Clifford Olson benefited from being an informant before 1984, when they had some structure to the program. He was paid moneys in the past. There were allegations that he was given assistance, that the RCMP interfered in helping to get some sexual charges stayed. While he was under surveillance, he committed a number of break-and-enters that they ignored while hoping they could catch him for something bigger.

I don't think Sharon or I could tell you very much about how this program works, because we just don't know. You really need to go to the source to look at the past failures we have mentioned - Clifford Olson, Paul Butler, and I'm sure many more. Look at those things, look at what went wrong, and then see what you can do in this bill to make sure they don't happen again.

The Chairman: Ms Torsney.

Ms Torsney (Burlington): First of all, I really appreciate your brief. It's very succinct, but I guess I need some clarification of a couple of things.

In your final paragraph, you identify that criminals may be ``protected despite further offences as well as danger to the public being put aside to get a conviction.'' At the top of the second page, however, you recognize that using informants and facilitating those people is a sort of necessary evil in some instances. On the one hand, we all understand the circumstances of the person who has been a witness, who is completely innocent and who needs this protection. However, we recognize, and you seem to recognize, that informants do play an important part of the justice system.

What's your sense? Is it 50:50 in the program? Is it 75% informants and 25% witnesses?

Ms Rosenfeldt: I think that's probably one of the questions we would like to be able to have time for. I suppose my biggest appeal to this committee today - and Mrs. Barnes said she feels this way as well - is that this is important legislation and you should not rush into it really quickly.

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I think there are a lot of unanswered questions here. One of them is that I would really like to put to the committee - possibly it can find out, or we can probably find out ourselves - in police experience, what proportion of the criminal element has been informants - I'm assuming that is your question as well - as opposed to witnesses whose lives are endangered, who are not in the criminal element?

Ms Torsney: But I'm not sure that the information in and of itself is what passing this bill or not hinges on. I think you need to tell us at what point it is inappropriate. Maybe it is 89% of informants, but maybe that's a good thing. Maybe that has been helpful. I think you need to tell us about philosophy.

You also identify the danger to the public. Because of the fact that we know they're informants, and you recognize that they're informants, and you think it's a necessary evil, surely there has to be consideration of that danger in paragraph 7(b). Just because it's in there doesn't mean it is the least on the totem pole. In fact, it's the second item that's pretty darn important, meaning, if I were reading that in the optimistic sense I'd say it was a key factor for the commissioner to consider.

As Mr. Wappel said, yes, so the person has had a life of crime and has been very helpful in getting a conviction, and then he or she steals a chocolate bar. Yes, that's a criminal activity, but we may not want to throw that person out of the program based on that specific contravention of the law. So we need to get a little more sense of that from you.

I'm concerned that the longer we wait, the more mistakes will be made by the RCMP. We need to have something codified. I wonder if, following the discussion yesterday, a specific code of conduct - there is a code of conduct for the RCMP, but a specific code of conduct - related to this program, as well as the brochure that was discussed yesterday....

One of the problems, of course, is witnesses or informants who think they're buying into more than what they're buying into, and get themselves into trouble. It's a very difficult situation. People are making life-and-death decisions, literally, without a lot of information. There should be some kind of pamphlet that says ``Here's what you're buying, and it's all you're buying'', telling them what they should be concerned about, especially in light of the fact that some of them don't have lawyers when they're making the decision.

So the code of conduct in some kind of a pamphlet would not go a long way toward addressing some of your specific concerns, because contraventions of the code of conduct, specifically on the witness protection program, could enable us, as parliamentarians, who will be reviewing the program, and the commissioner will be reporting to us, as a committee through to Parliament, on the functioning of this program...and any screw-ups can be caught and dealt with appropriately.

Mr. Sullivan: I have a few comments. You said clause 7 listed the danger to the community, as the second point. My response would be that's a hierarchy of points that should be considered. Danger to the public should be the first point, not the second.

Ms Torsney: Well, you're using the informants one, and the first one's probably the witness one.

Mr. Sullivan: Witnesses or informants, whatever decision the commissioner makes and whatever decisions are made with respect to this thing, I don't know whether I read this as a hierarchy. I see these as just eight considerations that should be made. That should be number one, and if it needs to be set aside, as Mr. Wappel did in a certain clause, then I think that should be done.

I lost my train of thought about your other points.

Ms Torsney: The screw-up in having -

The Chairman: Your time is up, Ms Torsney. You're a minute over already.

Ms Torsney: But can we just re-orient him so he can answer the question I asked specifically about the code of conduct and the pamphlet?

The Chairman: I guess one of the problems they're running into in the commission is that the questions take five minutes on a five-minute round and then we're going for another three minutes to five minutes on answers. I don't think that's the object of it. But if he can re-orient himself and answer the questions, then we'll just keep a tighter line on the period of time on the questions.

Mr. Sullivan: You mentioned the code of conduct and the brochure. I think those are both excellent ideas. I guess my only concern is that I'm still not convinced you will get all the information from the RCMP commissioner in this report. For example, I know in the past, reports from Correctional Service or the Parole Board have come before the committee and some sections have been blacked out. I think you may want to consider what kind of information those reports should contain. That may be something you can work into the bill.

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Mr. Ramsay: I would like to ask you this question, Ms Rosenfeldt. Do you believe Clifford Olsen committed criminal offences as a result of the efforts of the RCMP to bring him out of custody and onto the street?

Ms Rosenfeldt: Yes, I do believe that, and possibly I could meet with you. It's a long, complicated story.

Mr. Ramsay: Obviously there would have been an internal investigation into what went wrong there.

Ms Rosenfeldt: No, there hasn't been an internal investigation. There was a coroner's report. We and the other family members tried and tried to get an inquest into what went wrong. We wanted all of the allegations talked about and brought forward.

I must say I do hold the RCMP in high respect. Believe me, I do. I have always felt really badly about having to talk about what went wrong with the RCMP. The only reason I talk about this all the time is so somebody will listen, really, and maybe start checking into some of my allegations.

Since you, sir, were previously in the RCMP, maybe I should sit and talk with you. Maybe you could have a look at it. You are part of the committee.

Mr. Ramsay: Right.

Ms Rosenfeldt: It's too long to go into right now.

Mr. Ramsay: I guess I should seek a point of information, Mr. Chairman, at this stage of my questioning the witness.

It seems to me we're at a kind of crossroads on this bill on whether or not we're going to delve further into the workings of the RCMP witness protection program as it now exists - and how the bill will relate to it - and whether or not we will be calling witnesses to deal with some of the concerns that the testimony so far, including what we've heard this morning, will allay. Will the commissioner of the RCMP be called before this committee? I would ask that I be advised as to whether or not that's possible.

If we're not going to call the commissioner, then I would ask, through my own office, for a meeting with him to allay some of my concerns in this particular area and discuss how some of these concerns might impact upon the program as it exists today, as it existed in the past, and how it will exist in the future if it is passed in one form or another.

I guess the question is whether or not we will be calling the commissioner to respond to some of the concerns I have indicated, and maybe some of the concerns other members have about the program.

The Chairman: Do you want to speak on this point, Ms Barnes?

Mrs. Barnes: Yes.

I don't necessarily need to hear from the commissioner, but I would certainly like to hear from officials again on this bill before we move.

The Chairman: Which officials are you talking about?

Mrs. Barnes: I would like to hear from the RCMP, the Solicitor General and the Justice lawyer. I have some concerns I want to address.

I'm not interested in getting into a witch hunt here. As Ms Torsney said, we need a bill. I don't think there's any doubt we want a bill, but we just want to make sure it's the best bill. I'm not interested in witch hunting on official cases. I'm interested in drafting a good piece of legislation here, and I think there might be room for a return of some of the officials.

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But I'm not even looking for a date on this right now. This is a piece of legislation that I think.... I'm going to do more checking this week and the next week.

I just want to add my two cents, that it's not the RCMP commissioner I need, it's more of the people who are working in the system to answer specific questions about programs. And it's not individual cases, it's how they spend their $3.4 million budget right now; what percentage of people coming in are innocent children; how much is allocated to counselling.

I'm not trying to impede the work. The work is necessary. But an in-camera session with these people might not be a bad idea before we finalize this bill.

Mr. Ramsay: I was prepared, and I think our caucus was prepared, to go naïvely forward and support this bill. The reason why I have concerns about doing that now is what witnesses have testified about individual cases; about how the program has failed in the past. We know it has been successful as well, because the police forces are using it. That's why I ask to what extent.... I don't want this committee to turn into an in-depth examination of every case of how the system is functioning, but we had better know how the witness protection system has been working under the administration of the Mounted Police before we rubber-stamp it and codify it through legislation of Parliament.

So unfortunately - and I don't think it's a witch hunt - I would like some of these questions answered. Was Clifford Olson out on the street because of actions of the Mounted Police under a witness protection program? I don't know; but to me that's an important question.

In spite of what Mrs. Rosenfeldt has said, I'm sure the RCMP have done an internal investigation, if there's any suspicion that has occurred, to ensure it doesn't happen again. I'd like to know about that - I'm sure they've done it - and if safeguards have been created that we are not aware of to ensure this kind of thing doesn't happen.

Ms Torsney: There is a process by which we'll have officials here. I gather you will be asking for them and we'll have an opportunity to question them, both in a general sense and then in the clause-by-clause. I think that's a great thing and I hope you will take that under advisement and try to arrange it.

Secondly, in the course of going through clause-by-clause, I'm sure if any of us had questions that were specific and had examples of where we were trying to get information or address problems, that would be terrific and it would be an appropriate use of our time in that period. If some of the witnesses can be contacted and asked for specific information they think would help this bill, that would be a good thing as well.

The Chairman: The steering committee is meeting next Wednesday. Since we're not going to go into clause-by-clause today, this matter can be raised for discussion again, Mr. Ramsay. I think Ms Barnes hit the nail on the head when she said we want to come up with good legislation, period. That's the bottom line.

With that in mind, I really try to keep in mind the relevance of going into too many cases in the system as it exists now. The question is what's the system going to be like under the legislation; will it be any different and will all the protections be there for everyone? But we can discuss further in the steering committee whether we go into further witnesses.

Mr. Ramsay: I say whether it's the commissioner or whoever, as long as there are officials here who can respond to the questions we ask, as long as they have the knowledge to respond accurately and properly and correctly to the questions asked, I don't mind who it is.

The Chairman: I agree. In fact, I have a few questions to ask of some individuals too,Mr. Ramsay.

Are those all your questions, Mr. Ramsay?

Mr. Ramsay: Yes, thank you.

The Chairman: I have no one else on the list from the government side.

Thank you very much for coming today and shedding more light on this particular subject. Perhaps you've left us with more questions than we have answers now; and that may be good as well. Thank you very much for coming here today.

We'll adjourn for a short while.

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PAUSE

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The Chairman: We'll resume the meeting. We now have before us Professor Ed Ratushny, from the University of Ottawa. We also have Peter Shonicker, from Toronto.

You are well aware of the procedures here, Professor Ratushny. You can proceed with the presentation. Then there will be questions and answers from both sides.

Professor Ed Ratushny (Faculty of Common Law, University of Ottawa): Thank you very much, Mr. Chairman.

A couple of days ago I was called to appear, and of course I am honoured to be here.

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I think the legislation is the kind of bill that represents a balance between the rights of an individual and the rights of society, and in an area where confidentiality is crucial. Wherever that kind of element comes in, of course, you have difficulties in the balance of what the public interest is and how that is protected by access by the media, the press, and the freedom of speech principle comes into play.

The restrictions in the bill on disclosing the name to anyone by almost anyone would probably be found to be a breach of freedom of speech. However, the balancing would have to occur under section 1 of the charter, on demonstrating whether this is demonstrably justified in a free and democratic society.

The objective of the legislation certainly is justifiable. The question or the debate will be on the question of proportionality; that is, whether there are adequate safeguards in the legislation to allow it to pass constitutional muster. That always is a difficult balance. I think there is a legitimate public interest in knowing about the nature of the deal in many of these situations, and that of course would be the interest of the media.

One of the possibilities, I guess, is for a complaint to be made to the public complaints commissioner, not only by the witness about how that witness has been treated under the program or the deal that's been made...but also it might be possible for a member of the public to make a complaint about the deal and to have the public complaints commissioner inquire into it. It might be a bit of a grey area whether the public complaints commissioner would have the jurisdiction to do that.

So I think the key issue here would be the question of whether there are adequate mechanisms for the public to have some sort of knowledge of what is occurring to allow the bill to succeed constitutionally.

I note also there is a provision in the bill for public reporting by the commissioner of the RCMP through the annual report, which has to be filed. I think there's a specific reference to the requirement of reporting the activity in this area. The extent to which detail will be provided would depend on the commissioner making a determination on how much confidentiality is required in the operations of the force and how much should be disclosed in the public interest.

That's all I have to say for now. I should introduce my colleague Mr. Shonicker. Mr. Shonicker is a practising lawyer in Toronto. He's representing someone in the Somalia inquiry right now. It happens to be in Ottawa. He's had extensive experience in this area with the Ministry of the Attorney General in Toronto and has been involved in setting up a number of these programs for witnesses at the provincial level in Ontario. He happened to be in town and I thought it would be very helpful for his expertise to be available here in the event that he might be of assistance.

Did you want to say anything to start with, Pete?

Mr. Peter Shonicker (Individual Presentation): I think the reasonableness limitation under clause 1 is the key issue from a constitutional point of view. My view is that when one looks at the limitation, one has to consider who it is who would want to access anyone who is a protected person. It basically falls into three categories - family, media, and those we're trying to protect them from. The legislation seems more than adequately to address the family situation. The media situation of course is one that Professor Ratushny has already alluded to, and it need not be expanded any further.

About protecting them against those from whom we're attempting to protect them from, I think it speaks for itself. That would be a reasonable limitation under clause 1.

The Chairman: Mr. Ramsay.

Mr. Ramsay: Thank you very much for being here. We appreciate it.

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What about the need for a defence counsel to be able to call a witness or an informant under the protection of this act for the purposes of a fair hearing?

Prof. Ratushny: Are you talking about disclosure of the testimony that the witness is likely to give?

Mr. Ramsay: This act grants the commissioner powers. From my understanding of this act, the commissioner can release information or maintain the identity of any witness or informant under the act. In the case of criminal proceedings, where does this act lie with regard to a fair and open hearing, if the commissioner does not wish to divulge the name of an informant or the whereabouts of a witness that a defence counsel may wish to bring before the court for the purposes of a fair and just hearing?

Prof. Ratushny: So you're not talking about a case where the informant is going to be a crown witness.

Mr. Ramsay: No.

Prof. Ratushny: You're talking about a situation where you want access to that witness for another purpose.

Mr. Ramsay: Yes, for the defence counsel.

Prof. Ratushny: I think that's problematic. I think there certainly has to be some form of disclosure of what the witness can bring to bear on a particular criminal prosecution. There has to be some way of giving defence counsel that information. I think the question of how it's done and the extent of the access are not apparent from the legislation.

Have you had some experience with that, Peter?

Mr. Shonicker: In one case, yes.

I think it's a very good point, Mr. Ramsay. First of all, in order to effect the subpoena, you have to be able to justify, as Professor Ratushny points out, that there is some probative value to the evidence to be offered by the person being protected.

Once that disclosure is made and once a subpoena is obtained, I think then you find yourself in a situation where it's feasible that someone could mount an argument that they're unable to make full answer in defence without the evidence of the protected person. In that event, some consideration would have to be given to bringing that person from whatever domicile he is residing in and presenting him for examination, in chief by defence counsel.

The movement of protected persons in and out of the courts has been done for years, and I don't see that it creates a tremendously logistical problem.

Mr. Ramsay: But it hasn't been done by statute. Authority has not been granted by statute. In this case, what we're contemplating is enacting statute, a law, that will grant the commissioner the power to maintain, or to refuse to disclose, any information concerning anyone under the program.

It seems to me we're bumping up against two authorities. One is the authority granted the commissioner under this act, and the other is the right of defence counsel to call witnesses to ensure that a fair and proper hearing occurs.

What I'm really asking you is your opinion. There seems to be a clash of authorities here. Do you see anything within the act that creates the balance that will allow this act to function in the best interests of society? Particularly in this case, someone is charged with an offence and defence counsel for some reason or other feels that there is a need for a person under the protection of this program to appear before the court.

Prof. Ratushny: It seems to me that this is an issue that ultimately has to be resolved by the court. I think in the case of informants in the past, that has been what has occurred. In other words, defence counsel says to the court that they're unable to provide their client with a full defence without access to that witness, and at that point the Crown must either present the witness or lose the prosecution. That's the way it's been resolved in the past.

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Under R. v. Stinchcombe, the Supreme Court of Canada requires that full disclosure be given by the Crown in relation to every prosecution. It's extremely broad. I think if the defence counsel made a prima facie case that the identity of that witness was crucial to the defence, then it would fall to the Crown to find out about that witness and either respond to the defence in a way that would satisfy the court or else provide access to the witness.

Mr. Ramsay: Then if we approach it to that point, it's the crown prosecutor and the attorney general of the particular province who would have to say to the commissioner, you either provide the witness or we will have to withdraw the charge. Is that what you're saying?

Prof. Ratushny: That's what it would boil down to, in my view.

Did you have anything to add on this?

Mr. Shonicker: I just think we have to look back to the court process. There's going to have to be a demonstrable need for that witness's evidence. I don't think -

Mr. Ramsay: But let's assume that is present.

Mr. Shonicker: If that is present, then you are in the situation Professor Ratushny has referred to.

Mr. Ramsay: So then the decision on whether or not the charge goes forward is between the attorney general of the individual province and the commissioner of the Mounted Police.

Prof. Ratushny: Yes, that would be the case.

The Chairman: Professor Ratushny, before we get to Ms Torsney, what about the situation of, let's say, a commission of inquiry seeking to explore a particular area of concern? If the commissioner of inquiry wishes to disclose an informant's name, or a protected person's name, under this particular legislation, but is unable to and therefore is unable to explore fully the mandate it has.... In other words, disclosure would be necessary to determine whether the authorities laid the right charge against the particular individual. They can't do it now. It appears they can't do it there. There isn't any way of protecting society so the power of the state or the police is not abused in the laying of charges - in other words, laying lesser charges in particular circumstances - and then no way of investigating this and determining whether this in fact occurred.

That's a problem. You may be well aware I'm referring to a particular inquiry; because this has occurred.

Prof. Ratushny: That certainly is a problem. You don't have the leverage in this situation of the Crown having to give up a prosecution in order to put pressure on to get the witness present.

Quite frankly, I don't think there's a solution to that particular problem in this legislation. I think the discretion of the commissioner would be overriding here.

The Chairman: I see.

Ms Torsney: I wanted to clarify this. You've had a lot of experience in the Ontario program....

Mr. Shonicker: In what was for many years an ad hoc program, on a case-to-case basis. The Ontario program as it has evolved is something with which I'm unfamiliar, but as a prosecutor ten years ago and as a private counsel involved in, I would think, five or six such situations.... This thing has evolved on an ad hoc basis.

Ms Torsney: Do you think it's a good thing we're finally codifying at least the RCMP program?

Mr. Shonicker: I think it's long overdue.

Ms Torsney: In your estimation or experience, either one of you.... I don't know if you were here earlier for the Victims of Violence, the people who are very concerned about the balance between informants and witnesses...and others have expressed some concern about that. I think the previous group was quite realistic that it's sometimes a necessary evil. But how do we deal with the prosecution of those who are in the program and commit other crimes, and do they deserve complete protection from their crimes? Can you elaborate on that?

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Prof. Ratushny: Mr. Shonicker and I were having some discussion about this last night and he had, I thought, some particularly good insights into the relationship between the witness and the handler, which is perhaps crucial to this area.

Pete, you might want to elaborate on that.

Mr. Shonicker: Ms Torsney has brought up a very good point. It's going to happen. There are problems with so many people who have been put into protective situations. There were problems with themselves revealing their own place of domicile. There were problems with themselves getting into further criminality.

This is where the whole issue of the handler comes in. Certainly I've seen many problems with handlers. There's sometimes a tendency for handlers to become so involved with a protected person that a relationship strikes up, one we don't necessarily want to see.

So you really have to give some thought, in my respectful view, to a very professional relationship between the office of the commissioner, either through counsel to the protected person, so there is almost a solicitor-client situation...as opposed to a situation where the protected person feels they are somehow empowered over law enforcement - and that does happen.

Ms Torsney: One of the things we understand...and again this relates to the program we're putting in place, which is the RCMP one. The other fifteen programs we don't necessarily have direct control over.

There needs to be some kind of code of conduct, a very explicit list of things that are expected, as well as some kind of brochure, or something, that those who are agreeing to participate in the program know what they're getting into; because there are problems. People are in life-and-death situations, they're making deals, and they come back later and say, ``But I thought you promised me the sun, moon, and stars''. Clearly we can't deliver on all that.

Do you think it would provide value that two things, one for the officers and one for the person who's agreeing to participate in this program, must be read before the contract is signed, or something?

Prof. Ratushny: I noticed that in your previous deliberations on this bill the question of the contract was raised, whether that was to be produced, or appended to the bill. I think the concept of a standard form of contract would be of value in listing a number of the specific conditions and expectations and obligations that are created by the contract. You would have to vary that to meet particular circumstances, but there's no question these conditions and obligations should be nailed down as specifically as possible, because vagueness and ``Don't worry, we'll look after you'' can lead to a lot of problems, I believe.

Ms Torsney: Certain things in the contract should be standard, but my impression is the person who's agreeing to the program...because of the differences...there are professionals getting involved, lawyers, nurses, or somebody who's perhaps going to have great income-earning potential in the other province, or wherever they're moved, versus somebody who hasn't had a terribly successful career in the private sector - maybe they have in the crime sector - and who has general skills...and what they expect out of the program. So perhaps a contract as much as possible ironed out for all the various things...but there are such variances between the people who are involved in the program that there needs to be a consumer-protection kind of brochure, one that says, have you thought about...have they asked you about this, and maybe you want to negotiate on that, and here are some of the other things you should consider; do you have an ability to pay your child-support order, and is a third party paying that or are you going to reveal yourself...how those issues are resolved.

Prof. Ratushny: It may be it should become a practice of the person to obtain independent legal advice before entering into one of these agreements, to make sure they are protected against some of those things.

Ms Torsney: How would you cover off for confidentiality, though?

Prof. Ratushny: With the solicitor? Would you be concerned about the solicitor revealing the name?

Ms Torsney: Or the person going out and looking for a solicitor, interviewing five different lawyers: ``Well, why don't you work for me? I have this deal I'm working out with the RCMP''.

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Mr. Shonicker: I think the relationship itself would be privileged. I think we have to have some faith in that.

Ms Torsney: Isn't there a time crunch? When negotiating, we have this person who is potentially agreeing to help, and we want to get this criminal. So they're becoming involved. If you got into a lengthy and very officious negotiation in which everybody's lawyers are trying to negotiate, that might not be the fastest way to get this criminal.

Prof. Ratushny: As a practical matter, I guess any time constraints would have to be taken into account. But just like any other situation in which a person is entitled to counsel and decisions have to be made quickly, and so on, it may be that the deal would be conditional on getting it done within a period of time.

Ms Torsney: Okay.

Mr. Shonicker: May I just add something? If you rush into one of these, you will be sorry. I think there's every reason to be particularly cautious to make sure that any contract is entered into with independent legal advice, as Professor Ratushny points out. It's critical to its enforcement. I think that a standard catalogue of expectations or contractual obligations is good, but I think each case is going to be different and you're going to have to tailor each case.

In some cases, you may want to have a condition such that they abstain from the consumption of alcohol. They may have an alcohol problem. In other cases, you may want to make sure that, through some mechanism, perhaps through independent legal counsel, they make the support payments they're obliged to make. It may come off whatever support there may be.

Ms Torsney: Do you have a problem with the commissioner being the final decision-maker here?

Prof. Ratushny: The impression that the act might give a lay person is that the commissioner exerts some sort of independent oversight on this. I'm sure the commissioner will act in the best interests of the force and will have a strong sense of public responsibility as well. However, public perception tends not to have faith in institutions to police themselves. So I think the idea of some sort of external oversight is important.

I think this is what I was talking about at the beginning when I talked about the public complaints commissioner possibly being able to review some of these, and also the annual report providing some access so the public knows what's going on. I think the commissioner's conduct and pivotal role here in making the decisions will always be subject to question.

Ms Torsney: I think that's my time.

The Chairman: Yes.

Mr. Ramsay, five minutes.

Mr. Ramsay: Mr. Shonicker, according to your understanding of the definition of a witness in this bill, does that also include informants?

Mr. Shonicker: Could you just read the definition?

Mr. Ramsay: A witness means:

(a) a person who has given or has agreed to give information or evidence, or participates or has agreed to participate in a matter, relating to an inquiry or the investigation or prosecution of an offence and who may require protection because of risk to the security of the person arising in relation to the inquiry, investigation or prosecution, or

(b) a person who, because of their relationship to or association with a person referred to in paragraph (a), may also require protection for the reasons referred to in that paragraph.

Mr. Shonicker: The question simply is, would an informant fall under that? I think it's clear that an informant does fall under that. That's the way I understand it.

Mr. Ramsay: Okay. From your experience, would you tell the committee the difference between a witness and an informant?

Mr. Shonicker: The only difference really is that a witness is an informant whose evidence is probative and useful in a prosecution.

Mr. Ramsay: Do both the witness and the informant normally and usually appear in court to testify?

Mr. Shonicker: Not always. It depends on the information.

Mr. Ramsay: Why do we have the two terms? They're not in the bill, so why do we have them?

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Mr. Shonicker: I think an informant is a person who comes forward with information to law enforcement. Law enforcement assesses the information. If the information is of probative value in terms of forming reasonable and probable grounds to make an arrest and proceed to a prosecution, then that person becomes a witness.

Very rarely do you see, I think, situations in which informants in the criminal process don't ultimately make it to court.

Prof. Ratushny: But of course police officers will often want to maintain a relationship with an informant so that information is supplied on an ongoing basis. The officer sometimes doesn't want that informant to be taken out of circulation. Once the informant becomes a witness, then the usefulness as an ongoing informant may be diminished, at least in that situation. So I guess it's a judgment call as to when, ultimately, an officer might want to use an informant as a witness in a prosecution.

Mr. Shonicker: I'm trying to think of a situation that would fit the question. Suppose there is an ongoing criminal enterprise, for example. Say you were fortunate enough to have an informant on the inside, whether it's a traditional, organized crime organization or a massive conspiracy to commit fraud. Your question is: how do we deal with them within the rubric of this legislation? I'm not so sure we have the answer.

It seems to me that's something that's fairly time-honoured in terms of police practices. I think they know how to deal with it.

Mr. Ramsay: Would an informant who is not going to appear in court be eligible under this program?

Mr. Shonicker: I think the definition is pretty clear, isn't it? It's anyone who is assisting in an investigation.

Mr. Ramsay: Yes, but it also involves risk. I'm asking the question fairly clearly. If an informant is not going to be called as a witness, it reduces the risk in terms of identity. Would an informant who is not going to be called as a witness be eligible for this program, bearing in mind the risk requirement under the bill to enter the program?

Prof. Ratushny: I guess it would depend on the circumstances, but an informant certainly is not excluded by virtue of not being a witness. I guess the question is: was the reason for putting them into the program because of the concern of risk? If there was no risk, there would be no motivation to put them in the program.

Mr. Ramsay: Thank you.

The Chairman: Ms Phinney.

Ms Phinney (Hamilton Mountain): There are two types of questions I'd like to ask. One is about power. I'm concerned about where the power lies. I'm not even sure if enough power lies in the hands of the commissioner, or if local RCMP offices are deciding this person goes into the plan and this person doesn't.

Either way, is there too much power in the hands of the police, who themselves, when they were witnesses here, certainly gave me the impression that they think this program is probably 95% for their informants? It was in there. I'm wondering where the private citizen comes into this who wants to help out or who sees something that he or she needs to tell the police about.

Are the commissioner and the people further down who are saying who comes in and who doesn't, making decisions based on having this much money, such that they want to make sure their informants get a place in there? Are they more concerned about protecting them? Maybe some people have to be put out because there isn't the time to look after them. They'll send this person out and that person out. Would the non-informants - the people who aren't helping the police - be the first ones to be shuffled out and be given less attention? They are in there as witnesses, but not necessarily informants, for the police.

Is there some way that this commissioner could have a lay person there? Is there some way that further down there should be some lay person making some decisions?

That's my first question.

My second question is for Mr. Shonicker. You have worked quite a lot with Ontario cases.

Mr. Shonicker: On both sides of the fence.

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Ms Phinney: I just wondered if you could tell us about the program. Do you feel it works fine, or are there some specific programs that you have seen -

Mr. Shonicker: I want to make it clear that the formal program that exists in Ontario is something that I have never dealt with.

I dealt, too long ago, on an ad hoc basis, with informants and people who were witnesses in very big cases. At that point in time, things were so difficult. Actual crown attorneys were dealing with informants, sometimes on a one-to-one basis, with a police officer present. There were many difficulties.

That is why, when I was answering Ms Torsney's question, I said I thought this was long overdue. The ad hoc process was something that changed from one crown counsel to another and from one police department to another. So there has to be a sense of uniformity.

I'll address that first point. I don't know if Professor Ratushny has a better angle on it than I do, but I would just say that I think that the commissioner's position, at some point in time, will be that he will find this is a full-time job. I think there should be some consideration given to having perhaps a retired judge in that kind of a position, or some overseeing body, as Professor Ratushny has suggested.

Prof. Ratushny: I think it is a very legitimate concern to have public confidence in the system for having some sort of independent oversight.

There are various mechanisms that can be used. CSIS for example, has the external review committee, which acts to serve that function of reviewing much of the conduct on a confidential basis. It provides, perhaps, some public confidence that it is just not done completely in private.

I am not sure what mechanism would be appropriate here, but I think having someone, whether it is a retired judge or a committee or some sort of review committee, would be helpful.

The Chairman: Mr. Ramsay.

Mr. Ramsay: Thank you, Mr. Chairman.

We had a witness yesterday, Mr. Barry Swadron, who represents people who have been in the program. He referred to this bill, saying that it's not for witness protection but police protection. He expressed the concern that there should be an independent watchdog of some sort. How do you feel about that?

We also had the Canadian Police Association here. Mr. Jessop simply said the act is garbage. Those words and that description of the act are very strong.

We have had some real issues and facts pointed out to us that raise concerns, such as clause 19 of the act, if you are familiar with it:

19. No action lies against Her Majesty in right of Canada or against the Commissioner or anyone acting on behalf of the Commissioner in respect of anything done or omitted to be done in good faith under this Act.

How do you feel about that clause in terms of what you have just testified to and in terms of what I just told you the witness said yesterday with regard to this not really being a witness protection act but more of a police protection act?

Prof. Ratushny: I think the watchdog point is the very one that was made by Ms Phinney. I agree that some sort of external review mechanism would be valuable.

In terms of the clause that takes away the right to litigate, I also think it's overly broad.

You say that the act has been criticized as garbage. Could you be more specific?

Mr. Ramsay: Maybe it is not appropriate. I am sure Mr. Jessop came to this committee thinking that this was a national program rather than just an act to codify part of what is being administered by the RCMP. This deals only with the RCMP, not with any of the other 15 programs across the country. He said it was useless to him. I think that was motivated from his misunderstanding -

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Prof. Ratushny: I see.

Mr. Ramsay: - that this was going to be a national program. But he said it was useless to him.

We have concerns about clause 19. I would like to go back to what you first testified about. I wanted to hear about the constitutionality of freedom of speech.

As you know, we had individuals in the news media. These were high-profile individuals under the program whose identity and location were revealed by the television cameras. What about that? Will that right members of the news media have, regardless of how we question their motives, be denied them under this clause? It seems it will. But will that raise a charter challenge?

Prof. Ratushny: Absolutely. You're going to have a situation, too, in which journalists will reveal information, they will be charged, and they will be quite willing to go to jail. I think it will be tested. In my view, there is an infringement of freedom of speech. It will boil down to the courts having to decide whether it's demonstrably justified in a free and democratic society to have a requirement like this.

I think the courts will say the objective is valid. The question will be proportionality, which is how far it goes in terms of whether or not this is really necessary to have it that broad.

I think a watchdog, or having a public, external review, would assist the courts in deciding that the objective the media has to serve, in terms of making sure this is not abused, can be served in another way. This other way is through, possibly, the external review process, whatever the mechanism is. I think something like that would help to achieve the validity of the legislation.

The Chairman: Mrs. Barnes.

Mrs. Barnes: Thank you very much, and welcome.

I want to just go over the civil liability, which centres on clause 19.

In the United States and Australia they have very similar provisions limiting accessibility through the court system and liability. This is what we have here right now. One of our witnesses yesterday put forward the fact that breach of contract and outright negligence was missing from this; you would only have to prove bad faith.

My question to you, with your expertise, is whether you think a court, if the clause was left untouched, would interpret this clause...bad faith would in essence be reinterpreted by the courts to include negligence. I know that's perhaps an unfair...but we're groping with this. I see good arguments for this clause. I also see good arguments for removing it in totality, and also perhaps for adjusting it to include some of these other provisions. I would just like to hear what you think about this.

Prof. Ratushny: Proving bad faith is what the litigant would have to do.

Mrs. Barnes: Yes.

Prof. Ratushny: It involves an oblique motive of some kind. I don't think negligence could fall within that.

Mrs. Barnes: So you think it would be a very difficult test to breach.

Prof. Ratushny: Yes, I do.

Mrs. Barnes: Okay. That's what I am fearful of also.

Can I have your opinion on negligence or breach of contract? We may call it an agreement or a memorandum of agreement, whatever the document creating the privity between the two parties is. Should we have something else in a Canadian document that would go beyond that of other jurisdictions, such as Australia or the United States?

Prof. Ratushny: Yes, I believe the document should be legally enforceable. I think the person should have access to the courts for that purpose.

Mrs. Barnes: If that wasn't there, would you see the complaints mechanism in this act right now - I think it's in clause 23 - going through the RCMP provisions? Could you see an alternate dispute-resolution system being as effective as the court system, given the fact that we have a very complex issue here with people generally or conceivably being dissatisfied with whatever is offered to them and being litigious to the point it breaks down our systems?

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Prof. Ratushny: I think the availability of the public complaints commission process is valuable and will ultimately serve a useful purpose as an administrative tribunal.

I think the informality of hearings and the breadth of the jurisdiction in terms of the things they can look into will be very helpful, but I don't think the availability of that process justifies removing the courts from enforcing, from doing what they do.

Mrs. Barnes: As for your argument about constitutionality, do you think section 1 of the charter - the proportionality - would have to be measured case by case or do you think it would be established at one point in time that the whole system has to be set up and that we have constitutional validity given to the infringement on our freedom of press and freedom of speech and everything else?

Prof. Ratushny: I think it's the constitutional validity of the act that would be challenged. I think that as the courts are doing now more and more frequently, they would look at the facts not only of the particular case but at social facts and the nature of the informer process and the witness protection process, and its role and importance in the criminal law. I think they tend to take a much broader view of the issues and the objectives involved. They don't look only at the facts of a particular case.

Mrs. Barnes: In your opening comments you talked about competing balancing, and in clause 7 we have (a) to (h) of the considerations. From my reading, these are not weighted. They are just all in there and the (h) brings in the attributes of an individual, consideration that might be material only. So even if you get into a blank-form general contract that says here are our rights and obligations, this is what we intend to deliver, do you think we've obtained the balance? Other groups - one earlier this morning - were saying to us, listen, public safety has to be of primary importance. Can you respond to that?

Prof. Ratushny: It's impossible to think of everything in advance, but I think having some criteria is helpful. It gives a sense of what is taken into account, what the nature of the decision is and so on.

Mrs. Barnes: Did you want to add something?

Mr. Shonicker: I think you have what's traditionally called a basket clause in there. That's why they call it a basket clause: it addresses those things that are going to be unique to individual cases or those things that are at this time unforeseen.

Mrs. Barnes: Thank you.

The Chairman: Before we go back to Mr. Ramsay, under the bill or the rule as it exists now with the informants and the informant privilege rule, the rule ends when the informant discloses his identity to the public. Under this particular legislation, the protected person can disclose to any number of people that he is the protected person, but the people receiving this information cannot disclose what they have heard and in fact can be prosecuted under this bill for such disclosure.

Should that be changed to make it similar to the informant privilege rule as it exists now where the secrecy ends when the informant makes the information public?

Prof. Ratushny: I think it would be a condition of the agreement that would bind the protected witness to prevent the witness from disclosing that information. If the witness were to disclose that information I think they would forfeit the right to continue to receive the benefits of the program.

I think the remedy here is different for those others who disclose it. The remedy makes it an offence. I think there would be constraints on the witness as well as on others, but the remedy against the witness would be to drop out of the program or be pulled from the program.

The Chairman: But if he drops out of the program, he can still talk to individuals and disclose that he was an informant. That information can still not be disclosed, can it, by the people who receive that information?

That's how I read the bill.

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Prof. Ratushny: I'm sorry, but in what clause is the offence defined?

The Chairman: It's in clause 11.

Prof. Ratushny: Yes, it includes ``former protectee''.

The Chairman: In other words, is that going too far?

Mr. MacLellan (Cape Breton - The Sydneys): Also, Mr. Chair, it's a question of knowingly disclosing.

Would it make a difference if you added the word ``knowingly''?

Prof. Ratushny: I'm not sure how much that would help. You'd have to have the intent to do it. However, it does look like overkill.

The Chairman: In other words, a person could drop out of the program and disclose to the media that he was an informant. The media would be constrained and could not print what they received as a story. Again, I see problems for freedom of speech under that particular provision.

Prof. Ratushny: Yes, I think that aspect of it might well not survive.

The Chairman: I see.

Mr. Ramsay: Are there any other parts of this bill you think might not survive?

Some hon. members: Oh, oh.

Prof. Ratushny: Well, I haven't been retained to review it, but I would be pleased to do that if you'd like.

Some hon. members: Oh, oh.

Mr. Ramsay: I'm really thankful for having you here and I'm glad you brought Mr. Shonicker along. His experience has been very valuable to the committee.

When Mr. Swadron was here, he testified that police officers often advise witnesses under the programs not to contact lawyers regarding their contracts. Of course, this is a little bit contrary to what I heard from you, Mr. Shonicker, in terms of the need for the solicitor-client relationship to ensure that the contracts are well in place in the beginning and that the witness has that protection.

Bearing in mind what the other witnesses said about the reluctance of police officers to have the solicitor advised or involved, do you think there should be a clause making reference to the availability of counsel to the witness for that purpose when it comes to the agreements being formulated and signed? Do you think that would be wise?

Mr. Shonicker: I don't know if it's necessary to codify it. It would be wise to make sure independent legal advice was always available.

May I respond to the comment you made about Mr. Swadron's statement? As Ms Torsney pointed out, the police may not be eager to see an informant out there reviewing the credentials of five or six lawyers in order to decide which one to go with. That's understandable.

However, I can tell you on a firsthand basis, after being consulted on many occasions by police forces, in my experience they are very responsible in making sure that informants do get some kind of legal advice, even if it happens to be from a lawyer the police feel particularly comfortable with, one who will keep the confidence of all involved.

I'm not so convinced that independent legal advice is impracticable. It is very practicable in this case and it can be obtained. I don't think it needs to be codified, but I don't know. It may help.

Mr. Ramsay: You've just raised the situation that I'm always uncomfortable with, and that is when one witness contradicts the other. That's what we have. That's what you've just said here in relation to the police always ensuring, or usually ensuring, that witnesses do have legal counsel available to them with regard to the contents of the contract.

Mr. Shonicker: Well, I'm not under oath, but I'd be delighted to go under oath and tell you that. I would have to be careful about this, but I can think of about seven cases in the last eight years where I have been asked - it's usually on a pro bono basis - to assist a person who's going into either a formal or an ad hoc witness protection program by giving him or her independent legal advice on the nature of the agreement and what's expected of them. The individuals I've dealt with have always seemed very happy with the arrangement even though, with the exception of one case, we hadn't known each other prior to that meeting. It is the police officers, conducting themselves in what I view to be the highest traditions of law enforcement, who seem to be insisting on that.

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If I'm contradicting somebody, I'm really not concerned about it, quite frankly. I'm not concerned about contradicting whoever said the legislation is garbage. I'd like to speak with that person, because I don't think the legislation is garbage at all.

I think you're running into the traditional problem where many municipal and provincial police forces across Canada have looked to the RCMP for financial assistance in complex cases for many years. Now, no doubt, they would like to see their informants taken care of within the rubric of this particular piece of legislation.

Right now there's a large telemarketing investigation going on. All the municipal police forces in Ontario would love to see the RCMP commercial crime take it over so they could get some resources in the investigation.

I think that's the kind of thing you're seeing. I don't want to call it professional jealousy. I think it's municipal police forces and provincial police forces responding to their particular needs and realizing this legislation is not addressing their needs.

Mr. Ramsay: You were a prosecutor.

Mr. Shonicker: I was.

Mr. Ramsay: So the police came to you to authorize the program.

Mr. Shonicker: No.

Mr. Ramsay: Who authorized the introduction of a witness into the program?

Mr. Shonicker: When I was in private practice, on at least seven occasions I was retained to represent the interests of an informant.

Mr. Ramsay: But that's not my question. We understood that on anything but the RCMP program, the crown prosecutor authorized the introduction of a witness into the protection program. Is that right?

Mr. Shonicker: That's correct.

Mr. Ramsay: As the crown prosecutor, did you have that authority?

Mr. Shonicker: No, I did not.

Mr. Ramsay: Who had the authority?

Mr. Shonicker: The director of the crown office, criminal, in the province of Ontario.

Mr. Ramsay: Okay.

Prof. Ratushny: I think there might be some value in having a requirement that independent legal advice be obtained. The experience of Mr. Shonicker relates, in part, to some of his special qualities in the area he's in and the fact he was a crown as well as a defence counsel.

There may be other parts of the country where other police forces and so on may not be as concerned about the witness's protection. There may be situations I can see where an individual officer trying to persuade an informant to do something might be tempted to mislead, or may mislead in practice when not intending to do so. I can see the usefulness of requiring independent legal advice. I don't think it would hurt.

Mr. Ramsay: Thank you.

The Chairman: We've already kept the witnesses longer than scheduled, but we'll haveMs Torsney and Mrs. Barnes split their time for the last questioning.

Ms Torsney: My question really follows up on your questions, chair.

About the whole concept of people who have been in the program before disclosing the information to others and what have you, isn't it to protect the people who are in the program currently? For instance, if I were a former protectee of the program, couldn't I put people at risk by discussing the matter? The RCMP told us most people are in the program for only about six months on average. While they use safe houses, they move me from three different cities. Is that how the pattern develops? If we really are going to crack down on organized crime and a couple of other things, don't we need to ensure that people don't reveal that information later?

Mr. Shonicker: I think you're correct. I don't think it should be something that is subject to a narrowly circumscribed timeframe like six months, that's for sure. That's dangerous.

Ms Torsney: So the previously protected people should be included, although you thought earlier that might be going too far. Maybe it's a question of proportion. The courts will decide what your intent was again.

Prof. Ratushny: You could tighten up the legislation to cover that situation by saying the person shall not reveal any details about how the program is run, or the administration of the program, or something like that.

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Mr. Shonicker: You might also want to look at the provisions in the Criminal Code that deal with wire-taps, the interception of private communications and the disclosure of such. There's no time limitation. It is an offence to disclose the fact of a court order for the interception of private communication. It doesn't say that if you disclose it after six months, it's not a crime any more. So you might want to look at that as a model.

I'd like to make another point, Mr. Chair. There's something you don't have in there that I would say you should give consideration to, and that is to make it an offence for an individual to claim to be under this program. In Ontario right now, there is a very serious problem going on with an individual who is running around and is escaping criminal prosecution because he has everybody believing he is in different witness protection programs. So you might want to think about that.

The Chairman: That's interesting. Thank you.

Mrs. Barnes: My question has to do with again looking at the U.S. and Australian pieces of legislation that have an emergency provision, given your earlier testimony that you have to know what you are getting into, and that takes some time...and potentially independent legal advice, etc.

Here, in your experience, would the justification for not having an emergency provision be that either we have a sufficiently fast mechanism or we have an alternate mechanism that is quite capable of doing the protective custody necessary when we don't have the timeframe or the in-depth ability to go forward? Maybe it's unfair to put this to you, but you're here today and I want to put it to some officials, because I need some background here.

Mr. Shonicker: I think it might be a disservice to the legislation to put that in, but that kind of thing is being done and has been done for many years. Again, my experience is that we are so fortunate in this country to have such great police officers and great police forces, both at the federal, provincial and municipal levels. We ought to have great faith in their discretion. If they think a person is in jeopardy, they're not going to allow that to happen. If it means securing finances from a budget somewhere to cover the short term until you get them into the witness protection program, I think that will happen.

Mrs. Barnes: Okay, that's good. That's what I wanted to hear.

The Chairman: Thank you very much.

Thank you for staying longer than the prescribed time. What you have given us today has been been very interesting and enlightening.

Professor Ratushny, Mr. Shonicker, thank you very much.

There is a steering committee meeting Wednesday. We are adjourned until then.