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THE PROTECTION OF WITNESSES

Gregory Lacko

2 EVOLUTION OF THE FEDERAL PROTECTION PROGRAM

FIRST PERIOD : 1984–1994

In 1984, as a result of the priority given to the fight against major national and international drug smuggling rings[8], the RCMP established a witness protection program to protect people collaborating with the justice system[9]. The highly secretive program was created by administrative measures and not by legislation. The RCMP was reluctant to disclose information on who was eligible for protection, the types of protection available or how the program was administered[10]. However, much of this information was contained in an internal RCMP operations manual[11]. It was felt the program had to be secretive to prevent sophisticated criminals from discovering the particular methods and procedures used by the RCMP and then using the information that could be gained from this knowledge to find and harm their accusers[12]. The RCMP built up a witness protection infrastructure composed of experienced officers and contacts across Canada to support witness relocations, to obtain identity changes and to provide the necessary documents to authenticate these changes[13].

Importantly, provincial and municipal police forces also have the power to create and maintain witness protection programs. The Ontario Provincial Police, the Quebec Provincial Police and a number of municipal police forces have their own witness protection programs[14]. The RCMP witness protection program, however, was available to assist other police forces in relocating witnesses throughout Canada[15]. The provincial and municipal protection programs usually sought RCMP assistance in obtaining federal documents to facilitate name changes.

During the mid 1980s, most of the people who entered the RCMP witness protection program were in some way involved with major drug trafficking activities[16]. But the scope of witness protection grew afterwards as an increasing number of citizens needed protection because of their role in cases that had nothing to do with organised crime[17]. It is difficult to say how many people were in the program at any given time since the numbers fluctuated with the expiration of protection agreements and the elimination of threats to safety[18]. By 1996, on average, the program relocated approximately 50 people per year[19]. This number grew closer to 60 or 70 in cases where family members of witnesses were also relocated[20].

Though the program was successful insofar as no witness was lost while en-rolled, some protected people complained that their expectations were not being met[21]. Misunderstandings arose as to the nature of the agreement between some protected individuals and the RCMP and what their responsibilities were[22]. Some program members were sufficiently angered that they were even willing to shed their anonymity to draw attention to their plight. The relatively high-profile cases of three people demonstrate the complexity of protecting witnesses and some of the shortcomings of the RCMP's administrative witness protection program.

Leonard Mitchell

Leonard Mitchell, a legitimate and law-abiding business owner, was approached by organised crime in 1983 to help transport drugs to the eastern shores of Canada[23]. Mitchell immediately reported this encounter to the RCMP, who asked him to co-operate with the criminals to see what might develop[24]. Wanting to be a good, public-spirited citizen, Mitchell agreed to help the RCMP[25]. After 19 months of undercover work, Mitchell led the RCMP to a $238 million[26] drug seizure in 1985[27] and immediately entered the witness protection program[28]. His family was relocated and promised new identities.

Although the RCMP had not put any terms of the arrangement in writing, Mitchell maintained that they promised he would be "duly compensated" for his efforts[29]. The matter of compensation was important to Mitchell, particularly in light of his personal sacrifices and having to leave his legitimate business behind, but the RCMP continued to delay consideration of the issue[30]. Further, the inability of the RCMP to promptly provide the Mitchells with new identity documents complicated their adjustment to a new life, since they could not seek employment without such documents[31].

After a year and a half of RCMP delays, Mitchell's anger and frustration finally prompted him to hire a lawyer and appear on national television, in disguise, to explain his battle for the promised compensation[32]. Although his physical identity was concealed, it was readily apparent that the man airing his complaints with the RCMP on national television was Leonard Mitchell[33]. Shortly after Mitchell's television appearance, the Solicitor General of Canada commented before the Standing Committee on Justice and the Solicitor General : "I certainly want to take the opportunity publicly to say that we admire what he did. He did indeed render a very valuable service to Canada, and we certainly commend citizens like him. (...) He should receive fair compensation, there is no doubt about that."[34] Some days later before the same committee the Commissioner of the RCMP commented on the alleged promise of compensation : "There were never any direct promises at all, because (...) those promises cannot be made at low levels in the organisation. We are trying to determine exactly what the extent of discussion may have been at those lower levels, though, that could have caused some false impressions."[35] On the fact that Mitchell went public, the Commissioner noted : "The publicity of a case like this is not useful. What is not being said is that in hundreds of other cases, there are no problems and the people are very well treated to the satisfaction of both parties, if you wish."[36] Due to all the publicity, Mitchell's family was once again relocated[37]. In early 1987, Mitchell finally reached a settlement with the RCMP[38].

Douglas Jaworski

Douglas Jaworski was a Canadian national living in Florida who, among other things, flew airplanes for the infamous Medellin cocaine cartel of Colombia. When the cartel asked him to help develop a non-stop flight route to Canada from Colombia, Jaworski decided to go to the RCMP[39]. Jaworski was having "some problems" in the shady world of drug cartels and was afraid they would multiply if he did not get out[40]. He decided the safest way out was by becoming an RCMP informant[41]. Jaworski feared the cartel would harm his parents if they discovered his role as an informant[42]. He claimed the RCMP was aware of his concern during the undercover operation and that they agreed to evaluate his parents' protection needs[43].

After Jaworski helped the RCMP seize $250 million worth of cocaine in Canada, he entered the witness protection program and expected the same protection to be provided to his parents. The RCMP, however, refused to provide any protection to Jaworski's parents[44]. Angered, Jaworski refused to testify in court unless his parents were protected, and he sought to overturn an order forcing him to do so[45]. Jaworski argued that if he were forced to testify, it would lead to the death of his parents[46]. The provincial court refused to hear Jaworski's case on its merits, finding firstly that the order was validly issued and, secondly, that it could not order for the protection of Jaworski's parents because they were living outside of Canada at the time[47]. After the Court of Appeal declined to consider the case, Jaworski appealed to the Supreme Court of Canada. The Supreme Court concluded that Jaworski's parents found themselves outside of Canada partly because of the RCMP's decision not to offer them protection[48]. Given the special circumstances of the case, the Supreme Court ordered the provincial court to rehear Jaworski's application and determine whether his parents were at risk and whether they should be accorded RCMP protection[49]. The provincial court quickly reconsidered the matter and ordered that the RCMP protect Jaworski's parents[50].

Marcella Glambeck

Marcella Glambeck was an RCMP drug informant between 1985 and 1986 who entered the witness protection program in May 1986[51]. During her time in the program, Glambeck had grown disenchanted with the RCMP, complaining that they had breached a promise to pay her $250,000 and relocate her to ensure her safety[52].

After viewing Leonard Mitchell's complaints on national television, Glambeck sought written commitments from the RCMP concerning, among other things, her award for assisting the police[53]. In February 1987, the RCMP sent to Glambeck, for her signature, a Letter of Acknowledgement (LOA) outlining each party's responsibilities. Glambeck objected to some of the provisions in the LOA, particularly one permitting the RCMP to investigate and charge her with prior offences[54]. RCMP officers had promised Glambeck in 1985 that she would not be prosecuted for any drug offences committed up to that time, so long as she co-operated with the police[55]. A revised LOA to prevent Glambeck from being charged with pre-1985 drug offences was presented to her in March 1987[56]. Glambeck did not sign the revised document because she wanted her lawyer to review it first. In February 1988, Glambeck's lawyer and the RCMP reached an agreement in which she accepted a reward of $40,000 but without prejudice to her right to pursue the alleged $250,000[57]. Despite this result, Glambeck's discontent with the RCMP grew. On 5 January 1989 she revealed her general location, though her appearance was concealed, by appearing on a local television network to air her complaints with the RCMP[58]. She also gave interviews to journalists and protested in front of the Parliament buildings in Ottawa with a paper bag on her head[59].

In 1989 Glambeck filed a complaint against various RCMP officers with the RCMP Public Complaints Commission. The RCMP Public Complaints Commission's mandate is to provide civilian oversight of RCMP conduct so as to hold the RCMP accountable to the public[60].

The Commission commenced a public hearing into Glambeck's complaint in 1991[61] and released its final report in 1993[62]. The Commission found that no promise was made to pay Glambeck $250,000 and that the RCMP did not breach a promise to protect her[63]. The Commission, however, did find that it had become impossible to protect Glambeck because of her growing willingness to publicise her complaints. Though it ascribed no blame to either party on this issue, the Commission decided that both Glambeck and the RCMP had to share responsibility for this breakdown in the aims of the program[64].

Even though the Commission dismissed Glambeck's complaint, it nonetheless concluded that something did indeed go "very wrong in this case"[65]. Recognising that the witness protection program was in its "infancy stage"[66] when Glambeck entered it and that much had since been done to improve it, the Commission outlined what it thought had gone wrong and made recommendations to help improve the program[67]. Among other things, the Commission noted that no one had prepared Glambeck for the transition from the interesting and demanding RCMP informant assignments in which she thrived to a position of relative anonymity upon entrance into the program[68]. The RCMP also concluded that an identity change was necessary for the Glambecks but that the force was unable to provide them with new identities promptly. Without provable identities, the Glambecks were unable to seek employment[69]. Additionally, Glambeck and her family were not briefed on cover stories, histories or ways to avoid drawing attention to themselves[70]. The Glambecks were also relocated twice. The suitability of these locations should have been assessed to determine if they met the social, business and employment needs of the Glambecks[71]. When the Glambecks were relocated, their new RCMP "handlers" were not briefed[72]. Among other things, the Commission found that the officers who handled the Glambecks could have benefited from training with those who had been involved in police work of this kind[73].

In response to the report, the RCMP Commissioner noted that, while future changes to the witness protection program might be desirable, their implementation would be limited by financial constraints. The RCMP Commissioner took the Public Complaints Commission's recommendations under advisement only.

SECOND PERIOD : 1994–1996

In 1994, after some of his constituents complained of their experience with the RCMP program, Liberal Member of Parliament Tom Wappel introduced a Private Member's Bill in the House of Commons[74]. Bill C-206 sought to formalise the RCMP witness protection program and have it administered by the federal government[75]. The consensus was that there would be fewer misunderstandings if the program's fundamental principles, criteria and procedures were expressly set out in a law[76].

Bill C-206 received a great deal of support in the House of Commons and passed second reading[77]. The Parliamentary Secretary to the Solicitor General acknowledged that the government must ensure the safety of those who assist police and prosecutors, but noted that issues such as the cost of the program and how it would be administered required further review before the government could propose legislation on the subject[78].

On 23 March 1995 the Solicitor General introduced, on behalf of the Liberal government, Bill C-78, the Witness Protection Program Act, in the House of Commons[79]. The Solicitor General recognised the importance of Wappel's contribution in bringing the issue before the House of Commons[80]. Because the government's bill achieved the same goal of legislating the protection and relocation of witnesses, Wappel withdrew his bill[81].

Like Wappel's Private Member's Bill, Bill C-78 sought to make the adminis-trative RCMP witness protection program operate more openly and effectively[82]. The Bill was designed to ensure that applicants who entered the program and the RCMP had a clear understanding of their respective rights and obligations and of the extent and scope of the protection and benefits to be provided. Bill C-78 also laid out the admission criteria for witnesses, stressed the need for consistency across the country in handling cases, specified the responsibilities and obligations of both the administrators of the program and individuals entering the program, indicated the management structure within the RCMP for the day-to-day operation of the program, and required the tabling in the House of Commons of an annual report on the operation of the program[83]. The Witness Protection Program Act was adopted by Parliament[84] and came into force on 20 June 1996[85]. As of that date, the RCMP witness protection program has been functioning on the basis stated in this Act. Accordingly, it now seems appropriate to examine more closely some of the main provisions of the latter.