The International Cooperation Group

Publications

THE PROTECTION OF WITNESSES

Gregory Lacko

3 WITNESS PROTECTION PROGRAM ACT

The witness protection program is administered by the Commissioner of the RCMP[86]. Agreements for protection made before 20 June 1996 were deemed to be made under the relevant provisions of the Act and governed by it[87]. Importantly, the Act has no bearing upon witness protection programs run by provincial and municipal law enforcement agencies. It does, however, permit the Commissioner to enter into agreements with other law enforcement agencies to protect witnesses[88].

Definition of "witness"

The Act defines a witness as someone who gives or agrees to give information or evidence or who participates or agrees to participate in a matter relating to an investigation or the prosecution of an offence[89]. In relation to the investigation or prosecution, the person may require protection because of the risk to their security. For the purposes of the program, the Act also defines a witness as any person who, because of their relationship to the witness, may also require protection[90]. A person receiving protection under the program is referred to as a "protectee" by the Act[91]. However, for consistency throughout the present document, a person receiving protection will continue to be referred to as a "witness".

Definition of "protection"

Protection under the Act may include relocation, accommodation, change of identity, counselling and financial support for these purposes or any others to ensure the witness's security or to facilitate the witness's re-establishment or ability to become self-sufficient[92].

Admission into the program

Witnesses entering the witness protection program are deemed to be in the program for life[93]. They are encouraged to become as self-sufficient as possible, but it is understood that their outstanding court and other legal commitments can severely restrict the likelihood of finding and maintaining employment[94].

Sections 6 and 7 of the Act set out the criteria for admission into the program. It is necessary for a law enforcement agency to recommend the candidate for the program[95]. The candidate must also provide the Commissioner with information[96] that will allow him or her to consider the following factors :

• the nature of the risk to the security of the witness
• the danger to the community if the witness is admitted to the program
• the nature of the inquiry, investigation or prosecution involving the witness and the importance of the witness in the matter
• the value of the information or evidence given or agreed to be given or of the participation by the witness
• the likelihood of the witness being able to adjust to the program considering the witness's maturity, judgment, personal characteristics and family relationships
• the cost of maintaining the witness in the program
• alternative methods of protecting the witness without admitting the witness into the program
• such other factors as the Commissioner deems to be relevant[97]

The RCMP usually addresses witness protection considerations as early as possible in the investigation process. In a drug investigation, for example, when the use of an informant in an undercover agent capacity is first proposed, the police unit involved will provide a proposal to witness protection personnel for approval[98]. Witness protection personnel then assess whether the proposed informant could successfully infiltrate the target group, follow the directions of the police and maintain the security of the investigation[99]. Witness protection personnel also determine what kind of protection may be required for the informant during and after the investigation[100].

The protection agreement

Finally, if a candidate is deemed suitable, he or she must enter into a protection agreement with the Commissioner[101]. A protection agreement contains basic clauses outlining the obligations of both parties, but is otherwise drafted to fit the specific case.

Under the Act, the RCMP Commissioner is deemed to have the obligation to take such reasonable steps as are necessary to provide the protection referred to in the agreement[102].

The witness is, on his or her part, deemed to have the obligation to :

• provide information or evidence, or participate as required in the investigation or prosecution to which the protection relates
• meet all financial obligations incurred at law that are, by terms of the agreement, not payable by the Commissioner
• meet all legal obligations, including any regarding the custody and maintenance of children
• refrain from activities that break the law or might otherwise compromise the security of the witness, another witness in protection or the program
• accept and give effect to reasonable requests and directions made by the Commissioner in relation to the protection provided[103]

Protection agreements may, among other things, outline the amount and duration of financial support that will be provided to the witness for matters such as interim accommodations, living expenses, monthly accommodations, monthly utilities, psychological counselling and treatment for substance abuse. Most protection agreements are reviewed every six months or sooner, depending on the circumstances[104].

Other situations

Notwithstanding the above requirements, the Commissioner may, in case of an emergency and not for more than 90 days, provide protection to a person who has not entered into a protection agreement[105]. Furthermore, a determination may be made to provide a candidate with funds to assist in his or her own relocation in the following situations : where the candidate is not suitable for the program, where the threat level is so low that ongoing subsistence payments cannot be justified or where the witness does not wish to maintain a relationship with the police[106].

Foreign states

The Solicitor General of Canada may enter into a reciprocal agreement with a foreign government to admit foreign nationals into the witness protection program[107]. The Solicitor General of Canada may make a similar arrangement with an international court or tribunal[108]. In any event, the Solicitor General of Canada must consent to the individual's admittance into the program[109]. Importantly, before a foreigner can be admitted into Canada pursuant to a reciprocal agreement, the additional consent of the Minister of Citizenship and Immigration is required[110]. Once accepted, the RCMP's role in such cases is to administer the agreement between the foreign country and its witness. Witness protection in such cases is provided on a cost-recovery basis[111].

Changing and protecting the witness's identity

If a witness in the program requires a name change, the RCMP must arrange for and provide the witness with federal documents reflecting the new identity[112].

It is an offence to knowingly disclose information about the location or change of identity of a protected witness. It is also an offence to disclose such information about a witness who is no longer under protection. It is not an offence for a witness to disclose information, so long as the disclosure does not endanger others in the program or compromise the program's integrity.

The Commissioner may disclose the location, or the change in identity, of a witness or former witness in the program in the following situations :

• with the consent of the witness or former witness
• if the witness or former witness previously disclosed the information or acted in a way that results in the disclosure
• if disclosure is essential to the public interest[113]
• in criminal proceedings where disclosure is essential to establish the innocence of a person[114]

Before disclosing any information the Commissioner must take reasonable steps to notify the person and allow him or her an opportunity to respond[115]. The Commissioner is not obligated to do so if it would impede the investigation of an offence[116]. The following factors must be considered in determining whether or not to disclose information :

• the reasons for the disclosure
• the danger or adverse consequences of the disclosure in relation to the person and the integrity of the program
• the likelihood that the information will be used solely for the purpose for which the disclosure is made
• whether the need for the disclosure can be effectively met by another means
• whether effective means are available to prevent further disclosure of the information[117]

Terminating protection

The Commissioner may terminate protection if the witness deliberately contravenes an important obligation of the protection agreement[118]. The Commissioner may also remove from the program a witness who made a significant misrepresentation or failed to disclose information relevant to his or her admission into the program[119]. Reasonable steps must be taken to notify the witness of the decision and to allow him or her a chance to respond[120].

Annual report

The Act attempts to make the witness protection program more transparent by requiring the Commissioner to submit a yearly report to the Solicitor General of Canada, who must then table the report in Parliament[121]. To maintain the integrity of the program and the safety of the people within it, the annual report only provides statistics in the most relevant areas, without any details of the individual cases or processes involved.

The annual reports disclose some interesting developments with the witness protection program. The 1999–2000 annual report shows a 67% decrease in identity changes and nearly a 50% drop in the total cost of the program from the previous year[122]. The report suggests that the diminishing numbers can be attributed to several factors : improvements in the selection of agents for use in investigations ; the use of other investigation methods ; and a new RCMP mandate to target higher-level criminal organisations which, being typically longer in duration, results in conducting fewer investigations[123].

In 2000–2001, there was close to a 50% drop in the number of witnesses accepted into the program. The report explains this result by pointing out that 23 witnesses refused the protection offered, compared to only four in the preceding year[124]. Witnesses refused protection because they found the program too restrictive and were unwilling to leave their extended family, friends and loved ones behind[125].

The most recent report for 2002-2003 discloses a significant increase in both the number of people accepted into the program (from 29 to 61) and the cost to run the program (from 1.5 million to 3.4 million dollars)[126]. The increased budget resulted from new funding to fight organised crime and new funding for public safety and antiterrorism[127]. Importantly, the 2002-2003 report is the first in which there was a failure of witness protection caused by the RCMP. According to the report, the failure in protection resulted from an inadvertent disclosure of information in Court. The matter was subsequently resolved to the satisfaction of all concerned parties[128].

Regardless of the number of people it admits, the witness protection program remains a valuable tool to provide protection to witnesses who fear reprisals and would otherwise not co-operate with the justice system. However, the usefulness of the program depends on a continuous monitoring of its operation and on a systematic identification and assessment of threats.