[Recorded by Electronic Apparatus]
Wednesday, October 25, 1995
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[English]
The Chairman: We'll start our meeting this afternoon, again continuing with Bill C-78, dealing with witness protection.
We have with us today Barry Swadron, a barrister and solicitor with Swadron Associates from Toronto, I believe. We have your paper, Mr. Swadron, and you can either read the paper or summarize it. Once you're done we'll go to questions and answers.
Mr. Barry B. Swadron (Senior Partner, Swadron Associates, Barristers and Solicitors): I think what I'd like to do, sir, is summarize it.
I'd like to thank the members and others for being here and for having been invited.
I'm not sure entirely who your other witnesses will be; probably most of them will be from the public sector or the police sector. I think the people I represent cannot come here. They would be concerned about their safety. There are a number of them - I'd rather not say how many, but it would take some hands and fingers to count them.
Most of the people I represent are not criminals in the sense of the word that one usually identifies with witness protection. Most of them are innocent of crime. They might be children or spouses. Even the individual who is being protected may have had nothing to do with crime. Some of them might be small-time criminals in prisons who hear stories about bigger crimes from others.
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So I think a lot of the people I represent are good citizens. Sometimes they're super citizens, insofar as they assist with law enforcement and they don't have to.
I think the fact that you people are considering a bill on the topic is a step forward. Later I'm going to talk about what I see as deficits in the bill. There are some major deficits.
I know that Mr. Tom Wappel has been working in this area for a long time, many years, and I know this isn't his bill, but I think he deserves congratulations.
The types of witnesses I represent are not all protected witnesses. Some have been asked to be witnesses and they seek my intervention at that point. Some have been promised that they would be and they're angry that they haven't been, and they believe they need protection. Some have been witnesses and they've been terminated from the program and they feel they shouldn't have been terminated, or they got a raw deal. So we cover the waterfront. They come from all parts of Canada and they are relocated to various parts of Canada.
When I started doing work in this field a few years ago, by and large most of the people who came to me had been to many other lawyers before. Some lawyers just don't want to be bothered with it - it's not very lucrative - and some are frightened. There are other reasons as well. By and large, by the time the people come to you they're pretty desperate and something has gone wrong. Obviously if nothing has gone wrong the last person you want to see is a lawyer.
Unfortunately, I've seen cases where police officers discourage, even prohibit, protected people from going to lawyers. They say it's on the basis of security, but at the same time it certainly protects them if anything goes wrong; it protects the police.
When most of these people call you at the beginning they won't even tell you their names or where they're calling from. They're worried that their phone is tapped and they say they'll meet you perhaps at your office. They ask you not to give your address; they get it from a different phone. It's very difficult because you have to keep a set of files without identifying features in it. You have to keep a lot in your head. Even when you go to court you have to seek court orders to use pseudonyms and say that the people are worried about being killed or injured. By and large, the courts are pretty good that way.
The people I represent in this area come from all walks of life. Some are professionals; they're different ages, different sexes. Sometimes we advise, sometimes we negotiate with the authorities, and sometimes we have to go to court. The worst thing about protected witnesses is that most of them don't have a past. The idea is to erase their past so that no one can trace them. Once you do that they end up with nothing - they're worse then newborn babies. If they have a profession or an occupation or a work history, they're not allowed to give it because it might compromise their security.
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It's very difficult to look for accommodation when the landlord wants to see where you were living before, your payment history. It's very difficult to open up a bank account or place your children in school. You need help with all of these. You need a new birth certificate, a new driver's license, and a new health card if you are going to a different province. It's just so hard if these pieces of identification, these documents, are long in coming just because of tardiness - not bad faith, but tardiness.
You can't get a job, you can't support yourself, you can't get welfare - these are just horrible experiences. Some of my clients think they are the ``undead''. They are not living and they are not dead; they are undead.
I mention legal aid in my brief. Ontario has just spent half a million or a million dollars on defending Paul Bernardo, but I have had some cases where people are in fear for their lives and it involves witness protection. Though most legal aid officials are sympathetic, others say well, if they're not charged with an offence, we don't have to give them legal aid. So if they are in fear of getting killed, they are not entitled to legal representation at the state's expense. It would be nice if there were a bill...or if something could be done about that.
I repeat it here again in my prepared text: not all of these people are criminals. I would say in passing that from what I have seen, big time criminals seem to get a better shake than innocent people in witness protection, because the police authorities are more interested in the information the big time criminals could give than in protecting a woman and her children, for example.
I talk about the basic tool that is used; it is called a letter of agreement. It's a document that both parties sign: the police and the person being protected - ``the protectee'' in the bill. It is just a simple contract. The one promises to give evidence or cooperate in some way and the other says we will do this for you, whatever ``this'' would be.
If I've seen anything I've seen a lot of delay - perhaps it is a sign of our times - from the police. Maybe they've got too full a plate and too many things to do. These people are entirely dependent on the police, on the handlers, who are to be protecting them and getting them financial or other types of support, such as identification papers. If they're late in coming, it is these protectees who suffer. It might be a little thing to the police, but it's a big thing, a pretty important thing, when you're a single mother with four children who is under protection, you go to a strange province, and one of your children gets sick. You want to call a doctor and you haven't got a health card and you have to catch-as-catch-can. You might even have to lie in order to get health care for your child.
The biggest trouble I see with this bill is in allowing the administration to be in the RCMP, or in any police body. It is simply wrong. It's a conflict of interest.
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You've got two parties to the contract. You've got the police, on one hand, who want some assistance with the administration of justice - a very noble cause - and you've got the protected person. If something goes wrong - and that's surely the purpose of this bill, to regulate a chaotic field and make sure there's some order and fairness in it - then the Commissioner of the RCMP makes all the decisions. Moreover, when he or she makes those decisions, there's a duty to communicate to the person: ``We're not going to protect you'' or ``We're going to stop your protection'', and there's a duty in the bill to say why and allow the person to come and make representations. Big deal. You can be a party to the contract and a judge at the same time?
Once you make your judgment and you give the person the reasons for that, you then become the appeal judge as well. You can allow the person to come and make representations and say ``You shouldn't have decided that way''. Then you go out, and the commissioner says ``Well, I did decide that way and upon reconsideration I still decide that way''.
What this bill does in clause 19 is take away the right to sue altogether, and it has all the duties on a protectee. It says the protectee shall do this and that and this and that, and then the commissioner shall do whatever he thinks he should do. That's the code of conduct of the police. As I say in my text here, it's not witness protection, it's police protection.
Witness protection wasn't a problem a few years ago. The only reason it became a problem is that governments and attorneys general started to get sued. Then it became a problem: What we need is a bill to make sure we have more order and we'll make sure the government can't get sued. That's what has happened.
It says you can sue the government for something done in bad faith, but for that you'd have to have police forces doing something. You have to have a train not going on the tracks but going off the tracks to get someone. You'd have to have a malicious reason in the police in order to sue them; otherwise they can do what they like. But the federal government, in this bill, is benevolent. It says you can sue, but you can't sue the federal government. You can sue local police forces, you can sue provincial governments, etc., but you can't sue us. Certainly that will take the problem away, and it says you can sue us for something we do in bad faith.
Of the various suits that my firm has undertaken, we don't allege bad faith at all. We don't say that the RCMP, or whatever other police force, did something in bad faith. We say you didn't do it right and in the ordinary courts we're entitled to sue you. You may have done it shabbily or negligently; you may have breached the contract. But you don't have to act in bad faith in order for that to happen.
I mention in passing that I haven't yet met nor spoken to a protected witness who has anything good to say about the police, and most of the cases involve the RCMP, but not all of them. Some of our cases relate to provincial police forces or regional police forces.
I suggest that there should be an independent watchdog. Certainly, in these times of austerity, to set up another administration is not easy. I was thinking of perhaps a central one, no less central than the Commissioner of the RCMP, and there's only one commissioner. There's only one National Parole Board, and I suppose there could be one witness protection board for the country, with regional representatives who are perhaps part-time, if we're looking at costs.
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But I doubt that this bill or the witness protection subject at all deals with a lot of people. There aren't that many; I'm sure there aren't thousands. It's just like the murder sections of the Criminal Code: they're not used very often. Not too many people kill other people, but at the same time you have to have provision for it.
What I say in my short paper is that such a body could serve in an advisory capacity. I'm thinking of something with not only police representation, but consumer representation and whatever else is considered appropriate. It could advise the Solicitor General of Canada, it could advise police forces, it could advise potential consumers of it. It could have an administrative capacity and alternative dispute resolution capacity so some of the cases I have wouldn't have to go through the courts. These cases are terribly expensive, cumbersome, and they're the last thing that protected witnesses need.
I've had protected witnesses who I've taken a case for, I've resolved the case for, and they've even gone ahead and changed their names again. I don't know their names, I don't know where they are, and that's exactly how it should be: they should fade into the woodwork. We don't need these people coming to courts. But protected witnesses are a sore thumb. Even though there aren't that many of them, they seem to attract a lot of attention.
Such a board could have a pamphlet that police who want to get informants could be required to give to the potential informants, which would tell them about the pitfalls and difficulties and culture shock of going from one part of Canada to another, or even beyond. It would be like the law that says when the police arrest a criminal they have to read him or her their rights.
Maybe this field could be monitored and there would be a special agency that would watch out for these things. I'm sure it needn't be full time and it needn't be very expensive, but it would be far preferable to the Commissioner of the RCMP, or the force, or any other force for that matter.
I do talk about the possibility of the informant being in prison. There are a number of occasions I know where very serious crimes have been committed and cell mates have known about it, or the person might be in prison.
I had a case recently, and I can't tell you too many specific details, but my client, who was instrumental in helping get a conviction for murder against a person who was later convicted, ended up in the same prison, around the corner from the individual that he or she testified against. I'll tell you it wasn't a woman, because there wasn't a prison for women in Kingston. But that sort of thing is terrible. I might say that I was fortunate enough to contact the Solicitor General, who ultimately arranged for a transfer. But I had one very worried individual.
There's no question but that informants are an effective mechanism for law enforcement, and sometimes they're the only essential way. But I find that police, in order to get their informants, offer anything they can - the sun, the moon and the stars. Often they don't have authority to do that, but the protected witness believes they're being told the truth. After all, you should be able to trust police officers. But when the person is relocated, they're thousands of miles away perhaps from the promise - I guess I'd better say thousands of kilometres - and looking after the person might be a different police force altogether that didn't make the promises and couldn't give two hoots. So things like that should be corrected.
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I think the rest of my paper deals with the concern I have that the bill gives more police protection than witness protection and that there should be a better code, or a code of conduct, for police officers who serve in this field. I suppose I'm all yours.
The Chairman: Thank you, Mr. Swadron.
Mr. Ramsay, you have 10 minutes.
Mr. Ramsay (Crowfoot): Thank you, Mr. Chairman. Thank you, sir, for your presentation.
Who do you think should administer this program? Under the act, it comes under the authority of the commissioner, but he can delegate that authority to any officer of the force who holds the rank of chief superintendent or above. Knowing a little bit about the RCMP, I would assume that the commissioner will seldom, if ever, make a decision as to whether or not a witness ought to be entered into the program. So if it's not going to be a chief superintendent or someone above that rank, or someone within the force - you object to that - who would you have administer the program?
Mr. Swadron: I would take it away from the force altogether. I recognize that when it says commissioner, it doesn't mean commissioner; it means someone acting under him. But I would take it totally away from the force, and I would recommend a separate board.
Mr. Ramsay: What kind of a board?
Mr. Swadron: Well, usually you would go by odd numbers, but something similar to the National Parole Board or any federal board that would have the interests not only of the police but of the protected witness. I don't know where you would find that type of a bird, but I think civilian representation....
By and large, I don't deal with criminals and witness protection matters. The closest I've come to a criminal is the wife of a criminal - and she was absolutely innocent - and then small-time criminals who happen to be in prison and hear about a big-time crime. But I'm not talking about the organized crime criminals; I'm talking generally about innocent people.
Mr. Ramsay: I have ten minutes to ask you questions, so if you could be as astute with your answers as possible, I would appreciate it.
Mr. Swadron: I will. I'll fire them right back.
Mr. Ramsay: We had Detective Gary Bishop here from the Hamilton-Wentworth regional police. He's involved in their program. There are fifteen other programs across the country; other police forces have witness protection programs. He indicated to the committee that the person who decides whether a witness should enter their program is the crown prosecutor.
We had the Canadian Police Association here yesterday, and they expressed the same concern you're expressing: that because of the unique administration within the RCMP that is not seen in any other police force, it should be someone outside of the force. Mr. Jessop, who is the president of that association, recommended the crown prosecutor. How do you feel about that?
Mr. Swadron: I feel the same about a crown prosecutor as I would about the police: they are all out for law enforcement. The police would like to get their man or their woman, and the crown prosecutor is more allied to the police than, say, a civilian.
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Mr. Ramsay: But who would you select from the milieu of law enforcement and so on, who would understand the importance of the testimony that witnesses have and the importance of the threat, if any, that may be there, to make the decision as to whether or not a witness enters the program? Surely we must have someone who understands these factors to a degree in order to make a proper judgment.
Mr. Swadron: I agree. There are a lot of intelligent people. There are even members of the House of Commons. There are all kinds of members of police boards of commissions or police services boards, and they tell the police what to do. Toronto has one and none of them are police representatives.
I'm not saying there shouldn't be police representation. There should, but there should also be intelligent people who are not police officers, and I can assure you there are.
Mr. Ramsay: From your submission, I gather that your impression is that the police officers are not very interested in the welfare of the witness; they're interested only in the evidence the witness can provide.
In your brief - I've gone through it hurriedly because I just received it - you indicate that a lot of your clients who are on these programs, or who ought to be on these programs, don't have too much faith in the police officers they deal with at the grassroots level.
Mr. Swadron: There are many reasons for that. Generally, the police officers with whom they deal at the beginning, when the trail is hot and those police officers want to get the evidence, are not the police officers they end up dealing with when it's time to repay the favour.
Mr. Ramsay: What's the problem that exists there?
Mr. Swadron: Well, for the people who are relocated - from Halifax to Vancouver, for example - the police officers in their place of relocation didn't make the promises. They are looking after them in their new lives.
Mr. Ramsay: But what is the problem with that?
Mr. Swadron: The problem is that the promises aren't fulfilled.
Mr. Ramsay: Can you give us an example of what you're talking about?
Mr. Swadron: Sure. An individual was promised that if he participated in a project relating to bikers - and I'll give you everything about this because this is all in the courts and the person lives under a different name; you can go to the court and get these documents - if he participated in a sting that ended up in the conviction and imprisonment of eighteen bikers, he would be given a recommendation to become a police officer. He was told that by the police where he was. When he was moved a long distance away, he was told they didn't make any promises like that and he probably wasn't promised that at the place he was relocated to.
That's just one example of thousands I could give you. We don't have time for that.
Mr. Ramsay: The bill provides a section whereby the commissioner enters into an agreement with the witness. It's a written agreement, from what we were able to gather.
Mr. Swadron: Yes, it is. I've seen them.
Mr. Ramsay: Are you suggesting that there are written agreements now that make these promises that they don't fulfil, or is it verbal agreements that you're talking about, which go by the board and perhaps are denied by the police officer afterwards?
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Mr. Swadron: It could be verbal and it could be that the agreement is unspecific. The agreement could say that we will provide you with this and that, but you can't contemplate all of the things that might happen. The person might be looking for accommodation for a month. The person might need a work history in order to get a job, and these don't arise. Most of them need psychological counselling. They're bewildered, they don't know what to do. They don't belong. The agreement doesn't contemplate that. They have a toothache and want to go to the dentist but they don't have any money or a name.
These things aren't specified in the agreement. According to this bill, these things would be at the mercy of the police altogether. They are the ones who determine this. An individual who is about to go into the program doesn't know how to draft these things. They're all presented by the police officers and they're presented in the way that is easiest for the police. They say don't take it to a lawyer and don't take a copy away because we can't have you compromising our security.
In the final analysis these people are short-shrifted. That is the reality of it.
Mrs. Barnes (London West): Thank you for your written brief and your oral presentation. I'm glad there are people like you in this field. I think we owe a lot to you. I commend you for your work.
Mr. Swadron: Thank you.
Mrs. Barnes: I want to go to some of the basics of the bill itself. Do you have clause 7 in front of you?
Mr. Swadron: I do.
Mrs. Barnes: Under ``Consideration of factors'', where we enumerate from (a) to (h) - ``the following factors shall be considered in determining whether a witness should be admitted to the Program'' - what are you in agreement with on the bill? Do you think that's an adequate enumeration of the factors? Do you see anything missing from that listing?
Mr. Swadron: All of these factors are relevant, but paragraph 7(h), ``such other factors as the Commissioner deems relevant'' - I think that suffers from the same thing I was talking about before. I would rather say ``and such other factors as an independent, impartial person or board would say are relevant''. I know that couldn't be worked into this, but each case has to be tailored on its own.
In other words, if husband and wife and two kids are being relocated, I'd like someone to say consideration will be given to schooling and the availability of counselling and things like that. Tailor it to the individual case.
It's the type of thing that a police officer is not accustomed to considering. I'd rather see a social worker there or someone with a broader outlook than the police. I don't mean to take anything away from the police, but their training is geared to administer law, not to look after the global person.
Mrs. Barnes: I want to go to your concern about clause 19 of the bill - ``No action lies against Her Majesty''. You're saying that not only would you like an action made available against the Crown for anything done or not done in good faith, but you also want something like negligence added. Do I understand you correctly?
Mr. Swadron: Absolutely. Breach of contract. In some of the claims that I've issued on behalf of people I've said that the police are serving in a fiduciary relationship to them because these people have no power. They're in a new place, they're adrift. The police officers are their lifelines.
Mrs. Barnes: Okay.
I want to get a bit of clarification. The last line of your text says that in the final analysis, legislation alone will not fix the Canadian witness protection problems.
What outside of this legislation are you specifically thinking of? You must have had something in mind when you wrote that as your last statement.
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Mr. Swadron: I do. Let's say it was in a form that would satisfy me that this is as far as we can go in legislation. There's the training of the special police officers involved, knowing that they have the entire well-being of the protectees and their families in their hands.... How to deal with psychological problems, the problems created when people don't belong because they've been relocated - culture shock, being transplanted. Also, a better network.
I'm sure you'll consider everything I say, but maybe certain things are cast in stone. I don't know. Certainly before a person enters into a program like this they should be told what to expect and how to prepare for going to a new place. Even tourists can buy a book on how to live in Europe on $5 a day - now maybe $500 a day. Tell them what to expect, where to go, what shelters to go to and which people will help them. Tell them not to compromise their security and to rely on the new police officers to bridge the gap for them. But often no time or attention is paid to that.
What is said is that if you don't have a past, you don't have a future. If you go into a new city and have no means or wherewithal.... You can't say I worked at General Motors for 20 years or in the mental health field or was a nurse for 20 years. You're not supposed to do that because if they write to your former place of employment to check your references, you will have a different name. That will identify that you've been in this program, and the harm that could have come to you had you not been relocated and given a new identity will come to haunt you.
I have several people who look both ways. Simmons - that's his old name, but they've been relocated. There are hundreds or thousands of people who would kill him, not only the eighteen he put in prison but hundreds of members of biker organizations whose colleagues were put in prison, and the thousands of other criminals who would kill a rat. This is an individual who helped his country. He was absolutely innocent, with no criminal involvement. His brother was the national president of an international biker organization. He couldn't stand what his brother was doing to his parents and selling drugs to young people and ruining lives. So he turned in his brother and the eighteen other people. And what has he inherited? He's one of the undead. He is suing the federal government.
I have a better one for you. I just amended the statement of claim to add a John Officer - that's not his real name - for having sexually assaulted his wife. This is why we need witness protection. He would like to be here today. He read the bill and said that he's seen better bills on ducks. I wasn't going to say that, but I did.
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I'd like you to read what he writes about the RCMP administration of this act.
Mr. Ramsay: I spent fourteen years in the RCMP, and what worries me about this bill is the enormous power it gives over people who are in vulnerable positions.
Mr. Swadron: Exactly.
Mr. Ramsay: So I asked a question to other witnesses who appeared here - there was a John Doe who appeared here with Mr. Wappel, and he was the one who responded to my question - and it was simply this: Does the witness protection program...not just this act to codify what already exists, and basically that's what it does. We found out in no uncertain terms yesterday when the Canadian Police Association members appeared that this act is simply to codify the witness protection program as administered by the RCMP, and none other. Although they can bring in witnesses from other police forces under the program, it is their act; it's not a national act, available to all police forces in that sense.
My question was this: Does a witness program not give the rogue, or the bad apple police officer, enormous powers of coercion over those people who are in such vulnerable positions? In fact, you've just mentioned a situation where one peace officer - what did you say, sexually assaulted this man's wife?
Mr. Swadron: Yes. We call it assault; maybe they'll call it something else. Nonetheless, he was an RCMP officer and this man's wife was a protected witness who certainly was vulnerable.
Mr. Ramsay: Under clause 19, it states here that all that has to be provided to any tribunal by the commissioner of the force is a reasonable sense of balance that good faith was in all that they did, and you cannot hold them accountable.
Mr. Swadron: Right. That's what the federal government says in this case. They say he was a fine officer and they had no reason to believe that he did it. They deny that he did it, and then they say, well, if he did do it, we certainly didn't tell him.
Well, I didn't expect anything else, and at no time do I allege that the federal government would countenance anything like that.
Mr. Ramsay: I don't like these provisions in any statute.
Mr. Swadron: Yes, I think that type of thing is foreign to anglo-Canadian justice.
Mr. Ramsay: What it intimates is that the protection is needed, and my question would be, of course, why is it needed?
I and my party support the general direction of this bill, but we have heard some very unsettling critiques of this bill in the last two days. This section is one of them. I don't like this section.
Mr. Swadron: I think it must go, or else it's totally unfair.
There are similar sections in legislation in various jurisdictions, but the most they do is say that if that's the case, you have to start it within six months or a year. Here there is an absolute prohibition. It's just unfair.
Mr. Ramsay: What would you say would be a fair balance to place within the act, the intent of section 19? Should it be scrapped entirely, or should there be some protection for people administering the program who are doing so in good faith? What would you recommend?
Mr. Swadron: As I say in my written document, I would excise it; I would just remove it. If there are people who are acting in good faith, there are courts to determine that.
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You say you spent fourteen years with the RCMP. I'm sure there are good officers and bad officers; there are some wonderful officers. But why do they need special protection? The police should not be above the law, and, according to this clause, they are.
If someone sues and they're wrong, then the courts say they lose. Here you don't even get a chance to go to court.
Mr. Ramsay: How much time is left?
The Chairman: Your time is up.
I have a question for you, Mr. Swadron, on that particular clause, clause 19, that deals with no action against Her Majesty in right of Canada. If an agreement is entered into between a protectee and the commissioner and that agreement is breached, I take it what you're saying is there's no way of enforcing that agreement.
Mr. Swadron: No, unless it's breached in bad faith, and you have to go very, very far to allege bad faith.
The Chairman: But seldom are agreements breached in bad faith. Usually agreements are breached because of a different interpretation given to agreements and so on, even in civil law.
Mr. Swadron: I agree, and what if they're breached because one officer has a workload that is ten times heavier than it should be? Then the breach is not in bad faith, but it should be corrected. But you couldn't sue for that.
The Chairman: That's what I mean. So in other words, this bill may not be codifying what we have right now -
Mr. Swadron: No, not in that respect.
The Chairman: - because right now what you can do is start an action to try to enforce any arrangement that's in place.
Mr. Swadron: I have and I did.
The Chairman: But this particular bill tends to take that away unless it's in bad faith.
Mr. Swadron: Exactly.
The Chairman: So this isn't a true codification of what exists right now.
Mr. Swadron: Right, and what I've heard is, well, you can always take your complaints to the RCMP Public Complaints Commission. I did that once; two years passed and they hadn't gotten around to it.
So we have to correct some wrongs before a young individual becomes eligible for the old age security pension.
The Chairman: So, in effect, if I can maybe summarize what you are saying, we have a bill with a number of obligations on a protectee without a corresponding set of obligations on the part of the other party to the contract, being the commissioner.
Mr. Swadron: Right, and if the structure of the bill is maintained, which I personally don't agree with, certainly at the very least if that is what Parliament decides, that it's going to keep its existing structure, at the very minimum there should be chapter and verse of what is expected of the police officer in corresponding fashion.
The Chairman: Thank you.
Mr. Ramsay, did you have any other questions?
Mr. Ramsay: Yes. I'm very concerned about what we've been hearing for the last two days and what this witness is saying, Mr. Chairman. My concern is heightened by the realization that we're going into clause-by-clause tomorrow on this bill.
Although Mr. Hanger is responsible for any amendments to be brought forward, we discussed that and I hope that -
The Chairman: I will discuss it with the parliamentary secretary. We may have to change that and take a look at a few matters, Mr. Ramsay. I'm not sure we're in a position...but I'll discuss it with Mr. MacLellan.
Mr. Ramsay: Thank you.
You said in your original presentation that it's not witness protection; it's police protection. Are you referring only to clause 19?
Mr. Swadron: No, to the whole bill.
Mr. Ramsay: Could you -
Mr. Swadron: The thrust of the bill is to have the police make up the rules, and perhaps make them up as they go along. There's enough discretion: the police decide whether or not the person is going to be permitted to enter the program; they decide whether or not they're going to disclose the information to others; they decide whether or not the program is going to be terminated to the individual. And there's no accountability. It's all one-sided. It's a unilateral bill.
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Mr. Ramsay: Do you think this bill can be amended to deal with some of these concerns, the majority of your concerns?
We had a witness tell us yesterday that the bill was garbage. That was a pretty strong term to me. Should this bill go back to the drawing board entirely, or can it be amended?
Mr. Swadron: I would personally submit that it should go back to the drawing board. I haven't had enough nerve to tell members of the House of Commons that the bill is garbage, but it certainly doesn't have what it should.
Mr. Ramsay: What I'm asking is, should we be recommending perhaps to the justice department that they take this back and redo the whole thing, or should we be seeking amendments that will improve it?
Mr. Swadron: I would rather see it reworked. That's why I said in the penultimate paragraph of my written presentation that I have other specific questions and concerns about certain sections of the bill, but in this context, such as where I suggest fundamental changes, I wouldn't address them.
In other words, I guess I could go line by line, clause by clause, but I see some very fundamental flaws. Rather than tinker, if I were running the House the Commons, I would submit that it should go back to the drawing board.
Mr. Ramsay: Do you think the flaws are fatal to the bill?
Mr. Swadron: Let's put it this way: Over the last few years, I have - more than any other lawyer in Canada - dealt with these problems, and I say that it has been a mess. I can see that it will be a double mess if this bill is passed in its current form.
We will have people who are vulnerable, who have had a rotten time in the last few years, but they've had an opportunity to do something about it. Now this bill will seal their fate; it will take away their opportunity to do anything about it.
Mr. Ramsay: Do you feel that this bill adequately reflects the value, to the justice system and to the enforcement of law, of witnesses who would be introduced to the program?
Mr. Swadron: Well, certainly it doesn't do them justice. It doesn't do them fairness.
I think it's a bill that would certainly help the police. It will help the government. But it won't help - it will certainly hinder - anyone who gets a raw deal in a witness protection program.
Mr. Ramsay: Of course, we as members of Parliament and as members of the justice committee would be very hesitant to introduce a bill that would create as much of a problem as it is designed to solve, or at least create another problem, whether the seriousness is as severe as perhaps the cure that might occur as a result of the bill.
Mr. Swadron: The cure is worse than the surgery.
I sincerely think, and I submit to you, that it is possible to draft a bill that would remedy most of the concerns that exist now and that will be complementary to the police quest for fair law enforcement and will create many fewer problems than we have now. It is humanly possible, but I think the thrust of the drafting doesn't reflect fairness.
Ms Torsney (Burlington): I apologize for missing some of your testimony, but I understand my questions have not been addressed specifically.
First of all, you talk about some of the problems with existing problems. Are you talking specifically about the RCMP programs, or the other fifteen programs that are currently in existence across Canada?
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Mr. Swadron: I haven't been involved with all of the programs, but probably most of them. What I'm talking about is certainly not peculiar to the RCMP. I think that the disease, if I can call it that, is carried by all of the programs I know.
Ms Torsney: But are your dealings with the RCMP program better than most? That's really what we're dealing with here. Is that fixable if we take in some of your recommendations?
Mr. Swadron: I think that every program is fixable. I guess I take the attitude, in looking at the programs globally, of ``a plague on all of their houses'' until they're fixed.
Ms Torsney: In terms of the RCMP specifically, there is already a code of conduct that they are supposed to be following across all of their operations. Of course, this would be just generally included in terms of all of their operations. But I take it that you would want something very specific on the witness protection program within a code of conduct.
Mr. Swadron: Here's the sense that I get. The workload of witness protection, which has been assigned to the various offices that address that, is back-breaking. So even if there's the best code of conduct in the world, if the most you can collect in an eight-hour day is twenty potatoes and you're told to collect a hundred, some people will go without potatoes.
Ms Torsney: Right. Take the pamphlet you mentioned on page 7 of your brief, which we received last week or earlier this week. The pamphlet idea you mentioned has quite a bit of merit.
There should be some buyer information before -
Mr. Swadron: Absolutely. Consumer protection.
Ms Torsney: I guess I wonder if you would have some ideas from your experiences, particularly on the negative side of programs, for what should be included in -
Mr. Swadron: Absolutely.
Ms Torsney: We probably don't have enough time to go through them all, but if you would like to submit some of those, it would be quite terrific.
There are certain things.... Take the counselling, for instance, in Ontario. We looked at their program when the Hamilton detective was here, I think it was yesterday. They did have counselling as one of the items they did, but clearly, perhaps in your estimation, there isn't enough counselling.
Mr. Swadron: Let's put it this way. This is all a matter of public record.
Were you taking about Mr. Bishop?
Ms Torsney: Yes.
Mr. Swadron: He's a defendant in one of the actions that I'm bringing, along with other Hamilton-Wentworth police officers and the Attorney General of Ontario.
I think there is probably a lot of good in every program, but I don't think they're up to scratch. Maybe they don't have the resources, but I think it's fair to say that most of the programs are equally and consistently lacking.
Ms Torsney: Although it wasn't completely clear yesterday from the Canadian Police Association, it seemed that they wanted to collapse the fifteen programs, plus the RCMP one, into one national program.
Don't you think that some of the issues you've addressed here, in terms of the lack of consistency between what officer A and city A agree to, and what acts across the country are dealing with, would only be exacerbated by such a national program?
Mr. Swadron: I agree. I think there should be a national body that can advise and set standards that could be implemented at the local level and tailored to whatever the local and regional needs are.
Ms Torsney: Maybe if we got this brochure up and running for the national program and the RCMP program...whether or not we can get it completely independent, that would help a lot of the fifteen other programs.
Mr. Swadron: Absolutely.
Ms Torsney: Thank you.
Mr. Ramsay: I would like a point of information. Ms Torsney indicated that she got a brief a week ago.
Ms Torsney: It came in sometime earlier this week.
The Chairman: It was yesterday.
Mr. Swadron: It was sent by facsimile on Monday afternoon, so I don't think anyone had it before then.
Mr. Ramsay: I just got mine today.
Ms Cohen (Windsor - St. Clair): Because you only wrote it on the weekend.
Mr. Swadron: I wrote it on Monday.
Mr. Ramsay: I just got mine after I arrived here this afternoon.
Ms Torsney: You may want to check with your office.
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Mr. Ramsay: This is not the first time. In spite of all the protests and requests and begging - maybe I should beg - to have them as soon as possible, normally I get them when I arrive here.
Ms Torsney: My constituents say that if all those things don't work, you should cry.
Mr. Ramsay: I was just wondering if there were special privileges for those on the government side.
Ms Torsney: No.
A voice: I think we should remove that from the record.
Mr. Ramsay: I'm sure that there aren't, Mr. Chairman.
The Chairman: I'm advised by the clerk that they were all sent yesterday. I can tell you,Mr. Ramsay, that I have mine, with the letter from Mr. Dupuis, which is dated Tuesday, October 24, 1995, and says ``To all members''. There was a copy of the brief attached. It's stamped with my office receipt, which says October 24, 1995.
Mr. Ramsay: I'll check my office to see if I have a similar document.
The Chairman: Sure.
Mr. Ramsay: My staff are just as good as yours, Mr. Chairman. When I pick up my file, everything is on it and ready to go. Yet it wasn't there. So I'll check one more time.
The Chairman: Please.
Mr. Ramsay: I'd just like to ask the witness this. Again, I can't tell you how much I appreciate your input, because you're dealing with it.
I do know this: you're on one side; the police are on the other side. Although the act represents their interests, a document that would represent your interests, in terms of your feelings about this issue, may not be really what we're looking for either. In other words, I'm talking about perhaps an extreme view, if I could put it that way, represented by the police in this document and in what you have presented to us.
So I'm aware of that. Yet, at the same time, we need the kind of input that direct experiences with these programs can give us.
Have you had any experience or do you know of anything about the witness protection legislation in the United States or Australia that Mr. Wappel looked at?
Mr. Swadron: I have received telephone calls from protected witnesses in the United States. Their complaints have been as meaningful to me as complaints of Canadians. I don't know that the United States Marshal's office is a good plan to follow.
I might say that I have negotiated witness protection arrangements. I have had some positive results in dealing with police forces.
I don't come here to say that police forces are bad. I think police forces are good and very necessary. I think this is an area in which, by default, they have been backed into dealing with this because there hasn't been a mechanism to handle it.
I say that they're not a good choice for administering something like this. But certainly I think there definitely must be police input in the administration, but there should not be only police input; it should be better balanced.
Mr. Ramsay: Okay. I think from our experience with police forces, including the RCMP, we have many good, high-standard police forces with very credible police officers serving our country.
Mr. Swadron: Absolutely.
Mr. Ramsay: I'd like to ask you this. Have you been contacted by the Solicitor General's office or the office of the Minister of Justice for any input into this bill?
Mr. Swadron: No, not at all. I was contacted by Mr. Wappel, whose office, I understand, suggested to the clerk of this committee that I be invited to testify. I have been contacted by members of Parliament of different stripes to look into various cases. But, no, I haven't been contacted by Justice or the Solicitor General.
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Mr. Ramsay: Did you have an opportunity to examine Mr. Wappel's private member's bill?
Mr. Swadron: I did.
Mr. Ramsay: What's your opinion of that bill?
Mr. Swadron: I don't think it's as bad as this one. I think that he also would take away the absolute right to sue, which I think is just an immeasurable mistake.
There are lots of people who shouldn't be suing, but that's why we have courts. People who shouldn't be suing are told by the courts that they don't have a case.
But every citizen should have his right to a day in court. For a protected witness to be so upset that he or she has to go to the courts is almost to betray their well-being. That's because they have to come forward. They ask the lawyer how they protect themselves and, at the same time, enforce their rights?
You do that by a pseudonym. I swear affidavits that don't say where the person is. I have to tailor court documents in ways that are generally not acceptable, but the courts go along with it.
My office is a clearing-house. If someone wants to send mail or Christmas cards to protected witnesses, they send it me and I send it on. These are chores that have generally been handled by police forces, but if you're suing the police force, you can't ask them to cooperate in this way.
Half of my files are in my head. I don't have the address of these people in the files, and they keep changing their names. I don't know who's who. I think John Doe is a real person now.
Mrs. Barnes: Just for the record, I also have the clerk's note of October 24. It is date-stamped by my office as also received on that date.
I do have sympathy with our witness on this clause 19 about breach of contract and negligence.
I'm wondering something with respect to your overall comments. I think at the beginning you were saying that progress on having a bill is a good thing. Then, in response to questioning fromMr. Ramsay, you sort of said that no bill is better than a bad bill.
If this clause 19 was repaired, would that be a sufficient remedy?
Mr. Swadron: I don't think so.
Mrs. Barnes: That's all I need to know.
Mr. Swadron: I think that's a glaring error.
I think a bill is better than no bill, because you can put basic, minimum human rights in there that, in some cases, haven't been respected so far.
The very fact that Parliament is paying attention to this, particularly this week - I'm grateful as a citizen of this country, when there are many who would consider that there are far more important things to our country. The members have come here to discuss what, to me, is a very important topic. If I didn't have it, I might be a rich lawyer.
The Chairman: Thank you, Mrs. Barnes.
Anything else, Mr. Ramsay?
Mr. Ramsay: This is just for the record. I think we've covered this. I don't know of any other person, other than a child, who is more vulnerable than a person whose life is threatened or they're threatened with physical harm or injury and who is under one of these protection programs. They're absolutely vulnerable to their handler.
Mr. Swadron: Thank you, sir, for saying that. I appeared before this committee probably more than 20 years ago. I've spent my whole career dealing with laws relating to vulnerable people. I wrote the mental health acts in half of Canada and was a consultant to the rest of the provinces. My whole career is dealing with vulnerable people, whether it's the aged, children, or mentally disordered persons. I agree with you that these are at least as vulnerable as the most vulnerable.
Mr. Ramsay: I'm hoping that the minister will examine the concerns that have been raised not only by yourself, but those that were raised yesterday.
I recognize - I want it on the record - that the concern raised by the members from the Canadian Police Association was primarily the result of them believing that this was going to be a national program rather than just the program codified as operated by the RCMP.
I want to thank you. I have no further questions.
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The Chairman: Thank you, Mr. Ramsay. I have no one else on the list from the government.
Thank you, Mr. Swadron. It was most enlightening what you had to tell us today.
The meeting is adjourned until tomorrow at 9:30 a.m. As far as I know, we're going with clause-by-clause unless you're otherwise notified.
Mr. Ramsay: What witness is appearing tomorrow, Mr. Chairman?
The Chairman: Tomorrow at 9:30 a.m. we have Sharon Rosenfeldt, the president of Victims of Violence; Steve Sullivan from the Canadian Resource Centre for Victims of Crime; and Professor Ed Ratushny from the faculty of law at the University of Ottawa.
Mr. Ramsay: Are there briefs available for those witnesses?
The Chairman: No briefs were received.
Mr. Knutson (Elgin - Norfolk): What time is clause-by-clause?
The Chairman: At 11:30 a.m.
Thank you. The meeting is adjourned.