Safer Witnesses Act (S.C. 2013, c. 29)
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Assented to 2013-06-26
Safer Witnesses Act
S.C. 2013, c. 29
Assented to 2013-06-26
An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act
SUMMARY
This enactment amends the Witness Protection Program Act to, among other things,
(a) provide for the designation of a provincial or municipal witness protection program so that certain provisions of that Act apply to such a program;
(b) authorize the Commissioner of the Royal Canadian Mounted Police to coordinate, at the request of an official of a designated provincial or municipal program, the activities of federal departments, agencies and services in order to facilitate a change of identity for persons admitted to the designated program;
(c) add prohibitions on the disclosure of information relating to persons admitted to designated provincial and municipal programs, to the means and methods by which witnesses are protected and to persons who provide or assist in providing protection;
(d) specify the circumstances under which disclosure of protected information is nevertheless permitted;
(e) exempt a person from any liability or other punishment for stating that they do not provide or assist in providing protection to witnesses or that they do not know that a person is protected under a witness protection program;
(f) expand the categories of witnesses who may be admitted to the federal Witness Protection Program to include persons who assist federal departments, agencies or services that have a national security, national defence or public safety mandate and who may require protection as a result;
(g) allow witnesses in the federal Witness Protection Program to end their protection voluntarily;
(h) extend the period during which protection may, in an emergency, be provided to a person who has not been admitted to the federal Witness Protection Program; and
(i) make a consequential amendment to another Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Safer Witnesses Act.
1996, c. 15WITNESS PROTECTION PROGRAM ACT
2. The long title of the Witness Protection Program Act is replaced by the following:
3. (1) The definition “protection” in section 2 of the Act is replaced by the following:
“protection”
« protection »
“protection” may include relocation, accommodation and change of identity as well as counselling and financial support for those or any other purposes in order to ensure the security of a person or to facilitate the person’s re-establishment or becoming self-sufficient;
(2) The definitions bénéficiaire and programme in section 2 of the French version of the Act are replaced by the following:
« bénéficiaire »
“protectee”
bénéficiaire Personne jouissant de la protection du Programme.
« Programme »
“Program”
Programme Le Programme de protection des témoins instauré par l’article 4.
(3) The definition “witness” in section 2 of the Act is amended by striking out “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) a person who has assisted or has agreed to assist a federal security, defence or safety organization and who may require protection because of a risk to his or her security arising in relation to the assistance, or
(c) a person who, because of their relationship to or association with a person referred to in paragraph (a) or (b), may also require protection for the reasons referred to in that paragraph.
(4) Section 2 of the Act is amended by adding the following in alphabetical order:
“designated program”
« programme désigné »
“designated program” means a provincial or municipal program that is set out in the schedule;
“designated program protectee”
« bénéficiaire d’un programme désigné »
“designated program protectee” means a person who is receiving protection under a designated program;
“federal security, defence or safety organization”
« organisation fédérale de sécurité ou de défense »
“federal security, defence or safety organization” means a federal department, agency or service that has a mandate relating to national security, national defence or public safety matters;
“protected person”
« personne protégée »
“protected person” means a current or former protectee or a current or former designated program protectee;
“provincial official”
« fonctionnaire provincial »
“provincial official” means, with respect to a designated program, the official designated under subsection 10.1(2) or (3);
“substantial harm”
« préjudice sérieux »
“substantial harm” means any injury, whether physical or psychological, that interferes in a substantial way with a person’s health or well-being;
4. The Act is amended by adding the following after section 2:
HER MAJESTY
Marginal note:Binding on Her Majesty
2.1 This Act is binding on Her Majesty in right of Canada or a province.
Marginal note:2000, c. 24, s. 71
5. Section 3 of the Act is replaced by the following:
Marginal note:Protection of persons
3. The purpose of this Act is to promote law enforcement, national security, national defence and public safety by facilitating the protection of persons
(a) who are involved directly or indirectly in providing assistance in law enforcement matters in relation to
(i) activities conducted by the Force, other than activities arising under an arrangement entered into under section 20 of the Royal Canadian Mounted Police Act, or
(ii) activities conducted by any law enforcement agency or international criminal court or tribunal in respect of which an agreement or arrangement has been entered into under section 14;
(b) who are involved directly or indirectly in providing assistance to a federal security, defence or safety organization; or
(c) who have been admitted to a designated program.
Marginal note:2000, c. 24, s. 72
6. (1) The portion of subsection 6(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Admission to Program
6. (1) A witness shall not be admitted to the Program unless
(a) a recommendation for the admission has been made by a law enforcement agency, a federal security, defence or safety organization or an international criminal court or tribunal;
(2) Subsection 6(2) of the Act is replaced by the following:
Marginal note:Emergency situations
(2) Despite subsection (1), the Commissioner may, in a case of emergency, and for a period of not more than 90 days, provide protection to a person who has not entered into a protection agreement. The Commissioner may, if the emergency persists, provide protection for one additional period of not more than 90 days.
7. (1) The portion of section 7 of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Factors to be considered
7. The Commissioner shall consider the following factors in determining whether a witness should be admitted to the Program:
(2) Paragraphs 7(c) and (d) of the Act are replaced by the following:
(c) the nature of the inquiry, investigation or prosecution involving the witness — or the nature of the assistance given or agreed to be given by the witness to a federal security, defence or safety organization — and the importance of the witness in the matter;
(d) the value of the witness’s participation or of the information, evidence or assistance given or agreed to be given by the witness;
8. Subparagraph 8(b)(i) of the Act is replaced by the following:
(i) to give the information or evidence or participate as required in relation to the inquiry, investigation or prosecution — or to give to the federal security, defence or safety organization the assistance — in respect of which protection is provided under the agreement,
9. The Act is amended by adding the following after section 8:
Marginal note:Request for termination of protection
8.1 (1) A protectee may request that the Commissioner terminate the protection provided to the protectee.
Marginal note:Termination
(2) The Commissioner shall meet in person with the protectee to discuss their request and shall terminate the protection provided to them if, either at the meeting or afterwards, they confirm their request in the form and manner that the Commissioner considers appropriate in the circumstances.
Marginal note:Effective day
(3) The termination takes effect on the day on which the request is confirmed or on a later day that the protectee may specify.
Marginal note:2000, c. 24, s. 73
10. Paragraph 10(a) of the Act is replaced by the following:
(a) to refuse to admit a witness to the Program, the Commissioner shall provide the body that recommended the admission or, in the case of a witness recommended by the Force, the witness, with written reasons to enable the body or witness to understand the basis for the decision; or
11. The Act is amended by adding the following after section 10:
DESIGNATED PROGRAMS
Marginal note:Designation — program
10.1 (1) At the request of a provincial minister who is responsible for a provincial or municipal program that facilitates the protection of witnesses and on the Minister’s recommendation, the Governor in Council may, by regulation, designate the program by adding its name to the schedule.
Marginal note:Designation — provincial official
(2) In his or her request, the provincial minister shall designate an official of the applicable province or municipality to be the program’s provincial official.
Marginal note:Change of provincial official
(3) The provincial minister may replace the provincial official by designating another official of the applicable province or municipality and shall notify the Minister without delay of any such replacement.
Marginal note:Deletion from schedule
10.2 On the Minister’s recommendation, the Governor in Council may, by regulation, delete the name of a program from the schedule.
Marginal note:Coordination — change of identity
10.3 (1) At a provincial official’s request, the Commissioner shall coordinate the activities of federal departments, agencies and services in order to facilitate a change of identity for a designated program protectee.
Marginal note:Required information
(2) The provincial official shall provide any information that the Commissioner requires for the purpose of subsection (1).
12. Section 11 of the Act and the heading before it are replaced by the following:
PROTECTION OF INFORMATION
Marginal note:Disclosures prohibited
11. (1) Subject to sections 11.1 to 11.5, no person shall directly or indirectly disclose
(a) any information that reveals, or from which may be inferred, the location or a change of identity of a person that they know is a protected person;
(b) any information about the means and methods by which protected persons are protected, knowing that or being reckless as to whether the disclosure could result in substantial harm to any protected person; or
(c) the identity and role of a person who provides protection or directly or indirectly assists in providing protection, knowing that or being reckless as to whether the disclosure could result in substantial harm to
(i) that person,
(ii) a member of that person’s family, or
(iii) any protected person.
Marginal note:Means and methods of protection
(2) For the purpose of paragraph (1)(b), information about the means and methods by which protected persons are protected includes information about
(a) covert operational methods used to provide protection;
(b) covert administrative methods used to support the provision of protection;
(c) any means used to record or exchange confidential information relating to protection or used to gain access to that information; and
(d) the location of facilities used to provide protection.
Marginal note:Non-application — protected or other person
11.1 Paragraph 11(1)(a) does not apply to
(a) a protected person who discloses information about themselves, if the disclosure could not result in substantial harm to any protected person; or
(b) a person who discloses information that was disclosed to them by a protected person, if the disclosure could not result in substantial harm to any protected person.
Marginal note:Exception — Commissioner
11.2 (1) The Commissioner may make a disclosure described in paragraph 11(1)(a) that relates to
(a) a protectee, for the purpose of providing protection to them; or
(b) a designated program protectee, for the purpose of facilitating a change of identity for them.
Marginal note:Other exceptions
(2) The Commissioner may make a disclosure described in paragraph 11(1)(a) that relates to a protected person if
(a) the protected person consents to the disclosure;
(b) the protected person has previously made such a disclosure or acted in a manner that results in such a disclosure;
(c) the Commissioner has reasonable grounds to believe that the disclosure is essential for the purposes of the administration of justice, including
(i) investigating a serious offence if there is reason to believe that the protected person can provide material information or evidence in relation to, or has been involved in the commission of, the offence,
(ii) preventing the commission of a serious offence, or
(iii) establishing the innocence of a person in criminal proceedings;
(d) the Commissioner has reasonable grounds to believe that the disclosure is essential for the purposes of national security or national defence; or
(e) the disclosure is made in accordance with an agreement or arrangement entered into under subsection 14.1(1).
Marginal note:Designated program protectee
(3) The Commissioner is only permitted to make a disclosure under paragraph (2)(c) that relates to a current or former designated program protectee if, in the Commissioner’s opinion, the urgency of the situation requires the disclosure or if the appropriate provincial official consents to it.
Marginal note:Exception — other information
(4) The Commissioner may make a disclosure described in paragraph 11(1)(b) or (c)
(a) that relates to the Program or a person associated with it, if the Commissioner has reasonable grounds to believe that the disclosure is essential for the purposes of the administration of justice, national securi-ty, national defence or public safety; and
(b) that relates to a current or former designated program or a person associated with it, if the Commissioner has reasonable grounds to believe that the disclosure is essential for the purposes of national security or national defence.
Marginal note:Prior notification — protected person
(5) The Commissioner shall, before making a disclosure under paragraph (2)(b), (c) or (e), take reasonable steps to notify the protected person and allow them to make representations concerning the matter.
Marginal note:Non-application
(6) Subsection (5) does not apply if, in the Commissioner’s opinion, the notification would impede the investigation of an offence, could compromise national security, national defence or public safety or could result in substantial harm to any protected person or to any person providing protection or directly or indirectly assisting in providing protection.
Marginal note:Prior notification — provincial official
(7) The Commissioner shall notify the appropriate provincial official of a disclosure under paragraph (2)(a) or (b) that relates to a current or former designated program protectee before the disclosure is made.
Marginal note:Notification — provincial official
(8) The Commissioner shall notify the appropriate provincial official of a disclosure referred to in subsection (3) as soon as feasible after making it, if it was made on the basis of the urgency of the situation.
Marginal note:Exception — provincial official
11.3 (1) The appropriate provincial official may make a disclosure described in paragraph 11(1)(a) that relates to a designated program protectee for the purpose of providing protection to them.
Marginal note:Other exceptions
(2) The appropriate provincial official may make a disclosure described in paragraph 11(1)(a) that relates to a current or former designated program protectee if
(a) the current or former designated program protectee consents to the disclosure;
(b) the current or former designated program protectee has previously made such a disclosure or acted in a manner that results in such a disclosure;
(c) the provincial official has reasonable grounds to believe that the disclosure is essential for the purposes of the administration of justice, including
(i) investigating a serious offence if there is reason to believe that the current or former designated program protectee can provide material information or evidence in relation to, or has been involved in the commission of, the offence,
(ii) preventing the commission of a serious offence, or
(iii) establishing the innocence of a person in criminal proceedings; or
(d) the disclosure is made in accordance with an agreement or arrangement entered into under subsection 14.1(2).
Marginal note:Exception — other information
(3) A provincial official may make a disclosure described in paragraph 11(1)(b) or (c) that relates to their designated program or to a person associated with it if the provincial official has reasonable grounds to believe that the disclosure is essential for the purposes of the administration of justice or public safety.
Marginal note:Prior notification — designated program protectee
(4) The provincial official shall, before making a disclosure under any of paragraphs (2)(b) to (d), take reasonable steps to notify the current or former designated program protectee and allow them to make representations concerning the matter.
Marginal note:Non-application
(5) Subsection (4) does not apply if, in the provincial official’s opinion, the notification would impede the investigation of an offence, could compromise public safety or could result in substantial harm to any current or former designated program protectee or to any person providing protection or directly or indirectly assisting in providing protection.
Marginal note:Exception — agreement or arrangement
11.4 (1) A party, other than the Commissioner or a provincial official, who has entered into an agreement or arrangement under subsection 14.1(1) or (2) may make a disclosure described in paragraph 11(1)(a) in accordance with the agreement or arrangement.
Marginal note:Prior notification
(2) The party shall, before making a disclosure under subsection (1), take reasonable steps to notify the protected person and allow them to make representations concerning the matter.
Marginal note:Further disclosures prohibited
11.5 (1) Subject to this section, a person to whom information is disclosed under sections 11.2 to 11.4 is not authorized to disclose that information to anyone else.
Marginal note:Exception — Commissioner’s request
(2) A person may, for the purpose of providing protection to a protectee or of changing a designated program protectee’s identity, disclose that information to the extent that is necessary to give effect to a Commissioner’s request that is made for that purpose.
Marginal note:Exception — provincial official’s request
(3) A person may, for the purpose of providing protection to a designated program protectee, disclose that information to the extent that is necessary to give effect to a provincial official’s request that is made for that purpose.
Marginal note:Court — confidentiality
(4) Once a disclosure described in subsection 11(1) is made to a court, the court shall take any measures that it considers necessary to ensure that the information remains confidential.
Marginal note:Exception — court
(5) A court may make a disclosure described in subsection 11(1) for the purpose of preventing a miscarriage of justice, but in doing so it shall disclose only the information that it considers necessary for that purpose and shall disclose the information only to persons who require it for that purpose.
13. (1) The portion of section 12 of the Act before paragraph (a) is replaced by the following:
Marginal note:Factors to be considered
12. The Commissioner or a provincial official shall consider the following factors in determining whether to make a disclosure under section 11.2 or 11.3, as the case may be, except for a disclosure under paragraph 11.2(2)(e) or 11.3(2)(d):
(2) Paragraph 12(b) of the Act is replaced by the following:
(b) the danger or adverse consequences of the disclosure in relation to a person and the integrity of the Program or of a designated program, as the case may be;
14. Section 13 of the Act is replaced by the following:
Marginal note:Informer privilege
12.1 Informer privilege at common law prevails over any authority to disclose information provided under this Act.
Marginal note:Claim — new identity
13. A person shall not be liable or otherwise punished for making a claim that the new identity of a protected person, whose identity has been changed as a consequence of the protection provided under the Program or under a designated program, is and has been the protected person’s only identity.
Marginal note:Claim — providing protection
13.1 A person who provides protection or directly or indirectly assists in providing protection under the Program or under a designated program shall not be liable or otherwise punished for making a claim that they do not
(a) provide or assist in providing protection; or
(b) know a protected person or know that a person is a protected person.
15. The heading before section 14 of the English version of the Act is replaced by the following:
AGREEMENTS AND ARRANGEMENTS
16. The Act is amended by adding the following after section 14:
Marginal note:Agreement or arrangement — Commissioner
14.1 (1) The Commissioner may enter into an agreement or arrangement with a federal department, agency or service regarding disclosures — that are described in paragraph 11(1)(a) and that relate to a current or former protectee — to each other or to another federal department, agency or service or any provincial department, agency or service.
Marginal note:Agreement or arrangement — provincial official
(2) A provincial official may enter into an agreement or arrangement with a provincial department, agency or service of the same province as that official regarding disclosures — that are described in paragraph 11(1)(a) and that relate to a current or former designated program protectee — to each other or to another department, agency or service of the same province or any federal department, agency or service.
Marginal note:Factors to be considered
(3) The Commissioner or a provincial official shall consider the factors set out in paragraphs 12(a) to (e) in determining whether to enter into an agreement or arrangement and in establishing its terms.
Marginal note:Mandatory terms
(4) An agreement or arrangement shall include the following terms:
(a) a party is not permitted to make a disclosure unless it is for a purpose that is essential for the administration of justice or public safety and that is specified in the agreement or arrangement; and
(b) the parties shall take whatever steps are necessary, including any steps specified in the agreement or arrangement, to protect information that is disclosed from being disclosed beyond what is strictly necessary in the circumstances.
Marginal note:Multiple departments, agencies or services
(5) More than one department, agency or service may be party to a single agreement or arrangement.
Marginal note:2000, c. 24, s. 75(E)
17. Section 15 of the Act is replaced by the following:
Marginal note:Delegation — Commissioner
15. (1) The Commissioner may delegate to any member of the Force any of his or her powers, duties and functions under this Act, except the power to delegate under this section and the power to
(a) determine whether to disclose information under any of paragraphs 11.2(2)(b) to (d) and subsection 11.2(4);
(b) enter into an agreement or arrangement under subsection 14.1(1);
(c) designate an Assistant Commissioner to be responsible for the Program; and
(d) determine whether to admit a witness to the Program, to change the identity of a protectee and to terminate the protection provided to a protectee.
Marginal note:Assistant Commissioner
(2) The Commissioner may designate an Assistant Commissioner to be responsible for the Program and, despite paragraph (1)(d), may delegate the powers set out in that paragraph to that Assistant Commissioner.
Marginal note:Delegation — provincial official
15.1 A provincial official may delegate to any official of the same province or municipality any of his or her powers, duties and functions under this Act, except the power to
(a) determine whether to disclose information under paragraphs 11.3(2)(b) and (c) and subsection 11.3(3); and
(b) enter into an agreement or arrangement under subsection 14.1(2).
18. Section 17 of the Act is replaced by the following:
Marginal note:Policy directions
17. The Commissioner shall give effect to any directions that the Minister may make concerning matters of general policy that are related to the administration of the Program and to the coordination of activities under this Act respecting a designated program.
19. Section 18 of the Act is replaced by the following:
Marginal note:Cooperation
18. Subject to the confidentiality requirements imposed by any other Act of Parliament, federal departments, agencies and services shall, to the extent possible, cooperate with the Commissioner and persons acting on his or her behalf in the administration of the Program and of activities under this Act respecting a designated program.
Marginal note:Terminology
20. The French version of the Act is amended by replacing “programme” with “Programme” in the following provisions:
(a) section 1;
(b) section 4;
(c) section 7;
(d) subparagraph 8(b)(iv);
(e) paragraph 9(1)(a);
(f) section 14;
(g) subsection 16(1); and
(h) paragraph 20(a).
21. The Act is amended by adding, after section 23, the schedule set out in the schedule to this Act.
R.S., c. A-1CONSEQUENTIAL AMENDMENT TO THE ACCESS TO INFORMATION ACT
22. Schedule II to the Access to Information Act is amended by adding, in alphabet-ical order, a reference to
Witness Protection Program Act
Loi sur le Programme de protection des témoins
and a corresponding reference to “section 11”.
COORDINATING AMENDMENT
Marginal note:Bill C-42
23. If Bill C-42, introduced in the 1st session of the 41st Parliament and entitled the Enhancing Royal Canadian Mounted Police Accountability Act, receives royal assent, then, on the first day on which both section 35 of that Act and section 12 of this Act are in force, paragraphs 45.4(1)(b) and (c) of the Royal Canadian Mounted Police Act are replaced by the following:
(b) information the disclosure of which is described in subsection 11(1) of the Witness Protection Program Act;
COMING INTO FORCE
Marginal note:Order in council
24. The provisions of this Act, other than section 23, come into force on a day or days to be fixed by order of the Governor in Council.
SCHEDULE(Section 21)
SCHEDULE(Sections 10.1 and 10.2)DESIGNATED PROGRAMS
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