BETWEEN:
and
REASONS FOR ORDER[1]
[1] Mr. Doe had been placed in the Witness Protection Program. He brought judicial review proceedings against the Assistant Commissioner of the RCMP's decision to terminate his protection.
[2] The Court granted an order which permitted these proceedings to be brought under the name "John Doe".
[3] Due to the nature of these proceedings, the facts described in these Reasons will be brief and circumspect.
BACKGROUND
[4] The Applicant, the owner of a personal service business, was never engaged in or (other than innocently) caught up in any criminal activities. As a result of events surrounding an investment he was to make, he became aware of criminal activities which he reported to the local police.
[5] At the request of the local police, he agreed to assist them in securing evidence for use in the conviction of those engaged in the criminal activity. Because of the serious nature of the crime and the violent history of the persons who were or might be engaged in the crime, the local police agreed to put the Applicant into the witness protection program.
[6] The Applicant and the local police entered into a written agreement to cover this arrangement. No copy of this agreement was before the Court, nor apparently was it ever before the decision maker in this matter - the Assistant Commissioner (Federal and International Operations) of the RCMP, the delegate of the Commissioner.
[7] The Applicant, unlike many in a witness protection program, was an innocent bystander to the crime and had nothing to gain personally from assisting the police. Having completed his part of the bargain by assisting the police and prosecutors, he was moved out of the jurisdiction and established under a new identity but carried on the same business as he had previously.
[8] As the result of arrangements between the local police and the RCMP, his witness protection was transferred to the RCMP and he came under the Witness Protection Program Act, S.C. 1996, c. 15 ("Act"). This was apparently necessary so that the change of identity could be carried out at the national level. However, there was no written agreement between the RCMP and the Applicant.
[9] After the Applicant secured his new identity and started up his new business, he engaged in some advertising in local media and on the internet. As a result of the media advertising, the local police, on the advice of the RCMP, advised the Applicant that such advertising could be a breach of the witness protection agreement. The Applicant terminated this advertising.
[10] The Applicant had also advertised on the internet. It was the Applicant's understanding from contact with his ISP (Internet Service Provider) that his website was also terminated. It turned out that this was not the case because the site remained cached in the ISP system and could be obtained through a website search.
[11] As a result of what was perceived to be a failure to cease advertising, the local police gave notice to the Applicant that they were terminating their witness protection services.
[12] On October 8, 2004, the Assistant Commissioner gave notice of his intention to terminate the Applicant's protection under the federal Witness Protection Program because he had compromised his own security.
[13] The power to terminate witness protection is found in s. 9 of the Act:
| 9. (1) The Commissioner may terminate the protection provided to a protectee if the Commissioner has evidence that there has been
(a) a material misrepresentation or a failure to disclose information relevant to the admission of the protectee to the Program; or
(b) a deliberate and material contravention of the obligations of the protectee under the protection agreement. |
9. (1) Le commissaire peut mettre fin à la protection d'un bénéficiaire dans les cas où il est démontré que :
a) des renseignements importants touchant à l'admission au programme de celui-ci ne lui ont pas été communiqués ou l'ont été d'une façon erronée;
b) l'intéressé a, délibérément et gravement, contrevenu aux obligations énoncées dans l'accord de protection. |
[14] The Applicant exercised his right to make representations to prevent termination but to no avail. On March 23, 2005, the Assistant Commissioner gave notice that by reason of the Applicant's failure to adequately address the reasons for termination set forth in the October 8, 2004 notice, the protection accorded to the Applicant pursuant to the agreement between him and the local police was terminated.
[15] The record before the Court indicates that the RCMP invited the local police to make representations. Those representations contain details of the alleged breach by the Applicant of the witness protection agreement with the local police.
[16] There is no evidence that the Applicant received a copy of the local police's submissions and allegations nor that he was even aware they existed. Counsel for the Applicant advised the Court that those submissions were never given to him or the Applicant. This statement coming from an officer of the Court, I accept as a fact.
[17] Two weeks after receipt of the local police's submissions, the Assistant Commissioner gave final notice of termination of protection. It is this decision which is the subject of this judicial review.
ANALYSIS
[18] The Respondent asserts that the Assistant Commissioner had the authority to terminate protection pursuant to s. 9(1)(b):
| 9. (1) (b) a deliberate and material contravention of the obligations of the protectee under the protection agreement. |
9. (1) b) l'intéressé a, délibérément et gravement, contrevenu aux obligations énoncées dans l'accord de protection. |
[19] The Respondent argues that the contravention of the obligation is that found in s. 8(b)(iv):
| 8. (b) (iv) to refrain from activities that constitute an offence against an Act of Parliament or that might compromise the security of the protectee, another protectee or the Program, and |
8. (b) (iv) de s'abstenir de participer à une activité qui constitue une infraction à une loi fédérale ou qui compromet le programme ou sa sécurité ou celle d'un autre bénéficiaire,
(underlined for emphasis) |
[20] The Respondent further asserts that it is not for the Courts but for the RCMP to determine what actions might "compromise the security of the protectee".
Standard of Review
[21] With regard to the Respondent's position, within limits, the Respondent is correct. The RCMP has the expertise, experience and mandate to make the determination as to what compromises security. However, the issues in this judicial review cover more than that determination. Even that determination, for which patent unreasonableness would likely be the standard, must be based on facts, and relevant matters cannot be ignored (Federal Courts Act s. 18.1(4)).
[22] However, the central problem with the Assistant Commissioner's decision is the manner in which the decision process was conducted - the fairness of the process. As that is a matter of procedural fairness, the standard of review is correctness.
[23] I would add further that the issues in s. 9(1)(b) are primarily matters of law. The determination of the "obligations of the protectee under the protection agreement" as well as whether there was a "deliberate and material contravention" are more closely aligned with legal issues. Because the determination of those issues can be so important to a protectee's security and they engage traditional legal analysis of breach of agreement (as well as administrative discretion), the standard of review should be correctness. The Commissioner's discretion is preserved as to the issue of whether he should terminate if there is a proper legal foundation.
Merits of Judicial Review
[24] As to the matter of determining the content of procedural fairness, the Supreme Court of Canada in Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, [2002] S.C.J. No. 3 (QL) set out five (5) non-exhaustive factors for consideration:
1. the nature of the decision made and the procedures followed in making it, that is, "the closeness of the administrative process to the judicial process;
2. the role of the particular decision within the statutory legislative scheme;
3. the importance of the decision to the individual affected;
4. the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and
5. the choice of procedure made by the agency itself.
[25] While factors 4 and 5 are not of particular relevance in this case, the first three factors are highly relevant. As indicated earlier, there are aspects of the Commissioner's function which more closely parallel the judicial process. The decision to terminate obviously plays a critical role in the purpose and intent of the statutory scheme as it has the effect of ending that scheme as regards the Applicant.
[26] However, the third factor is perhaps the most critical. Regard must be had for the potential consequences to the protectee of termination of protection. The protectee is in the most vulnerable state - his utility to the authorities is terminated, he is a burden to his protectors, yet he is dependent on that protection for his security. He has honoured his bargain and is now totally dependent on the protectors to fulfil their end of the bargain. Termination of protection potentially exposes him to physical harm. His life and security could be at risk.
[27] Therefore, the expectation and requirements of procedural fairness are high.
[28] In this instance, the Assistant Commissioner allowed the local police to make submissions adverse to the Applicant on the very points in issue. The Applicant was given no opportunity to respond to those adverse comments and it was only after the local police submissions were received (and shortly thereafter) that the Assistant Commissioner terminated protection. There is a clear link between these submissions and the impugned decision.
[29] In itself, this failure to permit the Applicant to respond is such a clear contravention of the basic principles of fairness and natural justice that it is sufficient to quash the Assistant Commissioner's decision. Therefore, on that basis, I will do so.
[30] There are other disturbing aspects of the process of terminating the Applicant's protection. A critical missing piece of the process was the protection agreement between the local police and the Applicant.
[31] There was no direct protection agreement between the Commissioner and the Applicant. However, a protection agreement can be entered into by or on behalf of the witness with the Commissioner (s. 6(1)(c)). It would appear that everyone acted as if the protection agreement with the local police also engendered an agreement between the RCMP and the Applicant, at least for the purposes of imposing obligations on the protectee.
[32] Section 8 of the Act imports statutory terms into the obligations of the protectee owed under the agreement with the local police. It would be relevant to consider the actual terms of the local police protection agreement and how its terms and its creation might affect the statutory terms and whether there had been a breach of those statutory terms.
[33] In the instant case, it would have been relevant - certainly as to the issues of "deliberateness", "material", and "obligations" - to consider the local police protection agreement and whether anyone had turned their minds to how this protectee could engage in business without some form of advertising.
[34] It is clear from the record that the Assistant Commissioner failed to consider any of these matters and the legal criteria related to them. As such, he failed to consider relevant matters, a reviewable error.
[35] The purpose of the witness protection program is an important one for the administration of justice. It is important that those in the program and those who might enter it have confidence in all aspects of the program including fair procedures. This is a case of not only doing right but appearing to do right.
[36] In this instance, the Respondent failed to meet its duty of procedural fairness and failed to consider matters relevant to its determination.
CONCLUSION
[37] For these reasons, the judicial review is granted with costs. The Assistant Commissioner's decision terminating witness protection is quashed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1151-05
STYLE OF CAUSE: JOHN DOE
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 13, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
APPEARANCES:
| Mr. Marshall Swadron Ms. Ameena Sultan
|
|
| Ms. Nancy Noble Ms. Natalie Henein
|
SOLICITORS OF RECORD:
| SWADRON ASSOCIATES Barristers & Solicitors Toronto, Ontario
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |
[1] The parties have confirmed that these Reasons now made public contain no confidential information.