Court of Appeal Criticizes Witness Protection Program

Action dismissed but case to continue to trial against Canada

February 13, 2009 - Toronto - In a decision released today, the Ontario Court of Appeal upheld the summary dismissal of protected witness John Doe’s action against the province. However, the Court drew attention to significant flaws in the manner in which the province administers its witness protection program. This leaves the public with the hope of much needed change at the provincial level and Mr. Doe with his action against the federal government intact. Mr. Doe entered the provincial and federal witness protection programs after he testified against a loan shark and former Hells Angels member who tried to extort funds from him by threatening bodily harm.

After being terminated from both programs following an alleged breach of his security arrangements, he was readmitted into the federal program following a successful judicial review application. A similar proceeding was not available against Ontario because its program is governed by contract as opposed to legislated standards. Mr. Doe also brought a civil action against Ontario and Canada, but Mr. Justice Perell granted summary judgment in favour of Ontario. His reasons reflected the differences between the federal and provincial programs, as he found that Ontario fulfilled its limited contractual obligations to Mr. Doe. The Court of Appeal acknowledged that Ontario may have breached its obligations to Mr. Doe, but found that he would not be entitled to a remedy in any event.

Importantly, the Court of Appeal recognized that “there are clear problems with the Ontario Witness Protection Program as it is currently administered.” Writing for a three member panel, Madam Justice Feldman criticized the nature, timing and content of Ontario’s non-negotiable witness protection agreement. She further noted that because the program is designed to assist people in a very vulnerable situation, the program should operate efficiently, effectively and unambiguously. While this critique does not apply to the RCMP’s program (because it is governed by the federal Witness Protection Act), Mr. Doe recently set his action down for trial against Canada. A key feature of that action is that a federal agency failed to update its records such that Mr. Doe’s original name was linked to the address to which he was relocated. As a result, Mr. Doe no longer feels safe in Canada and continues to live in a secret location abroad.

While Mr. Doe was self-represented on his appeal, he was assisted by Swadron Associates. Matthew Cohen, who attended the hearing with Mr. Doe, alluded to the bittersweet nature of the result. “Mr. Doe has experienced a significant personal setback but paved the way for change. The Attorney General should study the Court of Appeal’s decision and implement changes to protect this vulnerable and valuable group of witnesses. With so many serious crimes left unresolved, these changes would also benefit the public as witnesses would feel more encouraged to testify in serious cases.”