Federal Court Reinstates Protected Witness

TORONTO, March 3, 2006 – In the first case of its kind, a judge of the Federal Court of Canada has quashed the decision of the Assistant Commissioner of the Royal Canadian Mounted Police terminating protective services to a witness.

The witness, permitted by the court to use the pseudonym John Doe to protect his secret identity, was placed in the witness protection program operated by the RCMP at the request of a local police force. He was removed from the program following an alleged breach of his protection agreement. The grounds for termination were that Mr. Doe had placed advertisements for the business that he started after he was relocated with a secure identity in which he might be identifiable.

Swadron Associates represented John Doe in an application for judicial review in the Federal Court of Canada challenging the Assistant Commissioner’s decision. The application was heard on an urgent basis on December 13, 2005. The main ground of review was that the Assistant Commissioner had failed to comply with the requirements of the Witness Protection Program Act, which provides that witness protection services may be terminated only for “deliberate and material” breaches of protection agreements by the subject. In the course of reviewing the record before the Assistant Commissioner, a lapse in procedural fairness also became apparent. Mr. Doe had not been made aware of (and had no opportunity to respond to) written submissions made by the local police prior to the decision.

For reasons released to the parties on January 27, 2006 but only recently made public, the Honourable Mr. Justice Michael Phelan quashed the decision and ordered Mr. Doe reinstated into the witness protection program. The basis of the decision was that Mr. Doe was denied procedural fairness in that he had no opportunity to respond to the submissions of the local police. The judge went further, however, to question whether the applicant’s conduct was, in fact, a deliberate or material breach of his protection agreement when it was contemplated that he would have to do some form of advertising of his business after he was relocated.

In concluding his reasons, Mr. Justice Phelan wrote, that 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.” Click here for the full text of the decision.

Swadron Associates has played an active role in the development of witness protection law in Canada, including Barry Swadron's submissions before the Parliamentary Standing Committee on Justice leading to the implementation of the Witness Protection Program Act in 1996. John Doe was represented in the application for judicial review by Marshall Swadron and Ameena Sultan.