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S.M. 2008, c. 7
Bill 5, 2nd Session, 39th Legislature
The Witness Security Act
(Assented to June 12, 2008)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"assessment panel" means the assessment panel established under subsection 7(1). (« comité d'évaluation »)
"department" means the department of government over which the minister presides and through which this Act is administered. (« ministère »)
"director" means the person appointed under The Civil Service Act as the director for the purpose of this Act. (« directeur »)
"law enforcement agency" means
(a) the Royal Canadian Mounted Police;
(b) a police force established by a municipality; and
(c) a law enforcement body designated by regulation under The Law Enforcement Review Act. (« organisme chargé de l'application de la loi »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"program" means the witness security program established in section 3. (« programme »)
"protected person" means a person who has been admitted into the program, and includes a person who is no longer in the program. (« personne protégée »)
"public body" means a public body as defined in The Freedom of Information and Protection of Privacy Act. (« organisme public »)
"security agreement" means an agreement referred to in section 9. (« accord en matière de sécurité »)
"witness" means a person who has given or who is expected to give evidence in the prosecution of an offence under the Criminal Code (Canada). (« témoin »)
The purpose of this Act is to promote the administration of justice and public safety by providing services to witnesses, and persons associated with them, who may be at risk because of the witnesses' involvement in the prosecution of criminal offences.
WITNESS SECURITY PROGRAM
The witness security program is hereby established.
Under the general direction of the minister, the director is responsible for the administration of the program.
The director is a peace officer and has all the powers and protection provided by law to peace officers.
The director may provide services or arrange for services to be provided to a person in the program to safeguard the security of the person and, if necessary, to help the person become self-sufficient when he or she is no longer in the program.
Without limiting the generality of subsection (1), the following services may be provided to a person in the program:
(a) relocation, including relocation outside Manitoba, if necessary;
(c) transportation and storage of personal possessions;
(d) reasonable financial support;
(e) security services and equipment;
(f) change of identity;
(g) assistance in obtaining employment, education or training;
APPLICATION AND APPROVAL PROCESS
Witnesses eligible for admission into program
A person may be admitted into the program if the person's security may be at risk because he or she is a witness in the prosecution of an offence conducted by the department.
Associated persons eligible for admission
A person may also be admitted into the program if the person's security may be at risk because of his or her relationship or association with a witness.
Application for admission into program
An application to admit a person into the program must be made to the director by a law enforcement agency.
An application will not be considered until the director receives
(a) detailed information about each person seeking admission into the program respecting the following:
(i) all of the person's outstanding legal obligations, including court orders or arrangements respecting custody or access to children,
(ii) all civil and criminal proceedings instituted by or against the person,
(iii) all of the person's outstanding debts and financial obligations, including spousal and child support obligations,
(iv) all assets and property owned by the person,
(v) any other matter that the director considers necessary to enable the assessment panel to determine if the person should be admitted into the program; and
(b) sufficient information from law enforcement agencies and prosecutors to enable the assessment panel to consider the factors set out in subsection 8(2) in relation to the application.
The director may make any inquiries and conduct any investigations that he or she considers necessary to
(a) assess the risk to the security of a person seeking admission into the program;
(b) determine the type of services that the person might require; and
(c) determine whether a person admitted into the program should be expelled from the program.
When the director requests information from a law enforcement agency or public body while making an inquiry or conducting an investigation under subsection (3), the law enforcement agency or public body must provide the information and give the director a copy of any document containing the information, if applicable.
An application for admission into the program is to be considered by an assessment panel consisting of three or more persons appointed by the minister.
Panel member may designate replacement
A member of the assessment panel who is absent or unable to act may designate a senior official in the department to act in his or her place.
The assessment panel must decide
(a) whether to admit a person into the program; and
(b) if the person is admitted, what services are to be provided to the person and for how long.
The following factors are to be considered by the assessment panel in making its decisions under subsection (1):
(a) the seriousness of the offence in question;
(b) in the case of a witness, the value of the evidence to be provided by the witness and the importance of the witness to the prosecution;
(c) the risk to the security of the person;
(d) if the person might have to be relocated if admitted into the program, whether he or she would pose a risk to the community in which he or she was relocated;
(e) the likelihood of the person being able to adjust to the program, having regard to his or her maturity, judgement and relationships;
(f) the financial and logistical requirements to maintain the person in the program;
(g) alternate methods of protecting the person without admitting the person into the program;
(h) any other factors that the panel considers relevant.
After the assessment panel makes its decision on an application, the director must give notice of the decision to the law enforcement agency that made the application.
A protected person must enter into a security agreement with the director as soon as reasonably possible after being admitted into the program.
A security agreement must
(a) set out the services to be provided to the protected person and the period of time those services will be provided;
(b) set out the obligations of the protected person while he or she is in the program, which must include the following obligations:
(i) in the case of a witness, to give complete and truthful evidence in the prosecution of the case in question,
(ii) to meet all of his or her debts and financial obligations that are not payable by the director under the security agreement,
(iii) to meet all of his or her legal obligations,
(iv) to accept and follow reasonable requests and directions made by the director and his or her staff in relation to services provided under the program; and
(c) contain a provision stating that the protected person may be expelled from the program if he or she
(i) contravenes a federal or provincial Act,
(ii) engages in conduct of a kind specified in the security agreement,
(iii) engages in conduct that might, directly or indirectly, endanger the protected person or another protected person or compromise the integrity of the program, or
(iv) deliberately breaches a material term of the security agreement.
Services set out in security agreement
Subject to subsection (2), once a protected person has entered into a security agreement, he or she may receive only those services set out in the agreement.
In an emergency or in exigent circumstances, the director may arrange for services to be provided to a protected person that are not set out in the person's security agreement.
After a protected person has entered into a security agreement, the director may apply to the assessment panel to
(a) authorize the provision of additional services under the program to the person; or
(b) extend the time that a specific service under the program is to be provided to the person.
New or amended security agreement
If the assessment panel decides to authorize the provision of additional services or the extension of services under subsection (1), the protected person must enter into a new or amended security agreement that reflects that decision.
TERMINATING SERVICES UNDER THE PROGRAM
Application for expulsion from program
The director may apply to the assessment panel to have a protected person expelled from the program if the person
(a) has made a material misrepresentation, or failed to disclose required information, in respect of his or her application for admission into the program; or
(b) has deliberately breached a material term of his or her security agreement or breached a provision of his or her security agreement referred to in subclause 9(2)(c)(i), (ii) or (iii).
The director must take reasonable steps to
(a) notify the person that an application for expulsion has been made, and provide particulars of the grounds for expulsion; and
(b) allow the person to make a written submission to the assessment panel about the application.
If the assessment panel decides to expel the person from the program, the director must
(a) take reasonable steps to notify the person of the decision; and
(b) give notice of the decision to the law enforcement agency that applied to have the person admitted into the program.
Voluntary withdrawal from program
If a person makes a written request to withdraw from the program, the director must allow the person to leave the program.
When entitlement to receive services ends
A person's entitlement to receive services under the program ends when
(a) the person is expelled from the program under section 12;
(b) the person voluntarily withdraws from the program under section 13; or
(c) the period for which those services were to be provided under his or her security agreement expires.
CONFIDENTIAL OPERATION OF THE PROGRAM
Confidential nature of program
The program is to be operated in a confidential manner in order to safeguard the security of protected persons.
No access to information under FIPPA
Despite Part 2 (Access to Information) of The Freedom of Information and Protection of Privacy Act, no person may obtain access under that Act to information about a protected person, or information that might compromise the security of a protected person or a person providing services under the program.
Despite any other enactment, including The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act, the following persons shall not disclose, directly or indirectly, information that might reveal the identity or location of a protected person or otherwise compromise the security of a protected person:
(a) the director;
(b) a member of the assessment panel;
(c) a person employed or retained by the department;
(d) a person who has provided services under the program to someone that he or she knows is a protected person;
unless the disclosure is permitted under this Act or the regulations.
Disclosure allowed for program administration
Subsection (1) does not apply to a disclosure between any of the persons referred to in clauses (1)(a) to (d) that is required in order to administer the program or arrange for the provision of services to a person in the program.
Permitted disclosure by director
The director may disclose information that might reveal the identity or location of a protected person if
(a) the protected person consents to the disclosure;
(b) the protected person has disclosed the information or acted in a manner that results in the disclosure; or
(c) the disclosure is in the public interest for purposes such as
(i) the investigation of a serious offence, when there is reason to believe that the protected person can provide material information or evidence in relation to the offence, or has been involved in the commission of the offence, or
(ii) the prevention of the commission of a serious offence, or
(iii) the conduct of a public inquest or inquiry.
Every person who contravenes subsection 16(1) is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000 or imprisonment for a term of not more than two years, or both.
No prosecution for an offence under this Act may be commenced without the written consent of the minister.
Service provider to comply with directions
A person who provides services under the program to someone that he or she knows is a protected person must comply with any directions from the director intended to safeguard the security of the protected person.
Without limiting the generality of subsection (1), the person providing services may be required to record the services provided using an assumed name or numeric identifier for the protected person.
In complying with a direction from the director under subsection (1), the person providing services does not contravene any enactment or any applicable code of professional conduct or ethical standard.
Complying with legal obligations
If a person in the program has any outstanding legal obligations or is involved in pending legal proceedings, the director must take such steps as are reasonably practicable to enable the person to comply with his or her legal obligations or participate in those proceedings.
Actions that the director may take under subsection (1) include the following:
(a) providing services to enable the person to attend court;
(b) notifying a party to civil proceedings involving the person that the director will undertake to serve documents on the person.
The director may delegate any responsibility or power of the director under this Act to a person employed in the department.
The minister may enter into agreements with one or more of the following respecting the provision of services to persons in the program:
(a) a law enforcement agency in Manitoba or in another province or territory;
(b) the government of Canada or the government of another province or territory, or an agency of one of those governments.
Co-operation by government departments
All departments and agencies of the government must, to the extent possible, co-operate with any request from the director to provide services to a person in the program.
Subject to section 24, the following persons shall not be required in court or in any other legal proceeding to answer a question or produce a document or record that might, directly or indirectly, reveal the identity or location of a protected person or otherwise compromise the security of a protected person:
(a) the director;
(b) a member of the assessment panel;
(c) a person employed or retained by the department;
(d) a person who has provided services under the program to someone that he or she knows is a protected person.
Subsection (1) does not apply in a prosecution for an offence under this Act.
No effect on disclosure in criminal matters
Nothing in this Act affects
(a) the obligation of the Crown to disclose information in the ordinary course of criminal proceedings; or
(b) the disclosure of information when ordered by a court in criminal proceedings.
No action or proceeding may be brought against the director, a member of the assessment panel or any other person acting under the authority of this Act
(a) for anything done or omitted in good faith in the performance or exercise, or intended performance or exercise, of a duty or power under this Act; or
(b) for any neglect or default in the performance or exercise, or intended performance or exercise, in good faith of a duty or power under this Act.
The Lieutenant Governor in Council may make regulations
(a) for the purpose of subsection 16(1), respecting when information about a protected person may be disclosed;
(b) respecting the execution of security agreements on behalf of minors;
(c) respecting the change of identity of a protected person;
(d) respecting procedures to be followed when a person in the program is involved in legal proceedings;
(e) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of this Act.
This Act may be referred to as chapter W167 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.