Power Needed To Quell Witness Code Of Silence

by Michael Code

This commentary was first published in the National Post on August 13, 2008.

The slow speed of Canadian law enforcement is once again in the news. Last month, in two high-profile, white-collar fraud cases, the RCMP laid criminal charges against a number of Nortel and Royal Group executives. The investigations began in 2004 and took four years to complete. The announcement of charges was met with criticism of the "glacial speed" of the investigations, as well as comparisons with the United States, where charges in similar cases are often laid within months of the relevant events, not years.

There has also been a recent spate of gang-related shootings in Toronto. In such cases, homicide detectives invariably encounter difficulties persuading witnesses to co-operate. Where witnesses do come forward, elaborate protection measures are often required to secure them against gang reprisals. The result is, once again, very slow and sometimes unsuccessful investigations.

The deterrent and protective effects of the criminal law depend upon the likelihood that perpetrators will be swiftly brought to justice. When investigations are seen to be slow and ineffective, the rule of law is undermined. The above two kinds of cases are at opposite ends of the socio-economic spectrum-- white-collar fraud is a crime of the wealthy and privileged, while gang-related homicide is a crime of the underclass. But the impact is the same when investigations are seen to be slow and ineffective.

The slow pace of the investigations in these cases is not the fault of the police. In both cases, witnesses are reluctant to co-operate, for different reasons. When a corporate scandal occurs, white-collar witnesses fear civil liability; they retain lawyers and become reluctant to co-operate. When gang-related violence erupts, neighbourhood witnesses fear reprisals if they co-operate with police. A code of silence characterizes both instances and the police have no legal powers to overcome it.

There is a simple legal solution to the code of silence and it is the investigative subpoena. The RCMP's Integrated Market Enforcement Team, which laid the charges in the Nortel and Royal Group cases, has lobbied for these powers. Both federal Finance Minister Jim Flaherty and David Wilson, chairman of the Ontario Securities Commission, have publicly supported this proposal, and it is under consideration by the federal Department of Justice.

An investigative subpoena is a court order that compels a witness to disclose relevant information about a crime before charges are laid. It helps police solve crimes when witnesses do not volunteer information. The compulsion takes place in court, under judicial supervision, which prevents abuses. U. S. law enforcement authorities have access to investigative subpoenas through their grand jury system. This may explain why U. S. investigations are generally faster than in Canada.

We abolished the grand jury in the 1970s for a variety of unrelated reasons. However, the investigative subpoena has slowly been revived. They are widely used at public inquiries and in regulatory investigations under provincial securities legislation. In international criminal investigations, the Mutual Legal Assistance Act also provides for investigative subpoenas to assist foreign police forces that need to question Canadian witnesses.

The Anti-Terrorism Act allows investigative subpoenas to compel witnesses in Canadian terrorism cases. The legislation was challenged on Charter of Rights grounds in the Air India case, but the Supreme Court of Canada ruled it did not violate witnesses' rights. Indeed, the legislation protected any compelled witnesses from having their own evidence used against them.

When this legislation lapsed, because of a five-year sunset clause built into the original 2001 statute, the present government tried to re-enact the investigative subpoena power. All major Canadian police forces supported it, even though it had rarely been used. Unfortunately, the government was outvoted by the opposition parties, which were divided on the merits of these subpoenas. Fortunately, the Minister of Justice has promised to reintroduce new legislation.

In my opinion, there is no principled reason to oppose investigative subpoenas and the government ought to be supported in its efforts to legislate in this area, whether in terrorism cases, white-collar frauds or gang-related homicides. Witnesses to a crime have never enjoyed a constitutional right to silence. The right is given to suspects and accused to protect them from self-incrimination. Witnesses owe their evidence to society, so that crimes will be speedily solved and the rule of law will flourish.

Indeed, it is absurd that a foreign police force can come to Canada and compel a Canadian witness to provide information about a foreign crime, but our domestic police cannot compel witnesses to assist in the investigation of Canadian crimes.

One hopes that opposition parties will reconsider their position. If the government has the courage of its convictions, it will listen to its own Justice and Finance Ministers and make it a priority to introduce investigative subpoena legislation. This way we will be helping police to restore the rule of law in those areas of our society where witnesses have been silent and unco-operative for too long.