Policy on the Protection and Use of Witness Statements

1. Context

1.1 The TSB aims to advance transportation safety by conducting independent safety investigations. The effectiveness of those investigations is dependent, in part, on gathering witness statements.

1.2 In order to encourage witnesses to provide open and frank details without fear of reprisal or any negative repercussions, section 30 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act) declares that statements and the identity of their authors are privileged. The CTAISB Act also states that no person shall knowingly communicate a statement or permit it to be communicated to any person except as provided by this Act or as authorized in writing by the person who made the statement.

2. Definitions

2.1 2.1 The term “statement,” as defined in the CTAISB Act, should be interpreted broadly. A statement includes

1. an oral, written, or recorded declaration relating to a TSB investigation and given to the TSB or any person acting for the TSB (first responder, foreign-language interpreter, etc.),
2. a transcription or summary of a declaration referred to above,
3. notes taken by an investigator when speaking with a witness, or
4. other information received by the TSB that could reasonably be taken to be intended as a statement, such as communications that convey technical information requested by the TSB as part of its investigation.

2.2 “Witness” means any person who can provide information about an occurrence or the particular operating context in which the occurrence took place. This can include crew members, passengers, eyewitnesses on site, controllers, managers, maintenance personnel, or others.

3. Policy objective

3.1 The purpose of this policy is to describe the TSB’s approach to the protection of witness statements that it collects, the use of witness information in investigation reports, and the release of witness statements where appropriate.

4. Policy requirements

4.1 Identity of witnesses

4.1.1 The names and identities of all witnesses and their witness statements are privileged and will not be released by the TSB unless the witness agrees in writing or the TSB is ordered to do so by a court.

4.2 Use of witness information in TSB reports

4.2.1 In its reports, the Board will attempt to use wording that does not enable the identification of a witness.

4.2.2 Generally, direct references to or quotes from witness statements will not be used in TSB reports or communication products.

4.2.3 In exceptional cases, where witness information is essential to support a Board finding, and there is no way to convey the required information without providing details that may lead to the identification of a witness, the Board may include such information in its reports if it is necessary in the interests of transportation safety.

4.3 Release of witness statements

4.3.1 The TSB will provide witnesses a copy of their statement if they request it in writing. In such cases, the witnesses will be advised that the TSB cannot ensure the protection of their statement.

4.3.2 Only witnesses can request a copy of their statement. No other person or third party can request a copy of a witness statement.

4.3.3 If the TSB receives an Access to Information request for a copy of a witness statement, the TSB will inform the witness of the request and ask whether the witness consents to the statement’s release. The witness must give their consent in writing. If the witness does not consent, the TSB will continue to protect the statement’s privilege and will not release the information.

4.3.4 The TSB will inform witnesses if any party in a legal proceeding asks for the release of witness statements. The TSB will always oppose that type of request.

4.3.5 If it is a court or a coroner that orders the production of witness statements, the TSB will request confidentiality orders restricting the statements’ use.

4.3.6 The TSB will inform witnesses if a court or a coroner has ordered their statements to be released.

5. Authorities

5.1 This policy is issued under the authority of the Board in accordance with paragraphs 8(1)(b) and (c) and section 30 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act). It was approved by the Board on September 30, 2018, and was revised on January 27, 2021, after consultation with the Executive Committee.

5.2 This policy will be reviewed and may be updated in response to changes in legislation, government priorities, or TSB strategic direction, but at least once every 5 years.

6. Roles and responsibilities

6.1 Chair

The Chair is responsible for initiating the periodic review and update of this policy by the Board.

6.2 Chief operating officer

The chief operating officer is responsible for the overall implementation, monitoring, and oversight of this policy, as well as for seeking interpretation and guidance from the Board from time to time.

6.3 Directors of investigations

Directors of investigations are responsible for ensuring that investigators adhere to this policy.

6.4 Access to Information coordinator

The Access to Information coordinator is responsible for ensuring that access to information and privacy staff follow this policy when requests for statements are received.

7. References

7.1 This policy is based on the following acts and regulations:

• Canadian Transportation Accident Investigation and Safety Board Act
• Transportation Safety Board Regulations
• Access to Information Act, s.19
• Privacy Act, s.3

8. Enquiries

8.1 Questions about this policy may be directed to

1-800-387-3557
1-819-994-3741
communications@bst-tsb.gc.ca