Commission’s Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008

National Defence Act – Part IV

FINAL REPORT
Following a Public Interest Hearing
Pursuant to Subsection 250.38(1) of the National Defence Act
With Respect to a Complaint
Concerning the Conduct of Captain (N) (ret’d) Steven Moore,
Lieutenant-Colonel (ret’d) William H. Garrick, Major John Kirschner,
Major Bernie Hudson, Major Michel Zybala, Major Ron Gribble,
Chief Warrant Officer Barry Watson and Master Warrant Officer (ret’d) Jean-Yves Girard

File:  MPCC 2008-042
Ottawa, June 27, 2012
Mr. Glenn M. Stannard, Chairperson
Mr. Roy Berlinquette, Commission Member

Table of Contents

Glossary of Terms / Acronyms Used Throughout this Report

ADM Assistant Deputy Minister
AIC Amnesty International Canada
AIHRC Afghan Independent Human Rights Commission
ANA Afghan National Army
ANP Afghan National Police
ANSF Afghan National Security Force
APHST Afghanistan Public Hearing Support Team
BCCLA British Columbia Civil Liberties Association
BGen Brigadier-General
BOI Board of Inquiry
CANOSCOM Canadian Operational Support Command
CANOSCOM PM Canadian Operational Support Command Provost Marshal
CANSOFCOM Canadian Special Operations Forces Command
Capt Captain
Capt (N) Captain Navy
Cdr Commander
CDS Chief of the Defence Staff
CEA Canada Evidence Act
CEFCOM Canadian Expeditionary Forces Command
CEFCOM COS Canadian Expeditionary Forces Command Chief of Staff
CEFCOM PM Canadian Expeditionary Forces Command Provost Marshal
CF Canadian Forces
CFB Canadian Forces Base
CFNIS Canadian Forces National Investigation Service
CFPM Canadian Forces Provost Marshal
CIDA Canadian International Development Agency
CIVPOL Civilian Police
CO Commanding Officer
CO NIS Commanding Office of the National Investigation Service
Col Colonel
Comd JTF-Afg Commander of Task Force Afghanistan
COS Ops Chief of Staff Operations
Cpl Corporal
CS Combat Support
CSC Correctional Service Canada
CWO Chief Warrant Officer
DAOD Defence Administrative Orders and Directives
DCDS Deputy Chief of the Defence Staff
Det Cdr Detachment Commander
DFAIT Department of Foreign Affairs and International Trade
DIST Detainee Information Support Team
DM Deputy Minister
DND Department of National Defence
DOJ Department of Justice
D PK Pol Directorate of Peacekeeping Policy
DPM Deputy Provost Marshal
EOL Exchange of Letters
FTAG Afghanistan Task Force (Ottawa)
GC Geneva Convention
Gen General
GO General Occurrence
GOC Government of Canada
GS General Support
GRC Gendarmerie Royale du Canada
HDO Human Dimensions Operations
IAW In Accordance With
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the Former Yugoslavia
IDR International Disaster Relief
IED Improvised Explosive Devices
ISAF International Security Assistance Force
IST Information Support Team
J3 MP Strategic Joint Staff Provost Marshal
JAG Judge Advocate General
JOC Joint Operations Centre
JTF Joint Task Force
JTFA Joint Task Force Afghanistan
JTF-Afg POLAD Joint Task Force Afghanistan Political Advisor
KAF Kandahar Air Field
KIA Killed in Action
KPRT Kandahar Provincial Reconstruction Team
LCdr Lieutenant-Commander
LCol Lieutenant-Colonel
LGen Lieutenant-General
LO Liaison Officer
Maj Major
MGen Major-General
MMU Multinational Medical Unit
MND Minister of National Defence
MP Military Police
MPCC Military Police Complaints Commission
MP HQ Military Police Headquarters
MPPCC Military Police Professional Code of Conduct
MPPTP Military Police Policies and Technical Procedures
MWO Master Warrant Officer
NATO North Atlantic Treaty Organization
NCM Non-Commissioned Member
NCO Non-Commissioned Officer
NDA National Defence Act
NDHQ National Defence Headquarters
NDS National Directorate of Security
NGO Non-government organization
NIS National Investigation Service
NSG National Security Group
OEF Operation Enduring Freedom
OP Operations
OPCON Operational Control
PCO Privy Council Office
POLAD Political Advisor
PRT Provincial Reconstruction Team
PSEPC Public Safety and Emergency Preparedness Canada
PTSD Post-Traumatic Stress Disorder
RCMP Royal Canadian Mounted Police
RCR Royal Canadian Regiment
QR&O Queen’s Regulations and Orders for the Canadian Forces
ret’d Retired
RMP Royal Military Police
ROE Rules of Engagement
ROTO Rotation
SAMPIS Security and Military Police Information System
SAT Strategic Advisory Team
Sgt Sergeant
SITREP Situation Report
SOP Standard Operating Procedures
Supt Superintendent
TAV Technical Assistance Visit
TF Task Force
TFA Task Force Afghanistan
TFHQ Task Force Headquarters
TSE Theatre Support Element
TFPM Task Force Provost Marshal
TSO Theatre Standing Order
UN United Nations
UNAMA United Nations Assistance Mission in Afghanistan
UNGA United Nations General Assembly
UNHCR United Nations High Commission for Refugees
UNHRHLS United Nations Human Rights and Humanitarian Law Section
VCDS Vice Chief of the Defence Staff
WO Warrant Officer
WRT With Respect To

Executive Summary

Introduction: Nature of the Complaint, Limits to the Mandate, and Structure of this Report

This is the Commission’s final report pursuant to s. 250.53 of the National Defence Act (NDA) following public interest hearings into a complaint made by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) on June 12, 2008. The Complainants allege, pursuant to section 250.18 of the NDA, a failure on the part of certain Military Police (MP) to investigate the Canadian Task Force Commanders in Afghanistan for directing the transfer of detainees to Afghan authorities in the face of a known risk of torture. They also allege that Canada’s detainees were transferred to the custody of the Afghan security service despite compelling first hand reports that previous CF detainees were tortured by those authorities.

This complaint (known as the “failure to investigate” complaint) calls into question the actions of the Military Police during the timeframe May 3, 2007 to June 12, 2008. The subjects of this complaint held the following command positions during the relevant period:

Canadian Forces Provost Marshal (CFPM)
Commanding Officer of the National Investigation Service (CO NIS)
Task Force Provost Marshals (TFPMs)
NIS Detachment Commanders
Overview of the Commission’s Mandate and this Report

The Commission’s mandate in this public interest hearing is limited to the question: Did these subjects fail to meet a positive duty to investigate the transfer orders of the Task Force Commanders in Afghanistan during the timeframe of this complaint? This mandate does not extend to making findings and recommendations concerning the Government of Canada and Canadian Forces’ (CF) policy on detainee transfers. The Commission is limited to determining whether it was reasonable for the CFPM and the other military police subjects of this complaint not to have investigated the legality of detainee transfer orders made by the Task Force Commanders. It is for others to examine the overall appropriateness of Canada’s detainee transfer policies, and the results achieved.Footnote 1

In coming to the conclusion the subjects did not fail in their duty to investigate, the Commission reviewed many documents and heard evidence from 40 witnesses including the eight subjects. That evidence is summarized in the following manner. First, the Report discusses the technical arrangements and theatre standing orders applicable to detainee transfers in Afghanistan, and the directives, orders and doctrine of import to the Military Police when carrying out their policing functions in theatre, particularly where detainees are involved. Next, the Commission explores the information environment as it relates to the question of detainee abuse post-transfer in Afghanistan and the CF transfer process itself, to attempt to determine what information was available to the Military Police and, ultimately, the specific subjects of this complaint. The Commission sets out the publicly available information about detainee abuse, such as international reports and newspaper articles, and looks, as well, at the information available at Canadian Expeditionary Forces Command (CEFCOM) Headquarters in Ottawa, with DFAIT personnel in Afghanistan, and among the CF personnel, MP and non-MP, stationed in Kandahar. The Commission then sets out the law potentially applicable to detainee transfers and the legal standard of conduct for the MP subjects in the particular context of a complaint alleging a failure to investigate. Finally, the Report assesses whether the subject MPs possessed knowledge of detainee transfer decision processes and post-transfer abuse such that a duty to investigate the Task Force Commanders in theatre was triggered.

The Report concludes by making certain recommendations aimed at improving MP policing in the theatre of conflict. The Commission notes there was a lack of continuity of knowledge and problems with accountability and information sharing within the Military Police that should be improved for future missions.

The Report also contains a lengthy description of the obstacles experienced by the Commission when it came to procedural matters and recommendations on improving the process for future public interest investigations and hearings. The obstacles experienced by the Commission when it came to document production, witness access, parallel court proceedings, and claims of national security were significant and, in the Commission’s view, largely unnecessary and avoidable.

Canada in Afghanistan and Detainee Transfers

The events forming the basis of this complaint occurred in the context of the ongoing military conflict in Afghanistan between Taliban insurgents and Afghan government forces supported by Canada and a coalition of other nations participating in the UN mandated International Security Assistance Force (ISAF), under NATO command. Canada and Afghanistan developed several understandings pertaining specifically to the treatment and transfer of detainees captured by Canadian Forces (CF) in Afghanistan, including the December 2005 “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan” and the “Arrangement for the Transfer of Detainees between the CF and the Ministry of Defence of the Islamic Republic of Afghanistan”. This latter Arrangement was subsequently followed by a May 3, 2007 supplement, providing for the first time for post-transfer monitoring specifically by Canadian government officials. Both the December 2005 and May 2007 arrangements stipulated that detainees would be treated humanely and in accordance with the standards set out in the Third Geneva Convention. The start date for this hearing’s complaint coincides with the signing of the May 3, 2007 supplementary arrangement. Prior to the May supplement, detainee transfers had been halted as a result of allegations of abuse and mistreatment of Canadian transferred detainees documented in articles by Graeme Smith of the Globe and Mail.

The Military Police had no role in the post-transfer monitoring of Canadian transferred detainees. This role was played largely by DFAIT personnel. By contrast, the Royal Military Police in the United Kingdom played an active role in the post-transfer monitoring process. Site visits by Canada between May 2007 and November 2007 revealed several allegations of mistreatment and torture of Canadian transferred detainees, culminating in a second stoppage of transfers in November 2007 as a result of one visit on November 5, 2007 where allegations were received and the alleged implements of torture were found under a chair in the detainee interview room. It is during the period from May 3, 2007 to June 12, 2008 that the Complainants allege the subject MPs should have investigated or caused the investigation of the Task Force Commanders in Afghanistan who had ordered detainee transfers.

Military Police Role in the Detainee Transfer Process

Canada’s Military Police were not generally involved in the immediate capture of detainees in operations, but instead were responsible for the care and control of detainees held at the MP-operated detainee detention/transfer facility located at Kandahar Airfield (KAF).

Theatre Standing Orders (TSO) 321A and 321 (in its various iterations) were the primary source of direction for the Military Police regarding the handling of detainees. These orders were issued by the Commander of Joint Task Force Afghanistan. These TSOs evolved over the period of time that Canadian troops were deployed in Kandahar, but the essentials remained the same. TSO 321 provided explicit direction for the treatment and handling of detainees, the procedure for transfer to the Afghan authorities, and information to be maintained during the transfer process. The TSO specifically required detainees to be treated fairly, humanely and in accordance with international law. Mistreatment of persons in the custody of the CF was an offence under the CF Code of Service Discipline, and any actual or suspected abuse or mistreatment of detainees was to be reported.

The TSOs preceding the timeframe of this complaint provided for a Detainee Liaison Officer, who was to act as a liaison with the Afghan security forces, coalition forces, the Red Cross, the Afghan Independent Human Rights Commission (AIHRC) and the civilian population. This position was never staffed and the duties were generally tasked to the TFPM or his designates. In May 2007, a new version of the TSO created the position of Detainee Officer, a non-MP, who assumed the liaison duties formerly assigned to the TFPM.

On February 21, 2007, AIC/BCCLA had submitted a complaint to this Commission calling into question the role of the Military Police in the detainee transfer process, and alleging that the Military Police transferred detainees to Afghan authorities, or allowed them to be transferred, notwithstanding a likelihood of post-transfer torture or abuse. The Federal Court of Canada eventually determined the Commission’s jurisdiction was limited to investigating the alleged failure to investigate complaint only. The Commission’s investigation and hearings into the MP role in the physical transfer process were thus quashed by order of the Federal Court, and the Commission hearings proceeded solely on the alleged failure to investigate complaint.

Military Police in Afghanistan and the Duty to Investigate

While in Afghanistan, certain directives, orders and doctrine were applicable to the Military Police and placed expectations on them in terms of when and how to conduct an investigation. The interplay of MP doctrine, the Military Police Policies and Technical Procedures Manual, MP technical directives, and criminal and common law standards are discussed in greater detail in the main body of this Report.

It is clear the Military Police subjects had a duty imposed on them while in Afghanistan to investigate (or cause an investigation into) any direct allegation the Commander was illegally transferring detainees to a risk of harm. Both doctrine and the applicable Technical Directives contained mandatory language concerning the duty to investigate allegations of breaches of the Geneva Conventions, the Laws of Armed Conflict or International Law. Subject to the proper exercise of policing discretion, the Military Police subjects would also have been expected to self-initiate, or ensure an investigation, into the Task Force Commanders’ transfer orders where they had a reasonable suspicion the Commander was behaving illegally.

Any investigation into the legality of the Commanders’ transfer orders would fall within the mandate of the CFNIS to conduct. The CFNIS is independent of the military operational chain of command, with the mandate to investigate all serious or sensitive matters such as an investigation of the nature contemplated in this complaint. The role of the Task Force Provost Marshal in theatre would therefore be to take steps to cause the NIS to carry out such an investigation, were he or she to have grounds for such action. If the CFPM or the CO NIS themselves developed a reasonable suspicion or received a direct complaint about the legality of the Commanders’ transfer orders, then their role would be to initiate an investigation.

The Information Environment Regarding Detainee Abuse in Afghanistan

Before examining the knowledge of the subject MPs with respect to detainee abuse in Afghanistan and the detainee transfer process, the Commission considered the general information environment including information about the risk to detainees if transferred to the Afghan authorities. The Commission examined as well the information environment at CEFCOM HQ in Ottawa, among DFAIT personnel in Afghanistan, within Task Force Headquarters at KAF, and among the Military Police stationed in Afghanistan.

General Information about the Risk of Detainee Torture in Afghanistan

The Commission is of the view there was a great deal of reliable information available, from a variety of reputable sources, to document the risk of ill-treatment of detainees at the hands of the Afghan authorities, and especially the NDS. Much of it was publicly available at some point during the time period covered by this complaint. Some reports, while not publicly available during the time period of the complaint, were nonetheless being circulated within Government and military circles and formed part of the overall information environment which the Commission examined. The various sources of information about the risks to detainees post-transfer include:

The CEFCOM Information Environment

The Commission looked at the information environment at CEFCOM HQ to determine whether the CEFCOM Provost Marshal stationed there, and through him, the subject MPs, knew or ought to have known information about the post-transfer treatment of detainees. CEFCOM is the headquarters for all CF overseas operations, including Task Force Afghanistan. Key figures at CEFCOM included: LGen (ret’d) Michel Gauthier, CEFCOM Commander at the time of this complaint; LGen (then MGen) André Deschamps, Chief of Staff Operations (COS Ops); and Gabrielle Duschner, the CEFCOMJ9” or policy adviser to LGen (ret’d) Gauthier.

As noted above, the CEFCOM J9, Ms. Duschner, represented CEFCOM at an interagency meeting in March 2007 at which Mr. Richard Colvin, then chargé d’affaires at the embassy in Kabul, Afghanistan, stated that Canada should not transfer its detainees to the NDS if it did not want them to be tortured. Ms. Duschner did not, however, transmit this information to the military police, at CEFCOM or elsewhere.

The Commission discovered in the course of its proceedings that key information with respect to detainee abuse, and in particular the site visit reports from DFAIT, tended to stay within a closed circle of individuals at CEFCOM including the CEFCOM Commander, the COS Ops, the J9, the Judge Advocate General (JAG) counsel, and certain others. The CEFCOM PM, the sole MP representative at CEFCOM, was not part of that inner circle and did not have access to the site visit reports, which were classified Secret and entered CEFCOM over the secure DFAIT C4 network.

The May 3, 2007 transfer arrangement coincided with the creation of the position of detainee officer at CEFCOM. This detainee officer was not an MP. Prior to the creation of the detainee officer position, the CEFCOM PM was more involved as a repository for information on detainees. Following May 2007, the CEFCOM PM was marginalized when it came to any discussions and information related to post-transfer issues. Thus, at the point in time when site visits began to occur, a reorganization of the information retention procedures for detainees at CEFCOM had the effect of ensuring MPs would not be the repository of information about the post-transfer treatment of detainees.

LCol Boot (then Major) was the CEFCOM PM at the time the Globe and Mail articles by Graeme Smith were published in late April 2007. He became involved with a J9-led fact check to determine whether the detainees mentioned in that article were Canadian-transferred detainees, something that was confirmed in certain cases. He was thus attuned to the fact that prior to the start of the May transfer arrangement, serious allegations of abuse and torture of Canadian- transferred detainees had been brought to the attention of the chain of command. That information did not cause him to consider investigating the transfer decisions of the Task Force Commander, or to refer such an investigation to his MP colleagues with the NIS. He did, however, convey a request from LGen (ret’d) Gauthier to have the NIS investigate certain allegations in the Graeme Smith articles, and elsewhere in the media, about improper conduct by CF personnel in relation to detainees. The allegations he was tasked to investigate did not relate to the legality of the transfer orders per se.

The CEFCOM PM was the conduit between the MP branch and CEFCOM, and was a primary point of contact along the MP technical chain for the TFPM in Afghanistan. Detainee issues at CEFCOM were considered to be operational issues, and the MP role with respect to detainees was perceived as ending at the moment of transfer. Thus, while the CEFCOM PM was privy to operational information about the number and status of detainees at the detainee transfer facility, he knew next to nothing about what happened once they were transferred to the NDS. Indeed, the Commission heard evidence that MP input into post-transfer detainee issues or the status of the transfer process would have been perceived as unwelcome. One CEFCOM PM, Maj Martin Laflamme, did attempt to involve himself with detainee discussions when he learned, through MP channels, transfers had been stopped in November 2007. He was told he did not have a “need to know” the details of those detainee discussions.

The Afghanistan Theatre

The Commission examined the information environment regarding detainees for personnel at the detention facility at KAF, personnel at the Task Force Headquarters (TFHQ) where the Task Force Commander and his staff made decisions about transfers, and among DFAIT personnel in Afghanistan.

The TFHQ was located at KAF, but some distance from the detention facility. The TFPM’s office was close to TFHQ, but he would also frequent the detention facility regularly. DFAIT employees dealing with detainee matters were located at the site of the Provincial Reconstruction Team in Kandahar, at the embassy in Kabul, and, in addition, a DFAIT employee was seconded to and physically located at TFHQ in the role of Political Advisor (POLAD) to the Task Force Commander.

The information environment in Afghanistan changed over time. The Commission considered the situation in Afghanistan during ROTO 3 (from February 2007 to July 2007), and during ROTOs 4 & 5 from August 2007 until the end date for this complaint (June 12, 2008).

i. ROTO 3 - MP Knowledge at the Detention Facility

The Commission heard from two witnesses stationed at the detention facility during ROTO 3. Both witnesses had little or no knowledge about the risks to detainees after transfer, and what information they did have was mostly second-hand and/or based on rumour.

The Commission learned from Maj Hudson, the ROTO 3 TFPM and subject of this complaint, that his MP troops raised concerns with him about their own personal liability in the detainee process around the time that transfers were halted in May 2007. He assuaged their concerns by giving them information he had about what DFAIT and CEFCOM were doing to improve the transfer process, and about his Task Force Commander’s decision-making process.

ii. ROTOs 4 & 5 - MP Knowledge at the Detention Facility

The Commission heard from Capt Bouchard, the MP Platoon Commander and officer in charge of the detainee transfer facility during ROTO 4. Capt Bouchard was focused on ensuring proper treatment of detainees while at the detention facility, until transfer to the NDS, and did not consider follow-up to be his responsibility. He was aware in a general sense that reports existed of torture and mistreatment of Afghan detainees in Afghan prisons but had not seen any site visit or human rights reports. He acquired some limited information from open sources, such as the TV and the internet.

Capt Bouchard recalled some detainees (perhaps 10 to 15 percent) saying they would rather die than be transferred to the NDS because they had no money to pay for their release from prison, and therefore had no idea how long they would be in NDS custody. Capt Bouchard did not hear any details about the site visit that led to the suspension of transfers in November 2007, and never learned why transfers were halted.

iii. ROTO 3 - Task Force Headquarters

The Commission heard from MGen (ret’d) Tim Grant about the information environment during ROTO 3 at Task Force Headquarters, and MP access to such information. The Complainants allege that the TFPM during ROTO 3, Maj Hudson, should have investigated MGen (ret’d) Grant’s decisions to transfer detainees to the Afghan authorities. As such, the Commission was interested in learning the degree to which Maj Hudson (and other subjects of this complaint) had access to information which informed the Task Force Commander’s decision-making process.

MGen (ret’d) Grant indicated his TFPM did not give him advice on decisions to transfer detainees to the NDS, but was his primary advisor on policing issues and the handling of detainees while at the CF transfer facility. The TFPM did not advise him on the risk of torture or mistreatment post-transfer. Prior to the start of site visits by Canadian officials in May 2007, MGen (ret’d) Grant had an agreement with the AIHRC, pursuant to which they were to provide notice should they learn that a detainee transferred by the CF had been mistreated. MGen (ret’d) Grant said that despite being named in this agreement, the TFPM was not the person he expected to liaise with the AIHRC. MGen (ret’d) Grant learned in April 2007 that the AIHRC was facing problems with access to NDS facilities, but did not know whether the TFPM was aware of these access problems.

Following the release of the Globe and Mail articles in April 2007, the decision to transfer detainees was taken out of MGen (ret’d) Grant’s hands and taken over by LGen (ret’d) Gauthier at CEFCOM. MGen (ret’d) Grant explained, though, that the May 3, 2007 restructuring of the transfer regime was led by himself, his deputy, and people from DFAIT. He did not consider that his TFPM was involved in the decision-making process for that restructuring. Moreover, once the new process was in place and site visit reports were being created, MGen (ret’d) Grant received those reports, but said he would not have sent them to his TFPM.

Thus, at Task Force Headquarters as at CEFCOM, site visit reports stayed within a small group of people in the Afghan theatre. This group included the Task Force Commander, his deputy commander, and the JAG lawyer. The person responsible for gathering and maintaining information on post-transfer detainee matters, as of May 3, 2007, became a non-MP detainee officer. MGen (ret’d) Grant said it was a conscious decision on his part that the detainee officer not be an MP, since, in his opinion, the TFPM’s role related specifically to managing the detainee transfer facility. While MGen (ret’d) Grant said he would have provided the site visit reports to the TFPM if asked, he would not have done so on his own initiative. In his mind, the MP role was clearly defined, and limited to the handling of detainees at the transfer facility.

MGen (ret’d) Grant was given the green light from LGen (ret’d) Gauthier to resume transfers on or around May 19, 2007. With the supplemental arrangement in place, MGen (ret’d) Grant was satisfied transfers could resume. The legal test by which MGen (ret’d) Grant worked, when deciding to transfer detainees, was that a transfer could only occur where there were not substantial grounds for believing there was a real risk the detainee would face subsequent abuse or mistreatment. In this regard, he had a lawyer providing him advice, and felt the TFPM would, in a general sense, have been aware that he was receiving legal advice on this point.

iv. ROTOs 4 & 5 - Task Force Headquarters

The Commission heard from MGen (BGen when in Afghanistan) Laroche and BGen (then Colonel) Juneau about the information environment during ROTOs 4 & 5 at Task Force Headquarters, and MP access to such information. MGen Laroche, the Task Force Commander who succeeded MGen (ret’d) Grant, said his contact with his ROTO 4 TFPM, Maj Zybala, was frequent, but he perceived the TFPM’s role as limited to policing and the management of the transfer facility. When interacting on detainee matters, he did not view post-transfer issues as part of the TFPM’s mandate. That said, he described the post-transfer risk to detainees as a “regular topic of conversation” and said the TFPM was part of that discussion under the aegis of a decision-making committee dealing with detainees issues. BGen Juneau clarified in his evidence, though, that this committee did not meet together, rather the members contributed their input to assist the Commander in making his transfer decisions. BGen Juneau did not recall transferring information to the TFPM about the post-transfer mistreatment issue, nor would he have considered such an issue to have been the TFPM’s concern. The TFPM would provide input to the Task Force Commander on the evidence indicating a detainee might be a Taliban insurgent, but not on the risks to detainees post-transfer, nor was he likely to have received information on this topic.

MGen Laroche read certain of the international reports indicating the risks of detainee abuse, and was aware of problems with the human rights situation in Afghanistan. He understood those problems to be the reason why Canada had taken steps to have a system of follow-up visits. MGen Laroche had not, however, seen the site visit reports created prior to his time in Afghanistan, reports that included allegations of torture and mistreatment. He understood that he, personally, could be held responsible for what happened to Afghan detainees post-transfer.

MGen Laroche received site visit reports containing allegations of abuse in September 2007, but transfers continued pending a DFAIT investigation into those allegations. Michèle Ouimet’s article in La Presse in late October 2007, combined with the fact no visits had occurred for the whole month of October, caused him to seriously consider suspending transfers. Shortly thereafter, the November 5, 2007 site visit during which allegations and implements of torture were discovered occurred. BGen Juneau (in the Task Force Commander’s absence) suspended transfers.

BGen Juneau indicated that he recalled Maj Zybala being involved with the discussions when consideration was being given to suspending transfers, but he could not say whether the TFPM knew the particular reasons for the stoppage or was aware of the complaints of post-transfer abuse.

MGen Laroche did not allow transfers to resume until late February/early March 2008, following the implementation of additional measures, including a significant increase in frequency of visits, an RCMP-led training program for NDS officers, purchase of video cameras for NDS interviews, and evidence that one of the persons responsible for the November 5, 2007 torture allegation was relieved of his duties. Maj Zybala was generally aware of all these measures. No new allegations of abuse were received during the time frame of this complaint.

Maj Gribble replaced Maj Zybala as TFPM for ROTO 5. BGen Juneau explained that Maj Gribble was rarely involved with questions related to detainee transfers.

v. ROTOs 3, 4 & 5 - DFAIT in Afghanistan

The Commission explored the information environment among certain DFAIT personnel in Afghanistan, with a view to determining whether DFAIT information about detainee treatment made its way to the Military Police subjects of this complaint. For the most part, it did not.

Mr. Colvin, while he was stationed with the Provincial Reconstruction Team (PRT) in May/June 2006, attempted to convey information about the risk of mistreatment of Canadian detainees by the Afghans. While he said he had feedback that the ROTO 1 TFPM was told about his concerns, this would have occurred almost a year before the timeframe of this complaint, well before Maj Hudson (the first TFPM subject in the chronology of this complaint) was in theatre. Mr. Colvin conducted a site visit to detainees in Kabul in June 2007, when Maj Hudson was in theatre, but said the distribution list for these types of reports had been seriously curtailed by that time, and did not include the Military Police. Three other DFAIT witnesses were questioned regarding the information they had about post-transfer treatment of detainees in Afghanistan during ROTOs 4 & 5. Mr. Ed Jager was the policy advisor to MGen Laroche. He was the first to receive the site visit reports over the secret DFAIT C4 network, but made clear he never distributed them to the TFPM, nor could he recall the TFPM being present at a meeting where detainees were discussed. The other two DFAIT witnesses were Mr. John Davison, the political director for DFAIT at the PRT, and Mr. Nicholas Gosselin, the individual chiefly responsible for conducting site visits commencing with the November 5, 2007 visit when the implements of torture were found. These two witnesses indicated that the distribution list for the site visit reports was limited and did not include members of the Military Police. Furthermore, they never personally conveyed information about their visits to the Military Police.

National Investigation Service Investigations into Detainee Handling

The Commission reviewed a number of NIS investigations into detainee issues, most of which pre-dated the complaint in this inquiry. None of the NIS investigations dealt with the legality of the Task Force Commanders’ transfer orders, with, perhaps, one small exception. Due to resource pressures, investigation of many of these allegations was delayed until 2008. All of the unresolved investigations were placed under one investigative umbrella called Operation Centipede on March 19, 2008. Maj Francis Bolduc in Ottawa was placed in charge. Some of the incidents slated for investigation included allegations the Afghan authorities summarily executed or abused prisoners. However, in each case of this type investigated by the NIS, it was determined the individuals in question could not previously have been in CF custody. In one other case, CF members learned of a threat to execute a detainee upon transfer to the Afghan authorities, and that a different detainee had been beaten by the Afghans after transfer. The one detainee was not transferred, the other retrieved. The NIS concluded the CF personnel in those instances took appropriate action.

One investigation within Operation Centipede had the potential to address whether the detainee transfer orders were illegal. The April 23, 2007 article by Graeme Smith of the Globe and Mail was scanned in its entirety into the Operation Centipede file. This was the article in which Graeme Smith reported on interviews with a number of CF transferred detainees who alleged abuse and torture following transfer. The article contained the names and some details about these individuals, and mentioned the provisions of the Third Geneva Convention. This was the article that CEFCOM researched, concluding some of the detainees mentioned were confirmed Canadian transferees. It was also the article that immediately preceded a halt to detainee transfers.

The NIS Globe and Mail investigation concluded on November 19, 2008, after the time frame of this complaint, and after the retirement of LCol (ret’d) Garrick as Commanding Officer of the NIS. It is clear the NIS investigation consisted of nothing beyond reading the articles in question. No attempt was made to confirm any of the allegations, or to contact the detainees or the journalist. The NIS was unaware of the CEFCOM fact-check that confirmed some of the detainees had been in Canadian custody. Not a single external source of information was considered or reviewed. Nevertheless, the Concluding Remarks included the following statement: “[...] considering the general rules of evidence, the inadmissibility of statements as they pertain to hearsay information, and the lack of any other credible evidence, there is no satisfactory justification to continue this investigation.” It appears the investigators never considered whether the orders to transfer may have been illegal, and worked on the presumption that if anyone had behaved illegally, it was solely the Afghan authorities.

Expert Analysis of the Complainants’ Legal Allegations

Before assessing whether the MP subjects failed in their duty to investigate, the Commission reviewed evidence from two experts on the international and domestic legal instruments cited by the Complainants as potentially relevant to the transfer decisions in Afghanistan. The Commission concludes there were criminal and service offences known to law which could have, if the factual underpinnings existed, formed a basis in law for police investigation of the Task Force Commanders’ transfer orders. The experts gave their opinion that, depending on the facts disclosed by an investigation, the offences potentially to be considered might include aiding and abetting torture, negligent performance of a military duty contrary to the National Defence Act, and others. A common thread was that it would be a violation of international law to transfer a detainee to a substantial risk of torture, although it is less clear to the Commission what the proper definition of “substantial risk” should be.

It is important to note that this Commission’s mandate does not extend to making findings of criminal or possible criminal liability against military commanders. Instead, the Commission’s task was to assess whether there were offences known to law which could potentially have been investigated if the facts supported them, and whether the MP subjects of this complaint had a duty to do so in light of the facts known to them. The Commission remains cognizant of the complexity of the legal issues raised by the Complainants. Even after hearing expert evidence, the exact state of the domestic and international law governing the detainee transfer decisions in the context of CF support of the ISAF mission in Afghanistan was not entirely clear. The MP subjects cannot be expected to have had a clearer understanding. Indeed, they are not expected or required to evaluate the evidence in any investigation against precise legal standards. That is the task of other participants in the justice system, such as prosecutors, defence counsel, and judges.

Legal Standard of Conduct Applicable to the Military Police

As with all of its decisions, the Commission assessed the conduct of the subjects of this inquiry against the standard of a reasonable police officer in the prevailing circumstances. The expected standard of conduct is not perfection, or even the optimum, when viewed with the benefit of hindsight. A core issue in this inquiry is when police officers have a duty to self-initiate an investigation. The principle to be derived from the governing policies and jurisprudence is that so long as police officers have exercised their discretion not to investigate in a reasonable manner, they will not be faulted for deciding not to investigate. Where a police officer does not possess a reasonable suspicion a crime may have been committed, and therefore never gets to the point where he or she must decide whether or not to initiate an investigation, the question is whether the fact that no reasonable suspicion was formed was reasonable in the prevailing circumstances. In this respect, MPs are to be held accountable for information which they knew, or to which they were wilfully blind. In addition, they may be held accountable for information which a reasonable police officer in the circumstances ought to have known.

Certain MP policies and directives make it mandatory for the Military Police to initiate an investigation in particular circumstances. One such circumstance would be the receipt by an MP in theatre of a direct allegation of a breach of international law by a CF member. During the time framed by this complaint, there is no suggestion of a direct allegation of this nature being brought to the attention of the Military Police.

Whether the Subject MPs Possessed Knowledge Triggering a Duty to Investigate

Having set out the information environment and the standard to which the MP subjects would be held, the Commission considered the ultimate question in this inquiry: Did the subjects possess knowledge about the detainee transfer process and the Task Force Commanders’ orders which triggered a duty on their part to investigate those commanders? This called into question the professional conduct and personal reputations of eight individual MP members, all of whom have had long careers of dedicated service to the Canadian Forces and Canada. For this reason, the reader is strongly encouraged to read the full text of this Report, including the specific sections on the subject MPs, in order to have the full perspective on their conduct. Following is little more than a brief summary of the reasons why the Commission concluded that the allegations against the subject MPs were unsubstantiated.

The Commission concluded it was reasonable during the timeframe of this complaint for the eight subjects not to have investigated the legality of the Task Force Commanders’ transfer orders. The conduct of each of the subjects was considered individually, but certain common themes emerged:

Beyond this generally common set of factors, the reader is referred to the main body of the Report for the individualized, subject by subject analysis of why the Complainants’ allegations of a failure to investigate were unsubstantiated. The facts and analysis varied from one subject MP to the next, and cannot be given full consideration in the context of an executive summary. However, certain of the conclusions with respect to the NIS Commanding Officer, LCol (ret’d) Garrick, and the CFPM, Capt (N) (ret’d) Moore, bear mention at this stage.

Just prior to the period of this complaint, LCol (ret’d) Garrick exhibited an awareness of the necessity of investigating any allegations concerning detainees by ensuring the information and allegations made in the Globe and Mail articles were included in the NIS investigations which became Operation Centipede. LCol (ret’d) Garrick’s tenure as CO of the NIS ended shortly after receipt of the June 12, 2008 complaint and, at that time, he expected the Operation Centipede investigations would be thoroughly conducted and would reach broadly enough that they would encompass any allegations of illegality with respect to transfer orders during the period of this complaint. He adequately explained the manner in which discretion was exercised to prioritize investigations, and had no basis upon which to initiate or order an investigation into transfer orders during the timeframe of this complaint. Capt (N) (ret’d) Moore was conscious of the February 21, 2007 Amnesty/BCCLA complaint, which alleged improper MP conduct in transferring detainees to the Afghan authorities. From that point forward, he took several steps to monitor the detainee process and address the allegations against him personally. This included requesting LCol (ret’d) Garrick arrange for an independent body to investigate his role in the detainee transfer decisions, directing LCol (ret’d) Garrick to review existing NIS investigations to see whether they raised concerns about post-transfer abuse, and making inquiries of individuals involved with the detainee process in theatre to canvass their confidence in the process.

Capt (N) (ret’d) Moore testified that throughout his tenure as CFPM he attempted to bring about meaningful changes for the MP branch and the improvement of CF policing. He had serious concerns about the command and control structure within which the Military Police worked, and the ability of his MP members to balance the operational priorities of their various commanders against policing duties. He cannot be personally faulted for the fact he was lacking information with respect to detainee issues, as this seems to have been a product of the very command structure he was attempting to change. The technical chain, through which Capt (N) (ret’d) Moore could exert influence, was an ineffective way for the CFPM to gather information relevant to the detainee transfer process.

Indeed, the Commission saw much evidence to indicate, not only that the Military Police were “siloed” away from operational information potentially relevant to their policing functions, but also that, from one rotation to the next, there were deficiencies in the information flow between the Military Police leaving theatre and those arriving. It should be noted the CFPM was continually attempting to exert greater control over the MP information and decision-making environment in order to enhance MP policing capabilities, both in theatre and in other contexts. This task should now be facilitated by the fact that as of April 1, 2011, the CFPM has direct command over MPs in the exercise of their policing duties and responsibilities in the theatre of operations.

Commission Recommendations to Improve MP Policing in Theatre

The Commission was struck throughout the hearings by the evidence it heard indicating a lack of continuity of knowledge for the Military Police from one Afghanistan rotation to the next. This was the case for detainee issues, in particular, but also for policing issues generally. A non-exhaustive list of examples includes the following:

In order for an in-theatre police force to function effectively it must have a degree of continuity of knowledge and information from one rotation to the next. Important policing issues and potential crimes may go uninvestigated if incoming MPs know too little about what went on during the rotations before them. To borrow an analogy, it would be unacceptable for the police officers of a local detachment or city police force to change entirely every six months without taking serious measures to transfer the existing knowledge base to the newcomers. And yet, the Commission saw repeated examples of MPs coming into theatre with serious information deficits on matters relevant to their policing duties arising during the previous rotation. While there was a slight overlap between successive TFPMs and NIS Detachment Commanders, the focus during that overlap appears to have been task-based and forward-looking. To allow MPs to function at their optimum level of awareness and diligence, or close to it, there must be a robust process for ensuring the transfer of theatre-specific policing knowledge from one rotation to the next.

In the Commission’s view, this is not a radical or even controversial proposition. Frequently this Commission encounters reference to the significance of communicating “lessons learned” within the military from one rotation or operation to another. In the Commission’s view, it is in the interests of the CF and the MP branch that greater attention be paid to the transfer of information down successive rotations. It will inevitably assist the MP branch in supporting the CF’s operational objectives.

The Commission therefore makes the following recommendations:

Recommendation #1: The Commission recommends that the Canadian Forces Provost Marshal implement measures and standards to ensure that MPs deployed during future conflicts are provided the necessary baseline information to be fully educated on potential policing issues stemming from the previous rotation. In order for the MP units in theatre to perform as a seamless policing unit, this baseline information should include:

The CFPM should ensure this information is made available to any MP for whom it is relevant to their duties, and in particular the CEFCOM PM, the CO NIS and the TFPM.

The Commission also identified serious problems with reporting, accountability and information flow from MPs in theatre up through the technical chain to the CO NIS and the CFPM. It appeared there was a “silo” effect such that information about what the military police were doing tended to stay within the chain of command in Afghanistan or at CEFCOM, and only intermittently made its way up the technical chain to the CFPM.

The following is an illustrative list of these problems:

All told, it appeared to the Commission that military police involved with in-theatre matters, at CEFCOM and in Afghanistan, had no guidance as to when they should be ensuring that information with potential policing applications made it up the military police chain of command for assessment and guidance as to the appropriate MP response. As LGen (ret’d) Gauthier noted for operations issues, centralizing information allows commanders to make appropriate decisions and to properly instruct people under their command in their essential duties.

MPs in theatre can at times face all-consuming workloads and highly focused operational demands. They cannot always be expected to maintain a comprehensive overview of trends or developments which may require their attention. Because of this, the CFPM or his designates should become the central repository of all information relevant to the execution of deployed MPs’ essential policing duties so that they can be provided with proper guidance. The CFPM should ensure that he or his designates maintain sufficient information to have a “big picture view” on all policing issues of strategic or high importance, with a view to ensuring that appropriate engagement and direction on policing issues is forthcoming when appropriate.

The Commission therefore makes the following recommendation:

Recommendation #2: The Commission recommends that the Canadian Forces Provost Marshal review the MP reporting structure for all military missions, in theatre and at CEFCOM, to address the problem of information sharing on policing matters. The goal should be to provide a greater degree of MP command oversight in relation to policing matters in theatre.

Commission Commentary and Recommendations on the Hearing Process

A significant portion of the main body of this Report is devoted to describing in great detail the serious obstacles encountered in obtaining necessary documentary disclosure and witness testimony during the course of these hearings. As described in the Report, these obstacles included the following:

Unfortunately, this Commission is not the first tribunal to encounter these types of difficulties. In fact, many parallels were found between this Commission’s experiences and those commented on by the Somalia Commission of Inquiry in its 1997 Report. The 21-month dry spell with respect to document production was particularly disappointing. Many excuses were given, none of which were very convincing. For example, the Government took the position it did not need to produce documents to the Commission if it considered them to be outside the Commission’s mandate. This stance disregarded the Commission’s independent authority to decide for itself what documents and things it considers necessary to the full investigation and consideration of the matters before it. Indeed, Justice de Montigny of the Federal Court of Canada supported this important principle in his September 29, 2011 decision where he said: “[...] it is for the Commission, not for the government to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.” Unfortunately, throughout a significant portion of these proceedings, Parliament’s intent was confounded, at great cost and delay.

To remedy these concerns for future public interest hearings and to seek greater clarification of the matters that led to delays, the Commission makes two additional recommendations:

Recommendation #3: The Commission recommends that the Chief of the Defence Staff and the Canadian Forces Provost Marshal review the process sections of this report in detail with a view to eliminating barriers to efficiently and effectively conducting future public interest hearings, and developing a cooperative approach to document production, witness access, and national security issues. Such an approach would save costs, expedite hearings, and help ensure the Commission is able to properly fulfill its mandate.

Recommendation #4: The Commission recommends that the Minister of National Defence take steps to cause the addition of the Commission by the Governor in Council to the schedule of designated entities as prescribed by section 38.01(8) of the Canada Evidence Act. This would allow the Commission to more effectively obtain information relevant to the discharge of its statutory mandate of providing independent oversight of military policing while at the same time maintaining strict control over any information the disclosure of which has the potential to negatively affect Canada’s national security interests or international relations.

Notice of Action

The Commission issued its Interim Report on December 21, 2011. The Chief of Defence Staff responded in a Notice of Action dated April 3, 2012. For convenience, the Chief of Defence Staff’s Notice of Action is attached as Appendix “A” to this Final Report.

I. Introduction

This Report is in respect of a complaint made by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) made on June 12, 2008. On that date, AIC and the BCCLA alleged, in accordance with section 250.18 of the National Defence Act (NDA), a failure on the part of certain military police (MP) to investigate the officers having command responsibility for directing the transfer of detainees to the Afghan authorities in the face of a known risk of torture.

More specifically, the complaint (known as the “failure to investigate” complaint) alleged members of the National Investigation Service (NIS) in Kandahar, and the Task Force Provost Marshal (TFPM), were aware that former Canadian Forces’ detainees were likely tortured by Afghan authorities, but failed to investigate whether any members of the Canadian Forces (CF) should be charged for their role in facilitating alleged crimes. In particular, it was alleged senior officers occupying the position of Commander of Task Force Afghanistan (Comd JTF-Afg) ordered the transfer of detainees to the custody of the Afghan secret police during the timeframe May 3, 2007 to June 12, 2008 despite compelling first hand reports that previous CF detainees were tortured by those authorities.

AIC and BCCLA referred to potential offences in sections 21–23, 269.1, 265 and 219 of the Criminal Code of Canada; sections 6 and 8 of the Crimes Against Humanity and War Crimes Act; sections 93, 124, 129 and 130(1) of the NDA; Common Article 3 of the Geneva Conventions; and section 3 and Article 147, Schedule IV, of the Geneva Conventions Act.

Pursuant to section 250.38(3) of the NDA, the subjects of the complaint were identified as the following members of the MP: Captain (N) (ret’d) Steven Moore, the Canadian Forces Provost Marshal (CFPM); Lieutenant-Colonel (ret’d) W.H. Garrick, the Commanding Officer of the NIS; Major B. Hudson, Major J.T.M. Zybala and Major R.R. Gribble, Task Force Provost Marshals; and Major J.P.P. Kirschner, Chief Warrant Officer B. Watson and Master Warrant Officer (ret’d) J.Y. Girard, detachment commanders of the NIS in Kandahar.

The events forming the basis of this complaint occurred in the context of the ongoing military conflict in Afghanistan between Taliban insurgents and Afghan government forces supported by Canada and a coalition of other nations participating in the UN mandated International Security Assistance Force (ISAF), which is under NATO command. In November 2001, the Government of Canada decided to participate in the international response to the 9/11 terrorist attacks in the United States. On December 6, 2001, the Taliban government fell in Kabul. ISAF was created as a mission sanctioned by the United Nations (UN) with the Bonn Accords and the UN Security Council Resolution 1386.

As was explained by a number of witnesses, the Canadian involvement in Afghanistan was not only a military mission. It was described as a “collective” or “whole of government” effort involving the CF, the Department of Foreign Affairs and International Trade (DFAIT), the Canadian International Development Agency (CIDA), Correctional Service Canada (CSC) and the Royal Canadian Mounted Police (RCMP). This is a holistic view of peace-building which integrates the otherwise independent pillars of Canada’s presence in Afghanistan into a coordinated and coherent approach within internationally-agreed guidelines. The three pillars of the overall mission (referred to as “3D”) are: defence, development and diplomacy. The CF aspect of the 3D mission is defence and security. The legal basis for Canada’s military engagement rests on the right to individual and collective self-defence recognized by Article 51 of the UN Charter; UN Security Council Resolutions, including Resolution 1368 invoking the right to self-defence and authorizing the creation of ISAF; Article 5 of the North Atlantic Treaty; Article 3 of the Inter-American Treaty of Reciprocal Assistance; and the Bonn Agreement of 2001 creating the Afghan Interim Authority and recording a request to the UN Security Council for the deployment of a UN mandated force to assist in the maintenance of security in Afghanistan.

After the Bonn Agreement, Canada and Afghanistan developed several understandings, including the December 2005 “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan” and the “Arrangement for the Transfer of Detainees between the CF and the Ministry of Defence of the Islamic Republic of Afghanistan”. This latter Arrangement was subsequently followed by a May 3, 2007 supplement, providing for a post-transfer monitoring regime, which is the detainee agreement that AIC and BCCLA refer to in their failure to investigate complaint. Indeed, it is this May 3, 2007 supplement that marks the beginning of the time period of the complaint.

The complaint thus focuses on events that occurred between the time when the May 3, 2007 supplement was executed, and June 12, 2008, the date when the complaint was made. It is during this timeframe that the Complainants allege a failure on the part of the subjects to investigate the Task Force Commanders’ decisions to transfer detainees to the Afghan authorities.

This Report is structured as follows. First, the Commission outlines the nature of this complaint in greater detail, and its link to an earlier complaint filed by the Complainants relating to MP involvement in the actual transfer of detainees. That is followed by a detailed discussion of the hearing process, from February 2007 when the first Transfer Complaint was filed through to the completion of the hearings into the alleged failure to investigate. This process section focuses on the many obstacles to completion of the hearings experienced by the Commission, but also on the important procedural steps taken along the way and the various interlocutory decisions rendered.

The Report then turns to a discussion of the technical arrangements and theatre standing orders applicable to detainee transfers in Afghanistan, and the directives, orders and doctrine of import to the military police when carrying out their policing functions in theatre, particularly where detainees are involved. This includes a discussion of the military police hierarchy and structure.

Next, the Report describes the information environment as it relates to the question of detainee abuse post-transfer in Afghanistan and the transfer process, attempting to determine what information was available to the military police, and, ultimately, the particular subjects of this complaint. The Commission heard evidence of publicly available information about detainee abuse, such as international reports and newspaper articles, and looked as well at the information available at CEFCOM Headquarters in Ottawa, with DFAIT personnel in Afghanistan, and among the CF personnel, MP and non-MP, stationed in Kandahar.

Before turning to what the MP subjects of this complaint actually knew, the Report provides an analysis from expert witnesses on the legal allegations made by the Complainants. This is followed by a section setting out the legal standard of conduct applicable to the military police, in the particular context of a complaint alleging a failure to investigate.

Finally, the Report assesses whether the subject MP possessed knowledge of detainee abuse and the detainee transfer process that triggered a duty to investigate the Task Force Commanders in Afghanistan. The particular knowledge base of each subject MP is described and assessed to determine whether they failed in their duty to investigate. Finally, the Commission makes certain recommendations on the substantive aspects of this complaint, and on improving the process for future public interest investigations and hearings.

II. Outline of the Complaint

On June 12, 2008Footnote 2, AIC/BCCLA submitted their second complaint, with two main aspects. The complaint sought first to update and expand the scope of an earlier complaint (February 21, 2007) to include all transfers of detainees to the Afghan authorities through to June 12, 2008. The complaint also raised new allegations that the MP failed to investigate “crimes or potential crimes committed by senior officers” who may have been aware former CF detainees were likely tortured or abused by Afghan authorities because the Task Force Commander in Afghanistan knew or was wilfully blind to this risk.

On February 21, 2007Footnote 3, AIC/BCCLA had submitted a complaint to this Commission alleging that members of the MP transferred detainees to Afghan authorities, or allowed them to be transferred, notwithstanding evidence that the detainees could be tortured (the “first Transfer Complaint”). On February 26, 2007 the Commission initiated a public interest investigation into that complaint, and in March 2008, the Commission called for public interest hearings. In April 2008, before those hearings could begin, the Attorney General of Canada commenced an application in Federal Court seeking, on jurisdictional grounds, to prohibit the Commission from proceeding with hearings and an investigation into the first Transfer Complaint.

As a result of a jurisdictional decision from the Honourable Mr. Justice Sean Harrington of the Federal Court of Canada, released on September 16, 2009, the Commission’s public interest hearings were limited to the question of an alleged failure to investigate on the part of the MP, raised in the June 12, 2008 AIC/BCCLA complaint. For ease of reference from here on, that aspect of the complaint will be referred to as the failure to investigate complaint.

2.1 Factual and Legal Allegations Made by the Complainants

Justice Harrington’s decision in the Federal Court left the elements of the June 12, 2008 complaint dealing with an alleged failure to investigate by the military police as the only AIC/BCCLA complaint at issue in these public hearings. When hearings first commenced in April 2009, the Commission was investigating both the February 21, 2007 complaint and the June 12, 2008 complaint. When hearings reconvened in October 2009, this was no longer the case.

AIC/BCCLA allege that the MP failed to investigate the officers having command responsibility for directing the transfer of detainees to the Afghan authorities, in the face of what the Complainants term a “known risk of torture” during the period from May 3, 2007 to June 12, 2008.

Specifically, the Complainants suggest members of the NIS in Kandahar and the TFPM in Kandahar were aware of the likely torture of former CF detainees by Afghan authorities, yet they failed to investigate whether any members of the CF should be charged for their role in facilitating these crimes. They cite, as a particular focus of required investigation, the Commander of TFA, who ordered the transfer of detainees to the custody of the Afghan National Directorate of Security (NDS) during the time period of this complaint despite what the Complainants describe as “compelling first-hand reports that previous CF detainees were tortured by those authorities.

The Commission proceeded on the basis that the Complainants assert a failure on the part of certain members of the MP to investigate the legality of the Task Force Commanders’ orders to transfer Canadian detainees to Afghan custody. The Commission did not look beyond the bounds of the complaint into whether other members of the CF ought to have been investigated for their actions in respect of Canadian-transferred detainees.

The Complainants also make submissions as to allegations of criminal and service offences committed by the Task Force Commanders. AIC/BCCLA submit that, when officers in the chain of command order a detainee to be transferred to the custody of Afghan authorities, in full knowledge that the Afghan authorities are predisposed to torturing these persons, a number of criminal and service offences might warrant investigation. These are as follows:

The Complainants also suggest certain aspects of international law apply to the transfer orders. They submit that the CF are participating in an armed conflict in Afghanistan, and as such are governed by the 1949 Geneva Conventions, in particular, Common Article 3. Furthermore, Parliament has chosen to incorporate these international treaties into domestic law by passing the Geneva Conventions Act R.S.C.1985, c. G-3. Section 3 of that Act makes it a crime to commit a “grave breach” of the Geneva Conventions. The Complainants therefore submit that the CF role in handing over detainees to another state party, where those individuals are subsequently tortured, may violate the prohibition against inhumane treatment under Common Article 3. Such violations would, according to the Complainants, constitute grave breaches under Article 147 of Schedule IV of the Geneva Conventions Act, and thus warrant an MP investigation.

At p. 4 of their complaint, AIC/BCCLA state that, following May 3, 2007, when Canada signed a supplementary detainee agreement with Afghanistan that permitted Canadian officials to visit and inspect detainees in Afghan custody, “a large number of highly credible allegations of torture became known to the chain of command of the CF.” The Complainants refer to para 85 of a decision of the Federal Court of CanadaFootnote 4, which they reference as Afghan Detainees I, where the Court found that “complaints of prisoner abuse were received by Canadian personnel conducting site visits in Afghan detention facilities between May 3, 2007 and November 5, 2007.” The Complainants then note the Court also found, at para 86, “the methods of torture described by detainees are consistent with the type of torture practices that are employed in Afghan prisons, as recorded in independent country condition reports, including those emanating from DFAIT.” Therefore, the Complainants allege the allegations of torture were unlikely to be fabricated, and should have been taken with the utmost seriousness by officers in the chain of command.

AIC/BCCLA state in their complaint letter that some time around November 6, 2007, the Acting Commander of TFA issued a temporary moratorium on detainee transfers following a report by Canadian officials who interviewed a detainee held by the Afghan NDS on November 5, 2007. The Complainants cite the following passage from this “disturbing report”:

[The detainee] indicated that he could not recall the [***] interrogation in any details as he was allegedly knocked unconscious early on. He alleged that during the [***] interrogation, [*] individuals held him to the ground while the other [***] beating him with electrical wires and rubber hose. He indicated a spot on the ground in the room we were interviewing in as the place where he was held down. He then pointed to a chair and stated the implements he had been struck with were underneath it. Under the chair, we found a large piece of braided electrical wire as well as a rubber hose. He then showed us a bruise (approx. 4 inches long) on his back that could possibly be the result of a blow.Footnote 5

The Complainants suggest, at p. 5 of their complaint that, while it was a relief to learn that transfers were stopped following this report, they should have been stopped much sooner, and as a result of earlier reports:

In short, officers in the chain of command ignored much evidence of a substantial risk of torture, and ceased detainee transfers only when confronted with evidence of the implements of torture. The use of such a high threshold is not lawful, and at the very least shows wanton or reckless disregard for the lives or safety of other persons.

The Complainants further assert, pursuant to sections 217.1 and 219 of the Criminal Code, that an officer in the chain of command who showed wanton or reckless disregard for the lives or safety of another person while omitting to respect the following duty would have committed the offence of criminal negligence:

Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.Footnote 6

AIC/BCCLA suggest, at p. 6 of their complaint, that CF officers should have heeded widely available public reports on torture in Afghan custody, intimating if they had done so, none of the detainees would have been transferred and tortured. This would have been so even if the public reports on their own did not meet the standard of substantial risk of torture, because the CF later received what the Complainants refer to as “highly credible, direct, first-hand reports” indicating former CF detainees were likely being tortured. The transfer of detainees continued to be ordered despite this “overwhelming” evidence that the detainees faced a serious risk of torture in Afghan custody.

Therefore, the Complainants believe this conduct merited investigation by the NIS branch of the MP, for the range of possible offences cited above. They assert the NIS officers in Kandahar and the TFPM should have investigated the chain of command officers who failed to intervene at an earlier stage (presumably prior to November 5, 2007) to halt detainee transfers. The Complainants suggest the TFPM in Afghanistan arranged individual detainee transfers and played a pivotal role in the chain of command, and yet the Complainants see no evidence the NIS or the TFPM investigated any officer.

The Complainants also suggest the fact the TFPM was likely involved in these “suspect” transfer decisions may have been a factor in the reluctance of other MP members to investigate the matter.

Based on the foregoing, the Complainants requested, in their June 12, 2008 letter, that the Chairperson of the Commission initiate a new complaint in respect of this alleged failure to investigate, and the complaint be referred directly to a public hearing pursuant to s. 250.38 of the NDA in view of the serious nature of the allegations, the significant public interest in the subject matter, and the fact the Commission had already encountered difficulties obtaining information on related issues in the complaint filed on February 21, 2007, described briefly above.

AIC/BCCLA described the public importance and urgency of their complaint as follows, at pp. 6 and 7:

The Federal Court ruled in Afghan Detainees II that individuals held by the CF in Afghanistan are not protected by the Canadian Charter of Rights and Freedoms. However, the Court stated that Canadian law did offer indirect protection to detainees because CF members could be prosecuted for their actions.Footnote 7 This limited protection may be illusory if there is no realistic chance that CF members will be investigated for their knowledge of or role in the torture of detainees by Afghan authorities. In the present case, there is clear evidence that, for at least eight individuals, the chain of custody which started with the CF ended in torture. This is surely a matter that warranted investigation by the MP. For the same reasons, the failure of the NIS and TFPM to investigate is a matter that demands scrutiny by the MPCC.

Finally, the Complainants requested the February 21, 2007 and June 12, 2008 complaints be heard together given the overlap in factual and legal issues.

2.2 Time Period Covered by the Complaint

The failure to investigate complaint covers alleged MP failures to investigate between the period of May 3, 2007 and June 12, 2008, a period of slightly more than a year.

Section 250.2 of the NDA sets out a time limit of one year for the receipt of conduct complaints:

250.2 No complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time.

As such, subject to the discretion of the Chairperson, the time limit can be extended upon receipt of a request from the Complainant. The Commission found AIC/BCCLA had made such a request, and that an extension was reasonable in the circumstances. The Commission therefore granted this short extension of time.Footnote 8

2.3 Subjects of the Complaint

The subjects of the failure to investigate complaint are the CFPM, the Commanding Officer (CO) of the NIS, the NIS Detachment Commanders and TFPMs in Afghanistan during the relevant timeframe of the complaint, that is, between May 3, 2007 and June 12, 2008. The Commission’s September 30th, 2008 decision provides a detailed analysis of why these individuals were identified as subjects. The following is a short summary of those reasons.

The AIC/BCCLA investigation complaint specifically identified members of the NIS in Kandahar, and the TFPM in Afghanistan, as having failed to investigate the transfer decisions. On this basis, the TFPMs in place during the timeframe of this complaint are clearly subjects of their complaint.

The Complainants allege the MP in Afghanistan failed to properly investigate breaches of Canadian criminal law, Canadian military law, and international humanitarian law due to systemic issues resulting from a lack of direction and appropriate guidance from the upper command of the CF Provost Marshal’s office. Moreover, in a letter to the Commission dated July 11, 2008, AIC/BCCLA requested the CFPM be made a subject of the failure to investigate complaint. For this reason, the Commission also found the CFPM to be a subject of this complaint in its September 30th, 2008 Decision.

The Complainants also specifically requested in the letter to the Commission dated July 11, 2008 that the CO of the NIS, in Ottawa, be named a subject. The CO of the NIS during the relevant timeframe was therefore named a subject of this complaint. This decision flowed, too, from the systemic nature of the complaint, as described in the preceding paragraph.

Finally, the Commission decided to identify as subjects the NIS Detachment Commanders in Afghanistan during the relevant timeframe. This was done because the complaint raised systemic issues, and called for a focus on the command structure. As such, the Commission determined the proper subjects among the NIS in Kandahar were limited to the officer or warrant officer in charge of the NIS detachment in Afghanistan during the relevant timeframe.

  1. The September 30 Decision referred only to the positions of the subjects. Their names are as follows: CFPM from May 3, 2007 to June 12, 2008: Captain (Capt) (N) (ret’d) Steven Moore;
  2. CO NIS from May 3, 2007 to June 12, 2008: Lieutenant-Colonel (LCol) (ret’d) William H. Garrick;
  3. TFPM for ROTO 3, February 2007 to mid-August 2007: Major (Maj) Bernie Hudson;
  4. TFPM for ROTO 4, August 2007 to late February 2008: Maj Michel Zybala;
  5. TFPM for ROTO 5, late February 2008 to September 2008: Maj Ron Gribble;
  6. NIS Detachment Commander for ROTO 3, February 2007 to July 2007: Chief Warrant Officer (CWO) (ret’d) Barry Watson;
  7. NIS Det Cdr for ROTO 4, August 2007 to mid-February 2008: Master Warrant Officer (MWO) (ret’d) Jean-Yves Girard;
  8. NIS Det Cdr for ROTO 5, mid-February 2008 to August 2008: Maj John Kirschner.

III. The Hearing Process

Throughout the hearing process, the Commission faced a number of serious obstacles which at times raised doubts as to whether a hearing would be able to proceed at all. The numerous obstacles included:

The manner in which these issues delayed the Commission from being able to proceed with its hearings is discussed below.

3.1 The Commission Decision to Commence a Public Interest Investigation into the Transfer Complaint

As noted, the first Transfer Complaint was received on February 21, 2007.Footnote 9 The Federal Court of Canada eventually determined the subject matter of that complaint to be beyond the jurisdiction of the Commission to investigate. However, much of what happened in the Transfer Complaint process impacted directly on the procedure and substance of the failure to investigate complaint. As such, it is important to understand the procedural history for both the Transfer Complaints and the failure to investigate complaint.

On February 26, 2007, the Commission decided to commence a public interest investigation into the first Transfer Complaint, pursuant to s. 250.38 of the NDA, which states:

250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

The Chairperson can decide to commence a public interest investigation or hearing if it is “advisable in the public interest” to do so. The decision is discretionary. The Chairperson pointed to the following factors as justification:

  1. the inherent seriousness of the issues raised;
  2. media/community interest and attention to the issues;
  3. the threat to public confidence in the MP which the allegations pose;
  4. the fact the CFPM had been named as a subject; and
  5. the fact the complaint indirectly called into question directives, orders and standing procedures developed at senior levels within the CF and the Department of National Defence (DND).

The public interest investigation of the first Transfer Complaint started on February 26, 2007, and continued until the March 12, 2008 decision to commence public interest hearings. The Commission was very active, during that period of time, in investigating the first Transfer Complaint and the allegation certain members of the MP transferred or allowed the transfer of Afghan detainees “notwithstanding abundant evidence from publicly available credible reports the Afghan National Police (ANP) and NDS routinely torture detainees.Footnote 10

On February 20, 2008, the Commission provided a one-year Status Report on the investigation into the first Transfer Complaint. That Status Report provided a description of the work accomplished and the barriers faced by the Commission in the first year of its investigation into the first Transfer Complaint.

The first step taken in the public interest investigation was to request copies of all documents and records in the possession of DND related to the transfer of Afghan detainees by CF MP members to Afghan authorities. This broad request was subsequently refined into more discrete categories and specific documents in certain cases, as the investigation progressed.

DND responded by creating a special team within the Strategic Joint Staff called the Detainee Information Support Team (DIST), whose mandate it was to respond to MPCC document requests. While there was initially some questioning of the Commission’s jurisdiction to investigate this complaint by senior military officials, the issue appeared to have been resolved in the Commission’s favour by the Minister of the day, who directed a posture of cooperation with the Commission.

Following this initial questioning of the Commission’s jurisdiction and cooperative approach adopted by the Minister, the Commission’s investigative team anticipated a relatively collaborative relationship with DIST officials, thereby enabling the Commission to make progress in its investigation. The Commission obtained and reviewed over 1300 documents, and conducted some 38 interviews, primarily with CF personnel and DND officials at various levels, in Ottawa and other locations in Canada.

However, progress was slow. The Commission’s impression at the time was that the slow rate of progress related to limited DIST resources, and the inability of DIST to focus uniquely on the information requirements of the Commission. DIST was also responsible at the time for coordinating the disclosure of documents for ongoing investigations by the CFNIS, an internal CF Board of Inquiry (BOI) with respect to detainee-handling by CF personnel in Afghanistan, and in response to the numerous requests for documents on this subject from the public (including the news media), pursuant to the Access to Information Act.

The Commission noted, as well, that DIST was involved in advising on the application of section 38 of the Canada Evidence Act (information potentially injurious to national defence, national security or international relations) to documentary evidence being disclosed in the Federal Court proceedings commenced by the Complainants.

DND was cooperating with the Commission at the time, albeit slowly. The Commission’s obstacles were more substantial when it came to the level of cooperation from other Government departments and agencies. The Commission did not limit its sources of information to the aforementioned federal departments and agencies. It engaged other organizations and individuals, within and outside the Government of Canada, for assistance in this respect, but as the Commission noted at the time, the success of the public interest investigation was ultimately dependent on the voluntary cooperation of Government authorities.

The Commission noted, as well, that around the time of the one-year Status Report, a Government of Canada lawyer, Mr. Alain Préfontaine, was designated as the Commission’s single point of contact in respect of all federal departments and agencies for the purposes of the public interest investigation into the first Transfer Complaint.

Mr. Préfontaine wrote to the Commission on February 22, 2008, in response to the one-year Status Report. He took the opportunity to reiterate the Government’s commitment to cooperate with the Commission in the conduct of its investigations, but stated the Commission would not receive more information informally than it could compel to be produced by subpoena, and therefore would not receive information covered by ss. 37 and 38 of the Canada Evidence Act. This limitation on information was contrary to past practices with the Commission. Mr. Préfontaine referred to the fact DND had previously provided the Commission with sensitive information as having been done on an “exceptional basis,” based on DND’s unique relationship with the Commission. He indicated DFAIT had “already responded to most of the requests made by the Commission” and would continue to assist the Commission by providing it with all it could receive were the Commission to use subpoena powers.

3.2 The Commission Decision to Hold a Public Interest Hearing into the Transfer Complaint

On March 12, 2008, the Commission decided to hold public interest hearings into the first Transfer Complaint. The decision was basically made for the same reasons a public interest investigation had been initiated, with the additional factor being that, as of March 12, 2008, the Commission was not receiving the level of Government cooperation required, and therefore found it necessary to invoke the public interest hearing process, and the subpoena powers that process provides. The Chairperson stated:

It was explicitly acknowledged in my earlier decision that in proceeding with a public interest investigation, without a hearing, the Commission was relying on the cooperation of relevant government authorities. The decision clearly stated that the mechanism of a hearing, with the concomitant power to compel evidence, would be utilized, inter alia, if required to obtain the necessary cooperation with the investigation. Unfortunately, that point has been reached and the Commission must now seek to compel relevant information from the Government which the latter has declined to provide voluntarily. Therefore, in light of the need to compel further cooperation with the Commission’s investigation, as well as the factors noted above with respect to the nature of the complaint itself, I have determined that a hearing process in support of this investigation is warranted.

The Chairperson noted the March 12, 2008 decision to hold public interest hearings was important, invoking the significant authority provided to the Commission in the NDA. In the context of such a hearing, the Act gives the Commission powers similar to those of a public inquiry to compel the attendance and testimony of witnesses and to require the production of documents and other evidence.

The principal difficulty leading to the decision to hold public interest hearings was the Government’s refusal to provide the Commission with access to relevant documents and information under the control of departments such as DFAIT and the Correctional Service of Canada (CSC). At the time, DFAIT and CSC only offered access to documents and information which had been subjected to significant redactions under the Canada Evidence Act, in respect of proceedings in the Federal Court between the Government and the Complainants. The Government refused to provide the Commission access to uncensored documents and information from these two departments, and, indeed, from all Government sources. This was despite steps taken and ongoing commitments by the Commission to protect sensitive information.

3.3 Application for Judicial Review of the February 21, 2007 Complaint and Decision to Hold Public Interest Hearings

On April 11, 2008, the Attorney General of Canada filed an application for judicial review in respect of the decision made by the Chairperson on March 12, 2008 to hold a public interest hearing into the first Transfer Complaint.

The Attorney General of Canada asserted the first Transfer Complaint was not about the conduct of an MP in the performance of any of the “policing duties or functions”, as that expression is defined by subsection 250.18(1) of the NDA and section 2 of the Complaints About the Conduct of Members of the Military Police Regulations [hereinafter Conduct Regulations], P.C. 1999–2065. As such, the Attorney General of Canada asserted the Commission did not have jurisdiction to either investigate or hold public hearings into the February 21, 2007 AIC/BCCLA complaint.

AIC and BCCLA were named as the respondents. The Commission would eventually seek, and acquire, limited standing to intervene in the Federal Court proceedings, both when the Attorney General sought a stay of the Commission’s proceedings in the spring of 2009, and when the actual judicial review application was argued before Justice Harrington in August 2009.

Over the next year, Commission lawyers and staff had to devote significant time and resources to this judicial review application, and a subsequent one filed by the Attorney General of Canada. Over the summer of 2008, for example, the Commission had to assemble what ended up being a voluminous record of its decision to proceed to public interest hearings. This was requested by AIC and BCCLA in the context of the Federal Court judicial review proceedings launched by the Attorney General of Canada. A very large number of documents were responsive to this Rule 317 (Federal Courts Rules) request,Footnote 11 and it therefore took the Commission a significant amount of time to assemble this record.

The situation was further complicated by the fact the relevant materials were subject to a notice pursuant to s. 38.01(1) of the Canada Evidence Act that “sensitive information or potentially injurious information is about to be disclosed [...] in the course of a proceeding [...]”. The fact such a notice was issued meant the Commission had to comply with the provisions of the Canada Evidence Act before disclosure of its record of decision could occur. Thus, after assembling the material, the Commission engaged in a vetting process with the Attorney General of Canada, and then the materials were submitted to the National Security Group (NSG) in the Department of Justice for a final decision (short of taking the matter to the Federal Court) on the degree to which redaction (i.e., blacking out passages) was required. The redacted record of decision was eventually served on the parties to the judicial review proceedings, and filed with the Federal Court of Canada. It therefore forms part of the public record for those proceedings. The process was lengthy and time consuming, however, and took several months to complete.

3.4 Failure to Investigate Complaint Filed June 12, 2008 by the Complainants

Approximately two months after the Attorney General of Canada initiated the challenge to the Commission’s jurisdiction, AIC and BCCLA filed their new complaint. This complaint letter, dated June 12, 2008, has already been described in detail above.

3.5 The Commission’s September 30, 2008 Reasons Accepting Jurisdiction Over the June 12, 2008 Complaint

The Commission accepted jurisdiction over the June 12, 2008 complaint in reasons issued September 30, 2008. The Commission, in a decision nearly 80 pages in length, set out its position on numerous procedural and jurisdictional issues. The decision included background information on the MP, the Commission, and the MP role in Afghanistan. It also contained the Commission’s reasons for accepting jurisdiction over the second Transfer Complaint, which was similar in substance to the first Transfer Complaint, and the failure to investigate complaint. The decision also identified, without specifically naming, the subjects of the second Transfer Complaint and the failure to investigate complaint.

The Commission also decided on September 30, 2008 to hold public interest hearings into the new failure to investigate complaint. The reasons given in the Commission’s March 12, 2008 decision to hold public interest hearings into the February 21, 2007 complaint were held by the Commission to apply with equal weight to the failure to investigate complaint. The Commission noted the high degree of factual similarity between the Transfer Complaints and the failure to investigate complaint. It also noted, based on its experience to date, that it expected to be denied access to necessary documents and information. The Chairperson stated as follows, at pp. 66–67 of that decision:

I simply cannot foresee acquiring the necessary cooperation and access to the relevant documents and information under the control of the DFAIT and CSC. Indeed, an initial review of the AIC/BCCLA complaint, coupled with the Complaints Commission’s growing familiarity with and understanding of the detainee file as a whole, leads me to conclude that the Complaints Commission will require access to that same documentation and information, and will be denied.

The decision was also made on September 30, 2008 to sever the two aspects of the June 12, 2008 complaint. The portion dealing with custody and detention was to be heard with the first Transfer Complaint-- the only logical approach given the second Transfer Complaint was, in fact, a request for expansion of the first Transfer Complaint. Next, the Commission ruled it would hear the failure to investigate complaint and the newly joined Transfer Complaints together to avoid duplication and overlap. The Commission noted, at p. 78, it was “in the public interest [...] that the three complaints be heard together for so long as it is practicable and desirable to do so [...]”. Also in this decision, the Commission granted the extension of time for the failure to investigate complaint discussed above.

3.6 Attorney General of Canada’s Second Application for Judicial Review, in Respect of the June 12, 2008 AIC/BCCLA Complaint (October 30, 2008)

Following the release of the September 30, 2008 decision accepting jurisdiction over the second Transfer Complaint and the new failure to investigate complaint, the Attorney General of Canada launched a second judicial review application in Federal Court on October 30, 2008.

The Attorney General made almost identical arguments with respect to the Commission’s jurisdiction to inquire into MP conduct when handling detainees, and sought, as in April 2008, the related orders, declaration, and prohibition with respect to the Commission’s September 30, 2008 decision to hold public interest hearings into the second Transfer Complaint.

The Attorney General challenged the Commission’s decision to hold public interest hearings on the failure to investigate complaint in a number of ways. Among other arguments, the Attorney General alleged the Commission was attempting to review the policy decisions made by Government officials in relation to the transfer of Afghan detainees. This, said the Attorney General, was outside the mandate of the Commission. The Attorney General also challenged the Commission’s characterization of the failure to investigate complaint as dealing with systemic issues.

The Attorney General eventually conceded before the Federal Court the Commission did have jurisdiction to investigate the alleged failure to investigate on the part of the MP, within certain bounds. In the ensuing months, the Federal Court challenge to even that aspect of the AIC/BCCLA complaints would remain in place and require the attention of Commission resources.

As a result of this second judicial review application by the Attorney General, the Commission received another request under the Federal Court Rules for its record of decision. This again required time and effort on the Commission’s part to assemble and vet documents for national security concerns, although to a lesser extent than previously.

3.7 December 4, 2008 Procedural Overview

On December 4, 2008, the Chairperson at the time, Mr. Peter A. Tinsley, convened a procedural overview to address a number of issues, including the effect of the judicial review applications brought by the Attorney General of Canada, and the effect of s. 38 of the Canada Evidence Act on the Commission’s proceedings. The Commission also addressed a number of procedural issues including preliminary motions, proposed Rules of Procedure, and access to witnesses and documents.

With respect to the pending proceedings in the Federal Court, the Commission advised that the public interest hearings would proceed regardless. At the time, no application for a stay of proceedings had been made by the Attorney General.

The Chairperson also commented on the challenge to the Commission’s proceedings presented by s. 38 of the Canada Evidence Act and national security and national defence information. The Chairperson advised the parties that a s. 38 Canada Evidence Act notice had been issued by the Government over all of the documents which the Commission had obtained from DND during the public interest investigation into the first Transfer Complaint. The Commission had been given these documents in non-redacted form, i.e., without any portions blacked out for national security or related purposes, and had taken the necessary safeguards to protect them. At the time, Commission counsel were looking to negotiate cooperative ways to facilitate speedy s. 38 review of those documents in order to make as much as possible of their content public. One idea unsuccessfully proposed by Commission counsel at the time was to create factual summaries of the non-redacted materials already in the Commission’s possession, which could then be redacted in a shorter period of time and released publicly.

The Commission was also seeking to find a solution to its inability, at the time, to acquire non-redacted materials from other federal government departments. One of the reasons given for not providing such material was that the Commission is not listed on the Schedule to the Canada Evidence Act as a designated entity capable of receiving information protected by s. 38 of that Act. The Commission noted during the procedural overview this had not been an issue with the information received from DND, and should not reasonably have been an issue with the other departments. As noted by the Chairperson at the time:

This is a standing Commission, with a statutory mandate to investigate complaints into certain issues related to the MP. Many departments and agencies may well have possession of documents that are relevant to such investigations.

The Arar Policy Review Report quite clearly pointed out the need for review bodies, dealing with national security and classified information, to have access to information which may be held by a variety of departments, since there are a significant number of departments and agencies which may well be involved in issues related to national security, national defence and international relations.

It should be quite clear that this Commission is an independent agency, but it is an agency of Government, and it is an advisory body to the Minister of National Defence.

The Commission is subject to the Government Security Policy. My staff are public servants, and have all the necessary security clearances.

We are fully aware of the need to protect classified information. The Commission will not compromise national defence or national security in the course of investigating complaints.Footnote 12

The Chairperson also advised that in July and November 2008 he had requested the Minister of National Defence to add this Commission to the Schedule of designated agencies under the Canada Evidence Act, such as boards of inquiry under the National Defence Act, the Information Commissioner, the Privacy Commissioner and the Security Intelligence Review Committee. This would enable the Commission to obtain information which may be deemed sensitive under the Canada Evidence Act. As of December 2008 no answer had been received.

At the procedural overview on December 4, 2008, Mr. Paul Champ, counsel for the Complainants, advised there was a “very strong possibility” the Complainants would not be represented by counsel once substantive hearings began. He had acted as their counsel to that date on a pro bono basis and indicated, while the Complainants would attempt to ensure someone was present at the hearings, that person might not be legal counsel.Footnote 13 On that day as well, the Commission learned Capt (N) (ret’d) Steven Moore would be represented by outside counsel at the hearings, with the other subjects at the time continuing to be represented by counsel from the Department of Justice.Footnote 14

As of December 4, 2008, the intention was that two members of the Commission would sit as a panel to hear the evidence. Mr. Tinsley was to be Chairperson, and Mr. Roy Berlinquette was to sit as the second member of the panel.

Other topics discussed at the Procedural Overview included the Rules of Procedure that would govern the proceedings,Footnote 15 the major areas to be examined at the hearings,Footnote 16 and issues related to witness access and document disclosure. The major areas of examination would change, of course, with the Federal Court decision limiting the Commission’s jurisdiction to the question of an alleged failure to investigate on the part of the MP.

With respect to witness access and document disclosure, Commission counsel highlighted on December 4, 2008 the difficulties the Commission had faced since the judicial review application was commenced by the Attorney General in April 2008. Commission counsel at the time had requested interviews with 38 different witnesses, and had provided, ahead of time, a general list of questions to be posed to those witnesses. No witness access had yet been made available, and Commission counsel noted the Commission would “require the cooperation of Government in securing access to these witnesses [...]Footnote 17 Commission counsel noted, “since the commencement of the first judicial review application in April, the Government has essentially stopped providing the Commission with documents.Footnote 18 This was despite Commission requests for documents in March and November 2008. Commission counsel noted, perhaps presciently, it might soon need to resort to using its subpoena powers: “When the hearing is convened, this Commission will have the power to summons witnesses to attend with relevant documents. Until that point, however, it appears the Government will not willingly provide those documents to the Commission.Footnote 19

In response, and speaking on this occasion for the Government of Canada, Mr. Préfontaine advised the Commission the Government was willing to cooperate, but could not compel witnesses to participate in voluntary interviews. He advised that the prospect of pre-hearing interviews had been put to all witnesses, but “all of the witnesses who had responded to the request had declined the request for a voluntary interview.Footnote 20

With respect to document production, counsel for the Government advised as follows:

As for the production of documents, there is obviously an issue as to what is relevant and within the mandate of the Commission, which is presently before the Federal Court.

And until that is resolved, there is no reason or requirement to produce documents which fall outside of what the Government considers falls within the mandate of the Commission.

Those documents that fall within the parameters of the Commission’s jurisdiction are looked at and will be produced, but subject to section 38 of the Canada Evidence Act.

And quite obviously, the super-imposition of those two processes takes time.Footnote 21

Following these comments, the Chairperson noted “serious challenges are being presented to the Commission in terms of matters of access to witnesses, and the ongoing provision of documents.Footnote 22 The Chairperson expressed his desire to have the substantive hearings commence in February 2009.

3.8 The BCCLA Application for Funding

On January 15, 2009, the Commission received a Notice of Motion from the Complainant BCCLA requesting the Commission recommend to the federal Government that it provide legal funding for the Complainants to “fully participate in the public interest hearing.” The grounds for the motion included: (1) the Complainant was a charitable organization lacking funds to pay counsel for lengthy public interest hearings; (2) the significant amount of pro bono work their counsel, Mr. Paul Champ, had already done for these hearings and related litigation; (3) legal representation by counsel for BCCLA, with knowledge of the factual and legal issues engaged, would improve the quality, efficiency and expediency of the proceedings; and (4) the public interest would be served in funding counsel, given the public importance of the issues raised in the complaint.

On January 30, 2009, Mr. Préfontaine wrote to Commission counsel in respect of the motion brought by the Complainant, speaking on behalf of his client the federal Government. He stated his client would consider any recommendation made by the Commission, but requested the assistance of the Commission in articulating why funding the Complainant would be in the public interest given:

The Commission decision released on February 5, 2009 recommended the Government pay for legal counsel, Mr. Paul Champ, to participate in the hearings. The Commission was satisfied BCCLA had demonstrated it would not be able to participate in the proceedings without such funding. The Commission found, as well, it would be unrealistic to require a participant to locate counsel able to dedicate the necessary time and resources to the hearings on a pro bono basis. The other reasons for recommending funding included providing the Complainant a full and ample opportunity to participate, the Complainant’s demonstrated commitment to public accountability and civil liberties, the special expertise of the Complainant, particularly as represented by Mr. Champ, and factors set out in the case of Jones v. Canada (Royal Canadian Mounted Police Public Complaints Commission), 1998 CanLII 8157 (F.C.) and decisions from Justice O’Connor in the Arar Inquiry.

The Government of Canada replied three months later, after the substantive hearings had begun, advising Mr. Champ it would not fund legal costs for his client’s participation in the hearings. No reasons were given. The letter was signed by Mr. Alain Préfontaine, who, as noted, was simultaneously acting as counsel for the Government and for all but one of the subjects of AIC/BCCLA’s complaint.

Despite the funding decision by the Government, Mr. Champ did continue to represent the Complainants during the public interest hearings, and the related Federal Court hearings, apparently on a pro bono basis. However, in time, he secured the assistance of three other lawyers, Ms. Grace Pastine and Ms. Carmen Cheung, staff lawyers with the BCCLA, in British Columbia, and Mr. Khalid Elgazzar of Champ and Associates.

3.9 Stay Application

After the procedural overview, the Commission issued a Notice of Hearing on January 16, 2009, advising hearings would commence on February 17, 2009 in accordance with the Chairperson’s stated intentions. On January 29, 2009, Mr. Préfontaine wrote to Commission counsel requesting the Commission stay its public hearings “[i]n order to give the Federal Court a reasonable opportunity to settle the question of the Commission’s jurisdiction.” The request the Commission stay or suspend proceedings was made on behalf of the “Government of Canada”. The Government of Canada submitted, through its counsel, that […] by requesting a stay, the Government of Canada sought to prevent irreparable harm to the reputation of soldiers recently returned from Afghanistan, risk to national security that may arise from inadvertent or uninformed disclosure of national security information and the potentially needless expenditure of time, effort and resources for purposes his clients maintained were not authorized by Parliament.

The Commission sought submissions from the parties on the request for a stay, and adjourned hearings temporarily to address the matter. On March 26, 2009, in lengthy reasons, the Chairperson issued a ruling refusing to stay or adjourn the public interest hearings pending the outcome of the Attorney General’s jurisdictional challenges in Federal Court.

On March 27, 2009, the Attorney General filed a Notice of Motion seeking a stay order from the Federal Court. As with the judicial review applications themselves, AIC/BCCLA were named as respondents, not the Commission. The Commission succeeded in obtaining intervener status.

The Honourable Mme. Justice Anne Mactavish refused to grant the Attorney General a stay of the Commission’s public interest hearings.Footnote 23 She applied the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which required the Attorney General to establish: (1) that there is a serious issue to be tried in the underlying judicial review application; (2) that irreparable harm will result if the injunction is not granted; and, (3) that the balance of convenience favours the granting of the stay.

Justice Mactavish, in her reasons for decision on the stay motion, noted the Attorney General had conceded the Commission’s jurisdiction to hear the failure to investigate complaint, if “properly framed”. At paras 24 and 25 of her judgment, she stated:

Insofar as the failure to investigate complaint is concerned, the Attorney General acknowledges that a complaint regarding the failure of MP officers to investigate unlawful conduct, properly framed, could form the subject matter of a complaint within the jurisdiction of the MPCC. However, the Attorney General argues that the Commission has construed the failure to investigate complaint in such a way as to take it outside of the Commission’s jurisdiction.

That is, by characterizing the failure to investigate complaint as raising systemic issues “resulting from a lack of direction and appropriate guidance from the upper command of the CFPM’s office”, the complaint is no longer a complaint regarding the conduct of a member or members of the MP in the performance of policing duties or functions.

Justice Mactavish denied the Attorney General’s stay request, finding that the Attorney General had not demonstrated irreparable harm would occur between the date of the hearing of the motion for interim relief, and the date upon which the underlying application for judicial review would be heard. The Attorney General had argued that three different forms of irreparable harm would result if the Commission’s proceedings were not stayed: (1) damage to the reputations of the subjects of the complaint; (2) the risk of inadvertent disclosure of confidential information which may damage Canada’s international relations, national defence or national security; and, (3) waste of public funds if it was ultimately determined the Commission was acting outside of its jurisdiction.

With respect to damage to the reputation of the subjects, the court noted at para 32 that the Attorney General represented all but two of the individual subjects who were then before the Commission. None of the individual subjects had brought their own applications for judicial review in which they alleged reputational harm, nor had any of them been named as parties. She therefore queried whether the Attorney General could rely on alleged harm to the subjects of the complaint to support the Attorney General’s motion for stay of proceedings. Justice Mactavish noted a clear distinction between the interests of the Attorney General in a corporate sense, and the interests of the individual subjects, at paras 34–38 of her judgment:

While recognizing that the Attorney General of Canada is not an ordinary litigant and has public interest responsibilities, I am nevertheless satisfied that the reputational interests of the individual subjects of the complaints are clearly personal to them, and cannot be relied upon by the Attorney General to support the claim of irreparable harm.

In addressing the question of irreparable harm, Justice Mactavish touched on an issue with which the Commission also struggled throughout these hearings, namely, maintaining a distinction between the individual interests of the seven subjects represented by the Attorney General, and the “corporate” interests of the Attorney General, since these interests were represented by the same counsel team.

Justice Mactavish went on to rule that irreparable harm could not be made out by the Attorney General by invoking interests belonging to the subjects. She was not satisfied that irreparable harm would occur in this respect if the stay was not granted.

Regarding the alleged risk of disclosure of confidential information, Justice Mactavish dismissed the Attorney General’s argument that “in the heat of cross-examination, a witness before the Commission might blurt out information that would otherwise be subject to the provisions of section 38 of the Canada Evidence Act [...]” (para 52), or that the same might occur during examination by Commission counsel. Of importance to the Commission’s future proceedings, Justice Mactavish referred, at paras 57 to 60, to potential measures to reduce the risk of inadvertent disclosure of potentially injurious information by witnesses before the Commission. She referred to the creation of Notices of Potential Adverse Findings and summaries of anticipated evidence to focus the issues and evidence and narrow the lines of questioning; careful preparation of witnesses by counsel; and having alert counsel at the hearing prepared and ready to make timely objections. She also noted Commission counsel was alive to the need to protect such information, and was “well aware of its obligations under section 38 of the Canada Evidence Act.” Finally, Justice Mactavish referred to the special rules of procedure developed by the Commission to address potential concerns with respect to disclosure of potentially injurious information, with the explicit indication the provisions of the Canada Evidence Act were to be respected.

For these, and other, reasons found at paras 61–63, Justice Mactavish explained why she did not believe it was certain potentially injurious information would be disclosed during the Commission’s proceedings, despite the Attorney General’s arguments:

It is clear from the record that Commission counsel is well aware of her obligations under section 38 of the Act. Commission counsel is an experienced lawyer, and I am not prepared to make a finding of irreparable harm based upon speculation as to the possibility that counsel might breach her professional and legal obligations in her conduct of the hearings.

Counsel for the Attorney General conceded that witnesses in the possession of potentially injurious information do testify in various types of public hearings, including high-profile proceedings that garner a great deal of media attention. Examples of this include security certificate proceedings in this Court, as well as Commissions of Inquiry such as those involving the Air India bombing and the Maher Arar affair.

Justice Mactavish dismissed the Attorney General’s stay application.

3.10 Commencement of Hearings in May 2009 (Transfer and Failure to Investigate Complaints)

Armed with decisions from both the Commission and the Federal Court refusing to stay or further adjourn the Commission’s proceedings, the Commission began hearings on May 25, 2009, with former Chairperson Mr. Tinsley, and Commission Member Mr. Berlinquette. At that point in time, the Attorney General’s judicial review applications had still not been heard. The hearings proceeded on the basis of the allegations the MP failed to investigate the chain of command decision to transfer detainees in Afghanistan, and on the allegations the Canadian MP wrongfully transferred detainees to Afghan authorities, or allowed them to be transferred, notwithstanding evidence the detainees could face torture.

The hearings commenced on May 25, 2009, dealing with background or contextual evidence, hearing first from Col Richard Giguère, who testified about CF structure in relation to the deployment in Afghanistan and, generally, the role of Canada in Afghanistan. On May 26, 2009, LCol Sylvie Beaudry gave testimony on the structure of the MP, with a focus on the deployment in Afghanistan.Footnote 24

Hearings continued the following week. The Commission heard evidence from representatives of the Complainants. Mr. Jason Gratl of the BCCLA testified on June 1, 2, and 3, 2009, while Mr. Alex Neve of AIC testified on June 2, 2009.

The two AIC/BCCLA witnesses provided evidence about the basis of their complaints dated February 21, 2007 and June 12, 2008.Footnote 25 Specific reference was made throughout their testimony to information the Complainants felt should have alerted the MPs to the risk of torture or mistreatment post-transfer, which should have caused them to investigate the legality of those transfers. The Complainants referred specifically, and in detail, to human rights or country reports relative to Afghanistan from organizations such as the UN, the U.S. State Department, the Afghan Independent Human Rights Commission (AIHRC), and the Canadian DFAIT. Reference was also made to certain newspaper articles, including a Globe and Mail article by Graeme Smith dated April 23, 2007, to the Federal Court process before Justice Mactavish, including her decision in February 2008 on an injunction application, and to DFAIT reports on site visits to Canadian-transferred detainees who reported torture or mistreatment during the time period of this complaint.

At the conclusion of this testimony, the Commission adjourned its proceedings until the fall. Before adjourning, the Chairperson mentioned it was anticipated that summonses duces tecum, i.e., documentary summonses, would soon be issued.Footnote 26 Documentary summonses were indeed issued, to BGen Blanchette for DND, DFAIT DM Leonard Edwards, and CSC Commissioner Don Head, on July 30, 2009. The subsequent document disclosure issues are discussed in greater detail in this Report.

3.11 September 16, 2009 Federal Court Ruling on Jurisdiction

The Commission’s hearing preparation continued over the summer, while the Federal Court of Canada heard argument on the Attorney General’s challenges to the Commission’s jurisdiction to investigate and hold public interest hearings into the first and second Transfer Complaints, as well as the failure to investigate complaint.

Hearings on the judicial review applications were held in Ottawa on August 25 and 26, 2009 before Justice Harrington in the Federal Court of Canada. The Commission had been granted limited intervener status. Commission counsel was thus involved with the Court case during the summer, seeking intervener status and preparing submissions for the judicial review application. This was in addition to preparing for the substantive hearings, set to commence in October 2009.

In reasons released September 16, 2009, Justice Harrington ruled the Commission lacked jurisdiction to investigate the complaints regarding MP transfers of detainees, but had jurisdiction over the failure to investigate complaint.Footnote 27

Justice Harrington set out the legislative and regulatory framework at issue (paras 21–22). Section 250.18 of the NDA sets out the types of complaints the Commission can receive:

250.18(1) Any person, including any officer or non-commissioned member, may make a complaint under this Division about the conduct of a member of the military police in the performance of any of the policing duties or functions that are prescribed for the purposes of this section in regulations made by the Governor in Council.

(2) A conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.

In accordance with s. 250.18 and other sections of the NDA, the Complaints about the Conduct of Members of the Military Police Regulations were enacted. Section 2(1) provides in part and section 2(2) provides:

2.(1) For the purpose of subsection 250.18(1) of the Act, any of the following, if performed by a member of the military police, are policing duties or functions:

a. the conduct of an investigation;

[...]

g. the enforcement of laws;

[...]

i. the arrest or custody of a person …

2.(2) For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or function.

Justice Harrington then considered whether the two Transfer Complaints and the failure to investigate complaint were complaints about the conduct of the MP in the performance of any of the policing duties or functions listed above. Justice Harrington also considered whether the complaints, if ostensibly falling within the enumerated categories of policing duties and functions in s. 2(1), fell nevertheless within the exception in s. 2(2) of the Conduct Regulations in that they related to “administration, training, or military operations that result from established military custom or practice”.

With respect to the two Transfer Complaints, Justice Harrington decided that even if detainee handling by MPs fell within s. 2(1) of the Conduct Regulations as a policing duty or function, statutory interpretation principles required the section be read down to exclude such duties or functions as arising from established military custom or practice.

Justice Harrington concluded, at para 77, with respect to the detainee handling aspect of the complaint:

To conclude with respect to the judicial review of the Commission’s decision to investigate the detainee complaint, even if the capture, detention and transfer of insurgents in Afghanistan could be construed as a policing duty or function if carried out by the MP, s. 2(1) of the Conduct Regulations has to be read down to exclude such duties or functions as they arise from “established military custom or practice”.

With respect to the failure to investigate complaint, Justice Harrington noted, at para 8, the Attorney General’s acknowledgement that a properly constrained investigation into an alleged failure to investigate came within the Commission’s jurisdiction:

The Attorney General [...] acknowledges that an investigation as to whether members of the CF were in breach of the Code of Service Discipline, and other Canadian law as well as international law, is a policing duty or function normally carried out by the MP. However, his position is that the Commission has given every indication that it intends to exceed its jurisdiction by investigating Government policy at large. Government policy falls outside the confines of the Commission’s mandate and involves persons who are not members of the MP acting within the scope of their policing duties or functions.

Justice Harrington agreed the failure to investigate complaint involved the investigation by the Commission of a policing duty or function, but stressed the Commission could not inquire into the conduct of the military at large, or persons who are not members of the military:

With respect to the second complaint, the failure to investigate complaint, I am satisfied that this is a policing duty or function in that the conduct of an investigation within the meaning of the Regulations includes a failure to investigate. However, as the NDA makes clear, the Commission is limited to considering the conduct of members of the MP in the performance of their policing duties or functions. It has no jurisdiction to inquire into the conduct of the military at large, much less the conduct of persons who are not members of the military.

Justice Harrington also held that in conducting its inquiry into the failure to investigate complaint, the Commission could inquire into what the MP knew or had the means of knowing:

Thus, while the Commission may legitimately inquire as to what any member of the MP knew, or had the means of knowing, it would be an excess of jurisdiction to investigate government policy and to inquire as to the state of knowledge of the Government of Canada at large, and more particularly the DFAIT, and to the extent, if any, it had relevant information to question why that information was not shared with the MP. [Emphasis added.]

After September 16, 2009, the Commission attempted to move forward with public interest hearings into the failure to investigate complaint dated June 12, 2008, and only that portion of the complaint. The first and second Transfer Complaints, dealing with MP conduct in actually handling detainees, were abandoned.

However, even though the jurisdictional challenges had seemingly been settled, the Commission continued to face a multitude of obstacles to the progress of its hearings. These obstacles coalesced, and came to a head in October 2009, when the Chairperson, Mr. Tinsley, felt compelled once again to adjourn the hearings, this time for an indefinite period of time. The following section describes this sequence of events and the reasons behind this decision.

3.12 October 7 and 14, 2009: Hearings, Motions and Indefinite Adjournment

The hearings reconvened on October 7, 2009, focused on the failure to investigate complaint. The first order of business was for Commission counsel at the time, Ms. Freya Kristjanson, to brief the Commission, on the record, on the state of counsel preparations for the hearing.Footnote 28

By October 2009, a confluence of events related to various Government actions meant the Commission had to adjourn indefinitely, until impediments relating to document disclosure, witness participation and national security were removed. Indeed, it is not an exaggeration to suggest that, at that point in time (October 2009) the obstacles to proceeding were so many that it was not clear to the Commission that the public interest hearings could ever fully take place.

3.12.1 Issues with Respect to Document Disclosure

Commission counsel had stated, on May 25, 2009, the hope that over the summer additional documents would be received from the Government of Canada and disclosed to the parties. This did not happen. In fact, the Commission did not receive a single new document from the Government from March 12, 2008 when the decision to go to public interest hearings was taken, through to October 7, 2009.Footnote 29

By October 7, 2009, the Commission had made numerous document production requests and issued subpoenas for documents to DND, DFAIT and the CSC. However, since the public interest hearings were convened, the Government had taken the position the Commission was not allowed to receive non-redacted documents by virtue of s. 38 of the Canada Evidence Act. The Government attributed the delay in providing documents to the Commission to its belief that all those documents had to be reviewed and redacted in accordance with section 38.

In February 2008 and on numerous occasions thereafter, including in a letter dated March 23, 2009 the Government said it would cooperate with the Commission, indicating it would provide the Commission with all the documents that the Government would be compelled to produce had a summons been issued. In particular, Government counsel advised Commission counsel, in a letter dated May 14, 2009 that outstanding document requests would be fulfilled shortly. The exact words used were: “While the process described above is not completed, it should soon start to produce results.Footnote 30 Despite that assurance, however, no documents had been produced as of October 7, 2009, some four and a half months later.

The Commission had also received no documents at all on the critical issue of the alleged failure to investigate, despite this line of inquiry having never been really challenged on jurisdictional grounds by the Government. On November 19, 2008, Commission counsel specifically requested production of any SAMPISFootnote 31 or other records of investigations requested or conducted by the CFNIS in relation to the authorization of the transfer of detainees into abusive or torture situations between May 3, 2007 and June 12, 2008. This request was reiterated in a letter from Commission counsel to Government counsel on February 18, 2009.Footnote 32 On May 14, 2009, Government counsel responded and confirmed the existence of a large volume of potentially relevant material in excess of 1,000 pages. By October 7, 2009, none of these documents had been produced to the Commission. Moreover, the Government was refusing to produce those documents – even though the Commission’s jurisdiction over this complaint was confirmed – until all documents requested by the Commission had been reviewed and subjected to the seemingly never-ending redaction process. As Commission counsel submitted at the time:

Essentially, Commission counsel is put in a position where we have been told that unless we abandon a large portion of our document requests, no documents will be received because the totality of all documents collected in response to the request cannot be released until the whole has been reviewed.Footnote 33

Meanwhile, counsel for Capt (N) (ret’d) Moore, Mr. Mark Wallace, was encountering his own problems with the Government over documentary production. Mr. Wallace advised the Commission in a letter dated October 1, 2009, that he had been provided with documents to assist him in preparing his case, but that in order to obtain those documents he was required by the Government to sign an undertaking that specifically prohibited him from giving those documents to the Commission. Mr. Wallace asked the Government to release him from that undertaking in order to give the documents to the Commission but, as of October 7, 2009, his request had not been granted.

Mr. Wallace told the Commission on October 7, 2009, that he had received a letter written on behalf of the Government on October 5, 2009, indicating that he was not going to be relieved of his undertaking and that the documents would now be subjected to the Government’s s. 38 review process. This was despite the fact the documents given to Mr. Wallace had already been redacted in respect of ss. 37, 38, and 39. When the Chairperson asked, “So what’s going on here?Mr. Wallace replied, “They’re being looked at again.” The letter of October 5, 2009 came from Ms. Richards, presumably writing in her capacity as counsel for the Government. She was, however, also a member of the Government counsel team who were representing seven of the subjects.Footnote 34

Government counsel confirmed in their letter dated October 5, 2009 that DND had identified the documents thought relevant to assist the CFPM’s counsel to prepare for the case. However, although those documents were provided to counsel for one of the subjects, they had not been provided to the Commission. Instead, they were to be submitted again for s. 38 review and redaction, and only provided to the Commission after all of the other documents responsive to the Commission requests had been reviewed and redacted.Footnote 35

Commission counsel noted at the hearing on October 7, 2009 that, in the case of the documents provided to Mr. Wallace, the Government had been able to identify and expeditiously provide documents. Those documents had been redacted through an informal process before they were provided to Mr. Wallace. Yet, as soon as Mr. Wallace wished to give those documents to the Commission, the Government refused to allow disclosure to the Commission and its security-cleared counsel, and insisted they be “looked at again”.

Mr. Préfontaine’s explanation for this confusing state of affairs was that s. 38.01(6)(a) of the Canada Evidence Act permitted these documents to be given to Mr. Wallace for the purposes of preparation. Section 38.01(6)(b) reads: “This section does not apply when (a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding… .Footnote 36 This did not explain, though, why Mr. Wallace was able to receive redacted documents quickly, while the same cooperation was not being extended to the Commission. Nor did it explain why the documents, which had already been redacted when they were given to Mr. Wallace, had to be looked at again when he wanted to give them to the Commission. That was surely one of the purposes for which Mr. Wallace wanted the documents in the first place.

Commission counsel also pointed out, on October 7, 2009, the extent of inefficiency in the Government’s approach to document production. A quick review of potentially responsive documents by security-cleared Commission counsel might have eliminated the need for a significant amount of review and redaction by quickly allowing the Government to focus only on documents that Commission counsel deemed necessary. Yet, the Government took the position that no documents could be shown to Commission counsel, even for this limited purpose, by virtue of s. 38 and due to the fact the Commission was not a scheduled entity under that section.

It remained within the Government’s control to solve this problem by adding the Commission to the s. 38 Schedule, or by negotiating an arrangement pursuant to s. 38, as that section permits (see, for example, s. 38.031). Neither of these options was agreed to by the Government.

In July 2009, the Commission had issued documentary summonses to the DM of DFAIT, the Commissioner of Corrections at CSC, and the Director General of Operations with the Strategic Joint Staff, CF. Some of the documents listed in the summonses had been under request, as of October 2009, for almost two years. The vast majority of the documents had been requested in November 2008, almost a year prior. As such, these documentary summonses, from the Commission’s point of view, were a formal incorporation into summons form of documents the Commission had been requesting in late 2007, in November 2008, again in February 2009, and on May 2, 2009. None of this subpoenaed material was newly requested. It was simply, as of the summer 2009, embodied in the form of a summons.Footnote 37

These documentary summonses remained in place after the decision from the Federal Court, but were revised slightly to accommodate the judge’s ruling. However, in early September 2009, the Commission was advised s. 38 notices had been issued in relation to the CSC and DND summonses such that none of the documents collected pursuant to those summonses were going to be released to the Commission any time soon. Eventually, the same notice would be issued in respect of the DFAIT summons. The Commission’s ability to advance its hearings was, as of October 2009, held hostage to the process created by the Government’s October 2009 position that all documents requested had to be reviewed and redacted before any single, new document could be disclosed to the Commission.

Also instructive was the Government’s reaction to the attempts by Mr. Richard Colvin to provide documents to the Commission. Mr. Colvin was compelled under a Commission summons to provide documents to the Commission. He was, as of October 2009, the Deputy Head of the Intelligence Liaison Office at the Canadian Embassy in Washington, D.C. At times relevant to the complaint, however, he was posted to Afghanistan, and served in Kandahar as the political representative on the Kandahar Provincial Reconstruction Team, the sole DFAIT representative in that position. In Kabul, he served as Head of the Political Division and Chargé d’affaires and, as such, was often Acting Head of Mission in Afghanistan. As it emerged, Mr. Colvin had significant evidence to offer on the detainee issue. Indeed, as will be discussed later, Mr. Colvin and his reports were well-known to certain Government officials and to certain people within CEFCOM.

In response to the Commission summons, Mr. Colvin indicated he would willingly attend a pre-hearing interview with Commission counsel and provide the Commission with documents pursuant to that summons. However, Mr. Colvin was prevented from doing so when the Government issued a notice under section 38 of the Canada Evidence Act over the entirety of the information that Mr. Colvin wanted to provide. Government counsel described the effect of that notice in a letter to Commission counsel as follows:

As you are aware, the effect of the notice pursuant to Section 38.02 of the Canada Evidence Act is to prohibit Mr. Colvin from providing information to the Commission, either in a public interest hearing or a pre-hearing interview unless or until the Attorney General of Canada or the Federal Court of Canada authorizes the disclosure of such information.Footnote 38

Thus, Mr. Colvin was effectively silenced. The Government of Canada took the position that even in the pre-hearing interview context, with security-cleared counsel and behind closed doors, it would be a breach of s. 38 for the Commission even to speak to Mr. Colvin, let alone receive any of his documents. As a result, the Commission was completely precluded at that time from interviewing Mr. Colvin or from receiving any of the documents Mr. Colvin wished to provide.

The Commission learned, in the course of the discussions surrounding Mr. Colvin, that as early as April 2009 (about six months earlier), Mr. Colvin had identified documents relevant to the hearings, and had contacted the Department of Justice in order to access those documents. Mr. Colvin was told that the Department of Justice was conducting assessments of those documents internally. However, as of October 7, 2009, Mr. Colvin had not been able to provide any of those documents to the Commission.

3.12.2 Commission Court Challenge to Section 38 Redactions

Early in 2009, the Commission began receiving censored or redacted versions of documents previously provided in non-redacted form, before the public interest hearing was announced. The process of informal redaction of those documents was completed on May 20, 2009. Commission counsel did not dispute many of the redactions, but some appeared unnecessary and excessive, particularly in that it appeared to counsel they might involve publicly available information. The Commission was unable to negotiate removal or revision of these redactions, and initiated its own application in Federal Court to have the contested redactions reviewed. As of October 2009, that application was still pending before the Federal Court. Meanwhile, Commission counsel was prepared to proceed with the public interest hearing on the basis of the documents as redacted.

Negotiations continued with Government counsel and, indeed, it appeared to the Commission following meetings with the National Security Group (NSG) within the Department of Justice and Commission counsel that a decision on s. 38 redactions might be made expeditiously. However, with the release of the Federal Court’s decision on jurisdiction, the Government took the position that it had to go back to the drawing board. In a letter dated September 21, 2009, a Government lawyer wrote to Commission counsel stating that the effect upon the hearing would be significant, as many documents might no longer be relevant. As a result, the Government was no longer able to provide a formal decision in respect of the documents that had been the subject of the Commission’s July 17, 2009 Canada Evidence Act notice.

Negotiations over the redactions that were the subject of the Commission's Court application continued through to the end of January 2010, with a number of the initial redactions to the documents in question ultimately being removed. Some of the redactions were made by the Government under section 39 of the Canada Evidence Act, which permits a Minister of the Crown or the Clerk of the Privy Council to object to the disclosure of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council of Canada. Disclosure of the information shall then be refused without examination of the information.

There was delay, however, in providing the Commission with the required section 39 certificate. On February 23, 2010, the Commission was advised by Government counsel that a section 39 certificate would be issued hopefully by March 22, 2010. This proved not to be the case, however, and a section 39 certificate was not delivered to the Commission until January 20, 2012, which was after the Commission had already completed and delivered its Interim Report.

3.12.3 Obstacles with Respect to Witnesses

As of October 7, 2009, the Commission had also faced serious issues with access to witnesses. Prior to the decision to hold a public hearing, many Government employees had agreed to meet with Commission investigators and indeed were interviewed. However, after the Commission’s decision to hold a public hearing was made in March 2008, through to October 2009, no witness other than Mr. Colvin agreed to meet with Commission counsel for a pre-hearing interview. Even then, the meeting with Mr. Colvin was blocked as a result of the Government’s notice pursuant to s. 38 of the Canada Evidence Act, which prevented him from speaking with Commission lawyers until some arrangement could be made.

Commencing on October 16, 2008 Commission counsel had provided Government counsel with a list of potential individuals for interview. Counsel for the Government conveyed that request to the witnesses. At the request of Government counsel, Commission counsel prepared and circulated a detailed topic list for the interviews. None of the witnesses agreed to meet.

While there is no obligation on a witness to meet with Commission counsel, it is a form of cooperation that is usually extended, and it is generally of assistance to all sides in terms of narrowing the issues, and eliminating the element of surprise. In particular, in the context of this complaint, it was seen as a valuable tool to address s. 38 concerns in advance by preparing a statement of anticipated evidence that could be redacted for s. 38 purposes. An added benefit is the reduced risk of inadvertent disclosure.

Counsel representing seven of the subjects as well as the Government of Canada on the issue of witness participation in pre-hearing interviews responded:

It is also fair to say that although as counsel we have approached all of the witnesses that we represent and all of the subjects, none have seen fit to accept the Commission’s offer.Footnote 39

[...] the fact that witnesses have not seen that it was in their best interest to participate in this voluntary interview, is something that should be no occasion for comment and least of all, the basis of a suggestion that somehow the Government of Canada has ordered them not to participate, a statement that has been repeated recently for which there is no factual foundation and no evidence whatsoever.Footnote 40

Elsewhere, that same counsel noted, in response to a question from the Chairperson about whether witnesses should have been encouraged to come forward by the Government, “[...] it’s not for me to discuss whether they were encouraged or not. That would be trenching upon solicitor-client communication [...]Footnote 41

On October 14, 2009, when hearings reconvened for a decision from the Chairperson on adjournment, the issue of witness cooperation again arose in a contentious fashion. As a result of comments made by Government counsel on October 7, 2009, counsel for Mr. Colvin wrote to Commission counsel and to the parties on October 13, 2009, questioning the accuracy of the submissions made by Government counsel, Mr. Préfontaine, about witness cooperation. In particular, Mr. Colvin’s counsel, Ms. Bokenfohr, alleged that some of the statements made by counsel may have had the effect of misleading the Commission.Footnote 42 Referring to a letter sent by Mr. Préfontaine to 29 individuals who had been summonsed by the Commission, Mr. Colvin’s counsel submitted that the Commission’s pre-hearing interview process had been portrayed in that letter as a “hostile process,” whereby “an interrogator” might entrap witnesses and witnesses might subsequently face accusations of lying. Counsel submitted that “…such a description of the pre-hearing interviews would unnerve even the most cooperative Government employee…” Commission counsel intended to file that letter as an exhibit, but on October 14, 2009 Mr. Préfontaine asserted a claim of solicitor-client privilege over portions of the letter written by Mr. Colvin’s legal counsel, suggesting that, at the time he wrote the letter in question, Mr. Colvin was his “putative” client. Ultimately, the letter from Ms. Bokenfohr, and the letter sent by Mr. Préfontaine, were admitted into evidence on consent.Footnote 43

This discussion about putative clients was quite confusing to the Commission with respect to who represented whom, what solicitor-client relationships existed, if any, and above all what it all might mean for the integrity of its processes. Counsel for the Complainants submitted that the whole interchange had raised questions about whether witnesses were exercising their rights in deciding not to attend pre-hearing interviews, or whether they had been discouraged from doing so. It should be noted, however, that in the end result a number of witnesses did eventually agree to be interviewed by Commission counsel.

The Commission faced additional obstacles with respect to witness access in October 2009. These obstacles came in the form of a motion to quash certain witness summonses and with the indication that the Government would issue s. 38 notices over the testimony of those witnesses should hearings proceed. Needless to say, this cast a shadow in October 2009 over the whole process and whether it could proceed expeditiously, or at all.

3.12.4 The Disruptive Impact of Section 38 Notices

A s. 38 notice had been issued in respect of Mr. Colvin’s potential testimony and any potential pre-hearing interview with the Commission. This, combined with the indications the Commission had that similar notices might be issued with respect to other witnesses, caused the Commission great concern. The full impact of a s. 38 claim over the testimony of a witness was related to the Commission in a letter dated September 16, 2009 from Mr. Anderson, Department of Justice counsel, to Commission counsel and Mr. Colvin’s counsel, Ms. Bokenfohr. In this letter, Mr. Anderson set out the Government’s position that, as a result of the s. 38 notice, Commission counsel could not interview Mr. Colvin except through a process where the Commission’s questions would be pre-screened by Government counsel, and the questions would be posed by Government counsel to Mr. Colvin in the absence of Commission counsel. Thereafter, it was proposed a secure transcript be produced and vetted for national security, and then provided to the Commission. Government counsel also undertook to ask any obvious follow-up questions.Footnote 44 This process was not acceptable to the Commission.

Counsel representing Mr. Colvin expressed her own concerns about the fact Department of Justice counsel were simultaneously representing a number of different clients, and about the participation of Department of Justice counsel in pre-hearing meetings between the Commission and Mr. Colvin. Mr. Colvin’s counsel requested that an ethical firewall be created. However, at least as of October 7, 2009, Government counsel refused to accede to that request.Footnote 45

In a letter to Mr. Préfontaine dated September 15, 2009, Ms. Bokenfohr expressed her concern about the potential for conflicts in the s. 38 vetting and legal representation of multiple parties. Ms. Bokenfohr’s letter noted:

Legal counsel involved in Section 38 vetting must be retained for the sole purpose of insuring only proper considerations under the CEA are applied in the vetting process, and such legal counsel must be free of competing goals in the MPCC process. Absent firewalls, lawyers within Government would also have an unfair opportunity to review Mr. Colvin’s likely evidence in advance of the public hearings and would therefore have an unfair advantage in preparing for cross-examination and arguments that would advance the interests of their own clients. This event would violate rules of procedural fairness.Footnote 46

Mr. Anderson, a counsel for the Government (but not appearing as one of the hearings team counsel), did not agree with this position regarding ethical firewalls, and responded in a letter dated September 16, 2009:

If the Attorney General identifies any Section 38 information in the questions or answers, the Attorney General must be able to share that Section 38 information, if necessary, with members of the hearings team in order to effect the necessary public interest weighing that is an integral part of a Section 38 determination.Footnote 47

By “hearings team”, the Commission understands that Mr. Anderson was referring to those Department of Justice lawyers who were representing seven of the subjects before this Commission (although, as noted, these lawyers also spoke at various times as counsel for the Government). In essence, then, Mr. Anderson was indicating Government counsel representing the seven subjects would have to be involved in, and provide input into, what information should be redacted in the s. 38 process.

The Commission understood the concerns being raised by Mr. Colvin’s counsel. The situation described above seemed to create at least the potential for conflict between the interests of the individual subjects, and the Government’s own interest in disclosure or non-disclosure of information. Additionally, none of the other parties, including Capt (N) (ret’d) Moore, would be represented in the proposed s. 38 process.

In December 2008 the Commission had sought assurances from Government counsel that the Rules of Professional Conduct regarding multiple representation had been complied with, and received these assurances in January 2009. At no time did any of the seven subjects being represented by Government counsel indicate to the Commission they had any concerns about their representation or any potential conflicts.

In any event, in terms of access to witnesses, it appeared as of October 2009 that the type of process proposed by Mr. Anderson, or one analogous to it, was going to be insisted upon by the Attorney General of Canada in respect of all Government witnesses. In effect, Commission counsel would then be surrendering their role as questioners to Government lawyers, who would examine the Government witnesses in private.Footnote 48

Commission counsel could not agree with these proposals, which basically would have kept the hearings out of public view. Commission counsel were of the opinion that all matters relevant to the complaint could and should be dealt with in public, that questions and answers could be formulated in a manner that avoided referring to sensitive information, and that Government counsel could make objections in the event that a witness strayed into sensitive areas.Footnote 49 Ultimately, this was how the hearings proceeded, but in October 2009, given the position being taken by the Government of Canada, this did not appear to be an option.

3.12.5 The Pre-Hearing Motions Scheduled in October 2009

At the hearings on October 7, 2009, the Commission was also seized with a large number of motions and submissions to be dealt with before evidence could be called, many of which were filed in the immediately preceding days.

Three sets of submissions or motions were requested to be heard in support of requests for the Commission to adjourn or stay proceedings:

These three motions were argued that day, and the Panel reserved for one week to render a decision. If the decision was not to adjourn, then the Commission was scheduled to hear a number of further motions and submissions, as follows:

Mr. Colvin was one of the witnesses affected by the motion to quash summonses. Counsel for seven of the subjects, also representing the Government of Canada, alleged Mr. Colvin did not possess knowledge of what the MP subjects knew nor did he have the means of knowing about the alleged transfers of detainees to likely torture. Counsel for Mr. Colvin, on the other hand, asserted to Government counsel in a letter dated September 28, 2009, that Mr. Colvin did indeed have such knowledge. As proof, Mr. Colvin, through counsel, attempted in early October 2009 to provide a sworn affidavit to the Commission, setting out his knowledge in this respect.Footnote 50

At that point in time, Commission counsel placed on the record her concerns about the redaction process and the potential for conflict of interest in respect of the redaction of Mr. Colvin’s affidavit:

Given the section 38 notice, it will need to be reviewed by Government lawyers; however, the process is critical. Our concern is that lawyers for the subjects who also act for the Attorney General and the Government should have no role in the review process because of procedural fairness concerns. We propose that the Government put forward an appropriate representative who does not represent other parties before this Commission. We will require that that Government representative undertake not to communicate with counsel for any of the subjects at this inquiry but we fully understand the affidavit, in light of that section 38 notice, must be reviewed by the Government to confirm Mr. Colvin’s assessment that it contains no sensitive information …Footnote 51

Counsel for seven of the subjects, and the Government, stated he did not agree with these procedural fairness concerns, but indicated he was content to come to an arrangement whereby there would be no communication between the hearings team and those charged with reviewing the affidavit. He also noted that he was not the delegate of the Attorney General of Canada who would decide, pursuant to s. 38, what information in Mr. Colvin’s affidavit could be released publicly.Footnote 52

Mr. Colvin’s affidavit was reviewed quickly by an NSG lawyer who had signed an undertaking that he would not disclose the contents of the affidavit to Department of Justice counsel. The NSG confirmed that Mr. Colvin’s affidavit contained no s. 38 information at all and could be disclosed.Footnote 53

3.12.6 The Commission’s Decision to Adjourn (October 14, 2009)Footnote 54

The hearings reconvened on October 14, 2009. After addressing certain procedural issues, including the solicitor/client privilege issue, the Chairperson, Mr. Peter Tinsley, provided his decision and reasons for adjourning the hearings in response to the motions brought and/or supported by the eight subjects. The reasons for adjourning generally included the following:

  1. Pending the outcome of an application for leave to appeal by the Commission and any appeal of the Justice Harrington decision with respect to the Detainee Complaints, the Commission accepted that there would at least be a perception of procedural unfairness to the subjects in having two sets of hearings, first, the failure to investigate complaint, and second the Detainee Complaints. It would also be more convenient, advantageous and in the public interest to hear all the complaints together.
  2. The fairness concerns raised by counsel for retired Capt (N) Steven Moore with respect to acquiring and disclosing documents to the Commission that he asserted were relevant or potentially relevant to the proceedings.
  3. The unavailability of documents that were subject to outstanding subpoenas or requests, and the procedural fairness concerns this absence of documents created for all of the subjects.

In those same reasons, the Commission expressed its frustration with the redaction process and the lack of cooperation from the Government of Canada:

Again, this case is not about national security. It is about the government invoking its own review processes, which have been in progress for almost 11 months now without producing any results, to refuse the production of documents that would assist the subjects and the Commission. It is about the government insisting on distinguishing between formal and informal reviews, refusing to produce over-redacted documents, constantly revising the processes and timelines necessary to review documents, and attempting to explain the delay away on the ground of lack of clarity or overbreadth of the document requests made, even where subsets of clearly relevant materials have been identified and reviewed.Footnote 55

Further along in its reasons, the Commission stated an additional concern about public cynicism about national security claims and fairness to the subjects of this complaint:

[...] the government’s failure to heed this warning and the government’s failure to attempt to limit rather than broaden needlessly the documents it refused to produce have significant consequences. Not only does this type of behaviour promote “public suspicion and cynicism about legitimate claims by the government of national security confidentiality,” as stated by Commissioner O’Connor, but in this case it has created unfairness for the subjects of the complaint.Footnote 56

Finally, the Commission commented on the impact of non-cooperation by the Government on the ability of oversight bodies to do their work:

This Commission was so created in order to ensure its credibility and effectiveness in fostering public confidence in military policing, which effectively means the carrying and enforcement of the laws and standards that Canadians expect within their military, including from the chain of command, at home and abroad.

Unfortunately, the fallibility of this arrangement has been baldly exposed herein when, quite out of step with the normal situation wherein the principal challenge to oversight is what has often been referred to as the “blue wall”, the government becomes the antagonist in the oversight piece as opposed to the police themselves.

In such circumstances, notwithstanding establishment and empowerment by Parliament, experience to date in this matter has demonstrated that when the government decides not to cooperate there is not equality of arms. Indeed, herein the essential cooperation of the government has become a much-distorted concept as discussed earlier in this decision, seemingly Kafkaesque.

It would seem that some of the key lessons of the Somalia experience from which this Commission arose [...] have not been learned.Footnote 57

With that decision, the Commission adjourned its hearings yet again. At that point in time, it was not clear to the Commission when, or if, the hearings would be able to reconvene. In addition to all the problems with document production, witness access, and national security, it had also become apparent as of October 2009 the term of the Commission Chairperson, Mr. Peter Tinsley, would not be renewed.

3.13 December 10, 2009: Case Conference Convened to Set Schedule for Document Production

During the period from October 14, 2009 to December 10, 2009, the detainee issue began to receive significant attention in the media and in Parliament. In the fall of 2009, after the Commission had adjourned, Parliament convened Committee hearings to look into Canada’s detainee transfer process as a whole.

Another development occurred on December 4, 2009, when the Federal Court of Appeal denied the Commission’s request for leave to appeal the Order of Justice Harrington dated September 16, 2009.

By early December 2009, near the end of the former Chairperson’s term, the Commission felt it had to take steps to put its hearings back on track. It was decided to convene a case conference on December 10, 2009, in public, with a view to moving the failure to investigate complaint towards a hearing without further delay.

At the public case conference, there was some indication the document production situation had improved. A number of redacted documents, albeit not many, had been released in stages to the Commission by Government counsel. The Government appeared to have moved off its earlier position that no documents could be produced until all had been redacted. Even so, critical documents had not yet been received, and it remained unclear to the Commission what was the end date or deadline for full, or even substantial, production.

For this reason, invoking the Afghanistan Public Interest Hearings Rules, the Commission established a schedule for the production of documents by way of a direction, with the goal of being able to commence public interest hearings on March 22, 2010. Two categories of documents were identified by the Commission: the first category being documents the Commission deemed it necessary to have in order to begin the hearings; and the second category being documents necessary to complete the hearings but not critical to the Commission’s ability to start those hearings.

The Commission accordingly set the following deadlines for receipt of the documents identified as necessary in order to begin hearings:

The second category of documents was described as follows, with a deadline for production of February 19, 2010:

As of December 10, 2009, the situation with respect to arranging pre-hearing witness interviews had not changed. No Government witnesses had yet agreed to pre-hearing interviews despite the Commission’s requests.Footnote 61 The Commission also still did not know whether the Government would invoke s. 38 of the Canada Evidence Act in order to prevent all of the witnesses from testifying at all, as had been done with respect to Mr. Colvin in early September 2009.Footnote 62 The Commission believed it had to set deadlines and take action to get the hearing process moving forward despite these uncertainties.

Mr. Peter Tinsley’s term as Chairperson of the MPCC expired on Friday, December 11, 2009 following the case conference. He characterized this event as “certainly unusual, if not unprecedented, for the constitution of a panel hearing such a significant matter to be wilfully altered at this stage.Footnote 63 The Panel issued a procedural direction which allowed Mr. Roy Berlinquette to deal alone with matters of procedure and practice, if not the hearing of evidence, until the appointment of a new Chairperson.Footnote 64

3.14 Start of Hearings, March 24, 2010

Mr. Glenn Stannard was appointed Acting Chairperson by the Government on December 11, 2009, with the full statutory powers of the Chairperson, and later confirmed as Chairperson on May 14, 2010. Pursuant to those powers, on February 23, 2010, Mr. Stannard assigned himself and Mr. Berlinquette to the Panel conducting the Afghanistan Public Interest Hearings. The continued involvement of Mr. Berlinquette ensured a degree of continuity with respect to events that had occurred prior to the end of Mr. Tinsley’s term. Thus, with this newly configured panel, the Commission reconvened the public interest hearings on March 24, 2010.

3.14.1 The Status of Document Production

The first order of business on March 24, 2010, was to assess the state of document production. The Commission had received the documents it deemed necessary to commence the hearings by January 22, 2010. As such, it was in a position to proceed with the calling of witnesses. However, the Commission had first to deal with several interlocutory motions.

The Commission received the second category of documents scheduled for receipt by February 19, 2010 up to and after that date. In fact, document production continued (and continued to give rise to issues) throughout the hearing process. Nevertheless, the Commission believed in March 2010 there was sufficient, substantive information, in a publicly accessible form, to allow the hearing process to proceed in a meaningful way.

3.14.2 Interlocutory Motions

By March 24, 2010, counsel for seven of the subjects had abandoned or adjourned a number of the motions that had been delivered earlier. This included the motion seeking a reconsideration of the September 30, 2008 decision of the Chairperson to hold a public hearing, and the motion seeking to quash certain of the summonses issued by the Commission. In addition, the motion for a determination as to what constitutes, according to established military custom or practice, duties or functions related to administration or training, filed on September 30, 2009, was adjourned sine die.

Argument on the remaining motions proceeded on March 24, 2010. The first motion was for reconsideration of the decision to name LCol (ret’d) Garrick as a subject. The second motion was to determine the standard of conduct applicable to the MP subjects on the basis of submissions filed on September 21, 2009. The third motion was to determine the standard of conduct applicable to situations where it is alleged the MP subjects had the “means of knowing” of a situation that should possibly have been investigated. With respect to the last two motions, counsel for the seven subjects wished to reserve the right to make final submissions on these motions after all evidence had been called. Oral submissions were received from the parties on March 24th in respect of these three motions. The Panel then reserved its decisions, which were released in writing on April 1, 2010.

3.14.3 Status of LCol (ret’d) Garrick

LCol (ret’d) W.H. Garrick had sought reconsideration of the Commission’s decision to designate him as a person whose conduct is the subject of this complaint. The basis for the motion was that he had retired from the CF and was no longer a member of the MP on September 30, 2008 when the Commission had given notice that it considered him to be a subject. According to LCol (ret’d) Garrick, although he was a serving member of the MP on June 12, 2008 when the complaint was initiated, he also had to have been a serving member of the MP on September 30, 2008 in order to be named a subject under Part IV of the NDA.

The Commission ruled he had been properly named as a subject. The Commission held that Part IV of the NDA only requires status as an MP member at the time of the conduct to which the complaint relates, not at some later point, such as when the member is identified as a subject or when the complaint is filed. The Commission’s decision was not challenged, and LCol (ret’d) Garrick remained a subject of the failure to investigate complaint.

3.14.4 Standard of Conduct

The Commission also issued its written ruling on April 1, 2010 with respect to the standard of conduct against which the subjects would be judged in this Report.

The Commission noted considerable criminal law and other jurisprudence existed to provide guidance on the expected standard of conduct of police officers. First and foremost, the Commission indicated it would be guided by the existing jurisprudence, and particularly by the test of reasonableness set out in Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41 [hereinafter Hill] and previous decisions from this Commission. With respect to Hill, the Commission indicated it would be guided in the hearings by the standard of a reasonable police officer in all the circumstances:

The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made – circumstances that may include urgency and deficiencies of information.

The ruling also noted the Commission had adopted the reasonableness standard in prior decisions. For example, in a March 16, 2006 Final Report, the Commission set out to assess the reasonableness of the CFNIS’ decision to discontinue an investigation without laying charges, noting at p. 32 of that decision that the question to be addressed was “not whether the particular exercise of enforcement discretion was right, but whether it was reasonable”; and, concluding at p. 33 that the “Chair is satisfied that it would have been a reasonable exercise of MP discretion for the CFNIS to discontinue its investigation and refer the matter to the chain of command.Footnote 65

In the same vein, an April 11, 2006 Final Report of the Commission considered whether an MP should have investigated the causes of a Complainant’s lack of sleep and the conduct of the Complainant’s training. The Commission concluded, at p. 8, that “[a]fter reviewing the evidence, including additional information put forward by the Complainant, the Chair is of the view that the Complainant’s expectations in this regard are not reasonable. [...] Police must have some reasonable basis for initiating a criminal investigation.Footnote 66

Other Commission decisions employing the reasonableness standard were cited in the Ruling. The Commission also noted the inquiry process was dynamic, and as the evidence and facts emerged, the reasonableness test from Hill would invariably be informed by those facts and evidence.

Finally, with respect to counsel for seven of the subjects’ suggestion that the preliminary standard of conduct articulated by the Commission ought to specifically take into account the principles of peace officer discretion and peace officer independence, given the professional background of the panel and the mandate and expertise of the Commission in respect of interference complaints, the parties were assured in the ruling that these principles would not be overlooked throughout the course of the hearings.

3.14.5 Means of Knowing

Counsel for the seven subjects also brought a motion on March 24, 2010, requesting the Commission give a preliminary ruling on how it intended to apply what has come, in the context of these hearings, to be referred to as the “means of knowing” test. This is a reference to the September 16, 2009, judgment of Justice Harrington which had addressed the scope of the Commission’s jurisdiction to inquire into the complaint.

In its Ruling dated April 1, 2010, the Commission stated it did not consider it advisable to issue a ruling to clarify the decision of Justice Harrington from the Federal Court of Canada because the application of that judgment was an inherently factual and contextual exercise that could not be ruled upon in a factual vacuum. At this point, no substantive evidence had been heard. Without evidence, the Commission believed it could do no more than the Federal Court had already done in respect of the “means of knowing” concept.

The Commission did state the reasonableness test in Hill could serve as a guide to understanding whether MP subjects had the “means of knowing” any particular piece of information, in the sense the Commission intended to consider whether a reasonable MP in all the circumstances would have the “means of knowing” that information.

The Commission’s Ruling of April 1, 2010, was not challenged. However, by letter dated June 7, 2010, Mr. Préfontaine delivered a second motion seeking the Commission’s interpretation of the expression “means of knowing,” which, for convenience, will be discussed here.

On October 14, 2010, the parties made their oral submissions on this second motion, and Commission’s Ruling was released on November 3, 2010.

In summary form, the Commission ruled as follows. First, the subjects could be held responsible for matters falling within their actual knowledge, as well as for matters towards which the subject MPs were “wilfully blind”. The Commission further ruled the subject MPs could possibly be held responsible for information which a reasonable MP member would have obtained by making reasonable inquiries. In the Commission’s view, this latter measure of potential responsibility for information entailed a subjective element based on what the MP member actually knew, and an objective element based on what a reasonable MP member would have done in the circumstances to seek out more information to fill the gaps. This latter element depended on the circumstances.

The Commission also concluded that the mere fact information relating to the subject matter of the complaint was adduced during the hearings did not mean the Commission was going to impute knowledge of all that information to the subjects. As of October 14, 2010, the subjects had not yet testified as to their actual knowledge. The breadth of the inquiry to that point (through non-subject witnesses) was a function of the need to gather evidence considered pertinent to the grounds set out in the complaint. The gathering of that evidence did not reflect an assumption or a pre-determination by the Commission that the individual subjects knew, or could have or should have accessed, such information.

The Ruling pointed out that, in terms of sequencing, the Commission had heard from non-subject witnesses first – a sequencing that was both more logical for the Commission and fairer to the subjects. At para 36, the Commission noted “[...] [a]s the Commission moves into the hearing of subject evidence and thereafter the parties’ submissions, the question of what the subjects actually knew or should have known will become more of a focus of this inquiry.

3.15 April 6, 2010: Commencement of Substantive Hearings

Having dealt with the preliminary motions that were argued on March 24, 2010, substantive hearings commenced on April 6, 2010.

3.15.1 Continuity with Past Sittings of the Afghanistan Public Interest Hearings

As explained, the Afghanistan Public Interest Hearings had commenced on December 4, 2008 when the panel included former MPCC Chairperson Mr. Peter Tinsley and Commission member Mr. Roy Berlinquette. Some evidence had already been heard. The evidence from those prior proceedings was adopted for the hearings under the newly constituted panel.

Previously filed Exhibits P-1 to P-19 were adopted as evidence with the same exhibit numbers.

Similarly, the transcripts of the various proceedings from December 4, 2008 (the procedural overview) to December 10, 2009 were filed as exhibits. As such, the testimony from the Complainants, and the contextual evidence provided about CF and MP structure were incorporated into the body of evidence before the Commission.

These procedural steps were taken without objection by the parties, and the Commission appreciated their cooperation since this saved cost, time and inconvenience to individuals that would have been involved if the recalling of witnesses had been necessary due to the reconfigured Panel.Footnote 67

3.15.2 Status of Documentary Disclosure

Prior to April 6, 2010, the Commission had compiled a substantial volume of documentary material through summonses, interviews by Commission investigators and through voluntary disclosure by parties and some witnesses. More documents were filed publicly on April 6, 2010, but many documents the Commission had requested remained outstanding.

3.15.3 In Camera Proceedings

With one minor exception based on national security concerns, the hearings were held entirely in public. The one exception occurred at the very outset of hearings, on April 6 and 7, 2010, when, with the concurrence of all parties, two witnesses testified in camera pursuant to Rule S-14 of the Commission’s Afghanistan Public Interest Hearing Rules and s. 250.42 of the NDA. The non-redacted transcripts of these examinations were available to the public following the testimony.

3.16 April 20, 2010: Update on Document Production

Between April 6, 2010 and April 20, 2010, the Commission heard from 11 witnesses. By April 20th, the Commission wanted an update on the status of document production by the Government. Several issues which had arisen in the context of the proceedings caused the Commission concern.

During the examination of Nicholas Gosselin of DFAIT on April 14, 2010, it became evident the Commission did not have all of Mr. Gosselin’s reports from his site visits to Canadian-transferred detainees during the time period relevant to this complaint. The only site visit reports in the Commission’s possession at that time had come via the Complainants, who themselves had acquired them during their Federal Court proceedings before Justice Mactavish.

In light of Mr. Gosselin’s April 14 testimony, Commission counsel made a request for all of Mr. Gosselin’s site visit reports, and noted these reports had been specifically requested at para 5 of the documentary summons to BGen Blanchette (DND). The response from Mr. Préfontaine, speaking on this occasion in his capacity as counsel to the Government of Canada, was that these documents would not have been produced to the Commission because of the Government’s interpretation of the wording of the summons as applying only to documents communicated to or otherwise available to the MPs.

Thus, on April 14, 2010, it became apparent to the Commission the Government was making internal decisions as to what “otherwise available” to the MPs meant, and was screening out documents such as the Gosselin reports on the basis of its own opinion these documents were not available to the MPs. However, the Commission viewed those reports as important and relevant to the issues raised by the complaint. Indeed, the June 12, 2008 complaint by AIC/BCCLA specifically referred to one such report by Mr. Gosselin. The Commission would also hear testimony in the proceedings to the effect these reports would have been made available to the MPs if they had asked for them. Indeed, one subject, Maj Zybala, had personally taken the initiative to view certain site visit reports (the ones the Commission had received via the Complainants) on line on the BCCLA website.Footnote 68 It was therefore unclear to the Commission how the Government was screening out documents.

Mr. Préfontaine articulated the Government of Canada’s approach to screening out documents in the following exchange on April 14, 2010:

ME BAROT: Je pense que -- Excusez moi. Je pense que ça faisait partie de la demande de production du Brigadier Général Blanchette, paragraphe 5.

ME PRÉFONTAINE: Non, parce que dans chacun des paragraphes, si vous les lisez, vous allez voir qu’il est question de documents qui ont été communiqués aux policiers militaires ou auxquels les policiers militaires auraient eu accès, et d’après notre information, ces documents là n’ont ni été communiqués aux policiers militaires, et ils n’y avaient pas accès non plus.

Donc en regardant le bref d’assignation à sa face même, il était clair que la Commission ne désirait pas avoir ces documents là.

Si maintenant elle change d’avis, on est prêt à avoir cette discussion là, mais –

ME BAROT: Bien le changement --

ME PRÉFONTAINE: C’est un petit peu comme une danse, Monsieur le Commissaire. Nous on suit les commandes que la Commission nous donne. Si la Commission change d’avis, tout ça c’est légitime, mais qu’on ne nous fasse pas le reproche de ne pas avoir exécuté des pas de danse qu’on ne savait pas qu’on était appelé à exécuter.

ME BAROT: Je pense que la Commission ne change pas d’avis, mais à la lumière de ce qu’on a appris, je pense qu’on peut peut être la compléter.

Alors c’est une demande que je présente aujourd’hui à Me Préfontaine, et je ferai suivre par une demande formelle.Footnote 69

[unofficial translation]

Ms. BAROT: I think that -- Excuse me. I think that was part of the request for production for Brigadier Général Blanchette, paragraph 5.

Mr. PRÉFONTAINE: No, because in each of those paragraphs, if you read them, you will see that they refer to documents that were disclosed to the military police or to which the military police would have had access, and our information is that those documents were not disclosed to the military police, nor did they have access to them.

So if you look at the subpoena, on its face, it was clear that the Commission did not want to have those documents.

If it has changed its mind now, we are prepared to have that discussion, but --

Ms. BAROT: Well the change --

Mr. PRÉFONTAINE: It is a little like a dance, Mr. Commissioner. We are following the directions the Commission gives us. If the Commission changes its mind that is all perfectly legitimate, but don’t criticize us for not having executed the dance steps we didn’t know we were being asked to execute.

Ms. BAROT: I think the Commission isn’t changing its mind, but in light of what we have learned, I think we can perhaps supplement it.

So this is a request I am making today to Mr. Préfontaine, and I will follow up for a formal request.

Also on April 14, 2010, Commission counsel learned a number of documents had been identified as relevant to the upcoming testimony of Ms. Gabrielle Duschner, who was scheduled to testify immediately after Mr. Gosselin. The Commission was told these documents were not yet ready for disclosure to the Commission. In the circumstances, Commission counsel concluded it had to postpone Ms. Duschner’s attendance until those documents were received. Otherwise, her examination would be based on incomplete information and there was the clear prospect of having to recall her. The response from counsel was that the documents were not ready, and that “we” (presumably meaning the Government) had not yet had time to screen them for relevance:

MS. RICHARDS: Yes. I can tell you that the documents will not be ready. We haven’t seen them all and haven’t had a chance to review them for relevance.

I think the appropriate thing to do is have her testify and she can be recalled if there is anything flowing from them.

I can tell you that there aren’t any, and I am sort of hesitating because it is protected by solicitor client privilege and I can’t reveal all of the details of our discussions.

If there are documents, there aren’t very many. And in terms of the content of the information, she can testify to it.

So she is available and prepared to testify this afternoon and can talk about many other things. These are incidental. And if it is necessary, after the documents are produced, if documents are indeed produced, she can be recalled to speak to them.Footnote 70

The issues of the Duschner documents, the Gosselin reports and the Government’s approach to screening the documentary production to the Commission, generally, were fresh in the Panel’s mind on April 20, 2010. Two other sets of documents were of concern. First, a letter had recently gone out from the Commission requesting certain documents potentially flowing from the testimony of LCol Boot and his evidence about inquiries and investigations he had made in April 2007 at CEFCOM. On April 1, 2010, a bundle of documents obtained as a result of an access to information request by the Complainants was provided to the Commission. These documents had not been disclosed previously to the Commission despite their apparent relevance.Footnote 71 As such, the issue of document production was again becoming a matter of concern to the Commission.

On April 20, 2010, Commission counsel described the process being followed by the Government as an opaque, ex parte process wherein the Commission advised the Government of classes, categories or types of documents it would like to have produced, but ultimately the review of Government records and the selection of documents to be produced was entirely within the Government’s hands.

Mr. Préfontaine, speaking as counsel for the Government, described the process of document production from his perspective. That process, as described, caused the Commission significant concern, again, because it seemed to indicate the Government was potentially screening out documents the Commission might consider necessary, on the basis of the Government’s own opinion of what information was available to the MPs. Mr. Préfontaine stated as follows:

[…] the request [for documents] has to obviously fall in line with what the Federal Court has said of the mandate of this Commission is, and it also has to respect the wording of the request itself.

[...]

[...] the Federal Court has specifically stated that the only thing this Commission was empowered to look at is what the subjects knew or had the means of knowing. It further added the admonition that the exercise of the Commission should not be the occasion to view the enquiry as a springboard to venture into how the CF, Department of Foreign Affairs or other portions of the Government of Canada conducted its business.

[...]

As a result of that Federal Court decision, the Commission has revised the summonses, and in the case of the two documentary summonses, the one directed to DND and the one directed to DFAIT

[...]

The amendment of October last had the effect of closing down the open-endedness nature of those requests by adding words that like “that were accessible to MP members”, because quite obviously Commission counsel recognized that there needed to be a connection between the information that it sought and the information that the Federal Court said it could seek.

As a result of that, obviously the Government of Canada is required to make an assessment of whether the information potentially could meet the summonses, or not. […]Footnote 72

Further along, Government counsel indicated Mr. Gosselin’s site visit reports were not considered as being within the “means of knowing” of the MP.Footnote 73 And yet, the Commission would later hear evidence to the contrary.

Commission counsel, Mr. Lunau, described the whole document production process as a “game of peekaboo”:

With respect to the Gosselin documents, again, it is illustrative of the game of peekaboo that goes on. We are being asked to talk about the relevance of documents that we have no opportunity to look at.

And so you have a unilateral process where the government says, well, the Federal Court ruled that out of bounds, so we are not going to produce it.

We have no opportunity to review the documents on our own and see whether we take issue with that assertion, or not.Footnote 74

Further along, he states as follows:

It appears to us that there is a selection process of sorts that is taking place that does not seem to be capturing all of the documents that are relevant to the complaint because, in this unilateral review process, there are certain tests being applied by the government to make that decision, without any kind of transparency to us.

And the tests seem to be: First of all, does the name of an MP appear on the document; secondly, is there otherwise some evidence MPs sought [it].Footnote 75

In short, Commission counsel was very concerned about the unilateral document selection process being employed by the Government, and made the point that it was the Commission’s mandate to determine whether MPs had actual or imputed knowledge of the documents based on the evidence at the hearing. This was not a task to be conducted unilaterally, behind closed doors, and on the basis of some unknown internal guidelines, by the Government. The Commission saw this issue of document screening as striking at its very independence.

The response from Mr. Préfontaine, acting again in his capacity as counsel for the Government, was to portray the relationship between the Commission and the Government as adversarial:

The second point that I wish to address is Mr. Lunau’s observations that the process is not transparent to him as to how the criteria are applied.

That is both unwarranted and unfair, unfair because I have discussed this with Mr. Lunau on a number of occasions, so it is no surprise what I am telling you this morning, and unwarranted because that is actually how litigation is conducted in Canada.

In civil matters, pleadings define the scope of what is relevant, and then each party has an obligation under the Rules to seek out the documents which are relevant to the issues in that case.

So if Mr. Lunau and I are involved in an action where he represents, let’s say, a newspaper and I represent the government, he gets to decide which of the documents controlled by his client, the newspaper, he is going to produce in the course of the litigation.

I get to do the same thing, and then we get to examine a witness representing each of our clients. And if we find out that there is pockets which have not been identified previously, then those are added and produced.

So the process that we are following here is simply a replication of the normal rules of the game for litigation.Footnote 76[Emphasis added]

Commission counsel’s response was that he was “flabbergasted” Government counsel would compare the Commission’s public inquiry process to a litigation process.Footnote 77 In the Commission’s view, it and the Government are not adversaries because they both exist to serve the public interest, and not some private interest. Commission counsel thus believed this “adversarial” view was totally inapt.

When Government counsel was pressed by the Commission on the timelines for production of outstanding documents, the testy response was that the question was covered by solicitor-client privilege and that the “documents will be given to your counsel when they are good and ready.Footnote 78

Government counsel later apologized for this dismissive response, to which the Commission took exception.Footnote 79 However, it had become clear at this stage that to discharge its responsibilities the Commission had to know more about the Government’s document screening process. It was not enough to be told documents would be provided when they were “good and ready”. The Commission decided it needed to hear an explanation from the individuals who were actually overseeing the document production process. Those individuals were identified on April 20, 2010 as BGen Blanchette and Mr. Leonard Edwards (DM, DFAIT).Footnote 80 Another thing that was becoming clear in April 2010 was that delays in document disclosure were likely going to necessitate further delay, once again, to the hearing.

On April 20, 2010, counsel representing seven of the subjects, and the Government of Canada, were also asked if they had any role in the document screening process. The following exchange occurred, which left the Commission with the impression that, while not physically involved in gathering or viewing the documents, the Government counsel team and the Government might have had a role in providing guidance on what should be produced, and within what parameters:

THE CHAIR: Yes. Are yourself or any of your team involved in the screening for relevancy?

MR. PRÉFONTAINE: Usually not.

THE CHAIR: What does “usually” mean?

MR. PRÉFONTAINE: That means simply that we discuss with and interface with Commission counsel to decide what – to understand what Commission counsel wants. We provide direction on the basis of those discussions to clients, and when there are further requests, we relay them.

But if your question is have I rolled up my sleeves, so to speak, and gone into the bowels of DND to identify documents, the answer is no.

THE CHAIR: Or any of your team or anything?

MR. PRÉFONTAINE: No.

THE CHAIR: Nobody is involved in that? Just providing advice?

MR. PRÉFONTAINE: Correct. And obviously I think as a transmission belt.Footnote 81

The next day the Commission raised the same question again, namely, the role of the Government counsel team representing seven of the subjects in the process of document screening and production. Mr. Préfontaine advised his counsel team’s role involved considering the NDA, the Federal Court decision of Justice Harrington, and the Commission’s summons, and using those items to:

[…] define the parameters of what the Commission can, and has, requested.

[...] and those parameters are reduced to guidelines that we provide to the clients, and the guidelines are in the nature of, this is what the Commission has requested. Go out and seek what fits that.Footnote 82

Therefore, it appeared to be the case that Government counsel, who was also representing seven of the subjects, was providing advice or guidelines to the line departments regarding what the Commission “can” request, and what they should or should not provide to the Commission. The screening process appeared to involve some conclusions, however reached, as to whether the MPs had seen or would otherwise have the means of knowing the documents in question. It thus appeared to the Commission that counsel for seven of the subjects was involved at the same time, in some capacity, in providing guidance to the Government departments on matters the Commission was supposed to determine in these hearings.

Interestingly, while Government counsel was moving for the Commission to define what the “means of knowing” test meant, the Government was apparently applying some version or interpretation of this test to decide what documents should or should not be produced to the Commission. This raises the question as to how the Government was applying a “means of knowing” test for production purposes, while arguing at the same time, on behalf of the subjects, that the meaning of the test needed to be enunciated by the Commission.

3.16.1 Evidence on the Document Production Process: Gagnon and Edwards Testimony

The Commission requested the attendance of BGen Richard Blanchette and Mr. Edwards (DFAIT DM), the individuals who were named on the documentary summonses, to explain this document gathering and screening process to the Commission.

3.16.2 DND Document Production Process

BGen Blanchette appeared before the Commission on April 27, 2010. He was Director General of Operations within the Strategic Joint Staff. He was accompanied by Maj Denis Gagnon, who was the IS Team Leader within the Mission Support Team under BGen Blanchette. Maj Gagnon was particularly knowledgeable about the details of the document production process within DND.

BGen Blanchette described how, with the filing of the AIC/BCCLA complaint in 2007, an ad hoc “Tiger TeamFootnote 83, nicknamed the DIST, was created to provide documents to the Commission. As time went on, this grew into a more organized structure bearing the acronym IST: “Information Support Team”. The Team originally consisted of five members but increased to seven.

When in 2009 the Commission’s requests grew in size, DND created the Afghanistan Public Hearing Support Team (APHST), with 12 people on staff.Footnote 84 APHST had a representative from the CFPM that attended the weekly coordination meeting.Footnote 85 It was APHST that sent out requests to the various departments within DND in response to the Commission’s summonses.Footnote 86

The Commission heard from Maj Gagnon that, in addition to the approximately 1,300 pages of documents that had been released to the Commission during the public interest investigation stage ending on March 12, 2008, IST or APHST had collected an additional 719 documents deemed responsive to the Commission’s informal requests to DND in early 2009 and the first summons to BGen Blanchette. However, this group of 719 documents was pared down to 50 after the second summons to BGen Blanchette, issued after the decision from the Federal Court of Canada on the Commission’s jurisdiction. Those 50 documents had, by April 2010, been produced to the Commission.Footnote 87

Commission counsel asked if they could perhaps attend at DND offices to view the 669 or so documents that had been screened out in this selection process. The response, from Mr. Préfontaine, was that the “answer to that is a legal one, and the answer to that is ‘no’.Footnote 88

Maj Gagnon was specifically asked whether he knew of the existence of guidelines set out by Government counsel when gathering documents responsive to the summons. He said that the “only thing we use is your summons”. He was not aware of any written guidelines.Footnote 89

Some of the responses received from Maj Gagnon caused concern for the Commission about the efforts made to acquire documents requested in the summons and about the screening test applied. For example, Commission counsel asked about item no. 6 of the summons to BGen Blanchette dated October 21, 2009.Footnote 90 This was a request for all detainee transfer records from May 3, 2007 to June 12, 2008, as signed by the TF Commander or his delegate. Maj Gagnon stated they had gone to all efforts to find these documents “working with the primary organization concerned, which is CEFCOM”, but he could not advise the Commission whether responsive documents had been found and not produced, or whether it was simply the case that nothing could be found.Footnote 91 Later on in his testimony, Maj Gagnon indicated such documents could perhaps be found in sea containers in Afghanistan, but an incredible amount of work would be required to go through those materials and find what was requested. His evidence was that these documents, despite best efforts, could not be located at CEFCOM.Footnote 92

Maj Gagnon was referred during his testimony to another set of documents – Collection U.Footnote 93 These had been provided to the Commission by the Complainants, who obtained them when they were released under the Access to Information Act. These documents had not been produced by the Government to the Commission. Maj Gagnon advised he had seen many of these documents, but that they “failed to meet your summons request.” This determination was reportedly based on an assessment of whether MPs would have been aware of these documents. The applicable test as stated by Maj Gagnon was whether “MPs knew or should have known about the content of those documents.” Thus, the Government employees screening the documents were themselves making a determination whether MPs knew or had the means of knowing about documents, which was one of the very issues the Commission was supposed to determine based on all the evidence. This was evidenced by the following exchange:

Q. You are making the determination that the MPs did not know or should not have known about these documents?

MAJ GAGNON: Yes, sir. It is why many of the witnesses that have appeared before this Commission were not aware of these documents or didn’t know they existed.

Q. On what basis are you determining that MPs didn’t know or should not have known about a document? How do you know that?

MAJ GAGNON: It is based on our experience of being in theatre operations. You must understand how information is passed through the chain of command.

Q. Did you talk to anybody to see if MPs might have known about a document or the information in a document?

MAJ GAGNON: We have talked to MPs about this basic aspect of documents concerning their knowledge with similar documents.

Q. Could I ask you to turn to tab 3. Here is an example of an e mail that is sent to many addressees within CEFCOM. Did you speak to any of the addressees on this e mail to see if the MPs knew or had this information otherwise available to them?

MAJ GAGNON: No, we have not.

Q. Pardon me?

MAJ GAGNON: No, we have not.

Q. On what basis would you determine that, say, the CEFCOM Provost Marshal did not have this document or the information in this document available to him?

MAJ GAGNON: First was determined regarding the distribution list, identifying which key positions were notified of this specific document. And also based on what the information was in the document, which clearly indicated to us that MPs will have not be made aware or even be knowledgeable of this document at the time.

Q. You can tell that just by looking at the document?

MAJ GAGNON: Yes, sir.Footnote 94

Moreover, Maj Gagnon appears to have been at least part of a group of people who would decide whether or not a document was responsive to the summons.Footnote 95 This was done before even seeing the documents requested by the Commission, as became apparent from a letter, dated May 14, 2009,Footnote 96 in which Mr. Préfontaine wrote the Commission to “confirm the response of the Government of Canada to the requests you have made of its different institutions”. He wrote:

I have yet to hear from you how or why large classes of the information the Commission seeks are relevant to the assessment of the conduct of the ten named subjects. Without an explanation as to the factual connection the Commission can establish between certain classes of information and the ten individuals in issue, we could legitimately conclude that the information cannot possibly be relevant to the investigations. Further, the absence of any demonstrated relevance impacts on the review section 38 of the Canada Evidence Act requires the Government of Canada to perform every time sensitive or potentially injurious information is in issue in a proceeding.

[...]

In the absence of an explanation of the relevance of the information sought or of an order of priority, we have taken upon ourselves to action only those requests – or portions thereof – that are legitimately relevant to the investigations. While the process described above is not complete, it should soon start to produce results.

That letter included a table responding to the different types of documents previously requested by the Commission. Many items were deemed irrelevant, unilaterally by the Government, compelling the Commission to write back on May 22, 2008, to rebut the vast majority of the Government claims of irrelevancy. As an example, one category of documents the Government deemed as irrelevant were all “detainee transfer order records” signed by the Task Force Commander.

The Commission learned from Maj Gagnon’s testimony that, only when the Commission specifically challenged the Government’s unilateral assessment of the relevance of a document, did the Government begin to attempt to compile these documents. Moreover, the determination of the relevance of some classes of documents was actually made by the Government without even looking at the documents in question.Footnote 97 The Commission found the Government’s approach to be disconcerting.

In terms of the pace of production of documents to the Commission – i.e., those documents the Government had decided to actually provide - it is obvious that Maj Gagnon and his team were busy during portions of the time between March 2008 to October 2009 with document production and review work related to the public interest hearings. From January 2009 to May 2009, his team was involved in reviewing for s. 38 issues the 1300 pages of documents that had originally been produced to the Commission without redaction during the investigation stage. After the adjournment in October 2009, Maj Gagnon’s team was involved with the review and production of documents to the Commission, a process which included the redaction of interview transcripts created during the investigation stage. Finally, he and his team were also involved with the review for s. 38 issues of documents gathered by other departments in response to the Commission’s requests, and with revisiting redactions to documents that had already been redacted. For consistency purposes, moreover, the same small group of people were involved in all s. 38 review for Commission documents coming from CF/DND and DFAIT.Footnote 98 As such, a large volume of material had to work its way through a small number of reviewers. Clearly, this created bottlenecks and delays.

3.16.3 DFAIT Document Production

Mr. Leonard Edwards testified before the Commission on May 3, 2010, in respect of document production by DFAIT and the summons bearing his name issued October 26, 2009.

Mr. Edwards first became Deputy Minister at DFAIT in March 2007, and held that position at all times relevant to the hearing process. However, he had not read the June 12, 2008 complaint that formed the basis of these public interest hearings.

Mr. Edwards did not have direct responsibility for document production to the Commission. That responsibility was in the hands of the Afghanistan Task Force at DFAIT, run in 2007 by David Mulroney, Mr. Edwards’ Associate Deputy Minister. Subsequently, Mr. Yves Brodeur took over that position. These two individuals had delegated to them the management of the Afghanistan Task Force, and therefore oversight of document production to this Commission. Ms. Jillian Stirk, who replaced Mr. Brodeur in the summer of 2009 as Associate Deputy Minister responsible for the Afghanistan Task Force, attended before the Commission with Mr. Edwards to help explain the DFAIT document production process.

Mr. Edwards was shown a list of documents that had been requested of his department, and of him specifically, as far back as June 2007.Footnote 99 This request was passed along to David Mulroney for action at the time,Footnote 100 but DFAIT’s position, in consultation with the Department of Justice, was that six of the seven categories of requested documents were not relevant. As a result of this unilateral assessment of relevance, no documents were collected in response to the Commission’s requests to DFAIT until May 14, 2009. As with DND, the internal assessment of relevance had been made without having actually looked at the documents.Footnote 101 The two witnesses from DFAIT were clear a major reason for not producing the documents was a difference of opinion about what documents would be relevant and the scope of the Commission’s mandate.Footnote 102

Mr. Edwards was asked who in particular took the position the documents were irrelevant and the Commission was acting beyond its mandate. He replied this was a position taken by the Government. The Commission’s question about who in particular within the Government this might be was first met with a series of objections based primarily on the argument such an answer would breach solicitor-client privilege. For example, the Commission asked Mr. Edwards if he consulted with the Privy Council Office in reaching decisions on the Commission’s mandate and the relevance of documents. Mr. Préfontaine argued this violated solicitor-client privilege.Footnote 103 Eventually, the Commission learned the “Government of Canada” position on disclosure to the Commission was the result of decisions he made, with the advice of counsel, but he made those decisions collectively with other departments as an “entity called the Government of Canada”.Footnote 104 After much pressing by Commission counsel, the actual individuals identified as making the decisions were the DMs from DND, and DFAIT, and the Clerk of the Privy Council, along with DOJ and their counsel.Footnote 105

Mr. Edwards explained that up until some point in 2008, most of the work was done at the level of the ADMs, but following the House motion with respect to Canada’s continued military presence in Afghanistan, a group of DMs was established, chaired by Mr. Mulroney, who had moved to the Privy Council Office. This DM group included the deputies from DND, DFAIT, Privy Council, CIDA, and Public Safety, and was the key consultative body in the decision about providing documents to the Commission. The Commission could not verify whether or how often the Department of Justice attended their meetings.Footnote 106 As well, the Commission is unclear as to whether this specific DM committee made the decision not to produce documents. The initial decision not to produce was made back in 2007, when such matters were decided at the Associate Deputy Minister level. This may simply have persisted as the default approach through to Justice Harrington’s jurisdictional decision in September 2009.Footnote 107

Mr. Edwards testified he was not aware of the Commission’s letter of May 22, 2009 advising it disagreed with the Government’s claims of irrelevancy, but said he did know the Commission disagreed in general terms.Footnote 108

Eliciting this information about the decision-making process for document production required considerable effort on the part of Commission counsel. There seemed to be a reluctance to identify the persons who were behind the document production decisions. A chief obstacle arose through the claims of solicitor-client privilege made on behalf of the Government, and the position taken by Government counsel that the Commission had no ability to inquire into claims of solicitor-client privilege once they were made. However, these objections appeared to have subsided as questioning progressed.Footnote 109

The Commission also learned it was not until the revised summons was issued, following the decision of Justice Harrington, that DFAIT began to respond to the document requests. As Mr. Edwards put it, “That Federal Court decision resolved the issue between the parties and permitted us then to proceed to provide the documents.Footnote 110 Thus, it was not until September 2009, almost two years after the first document requests had been made to DFAIT by the Commission, that DFAIT appears to have actually begun to act on the Commission’s document requests. Moreover, it appears the decision not to provide documents to the Commission was made at very high levels of the bureaucracy, by a committee of ADMs or DMs from several Government of Canada departments, and the Privy Council Office, guided by advice from Department of Justice counsel.

The Commission heard on May 3, 2010, that DFAIT was, by that time, very close to satisfying the document requests made by the Commission in the October 26, 2009 summons. Ms. Stirk explained the work involved in responding to the summons. It involved a major search of departmental records, with four lines of inquiry, targeting the embassy in Kabul, operations at Kandahar (KAF and PRT), electronic records from headquarters, and the electronic archives and various registry systems. Emails were also sent to 30 individuals DFAIT knew to have been extensively involved in the detainee file, requesting those individuals to search both hard copies and electronic records.Footnote 111

The DFAIT document search resulted in the gathering of approximately 100,000 pages of documentation which was beginning to be sorted through when the second summons was issued. Much of that was duplication or clearly irrelevant (such as meeting notices) such that it really amounted to 12,000 pages. The October 2009 summons then narrowed the scope considerably. As of May 3, 2010, DFAIT had provided 680 pages of documentation and had approximately 4,000 pages still under review, either in the department or at the NSG, prioritized according to categories given by the Commission.Footnote 112

Ms. Stirk advised that DFAIT, in gathering documents, attempted to be as “broad and inclusive as possible, and so if ever there is any doubt about whether or not a document responds to the summons, our approach has been to include it.Ms. Stirk told the Commission the only guideline they used for production was the summons itself, but they did receive some written advice from counsel on how to deal with document collection.Footnote 113

DFAIT did not themselves attempt to determine whether an MP would have had access to a document, but instead focused on documents that might have had a broad distribution within DND, as the language of the summons requested:

MS. STIRK: Well, we have taken a very broad view, as I said, and it would be I think difficult for us at the Department of Foreign Affairs to prejudge what exactly MP might have had access to.

So what we have really done is taken, I think, the first part of the summons, which talks about documents that were distributed or communicated to the DND or the CF personnel with a view to broad distribution.Footnote 114

Thus, once DFAIT began its response to the summons, it erred on the side of inclusion according to Ms. Stirk. That response does not appear to have begun until the summer of 2009 when the first summons was issued, and not in earnest until the fall of that year.Footnote 115 This is to be contrasted with the promise of government cooperation received by the Commission a year and a half prior to that, in February 2008:

To facilitate the Commission’s investigations to the fullest extent possible consistent with its mandate, I have been instructed to disclose to the Commission all Government records that it would be entitled to receive if the Commission was conducting a hearing into the complaints and had in fact issued a subpoena. This approach places the Commission in the same position it would enjoy if it were to convene a public hearing into the complaints and in the same position as a superior court.Footnote 116 [Emphasis added]

It is difficult for the Commission to reconcile this promise of cooperation with the fact DFAIT actually did little or nothing on the document production front until the summer of 2009. The conclusion is that DFAIT (or the Committee of DMs or ADMs) presumptively decided none of the documents requested by the Commission fell within its mandate until, for some reason, when the first and second summonses were issued in the summer and fall of 2009, DFAIT’s posture changed and they began to assemble responsive documents. Mr. Edwards agreed this was the only conclusion to be drawn from the nature of DFAIT’s response. It was only the subpoena issued in July 2009 that seems to have triggered a document gathering response, with the one exception being that some document collection had begun in respect of subpoenas issued by the Commission to individual DFAIT employees.Footnote 117

In addition to gathering and vetting the documents responsive to its summons, DFAIT was involved in reviewing (for s. 38 purposes) the documents provided by other departments before release to the Commission.Footnote 118

3.16.4 Issuance of the Gagnon Summons and a Return to Federal Court

After the testimony from the DND witnesses, the Commission considered it necessary to take further steps to ensure it had received all relevant documentation pursuant to its summons. While DFAIT’s approach was disappointing in terms of timeliness, the evidence indicated that by June 2010 DFAIT was acting in a broad and inclusive way to satisfy the documentary summons issued to Mr. Edwards. Concerns remained outstanding, however, with respect to the summons to BGen Blanchette, and the DND approach to screening out documents.

As a result, on April 29, 2010, the Commission decided to issue a summons to Maj Gagnon. The Commission requested in the summons:

On August 25, 2010, this summons was reissued to BGen Blanchette, at the request of Government counsel, and Maj Gagnon was released from the summons issued in his name.

The Gagnon/Blanchette summons was not issued by the Commission at the request of AIC/BCCLA. Rather, it was issued ex proprio motuFootnote 119 because it was considered necessary to the full investigation of the matters before the Commission, relying on the grant of authority in section 250.41(1) (a) of the NDA. In the Commission’s view, many serious issues and concerns had arisen in connection with the scope, pace and completeness of document production, as discussed earlier. Part of the Commission’s rationale for issuing the Gagnon/Blanchette summons was the need to understand the Government methodology and approach to document disclosure to the Commission, and the extent to which documents had been collected by Government officials as a result of the complaint, but then not disclosed to the Commission.

This is an issue that impacts directly on the fullness and independence of the Commission’s investigation because it relates, at its core, to who has the authority to decide what information the Commission will see. The frustration experienced by the Commission in attempting to obtain information about the pace and the methodology behind the Government’s production of documents was evident in the transcript of the above-noted April 20, 2010 hearings.

The summons to Maj Gagnon (eventually amended to BGen Blanchette) led to another application in Federal Court. This application challenged the Commission’s decision to issue the summons and asked the Court to set it aside. This application was dated May 28, 2010, the day after the summons was issued.

Two additional applications for judicial review would be filed in the following months, both dealing with the Commission’s decisions on the “means of knowing” motion brought on behalf of seven subjects. These three applications would in due course be consolidated by the Court. At the time the Commission’s substantive hearings were completed and final submissions received in February 2011, these judicial review applications remained unheard.

The applicants named in all the above judicial review applications were the seven individual subjects represented collectively by Department of Justice counsel, BGen Blanchette, and the Attorney General. Mr. Préfontaine appeared as counsel for all those parties in the Federal Court. Capt (N) (ret’d) Steven Moore, the only subject who was not represented by Department of Justice counsel, did not join in these applications and did not participate in them.

As was the case previously, the Complainants AIC/BCCLA were named as the Respondents in these Federal Court proceedings. The consolidated judicial review applications were eventually heard on March 28 and 29, 2011 before the Honourable Mr. Justice Yves de Montigny of the Federal Court of Canada. While the hearing of these applications was pending, the Commission continued its inquiry. The Commission was granted intervener status in the Court applications and thus devoted significant time and resources to preparing and presenting submissions to the Federal Court.

3.16.4.1 Commission’s Process Upheld by Federal Court

On September 29, 2011, Justice de Montigny dismissed the judicial review applications brought by the seven subjects, the Attorney General of Canada and BGen Blanchette on the basis that two of the applications were premature, and one was moot.Footnote 120

In describing the hearings process, Justice de Montigny recognized the issues and concerns that had arisen with respect to the scope, pace and completeness of document production by the Government:

Throughout the public hearings before the MPCC, it is fair to say that many issues and concerns have arisen in connection with the scope, pace and completeness of document production by the government in response to Commission summons, and in response to requests for documents identified by witnesses during their testimony. These issues of document production have caused significant delays to the MPCC hearing of the complaint, and have raised concerns as to how documents were being vetted and selected by the government for disclosure to the Commission.Footnote 121

Justice de Montigny then addressed the legal question of when courts should intervene and rule on decisions made by the MPCC during the course of its investigations or hearings. He noted it was “trite law that interlocutory decisions of administrative bodies are not subject to judicial review until a final decision is issued.Footnote 122 He further noted that the judicial review of interlocutory decisions of a tribunal creates the risk of “fragmenting the process, with the attendant consequences in terms of costs and delays”, and that courts are at an obvious disadvantage when ruling on issues at the early stage of proceedings, lacking as they do a full record and the relevant background to assess how the dispute might actually play out over time.Footnote 123 The only exception to this rule is where exceptional circumstances exist. Justice de Montigny found that no such circumstances existed with respect to these hearings. In particular, he found that the Applicants’ assertion that the Commission was somehow exceeding its jurisdiction in how it defined the “means of knowing” concept and in the scope of its document requests was not persuasive.Footnote 124

With respect to the “means of knowing” question, Justice de Montigny found it “not at all obvious” that Justice Harrington was even attempting to set out a legal standard when he spoke of the “means of knowing”:

[...] Justice Harrington went no further than stressing that the Commission could not use its limited jurisdiction as a “springboard” to investigate policy at large. There is, however, no obvious link between this caveat and the standard to which the Military Police should be held in conducting its investigations.Footnote 125

Justice de Montigny referred to the “means of knowing” standard as having no clear and well-defined meaning in the case law or the military police context, and therefore said it could not seriously be contended that the MPCC exceeded its jurisdiction in its analysis of such a test during the public interest hearings. Moreover, at paras 70–72, Justice de Montigny expressed approval of the Commission’s ruling on the “means of knowing” motion rendered November 3, 2010, described earlier in this Report:

In my opinion, it cannot seriously be argued that the Commission overstepped its mandate and went beyond its jurisdiction in addressing the complaint of the Applicants with respect to the “means of knowing” standard. [...] it refrained from boxing itself into a position that would pre-empt a careful consideration of the evidence.

Based on the foregoing, Justice de Montigny determined that no exceptional circumstances existed justifying the court’s interlocutory intervention on the Commission’s “means of knowing” ruling. Indeed, he considered it would have been “unwise and ill-advised” to do so, as the Court did not have the benefit of the Commission’s knowledge of the complaint, the proceedings and the evidence:

Making a ruling in a factual vacuum, and looking over the shoulders of an administrative tribunal carrying out its mandate, would be at odds with fundamental principles of administrative law.”Footnote 126

With respect to the Gagnon/Blanchette summons, Justice de Montigny also refused to intervene at the interlocutory stage, stating (at para 46) that the Commission must be given some leeway in determining the documents relevant for the purposes of its inquiry. At para 94, he stated that, “[a]s the independent oversight body tasked by Parliament with carrying out a public inquiry into the complaint, it is the MPCC’s responsibility to make its own, independent decision as to what documents it considers necessary for a full investigation of the complaint. It should not have to rely on selected documents provided on the basis [of] an opaque screening process conducted in-house by government officials.

Justice de Montigny found, at para 98, that the Commission did not exceed its jurisdiction when it issued the Gagnon/Blanchette summons. He expressed general approval of the manner in which the Commission attempted, with that summons, to understand the document screening process, and stressed the importance of the Commission being able to determine itself what documents are relevant to its inquiry and having full access to those documents when requested:

If the Commission does not have full access to relevant documents, which are the lifeblood of an inquiry, there cannot be a full and independent investigation.

[...] at the end of the day, one principle must stand: it is for the Commission, not for the government, to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.Footnote 127

Finally, Justice de Montigny refused to pre-judge the Commission’s approach to the examination and cross-examination of witnesses. He noted that some of the witnesses examined by the Commission were civil servants and not members of the Canadian Forces, but found no basis to speculate that the Commission would ignore its mandate, or make findings against people it has no authority to make findings against. Instead, he said that the Commission, as an external oversight body “ought to be left with some room to manoeuvre, and be given latitude to determine for itself what is relevant and what is not.Footnote 128

IV. Other Processes Addressing Detainee Issues in Afghanistan

In addition to the failure to investigate complaint, other processes during the course of these proceedings were relevant to the question of the treatment of detainees in Afghanistan.

4.1 The Complaint from Professor Attaran to the Commission

On April 23, 2009, the Commission released its report in MPCC 2007-003 following a public interest investigation of a complaint submitted by Dr. Amir Attaran.Footnote 129 The report focused on the alleged acts and omissions of MPs in Afghanistan regarding three Afghan detainees who passed through CF custody in Kandahar province between April 6 and 8, 2006. The Attaran complaint thus dealt not with Canadian transfer of detainees to an alleged risk of torture or mistreatment, but instead with the treatment by MPs of detainees while in Canadian custody.

In the matter under examination in the Attaran complaint, the three detainees in question were apprehended during ISAF operations in western Kandahar province. They were transported to Kandahar Air Field (KAF) by personnel from the capturing combat arms unit. While being captured, one of the detainees had sustained visible injuries to the head. More minor injuries to the other two detainees were also noted. The MPs at KAF processed these detainees pursuant to the relevant Theatre Standing Orders and, a little over 24 hours after capture, the detainees were transferred to the ANP.Footnote 130

Dr. Attaran acquired, pursuant to an Access to Information request, certain documents pertaining to the handling of these three detainees, and, as a result, he filed a complaint with the Commission.Footnote 131 The documents obtained by Dr. Attaran were subject to numerous redactions, but his analysis of the redacted materials led him to believe that the detainees in question may have been mistreated while in CF custody. The documents also led him to question how the injuries were sustained by these detainees, the care they were given while in CF custody, whether MP members receiving the detainees at KAF adequately enquired as to the origin of the injuries, as well as the seemingly rapid transfer of the detainees to Afghan custody.

During the process of deciding whether to launch an immediate public interest investigation, or to follow the default procedure calling for initial investigation of the complaint by the CFPM, the Commission was advised the CFPM had ordered the CFNIS to conduct a criminal and service investigation into the conduct of all CF personnel involved, and the Chief of the Defence Staff (CDS) had decided to convene a military Board of Inquiry into detainee-handling procedures in Afghanistan. Thus, in addition to the Commission’s investigation, the Attaran complaint spawned a CFNIS investigation and a military BOI into the same fact situation.

The Commission’s investigation focused on the conduct of MP members involved with the detention, processing and transfer of the three detainees identified in the complaint, most particularly their “duty to investigate” injuries sustained by the detainees. In addition, the Commission also examined the associated issues that motivated the apparently accelerated transfer of the detainees to Afghan authorities.Footnote 132

As a result of its investigation of the Attaran complaint, the Commission decided the majority of the Complainant’s allegations were not substantiated. The Commission found that the MPs treated the detainees humanely while in their custody, and did not attempt to conceal the detainees’ injuries or cover-up possible mistreatment of the detainees by other CF members by expediting the transfer of the detainees. The rush to transfer the detainees to Afghan custody, the Commission found, was in response to general and pervasive pressure from the chain of command for maximum haste in effecting detainee transfers.Footnote 133

The Commission’s investigation did lead it to conclude the MPs at KAF should have caused some further investigation to be undertaken regarding the cause of injuries to one of the detainees, and that they failed to do so. The Commission made the following statement on that failure to investigate:

The need for the MPs to make further inquiries (or refer the issue to the KAF CFNIS team) should arguably have been apparent from the MPs’ special law enforcement mandate within the CF, particularly given the context of the chain of command’s known sensitivity regarding the treatment of detainees and its resulting need to be assured that they were properly treated and demonstrably so. However, in any event, specific technical direction clearly spelling out the need for MP investigation of detainee injuries in these circumstances had been issued by the CFPM in respect of the Afghan mission.

In respect of the failure to investigate D3’s injuries, ultimately attributable to the TFPM, the Commission’s investigation revealed a surprising lack of awareness and even acceptance by the MPs of the CFPM’s technical direction in this regard.Footnote 134

The Commission made reference to the MP Technical Directives that governed MPs in Afghanistan, the obligations they create for MPs to investigate certain matters respecting detainees, and an apparent lack of awareness and acceptance by MPs of the nature of those Directives. Moreover, the Commission made reference to the sensitivity of detainee matters as also creating a need for MPs to make further inquiries in certain circumstances.

In particular, the Commission referred to the obligation found in the governing MP Technical Directive to “investigate allegations or instances” of “Use of force by CF personnel resulting in injury or death.” and the obligation placed on the TFPM in theatre to “ensure investigation” of the same.Footnote 135 The Commission acknowledged in the Attaran Report that these Directives, while appearing inflexible in their wording, did not necessarily require full-out investigations:

While the wording of the Directive in places (notably paragraphs 11 and 14) may appear somewhat inflexible, it is the Commission’s view that it must be read as a whole and interpreted reasonably in the context. As paragraph 10 of the Directive makes clear, it was not intended that full MP investigations would be launched in a mechanical fashion without regards to the facts of a particular incident. What was clearly intended, however, was that the MPs, and in particular the TFPM, were expected, when confronted with one of the scenarios indicated, to turn their minds to the need for further investigation and to appropriately document their decision in that regard.Footnote 136

That said, the Commission also held in the Attaran Report that the “MP Technical Directive clearly intended a more proactive posture for MPs in the highly sensitive area of detainee treatment.”Footnote 137

On the failure to investigate issue, the Commission came to a conclusion with respect to MP understanding of their policing role in the context of military operations:

In light of the foregoing points and the evidence of various witnesses, the apparent disinclination of the MP leadership to perform their investigative/law enforcement role as intended by the MP Technical Directive suggests two distinct problems in some MPs’ understanding of their role in the context of military operations:

  1. a failure to fully appreciate the special significance of the CFPM’s technical authority in MPpolicing” matters, such as law enforcement investigations; and,
  2. a failure to appreciate that MPs’ law enforcement mandate, and their concomitant susceptibility to applicable technical direction in that regard, is constant and is not somehow held in abeyance when assigned to roles, such as prisoner-of-war/detainee handling, which some deem not to be of a law enforcement nature.Footnote 138

The Commission also reached a further conclusion, and made a related recommendation, in respect of the need for further systemic reforms to the MP branch in order to ensure that the full potential contributions of MPs to upholding the Rule of Law in CF operations may be realized.Footnote 139 The Commission noted, at least based on the facts of the Attaran complaint, the technical and policing expectations placed on the MPs in theatre appeared to exceed their authority to carry out those responsibilities. Moreover, it appeared to the Commission the MPs it interviewed in theatre did not fully understand the nature and extent of their policing duties and responsibilities, and were confused or non-accepting of legitimate direction in respect of those duties. The Commission found:

[...] as revealed by examination of the events associated with this complaint, the legislative initiatives of the late 1990’s and other measures following have not been fully successful in structuring, positioning and resourcing the MP to enable performance at the required standard to make their full potential contribution to the CF, and thereby maintain the confidence of the Canadian community.Footnote 140

This finding led the Commission to recommend, among other things, “that a new and more complete command and control structure is put into place which allows the CFPM to fulfill the important responsibilities of that office for the delivery of effective and cohesive police services throughout the CF, as a key component of the military justice system and in support of military operations.Footnote 141 In his April 3, 2009 Notice of Action, the CFPM indicated his agreement with this recommendation and further advised he had, in fact, presented options for a more complete MP command and control structure to the Chief of the Defence Staff’s Command Council, where the matter was under consideration as of April 23, 2009.Footnote 142

It should be noted a new command structure for military police became effective April 1, 2011. This is discussed in the Commission’s findings regarding Capt (N) (ret’d) Moore.

4.2 Amnesty International Charter Litigation before the Federal Court (the Mactavish Decisions)

In addition to the various applications for judicial review brought by the Attorney General of Canada, and the related stay proceedings described above, yet another set of proceedings before the Federal Court of Canada were relevant to the Commission’s hearings. The existence of those proceedings and the findings of the trial judge became a point of evidentiary consideration during witness and subject examinations.

In Amnesty International Canada and B.C. Civil Liberties Association v. Chief of Defence the Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, 2008 FC 162, Justice Mactavish rendered a decision on February 7, 2008, resulting from a motion for an interlocutory injunction by AIC/BCCLA to halt detainee transfers in Afghanistan (hereinafter the “Injunction Decision”). In essence, AIC/BCCLA argued transfers should be halted because of the risk that detainees would be tortured or mistreated post-transfer. From the Commission’s perspective, the Injunction Decision was potentially within the knowledge of relevant witnesses and subjects during the timeframe of the failure to investigate complaint.

Following is a summary of some of the key findings. Justice Mactavish, beginning at para 2 of her decision, spoke of very real concerns about the effectiveness of the Canadian monitoring regime:

…[t]he evidence adduced by the applicants clearly establishes the existence of very real concerns as to the effectiveness of the steps that have been taken thus far to ensure that detainees transferred by the CF to the custody of Afghan authorities are not mistreated.

Justice Mactavish noted the applicants’ motion for an injunction was originally scheduled to be heard on May 4, 2007, but that a new transfer arrangement was concluded the day before the Court hearing, on May 3, 2007. The applicants’ motion was then adjourned sine die. However, the applicants subsequently developed concerns with respect to the efficacy and sufficiency of the protections afforded to detainees under this new arrangement, and in November 2007 renewed their motion for an interlocutory injunction. On January 22, 2008, the applicants were advised by the respondents that the CF had suspended detainee transfers until such time as transfers could be resumed in accordance with Canada’s international obligations.Footnote 143

The Injunction Decision states, at para 30, why transfers were suspended in November 2007, namely, that a “credible allegation of mistreatment” existed, and that since November 5, 2007, no detainee transfers had occurred:

The decision to suspend detainee transfers was made on November 6, 2008. The decision was the result of a “credible allegation of mistreatment” having been received the previous day by Canadian personnel monitoring the condition of detainees transferred to Afghan authorities.Footnote 144

The Attorney General of Canada submitted to the Federal Court that transfers would not resume until such time as the CF could be satisfied detainees would not face a substantial risk of torture.Footnote 145

Justice Mactavish also referred to “substantial evidence” led by AIC/BCCLA on alleged inadequacies in the safeguards put into place to protect detainees transferred to Afghan authorities,Footnote 146 noting deficiencies in record keeping even after the new May arrangement:

Indeed, the documentation relating to the period between the negotiation of the second Arrangement on May 3, 2007, and the suspension of transfers on November 6, 2007, is replete with references to the ongoing difficulties facing the CF and the Department of Foreign Affairs and International Development [sic] (“DFAIT”) in tracking down detainees once they leave Canadian custody.Footnote 147

Justice Mactavish also referred to the fact that since the May 3, 2007 arrangement, the whereabouts were unknown for at least four detainees taken into Canadian custody after May 3, 2007 and subsequently transferred to the Afghan authorities,Footnote 148 while Canadian personnel could not follow up on several other detainees because they had allegedly been released prior to Canadian visits.Footnote 149

Perhaps of most interest for the purposes of the failure to investigate complaint, Justice Mactavish referred to eight complaints of prisoner abuse that had been received between May 3, 2007 and November 5, 2007, and to indications that these complaints were credible. She referred, as well, to a November 5, 2007 allegation of detainee mistreatment where the implements of alleged torture were actually found by the Canadian interviewer:

Eight complaints of prisoner abuse were received by Canadian personnel conducting site visits in Afghan detention facilities between May 3, 2007 and November 5, 2007. These complaints included allegations that detainees were kicked, beaten with electrical cables, given electric shocks, cut, burned, shackled, and made to stand for days at a time with their arms raised over their heads.

While it is possible that these complaints were fabricated, it is noteworthy that the methods of torture described by detainees are consistent with the type of torture practices that are employed in Afghan prisons, as recorded in independent country condition reports, including those emanating from DFAIT.

Moreover, in some cases, prisoners bore physical signs that were consistent with their allegations of abuse. In addition, Canadian personnel conducting site visits personally observed detainees manifesting signs of mental illness, and in at least two cases, reports of the monitoring visits describe detainees as appearing “traumatized”.

[...]

On November 5, 2007, Canadian personnel, including Mr. Gosselin, attended at the NDS detention facility in Kandahar City on a site visit. In the course of the visit, a detainee stated that he had been interrogated by his captors on more than one occasion – the precise number of interrogations having been redacted from the record on the grounds of national security and diplomatic relations.

At least one of the interrogations had evidently taken place in the room in which the interview was being conducted. The detainee stated that he could not recall the details of that interrogation, as he had allegedly been knocked unconscious early on. He did report, however, that he had been held to the ground and beaten with electrical wires and a rubber hose.

The detainee then pointed to a chair in the interview room, stating that the instruments that had been used to beat him had been concealed under the chair. Canadian personnel then located a large piece of braided electrical wire and a rubber hose under the chair in question.

In the course of the interview, the detainee also revealed a large bruise on his back, which was subsequently described by Canadian personnel as being “possibly [...] the result of a blow.Footnote 150

Justice Mactavish also referred to other evidence on Afghanistan’s human rights records and expert evidence with respect to post-transfer monitoring as a means of preventing torture, finding the latter to “raise serious questions as to the usefulness of post-transfer monitoring as a means of preventing torture.Footnote 151 Justice Mactavish then wrote the following about the possibility of resuming detainee transfers, indicating some uncertainty as to whether transfers could safely resume. Justice Mactavish described the evidence produced by AIC/BCCLA as “very troubling”:

The evidence adduced by the applicants is very troubling, and creates real and serious concerns as to the efficacy of the safeguards that have been put in place thus far to protect detainees transferred into the custody of Afghan prison officials by the CF.

As a result of these concerns, the CF will undoubtedly have to give very careful consideration as to whether it is indeed possible to resume such transfers in the future without exposing detainees to a substantial risk of torture.

Careful consideration will also have to be given as to what, if any, safeguards can be put into place that will be sufficient to ensure that any detainees transferred by CF personnel into the hands of Afghan authorities are not thereby exposed to a substantial risk of torture.Footnote 152

Justice Mactavish also observed that the CF had indicated detainee transfers would not resume unless they were satisfied this could be done in accordance with international obligations,Footnote 153 and that it was “by no means clear at this point that future transfers will necessarily take place in circumstances that would expose detainees to a substantial risk of torture.Footnote 154

Ultimately, it was largely due to the fact detainee transfers had been suspended that Justice Mactavish decided against issuing the requested injunction:

Given the current uncertainty surrounding the future resumption of transfers, and the lack of clarity with respect to the conditions under which those transfers may take place, the applicants have not satisfied this aspect of the injunctive test.Footnote 155

Another decision from Justice Mactavish followed shortly on the heels of the Injunction Decision. In Amnesty International Canada and B.C. Civil Liberties Association v. Chief of Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, 2008 FC 336, [hereinafter the “Charter Decision”], dated March 12, 2008, Justice Mactavish considered the issue whether the Canadian Charter of Rights and Freedoms applies to the conduct of CF personnel in relation to individuals detained by the CF in Afghanistan, and to the transfer of those individuals to the custody of Afghan authorities. Justice Mactavish concluded the Charter did not apply, for reasons that need not be set out in detail.

In the process of reaching that conclusion Justice Mactavish referred to some of the same information that had been considered in the Injunction Decision, noting the Court was advised that, as of February 26, 2008, the CF had resumed transferring detainees to Afghan custody.Footnote 156 Justice Mactavish made the following comment about the propriety of that decision:

As the Court noted in its decision dismissing the applicants’ motion for an interlocutory injunction, the evidence adduced by the applicants clearly established the existence of very real and serious concerns as to the effectiveness of the steps that had been taken prior to November 5, 2007, to ensure that detainees transferred by the CF to the custody of Afghan authorities are not mistreated [...]

While the CF have implemented additional measures designed to reduce the risk to detainees transferred into the custody of Afghan authorities since November 5, 2007, it is not necessary for the purposes of this motion to pass judgment on the efficacy or sufficiency of these additional protective measures.Footnote 157

In ruling the Charter did not apply to Afghan detainees captured by Canada, Justice Mactavish suggested the appropriate legal regime to govern the military activities in Afghanistan is the law governing armed conflict, specifically, international humanitarian law.Footnote 158 Justice Mactavish observed that Afghan detainees “enjoy the rights conferred on them by the Afghan Constitution and by international law, including, in particular, international humanitarian law.Footnote 159 While it was ruled the Charter did not apply to the conduct of the CF in Afghanistan, Justice Mactavish did note concerns about the enforcement mechanisms and protections provided under international law:

The potential weaknesses in these enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle…Footnote 160

The March 12, 2008 decision went on to state detainees in Afghanistan did have legal rights and protections, and observed that CF personnel themselves could face disciplinary sanctions and criminal prosecution should they violate Canadian and international law:

Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land,” with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and in particular, by international humanitarian law.

It must also be observed that members of the CF cannot act with impunity with respect to the detainees in their custody. Not only can Canadian military personnel face disciplinary sanctions and criminal prosecution under Canadian law should their actions in Afghanistan violate international humanitarian law standards, in addition, they could potentially face sanctions or prosecutions under international law.Footnote 161

Justice Mactavish’s decision on the applicability of the Charter was upheld on appeal to the Federal Court of Appeal: Amnesty International Canada v. Canadian Forces, 2008 FC 401.

As a consequence of the litigation before Justice Mactavish in the Federal Court of Canada, the Commission acquired a number of documents relevant to its own proceedings. During the period from March 2008 to October 2009 when the Government failed to provide a single new document to the Commission, the Commission acquired documents filed in open Court during the Federal Court process. Eventually, much of that material was entered into evidence during the Commission’s public interest hearing proceedings. For example, for a considerable period of time, the Commission worked with the site visit reports resulting from DFAIT visits to Canadian-transferred detainees that were acquired, via AIC/BCCLA, from the Federal Court process before Justice Mactavish.Footnote 162 It was not until mid-2010 that the Commission actually had visit reports disclosed to it directly by the Government.

4.3 Parliamentary Proceedings

In November 2009 the House of Commons Special Committee on the Canadian Mission in Afghanistan (“the Afghanistan Committee”) commenced hearings into the transfer of detainees and heard evidence from a number of witnesses, including Mr. Richard Colvin, Mr. Peter Tinsley (then the Commission Chairperson), retired Gen Rick Hillier, LGen (ret’d) Gauthier, MGen (ret’d) Grant and others. Some of those same witnesses subsequently gave evidence before this Commission during the Commission’s public interest hearings.

As a result of the proceedings before the Afghanistan Committee, the Government agreed the Commission would be given versions of documents with fewer redactions. By letter dated June 4, 2010, the Government also advised the Commission that, as a result of a motion adopted by the House of Commons on December 10, 2009, a Technical Assistance Visit (TAV) was being sent to Afghanistan to return with relevant documents. If additional relevant and responsive documents were discovered by the TAV, then they would be reviewed under s. 38 and also disclosed to the Commission.

A package of documents from this process was produced to the Commission on June 22, 2011, more than six months after the testimony of the final witness. A significant number of these documents were already in the Commission’s possession, but in many of them the redactions from the Afghanistan Committee differed from the redactions in the materials previously disclosed. On October 28, 2011 the entire collection of documents from the Afghanistan Committee was compiled into eight volumes and entered as Exhibit P-90 in the proceedings. The review of this collection of documents required significant Commission time and resources.

4.4 The April 25, 2010 UK Judgment on the Legality of Detainee Transfers

The decision of the UK High Court of Justice in The Queen (on the application of Maya Evans) v. Secretary of State for Defence, [2010] EWHC 1445 (Admin) was entered as Exhibit P-75 during the public interest hearings. While the parallels between the UK and Canadian situation for detainee transfers in Afghanistan was interesting in a general sense, the chief interest for the Commission, flowing from the Evans decision was the information it contained about the role played by the Royal Military Police in the detainee transfer process.

Evans indicated the British policy was that Afghan detainees were to be transferred to the Afghan authorities within 96 hours or released, but they were not to be transferred where there was a real risk at the time of transfer that they would suffer torture or serious mistreatment. The claimant in Evans, a peace activist who brought the claim in the public interest, with public funding, argued transferees into Afghan custody had been and continued to be at real risk of torture or serious mistreatment, and that the practice of transfer had been and continued to be in breach of UK Government policy and unlawful. The claimant in Evans was basically seeking to bring to an end the practice of UK forces transferring detainees to Afghan custody.Footnote 163

The great majority of the British detainee transfers were to the NDS, and, in particular, to three NDS facilities at Kabul, Kandahar and Lashkar Gah.Footnote 164 Interestingly, in November 2007, the UK rejected a call for a moratorium on transfers following the suspension of transfers by Canada (as a result of allegations of ill treatment of Canadian transferees).Footnote 165

The High Court judgment described the NDS, their role in the transfer process, independent reports on the NDS, and allegations of mistreatment by them. The Court also discussed the British MOU and related assurances of good treatment of transferred detainees, the implementation of the transfer arrangements, UK visits to detainees at the different facilities mentioned and specific allegations of ill-treatment by UK transferees. What follows, though, are some findings of fact in the Evans judgment that relate to the role played by the Royal Military Police, or that describe similarities between the Canadian and UK approach to detainee transfers that might be of relevance to this Commission’s failure to investigate complaint:

The Commission notes in particular the fact the RMP conducted the majority of the site visits to transferred detainees and created the majority of the visit reports.Footnote 175 The RMP were thus directly involved in following up on detainees post-transfer, whereas CF MPs had no involvement in this type of monitoring. Despite the fact the RMP were actually conducting site visits, unlike the CF MPs, and therefore presumably had more direct knowledge of the conditions in the prisons they visited, there was no suggestion in the Evans case that the RMPs should have commenced an investigation into the legality of the detainee transfers based on what they saw or heard during these visits, or that they were derelict in not doing so.

V. List of Witnesses and Dates of Testimony

These are the witnesses who testified before the Commission and the dates:

May 25, 2009: Col Richard Giguère, CD, Director Current Operations, Strategic Joint Staff. He provided testimony about the basic structure of the CF and the DND. He provided support documents (Exhibit P4, tab 16) as the first witness before the Commission.

May 26, 2009: LCol Sylvie Beaudry, DPM (Security) was a background witness and spoke to the MP structure with the CF. She had no direct evidence to present with respect to Afghanistan.

June 1, 2, 3, 2009: Mr. Jason Gratl, President of the BC Civil Liberties Association when the first Transfer Complaint Exhibit P1 (February 2007) was filed. He provided testimony regarding the background of the complaint and publicly available information about potential torture or abuse of detainees transferred to Afghan authorities by CF personnel.

June 2, 2009: Mr. Alex Neve is the Secretary General of Amnesty International Canada. He gave testimony at the MPCC hearing regarding the background of the complaint and publicly available information regarding the treatment of detainees in the Afghan system.

April 6, 2010: Sgt Carol Utton, (as a MCpl in the GS Platoon) was assigned to detention duties at KAF in ROTO 3 (Feb 2007 to Aug 2007). Part of her duties at KAF involved the detainee process and she gave evidence concerning the detainee transfer process at KAF. She had expressed concern during a prior interview with the Commission regarding a detainee being held for a prolonged period at the KAF detention facility in difficult circumstances. This was when the new “Transfer Arrangement” provisions were being put in place.

April 7, 2010: Capt Marc Bouchard was the GS Platoon Commander, ROTO 4 (Aug 2007 to Feb 2008) under Maj Zybala. As GS Platoon Commander, he was in charge of the detainee transfer facility. He provided evidence about his knowledge of post-transfer treatment for Canadian-transferred detainees, and also testified about the reaction of Afghan detainees when learning that they would be transferred to the NDS. During his deployment a suspension of transfers occurred in early November 2007. DFAIT site visits to transferred detainees were ongoing during his Prison inspection visits by CSC were also ongoing during his tour of duty.

April 8, 2010: Capt (ret’d) Naipaul was the GS Platoon Commander for ROTO 5 (Feb 2008 to Aug 2008) under TFPM Maj Gribble. Like his predecessor, Capt Bouchard, he was in charge of the detainee transfer facility, and provided evidence about his knowledge of post-transfer treatment of Canadian-transferred detainees. During his deployment detainee transfers resumed on February 29, 2008, and detainee site visits resumed along with them.

April 8, 2010: Maj Francis Bolduc, CO CFNIS Central (Ottawa). Maj Bolduc provided evidence on his involvement in the oversight of a number of NIS investigations into detainee abuse allegations, including a series of investigations which were managed under a file designated Operation Centipede. Operation Centipede included a brief assessment of The Globe and Mail article of April 23, 2007 written by Graeme Smith.

April 8, 2010: WO Steeve Chamberland, CFNIS Central (Ottawa). He provided evidence related to his involvement as an investigator on some of the files within Operation Centipede. During the timeframe relevant to the hearing, he was involved in a collection of NIS investigations managed together under a file designated Operation Centipede.

April 12, 2010: LCol Gilles Sansterre, CO CFNIS. He was CO for the NIS, taking command following the subject LCol (ret’d) Garrick’s retirement. Like Maj Bolduc, he provided evidence on his involvement in the oversight of a number of NIS investigations into detainee abuse allegations collected and managed under a file designated Operation Centipede. Operation Centipede included a brief assessment of the Globe and Mail article written by Graeme Smith. LCol Sansterre also provided some evidence on his knowledge of the risks to detainees post-transfer in Afghanistan.

April 13, 2010: Mr. Richard Colvin, a DFAIT employee stationed in Afghanistan at the PRT Kandahar and later as chargé d’affaires and Deputy Head of Mission in Kabul. He received and generated email messages and other reports which he asserts were intended to warn Canadian government officials about the risk of torture and mistreatment of CF Detainees transferred to Afghan authorities. He also conducted at least one site visit to detainees in Kabul.

April 14, 2010 and June 15, 2010: Mr. Nicholas Gosselin was a DFAIT employee whose task it was, while in Afghanistan, to conduct site visits to Canadian-transferred detainees and report on those visits. He generated numerous such reports, including one on November 5, 2007, when he located some alleged implements of torture in a location identified by a detainee he was interviewing at the time. Mr. Gosselin also testified to the distribution of the reports he generated.

April 15, 2010: LCol Douglas Boot, as a Maj, was the CEFCOM PM, located in Ottawa, for the period August 1, 2006 to July 1, 2007. He was involved in the updating of TSO 321A/321 on detainee handling. He testified as to his knowledge of the risk of torture or abuse post-transfer, the stoppage of transfers in May 2007, and investigations that may have followed the Graeme Smith article from the Globe & Mail. He provided context as to the role of the CEFCOM PM and the interaction with the CEFCOM chain of command as well as his link to the TFPM in theatre and the CFPM in Canada.

April 15, 2010: Maj Martin Laflamme was the CEFCOM PM following LCol Boot, through to April 2008. He provided context as to the role of the CEFCOM PM and the interaction with the CEFCOM chain of command as well as his link to the TFPM and the CFPM. He was in place when the suspension of detainee transfers occurred in November 2007, and provided evidence about his attempts to inquire into the reason behind the suspension.

April 20, 2010: Maj (ret’d) Kevin Rowcliffe was the first CEFCOM PM for the period August 2005 to July 2006, and was in Kandahar prior to ROTO 0 (summer 2005) setting up for the transition from Kabul to Kandahar. He was involved in detainee discussions at this time. Maj (ret’d) Rowcliffe was concerned about the risks of post-transfer abuse, his concerns being based on previous experience and his awareness of the situation in Afghanistan generally. He provided evidence on his attempts to convey these concerns to the senior command levels.

April 21, 2010: Capt Gillian Worsfold was the GS Platoon Commander for ROTO 3 under TFPM Hudson from Feb 2007 to Aug 2007, and like Capt Bouchard and Capt (ret’d) Naipaul, she was in charge of the detainee transfer facility. She provided evidence on the extent of her knowledge about the risk of post-transfer mistreatment or torture of Canadian-transferred detainees, and her knowledge of events such as the suspension of transfers in May 2007 and the new transfer arrangement.

April 27, 2010: BGen Richard Blanchette, Strategic Joint Staff appeared to testify to provide details as to the process used by the CF/DND to collect, vet, redact and process documents requested and compelled by summons issued to him by the Commission during the course of investigating the February 21, 2007 and June 12, 2008 complaints.

April 27, 2010: Maj Denis Gagnon was a team leader reporting to BGen Blanchette and provided the details with respect to the processing of document requests made by the Commission during the course of investigating the February 21, 2007 and June 12, 2008 complaints.

May 3, 2010: Mr. Leonard Edwards was the Deputy Minister of DFAIT from March 2007 onwards. Mr. Edwards provided evidence about outstanding document requests made to the department dating back to June 2007 and the current approach to and status of document production in response to Commission’s summons to him.

May 3, 2010: Ms. Jillian Stirk was the Associate Deputy Minister of DFAIT and responsible for the Afghanistan Task Force since the summer of 2009. Ms. Stirk provided evidence on the current approach to and status of document production in response to Commission summons to her department.

May 6, 2010: Dr. Marco Sassoli is Professor and Director of the Department of Public International Law and International Organization of the University of Geneva; Associate Professor, Université du Québec à Montréal and Université Laval, and at the request of the Commission prepared a Research Report (P-64) titled International law issues raised by the complaint made by Amnesty International Canada and the British Columbia Civil Liberties Association before the Military Police Complaints Commission concerning the transfer, by Canadian Forces, of Afghan detainees to Afghan authorities. He appeared as a panel with Prof. Forcese to present his opinions.

May 6, 2010: Professor Craig Forcese is an Associate Law Professor, Ottawa University and at the request of the Commission prepared a Research Report (P-65) titled Assessment of Complainants’ Legal Claims. He appeared as a panel with Dr. Sassoli to present his opinions.

May 11, 2010 and October 4, 2010: MGen Guy Laroche was part of the senior DCDS structure and subsequent CEFCOM command structure (then BGen Laroche) from 2005 to July 2007 when he was deployed to Afghanistan as the Task Force Commander from August 2007 to May 2008 (then BGen Laroche). He provided evidence on the context of operations at CEFCOM, and his role in authorizing detainee transfers in theatre. He testified about the information and advisors he relied upon in theatre when making the decision to transfer. It was during his time as Task Force Commander in Afghanistan that detainee transfers were suspended in Nov 2007 following a site visit by Nicholas Gosselin and the finding of the implements of alleged torture. Transfers resumed in Feb/Mar 2008, and he provided evidence about the circumstances justifying the resumption of transfers.

May 12, 2010: Mr. Ed Jager was a DFAIT Political Advisor (POLAD) at KAF during ROTO 4 and provided evidence concerning his role as POLAD in the transfers of detainees, post-transfer tracking and monitoring of detainees and his understanding of the role of MPs and presence of MPs during transfer. He also provided evidence on the distribution of site visit reports at Task Force Headquarters.

June 14 and 15, 2010: Ms. Gabrielle Duschner was the CEFCOM J9 (political advisor) from December 2006 to November 2008 and was the person responsible for “whole of government” policy on detainee issues at CEFCOM within DND. She provided evidence on knowledge of the information environment with respect to detainee issues at CEFCOM, post-transfer risks to detainees within CEFCOM, her interactions with the CEFCOM PM, policy changes with respect to the role of MPs in post-transfer follow-up visits, and a meeting at which Mr. Colvin expressed his concerns about the risks to detainees.

September 9, 2010: MGen Mike Ward was the Chief of Staff Operations (COS Ops) at CEFCOM from Feb 2006 to May 2006 and held an analogous position under the previous command structure. He provided evidence on his role at CEFCOM, in the development/operationalization of Canada’s detainee policy through the December 2005 Arrangement and what roles were identified for the military police. He also provided evidence on the information environment with respect to detainee treatment at CEFCOM, and on his involvement with detainee issues while visiting Afghanistan.

September 14, 2010: LGen André Deschamps was the COS Ops at CEFCOM from May 2006 to September 2008, replacing MGen Ward. He gave evidence on his role at CEFCOM, his knowledge of and involvement with detainee issues, and his knowledge about the evolving role for MPs in the post-transfer follow-up process.

September 16, 2010: Mr. John Davison was the Political Director at the PRT and in charge of the DFAIT component at that location from June 2007 to August 2008. He testified about his involvement with site visits to the prison facilities as part of the post-transfer follow-up process, and the distribution of those reports. He was also present during the interview of a detainee in November 2007 where the implements of torture were located and identified by their interviewee.

September 22, 2010: MGen (ret’d) Tim Grant was the Task Force Commander (BGen at the time) from Nov 2006 to July 2007 when he was replaced by BGen Laroche. He provided evidence about the evolution of detainee policy in Afghanistan, and the development of the post-transfer site visit process. He provided evidence about his decision making process for the transfer of detainees, and any MP involvement in that process. He also provided evidence about his knowledge of risks post-transfer, the receipt of site visit reports post-May 2007, and what he knew about MP knowledge of these.

September 27, 2010: LCol Robert Brian Irwin was assigned to CEFCOM from May 2007 to August 2008 as the J3 Regional Operations 2, the staff officer for Afghanistan. He provided evidence concerning a consultation with him during an NIS investigation within Operation Centipede on the legal obligations of CF members with respect to detainees.

October 5 and 6, 2010: LGen (ret’d) Michel Gauthier was the Commander of CEFCOM from its inception on February 1, 2006 through the period of interest to the Hearings. Prior to this new command structure, he held similar duties under the DCDS structure. The Cdr CEFCOM responds directly to the CDS and is responsible for funnelling information and direction to the theatre of operations and vice versa. He had oversight of all (about 20) CF deployments overseas but Afghanistan was the primary focus of his attention. He testified generally about detainee policy, MP involvement and knowledge of that policy, and his knowledge of investigations into post-transfer detainee issues.

October 13, 2010: BGen Christian Juneau (as Col) was the Deputy Commander in Afghanistan during ROTO 4 and part of ROTO 5, from August 2007 to May 2008. He was the Acting JTF Commander in November 2007 and was responsible for the decision to suspend the transfer of detainees when the implements of torture were discovered by DFAIT employees during a post-transfer follow-up visit. He testified to his knowledge of the detainee transfer process and the risks post-transfer, and MP involvement and knowledge of the process and risks.

November 15, 2010: Maj Bernie Hudson was the TFPM for ROTO 3 (Feb 2007 to Aug 2007) and is a named subject of this complaint. He testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of his commander’s decision to transfer detainees to the Afghans.

November 17, 2010: Maj Michel Zybala was the TFPM for ROTO 4 of Joint Task Force Afghanistan (JTFA) August 2007 to late February 2008 and is a named subject of this complaint. He testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of his commander’s decision to transfer detainees to the Afghans.

November 19, 2010: Maj John Kirschner, as a Capt, was the NIS Det Cdr for ROTO 5 from mid-February 2008 to August 2008 and is a named subject of this complaint. He testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of the commander’s decision to transfer detainees to the Afghans.

November 22, 2010: CWO Barry Watson, as MWO, was NIS MWO Det Cdr for ROTO 3 from February 2007 to July 2007) and is a named subject of this complaint. He testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of the commander’s decision to transfer detainees to the Afghans.

November 23, 2010: MWO (ret’d) Jean-Yves Girard was the NIS Det Cdr for ROTO 4 from August 2007 to February 2008 and is a named subject of this complaint. He testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of the commander’s decision to transfer detainees to the Afghans.

November 24, 2010: Maj Ron Gribble was the TFPM for ROTO 5 and part of the next rotation, from late February 2008 to September 2008, meaning that this complaint covers only a portion of the time he spent as TFPM in Afghanistan. He is a named subject of this complaint, and testified to his knowledge of post-transfer risks to Canadian detainees. He also testified as to the question of whether he should have investigated or did investigate the legality of his commander’s decision to transfer detainees to the Afghans.

November 29 and 30, 2010: LCol (ret’d) William (Bud) Garrick was the CO of CFNIS from 2005 through to June 2008. He is a named subject of this complaint. LCol (ret’d) Garrick provided evidence explaining his command authority and relationship to personnel under his command, primarily the NIS investigators deployed to Afghanistan even though day-to-day interaction was often via his second in command on the operations side. He also provided evidence about the extent and sufficiency of the NIS investigations undertaken, relative to allegations of detainee abuse, under Operation Centipede. Like the other subjects, he, too, provided evidence about his knowledge of post-transfer risks to Canadian detainees, and whether there should have been a specific investigation into the Task Force Commander’s decision to transfer detainees to the Afghans.

December 1 and 2, 2010: Capt (N) (ret’d) Steven Moore was the CFPM between June 2005 and June 2009. He is a named subject of this complaint. He provided evidence on a range of subjects, including his command authority and relationship to personnel under his command, and to MPs in theatre. He also provided evidence about the extent and sufficiency of the NIS investigations undertaken, relative to allegations of detainee abuse, under Operation Centipede. Like the other subjects, he, too, provided evidence about his knowledge of post-transfer risks to Canadian detainees, and whether there should have been a specific investigation into the Task Force Commander’s decision to transfer detainees to the Afghans.

VI. History of Detainee Handling by the Canadian Forces

6.1 Detainees are an Operational Command Responsibility

Military police have a long history of expertise in providing detention services to the Canadian Forces and this continues to the present time.Footnote 176 The detainee handling role most often occurs in a context in which the MP are supporting the objectives of the Canadian Forces’ Commanders in their military operations.

The military police who were handling detainees in theatre in Afghanistan were under the command of the Task Force Commander, and were not in a command relationship (at least with respect to detainee handling) with either the Canadian Forces Provost Marshal or the CEFCOM Provost Marshal.

6.2 Military Police Role in Detainee Handling and Transfer

MPs are not generally involved in the immediate capturing of detainees in operations, but traditional Canadian Forces doctrine contemplates that capturing soldiers will transfer such detainees to MP custody at the earliest opportunity.Footnote 177 Detainee handling fundamentally involves two processes – detention of persons in the sense of secure holding of those persons, and movement or transfer of persons to another location.

The MP role in detainee handling has its roots in their being the branch primarily responsible for mobility operations,Footnote 178 and being the branch responsible for enforcing disciplinary sanctions, including incarceration, on service members. Canada’s first domestic provost company was formed in 1939 with volunteers from the RCMP, and MP responsibilities soon included operation of detention barracks and, during the Dieppe landing, guarding prisoners of war. The military police were also at the time responsible for traffic control, the “prime function of the provost in battle”.Footnote 179

During the Second World War, large numbers of refugees, displaced persons and detainees had to be relocated back from the battle lines simultaneously with the need to move forward large numbers of service members, their equipment and their provisions.Footnote 180 Handling of traffic and handling of people naturally go together in these conditions. In addition, the military police were responsible for movement of prisoners of war and internees within Canada. The military police have a history of experience and demonstrated expertise in both traffic control and detention and transfer of persons, making them particularly suited for detainee handling during combat missions.

6.3 Military Police Detainee Handling for Task Force Afghanistan

Canada’s base in Afghanistan moved from Kabul to Kandahar in late 2005. Canada’s military role in Afghanistan changed dramatically from 2005 to 2006, and this led to significant changes in detainee handling practices. What had initially been largely a peace support or stability role became a far more significant combat role. This resulted in a significant increase in detainee operations.Footnote 181

In the earlier stages of Canadian engagement in Afghanistan, the practice of the CF was to transfer their detainees to the armed services of the United States as well as to Afghan National Security Forces, which would potentially include transfers to the Afghan National Army (ANA), the Afghan National Police (ANP) or the National Directorate of Security (NDS).Footnote 182

Eventually, Canadian Forces ceased transfer to anyone but Afghan authorities. Transfers to Afghan authorities were to occur within 96 hours of initial capture,Footnote 183 and Canada did not maintain a facility suitable for the ongoing detention of captured persons.Footnote 184 Although the ANA and ANP were mentioned as potential detainee recipients and were receiving detainees in May 2006,Footnote 185 by the time MGen (ret’d) Grant took command in November, 2006, and throughout the period of the complaint under consideration, all transfers of Canadian detainees were to the NDS.Footnote 186

VII. Technical Arrangements between the Government of Canada and the Government of The Islamic Republic of Afghanistan, Dated December 18, 2005Footnote 187

On December 18, 2005, Gen Rick Hillier, Canada’s CDS, and Abdul Raheem Wardak, the Minister of Defence of the Islamic Republic of Afghanistan, executed a formal memorandum outlining the agreed arrangement between the CF and Minister of Defence of Afghanistan (referred to in the document as the “Participants”) for the process of handling and monitoring detainees captured and held in temporary custody by the CF during the conflict in Afghanistan. This will be referred to as the “December 2005 Arrangement”.

The December 2005 Arrangement provided the framework for two issues of significance to the Commission:

7.1 Detainee Treatment

The December 2005 Arrangement stated the Participants would provide detainees with humane treatment and protections in accordance with the standards set out in the Third Geneva Convention, even if there existed doubt regarding the classification of a detainee as a “Prisoner of War”, and even when subsequently transferred. It was also agreed no person transferred from the CF to Afghan authorities would be subject to the death penalty.

In addition to this, a document governing the general relationship between Canadian and Afghan authorities and personnel during periods of Canadian deployment, entitled “Technical Arrangements Between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, was signed by the same authorities on the same date as the December 2005 Arrangement. This document states “Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.Footnote 188

Under the terms of the December 2005 Arrangement, Afghan authorities were responsible for maintaining and safeguarding detainees and assuring their above-mentioned legal protections once the detainees were in Afghan custody. Special provisions governed the treatment of sick or wounded detainees.

7.2 Monitoring and Tracking of Detainees Post Transfer

The December 2005 Arrangement did not contain specific provisions for Canadian authorities to track and monitor detainees post-transfer. Upon transferring a detainee, both participants committed to notifying the ICRCthrough appropriate national channels”. Both participants committed to maintaining accurate written records accounting for all detainees passing through their custody. These records would be available for inspection by the ICRC upon request, and copies of these written records would be passed on to the Accepting Power if the detainee were subsequently transferred, with the original records retained by the Transferring Power.

One limitation that emerged from having the ICRC as the primary monitoring agency is that the ICRC was forbidden by protocol from reporting any problems in Afghan prisons to Canadian authorities.Footnote 189 Any issues were to be raised only with the Afghan authorities themselves. Thus, while the ICRC could monitor the condition of detainees pursuant to the December 2005 Arrangement, the information they received could not be conveyed to and acted upon by Canadian authorities.

Another issue, identified by Mr. Richard Colvin, was that in his experience there were significant delays in notifying the ICRC that CF had captured detainees. According to Mr. Colvin, these delays, along with record keeping difficulties, made it difficult for the ICRC to track and monitor Canadian-transferred detainees.Footnote 190 These notification delays appear to have been addressed for most of the period with which we are concerned, i.e., following May 3, 2007. Mr. Ed Jager indicated that when he was the DFAIT Political Advisor (POLAD) at Kandahar Airfield beginning in late July 2007,Footnote 191 ICRC notification of detainee transfers took place in Kandahar directly with ICRC representatives, immediately or shortly after the transfers .Footnote 192

The records kept on detainees were supposed to contain, “at a minimum” personal information so far as it could be known or indicated, gender, physical description and medical condition, and if security considerations allowed, the location and circumstances of capture. However, the Commission heard from several witnesses that accurate determination of the identity of a detainee was often quite difficult due to problems and inaccuracies in record keeping.Footnote 193 Some detainees were misleading about their identity; some were illiterate; some did not know their date of birth; and some names were common to many people in the region, such that detailed family histories were necessary to identify specific individuals.Footnote 194

The December 2005 Arrangement also “recognized the legitimate role of the AIHRC” within Afghanistan “including in regard to the treatment of detainees.

It is clear that the AIHRC’s role was to include monitoring the treatment of detainees in the Afghan prisons to which detainees were transferred by the CF. This particular role was recognized and endorsed by the senior command of the CF.Footnote 195 That role was discussed in a letter dated February 20, 2007 from the Task Force Commander of the time, MGen (ret’d) Grant, to Engineer Noorzai, the head of the AIHRC, wherein the CF undertook to notify the AIHRC when a detainee was transferred, and the AIHRC undertook to notify the CF or the Canadian Embassy immediately on learning that a Canadian-transferred detainee had been mistreated.Footnote 196

This letter indicated the TFPM would represent the Task Force Commander for the purpose of these notifications. In his testimony MGen (ret’d) Grant indicated in practice the TFPM was the record keeper for detainees when they were in CF custody, but in practice the TFPM would arrange to forward detainee information to DFAIT personnel at the Provincial Reconstruction Team (PRT), and for the most part DFAIT personnel, rather than the TFPM, acted as his point of contact with the AIHRC.Footnote 197

It became evident in March and April 2007 that both the ICRC and the AIHRC were experiencing difficulties in obtaining access to facilities operated by the NDS.Footnote 198 Around April 26, 2007, following the publication of an article concerning detainees in The Globe and Mail, the Task Force Commander met personally with the head of the NDS and the AIHRC to attempt to deal with the access problem, and an agreement was reached that was supposed to provide AIHRC access to detainees on an unrestricted basis.Footnote 199

VIII. Supplementary Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan, Dated May 3, 2007Footnote 200

8.1 Purpose of the Supplementary Arrangement

Early in 2007, Canadian authorities were involved in discussions concerning improvements to the December 2005 Arrangement. In March 2007 there were communications within branches of the Canadian Government, including the CF, concerning the prospect of bolstering the detainee monitoring regime. In March 2007, the TFPM, Maj Hudson, was consulted about practical issues with implementing a more extensive monitoring regime, including whether the CF MP should be the monitors. This Commission heard evidence of an inter-agency meeting on March 9, 2007, attended by Gabrielle Duschner and Richard ColvinFootnote 201, amongst others, and email correspondence between Maj Hudson and MGen (ret’d) Grant’s Chief of Staff LCol Trudel in mid-March, 2007.Footnote 202 Discussion papers and draft proposals were considered prior to the May 3 Arrangement being finalized.Footnote 203 The thrust of these discussions concerned what measures could be implemented to bolster the regime for monitoring of detainees after transfer, and whether it was feasible to give the authority to monitor to the CF MP or to other Canadian personnel.

Professor Amir Attaran published an article and engaged in an online discussion concerning the detainee issue in The Globe and Mail on March 9, 2007.Footnote 204 Articles were also published on April 23 and 24, 2007, in The Globe and Mail raising allegations of abuse of Canadian-transferred detainees.Footnote 205

Following the publication of these articles, discussions involving the Canadian Ambassador and Afghan authorities took place concerning enhancement of the December 2005 Arrangement.Footnote 206

An Arrangement for the transfer of detainees was signed on May 3, 2007, one day prior to the scheduled hearing of the Complainants’ application for an interim injunction against the transfer of detainees. As a result, the injunction application hearing was adjourned.Footnote 207

According to MGen (ret’d) Grant, the development and signing of the May 3 Arrangement was not a response to any specific concerns about post-transfer abuse. Rather, he described it as the product of an ongoing process of reflection on how to make the monitoring regime more “robust” in light of the “nascent” justice system in Afghanistan.Footnote 208 MGen (ret’d) Grant was of the view that one of the purposes of the more robust monitoring regime was to provide him, as the Commander responsible for making transfer decisions, with information upon which he could base his transfer decisions.Footnote 209 These were decisions for which he acknowledged he bore legal liability.Footnote 210

MGen (ret’d) Grant approved one draft interim plan dated April 30, 2007. When asked about the planned monitoring arrangement discussed in this draft proposal and the arrangement discussed in Maj Hudson’s emails, he indicated the proposal coming from his staff and the PRT in theatre would have involved three separate monitoring visits to each detainee after transfer. He described this as the “Cadillac” arrangement that he would have liked to have seen implemented; the arrangement implemented was not as robust.Footnote 211

MGen (ret’d) Grant and Maj Hudson both confirmed that Maj Hudson was involved in discussions surrounding the new arrangement, but did not have input into the decision on the terms of the May 3 Arrangement.Footnote 212

Unlike the December 18, 2005 Arrangement, which was signed by Gen Rick Hillier, the CDS, the May 3, 2007 Arrangement was signed on behalf of the Government by the Ambassador of Canada in Afghanistan and the Minister of Defence for Afghanistan. This was not only a military Arrangement, but an Arrangement involving several departments of the Canadian government other than the CF who would also play a role in its implementation.

8.2 Assurances from the Government of Afghanistan

The May 3, 2007 Arrangement contained assurances from the Government of Afghanistan concerning its commitment to humane treatment of Canadian-transferred detainees. Afghanistan authorities accepted responsibility for treating detainees in accordance with Afghanistan’s international human rights obligations, and specifically adopted a prohibition on and protection against torture, a prohibition on cruel, inhuman or degrading treatment, and a pledge to use only such force as was reasonably necessary to guard against detainees’ escape.Footnote 213

8.3 Monitoring and Tracking of Detainees Post-Transfer

The May 3, 2007 Arrangement put in place a number of procedural protections to strengthen post-transfer monitoring and tracking of detainees. This included provisions that:

In addition to these provisions, and of greatest significance to this Commission, were the provisions for post-transfer access to Canadian-transferred detainees by Canadian authorities, the AIHRC, the ICRC, and international human rights organizations “within the U.N. system”.Footnote 215 Representatives of the AIHRC and Canadian Government were to have “full and unrestricted access to any persons transferred” and “full and unrestricted access to detention facilities where detainees transferred by CF are held.” The ICRC and other UN human rights institutions would be “allowed access to visit” detainees.Footnote 216

The May 3, 2007 Arrangement provided that this access would allow for confidential reporting by detainees. Representatives (presumably of the AIHRC, ICRC, human rights organizations or Government of Canada) would be permitted to interview detainees “in private without Afghan authorities present”, if requested.Footnote 217

Finally, the Arrangement included a commitment by the Government of Afghanistan to taking corrective measures in the event that allegations of mistreatment of a Canadian-transferred detainee came to the attention of the Government of Afghanistan. These measures included investigation of abuse or mistreatment allegations and prosecution “in accordance with national law and internationally applicable legal standards”, and notification of the Government of Canada, AIHRC and ICRC of the steps it is taking to investigate and the corrective action taken.Footnote 218

IX. Theatre Standing Orders

9.1 Background

The purpose of a Standing Order is to standardize procedure within the military organization. The objective is to achieve reliability and consistency. Because they are orders, they are binding and must be obeyed. A new set of Standing Orders is issued every time there is a new mission.Footnote 219

TFA Theatre Standing Order (TSO) 321/321A “Detention of Afghan Nationals and Other Persons” was the primary source of direction regarding the handling of detainees. This Order was issued by the Comd JTF-Afg to the troops assigned to his command.

TSOs applied to everyone deployed as part of the task force, including the MP. MP Technical Directives, unlike TSOs, were issued specifically to provide guidance and direction regarding MP duties in theatre.

Revised TSOs were issued whenever circumstances changed.

TSOs evolved over the period of time that Canadian troops were deployed in the Kandahar region of Afghanistan. Earlier iterations, known as TSO 321A, were issued on February 18, 2006Footnote 220; March 1, 2006Footnote 221; and March 19, 2007.Footnote 222

The wording in these earlier TSOs remained much the same. They provided explicit direction as to the responsibility for detainees; the treatment and handling of detainees; the process for the detention of detainees; and the procedure for the transfer of detainees to the ANSF. Initially, they provided for a Detainee Liaison Officer, who was to act as a liaison with the ANSF, Coalition Forces, the ICRC, the civilian population and/or any other organization as required. This position was never staffed and the duties were executed by the TFPM. The TSO of March 19, 2007 assigned these duties to the TFPM and now included the AIHRC as an organization with which liaison must be established. In none of these TSOs is there any mention of post-transfer responsibilities.

In April 2007 a series of newspaper articles in The Globe and Mail reported allegations that detainees transferred by the CF to Afghan authorities were mistreated post-transfer. This resulted in a cessation of detainee transfers to Afghan authorities. Shortly thereafter the Canadian Government signed the May 3rd Supplementary ArrangementFootnote 223 with the Afghanistan Government. A new TSO, TSO 321, was issued on May 27, 2007.Footnote 224 Maj Hudson, the TFPM for ROTO 3, was part of a group that discussed the reworking of the May 2007 TSO 321.

The Supplementary Arrangement now provided for full and unrestricted access by Canadian Government personnel to any persons transferred by the CF to Afghan authorities. This responsibility went to DFAIT.

9.2 Theatre Standing Order 321 (May 2007)

The Commander’s intent was stated as being “to ensure that any person temporarily detained by JTF-Afg is treated properly; that the detention process is swift and thorough; and that a comprehensive record is maintained of this process that will inform future operations and facilitate follow-on actions by the Government of Canada in relation to those individuals detained. Under the Third Geneva Convention, the treatment of detainees is a national responsibility and it is of the utmost importance that CF personnel deal with detainees in a manner that reflects credit on Canada at all times.Footnote 225

TSO 321 created the position of a Detainee Officer, who was described as “the officer directly responsible to the Comd JTF-Afg for the implementation and oversight of all aspects of the CF detainee process within Afghanistan”.Footnote 226 The Detainee Officer assumed those duties formerly assigned to the TFPM as the Detainee Liaison Officer. According to MGen (ret’d) Grant:

It was a conscious decision on my part that it [the Detainee Officer] would not be a MP Officer and it would not be the TFPM. From my perspective, detainees are an operational issue. In that respect, I wanted someone with an operational focus to be the person that I was dealing with. The TFPM and his military policemen had a significant role and a specific role to play in the detainee-handling process, and that was the detainee transfer facility. But from my perspective, they were not the right people; he was not the right person, to be co-ordinating all aspects of detainee issues in the staff and between the staff and the civilian members of the PRT.Footnote 227

A number of annexes were attached to the May 2007 TSO to assist in the processing of detainees, essentially the same ones that had been attached to prior versions. The May 2007 annexes included: a Detainee Process Flowchart (Annex A); Tasks and Responsibilities of JTF-Afg Staff in the Temporary Detention Process (Annex B); Soldiers Actions to be Taken on the Capture of Detainees, specifically a Detainee Tag, a Seized Property Record, a Witness Statement, a Tactical Questioning Report and a Custody Record (Annex C); a Detainee Treatment Card (Annex D); a Standard Medical Assessment Form (Annex E); a Record of Transfer of a Detained Person (Annex F); a Third Party Notification of Release or Transfer of a Detained Person (Annex G); and a Detention Report (Annex H).

9.3 Procedures Following the Capture of Detainees

Individuals could be detained temporarily during Force operations because of self-defence, force protection or other legitimate reasons. With the advent of Interim TSO 321-A in April 2006, it was contemplated that detainees would be transferred to the ANSF as quickly as possible. A Temporary Transfer Point was set up at Kandahar Airfield.Footnote 228

The arrangement of May 3, 2007, led to changes being made to TSO 321A on May 27, 2007. As mentioned above, TSO 321 created the position of the JTF-Afg Detainee Officer, who was not an MP. The Detainee Officer was made specifically responsible for providing information regarding detainees to the JTF-Afg POLAD, CEFCOM HQ, Regional Command (South), and other organizations as directed by the Commander. The JTF-Afg POLAD was provided preliminary information about each detention and he would then inform the Political Director of the KPRT, the Canadian Embassy in Kabul and DFAIT that a detainee had been taken by CF. DFAIT was responsible for advising the ICRC and the AIHRC.Footnote 229

The responsibilities of the Detainee Officer generally included oversight of the entire detainee process from point of capture until transfer or release. He was the Task Force point-of-contact on detainee issues. He was also expected to submit a daily SITREP on detainees under JTF-Afg custody to JTF-Afg HQ. The JTF-Afg Detainee Officer reported directly to the Comd JTF-Afg.Footnote 230

The TFPM was given overall responsibility for the care and custody of all temporarily held detainees from the time they were received from the capturing unit or transferring force, until such time as the detainee was transferred to the NDS or released. The TFPM provided guidance and advice to the chain of command throughout the detainee process and maintained control of all detainee documentation. He was responsible for operating the Canadian Detainee Transfer Facility at KAF. He was to assist in the planning of the evacuation of detainees from the detaining unit to KAF.Footnote 231

Detainees were medically examined when admitted to the transfer facility and prior to being transferred or released.Footnote 232

A Detention Report identifying the specifics of the detainee and the circumstances of the detention was initiated when a detainee was taken. The Detention Report was used by all levels in the chain of command, beginning at the subunit level. It was sent to the CEFCOM Command Centre and updated as necessary.Footnote 233

Detainees were to be treated fairly and humanely and in accordance with international law. Mistreatment of persons in the custody of members of the CF was an offence under the Code of Service Discipline. It was the duty of CF members to report any actual or suspected abuse and/or mistreatment of detainees.Footnote 234

9.4 Determination of the Requirement for Continued Detention, Transfer or Release

Only the Comd JTF-Afg, or, in his absence, the Deputy CommanderFootnote 235 could authorize the transfer of detainees to the NDS or their release.Footnote 236

The Detainee Officer was responsible to report daily all pertinent information on the detainee to the Comd JTF-Afg, who would consider this information in determining whether to transfer or release the detainee. The decision to transfer or release was to be made within 96 hours after the initial detention. If the Comd JTF-Afg determined that a detainee was to be transferred to the NDS and, for whatever reason, that transfer was delayed beyond 96 hours, the Comd JTF-Afg was to contact the Comd CEFCOM to seek an extension of the period of detention.

The form developed by Maj Hudson to assist the Commander in the decision-making process had spaces for comments by those persons who had had contact with the detainee. This included the MPs, the Provincial Operations Centre and Intelligence. This form would be modified over time, and would eventually be added as Annex I (Record of Detainee Transfer Decision) to later versions of TSO 321.Footnote 237

9.5 Procedures for Transfer of Detainees

The TFPM was responsible for contacting the NDS and arranging for pickup of the detainee, and, upon transfer, for providing a copy of the detainee’s medical file and other reports to the NDS. The detainee was to be provided with copies of the transfer Agreement.Footnote 238 Where possible, the POLAD should witness the actual transfer of the detainee to the NDS.Footnote 239

The TSO also allowed for the Commander to make a request for the return of a transferred detainee, previously transferred to the NDS, for follow up questioning or identification purposes.Footnote 240

X. Directives and Orders Particularly Applicable to the Military Police

10.1 Military Police Doctrine

10.1.1 Definition and Purpose

Everything done in CF operations is guided by military doctrine. Doctrine was defined by Col Giguère as “a body of knowledge and thought that provides direction and aids understanding”, and “is sound fundamental principles by which we guide our actions in support of the objective that we have.Footnote 241 For the MP branch,

Doctrine represents the fundamental teachings of our profession and it establishes the way we practice this profession in the Canadian Army. It forms the foundation for any subordinate doctrine, techniques, tactics and procedures, standard operating procedures and training manuals by enunciating the concepts accepted by the Army. Doctrine also justifies how we structure, organize, equip and operate. Additionally, as members of the Military Police Branch, Military Police must adhere to the policing standards set by the Canadian Forces Provost Marshal.

It is intended to guide Military Police at all levels to function effectively. Current police standards, procedures, and security policy published by the Canadian Forces Provost Marshal have been identified in this manual. Their continued application is mandatory.Footnote 242

Col Giguère presented the Commission with an overview of military doctrine applicable to the CF.Footnote 243 A discussion of doctrine relating to MPs was reviewed with LCol Beaudry.Footnote 244 Several witnesses and subjects were asked to comment on various aspects of MP doctrine in relation to the issues before the Commission.

Col Giguère described a hierarchy of doctrine with “capstone” documents expressing foundational principles of war, applicable across the CF, at the top, “keystone” documents which describe fundamental principles at the operational and technical levels for the various components of the CF.Footnote 245

The MP doctrine manual the Commission reviewed was issued by the Chief of Land Forces, i.e., the commanding officer of the Army. It was composed with the assistance or advice of advisers in the army’s MP branch,Footnote 246 although it was not issued by that branch.

There was some discussion as to whether this army MP doctrine was applicable to all MPs or just those who were members of the Land Service, since there is no similarly detailed MP doctrine for the naval and air services.Footnote 247 According to LCol Beaudry, while this was a land-centric document it would be applicable to MPs of all service branches acting in support of land operations (such as the CF Operation in Afghanistan).Footnote 248 Capt (N) (ret’d) Moore stated for the most part MP duties are carried out in ground operations, thus by default MP army doctrine would be applicable to most situations faced by MPs. In his view this manual was an “important document to consider” for guidance on MP roles and responsibilities.Footnote 249

There was also discussion about whether this doctrine should even be characterized as an MP document, given that it was not generated by the MP branch. LGen (ret’d) Gauthier indicated, contrary to the view of his counsel, that he characterized this as an MP document.Footnote 250 Capt (N) (ret’d) Moore was of the view, “[...] this document is army doctrine that contains their opinion on what military police doctrine should be, but does not represent military police doctrine.” He believed the MP input for this doctrine would have come from a Major who would only have consulted with or been influenced by the CFPM at that Major’s own discretion.Footnote 251 Capt (N) (ret’d) Moore said:

But in my opinion, what is missing from this piece is overall direct input and solicitation controlled by the head of the military police that would input into this manual; not one Major that you take out of the military police chain of command, have him working for somebody else as the final approval authority.Footnote 252

When asked if army MP doctrine was derived from general army doctrine, Capt (N) (ret’d) Moore indicated ideally doctrine would be composed by ascertaining what the MP branch was supposed to accomplish and the principles underlying their tasks generally, and translating these overarching principles in a manner suited to the policing needs of each of the land, air and naval elements of the CF. He said his office was trying to compose a comprehensive body of MP doctrine which would be concurred in by the army, navy and air force, but the process of obtaining agreement on this comprehensive doctrine was “almost insurmountable”.Footnote 253

The army MP doctrine manual provided to the Commission did not reflect 2006 changes in the command structure of the CF which occurred with the inception of CEFCOM and the “dot com” commands.Footnote 254 This did not have a major impact on its significance as an expression of the roles and guiding principles applicable to MPs in the Commission’s areas of interest. Doctrinal authority is rooted in military history and practice, and while specific aspects of doctrine may change over time as circumstances or the environment dictate, some core values and guiding principles are “ageless”.Footnote 255 On core elements relating to essential policing duties pertaining to detainee transfer orders, this doctrine was informative.

The Commission’s focus is on whether military and MP doctrine provides substantial guidance to military police with respect to their role in policing - crime prevention, conducting investigations into misconduct - and whether it explicitly or implicitly sets out standards of conduct expected of MPs in their policing role. While the MP doctrine reviewed may not have been up to date and gave rise to some debate, it appeared to the Commission that there was a large or perhaps universal concurrence among witnesses that the essential roles, duties and responsibilities of MPs with which the Commission is concerned were described accurately in the army doctrine manual. In substance, to the degree that there was such concurrence, the principles expressed in this document can be seen as fundamental or foundational aspects of policing in the Canadian military and thus important in the Commission’s assessment of the conduct of the subjects of the current complaint.

10.1.2 Effect and Authority of Doctrine

Doctrine operates at a level of general principle. To be put into practice, doctrine must be informed by judgment and adapted to the particular situation.Footnote 256 Doctrine is thus not rigid, but is flexible enough to adapt to circumstances. While it may at times appear that circumstances require doctrine to be ignored or overridden, it always provides foundational guidance:

  • A commander could issue an order that would appear not to be consistent with doctrine, but he would have to think about it and perhaps provide an explanation that the doctrine is perhaps too strategic?
  • Because there is a good reason. Again, you never go completely against the doctrine. When we talk about doctrine, ma’am, we talk about guiding principles, very high‑level stuff. Usually we cross a river with a battle group, and then you have all the principles and all the things that you have to put in place. It is a little bit like a model. It works fine in books, but on the ground sometimes it is a little bit different, so we have to adapt.

    Basically, this is the way we work.Footnote 257

Doctrine expresses guidelines and principles; they are not orders.Footnote 258 Doctrine is the starting point for development of an approach to operations.Footnote 259 Despite what appears to be mandatory language, this doctrine operates at a level of guidance and is descriptive of the roles played by MPs. This can be contrasted to an order or technical directive, which is prescriptive and actually direct MP conduct.Footnote 260

10.1.3 Key Doctrinal Elements of MP Duties

While it is not necessary to describe in detail all elements of MP doctrine, since some MP functions do not relate to policing or the subject matter of this inquiry, some key components of doctrine are relevant to the Commission.

10.1.3.1 Role of MPs in Support of the CF

MP Doctrine describes the nature of the relationship between MPs and the CF and the role that the MP branch plays in the CF. The fundamental role of the Army is to defend the nation, at times through war.Footnote 261The role of the military police is to provide commanders with an essential element of command and control, through the conduct of various functions including mobility support, security, detention, and police operations”.Footnote 262 The Commission is of course concerned with MPs’ performance of their policing duties.

The MPs’ role as professional soldier is said in army doctrine to be as fundamental as their role as professional police persons.Footnote 263 This dual aspect makes policing in the military especially challenging as it is the duty of every MP to maintain his or her standards of professionalism and performance both as soldier in support of operations and as police person with the professional independence that this necessitates.Footnote 264 The challenge is to harmoniously balance the potentially competing interests and priorities of those roles:

The primacy of operations and the need for independence in police operations are fundamental. Competing interests and priorities must be balanced and addressed in a harmonious manner without sacrificing either the integrity of police operations or the operational requirements of the commander.Footnote 265

Capt (N) (ret’d) Moore felt the army doctrine’s emphasis on this “dual role” was a source of unnecessary confusion for MPs. He agreed MPs need to be “soldiers first” in the sense of requiring basic levels of fitness and combat readiness, but he felt the view that MPs are sometimes acting as police and sometimes not was confusing.Footnote 266 In his view, MPs are always police officers and are expected to conduct themselves according to policing standards, whether or not they are performing a specific policing function. MPs bring their particular skill in policing to the military context thus within that context their specialized role as police should not be distinguished from their role as soldier. Capt (N) (ret’d) Moore’s view on how this dual aspect of MP duties should be interpreted was not entirely shared by commanders in the CF.Footnote 267

The doctrinal foundations of the MP support role are clearly reflected in language of the MP Technical Directives for deployment. For example, the Technical Directive during Maj Gribble’s rotation outlines the responsibility of the TFPM and deployed MPs to provide “police investigative and security support in relation to Canadian interests, policies and law.” Specific areas of responsibility are police operations, security operations, MP operational support, detention operations, and investigations under CFNIS jurisdiction.Footnote 268

10.1.3.2 Specific Roles and Responsibilities - Policing Duties

Chapter 6 of the army doctrine manual describes the roles and responsibilities of MPs in their policing duties.Footnote 269 The fundamental goal is maintenance of discipline: Military Police support operations by assisting commanders in the maintenance of discipline.Footnote 270 [Emphasis in original] Discipline is seen as essential to cohesiveness, and to maintaining the reputation of Canada and the CF.Footnote 271

To permit them to carry out that role with all of the legal tools available, MPs are appointed as peace officers under s.156 of the National Defence Act and are directed that they:

[…] shall enforce the laws of Canada and other laws, acts and conventions as indicated in the National Defence Act, the Canadian Forces Administrative Order 22-4 Security and Military Police Services and A-SJ-100-004/AG-000 Military Police Policies and Technical Procedures, or as directed by the Canadian Forces Provost Marshal.Footnote 272 [Emphasis added]

10.1.4 Command Structure and Technical Control

As indicated, the doctrinal materials considered by the Commission did not reflect the changes in CF structure to the “dot-com” model and creation of CEFCOM. More significantly, on April 1, 2011 there was a significant change to the command structure of the MP group within the CF. Doctrinal materials will no doubt be updated in due course to reflect these shifts. At this time the Commission is concerned with the command and technical control structure as it was during the timeframe of the complaint under consideration – May 3, 2007 to June 12, 2008.

10.1.4.1 Command Structure – General

Police operations (other than NIS operations) generally are conducted under the command of garrison or task force commanders who have no particular experience or training in policing.Footnote 273 The TFPMs who are subjects in this inquiry were under the command of their respective Task Force Commanders, and the TFPM was in command of the deployed MP company.Footnote 274 Thus, in effect all deployed non-NIS MPs were ultimately under the command of the Task Force Commander. There was no command relationship between these MPs and the CFPM or his deputies.

The CFPM exercises technical control over all MPs with respect to all police and investigative matters. Such control is exercised through the technical chain. Deployed MPs including the TFPM are authorized to have direct communication with higher, lower and lateral MP organizations in the execution of their policing duties.Footnote 275 MP policies and technical procedures, as well as customary police procedures, are to be applied even in challenging conditions such as war. Policies and instructions that flow through the technical chain are expected to be consistent with or at least significantly influenced by doctrine.Footnote 276 Any derogation from standard police procedures must be recorded and reported to the senior command and the CFPM.Footnote 277 Even if not in the chain of command of the CFPM, failure to meet the standards of policing expected by the CFPM could result in the removal of an MP’s policing credentials.Footnote 278

Capt (N) (ret’d) Moore expressed reservations about this command structure for MPs. In his view, having command and resource power over MPs spread throughout the CF rather than having the MP branch subject to central command by the CFPM created tensions between commanders’ perceived operational requirements and the requirements the MPs might have with respect to their policing duties. It could, for example, make seemingly straightforward tasks such as temporary redeployment for investigations when police resources were needed dependent on the agreement of commanders who may not wish to send their MP personnel elsewhere. It could also create the perception that MPs were not independent in performing their professional policing duties since they were accountable to commanders, not the CFPM.Footnote 279

Despite Capt (N) (ret’d) Moore’s reservations, for MPs acting in their investigative capacity, there appears to be consistency between doctrinal precepts and their application as expressed in the Technical Directive. The TFPM was authorized to communicate vertically and laterally with “all MP forces and staff”, and the technical reporting chain of command was authorized at the Ministerial level:

to enable investigative consultation and direction to be provided to deployed MP. This is to ensure independence of investigations, maintenance of professional standards, and to satisfy judicial requirements. The intent is to provide the military justice system with impartial and effective investigative support.

[...]

The authority for MP to conduct investigations is derived from the NDA and the Criminal Code of Canada, not from the Operational Chain of Command.Footnote 280

10.1.4.2 Command Structure - CFNIS

The CFNIS chain of command is independent of the military operational chain of command. Their role is to “provide all investigative services for serious or sensitive matters or matters that require complex or specialized investigation.” The NIS detachment in KAF is under operational control of the TFPM,Footnote 281 but remains under the full command of the CFPM.Footnote 282 Once again, this doctrinal principle is applied in the Technical Directive.Footnote 283

The independence of the NIS entails that they may lay charges as a result of their investigationsFootnote 284 and they may do so whether or not the chain of command wishes them to do so.Footnote 285 Independence of the NIS is “paramount.Footnote 286

10.1.5 The Geneva Conventions, Detainee Issues, MPs and the NIS

MPs have been tasked historically with detainee handling duties, and this is reflected in doctrine.Footnote 287 MP Doctrine expresses the view that “mistreatment of prisoners of war is militarily unwise, illegal, inhumane and immoral”.Footnote 288 Reference to the necessity of complying with the Geneva Conventions in detainee handling matters is found throughout doctrine. This is consistent with the Arrangement governing the handling and transfer of detainees between the CF and Afghan authorities, as well as the direction given in TSO 321/321A.Footnote 289

It is clear detainees were to be treated in accordance with the Geneva Conventions whether or not they were formally considered to be “detainees” or “prisoners of war”.Footnote 290 Army MP doctrine states prisoners of war could be transferred to another party to the Conventions who is capable of applying the Conventions. According to this doctrine manual, the senior Canadian Provost Marshal and a legal adviser were expected to negotiate a memorandum of understanding with the other nation, approve the transfers and verify that the prisoners receive treatment in accordance with the Conventions. MPs were responsible for prisoners of war and were obliged to familiarize themselves with the Conventions.Footnote 291

This doctrinal framework was not entirely consistent with the pre-May 3, 2007 arrangement the CF had with Afghanistan authorities, although the TFPM did play a significant role during that period. Execution of the arrangements between the CF and Afghan authorities occurred at a higher level of command than the TFPM. Maj Hudson was MGen (ret’d) Grant’s primary contact with the AIHRC for the purpose of notification of transfer, and the notification agreement directed any queries by the AIHRC back to the TFPM, but post-transfer abuse issues were likely to be dealt with at the diplomatic level rather than by the TFPM.Footnote 292 This illustrates how at times there is variance between doctrinal precepts and actual conduct of operations. In Afghanistan, detainee issues were dealt with not just by MPs, but by other elements of the CF, DND, and the Government of Canada.

Under the heading “Criminal Investigations”, MP army doctrine states allegations of breaches and grave breaches of the Conventionswill be investigated and offenders will be brought before Canadian courts […]” [emphasis added] This includes allegations of “mistreatment of prisoners of war”, “allegations involving violations of the rules of engagement, laws of armed conflict or international law”, “mistreatment of detainees”, and “complaints and claims against Canadian Forces or Canadian interests”.Footnote 293 Clearly, these would all be matters falling under the mandate of the NIS.Footnote 294 In this context Capt (N) (ret’d) Moore agreed that within the boundaries of normal policing duties MPs have a greater responsibility than other soldiers to prevent and report violations of law.

Investigation of allegations of illegal treatment of detainees or breach of the Conventions, including investigation of commanders’ orders, can be seen as supporting the mission and the commander because it ensures lawful conduct within the military.Footnote 295 Once again this is reflected in the Technical Directive, which made reporting and investigation of allegations of violations of the Laws of Armed Combat or international law mandatory.Footnote 296

10.2 Military Police Policy and Technical Procedures

In their day-to-day policing duties MPs are guided by a manual, of Military Police Policies and Technical Procedures (MPPTP), commonly referred to as “004”. According to LCol Sylvie Beaudry, this is the “central working document for MPs … engaged in policing duties and functions”.Footnote 297 While the policies are issued under the authority of the VCDS, the scope and direction of MP policies and procedures is determined by the CFPM and the CFPM can issue the MPPTP on behalf of the VCDS.Footnote 298 These policies are applicable “regardless of mission requirements” during all CF operations unless specifically exempted.Footnote 299 While in substance the MPPTP is largely consistent with the MP doctrine reviewed by the Commission, unlike doctrine it is entirely produced within and guided by the MP branch under the authority and guidance of the CFPM.Footnote 300

These policies “dictate the minimum departmental standards for the MP operating procedures in support of domestic or international operations. They will be adhered to in all circumstances and any deviations from or modifications to these policies may only be authorized by the CFPM.Footnote 301 MPPTP establishes standards that “are to be followed by all MP members.” [emphasis in original] “MP personnel will conduct themselves in a professional manner and exercise good judgment”.Footnote 302 Thus, in contrast to MP doctrine, adherence specifically to MPPTP is mandatory unless otherwise authorized; yet, like doctrine, it is expected to be informed by good judgment in its interpretation. Failure to adhere to MPPTP entails failure to meet the CFPM’s expected standards of policing, and thus may result in a review of the MP police credentials.

The MPPTP is not an order issued by the CFPM.Footnote 303 It is also distinct from the mission-specific technical directives which provide MPs with specific guidance in their particular operational environment. In fact, the MPPTP requires the CFPM to issue mission-specific technical directives to guide MPs in their missions.Footnote 304

The MPPTP is accessible to all MPs through the technical chain of communication.Footnote 305 Where MPs require assistance in interpreting their duties, they may consult through the technical chain, both vertically and laterally, to obtain guidance. The MPPTP is amended as required on an ongoing basis; it is thus a “living” technical manual for MPs.Footnote 306

Specific reference to appropriate sections of MPPTP is made in the relevant context elsewhere in this Report. In this section, the Commission briefly discusses certain precepts of general applicability.

For the purpose of this inquiry, the most significant substantive chapters of the MPPTP were Chapter 1, which outlines the structure and duties of the MP branch, Chapter 6 and its Annexes, which deal with MP investigative functions, and Chapter 9, which deals with the MP exercise of discretion in their investigations.

In Chapter 1, MP duties of relevance to this inquiry include: crime prevention; detection and investigation of service, criminal and security offences; assistance to commanders in the maintenance of law and order during both domestic or international operations; assistance to commanders in the maintenance of good order and discipline for persons subject to the Code of Service Discipline, members of visiting forces, or members of a multinational force; liaison with civilian agencies and allied forces both in domestic or international operations concerning matters related to policing and security, and other duties approved by the CFPM.Footnote 307 Determining the service requirements in support of commanders is the responsibility of the local Senior MP Advisor (in the circumstances under consideration the TFPM) in consultation with (a) Commanders, Commanding officers and the community, (b) the Chain of Command, and (c) the MP Technical Chain. The Commission recognizes of course that this responsibility and manner of consultation may evolve with the recent changes to the MP command structure.

This chapter also notes that MP policies and procedures are to be evaluated subject to the following constraints: (a) the law; (b) CF policies and regulations; (c) values in Canada; (d) current acceptable police standards and practices; and (e) resource availability. It follows that the Commission’s assessment of any investigation into detainee-related issues must take into account, among other things, the legal terrain (which can present impediments to investigations in foreign jurisdictions), current policing standards and practices, and resources available to the MPs to undertake any such investigation.

Chapter 6 of the manual outlines the CFPM’s professional expectations with respect to the conduct of police investigations. Investigations are expected to be independent and free of influence from the chain of command. They are to be thorough, complete and accurate. Moreover, when exercising MP powers under the NDA, “the individual MP member is held personally accountable”.Footnote 308

The circumstances in which an MP investigation may be initiated are listed:

  1. Initiating an Investigation. An MP investigation may be initiated whenever:
    1. an MP observes the commission of any criminal or service offence;
    2. an MP is in receipt of a complaint originating from any other person in which a criminal or service offence is alleged;
    3. at the request of a Commander or Commanding Officer;
    4. MP learns of an incident through an informant (i.e., local police, a witness, a confidential informant, an anonymous tip, etc.);
    5. MP are tasked directly by DPM Police or CFNIS; or
    6. an authority in the MP Technical Chain so directs.

One of the significant ethical principles guiding MP investigations is that investigations be conducted “without bias or prejudice to any individual”; … “MP investigations are conducted as much as to exonerate individuals as to implicate them.”Footnote 309 Complaints are screened in an initial evaluation to determine if they are trivial, frivolous, vexatious or made in bad faith.Footnote 310 Assuming this initial assessment threshold has been met, MPPTP divides investigations into “five discernible phases”. The first phase requires the MP to establish that an offence was committedFootnote 311 before proceeding to identify the alleged perpetrator and amass the evidence against them. It follows that if an individual MP does not have sufficiently reliable information to take an allegation past a threshold screening, or insufficient information to establish (at least to a suitable standard of confidence – “reasonable suspicion” often being the operative language) that an offence has been committed, there is no imperative for any further investigation to be conducted.

MPPTP Chapter 9 deals with MP exercise of discretion in the conduct of investigations. Presumptively, every complaint must be investigated unless determined to be frivolous or vexatious. Significantly for the Commission’s purposes, however, MPPTP recognizes there are reasonable limits to the imperative to investigate. Chapter 9 posits that when resource limitations are balanced against the prospect of “solving” a case, discretion may be exercised to discontinue an investigation entirely. Discontinuation of an investigation may occur only when such factors as the seriousness of the offence, solvability, and impact on public perception or CF morale have been considered.

The exercise of discretion in appropriate cases is seen as “a necessary part of effective policing”. In the Commission’s view, this precept is equally applicable to the prioritization of investigations where there are limited resources. It follows that MPs are entitled to prioritize their investigations in light of all of the relevant circumstances and available resources.

The MPPTP is an important practical guide to MPs in the exercise of their policing duties. It is against this policy background, along with the other directives informing their conduct, that the “failure to investigate” complaint must be examined.

10.3 Military Police Technical Directive

In addition to the Theatre Standing Order 321A, the CFPM established a Technical Directive applicable to military police deployed to Afghanistan. Technical directives are in written form, and the purpose of this one was to provide guidance and direction to the military police regarding their duties in theatre. There are several technical directives of relevance:

On September 12, 2005, Technical Directive 01/05 – Op Athena and Op ArcherFootnote 312 was issued to the Military Police;

In February of 2006, the Military Police Annex to CDS Op O 800Footnote 313 was issued as well as Appendix 1 (Technical Directive) to Military Police Annex to CDS Op O 800;Footnote 314

Effective March 15, 2006, Military Police Technical Directive (Op Archer) Change Number 1Footnote 315 was issued;

Effective July 15, 2007, Military Police Technical Directive (Op Archer ROTO 4)Footnote 316 was issued;

Effective March 5, 2008, Military Police Technical Directive (Op Athena ROTO 5)Footnote 317 was issued.

Pursuant to the Technical Directive, the Task Force Provost Marshal is responsible to “provide advice on detainee handling and transfer policy and procedures” and to “establish procedures in coordination with other forces and Host Nation authorities with a view to determining the disposition of detainees transferred to them by CF.Footnote 318

The TSO and these Technical Directives state the following regarding the Task Force Provost Marshal:

The Technical Directive issued by the military police chain of command in Afghanistan provided that MPs (whether Task Force MPs or NIS) were expected to investigate allegations of crimes and breaches of international law while deployed.Footnote 323 The Technical Directive, s. 6, clearly indicates the authority to conduct investigations does not flow from the operational chain of command:

The authority for MP to conduct investigations is derived from the NDA and the Criminal Code of Canada, not from the operational chain of command. It is critical that commanders understand the authority of the MP to conduct independent investigations. The [Task Force Provost Marshal] is responsible to determine the technical scope, direction and requirements of police investigations for [operations in Afghanistan].Footnote 324

The Technical Directives differentiate between policing functions and non-policing functions. Detainee handling was clearly outlined within these Technical Directives and is categorized as a non-policing function. A duty or function performed by the military police that related to administration, training, or military operations that resulted from established military custom or practice (detainee handling) was not a policing duty or function. Policing duties or functions included any of the following, if performed by a member of the military police:

In discussing the essential elements of the Technical Directive in the context and relevance to the dates and issues subject in this hearing, reference is made to paragraphs 10, 11 and 14 of the Technical Directive:

Section 3 – Investigations

[...]

10. Full Spectrum Operations. In addition to the specific incidents mentioned in para 11, the TFPM, in consultation with the CFNIS Det Comd, shall ensure that an initial assessment is made by MP of all ROE and use of force applications by members of TFA, and is the full authority on the decision to either commence or deem unnecessary a full MP investigation based on initial findings…

11. Specific Guidance. While deployed on Multi-National operations, the appropriate component of Canadian MP (MP or CFNIS) shall investigate allegations of instances of following occurrences (attributed to Canadian Forces personnel) in addition to the normal investigations required IAW Ref B [MP Policies and Technical Procedures]:

11A. Use of force by CF personnel resulting in injury or death

11B. Allegations of crimes committed against the civilian population by CF personnel

11C. Allegations of violations of the Laws of Armed Conflict or International Law

11D. Allegations of mistreatment of detainees in CF custody.

[…]

Section 4 – Military Police Support to Mission

14. Detainees: […] The TFPM is responsible for:

[…]

E. Ensuring investigation of the following types of incidents is conducted by appropriate CF investigative organization (i.e., CFNIS):

(1) Use of force by CF members resulting in injury or death of a detainee.

(2) Allegations of crimes committed by CF members against detainees.

(3) Allegations of violations by CF members of the Law of Armed Conflict or International Law.

(4) Allegations of mistreatment by CF members of detainees.Footnote 325

In the Commission’s view, when read as a whole, these three paragraphs directed deployed MPs and in particular the TFPM to turn their minds collectively to the need for further investigation when confronted with one of the listed scenarios, as well as document their respective decisions in that regard.Footnote 326

What authority does a Technical Directive have? There seems to be some variance as to the interpretation/understanding of the authority of a technical directive.

It was generally agreed the document provides guidance that served as “best practice guidelines, the standards by which we are to deliver policing duties and the services.Footnote 327 LCol Beaudry testified the directive was issued directly to the Task Force Provost Marshal,Footnote 328 adding that the specification “action PM” referred to the Task Force Provost Marshal Afghanistan and the second position on the list was the “Office in Charge of the NIS Detachment…your senior NIS investigator.Footnote 329 It is thus clear that six of eight of the subjects of this inquiry were to be familiar with and to apply the Technical Directive in the course of their policing duties – Maj Hudson, Maj Zybala, Maj Gribble, MWO Watson, MWO (ret’d) Girard and Maj Kirschner.

LCol Boot expressed an opinion that the Technical Directive served to describe the manner in which the ‘specialist duties’ of the MP were to be performed;Footnote 330 when to investigate, when to launch an investigation, how to launch an investigation:Footnote 331

In essence, it is the technical authority and the technical directive by which we ‑‑ they conduct a police investigation, remembering that ultimately our policemen might not be doing, on any given day, a too hard policing function.Footnote 332

Maj Hudson gave evidence that the Technical Directive was ‘not an order’. He was asked by Commission Counsel to comment on the ‘mandatory’ tone used in the Technical Directive and stated:

This document is not an order. This document is general guidance. It’s to explain to everybody in the Canadian Forces what we do, under what conditions, what are our roles and responsibilities, spheres of influence, if you will. It’s a very general document. One of our roles is criminal investigations and underneath criminal investigations is breaches to the laws of armed conflict. It’s our responsibility. We are the organ of the Canadian Forces that will do that investigation. That’s what it is saying.Footnote 333

Maj Hudson conceded that the Technical Directive used the word ‘shall’ and therefore the document ‘directs me to do it’.Footnote 334 He also testified, in relation to Section 11 of the directive, he had no discretion as to whether he was obligated to ensure investigations under the specified provisions. Maj Hudson also testified in terms of command and control, he had no command authority over the NIS Detachment, except in circumstances where NIS was providing resource support to the MP, outside of the NIS mandate. Otherwise, command authority rested with the CO CFNIS, LCol (ret’d) Garrick.Footnote 335 It is difficult to understand how the TFPM was capable of ‘ensuring’ the NIS carried out their mandate when they were commanded independently from outside the theatre of operations.

Maj Zybala explained the authority of the Technical Directive as coming from the CFPM. The directive explained the role and responsibilities of the military police generally as well as the Task Force Provost Marshal specifically. Maj Zybala also testified the MP Technical Directive was compatible with the theatre standing orders.Footnote 336

Maj Gribble considered the Technical Directives akin to an order, since they were attached to the Ops Order O/800.Footnote 337 He explained that with the technical directive:

[…] the MPs know what their role and responsibilities are. Their commanders should know what they are doing. If they don’t, they shouldn’t be there.

But we also have to educate the chain of command and all the mission elements. And you’ll see it’s not just distributed to the military police, it goes to the commander. So they get to read that and they get a firm understanding of what we should be doing, so in when we do come and say hey, we are investigating this escalation of force, the commander says to that element that is being investigated, get on with it. It’s so they understand fully what our responsibilities are in theatre.Footnote 338

CWO Watson also expressed a view the Technical Directive was a guidance document, adding that it served to complement the Military Police Policies and Technical Procedures:

  • [...] This sort of describes in the policies and technical procedures when an MP may initiate an investigation. I am wondering if in your mind in Afghanistan in respect to allegations of violations of international law, which we are concerned with here, did that technical directive sort of override this paragraph in terms of when you start an investigation, because the technical direction doesn’t say “may”, it says “shall” investigate allegations of violation of international law.
  • [ ] I don’t think it overrides it; I think it complements it. This is guidance. The technical directive is just that, it’s direction. This is our policy book. Right?
  • [...]
  • I think it says almost the same thing; it’s just that the tech directive gets into more detail, it’s more specific.Footnote 339

MWO (ret’d) Girard testified in general terms about the technical directive, i.e., who authorized and from where it originated, but at the time of his testimony he did not remember specifically having seen any of the technical directives presented as evidence to the Commission.Footnote 340

Maj Kirschner stated he was aware of the Technical Directive in effect while he was in theatre and agreed with Commission Counsel that it outlined the duties of the military police personnel deployed to Afghanistan.Footnote 341

LCol (ret’d) Garrick believed he had ensured individuals under his command reviewed the Technical Directive prior to their deployment. Regarding the comments made by MWO (ret’d) Girard as not remembering having reviewed the technical directive, LCol (ret’d) Garrick was surprised at this revelation and stated:

I didn’t force them to read documents. There were probably literally hundreds of documents that went back and forth at any given time. However, for the deployed NIS, as I spoke to you the other day, we had a one week training period just for the NIS members. And as part of that, you know, we talked about what their duties and responsibilities are.Footnote 342

Captain (N) (ret’d) Moore indicated the Technical Directive is not an order. He was questioned in the context of the findings of Inspector Gfellner’s investigation:Footnote 343

  • Okay. And if I could draw your attention to footnote 33. Inspector Gfellner says:

    "The Task force Commander for Roto 1 was presented with TSO 321A and the MP tech directive when interviewed by the CFNIS. Brigadier General Fraser acknowledged his signature authorizing TSO 321A but questioned the authority of the MP tech directive which was issued by the CFPM for MPs in theatre.” (As read).

    Were you aware of instances where your Commanders, shall we say, did not show much respect for the authority of MP tech directives?

  • I tended to track the incidents where they did support it because they were easier to follow.
  • Yeah, because they were fewer in number?
  • Yes.
  • So but, again, isn’t that, in terms of the MPs in the field, isn’t that a bit of a problem if you have the Commanders that they are reporting to showing disrespect for the technical directives issued by their branch Commander?
  • Yes.
  • Do you think that that ‑‑ or did you have any sense that that could have been having a detrimental impact on the morale of MPs?
  • Yes.Footnote 344

Captain (N) (ret’d) Moore also conceded he had heard complaints from MPs that the Technical Directive did not carry the force of an order and if the directive was not supported by the chain of command, there would also be an effect on their own perception of it.Footnote 345 He stated in addition he had discussed Insp Gfellner’s findings with respective Provost Marshals. In response to Insp Gfellner’s finding that “The Provost Marshals acknowledged the primacy of the technical directive promulgated by the CFPM but the Technical Directive and the influence of CFPM of the operation appeared marginal at best [...]Footnote 346, the Provost Marshals felt:

[…] somewhat let down by the process and in some cases they also felt that they were serving in Afghanistan and their thanks was a criminal investigation against them and then a professional standards investigation against them. And I know these people. They’re decent people. They try hard and my opinion was that they did not fail the system; the system failed them by placing them in this position.Footnote 347

10.4 Status as Peace Officers under the National Defence Act

Military members may be appointed as “peace officers” pursuant to regulations under s.156 of the National Defence Act.Footnote 348 Many duties routinely performed by the military police, such as security detail, mobility operations or detention operations do not formally require a person to be a “peace officer” or even a member of the MP branch. They have as a matter of practice and doctrine become duties routinely performed by MPs because they are consistent with the specialized training in those areas associated with being a police officer.

If a person performs certain duties “as a result of a specific order or established military custom or practice” that person is thereby designated a “peace officer” by virtue of the Queen’s Regulations and Orders for the Canadian Forces (“QR&O”). These duties include:

  1. the maintenance or restoration of law and order;
  2. the protection of property;
  3. the protection of persons;
  4. the arrest or custody of persons; or
  5. the apprehension of persons who have escaped from lawful custody or confinement.Footnote 349

Law enforcement duties performed at the request of certain government officials or pursuant to certain statutes, regulations or memoranda of understanding also result in the person being designated a peace officer.

As a matter of practice, and by virtue of the QR&O, all full time members of the MP branch become designated peace officers when they become qualified following successful training at the MP Academy, or when they are “credentialed”. “Credentialed” simply means the person “is in lawful possession of a Military Police Badge and an official Military Police Identification Card.Footnote 350 Part-time reserve MPs may not be credentialed, and thus will not have the powers of a peace officer. Instead, they act to support MPs in other areas.Footnote 351

The designation of peace officer confers a unique set of protections, powers, rights and responsibilities on MPs. In their peace officer capacity, MPs routinely exercise powers under the Criminal Code such as roadside detention, search powers using warrants, arrest powers restricted to peace officers, release on undertakings, appearance notices or promises to appear, laying of charges by swearing an information before a justice, and specific powers such as making breath demands. These powers become more complicated when MPs are deployed in theatre. For example, certain powers, such as obtaining and executing a Criminal Code search warrant, can only be exercised by application to a court of competent jurisdiction in the territory in which the warrant is sought; there are, of course, no Canadian courts in foreign jurisdictions.Footnote 352

Along with increased powers as a peace officer, MPs have a greater level of responsibility. MPs are subject, by regulation, to the Military Police Professional Code of Conduct (MPPCC).Footnote 353 This code specifies MP conduct which is required or prohibited, including a general prohibition on:

(l) engage(ing) in conduct that is likely to discredit the military police or that calls into question the member’s ability to carry out their duties in a faithful and impartial manner.Footnote 354

Maintaining professional standards is ultimately the responsibility of the CFPM pursuant to the Accountability Framework.Footnote 355 In practice, where an MP is alleged to have violated the MPPCC the matter must be reported to and is subject to review by the Military Police Credentials Review Board (MPCRB). This Board has the power to determine whether there has been a breach of the MPPCC and, if so, to recommend revocation, suspension, or reinstatement of MP credentials with or without conditions.Footnote 356 In practical terms, the authority to issue and to revoke credentials lies with the CFPM and his designated professional standards deputy, and is subject to the review provisions of the MPCRB. Thus, the CFPM through his deputy maintains close oversight of the professional policing standards of MPs.Footnote 357

XI. The Duties Assigned to the Military Police with Respect to Treatment of Detainees, the Enforcement of Laws and Initiating Investigations

Members of the MP play an important role in the CF and the military justice system. With over 1,250 full time members, the CF military police form the seventh largest police force in Canada.Footnote 358 MP members have jurisdiction over all persons subject to the Code of Service Discipline throughout Canada and abroad, and have peace officer status for the purpose of enforcing the Code and other domestic law, including against civilians in certain circumstances.Footnote 359 MP provide their services anywhere in the world that CF serve. What makes the MP unique is that members of the MP are both soldiers and police.

MP are the only agency trained, equipped and mandated to conduct police duties in a deployed theatre of operations. They must be able to fight and survive in the modern battle-space, while securing crime scenes and conducting complex investigations – all under enemy threat.Footnote 360

11.1 Canadian Forces Provost Marshal (CFPM)

The CFPM is akin to the Commissioner or Chief of a civilian police force.Footnote 361 The CFPM is responsible for policing policy, and “controls, through a series of strategic oversight mechanisms, the policing and investigative operations of the MP.Footnote 362 There is an Accountability Framework between the Vice Chief of the Defence Staff (VCDS) and the CFPM, which requires the CFPM to, among other things, “develop, establish and monitor standards, policies and training consistent with generally accepted police practice in Canada.Footnote 363 As the senior MP Officer in the CF, the CFPM is responsible to the Chief of the Defence Staff (CDS), through the Vice Chief, for strategic level advice and MP programs.

The CFPM has direct command over the CFNIS, the major crimes unit for the CF with a global investigative mandate. The CFPM also has command over the CF Service Prison and Detention Barracks and the Canadian Forces Military Police Academy. However, during the timeframe of this complaint, the CFPM did not command the majority of MP in the CF, those assigned to environmental commanders or operational commands. The CFPM did not “command” these MPs in the military chain of command, but was responsible for, and had the authority to provide, oversight of all MP functions through what is known as the technical chain.Footnote 364

The difference between the CFPM’s “technical chain” and the military chain of command is an important one. Essentially, as set out in the Deputy Chief of the Defence Staff Direction for International Operations:

MP personnel are subject to orders and instructions issued by or on behalf of Commanders. Where such orders or instructions interfere or conflict with Canadian or military law or MP functions, MP personnel are authorized to obtain the advice or instructions of NDHQ CFPM through the technical net/channel. When necessary, Commanders should communicate directly with CFPM to resolve the matter.Footnote 365

CF Operations DoctrineFootnote 366 provides that the CFPM is responsible to the CDS for strategic level MP planning and coordination. The CFPM retains “technical control” over all MP operations, and specifically “retains technical control of MP operations of a Task Force” through the TFPM.Footnote 367 However, the CFPM did not command the TFPM in the military chain of command during the timeframe of this complaint.

11.1.1 Canadian Forces Military Police Accountability Framework

The VCDS and CFPM formalized in 1998 an “accountability framework” the purpose of which was to “outline the rules and relationship of the [VCDS] and CFPM within an accountability framework which will ensure the provision of a professional and effective military police service.Footnote 368 This document confirmed certain principles concerning the relationship between the military police and the chain of command:

The primacy of operations as well as the need for independence in investigations are recognized. Striving towards these complementary objectives through a transparent, timely and responsive process is crucial. Competing interests and priorities must be balanced and addressed in an harmonious manner without sacrificing the integrity of military police services nor the operational requirements of the chain of command. The need for expeditious administration of justice and discipline is acknowledged as well as respect for the rights of individuals and the rule of law.Footnote 369

In a series of paired precepts, the framework outlines the decision-making roles and authority of the VCDS and the CFPM with respect to policing in the CF. As would be expected, the VCDS is responsible for policy, practice and oversight at a more general level and the CFPM is entrusted with decision-making powers aimed to ensure that these are implemented at the practical policing level. There is a commitment to consultation of the CFPM by the VCDS, and a corresponding responsibility on the CFPM to bring concerns about policing matters to the attention of the VCDS.Footnote 370 Some of the precepts most relevant to the Commission’s hearings merit mention.

The VCDS establishes general priorities and objectives for the military police after consultation with the chain of command and the CFPM [emphasis added]. The VCDS monitors to determine if the objectives are being met by consultation with the CFPM and reports and feedback from other interested parties including the MPCC, JAG, and the Chief of Review Services.Footnote 371 The CFPM sets MP objectives based on the general priorities of the VCDS and is responsible to conduct reviews and monitoring, and to report annually to the VCDS.Footnote 372

The VCDS was charged with oversight duties to ensure MP standards, policies and training were consistent with generally accepted Canadian policing practices. He or she was to obtain an external audit of these standards, policies and training in order to ensure consistency with accepted practices and to make recommendations for improvement.Footnote 373 The CFPM had a corresponding duty to develop, establish, maintain and monitor standards, policies and training in accordance with generally accepted police practice in Canada.Footnote 374 The Commission derives from these precepts that both the Chain of Command and the military police recognized, as expressed through this framework, that MPs are expected to conform to generally accepted Canadian policing practices when performing policing duties.

The VCDS was to represent MP interests and concerns to the senior leadership of the Canadian Forces and DND. The VCDS was to be a “proponent of a professional and effective military police service” and was to raise MP concerns with senior leadership of the CF/DND, and was to convey CF/DND senior leadership concerns to the CFPM.Footnote 375 The CFPM’s corresponding duty was to raise MP interests and concerns with the VCDS through regular or urgent meetings and reports.Footnote 376

Both the VCDS and CFPM shared a commitment to ensuring the integrity of the investigative process “within an operational primacy environment”.Footnote 377 The VCDS’s role in achieving this was to implement appropriate policies and, if necessary, to personally address issues with the chain of command. The VCDS was also to ensure education and training were given both to MPs and the chain of command so they could understand their respective roles. Audits were to be conducted to ensure compliance with such policies.Footnote 378 The CFPM’s role was to have primary responsibility for selection, recruiting, training and establishing professional standards for all MP members “in furtherance of professional development”. The CFPM was to exercise command and control over the CFNIS and technical responsibility for MPs; to routinely monitor investigative reports; to conduct functional reviews in sensitive areas where the rights and freedoms of individuals are at stake such as search warrants, arrests, electronic surveillance; and to establish credentials and criteria for removal of those credentials for cause.Footnote 379

The CFPM was to monitor individual investigations and provide “a general overview” of investigations to the VCDS, but also to avoid discussion of specific details of any investigation unless required by specific circumstances.Footnote 380 The VCDS was to have no direct involvement in ongoing individual investigations, but was to receive sufficient information to make necessary management decisions. The directing of investigations and the degree of detail provided to the VCDS were at the discretion of the CFPM. Audits by the VCDS were to ensure that investigations were conducted ethically and lawfully, and the VCDS was to facilitate the chain of command and MPs working together so that information sharing took place in a manner which ensured the primacy of operations and investigative integrity.Footnote 381

LCol Beaudry indicated this framework’s purpose arose in 1998 with the creation of the command structure for the CFNIS, headed by the CFPM. The framework indicates that the CFPM, through the VCDS, is responsible for policing services and the standard by which those services are to be provided, and is based on the need for independence in the conduct of investigations.Footnote 382 It was LCol Beaudry’s understanding, in describing the CFPM role in monitoring individual investigations (paragraph 7(b)), that this framework was specific to NIS investigations only.Footnote 383

Maintaining professional standards was to be achieved by the CFPM via oversight of training, through the power to impose professional standards and remove police credentials, and through monitoring and oversight through strategic evaluations of MP detachments conducted by the Professional Standards branch.Footnote 384 On the latter point, LCol Beaudry explained each MP detachment underwent a thorough evaluation of their practices every three years, using evidence from their documents, reports, policing services, and interviews with local legal counsel and commanders. This strategic evaluation would not be conducted with the MP Detachment in Afghanistan, which was on a six-month rotation.Footnote 385 The Commission is aware that each TFPM and each NIS Detachment Commander during the time period of concern submitted a detailed end of tour report to the CFPM or their commander, copied to the CFPM, at the end of their rotation, which included reports on the conduct of investigations and could fairly be said to constitute a form of monitoring.Footnote 386

The CFPM also arranged for a team to travel to Afghanistan during ROTO 5.Footnote 387 In terms of the standard of “generally accepted police practice”, LCol Beaudry’s understanding was that it would involve the CFPM considering case law, exchange of information with other Chiefs of Police through membership in the Canadian Association of Chiefs of Police and a similar international organization, and through the monitoring mechanisms described in paragraph 2(b) of the Framework.Footnote 388

LCol Beaudry was aware former Chief Justice Antonio Lamer had recommended that the Accountability Framework be entrenched in statute.Footnote 389 LCol Beaudry was asked, in light of the division of authority in the accountability framework, whether the VCDS had the power to order the CFPM to initiate or cease an investigation (or direct those in his command to do so). LCol Beaudry’s view was that the CFPM could be ordered to focus or to report on particular issues, but the VCDS would be precluded from involvement in the management of investigations.Footnote 390

Capt (N) (ret’d) Moore described the Accountability Framework as “outdated” and indicated, while it was not rescinded and thus ostensibly in effect during the period covered by this complaint, it had been seen by his predecessor and the then-current VCDS to “no longer be the guiding document”.Footnote 391 According to Capt (N) (ret’d) Moore he and the VCDSput effort into principles that would become part of the NDA.Footnote 392 By this he meant the governing principles of accountability between his office and the VCDS were evolving in anticipation of changes to the NDA which would give the CFPM greater command authority over the entire MP branch. When asked about the ultimate division of responsibilities between the VCDS and CFPM, Capt (N) (ret’d) Moore agreed ultimately the VCDS or even the CDS defined his role, but he described a relationship that in the Commission’s view is largely consistent with the division of responsibilities in the Accountability Framework:Footnote 393

I suppose to articulate it, when I was interviewed as part of a selection board for the Canadian Forces Provost Marshal, I was asked by the Vice during that board, his question was: If you were accepted as Provost Marshal, what would you see as the relationship between your office and mine? And my answer was when it comes to administration, when it comes to leadership issues, when it comes to how I spend my budget and your perception of service delivery to the forces, you are my leader and I respond to you. But the last word of policing issues in the Canadian Forces is mine.

  • And that situation you’ve described reflected the general understanding that you had with the VCDS while you were CFPM?
  • Yes.

The testimony suggests that LCol Beaudry considered the Accountability Framework to be a guiding document directed primarily at the responsibilities and roles of the VCDS and CFPM in relation to police investigations and the operation of the CFNIS, whereas Capt (N) (ret’d) Moore felt the framework had been de facto superseded by principles of investigative and professional independence more robust than those expressed in the framework.

Although their views on the importance of the Accountability Framework differed, the Commission views the evidence of LCol Beaudry and Capt (N) (ret’d) Moore as generally supportive of its previously iterated view of that Framework as a document which:Footnote 394

[… ] seeks to ensure that the CFPM’s accountability to the chain of command does not compromise the necessary professional independence of the CFPM, both as head of the MP technical chain and as commander of the CFNIS in respect of service or criminal offence investigations and other law enforcement responsibilities [… ]

11.2 Canadian Expeditionary Forces Command (CEFCOM) Provost Marshal

CEFCOM is the operational command responsible for all CF international operations, with the exception of operations conducted solely by Special Operations Forces elements. CEFCOM brings together under one operational command the maritime, land and air force assets to conduct humanitarian, peace support or combat operations wherever they are required internationally.Footnote 395 The Commander CEFCOM is responsible to take national policy objectives, the CDS’s intention with definition, and operationalize that CDS order in order to provide direction and order to the Joint Task Force Commander in the field.Footnote 396

The CEFCOM PM is the advisor to the Commander CEFCOM and his staff for the full range of MP responsibilities, i.e., policing, security, mobility and force protection.Footnote 397 LCol Boot (then Maj Boot) and Maj Laflamme held the position of CEFCOM PM during times pertinent to this complaint. LCol Boot testified he represented the MP to the commander of CEFCOM and represented the commander of CEFCOM to the MP. He was the conduit between the MP world and the CEFCOM world.Footnote 398 The CEFCOM PM had no command authority over the TFPM and represented only a technical chain of authority.Footnote 399 Although LCol Boot dealt with the CFPM staff on an infrequent basis, the CFPM had no command authority over his position.Footnote 400 His command authority was the CEFCOM COS Operations, but his technical chain of command resided with the Canadian Operational Support Command PM (CANOSCOM PM), Col Taylor.

11.3 Task Force Provost Marshal (TFPM)

Each Commander at the strategic, operational and tactical level has a dedicated MP Advisor, generically referred to as a “Provost Marshal.Footnote 401 In an operational deployment such as Afghanistan, a Task Force Commander (in this case, the Commander of Joint Task Force Afghanistan) commands troops within a military chain of command. An MP contingent is assigned to the Task Force under a TFPM. The TFPM also serves as the adviser to the Commander and staff on MP operations and security matters.Footnote 402

The TFPM exercises technical control over all component MP personnel on MP matters.Footnote 403 Each Provost Marshal is the technical advisor on all MP matters within their area of responsibility, with MP technical authority stemming from the CFPM. Within the military chain of command the TFPM is responsible to the Task Force Commander, while retaining the ability to seek technical direction, ultimately from the CFPM, within the MP technical chain. Within the context of the Afghanistan theatre, the TFPM’s first level in the technical chain of command was the CEFCOM PM.Footnote 404

The MP resources under the control of the TFPM included the CS Platoon located at the KPRT (Camp Nathan Smith), GS Platoon located at KAF, the TSE MP Detachment at Camp Mirage, and the CFNIS, to which he was responsible only for administration and logistical support.

11.4 Military Police Located at the Kandahar Air Field (KAF) Detention Facility

The most sensitive and highest profile tasking for MP resources stationed at KAF was the operation of the detainee transfer facility. According to testimony of Capt Worsfold, who was the GS Platoon Commander for ROTO 3, the KAF MP resources performed duties in line with police operations such as traffic, small investigations (theft, drinking and driving) and security. There was also an identification section and they carried out mobile mentoring of ANP in addition to attending the regional training centre for mentoring the ANP. Most significantly for the Commission’s purposes, the GS Platoon Commander was in charge of detainee operations.Footnote 405

Capt Bouchard provided a detailed and comprehensive account of his tenure in Afghanistan as part of ROTO 4 as the GS Platoon Commander. Responsibility for detainees who were under Canadian responsibility:

C’était une autre priorité qu’on avait à faire, qu’on avait à garder les détenus qui étaient ramenés des opérations, si on veut, à l’extérieur du camp. Quand ils étaient ramenés au camp, c’est nous qui prenions charge des détenus jusqu’à ce qu’ils soient libérés ou transférés aux autorités locales.

[unofficial translation] […] was another priority we had to do, we had to keep detainees who were brought back from operations, if you like, outside the camp. When they were brought back to the camp, we were the ones who took charge of detainees until they were released or transferred to local authorities.Footnote 406

Capt Bouchard had day-to-day responsibility for the detainee transfer process, but ultimate responsibility for transfers went up through the TFPM to the Commander.Footnote 407

Capt Bouchard confirmed that detention was a priority duty as far as they were concerned.Footnote 408 He implemented the orders of Maj Zybala on the handling of detainees until orders were received to transfer or release them. During his tenure these orders/decisions were made by BGen Laroche.Footnote 409

Au jour le jour, on assurait que les détenus étaient sous bonne garde, qu’ils étaient sécuritaires, qu’ils étaient nourris, qu’ils étaient -- J’avais une analogie là‑bas; on gardait un hôtel. Entre nous autres, on se disait qu’on prenait soin d’eux autres dans le sens qu’on s’assurait que les détenus qui étaient sous notre charge, qu’ils étaient bien gardés, si on veut. Ou que s’il y avait des besoins médicaux, on assurait que ce soit fait. Tous les besoins essentiels des détenus, c’était fait.

[unofficial translation] From day to day – we ensured that the detainees were in proper custody, were secure, were fed, that they were – I had an analogy for it, we were running a hotel. Among ourselves, we said that we were looking after them, in the sense that we ensuring that the detainees were in our charge, that they were properly looked after, if you like, or if they had medical requirements, we ensured that this was done. All the detainees’ essential needs were taken care of.Footnote 410

Arrangements and coordination of the transfers took place at the level of the superior command.Footnote 411 Personnel who attended the transfer activity came from the TFA HQ element as well as DFAIT. Personal effects of the detainees were given back to them by the HQ Staff and the processes were documented in the filesFootnote 412 that were kept and maintained by the GS MP Platoon.Footnote 413

Capt Bouchard provided unambiguous evidence as to what he knew his responsibilities were with respect to detainees. When asked whether he was instructed or provided information that Canada’s responsibility for detainees extended not only to when they were in custody but also after their transfer, he replied:

[...] ce que je disais à mon personnel pendant l’entraînement et sur place, je l’ai dit à plusieurs reprises, c’était que si les détenus afghans se disaient maltraités sous ma responsabilité [...] il fallait que ce soit un mensonge. C’est la façon que je l’illustrais. Ma compréhension de ça c’était que moi, ma responsabilité, il fallait que la détention soit impeccable, qu’on prenne bien soin des détenus. Je peux pas m’avancer sur la façon de l’appliquer une fois le transfert effectué parce que ça, c’était clairement sous une autorité très supérieure à moi-même. C’était pas ma responsabilité, pas parce que je voulais l’ignorer ou que je la comprenais pas à un certain niveau. C’était que je me suis concentré surtout sur ma responsabilité directe là-bas pendant le déploiement des opérations.

[unofficial translation] […] what I told my staff during training and on the spot – I told them several times - it was that if Afghan detainees said they were mistreated under my responsibility[...] that would have to be a lie. That is how I illustrated it. My understanding of this was that my responsibility was for the detention to be impeccable, that we should take good care of the detainees. I cannot go into how it was applied once the transfer was made because that was clearly under the control of an authority superior to myself. It was not my responsibility, not because I wanted to ignore it or I did not understand it at a certain level. It was because my primary focus was on my direct responsibility during the deployment of operations.Footnote 414

11.5 Canadian Forces National Investigation Service (CFNIS)

The CFNIS is an independent unit whose CO reports directly to the CFPMFootnote 415 and is responsible to the CFPM both operationally and technically.Footnote 416 The significance and importance of this was laid out by LCol (ret’d) Garrick (former CO, NIS) in his testimony:

[...]based upon a lot of past issues or circumstances within the CF, there came a point in time where there needed to be clarity as to having an independent investigation unit not reporting to anybody within the CF chain of command and is as a result of that. So I guess the result is that I’m beholden only to the CFPM.Footnote 417

The mandate of CFNIS is outlined in Chapter 6 of the “Military Police Policy and Technical Procedures manual” (MPPTP)Footnote 418 and does not vary because of assignment to the Afghanistan Theatre of Operations. The deployed members of the NIS Detachment operated independently from the Military Police Company and reported directly to the CO CFNIS.Footnote 419 LCol (ret’d) Garrick described the duties and functions of NIS as being an independent major crimes investigative body for the MP and the CF.Footnote 420

In addition to the mandated sensitive and serious service and criminal investigations, CFNIS was tasked with the investigation of all Canadian deaths including combat deaths, mortuary affairs and repatriation of Canadian remains; investigation in ROE escalations that resulted in injury, death or significant collateral damage; investigative support to police operations and criminal intelligence.Footnote 421

XII. The Information Environment about Detainee Abuse in Afghanistan

12.1 General Information about the Risk of Detainee Torture in Afghanistan

The Commission is of the view that there was a great deal of information available, from a variety of reputable sources, to document the degree of risk of ill-treatment of detainees in the hands of Afghan authorities, and especially the NDS. Most of it was publicly available, if not immediately, then at some point during the time of this complaint with the passage of time. Some of it was compiled by the Government of Canada itself. As time passed, more information of a consistent nature pointing to ill-treatment of detainees continued to be published and gathered by a variety of sources, both within and outside the Government. In this section, the Commission details the type and location of information available, without assessing at this stage whether the MP subjects were aware of that information.

Much of the publicly available information came in the form of independent reports from reputable human rights agencies. The relevance and credibility of such reports was accepted by Justice Mactavish in her decision dated February 7, 2008,Footnote 422 and by the UK High Court of Justice in the Evans case.Footnote 423 Therefore, the Commission concludes independent reports of torture and mistreatment have been accepted by the Courts as containing consistent and reliable information regarding the risk of ill-treatment of detainees by Afghan authorities, and by the NDS in particular.

12.1.1 AIC/BCCLA Complaint Letter Regarding the Transfer of Detainees by Military Police in Afghanistan (February 21, 2007)Footnote 424

AIC/BCCLA’s first complaint letter, dated February 21, 2007 caused the Commission to launch a public interest investigation into the allegations contained therein. Ultimately, that investigation was deemed to have been beyond the Commission’s mandate. However, the letter is a potential source of MP knowledge about the risk of detainee mistreatment in Afghanistan.

The Complainants set out in the letter information they believed demonstrated a risk of torture or abuse of CF transferees at the hands of the Afghan authorities. For example, they cited the Afghanistan Independent Human Rights Commission 2005 Annual Report as showing that those transferred to Afghan authorities would face a risk of torture. They quoted the following passage from that Report:

Torture continues to take place as a routine part of ANP procedures and appears to be closely linked to illegal detention centers and illegal detention, particularly at the investigation stage in order to extort confessions from detainees. Torture was found to be especially prevalent in Paktia and Kandahar provinces, linked to the high numbers of illegal detainees [...]

The letter also cited the following passage from a Report of the UN High Commissioner for Human Rights:

The NSD [same as the NDS], responsible for both civil and military intelligence, operates in relative secrecy without adequate judicial oversight and there have been reports of prolonged detention without trial, extortion, torture, and systematic due process violations [...] Complaints of serious human rights violations committed by representatives of these institutions, including arbitrary arrest, illegal detention and torture, are common. Thorough, transparent and public investigations are absent and trials regularly occur without adhering to the due process rights enshrined in the Constitution. Serious concerns remain over the capacity and commitment of these security institutions to comply with international standards.

Similarly, AIC/BCCLA cited the US State Department Country Reports as providing evidence of “routine” torture of detainees. The US State Department report stated:

Afghanistan’s human rights record remained poor [...] There continued to be instances in which security and factional forces committed extrajudicial killings and torture [...] Torture and abuse consisted of pulling out fingernails and toenails, burning with hot oil, sexual humiliation and sodomy [...] (US Department of State. Country Reports on Human Rights Practices: Afghanistan. 8 March 2006.)

According to AIC/BCCLA, all three sources of information are highly credible and were publicly available to MPs. They maintain that MPs would have been aware of them had they exercised due diligence.

Additionally, the AIC/BCCLA letter of complaint referred to a Globe and Mail article by Paul Koring of 24 March 2006, entitled “Canada to Hand Over Suspects to Kabul”. AIC/BCCLA argued the three reports discussed above were addressed in this article, and that the newspaper would have been available to the MPs.

Furthermore, the letter of complaint alleged MPs may have had firsthand knowledge of torture or related abuses by the Government of Afghanistan. AIC/BCCLA cited the comments made by Mr. Vincent Rigby (Acting Assistant Deputy Minister, Policy, DND) before the Standing Committee on National Defence as indicating that Canadian personnel, potentially including MP members, had visited Afghan detention centers. According to AIC/BCCLA, the undisclosed reports of these “informal ad hoc visits” that occurred on an “irregular basis” should impute knowledge by MPs of the risk of torture.

12.1.2 Independent Reports

The next source of information about post-transfer treatment was comprised of independent, international and domestic reports on the treatment of detainees in Afghanistan.

12.1.2.1 Afghan Independent Human Rights Commission (AIHRC) Reports

The AIHRC is a constitutionally entrenched, independent organization mandated to protect, promote and monitor human rights in Afghanistan. It investigates and reports on allegations of human rights violations, as evidenced by the AIHRC Monitoring and Investigation Unit. For the most part, its Annual Reports provide a generalized overview of the state of human rights in Afghanistan, but offer no detailed analysis or breakdown of specific complaints or violations.

The AIHRC reports may be seen as having particular relevance, because after the December 2005 Transfer Arrangement the AIHRC had a role in reporting mistreatment of CF detainees, post-transfer, to Joint Task Force Afghanistan or to the Canadian Embassy.

The AIHRC 2002–2003 Annual ReportFootnote 425 was the first annual report produced by the AIHRC. This report stated widespread human rights violations, including torture, were the norm and prevalent across Afghanistan. The AIHRC 2003–2004 Annual ReportFootnote 426 spoke of gross human rights violations and the common use of torture. The AIHRC 2005 Annual ReportFootnote 427 was the report cited in the February 2007 AIC/BCCLA complaint.

The 2005 AIHRC annual report outlined the scope of human rights abuses in Afghanistan including mention of continued instances of torture of detainees, illegal detentions, and summary executions. Aside from the quote already referenced, in the AIC/BCCLA complaint, about torture as a routine part of ANP (Afghan National Police) procedures, the 2005 report spoke of substandard conditions in Afghan prisons:

Substandard conditions and facilities within prisons are an ongoing problem with prisoners suffering a lack of space, lack of sunlight and overcrowding. Food and clean water also are scarce. Prisoners are routinely denied medical care or are only treated within the prison. Female prisoners have had to give birth in detention centers. AIHRC continues to find women and children being incarcerated or detained in men’s prisons.Footnote 428

The 2005 Annual Report also included a table of Human Rights violations recorded by the AIHRC between June 2004 and May 2005. The table listed the number of complaints of human rights infractions by provinces and included a row on complaints of torture. The AIHRC derived the information for this table through monitoring missions and from complaints.Footnote 429 The AIHRC noted it had received 2,698 human rights complaints that represented 4,236 different human rights violations. The AIHRC also noted there were 492 additional cases of human rights infractions identified through monitoring missions, but not included in the table. The table also indicated that Kandahar province, where Canadian Forces were situated, was the source of approximately 1/3 of all complaints of torture.Footnote 430

The 2005 Annual Report also noted recent developments toward improving the treatment of detainees. However, in discussing the improvements made through legislation and National Policy the AIHRC noted prison conditions in Afghanistan remained “extremely poor”.Footnote 431

The AIHRC 2006 Annual ReportFootnote 432 indicated positive steps had been taken over the previous year toward improving human rights in most provinces of Afghanistan. Unfortunately, the deteriorating security situation in 2006 was seen as the fundamental hurdle to ameliorating and preventing violations of human rights.Footnote 433

In this report the AIHRC noted, in general, there was an improvement in the living conditions in men’s and women’s prisons.Footnote 434 Similarly, the Monitoring and Investigation Unit of the AIHRC reported generally that:

[…] [d]uring the reporting period, standards of prisons were found to have improved in the provinces of Hriat, Farah, Ningarhar, Khost, Bamyan, Badakhshan, Badghis, Kunduz, Laghman, Jawzjan, Daykondi, Konar, Kapisa, Kabul, Parwan, and Kandahar (behaviour of prison wardens, quicker legal processing of cases, increased light, sufficient number of beds, provisions of clean water for drinking, improved health due to provision of medical care).Footnote 435

However, the AIHRC also stated that torture of detained persons was still occurring, although a decline had been noted:

[…] [m]ajor obstacles throughout 2006 consisted in the absence of Rule of Law, the presence of a culture of impunity and the abuse of power by government officials, along with a weak judicial system, slow process of legal cases, and the lack of reforms within the Government to improve the judicial and social system. In addition, the incidence of torture on detained or imprisoned persons was still occurring throughout the past year, although cases of torture have declined.Footnote 436

The 2006 Annual Report stated:

[…] [u]pon AIHRC’s intervention in the past year, 3 prison wardens have been dismissed in Kabul after torturing a prisoner whose case was under investigation. In Ghazni province, the AIHRC [Monitoring and Investigation] unit was faced with a case of torture perpetrated by the police. AIHRC investigated the case and shared its findings with the Attorney General. The Commission’s intervention led to the arrest of the police offers responsible for this act of torture.Footnote 437

The AIHRC 2007 Annual ReportFootnote 438 included a summary of the activities of the Monitoring and Investigation Unit, including “investigating human rights violations and systematic monitoring of prisons and detention centres, according to the United Nations Minimum Standard Rules for the Treatment of Prisoners, and human rights protection through complaints handling and interventions with authorities.Footnote 439 This report did not provide detailed figures on instances of human rights violations.

Additionally, the AIHRC 2007 Annual Report indicated the level of cooperation between the NSD (or NDS) and the AIHRC improved during the year, noting that:

For access to the National Security Directorate’s (NDS) detention centres, Dr. Sima Samar [Chairperson of the AIHRC] and Commissioner Fahim Hakim met with Mr. Amrullah Saleh, the NSD Chief, in Kabul to discuss the Commission’s access to monitor the detainees. The AIHRC gave a copy of the MoUs signed with five countries [Canada, Denmark, Holland, Norway, and the United Kingdom] highlighting the Commission’s monitoring roles to Mr. Saleh, in January 2007. The NSD issued two letters to all its sub-offices instructing them to provide access for AIHRC and nominated a legal advisor, Mr. Zuhur, as NSD focal point to AIHRC. The letters were immediately scanned and sent to AIHRC Eastern and Southern satellite offices. As a result, the AIHRC Jalalabad, Kabul, and Kandahar regional office were finally allowed to monitor the NSD detention centres. Mr. Saleh also promised to share a copy of NSD’s law with Dr. Sima Samar. However, the AIHRC has not yet received a copy of the law. Follow up meetings and advocacy was carried out, and NSD yet to furnish a copy of the law. Overall, the level of cooperation between NSD and the AIHRC monitoring teams improved in 2007.Footnote 440

12.1.2.2 UN Reports

Human rights reports from an array of organisations within and associated with the United Nations were another potential source of information on the risk of torture and mistreatment of detainees within Afghanistan. All of the reports discussed below are publicly available documents, and are available through UN websites.

Report of the independent expert of the Commission on Human Rights on the situation of human rights in Afghanistan (21 Sept 2004):Footnote 441 This report contained the findings of the independent expert, M. Cherif Bassiouni, on the state of human rights in Afghanistan in 2004.

The independent expert did not set out in this report detailed findings of particular instances of human rights violations, but sought to provide generalised commentary on human rights in Afghanistan. The report was intended to provide the United Nations General Assembly with a survey of the “major issues that have a determining impact on the human rights situation in Afghanistan.Footnote 442 According to Bassiouni, the human rights situation in Afghanistan, at the time of his report, was grim:

[…] [t]he human rights situation in Afghanistan involves an extensive range of issues, including past and present violations committed by both State and non-State actors, operating beyond the reach of the law as elements of widespread and systematic policies, and by individuals. The violations identified constitute gross violations of fundamental human rights such as extrajudicial execution, torture, rape, arbitrary arrest and detention, inhuman conditions of detention, illegal and forceful seizure of private property, child abduction and trafficking in children, various forms of abuse against women and a variety of other violations committed against the weaker elements of society, such as minorities, returning refugees, women, children, the poor, and the handicapped.Footnote 443

In the section entitled “Security and the Rule of Law”, Bassiouni undertook to explore the impact of the security situation on the development of the Rule of Law, which he characterised as essential to prevent subsequent human rights violations. In the subsection entitled “Afghan security institutions” he wrote that:

[…] the personnel of [the ANA, ANP, and NSD] are for the most part poorly trained, underpaid, and lack motivation to serve the Government’s policies of security, reconstruction and the affirmation of the rule of law. The allegiances of these bodies’ personnel remain linked to ethnic and local leaders. There is poor coordination between these bodies, reducing their effectiveness. There is also no system of internal control over illegal, corrupt, or unauthorized practices or to stem human rights violations. [...]

All of these combined factors have produced a situation wherein gross violations of fundamental human rights are commonplace. It is self-evident that the security conditions described above, the absence of effective army and police forces, the weakness of the judiciary, and the generally dysfunctional and corrupt administration augur poorly for enforcing the rule of law.Footnote 444

Bassiouni also indicated regional and time specific reporting was important, noting that the human rights situation was not uniform across Afghanistan.Footnote 445 By way of example, he indicated in Kabul, where the Government of Afghanistan, ISAF and NATO forces were most concentrated, the human rights situation was significantly improved over that of other provinces.Footnote 446

However, overall the independent expert stated he was “extremely concerned” with the current state of detentions in Afghanistan. In particular, he was “…especially concerned with the conditions of detention in national prisons in Kabul and the provinces, women’s prisons, secret national detention facilities, informal prisons used by warlords and local commanders, [...].Footnote 447 The report later stated reports of serious human right violations had been received, including torture that was alleged to have been committed in secret detention centres run by the NDS.Footnote 448

Report of the Independent Expert on the situation of Human Rights in Afghanistan, M. Cherif Bassiouni (11 March 2005)Footnote 449: This report, presented by the UN Commission on Human Rights (now the Human Rights Council), was the second report on the human rights situation in Afghanistan issued by M. Cherif Bassiouni. He again sought to provide commentary on the many issues affecting the development of human rights in Afghanistan.

This report indicated positive steps had been taken to improve human rights in Afghanistan, but also identified that key security and policing organizations in Afghanistan “… act above and beyond the reach of the law by engaging in arbitrary arrests and detentions and committing abusive practices, including torture.Footnote 450 Bassiouni referred specifically to the use of torture by the NDS, the institution to which Canada would transfer its detainees during the timeframe of this complaint:

[…] [t]he independent expert draws attention to a number of pressing human rights issues that demand the immediate attention of the Government and the international community, including:

[...]

(c) the absence of due process in the arrest and detention of persons and the use of torture by various government intelligence entities, including those associated with the National Security Directorate, the Ministry of Defence and the Ministry of the Interior; [...]Footnote 451

Additionally, he noted:

There are multiple security institutions managed by the National Security Directorate, the Ministry of the Interior and the Ministry of Defence, which function in an uncoordinated manner, lack central control and have no clear mechanisms of formal accountability. The independent expert has received complaints regarding serious human rights violations committed by representatives of these institutions, including arbitrary arrest, illegal detention and torture.Footnote 452

Report of the High Commissioner for Human Rights on the situation of human rights in Afghanistan and on the achievements of technical assistance in the field of human rights (3 March 2006)Footnote 453: This report contained the paragraph cited by the Complainants in the February 2007 complaint, referring to reports of extortion, torture and other misdeeds by the NDS.Footnote 454

Report of the High Commissioner for Human Rights on the situation of human rights in Afghanistan and on the achievements of technical assistance in the field of human rights (5 March 2007)Footnote 455: This report contained a section on impunity in Afghanistan. According to the testimony of Mr. Alex Neve, Secretary General of Amnesty International Canada (one of the Complainants), impunity is one of the contributing factors that should be considered in determining the risk of torture.Footnote 456 In this regard, Mr. Neve called the Commission’s attention to paragraph 44, where the High Commissioner wrote:

[…] [i]ndividuals allegedly responsible for committing grave violations of human rights, including war crimes, during the conflict have not been held to account, and some hold positions of authority. Trials of individuals accused of human rights violations are rare, and flawed when they take place.Footnote 457

Likewise, the High Commissioner wrote:

[…] [t]he failure to prevent known human rights abusers standing for and winning parliamentary seats, together with the continued practice of appointing individuals suspected of human rights violations to senior positions in Government, has reinforced the de facto state of impunity. [Emphasis added].Footnote 458

Again with respect to the NDS, the High Commissioner wrote that reports of the use of torture and other forms of ill-treatment by the NDS were “frequent” and that individuals were “documented as having ‘disappeared’” when arrested by NDS officials. Access to the facilities where detainees are held have been problematic for AIHRC and the United Nations. On a more positive note, the report spoke of the “promising step” taken in January 2007 with the first human rights programme for NDS officers organized by the United Nations, AIHRC and partners.Footnote 459

Secretary General’s Report to the Security Council on the situation in Afghanistan (15 March 2007)Footnote 460: This report was presented by the UN Secretary General to the UN Security Council. As was submitted by the Complainants during their testimony before the Commission, this report (and the one discussed next) came from two of the highest bodies in international relations communicating with one another on the situation in Afghanistan.Footnote 461 In addition to the many other topics that the Secretary General addressed in this report, he also provided sections on the state of human rights in Afghanistan and the state of various security institutions, including the ANP and NDS.

With respect to the state of human rights in Afghanistan, the Secretary General raised concern over the state of all detainees in that country, noting:

Initial findings indicated that in a significant proportion of cases pre-trial detention timelines had been breached, suspects had not been provided with defence counsel, and ill-treatment and torture had been used to force confessions. Access to the National Directorate of Security and Ministry of the Interior detention facilities remained problematic for the Afghan Independent Human Rights Commission and UNAMA. In January 2007, the Commission and UNAMA facilitated the first human rights training for National Defence Services officers.Footnote 462

Although this paragraph did not make reference to any specific province, it expressed a general concern by the Secretary General as to the state of detainees in Afghanistan, including those transferred by NATO and ISAF forces to Afghan authorities – specifically the NDS.

Secretary General’s Report to the Security Council on the situation in Afghanistan (21 Sept 2007)Footnote 463: Many important issues were raised by the Secretary General in this report, and human rights in Afghanistan remained a major concern.

In the section on human rights, the Secretary General noted the deteriorating security situation and the absence of the Rule of Law had a negative impact on human rights in Afghanistan, reiterating that the:

[…] UNAMA and the [AIHRC] continued to receive and verify complaints of illegal and arbitrary detention, where pretrial detention timelines are breached, suspects are not given defence counsel and ill-treatment and torture are used to force confessions. Very few of those whose rights have been abused are given access to redress mechanisms [...]Footnote 464

Having determined instances of human rights abuses, including allegations of torture, were not being addressed adequately, the Secretary General recommended, in particular, investigation of the NDS:

The Government of Afghanistan must investigate allegations of arbitrary detentions, inhumane treatment and torture of detainees by the authorities, and in particular by the National Directorate for Security. The Government should invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Working Group on Arbitrary Detention to visit Afghanistan as part of a cooperative process to combat arbitrary detention, torture and ill-treatment. The Government should renew its political commitment towards the full implementation of the Action Plan on Peace, Reconciliation and Justice.Footnote 465

According to the Complainants, this recommendation further illustrated the widespread and common concern about the NDS and allegations of torture.Footnote 466

12.1.2.3 US Department of State Country Reports

The United States Department of State issues yearly country reports on Afghanistan, which are available publicly from the US Department of State website. Each contain a section addressing the state’s respect for human rights and include subsections on freedom from: arbitrary or unlawful deprivation of life; disappearance; torture and other cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; denial of fair public trial; arbitrary interference with privacy, family, home, or correspondence; and use of excessive force and violations of humanitarian law in internal and external conflicts. The reports from 2003 to 2007 were entered into evidence and discussed during the evidence of Messrs. Gratl and Neve, representing, respectively, BCCLA and Amnesty International Canada.

In this section, the Commission will focus on the 2006 and 2007 Reports, given their proximity to the timeframe of this complaint. As noted earlier, the 2005 Country Report on Afghanistan was cited by the Complainants in their initial complaint of February 21, 2007.

US Department of State, Country Reports on Human Rights Practices for 2006Footnote 467: The 2006 Country Reports indicated very little improvement in human rights in Afghanistan in 2006. The report stated, again, that “Afghanistan’s human rights record remained poor due to a deadly insurgency, weak central institutions, and the country’s ongoing recovery from two-and-a-half decades of war.” The 2006 Report listed the same human rights problems as in 2005, including torture, poor prison conditions, official impunity, and prolonged pre-trial detention. The Department of State wrote that “… [c]omplaints of serious human rights violations committed by representatives of national security institutions, including arbitrary arrest, unconfirmed reports of torture, and illegal detention were numerous.Footnote 468

The section entitled “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” provided a summary of human rights violations and commented:

[…] [t]he law prohibits such practices; however there were reports of abuses. For example, human rights organizations reported that local authorities in Herat, Helmand, Badakhshan, and other locations continued to routinely torture and abuse detainees. Torture and abuse consisted of pulling out fingernails and toenails, burning with hot oil, beatings, sexual humiliation, and sodomy.Footnote 469

The 2006 Country Reports stated, again, that “NGOs reported that security forces continued to use excessive force during their fight against Taliban and al-Q’ida remnants, including looting, beating, and torturing civilians.”Footnote 470

With respect to impunity, the Department of State reported that there had been no official investigations into allegations of human rights abuses by security forces; nor were there developments in the case of alleged torture of Abdul Rahman or in the case of the teachers detained and beaten in a private jail. Similarly, it was noted that due in part to “… inadequate and irregular payments of salaries, corruption and official impunity remained pervasive problems.Footnote 471

US Department of State, Country Reports on Human Rights Practices for 2007Footnote 472: The 2007 Department of State Country Report on Afghanistan indicated the human rights situation in Afghanistan remained poor:

[…] [t]he country’s human rights record remained poor due to a deadly insurgency, weak governmental and traditional institutions, corruption, drug trafficking, and the country’s legacy of two-and-a-half decades of conflict. Human rights problems continued, including extrajudicial killings; torture; poor prison conditions; official impunity; prolonged pretrial detention; increased restrictions on freedom of press; restrictions on freedoms of religion, movement, and association; violence and societal discrimination against women, religious converts, and minorities; trafficking in persons; abuse of worker rights; and child labor. While civilian authorities generally maintained effective control of the security forces, there were instances in which members of the security forces acted independently of government authority.Footnote 473

At the same time, some positive improvements were noted:

[…] [t]he government [of Afghanistan] continued to develop and professionalize its army and police force. Increased oversight of police by internal and external monitors helped to prevent abuses, and human rights training became a regular element for police and army personnel. The Ministry of Interior (MOI) continued rank and pay reform efforts and removed officers involved in human rights violations and high-level corruption. International human rights groups stated that extensive reporting of human rights abuses led to increased arrests and prosecutions of abusers.Footnote 474

The subsection entitled “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” was again critical of the treatment of detainees in Afghanistan, including by the NDS:

The constitution prohibits such practices; however, there were reports of abuses by government officials, local prison authorities, police chiefs, and tribal leaders. NGOs reported that security forces continued to use excessive force, including beating and torturing civilians. During the year human rights organizations reported that local authorities in Herat, Helmand, Badakhshan, and other locations continued to torture and abuse detainees. Torture and abuse included pulling out fingernails and toenails, burning with hot oil, beatings, sexual humiliation, and sodomy. On March 15, the UN Secretary-General released a report noting that in a significant portion of cases ill-treatment and torture had been used to force confessions, and on September 21, released another report stating that the government must investigate allegations of torture of detainees by authorities, especially by the National Directorate of Security (NDS).Footnote 475

The report indicated the ICRC had access to all NDS and Ministry of Justice prisons throughout the year and conducted visits, but the AIHRC and the UNAMA experienced problems accessing detention facilities to monitor conditions.Footnote 476

The Department of State even drew attention to concerns raised by Louise Arbour about the ISAF policy of transferring detainees to the NDS:

[…] [t]he NDS investigated criminal and national security cases and also functioned as part of the intelligence apparatus. During the year human rights activists and NGOs reported widespread human rights violations committed by representatives of national security institutions, including arbitrary arrest, illegal detention, and torture. UN High Commissioner for Human Rights Louise Arbour, speaking during a November visit to the country, noted her concern regarding transfer of prisoners taken during ISAF operations to the NDS, stating that it “is not a regular law enforcement body and operates on the basis of a secret decree.Footnote 477

12.1.2.4 DFAIT Reports

DFAIT issued a number of reports addressing issues of human rights, democratic development and good governance of various countries. As discussed elsewhere in this Report, many of the documents obtained by the Commission were received in redacted form, largely as a result of the Federal Court process before Justice Mactavish. The Commission obtained these DFAIT reports through that process, with portions redacted on national security grounds. These reports are issued annually, but not normally made available to the public. To the Commission’s knowledge, they became available publicly through this disclosure process in Federal Court.

As with the State Department Reports, DFAIT country reports from 2002 to 2006 were entered into evidence. The Commission will only discuss here the reports from 2005 and 2006.

Afghanistan 2005Footnote 478: This report indicated a broad range of pressing issues that negatively impacted human rights in Afghanistan. An initial summary section stated:

[…] [d]espite positive developments in 2005, most notably the successful holding of Parliamentary elections in September, Afghanistan still faces immense political, economic, social, and security challenges. These continue to inhibit progress in the field of human rights, democratic development, and good governance. Extrajudicial executions, disappearances, torture, and detention without trial are all too common and the freedom of expression is still not widely observed. [Redacted section] impunity remains a problem in the aftermath of three decades of war; and, much needed reforms of the judiciary remain to be implemented.Footnote 479 [Emphasis added.]

With respect to preventing impunity through legal, judicial and justice reform, the 2005 DFAIT report noted these reforms are “[…] lagging and since our last annual report, little has changed.Footnote 480

The report also stated:

[…] [p]olitical repression, human rights abuses and criminal activity by warlords, police, militia and remnants of past Afghan military forces are of the most concern to the Afghan people. While the state does not condone physical abuse, military, intelligence and police forces have been involved in arbitrary arrests, kidnapping, extortion, torture and extrajudicial killing of criminal suspects. Although the situation has improved significantly compared to previous regimes, reports of continued allegations of corruption within the Afghan National Police, Afghan National Army and the Government of Afghanistan suggests that the Afghan people have little faith in the administration that has been put into place to protect them.Footnote 481 [Emphasis added.]

Afghanistan 2006Footnote 482: The 2006 DFAIT report contained passages on the general risk of torture in Afghanistan, including, again, the statement that “[…] [e]xtrajudicial executions, disappearances, torture, and detention without trial are all too common.Footnote 483 Under the heading of “Physical Integrity and Security of the Person” the 2006 DFAIT Report stated:

Political repression, human rights abuses and criminal activity by warlords, police, militia and remnants of past Afghan military forces are of serious concern to Afghans. Military, intelligence and police forces have been accused of involvement in arbitrary arrest, kidnapping, extortion, torture and extrajudicial killing of criminal suspects. Although the situation has improved significantly compared to previous regimes, public trust in law enforcement agencies remains low.Footnote 484 [Emphasis added.]

The 2006 DFAIT report on Afghanistan concluded with a section on “Ideas/Suggestions”. Under this heading DFAIT suggested (presumably the Government of Canada):

[…] [e]nsure that Canadians deployed in a military, training or policy-development capacity are thoroughly briefed on the prevalence of human rights abuses [Redacted section] Reinforce the zero-tolerance policy for human rights abuses by Canadian forces deployed in Afghanistan.Footnote 485

12.1.2.5 Amnesty International Reports

The Commission also entered into evidence certain reports from Amnesty International on the human rights situation in Afghanistan.

AI 2005 Annual ReportFootnote 486: The 2005 Amnesty International report on Afghanistan provided a general commentary on the human rights situation in Afghanistan during 2004. Specific to the risk of torture, this report indicated the judicial system in Afghanistan was “[…] ineffective, corrupt and susceptible to intimidation from armed groups. Courts barely functioned in rural areas.” Furthermore, it noted allegations of police abuse were not investigated and that “[…] inhumane conditions and gross human rights violations were reported, especially outside Kabul where provincial prisons remained under the control of armed groups.” Additionally, the report included a section on impunity which reported that “[…] [r]egional officials and commanders with a record of human rights violations flaunted their impunity”. The report stated “Afghan government forces were not held to account for violating international law on the treatment of prisoners.Footnote 487

AI 2006 Annual ReportFootnote 488: Amnesty International’s 2006 Report indicated a widespread concern over the state of human rights in Afghanistan. Related to the risk of torture, the section entitled “Ineffective justice system” indicated the system remained flawed, which in turn was a key reason for continued human rights violations. The report indicated corruption and the influence of armed groups hampered the justice system. Moreover, “[…] [d]etainees continue to be held unlawfully for prolonged periods and denied a fair trial.Footnote 489

Amnesty International Report: “Afghanistan, Detainees Transferred to Torture, ISAF ComplicityFootnote 490: This November 2007 Report was submitted to the UK High Court in the Evans case. At paragraph 67 of his decision in Evans, Lord Justice Richards provided a summary of this report and its commentary on the risk of torture:

Amnesty International (“Amnesty”) published a report in November 2007 entitled “Afghanistan detainees transferred to torture: ISAF complicity?” The report’s summary begins that Amnesty International had received reports of torture, other ill-treatment, and arbitrary detention by the NDS. The report also indicates that by transferring individuals to a situation where there was a grave risk of torture and other ill-treatment, ISAF states might be complicit in this treatment and were breaching their international legal obligations. After reviewing the context, the international framework and memoranda of understanding, the report turns in chapter 5 to torture. The second part of chapter 5 addresses concerns about the NDS and reads, in part:

Over the past two years, Amnesty International has received repeated reports of torture and other ill-treatment of detainees by the NDS from alleged victims and their relatives, as well as a range of organisations including UN agencies. The organisation is gravely concerned [that in] the absence of effective investigations and prosecution of those responsible, a culture of impunity persists with victims having little hope of justice or redress[...]

No specific case of torture of a person transferred from ISAF to the NDS is mentioned. Chapter 6 of the report registers Amnesty’s concern that the reported patterns of NDS abuse remain difficult to monitor effectively. Among the report’s recommendations to ISAF was an immediate moratorium on further transfers, and among the recommendations to the Afghan government was reform of the NDS to ensure that its operations were properly regulated in transparent legislation, which separated the functions of custody and interrogation, and put an end to human rights violations by NDS officials.Footnote 491

12.1.3 Newspaper Articles / Globe and Mail and La Presse Reports, April 2007

The issue of post-transfer treatment of detainees received considerable media attention in Canada in 2007. Articles by Graeme Smith of the Globe and Mail and Michèle Ouimet of La Presse addressed post-transfer mistreatment of Canadian detainees. These articles were often referred to during questioning of witnesses in these proceedings. There were other newspaper articles and media reports on the question of post-transfer treatment of detainees that received attention and contributed to the publicly available information about the post-transfer detainee question. Some of that material was entered into evidence during these proceedings.

Graeme Smith, “From Canadian custody into cruel hands - Savage beatings, electrocution, whipping and extreme cold: Detainees detail a litany of abuses by Afghan authorities”, The Globe and Mail, April 23, 2007Footnote 492: This article was written just days before the time period covered by the AIC/BCCLA complaint. The author reported personal meetings with Afghan detainees who had been captured by members of the Canadian Forces. The first four paragraphs of his article are reproduced below:

KANDAHAR, AFGHANISTAN – Afghans detained by Canadian soldiers and sent to Kandahar’s notorious jails say they were beaten, whipped, starved, frozen, choked and subjected to electric shocks during interrogation.

In 30 face-to-face interviews with men recently captured in Kandahar province, a Globe and Mail investigation has uncovered a litany of gruesome stories and a clear pattern of abuse by the Afghan authorities who work closely with Canadian troops, despite Canada’s assurances that the rights of detainees are protected.

Canadian forces regularly hold detainees for a few days of questioning at Kandahar Air Field, then give them to the National Directorate of Security, Afghanistan’s feared intelligence police. Over and over, detainees described how Canadians tied hands with plastic straps, marking the start of nightmarish journey through shadowy jails and blood-spattered interrogation rooms.

None of the abuse was inflicted by Canadians, and most Afghans captured – even those who clearly sympathized with the Taliban – praised the Canadian soldiers for their politeness, their gentle handling of captives and their comfortable detention facility.

The article provided details on the types of ill-treatment which certain individuals claimed to have experienced. One detainee, Mahmad Gul, alleged mistreatment by the Afghan police and that the Canadian soldiers who visited him must have heard his screams. The article stated others experienced worse treatment, especially those who were detained in the basement cells underneath the NDS headquarters in Kandahar. Mr. Smith wrote:

[…] [m]ost of those held by the NDS for an extended time said they were whipped with electric cables, usually a bundle of wires about the length of an arm. Some said the whipping was so painful that they fell unconscious.

Interrogators also jammed cloth between the teeth of some detainees, who described hearing the sound of a hand-cranked generator and feeling the hot flush of electricity coursing through their muscles, seizing them with spasms.

Another man said the police hung him by his ankles for eight days of beating. Still another said he panicked as interrogators put a plastic bag over his head and squeezed his windpipe.

Torturers also used cold as a weapon, according to detainees who complained of being stripped half-naked and forced to stand through winter nights when temperatures in Kandahar drop below freezing.

The men who survived these ordeals often seem like broken husks. They tell their stories with quiet voices and trembling hands. They can’t sleep, they complain of chronic pain and they forget the simplest things, such as remembering to pull down their pants when they use the toilet.Footnote 493

Other aspects and portions of this article were discussed with witnesses during the course of these proceedings.

Graeme Smith, “Personal Account: A story of torture”, The Globe and Mail, 24 April 2007Footnote 494: This was published one day after Smith’s first article. The author provided a detailed summary of the personal experience of an Afghan detainee who had previously been in the custody of the Canadian Forces. Abdul Wali, 23, recounted that his story did not differ much from those of others detained in the national-security wing of Sarpoza prison. He was accused of being involved in the Taliban insurgency (which he denied), no judgment had been made against him, and he did not know how long he would remain in detention. When asked if he had been tortured, Mr. Wali said he had, and showed the author scars on his chest that allegedly resulted from his mistreatment. Mr. Wali also described being kicked in the face, causing his nose to bleed.

Michèle Ouimet C’est vous, Canadiens, qui êtes responsables de la torture […]” (La Presse, 29 October 2007)Footnote 495: This article was the result of interviews between the reporter and several detainees who had been captured by members of the Canadian Forces and transferred to Afghan authorities. Dated October 29, 2007, the article was written several months after the new Transfer Arrangement and monitoring regime had been put in place in May 2007. The article called into question the protection being afforded to transferred detainees under the May 2007 arrangement, and reported allegations of torture and ill-treatment. Ms. Ouimet wrote that, despite the new transfer arrangements, prisoners captured by Canadian soldiers were still being tortured by the secret service in Kandahar. He described various methods of torture, including electrical shocks, beatings with electrical cables, nails being pulled out and sleep deprivation.

The article provided a statement from an anonymous prison official, apparently senior within Sarpoza prison, affirming the NDS tortures detainees prior to transferring them to Sarpoza prison. The article also provided a quote from a spokesperson for the AIHRC, who asserted approximately one third of detainees were still being tortured and NATO was aware.

12.1.4 Reports on Site Visits Post May 3, 2007

Pursuant to the May 2007 transfer arrangement, DFAIT made site visits to various prisons in Afghanistan after May 3, 2007. Their circulation and availability will be discussed later in this Report. In similar fashion to the DFAIT country reports, the Commission first acquired certain site visit reports, in redacted form, through the Federal Court process before Justice Mactavish. Those particular reports were made public during that process, in early 2008 or thereabouts.

Following is a description of those particular site visit reports. They document visits to Canadian-transferred detainees that occurred between May 2007 and November 5, 2007, a key period of time for the purposes of this complaint. There were other site visits, of course, particularly once transfers would resume in late February/early March 2008. For the purposes of this complaint, however, this key set of reports is described below, as they were discussed and referred to often throughout these proceedings.

KANDH-0039: 04 JUN Periodic Follow-Up Visit to SarpozaFootnote 496: This report indicated Canadian officials made a site visit to Sarpoza prison on June 4, 2007. The Canadian officials requested to speak to Canadian-transferred detainees, but were unable to identify which detainees were originally in CF custody.

The Canadian officials asked to privately interview fewer than ten (exact number redacted) of detainees. The request was granted, and the following report of torture was received from one of the detainees interviewed:

Given time constraints, we were only able to privately interview [more than half of the fewer than 10] individuals identified. These included detainee no [redacted section] no CF detainee number available [redacted section]. During the interviews, one detainee [redacted section] claimed to have been “beaten with electric cables while blindfolded” on one occasion during his less than 3 month stay at the Kandahar NDS facility. When asked if he had required any medical treatment subsequent to this incident, he indicated that none had been sought. We indicated our concern about the alleged mis-treatment and advised that we would be raising the matter with NDS authorities as a matter of priority. In doing so, the detainee requested, however, that we withhold his name so as to avoid any possible repercussions. Please note that IDR/Laporte, FTAG/Fairchild, CSC/Garwood-Filbert and PRT LEGAD/LCdr Connor are slated to visit NDS on 06JUN where we will raise this issue as a matter of considerable concern and if true as being incompatible with the terms of the Supplementary Arrangement. Please note that the PRT is slated to meet with the Deputy Head of the AIHRC tomorrow (06JUN07) as part of meetings established for IDR/Laporte’s visit and that IDR/Laporte will meet with the Head of the ICRC sub-delegation in Kandahar on 07JUN07 where this issue can be raised. We would be grateful for further guidance from Ottawa on the desired approach/tact we should take in this matter.Footnote 497 [Emphasis in original.]

The site visit Report requested guidance on further distribution of this report of mistreatment, suggesting it should be sent to KAF-POLADfor transmission to Commander JTF-Afg, ADM (POL), JAG and CEFCOM.Footnote 498

KBGR0291 – Visit to NDS detention facility in KabulFootnote 499: This report stated, “[…] the Canadian embassy conducted a visit to Sederat, the central NDS detention facility in Kabul city, with the goal of interviewing the [redacted section] Kandahar detainees that are believed to be detained in Kabul.” It noted the Canadian embassy tried to locate some Canadian-transferred detainees (the number is unknown due to redactions); however, they had difficulty confirming the identity of detainees due to limited, conflicting and confusing information provided in the documentation.Footnote 500

The summary section of this report described allegations of abuse and torture that occurred prior to the May 3, 2007 Arrangement:

Of the [redacted section] detainees we interviewed [redacted section] said [redacted section] had been whipped with cables, shocked with electricity and/or otherwise “hurt” while in NDS custody in Kandahar. This period of alleged abuse lasted from between [redacted section] and [redacted section] days, and was carried out in [redacted section] and [redacted section] detainees still had [redacted section] on [redacted section] body; [redacted section] seemed traumatized. This alleged abuse would have occurred before the new arrangement between the government of Canada and Afghanistan was signed. (The [redacted section] detainee terminated the interview before the possibility of mistreatment could be discussed.)

The detainees all complained about a lack of clarity in their cases. They said they did not know why they are being held, nor did any seem to have been charged.Footnote 501

The summary section also indicated the Canadian officials were “[…] generally pleased with the openness shown by NDS interlocutors. They provided us with quick access to detainees on two consecutive days, and readily agreed not to be present during the interviews.Footnote 502

Despite these complaints, the report stated, “[…] none [of the detainees] alleged mistreatment while in Kabul, nor did the detainees give the impression of reticence or fear regarding their current jailers. On the contrary, the atmosphere seemed surprisingly relaxed.Footnote 503

The report noted there was considerable difficulty in properly identifying detainees who had been in Canadian custody, as the NDS only kept records of the fact the detainee was captured by ISAF but not which particular ISAF state.Footnote 504

The final detainee interview summarized in this report involved a detainee who was identified as having been captured by the CF. This detainee recounted how others had reported “[…] that three fellow detainees had had their ‘fingers cut and burned with a lighter’ while in NDS detention.Footnote 505 Unfortunately, it is unknown to whom this detainee reported the alleged abuse, as the name, title or position of this individual is redacted. The report stated:

[…] [w]hen we asked about his own treatment in Kandahar he said that he was hit on his feet with a cable or “big wire” and forced to stand for two days, but “that’s all.” He showed us a mark on the back of his ankle, which he said was from the cable. (Note: There was a dark red mark on the back of his ankle.) He said it was the NDS who interrogated and held him.Footnote 506

KANDH0074 – Detainees: Periodic Follow-up Visit to NDS on September [date redacted]Footnote 507: This message recounts a visit to the NDS detention facility in Kandahar City in September 2007 by Canadian officials.Footnote 508

The report indicated Canadian officials conducted private interviews with two Canadian-transferred detainees, and did a preliminary visual check of an undisclosed number [fewer than 10] of other detainees.

The report indicated the first detainee interviewed seemed to have been treated generally well. However, the second detainee interviewed reported he and an undisclosed [redacted] number of other individuals were interrogated by the NDS after being transferred by the CF. The detainee complained the NDS interrogated them over a whole night, depriving them of sleep. The report stated “[…] the interrogator tried to beat [the detainee] and asked whether he had killed people.” At some point in the interview the detainee “[…] asked that [the Canadian officials] tell the NDS not to beat the detainees, and to treat them like human beings rather than like animals.Footnote 509

The report stated the detainee:

[...] indicated that he had been interrogated four times. He said he had been punched in the mouth for no apparent reason by one NDS official [redacted section] ago (there was bleeding at the time). Furthermore, he reported that he was hit twice on the buttocks and upper thigh during an interrogation three days earlier. No visible marks remain from either alleged mistreatment. He said that he told the interrogator lies (i.e. that he is a Taliban commander) to avoid being beaten further because the interrogator did not believe the truth.Footnote 510

Furthermore, the report indicates this detainee “[...] does not sleep well due to anxiety of being beaten, [...]”.Footnote 511

The report concluded by discussing the willingness of NDS officials to comply with the terms of the Canada-Afghanistan Detainee Transfer Arrangements. The report stated the NDS were aware of the transfer arrangements, and willing to allow Canadian officials to conduct private interviews of Canadian-transferred detainees. The report stated an NDS official and his staff told Canadian officials that no one at NDS is permitted to beat detainees.

KANDH0082 – Detainees: Periodic Follow-Up Visit to Sarpoza on September [date redacted]Footnote 512: This report dealt with a Canadian visit to Sarpoza prison in Kandahar City to interview Canadian-transferred detainees. The report stated detainees were usually transferred from the NDS to Sarpoza prison, because the NDS investigative unit had recommended a case against them. The report noted unlike the NDS, Sarpoza prison does not maintain a specific notation of whether a detainee was captured by the CF. During this visit, the Canadian delegation was able to interview three Canadian-transferred detainees in private.

The first detainee interviewed stated that, while in NDS custody, he had been interrogated three times by two people, one of whom was the Director. The report stated this detainee had not been subject to any mistreatment.

The second detainee had been interviewed by a Canadian delegation previously. In this interview the detainee stated he was interrogated once in KAF, and between six and seven times while in NDS custody. According to the report:

[…] [the detainee] now states that he did not tell the truth in previous interviews and that during NDS interrogation had been kept awake for 3-4 days and made to keep his hands raised above his head. He also used the words beat and torture. When asked to expand he said he was beaten badly but doesn’t know with what as his eyes were covered. When asked what was used he said a power cable or wire and pointed to his side and his buttocks. By torture he meant having been locked in the NDS kitchen area and kept awake. When asked why he didn’t come forward with this information previously he said he didn’t trust us because we turned him over to NDS. He said he didn’t share this information with the ICRC or ask for a doctor.Footnote 513

KANDH0123 – Detainees: Periodic Follow-up Visit to NDS on Nov. 5, 2007Footnote 514: This is the report of a visit to Canadian-transferred detainees that occurred on November 5, 2007. This allegation of abuse, combined with other factors discussed later in this Report, caused a suspension of transfers in November 2007. The report stated that a detainee came forward with the following allegation of abuse, and was able to indicate to the interviewers that the actual implements of torture could be found under a chair in the room where he was being interviewed:

When asked about his interrogation the detainee came forward with an allegation of abuse. He indicated that he has been interrogated on two occasions by a group of four individuals. He could not positively identify the individuals but provided a general description of two of them. He indicated that he could not recall the first interrogation in any details as he was allegedly knocked unconscious early on. He alleged that during the second interrogation, two individuals held him to the ground with his shawl while the other two were beating him with electrical wires and rubber hose. He indicated a spot on the ground in the room we were interviewing in as the place where he was held down. He then pointed to a chair and stated the implements he had been struck with were underneath it. Under the chair, we found a large piece of braided wire as well as a rubber hose. He then showed us a bruise (approx. 4 inches long) on his back that could possibly be the result of a blow. While we did not ask, after the interview was completed and before we left, [a senior official] told us that [redacted section].

The detainee specifically asked that these allegations be kept confidential (Not shared with NDS officials).Footnote 515

The report stated that these allegations of abuse and mistreatment should be taken very seriously, but should be addressed strategically so that the chance of retaliation against the detainee was minimised.

12.1.5 Conclusion regarding General Information on the Risk of Mistreatment and Torture of Detainees in Afghanistan

The preceding was only a sampling and a sub-set of all of the information that was generally available on the question of the treatment of detainees post-transfer. Whether or when any members of the military police were aware of this information, is discussed later in this Report.

12.2 The CEFCOM Information Environment

In this section the Commission considers the information environment at CEFCOM, to determine whether the CEFCOM Provost Marshals, and through them, other MPs, were or could have been privy to information about the post-transfer treatment of detainees. First, we describe CEFCOM, the role of the CEFCOM PM, the different personnel at CEFCOM, and the information environment at CEFCOM with respect to detainees. Following this, we describe certain actions taken by two CEFCOM PMs, actions that could loosely be described as investigations of a non-policing nature, when those PMs were faced with information about post-transfer treatment and the stoppage of transfers.

This section also describes how, with the implementation of the new transfer arrangement in May 2007, the Provost Marshal at CEFCOM and the military police in general were purposefully removed from the information gathering process for transfer decisions and post-transfer treatment, in favour of a non-MP detainee officer. It was evident to the Commission that the CEFCOM Provost Marshal, post-May 2007, was not privy to the decision-making process of individuals such as LGen (ret’d) Gauthier and the Task Force Commanders in theatre, when it came to deciding whether to stop, start or pause detainee transfers in Afghanistan.

12.2.1 What is CEFCOM?

CEFCOM stands for Canadian Expeditionary Forces Command. It is the headquarters for all CF overseas operations.Footnote 516 CEFCOM operated on what is called the continental system, whereby the different sections within the command were given numbers from one to nine:

Certain key individuals must be mentioned, given their role at CEFCOM relative to detainees. One of them is LGen (ret’d) Michel Gauthier, who, during the timeframe of this complaint (May 2007 to June 12, 2008), was CEFCOM Commander. He held the post from February 1, 2006 to August 17, 2009. Another key figure was LGen André Deschamps, who was Chief of Staff Operations from May 2006 to September 2008, again covering the whole timeframe for this complaint. Often referred to as the COS Ops, the Chief of Staff Operations was the head of operations at CEFCOM. His role was to manage the staff, and he described himself as the “chef d’orchestre”. The Commander decided what to do, and the COS Ops worked with the staff to make it happen.

LGen (ret’d) Gauthier was Commander at CEFCOM. In his absence, the Deputy Commander was in charge, and, if neither were present, LGen Deschamps (as a Major-General at the time) was in charge at CEFCOM.Footnote 518 The only commanders with a say in whether to halt or start detainee transfers were the Task Force Commanders in theatre, LGen (ret’d) Gauthier, and the CDS, General Rick Hillier.Footnote 519

Another important position at CEFCOM with respect to this complaint is that of CEFCOM J9. The J9 was the section at CEFCOM dealing with political advice and political and policy affairs. Ms. Gabrielle Duschner held the J9 position at CEFCOM from December 2006 to November 2008. She was both part of the J9 staff and a policy adviser. As J9, she reported to the Chief of Staff Operations (LGen Deschamps), but in her role as policy adviser she reported to LGen (ret’d) Gauthier. In testimony, Ms. Duschner indicated, within CEFCOM, she worked closely with the Commander, the Chief of Staff Operations, the J3 (Operations), and the J5 (planning). Indeed, she had some type of a working relationship with almost everybody at CEFCOM, but did not have a close working relationship with the CEFCOM Provost Marshal.Footnote 520

Ms. Duschner worked directly with ADMPol (Assistant Deputy Minister – Policy, Department of National Defence), which was the policy branch responsible for advising the Deputy Minister of the Department of National Defence. As she put it, “Any time that individuals within DND wanted to speak to the whole of government context, they would do so through the policy branch.Footnote 521

LGen Deschamps described Gabrielle Duschner’s policy role as being:

d’aviser le commandant sur les politiques nationales; de s’informer et d’interpréter pour le commandant les politiques nationales, en communiquant avec le sous‑ministre adjoint politique ou les Affaires étrangères pour justement établir la norme et les politiques.

[unofficial translation][...] to advise the commander on national policies; to obtain information and to interpret national policies for the commander, contacting the political Assistant Deputy Minister or Foreign Affairs to determine the standard and policies correctly.Footnote 522

Therefore, Ms. Duschner was the major conduit at CEFCOM between DND/CF and other government departments such as DFAIT. Ms. Duschner was the entry point at CEFCOM for post-transfer site visit reports on the treatment of Canadian-transferred detainees.

The work environment at CEFCOM was consistently described by witnesses testifying before the Commission as incredibly busy and intense. One CEFCOM Provost Marshal, in his testimony, described a frantic pace of events,Footnote 523 another described the workload at CEFCOM as “psychotic” and “unrelenting”, and, with respect to the ramping up of Canada’s role in Afghanistan: “overwhelming.Footnote 524 Moreover, in addition to the Afghanistan mission, Commander Gauthier and his staff at CEFCOM oversaw somewhere in the order of 26 other missions throughout the world at times relevant to this complaint.Footnote 525

12.2.2 Role of CEFCOM PM

During the timeframe of this complaint, one military police member worked at CEFCOM – the CEFCOM Provost Marshal. Two individuals held that position at different times, LCol (then Major) Boot and Maj Laflamme, while a third, Maj (ret’d) Rowcliffe, held the CEFCOM PM position prior to LCol Boot. Maj (ret’d) Rowcliffe was the first CEFCOM PM after CEFCOM was created, holding the position from February 2006 to July 2006. He testified that he was a “branch of one”, and a branch head. He reported to the CEFCOM Commander, but he would not deal with the Commander on a daily basis. Instead, he would generally deal with the Chief of Staff, which Maj Laflamme indicated would have been the Chief of Staff (Support), and not the COS Ops.Footnote 526

Maj (ret’d) Rowcliffe pointed out that, unlike all the other branch heads at CEFCOM, the Provost Marshal was a Major. This did not mean, in his opinion, that he was denied access to information because of his rank, but being only a Major was a limitation in the following sense: “Majors are usually staff officers in a headquarters of that size and magnitude, and so not having the rank of the other branch heads, at least Lieutenant-Colonel, was certainly one of those obstacles [...].Footnote 527 In assisting with the set-up at CEFCOM, Maj (ret’d) Rowcliffe testified he had originally been looking at a staff of seven MPs – a Lieutenant-Colonel, two Majors, two Captains, and a Master Warrant Officer.Footnote 528

The role of the CEFCOM PM was to provide advice to the CEFCOM Commander and the senior staff at CEFCOM. LCol Boot described himself as the personal advisor to the Commander on policing and military policing issues, including security and force protection. Maj Laflamme explained, since it was a staff function at CEFCOM, no superior officer existed between the PM and other members of the chain of command. If the CEFCOM PM had something to say, he would approach someone like the COS Ops or the relevant member of the chain of command directly. The CEFCOM PM was the “conduit between the military police world and the CEFCOM world.Footnote 529 Importantly as well, he was priority point of contact in the technical chain in Afghanistan. If it was not clear to the TFPM how to proceed from the technical chain/technical directive point of view, or if serious investigations were taking place, he would contact the CEFCOM PM.Footnote 530

According to Maj (ret’d) Rowcliffe, the CEFCOM PM would be consulted by the non-MP staff at CEFCOM on a number of issues, including planning and policing security for new missions, serious and sensitive investigations in theatre, and detainee issues (including the length of transfers and situations where the detention and transfer process was not flowing properly).Footnote 531 He also dealt with matters related to the death of soldiers and notification of families. In addition, any one of the hundreds of staff at CEFCOM could potentially reach out to the CEFCOM Provost Marshal with questions related to their particular area. The pace was such that, by July 2006, Maj (ret’d) Rowcliffe felt he needed to leave in order to avoid burning out.Footnote 532 When he left, he said he was not sure if the staff at CEFCOM knew what the PM’s role was, and when he should be engaged: “Now, unless the commander or some senior staff says, ‘You know what, we need to engage the Provost Marshal on this’, then the Provost Marshal wouldn’t be engaged and wouldn’t know about it.Footnote 533

Maj (ret’d) Rowcliffe, while CEFCOM PM, said he regularly dealt with LCol (ret’d) Garrick, the CO of the NIS.Footnote 534 The CEFCOM PM had no role to play with respect to the NIS members in theatre, other than to provide them with administrative support. No formal technical chain relationship existed between the CEFCOM PM and the NIS in the Afghanistan theatre,Footnote 535 but the CEFCOM PM would be the point of contact with and conduit to the NIS should senior command at CEFCOM ever request that a serious and sensitive issue be investigated.

The CEFCOM PM did not command the TFPM in theatre, but did have a technical chain relationship with the Provost Marshal in-theatre. Maj (ret’d) Rowcliffe described the relationship as involving numerous conference calls,Footnote 536 and, in general, “trying to assist him any way I can in the performance of his duties.Footnote 537 This included assisting with detainee issues, but he said it would not necessarily be the military police in theatre that would look into the lawfulness of detainee handovers:

  • [...] Would it not be reasonable to say that the military police be primarily responsible for determining whether the actions of the Canadian Forces, in turning over detainees in such circumstances, are lawful?
  • If there’s an investigation involving the military, then there’s a good chance that the military police or the NIS would be conducting, depending on the type of investigations involved.

    But if it is a bigger issue where there’s a report that’s surfaced and it raises concerns about transferring detainees to Afghanistan, I would say the military police probably would not be doing that investigation. It would be going to the Government of Canada to look at: What are we going to do now, and how are we going to look into this?

    And perhaps the military – and I can’t really speak for the Task Force Commander in theatre, but that may be enough that he basically stops transferring until this thing is sorted.Footnote 538

Indeed, there is some evidence MP inquiries into the status of detainees and the detainee process would perhaps have been unwelcome at CEFCOM as being beyond the MP mandate. For example, MGen Mike Ward, who was the COS Ops at CEFCOM before LGen Deschamps, was asked about Maj (ret’d) Rowcliffe having raised concerns at CEFCOM about the lack of post-transfer follow-up on Canadian-transferred Afghan detainees:

  • [...] So you don’t remember this particular conversation about Major Rowcliffe and his concerns about post-transfer follow-up. That’s fine. But if we accept that he raised it with you or with General Gauthier, do you see this as an MP stepping out of his role, going a little too far in terms of what he’s advising you and his seniors at CEFCOM about the concerns he’s raising?
  • You know, it’s a good question. I’m not sure what he had in mind at that point in time. Certainly the MPs had a full plate of activity to look after, just those three or four functions I described for you earlier. Anybody might have had the same concerns, but, you know, I – I don’t think they – yeah, I guess they were outside the lane.Footnote 539

The Provost Marshal at CEFCOM was not under the command of the Canadian Forces Provost Marshal. His commander was LGen (ret’d) Gauthier. He did have a reporting relationship up the technical chain, but first to the Provost Marshal at CANOSCOM (Canadian Operational Support Command), who was a Lieutenant-Colonel, and from there to the CFPM. That was the theoretical reporting relationship from the technical chain perspective. However, LCol Boot indicated while he was at CEFCOM he went directly to the various Deputy Provost Marshals to get the assistance he needed.Footnote 540 He described his contact with the CFPM as “routine, but infrequent”. He tried to go to the CFPM’s meetings, but usually could not.Footnote 541 Similarly, Maj Laflamme, LCol Boot’s successor as CEFCOM PM, did not have regular contact with the CFPM. He would go through LCol Taylor at CANOSCOM, his immediate superior in the MP technical chain.Footnote 542During his time at CEFCOM, Maj (ret’d) Rowcliffe stated he did not normally interact with the J9. LCol Boot described his interaction with the J9 during his time at CEFCOM as informal. He had “no visibility” on the information that came to her, and in particular did not have access to her C4 network – the internal, protected information network used by DFAIT.Footnote 543 Maj Laflamme testified the J9 (Gabrielle Duschner) never transmitted information to him, not even during informal encounters.Footnote 544

12.2.3 Information about Detainee Treatment Post-Transfer at CEFCOM

This section addresses the information environment at CEFCOM with respect to detainee treatment post-transfer. It is followed by an examination of MP access to that same type of information.

One of the principal means of conveying information about detainees to a broader audience at CEFCOM was via the morning briefings to LGen (ret’d) Gauthier. Every day, 30 to 45 minute briefings occurred where an update was provided on all that was happening in the various theatres, including, of course, Afghanistan.Footnote 545 However, sensitive information was not usually discussed at these morning briefings.Footnote 546 Instead, with respect to detainees, only general information was conveyed about the number of captures, releases, etc. In his testimony, LGen Deschamps seemed to indicate, at first, that if a clear allegation of abuse post-transfer was made, it would be discussed at the operations group meeting. However, he also said the discussion would be political, and not military, so this type of information was not given to all the staff at CEFCOM for work purposes. Moreover, he said follow-up or discussion on the topic would be done with the Commander, within a more restricted group, which included the Commander, COS Ops, JAG and the POLAD. Indeed, Maj Laflamme confirmed this in his testimony, referring to the “groupe sélectif”, that is, the exclusive group of people that dealt with detainee affairs at CEFCOM, beyond the general discussions that occurred at the morning briefings.Footnote 547 He, too, confirmed the composition of this group to be LGen Deschamps, the J9 Gabrielle Duschner, LGen (ret’d) Gauthier, and the JAG.

The point of entry for operational information (not including DFAIT and CSC information) about detainees at CEFCOM, from May 2007 to June 2008, was the detainee officer, who was not a military police member.Footnote 548 As explained below, the detainee officer position had been created recently (May 2007) as a result of a deliberate reorganization of how information about detainees would be circulated. The Commission learned, prior to this reorganization, at least on the operational side, the CEFCOM PM was more involved as a repository for information on detainees.

The J9, Ms. Duschner’s office, was another point of entry for information about detainees, from the political side. In particular, the DFAIT site visit reports that began to be created with the new transfer arrangement of May 2007 would arrive at CEFCOM through her. She viewed almost all of the significant incoming correspondence and material on detainee issues from other departments, including the C4 traffic with the site visits and other detainee related information from DFAIT.Footnote 549 Ms. Duschner’s practice regarding C4 information was to print it when it arrived, and make three copies: one for the COS Ops (LGen Deschamps), one for the Deputy Commander, and one for LGen (ret’d) Gauthier. If the C4 traffic related to post-transfer visits, including the DFAIT site visit reports, her practice was to provide it to the three generals mentioned, and then to the detainee officer, and the legal adviser from JAG.Footnote 550 Ms. Duschner agreed the distribution of the site visit reports at CEFCOM was limited, and the reports usually had an instruction on them that they were “Not for forward distribution”.Footnote 551

Gabrielle Duschner also viewed C4 traffic from Richard Colvin. She knew him to be chargé d’affaires at the embassy in Kabul, Afghanistan. She knew this was a senior position, just below the ambassador.Footnote 552 She met him in person at least once, at an interdepartmental meeting held on March 9, 2007, and took notes from that meeting.Footnote 553The meeting was held to explore various options for the creation of a new transfer regime.Footnote 554 Interestingly, therefore, even before the Globe and Mail articles written by Graeme Smith on April 23 and 24, 2007, the Government was looking at changing the detainee transfer regime.Footnote 555

At that March 9, 2007 meeting, Mr. Colvin spoke, and provided his views on transferring detainees to the NDS. He said something to the effect that Canada should not transfer detainees to the NDS if we did not want them tortured. Ms. Duschner specifically recalled Mr. Colvin’s comment to this effect. At the time, she made a note saying: “NDS torture, do we know for certain?”Footnote 556 Mr. Colvin’s comment about the NDS torturing people was followed by what Ms. Duschner described as an “[u]ncomfortable silence or pregnant pause, I do not know.Footnote 557

Ms. Duschner’s normal practice after a meeting like the interdepartmental meeting on March 9, 2007 would have been to go back to LGen Deschamps and give him a verbal debrief of what happened. She could not specifically recall if she did so this time.Footnote 558 General Deschamps could recall no such discussion, but did say he recalled one of Mr. Colvin’s themes or concerns, in his C4 reports, to be better follow-up post-transfer.Footnote 559

Ms. Duschner was asked whether, prior to the Graeme Smith article, detainee abuse post-transfer was a significant concern at CEFCOM, and replied it was a concern: “There had been discussions from a whole-of-government perspective.” She was also asked whether, prior to the article, there was a general awareness that prisoners being transferred to Afghan authorities might be subject to abuse, to which she replied: “We were certainly aware that there were media reports and discussions along those lines, yes.Ms. Duschner stated allegations of detainee abuse became more of a subject of conversation after the release of Graeme Smith’s Globe and Mail article.Footnote 560 Allegations of detainee abuse also became a topic of discussion when reports arrived on her desk after the new transfer arrangement was put in place. She was referring to reports containing allegations of abuse, including the November 5, 2007 site visit report where allegations of torture were made and the implements of the torture were found at the same time.Footnote 561

LGen (ret’d) Gauthier testified reports relating to the treatment of detainees post-transfer in Afghanistan came to him by various means, in addition to the C4 traffic provided to him by Gabrielle Duschner:

Any number of means, as with just about anything else that was reported from the field. I had regular telephone conversations with the Task Force Commander or his deputy, depending on who was in a position to make the phone calls at the time.

I had regular video teleconferences, face-to-face, so you are actually able to get more of a feel for the state-of-mind of the individual at the other end.

I received military reporting which, in certain circumstances, might have made reference to allegations.

Then, of course, there was the C-4 traffic which would have been disseminated through the system for which we had two or three terminals, I think, in CEFCOM.

By and large, either of the J9, my J9 PolAd, or my Operations Centre would ensure that those reports got to me if I happened to be in CEFCOM Headquarters at the time.Footnote 562

The Commission also heard evidence about a risk assessment matrix that was developed over time, to be used as a tool by the Commander in theatre when deciding whether it was appropriate, or too risky, to transfer detainees to the NDS. LGen Deschamps, for example, described how he viewed this document when it was being developed by Gen Laroche in theatre. LGen Deschamps said he never saw a completed version of the risk-assessment matrix, which he believed was retained by the detainee officer in the Afghan theatre.Footnote 563

Beyond these formal means of distribution of information, detainee abuse and the results of DFAIT site visits were not discussed openly and widely at CEFCOM. One of the more curious but more revealing comments received during testimony from CEFCOM witnesses was the comment from MGen Ward, who was asked (although not privy to DFAIT site visit reports in a direct sense) if he had heard water cooler conversation at CEFCOM that reports revealing abuse were coming back from Afghanistan. He answered “no” and stated that discussing detainees was the “conversation killer at the water cooler”.Footnote 564

12.2.4 Military Police Access to the Information about Detainee Treatment Post-Transfer at CEFCOM

This section deals with the availability of information regarding the post-transfer treatment of Canadian-transferred detainees to the CEFCOM PM in particular, and, potentially, through him to other military police, such as the CFPM, the TFPM in Afghanistan, and the CFNIS (the investigative body within the MP structure that would have been responsible for investigating the legality of the detainee transfers if an investigation were to take place).

The Commission concludes the CEFCOM PM did not have ready access to information about the post-transfer treatment of Afghan detainees following the new May 2007 transfer arrangement and the resumption of transfers. Indeed, it appears he was not meant to have access to that information. A reorganization of the distribution of information about Canadian detainees was put into place at the same time as the May 2007 transfer arrangement and the start of site visits. This new arrangement created the position of the detainee officer, and also ensured that MPs would not be the repository for information about the post-transfer treatment of detainees and any reports or allegations of torture. That is not to say the CEFCOM PM was not privy to any information about allegations of detainee abuse post-transfer, but, for the most part, that information appears to have predated the new arrangement, the resumption of transfers, and the start of site visits by DFAIT. As discussed below, the CEFCOM PM, and the TFPM in the Afghanistan theatre, did play active roles in investigating whether the Afghan prisoners alleging abuse in the Graeme Smith articles were actually Canadian-transferred detainees. Moreover, the CEFCOM PM (Maj Boot at the time), and also the TFPM (Maj Hudson at the time), were consulted, or at least provided some input into the role that MPs might play in any new, enhanced monitoring regime. LCol Boot also conveyed a request to the NIS, from LGen (ret’d) Gauthier, that Canadian Forces actions in respect of three detainees be considered for investigation.

Turning first to CEFCOM PM access to information in a general sense, the Commission learned that while the CEFCOM PM of course had access to SAMPIS, the military police investigations database,Footnote 565 none of the CEFCOM Provost Marshals (Majs Rowcliffe (ret’d), Boot or Laflamme) had access to the secret DFAIT C4 network over which the most important information about detainee treatment post-transfer (including the site visit reports) was sent.Footnote 566 In order to see those reports on detainee treatment post-transfer, or other information of that ilk, the CEFCOM PM would have to have been handed the information by the J9 or those to whom the J9 distributed it (the three Generals mentioned above, the JAG and the detainee officer as of May 2007). Yet, the Commission learned Ms. Duschner’s discussions with the Provost Marshal were “relatively infrequent”, and she understood MP responsibility to be from the point of capture to point of transfer only. If she thought she had information on detainees that should go to the Provost Marshal – something it is not clear she ever did – she would likely have gone through the COS Ops first.Footnote 567 Ms. Duschner could not recall, in particular, ever having discussed site visit reports containing allegations of abuse with any of the CEFCOM PMs,Footnote 568 and, it is clear Ms. Duschner did not distribute the site visit reports, or any C4 traffic, to the CEFCOM PM.Footnote 569 Ms. Duschner did say, had she been asked by the CEFCOM PM for a document, she would have provided it. There were no limitations imposed on her as to what she could give the Provost Marshal.Footnote 570

LGen (ret’d) Gauthier indicated the Provost Marshal would only have been privy to knowledge about detainees if it related to the pre-transfer phase, but not if it was a policy issue or dealt with post-transfer issues:

I would say that it probably depended on -- it did depend on the nature of the issue. If it was a policy issue, anything to do with post transfer, the subject matter expert was my J9, my policy adviser, because it was a policy issue and it was tied to the Department of Foreign Affairs and assisted [sic] deputy minister policy in National Defence Headquarters, whereas the Provost Marshal would have been more of an adviser on detainee handling issues pre transfer.Footnote 571

Clearly, the Commander did not think the military police, and the Provost Marshal at CEFCOM, had any specific responsibility for post-transfer issues:

The Provost Marshal staff did not have a specific responsibility for post transfer activities. That was more of a policy issue and an operational issue than a technical military police issue at that time, quite frankly. Not that I wouldn’t respect his opinion and you don’t have to be in the job to have a view, that is not my point at all. He was a voice, he and other provost marshals were a voice in detainee-related matters. It’s really when you get into the policy area where my principal voice was my policy adviser.Footnote 572

According to the Commander, given his role did not involve post-transfer issues and transfer decisions, the Provost Marshal did not attend policy meetings on those topics: “because someone made a determination it was not his role.” He never gave any direction that MPs be excluded, per se, from policy discussions on detainees post-transfer. There was just no expectation they would be at the table.Footnote 573 It is not even clear that MPs would have had the means of knowing about all the different meetings taking place on detainee issues. The CEFCOM PM had the means of knowing about some meetings, and may have attended some, but others he may not have known about at all, as exemplified by the following passage:

  • That’s what I was going to ask you. If the CEFCOM Provost Marshal or the Task Force Provost Marshal had expressed to you or to a commander that they wanted to be consulted on those [discussions on detainee related matters], is there any reason why you would say, no, we are not going to consult?
  • No.
  • You would have consulted with them if they had asked?
  • Right. I can remember there are things I can remember, there are things I can’t remember that far back. But I can remember meetings where we were discussing detainee related issues with a small group of people on a Saturday afternoon in my office. In fact, in my conference room next to my office. There was the J3 detention officer, there was the policy adviser, there was the Provost Marshal, there was my Chief of Staff, there were others. So I did not have in my mind that he was excluded from any of this.
  • He might not have been at all the meetings, but he had the means of knowing about the meetings?
  • Yes.

THE CHAIRPERSON: I’m sorry, the last part tailed off there. He had the means of knowing which?

MR. CHAMP: About the meetings.

THE CHAIRPERSON: Of the meetings, okay.

THE WITNESS:  He wouldn’t necessarily know about all of them. If he wasn’t invited to the meeting, then he wouldn’t know about it.Footnote 574 [Emphasis added]

The CEFCOM Commander also gave a qualified answer as to whether the Provost Marshal at CEFCOM could have access to any information requested about detainees, including post-transfer:

  • Because, if I understand you correctly, if the military police wanted any information or were curious about what was going on, you think they should be entitled to have the information.
  • Sure, if it is relevant to their job.Footnote 575

The suggestion from the Commander at CEFCOM is that MPs at CEFCOM could have access only to information considered relevant to their job, and, clearly, he did not consider the PM’s job to include post-transfer issues. From the Commander’s perspective, it seems that the PM could not have had access on request to post-transfer information about detainees, even if he requested it. Indeed, that would be Maj Laflamme’s experience when he tried to inquire into the November 2007 stoppage of transfers and the reasons therefore.

The CEFCOM Commander also said the J9 would likely not have decided whether to show the CEFCOM PM the C4 traffic, but instead would have discussed whether to do so first with the COS Ops:

I think it’s probably something that he or she would discuss with the Chief of Staff. If they are sensitive issues and there is a concern about not distributing it right across the headquarters, then someone had to make that judgment. The two people who would have played a role in that are the Chief of Staff, COS Ops, Chief of Staff Operations, and another officer who was responsible for non-operational staff work and that is what we called the director of staff, more of an administrative function.

The principal individual would have been the Chief of Staff, so I would have expected the J9 and the Chief of Staff to talk about “These sensitive reporting on detainees, who in the headquarters do you want me to send them to” would have been the question asked by the J9, to which COS Ops would have provided some direction, I would expect.Footnote 576

LGen (ret’d) Gauthier did not recall any discussions with the CFPM regarding deployment of MPs to Afghanistan, and could recall no concerns expressed by the CFPM to him about the lack of information given to him. The only thing he did recall were discussions from the CFPM about weaknesses the CFPM may have perceived in the command and control structure as it pertained to MPs. LGen (ret’d) Gauthier heard this at a Commander’s Council meeting, at which Capt (N) (ret’d) Moore made a presentation on the military police.Footnote 577

In a general sense, the CEFCOM Commander appears not to have considered that MPs needed to know about what happened post-transfer, and did not think people such as the J9 would provide such information to the CEFCOM PM without first checking with the COS Ops.

LGen Deschamps’ (COS Ops) position on MP access to information and meetings on post-transfer issues differed. First, he seemed to indicate in his testimony MPs could have access to the documentation at CEFCOM on detainees if they needed it for their “investigations”. It does not seem that he meant criminal investigations, but simply any investigations they might be doing in respect of detainees generally. That said, from May to November 2007, he did not share any of the site visit reports with the CEFCOM PM or other MPs.Footnote 578

LGen Deschamps was also asked whether he would have provided the site visit reports to the CEFCOM PM if asked by the PM. He responded that he absolutely would have done so if the Provost Marshal indicated an interest, and that the request could be made directly or through the J9 or J3.Footnote 579

LGen Deschamps would have done this regardless of the stipulation on those reports that they were “Not for forward distribution”. He saw that more as a warning to avoid distribution at large and not internally within CEFCOM to someone like the Provost Marshal.Footnote 580

Similarly, when asked about MGen Ward’s testimony that a CEFCOM PM would have been outside their lane if asking questions about post-transfer visits and follow-up, LGen Deschamps said he would rather hear what his advisors had to say if they had doubts or concerns and would definitely listen to them.Footnote 581 However, he never had discussions with his Provost Marshal about human rights in Afghanistan or the situation in Afghan prisons.Footnote 582

Each individual CEFCOM PM’s information environment differed slightly, and it is necessary to describe their individual perspectives and experiences with respect to access to information about the post-transfer treatment of detainees, and post-transfer issues in general, while at CEFCOM.

Maj (ret’d) Rowcliffe was involved with the detainee file as CEFCOM PM during a timeframe well before this complaint. He left CEFCOM in July 2006. His recollection, though, was that much of his work with detainee issues involved meeting the 96 hour rule about the length of time that detainees could be in Canadian custody before being either released or transferred to the Afghans.Footnote 583 Maj (ret’d) Rowcliffe saw no indications that he was purposefully left out of discussions about detainee issues: “[...] when there seemed to be some urgency, some issue involving detainees besides the – what I would call the routine, then they tended to engage me, where they felt I could make a difference in trying to resolve the issue.Footnote 584

LCol Boot received reports on detainees informally from the TFPMs with whom he worked. Detainee reports went formally from theatre to the J3 Operations at CEFCOM.Footnote 585 The material he received was more generic, having to do with detainees while in MP custody and the status of those detainees (such as filled-in versions of the annexes to TSO 321A),Footnote 586 and did not involve reports about potential or actual post-transfer treatment.Footnote 587

LCol Boot was somewhat equivocal on the issue of the CEFCOM PM’s need to know information about the alleged abuse of detainees, but he did believe such information was necessary for situational awareness to support decisions on any further action. Accordingly, he tried to attend meetings in order to be able to advise his commander on police and MP issues. LCol Boot did not believe notification to the Red Cross (ICRC) was an MP responsibility at all, as the TSO made clear:

Our job was primarily to take – the intake, the processing of the detainee, the turning of the information over to the POLAD, or whoever was responsible for notification of the ICRC, and then arranging for the transfer to Afghan authorities. That was our responsibility.

I saw this clearly as a whole of – because it was a whole-of-government thing, once I turned them over to the Afghan authorities, unless there was a clear allegation, as far as I was concerned, the military police responsibility ended.Footnote 588

LCol Boot also testified he was aware of the May 2007 transfer arrangement, and the fact it called for DFAIT monitoring of transferred detainees. LCol Boot did not consider, though, the military police had an interest in that monitoring of transferred detainees. When asked whether it was within MP responsibility to receive reports on the results of the monitoring, LCol Boot replied:

I would have assumed that, and I would have expected to be briefed, had they found anything untoward, but that would be about the extent of it. You know, there’s saying in the military, NATO, “silence procedures would apply.

In other words, in the absence of hearing anything, I assume everything is – you know, we assume that everything is going along swimmingly.Footnote 589

It appears that LCol Boot was never briefed on any of the reports of allegations of abuse of detainees post-transfer that did come to CEFCOM by way of the site visits pursuant to the new regime, despite his expectation that he would be. Nonetheless, he was privy to the Globe & Mail articles by Graeme Smith and even assisted in investigating aspects of those articles and related press.

LCol Boot believed that the Provost Marshal at CEFCOM was marginalized when it came to detainee issues. However, he also said his “‘spidey’ sense did not tingle as a result of that”.Footnote 590 LCol Boot later clarified that, when it came to detainee issues, he was given the authority to do the job he was allowed to do, but detainee treatment post-transfer was simply not his job responsibility. LCol Boot did note there were likely discussions going on that to which he would have wanted to be privy for professional and personal development. He also testified he could not remember ever having asked for something and being told he could not have it.Footnote 591

LCol Boot was not informed about Mr. Colvin’s comments at the March 2007 inter-agency meeting, where he said the NDS tortures people, even though this meeting occurred during his time at CEFCOM. This confirms Ms. Duschner’s testimony that the only person she might have briefed on these comments from Mr. Colvin was the COS Ops.Footnote 592

LCol Boot was involved and engaged when CEFCOM did its review of the Globe and Mail articles released by Graeme Smith on April 23 and 24, 2007.Footnote 593 Thus, in a sense, he was attuned to the fact that prior to the start of the May transfer arrangement, serious allegations of abuse and torture of Canadian-transferred detainees had been brought to the chain of command’s attention through these articles.

By the time Maj Laflamme began his work as CEFCOM PM in July 2007, it appears the MP role in detainee issues at CEFCOM was more limited than ever. Maj Laflamme did attend the morning briefings described above, but he said sensitive information was not discussed at those meetings.Footnote 594 It was at that morning briefing he would hear about specific numbers of detainees already captured, any new ones being brought in to KAF, and those that were transferred. Nothing much beyond that information was conveyed.Footnote 595

The information Maj Laflamme received at the morning briefings was assembled by the detainee officer. He did not, himself, receive the detainee reports in real time. Those went, instead, to the detainee officer.Footnote 596 Maj Laflamme only received reports on the time and date of transfer of detainees, and the like, in bunches, towards the end of the ROTOs or when there was an Access to Information request specifically in relation to detainees. In those cases the hard drive with that information was sent to him. In any event, neither the detainee reports nor any of the related information he received had to do with the post-transfer treatment of detainees, or the risks associated with the transfer. Maj Laflamme received no such information.Footnote 597

Maj Laflamme met with LGen (ret’d) Gauthier to provide updates on in-theatre investigations approximately once per month, including NIS investigations if he had access to that information. Otherwise, Maj Laflamme indicated it was very rare for him to meet directly with LGen (ret’d) Gauthier.Footnote 598

Maj Laflamme was never called to the Commander’s office to discuss detainees during his tenure at CEFCOM. From his perspective, those discussions stayed within the small group identified earlier. Nor was he ever involved in discussions about what could happen to detainees once transferred.Footnote 599 He did say that he would hear things about detainees in Canadian custody, perhaps that some of them had mental health issues or were youths. In any event, it was always the J9 or the JAG that looked into the questions that arose from youth and mental health issues.Footnote 600

The only time Maj Laflamme was notified of problems with the detainee transfer process was via a monthly MP SITREP for November 2007, which he received in early December. It indicated transfers had stopped.Footnote 601 He was actually the one to have put in place the requirement for monthly situation reports from the TFPM in theatre. ROTO 1 had had such a system, but, to his knowledge, not ROTOs 2 and 3. He put the monthly situation report into place as a requirement for ROTO 4.Footnote 602 The monthly sitrep had a section on ongoing investigations and a section on detainees.Footnote 603 Maj Laflamme’s response to discovering transfers had stopped is discussed below.

12.2.5 The Development of a New Transfer Regime and the Diminishment of the Military Police Role

The role of the military police with respect to detainees changed when the new transfer arrangement was put in place in May 2007. The key aspect of this new regime was the implementation of post-transfer site visits to Canadian-transferred detainees, to permit face-to-face inquiry by Canadians into individual detainee treatment while in NDS custody. The Commission heard evidence that around February 2007 or possibly earlier, meetings were taking place, and a discussion paper circulated while the new transfer protocol was being developed. The Canadian Forces, in conjunction with other government departments, were working to develop that protocol and CEFCOM was at the heart of the development process. The Commission learned the CEFCOM PM provided input to some extent.

The reorganization resulted in what the Commission came to perceive as a significantly reduced role for the military police, especially with respect to the new provisions for post-transfer follow-up. It was decided the military police would not be the central repository for operational information about detainees. Indeed, other than with respect to the time spent by detainees in Canadian custody, the military police, following this new regime and the accompanying information distribution system it created, were unlikely to possess, or easily come across, information about transfer decisions and about the results of site visits to Canadian-transferred detainees. It appears from the start of the new transfer regime that this was the specific intent of those with a say in the matter at CEFCOM.

The evidence indicates that the existence of detainee- related complaints lodged with the MPCC had an influence on how the new detainee information system was created and the degree of access to information that MPs would have. The Commission canvassed whether the possibility of MPCC scrutiny affected the roles of MPs and their access to information with several witnesses, and received different answers. It was difficult to determine exactly why MPs were given so little visibility on the post-transfer and transfer decision-making processes.

Prior to the new transfer arrangement that was put in place in May 2007, it appears the military police in theatre were more involved with detainee matters than was the case after the new arrangement. Indeed, Maj James Fraser, the TFPM for ROTO 1 (Feb. 2006 to July 2006), was referred to in DFAIT C4 correspondence as the “national point of contact on detainee issues in theatre”, something LCol Boot suggested in his testimony would not have been unusual.Footnote 604 Thus, prior to May 2007, there was some evidence that the Provost Marshal in theatre was an important figure in detainee issues, even from the DFAIT perspective, and not simply with respect to detainee custody at the transfer facility.

The Commission explored this reorganization of responsibilities with respect to detainees, to determine how it affected MP access to information about detainees, and therefore MP ability – if necessary – to investigate any wrongdoing related to detainee treatment and transfer. In terms of the subjects of this complaint, who are alleged to have failed to investigate command orders to transfer detainees to an allegedly known risk of torture, it was relevant to understand whether information was being purposefully kept from MPs. Ms. Duschner, LGen (ret’d) Gauthier, and LGen Deschamps were key players in this reorganization of the detainee reporting process and information retention and were asked these types of questions.

Ms. Duschner was asked about the first Transfer Complaint filed with the Military Police Complaints Commission on February 21, 2007.Footnote 605 Did the existence of that complaint, which alleges that MPs knowingly transferred or were wilfully blind to having transferred detainees to a risk of torture, somehow cause those in charge at CEFCOM to purposefully restrict MP access to information about what was happening post-transfer? Ms. Duschner said the MPCC complaint caused concerns, not about sharing information with the MPs but about their being the repository for that information.Footnote 606 Ms. Duschner made the following comment which seems to indicate that MPs were being sheltered from information that could potentially constitute evidence:

It was certainly my recollection that if the MPCC’s job was to investigate MPs in wrongdoing, then to have them as the repository of information that could potentially be evidence, do you really want the MPs or Provost Marshal to retain that information? Therefore, there was separation of the duties of the detainee officer who would have a repository of all information on detainees. I don’t know if that is a yes or no to your question.Footnote 607

Ms. Duschner’s recollection was that LGen (ret’d) Gauthier raised the question at a meeting as to who should be the repository of the information. The non-MP detainee officer became the repository.Footnote 608

Ms. Duschner’s indication the MPCC complaint (the first Transfer Complaint) caused, or at least influenced, the decision not to have MPs as the repository for detainee information, appears confirmed in the following passage from her handwritten notes dated May 16, 2007: “COMD concerns over MP/PM retainer of all information (legal issue ref MPCC)”. This was the heading to a section of her notes. In testimony, Ms. Duschner clarified this was the COS Ops relaying the concerns of the Commander in theatre (MGen (ret’d) Grant at the time). She said it went back to the question of who was to be the repository for documents on detainees within CEFCOM, and agreed this comment reflected the Task Force Commander’s concerns about MPs retaining information. Ms. Duschner could not recall, though, what the Task Force Commander’s particular concern at that time was with respect to MPs and the MPCC.Footnote 609

Another passage in her notes reads as follows: “MPs What are they responsible for. Is legal OK with this? Who controls ‘the info/evidence’ about detainees?”Footnote 610 Ms. Duschner surmised that this passage referred to LGen Deschamps inquiring about what information the Provost Marshal should have about detainees, what their responsibility was, and how involved they should be. Asked whether this related to an attempt to put up an information barrier between the MPs, she was “not sure that it is a barrier or just a delineation of responsibility.

The issue was resolved with the creation of a detainee officer within the J3 RO2.Footnote 611 This occurred formally in mid-May 2007. Prior to that, the repository of information on detainees was split between the J9 and the CEFCOM PM:

  • And prior to mid-May, who was the repository of information? Who fulfilled that role? Would that have been the CEFCOM Provost Marshal?
  • I think to a large part it was split between the J-9 and the Provost Marshal, yes. On the operational side, the Provost Marshal policy J-9.Footnote 612

LGen (ret’d) Gauthier also provided evidence with respect to the influence of the MPCC complaints on how information on detainees would be stored and shared. He recalled that a concern about the existence of a separate technical chain of communication for MPs arose at the time the allegations in the Attaran complaint came to light. That is, LGen (ret’d) Gauthier recalled the concerns arising not from the first Transfer Complaint (Exhibit P-1 in these proceedings), but from the Attaran complaint which alleged MPs abused detainees while in MP custody and/or failed to investigate injuries to those detainees. Through looking into that complaint, LGen (ret’d) Gauthier learned who was holding what information at CEFCOM on detainees, and decided to create a single repository:

What came to light as a result of that was that we needed a repository for all of the information on detainees to avoid situations such as that particular situation where the Operations staff had one little bit of information, the Policy staff had another, and the military police had another.

So the direction that I believe I personally gave through my Chief of Staff was that we had to have one focal point to hold the information. Not to suggest for a minute that others shouldn’t see it, but it needed to be held in one place. That was the point.Footnote 613

Indeed, LGen (ret’d) Gauthier said this was one of the “few times that I actually drilled down into how the staff functions because of the surprise, the strategic surprise, that occurred with that one report where there wasn’t a single person in CEFCOM who had all the pieces of the puzzle together and able to provide me with a clear picture.Footnote 614 LGen (ret’d) Gauthier said again, though, the concern likely related to the Attaran complaint about actual Canadian treatment of detainees while in MP custody and the difficulties that arose in gathering all that information without it being centrally located in one place.Footnote 615

LGen (ret’d) Gauthier was also shown a document which indicated concerns about the MP role in the “Detainee Reporting Process” going back as far as the beginning of 2007. In a document by the same title, dated February 28, 2007, LGen (ret’d) Gauthier wrote the note: “We need to be careful with this document - Let’s talk later.” There is then a reference to the “MP context”. Ms. Duschner was able to confirm that this was the Commander’s writing.Footnote 616 Asked whether it was ever the case that MPs or other members of the Canadian Forces were being considered to carry out the detainee monitoring role, post-transfer, LGen (ret’d) Gauthier said it was never a serious discussion at senior levels of the military:

[…] I don’t think there was ever serious discussion – ever – at a senior level of the Canadian military being involved, in any substantial way, in post-transfer follow-up.

  • Not in a substantial way –
  • Between the CDS and I, at least, I can tell you that we did not consider that in a positive sense at any time.
  • Any why is that?
  • For a host of reasons. We actually got into it at an earlier discussion to do with capacity, to do with training, to do with all of the other tasks that were required of us in Afghanistan. But the greatest concern that I had was the issue of training and departmental accountability, both of those, which are two sides of the same coin, really. Certainly, my understanding is that there are personnel in the Department of Foreign Affairs who are specialists in human rights, and there is training done that helps them recognize signs of torture and those kinds of things. We don’t do that kind of training. I suppose we could introduce a whole new line of training within the Canadian Forces, but that’s not something we considered at that time.Footnote 617

Interestingly, it is indicated at p. 27 that the CEFCOM PM was consulted on the same document.Footnote 618

LGen (ret’d) Gauthier was asked questions by the Complainants exploring whether it was unusual, and contrary to doctrine, to exclude MPs from involvement with and information related to transfer decisions and post-transfer monitoring. LGen (ret’d) Gauthier did not see those issues as falling under MP purview, and considered, essentially, that if the military police believed they should have been involved, this was a mistaken impression on their part.

The General was referred to the following passage from military police doctrine, which would seem to indicate the MP should be involved with post-transfer liaison:

Military Police ensure effective liaison exists with all authorities concerned with the treatment of prisoners of war. The proper treatment of prisoners of war is important, and Canada must meet its obligations. Adequate liaison with civilian authorities, humanitarian groups, and any designated protecting power must ensure Canada is seen as being respectful of all international agreements.Footnote 619

LGen (ret’d) Gauthier was not prepared to infer from this document that MPs were normally responsible for post-transfer liaison.Footnote 620 His view was that 21st century military operations are different, and it was an outdated concept to suggest military police would be responsible for post-transfer liaison to ensure proper treatment of prisoners or detainees.Footnote 621

He was also shown a copy of a military police Technical Directive, dated July 2007 (thus, after the start of the new transfer regime) and was referred, in particular, to a passage indicating that the Task Force Provost Marshal “[…] is responsible for: (a) the provision of advice on prisoner handling and transfer policy procedures.Footnote 622 Again, when it was put to him by the Complainants that this indicated the Provost Marshal was an authority who should be consulted on transfer policy, i.e., to whom Canada should be transferring, LGen (ret’d) Gauthier said this was “debatable.Footnote 623 He gave the following evidence indicating that if the Canadian Forces Provost Marshal thought he had a role in the development of detainee transfer policy, and related decisions, this was because he had wrongly attributed that role to the military police milieu:

[…] quite frankly, the larger policy issue is not something that is inherently within the purview of the Canadian- in other words, in National Defence Headquarters the person who would determine who has the lead departmentally, within the department, the Canadian Forces, on the issue of transfer of post transfer detainees - the VCDS is likely the one in concert with the CDS and the deputy minister, organizationally, who would define that sort of lane, and clearly in DND CF lead responsibility for that issue, policy, transfer policy, post transfer policy, was the Assistant Deputy Minister Policy.

In that sense, I think what we have here, to some degree perhaps, is an interpretation of doctrine and a mandate accorded by the Provost Marshal to his folks, not necessarily given to the Provost Marshal.

As I say, in National Defence headquarters - and this may have come up before and may have come up again. The Canadian Forces Provost Marshal was not one of those who attended our policy meetings on post transfer issues or transfer decisions.

  • Is that because he wasn’t invited?
  • It is because someone made a determination that it was not his role.Footnote 624 [Emphasis added]

That said, LGen (ret’d) Gauthier was very conscious of the technical chain and its usefulness, and said he would never have discouraged the military police or anyone else from communicating between levels of headquarters by way of the tech net:

I am very comfortable with technical chains of communication. Canadian Forces could not function without them.

Likewise, I would say that I would have fully expected military police, just as with lawyers, just as with logisticians and many others, that they would be communicating issues that could be resolved within those technical families from the lowest level to the highest level. So reporting, for instance, from the Provost Marshal and the military police team in Afghanistan through CEFCOM Headquarters to the Provost Marshal into Canadian Operational Support Command where there was a larger complement of military police and up to the Canadian Forces Provost Marshal is something that I would have expected to happen.Footnote 625

Indeed, LGen (ret’d) Gauthier said he would never have ordered that the technical net be shut down, as it was “fundamental to doing business.Footnote 626

LGen Deschamps was also asked a series of questions about whether, as a result of the MPCC complaints, CEFCOM command began to question the role of MPs in the detainee reporting process. Consistent with the response of LGen (ret’d) Gauthier, LGen Deschamps said it was the Attaran complaint, and the difficulties they had in gathering information from different sources in relation to that complaint, that caused them to create the detainee officer as the central repository for detainee information.

LGen Deschamps was shown the handwriting from LGen (ret’d) Gauthier, found on documents attached to the briefing note on the detainee reporting process. The document was dated February 28, 2007, one week after the first Transfer Complaint was filed alleging that MPs, in transferring detainees, were wilfully blind or aware of the risk of torture by the Afghans. As noted, LGen (ret’d) Gauthier wrote a note: “We need to be very careful with this document. Let’s talk later. MP context.Footnote 627 LGen Deschamps confirmed it was the Attaran complaint (filed shortly before this Transfer Complaint) that led the CEFCOM staff to go through a document gathering process to both investigate and respond to numerous Access to Information requests. The collection of documents was a large task, and in the process, the staff discovered that just when they thought they’d found everything, there was more to find. This led to a decision that they needed to revise reporting procedures, and to reduce the number of duplications in reporting that passed by way of the technical chain.Footnote 628

He described the pre-May 2007 system for detainee information as follows. If a detainee was caught, a verbal report would come from the field to the tactical unit and from the tactical unit to the command in Kandahar. Task Force Command in Kandahar would then draft reports up the chain of command to CEFCOM. Parallel systems existed, too, such as medical reports and MP reporting. MPs, for example, were responsible for detention, and had their own documentation to create within their own technical chain. This additional information created a problem, when coupled with other information held by other units and which was not necessarily visible to operational command. LGen Deschamps described the problem as follows:

En parallèle, il y avait d’autres réseaux qui s’activaient. Côté police militaire. La police militaire, parce qu’eux autres, une fois qu’un détenu était pris; une fois qu’on avait possession de détenus, la police militaire devenait responsable de la manutention, de la détention de ces individus jusqu’au point de transfert.

Alors ils avaient un rôle à jouer. Alors il y avait de la documentation qu’eux devaient accumuler et aussi, dans leur propre chaîne technique, ils faisaient des rapports, comme policiers.

Côté opérationnel, ce n’était pas nécessairement visible, ces rapports qu’eux autres préparaient du côté policier; ils n’étaient pas nécessairement accessibles à la chaîne de commandement. Alors déjà, il y avait des petites séparations, si on veut, d’information.

De l’autre côté, vous aviez l’aviseur politique, le groupe J9 ou aviseurs politiques, qu’eux activaient, justement, pour préparer la documentation pour notifier la Croix‑Rouge et aussi s’assurer que nos partenaires en théâtre étaient aussi notifiés qu’on avait pris un détenu.

Alors il y avait une procédure qui était politique, parce qu’il fallait suivre, se conformer à un protocole qui avait été étendu avec la Croix‑Rouge pour les notifier à travers les Affaires étrangères. Alors il y avait des étapes à suivre pour passer l’information aux Affaires étrangères, et eux passaient l’information à J9. Alors cela s’activait.

Tout cela pour dire qu’il y avait des séries de rapports qui étaient préparés par différents individus et qui ‑‑ puis ils envoyaient cela dans leur chaîne technique, si on veut, au moment approprié.

Le défi avec tout cela, c’est que ce n’était pas toujours visible à la chaîne de commandement si certains rapports techniques étaient vus par le commandant. Alors il y avait possibilité que certains de ces rapports se rendaient à d’autres niveaux, sans nécessairement que la chaîne de commande militaire ait vu le rapport en détail.

On a vu que cela causait des problèmes de visibilité et si on prenait les décisions, est‑ce qu’on avait toute l’information pour prendre des décisions.

[unofficial translation] At the same time, there were other networks that were active. There was the military police, because once a detainee was taken, once they had possession of detainees, the military police became responsible for the handling and detention of these individuals until they were transferred.

They had a part to play. There was documentation which they had to accumulate and also, in their own chain of command, as police officers, they made up reports.

One the operational side, and this was not necessarily visible, those reports which were prepared by the police, they were not necessarily available to the chain of command. So already there were small separations, if you like, of information.

On the other side, you had the political advisor, the J9 group or political advisors, who were actively preparing the documentation to notify the Red Cross and also ensure that our partners in the theatre were also notified that we had taken a detainee.

There was a procedure that was political, because it was necessary to follow – to comply with a procedure that had been made with the Red Cross to notify them through Foreign Affairs. There were stages to be gone through and passing the information to Foreign Affairs, and they passed the information on to J9. That was on the way.

This all means that there was a series of reports which were prepared by different individuals and which – they sent it along their chain of command, if you like, at the appropriate time.

The problem with all that was that it was not always visible to the chain of command whether certain technical reports were seen by the commander. There was a possibility that some of these reports would go to other levels, without the military chain of command necessarily having seen the report in detail.

We saw that this caused visibility problems and if you were taking decisions, did you have all the information to make the decisions?Footnote 629

As a result, it was decided to clean up the information system. LGen Deschamps described LGen (ret’d) Gauthier’s ongoing concern about needing to ensure that MPs, as specialists, still had the information they needed to do their job:

La note du commandant se rapporte au fait qu’en mettant de ménage, en mettant de l’ordre dans notre procédure, il ne fallait pas oublier qu’il y avait des besoins spécifiques aux spécialistes de continuer à faire ce qu’ils ont besoin de faire comme spécialistes; la police militaire étant un cas très spécifique.

Alors c’était de s’assurer qu’avec l’intention d’harmoniser, ce n’était pas de créer des situations où la police militaire n’était pas capable de faire notre boulot et le boulot de police, investigation.

Alors c’était la discussion. Comment on ramasse l’information; qui la contrôle; dans le sens d’harmoniser toute l’information, sans contraindre les gens qui ont besoin d’avoir spécifique pour leur boulot.

[unofficial translation]The commander’s note related to the fact that in doing house cleaning, in putting our procedures in order, we should not forget that there were specific requirements of specialists to continue doing what they needed to do as specialists: the military police being a very specific case.

It was important to ensure that intending to harmonize did not mean creating situations in which the military police could not do our job and the police job, investigation.

There was discussion how information was collected, who controlled it, in order to harmonize all information without hampering people who need to have something specific for their jobs.Footnote 630

LGen Deschamps said the discussion about harmonizing detainee information went on for almost two months. They wanted an honest assessment of what was redundant, and who ought to be reporting through which chain. It was also important that documents met professional standards and that copies were available in a central repository and not under four or five headings.

Alors cela, c’était le but de tout cet exercice‑là. Cela a culminé, je crois, au mois de mai ‑ je ne me rappelle pas de la date exacte ‑ où le Général Grant, qui était le général en théâtre à ce moment, a signé un nouvel ordre de théâtre qui allait rebalancer, justement, les rôles du detainee officer et du grand prévôt et de tout le staff; médical, légal, tous ces gens‑là; les termes étaient clairs; qui qui se rapportaient au point de vue documentation et qui qui était préposé à préparer les documents pour envoyer à la chaîne de commandement.

[unofficial translation] That was the purpose of this entire exercise. I think it concluded in May – I do not recall the exact date – when General Grant, who was the general in the theatre at that time, signed a new theatre order adjusting the functions of the detainee officer and Provost Marshal and the entire staff – medical, legal, all those people; the terms were clear: who was reporting for documentation and who was assigned to prepare documents to send up the chain of command.Footnote 631

LGen Deschamps was shown additional comments from Ms. Duschner’s notes, which seem to indicate that because of the MPCC, information was being kept from the military police. In particular, he was referred to a passage from notes dated May 16, 2007, which read: “COMD concerns over MP/PM retainer of all information (legal issue ref MPCC)” and “MPs” What are they responsible for. Is legal OK with this? Who controls ‘the info/evidence’ about detainees?”Footnote 632 Where Ms. Duschner appears to have suggested that the intent was to shield MPs from review by the MPCC, LGen Deschamps had a different explanation. He said the goal was to ensure that MPs had the information they needed about detainees, in particular physical and other evidence about those detainees that could be provided to the Afghans for prosecution purposes. With respect to the MPCC, he seems to have been implying that this would allow MPs to do their job properly, and hold them in good stead with the MPCC.

LGen Deschamps recounted that the discussion related to their need to remember the central role of military police in handling detainees and ensuring there was hard evidence to give to the Afghan authorities, and to avoid losing focus on these responsibilities in their zealous approach to reworking the terms of reference and simplifying the reporting and accountability processes. To his recollection, this discussion did not relate in any way to the post-transfer visit reports.Footnote 633

The whole reorganization process took months, and, according to LGen Deschamps, Maj Boot was consulted throughout it all.Footnote 634 He was asked, though, whether MPs were specifically consulted on how much information they should have, after having been referred to the passage in Ms. Duschner’s notes which suggested the military police and legal were required to determine how involved the military police should be. He said he could not recall specifically if LCol Boot told him he was satisfied with the arrangement. Instead, he said it was an educational process for both sides to ensure they understood everything the MPs needed with respect to detainee handling.Footnote 635 LGen Deschamps seemed to indicate the PM at CEFCOM had very little control over the process.Footnote 636

LGen Deschamps described how the TFPM in theatre – Maj Hudson during this time –was involved in the consultations about creating the new detainee reporting process:

Le prévôt en théâtre était impliqué certainement justement pour énoncer qu’est‑ce qu’ils font en théâtre pratiquement. Alors, il était l’expert à qui on se serait fié pour nous donner ce qui se passait vraiment jour à jour. Et il aurait travaillé avec notre grand prévôt à CEFCOM ou à COMFEC pour justement s’assurer que leurs besoins étaient identifiés dans la discussion.

[unofficial translation] The Provost Marshal in the theatre was certainly involved to say what in practical terms they do in the theatre. He was the expert on whom we relied to give us what was actually happening from day to day. He worked with our Provost Marshal at CEFCOM specifically to ensure that their needs were identified in the discussion.Footnote 637

Capt (N) (ret’d) Moore was not consulted or involved with the discussions surrounding this re-organization of the information flow for detainee issues.Footnote 638

As a result of the new arrangement and reporting process, post-transfer site visit reports were created by DFAIT, arrived at CEFCOM by way of the J9, were distributed internally at CEFCOM (but not to MPs), and stored with the non-MP detainee officer.Footnote 639 When pressed again, and referred specifically to Ms. Duschner’s response about MPs not being the repository of information because they were being investigated by the MPCC, LGen Deschamps maintained his same response, and repeated the exercise was merely to ensure that MPs had all they needed to do their particular job as MPs, while others took care of jobs that had nothing to do with MPs. LGen Deschamps clearly felt the MP role ended at transfer. Indeed, he felt post-transfer issues weren’t even a CF issue, but instead the responsibility of DFAIT and the Afghans.Footnote 640

LGen Deschamps was then referred to the first Transfer Complaint (Exhibit P-1), which put into question MP conduct in transferring detainees to the Afghanis, allegedly knowing or wilfully blind to the accusation they might face torture or mistreatment. LGen Deschamps was asked if MPs could have used information about what happened post-transfer to detainees – such as the site visit reports – to guard against the accusation. Did not having this information put MPs at risk because they were essentially blind to what was happening after the transfer of detainees? LGen Deschamps responded that the decision to transfer was made by the operational command, and was not an MP responsibility, such that MPs did not need to concern themselves with the question of post-transfer treatment. Essentially, he appears to have disagreed with the premise of the first Transfer Complaint, that MPs might somehow have been responsible legally for the transfer:

  • C’est un point de vue philosophique qu’on discute pratiquement. La responsabilité du transfert dans le –sur le protocole militaire, c’est le commandant de la force interarmée qui prend la décision et non la police militaire.

    La police militaire participe, est un aviseur au commandant. Alors, s’il y a des choses qui les concernent, ils en parleraient. Mais à la fin de la journée, c’est le commandant qui doit s’assurer que lui a fait le travail nécessaire pour avoir confiance qu’ils peuvent transférer avec assurance.

    Alors, c’est le point de départ qu’on a tout le temps visé. Alors, il n’y avait pas une optique que la police militaire devrait avoir une responsabilité accrue au-delà du commandant. C’est pas typiquement une logique qu’on aurait suivie

    [unofficial translation] This is a philosophical question which we are discussing in practical terms. The transfer responsibility in the – in the military protocol is with the commander of the Joint Task Force, who takes the decision, not the military police.

    The military police participates – is an advisor to the commander. If there are things which concern them, they mention them. However, at the end of the day it is the commander who must ensure that he has done the necessary work so he can be confident that they will be properly transferred.

    That is the starting-point which was aimed at always. There was no contemplation that the military police should have greater responsibility beyond that of the commander. That is not typically a logic which would have been followed.Footnote 641

Thus, LGen Deschamps felt MPs had all the information they needed to do their job, even though the new reporting process did not provide them directly with any information about what was happening to detainees after transfer to Afghan custody. The CEFCOM PM most definitely would not have been the direct recipient of site visit reports, including the ones that began to come back after May 2007 containing allegations of torture and abuse from Canadian-transferred detainees.

Similarly, the PM lost responsibility for handling follow-up questions about detainees when the new transfer arrangement was put in place. Prior to May 2007, follow-up questions about detainees, such as questions from the J9, went through the Provost Marshal. After May 2007, such requests went through the non-MP detainee officer.Footnote 642

What did the CEFCOM PMs think about this lack of access to information on transfer decisions and post-transfer treatment? As it turns out, albeit in different ways, both CEFCOM PMs felt they should have been informed, and expected they would have been informed if reports were coming back that Canadian-transferred detainees were being mistreated post-transfer.

LCol Boot, for example, believed, once detainees were turned over to Afghan authorities, they were no longer a military police responsibility. Correctional Services Canada was in theatre, and “Their job, as I saw it, was the professionalization of the prison system. They were, would have been, in my opinion, the oversight for the prison system.Footnote 643 Moreover, with respect to the May 3, 2007 arrangement, and the fact it called for DFAIT monitoring of transferred detainees, LCol Boot did not consider the military police to have an interest in that monitoring. However, when asked if he saw it as within the military police’s area of responsibility to receive reports of the results of that monitoring, as mentioned, he said he would have expected to be briefed if anything untoward was found.Footnote 644

Similarly, Maj Laflamme was not sure if he thought he should have been at the meetings where detainee issues were discussed, but he definitely would have expected to hear, directly and not through the back door, if transfers were stopped or other important developments occurred with respect to detainee transfers.Footnote 645 He also said he would have liked to have reports such as those produced by Richard Colvin and the site visit reports produced by DFAIT. He felt that having access to such material could not have hurt, given the job he had to do. However, it appeared to him that he was not meant to have access to that material:

  • Would you have liked to have received these reports?
  • Si j’avais le droit d’avoir accès à ça, sûrement que ça n’aurait pas nui dans la job que je faisais, mais je ne pense pas que c’était dans la vision que je puisse avoir accès à ces rapports‑là parce qu’il y avait need to know basis puis la portion que la police militaire ne couvrait pas, si on veut, au niveau des ententes après les transferts.

    [unofficial translation] A. If I had been entitled to have access to it, certainly it would not have hurt, in the job I was doing, but I don’t think it was in the vision that I could have access to those reports because it was need to know basis and the portion that the military police didn’t cover, if you will, in terms of the post-transfer agreements.
  • So you didn’t see it as part of your role or function to receive this type of information?
  • C’est parce que, dans le temps, je les ai jamais vus. Aujourd’hui, je les vois. C’est clair que la ‑‑ tout le niveau d’information que j’ai aujourd’hui ‑‑ mon situational awareness est beaucoup différent. Mais est‑ce que ça veut dire que je les aurais eus plus dans le temps s’ils ne voulaient pas me les donner [...] la réponse serait probablement non. J’aurais aimé ça les avoir, mais est‑ce que je les aurais plus? Peut‑être pas. Avoir été conscient [...]

    Je sais pas si j’ai répondu à la question.

    [unofficial translation]

    Because at the time, I never saw them. Today, I am seeing them. Clearly the whole level of information I have today _ my situational awareness is much different. But does that mean that I would have had them in a more timely manner if they didn’t want to give them to me…the answer would probably be no. I would have liked to have them, but would I have got them more? Maybe not. Having been aware…

    I don’t know whether I’ve answered the question.Footnote 646

LCol Boot appeared to have been involved to a degree in the development of the new arrangement. He was consulted to some degree on the scope of MP detainee handling duties in theatre. Asked why a decision was made to establish post-transfer monitoring and follow-up, he replied: “We were reading the newspaper […] we were getting direction that the TSO had to be rewritten to be more – the ability to track detainees all the way through to be able to, therefore, identify them, so that post-transfer – post-transfer activities could be better followed.Footnote 647 Moreover, he understood that the transfer agreement was changed as “follow-on to the press reports […]. That was my view sitting in the cheap seats.Footnote 648 LCol Boot’s evidence, though, was that the decision to no longer have MPs as the repository of information on detainees was a command decision, ostensibly beyond his control or influence. LCol Boot testified it was a result of a “command decision” that the position of detainee officer was created as a non-MP.Footnote 649 Prior to this, by default, the TFPM in theatre and the CEFCOM PM back home, were the points of contact for detainee issues. As he states, this was purposefully changed:

  • Within CEFCOM, was there a member of staff who was primarily responsible for detainee issues?
  • No, sir. To the best of my knowledge and recollection, no, sir. By default setting, I was it, because the Task Force Provost Marshal in theatre was the default setting was to the Task Force Provost Marshal.

    By default, I became, in essence, the man with the visibility on detainees, but, again, I would have been doing it on behalf of the [J]3, because it is an operational issue.Footnote 650

Ultimately, by the time Maj Laflamme was the CEFCOM PM in July 2007, the rallying point for all information about detainees, from the point of capture through to post- transfer, was the detainee officer in theatre, and the detainee officer at CEFCOM (LCol Irwin during this timeframe).Footnote 651 The military police were left with a greatly diminished role in the detainee reporting process.

12.2.6 The CEFCOM Investigation into the Graeme Smith Globe and Mail Articles

By mid-May 2007, the new detainee reporting and information process was in place. The position of the detainee officer had been created, and it was the clear intention that the CEFCOM PM, and MPs in general, were not meant to be the main repository for information about detainees. In particular, with respect to transfer decisions and post-transfer follow-up information, MPs were not expected or likely to have access to such information. Indeed, this appears to have been the purposeful design of the May 2007 system.

However, that is not to say the CEFCOM PMs knew nothing about post-transfer issues during their time at CEFCOM. This section explores the PMs’ involvement in a CEFCOM investigation (led by the J9 division) into certain aspects of the Graeme Smith articles. The Provost Marshal at the time, LCol Boot, had read these articles, and was aware of the allegations they contained that Canadian-transferred detainees were tortured by the Afghans. Indeed, LCol Boot assisted in investigating (for operations purposes) whether the names mentioned in the article were actually Canadian-transferred detainees. LCol Boot’s involvement in this investigation was limited, and did not cause him to consider commencing a police investigation into the very same subject matter, or asking the NIS to do so.

LCol Boot explained the J3 organization and the Provost Marshal were tasked to confirm whether the people making the allegations in the Globe & Mail articles were actually Canadian-transferred detainees.Footnote 652 Ms. Duschner described the impetus for this investigation/fact-check as having come from LGen (ret’d) Gauthier:

  • We were tasked by General Gauthier to take a look at the names in the Globe and Mail article to determine whether any of those were Canadian transferred detainees.
  • Were some of the names verified or believed verified?
  • Yes.Footnote 653

They were able to confirm some of the individuals in the article had gone through the Canadian transfer facility at Kandahar Air Field. LCol Boot explained he did the review, as part of what was called a Tiger Team. LCol Boot was the only MPFootnote 654 and was unaware of any further investigations being done to determine if the reports of abuse were true.Footnote 655

The results of the review can be found in a document entitled: “FACT-CHECK ON DETAINEE-RELATED MEDIA COVERAGE 23–27 Apr 07”. The document was “Prepared by M. Carter, CEFCOM J9 Policy 2.Footnote 656 The fact-check looked at specific names published in the Graeme Smith articles to confirm whether those making allegations of abuse to Mr. Smith were in fact Canadian-transferred detainees. Gul Mohammed, for example, was described in Mr. Smith’s first article as detained by CF personnel west of Kandahar City and transferred to Afghan soldiers. This was described as “Believed verified.” Sherwin, aged 25, was “Verified” as having once been in Canadian custody. Abdul Wahl was “Partially verified,” as was Noor Mohammed Noori. The fact check continued in this manner, with respect to the Smith articles and other media reporting on this topic. The fact-check looked not only into whether the detainees had actually been in CF custody, but also the veracity of other media statements. For example, a Canada AM story had apparently suggested the Canadian Forces transferred detainees in order to benefit from intelligence gained through torture. This was described as “Incorrect” and a “false” claim.Footnote 657

LGen (ret’d) Gauthier asked LCol Boot to look into three specific individuals mentioned in the Smith articles. These were Gul, Wahli and Mohammed.Footnote 658 It appears LGen (ret’d) Gauthier was concerned about these individuals in particular because the article called into question the actions of Canadians beyond the simple act of transfer:

One specific element of that I can recall that this Commission would be interested in from a military police perspective, I asked specific questions about – and I think there is some paperwork in reference to that to somewhere in the evidence books – about three specific individuals named in the article who made allegations that brought into question the actions of Canadians.

I asked my Provost Marshal to have a close look at those and to determine whether or not there was sufficient scope to launch police investigations.Footnote 659

The reference to Gul was a reference to the portion of the April 23, 2007 article claiming that in May 2006, while in the custody of Afghan police in the Zhari District Centre, Mahmad Gul had been abused and “[…] the Canadian soldiers who visited him between beatings had surely heard his screams.” Mahmad Gul also apparently alleged “the Canadians told me, ‘Give them real information, or they will do more bad things to you’.Footnote 660 The fact-check did indicate the “Comd CEFCOM has requested that CF National Investigation Service (CFNIS) consider this alleged incident for further investigation.”Footnote 661

The reference to Abdul Wahli related to an allegation he was told that the basis for his transfer to the ANSF was that the Canadians who originally detained him had found two bullets in his pocket which he claimed were not there.Footnote 662 The “Mohammed” reference is likely a reference to the passage in the fact-check detailing the allegation that Tila Mohammed was kicked by CF members before transfer to the NDS: “Tila Mohammed, 18, was detained by CF “kicked a little before being transferred to NDS,” which the fact-check suggested could be a reference to the “spreading of feet for searching purposes.Footnote 663

The CEFCOM PM followed up with Maj Bell from the National Investigation Service on Monday, April 30, 2007, to see what progress the NIS had made with respect to determining the need for an investigation into Canadian treatment of these three individuals. His email to Maj Bell, which was cc’d to various parties at CEFCOM including Col Noonan, states as follows:

Just spoke with the Comd. As part of his due diligence into allegations of mistreatment (by Afghan auths) of detainees turned over to ANSF by Canadians, he would like to cfm what, if any, decision(s) have been made with regard to 3 specific cases raised in the series of Globe and Mail articles of last week.Footnote 664

LCol Boot then discusses the nature of those three allegations:

When we spoke early last week you indicated that CFNIS was in the midst of conducting a preliminary assessment (investigative battle procedure?) as to whether or not to launch an investigation into these, or any other, allegations. No one knows the complexity of this issue more than us and we are not looking necessarily for any detailed reports, just what, if any, decisions have been made, and actions taken, wrt investigation(s).Footnote 665

A response to this email came from Col Noonan at CEFCOM HQ. The response was addressed to LGen (ret’d) Gauthier and LGen Deschamps, along with Ms. Duschner and another Major at CEFCOM. Col Noonan wrote: “My understanding is as follows: Comd has requested CFNIS investigation of Mahmud Gul incident.” This passage is then followed by a portion redacted, it appears, for purposes of solicitor/client privilege, or some privilege other than s. 38 of the Canada Evidence Act.Footnote 666

LGen (ret’d) Gauthier could not recall what had happened with his request to look into the other two incidents. He could only speculate, based on discussions with those in theatre, any concerns with respect to Wahli and Mohammed were dispelled.Footnote 667

LGen Deschamps testified LCol Boot was most definitely involved with the fact-check/investigation described above, and the additional investigation(s) ordered by LGen (ret’d) Gauthier. LCol Boot needed to be involved because he was CEFCOM’s link to the NIS. He was also the one who worked the closest with the TFPM in theatre, who was, at that time – prior to the new arrangement being put in place – a main repository for information on detainees held in theatre.Footnote 668 LGen Deschamps agreed, though, that the fact-check was a J9-led process, and was not a police investigation in the typical sense.Footnote 669

Other initiatives were taken as a result of the Globe and Mail articles. One such measure was that DFAIT sent Mr. Gavin Buchan to visit Canadian-transferred detainees at the Kandahar NDS facilities.Footnote 670 LCol Boot was not involved in the coordination of these initiatives, which were initiated by Foreign Affairs.

12.2.7 Investigation by the CEFCOM Provost Marshals into Post-Transfer Issues Between May 2007 and June 12, 2008

As noted, CEFCOM PM LCol Boot was involved with a fact-check/investigation into whether the detainees in question had been in Canadian custody. It was confirmed some of them had been in Canadian custody. Thus, LCol Boot was involved in a type of investigation in late April 2007, just prior to the opening timeframe for this complaint. This investigation was not a police investigation, per se, but a J9-led fact-checking exercise.

As well, LGen (ret’d) Gauthier requested the NIS to investigate or consider the need to investigate allegations made in the Graeme Smith articles that CF personnel were somehow at fault in their direct dealings with detainees, by telling them to speak in order to avoid torture, mistreating them while in CF custody, or planting “evidence” on a detainee, presumably to make him look like a Taliban fighter. While the need for two of these investigations was quickly dismissed, no detailed explanation was available. The Commission also learned the NIS investigated the incident where Canadians allegedly told a detainee to provide information to avoid further mistreatment. Beyond these “investigations,” the Commission saw no evidence from CEFCOM witnesses of MP involvement in the investigation of the legality of the decisions to transfer Afghan detainees to the NDS. The only exception was when Maj Laflamme, the CEFCOM PM who succeeded LCol Boot, attempted to inquire into the reasons behind the cessation of transfers in November 2007. His attempts to gather information about the reasons for this stoppage led to naught, and he was essentially told that he had no need to know about post-transfer issues.

LCol Boot’s time as CEFCOM PM ended in July 2007.Footnote 671 Other than his involvement with the J9 investigation into the Graeme Smith articles, and in conveying to the NIS LGen (ret’d) Gauthier’s desire to see three allegations investigated, no further information came to him about detainee abuse prior to May 3, 2007.Footnote 672 LCol Boot was aware of the stoppage of transfers just before the May 3, 2007 arrangement was put in place, but he was not made aware of the reasons for the stoppage nor did he know the exact date they started up again. LCol Boot did deduce that the stoppage related to the need for better follow-up post-transfer:

Until we – because there was some indication that the current, the existing, the original agreement wasn’t as robust as was expected or as was hoped, this led us to have to redo the agreement. And until we got the new agreement into place, we stopped handing over detainees, because we wanted to make sure that all of our procedures were in place.Footnote 673

After May 3, 2007, LCol Boot did not acquire any information, such as site visit reports, other C4 traffic or verbal reports about post-transfer treatment. Indeed the imposition of the new transfer arrangement and detainee reporting process in May 2007 effectively left LCol Boot ‘out of the loop’ when it came to post-transfer issues. Moreover, he did not consider he had an interest in the results of that monitoring, although he would have expected to be briefed if something untoward had been found. Finally, he was not aware of any further investigations to determine if the reports of abuse in The Globe and Mail articles were correct.Footnote 674 When asked whether he felt the confirmation that some of the detainees in the articles had been Canadian detainees evoked a duty to investigate the legality of those transfers, his answer was no:

  • Okay. To put a specific fact situation forward and ask for your comments on it, we talked about the Graeme Smith article
  • Sir.
  • and the enquiries which disclosed that or confirmed that some of the names listed in Mr. Smith’s article had, at one time, been in CF custody,.
  • Yes, sir.
  • Would that be information that would be sufficient to cause the military police to self initiate an investigation?
  • I wouldn’t have thought so, sir, no.
  • In your position as CEFCOM PM, did you at any time during your tenure obtain information that you considered would have justified an investigation into the transfer of detainees?
  • No, sir.Footnote 675

Essentially, LCol Boot was disquieted by the article, but did not see the follow-up required as a military police function, so much as a whole-of-government issue, which was why he did not think he or other MPs needed to dig deeper into the Globe and Mail articles, beyond confirming certain of the detainees had been Canadian transferees:

  • I see. So that was the extent. It was determining if any of those individuals that had been interviewed by Mr. Smith
  • Yes.
  • had previously been in CF custody?
  • That’s correct.
  • And you determined that some had?
  • Yes.
  • And now why didn’t you dig a little deeper, then, or why did this not occasion _ did this cause you concern?
  • It caused me disquiet, but, again, you know, Commission counsel asked what do I _ you know, what causes us to self initiate an investigation. It is absolutely I talk about the credibility of the source.

    I mean, we discussed it with, amongst ourselves. Once again, it is not a military police function, because of the whole of government agreement.

    We saw the professionalization of the police _ I’m sorry, the professionalization of the prisons to be a Correction Service _ I did.

    So I was, Roger that. Somebody is going to investigate this and see whether or not there are steps need to be taken to rectify any issues.
  • So you saw this as someone else’s issue to deal with?
  • Yes, absolutely.Footnote 676

LCol Boot saw the military police role as being responsible for the intake, processing and hand-over to Afghan authorities of detainees. However, he also knew MPs had the role of investigating violations of criminal or international law committed by Canadian Forces.Footnote 677 He knew s. 11 of the Technical Directive required that the appropriate component of Canadian MP (MP or CFNIS) investigate allegations or instances of violations of the laws of armed conflict or international law, but it was important to him that the section also said “attributed to Canadian Forces personnel.Footnote 678 LCol Boot knew it would be illegal for Canadian Forces personnel to torture someone, and he agreed it would be illegal to order a transfer to torture.Footnote 679

LCol Boot was asked specifically whether he had any discussions with Maj Hudson, the in-theatre TFPM during his tenure, where Maj Hudson raised concerns about the Geneva Convention and the possibility the CF might be responsible for detainees after they were transferred. LCol Boot did not recall Maj Hudson saying anything of the kind.Footnote 680 LCol Boot acknowledged having discussions with other Provost Marshals for guidance on this issue, including Deputy Provost Marshals who would have been closer up the technical chain to the CFPM:

  • And on this issue, did you ever ask any other Provost Marshals for guidance on this issue?
  • I don’t know if I ever asked specifically for guidance.

    I mean, for obvious reasons, it was the subject du jour around the water cooler, and we talked extensively about it, both within CANOSCOM and CEFCOM and with the _ you know, the other _ with the DPMs that worked for the Provost Marshal.

    But did we ever get to the point where we thought, oh _ you know, where we actually talked about an investigative procedure? No, nor did I ever ask, Should I be launching an investigation? Do you believe I should be launching an investigation? No.Footnote 681

By the time Maj Laflamme took the reins as CEFCOM PM in July 2007, the Provost Marshal’s involvement with post-transfer issues was all but non-existent. The attention to the Globe and Mail articles had subsided as the new transfer arrangement began to be implemented. Indeed, Maj Laflamme did not see Smith’s articles, and did not read any international reports on the human rights situation in Afghanistan. He heard some talk about allegations related to detainees during his time as CEFCOM PM but understood that the matters were being dealt with in-theatre. He never saw the C4 traffic or site visit reports, and appears not to even have known they existed.Footnote 682

Maj Laflamme did not even learn about the November 2007 stoppage of transfers until early December 2007. He learned this as a result of a monthly situation report provided to him by the TFPM, Maj Zybala, from in-theatre.Footnote 683 The receipt of this information – that transfers had ceased – caused him to attempt to become personally involved in meetings on detainee issues, and find out more about the reasons behind the stoppage. Maj Laflamme was never really doing this in a “policing” capacity, per se, but instead was trying to keep informed about the detainee issue in order to better do his job in a general sense.Footnote 684

When Maj Laflamme learned the transfers had stopped, he began to make inquiries, and was told, in essence, that everything was under control, and that an investigation was taking place to shed light on the allegations. He knew the suspension occurred as a result of allegations of mistreatment of detainees because he asked the question.Footnote 685

Maj Laflamme attempted to acquire more information about the stoppage, and get involved with meetings on the topic. By this, he was referring specifically to meetings attended by people such as Ms. Duschner.Footnote 686 He was told his involvement was not required, and not necessary:

[…] À cause que c’était pas [...] c’était pas immédiatement un abus ou une enquête initiale qui était initiée. Si en théâtre avait initié une enquête NIS, en théorie le major Zybala aurait parti l’enquête, le général Laroche aurait parti l’enquête. C’était du côté DFAIT, alors c’est tout du côté Policy.

[unofficial translation] Because it was not […] it was not immediately an abuse or an initial investigation that had been initiated. If theatre had initiated an NIS investigation, in theory Major Zybala would have been part of the investigation, General Laroche would have been part of the investigation. That was on the DFAIT side, so it was all on the Policy side.Footnote 687

Maj Laflamme spoke to his boss, Capt (N) McKeegan, who was Chief of Staff (Support). Capt (N) McKeegan told Maj Laflamme neither he himself nor Maj Laflamme were required to be at the meetings. This occurred after about a week of his first trying to become involved in the subject and the meetings. Maj Laflamme was told that, on the basis of need-to-know principles, he did not need to attend those meetings. Maj Laflamme also tried, at one point, to approach Col Irwin and the JAG. One of the things he wanted to know, for example, was why he had learned through the back door about the stoppage, and whether he could be involved in future meetings on the subject.Footnote 688

Maj Laflamme would never see the November 5, 2007 report detailing the allegations of torture, and the implements found. Everything of this nature, he learned from the media reports.Footnote 689

LGen Deschamps was asked about this whole incident, and could not recall anything about it, and could not say who it was at CEFCOM who told Capt (N) McKeegan that Maj Laflamme did not have a need to be involved with detainee meetings.Footnote 690 As for the fact Maj Laflamme did not know about the stoppage of transfers, he thought Maj Laflamme must have been on vacation at the time because the TFPM in theatre knew right away, and would have told him.Footnote 691

For some reason, the CFPM did not learn about the November 2007 stoppage until early January 2008. Maj Laflamme believed this was likely due to human error somewhere along the technical chain reporting process, or perhaps because the CANOSCOM PM was on vacation.Footnote 692 Maj Laflamme testified his normal procedure was to forward the monthly sitrep to the Provost Marshal at CANOSCOM, Col Taylor, who could then show this information to the CFPM at the weekly meetings. This appears not to have happened with respect to this particular report, or, those who viewed the report missed the fact transfers had stopped. Maj Laflamme was surprised to learn in testimony the CFPM did not learn about the stoppage until much later.Footnote 693

Maj Laflamme was never advised of the conditions in place before transfers resumed in late February 2008.Footnote 694 During his time at CEFCOM, none of the TFPMs in theatre sought his opinion on whether to investigate the legality of the transfers or the issue of treatment of detainees post-transfer.Footnote 695 At one point, shortly after the stoppage of transfers in November 2007, he spoke to Maj Zybala on the topic, briefly, and not by secure phone. He asked him what was happening in theatre, but Maj Zybala could only advise that DFAIT was looking into the matter. It was after that first conversation with Maj Zybala that Maj Laflamme began to enquire with Capt (N) McKeegan and Ms. Duschner.Footnote 696

Maj Laflamme testified it did occur to him that transfer to torture was potentially illegal, but at the time he simply did not know enough about what was going on in theatre to form a judgment.Footnote 697

12.2.8 Conclusion with Respect to MP Knowledge at CEFCOM

Such was the state of affairs, and the state of knowledge, for LCol Boot and Maj Laflamme. Each in his own way investigated certain aspects of the post-transfer treatment of detainees while Provost Marshal at CEFCOM. LCol Boot looked into whether the detainees mentioned in the Graeme Smith articles were Canadian transferees, and contacted the NIS about three possible investigations. Maj Laflamme attempted to find more information about the stoppage of transfers in November 2007 but was told he did not ‘need to know’ about the topic, nor did he need to be involved in meetings. Neither Provost Marshal was in any way privy to the in-depth deliberations that individuals such as LGen (ret’d) Gauthier, LGen Deschamps, the JAG, and the Task Force Commanders in theatre would have engaged in when deciding whether to transfer, pause transfers or start them up again. Neither CEFCOM PM ever questioned LGen (ret’d) Gauthier about his involvement in the decisions to transfer and stop transfers.Footnote 698

The Commission heard a good deal of evidence from LGen (ret’d) Gauthier and others about the decisions to pause or resume transfers of detainees. However, the Provost Marshals at CEFCOM were not privy to this information. Therefore, the Commission concludes the CEFCOM PMs did not convey this information to the subject MPs.

12.3 The Afghanistan Theatre

In this section, the Commission considers the information environment in Afghanistan. Its focus is on assessing what the military police in Afghanistan, and ultimately, the particular subjects of this complaint, knew or had the means of knowing about the treatment of detainees post-transfer and the decision-making process of the Task Force Commander when it came to decisions to transfer.

During the hearings, the Commission focused in on three sub-sets of the Afghanistan information environment regarding detainees. The first was the detention facility at Kandahar Airfield (KAF) and the MPs working there. The second area of focus was the Task Force Headquarters (TFHQ), where the Task Force Commander and his staff made decisions about transfer. The TFHQ was also located at KAF, but some distance from the detention facility. The Task Force Provost Marshal’s office was close in physical proximity to these headquarters, although he would also frequent the detention facility regularly. The third area of focus was on the DFAIT presence in Afghanistan. DFAIT employees dealing with the detainee question were located at the site of the Provincial Reconstruction Team in Kandahar and at the embassy in Kabul. In addition, a DFAIT employee was seconded to and physically located at TFHQ in the role of Political Advisor (POLAD).

The information environment in Afghanistan changed over time. This section examines the information environment at the detention facility, TFHQ, and DFAIT during ROTO 3 (from February 2007 to the end of July 2007), and then turn to ROTOs 4 & 5, covering the timeframe from August 2007 to the end date for this complaint (June 12, 2008).

12.3.1 ROTO 3 – MP Knowledge at the Detention Facility
12.3.1.1 Evidence of Sgt Carol Utton

The Commission heard from two witnesses stationed at the detention facility during ROTO 3 -Sgt Carol Utton and Capt Gillian Worsfold. Major Hudson, the TFPM during ROTO 3, also attended regularly at the detention facility. However, Major Hudson is a subject of this complaint, and his testimony will be discussed later in the Report.

Sgt Utton was the ROTO 3 security NCM (non-commissioned member). She did the physical security surveys and general police investigations into security matters, which meant she would have been far removed from any investigations into detainee-related issues. Sgt Utton’s secondary job was as 2 I/C (second-in-command) for detainee operations, which meant she assisted Sergeant Steward, the first in command, with the preparatory work, paperwork, notification to medical facilities, and other duties that arose when receiving detainees. Sgt Utton’s immediate supervisors among the MPs working the detention facility were, first, Sgt Steward, then Warrant Officer LeBlanc, and Capt Worsfold, who reported directly to Maj Hudson, the TFPM.Footnote 699

Sgt Utton explained that, during her time in Afghanistan, the detention facility was being called a ‘transfer facility’ because detainees were never intended to be held there for a period longer than 96 hours. She recalled when she arrived in February 2007 some detainees were still being released in the field, to the ANA or the ANP. Sgt Utton thought it was around the time of the stoppage of transfers in late April/early May it became mandatory that releases were no longer to occur in the field, but through the transfer facility. Sgt Utton understood all transfers out of the detention facility to the Afghans were to the NDS.Footnote 700

Sgt Utton and others in her MP company were aware of the need to treat detainees in a humane fashion, and described some examples, such as providing food, ice cold water, towels to cool down, a Koran and prayer mat, sandals, tooth brush and soap. The detainees were also told that the Red Cross would be notified of their capture. Sgt Utton never witnessed any mistreatment of detainees at the detention facility.Footnote 701

Sgt Utton provided some evidence on how detainee paperwork was generated, and stored. First, the unit capturing the detainee in the field would have to complete paperwork, and this would follow the detainee to the detention facility. MPs at the facility would fill in an inventory of things seized from the detainees, gather any witness statements on the circumstances of capture, compile custody records, and create a record of release.Footnote 702 Sgt Utton herself would prepare the paperwork for handovers to the NDS.Footnote 703 After a detainee was transferred to the NDS, the paperwork was taken to MP headquarters, and put into a computer database. From that point on, CEFCOM had access to it.Footnote 704

During Sgt Utton’s time in Afghanistan, she heard “basic soldier rumour” about possible mistreatment of detainees once handed over to the Afghanis:

One rumour – the only rumour I ever heard was that they were going to turn them over to one of those, either the Afghan National Army, the Afghan National Police and an interpreter said as soon as the Canadians left they would be killed, so the Canadian soldier intervened and took back the detainee. [...] But that was just a rumour.Footnote 705

Sgt Utton never saw or heard any indications that detainees were scared or asked not to be transferred to the NDS. Indeed, Sgt Utton suggested some of them appeared happy to be transferred to the NDS:

They seemed – some of them seemed quite delighted. At one time we had two injured detainees that were to be transferred. The NDS refused to take one gentlemen because of his medical concerned (sic). He was quite distraught that he didn’t get to go with the NDS and every day he would ask to go with the NDS and he did his physical therapy walking around so he didn’t limp so the NDS could transfer him.Footnote 706

In general, Sgt Utton’s understanding was that detainees were not afraid to go to the NDS because they “could be bought out of the Afghan jails.Footnote 707

Sgt Utton also said she never witnessed detainees resist transfer to the NDS, although she would not have witnessed the final, physical handover of the detainee to the NDS.Footnote 708 Nor did Sgt Utton witness the NDS threatening detainees. Indeed, Sgt Utton recalled an instance, after the allegations of abuse came out in the papers, where the person from the NDS refused to take a seriously injured detainee: “He did not want to be blamed if anything, if the detainee would get an infection from the so-called filthy conditions that the papers wrote about in his jail.Footnote 709

As noted, Sgt Utton was not physically present and able to see the detainees at the final moment of transfer. Others, non-MP it seems, were present at such times. The POLAD, after the new arrangement in May, attended at the time of transfer to provide a copy of the new transfer agreement to the detainee. The detainee would go directly from the transfer facility holding area into the NDS vehicle, after having met the POLAD and the other, non-MP CF members.Footnote 710

Sgt Utton was in Afghanistan when transfers were suspended in April 2007. When first asked the reason for the stoppage, she only said it was because of stories out there, which Sgt Utton testified was a reference to the “basic soldier rumour” described above.Footnote 711 When asked again later, Sgt Utton testified she believed the transfers stopped because Amnesty International Canada and the B.C. Civil Liberties Association had put in a court order to stop all transfers and releases, something she learned from MP HQ, by “[w]ord of mouth”.Footnote 712

The suspension caused one or several detainees (it was unclear on the public record) to be held in custody for a number of days. One, in particular, was left in extremely hot conditions in a facility not designed at that time to hold a person for so long. Sgt Utton was very concerned for the mental and physical well-being of this detainee. The MPs brought in a swamp cooler, and took numerous other steps to help provide relief from the heat, apparently somewhere in the range of 140 degrees Fahrenheit.Footnote 713 Nevertheless, the order remained in place that this detainee could not be released. Sgt Utton explained:

  • And why couldn’t this fellow be released?
  • Because the order came that there would be no transfers or release because of the ongoing court action in Canada. And I believe the task force commander or somebody related at DFAIT had rendered that decision to the task force commander.
  • Did you communicate up the chain of command your concerns about the individual’s situation?
  • Every day.Footnote 714

Asked if she was personally aware of newspaper stories about potential mistreatment of detainees that came out in the April, May 2007 timeframe, Sgt Utton recalled there being newspaper articles, but doesn’t know if she “read them all”. In particular, Sgt Utton said she did not read the Globe and Mail articles by Graeme Smith at the time. Instead, she recalled reading an Esprit de Corps magazine article by Scott Taylor saying the conditions in Afghan jails were harsh, but that the guards lived in the same conditions as the prisoners. She also did not read DFAIT country reports on Afghanistan, or similar reports from the US State Department. It seems she did have access to “the Star or the Sun. Or we had the CBC channel.Footnote 715 The following exchange reveals, though, she did know the essence of the controversy being covered in the media, at least to a small degree:

  • But you understood at some point in theatre that there were concerns raised by some in Canada about what was happening to detainees, post-transfer?
  • There were media reports that were out, but it was just what the media reported.
  • Yes, you were aware that concerns were being raised about what might be happening to detainees, post-transfer?
  • Yes.
  • That was a topic of some discussion in theatre, I gather?
  • It might have been a little bit but it wasn’t like a, you know -- we might have discussed it, "Hey, look at what the paper wrote." That was about it.Footnote 716

When transfers started up again, Sgt Utton was told Canada and the Afghans had a new agreement, with some sort of monitoring. She did not know who was to do that monitoring. She recalled that as of May 2007, the political advisor from DFAIT (POLAD) was on the scene, at the time of transfer, to explain the new agreement to the transferees.Footnote 717 Otherwise, she saw none of the site visit reports, nor did she know anything about those visits.Footnote 718 Indeed, she testified to having had no contact whatsoever with officials from DFAIT, perhaps with the exception of the POLAD who arrived at transfer time:

[...] What kind of exposure or interactions would you ever have with officials of the department of foreign affairs?

  • None. I didn’t know they were in the camp. If you know anything about military culture, you stay with your own, especially Military Police. We are a unique social group.Footnote 719

Sgt Utton did not learn of another suspension of transfers while she was in theatre during ROTO 3.Footnote 720

When Sgt Utton was in Afghanistan, MPs did no follow-up on what happened to the detainees after transfer, and at her level Sgt Utton saw no orders making MPs responsible for any type of follow-up. MPs had been responsible for notifying the Red Cross and the AIHRC, but that changed when the detainee officer position was put in place.Footnote 721 Sgt Utton never received reports or feedback of any kind about the post-transfer situation, from the NDS or otherwise, and believed that the detainee officer was involved with that. Sgt Utton’s understanding was that, after transfer, detainees went through the Afghan court system, based on the evidence given to the Afghan authorities in the disclosure package, i.e., witness statements, capture reports and other information.Footnote 722

Sgt Utton never gave any thought to the fact that, prior to May 2007, follow-up site visits to detainees were not occurring.Footnote 723

Sgt Utton had received training on the Geneva Conventions, both during standard training, and in training she received on tactical questioning. During her tour she never obtained any information that made her believe that a police investigation should be undertaken into the transfer of detainees.Footnote 724 Sgt Utton did know that, during her tour, another subject of this complaint, Chief Warrant Officer (CWO) Watson, was investigating something related to detainees, because he would come by the facility to take detainee files: “[...] we didn’t ask questions.Sgt Utton simply assumed an investigation was going on.Footnote 725

Sgt Utton indicated she did not often see Maj Hudson. When she did, it was at the meeting facilities, at headquarters, or when he came to visit the KAF MP platoon. Maj Hudson was three levels above her in the chain of command, so she would normally deal with him through the official chain of command, up through Sgt Steward, Warrant Officer Leblanc, and through to Capt Worsfold.Footnote 726

12.3.1.2 Evidence of Capt Gillian Worsfold

Capt Worsfold was the MP platoon commander at KAF for ROTO 3. As such, she was in charge of policing operations, which included traffic, small investigations, security, and convoy escorts. Capt Worsfold’s MPs also did some “mobile mentoring”, with a number of them either going with the battle group or to the regional training centre to mentor the Afghan police.Footnote 727 Detainee operations were also part of her responsibilities, although she would not have investigated detainee issues, as such an investigation would fall within NIS responsibility as being serious and sensitive.Footnote 728

Capt Worsfold was not present at the moment when detainees were actually transferred. Capt Worsfold indicated, as did Sgt Utton, that other CF members would have been there, and indicated the MPs nearby were there to provide security. Capt Worsfold never had contact with the NDS. To her knowledge, the TFPM was also not present. The MPs that assisted with the transfer would return and inform her that the handover had occurred, and the sergeant in charge of detainee operations would then contact headquarters to advise the transfer was complete.Footnote 729

Capt Worsfold heard nothing about the NDS threatening to shoot an injured detainee instead of taking him.Footnote 730

Asked whether she heard rumours or discussion about post-transfer mistreatment of detainees, Capt Worsfold responded: “I, myself, did not, no. I was very busy doing the day-to-day operations and I did not engage in discussing those kind of rumours or speculation.Footnote 731

As for Graeme Smith’s Globe and Mail articles, describing allegations of torture and abuse of Canadian-transferred detainees, Capt Worsfold testified she simply did not read the papers, and so was not aware of the articles. Capt Worsfold also did not see DFAIT country reports on Afghanistan or similar such reports from the US State Department, the UN or the AIHRC.Footnote 732 Capt Worsfold had never heard, during her time in Afghanistan, about the methods of torture in Afghanistan described in the Smith articles.Footnote 733

Capt Worsfold appears to have understood the cessation of transfers in April/May 2007 was the result of allegations of abuse of detainees by Canadian Forces, presumably while in Canadian Forces’ custody.Footnote 734 Capt Worsfold never heard there was an issue about transferring to the NDS because they were potentially abusing detainees:

Again, I was of the understanding that it was back in Canada, that there was a block to transfers due to a complaint from Amnesty International that Canadian Forces were abusing Afghan detainees.

[...]

I never knew that there was an issue with transferring to the NDS because they were abusing. I never heard that.Footnote 735

Like Sgt Utton, she had concerns about the particular detainee forced to stay longer than expected at the detention facility, in very difficult conditions, as a result of the stoppage: “I was concerned by the fact that we, as Canadians, could be seen as mistreating this individual. We wanted nothing of the sort [...]Footnote 736

When the new transfer regime was put in place in May 2007, Capt Worsfold’s evidence was that, with respect to monitoring, she simply understood that other government departments, such as Corrections Canada or DFAIT, would conduct the monitoring. Capt Worsfold was only “vaguely” aware of the new arrangement, and from the MP perspective, little had changed. Capt Worsfold was familiar with the detainee officer put in place with the new regime, but only met him once or twice. He was not an MP. She met the POLAD once or twice as well, but could not remember his name.Footnote 737

Capt Worsfold did know that an ICRC representative would regularly visit the Canadian detention facility, especially if a detainee was in there.Footnote 738

Capt Worsfold had “pretty much daily” contact with her immediate supervisor, Maj Hudson, and told the Commission that she had discussions with Maj Hudson about revising and rewriting TSO 321A, and discussions about upgrading the detention facility. Capt Worsfold said she did not talk about post-transfer detainee issues,Footnote 739 with the exception that they discussed “how keeping somebody in that facility for an extended period of time would tax my resources.” At the time of the stoppage, Capt Worsfold did ask Maj Hudson when transfers would resume, and paraphrased her recollection of what he said as follows: “[...] We’re working on it. I am in discussions with the Task Force Commander. Be patient. Take good care of our detainee or detainees, and just keep doing what you are doing.Footnote 740 Capt Worsfold does not recall talking to Maj Hudson about the reasons for suspension, saying she “really did not think of that.Footnote 741 Finally, Capt Worsfold knew Maj Hudson was part of the release or transfer decision process for Canadian detainees, but she did not discuss the decision process with him.Footnote 742

As a final point, with respect to the detention facility at KAF during ROTO 3, the Commission heard from MGen Ward. He visited the KAF detention facility, and was impressed by the MPs handling of it. MGen Ward described his tour and the handling of the detention facility by soldiers such as Sgt Utton and Capt Worsfold:

[...] they just walked us through the entire procedure: How an individual who would be taken from the battlefield, believed to be an insurgent, would be then in-processed, have their vital signs taken, medical tests, some initial questions to determine identity and also to try and glean anything of intelligence value, and then they would be held in the facility until some of that information could have been corroborated with other officials in Afghanistan and they would be prepared for transfer to Afghan authorities.

  • Any what was your impression of how the whole process went down?
  • I was extremely impressed with the professionalism of the military police. I saw their presentation, obviously practised, was on the mark [...] I thought that in fact they were probably overdoing it, and that was probably due to the sensitivity that they were feeling from other places, from back here in Ottawa, for instance.Footnote 743
12.3.2 ROTOs 4 & 5 – MP Knowledge at the Detention Facility

The Commission heard from the MP Platoon Commander at KAF during ROTO 4, Capt Marc Bouchard. Capt Bouchard held the same position as Capt Worsfold from the previous ROTO. Capt Bouchard has been with the Canadian Forces since 1984. He took his military police training around 1986 or 1987. He started training for his tour to Afghanistan in February 2007 and was deployed in August 2007. He returned to Canada on January 11, 2008.Footnote 744

Capt Bouchard’s immediate superior was Maj Zybala, the TFPM for ROTO 4, and a subject of this complaint. As MP platoon commander, Capt Bouchard had a staff that provided 24/7 service doing information security, inspections of buildings and installations, and overseeing the transfer facility and the detention of detainees. Capt Bouchard was responsible for taking care of Canadian captured detainees until his Task Force Commander at the time, BGen Laroche, gave the order either to release or transfer.Footnote 745

Capt Bouchard described the transfer process. His duties began as soon as the detainee arrived at KAF, and included itemizing the detainee’s belongings, ensuring a medical exam, providing information to the detainees about their presence at KAF, providing a shower, and food and water. Capt Bouchard was not responsible for notifying the Red Cross of the detainee’s presence. This was done through TFHQ.Footnote 746 The MPs also filled out daily reports on the detainees, which went to the MP company and to Task Force Headquarters. The typical stay period for a detainee at the transfer facility was from three to five days during his time in Afghanistan.Footnote 747

When the order for transfer came, representatives from headquarters and from DFAIT became involved. The MPs ensured the detainee had a medical exam, and the detainee’s files were up to date. Personal belongings were returned to them.Footnote 748 The DFAIT representative would, with the assistance of a translator, read out information to the detainees that pertained to their subsequent treatment at NDS hands, and about the transfer arrangement, including follow-up.Footnote 749 MPs did not accompany the detainee post transfer. The transfer to the NDS occurred within the confines of the transfer facility. The Afghan authorities came with their own vehicle, and drove away with the detainee.Footnote 750

Capt Bouchard was asked what he knew about detainee issues prior to his deployment. He explained he learned about changes to the transfer regime during his training, but the new regime was fully in place when he arrived in theatre.Footnote 751 From his point of view, Capt Bouchard did not feel the new regime affected or changed his responsibilities, with the exception that a DFAIT person was present at the point of transfer.Footnote 752

Capt Bouchard understood detainees were to be treated to the standard required of prisoners of war, as defined by the Third Geneva Convention, i.e., the highest standard established under international law. It was part of his responsibility to ensure this happened.Footnote 753 Capt Bouchard was asked whether he was ever informed that Canada’s responsibilities to detainees continued even after transfer. Capt Bouchard’s response showed his focus was exclusively on treating them well when in Canadian custody:

[...] ce que je disais à mon personnel pendant l’entraînement et sur place, je l’ai dit à plusieurs reprises, c’était que si les détenus afghans se disaient maltraités sous ma responsabilité [...] il fallait que ce soit un mensonge. C’est la façon que je l’illustrais. Ma compréhension de ça c’était que moi, ma responsabilité, il fallait que la détention soit impeccable, qu’on prenne bien soin des détenus. Je peux pas m’avancer sur la façon de l’appliquer une fois le transfert effectué parce que ça, c’était clairement sous une autorité très supérieure à moi-même. C’était pas ma responsabilité, pas parce que je voulais l’ignorer ou que je la comprenais pas à un certain niveau. C’était que je me suis concentré surtout sur ma responsabilité directe là-bas pendant le déploiement des opérations.

[unofficial translation] […] what I told my staff during training and on the spot – I told them several times - it[ was that if Afghan detainees said they were mistreated under my responsibility[...] that would have to be a lie. That is how I illustrated it. My understanding of this was that my responsibility was for the detention to be impeccable, that we should take good care of the detainees. I cannot go into how it was applied once the transfer was made because that was clearly under the control of an authority superior to myself. It was not my responsibility, not because I wanted to ignore it or I did not understand it at a certain level. It was because my primary focus was on my direct responsibility during the deployment of operations.Footnote 754

Capt Bouchard knew the detainee issue was very important for Canada, and follow-up visits were taking place. Capt Bouchard simply did not consider this follow-up to be his responsibility.Footnote 755 Indeed, he never did receive any of the site visit reports coming from DFAIT, and considered himself to be completely excluded from that procedure.Footnote 756 Capt Bouchard also never read any of the human rights reports on Afghanistan from DFAIT, the UN, or the US State Department. He had heard talk about the AIHRC reports, and a report from the UNHCR, and was aware in a general sense that reports existed of torture and mistreatment carried out by the Afghan authorities in Afghan prisons.Footnote 757

Capt Bouchard did acquire information about what was allegedly happening to detainees post transfer, but from open sources, such as TV and internet. Throughout his training period, prior to deployment, this issue was in the media, and he was aware of it. He didn’t specifically recall the Graeme Smith newspaper articles before deployment, but he saw things on television.Footnote 758

While in Afghanistan, Capt Bouchard also had access to open sources, such as the internet. Capt Bouchard said he also had discussions during his meal times in Afghanistan about detainee treatment, with non-MP CF personnel who happened to be eating at the same time. These people saw the media attention the detainee issue was receiving, and because he was an MP with custody over detainees, they asked him questions, not about what happened post transfer, but about the detainees themselves. Capt Bouchard also asked questions of the Red Cross. In general, he was personally curious about post-transfer issues and what could happen to a detainee after transfer, but it remained the case that all he ever learned about detainee treatment post transfer came to him from open sources, rumours and informal discussions.Footnote 759

Capt Bouchard did not recall seeing any physical resistance or signs of fear from detainees in his custody when they were told they would be transferred to the NDS, although some detainees were not happy with such news. Two detainees whom he witnessed said they would rather die or be beaten by the Canadians than be transferred. Capt Bouchard probed through the translator to find out why they felt this way. The detainees explained they had no money to pay for their release from prison, and therefore had no idea how long they would be stuck in NDS custody. This sort of thing happened on a few occasions.Footnote 760 Indeed, he suggested about 10 to 15% of the detainees protested their transfer similarly, i.e., making it clear they did not wish to be transferred.Footnote 761

Capt Bouchard’s evidence was unclear as to whether such detainee behaviour made it into the reports provided by the MP platoon to the MP company and HQ. At first he said such information would have been in those reports, and would have made its way to Maj Zybala and others. Later he said he only presumed this to be the case. He also said it was possible he had discussed the detainee resistance to transfer with Maj Zybala, but he was probably never asked to follow up with detainees about the nature of their reluctance, or to ask further questions.Footnote 762

Capt Bouchard knew transfers were suspended in early November 2007. He recognized the suspension by noticing that the timeline for transfer of detainees was not being respected, and detainee(s) were staying in Canadian custody for longer than the typical three to five days. It only became an official decision, at least from his perspective, after he took leave in December.Footnote 763 Capt Bouchard never heard any details about the site visit that led to this suspension. Indeed, he never learned why the transfers were stopped.Footnote 764 Capt Bouchard did not ask why the transfers stopped in November 2007, but knew he had previously asked about delays in transfer and was told that they related to an inability on the part of the Afghan authorities to receive the detainees.Footnote 765

At KAF, Capt Bouchard was located at the transfer facility whereas Maj Zybala and his personnel were located at the Canadian Headquarters.

Capt Bouchard was referred to para 11 of the July 2007 Technical Directive that would have applied while he was in theatre. Paragraph 11(c) states the appropriate component of the military police “shall investigate allegations of violations of the Laws of Armed Conflict or international law”. Capt Bouchard explained some of the principles in respect of international law that were related to him during training, such as the requirement not to shoot at the wounded, or to destroy historic monuments, and other similar acts forbidden under international law. Capt Bouchard said clearly if somebody breached those types of restrictions, it was the duty of the MP, if such things were reported to them, to investigate.Footnote 766 Later he explained he would act even if he heard of an infraction, if it was within his responsibility to do so:

[...] c’est comme n’importe quoi; si j’entends parler d’une infraction - je l’ai fait toute ma carrière - je rapporte l’infraction ou je prends action quand j’ai autorité de prendre action. C’est mon devoir.

[unofficial translation] But it is like anything: if I hear something said about an offence – I have done this throughout my career – I report the offence or I take action when I have the authority to take action. That is my duty.Footnote 767

He added, though, that it would be difficult for the military police to act if nothing is reported to them.Footnote 768

Capt Bouchard was asked specifically whether, after hearing rumours and open source information about detainees being mistreated post transfer, he ever considered investigating. His reaction was similar to that of certain other witnesses before the Commission, namely, that no Canadians were involved and that it was not his responsibility to deal with what Afghans do to other Afghans in Afghanistan.Footnote 769

He was also asked if one bears responsibility if one transfers a detainee to someone who is likely to mistreat him. He responded that he did not make the decision to transfer, and he understood when there were doubts about the wisdom of transfer, authorities superior to him made the decision to stop:

[...] et puis ma compréhension, c’est que quand il y a eu des doutes, ces autorités-là, supérieures à moi-même, ont interrompu les transferts.

[unofficial translation] [...] and my understanding is that when there were doubts, those authorities, senior to myself, interrupted transfers.Footnote 770

Capt Bouchard was unaware of any investigations conducted by the NIS in theatre into the treatment of Afghan prisonersFootnote 771 but did have the occasion to interact with the NIS MPs in theatre. Their offices were in the same building and they shared a photocopier. Capt Bouchard also shared the same modular tent sleeping quarters with the four NIS MPs in theatre and Maj Zybala.Footnote 772 The Commission did not hear from any MPs working at the detention facility during ROTO 5.

12.3.3 ROTO 3 – Task Force Headquarters

The Commission heard from MGen (ret’d) Tim Grant about the information environment during ROTO 3 at Task Force Headquarters, and MP access to such information. MGen (ret’d) Grant assumed command of the Afghan mission in November 2006, for the last three months of ROTO 2, and all of ROTO 3, through to the end of July 2007. Majors Harvey and Hudson were the TFPMs that served under him.Footnote 773

MGen (ret’d) Grant (BGen at the time) reported to LGen (ret’d) Gauthier at CEFCOM. The precise date of command handover to BGen Laroche, the ROTO 4 Task Force Commander, was August 1, 2007.Footnote 774

MGen (ret’d) Grant described the crucial importance of the detainee issue to the Afghanistan mission:

The issue of detainees was one of three things that was made clear to me, before I deployed into theatre, by General Gauthier as being what we would call strategic points of failure. It was hugely important. It’s something that was very clear in my mind that was something I had to pay personal attention to and ultimately would be responsible for those decisions that were taken.

  • When you say it was one of three strategic points of failure, what does that mean?
  • It means that those are three things -- and the other two were potential civil casualties, Afghan civilian casualties, and Canadian casualties -- were things that would cause authorities back in Canada to reconsider potentially Canada’s contribution to the Afghanistan mission.
  • To put it in layman’s terms, if something goes wrong on those points, then support for the mission may fail. Is that essentially how it –
  • I would say that’s a fair assessment, yes.Footnote 775

During his time in Afghanistan, MGen (ret’d) Grant was responsible for transfer decisions. However, LGen (ret’d) Gauthier could restrict his ability to make the transfers of his own volition, and require a discussion beforehand. That is what occurred during the period from late April 2007 to early May 2007, when transfers were stopped following the Graeme Smith Globe & Mail articles.Footnote 776

MGen (ret’d) Grant received a Commander’s Directive from LGen (ret’d) Gauthier, dated December 6, 2006, which ordered that detainees receive the same treatment as prisoners of war, and that “[...] detainees will normally be transferred to Afghan authorities in a manner consistent with international law [...]Footnote 777

Asked about his decision making process for detainee transfers, MGen (ret’d) Grant said he “made it [his] business to ensure that [he] had a clear understanding of the issues that surrounded detainees and reached out to a number of sources [...]”, which included the ICRC, the AIHRC, coalition allies, people at the PRT, such as the political advisor, people from Corrections Canada, and reports he was receiving from “home” and the embassy in Kabul. In addition, he took a case-by-case approach to each transfer: “On an individual case-by-case basis, I would look at all those issues and, in addition to that, take advice from folks like my legal adviser, my intelligence officer and the ASIC, the All Sources Intelligence Centre.Footnote 778

MGen (ret’d) Grant had also read reports from DFAIT and the AIHRC describing the political landscape and human rights situation in Afghanistan. The AIHRC 2006 Annual Report indicated there were still incidents of torture of detained or imprisoned persons during that year. MGen (ret’d) Grant also read a DFAIT country report. He indicated, “[w]ithout question”, the information he acquired from these reports was a serious factor when transferring, which was why he developed a relationship with the AIHRC. MGen (ret’d) Grant also said he had heard rumours about how the NDS might treat detainees, in addition to having read the reports. For this reason, he developed a relationship with the Kandahar head of the NDS to address any problems.Footnote 779

MGen (ret’d) Grant indicated the TFPM did not give him advice on decisions to transfer detainees to the NDS per se, but was, instead, his primary advisor in theatre on policing issues and the handling, care and custody of detainees while they were at the detainee transfer facility.Footnote 780 The TFPM also did not advise him on the risk of torture post-transfer.Footnote 781

MGen (ret’d) Grant was also asked about the TFPM’s role with respect to liaison with the AIHRC. Prior to May 2007, MGen (ret’d) Grant understood the AIHRC had a monitoring and tracking role with respect to Canadian-transferred detainees, pursuant to the “Agreement to Notify the Afghan Independent Human Rights Commission”, dated February 20, 2007, and signed by MGen (ret’d) Grant and Mr. Noorzai of the AIHRC. The Agreement stipulates the “[...] AIHRC undertakes to provide immediate notice to Joint Task Force Afghanistan or the Canadian Embassy, should it learn that a Detainee transferred by the Canadian Forces to Afghan authorities has been mistreated.Footnote 782

The AIHRC Agreement also states the TFPM was the General’s representative: “[...] for the purposes of detainee transfer notifications to the Kandahar Office of the AIHRC. Queries should be addresse[d] to the Provost Marshal.Footnote 783 MGen (ret’d) Grant explained, though, the TFPM was more the record keeper for detainee information, while the back and forth process with the AIHRC was actually conducted through the Provincial Reconstruction Team in downtown Kandahar, a place the AIHRC could more readily access:

The Task Force Provost Marshal would make sure that the information was made available to the Provincial Reconstruction Team. There were military police at the Provincial Reconstruction Team and either they or the political director of the PRT would make that information available to the AIHRC. My recollection is that the majority of times the interface with the AIHRC was actually the political director of the PRT, not the Task Force Provost Marshal.Footnote 784

According to MGen (ret’d) Grant, it was unclear whether there was any interface between the AIHRC and the TFPM prior to May 2007.Footnote 785 As Task Force Commander, he never asked his TFPM to become involved in any kind of liaison with the AIHRC:

  • Did the Task Force Provost Marshal ever get involved in this continued relationship in assessing whether the AIHRC was able to do what they were undertaking to do in this letter?
  • Not that I am aware of.
  • Did you ever ask the TFPM to get involved in that kind of function to follow up to see if AIHRC is able to do what they are saying they will do in this letter?
  • No. The point of contact I used to deal with the AIHRC was the political director at the PRT.
  • Basically a DFAIT employee.
  • A DFAIT employee.Footnote 786

MGen (ret’d) Grant was asked about Maj Hudson’s role in developing the new monitoring regime for May 2007 and was shown an email from Maj Hudson, dated March 16, 2007, on the issue of detainee tracking. In it, Maj Hudson seems to indicate that his advice was sought on the question of creating a post-transfer monitoring regime:

Understanding the external pressures that are being brought to bare are on detainee post transfer tracking. I believe that the only definitive way to track this is to conduct follow up visits with the detainees while they are in the Afghan system. We are not to the point yet where procedural measures will achieve this, face to face visits will be necessary. This poses the question how we would achieve this? Are all the detainees transferred to NDS kept here locally? Who, with what specialist skills will visit the transfred [sic] detainees? MPs? CSC? Embassy? I know my troops although very professional, do not have the clout, experience, or trg to do this task. I suggest that although we (CF) may have [t]he capacity to support this, ie provide transport, we do not have the special[ty] to do the enhanced monitoring or capacity building measures. I would suggest the estimate WRT the art of the posible [sic] needs to be done by CSC.Footnote 787

After viewing this email, MGen (ret’d) Grant was asked whether Maj Hudson was involved in these discussions about changing the transfer system. MGen (ret’d) Grant replied “It would appear from this email chain that if he wasn’t, he wanted to be.Footnote 788

MGen (ret’d) Grant was aware of the concerns about Canada’s capacity to track detainees expressed by Major Hudson in this email, although perhaps not sharing Maj Hudson’s particular views.Footnote 789 He described his understanding of how this came about:

I believe this e-mail came out around the time that it was determined by Minister O’Connor at the time that the ICRC was unable to do follow-up visits that he had thought that they could, that we all had thought that they could. So there was a concern post transfer of who had the responsibility, who had the capability, who had the expertise to do those follow-up visits.Footnote 790

And in terms of tracking detainees, he said the following:

The decision that was taken right from the time I arrived, though, is that the detainees would only go to the NDS facility. From the NDS facility they would go to either the regional prison in Kandahar or to Pul-e-Charkhi prison in Kabul.Footnote 791

He agreed, though, that there were identification problems from time to time:

You are correct that there were problems from time to time with capturing the data correctly for individuals who were detained. That’s partly because there is a high illiteracy rate. Some of them were clearly insurgents who didn’t give the right names. So it was a difficult challenge that the MPs worked hard to get as accurate information as they possibly could. That’s why they went to the point of the individual’s name, the father’s name, the grandfather’s name, age, photos being taken and the like.Footnote 792

MGen (ret’d) Grant was also involved in the discussions about an enhanced monitoring regime, including discussion about actually visiting the detainees:

The concern was that it was not a perfect situation and we tried to make it better as we went through. As we were in theatre longer, the system got better. The system that I inherited was not the system that I turned over to General Laroche. The system he had was not the one that is currently in place. It has improved and been built on as we have learned from experiences.Footnote 793

Despite these concerns, he said he had no indications the system was inadequate:

There was no indication that the system was inadequate. There was nothing coming to me that said Canadian transferred detainees are being abused. But it’s a justice system that in some respects was nascent. It was being rebuilt after 30 years of civil conflict.

Were there problems with it? Absolutely. That’s why it was absolutely critical to make sure that we had expert advice in theatre, and that expert advice was people from Foreign Affairs who had an understanding of humanitarian rights issues, we had folks from Corrections Canada who understood the international standards for prisons and detention facilities. Those are the folks that I relied on and would be reflected in this paper who were providing advice on how Canada could build the capacity and improve the system not only for Canadian transferred detainees but for all detainees in the Afghan system.Footnote 794

Around April 23, 2007, MGen (ret’d) Grant became aware for the first time the AIHRC was facing problems with access to NDS facilities,Footnote 795 and were “unable to do what they had agreed to do”. MGen (ret’d) Grant did not know whether Maj Hudson was also aware of these access problems.Footnote 796

The Graeme Smith Globe and Mail articles came out at this same time (the end of April 2007). MGen (ret’d) Grant described his reaction to the articles, and the news the AIHRC was not getting access, as follows:

The first thing I would say is that this was taken very seriously, in spite of the concerns of the article itself. This was taken very seriously by everybody in Afghanistan and back in Canada. Although I don’t have a specific date, it was around this time that the transfer of detainees was essentially taken out of my hands and put in General Gauthier’s hands. We started to try and cross-reference the names that Graeme Smith had used in his article to detainees in our database. At the same time, I know there were discussions between Kabul, Kandahar and Ottawa on changes that could be made to supplement, reinforce the agreement. Those were being led by Ambassador Lalani at the time in Kabul. So there were a number of activities being done across a very wide front to deal with both of these issues that had come to light.

Specifically two days later, I had a meeting with the head of the NDS in Kandahar and with Engineer Norzai [sic] to address specifically the issue of access by the AIHRC to Afghan prisons and came to an agreement between those two that access would be granted on an unrestricted basis.Footnote 797

MGen (ret’d) Grant did not believe that the TFPM, Maj Hudson, attended the meeting with the AIHRC, and did not know if anyone else briefed him.Footnote 798

Shortly after the suspension of transfers in April 2007, the May 2007 supplemental transfer arrangement was put in place. MGen (ret’d) Grant was referred to an interim draft of that arrangement.Footnote 799 Paragraphs 6 to 8 reveal an initial proposal (as of April 30, 2007) for three visits per detainee. MGen (ret’d) Grant explained “[t]his was proposed by theatre back to Ottawa and to Kabul [...]” By theatre, he meant his staff, his POLAD, and the staff at the Provincial Reconstruction Team.Footnote 800 The General explained this was the “Cadillac version” of the monitoring system, but was not, to his knowledge, put in place. The fact the Cadillac version couldn’t be used was a factor that he therefore took into account in his subsequent transfer decisions. His view was that, at a minimum, visits to specific Canadian-transferred detainees were necessary.Footnote 801

Asked about the TFPM’s involvement in this recommendation and drafting process for the new monitoring regime, MGen (ret’d) Grant replied:

To put it in perspective, as the ambassador was lea[d]ing the effort to structure the supplemental arrangement which was signed a few days later, my staff, led by my deputy commander, Colonel Cessford, was working at how we would operationalize that, how we would put that agreement into effect on the ground.

That was a group that included the Task Force Provost Marshal, but it included other members of my staff and members of DFAIT from the Provincial Reconstruction Team, Corrections Canada, all of the experts -- and I do look at Corrections Canada and DFAIT as the experts on post transfer issues, not the Task Force Provost Marshal. All of those folks were working to operationalize how we would put in place the new supplemental arrangement.

So yes, the Task Force Provost Marshal would be involved in those discussions and he had input to it, but he was not in the decision-making process for it.Footnote 802

As a result of the May 2007 agreement, his staff developed a form that would serve as the record for the decision-making process. Before that there was no specific form for that purpose.Footnote 803 Maj Hudson was involved in the decision to come up with this written form in the following manner:

The deputy commander gathered a large group of staff to look at a number of issues in dealing with the TSO and with how we believed DFAIT and other members of the whole government team should participate and what role they should play. So Major Hudson was involved in that process and that process did develop this form. So in some way – however big I can’t tell you, but in some way he was involved in that process.Footnote 804

MGen (ret’d) Grant suggested this form, as developed, “captured the decision-making process” with respect to the decision to transfer, where no such form existed prior to May 2007.Footnote 805

The TFPM (Maj Hudson) was also involved with discussions on the modification of TSO 321A. MP involvement, according to MGen (ret’d) Grant, was limited to their “role as the managers of the detention transfer facility in KAF.Footnote 806

The Task Force Commander (MGen (ret’d) Grant) was asked whether throughout this time there was discussion about a role for MPs in the holding of information. MGen (ret’d) Grant said there was some, but only about “what they were doing as the managers of the detainee transfer facility [...] The discussion about who held the formal information as regards to the transfer into the NDS was not the Task Force Provost Marshal.Footnote 807 MGen (ret’d) Grant was not aware of command concerns over MP PM retention of information, and legal issues related to the Commission,Footnote 808 nor could he recall discussions surrounding the disciplining of the Technet, as mentioned during the testimony of Ms. Duschner, and in her notes.Footnote 809 MGen (ret’d) Grant never gave any direction or orders that MPs cease and desist in sending reports up the Technet.Footnote 810 He saw the MPs as keepers of information, that is, the evidence about the particular activities of detainees, and their identifying information, so that it could be passed along to the NDS. MGen (ret’d) Grant said he was never challenged on this by anyone in theatre or in Ottawa.Footnote 811

MGen (ret’d) Grant went further to describe his perception of the division and retention of information about detainees following the May supplemental transfer arrangement:

Essentially post supplemental arrangement there were three sets of information. So the military police held evidence and information as part of their role as the custodians of the transfer facility. The detainee officer, who was a combat arms officer, operational officer in the headquarters, held the file that captured the decision-making process for detainees. Finally, the political adviser on my staff held the Foreign Affairs database for those detainees that were transferred to the NDS.Footnote 812

MGen (ret’d) Grant was then asked specifically whether the site visit reports would have resided with the TFPM. He said did not know, but would not have sent them to the Task Force Provost Marshal.Footnote 813

The decision to not have an MP as the detainee officer was a conscious one taken by the Task Force Commander:

[...] It was a conscious decision on my part that it would not be a military police officer and it would not be the Task Force Provost Marshal. From my perspective, detainees is an operational issue. In that respect, I wanted someone with an operational focus to be the person that I was dealing with. The Task Force Provost Marshal and his military policemen had a significant role and a specific role to play in the detainee-handling process, and that was the detainee transfer facility. But from my perspective, they were not the right people, he was not the right person, to be co-ordinating all aspects of detainee issues in the staff and between the staff and the civilian members of the Provincial Reconstruction Team.Footnote 814

It was the detainee officer who retained the information with respect to transfer decisions.Footnote 815

Transfers to the NDS resumed in May 2007 once the new system for transfer and post-transfer monitoring was put in place. MGen (ret’d) Grant was given the green light from LGen (ret’d) Gauthier on or around May 19, 2007, such that transfers could begin again for the first time since around April 24, 2007.Footnote 816 MGen (ret’d) Grant explained why he was satisfied at that time detainees would not be abused or tortured post transfer:

There was the supplemental agreement and undertaking by the Afghan government, the agreement that we would have unfettered access to --- the AIHRC would have unfettered access. All of the components of the supplemental arrangement plus the steps we had taken to adjust the TSO321 and the work we had done with DFAIT, which clarified and put in place the processes for the transfer of detainees and the information that would go both to DFAIT and from DFAIT to the ICRC and to AIHRC. So really the firming up of those processes and the new visit schedule that the folks at the PRT were undertaking.

So all of those things came together to say, yes, we’ve addressed the issues that have come to light in the previous month.Footnote 817

MGen (ret’d) Grant was asked whether he perceived a change in the amount of information available to the military police with the new transfer regime in place post-May 2007 versus that in pre-May 2007. He did not perceive any difference: “[...] given that the MPs remained responsible for the information they were collecting, it would indicate to me that there was no change.Footnote 818

MGen (ret’d) Grant was also asked whether, if MPs had asked him for information about the post-transfer treatment of detainees or the transfer decisions after the May arrangement, he would have provided it. He agreed he would have done so:

  • In terms of the information that did exist, if it were requested, would you have provided the military police with whatever information they desired concerning detainee handling and detainee transfer issues?
  • [...] I suffer from having an open-door policy that does cause me grief at times because I spend a lot of time dealing with subordinates and questions they have. So if the Task Force Provost Marshal had come specifically looking for information, in all likelihood, I would have provided it to him.Footnote 819

MGen (ret’d) Grant would not, of his own accord, have given the site visit reports to the TFPM, given the defined role for the TFPM, and MPs, with respect to detainee affairs in theatre:

In my mind the task force provost marshal had a very clear and defined role in the detainee process, and that was handling of the detainee transfer facilities. So from the time that a detainee came in from the battlefield, was handed off to the military police and their responsibility to care and feed him essentially until they were either released or transferred on to the Afghan authorities, that was the world of the MPs as I saw it. Things that happened post transfer, which were the responsibility of DFAIT, I would talk to my senior operational staff, perhaps; I would talk to my legal adviser; I would talk to my political adviser, but my task force provost marshal didn’t have a role to play in that as I saw it, so I wouldn’t speak to him about it.Footnote 820

In terms of legal issues surrounding the transfer of detainees, MGen (ret’d) Grant was referred to the CEFCOM Commander’s Directive to his successor, BGen Laroche, and the indication therein the chain of command bears potential liability should it become aware of torture or mistreatment following the transfer of detainees to Afghan authorities:

The chain of command bears the potential liability should we become aware of torture or mistreatment following the transfer of detainees to Afghan authorities. It is for this reason that I am particularly concerned about the chain of command obligation to satisfy itself that the follow up of transferred detainees is sufficiently robust.Footnote 821

While this particular language was not found in his Directive, MGen (ret’d) Grant considered this same obligation to have existed for him during his time in theatre:

I did, and initially that follow-up was being done by ICRC, AIHRC. As things changed, we adjusted to account for what those organizations were or were not doing. Certainly in my mind, as General Laroche was going in the theatre and had not been aware of the discussions and the issues that had come up during particularly the end of April, beginning of May supplemental arrangement changes. This was General Gauthier’s method of making it clear to him what was the outcome of those discussions and those changes.Footnote 822

Indeed, MGen (ret’d) Grant said he had discussions with LGen (ret’d) Gauthier about being potentially criminally liable for his decisions.Footnote 823 By this, he meant he was legally liable for the decision to transfer, not for the robustness of the monitoring regime.Footnote 824

The legal test by which MGen (ret’d) Grant worked was that a transfer of a detainee may only occur where there are not substantial grounds for believing there was a real risk the detainee would face subsequent abuse or mistreatment if transferred to the NDS.Footnote 825 Elsewhere in his testimony, he described his approach:

In my mind, as I looked at each of the instances of transfer, and drawing on the information that was available, was there something there that would indicate to me that if I proceeded with the transfer this individual was likely going to be exposed to a significant risk of torture. I guess it’s as simple as that.Footnote 826

MGen (ret’d) Grant did not have input from his TFPM when deciding how to apply the legal test when making transfer decisions: “No, I had a legal adviser who was a lawyer who provided me that advice.Footnote 827 When questioned, he agreed the TFPM would have been aware he was getting legal advice on the transfer decisions:

If the question is, do I believe the task force provost marshal was aware of the general principles followed in making decision, I would say yes, although that is not a process that I would have briefed him on personally or talked to him about on a regular basis.

  • More specifically, would you have expected the task force provost marshal to be aware of the fact that you were assisted in the decision making process by legal advice?
  • I think that’s a fair assumption. I think that the senior staff in the headquarters, which included the task force provost marshal, knew that I had a legal adviser who was there to provide me legal advice on all operational matters.
  • Yes. And in fact that very point is contained in Annex B of the theatre standing order 321 that you signed of May 27. If you just want to put your hands on it, it’s at the Main Witness Document Book, Volume 2, Tab 2.

    Have you got that, sir?
  • I do, yes.
  • If you look at page 17 of 37, it spells out the responsibilities of the legal adviser to Task Force Afghanistan to provide advice to the task force commander and staff on all legal issues related to the detainees to ensure Joint Task Force Afghanistan’s compliance with international law and Canadian Forces obligations, which would include the legal obligations we were talking about that could flow from the decision to transfer?
  • That’s correct.Footnote 828

However, MPs did assist in providing him information that helped him determine whether that individual detainee was a force protection threat to Canadians, such that a transfer was necessary.Footnote 829

MGen (ret’d) Grant was asked about the MPCC complaints, and said he was only “peripherally aware that there were issues of that nature in Canada.MGen (ret’d) Grant knew about the Attaran complaint, but was less sure about the February 21, 2007 Transfer Complaint: “I am sure I had some knowledge that there were issues involving the MPCC back in Canada.Footnote 830

MGen (ret’d) Grant was asked about the CEFCOM investigation into the Globe and Mail article.Footnote 831 This was the fact-check into the veracity of things written in the Graeme Smith articles, such as whether the individuals mentioned were actually Canadian-transferred detainees. MGen (ret’d) Grant was not aware that this fact-check took place. He was also unaware that LGen (ret’d) Gauthier had requested the NIS investigate certain of the allegations in the articles.Footnote 832 MGen (ret’d) Grant was never interviewed by any MP about the transfer decisions that he made.Footnote 833

Asked if there were other transfer stoppages after April/May 2007, MGen (ret’d) Grant replied: “None that I am aware of.Footnote 834 He did not recall any concerns expressed by LGen (ret’d) Gauthier, or others, about the propriety of transfer during June 2007.Footnote 835 This is to be contrasted with LGen (ret’d) Gauthier’s description of a pause in transfers that occurred in June 2007.

MGen (ret’d) Grant was referred to certain of the site visit reports, from visits carried out after the May supplemental arrangement was put in place, and in which detainees alleged torture or mistreatment.Footnote 836 In reference to the site visit to the NDS prison in Kabul, where Mr. Colvin was a participant, he said the report was credible. MGen (ret’d) Grant would not go so far as to say that the allegations of abuse therein were substantiated and explained what it would have taken from his point of view for a claim of abuse by a detainee to be substantiated:

Well, without question the easy answer to that is where General Laroche was faced where instruments of torture were found at the location. That’s an obvious position. Somewhere in between is a grey area that, quite frankly, command judgment comes into, and based on the best information that’s available at the time, you make that determination.Footnote 837

Despite having received reports of allegations of torture after the May 2007 arrangement, MGen (ret’d) Grant continued transfers. He explained:

  • In the visits that did occur, do you know on how many occasions allegations of abuse were disclosed to you?
  • None.
  • Well, correct me if I’m wrong, but I just read from a June site visit report where complaints of allegations were made [a reference to the Colvin visit].
  • Sorry, other than those. Yes, the June Sarposa visit was essentially the only one plus the one in Kandahar, but I don’t recall any other site visits that specifically said prisoners had been accused of torture or accused the NDS of torture.
  • In the wake of those allegations, did transfers continue or did they cease?
  • No, they continued, and this is in large part due to the timeline in this. These are allegations of individuals who are in the custody of the NDS or in Sarposa prison or in Pul e Charkhi prison, and the timelines were that those allegations took place before the new arrangement was in place, so much of the concerns that existed at that time had been addressed in the supplementary arrangement.Footnote 838

The NIS in Afghanistan worked independently from the operations conducted by MGen (ret’d) Grant. MGen (ret’d) Grant did not command them, nor did he ever task them with anything, but did provide them with logistic support through the MP group in theatre.Footnote 839 Otherwise, the Commission heard no evidence of contact between the TF Commander and the NIS MPs in theatre.

On a final note, MGen (ret’d) Grant said the only transfers that took place under his command were to the NDS.Footnote 840

12.3.4 ROTOs 4 & 5–Task Force Headquarters

The Commission heard from MGen Guy Laroche and BGen Christian Juneau about the information environment at Task Force Headquarters in Afghanistan from August 1, 2007 to the end date of this complaint. As with MGen (ret’d) Grant, the goal was to understand what the military police, in particular the subjects of this complaint, could have known about post-transfer detainee treatment and the decision making process for transfers.

12.3.4.1 MGen Laroche

MGen Laroche (BGen Laroche during the timeframe of this complaint) was the Task Force Commander who succeeded MGen (ret’d) Grant in Afghanistan. MGen Laroche joined the Canadian Forces in 1979 and is a member of the Royal 22nd Regiment. MGen Laroche spent the majority of his career within that regiment and commanded at all levels. He was twice deployed to Bosnia. In Ottawa, MGen Laroche was the J3 International under the old organizational structure of the Canadian Forces. Following that, he became the J3 at CEFCOM, from January 2006 to the summer of 2006, during which time he reported to MGen Ward, the COS Ops preceding MGen Deschamps. MGen Laroche was given the command of the Joint Task Force in Afghanistan and began training in March 2007, taking over actual command on August 1, 2007, and holding that position until May 14, 2008.Footnote 841 Like MGen (ret’d) Grant, MGen Laroche decided whether to transfer or release individual detainees.

MGen Laroche described his relationship with the TFPM as follows. Maj Zybala, and Maj Gribble after him were his subordinates. The TFPM commanded the MP company in Afghanistan, and reported directly to the TF Commander. MGen Laroche’s contact with his TFPM was frequent, not every day, but at least once a week. From his perspective, the TFPM’s job was to handle the policing aspect of things and to deal with particular offences by military personnel, as well as to manage and command the transfer facility. The TFPM was also an advisor to the TF Commander on all policing matters.Footnote 842

MGen Laroche’s exchanges with the TFPM on detainee matters occurred as required. The main discussions between them had to do with capacity at the transfer facility. MGen Laroche’s did not view post-transfer issues as part of the TFPM’s responsibilities, even if the TFPM was generally aware of the transfer process. That said, he described the post-transfer risk to detainees as a “regular topic of conversation”, and said the TFPM was part of the discussion, along with the POLAD, the Deputy Commander Col Juneau, the detainee officer and, for a while, the Ambassador’s representative, Michel de Salaberry.Footnote 843 Indeed, with respect to detainee decisions, he had in place what he described as a small committee comprising these individuals.Footnote 844

MGen Laroche explained this committee did not always meet face to face:

Non, pas toujours, c’était l’officier responsable des détenus qui venait parfois me rencontrer pour me dire: «O.K., voici ce qui en est, voici le type d’individu qu’on a, voici les évidences qu’on a. » Et par la suite, la décision était prise à savoir si on pouvait le transférer ou non.

[unofficial translation]

No, not always, it was the officer responsible for the detainees who sometimes came to see me and say “O.K., this is the situation, this is the type of individual we have, this is the evidence we have”, and then the decision was taken to transfer or not.Footnote 845

MGen Laroche went on to say the individuals on this committee would be making recommendations with respect to their particular areas of expertise.Footnote 846 So, for example, the TFPM’s particular role in the decision process for transfer related to the evidence that existed with respect to that particular detainee, and his behaviour while in custody:

  • In fact, the reason that you have the Task Force Provost Marshal there [on the committee] is with a view to information concerning the detainee and their behaviour while in detention as opposed to the next issue, that is, the assessment of the risks of transfer. Correct?
  • C’est correct. Compte tenu que le «Provost Marshal » était responsable, un, d’envoyer des policiers militaires pour aller cueillir l’individu sur le terrain, donc l’individu était pris du terrain, était amené à la cage de transfert, et, par la suite, l’administration du point de collecte jusqu’à la libération, le transfert ou le transfert d’un individu était fait par le «Provost Marshal ».
  • In looking at the assessment of risk that any individual detainee faced, you were looking to other persons, more specifically your political adviser, the DFAIT reports, to make that judgment. Correct?
  • Oui.

[unofficial translation]

  • That’s right. [...]”
  • In looking at the assessment of risk that any individual detainee faced, you were looking to other persons, more specifically your political advisor, the DFAIT reports, to make that judgment. Correct?
  • Yes.
  • As well as the assistance that your legal officer could provide to you.
  • Yes.Footnote 847

This committee met, and discussions took place, but MGen Laroche, himself, was not always present and face-to-face with his people. MGen Laroche said it was the detainee officer who came to see him and gave him an account of the meeting in question.Footnote 848

MGen Laroche’s evidence was unclear with respect to whether the TFPM was always present at these committee meetings, and, in particular, whether the TFPM was privy to discussions about the post-transfer risks to detainees, the topic of particular interest in this complaint.

MGen Laroche was asked questions about his knowledge of the detainee file before deploying to Afghanistan. MGen Laroche said he did not personally recall reading the Globe and Mail articles from Graeme Smith, but he knew, in general terms, that there were problems.Footnote 849 MGen Laroche explained he was busy with training prior to deployment:

Encore une fois, c’était une connaissance générale. Si vous me posez des questions spécifiques sur des allégations spécifiques, je n’ai aucune connaissance de cela. Du fait que: 1‑ je n’étais pas là; 2‑ à ce moment‑là, j’étais probablement en plein milieu d’un exercice. Et lorsqu’on parle d’un exercice pour entraîner nos troupes, disons que c’est du 24/7. Il y a des scénarios qu’on utilise. Puis on n’a pas le temps de lire le journal à tous les jours puis de regarder les nouvelles à tous les jours.

[unofficial translation] Once again, it was general knowledge. If you ask me specific questions about specific allegations, I have no knowledge of that. First, I was not there, second at that time I was probably in the middle of an exercise. When you are talking about an exercise to train our troops, it is something that goes on 24/7. [...] You do not have the time to read a newspaper every day and look at the news each day.Footnote 850

MGen Laroche saw some of the DFAIT reports and reports from the UN High Commission for Human Rights, but not the US State Department Reports. In a general sense, he was aware that the human rights situation in the Afghan prisons was ‘extremely difficult’, which was why “steps were taken by Canada, arrangements made with the Afghan government [...] It is the reason a system of visits and follow-up, and so on, was introduced.Footnote 851 MGen Laroche was generally aware that allegations existed about torture and mistreatment at the hands of the Afghani authorities.Footnote 852 Particularly with respect to the NDS, he said he had heard rumours they were far from perfect.Footnote 853 Again, though, he said the follow-up visit regime was put in place to deal with the NDS’ reputation.Footnote 854

MGen Laroche was not aware of the February 21, 2007 Transfer Complaint filed with this Commission.Footnote 855 Nor was he familiar with the CEFCOM investigation/fact-finding exercise into the Graeme Smith and other media articles around late April 2007, including the fact certain detainees mentioned in the article were confirmed to have been Canadian-transferred detainees.Footnote 856

When he arrived in theatre in the summer of 2007, he had at least verbal discussions with people from Foreign Affairs, already present in Afghanistan. He knew visits were taking place, and the process was ongoing. Nobody told him of any significant problems in that regard. Among other things, in his discussions in the summer of 2007 he was told there had been progress, and that there was a desire on the part of the Afghans to work with Canada. MGen Laroche told the Commission he would have to say the outlook was favourable at that time.Footnote 857

MGen Laroche said he did not see, for example, the site visit reports that preceded his time in theatre, such as the visit that occurred around June 5, 2007. There was just general information “that close follow-up was required” and that “there were from time to time problems with follow-up with the NDS”.Footnote 858

While in theatre, MGen Laroche understood the chain of command and he personally, could be held responsible for what happened to Afghan detainees, even post transfer. The directive and supplementary directive from LGen (ret’d) Gauthier made this clear.Footnote 859

The site visit regime was in place when MGen Laroche assumed command in August 2007. He received his site visit reports directly from the POLAD - the DFAIT political advisor seconded by DFAIT to Task Force Headquarters in Afghanistan. MGen Laroche also said he received them from his detainee officer.Footnote 860 On occasion he may not have seen the actual report, but would have been briefed on the contents by his team, people such as the deputy commander, the POLAD, and the Ambassador’s representative.Footnote 861

MGen Laroche’s understanding was that the decision was his to make whether to continue or stop transfers, but he expected DFAIT to be “responsible for follow-up” and for ensuring that “the agreements made with the Afghan government were carried out and respected.Footnote 862 From DFAIT’s perspective, a memo from the POLAD, Ed Jager, and dated July 22, 2007, would seem to suggest that DFAIT officials did not consider themselves responsible for assessing the appropriateness of continuing the transfer of detainees. In reference to the standard operating procedures that were in place for the transfer regime, Mr. Jager states the following:

Of the substantive changes, perhaps the most important is the deletion in IV.8 of the reference to a DFAIT assessment ‘of the appropriateness of the continuing transfer of detainees from the Canadian Forces to Afghan authorities or to specific Afghan authorities/locations.’Footnote 863

MGen Laroche was not certain whether the TFPM would have been aware, in general or specifically, of the contents of these site visit reports:

Encore une fois, c’était une question d’équipe. Ce monde‑là travaillait ensemble, ça fait que est‑ce qu’ils prenaient les [...] ils connaissaient les moindres détails? Je pourrais pas vous le dire, il faudrait le demander au Grand prévôt à ce moment‑là s’il avait les moindres détails.

Il faut réaliser que ceux qui, disons, faisaient le jour à jour et le minute à minute concernant le dossier des détenus, c’était composé de mon commandant adjoint avec mon officier des détenus, mon officier des affaires politiques, le Pol Ad, l’aviseur qui était là, ça, c’était vraiment ceux qui assuraient le jour le jour de ça.

[unofficial translation] Once again, it was a team matter. People worked together, so that they took the [...] did they know the fine points? I could not say, you would have to ask the Provost Marshal at that time whether he had the fine points.

You have to realize that the people who did the day-to-day and minute-to-minute dealing with the detainee portfolio consisted of my deputy commander with my detainee officer, my political affairs officer, the Pol Ad, the advisor who was there, it was really they who were responsible for the daily handling of that.Footnote 864

MGen Laroche did not recall seeing incident reports or hearing that detainees were resisting transfer or were afraid of what might happen to them after transfer to the NDS. It seems the information acquired by Capt Bouchard about detainees begging not to be transferred because they could not buy themselves out of NDS custody did not make it to the General.Footnote 865

MGen Laroche was asked about the allegations of mistreatment he received in the site visit reports between August 1, 2007 and November 5, 2007. The Commission received a document from DFAIT which succinctly summarized the number and results (in terms of allegations of mistreatment) of the site visits conducted between May 2007 and Feb 2008.Footnote 866 That document gave the following breakdown of visits and allegations of mistreatment by Canadian-transferred detainees:

MGen Laroche was asked why the allegations received in September (7 interviews, 2 allegations) did not cause him to stop transfers. He explained that a DFAIT investigation into those allegations led him to conclude there was no basis at that time to stop transfers:

Lorsque vous avez des allégations, la première chose à faire c’est des enquêter.

Chose qui était fait par les Affaires étrangères, le Service correctionnel canadien. Donc à ce moment‑là, basé sur leurs recommandations, il n’y avait pas matière à ce moment‑là ‑‑ Il n’y avait pas d’inquiétude au point d’arrêter les transferts en question.

Donc, c’est pour ça que les transferts se sont poursuivis toujours en s’assurant que ces enquêtes‑là se faisaient ce qu’on nous assurait du côté des Affaires étrangères.

[unofficial translation] When you have allegations, the first thing to do is to investigate. This was done by Foreign Affairs – the Correctional Service of Canada. At that point, based on their recommendations, there was no basis at that time – there was no concern to warrant stopping the transfers in question.

That is why the transfers continued, while making sure that the investigations were being done as we were assured by Foreign Affairs.Footnote 868

The results of the investigation to which he may have been referring can be found in a briefing note to LGen (ret’d) Gauthier at CEFCOM dated September 27, 2007. This document stated as follows:

On 25 Sep 07, a CEFCOM detainee “tiger-team” consisting of members from J3 Ops, J9 Policy and LEGAD met to discuss the implications of the allegations of abuse. After analysis and discussion, the team was unable to establish any definitive or circumstantial links that would allow for a determination to be made on the validity of the allegations.Footnote 869

MGen Laroche told the Commission he had not seen this document.Footnote 870

MGen Laroche had also received indications in the supplementary directive from LGen (ret’d) Gauthier, dated September 12, 2007, suggesting no new allegations had come since the start of the new regime, for detainees transferred since the May 2007 arrangement:

Les entrevues privées menées par le personnel du ministère des Affaires étrangères depuis le 3 mai 2007 n’ont pas soulevées d’allégations sur un mauvais traitement par les autorités afghanes. Cette situation nous porte à croire que la nouvelle structure de gouvernance entraine les effets désirés auprès des responsables afghans.

[unofficial translation]

Private interviews, conducted by DFAIT personnel, of detainees transferred since 3 May 07 have not resulted in any allegations of their mistreatment by Afghan authorities. This suggests that the new governance structure is likely having the desired effect [...]Footnote 871

It is unlikely, though, this supplementary directive took into account the September allegations of mistreatment.

When Michèle Ouimet’s article appeared in La Presse in late October 2007, MGen Laroche read it.Footnote 872 The article alleged certain prisoners transferred by the Canadians suffered abuse thereafter. He said this article led to a meeting with the aforementioned committee, that is, the POLAD, the TFPM, the deputy commander, the detainee officer, and the assistant to the Ambassador in Kabul:

Et le point à ce moment‑là qui était en question, c’était le suivi sur les détenus, c’était un des points qui accrochaient et, également, le nombre d’inspections qui étaient conduites. Et je pense que ça avait été mentionné, entre autres, et ça a été rendu public, que j’étais pas satisfait avec la fréquence des inspections qu’on faisait.

[unofficial translation] The point that was in question at that time was follow-up on the detainees, it was one of the points that was disputed [...] I think it was mentioned, among other things, and it was made public, that I was not satisfied with the frequency of inspections that were being done.Footnote 873

MGen Laroche was unequivocal in saying that the TFPM was present at this meeting.Footnote 874

MGen Laroche was on leave when the Nov. 5, 2007 visit occurred, having left on October 31, 2007 and returned on November 19, 2007.Footnote 875

Thus, even before he went on leave on October 31, 2007, and prior to the November 5th visit where implements of torture were found under a chair, MGen Laroche said, with the Ouimet article, and his dissatisfaction with the frequency of visits, he was already considering suspending transfers:

Absolument. Comme on était rendu, à ce moment‑là, si on veut, la lumière était jaune. Et à ce moment‑là, la pression était mise sur les Affaires étrangères pour faire les visites comme prévu.

J’ai également échangé avec mon patron au mois d’octobre vis‑à‑vis la fréquence des visites comme telles. Ça, ça l’a amené de la pression sur le département des Affaires étrangères, ça l’a également amené des échanges à différents niveaux pour, justement, effectuer ces visites‑là, visites qui ont eu lieu le 5 de novembre, avec les résultats qu’on connaît.

[unofficial translation] Absolutely. Where we were at that time, if you like, the light had changed to yellow. At that time, pressure was put on Foreign Affairs to make the visits as expected.

I also discussed with my superior in October the frequency of visits as such. This led him to put pressure on the Department of Foreign Affairs, it also led to discussions at different levels for the making of such visits, visits that took place on November 5, with the results that we know.Footnote 876

And again, he suggested all of this was discussed in the presence of the TFPM:

  • O.K. Et tout ce dont vous avez discuté, avant d’arriver au 5 novembre, tout ça, ça avait été aussi discuté lors de la rencontre que vous avez eue avec votre adjoint, avec le Pol Ad, l’officier de détention et l’adjudant Prévost, ça faisait l’objet de discussions à ce moment‑là?
  • Absolument. C’était discuté et même mis sur papier. C’était écrit.

[unofficial translation]

  • O.K. - and everything you discussed before getting to November 5, all of that, this was also discussed at the meeting you had with your deputy, with the Pol Ad, the detainee officer and deputy provost, these were the subject of discussions at that time?
  • Absolutely. It was discussed and even put on paper. It was written down.Footnote 877

Despite the light being yellow prior to the November 5, 2007 site visits, MGen Laroche said he wanted more “tangible” facts about the allegations before suspending transfers.Footnote 878

MGen Laroche was, of course, not in theatre when transfers were suspended following the November 5th visit. Thus, he could only say that he thought, without being sure, the Provost Marshal in theatre was made aware of the reasons for that stoppage. MGen Laroche was certain the reasons for suspension were mentioned at the orders group, that is, the weekly executive council, attended by the TFPM.Footnote 879

MGen Laroche provided evidence to the Commission about what conditions were in place before he felt ready to resume transfers in late February/early March 2008. The measures that satisfied him included the following:

The Canadian Forces also commenced transfers cautiously, transferring only one individual at a time in the beginning, with visits occurring to that transferee before subsequent transfers occurred.Footnote 881

MGen Laroche said no MPs took part in the investigations into the November 5, 2007 allegation, i.e., the actions taken to deal with the November 5th allegations against the NDS. MGen Laroche could only say he thought they were consulted, but suggested the TFPM needed to be asked. From his perspective, DFAIT, CSC, and the RCMP were those most closely involved with the post-transfer portfolio, with DFAIT having the ultimate responsibility.Footnote 882

A form began to be created in October 2007, but not used until transfers resumed in 2008. This form was more developed than that used by MGen (ret’d) Grant, and was meant to assist MGen Laroche in his decision making process for transfers. It was called a “Record of Detainee Transfer Decision”. The form required the person filling it out to consider various factors, including:

The Record of Detainee Transfer Decision provided to the Commission was signed in 2008, by MGen Laroche. In the section immediately preceding his signature was written: “Based on the foregoing, I do not have substantial grounds for believing that the above named detainees face a real risk of torture or other forms of mistreatment if transferred to Afghan authorities at this time.Footnote 884

It is not clear what the distribution was for the document entitled “Record of Detainee Transfer Decision” containing the analysis described above. Attached to this document, in the Commission’s disclosure received from the Government of Canada, was an additional document entitled “Commander’s Review”. Clearly, the Commander’s Review was distributed, for information purposes, to the TFPM.Footnote 885 It was a document that had been used earlier, but which, in the General’s opinion, was incomplete.Footnote 886 Since the Commander’s review was circulating prior to the stoppage of transfers in November 2007, and the Record of Detainee Transfer Decision was not put in actual use until the start of transfers in early March 2008, the Commission can only conclude the Commander’s Review was the transfer document circulating during the time that Maj Zybala was in theatre (until the end of February 2008).Footnote 887 As such, Maj Zybala would likely not have seen a signed version of the Record of Detainee Transfer Decision.

It is also not clear whether Maj Zybala was involved in creating the Record of Detainee Transfer Decision, which was referred to at times as a risk assessment matrix. MGen Laroche seemed to suggest, instead, it was the JAG in theatre who worked on this form, while the TFPM may have been involved in more general discussions about detainee transfer decisions.Footnote 888

MGen Laroche could not recall other allegations of abuse resulting from the site visits following the resumption of transfers at the beginning of March 2008.Footnote 889 MGen Laroche was aware, though, not all visits to Canadian-transferred detainees from March 2008 on resulted in private, oral interviews. On some occasions, there were only visual inspections of the detainees. There were also visits aimed solely at implementing and overseeing capacity building measures.Footnote 890 From his perspective, visual assessments, with nothing more, would not have been sufficient:

Je pense que c’est une multitude de façon qu’on peut confirmer ou non s’il y a des mauvais traitements.

Donc, c’est évident que s’il y a juste une évaluation visuelle et on fait seulement des évaluations visuelles, ce n’est pas suffisant.

Donc il faut interviewer des détenus, travailler avec les responsables de la prison, c’est tout çA. C’est un tout.

[unofficial translation] I think there was a host of ways in which it could be confirmed whether there was abuse.

It is clear that if there was just a visual assessment and only visual assessments were done, that was not enough.

Detainees had to be interviewed and prison authorities worked with, all of that. It was a whole.Footnote 891

MGen Laroche did not recall reading the Federal Court Injunction Decision from Justice Mactavish, released in February 2008, a short time before transfers resumed. Paragraph 112 of the decision states: “As a result of these concerns, the Canadian Forces will undoubtedly have to give very careful consideration as to whether it is indeed possible to resume such transfers in the future without exposing detainees to a substantial risk of torture.MGen Laroche did say it may have come up in discussions.Footnote 892

Finally, MGen Laroche was asked his perspective on when investigations should be commenced. He believed one should err on the side of investigating, when in doubt:

Bien, à vrai dire, vous savez, dans le doute c’est facile. Dans le doute, vous faites une enquête. Parce que lorsqu’il y a quelque chose qui arrive, O.K., puis vous n’avez pas tous les faits, vous faites une enquête dessus. Donc, c’est s’il y a quelque chose qui est fait, qui, à votre sens, n’est pas correct, vous devez faire une enquête.

[unofficial translation] Well, the truth is, you know, when there is a doubt it’s easy. When there is a doubt you make an investigation, because when there is something that happens, O.K., you don’t have all the facts, you make an investigation into it. If there is something that is done which in your opinion is not right, you have to make an investigation.Footnote 893

On this topic, MGen Laroche said he was never questioned by the NIS on the possibility detainees were being abused post transfer.Footnote 894 Nor was he ever questioned by a member of the military police about his decision to transfer the individual interviewed on November 5, 2007.Footnote 895 MGen Laroche said, with obvious emotion in his voice, while no one questioned him afterwards about his decision to transfer this individual, “any individual who is tortured is one individual too many […] it is always unfortunate, regardless of what happens.Footnote 896

12.3.4.2 BGen Juneau

BGen Juneau was MGen Laroche’s deputy commander and a colonel while in theatre in Afghanistan at the time of this complaint. He has served over 27 years in the CF, much of that time in combat units, infantry in particular. He arrived in the Afghanistan theatre on July 25, 2007 and took responsibility as deputy commander on August 1st. He finished his tour in Afghanistan on May 15, 2008.Footnote 897

Much of BGen Juneau’s testimony covered similar territory to that of MGen Laroche. The focus in this section is therefore on the new information that BGen Juneau provided in testimony.

Prior to his deployment, BGen Juneau had no particular information about the detainee issue, other than “the same thing as most people might have seen when they watched the news on television, in newspaper articles, et cetera.BGen Juneau received no briefings on the human rights situation in Afghanistan, although he was aware of the issue, “as most people were, because it was an issue that was very public at that time.Footnote 898 As for the Graeme Smith articles, he did not read them, but knew the detainee controversy related to things said in the media about allegations of mistreatment of detainees. BGen Juneau also did not read any of the international reports, from DFAIT, the US State Department or elsewhere, nor were briefings provided. Although he did not view AIHRC reports, he knew the AIHRC was available to the Afghan government to ensure detainees were treated properly.Footnote 899 He indicated that if General Laroche had read certain of those reports, he had done so of his own accord because these were not documents that were circulated at headquarters for everyone to read.Footnote 900

BGen Juneau was aware a complaint had been filed with the MPCC several months before he went to Afghanistan, but did not know the details of the complaint. It appears, though, he was referring to the Attaran complaint, and not the February 21, 2007 complaint dealing with the legality of the detainee transfers and the MP role therein.Footnote 901

BGen Juneau had some contact with the military police prior to deploying, during parts of the training with respect to detainees. In particular, he met Maj Zybala and some other members of his team.Footnote 902

BGen Juneau knew during his time in theatre that something related to detainees was happening at the Federal Court. He understood there was a possibility the transfers might be stopped. He therefore spoke with legal experts about the Federal Court process to understand whether there would be complications during the mission. BGen Juneau did not recall having discussed the Federal Court or the MPCC complaint with the TFPM.Footnote 903

BGen Juneau understood the second arrangement was signed in May 2007 because there was “a need for a system that was a little more robust, where there was – that created conditions for having better confidence that detainees who were transferred by Canadian troops to the Afghan authorities would be treated according to the rules.” He referred to this as the “maturing process” for the transfer regime, and knew the chief improvement to be the right to visit detainees, unannounced, and to do private interviews. Interestingly, he was not aware that transfers had been suspended in May 2007.Footnote 904

In terms of transition from ROTO 3 to 4, he spoke with his predecessor, Deputy Commander Mike Cessford, about detainee issues, and based on that discussion, he believed there were significant improvements in the situation and there were no major concerns at the point when they took over the mission. BGen Juneau could not recall any such discussions with either Major Hudson or Major Zybala.Footnote 905 Like MGen Laroche, he was not provided with reports on the site visits that pre-dated his time in theatre.Footnote 906

BGen Juneau’s particular duties with respect to detainees required him to provide a level of supervision to ensure all was done in accordance with the procedures in place and the issue had visibility at the senior level within headquarters. BGen Juneau was to pay particular attention to the detainee issue.Footnote 907

BGen Juneau explained the TFPM’s office was at TFHQ, not next to his, but in another building. BGen Juneau had access to the TFPM as much as he wanted, and vice versa. The whole of headquarters was located within a compound 200 metres by 200. The Provost Marshal also had a work area outside headquarters, near the detainee facilities. The NIS commander in theatre was not located at the headquarters compound, and the deputy commander was not actually sure of his work location.Footnote 908

Process-wise, BGen Juneau said an advisor such as the Provost Marshal would normally go through the deputy commander before going to General Laroche. This was the case 95% of the time. For detainee issues, he described the role of the TFPM as ending at transfer:

[…] ses responsabilités commençaient au point de capture et puis se terminaient au point de soit libération ou de transfert aux autorités afghanes. Donc c’est sur cette partie‑là du processus vraiment que portait une grande partie de son attention.

[unofficial translation][...] his responsibilities started at the point of capture and ended at the point of either release or transfer to the Afghan authorities. So it was really on that part of the process that a lot of his attention was focused.Footnote 909

Like MGen Laroche, BGen Juneau’s evidence was unclear when he was asked whether the TFPM was involved with discussions about what was happening after transfer:

Il était impliqué dans certaines discussions qu’on avait. Puis il faisait partie du groupe, de l’équipe dont je parlais tantôt qui traitait du dossier des détenus. Il faisait partie de cette équipe‑là mais vraiment, l’ensemble de ses responsabilités directes au jour le jour était ce que je viens de décrire.

[unofficial translation] He was involved in certain discussions we had. And he was part of the group, of the team I was talking about, that handled the detainees issue. He was part of that team, but really, all of his day to day direct responsibilities were what I have described.Footnote 910

The team he spoke of was a reference to the same committee or advisory group on detainee issues that MGen Laroche had mentioned. BGen Juneau clarified the composition of the committee as an intelligence officer, legal advisors, the TFPM, the detainee officer, the POLAD and others as needed. He explained, though, once the committee came up with a recommendation for or against transfer, he was usually the one to take that recommendation to the Commander personally.Footnote 911

The committee did sit down physically, without the Commander, to make decisions related to transfer, medical issues, etc., but he did not recall conveying information during these meetings to the TFPM about post-transfer mistreatment. He also did not know whether the TFPM had access to the site visit reports. BGen Juneau himself received paper copies from the POLAD.Footnote 912 The committee was called together ad hoc, depending on the nature of the problem being analyzed at that particular point in time. As such, it was quite possible the Provost Marshal would not be there for aspects of the decision-making process that did not relate to his direct mandate:

La nature du comité était composée de façon ad hoc, c’est‑à‑dire dépendamment de la nature du problème qu’on analysait à ce moment‑là, j’appelais dans mon bureau ou dans une autre salle les gens que j’avais besoin de consulter pour le problème qu’on était en train d’analyser. Donc dans certains cas, l’officier de détenus était là. La plupart du temps, il était là parce qu’encore une fois, dans sa fonction de teneur de livres, j’aimais qu’il soit au courant de pas mal ce qui se passait. De temps à autre on appelait le Provost Marshal, de temps à autre on appelait l’officier d’intelligence, le POLAD, “ aviseur “ légal, encore une fois, dépendamment de la nature dont ce qu’on analysait.

[unofficial translation] The nature of the committee was composed ad hoc, that is, depending on the nature of the problem being analyzed at that point, I called people into my office or into another room that I needed to consult for the problem we were analyzing. So in some cases, the detainee officer was there. Most of the time, he was there because, once again, in his job as bookkeeper, I liked him to be aware of pretty much everything that was going on. From time to time we called on the Provost Marshal, from time to time we called on the intelligence officer, the POLAD, the legal advisor, once again, depending on the nature of what we were analyzing.Footnote 913

Moreover, he said the analysis of the risk of torture was not something that was discussed in that committee per se. It was discussed with certain individuals – the legal advisors on some occasions and the POLAD on others, but not within the committee.Footnote 914

BGen Juneau was asked about the distribution of the Commander’s Directive and Supplementary Directive issued by LGen (ret’d) Gauthier, and said Maj Zybala would not likely have gone through such a document in detail. He did say they were “probably distributed fairly widely within headquarters.Footnote 915

Like MGen Laroche, he did not recall receiving any reports about detainees resisting or objecting to transfer.Footnote 916

BGen Juneau could say, with greater certainty, the TFPM was involved in discussions about post-transfer issues when they were thinking of stopping transfers:

Le grand prévôt a été impliqué dans des discussions relativement aux conditions que subissaient les détenus une fois transférés aux autorités afghanes, quand on a commencé à envisager de stopper le transfert où est‑ce que le niveau de risque commençait à augmenter. Et puis on commençait à avoir certaines préoccupations parce qu’en bout de ligne, si on les transférait pas, il fallait les garder.

[unofficial translation] The Provost Marshal was involved in discussions relating to the conditions the detainees were subject to once they were transferred to the Afghan authorities, when there started to be thoughts of stopping the transfer when the level of risk started to increase. And there started to be some concerns because at the end of the day, if they weren’t transferred, we had to keep them.Footnote 917

The concern for the TFPM, of course, was that his work would multiply because he would have to keep detainees for longer. The TFPM was asked whether, if necessary, he was prepared and capable of keeping detainees for longer.Footnote 918 BGen Juneau said it was probable that in those meetings with the TFPM present they spoke about why the transfers needed to be stopped, but he could not recall whether words to that effect were being used.Footnote 919 Thus, again, the evidence is uncertain as to what information and discussions the TFPM was privy to during committee meetings on the topic of detainees.

BGen Juneau did not involve the Provost Marshal in the production of his draft letter to the CEFCOM Commander, entitled in part “Points to Pass on to the Comd CEFCOM [...]Footnote 920 This was the document dated November 4 or 5, 2007 that indicated, inter alia, the TFHQ was not currently receiving any additional information from any source other than DFAIT C4 traffic, that a risk assessment matrix was being developed for the transfer process, and that the frequency of DFAIT reporting was of concern because no reports had been received since September 27, 2007. The memo indicated notwithstanding these and other deficiencies, transfers could continue, but the light was “amber” and concern at the TFHQ was “mounting and approaching the point where the Comd will soon have to seriously consider temporarily halting transfers until the DFAIT/PRT monitoring and reporting situation improves.Footnote 921

BGen Juneau gave direction to his staff to prepare this document. The CEFCOM Commander had asked him to provide the TFHQ assessment of the situation. He was given a few days to prepare it, but the TFPM did not assist and was not consulted. Instead, it was the Acting Chief of Staff and the legal advisors who were involved. The TFPM may have been involved with other discussions, but not the preparation of this document per se.Footnote 922 BGen Juneau explained again the TFPM’s involvement as follows:

Il était impliqué dans les discussions dans le sens que, comme je l’ai expliqué précédemment, si on considérait arrêter le transfert, il fallait lui demander bon, qu’est‑ce que ça veut dire pour lui parce que ça se traduisait en termes concrets. Il y aurait plus de détenus à garder dans la facilité de transfert, à KAF, pour une période plus longtemps. Est‑ce qu’il pouvait le faire physiquement? Est‑ce qu’il avait les capacités de le faire? Est‑ce que les installations le permettaient? Dans ce sens‑là, il était impliqué dans les discussions.

[unofficial translation] He was involved in the discussion in the sense that, as I explained earlier, if stopping the transfer was being considered, he had to be asked, well, what does that mean for him, because that translated into concrete terms. There would be more detainees to keep in the transfer facility, at KAF, for a longer time. Could he do that physically? Did he have the capacity to do it? [...] In that sense, he was involved in the discussions.Footnote 923

The Provost Marshal seemed not to have been present during discussions of risk assessment:

De ce que je peux me souvenir, il n’était pas présent pendant les quelques réunions qu’on a eues pour préparer ce dossier‑là et pour préparer une analyse du risque et dire: O.K., voici où on est rendu. Est‑ce que c’est un risque réel ou est‑ce qu’on est capable de vivre avec la situation présente? Le grand prévôt, d’après mes souvenirs, ne faisait pas partie de ces discussions‑là.

[unofficial translation] From what I can recall, he wasn’t present during the few meetings we had to prepare that issue and to prepare a risk analysis and say: Okay, this is where we are. Is this a real risk or are we capable of living with the present situation? The Provost Marshal, to my recollection, was not part of those discussions.Footnote 924

Similarly, BGen Juneau recalled sharing the November 5th site visit report with his Acting Chief of Staff and his legal advisors, but did not know if the Provost Marshal received it.Footnote 925 BGen Juneau was also not aware whether the TFPM was consulted with respect to the steps deemed necessary before resuming transfers to the NDS. He said during that timeframe the Provost Marshal had his hands full dealing with the surplus of detainees being held at a transfer facility not meant to hold detainees long term.Footnote 926

Once transfers stopped in November 2007, BGen Juneau said the Provost Marshal came to him to discuss detainees because the transfer facility was starting to fill to capacity, creating a problem. During those discussions, though, he did not recall discussing the results of site visits.Footnote 927 BGen Juneau knew that the POLAD’s distribution list for the site visits was “relatively limited”, but said if the TFPM had asked him, he would “probably have shown him a copy”.Footnote 928 He did think the Provost Marshal was aware of the reason why transfers had been stopped, but was not certain.Footnote 929

Maj Zybala left Afghanistan in February 2008. BGen Juneau was asked whether the same type of decision making committee existed when Maj Gribble was in theatre from late February 2008 onwards. It appears the committee did not meet often, if at all, and Maj Gribble’s involvement was almost nonexistent:

De ce que je me rappelle, le dossier des détenus, à partir du mois de ‑‑ au moment où est‑ce qu’on a recommencé les transferts au mois de février, s’était stabilisé beaucoup et puis il n’y avait pas eu de nécessité de réunir le comité en question très souvent. Je ne me rappelle pas d’une occasion où est‑ce qu’on aurait réuni le comité dans le dernier trois mois ou deux, trois mois de mon séjour là‑bas.

[unofficial translation] From what I recall, the detainees issue, starting in – starting when we began transferring again in February, stabilized a lot and there was no need to have the committee in question meet very often. I don’t recall an occasion when the committee met in the last three months or two, three months of my time there.Footnote 930

BGen Juneau’s interaction with Maj Gribble was infrequent. BGen Juneau did not know if Maj Gribble received the site visit reports.Footnote 931

After being shown the risk assessment matrix, BGen Juneau explained the people who saw this analysis were the Commander, the detainee officer, and the intelligence officer.Footnote 932 BGen Juneau’s evidence was not clear whether the risk assessment matrix and the Commander’s Review went together to people such as the TFPM. Ultimately, it appeared, from BGen Juneau’s evidence, the risk assessment matrix did not go to the TFPM.Footnote 933

The MP Technical Directive was shown to BGen Juneau, in particular the portions calling for investigation by the military police of allegations of violations of international law. He was asked whether he saw or experienced any tension stemming from the fact the TFPM was part of headquarters, but also responsible in some way for ensuring the investigation of such allegations? BGen Juneau’s answer was an unequivocal “no”. He understood the MP function, and expected, if they saw something they thought needed investigation, they could do so, free from intervention from the chain of command in place. For example, he had no thought the TFPM should be excluded when discussions occurred about possibly stopping transfers in late October 2007, nor was there ever discussion with Maj Zybala about the idea he might have to investigate aspects of the transfer decisions.Footnote 934

BGen Juneau’s contact with the NIS in theatre was very limited – he had one or two meetings with them related to troops killed in combat.Footnote 935

12.3.5 ROTO 3 – DFAIT in Afghanistan

The Commission also explored the information environment for DFAIT personnel in Afghanistan, and the extent to which, if at all, DFAIT information about detainee treatment made its way to the military police.

The only witness to have provided information about the information environment in Afghanistan prior to and during ROTO 3, from a DFAIT perspective, was Mr. Richard Colvin, who has been with Foreign Affairs since April 1994, and had overseas assignments in Sri Lanka, Russia, the Palestinian Territories, and Afghanistan. At the time of his testimony, he was the Deputy Head of the Intelligence Liaison Office at the Canadian Embassy in Washington.Footnote 936 His service in Afghanistan spanned from late April 2006 to October 2007, during all or parts of ROTOs 1 to 4. His first role in Afghanistan was as the senior DFAIT representative at the Provincial Reconstruction Team (PRT) headquarters in Kandahar City. From there, he became the head of the political section and chargé d’affaires at the Canadian embassy in Kabul.Footnote 937

As political director, Mr. Colvin was the senior DFAIT officer at the PRT. Indeed, at the time, he was the only DFAIT officer. The PRT was the whole of government vehicle for Kandahar, which meant every government department represented in Kandahar had officials or staff there. The intent was to mobilize all the different aspects of Canadian government power in the interests of stabilization and reconstruction in Afghanistan. Mr. Colvin’s work involved, in his own words:

[...] a lot of engaging with Afghans, with local officials, with the governor, with provincial council members, with representatives of non-governmental organizations, with internationals, for example, from the United Nations, with poppy eradication officials. We talked to the military, talked to the police, and tried to build a picture of what was happening in Kandahar.Footnote 938

Mr. Colvin testified information about the collective risk to detainees came to him very quickly after his arrival in Afghanistan. He considered the source “very credible”.Footnote 939

While at the PRT, he issued two reports about detainees that he deemed important.Footnote 940 It was his evidence that the second report, in particular, conveyed “not just a risk, but the fact of mistreatment” of Canadian-transferred detainees.Footnote 941 The first report was dated May 26, 2006, and entitled: “KANDH0029 – Detainees: ICRC concerns over notification by Cdn forces”. The report’s summary indicates that: “Because of inadequate information collection and occasional reporting delays, the [blank due to redactions] ICRC office is losing track of some Afghan detainees. [...] ICRC is “very much taken aback” by the lack of cooperation from Cdn military in theatre.” The response to this email indicates the TFPM at the time, Major James A. Fraser, was the national point of contact on detainee issues in theatre.Footnote 942 As such, his first email dealt with issues related to timely and effective notification to the ICRC, for the ICRC’s own tracking and visitation purposes.

The second report was the one in which Mr. Colvin felt he had conveyed that Canadian-transferred detainees were being mistreated. The most important portions of the document were heavily redacted by the Government, making it very difficult for the Commission to formulate its own judgment on just what the report conveyed. It was sent on June 2, 2006 over the C4 network, and was titled: “KANDH0032 – Kandahar prison and Afghan detainees”. Mr. Colvin explained that over the period in question – May 2006 – he was able to get good information from credible sources about the way in which detainees transferred by the Canadian Forces were being treated post transfer. Mr. Colvin advised the Commission that the source had conveyed that Canada was not meeting its international obligations with respect to transfer, but indicated the basis for this concern was partially hidden behind the national security redactions found at paras 20–23 of his report.Footnote 943 Mr. Colvin attempted, as best he could, to explain how that message was conveyed by him:

  • Thank you. Now,