afghanistan public interest hearing transcript - april 20 2010

8/9/2019 Afghanistan Public Interest Hearing Transcript - April 20 2010

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Military Police Complaints Commission

AFGHANISTAN PUBLIC INTEREST HEARINGSheld pursuant to section 250.38(1) of the National Defence

Act, in the matter of file 2008-042

LES AUDIENCES D'INTÉRÊT PUBLIQUE SUR L'AFGHANISTANtenues en vertu du paragraphe 250-38(1) de la Loi sur la

défense nationale pour le dossier 2008-042

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.

Ottawa, Ontarioon Tuesday, April 20, 2010

mardi le 20 avril 2010

VOLUME 8BEFORE:

Mr. Glenn Stannard Acting Chairperson

Mr. R. Berlinquette Commission Member

Ms. R. Cléroux Registrar

APPEARANCES:

Mr. Ron Lunau Commission counselMr. Nigel MarshmanMr. Matthew McGarvey

Mr. Alain Préfontaine For Maj Bernie Hudson, MajMr. V. Wirth Michel Zybala, Maj Ron Gribble,

LCol (Ret'd) William H. Garrick,CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner

Mr. Khalid Elgazzar For Amnesty International andFor B.C. Civil Liberties Association

Mr. Mark Wallace For Capt(N) (Ret'd) Moore, CFPM

A.S.A.P. Reporting Services Inc. © 2010

200 Elgin Street, Suite 1105 333 Bay Street, Suite900

Ottawa, Ontario K2P 1L5 Toronto, OntarioM5H 2T4

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(613) 564-2727 (416) 861-8720

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(ii)

INDEX

PAGE

Procedural Matters 1

SWORN: MAJOR KEVIN ROWCLIFFE 1

Examination-In-Chief by Mr. McGarvey 44Cross-Examination by Mr. Elgazzar 102Cross-Examination by Mr. Préfontaine 171

Re-Examination by Mr. MCgarvey 173

Procedural Matters 179

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Ottawa, Ontario

--- Upon resuming on Tuesday, April 20, 2010

at 9:00 a.m.

SWORN: MAJOR KEVIN ROWCLIFFE

MR. BERLINQUETTE: Merci. Thank

you.

PROCEDURAL MATTERS:

THE CHAIR: Good morning. Before

we call our next witness, there are a couple of

issues that I would like to address.

The first one is an issue dealing

with documentation, and then, following that, I

want to deal with an issue of order of witnesses

for future testimony.

Now, in follow-up to discussions

last week regarding the failure to receive

documents following the redaction process, I want

to have the matter discussed and addressed. The

redaction process for documents has been underway

for many, or several months, to this point.

Prior to restarting the public

interest hearing, Commission counsel had stated

there were sufficient documents received to start

with witnesses and testimony.

My understanding of the redaction

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process is that it was and will continue from the

start of our hearing.

Last week it was learned that the

previous documentation on Ms. Duschner was to be

available soon and other documents identified Mr.

Gosselin already requested will be needed.

These issues, coupled with

previous requests for DFAIT and other documents,

caused the Panel to ask some additional questions

to ensure we are fully addressing the needs of this

public interest hearing.

For Mr. Lunau, if you could

enlighten the Panel as to the known status of the

process and the expected and required documents?

MR. LUNAU: Thank you, Mr. Chair.

You will recall that on December

the 10th, 2009 at a public case conference, we

indicated that if we received a certain class of

documents by January 22nd, 2010, we felt we would

be in a position to proceed, and those documents

were received.

There was a second category of

documents that were to be produced by February the

19th. Some of those documents were produced, but

the government was unable to produce all of them.


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And so, as you say, the redaction process has

continued and we have, throughout February and

March, continued to receive documents as they were

ready to be produced.

The present status of document

production basically is that on March 16, 2010 we

received a CD with redacted documents, and at that

time we were told that there were less than 50

remaining documents under the control of DND to be

produced in response to the Blanchette summons, and

that more than 4,000 pages of documents were being

reviewed in response to the Edwards summons. These

are basically the DFAIT documents.

The government indicated the

documents would be provided to the Commission as

they became authorized for public release.

On March 23, 2010, we received 45

documents from the government, which I believe

represented the final response to the Blanchette

summons.

Since then, we haven't received

further documents, and the outstanding document

issues at present seem to be that, first of all,

the documents that are being reviewed in response

to the summons to Mr. Edwards --


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THE CHAIR: What was the date of

the Edwards summons?

MR. LUNAU: I will have to --

THE CHAIR: Approximately.

MR. LUNAU: Apparently it was

updated in October 2009.

THE CHAIR: 2009? Thank you.

MR. LUNAU: So the response to the

Edwards summons is still pending.

Then subsequent to the hearings

commencing, certain other documents have been

identified and requested. They are the complete

site visit reports for Mr. Gosselin, the documents

that we were advised had been identified relating

to Ms. Duschner's evidence.

There is a letter being sent out

this morning asking for production of documents

relating to Lieutenant-Colonel Boot and, in

particular, his evidence about the enquiries or

investigations he made following the April 2007

Graeme Smith article.

On April --

THE CHAIR: Just to be sure, those

documents had not been requested before relative to

Lieutenant-Colonel Boot?


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MR. LUNAU: The first request was

the oral request made during the hearing itself.

THE CHAIR: Okay, that's fine.

MR. LUNAU: On April the 1st, we

received a bundle of documents from counsel for the

complainant that he had obtained as a result of an

Access to Information Request that had not

previously been disclosed to the Commission.

Those documents have been filed as

Collection U in the redacted form they were

obtained under the Access to Information Act, and

we have written to government counsel asking for

unredacted versions of those documents.

The other issue that is of concern

to us is the issue of document selection and

production by the government. It is essentially an

ex parte process, where the Commission advises the

government of classes or categories or types of

documents it would like to have produced, but

ultimately the review of government records and

selection of documents that are going to be

produced is entirely within the hands of the

government.

So at this point we cannot say,

with any assurance or certainty, that all documents


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relevant to the complaint have been produced. An

example of that is the fact that Mr. Champ was able

to access documents under the Access to Information

Act that were relevant to witnesses who have

appeared or who are going to appear before this

Commission, but which had not been disclosed to us

in this process.

So that is a brief summary of

where we currently stand with respect to the

production of documents.

THE CHAIR: In regards to the

DFAIT documents, so you believe it is really

unknown as to how many -- that's the one that there

was 4,000 more?

MR. LUNAU: That's correct. So

the last correspondence we had on those documents

was March 16, 2010.

THE CHAIR: Mr. Préfontaine, I

just want to make sure I got this right. It is the

National Security Group which is an arm of Justice,

I take it, who is doing the redactions?

MR. PRÉFONTAINE: Well, actually,

you are compressing the process to the point where

it is misguiding, Mr. Chairman.

Obviously the first part to the


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process is that the Commission has to request

documents, because it is your investigation.

But the request has to obviously

fall in line with what the Federal Court has said

the mandate of this Commission is, and it also has

to respect the wording of the request itself. And

in that regard, there are two things that Mr. Lunau

and I have a difference of opinion about.

The first is that obviously 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 Canadian Forces, Department of Foreign

Affairs or other portions of the Government of

Canada conducted its business.

So that is something that I am

very mindful of.

We went to the court. The court

decided, and we all have to abide by that decision.

As a result of that Federal Court

decision, the Commission has revised the summonses,

and in the case of the two documentary summonses,


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the one directed to DND and the one directed to

DFAIT, has added -- well, it has done two things.

Either it is requesting specific documents, which I

understand are not an issue because they have

already been produced, or the Commission is making

open-ended type of requests.

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 military police 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. As I have stated

to my friend, Mr. Lunau, on a number of occasions,

I recognize an enquiry is something that

progresses. If there are new lines of enquiry

which, based on the evidence, become relevant to

the Commission's mandate where previously they

thought they were not -- we thought they were not


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relevant, then obviously we will proceed with a

processing of these documents.

So the documents are first

assembled by the institutions affected, either

DFAIT or DND or the Canadian Forces. They are then

reviewed for compliance with the Commission's

request and compliance with the Federal Court's

declaration.

That group is then reviewed by a

group of subject matter specialists, and they're

limited in number. They review the documents to

identify whether those documents contain any

information which, if made public, could be

injurious to national security, international

relations or national defence. So they raise

flags.

That collection of documents for

which flags are raised is then forwarded to the

National Security Group, which the Attorney General

of Canada has delegated his day-to-day

responsibility in terms of revision of documents

pursuant to section 38.03 of the Canada Evidence

Act.

That group collects the

information, performs a challenge function, ensures


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that all stakeholders have the occasion to comment,

produces a briefing note to the authorized

delegatee of the Minister.

That delegatee then performs a

further function of challenge to ensure that the

claims are valid and are not overbroad. That

sometimes results in revisions, and sometimes these

revisions have a ripple effect, because if the

official is unconvinced about a claim, that claim

-- for protection -- that claim might appear in

different documents, and therefore there is a

fairly labour-intensive effort required to ensure

that everything is lined up.

Once that process is complete,

then a letter of authorization is signed and the

documents are delivered to the Commission.

THE CHAIR: That's fine. In

regards to the DFAIT documents, I take it from that

you have been having discussions with somebody.

You're saying that some of them don't -- are over

and above this public interest hearing's mandate.

So from the sounds of it, you have been having

discussions with them?

MR. PRÉFONTAINE: You mean with my

clients?


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THE CHAIR: With whoever is going

to end up giving us the documents. Have you talked

to anybody from those agencies?

MR. PRÉFONTAINE: Recently?

THE CHAIR: Yes.

MR. PRÉFONTAINE: No.

THE CHAIR: Since our discussion

that we had last week relative to Gosselin and

Duschner, which I don't believe are issues --

MR. PRÉFONTAINE: Yes, they are,

especially Gosselin, because it is overbroad in two

categories. The first one is that you request

documents which are -- would have been created

after the time limit of the complaint, after June

12, 2008.

THE CHAIR: No, I don't think that

is necessarily the case.

MR. PRÉFONTAINE: That is the

letter of -- the letter from Madame Barot wanted to

have all reports, including those that were drafted

in August of 2008. So going by that letter, there

is already an issue of overbreadth there.

The Gosselin reports, I think,

have already been, in large part, disclosed to the

Commission. It is just a matter for my clients and


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they have been advised to ensure that everything

that he has produced that falls within the temporal

parameters of this inquiry has been identified and

produced.

THE CHAIR: Mr. Gosselin in his

testimony indicated that there were eight reports

or eight incidences of abuse between the dates.

Now, his dates ended up to August of -- the August

date.

MR. PRÉFONTAINE: Sure.

THE CHAIR: But it also started

much before those. So we need to know where those

documents fell in between those dates. Are you

telling me that all those documents fell outside of

between June 12th and August?

MR. PRÉFONTAINE: That is not what

I am telling you.

THE CHAIR: I am asking you that.

MR. PRÉFONTAINE: I'm not saying

that. I don't know the dates.

THE CHAIR: We need to know,

because the documents relative to those are I think

of interest to this public interest hearing. I

appreciate the issue of the redaction for national

security issues or security issues, but those


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documents are still relevant to this interest.

MR. PRÉFONTAINE: I disagree

there, Mr. Chairman, and let me explain to you why.

The relevancy you see in the

documents stems from the fact that they would have

been -- because that is already in the evidence

from different DFAIT witnesses. These documents

were not shared with MPs or within their means of

knowing.

So the only possible relevance

that you could see is that they would have been

forwarded to the Task Force Commander.

And the purpose of requesting

those documents would be for you to conduct an

investigation which Amnesty says ought to have been

conducted by the MPs into whether the order given

by the commander was legal or not.

But that is the very type of

springboard the Federal Court said you couldn't

use, because that would be looking at how the

Government of Canada deals with the transferee

issue. So there is an issue there of relevance on

its face.

THE CHAIR: Have you seen these

documents?


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MR. PRÉFONTAINE: Well, I have

seen those that were produced here.

THE CHAIR: Have you seen the

documents that Mr. Gosselin is referring to?

MR. PRÉFONTAINE: I have not.

THE CHAIR: So how would you know

that they have not been sent or -- sent to other

places, or how do you come to that conclusion?

MR. PRÉFONTAINE: Because your

counsel has asked that question to Mr. Gosselin.

He has answered the question, and, as far as we can

tell -- and I have the same information from my own

clients. As far as I can tell, these weren't

shared with MPs, but that is the purpose of the

enquiry, and it is a fair one, to ask the subjects

whether they had received those messages, and, if

they didn't, whether there were -- their means of

knowing.

But that question is not answered

by asking, for example, General Larouche or General

Gauthier why did they not share documents with the

MPs.

THE CHAIR: Well, I think counsel

has probably lots of questions to ask other

witnesses, but it seems to me that those documents


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are still going to be relevant to this public

interest hearing, and I would like to pursue this

further on that point.

Mr. Lunau.

MR. LUNAU: 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.

With respect to the Gosselin

documents and the assertion that they fall outside

the time period and, therefore, they're not

relevant or they may not be relevant, I can think

of at least two reasons why the date of the

document would not be determinative of whether

they're relevant to the complaint.

The first would be that if the

site visit reports relate to transfers that


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occurred before June 12th, 2008, the site visit

reports would be relevant, in my submission, no

matter when the site visit was made.

And, secondly, the site visit

reports may refer to or relate back to reports that

were issued before June 12th, 2008.

So it is not a simple matter of

looking at the documents saying, Oh, it is dated

June 15, 2008; therefore, it is not relevant.

One has to look at the subject

matter and make an assessment, and my respectful

submission to my friend would be that's not a

unilateral decision to be made by the government.

My friend, for whomever he is

speaking at the moment, the government or the

subject, regardless, they do not unilaterally

decide what falls within the Commission's

jurisdiction following the Federal Court decision.

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


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transparency to us.

And the tests seem to be: First

of all, does the name of am MP appear on the

document; secondly, is there otherwise some

evidence MPs sought?

Now, if I could just stop there

for a moment, Mr. Préfontaine said that there is a

disagreement between us, and this is certainly one

of the points of disagreement, because, again, my

submission, it is not for the government to decide

if there is evidence that MPs saw the document or

not. That, in my understanding, is the

Commission's job to determine if there is evidence

that MPs sought. The government's job is to

produce the documents.

The Commission's job is to then

make a determination whether the information in

those documents was within the means of knowing of

MPs, and you cannot tell that just by looking at

the face of the document.

We have heard lots of oral

evidence about documents who have intended

recipients and were given to people whose names do

not appear on the face of the documents, and so on.

So we have -- while I appreciate


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that we have received a large volume of documents

from the government, that process is not, by any

means, fully satisfactory or fully transparent to

us.

Just one final point that my

friend has raised is that when you are looking into

whether there is a failure to investigate on the

part of military police, one aspect of that is

whether they looked at information they had the

means to compel production of themselves in the

course of furthering their investigation.

So that is another ground on which

these documents, regardless of the face date, could

be relevant to the Commission's enquiries.

MR. PRÉFONTAINE: If I may?

THE CHAIR: Absolutely.

MR. PRÉFONTAINE: Two points.

The first is the last one that Mr.

Lunau raised, which I believe the submissions on

the "means of knowing" had clearly identified as

being outside of the Commission's purview, and the

reason for that is very simple.

My friend says information was

available if a search warrant could be obtained,

and that should inform your review of whether the


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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 game for litigation.

THE CHAIR: I don't really need a


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lecture on litigation, but what I do need is an

answer relative to documentation production.

MR. LUNAU: Sir, could I just

respond?

A couple of points. With respect

to the transparency of the process, the point I was

getting at is we have no idea what the universe of

documents is that the government is reviewing, and

those documents that the government reviews and

unilaterally decides don't meet their unilateral

test we will never see.

We will not even know they were

looked at. So that is what I mean by lack of

transparency.

Secondly, I am just -- I am

flabbergasted that my friend would compare the

government's position in a public enquiry to

adversaries involved in a litigation process. I

mean, that to me is just an astounding proposition.

THE CHAIR: I don't disagree with

that, and that is, hence, my comment on litigation.

I see it as a different issue.

We said from the outset on this

that fairness is one of our processes that needs to

be undertaken throughout here.


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If I am listening to you, you have

said initially that the Gosselin documents, if I

heard it right, are basically off limits; is that

what you're telling me?

MR. PRÉFONTAINE: I think that

their relevancy to the proceedings is very much in

question. That doesn't mean we won't produce them,

because my friend has indicated that he thought he

wanted them. Does that mean that every time

there's a new line of documents that somebody

thinks is relevant, we have to say, Oh, yeah, it is

relevant? No.

I think fairness demands that we

raise our concerns, which we have, and then we

proceed.

THE CHAIR: At the end of the day,

the relevancy, in terms of following the Federal

Court rulings, I guess, is going to fall with us in

terms of making sure that we can fall within that.

MR. PRÉFONTAINE: Well, not

really, because the Federal Court has set

parameters. As public officials, we are bound to

apply those parameters, and the Federal Court has

added that if you went beyond your mandate, then

you would be exceeding your jurisdiction, which is


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not something public officials are meant to

support.

THE CHAIR: I agree. Hence, we

require the necessary documentations that fall

within the scope of this public interest hearing so

that we can do what needs to be done.

MR. PRÉFONTAINE: I quite agree

that if it falls within the scope of the enquiry,

there is no debate. The debate arises when you

seek to push the envelope to get, for example,

information which is internal to DFAIT or to other

portions of the Canadian Forces, without having

first established an evidentiary footing that this

is information that either the MPs, the subject of

this complaint, knew or had the means of knowing.

THE CHAIR: You and I could

probably go around for another hour on this. The

bottom line is you say you are going to check into

the production of the Gosselin documents?

MR. PRÉFONTAINE: We have already

done that, Mr. Chairman.

THE CHAIR: One more question.

The Duschner documents?

MR. PRÉFONTAINE: It is already

done.


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THE CHAIR: Okay. Are you -- so I

take it you have talked to somebody relative to

Duschner and Gosselin; correct?

MR. PRÉFONTAINE: I am not sure

where the question is going. Obviously I speak to

my clients, but that is something that I am not at

liberty to disclose.

THE CHAIR: Your clients you're

referring to as --

MR. PRÉFONTAINE: The Government

of Canada, the subject that I represent before this

enquiry and all of the witnesses who have retained

our services.

THE CHAIR: Let's just stick with

the Government of Canada for now.

MR. PRÉFONTAINE: I have already

advised, Mr. Chairman -- and I can repeat it if it

is of assistance to the Commission -- that I have

forwarded the request to the appropriate officials.

THE CHAIR: Okay. And in regards

to forwarding that request, what is the response in

terms of the timing for that?

MR. PRÉFONTAINE: That is not

something I am at liberty to discuss with you.

That's covered by solicitor-client privilege.


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THE CHAIR: No. I am referring to

-- you are referring to the Government of Canada

can't tell us how long it is going to take to get

the documents?

MR. PRÉFONTAINE: You are asking

me to disclose discussions I have had with my

client, the Government of Canada, about an issue,

and my answer to you is this is covered by the

solicitor-client privilege.

The documents will be given to

your counsel when they are good and ready.

THE CHAIR: Who is it that you can

identify that can come here and tell this Panel as

to when we may receive or when we may be able to

have information or documentation relative to this?

MR. PRÉFONTAINE: I do not

perceive that it is my obligation to answer that

question.

THE CHAIR: So are you suggesting

I need to issue a summons to somebody?

MR. PRÉFONTAINE: I am not sure

what you are getting at, Mr. Chairman.

THE CHAIR: I want to hear from

somebody, other than saying that the documents are

going to come when it is good and ready. I think


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that was the phrase.

MR. PRÉFONTAINE: It was.

THE CHAIR: That to me is bizarre.

MR. PRÉFONTAINE: In what way, Mr.

Chairman?

THE CHAIR: This is a public

interest hearing. We have witnesses that are

testifying. There is documentation there. These

information requests, obviously the Gosselin ones,

I understand these documents were requested even

previous to that, is that correct, in some form?

MR. PRÉFONTAINE: Actually, the

answer to your question, Mr. Chairman, is that in

some form they would have fallen in the DFAIT

subjects.

THE CHAIR: Yes.

MR. PRÉFONTAINE: But obviously as

soon as we tried to switch horses in the document

production and review stream, then everything that

is in that larger class, the DFAIT documents, gets

pushed back. We have had this discussion with your

counsel on a number of occasions.

If they only gave us an order of

priority that we could stick to and therefore

studiously try to push the document through the


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review process, we would be getting somewhere, but

what happens is that new requests are placed with a

higher level of priority, which requires us to down

tool on our efforts, move to something else,

collect the documents and go through the process I

previously described.

That's, in part, the reason why

the production of documents has taken so long.

MR. LUNAU: We have always tried

to facilitate the production of documents by, on at

least two occasions I can think of, prioritizing

the manner in which we wanted to have documents

produced.

We have even assisted or offered

to assist by providing resources to the government

to help them get through this process faster, an

offer which, for their own reasons, they have

rejected.

But I don't accept my friend's

comments at all that we are somehow to blame for

the fact that, today, my friend will sit here and

tell the Commission basically that it is none of

their business when these documents are going to be

produced.

MR. BERLINQUETTE: I guess the


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question I would ask, and I am sure the public

would ask: How many resources -- I am sure you

won't be able to answer this, but how many

resources are really applied to this?

If this is a priority for this

Panel and this hearing, public hearing, and to the

public at large, how many resources are being

applied to this document process?

If we are asking and are taking

months and months, you would think somebody would

-- it click in somebody's mind, Maybe we should

address and put more resources to this.

I come from the federal

department. When there was a priority, sure, we

had people that did the access to information

requests, but when it was a priority, we found

resources from outside or within to deal with it to

get it out.

It doesn't seem to have -- no

priority has ever been placed on this, and that's

the perception we get from this. It is a slow

process. You will have to wait. We will tell you

when you are going to get them.

I mean, there is a lot of

perception here and a lot of questions should be


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asked, and they're not being answered today, that's

for sure, not in my mind.

MR. PRÉFONTAINE: You want me to

address your point, Mr. Berlinquette?

MR. BERLINQUETTE: The resources,

yes, I would like to know how many resources.

MR. PRÉFONTAINE: I have no

precise idea of the number of resources. I know it

is a number of persons per department. In the

National Security Group, I think there is at least

half of their resources which is devoted to this,

understanding obviously that the National Security

Group is responsible for all issues relating to

section 38, and there are other cases where the

issue arises, so can't down tool exclusively to

work on this.

But the number is misleading, Mr.

Berlinquette, because the analysis that has to be

performed to see whether disclosure of information

would be prejudicial to one of the three stated

grounds of interest requires people who are

informed, who are able to take into account what

the security community calls the domino effect;

that is to say whether a piece of information

which, by itself, seems to be innocuous could, to


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an informed reader, be the missing piece of a

puzzle that they have been trying to put together

for quite a while.

And that level of scrutiny

requires obviously -- and it is the same group of

persons who look at the documents to ensure that,

for example, the same type of information appearing

in a DND document is going to be redacted in a

DFAIT document, and vice versa.

So more resources is only a

partial solution, and we have increased, over the

entire course of this proceeding, the number of

resources put, but there is a finite limit to what

that can accomplish.

MR. BERLINQUETTE: I guess my only

comment to you, Mr. Préfontaine, would be that in

the six and nine months that we have been waiting,

and over a year for some documents, we could have

trained the informed readers, other informed

readers, to deal with this.

If we're relying just on one or

two or three informed readers to do this, we will

be here for a long, long time. That is unfortunate

to say.

THE CHAIR: You spoke earlier of


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priorities. So I take it, then, you have had some

discussions with somebody. Can you tell us what

those priorities are?

MR. PRÉFONTAINE: The priorities

that we had agreed to with your counsel we have

reached the bottom of, because the bottom of that

list of priorities was the DFAIT documents.

We had first to look at documents

for subjects, and going by memory -- and I'm sure

Mr. Lunau is going to be in a position to correct

or add if I miss something -- documents related to

witness -- well, subjects, witnesses. There were

the Colvin documents that had to be hived off that

the Commission wanted to have as a priority, then

the DND -- sorry, the CSC documents, the DND

documents, and then the DFAIT documents.

THE CHAIR: As of today, what are

the priorities?

MR. PRÉFONTAINE: Well, we're

doing the DFAIT documents. We have received last

week word that the Commission wanted the Gosselin

documents, which are in the DFAIT documents. So if

they need to be produced separately, that would be

a priority.

The Duschner documents obviously


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--

THE CHAIR: And part of that --

MR. PRÉFONTAINE: No, they're not

part of that.

THE CHAIR: They're not part of

that, but the Gosselin documents are part of the

DFAIT documents?

MR. PRÉFONTAINE: Correct.

THE CHAIR: Let me put it this

way. I find the response relative to -- I forget

the exact words, because I don't want to misquote

you -- you will get them when we get them, or words

to that effect, to be inappropriate, if I could use

that word.

I don't want to use a word that is

going to get misplayed, but I just find it an

inappropriate answer.

What I am going to do is we want

to -- I want to discuss with my partner here what

our next steps are. And, in the meantime, we are

going to take about 15 minutes and you can discuss

with counsel to see -- your co-counsels to see if

there is some better answers, other than, 'You will

get them when we get them or you'll get them when

we're ready' because I find that to be close to


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offensive in terms of not only to this Panel, but

also to the public on behalf of the government

responding -- government counsel responding in that

manner.

So hopefully you can have some

discussion with your counsels to have some idea, to

see if there is a better answer to that, something

that would be more appropriate in terms of helping

this Panel, to deal with the needs of this Panel in

terms of a public interest hearing.

So we are going to take 15

minutes, and we will come back and hopefully we

will have some better answers.

--- Recess at 9:42 a.m.

--- Upon resuming at 10:00 a.m.

MR. BERLINQUETTE: Take a seat.

Thank you.

MR. PRÉFONTAINE: With your

permission, Mr. Stannard, a few words.

THE CHAIR: Thank you.

MR. PRÉFONTAINE: Your parting

comments still resonate in my ears, and obviously I

didn't mean to offend either the Commission, the

members of the Panel or Mr. Lunau.

The frustration you heard in my


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voice is that you are asking me to do things I

can't do. As opposed to ordinary litigation where

counsel has a fair amount of control, counsel in

this case has no control over the section 38

process, save and except to tell you when it is

complete.

So my apologies if offence was

taken. I did not intend any.

In relation to the Gosselin

documents, I have confirmation that actually the

Commission already has 20 of the 21 site visit

reports, and the last one is in the process of

being revised with a view of being produced to the

Commission.

So the Gosselin issue, report

issues, are actually one which has been resolved

and was before the issue arose. It was just a

matter of connecting the dots together so that you

could be satisfied.

THE CHAIR: Just so I am clear,

does that include all of the site visits between --

up to August, but even to June 12th. I forget the

front end date of that. After May to June or July?

Does that include site visits during that period,

those 21?


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MR. PRÉFONTAINE: After May 2008?

THE CHAIR: Yes.

MR. PRÉFONTAINE: I am not sure of

that, simply because the dates have been redacted

in the documents. So I will find out for you.

THE CHAIR: Maybe this is another

point you could help me with. What has the date

got to do with -- where does the date have anything

-- redaction?

MR. PRÉFONTAINE: I was not

involved in that process. I am not involved in

that process, so I can't speak to it.

The only thing I know for certain

is that somebody has made the connection between

the dates of the visits and injury to one of the

three heads of injury, that the injury was

explained. It was considered by those who are

tasked with consideration of these issues, and they

have agreed that disclosure of the information

would be injurious.

Now, Mr. Lunau last week has

requested that we revisit the issue yet again.

That request has been relayed to the appropriate

officials, and that is all I can provide for the

moment.


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THE CHAIR: So you can't tell me

whether or not the Gosselin evidence of the eight

additional reports relative to site visits are

included in that 20 or 21, because the dates have

been redacted. So you can't tell me that, then;

right?

MR. PRÉFONTAINE: At this moment,

I don't have that information.

THE CHAIR: How can we -- I am not

trying to be offensive to you, either, but how can

we get that kind of information? That information

is relevant, I believe, to the matter of weight,

and, at the end of the day, how it all plays out is

another issue.

But these documents, I believe,

are relevant to this public interest hearing, and I

am hearing you say that we've got 20 of the 21.

That's great, but you can't -- and respectfully --

you can't tell me whether or not that includes the

visits between May and June or July or August?

MR. PRÉFONTAINE: As we sit here

now, no, I can't. That's unfortunate. I would

have to go back to the office and obtain the

information.

THE CHAIR: I am going to give you


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a chance to do that, so give me one more.

Was there anything further?

MR. PRÉFONTAINE: No. That's all

I wanted to report.

THE CHAIR: Okay. Here is what I

would like.

As you just stated relative to the

Gosselin issue, and in addition to that, if you

could come back at the end of the day, after you

get instructions from your clients -- now, I know

you wear two hats here. You've got hats from the

subject officers and you've got the government.

So get instructions from your

clients, whichever that may be, and report back as

to this information, as to when these documents may

be available and what they might include in terms

of -- I am not talking about content. I am talking

about whether they're -- especially in the Gosselin

issue, whether they're going to include the eight

visits or the eight site visits or eight reports.

And -- and in addition --

MR. PRÉFONTAINE: Just for

clarification, when you say eight reports --

THE CHAIR: The ones that Mr.

Gosselin was referring to.


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MR. PRÉFONTAINE: You mean the

eight allegations?

THE CHAIR: Yes, that's fine.

MR. PRÉFONTAINE: Okay, because

they might be contained, for all I know, in a

single report.

THE CHAIR: I don't believe so. I

think he was saying, his evidence was -- because I

asked him about the reports, and he said they were

up to 100 pages, and I don't think his report would

be 100 pages.

MR. PRÉFONTAINE: I am not in a

position to confirm or infirm. All I'm suggesting,

Mr. Stannard, is I remember the number "eight", how

it expresses itself in the reports --

THE CHAIR: I asked him a

follow-up question. I asked him how many pages

that would be, because I was interested in the

"redaction process", like, what would it take. He

said something less than 100 pages, I believe was

his evidence.

So I don't think that would be one

report. That is going to be multiple reports.

MR. PRÉFONTAINE: I quite agree

that when he was answering your question, he was


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addressing the number of visits and the site visit

reports that he would have generated after

November. And I distinctly remember, as you do,

that he spoke to 100 pages.

THE CHAIR: Anyways, I think it is

multiple reports.

The other thing that was asked for

in that is there were there any other follow-up

reports or action reports. So along with that goes

anything that comes out of that.

MR. PRÉFONTAINE: Then that raises

the question of relevance. How is that relevant to

this Commission's investigation into what the MPs

knew or had the means of knowing?

THE CHAIR: I guess until we see

the reports, then how does anybody know?

MR. PRÉFONTAINE: Well, you see,

that brings us back full circle to where we were

two years ago.

THE CHAIR: Not really. So when I

am sitting here, I am sitting here -- if we're

playing a game of cards, you're the only one that

sees the whole hand. There has to be some

information that will determine what other people

may deem to be relevant.


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So I guess, in following up that,

maybe you could tell me who the person is that

could come forward and give us a point of contact,

in terms of who is overseeing the relevant document

searching, and maybe that is questions we could ask

of that person so we get an understanding of it.

It all falls into the -- exactly

what you are just saying.

MR. PRÉFONTAINE: I hear you.

THE CHAIR: Is that understood?

MR. PRÉFONTAINE: Clearly

understood, Mr. Stannard.

THE CHAIR: Okay. So before I

move on -- we will hear from you at the end of the

day. Having regards to that, then, we won't

proceed --

MR. PRÉFONTAINE: Sorry, I will

seek instructions and I will report as soon as I

can, hopefully by the end of the day, if I can.

THE CHAIR: Well, see what you can

do between at breaks and whatnot, and at the end of

the day we will talk about it and we will go from

there. Maybe you could provide information. Maybe

you won't be able to, but we will at least address

it before the end of the day, because I also would


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like to address the order of witnesses, and we will

push that -- we will address that issue also at the

end of the day or maybe tomorrow morning, or

something like that.

So if you can't get the answers by

the end of the day, maybe tomorrow, but at least

you could tell us at the end of the day where we're

at, if that is fair?

MR. PRÉFONTAINE: It is.


Just to make sure that I haven't

left other counsel out of the loop here, if you

have -- do you have any questions representing the

complainant --

MR. ELGAZZAR: Just --

THE CHAIR: -- or just comments?

MR. ELGAZZAR: That's fine, Mr.

Chair.

Just for the sake of brevity, I

will just state that on behalf of our clients we

adopt and endorse the concerns raised by the

Commission and by Commission counsel regarding the

government's approach to documentary disclosure in

the course of this public interest hearing.

We also echo the frustration as


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has been addressed by the Panel with respect to

documentary disclosure.

In our view, it is particularly

troubling that the government, whose lawyers also

represent the subjects of this complaint and the

majority of the witnesses, is taking it upon itself

to -- the role of ultimate arbiter of what is and

isn't relevant.

The government, in our view, in

that regard is usurping the Commission's function,

which may directly affect the Commission's ability

to get to the bottom of the issues at play.

Finally, I will just state that I

think it is quite telling that the counsel, counsel

for the government and the subjects and the

witnesses, views this public interest hearing as

akin to an adversarial court process.

Obviously that is not the case,

and it would be our hope that they would take that

into account when approaching the role with respect

to documentary disclosure.

THE CHAIR: Mr. Wallace?

MR. WALLACE: I have nothing

helpful to add at this point to this debate now.

Thank you.


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THE CHAIR: Okay, thank you.

Anything further, Mr. Lunau? Mr. Préfontaine just

in response? No? Okay, Mr. Lunau.

MR. LUNAU: No, sir. I have no

further comments.

THE CHAIR: How long do you

believe your first examination of the next witness

is going to take, just in ballpark?

MR. McGARVEY: Good morning, Mr.

Chair. We don't expect this witness to be

particularly long. My examination -- I wouldn't

think, given the time that's evolved so far, that I

would get done before the mid-morning, but I

probably could get done by the lunch break.

And my sense is there are not a

huge amount of follow-up questions for this

witness. Of course I can't --

THE CHAIR: You don't know.

MR. McGARVEY: -- predict what my

friends might do, but I don't think this is a

particularly lengthy witness in the big scheme of

things, because his primary role at CEFCOM predates

the period in question and is largely contextual, I

suppose you might say.

THE CHAIR: Okay. We will


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you and it will all be audible and recorded. So I

think for all intents and purposes you may as well

leave it on for the time being, unless you wish to

turn it off at any given point.

Thank you for coming this morning.

If I could just start with your background with the

Canadian Forces, you are a retired Major with the

Canadian Forces and a former military police

officer; correct?

A. That's correct.

Q. Can you just describe for the

Panel a little bit about your history in the

Canadian Forces and with the military police?

A. Certainly. I joined the

military police August 1980 as a private, went

through the ranks to sergeant, basically always

with the military police, I should say; during

those years, did normal duties as a military

police, patrol, investigations, field military

police work, and then was trained as a bodyguard

sent to Europe to protect a Canadian general that

was basically being targeted.

Did five years in Germany --

actually, Calgary before Germany; Germany back to

Ottawa; Ottawa, worked on drug policy review, a


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urinalysis program for the Canadian Forces; was

basically offered my commission as an officer, sent

to university, Carlton, did a criminology degree.

Then carried on as an officer, basically had

postings of Kingston; was in charge of the military

police in Kingston, Base Trenton, and -- sorry, and

Base Borden.

During that time frame, did

several tours outside the country, such as Bosnia,

Haiti, Afghanistan twice, Pakistan, Israel and

Syria, and criminal investigation into Africa.

So that is my operational

experience.

I have two masters' degrees,

executive MBA and master's in management, and did

just about a year of law school at Queen's before I

was sent to Israel.

Q. And you are currently a

professor at -- is it Loyalist College?

A. Loyalist college, justice

studies program.

Q. You have retired from the

Canadian Forces?

A. Retired just following my

last tour in Afghanistan in 2008, August 2008.


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Q. Thank you. You indicated

that you had two tours in Afghanistan. Could you

please tell us when the first one was?

A. Sure. The first one was

summer of 2005, where I was sent to Kandahar for

theatre activation, so that is pre Roto 0, before

the rotation moved from Kabul to Kandahar.

And that was to set up the mission

to -- my role was the force protection side,

looking at the security and policing-type functions

for the roto coming in.

Q. I don't know if this has ever

been clarified for the public, but the tours of

duty in Afghanistan, they occur over a period of

time and they are given a number, Roto, rotation

number 1, rotation number 2, that kind of thing; is

that correct?

A. Correct, except for the --

when we are doing theatre activation. That is not

a rotation.

Q. So you were before the

rotations started?

A. Correct.

Q. Because you were in the

planing and start-up phases?


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A. Sure. I worked at the joint

operations group at that time in Kingston, and our

role was theatre activations and mission

close-outs, those kind of roles, and planning for

future missions that the Canadian Forces were

involved in.

Q. Just to further clarify, the

Canadian Forces were already in Afghanistan, but

simply were not taking the lead role in Kandahar,

and your role was to help with the planing of us

taking over the lead role in Kandahar; is that

correct?

A. Correct. Kandahar was

basically a US-led mission, and so it was under the

OEF, Operation Enduring Freedom, the US mission.

So it was basically working with them as NATO and

the Canadians moved to Kandahar, and discussing,

you know, what needs to be discussed at that time.

Q. So when you were there during

the summer of 2005, were the Canadian Forces, you

know, taking and/or transferring detainees at that

time or was that all before that was even

occurring, in Kandahar, anyway?

A. There was no Canadians in

Kandahar, other than us 30 theatre activation


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senior officers that were trying to set up for the

mission. So the answer is "no".

Q. And we were situated

elsewhere in Afghanistan. Do you know if there

were detainee transfers occurring with the Canadian

Forces prior to, I guess, Roto 0, when we moved

into Kandahar?

A. I can't speak to that.

Q. Fair enough. Were you

involved at all in the preparation or planning

stages of detainee handling for the time that the

Canadian Forces did go to Kandahar?

A. Are you talking about while I

was in theatre in Kandahar or previously?

Q. Well, okay. Maybe we should

go over the history a bit after you leave Kandahar.

You're there for the planning. Was there planning

with respect to detainee transfers while you were

over there in the summer 2005?

A. It was one of the things on

my checklist to look at, but, based on the

information I had at the time, it was not something

that the Canadian Forces were yet ready to deal

with.

Q. Okay.


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A. So I didn't look at it in any

great detail.

Q. Following that preparatory

rotation, I understand you had a couple of

postings, and then you took a position at CEFCOM?

A. Correct. I came back from

Kandahar that 2005, had a couple of months home in

Kingston, and then I was in Pakistan with the

Disaster Assistance Response Team doing force

protection for them.

On my return from Pakistan, I was

immediately told report to CEFCOM to help with the

stand-up and set-up of CEFCOM.

Q. Sir, you were -- you seem to

be the go-to guy for planning new things. You were

involved in the planning of -- or you were involved

in the set-up of moving to Kandahar and you were

involved in the very first -- you were the first

Provost Marshal at CEFCOM?

A. That's correct.

Q. Do you recall when exactly

your period at CEFCOM would have begun and would

have ended?

A. I believe I arrived in CEFCOM

February 2006 and stayed till July 2006.


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Q. Can you tell us what your

understanding was, in those early stages of CEFCOM,

of the duties and role of the CEFCOM Provost

Marshal?

A. Yes. During those early

days, we're still very much in a transitional

period where the J3 MP -- who used to be under the

DCDS system, Lieutenant-Colonel Savard and a couple

of other majors that worked for him. So they were

still very much involved trying to support me as I

tried to develop, you know, what is the MP role

within CEFCOM.

I was a branch of one at CEFCOM,

which certainly limited my ability to be involved

everywhere I felt I should be. Obviously I am

providing advice to the CEFCOM commander and the

senior staff at CEFCOM, but I am also being

supported by Colonel Savard, J3 MP, and his staff

to try to help me manage CEFCOM and the pace of the

operation, in particular Afghanistan, but any other

mission that was international was also under our

area of responsibility.

Q. Okay. And who did you report

to in the chain of command when you were at CEFCOM?

A. Well, as a branch head, my


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limitation that is on you, that 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 that you had.

Plus being a branch of one

certainly did marginalize my ability to do my job,

and that was one of the main things that I was

focussed on trying to resolve in the early days.

Q. Just to clarify, one of the

main things you were trying to resolve was the

staffing issue, that you were a staff of one?

A. Correct.

Q. What was your preferred model

for the number of staff you would have been?

A. Early on, the numbers we were

looking at was seven, one Lieutenant-Colonel, two

Majors and a couple of captains and a master 1

officer.

Q. And can you give us a little

more specificity about sort of the kinds of issues

that you would be consulted on or giving advice

with respect to at CEFCOM at that time?

A. Sure. Some of the things

that I would be involved with is planning for new


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missions, as to what would be the policing security

roles for new missions, things like when there were

detainee issues, that something didn't flow right,

there was concerns about the transfer taking too

long, those kind of things, then they may engage

myself.

Military folks involved in a

serious and significant or serious and sensitive

investigation in theatre, I certainly would be

involved either with the Provost Marshal in theatre

or, you know, the commander or senior staff at

CEFCOM or NIS concerning the investigation that may

be forthcoming.

Q. In terms of the ability to

access information, did you have access to the

SAMPIS system, the MP SAMPIS system?

A. Yes.

Q. And what about, at that time,

the C4 system that would sometimes be used as a

conduit for information?

A. I don't know if it is C4. I

certainly had access to a secret system. I am not

exactly sure at this point what it was called, if

it is the C4 system or something else. Whether it

was tightened, I am not sure which system it was.


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Q. I think we have heard

evidence that the C4 was maybe a DFAIT-specific one

that was sometimes accessible to personnel at

CEFCOM. Do you recall --

A. I don't believe -- having

access to that.

Q. Okay. You indicated that you

would have some input and be consulted with respect

to serious and sensitive matters that might be

occurring in theatre.

Would that include such things as,

for instance, if there was an allegation of

detainee abuse? Would information about that kind

of thing come to you, to the best of your

knowledge?

A. It may, but I can't say for

sure that every incident would come to me.

Q. With respect to the

day-to-day transfer of detainees, can you advise,

would you be briefed on every transfer? Would you

be briefed on giving a daily summary of transfers?

Would you be given information only if something

was going wrong, or do you even know what

information you were and were not getting,

necessarily?


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A. I would say I was only

engaged when there was some issue that had come up

and either Major Fraser in theatre or somebody in

CEFCOM wanted my input to try and deal with an

issue. And I think that was more out of necessity,

being a branch of the one.

Q. You indicated that you might

have some interplay with various other military

police officers, I believe. You mentioned the NIS.

If an issue were to arise, such as

a serious and sensitive investigation in theatre,

would you be able to be consulted by the NIS? In

other words, were you accessible to them?

A. Most of the time I was at

CEFCOM, I was, I think, weekly dealing with Major

Garrick from NIS. Actually, we would have a

meeting to discuss those kind of issues with him.

Also, I would also have a

conference call at the same time with Major Fraser

in theatre, and possibly a few other folks would be

at the table, like J3 MP staff, just so that

everybody had the information they needed on

ongoing issues in theatre that we need to work on.

Q. Major Fraser at that time I

believe was the Task Force Provost Marshal; is that


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correct?

A. That is correct.

Q. And so he would not have been

an NIS officer?

A. No. He would be commanding

the MPs in theatre, and NIS would also be in

theatre with him.

Q. Major Fraser did not have any

command relationship with you; is that correct?

A. That is correct.

Q. But you did have, I guess, a

liaison, an information-sharing arrangement with

him and with Lieutenant-Colonel Garrick; is that

what I understand?

A. That is certainly correct,

yes.

Q. Did you have any command

relationship with any other military police

officers when you were the CEFCOM Provost Marshal?

A. No, I was in a staffing

function, advisor and staff to the CEFCOM

commander.

Q. And who was the CEFCOM

commander at the time you were at CEFCOM?

A. It was Major General, then


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promoted, Lieutenant-General Gauthier.

Q. One other military police

officer that I would like to ask you about your

relationship with would be the Canadian Forces

Provost Marshal.

A. Yes.

Q. Could you describe the

nature, if any, of your command or non-command

reporting relationship to the Canadian Forces

Provost Marshal?

A. I certainly was not under

command of the CFPM, and my reporting relationship

within the military police was technically to

Lieutenant-Colonel Savard as the J3 MP, and

interaction with the CFPM with me consisted of

things like trying to sort the staffing issue of

the military police at the senior ranks, and in

line with the stand-up of all of those operational

commands that were happening while I was at CEFCOM

and trying to get that right.

Q. And where would -- you

mentioned Lieutenant-Colonel Savard the J3 MP. Is

that the J3 at CEFCOM, or a J3 at another branch of

--

A. No. He basically works at


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the National Defence headquarters in the same area

at that time -- I think things have changed since

then, but where the CFPM's office is, his office

was in a similar area.

Q. Okay.

A. Different building.

Q. Was there a person, either

military or non-military, a civilian, referred to

as a J9 at CEFCOM when you were there?

A. Yes.

Q. And do you know what the role

of the J9 was, and how much interaction would you

have had with that person?

A. Not a lot. I had a little

bit, but she basically is civilian political

advisor to the commander.

Q. When some of these issues

would come up, such as serious and sensitive

investigations, or I think you mentioned detainee

issues that you might be consulted on, was there

any flow of information to you or from you via the

J9?

A. The J9 and myself didn't

normally interact. We may be in the same meeting

with the commander from time to time, but very


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rarely. I think I did go to one meeting with the

J9.

Q. Now, we are here specifically

about issues relating to military police

investigations into detainee abuse that was alleged

to have occurred after transfer.

Did any information relating to

post-transfer detainee abuse come to you when you

were at CEFCOM?

A. Are we talking about a

transfer from the MPs transferring a detainee, or

are we talking about transfer overall, anywhere,

because that's two different things?

Q. Fair enough. And thank you

for clarifying.

Perhaps we could start with

transfer to MPs, and then transfer from MPs, and we

are specifically interested in primarily the

transfer to the Afghan National Security Forces.

A. Okay. So I know of one

complaint that came in of transfer, MPs to MPs, at

Kandahar air base that happened, and basically I

reported that to the NIS to investigate. So I

remember that specific issue.

Besides that one, that is the only


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one I am aware of involving MPs transferring to

either MPs or to the Afghan authorities.

Q. Okay. So when you were

there, there was one instance of reported abuse and

you reported the issue to the NIS for

investigation?

A. There was one issue of

reported abuse involving MPs that I reported, not

the same as what you are saying.

Q. Okay. Was there information

coming to CEFCOM about the risk of Afghan National

Security Forces abusing detainees when you were

there?

A. When I was at CEFCOM?

Q. Yes.

A. Okay. Not that I am aware

of, but that doesn't mean it didn't come in through

some other means and --

Q. Sure.

A. -- given to the commander or

senior staff and I wasn't aware.

Q. Maybe just in terms of your

background with respect to detainee issues, did you

receive any specific training on the process by

which detainees were going to be handled?


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Maybe could you describe, since

you were there at the start-up, what was the

overall thrust of the Canadian Forces' policy with

respect to accepting and dealing with detainees?

A. Okay. I can't say I was

there at the start-up. I came back from Pakistan,

and, as you are aware, the agreement that General

Hillier signed with the Afghan government for the

Canadian government was done while I was in

Pakistan.

So I certainly was not there at

the very beginning.

I arrived shortly thereafter,

trying to catch up to where the rest of the CEFCOM

staff were at. But the procedure that I understood

was -- and you have the document, the TSO-321 --

outlined the procedures we were going to follow

with reference to handling and turning over, and

basically the 96-hour rule that was basically

thrust upon us to meet.

And that was a lot of what I got

involved with, was trying to meet that 96-hour

rule, which seemed to be a pretty big deal to

everybody.

Q. Was it your perception that


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there was a significant push to transfer detainees

quickly?

A. Absolutely.

Q. And the personnel who were

actually doing the transfer in theatre would have

been, to your knowledge, military police officers,

as well?

A. Not in all instances.

Q. Not in all instances. Fair

enough.

You mentioned the December --

sorry, yes, December 2005 arrangement between the

Government of Afghanistan signed by General

Hillier. You indicated you were in Pakistan when

that process started.

Did you have any involvement

whatsoever or were you consulted at all in terms of

the -- setting out the terms of that arrangement or

setting out the regime we would be following?

A. No, I was not.

Q. Okay. You also mentioned

TSO-321, which I think evolved over time. And

we've got the documents on the record, but were you

involved in the drafting of any of the forms of

TSO-321 to actually implement that arrangement?


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A. I would say maybe a slight

change might have went in there as a result of some

involvement of mine, and it was more related to

properly identifying the detainees.

We learned over time, I think

through ICRC, that they need more information than

what we would expect to properly identify detainees

after being transferred. So I think the

grandfather's name, or something like that, was

asked to be added.

So I am not sure if that is in

TSO-321, but it was certainly one of those big

issues for ICRC.

Q. Okay. In terms of your own

experience, this issue of identifying transferees,

how significant did it seem to be to you to be able

to identify people after we transferred them?

A. To me, it was very important.

Q. Why would that be?

A. Well, they need to be able to

track down those detainees to do what their job is,

to follow up on detainees that have been

transferred.

Q. And by "they", you mean the

ICRC?


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A. Correct.

Q. The Red Cross. I believe in

the December 2005 agreement there is also reference

to the Afghan Independent Human Rights Commission.

Would it follow that that tracking

information, insofar as some other body like the

AIHRC was concerned, that information would be

important to them, too, in your view?

A. I don't know a whole lot

about AIHRC, but I would say anybody that needed to

track these detainees after transfer, you know, the

information is important. That is what they needed

to track somebody in Afghanistan.

Q. Okay. I think you indicated

that there were some modifications or adjustments

that may have been made. In your view, were there

some difficulties with that identification or

tracking ability in the early stages?

A. I did hear there were some

difficulties, but I don't know the specifics of

what those difficulties were.

I know folks were trying to make

adjustments to make sure we were, you know, giving

the information that they need and in a timely

manner.


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Q. Now, did you receive any

specific sort of training from the Canadian Forces

on issues of detainee handling and detainee

tracking and the things we have been discussing

here?

A. Specific to the Kandahar

mission, or just overall in my years of experience

in the military?

Q. Well, you can describe

either, if it was Kandahar specific or if you had

any general training of that nature.

A. Well, throughout my career,

military police have a role which includes this

operational support role, which includes detainee

handling, and certainly through my career I have

dealt with detainee issues and detainee training,

including to go as far as building prisoner of war

cages and things like that.

Q. Now, with respect to

post-transfer monitoring and allowing the agencies,

whoever they might be, to follow up, could you

address sort of why that would be important? Why

would it be necessary, in your experience with

detainee handling, to have follow-up ability?

A. I mean, ICRC have this


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independent review, make sure things are being done

properly, the detainees are being handled properly.

From a policing perspective, I

would think to see if the justice system in

Afghanistan is functioning and they're actually

following through with prosecution, where it is

warranted, so that somebody is following through

with the justice system in Afghanistan, and the

only way you can do that is if you can track the

person that was transferred.

Q. In your experience, given

your background and knowledge, would there be any

concerns about the possibility that detainees who

are transferred might be subjected to harm?

I mean, you have been in various

theatres of the world. You have some experience,

not just limited to Afghanistan. What would your

views be on whether there is a risk of harm to

detainees when they are transferred to persons who,

I think by hypothesis, would be adverse in interest

to those detainees?

A. You are asking me: Is it

possible that they would be harmed?

Q. Or would that be something

that, you know -- yes, would it be possible in your


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view, given your experience? What are the

possibilities in that regard?

A. Well, it certainly would be

possible they would be harmed. I would say it

would be possible that they could be harmed

transferred into any country.

Q. Sure.

A. So, yes, it is possible.

Q. And just to sort of emphasize

the point, the detainees who are transferred to the

Afghan National Security Forces, would it be fair

to say that presumptively they were people who were

hostile to the Afghan government? In other words,

these are the enemies of the government and that's

why they're being detained, unless of course it is

found that they're not and they're released at some

point?

A. I can't speak for the Afghan

government and who they, you know, basically may

not like and, you know, who they do like. I can't

say.

Q. Now, you had a tour in

Afghanistan in 2005 and a subsequent tour in 2008.

Can you comment on your view of the -- you

mentioned the issue of making sure the justice


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system works as it should.

Based on your experience, what is

your view, if any, concerning the prospect that

justice would be properly served with respect to

detainees in Afghanistan?

A. I certainly can't speak to,

you know, how well their system works, because I

didn't spend a lot of time looking at their system.

I didn't visit their correctional facilities or see

their court systems.

I did interact a little bit with

the Afghan National Police in 2005, and in 2008 I

worked significantly with senior Afghan National

Security Force members.

Certainly had concerns about the

Afghan national police and their limited ability to

function as a police force, which basically I took

under advisement, especially in 2008, as to how I

would utilize them in my role in 2008, because they

were directly involved in my role in 2008.

But besides their limited

capability as policing, in terms of skills and

training, I can't say a whole lot more about the

Afghan justice system.

Q. Would your concerns include


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any concerns about such things as summary justice

rather than justice through a properly-constituted

court system?

A. My concerns were trying to do

everything we can to make sure that the detainee we

transfer is treated appropriately and, if it is

appropriate, brought to justice in an Afghan -- the

Afghan justice system.

Q. If I can just sort of address

a little bit about the -- your understanding of the

legal matrix or the legal system that applied to

our detainees, first of all, did you get any

specific training from the Canadian Forces about

what laws, for instance, you know, the Geneva

Conventions, and so on, Canadian law, non-Canadian

law, applied to our detainees?

A. It certainly has come up

several times throughout my time involved with

Kandahar, in that mission.

The message that I can relate to

right now was the Geneva Convention would be

followed, and basically the detainees would be

treated as such.

Q. What about their status? In

your view, did they have the status of prisoner of


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they are transferred. In your view -- and maybe we

should specify a time period, too, because we did

have a separate arrangement in May of 2007.

So let's stick to the time you are

at CEFCOM in 2006 so we can understand the

background leading up to May 2007. What would your

view be, when you were at CEFCOM, in terms of the

Canadian Forces' legal obligations to detainees

after they are transferred?

Do we still have an obligation to

protect them after they're transferred, or did our

formal legal obligations in that regard cease, or

do you have a view? You may not have a view.

A. My personal view is -- and it

is my personal view -- is after we have transferred

them we have -- I don't know about a legal

obligation, but we have a responsibility to ensure

that justice occurs through the Afghan justice

system. And the whole abuse thing that -- I mean,

we certainly don't have visibility on after they

are transferred, in totality, because we don't work

in the Afghan jails and those kind of things.

So we certainly have, to me, a

responsibility to keep an eye on what is going on

in their system to confirm, as much as we can, that


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they're following through with their part of the

arrangement that was signed by General Hillier in

2005.

Q. Sir, if I can just clarify

that, it would be your view that it would be an

obligation on the Canadian Forces to at least be

aware, to the degree we could be aware, of what is

happening post-transfer. It would be fair to say

that would be so we could inform our own decisions

as to whether to transfer?

A. Well, I would say a little

broader than that. It is not just the Canadian

Forces. It is the Government of Canada --

Q. Fair enough.

A. -- because it is a Government

of Canada agreement, arrangement, not the Canadian

Forces' arrangement.

Q. Fair enough. And as I think

you have indicated, there are outside bodies,

outside agencies, who do some monitoring, so there

may be further non-Canadian input into this

process?

A. Corrections Canada, a few

others. DFAIT.

Q. Now, when you were at CEFCOM,


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do you know or can you tell us what, if any, level

of information of that nature, concerning

post-transfer conditions or treatment, was coming

back to CEFCOM or at least coming back to you at

CEFCOM? You can't speak for everyone there,

obviously.

A. Exactly. I did not see any

information about post-transfer by the MPs to the

Afghan authorities.

Q. And we are not just

interested in bad news. You didn't receive any

information whatsoever, good or bad, that, you

know, things are going well or things are not going

well?

A. Not at that time. I have

since read some things that I think were provided

to me. But at that time, no.

Q. Fair enough. So if it was

coming to CEFCOM, it wasn't getting to you?

A. Correct.

Q. Did you have any background

knowledge or information from public sources,

because we've got in our compilations here some UN

reports, some US State Department reports,

something composed by a group called the Senlis


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responsibility or not is another question -- would

looking into the background of Afghan human rights

issues be something that you had time for, because

I think we will be getting into the resource issues

a little more? But maybe you could explain. Could

you tell us why wouldn't you inform yourself of

these kinds of things at that time?

A. Well, certainly because I was

a branch of one, it certainly limited what I can

and cannot do. Just trying to keep up with the

meetings that I had was enough to, you know, limit

what I could do.

And trying to deal with the --

what I would call the fires that are occurring as

they come up was where I was focussed most of my

time, such as investigations that have come up in

theatre, in particular, and trying to support Major

Fraser and some of the concerns where he needed

more staff, more specialists to come into theatre

and trying to make those arrangements to get them

there as quickly as possible.

My view was the Task Force

Commander was responsible for those transfers. He

has a large group of advisors, intelligence, et

cetera, working for him. Plus the CEFCOM commander


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has that same ability.

So there is a lot of sources of

information that is coming into CEFCOM and into

theatre where they would -- if that information is

available, would get that information and would be

making those decisions.

Certainly if it crossed my desk, I

would be looking at it, but if it didn't make it to

my desk, I certainly didn't have the time to go do

some research.

Q. Can you just -- we heard a

little bit of this from Lieutenant-Colonel Boot,

but can you give us an idea just of the intensity

of your work pace at CEFCOM?

You were a staff of one and you

hoped you would be a staff of seven. So in terms

of your day-to-day dealings at CEFCOM, how much

time did you have to deal with any particular

issue, or was it basically crisis management?

A. Well, first thing I will

mention is Lieutenant-Colonel Boot did replace me.

His staff doubled, so one Major became two Majors.

That is as far as we got when I left. But

basically you are looking at three generals,

basically four staff, senior positions that are my


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bosses, per say, that all have certain demands on

me, and then at the same time we have a planning

team planning for the next mission, another

planning team planning for the next Roto to

Kandahar, trying to find those, you know, X-

thousand people to fill all of those positions that

we have to send out the door, and that requires a

certain amount of work from all of us, to get the

numbers right and the right specialists in our area

to meet those requirements.

And then the -- you know,

something happens in theatre. The priority now

switches to, you know, there was a shooting. There

needs to be an ROE investigation or friendly fire

investigation. That now becomes the priority for

the whole staff, so everything else is dropped and

now we need to focus on these issues.

Soldiers are killed. Now we need

to think of, you know, what do we have to do to

make this happen and notify family, and, you know,

are they MPs -- in one instance they were -- and so

on. So then I would have more involvement in the

issue.

So there was a myriad of issues,

and of course you are talking hundreds of staff,


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Can you comment on your ability to

process all of the information necessary to deal

with these various tasks, I mean, how -- because

one of the issues in this tribunal is, you know,

well, information comes in by an email. How come

-- you know, why wouldn't this guy be reading it?

A. Well, some of the early days

at CEFCOM, at least when I arrived, obviously the

staff need to be educated as to what all of the

different roles of the key players are. And of

course when you are a staff of one, it certainly

takes me some time for the -- for example, the duty

officer at 2 o'clock in the morning who works in

the OPs centre to understand that perhaps the

Provost Marshal has a role to play in a specific

incident.

And that would take some time. I

don't know, even when I left, if all of those young

staff officers still understood what the Provost

Marshal'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.


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main witness documents.

A. Which tab?

Q. If you go to tab 10. Is

everybody --

Tab 10, in June of 2006, Mr. Eric

Laporte seems to be sending a message from Kabul,

and it is copied in the address lines -- and you

can, I think, take my word for it -- not to any

military police officer, not to you at CEFCOM. But

it does go to various personnel at CEFCOM, at J3,

J4, at J9.

MR. PRÉFONTAINE: I'm sorry, Mr.

McGarvey, I don't think that Mr. Laporte was

sending this from Kabul.

MR. McGARVEY: Oh, I'm sorry.

MR. PRÉFONTAINE: IDR is in

Ottawa.

MR. McGARVEY: IDR. Sorry, it has

Kabul at the top. I misread.

BY MR. McGARVEY:

Q. In any event, this is a

report that does deal with detainee issues. It is

not copied to the CEFCOM Provost Marshal.

Do you know if you would receive

this kind of report from one of the other personnel


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at CEFCOM, such as the J9 or the J3?

A. I don't specifically remember

this.

Q. Okay. The subject of this

seems to be, if you look at the subject line,

something about concerns over notification by

Canadian Forces.

Whether or not you saw this

specific message, when you were at CEFCOM, were you

dealing with that concern about notification issues

that you identified earlier?

A. I remember one instance of

attending a meeting with J9. I mentioned I had one

one meeting I went to with J9 and with the DPK POL,

and it was discussing issues like this, concerns

about notification. And I believe it was that

meeting that came out, the grandfather issue, that

the name needs to be added and -- but that is the

only time I remember that specific issue.

Q. Would you know whether you

would be routinely copied on such emails as we have

in front of you there?

A. No.

Q. No, okay.

A. Not at that time.


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respect to detainees, or any of the annexes to

TSO-321? Would those routinely cross your desk or

never cross your desk, or do you know how routinely

they would or wouldn't?

A. SIRs don't normally cross my

desk, unless there is something that somebody wants

to bring to my attention, because there is a lot of

SIRs that come in, unless somebody sees, Oh, the

Provost Marshal needs to know this.

I would see -- you know, the kinds

of things that would go on SIRs I might see through

the police SAMPIS system that are significant, that

we're investigating, that is being reported in a

SIR.

Q. In your discussions with the

Task Force Provost Marshal, did he ever express any

concerns about which agencies should we hand these

people over to, which ones are reliable or

trustworthy, what are the conditions they're going

to, that kind of thing?

A. I don't remember specific

that we talked about which agency was handing over.

Somewhere I learned it was NDS, but I don't know if

it was specifically always NDS. I can't say.

It was certainly, in my mind, his


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role to determine who is that trusted agent that he

is handing over to, and I was not going to say,

Well, you need to hand them to here or there. He

knows better than I do. He is on the ground. He

is dealing with these folks. He is establishing

those kind of links.

Q. In terms of your

understanding of the command relationships on

detainee transfers, I think you indicated earlier

the responsibility for the issuance of a transfer

order would be with the Task Force Commander, not

the Provost Marshal?

A. Correct.

Q. The Task Force Provost

Marshal, I take it, is then responsible for

carrying out the order?

A. Yes.

Q. And from what you have just

said, would it be your view that it was the Task

Force Provost Marshal who was responsible for

determining who to transfer to, or do you know

whether that would be a commander's decision, or --

I just want to get clarification on that point,

because we do have some Task Force Provost Marshals

expected to testify.


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A. Sure.

Q. And I would like to know what

your view was or if you know.

A. I don't know. I don't know

specifically. My view is it would be, if I was the

Task Force Provost Marshal, per se, I would be

discussing that with the commander to say, Here's

my recommendations, this is the way I think it

should go and this is why.

Then I would expect the Task Force

Commander would make the decision.

Q. Ultimately the transfer order

responsibility lies with the commander, in any

event. He is the person responsible for ordering

the transfer?

A. From what I understand, yes.

Q. If the Task Force Provost

Marshal had concerns about who they were

transferring to or what conditions they were

transferring to, in your view, would that Task

Force Provost Marshal, as a military police

officer, have any duty to either report or

investigate the commander's decision?

In other words, if the TFPM

considered the transfer to be to unsafe conditions


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or to unsavoury agencies, but the commander issued

the order despite that advice, would the TFPM have

an obligation as a police officer to do something

about it?

A. Are you asking if the Task

Force Commander issued what we consider an unlawful

order? Is that what you're trying to say?

Q. Or perhaps one which the

Provost Marshal had concerns about its lawfulness.

I mean, they're not a judge. You know, police

officers do not judge whether something is lawful

or unlawful. They investigate allegations of

unlawfulness.

So if the Provost Marshal had

concerns about whether the order was lawful, in

your view what would their obligations, if any, be

as a qua police officer?

A. Well, Task Force Provost

Marshal, as well as commanding the police, he is

also the advisor to the commander in theatre.

So my first actions would be to,

you know, discuss with the commander my concerns

and basically try to get -- provide him with more

information so he can make that informed decision,

if there is other information out there besides


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what I am saying, some documents, some, you know,

intelligence reports, whatever, trying to get that

to the commander to make him aware so that he can

make that informed decision.

Q. Now, would it seem to you

that it puts the Task Force Provost Marshal in a

somewhat difficult position, being under the

command of a person that they basically have to

follow the orders of, if they have such a concern?

A. Yeah, but you have to be

careful with "concern". I mean, just because we

have a concern doesn't mean we don't follow the

order.

Q. Exactly.

A. Okay. It is very, very --

very important to understand that. It has to be

more than a "concern". I certainly would raise the

concern, but there has to be much more than just a

concern for me to take the next step, which would

be, you know, basically telling the commander that

I would have to inform the NIS and there would be

an investigation concerning this.

And, you know, the very last step

is, depending on what the concern is -- and that's

the big thing we're talking about here -- is maybe


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not transfer the prisoner as I was ordered. But

that is a big step we're talking about here.

Q. That certainly wouldn't be

something anyone would take lightly?

A. Exactly.

Q. But the proper recourse, if a

person did have serious concerns about the legality

of the order, would be to, first of all, discuss it

obviously with the commander, and, if not satisfied

at that point with the response, go to the NIS,

because --

A. I might take another step. I

might go and talk to my legal advisor about the

whole issue, as well.

Q. Fair enough. In terms of the

issues we are dealing with here, the complaint is

that various military police officers failed to

investigate, essentially, the commander's orders to

transfer detainees into situations that would have

rendered a significant risk of abuse to the

transferees.

Can you just tell us a little bit

about what would be involved if one were to

initiate an investigation in theatre into such an

allegation? What are the challenges, to the degree


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you can talk openly about them, facing an

investigator in theatre when faced with an

investigation?

A. Well, I mean, the first thing

I would say is: What are the parameters of this

investigation? If you are talking about an

investigation that requires us to reach out into

communities in Afghanistan to do an investigation,

obviously it is very complicated.

One, we have to try and find the

person. The second thing is we have to gain

cooperation of people that are willing to speak to

us about the issue.

There is the cultural issues.

There's the language issues or hurdles we need to

overcome.

There's the risk and threats to

investigators to try and go out there and do those

kind of things, so we may end up losing

investigators trying to investigate something that

-- like we are talking about.

So, I mean, the issues are big

hurdles to overcome, I would say.

Q. And what about just the

logistics of it? If -- for instance, suppose, you


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know, the Afghan authorities agree to allow

Canadian military police to go investigate, again,

without revealing anything that might be sensitive

information, can you describe any logistic

challenges to just going out in the field and

conducting investigations in Afghanistan?

A. Well, certainly, I mean, some

of the investigations that they have to do, in many

cases they can't even get to necessarily the scene

of the incident, because it's a war. I mean,

there's a battle raging at that situation.

So evidence, very hard to collect,

if you can collect it at all; those kind of

challenges.

Perhaps if an investigator needs

to go out, we have to ask the commander if we --

you know, we may need some support from infantry

support, whatever, so that they can safely move to

the location of the investigation.

So, I mean, yeah, there is some

huge challenges to investigate some of these

things. Some of them we can investigate fully.

Some of them we cannot.

Q. Connecting this, then, to

what you were describing earlier about monitoring


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arrangement, the Afghan government assured us that

they would treat people in accordance with humane

norms. Would that assurance from our ally not be

good enough?

A. Well, it is certainly a big

step, but I would -- any part of the process that

we have, meaning the military police, Canadian

Forces, we should do everything we can to try and

make sure that the process is as the arrangement is

set out.

Q. So we should take on some

follow-up regardless of their assurances?

A. As much as we can.

Q. To the degree we can. Fair

enough.

A. But there are certain

limitations, as we talked about, in Afghanistan,

and personnel and -- et cetera, that perhaps you

need more personnel if you want to go further down

that road.

Q. How serious or how big an

issue was the detainee issue when you were at

CEFCOM?

A. It certainly was one of the

hot button topics that -- absolutely.


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detainee.

Was that something that was part

of the discussion or at least part of the

background that was informing the detainee

consciousness at CEFCOM, in your view?

A. I never heard any discussion

related to that.

In my view, that may be why MPs

were involved in a lot of the process, was to try

and take detainees away from the front-line troops

as much as possible and give them to the military

police that have training related to handling of

prisoners, similar to detainees.

Q. You returned to Afghanistan

in a different capacity in 2008, I believe you

said?

A. That's correct.

Q. And I think you indicated you

were working in detainee issues, but it was with

NATO?

A. Well, I wasn't working

necessarily with detainee issues. That wasn't my

primary role, but I was working for NATO; correct.

Q. Okay. Did you become aware

of any issues relating to the Afghan security


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forces' treatment of prisoners when you were there

in 2008?

A. Not that I'm aware of.

Q. Were you aware --

A. Just a point of

clarification. You're saying prisoners or

detainees?

Q. Detainees?

A. Okay, because it is not the

same thing. We did have a big jail break when I

was there in Kandahar, but that was prisoners

overall that broke out of the jail. But detainees

specifically, no.

Q. Okay. My question really was

more directed to what happens after transfer,

again. Were you receiving any information, while

you were stationed there in 2008, about, you know,

for instance, the reputation of the National

Directorate of Security, the reputation of the

Afghan National Police at that point in time, or

allegations of abuse in Afghan prisons at that

time?

A. No, I was not involved with

anything related to detainees.

I was extremely busy with the role


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that I had there, and that was keeping me very

busy, so I had no -- not no interest, but just no

involvement in that area.

Q. Okay, no involvement. And no

information came to your attention --

A. Correct.

Q. -- sort of peripherally or

just in passing? And not wanting to kind of be too

repetitive, but if I can direct you specifically to

the NDS, one of the agencies we transferred to, did

you come into any information, while you were in

Afghanistan in 2008, about the reputation of the

NDS with respect to its treatment of transferred

detainees?

A. No, I didn't.

Q. Okay. A brief indulgence,

please.

When you were at CEFCOM, with

respect to the monitoring arrangements and the

reporting arrangements and identification

arrangements, did you actually raise any of the

concerns you might have had with other personnel,

the chain of command?

A. Yes. I remember raising the

issue of the 96-hour rule. I don't know if it was


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with the commander directly or one of the senior

staff, but I certainly raised it with him. And I

raised it with Major Fraser in theatre, the Task

Force Provost Marshal, because -- well, the Task

Force Provost Marshal was concerned about the

pressure they were under to meet this 96-hour rule.

And I had concerns myself

concerning -- we may have somebody of significance

that we have basically captured. We need the time

to properly process them, to find out who we have,

and also for the evidence to get compiled together,

so that we can transfer them with all of the

information so that hopefully the justice system

would follow through in Afghanistan.

Q. Did that -- it seems your

primary concern was about being able to make sure

we know who we are dealing with, because they may

be somebody that has intelligence or information,

or they may be somebody that we are actually

interested in.

Did any of your concern about

identification and monitoring revolve around simply

our ability to keep track of the well-being of the

person after they had been transferred?

A. I would say "no". My focus


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was on not just identifying who they are, but also

some of the information, the evidence that we are

gathering, could save people's lives. So we need

to get that part right.

If we don't gather the

information, the intelligence, if we don't defeat

some of those IED stuff, if we don't get the DNA

and all of those things, then basically it is a

missed opportunity and people could die as a result

of us not being thorough in our work.

So that is a big part of it, and

then the other part is getting that evidence, where

we can, to the Afghans in the proper format and

detail so that they can carry on an investigation

and hopefully pursue their justice system, and the

person doesn't get out, you know, a day later or

two days later back to kill more Canadian soldiers.

Q. Was this issue of the

potential for summary justice at least part of your

concern at that point?

A. I wouldn't say it was summary

justice. It was the MPs need to do a thorough --

their job thoroughly, make sure we get the

evidence, the information together, and turn the

person over to a trusted agent.


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So they need the time to be able

to do that properly, and that was my focus.

Q. Thank you. I have no further

questions. Some of my friends may.

MR. ELGAZZAR: I am in your hands

if you would like to break now or if you would like

to proceed.

THE CHAIR: How long do you expect

to be? Once again, it doesn't matter to me. It

could be the rest of the day, but I am just trying

to get a sense.

MR. ELGAZZAR: Right. I would say

more than a half an hour. Maybe I will try to wrap

up in an hour.

THE CHAIR: Okay. I think what we

will do is we will take a break and we will come

back at -- say we will come back for 1 o'clock, and

that would give time for a variety of other things

to happen and we will go from there.

MR. ELGAZZAR: That's fine. Thank

you.

--- Luncheon recess at 11:27 a.m.

--- Upon resuming at 1:02 p.m.

MR. BERLINQUETTE: Merci. Thank

you.


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A. Sorry, say that again?

Q. In terms of the transfer of

detainees to another force or to another

government, that would be something that would be

handled by the military police?

A. Not necessarily. Our

frontline troops can and, as far as I know, have

transferred folks to the Afghan authorities.

Q. As a general rule?

A. I would say my words would be

the preferred option would be from the MPs, but not

necessarily.

Q. And they would be the

preferred option, as you mentioned earlier, because

of their specialized training in issues of detainee

handling, and transfers and the like?

A. Exactly, making sure that we

have the proper documentation and evidence, and so

on and so forth.

Q. Do MPs' knowledge of

international law also make them more preferable

candidates to transfer?

A. I couldn't say that the

average MP would necessarily have a great deal of

knowledge about international law any more than any


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other Canadian Forces member, necessarily. I am

talking about the average MP.

Q. Fair enough. In terms of

MP-specific training for a deployment such as the

one in Afghanistan, is there special training for

military police or members of the military police

deployment with respect to international law and

obligations under the laws of armed conflict?

A. I have not gone through the

same training for Roto for Afghanistan, so I don't

know specifically what the MPs went through for

pre-deployment training or what it included.

That's a question probably for the Task Force

Provost Marshal of whichever Roto you want to refer

to, because it probably changed or evolved over

time.

But I would say every soldier

going into theatre would get some training related

to that. I don't know specifically if the MPs got

any more or any less than any other soldier. I

can't answer that specific question.

Q. And you mentioned earlier

this morning, in response to some of the questions

Mr. McGarvey was asking you, that in certain

circumstances you might have recourse or you might


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consult with a legal advisor.

Now, is that a legal advisor that

is specific to the military police in terms of the

technical chain of command, or is that a legal

advisor that is just sort of CEFCOM generally or --

A. Are we talking about at

CEFCOM, or are we talking about what was raised

this morning about if I was in theatre as the Task

Force Provost Marshal?

Q. Why don't we do both of

those? So first CEFCOM.

A. Okay. At CEFCOM, basically

they have a team of legal officers assigned to

CEFCOM, so it would be the CEFCOM legal team.

And then the other option is also

the NIS route, and of course the NIS have their own

legal representation and that's another method of

where we could gain legal opinion.

Q. Okay. And presumably those

legal advisors have knowledge of international law?

A. I can't say which ones,

within the, you know, legal branch have

international law, operational law experience, but

they certainly have folks within the JAG branch

that have that experience.


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Q. Okay. Do you recall in

December of 2007, specifically December 7th, 2007,

having been interviewed by two investigators with

the Military Police Complaints Commission?

A. Yes. It was just before I

was leaving for Pakistan.

Q. And that was at CFB Trenton,

I believe?

A. Sorry, not Pakistan.

Afghanistan, correct. That was CFB Trenton in my

office, yes.

Q. Do you recall that that

interview was recorded?

A. Yes, I do.

Q. Okay. And that a transcript

was produced?

A. Yes.

Q. Have you reviewed that

transcript in your preparations for today's

hearing?

A. Yes, I have seen it.

Q. Okay. You will find that

transcript -- and I am going to refer you to some

passages from it -- at -- it is Collection I to S,

volume 1 of 2, and it is tab 1. And I believe the


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witness already has his copy handy.

THE CHAIR: I believe everybody

has the document.

MR. ELGAZZAR: Okay, great.

BY MR. ELGAZZAR:

Q. So in reviewing it for the

purposes of today's hearing, is there -- basically

is there anything in there that you disagree with

that you said before that wasn't properly

transcribed, or do you adopt all of the statements

that were made in that transcript?

A. Yes. There is a couple of

things where I guess whoever transcribed it

couldn't make out certain statements, so there is

--

Q. Inaudible?

A. Exactly. So I can't say what

it was.

Q. Fair enough. Other than

those instances, are you prepared to adopt the

statements that are in the statement?

A. Yes.

Q. Thank you. Now, you will

recall that this morning Mr. McGarvey had asked you

a number of times about some of the concerns that


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you might have had when you found out that the

policy of the Canadian government was going to be

to turn Afghan detainees over to the Afghan

government directly, and one of the other concerns

was that it would be within 96 hours which,

according to you, was a time frame that might have

been too short for the purposes of evidence

gathering and the like.

You will recall that Mr. McGarvey

asked you about whether or not some of your

concerns related to the potential for detainee

abuse at the hands of the Afghan -- I guess it was

the NDS, but, I mean, at the Afghan government

establishment, generally; correct?

A. Yes.

Q. And isn't it true that you

had relayed some of those concerns to General

Gauthier, who was the commander at CEFCOM?

A. I relayed some of those

concerns. At this point, I can't remember if it

was to General Gauthier directly or to his staff,

which means one of several senior staff. But I do

remember relaying concerns related to the transfer

and the 96-hour rule.

Q. When you say with respect to


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the transfer, some of the concerns, just to be

clear, related to the fact that there was a

possibility of detainee abuse at the hands of the

Afghans?

A. No, that we needed to make

sure that we've done our due diligence with turning

over to a trusted agent, gathering the evidence,

giving it to them so that they actually can proceed

with their prosecution or justice system, those

kinds of things.

Q. Okay.

A. That means we have to get it

right. We have to do it right.

Q. Okay. Can I have you turn to

the transcript at page 6? Now, I am using the

numbers at the top of the page. There are some

numbers you will find at the bottom, as well, but I

will just go to the top, if that is okay with the

Panel.

I will just read a passage here.

Half way down the page 1 of the investigators, Mr.

Lenton, asks:

"Now were you, if I remember

correctly, domestically back

in Canada there was some


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discussions with respect to

the Americans taking our

detainees, because I

understand that that's --

that that's kind of what had

been happening up until that

point in time?" (As Read)

Your response was:

"Yes, I'm not sure, but when

that discussion took place

and whether that was a

discussion at the time, I

don't really remember that.

That we were turning them

over to the Americans, I

can't really say that. I do

know, and I don't know what

the date was, when there was

a discussion about our

position was going to be turn

them over to Afghan

government." (As Read)

And then you continue:

"... which raised a whole

bunch of concerns in my mind


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which at many different times

I have raised the concerns up

my chain of command." (As

Read)

And then if we go further down the

page, you continue:

"My concerns were handing

them over and not knowing

what happens to them after

they're handed over. That

was a major concern I had.

And my job at CEFCOM was

basically the Task Force

Provost Marshal in theatre, I

was his technical net. So

Major Fraser was basically

responding to me concerning

technical issues related to

policing matters and

detainees, so concerns with

him saying we should be

trying to do more once we

hand them over, to do more

liaison to confirm what's

happened to them after they


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have been handed over, and

the message I was getting

back was, No, that was not

the position that was being

taken in theatre and he

wasn't staffed for that. And

that's the same message I was

getting to the CEFCOM

commander, General Gauthier,

and his advisor. I was

making him aware of these

concerns, as well, that we're

handing them over, but we

don't know what happens

afterwards." (As Read)

So there it seems that you had

mentioned it to General Gauthier directly.

A. When I say "CEFCOM

commander", it could be one of his staff. You

know, it is not necessarily always -- I mean, he's

the commander and there are many staff that are

basically dealing with the issues, so it could be

one of his staff, which could be the G3 Colonel

LaRoche. It could be the G3 OP staff, I forget who

it is, Colonel -- one of the key staff in


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discussion.

It could have been the commander,

but I can't remember.

Q. Right. In this statement,

though, you mention General Gauthier by name;

correct?

A. Yes. But, you know, you have

to understand your large staff -- when orders are

coming down, they're coming from -- and some of the

key staff say, This is what you are going to do.

Everybody knows it is coming from the commander

through key staff. So it doesn't necessarily mean

the commander is in the room.

So, yes, we may have discussed it

or it might have been one of his staff.

Q. Okay. Then you go on to say

that:

"I was a little bit sceptical

of that whole scenario, but

that was the position of the

Government of Canada and that

was the position I was

getting from the military."

So you weren't fully on board with

the idea that they should be turned over to the


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any follow-up, who knows?"

So then you go on to say:

"I mean [blank] follow-up and

ensure that this doesn't

happen." (As Read)

So there you mention the

possibility of a detainee being turned -- like,

basically let out the back door, so to speak, once

they're turned over to the Afghan -- to the

National Directorate of Security?

A. To kill more Canadian

soldiers.

Q. Fair enough. But then there

is also the possibility, which you bring up, that

the Afghan detainee may be shot dead and left for

dead at the side of the road.

A. Yes.

Q. So that was clearly a concern

that was on your mind that they could be

mistreated, as well?

A. They certainly could. It is

a possibility, as we talked about this morning.

Q. Okay. And it is a

possibility that apparently it was a concern that

was on your mind at the time that you were bringing


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up with General Gauthier?

A. It is a concern -- well --

Q. Or with the chain of command?

A. Certainly raised it with

staff, and I certainly raised it with Major Fraser

in theatre.

Q. So Major Fraser. And I think

it is safe to say that Major Fraser had -- if you

brought it up with Major Fraser, it is something

that he -- being a superior to him in the technical

chain of command, it is something that he might

have brought up with the commander of Task Force

Afghanistan, Brigadier General Fraser I believe it

was?

A. I wasn't a superior of Major

Fraser, to be careful with terminology.

Q. How would you term yourself

in terms of were you higher up the technical chain?

A. I am in his technical chain,

but I am not his superior.

Q. He doesn't report to you in

terms of technical --

A. He does not report to me, no.

Q. Okay.

A. He is basically answerable to


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his commander for his -- basically his job and his

policing role. I mean, he is basically accountable

for what he does or doesn't do concerning his

policing role. But he is certainly not answerable

to me for not doing his job.

Q. Okay. If he were to seek

advice with respect to purely a military policing

issue, who would he turn to?

A. Seek advice?

Q. In the technical chain of

command, who is --

A. That depends on what kind of

advice he is seeking. I mean, if it's legal

related, he may be going to a legal advisor.

If it's -- he is looking for, you

know, more opinions on a police investigation, it

depends on the type of investigation. He may be

going to NIS to discuss it with them. He certainly

could be discussing with me. You know, that's a

scenario.

Q. Let's go into that. How

would you characterize your role vis-à-vis the Task

Force Provost Marshal when you were a CEFCOM

Provost Marshal?

A. Trying to assist him any way


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I can in the performance of his duties. He has got

an awful lot of stuff on his plate in theatre and

some of those challenges are huge.

You are talking about: He's

trying to keep his troops alive, he is trying to

investigate very serious incidents to determine if

they're crimes or not, and he is trying to deal

with these detainee issues.

So my job is basically to try to

support him any way I can so that he can do his

job.

Q. Okay. And in the course of

that role, did you ever provide him with advice on

policing issues?

A. We certainly discussed

certain cases, you know, certain investigations

ongoing and where they're going and what is going

on. We certainly discussed cases, not necessarily

just me.

As I mentioned, Major Gribble was

a point of contact almost daily, and all of us --

meaning a team of us -- would discuss with him

certain issues, as well as not just investigations,

but many, many issues.

Q. Okay. That's helpful. Thank


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agreement that the chief of

defence staff signed with the

Government of Afghanistan

that basically outlines they

won't abuse prisoners, and so

on and so forth. But I

always felt that there should

be more follow-up done, but

we were -- the Task Force

Commander in theatre and the

Task Force Provost Marshal in

theatre were not willing to

go further than hand them

over." (As Read)

So again there's, I guess, another

indication there that you were particularly

concerned about abuse, where you say:

"And of course there's an

agreement with the -- that

the chief of defence staff

signed with the Government of

Afghanistan that basically

outlines that they won't

abuse prisoners." (As Read)

So, clearly, again that was


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something that was on your mind when you were

relaying those concerns up your chain of command?

A. My point in this is any time

the military police touched the detainee, I wanted

us to do everything possible to make sure that our

part in this was we did our due diligence.

Q. Okay. And when you say

"they won't abuse prisoners and so forth", "they"

refers to the Government of Afghanistan in that

sentence?

A. Where is that?

Q. It is just about half way

down the page. If you look at the numbers along

the side, the paragraph starts at number 12, line

number 12?

A. Okay.

Q. Then line number 14, after

you say "there's an agreement that the chief of

defence staff signed with the Government of

Afghanistan that basically outlines", then you say:

"... they won't abuse

prisoners, and so on and so

forth."

So the question is: "They" in

that sentence refers to the Government of


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Afghanistan?

A. Correct.

Q. So there were some concerns

about the Government of Afghanistan abusing

prisoners; correct?

A. My personal view, yes.

Q. That's fine. I will have you

turn closer to the end of the transcript now, page

75, again, using the numbers at the top of the

page.

A. Can I just go back to that

last statement about "they"?

Q. Sure you can.

A. I would have the same concern

handing over any detainee in any theatre of

operation, just to be clear, okay?

Q. That's fine.

A. If we are handing somebody

over to somebody else, I would have those concerns.

Q. Yes, that's fair. Thank you.

A. Okay.

Q. So then you will see at the

top of page 75, Mr. Lenton asks you --

A. Page 75?

Q. Page 75, yes. If you go


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right to the -- okay, right at the top there, it

says:

"MR. LENTON: In the

briefings, either the general

briefings or dedicated

[blank] briefings, were there

ever any mention of risks

associated with the [blank]

that are reported to and the

[blank] and all those kind of

-- like, they're coming out

now in the media more

recently?" (As Read)

And then he continues by saying:

"And you're probably familiar

with them, but at the time

was the INT community, to

your knowledge, were they

aware of that? Was that on

the radar screen at all as a

risk of doing business there

and a risk of passing on

detainees and that sort

of..." (As Read)

Then he trails off. Then you


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begin by saying, "Well, there's", and then there is

two or three lines that are blanked out there, and

then you go on to say:

"... the jails, I can't

remember anything specific

about the jails, but we knew

we were going to send

Corrections Canada to try to

help them establish proper

jails." (As Read)

Then you say:

"Everyone knew the criminal

justice system needed a lot

of work in Afghanistan, so we

knew there were all kinds of

problems with their system,

including the jails, but that

letter that says a

reassurance that they're

going to abuse these folks

was -- sorry, that they're

going to not abuse these

folks..." (As Read)

And then you trail off there

again, and continue:


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A. I would suggest they sent us

to Afghanistan for a reason. There's some problems

there, and we are trying to help them fix those

problems.

Q. Fair enough. And then just

the first sentence, the first line of that same

paragraph, you say:

"Everyone knew the criminal

justice system needed a lot

of work in Afghanistan."

So from that, I take it it is fair

to state that it was common knowledge that the

criminal justice system in Afghanistan, let's say,

didn't put the rule of law front and centre?

A. It is not Canada.

Q. I'm sorry, Afghanistan. Did

I say Canada?

A. I said it's not Canada. That

is my answer.

Q. Oh, it's not Canada. Right.

A. We understand it is not at

the level of, you know, the Canadian justice system

and it has a long way to go, and that's why we're

there, to try to help them, give them the time to

develop their justice system, their security


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forces, et cetera.

Q. Okay, thank you. Can I have

you turn it page 48 of the transcript, please?

Right at the bottom, Mr. Lenton asks the following

question. He says:

"You know the detainees is an

issue, and you have explained

that based on your other

missions and just the general

conditions in the country of

Afghanistan, and, without

being derogatory towards that

government, the conditions

are not the same as

conditions here, human rights

apparently are an issue given

what we hear in the media and

all that? I personally

haven't been there." (As

Read)

And you respond, "Yes."

Presumably you agree with the statement that he has

put to you.

Then it goes on to say -- so then

he proceeds by saying:


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-- to me, that's pretty

straightforward that that's

something we need to look

at." (As Read)

And you proceed by saying:

"And then handing them over,

it's the same thing. We know

enough about the Afghan

situation to know that we

need to be careful when we

hand them over to make sure

they're handed over to an

appropriate agency..." (As

Read)

And then there is a whole bunch of

text that is blanked out, at least on my copy.

Then you go on to say:

"So it is definitely a very

sensitive issue in my mind

and I think in some others,

but, yes, it kind of varies

as to how people felt about

the whole circumstances..."

(As Read)

Sorry, circumstance. Pardon me.


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So what I am particularly

interested in, in that passage, is your statement

that "it is common sense that when somebody has

been beaten, then there has to be an explanation as

to how it happened".

But then you go on to say that:

"... but if they're beaten

after they're in our care,

then that is something that

needs to be looked at."

When we're talking about after "in

our care", and then you go on to say, "and then

handing them over, it's the same thing", so what I

am getting at here is that it was a concern of

yours that after we hand them over -- this is the

third or fourth time it is mentioned in the

transcript -- that there was a concern about their

treatment at the hands of Afghan forces, who we, I

think we can agree, were -- it wasn't Canada, as

you put it.

So do you agree that that was

again a concern that you had? It was another

instance where you had mentioned that there was

some concern about the handling or the treatment of

Afghan detainees once they had been handed over?


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You say that "that's something

that we need to look at", after mentioning that if

the person is injured after being captured, then

that is something that needs to be looked at, and

then you say:

"And then handing them over,

it's the same thing."

So then you agree that in terms of

happening it over, if it came to your attention

there was a risk of torture or abuse in handing

detainees over, that is something that ought to be

looked at. As long as you had a reasonable --

A. If we saw signs of abuse when

we handed them over, then we need to do something

about it to stop it.

Q. Is that all you needed? You

needed to see it first hand, though? Have you ever

seen a detainee being abused?

A. I have never personally seen

a detainee being abused.

Q. Yet you were able to gather

enough information, presumably, and you have

mentioned it wasn't during training you got this

information. You were able to gather enough

information from other sources to raise a concern


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the pressures that the Task Force Provost Marshal

was feeling about this issue and trying to, a lot

of times, get some extra time for him so that we

could get the process done the way we would like it

done.

Q. So it would be in the context

of a meeting --

A. A meeting. It could be a

discussion in the hallway that there is this urgent

issue that has come up about the detainee transfer,

which is the main one that I think of when I am

thinking of detainees at that time.

Q. So I am hearing that some of

the discussions were verbal, no record, and some

there might be a record, not necessarily with

General Gauthier, but maybe with Task Force Provost

Marshal or --

A. Yes. If there is any record

from my standpoint, it is with the Task Force

Provost Marshal's -- I won't say office -- cubicle

that would have that information.

Q. Fair enough. In preparing

for this, for today's testimony, did you go through

the documents or some of the documents that have

been produced?


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A. I went through some, but my

focus was mainly on the time that I was in that

position.

Q. Okay.

A. Because, I mean, I'm a

civilian now. Some of those, I was not even in the

military, so --

Q. Right, okay. Did you see any

record of that, those discussions or that advice or

those encounters that you might have had with

either the Task Force Provost Marshal or somebody

at CEFCOM with respect to the detainee issue?

A. Say that question again?

Q. Some of the records that we

were talking about, did you come across any of them

while you were going through those records?

A. Some of the records? You

mean in here?

Q. Yes, in any of this stuff.

If you haven't, it's fine. I am just asking.

A. Reference what you asked me

before.

Q. Sorry. Basically, I'm just

trying to find out, in terms of the records of --

or whether you documented any of the discussions


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transfer within 96 hours, which I don't take to be

an issue which this Commission is interested in

investigating.

MR. ELGAZZAR: I disagree, first

of all, with the characterization that all Mr.

Major Rowcliffe has mentioned he had concerns about

was the 96-hour issue.

But one of the things -- let me

see here.

MR. PRÉFONTAINE: Just to complete

the loop, Mr. Stannard, I will be looking at your

counsel to take my guidance from.

THE CHAIR: Yes. Just to go back,

the issue of the reports, what dates are you

referring to, the reports?

MR. ELGAZZAR: Basically reports

-- I mean, I can't ask Major Rowcliffe for reports

other than when he was either at J3 OPs 2 or at

CEFCOM, so that would take us to June of 2006.

Sorry, July of 2006.

THE WITNESS: Just a point of

clarification. I was never at J3 OPs 2. That is a

misnomer there.

MR. ELGAZZAR: Pardon me.

THE WITNESS: When they said I was


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at J3 OPs 2, I was in Pakistan. I was in CEFCOM.

BY MR. ELGAZZAR:

Q. Were you at CEFCOM -- yes,

that's right. Thank you.

THE CHAIR: Mr. McGarvey, any --

MR. McGARVEY: Given that there is

going to be a discussion of related issues later in

the day, it might be preferable to make note of

this and deal with it at that time.

I can't say that -- I think that

the chains of communication that exist in 2006

certainly can give us some insight into what chains

of information could have been available during the

time period we are covering.

So we can have a discussion I

think about relevance, but I think it might be best

to have that discussion in the context of the

broader issue of documentation, which is going to

be addressed at some length later this afternoon.

MR. ELGAZZAR: I guess I will just

point out that Major Fraser, who is one of the

people who Major Rowcliffe was communicating with

about these issues, was advising the Task Force

Commander at the time, Brigadier General Fraser,

about these issues, presumably, and I guess we will


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get to that eventually.

I think I agree with what Mr.

McGarvey is saying is I think there may be some

relevance with respect to the chain of

communications, what the Task Force Provost Marshal

knew and what he passed on to the next person.

Again, I will repeat my comments

from this morning. I think it is really for the

Commission to determine relevance and not the

Government of Canada, in this case.

THE CHAIR: That's noted. You can

carry on.

MR. ELGAZZAR: So I will just

proceed, then? Thank you.

BY MR. ELGAZZAR:

Q. Now, the concerns that we're

speaking about, Major Rowcliffe, you had them

despite the existence of the December 2005 detainee

transfer arrangement between Chief of Defence Staff

Hillier and the Afghan Ministry of Defence?

A. Yes.

Q. Okay. As we mentioned

earlier, you were able to come to -- at least you

were able to raise a significant amount of concern

with respect to this issue based on not first-hand


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reports which deal with human rights in

Afghanistan? I know Mr. McGarvey asked you whether

you had access to those, and I understand you said

you hadn't seen those documents when you were at

CEFCOM.

A. That's correct. I haven't

seen them.

Q. Had you received some

document or had access to a document from DFAIT

that said that, you know, there's human rights

concerns that we have in Afghanistan and

particularly in the prisons, and that there is

abuse that is rampant, or something along those

lines, would that have raised a concern for you

sufficient to look into it a little further?

A. It may have raised concerns

to me to discuss with the commander and key staff

the issue, to see if they're aware of this document

and this information, to confirm, you know, that

kind of thing --

Q. Would you have --

A. -- as an initial step.

Q. Would you have had the

latitude to discuss it with a DFAIT official

directly?


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A. It is possible, but not

normally. But it is possible.

Q. I suppose, I mean, if you are

investigating or if you are considering

investigating someone in the chain of command that

--

A. I am not investigating.

Q. Okay. So let's say a

military police officer was investigating or was

considering investigating someone in the chain of

command. Is it fair to say that they wouldn't have

to go through that same chain of command to get to

a DFAIT official or an official they needed to

speak to in order to determine whether there was

grounds for an investigation?

A. Just to be clear, what

exactly is the investigation about?

Q. Detainee abuse.

A. Okay. Then I would say that

they could reach out and talk to whoever they need

to talk to, if that is the case.

Q. Okay. How about if those

reports -- or if you, a military police officer,

had received reports or had seen reports or had

access to reports from an NGO, like, for example,


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Amnesty International or the Afghan Independent

Human Rights Commission setting out concerns with

respect to detainee abuse?

Is that something that you would

have looked at as worthy of further investigation?

When I say "investigation", a small "I"

investigation, further probing.

A. If they were conducting an

investigation like that?

Q. If they had produced a

report. Let's say Amnesty produces a report

saying, Based on our visits and our evidence, we

feel that there is -- the NDS tortures prisoners on

a regular basis. Say hypothetically that is what

it says.

A. If we were aware of it and

saw the report, then that would be further

information to see if a possible investigation is

necessary.

Q. Right. Knowing that the

Canadian Forces are currently turning detainees

over to that very entity; correct?

A. I don't know 100 percent who

they were turning the detainees over to. I know

they were turning detainees over to the Afghan


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authorities. I am not sure exactly who the trusted

agent was. That is something Major Fraser, maybe

the Task Force Commander, could answer.

Q. Okay. Are you aware whether

-- I guess now you know that these human rights

reports exist. DFAIT does have these country

reports. You may or may not have reviewed them,

but I think you understand the gist of it is some

assessment of the human rights situation in

Afghanistan.

In your view, are these -- to your

knowledge, are these reports being brought to the

attention of military police before they're

deployed to Afghanistan?

A. The question is: When were

these reports? What are the dates of these

reports?

Q. I think they range back to

2002.

A. 2002?

Q. Maybe earlier. But the ones

I have seen I think go back to 2002.

A. I am not aware if the MPs

have seen these reports or who in the Canadian

Forces were aware of these reports.


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So my answer is: Not that I am

aware of, because I wasn't involved in their

training.

Q. Do you know who does decide

what the content of MP training will be

pre-deployment?

A. I would say that's a good

question for the Task Force Provost Marshal and the

Task Force Commander.

Q. So you are not aware?

A. Well, I am saying that those

folks have a key role to play in deciding the

training parameters.

Q. Okay. Having been a military

police member for so long and having had such a

well-established career, in your view, is this the

type of knowledge that should be included in MP

training?

A. Oh, absolutely. The more

training, obviously, the better about where we're

going in the situation and, you know, what we are

dealing with, what we are getting into, absolutely.

But sometimes time sensitivity,

some missions very short notice, you may not be

always be able to do what you described.


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Q. Thank you. Now, we discussed

I think at length the issue of your concerns

regarding the handling of detainees. I know I just

want to be fair to you that one of the concerns was

the idea that there was a 96-hour time frame within

which you had to turn them over, but I think it is

fair to say, as well, we have established that one

of the concerns, as well, was whether they be

abused once turned over to the Afghan NDS.

Is that a fair assessment of what

we have been through?

A. Yes, and other things.

Q. That's right. Okay, thank

you. And that you had discussed those concerns up

the chain of command and including not just the

chain of command, but also with Major Fraser, who

was the Task Force Provost Marshal at the time.

Did the commanders heed your

advice?

A. Do you mean was the 96-hour

rule changed as a result of my discussions with --

Q. Any of your concerns

addressed.

A. I would say they were noted,

and I think folks at CEFCOM and the Task Force


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Provost Marshal understood where I was coming from

with some of my concerns, but I can't say anything

changed as a result. I can't answer that one.

Q. Okay. Do you have any -- do

you understand any of the reasons why that may have

been the case? I mean, is it resource issues or

just the simple fact you were a Major --

A. Well, I raised that issue

this morning about, you know, the limitations of

being a one-person branch. Actually, I referred to

myself to the CEFCOM commander as a twig on a

branch, because I didn't have any -- you know, I

was not a branch. Too short of personnel.

So I think the concerns were

noted. There were -- basically, some of it was

related to, I would say, the position of the

Government of Canada concerning turning them over

was part of the issue.

But in theatre, the Task Force

Provost Marshal was basically telling me he did not

have the personnel to be able to do what I was

asking, suggesting, and nor was it his mandate.

Q. Okay. Sorry, repeat that.

It wasn't the Task Force Provost Marshal's mandate?

A. He didn't have the personnel,


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with everything he had on his plate, to be able to

do what I was asking, which was provide more

liaison, to basically -- I wanted them to do more

liaison with, more liaison with the folks that he

was turning over detainees, to give us a good idea

of if the process was proceeding as planned. So

that was part of the discussion.

Q. When you say it wasn't part

of his mandate, what did you mean by that?

A. I mean he's saying he's

manned -- his commander said, This is your role.

This option operational support role detainees that

you have, you are to transfer these detainees

within 96 hours.

Q. Okay.

A. That is your responsibility

to make it happen.

Q. So that was his mandate and

nothing else, is what you are saying?

A. That's -- from his standpoint

that was --

Q. What about, I mean, if the

Task Force Provost Marshal felt that handing over

the detainees would be doing so in light of, or

despite a substantial risk of torture? Would you


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agree that it is part of his mandate to take steps

to look into that, maybe investigate it and/or try

to stop it?

A. If he knowingly knows they

will be tortured when he hands them over, then he

has something to do.

Q. Does he have to know 100

percent, or is it just a reasonable suspicion?

A. Well, I would say he has to

have some pretty good information to be able to

basically not hand over the detainee as per --

Q. Even a step before not

handing them over. Just asking about it, just

investigating the issue, looking into it.

Reasonable suspicion would be sufficient, would you

agree?

A. Investigating what?

Q. Whether there was this risk,

whether -- you know, (a) who are we handing over

to; (b) is there a risk of these detainees being

abused at the hands of these members of the NDS,

for example?

A. There is always a risk. The

question is: Is it an acceptable risk? What is

acceptable in the circumstance that we are in in


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Afghanistan.

Q. How would you determine

whether or not it is an acceptable risk?

Presumably you would have to look into it and see

what the circumstances are and --

A. Basically, the information

that they have, they have a large intelligence unit

in Afghanistan working for the Canadians. They

would have a whole bunch of sources of information.

The Task Force Commander would make that decision

with information from the Provost Marshal and many,

many others.

Q. Set Task Force Commander

and/or the Task Force Provost Marshal would have

access to that intelligence that is gathered from

these intelligence -- the intelligence community

working for the Canadians?

A. The Task Force Commander and

Task Force Provost Marshal would have access to

intelligence that the intelligence deem information

that they should pass to those folks.

Q. Okay.

A. Obviously they would have the

time to be able to read every piece of intelligence

that came up in Afghanistan.


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Q. But if the Task Force Provost

Marshal or the CEFCOM Provost Marshal, for that

matter, requested some category of intelligence,

say, for example, anything having to do with

detainee abuse at the hands of the NDS, that is

something that could be turned over or that would

be turned over by intelligence services?

A. Once again, it is possible.

Of course, who sets the parameters as to what the

intelligence folks are working on and what's

priority 1 and what is priority 4, 5, 6 and -- you

know, I would say the priority is probably based

on, you know, the actual fighting at the front and

trying to keep the soldiers alive.

Q. Okay. Are you aware of any

-- I know I am right into some sensitive issues

here, but what I am asking is: Are you aware of

any intelligence gathering for the Canadian

government having to do with the NDS and their

handling of detainees?

A. No.

Q. So you said just a few

minutes ago, to the best of your knowledge, none of

the advice or concerns you brought up through the

chain of command or mentioned to the different


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officials you mentioned earlier was heeded, maybe

with the exception, to be fair, of the idea of

adding the grandfather's name to the information

that is gathered from the detainees?

A. As far as I know, but I

wouldn't necessarily know. Like, the whole

pressure of 96 hours and discussions with the Task

Force Provost Marshal about the pressure he was

under, maybe they did back off a little bit on how

quickly they had to be transferred.

I don't necessarily know if they

were given extra time as a result of some of my

discussions.

Q. Okay. In terms of the people

who were involved in those discussions at CEFCOM,

in particular, did you feel that you were

particularly well placed as an MP -- and we spoke

earlier about the expertise of MPs with respect to

detainee issues. Did you feel you were

particularly well placed to give that advice?

In other words, was it advice that

should have been taken into account in making

decisions?

A. Certainly I felt that I am

one of the voices, but I am certainly not the only


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voice to raise concerns about issues about

detainees. There's many folks from many different

angles, and not just within the Canadian Forces,

but within the government as a whole, that have a

role to play with the detainee and giving advice

both to the Government of Canada and to the

Canadian Forces and, as a result, to CEFCOM.

So it is not just me. I am not a

voice -- the only one that is the detainee, it is

the Provost Marshal's role. There is a lot of

advice from a lot of different areas and a lot of

different angles.

Q. Okay. I am going to have you

turn to -- there's those volumes beside you that

you are cerlox bound. It's volume 1 of 5.

A. Are we finished with this

volume?

Q. Yes. I think that is

probably it, unless I for some reason feel we have

to go back to it, but we are probably done with

that. Tab 3.

Major Rowcliffe, this appears to

me to be something called a Military Police

Technical Directive?

A. Hmm-hmm.


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Q. You're familiar with it?

A. Yes.

Q. And it is effective March

15th or was effective March 15th, 2006. Am I

correct in saying that?

A. Yes.

Q. Okay. And you would have

been familiar with this document during your time

at CEFCOM as CEFCOM Provost Marshal?

A. I did see it.

Q. Okay. If I could ask you to

turn to page 3 of 8? Those numbers are at the

bottom of the page, paragraph 11. There is a

paragraph there that seems to be titled "specific

guidance". It seems to have been either

highlighted or blacked in. It's difficult to read

there, but I believe it says "specific guidance".

Are you with me?

A. Yes.

Q. Okay. Just before I go into

it, this applies to military police, in particular;

correct?

A. Yes.

Q. So then it says:

"While deployed on


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to detainee abuse --

A. Yes.

Q. -- rules of engagement. And

then with respect to the law of armed conflict?

A. I mean, there is a lot more.

I should say there is a lot more than that.

Q. Okay. But what comes to

mind?

A. Things like if they're --

when they're shooting at a mosque and all of those

kind of things. It could get into those areas,

which are very broad, but it also involves, you

know, obviously we have legal advice to work

through some of these issues to see if there's an

investigation and whether it should be done by the

military police in that circumstance.

Q. All right. And, in contrast,

the law of armed conflict?

A. The law of armed --

basically, just how we -- basically, how we operate

as a military in a war situation, following the

rules that are set out in -- you know, in

international law.

Q. Geneva Conventions, things

like that?


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A. Yes, exactly.

Q. In your view, is it unlawful

to transfer detainees to a substantial risk of

torture?

A. Substantial risk? Yes.

Q. Given your knowledge of the

prevalence of abuse in Afghan prisons and given the

fact that transferring detainees to a substantial

risk of torture is against the law, in your view,

doesn't it follow that an investigation into the

legality of such transfers ought to have followed?

A. I did not know about a

prevalence of abuse of prisoners, of torture, at

that time.

Q. You had concerns about it?

A. And I already covered that,

that I had concerns as I would have concerns in any

country that we were in concerning the transfer,

that justice is served after transfer, not just

abuse, but all things, you know, that the case

proceeds accordingly, they have the evidence

necessary, and so forth.

But you left out, though, in some

of this, is the other government departments

involved and that they were also doing their due


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diligence to ensure that the government position to

transfer the detainees made sense, and that

information was also coming back to the Task Force

Commander and others to say, Yeah, it's okay,

continue to transfer or transfer should happen.

Q. So there was information that

was getting to the Task Force Commander?

A. I would say, I mean, only the

Task Force Commander can answer that, but we do

know that we did bring in Correctional Services

Canada into theatre to look at the detainee and

look at the prisons, et cetera.

Q. But we agree that if there is

a substantial risk of torture or so there is what I

would say a reasonable suspicion there is a

substantial risk of torture, and --

A. You're saying hypothetically

or you're talking about Afghanistan specifically?

Q. Let's say hypothetically

first.

A. Hypothetically, and I said

"yes".

Q. Then that would be against

the law?

A. That would be something that


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requires us to investigate before we transfer any

more detainees.

Q. So really the question is

whether the information at hand is sufficient to

establish a reasonable suspicion?

A. I just want to back up from

the last thing, and I am not saying it is

necessarily the MPs that would do the

investigation. That would be something that, you

know, the military police, if they're the ones that

uncovered some information, hypothetically, then

they would raise that issue up the chain, and

perhaps the investigation may come from another

government department, RCMP, DFAIT, whoever,

Corrections Canada, whoever, to determine, you

know, should detainees be transferred or not.

And it may not be the military

police's role or mandate to investigate the Afghan

prison, you know, situation.

Q. Well, is it the Afghan prison

situation that is being investigated or is it the

act of transferring those Afghan detainees to that

Afghan situation that we're talking about?

A. I would say one is tied to

the other.


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Q. That's right. And so would

the -- well, let me put it this way.

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?

A. 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

probably 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.

Q. So, in your view, the serious


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A. I told you what I said to

Major Fraser on the phone at least once, maybe

more, was, is, the concern about liaison after the

transfer, to me there should be some sort of police

liaison after to make sure that they've got the

information they need to proceed and also will give

us some good insight into how they're progressing

as a criminal justice system in Afghanistan.

Q. Including how they handle the

detainees?

A. Well, that is all part of the

criminal justice system, isn't it?

Q. Okay.

I only have a few more questions.

In terms of information that would be sufficient to

warrant investigation of whether or not transfers

were legal, are you aware of the Graeme Smith

article that appeared in the Globe and Mail in

2007? I believe it was April 23rd, 2007. I

recognize that you weren't at CEFCOM at the time.

A. No, it doesn't ring a bell.

Q. Okay. Maybe we could turn to

it. It is in volume 3 at tab 5. Why don't you

just take a minute and have a read?

--- Witness reads document.


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Q. Okay?

A. Yes.

Q. And so I think you will agree

with me that this article discusses what Mr. Smith

is suggesting are instances where detainees

transferred to the NDS have been tortured or abused

in some way?

A. Alleged.

Q. Fair enough, alleged. In

light of what you said earlier, that transferring

detainees to a substantial risk of torture is

unlawful, had this type of article come to your

attention while you were at CEFCOM, CEFCOM Provost

Marshal, is this -- was this something that you

would have suggested to Major Fraser requires

further investigation?

A. Well, I certainly would

probably have first been discussing with the CEFCOM

Commander and senior staff about this article and

the issues that are being mentioned to confirm, you

know, what, if anything, besides this do we know.

What are the sources of this information? Do we

have any other details related to this?

Because just because it is in the

paper doesn't mean it is true; right?


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--- Laughter.

THE WITNESS: Sorry to the media

folks.

BY MR. ELGAZZAR:

Q. Fair enough. Do you think it

would have been prudent or it would be prudent to

speak to Mr. Smith, for example?

A. Mr. Smith.

Q. Being the author of the

article.

A. I personally wouldn't be

speaking to Mr. Smith, no.

Q. No?

A. But I certainly would be

speaking to folks like the commander, the NIS and

others about this issue, and obviously the Task

Force Provost Marshal, so --

Q. So am I understanding that

you wouldn't go outside the CF structure to get

information about this issue?

A. I am a branch of one,

remember? I certainly do not have the time to

conduct an investigation. If I tried to conduct an

investigation about something like this, then what

else is not getting done?


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Q. Let's say hypothetically you

had the resources to do so. What I am trying to

get at is: Is this something that warrants further

scrutiny?

A. Absolutely.

Q. It does?

A. Yes.

Q. I mean, specific names are

mentioned, ages. I mean, there is some information

there that could be used to --

A. True.

Q. -- look into it further?

A. Sure.

Q. It is something you think

probably should have --

A. Not just the MPs, is what I

am trying to say. This is something for the

Canadian Forces, the Government of Canada,

everybody to look into. Several departments would

be involved. I would suggest even the Minister I

think is mentioned in here, so obviously should

probably look into it.

Q. But those entities include

the military police?

A. Certainly. We're part of the


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military.

Q. As you said earlier, you have

the particular expertise in detainee issues?

A. Yes, we have certain

expertise in detainee issue and handling prisoners,

so that area.

Q. Okay. Thanks very much.

Those are my questions. Thank you.

THE CHAIR: Mr. Wallace?

MR. WALLACE: I don't have any

questions of Major Rowcliffe. Thank you.

THE CHAIR: You patiently waited.

Thank you. Mr. McGarvey, any issues -- I'm sorry,

Mr. Préfontaine.

MR. PRÉFONTAINE: Sorry, I have

two questions.

CROSS-EXAMINATION BY MR. PRÉFONTAINE:

Q. Major Rowcliffe, Mr. Elgazzar

discussed with you a potential criminal offence of

transferring to a substantial risk of torture.

If the subject of this potential

investigation was the commander, the Task Force

Commander, would it not be more correct to say that

the offence that the Task Force Commander would

allegedly have committed would have been to


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knowingly transfer to a serious risk of torture?

A. I am not -- I mean, this is

something -- the actual offence, what it would be

would be something I would have to do some research

as to what would be the appropriate offence that we

would be investigating, but that sounds reasonable.

Q. So assuming, for the purposes

of the next question, that the offence is knowingly

transferring to a substantial risk of torture, is

it fair to say that the Task Force Commander has

access to information which the Task Force Provost

Marshal doesn't have about the risk of torture?

A. I would say that that's quite

possible, that he has access probably to an awful

lot more information than the Provost Marshal would

have. He certainly has an awful lot more. All of

the staff in theatre work for him. They don't work

for the Provost Marshal.

Q. And the same could be said

for your position as CEFCOM Provost Marshal

vis-à-vis the commander of CEFCOM?

A. Oh, absolutely. The

commander of CEFCOM has huge resources at his beck

and call, I would say, and I am a branch of one

trying to get information where I can.


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Q. So is it possible, in your

view, that because they have access to more

information, they come to a different conclusion?

A. Absolutely.

MR. PRÉFONTAINE: Thank you.

Those are all of my questions.


MR. McGARVEY: I have just two

very brief questions, as well.

RE-EXAMINATION BY MR. MCGARVEY:

Q. You were taken by Mr.

Elgazzar to page 9 of your transcript -- and this

is just a clarification question in relation to

something I asked you this morning -- where he took

you to a passage where you suggested one of the

concerns would be that if a person is transferred

maybe when they leave the base, the person will be

taken down and shot in the back of the head

somewhere down the road, words to that effect.

I asked you this morning about

summary justice. Is that what we're talking about

when we -- is that what you understood I was asking

you when I asked you about a concern over summary

justice?

A. I would have to know exactly


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how the wording was for the question this morning

to be able to say if it was exactly the same as

what was asked now.

Q. Fair enough. I asked you

this morning if, among your concerns for

transferred detainees, one of them would be that

they would be subjected to summary justice by the

people receiving them.

My question, simply, to clarify

what is meant by summary justice and whether that

passage is what you would have understood I was

asking you in that context?

A. I would say that sounds

reasonable.

Q. Okay. That was just a point

of clarification.

One of the points that was raised,

you indicated, with respect to assessing the Task

Force Provost Marshal, that it was not your role to

second-guess the decision-making of that person who

is there on the ground.

I am just curious. Is that

something you can say, you know, as a general

proposition, that at all times you were not to

second-guess their decisions, or just that you


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would be disinclined to? I mean, I am just

thinking could there not be evidence that would

cause you to second-guess the decisions to transfer

the acts of the Task Force Commander and/or Provost

Marshal in these sorts of situations?

A. I think the point I was

trying to make is I was in a staff position. The

Task Force Provost Marshal was in a command

position. So I am not second-guessing the Provost

Marshal in theatre, who is a commander in his own

right.

I am basically there to assist

him, maybe provide him some advice and some

guidance. You also have to understand he was

senior to me, in terms of time and rank and

experience.

So we certainly had a very good

working relationship. I saw us as a team trying

to, you know, basically survive a very busy mission

with a lot of issues, and if there were concerns I

had, I certainly would raise concerns to him that,

This is a concern, perhaps you need to look at it.

And we would discuss those kind of things.

Q. Okay. And I think in your

transcript -- I won't go to the passage, but I


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think you said something along the lines of people

have to understand you can't tell the Task Force

Provost Marshal what to do. That is what you mean

by --

A. Exactly.

Q. -- that?

However, if you did have concerns

about the legality of the Task Force Provost

Marshal's acts, and if after discussing them with

the Task Force Provost Marshal you were not

satisfied with the answer you received, what could

you see yourself doing in those circumstances, if

you were still concerned about the legality of --

either the Provost Marshal or the commander for

that?

A. Depending on what the issue

is, it might be something to go to the CEFCOM

commander. He might be able to talk to the Task

Force Commander and say, you know, Deal with your

Provost Marshal, who does have command authority

over him.

If it is a police-related matter,

then perhaps I am talking to the NIS and saying,

This is what's happened in theatre. This is what I

have done. Perhaps NIS needs to investigate the


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communicate concerning, you know, his concerns and

his issues, and then that policing function, police

matters, then he basically has a line through me to

the -- I think Colonel Ander was the Deputy Provost

Marshal police -- to the police folks who are

managing all of the police investigations in the

world, right?

MR. BERLINQUETTE: Okay, thank

you.

THE CHAIR: Well, I want to thank

you for your attendance today. It sounds like you

are enjoying civilian life, but thank you for your

past service to Canada and all of the nations you

obviously served. Thank you very much.

THE WITNESS: Thank you.

THE CHAIR: And you are excused

for today, but you can just hold for a second?

THE WITNESS: Thank you.

THE CHAIR: We are going to take a

quick five to ten minutes so I can get Mr. Lunau in

the building, so I want to get that taken care of

or him back in.

So we are just going to take five

minutes and we will come back. We are going to

talk a little bit about what we set out to do this


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morning relative to documentation and also

potentially order of witnesses. So we will take

five, ten at the most.

--- Recess at 2:30 p.m.

--- Upon resuming at 2:38 p.m.


MR. BERLINQUETTE: Merci.

PROCEDURAL MATTERS:

THE CHAIR: I want to address,

first, the issue of Mr. Elgazzar. You asked for or

you had some discussion about some documents

between Mr. Rowcliffe, or Major Rowcliffe at that

time, and CFPM, I believe; is that right?

MR. ELGAZZAR: It was the TFPM.

THE CHAIR: TFPM, sorry. I have a

little bit of concern with that. I am not sure of

the relevance of that. I am also not sure that

those documents are really outside of our date.

So I just need to --- you can

review your own notes and your evidence, and if you

believe that there is an issue for us to consider,

if you could provide us a letter or some type of a

written statement just outlining what the relevancy

of those documents would be before we just

arbitrarily ask for production of them, just to


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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.

THE CHAIR: The only reason I ask

that is some of the -- I think when we were

discussing -- I believe it was Gosselin -- Mr.

Gosselin, there was discussion about some

documents, and you had indicated that you had seen


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the documents. I think that was the one.

MR. PRÉFONTAINE: You might be

referring to my cross-examination of Mr. Colvin.

THE CHAIR: Or, Mr. Colvin, okay.

You had indicated that you had seen the documents.

MR. PRÉFONTAINE: Yes, yes.

THE CHAIR: Aside from the fact

you may have been giving a little bit of evidence,

but that is -- so I am kind of confused as to

whether or not you are involved in that, or do you

see them after or you saw them --

MR. PRÉFONTAINE: I saw them in

preparation for the cross-examination, which means

that the document would have been identified. They

would have been processed. They would have been

delivered to the Commission. The Commission would

have decided which documents it wanted to rely on.

THE CHAIR: Then you would have

seen the unredacted version of it?

MR. PRÉFONTAINE: Correct.

THE CHAIR: At that time?

MR. PRÉFONTAINE: By that time in

preparation for the cross-examination.

THE CHAIR: So the --

MR. PRÉFONTAINE: In fairness, I


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should add that Mr. Colvin also had access to the

unredacted documents.

THE CHAIR: I guess we are the

ones that didn't have access to them.

MR. PRÉFONTAINE: Unfortunately

you did not, and I understand your predicament, I

mean, but this is the situation we're -- I am in,

and there is not much I can do.

THE CHAIR: Well, there is,

actually, and that is you can assist us in finding

an appropriate way, a reasonable way, in terms of

timing and everything else that goes with it, to

ascertain and obtain the documents, the redacted

documents, that is -- we are not looking for

anything that we can't have -- in the most

speediest way that we can, having said that, you

know, we have been a number of months at this.

I am not going to rehash all of

that. We all know what the dates are.

So in terms of the Brigadier

General Blanchette, what I am hearing is that he is

the only name we have from you at this point, or

Mr. Edwards, and from there I guess we have to look

for other names, if we want to bring somebody

forward, because you are not offering that.


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MR. PRÉFONTAINE: Well, I am not

clear as to exactly what you want.

THE CHAIR: Well, I guess if we

could get the documents, then we are going to get

what we want.

So, you know, I don't know which

comes first, the horse or the cart. We need

documents to finish the job that is at hand, and

hopefully the second part of this you will be able

to help us answer, through your contacts, as to

when that might -- we might be able to expect those

kinds of things, such as the ones we talked about

today, that we talked about.

Now, I think before we -- so that

is so you know what we're looking for. At this

point, you say you can't help us.

MR. PRÉFONTAINE: Provide dates or

a name.

THE CHAIR: Well, let's get by the

name for a minute. Let's get by to the date.

MR. PRÉFONTAINE: To the date, no,

I can't.

THE CHAIR: You can't help us at

all?

MR. PRÉFONTAINE: Not as I am


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sitting here, no, because then I have to get the --

confirm this from your counsel. I have to turn

around and say, Okay, where are we in the process,

with the people who are handling the different

phases of the process.

THE CHAIR: And when might we be

able to get to those kinds of questions and

answers?

MR. PRÉFONTAINE: I expect that

you are more looking for the answer than the

question, but when would we be in a position? I

mean, I can report obviously as soon as I have

information, and given that we are in hearings

tomorrow and I can't be at two places at the same

time, I would say by Friday, but --

THE CHAIR: Surely somebody is

there that can just answer the questions. These

aren't questions that are that difficult to answer,

are they? These people have been working on these

documents supposedly for some time; others for not

as long. But there are -- you know, people have a

file, so they must have an idea of where they're at

without it taking two or three days to get an

answer as to where we might be.

MR. PRÉFONTAINE: I will ask the


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question and relay the answer once I have it, Mr.

Stannard.

I understand your concern. I

share the concern, but, unfortunately, the only

thing that I can do is to ask the question and

relay the answer.

THE CHAIR: Okay. Before I do

that, I think there is a couple of -- we have a

little bit of issue relative to numbers, and

whatnot, and documentation. Mr. Lunau, I don't

know if you want to address that.

MR. LUNAU: Well, it was in

response to something my friend said this morning,

made an allusion, when we were discussing the

Gosselin reports, to the Commission having received

20 of 21 reports.

That information is not correct.

I just want to clarify, for the purposes of the

record, that when Mr. Préfontaine was speaking this

morning to the Commission, his statement appears to

have crossed with a letter that was also sent to

the Commission this morning.

In that letter we are told that --

and I will just read from the letter:

"For the sake of consistency


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Lunau raises it, that allows me to address it. The

first point is that Mr. -- we have checked after

Mr. Gosselin testified whether there were eight

additional reports, and the answer, as far as I can

make out today, is, no, there are not eight

additional reports, but there are eight allegations

of torture which were contained in site visit

reports.

They were disclosed -- attached

actually to Mr. Gosselin's affidavit in the Federal

Court proceedings, which were shared with the

Commission, and therefore the Commission already

has those.

It doesn't answer Mr. Lunau's

question, and, therefore, this morning when I told

you you have 20 of the 21 reports, that's what I

was referring to, the reports that we knew had

allegations of mistreatment.

Mr. Lunau now speaks to something

different, the January to June 2008 reports, which

Mr. Gosselin spoke to. We are tracking those down

and we are going to be addressing those separately,

but the first thing we had to find out, after Mr.

Gosselin testified, was what was already produced,

so that we could target what needed to be accessed


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and produced further.

So I agree that too many numbers

can lead to confusion, but there is a rational

explanation. So it is eight allegations, which

found their way in 21 reports, 20 of which are

already in your possession. And then going by Mr.

Gosselin's testimony of two visits per week between

November and -- November 2007 and June 2008, my

calculation brings me to 44.

And the point here is simply this,

Mr. Stannard. I understand that the theory that

your counsel is advancing to conclude that these

documents would be irrelevant is that the

Commission has to look at the information that was

accessible to the Task Force Commander, in essence,

doing the investigation the MPs allegedly failed to

do.

Now, if one has to find out what

the commanders knew about the risk of torture, then

obviously cherry-picking the reports that contain

only allegations of mistreatment would not present

a balanced view of what these commanders knew;

hence, the suggestion to Mr. Lunau contained in my

letter of this morning that if that is what he is

looking for, then the number has to be expanded so


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clear, the 44 reports that you are referring to, or

approximately 44 reports, referred to site visits

only and they do not include the 20 or 21 reports

of mistreatment? There's two different things;

correct?

MR. PRÉFONTAINE: No. The 44, the

number of 44, refers to the totality of the site

visit reports.

THE CHAIR: The totality. So that

includes the 21?

MR. PRÉFONTAINE: It should. I

say that simply because we are now seeking those

out. We have to get them. We have to see what was

produced, and that will allow me to answer in an

informed way.

THE CHAIR: Okay.

MR. PRÉFONTAINE: The only thing I

can do now is to answer based on what Mr. Gosselin

testified.

THE CHAIR: Do you have the

information that you require to ask the questions

for us in order to get the answers that we need?

MR. PRÉFONTAINE: I believe I do.

THE CHAIR: You said you needed to

discuss it with counsel, or you have that


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information?

MR. PRÉFONTAINE: In relation to

the reports we have just discussed?

THE CHAIR: Yes. That, and are

there some other reports?

MR. LUNAU: Well, my friend --

THE CHAIR: There's Ms. Duschner's

reports. There is DFAIT reports. Those are part

of the documents.

MR. LUNAU: Yes. My friend said

he needed to have a confirmed list from our side.

I have difficulty with that comment, because it was

my friend who said they had additional documents

for Ms. Duschner. So I presume they know what

documents they are telling us they have. I

certainly don't know.

In terms of the DFAIT documents,

again, it is my friends who have reported to us

that they have about 4,000 pages of documents

they're reviewing. So there is no confirmation

from us. There is no list we can give them.

We are the recipients. We are

waiting to get documents that we have been told

they have, the same with the letter this morning

saying, by my friend's estimation, there is now 44


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Gosselin documents.

Well, fine. There is no

confirmation from us that is needed. Just give

them to us.

MR. PRÉFONTAINE: It is more the

order of priority that I was looking for, if there

is a particular order in which Mr. Lunau wishes to

receive them, if there are documents which have a

higher priority. I am operating since January from

having fulfilled the first part of the requirement;

that is to say producing those documents Commission

counsel identified as being critical to the hearing

starting.

Having fulfilled that, obviously

we are doing the best we can, and we are diligently

trying to produce the rest.

If there is something, though,

that Commission counsel wishes to have on a more

urgent basis and therefore needs to be changed in

the queue of documents, that is where I am seeking

guidance from him.

THE CHAIR: Well, it is somewhat

frustrating now to start talking about the priority

today, when we have been waiting since October of

2009, and there was a priority list established


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then I think in the last three, four months, we

have received limited documentation, even though I

am assuming the redaction and the relevant process,

screening, relevant screening process, has been

ongoing. I am assuming it hasn't stopped.

MR. PRÉFONTAINE: It has not.

THE CHAIR: So it is just

befuddling a little bit that we are getting such a

trickle of documentation.

And I know you are going to try

and get an answer, but it is still -- you said it

is frustrating, and you are darn right. It is

frustrating, because this has been many months now

we have been waiting. These documents are required

to address all parties, including subjects and

everything that may have an interest in

documentation, your clients.

MR. PRÉFONTAINE: I am keenly

aware of that, Mr. Stannard.

THE CHAIR: Maybe your clients

would be interested in some of the documents being

processed, as well.

MR. PRÉFONTAINE: And to the

extent they have expressed interest, these

documents have been identified. They have been


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processed so as to enable them to testify when they

appear before you.

THE CHAIR: Right. Hence, the

question, the big question, is when. But, Mr.

Lunau?

MR. LUNAU: I guess I am at a loss

to know where I go from here until we get some

clear indication from Mr. Préfontaine, hopefully

tomorrow morning, as to what the status of the

document production is.

With respect to the Duschner

documents, I would have thought they were pretty

much ready to be released, given she was supposed

to testify a few days ago. We were told the

evening before that there were additional documents

relevant to her testimony. I would have thought

they were already pretty high up in the queue.

The Gosselin document issue is

something that emerged April 14th.

So, you know, my friend, at least

their enquiry has gotten to a point of saying, By

our estimation, there is 44 documents. Where they

are in the queue, how much review has to be done, I

am really in the dark at this point.

THE CHAIR: Okay. It is 3 o'clock


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now. There is still a few hours left in this good

working day. Tomorrow morning there is still some

time. Hopefully you can at least ask some

questions relative to -- or have them asked through

you or your team as to give us some indication of

some expectation as to where we're at and where --

when we may receive documents, and I would ask that

that be done.

And we will adjourn until 10

o'clock tomorrow morning. That will give you some

extra time. We have a witness that is coming in

for 9:00, but we will deal with this after. I

don't believe the witness is much like today, all

day. I don't think so.

MR. WALLACE: Mr. Chair, before we

adjourn -- I am sorry, I don't mean to interrupt

you. Are you finished?

THE CHAIR: You have been so good,

Mr. Wallace, I won't interrupt you. So you carry

on.

MR. WALLACE: Terrific. From my

perspective, you have just hit on a point towards

the end of the submissions of Mr. Préfontaine, and

it dovetails into another point that was going to

be addressed I thought this afternoon, but


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apparently not, and that is the order of witnesses.

THE CHAIR: I am just going to

touch on that before we go.

MR. WALLACE: Okay. It relates in

this fashion. From my client's perspective, and

for all subjects, it is my position that procedural

fairness would dictate two things: Number 1, that

they know the case they have to meet, which would

be the documentary portion of it, as well as the

viva voce portion of it, which would imply that

there be full disclosure before they testify of

documents; and, number 2, that they would testify

after the other witnesses.

Now, I appreciate that we are

dealing really right now, today, with the first

problem, but I think it is a very serious issue

that we have to get straightened away.

THE CHAIR: Yes. Thank you.

In regards to witnesses, I think

the issue for order of witnesses, I think there

needs to be some discussion with counsel, between

counsel, and I really don't want to get into -- to

deal with that today, but following whatever the

answers are going to be relative to documentation,

I think your points are well taken, Mr. Wallace.


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And I think counsel for parties

needs to have a discussion before we commence

tomorrow, because these witnesses have been waiting

and they're, I think, tentatively scheduled for

certain days, and we need to give them a little bit

of advance warning.

Either we are going to hear them

on those days or we're not, and address when we

might hear them, out of fairness, and also fairness

for counsel that is here representing people today.

So we will deal with that either

at commencement, or shortly before, between

counsels.

So we will adjourn for today, and

hopefully by 10 o'clock we will at least have some

preliminary answers or a place where we may get

those answers from Mr. Préfontaine.

Thank you.

--- Whereupon the hearing adjourned at 3:10 p.m.

to be resumed on Wednesday, April 21, 2010

at 10:00 a.m.


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afghanistan public interest hearing transcript - april 20 2010

Documents