hearing transcript - april 12 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'INTRT PUBLIQUE SUR L'AFGHANISTANtenues en vertu du paragraphe 250-38(1) de la Loi sur la
dfense nationale pour le dossier 2008-042
TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.
Ottawa, Ontarioon Monday, April 12, 2010
VOLUME 4
BEFORE:
Mr. Glenn Stannard Acting Chairperson
Mr. R. Berlinquette Commission Member
Ms. R. Clroux Registrar
APPEARANCES:
Mr. Nigel Marshman Commission counselMr. Matthew McGarvey
Ms. H. Robertson For Maj Bernie Hudson, MajMs. E. Richards Michel Zybala, Maj Ron Gribble,Mr. V. Wirth LCol (Ret'd) William H. Garrick,
CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner
Ms. Grace Pastine For Amnesty International andMr. Khalid Elgazzar ForB.C. Civil Liberties Association
Mr. M. 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
(613) 564-2727 (416) 861-
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(ii)
INDEX
PAGE
SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE 1
Examination by Mr. McGarvey 7Cross-Examination by Ms. Pastine 118Cross-Examination by Mr. Wallace 164Cross-Examination by Ms. Richards 171Re-Examination Mr. McGarvey 194
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(iii)
LIST OF EXHIBITS
NO. DESCRIPTION PAGE
P-53 Collection U. 2
P-54 Email from Lieutenant-Colonel Garrick datedMarch 1, 2007, document number C448. 6
P-55 Email from Lieutenant-Colonel Garrick datedMarch 6, 2007, document number C449. 6
P-56 MPCC Final Report - Public Interest Investigation. 133
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Ottawa, Ontario
--- Upon resuming on Monday, April 12, 2010
at 9:05 a.m.
SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE
THE CHAIR: Good morning. Thank
you.
Bonjour. Good morning.
Before we start this morning, I
would just like for us to take a moment in
remembrance of Canadian Forces Private Tyler
William Todd, 26 years old, who was killed about
7:30 in the morning on Sunday in Afghanistan. I
think it appropriate we take a moment and remember
him and his family and the other injured soldier in
our thoughts and prayers as we move along with our
day. So if we could take a moment in remembrance.
Thank you.
Mr. McGarvey.
MR. McGARVEY: Yes, good morning,
members of the Panel. Thank you.
Just a couple of brief
housekeeping matters. First, if I could introduce,
for counsel for the complainants, this morning we
have someone who is a new face to the Panel and
myself, but not new to these proceedings, Ms. Grace
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Pastine, who is counsel to the BC Civil Liberties
Association and is appearing also in conjunction
with Mr. Elgazzar, with whom we are familiar, for
Amnesty International, as well.
So she is here this morning. I
would like to welcome her.
THE CHAIR: Welcome.
MR. McGARVEY: The second
housekeeping matter, there are some new exhibits to
be entered this morning. First, there is something
which is referred to as Collection U, and it is a
series of documents that were produced by Mr.
Champ, counsel for the complainants. And if those
could be entered, they already have been assigned a
number, P-53.
EXHIBIT NO. P-53: Collection
U.
MR. McGARVEY: It is a collection
of nine documents, and they have been bound and
tabbed into a volume for the parties.
THE CHAIR: Okay.
MR. McGARVEY: If I could just
make a couple of comments about these documents.
These documents were provided to
Mr. Champ apparently either directly or indirectly
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as a response to a public document request under
the Access to Information legislation. They were
never provided to the Commission, and it is
troubling to Commission counsel that that is the
case. It appears that the government unilaterally
decided, on the basis of evidence unknown to us,
that the documents were unavailable to the military
police, despite the fact that they appear to be
publicly available on request to members of the
public.
In our view, whether these
documents were available to the military police is
exactly what the Commission is supposed to be
determining, and we find it troubling, to say the
least, and I think it is fair to say that Mr. Lunau
and/or other Commission counsel intend to pursue
this and other issues further, but I do not propose
to canvass all of the issues in relation to that
this morning.
I simply wanted to make that
comment in relation to these documents.
THE CHAIR: Are there other
documents that are like documents that somebody has
that we have not received?
MR. McGARVEY: At this point, we
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cannot know that, for the simple reason that you
can't know what you don't have. So that is, I
think, what we will be pursuing. I think it is
based on some contention over the framing of and
interpretation of the summonses that were issued by
the Commission in relation to documents and what
test the government might be applying to the issue
of whether these documents were "available" to the
military police.
Of course, our view is if they are
available to the general public, these ones at the
very least ought to have been captured. But we
will leave that to further discussion perhaps
between counsel, and we will advise the Commission
further, if and when it becomes necessary to seek
Commission's formal input into the issue.
The other --
MS. RICHARDS: If I could just
comment on that before you move on, I just want to
be clear about Commission counsel's assertion that
the documents were available to the general public.
As you are aware, under ATIP all
government documents are available to the general
public subject to the appropriate privileges being
applied.
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So it's a bit of a misnomer to say
because these documents are available to the
general public, they would have been available to
MPs. Under the regime that we work in in the
government, all documents can be requested by the
public.
THE CHAIR: I think the argument
is bigger than that, isn't it, though, in terms
of --
MR. McGARVEY: Well, as I said, I
don't think it is productive to get into the
substance of any dispute at this time. I simply
wanted to put some comments on the record and you
have those comments.
There are two more documents to be
entered this morning. They have an MPCC number
C448 and C449. They have been assigned, subject to
being entered, Exhibit Nos. P-54 and P-55. And
they are an email -- two emails from
Lieutenant-Colonel Garrick dated March 1st and
March 6th, 2007, respectively.
THE CHAIR: So 54 would be which
email?
MR. McGARVEY: P-54 would be the
March 1st, 2007 email.
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EXHIBIT NO. P-54: Email from
Lieutenant-Colonel Garrick
dated March 1, 2007, document
number C448.
MR. McGARVEY: Document number
C448. And P-55 would be the March 6th, 2007
document, C449.
EXHIBIT NO. P-55: Email from
Lieutenant-Colonel Garrick
dated March 6, 2007, document
number C449.
THE CHAIR: Where are those
documents?
MR. McGARVEY: They should already
have been placed in the collection by --
THE CHAIR: Oh, they're in the
binders?
REGISTRAR: Yes, 54 and 55.
THE CHAIR: All right. Okay,
thank you very much.
MR. McGARVEY: Thank you.
Today we have one witness
scheduled. That would be Lieutenant-Colonel Gilles
Sansterre, or Sansterre, depending on how people
pronounce his name. He apparently has no
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preference as to the pronunciation, so we are
fortunate that the people whose inclinations lean
towards the anglicized pronunciation --
THE COURT: People have probably
messed up the pronunciation so much he has given up
in the hope of correcting.
MR. McGARVEY: Yes. I appreciate
his cooperation in that area. In any event, if we
could have Lieutenant-Colonel Sansterre appear,
please?
MR. McGARVEY: He has already been
sworn by the registrar.
THE WITNESS: Good morning.
THE CHAIR: Good morning, and
welcome. And we apologize if we at any time
butcher the proper pronunciation of your name.
THE WITNESS: No problem at all.
EXAMINATION BY MR. McGARVEY:
Q. Just for the assistance of
the members of the public and the reporters, if you
could draw the microphone a little closer to you so
that we can all hear you properly. Thank you.
Lieutenant-Colonel Sansterre, I
understand that you are currently the commanding
officer of the Canadian Forces National
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Investigation Service?
A. Yes, that's correct.
Q. How long have you been in
that position?
A. I have been in that position
since August of 2008.
Q. And you took command of the
National Investigation Service after retirement of
Lieutenant-Colonel Garrick?
A. Yes.
Q. Who is the subject in these
proceedings?
A. Yes, that's correct.
Q. I understand there was a
slight gap between his retirement and your taking
command?
A. Yes, there was, a month or so
or maybe a little more than that.
Q. Fair enough. If I can just
get a little bit more of your experience and
background. First of all, when did you join the
Canadian Forces?
A. In 1985, March of 1985.
Q. And you obviously, either
immediately or at some point, became a military
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police. When did you become a member of the
military police?
A. I graduated from my basic
military police course, my QL3 course, in December
of '85.
Q. Okay. And could you just
tell us a little bit about your career path from
that time up until taking over the reins of the
National Investigation Service?
A. Sure. In, as I say, '85 I
graduated from my QL3 as a private military
policeman. I was posted to Shearwater, Nova Scotia
and did five years -- six years there.
I was commissioned in 1992 after
studying at St. Mary's University and acquired a
criminology degree, a bachelor of arts, majored in
criminology, and was commissioned in the Canadian
Forces as an officer in the military police branch.
From there, had postings to
Halifax to the military police guard room there;
Winnipeg, Manitoba as the detachment commander of
the military police section there; one year with
the Military Police Academy where I was a training
officer; followed by 2001 with a posting to Ottawa
in a position then known as the Deputy Provost
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Marshal National Investigation Service - 2, so kind
of a senior operations officer's position in the
organization in headquarters.
Following that, I was the officer
commanding of our support detachment. On promotion
to major, I took over that detachment for 18 months
to two years. Then following that I was the
officer commanding of central region of the NIS
detachment, and in 2006 was promoted to my current
rank of Lieutenant-Colonel.
And from there, did jobs in
resource management, in individual training and
education, a short stint in our professional
standards organization, and in -- which brings me
to 2008, in August, where I was appointed as the CO
of CFIS.
I had one operational tour in
Kosovo in 1999 and attended, you know, Manitoba
floods, off in Montreal with the ice storm in early
2000.
Q. Thank you. I would just
like, for the assistance of the Panel, if we could
go into a little bit about what the NIS is, how it
is structured, how it its command is structured and
what its purpose is.
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So perhaps we could start this
way. We have heard that the Canadian Forces
National Investigation Service is a branch of the
military police; correct?
A. Yes. We are a unit within
the military police organization, yes.
Q. Can you describe the chain of
command within the National Investigation Service?
In other words, you're the head of the National
Investigation Service. Who reports to you and who
do you report to?
A. All detachments' OCs report
to me, so everybody that works within the National
Investigation Service, through their officers of
course, report to me, and I report directly to the
Canadian Forces Provost Marshal.
Q. Okay. And with respect to
the non National Investigation Service military
police, what, if any, command relationship is there
between the NIS and those military polices?
A. I have no command
relationship over any military police other than
National Investigation Service, unless -- there are
times that military police members are seconded to
the unit to work on NIS-related files. At that
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time, I would have command relationship.
Q. So, in essence, if I
understand correctly, it is a separate and
independent chain of command of its own, separate
from the military police chain of command; is that
correct?
A. We have a separate, an
independent chain of command from the Canadian
forces, but we are -- I report to the Canadian
Forces Provost Marshal as the head of the military
police.
Q. Fair enough. But, sorry, I
-- the Canadian Forces Provost Marshal, he's the
head of the military police for the Canadian
Forces, but there is no reporting relationship
between, for instance, detachment commanders who
are not in the NIS, the task force Provost Marshals
who might be deployed in various places in the
world. There is no direct command relationship
between those people and your organization; is that
correct?
A. That's correct.
Q. Okay. What would the purpose
of the National Investigation Service be, and why
would it be in a separate sort of chain of command
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all on its own?
A. The purpose of the National
Investigation Service is, essentially, it's a major
crimes unit of a police department to investigate
serious and sensitive matters.
Q. And what kind of matters
would count as serious and sensitive matters, such
that they would be perhaps unique to the purview of
the NIS?
A. Sure. By definition, serious
are those indictable or hybrid offences, those more
serious crimes. And sensitive is -- sensitive
would be, firstly, to find as crimes committed by
persons in authority. In the beginning, we tagged
it majors and above, but there are times that, you
know, base chiefs or people in significant
positions, any crimes that they commit, we would be
responsible for investigating.
Q. Now, you have been using the
crimes that they commit. What you really I think
mean is allegations; correct?
A. Yes, that's correct,
allegations of any crimes that have been committed.
We investigate them and determine if there is any
factual basis to those allegations and lay charges,
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if warranted.
Q. Right. Would your
investigative duties include -- would the NIS
investigative duties include investigation into
whether, for instance, a commander's orders were
proper or unlawful? Would that be the kind of
thing, I guess, that is within the NIS purview?
A. Yes. That could be something
that could be investigated, yes.
Q. And are there specific NIS
duties which relate to treatment of detainees or
prisoners of war?
A. All of the complaints -- all
of the allegations or complaints made with regards
to treatment of detainees and those subjects go to
discipline as part of the technical authorities on
deployment. The NIS detachment in Afghanistan
would investigate; would investigate any of those
allegations, yes.
Q. Okay. And just in terms of
the legal framework that that might include, I may
be referring to some of the documents in front of
you. And just so I can clarify in advance, there's
a collection of five documents with white covers
called the main witness documents.
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There's then a collection of two
documents with blue covers, which are the NIS
witness documents. I may be referring to those,
and we have a couple of other documents we may look
at today, just for clarity for your assistance, if
I can look at that.
If you could turn to the main
witness book, volume 2, so the large white
collection? This document -- sorry, this volume
contains documents at tab 19, and, unfortunately,
not all of the individual pages are numbered, but
if you leaf through so that you are approximately
two pages from the end of that tab?
Now, first of all, at the top of
the page on the right-hand side there's an
identification number, and it seems to be a policy
document of sorts in relation to military police
officers. Is this document familiar to you?
A. No, it isn't.
THE CHAIR: Which page are you on,
Mr. McGarvey?
MR. McGARVEY: Well, all of the
pages at the top -- if you turn to the very front
of it, it has "Chapter 5 - Detention Operations".
Then at the very top there is a
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document number, and it seems to be a military
police document entitled -- well, it has a
reference number B-GL-362-001/FP-001.
MS. RICHARDS: Just for the
clarity of the Panel and for Mr. McGarvey, we heard
testimony regarding this document previously when
we had general witnesses. This is not a military
police document. This is an army document. If you
go back to the front page, you will see that
there's a footnote down at the bottom, which says,
"Conduct of Land Operations - Operational Level
Doctrine for the Canadian Army".
MR. McGARVEY: Okay.
MR. BERLINQUETTE: On the page
just previous to that at paragraph 4 -- 34-4:
"The purpose of this manual
is to establish the doctrinal
basis for the provision of
Military Police support to
tactical units and formations
of the Canadian Army."
So --
MS. RICHARDS: It is a Canadian
Army document. It was prepared by the Land Force,
and it is an internal document that talks about how
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military police support their operation.
So as you may recall, Member
Berlinquette, we heard testimony previously about
these documents. It certainly does talk about
military police, but it is not a military
police-generated document.
MR. BERLINQUETTE: Thank you.
BY MR. McGARVEY:
Q. That's fair enough. Perhaps
if I can direct you, then, to this document two
pages from the end, there is a title, "Criminal
Investigations".
I think what this outlines is the
Canadian Army's understanding of how the National
Investigation Service offers what would be termed
operational support. Does that accord with what
you might read in this document?
A. You are referring to
paragraph 37 that talks about the NIS; correct?
Q. Yes.
A. Yes.
Q. And I think if I understand,
to sum paragraph 37 up, what it seems to indicate
is that, when deployed with the army, the National
Investigation Service is independent of the army
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chain of command and remains under the command of
the Canadian Forces Provost Marshal, and then down
through your chain; is that correct?
A. When deployed, the NIS
resources remain under command of the Canadian
Forces National Investigation's CO, myself;
correct.
Q. And the National
Investigation Service, as they point out, has the
authority to lay charges if they investigate and
see fit to lay charges; correct?
A. Yes, that's correct.
Q. The upshot of this, I take
it, would be that the decision to lay charges, or
not, would be independent of the army's own command
structure. It would be up to the military police
and the National Investigation Service people
investigating to decide whether or not to lay
charges in circumstances where they were met with
an allegation when deployed with the army; is that
correct?
A. That's correct. The NIS can
lay charges independent of the army chain of
command when the elements of any offence have been
met.
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Q. And, conversely, if the army
chain of command preferred there not be charges
laid, the NIS could do so, anyway?
A. Yes, that's correct.
Q. In paragraph 38, it indicates
that the army's understanding, at least, is that
this can include allegations of breaches and grave
breaches to the Geneva Conventions, and that
persons who are alleged to have violated these
conventions could be investigated and brought
before Canadian courts pursuant to the Criminal
Code and National Defence Act.
Does that accord with your
understanding of the NIS's jurisdiction?
A. The NIS has jurisdiction over
persons subject to the Code of Service Discipline;
that's correct, yes.
Q. And that would include
allegations of violations of such statutes as the
Geneva Convention, at least as it is incorporated
into Canadian law?
A. Yes.
Q. When you indicate that you
have jurisdiction over Code of Service Discipline
offences, would that include such things as
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violations of the law of armed conflict or the
rules of engagement?
A. Just to clarify, I said we
have jurisdiction over persons subject to Code of
Service Discipline.
Q. Fair enough. When you have
jurisdiction over persons who are subject to the
Code of Service Discipline, would that entail that
you have jurisdiction to investigate allegations
that they have breached the Code of Service
Discipline by violating, for instance, the rules of
engagement of conflict, the laws of armed conflict?
A. Yes.
Q. Would that also include the
jurisdiction to investigate if a commander had
issued an order which -- I'm not saying that you
would necessarily conclude they had issued an order
which was illegal, but if somebody alleged they had
issued an order which was illegal, would you have
the jurisdiction under the Code of Service
Discipline and/or Criminal Code to investigate a
Canadian Forces commander who has issued an order?
A. A Canadian Forces commander
who has issued an order, yes.
Q. Okay. The topic that has
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been raised by the complainants in this matter is
that certain commanders may have issued orders
which violate various Canadian statutes and perhaps
international statutes, and thereby their orders
were unlawful.
I take it from what you have said
that investigation of such an allegation would at
least be something the NIS has jurisdiction to
pursue?
A. Yes.
Q. Just getting to your own role
in the National Investigation Service, sometimes it
is difficult, for people who aren't directly
involved, to understand exactly where you stand
with respect to particular investigations and what
your role is as an oversight commander of the NIS.
Could you just explain how
involved you are in the day-to-day operation of the
NIS investigations that are conducted or initiated?
Do you have decision-making power into what is
initiated? Are you consulted? Do you have
oversight and do you determine whether it was
appropriate after the fact, or --
A. Well, I am head of the
Canadian Forces National Investigation Service, so
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I have people that look after day-to-day operations
of it. I can't be involved in every one of the
investigations that are ongoing, so I have
oversight, I guess is the best way --
Q. Do you personally have to
give your approval before an investigation is
initiated, or does that happen lower down on the
CFNIS chain of command?
A. That can happen at the
detachment level. If the detachment receives
allegations, receives a complaint, they can
initiate an investigation. We are made aware of
that initiation of investigation and we monitor it.
Somebody within my staff would
monitor that investigation.
Q. And what about the decision
to either not investigate or to cease to continue
to investigate something? Is that something that
occurs at the lower levels or would that decision
have to occur at your level, if an allegation was
raised?
A. If an allegation is raised
and it goes to the detachment level and they feel
that it should be left to the military police
detachment to investigate, not the NIS to
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investigate, they can do that. But, again, they
notify us that they have -- I would not say refused
an investigation, but are not proceeding with the
investigation and feel it is best to investigate it
by the military police detachment.
Q. Can you just tell us, in
general, are NIS officers empowered to initiate
investigations on their own, absent a specific
complaint? In other words, if they detect that
there may be something, you know, based on, for
instance, publicly available documentation or
publicly available discussions, if they detect
there may be an issue which raises a matter of a
serious and sensitive nature in the military
command, are NIS officers empowered to initiate an
investigation on their own?
A. Yes, they are. They would
tell their chain of command that, you know, I have
heard about this through whatever means.
As you can appreciate, we're not
the front line police officers out patrolling the
beat, so don't come upon crimes ourselves often.
Q. Sure.
A. It is usually through
allegations and complaints made to us.
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Q. One of the allegations that
did make it into the public sphere was the
allegation contained in the complaint to the
Military Police Complaints Commission by Amnesty
International and the BCCLA in June of 2008. First
of all, are you familiar with that complaint?
A. I am familiar with the
complaint, yes.
Q. Okay. So you took over the
NIS shortly after that complaint, a couple of
months, and that complaint relates to an alleged
failure to investigate on the part of various
military police officers, including the NIS,
potentially unlawful orders to transfer detainees
between May 3rd, 2007 and June 12th 2008.
Do you know if there were any NIS
investigations of that kind during that period of
time?
A. Can you say that question
again, please?
Q. Sure. The complaint alleges
that the NIS and the military police failed to
investigate potentially unlawful orders to transfer
detainees between the period of May 3rd, 2007 and
June 12th, 2008.
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You took command of the NIS in
August of 2008. Do you know whether there were any
investigations? In other words, they're saying
nobody investigated. Do you know if there were
investigations into the lawfulness of transfer
orders between May 2007 -- made between May 2007
and June 2008?
A. No, I have no knowledge of
any of those investigations.
Q. And none have been initiated
under your command; is that fair to say?
A. Into the orders, no.
Q. Okay. Now, I would like to
get into some specific investigations that I
believe were ongoing during your tenure.
A. Sure.
Q. There is a matter known as
Operation Centipede. Are you familiar with that
investigation?
A. I am familiar, yes, with the
investigation.
Q. And, more accurately, that's
a series of investigations that were collected
under a single umbrella; is that fair to say?
A. Yes, that's correct.
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Q. And it had a general
occurrence number, which would be 2008-6906. And
were you involved in the startup of operation
Centipede?
A. No.
Q. It predates your tenure as
the commander of the NIS, the startup of it?
A. That's correct.
Q. And I believe it started in
March 2008 under your predecessor,
Lieutenant-Colonel Garrick; is that correct?
A. I don't know the exact date
when it started, but Lieutenant-Colonel Garrick was
my predecessor, yes.
Q. Fair enough. You, however,
were the commanding officer when it wrapped up in
April 2009; is that correct?
A. When some of the
investigations wrapped up, that's correct.
Q. Okay. If you can turn to the
NIS collection?
A. Which volume?
Q. Volume 1, please. If you
look at -- the page references I will use are the
ones at the very bottom of each page, the very
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small lettering or numbering. So tab 11, if I
could just direct your attention to page 6 of 66?
Then we have page 6 and 7. There is a letter, I
believe, under your signature; is that correct?
A. Yes, that's correct.
Q. And this is a letter directed
to the Canadian Forces Provost Marshal, the CFPM?
A. Yes.
Q. And this is a report from you
concerning the findings of Operation Centipede?
A. That's correct. It is a
summary of the eight specific investigations under
Op Centipede.
Q. Okay. And I am just
wondering. You said that in April 2009 you
reported on or concluded some of the
investigations. Could you clarify whether it was
some of them or all of them that were concluded as
of April 1st, 2009?
A. This is a summary of all of
the Op Centipede investigations, and it is a letter
saying that they have all been concluded now. Some
of these specific investigations were concluded
earlier, but this one closes off all of them, the
last one, I guess.
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Q. In fairness, some of the ones
concluded before you were even commanding officer
of the NIS, the individual investigations; correct?
A. That's correct. Some of them
were concluded prior to, yes.
Q. And so, again, this is an
oversight letter from the commander of the National
Investigation Service saying, My people have
concluded these investigations and here is a
summary of the results?
A. Here is the general findings,
correct.
Q. When you, if I can put it
this way, signed off on this umbrella
investigation, did you first review the individual
investigation findings? Did you go through each
one of these?
A. I would have had a cursory
review of them and briefings from my ops or my DCO
on what the outcome of those investigations were.
Q. So you either looked over
them or you were briefed on them before signing off
on them?
A. Yes.
Q. And by signing off on them,
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are you, I guess, sustaining that they have been
fully and properly investigated to the best of your
knowledge at that time?
A. I am signing off that the
investigations are complete, yes.
Q. And that would include that
the scope of the investigation was as thorough as
you would expect?
A. Yes.
Q. And the conclusions reached
were appropriate in light of the evidence that was
uncovered?
A. Yes.
Q. Are you familiar with -- you
must be familiar with something called SAMPIS, the
military police data bank of investigative
materials, computer-based data bank?
A. Security and Military Police
Information Centre, that's correct -- Information
System, sorry.
Q. So what we have a fair number
of with relation to Operation Centipede would be
SAMPIS printouts in relation to these
investigations. Would you have reviewed things
like the SAMPIS printouts before signing off?
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A. Yes.
Q. What, in your view, was the
focus of Operation Centipede in terms of the
investigation? It is umbrella, but why is it an
umbrella and what is its purpose?
A. I understand when Centipede
stood up, it was to investigate allegations of
abuse of detainees by military personnel or persons
subject to the Code of Service Discipline in
Afghanistan.
Q. So your understanding was it
is to investigate abuse of Afghan detainees by
Canadian Forces members or persons covered under
the Code of Service Discipline?
A. Allegations of those abuses,
yes.
Q. Was it your understanding
that it was limited to abuse allegations where the
abuse itself was committed by persons covered by
the Code of Service Discipline?
A. Yes. That would be my
understanding, yes.
Q. So I take it it would follow,
from your understanding, at least, Operation
Centipede was not meant to capture the situation
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where somebody other than a person covered under
the Code of Service Discipline abused a detainee
after we had transferred them?
A. Persons not subject to the
Code of Service Discipline that we have no
jurisdiction over, no.
Q. I take it also that it did
not include an investigation of the persons making
orders to transfer where there was an allegation of
subsequent abuse by a non-Code of Service
Discipline jurisdiction person?
A. No, it did not.
Q. I asked you earlier about
whether the NIS had jurisdiction to investigate
allegations that an order was unlawful.
There is something that crops up
fairly routinely in our enquiry and that is
something called a theatre standing order.
Could you explain, first of all,
just so that we have an understanding, what is a
theatre standing order in military parlance?
A. A standing order would be a
commander's order to the troops on specific rules
and regulations, for example, maybe one on alcohol.
There will be no consumption of alcohol on camp.
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That would be --
Q. Would it be accurate to
characterize a standing order as an order that
applies not to a specific set of circumstances or
specific individual conduct, but it is an order
that covers conduct over a period of time? In
other words, alcohol while in Afghanistan, here is
the broad regulatory framework and this is an order
now, that kind of thing?
A. Could you repeat your
question, please? Sorry.
Q. Sure. I just want to
distinguish a standing order from an individual
order. You know, an officer can issue an order. I
would like to know the difference.
A. Well, the standing order is,
of course, in writing and, until revoked, is the
order.
Q. A broadly applied set of
rules for the set of circumstances that the order
is directed at?
A. Yes.
Q. Now, one of the theatre
standing orders that we have a lot of interest in
here would be something called TSO-321A. Are
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you familiar with that?
A. No. I wouldn't -- you know,
I would have to refer to whatever book, if you have
a book here.
Q. Fair enough. If you could
turn to volume 2 of the main witness collection,
the white collection, and if you could turn to tab
2.
A. Thank you.
Q. This is something referred to
as the theatre standing order or TSO 321,
"Detention of Afghan Nationals and Other Persons".
I think, if you turn to page 12 of
37, it indicates that this TSO is effective as of
27 May 2007?
A. Yes. It does, yeah.
Q. Okay. This appears to be a
standing order concerning the detention of Afghan
nationals and other persons and how that is to be
handled; is that fair to say?
A. Yes.
Q. Would the National
Investigation Service have jurisdiction to
investigate allegations that this theatre standing
order was not complied with, if it were not -- if
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there were an allegation it was not complied with?
A. Yes, it could be possible
that if there was an allegation that it was not
complied with, that we would investigate, yes.
Q. Do you know if, either in
relation to Operation Centipede or in relation to
matters occurring between May 2007 and June 2008,
there were ever investigations by the NIS into
allegations that any element of the theatre
standing order was not complied with?
A. I don't know.
Q. Are allegations of violations
of orders always a matter for the military police,
or are they sometimes dealt with by the chain of
command on its own, to your knowledge?
A. They can be dealt with by the
chain of command, depending on the seriousness of
the order. For example, some soldier doesn't get
his hair cut, but it says there is an order he is
supposed to have a haircut, it certainly would not
be something that the NIS would investigate.
Q. Certainly, though, if it was
something that counted as serious, it would be an
NIS matter?
A. Yes.
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Q. If I can turn to some
specific general occurrences under Operation
Centipede just to get some clarification and to get
your views on some of them?
A. Sure.
Q. There is a general occurrence
at tab 1.
A. To volume?
Q. And it is NIS witness
documents volume 1 of 2.
A. Thank you.
A. Sorry, tab 1?
Q. Tab 1.
A. Thank you.
Q. And if you turn to page 6 of
11, there is a letter, I believe under your
signature, January 15th, 2009; correct?
A. Yes.
THE CHAIR: There is nothing in my
notes --
MR. McGARVEY: Oh, okay.
THE CHAIR: Go ahead.
MR. McGARVEY: Okay, good.
BY MR. McGARVEY:
Q. So January 15th, 2009, you
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write a letter which seems to be directed towards
the issue of a loss of a server containing secret
information.
Could you tell us a little bit
about -- first of all, was that the main subject
matter of 2007-2589, or was this a side issue in
that investigation, or do you know?
A. I don't really know.
Q. If you would turn to page 8
of 11, we have the synopsis of it, and I believe,
to put it in short form, this is the Attaran
investigation into the alleged abuse of three
Afghan detainees. Is that -- I may be wrong about
that, but --
A. That's certainly what it --
it seems to deal with a complaint from three
detainees from April '06, it looks like
investigated by Inspector Gfellner, which would be
the file known as Camel Spider, I guess.
Q. We have heard a little bit
about Camel Spider in the past, but your letter
seems to be directed specifically towards a loss of
a server, a computer server?
A. Correct.
Q. Your conclusion was that the
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server wasn't lost. It was wiped clean and brought
back into service?
A. Yes.
Q. Was this seen as something
sort of administrative and routine, or was there a
concern about whether, in this rather sensitive
investigation, information was being tampered with,
or do you know?
A. I don't know.
Q. In any event, there were no
charges or steps taken as a result of this server
being wiped clean?
A. Not to my knowledge.
Q. If you could turn to tab 21?
I think if we look at page 5 of 45, this is General
Occurrence 2008-6918?
A. Yes.
Q. And what we have at page 5 of
45 appears to be Sergeant Patricia Scowen's summary
of the nature of the investigation or the nature of
the complaint; is that fair to say?
A. Yes. The MPIR complaint,
correct, military police information report
complaint.
Q. Okay. Could you just
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clarify? What is an MPIR complaint synopsis?
A. When we open an
investigation, we put a complaint in, so it is a
military police information report complaint.
Q. Okay. This is essentially
the framing of the complaint as entered by the
military police on their SAMPIS system?
A. Correct.
Q. And it indicates that there
was information raised from Colonel Noonan's
affidavit, which is in the news on May 4th, that
abuse had taken place after a detainee was handed
over and Canadian Forces persons observed it and
took no action. Why did chain of command not
report this?
I think attached to this we see at
page 13 of 45, and also at page 8 of 45, two
newspaper articles dated May 4th, 2007. Then
starting at page 18, we see Colonel Noonan's
affidavit itself.
A. Yes. That's correct.
Q. Now, do you know the context
in which this affidavit of Colonel Noonan existed?
Do you know about the court application or
applications upon which it was tendered?
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A. No, I don't.
Q. So did you go into any other
documents with respect to the Federal Court
application to see if there was another side of the
story, other than Colonel Noonan's affidavit, to
address this allegation?
A. Did I personally do that?
Q. Or direct anybody or
understand anybody under your command to have done
so?
A. I am not aware, no.
Q. I am going to be referring to
something that is already an exhibit. However, it
doesn't, for some reason, appear to have been put
into the binder collection, perhaps because it was
already an exhibit entered. We are just handing
out copies. If you could bear with us for a
moment?
THE CHAIR: Where we might find
that one?
MR. McGARVEY: You will find that
at Exhibit P-9, which I believe is -- it is in the
human rights and related materials book volume.
THE CHAIR: Volume 5, tab?
MR. BERLINQUETTE: Tab number?
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MR. McGARVEY: Oh, sorry. Tab 42.
BY MR. McGARVEY:
Q. And, Colonel Sansterre, do
you have that document in front of you?
A. Tab 42 to volume 5?
Q. Yes.
A. Yes.
Q. If you look at paragraph 2,
which is at page 2 of that decision of Madam
Justice Mactavish, just to give you context, this
was an injunction application by Amnesty
International to cease the transfer of detainees
because of the risk of torture or abuse.
At tab 2, Madam Justice Mactavish
indicates that:
"The evidence adduced by the
applicants..."
That is by the complainants in
this matter:
"... clearly establishes the
existence of very real
concerns as to the
effectiveness of the steps
that have been taken thus far
to ensure that detainees
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transferred by the Canadian
Forces to the custody of
Afghan authorities are not
mistreated."
MS. RICHARDS: In fairness to the
witness, perhaps we could ask him first if he has
ever seen this document, and also to, in fairness
to him, give him the date of the decision.
BY MR. McGARVEY:
Q. Very well. This is a
decision dated February 7th, 2008. You can see it
on the front on the first page.
A. Yes.
Q. I took it from your earlier
answer you had not reviewed this document, because
you said you did not review anything other than
Colonel Noonan's affidavit in the record. Am I
correct in saying that?
A. I have never seen this
document, no.
Q. Okay. Had you been aware
that a Federal Court judge was of the view that
evidence filed in this matter clearly establishes
the existence of very real concerns as to the
effectiveness of steps that have been taken thus
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far to ensure the detainees transferred by Canadian
Forces to the custody of Afghan nationals -- of
Afghan authorities are not mistreated -- had you
been aware of that and perhaps whatever led her to
come to that conclusion, do you think that might
have been relevant to an assessment of General
Occurrence 2008-6918?
A. Well, without the opportunity
to review the entire document, it is very difficult
to say. However, this does not give me any
suspicion that any torture or any abuse has
occurred.
It says that there is concerns
that the Canadian Forces doesn't take effective
steps to make sure that there is no -- there's no
crimes committed, so --
Q. You would want to see more
before you could come to that assessment,
basically?
A. Certainly this doesn't --
yeah.
Q. I suppose part of the point
is: Why would the Canadian Forces National
Investigation Service not look to see more; in
other words, look at the actual documents that
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underlay a decision like this?
A. I don't know if we had access
to these documents. Like I say, I didn't see these
documents, so --
Q. Well, this is an application
in the Federal Court, which would include materials
that were matters of public record, such as the
affidavit of Colonel Noonan. Presumably the
complainants didn't file Colonel Noonan's
affidavit. They would have relied on their own set
of supporting documents.
Is there a reason the NIS wouldn't
have looked to the application records to see if
there is anything relevant to detainee abuse
issues, in your view?
A. No.
THE CHAIR: Excuse me, would that
be "no", nothing relevant, or -- what are you
saying "no" to?
THE WITNESS: In answer to his
question, no, there is no reason why we wouldn't
have, I guess.
BY MR. McGARVEY:
Q. No reason not to?
A. Right.
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A. Okay, fair enough. Thank
you.
If you would turn to page 20 of
that decision, paragraph 85, it indicates that:
"Eight complaints of prisoner
abuse were received by
Canadian personnel conducting
site visits in Afghan
detention facilities between
May 3, 2007 and November 5,
2007. These complaints
include allegations that
detainees were kicked, beaten
with electrical cables, given
electric shocks, cut, burned,
shackled, and made to stand
for days at a time with their
arms raised over their heads.
"While it is possible that
these complaints were
fabricated, it is noteworthy
that the methods of torture
described by detainees are
consistent with the type of
torture practices that are
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employed in Afghan prisons,
as recorded in independent
country condition reports,
including those emanating
DFAIT.
"Moreover, in some cases..."
Paragraph 87:
"... prisoners bore physical
signs that were consistent
with their allegations of
abuse. In addition, Canadian
personnel conducting site
visits personally observed
detainees manifesting signs
of mental illness, and in at
least two cases, reports of
the monitoring visits
described detainees as
appearing 'traumatized'."
If that kind of information, which
pertains to site visits between May 3rd, 2007 and
November 5th, 2007, if that had been brought to the
attention of the NIS or if the NIS had looked at
documents supporting such contentions, would that
have initiated an investigation into the
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circumstances, including perhaps whether it was
appropriate to order people to be transferred into
those circumstances?
A. There is not enough specific
information in these paragraphs to lead me to
believe that these were detainees that were
captured by Canadians, and their mistreatment of
course happened in Afghan jails.
So without more specific
information, it would be difficult to say we could
launch an investigation.
Q. Now, just on the second
point, the mistreatment certainly is alleged to
have happened in Afghan prisons, and you do not
have jurisdiction in the NIS over Afghan personnel
abusing people in Afghan prisons; correct?
A. That is correct, yes.
Q. However, the fact that you do
not have jurisdiction to lay a charge against such
a person does not mean you cannot enquire of those
persons in order to establish facts that might be
relevant to laying a charge against a Canadian
Forces member; is that correct?
A. Yes, that's correct.
Q. You can ask and enquire and
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look into facts in Afghanistan if you want to
investigate allegations against a Canadian Forces
commander, for instance; correct?
A. Yes.
Q. If you could turn, please, to
page -- sorry. Just to continue, you indicated
that there is a lack of information in those three
paragraphs I have excerpted to come to any
conclusions about whether any crime has been
committed by a member of the Canadian Forces; fair
enough?
A. Yes. Yes, that's correct.
Q. Is there not enough in those
paragraphs to lead one to make further enquiries
into the basis for a Federal Court judge's
conclusions of that nature?
A. I mean, you are asking me to
give you my opinion based on three paragraphs of --
again, you know, of a lengthy document.
We could enquire further, based on
this, to get more information.
Q. In your view, having read
this, should the NIS either have enquired further
or should it enquire further into this kind of
allegation?
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A. Again, sorry, you are asking
me to make a split-second decision based on just
three paragraphs, and I don't think I can do that
today. I mean, we make decisions on what we
investigate as a command team, more information,
seek legal opinion on the matter, seek legal
review, some opinions, some guidance. So --
Q. Fair enough. I am not asking
you to come to a conclusion as to whether you
should charge anybody or do anything like that. I
am just asking, and I think you have confirmed,
that it might merit looking into further facts once
you read something like this coming from the
Federal Court?
A. There really isn't much
specific in here that would lead me to that
conclusion.
Q. Now, if you can just turn
back to Colonel Noonan's affidavit, if you look at
page 31 of 45? That is in the NIS volume, witness
book volume 1, tab 21, again, page 31 of 45 at tab
21.
First of all, I would like to be
clear about the sequence of events. Colonel
Noonan's affidavit is sworn on May 1st, 2007, if
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you look at the end of it. The Federal Court
decision I have been reading from is from February
2008, and you signed off on Operation Centipede in
April of 2009.
So the injunction decision comes
after Colonel Noonan's affidavit, before you have
concluded Operation Centipede, which includes 6918?
THE CHAIR: Can you just go slow
and give me those dates again?
MR. McGARVEY: Sure. Colonel
Noonan's affidavit, if you look at page 40 of 45,
is sworn on May 1st, 2007.
THE CHAIR: Okay.
MR. McGARVEY: The Federal Court
decision I have been reading from is dated Ottawa
February 7th, 2008. That's from the first page of
Madam Justice Mactavish's decision.
THE CHAIR: Right.
MR. McGARVEY: And Officer
Sansterre's letter wrapping up globally Operation
Centipede is dated April 1st, 2009.
BY MR. McGARVEY:
Q. Do you think it would have
been helpful to you, before concluding at least
this general occurrence in Operation Centipede, to
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have had an opportunity to review those Federal
Court materials that might have informed Madam
Justice Mactavish's decision and her comments in
those paragraphs I have read?
A. First off, I am not really
clear on the Madam Justice's decision. Was it to
cease transfers? I am not familiar with the
document enough to know that.
Q. It was an injunction
application to cease the transfer of detainees
because of the risk of torture.
THE CHAIR: For purposes of
clarity, maybe we should take the time so that he
can read the document. I think it may be important
enough.
MS. RICHARDS: Yes, or fully and
fairly characterize that the decision at the time,
transfers had been ceased. So just to be clear.
MR. McGARVEY: Yes.
THE CHAIR: Because you are going
to rely on the document, I think we should take the
time for him to read it.
MR. McGARVEY: Fair enough.
MS. RICHARDS: I guess my only
comment on that is certainly Lieutenant-Colonel
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Sansterre is being as helpful as he can. He's
already said he hasn't read this document.
Commission counsel is asking him
to hypothesize, and I think he is being as helpful
as he can, but I am not sure how helpful that
information is to the Panel when you are asking a
witness to hypothesize or guess.
THE CHAIR: I think we will wait
and see at the end of it. Whichever documents you
think he should read, if we -- whether it be
Noonan's affidavit or Mactavish's decision, we can
take 20 minutes and give the Lieutenant-Colonel
time.
MR. McGARVEY: That might be a
good idea to allow him the opportunity to do that.
THE CHAIR: I think it is fair.
MR. McGARVEY: Thanks.
THE CHAIR: We will adjourn, we'll
say until -- in fairness to the witness, say until
20 to 11:00 to give him ample time to review them.
--- Recess at 10:10 a.m.
--- Resuming at 10:52 a.m.
MR. BERLINQUETTE: Thank you.
THE CHAIR: Thank you.
--- Upon resuming at 10:56 a.m.
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MR. BERLINQUETTE: Thank you.
THE CHAIR: Thank you.
BY MR. McGARVEY:
Q. Thank you, Colonel Sansterre,
and obviously, you know, given that length of time,
we are not expecting you to have an encyclopedic or
textbook knowledge.
A. Thank you.
Q. But I hope we can just
advance a little bit of the questioning as a result
of your review.
Maybe I could back up one step to
establish: Did you in fact at some point, when
reviewing General Occurrence 6918, review Colonel
Noonan's affidavit or portions thereof? Do you
recall?
A. I don't recall.
Q. But it was scanned into the
SAMPIS records that would have been available for
anyone reviewing that particular general
occurrence?
A. Yes, that's correct.
Q. I took you to several
paragraphs of the decision, the injunction
decision, which is in Exhibit P-9, tab 42. I think
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the last one I had read was number paragraph 87.
If I could just ask you, having
had a chance to review Madam Justice Mactavish's
commentary about the complaints of prisoner abuse
that were received between May 3rd, 2007 and
November 5th, 2007, would you have liked, on
reflection, to have had more information at your
disposal before finishing 6918 than simply Colonel
Noonan's affidavit?
A. Having an opportunity to
review this now, I point to section -- to paragraph
30 and I wonder. I assume that is a typo in the
date? It says November 6th, 2008 is when the
transfers ceased.
I assume that is 2007, because the
next paragraph talks about, as a result of the
receipt of this allegation, no detainee transfers
took place after November 5th.
Q. Yes. I would think that is a
typo; that's correct.
A. Okay. Having reviewed this
and taking particular note of paragraph 91 --
Q. Yes.
A. -- which, in summary, says:
"The allegations of
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mistreatment occurring in the
period between May 3 and
November 5 were allegedly
investigated, and found to be
without merit. Even though
Afghan authorities considered
allegations to be
unsupported..."
There were additional preventive
measures taken by the Canadian Forces.
My read of this is, on the 5th of
November, the commander in theatre was given
reports on allegations of mistreatment, and on the
6th he ceased transfers.
So none of what I have read or
skimmed through has given me cause to believe or
suspect that the commander knowingly or willingly
would have given any detainees over to the Afghan
authorities to be tortured.
Q. Fair enough. With respect to
the suggestion in paragraph 91 that you just
referred to, that allegations of mistreatment were
investigated and found to be without merit, was
that, to your knowledge, done by the National
Investigation Service?
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A. No, it was not.
Q. Do you know if it was done by
any military police officer if it wasn't the NIS?
A. No, I don't.
MS. RICHARDS: It says right in
there it was done by the Afghan authorities.
BY MR. McGARVEY:
Q. So would it be your evidence,
then, based on paragraph 91, that on the basis of
Afghan authorities' reassurances, there would be no
cause to take further steps to investigate these
matters?
A. Can you say that again,
please?
Q. Paragraph 91, as my friend
quite aptly points out, indicates that they were
investigated and it appears to be their view that
they were unsupported.
Does that conclude the matter,
from your perspective, that if Afghan authorities
say there was no support for this, there is no
cause for investigation by the NIS into the
circumstances?
A. Well, I don't have the
jurisdiction to go investigate what happens in
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Afghan jails, so I am not really sure what you are
getting at. I'm sorry.
Q. Well, no, but you can
investigate the orders to transfer, and there were
allegations that abuse occurred post-transfer.
And I think your answer to a
question earlier was that you can, of course,
investigate facts in Afghanistan even though you
can't take jurisdiction to proceed with any kind of
legal proceedings vis--vis Afghan nationals or
non-CF Code of Service Discipline covered
personnel.
So my question would be, first of
all: Did you or anyone at the NIS, to your
knowledge, review the Afghan investigations to
confirm whether the allegations were unsupported?
A. No, no.
Q. And so would there be any
cause to, in your view, second-guess an
investigation by the Afghan authorities into
allegations of abuse by the Afghan authorities?
A. With the absence of clear
evidence of all torture, abuse, I guess it wouldn't
be my job to second-guess, no.
Q. Now, with respect to this
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decision, as well, there are some further
paragraphs, 111, 112 and 113, that I asked you to
review.
Madam Justice Mactavish indicates
that:
"The evidence adduced by the
applicants is very troubling,
and creates real and serious
concerns as to the efficacy
of the safeguards that have
been put in place thus far to
protect detainees transferred
into the custody of Afghan
prison officials by the
Canadian Forces.
"As a result of these
concerns, the Canadian Forces
will undoubtedly have to give
very careful consideration as
to whether it is indeed
possible to resume such
transfers in the future
without exposing detainees to
a substantial risk of
torture.
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he was given some information and he ceased the
transfers on November 6th.
I know they put further measures
into place, which are obviously not a National
Investigation Service purview, with human rights
people going to visit the jails.
Having reviewed this, I just can't
see where else I would investigate.
Q. Now, she does continue, in
fairness to you, at paragraphs 118 -- and I don't
think I took you to these, but 118 and 119 and 120,
she does indicate that even Amnesty International
and the BC Civil Liberties Association conceded
there are scenarios under which transfers could
potentially take place in the future.
So, in fairness to you, there are
circumstances where maybe the concerns could be
alleviated; fair enough?
A. Yes.
Q. I asked you to review the
decision of March 2008 that follows this, and I
think it is -- I am just trying to find the date of
the release. It appears to be March 12th, 2008,
from the top the first page, at tab 43 of the same
volume. And I asked you to take a look at
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paragraphs, I think I said, 82 and 83.
Now, paragraph 81, she notes that
transfers resumed as of February 26th, 2008, and at
paragraph 82, she notes.
"The evidence adduced by the
applicants clearly establish
the existence of very real
and serious concerns as to
the effectiveness of the
steps that had been taken
prior to November 5, 2007 to
ensure that detainees
transferred by the Canadian
Forces are not mistreated."
And at paragraph 83:
"While the Canadian Forces
have implemented additional
measures designed to reduce
the risk to detainees
transferred into the custody
of Afghan authorities since
November 5, 2007, it is not
necessary for the purposes of
this motion to pass judgment
on the efficacy or
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sufficiency of these
additional protective
measures."
First of all, is it clear in your
mind that the concern is not transfer to a
guarantee of abuse or torture, but transfer to a
substantial risk of torture or abuse? Do you
understand?
A. Well, I would assume that if
you have evidence that there is torture or abuse
going on there, then you have put the people at
risk that you transferred there, I guess.
Q. Right. I am just wondering
what your understanding would be when you are
confronted with a suggestion, as is suggested in
the June 12th complaint to this Commission, that
the NIS failed to investigate these transfer orders
and the persons who made them.
Can you tell us what it would
entail, in terms of an assessment of the risk of
torture? In other words, how high is the bar set
in terms of risk, from your perspective, when you
look at the legality of these transfer orders?
A. Well, I mean, on the face of
it, we would need some clear, you know, evidence,
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the time, date, place, wh