Evidence of meeting #14 for Special Committee on the Canadian Mission in Afghanistan in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
4:55 p.m.
Conservative
Deepak Obhrai Conservative Calgary East, AB
Yes, if I say that. I'm just looking at the other side of the coin now.
4:55 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
You can say whatever you want to say or not say whatever you don't want to say.
4:55 p.m.
Conservative
4:55 p.m.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
Thank you, sir.
The question was, can the scheme of the Canada Evidence Act be used to cover up information that's embarrassing to the government? This has been addressed by the Federal Court in various decisions. Mr. Justice Noël clearly stated that the court will not prohibit disclosure where the government's sole or primordial purpose for seeking the prohibition is to shield itself from criticism or embarrassment.
The court also quoted with approval the following statement:
...a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing....
In another case, Mr. Justice Mosley agreed with Mr. Justice Noël that information that is embarrassing to the government cannot be protected, but he added:
Regrettably, in some cases protecting Canada's security and international relations interests may have the unintended and unwanted effect of protecting a government from embarrassment or exposure. However, if based on the court's examination of the evidence that is the sole or genuine reason the Attorney General seeks to withhold the information, the information must be disclosed.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Thank you.
Brigadier-General Watkin, the first agreement took effect on December 18, 2005. That is your evidence. The second and third agreements were in February 2007 and May 2007, which is a 14- or 17-month period. Do you agree with that?
4:55 p.m.
BGen Kenneth W. Watkin
Yes.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Is it reasonable to assume that something happened in the period between December 18, 2005, and February and May 2007 that led the government to decide that a further agreement with the Government of Afghanistan was required?
4:55 p.m.
BGen Kenneth W. Watkin
A number of things will have happened during that term, one of which was litigation involving the Amnesty case. Indeed, the arrangement was presented before one of the hearings, which, as I recall, was in May 2007.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
The fact that Mr. Colvin wrote reports is now a matter of public record. It's well known. It's not exactly a state secret any longer. What's in them is not entirely clear because much of the information has been blacked out.
Mr. Colvin went to Afghanistan in April 2006 and stayed for a considerable period of time. Is it fair to assume that some reports must have been received by the government that led them to conclude that further steps were necessary to protect Canada's reputation and to protect the treatment of prisoners?
4:55 p.m.
BGen Kenneth W. Watkin
Mr. Rae, I can't hypothesize. There will be other witnesses who I understand would likely be brought before you who are in a better position to discuss that issue.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
You can't tell us whether or not you saw his report. Is that right? Is that what you're telling me?
4:55 p.m.
BGen Kenneth W. Watkin
What I can tell you is that the information I received on this file was in my capacity as a lawyer.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
For example, when you report at the bottom of one of your submissions, you say:
For example, in November 2007, transfers were suspended as a result of a credible allegation of ill treatment that arose during a monitoring visit by a DFAIT official. Transfers resumed in February 2008.
You can tell us that. You just did.
4:55 p.m.
BGen Kenneth W. Watkin
It's because that is in fact part of the litigation and that was part of the decision of the court that came out in March 2008.
4:55 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
You could tell us that because of the court case, but you can't tell us what evidence, or what information, or what considerations the Government of Canada had in mind that led it to change its policy or to further advance its policy in that critical 14- to 17-month period.
4:55 p.m.
BGen Kenneth W. Watkin
Again, Mr. Rae, the information I would have is a result of me being a lawyer. Your question is very general, and even in that statement the question would be whether there are other witnesses who would be better positioned to answer that.
5 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Let's be fair. You told us that you're not going to tell us whether or not you saw the Colvin reports. I can be as specific as you'd like, but if I'm going to get the same answer, which I appreciate you feel you have to give.... I'm trying to get at the information that led the Government of Canada to change its policy. Can you tell us?
5 p.m.
BGen Kenneth W. Watkin
There are certainly other witnesses, available or not, who would be able to pass that on to you, subject to other issues that might arise with respect to national security or international relations, about which there's been much discussion today. But as to the information that I have, it is covered by solicitor and client privilege.
5 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
I'm a lawyer, and I think we all recognize the importance of the privilege you're claiming. But you're in a slightly different role. You describe yourself as having attorney general-like responsibilities. This means that while in a sense your client is the Government of Canada, you also have a responsibility to be free from partisan considerations in the presentation of your work. Would you not agree? That's part of what attorney general-like responsibility means.
November 4th, 2009 / 5 p.m.
BGen Kenneth W. Watkin
I have that independence, which anyone superintending a justice system would have. It has to do with making decisions with respect to the operation and the justice system.
5 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
But you're not just a lawyer. You're not just advising a client. You're also administering a department.
5 p.m.
BGen Kenneth W. Watkin
Right.
5 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
You're also in charge of a department. You're receiving information from lawyers on the ground, the six lawyers you talked about in Afghanistan. You're getting information from them.
5 p.m.
BGen Kenneth W. Watkin
In respect of the administration and operation of my office, my carrying out of those duties and responsibilities is subject to solicitor and client privilege. I train lawyers going to Afghanistan and other parts of the world. I administer an office. But the communications and information that I receive with respect to the performance of my duties as a lawyer are covered by privilege.
