Afghanistan Committee on Nov. 4th, 2009

[Laurie Hawn, Conservative, Edmonton Centre, AB]

To your knowledge, has classified information or protected material such as this ever been circulated to a committee in the past? If so, was it redacted? Did the committee go in camera to review it? How was it handled? Was it returned to the government after the meeting?

[Rob Walsh]

I'd have to research that matter to see what the actual instances were, but what I've described to you is what the committees would typically have done. They would have tried to go in camera or they would have tried to limit the number of people who received the information or acted in some manner like that, or they would receive the information but not disclose it publicly in terms of a report. They would just keep it out of their report.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

In your letter you also state that Parliament has constitutional powers of investigation associated with privilege; however, the government and the crown also have a constitutional obligation to protect Canadian citizens, particularly their rights to life and freedom. There could be a conflict between those two.

Would it not be prudent for this committee to at least be obligated to show restraint and institute some measures to protect national security, to protect those interests that I just mentioned? As well, if the committee gets to decide what national security is, has the committee itself not taken on the prerogative of the crown and the government in that area?

[Rob Walsh]

To go to the last point, I think the committee is entitled to have a view as to what is the proper meaning of the term “national security”, since it is statutorily undefined. But what the government should or should not do in a particular situation might be going beyond what the competence of the committee enables.

To go back to your earlier question about the role of the committee and the government's duty to defend the nation, I can only suggest that you keep in mind what your constitutional function is. That is to hold the government to account. What does that mean? In my view, it doesn't mean holding the military to account. That may surprise you.

I mean that in this sense. I've heard the expression used, earlier in discussions before the committee started, about wanting to know what's going on “on the ground”. Well, I'm not sure it's the place of a parliamentary committee to look into what military operations are going on or how they're conducted or whether they're conducted well or whether...etc. It certainly is entitled to ask the government what its policies are relative to a military undertaking and what directions it may have given the military, etc. That's holding the government to account. There's a line there somewhere between holding the government to account and holding the military to account.

I just invite you to maybe maintain that distinction in mind as a way of indicating where your inquiry of the government is appropriate but your inquiry of the military—and I know you have some military witnesses coming up—may be inappropriate for a parliamentary committee.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Not that we're bound by what other people do, but it should possibly be instructive. Do you have any advice on what other countries such as Australia, the U.K., or the U.S. do in circumstances like this? I know some of them have very rigid frameworks about how these kinds of meetings are conducted, the kinds of redactions that go on, whether it's in camera or in public. Do you have any comparison with what other countries do?

[Rob Walsh]

I think it would be more useful for the committee, Mr. Chairman, if I took that question under advisement and reported back to the committee on it, so that you have some comparisons to make, rather than speak off the top of my head.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I appreciate that.

I have a quick question for General Watkin. I don't know if you know or not, but how many armed forces are transferring prisoners to Afghanistan authority, and how do our procedures and experience compare? Do you have any insight into that?

[BGen Kenneth W. Watkin]

Certainly as was outlined in the Amnesty case, it is the policy of both NATO and Canada, obviously, to transfer to Afghan authorities. With respect to the numbers, again I do not have that information, and again there would be witnesses who would be better situated to answer that question.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You mentioned that the Afghan prisoners are not POWs, but we're treating them like POWs. That suggests to me that we are perhaps going above and beyond what would be our legal international obligations. Is that a fair statement or not?

[BGen Kenneth W. Watkin]

One of the challenges with respect to, particularly, contemporary armed conflicts is that so few are between states. The vast majority of the treaty law is with respect to one state fighting another state. With respect, for instance, to the four Geneva conventions, and in particular Geneva Convention III that deals with POWs and Geneva Convention IV that deals with civilians, there's a set treaty regime. There's Common Article 3 to the four conventions, which will provide for non-international armed conflicts.

There is a treaty—Additional Protocol II to the Geneva conventions—that specifically deals with non-international armed conflict. In terms of customary international law, which relies that assessment on the treaties themselves, that sets a well-established and a high standard of treatment. Certainly the approach of the Canadian Forces is a matter of doctrine: to apply that high standard in terms of anyone they detain, and in that are standards of humanity and care in treating them.

[The Chair, Conservative, Rick Casson]

That fills the spot just right on.

Mr. Harris from the NDP, you have seven minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

Welcome, General Watkin. It's nice to see you again after I think almost 30 years.

I take it that what you said a moment ago is correct, that international humanitarian law applies regardless, and whether they're prisoners of war or not is not really relevant in the application of law in this particular circumstance in terms of the prevention of torture. I'm assuming that's correct.

I'm going to try a little different tactic than Mr. Dosanjh and Mr. Bachand. In your presentation you indicate that in addition to being a legal advisor to the government in some of its various presentations--like the Governor General, etc.--you say you also superintend the administration of military justice in the Canadian Forces, and you also exercise command over all legal officers working in the office of the JAG, including those deployed to Afghanistan. You would have administrative and operational duties that I would assume would include the assurance that in the administration of military justice, if there were breaches of law, you would seek to have people prosecuted who had participated or done that.

In that context I want to refer you to an affidavit filed by Mr. Richard Colvin, a diplomat, to the Military Police Complaints Commission, specifically paragraphs 40 and following. He says he sent a number of memoranda, but he specifically intended that those memoranda reach the Provost Marshal in charge of the military police, and also the military and/or civilian legal advisors, which he calls LEGADs or JAGs, who are responsible for legal aspects of detainee management.

I also note that in the one report of Mr. Colvin's that has been made public, which was filed in the Federal Court, in the heading it says that it was to go to “NDHQ OTT ADM: For Vincent Rigby. Also please pass to JAG.”

This affidavit talks about the visits by Mr. Colvin to prisons and witnessing or getting first-hand reports of torture and seeing wounds on individuals that they described as resulting from ill treatment.

In these circumstances, had you been aware of this, do you see it as your responsibility as the person responsible for military justice--and I'm assuming the compliance with international law by the people who you are responsible for--to do something about that? Were you aware of this information and did you do anything about it?

[BGen Kenneth W. Watkin]

Mr. Harris, it's good to see you as well after all this time.

I just want to clarify. You opened up in terms of the question of the importance of the prisoner of war status. As I mentioned in my opening remarks, it's clear that torture is prohibited across the board, whether it's POWs, whether it's civilians in custody, whether it's under international humanitarian law, the human rights law, the Afghan constitution, or the Canadian domestic law. It is important to establish that international humanitarian law clearly bans it under any number of treaties and customary international law.

With respect to my duties as the superintendent of the military justice system, I basically carry on what were, in effect, as Chief Justice Lamer said, the common law responsibilities of an attorney general. I clearly don't do the political aspects of it; I do the day-to-day aspects with respect to that.

In that capacity I superintend an independent director of military prosecutions, which is very common in the provinces and now federally with the DPP. I also have legal advisers who serve with the Canadian Forces, and those legal advisers include a number who are in Afghanistan. Presently there are six legal officers serving in Afghanistan under a variety of functions; that has ranged from six to nine over the course of various deployments.

With respect to the investigation of offences, I do not superintend the Provost Marshal or the military police. They are an independent organization. They perform a quasi-judicial duty, as do all police in terms of their determination of investigations and decisions to lay charges. They do get legal advice in the course of doing that. In particular, the NIS would get legal advice from the director of military prosecutions. What advice they get or don't get and what they seek would be covered by solicitor and client privilege.

Certainly with respect to--

[Jack Harris, NDP, St. John's East, NL]

Perhaps I may interrupt you for one moment. Are you saying, then, that if this report, which was sent to NDHQ for passage to the JAG, had reached your attention, you would have no responsibilities? Is that what you're telling us?

[BGen Kenneth W. Watkin]

I am sorry, Mr. Harris, you did interrupt me, so if I could continue on....

[Jack Harris, NDP, St. John's East, NL]

I did interrupt you. We're in a very tight timeline here and I won't get to ask that question if I don't get it in, so I'd like to specifically focus on that. I know you give legal advice, but my question is, are you telling this committee that had this come to your attention, as it was intended to, or to the attention of your folks...are you suggesting that you would have no responsibilities with respect to compliance with international law by the military?

[BGen Kenneth W. Watkin]

The next thing I was going to say was, in terms of providing legal advice with respect, generally, to matters, amongst that advice might be advice to the chain of command, or otherwise, to consider a police investigation, at which time it could be referred to the Provost Marshal. So it's certainly within the realm of the responsibilities of myself and my officers.

[Jack Harris, NDP, St. John's East, NL]

Surely, if you have attorney general-like duties and responsibilities, the attorney general would be certain to suggest that if something came to his attention on which he or she ordered an investigation, or asked that it be looked into, or did something, that wouldn't be a breach of solicitor-client privilege for the attorney general to inform the public that certain matters came to his attention and he ordered an investigation, or asked that some procedure be followed. So what I'm asking you is, did this come to your attention, and if it did, did you order that anything be done? You are the boss of all these people; you have direct operational control over a whole series of people in the department and the responsibility for the administration of military justice. So I don't think that question, specifically, is beyond the solicitor-client privilege issue.

[BGen Kenneth W. Watkin]

I think there is a distinction with respect to.... For instance, if you were fulfilling the function of a director of public prosecutions, it's one thing to say the director of public prosecutions has made a decision, and make that public, but it would be another thing for the director of public prosecutions to give advice, and in the giving of advice, that would be covered by privilege. As I understand your question, you're asking me about something that would be in relation to giving advice.

[Jack Harris, NDP, St. John's East, NL]

But that's not the question. The question--

[The Chair, Conservative, Rick Casson]

You're out of time for this spot.

We've finished the first round. We're into five-minute rounds. You know how fast that goes, committee.

We're going to start with Mr. Obhrai, then over to Mr. Rae.

[Deepak Obhrai, Conservative, Calgary East, AB]

Thank you, Mr. Chair.

My question is directed to Rob Walsh and to the Department of Justice.

Rob, in the exchanges that you saw here, there were a lot of privileges talked about--I have a privilege, they have a privilege. Mr. Bachand was talking about opening up everything. I want specifically to understand this from you: we have all taken the secrecy oath not to divulge sensitive information and everything under the secrecy oath and the public service oath. Can you confirm this, that the committee has the right to actually break this law, the laws of Canada, and that we would be compelled to do that? If so, if we are going to be compelled to do that, how are we going to protect ourselves from this thing so that we do not lose our privileges or break the law of Canada? Can you make this thing a very clear distinction?

I'll go to the justice guy for the second one, which is, can this scheme of the Canada Evidence Act be used to cover up information that is embarrassing to the government?

I ask those two questions here.

[Rob Walsh]

To go to Mr. Obhrai's question regarding oaths, I'm not sure to which oath he's referring or how many oaths he may be subject to.

Your first job, obviously, is as a member of Parliament, and you can say, in a broad public sense, there shouldn't be oaths at play here that put you in conflict. Leaving that issue aside, about the propriety of taking such oaths where you're not a member of cabinet, even if what you were to say here in this committee, this parliamentary proceeding, or in the House in a debate were, in the minds of some, to constitute a breach of your oath, there could be nothing that could be done about it in terms of using what you said in the House or in the committee as evidence to take steps against you for having breached your oath.

You have to ask yourself, where is your greater duty? Is it to the people to whom you swore the oath or to the people you represent in your function as a member of Parliament? There's a conflict there, potentially, where you have sensitive information. We all know that members of cabinet do have sensitive information, but they're recognized as ministers of the crown and they have crown confidences, cabinet confidences, which they will not disclose in the House because they're expected not to. But if they did, there couldn't be any legal proceedings brought against them. The Prime Minister may not be very happy, but there couldn't be any proceedings brought against them.

All I'm trying to stress here is that you don't have to--and this gentleman who's invoked solicitor-client privilege regarding his duties as a lawyer. There can't be anything done about it if he were, in the minds of some, to breach his duties to the law society or whatever and divulge information that otherwise would be protected. What happens here is here for this committee and it stays here. It can't be used elsewhere. That's the nub of the principle here. It can't be used elsewhere. You have an immunity, if you like.

Now, in your own conscience, you may say, yes, but still it's a breach. I swore an oath; I decided to give this information and I've breached my oath. Well, that's a matter for you to deal with in terms of your own sense of moral obligation. You might ask yourself why you've taken that oath and whether that oath has put you in conflict with your parliamentary duty, but that's another question.

[Deepak Obhrai, Conservative, Calgary East, AB]

If we look at the coin on the other side, if I cannot divulge this to the committee because of the oath I've taken, as you've said here, then the committee cannot do anything on that side on that, can they?

[Rob Walsh]

The committee can't do anything with regard to you?