Afghanistan Committee on Nov. 4th, 2009

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

Thank you, Chairman.

General Watkin, I think we should be clear, after Mr. MacKenzie's comment. I don't think anyone, certainly from my party, has ever suggested that a Canadian soldier in Afghanistan has tortured somebody, but what we are concerned about is the following. I'll use your words:

The transfer of detainees to a real risk of torture or ill-treatment is contrary to International Humanitarian Law (IHL), which is also known as the Law of War or the Law of Armed Conflict.

I will suggest to you that whatever agreement is in place, we understand that the Afghans were looking after these prisoners, well or badly. That obligation doesn't change our obligation not to transfer to a real risk of torture or ill treatment. We have, presumably, a duty to take steps to ensure that doesn't happen. So we are trying to protect (a) Canada's reputation, (b) our soldiers breaking international law, and (c) obviously reduction of torture of whoever happens to be the victim of torture. That is the whole purpose of this.

We do know that the International Committee of the Red Cross, after this, were held out as the people who were monitoring this and said, “We're not telling you guys anything about this; we're only going to tell the state”, in other words, Afghanistan. “We're not going to tell Canada; we're just telling Afghanistan.”

You can answer this for yourself. What I want to know is this. Do you have any responsibility for the Canadian military meeting its legal obligations under this international humanitarian law? In other words, do you have anything to do with the monitoring system, the reporting system, and the enforcement of that provision of international humanitarian law? And if you don't, who does?

[BGen Kenneth W. Watkin]

I certainly have responsibility to give advice, as I mentioned, with respect to advice to commanders on domestic and international laws respecting international operations, which clearly would include issues such as this with respect to the handling and treatment of the detainees. To address your issue in terms of this being a standard that applies, yes, it does, regardless of where we go and regardless of where we serve.

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

I understand that part, but your responsibility is to give advice. The only report that we do have or that we have seen is one that talks about torture in Afghanistan's prisons, and we have an affidavit of Mr. Richard Colvin saying he had given several reports of this nature, starting in 2006. Where are the reports going now? Do they come to your attention, or is that a solicitor-client privilege thing? Where do they go? Is there a procedure whereby these reports go to somebody who takes responsibility for making sure that our international obligation is being complied with?

[BGen Kenneth W. Watkin]

Again, my involvement with this file is subject to solicitor-client privilege. I believe there are other witnesses who are better situated to give you a far more comprehensive answer to your general question about where these go.

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

You're not even going to tell us whether they go to you. That's your answer.

If I have one more minute I would like to ask Mr. Breithaupt a question regarding certificates of the attorney general.

In 2001, when Bill C-36, the anti-terrorism bill, was brought in and we were dealing with security certificates, the parliamentary secretary to the Minister of Justice said the following about the Attorney General's certificate in connection with proceedings regarding section 38 of the Canada Evidence Act:

The attorney general's certificate process is intended to apply in exceptional cases only as the ultimate guarantee that ensures the protection of very sensitive information by the Government of Canada. The protection of this information is of particular concern in relation to information obtained from our allies.

He went on to say a number of things, including that the certificate could only be issued personally by the attorney general and only when very sensitive information was threatened by disclosure in individual proceedings.

That seems to be a very exceptional intention of Parliament in relation to the use of these certificates. That does not seem to be in accord with the practice that's been undertaken by the Department of Justice since this legislation was passed.

Would you care to comment on that?

[The Chair, Conservative, Rick Casson]

You only have a few seconds, so it'll have to be short.

[Douglas Breithaupt]

Thank you.

I can assure you that the attorney general has never issued a prohibition certificate, because there is no need to issue one. I don't understand the comment with regard to the practice, since no certificate has been issued to date.

[The Chair, Conservative, Rick Casson]

Thank you very much.

Mr. Bachand.

[Claude Bachand, Bloc, Saint-Jean, QC]

I have a point of order.

Earlier, I asserted that the committee was free to proceed as it agreed. In fact, we can disregard the section 38 arguments. I was clear on that point. I understood that General Watkin had to consult his client and then get back to us. I would like this to be done. Otherwise, we are going to end up with people who don't want to answer our questions. I think it is essential that the general come back and explain, on behalf of his client, how he sees the situation.

Do we have an understanding?

[The Chair, Conservative, Rick Casson]

I understand that, and I think Mr. Watkin understands it as well.

Thank you all very much.

The meeting is adjourned.