Afghanistan Committee on Nov. 18th, 2009

[Richard Colvin]

Yes, I believe so.

[Paul Dewar, NDP, Ottawa Centre, ON]

Would you consider that to be a violation of the Geneva Convention?

[Richard Colvin]

Yes, I would.

[Paul Dewar, NDP, Ottawa Centre, ON]

Would you be able to share with the committee any documents you have with you so that we can reference them to do our work?

[Richard Colvin]

I would be pleased to. However, I'm concerned about what the consequences might be if I were to do that.

[Paul Dewar, NDP, Ottawa Centre, ON]

Can I leave that to your counsel to go over and to decide what to share with the committee?

[Lori Bokenfohr, Legal Counsel, As an Individual]

Right now, or could we have a...?

[Paul Dewar, NDP, Ottawa Centre, ON]

No. We're here for a long time. We can give it to you, and you can decide and send it in to us.

[Richard Colvin]

I was told just this week that there are new documents available in a redacted form. I haven't had a chance to look at it yet, but I was given a diskette yesterday.

[Paul Dewar, NDP, Ottawa Centre, ON]

Any information you have to share with this committee for it to do its work would be helpful.

[Richard Colvin]

Certainly.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

[The Chair, Conservative, Rick Casson]

Thank you, Mr. Dewar.

Mr. Colvin and Ms. Bokenfohr, thank you very much for your time.

I apologize for the temperature in the room. There's been some trouble with the plant system here on the Hill. We don't usually bring witnesses in and sweat it out of them as we did today. I apologize for that.

Do you have anything to say in conclusion?

[Richard Colvin]

I appreciate your having organized this. Thank you for inviting me and for treating me fairly. It was nice to meet all of you.

Thank you.

[The Chair, Conservative, Rick Casson]

Good. Thank you very much.

We're going to suspend for one minute while we bring in our next witness.

Thank you, sir.

[The Chair, Conservative, Rick Casson]

Could we reconvene, please?

Mr. Tinsley, I want to apologize on behalf of the committee for keeping you waiting and carrying over. We have bells at 5:30.

Do you have a prepared statement?

[Peter A. Tinsley, Chair, Military Police Complaints Commission]

Yes, I do, Mr. Chair.

[The Chair, Conservative, Rick Casson]

Do you have any idea how long it will take?

[Peter A. Tinsley]

No more than nine or ten minutes.

[The Chair, Conservative, Rick Casson]

Okay, and then we'll see how it works after that for you.

Sir, just to make it official here, you are the chair of the Military Police Complaints Commission, and you are here at the request of the committee. We appreciate your being here.

We will turn the floor over to you to make your opening comments, and we'll see how much time we have for questions after that, sir. Thanks for being here.

[Peter A. Tinsley]

Mr. Chairman and members of Parliament's Special Committee on the Canadian Mission in Afghanistan, good afternoon. I'm pleased to respond to your invitation and to assist, as I may be able, the committee in its work pursuant to its motions of October 28, 2009, concerning the treatment of detainees by the Canadian Forces in Afghanistan.

As you are aware, the Military Police Complaints Commission has been engaged in the investigation of complaints concerning the treatment of detainees by the military police of the Canadian Forces since January 2007, when the first such complaint was received from Dr. Amir Attaran.

Through the clerk, I have provided a chronology, and I hope you've received it, of the history of the commission, and more importantly, of these complaints and the decisions related thereto. I hope they may be helpful to you.

The first complaint filed by Dr. Attaran was resolved through a public interest investigation. The file was very recently closed following the reduction of the redactions to the original report and the re-release of the report. A copy of that re-released version may be found at tab E of the additional materials provided to you this afternoon.

The other complaints, also received in early 2007, from Amnesty International Canada and the British Columbia Civil Liberties Association, have not been resolved and remain either before the commission, pending an adjournment of the commission's inquiry by the public interest hearing process, or before the Federal Court of Appeal, pending a decision on the commission's application for leave to appeal, a decision of the Federal Court. Again, I've supplied the committee clerk with a chronology and the commission's decisions in respect of these matters, which I hope may assist you in understanding my very brief remarks.

I believe that it is because of these unresolved complaints that I've been invited here to speak to you and answer your questions. It's also because of the state of these complaints--still, as said, in the process of the commission's inquiry or before the Federal Court--that I may have to be restrained in what I may say in response to your questions; that is, restrained out of respect for and to maintain the integrity of these processes. I am currently presiding over a panel that is conducting hearings into the complaints that remain before the commission, and I have a duty to act fairly in respect of the parties, including a requirement to speak about matters specifically before the commission only through the decisions of the commission. I hope you will understand.

Given the constraints upon me, perhaps I can briefly and appropriately elucidate the present situation of the commission and its inquiry process by recapping and paraphrasing some concluding remarks I made previously, following delivery of the commission's decision to adjourn on October 14 this year.

The matter of the treatment of detainees by the Canadian Forces in Afghanistan by Canada's military police has, particularly given the notorious experience of some other nations in similar situations in Iraq and Afghanistan, and our own recent history in Somalia, attracted much public attention across our country and internationally. There is clearly an expectation of answers in respect of the complaints filed with the commission.

As I've said before, the concerns raised by the complaints are serious in the interest of what have been referred to as the victims or potential victims of the treatment in question. They also potentially call into question the honour and professionalism of Canada's military police in discharging their solemn duty to uphold the rule of law within the Canadian Forces, even in the midst of Canada's most substantial military engagement in half a century.

As an agency specifically created by Parliament in the 1990s to provide greater accountability following the tragic experience in Somalia, wherein the outstanding efforts of so many of the Canadian Forces were nationally and internationally stained by a few, and more particularly, by a lack of transparency regarding the events in question, the Military Police Complaints Commission very much regrets the delays occasioned to its inquiry process in these matters that leave the public record, as it is at this time, replete with more questions than answers. When I speak of the public record, I am not, to be sure, speaking of the commission's evidentiary record in respect of its hearings.

As of this moment, very little evidence is actually before the commission in the context of the formal proceedings of the public interest hearing. Nonetheless, over the past two and a half years of the preceding public interest investigation, and other inquiries preliminary to these hearings, certain information has come to the attention of the commission that moved the commission to convene its hearing process and that underscored the importance of the inquiry. Some of that information is indeed already in the public domain and much published.

The danger and difficulty of all of this information is that it is incomplete and/or untested in a procedurally fair and thorough manner, respecting the rights of those involved. Accordingly, it cannot properly be referred to as a proper and complete evidentiary base of fact. As such, the commission and I cannot draw any conclusions or implications from such information, and I have cautioned the public to adopt similar restraint.

The commission also appreciates the reality that by inquiring into the conduct of military police in respect of these allegations, facts may well come to light that reflect on the actions and decisions of those outside the military police. But as has been said repeatedly, that was never the purpose or focus of this inquiry, only a possible and necessary contextual consequence exacerbated by public attention.

However, for over a year the commission sought to address this complaint through an investigation without hearings--and for that matter, without challenge to its jurisdiction. But it was compelled to resort to the more formal and public route of a hearing, which was the only means available to compel production of information, or so the commission thought.

Agencies for the independent oversight of the police, like all parts of our administrative law structure, are intended to serve the people or community on behalf of the government that created them. That is, in the police oversight context in maintaining public confidence in the police, unquestionably what should be a priority for any democratic government today. The norms of independent oversight of the police across Canada, and indeed such international norms as do exist, dictate that such oversight agencies be created in statute form with the purpose of providing independence, both real and perceived, from the government of the day, of which the police are an agent.

This commission was so created in order to ensure its credibility and effectiveness in fostering public confidence in military policing, which effectively means the caring and enforcement of the laws and standards that Canadians expect within their military, including from the chain of command at home and abroad. Unfortunately, the fallibility of this arrangement has been exposed in the matter of the detainee complaints when quite out of step with the normal situation wherein the principal challenge to police oversight is what has been often referred to as “the blue wall”. The government becomes the obstacle in the oversight piece, as opposed to the police themselves.

In such circumstances, notwithstanding establishment empowerment by Parliament, experience to date in this matter has demonstrated that when the government does not cooperate, there is no equality of arms. By this martial analogy, which is also a legal one, I do not mean to suggest that the relationship between the government of the day and administrative tribunals is properly adversarial in nature; quite the contrary, it is not. Indeed, they form part of the executive branch.

However, administrative tribunals such as or including police oversight agencies are generally intended to serve the public interest by bringing to bear their particular expertise in a quasi-judicial fashion, including a certain independence from the government of the day. But while they are often imbued with court-like powers, they do not have the same degree of independent authority as the judiciary and are intended to provide more informal, expeditious, and expert forums for dealing with specialized matters.

However, the intended value of administrative tribunals is rendered for naught when they are confronted by the need to rely on the courts to give effect to their mandates, with all of the associated costs and delays associated therewith, a result likely not intended by Parliament when establishing such agencies.

It would seem that some of the key lessons of the Somalia experience, from which I have already said this commission arose, wherein accusations--whether well founded or not--were fueled by a lack of transparency, have not been learned. Oversight of military policing, like military policing itself, presents a number of unique challenges. The commission's goal throughout this process has been focused on one overarching objective: to ensure public confidence in the integrity and professionalism of military policing and the rule of law.

Again, I very much regret the additional delay occasioned by the present adjournment in rendering this service to the Canadian people, the complainants, and indeed to the military police personnel involved, who continue to live under a dark cloud of unproven suspicion. However, for the duration of my appointment, I can assure you that the commission will continue to be committed to resolving these matters as soon as possible, and in the public interest.

Thank you, Mr. Chair.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

Now, committee, we have a quandary here. We have ten minutes left before the bells ring. Do you want to start into the questioning? You're not all going to get a question.

[Bob Rae, Liberal, Toronto Centre, ON]

I would make the suggestion that we not proceed with questions today. I think we would all feel dissatisfied with having one question and not being able to pursue a line of questioning. I know it's been frustrating for Mr. Tinsley, and I appreciate his having come here, but I think the best thing to do would be for us to come back the next time and proceed with questions at that point. I just think we're not going to have a satisfactory exchange for anybody, and I think it's better if we do that.

I haven't discussed this with my colleagues. I don't know what anybody else thinks, but that would be my view.

[The Chair, Conservative, Rick Casson]

Mr. Tinsley, would that opportunity present itself for you?

[Peter A. Tinsley]

If you're talking about next Wednesday, Mr. Chair, I will appear. I will advise you that I'm travelling this weekend to Brazil to speak at an oversight conference and will get off a plane at noon next Wednesday, but I will appear.