Afghanistan Committee on March 17th, 2010

[Paul Champ]

Well, he released in his press conference a completely unredacted version. And we saw that what was redacted before were sentences like “We should take a photograph of this detainee prior to transfer so that we have evidence if he's abused following transfer to the ANP, as has occurred in the past”. That's what was blacked out.

That's of serious concern to us, because it suggests that as of April 2006, the Canadian Forces at that time were aware that detainees were being abused. They were so alive to that risk that they were taking photographs of individuals so they would have a record that they weren't the ones who abused them.

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

Can I just run through the test that appears to be used by the Department of Justice in redacting documents? The officials determine whether the disclosure of the information would be injurious to international relations, national defence, or national security. If the officials conclude that the disclosure would result in injury, they must then determine whether the public interest in disclosure outweighs the importance of public interest in non-disclosure. So there is a balance here between the claims of injury and the claims of the public interest.

That seems to me to be a matter of opinion, shall we call it--perhaps legal opinion, but it's surely a matter of opinion that would vary from person to person.

I'm a lawyer, you're a lawyer. Can you tell us whether that test is something that can be consistent or reliable, or is it a matter of opinion? And what kinds of results did you get from that test being applied by different people?

[Paul Champ]

Well, Mr. Harris, there are some guideposts from the Federal Court on that. There have been some cases where they have considered weighing the public interest and also whether something meets the test of causing injury. For example, I think of Justice Mosley's decision in the Arar inquiry court judgment. It took about a year and a half or two years, but he released a very lengthy judgment where he started by saying that it can't be about embarrassment. You shouldn't be blacking out information of foreign agencies who might be doing wrong, and things like that.

The issue there, though, is whether something was actually causing injury in the first place. If a judge was looking at, for example, issues over the number of detainees and the date they were captured, I still don't understand how that can be a risk. How can you prove or demonstrate that there is a risk when our closest allies in Afghanistan are doing the same thing? So I don't know what would be there.

But some of that, for sure, is open to interpretation, and I think it can be fairly subjective.

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

Well let me give you one “for instance”. Do you think it would be injurious to Canada's international relations if it were disclosed or discovered that Canada was not doing a very good job in doing its duty of protecting individuals from torture? Would that be injurious to Canada's international relations and therefore be subject to redaction and non-disclosure to the public? Is that something that could happen?

[Paul Champ]

Well, I don't precisely know the arguments that were made in the past, but I think those are along the same lines of the arguments that have been made by the government. For example, I'll go to the Arar inquiry report again. It's my understanding the government was trying to withhold some information from the final report because it would show that Canada wasn't necessarily doing its job in some way, or, for example, if it was using information obtained from torture with respect to Mr. Abdullah Almalki. Somehow they felt that would damage international relations if it came out that they did that. But the court said no, that was really an issue of embarrassment.

I think those are probably some of the internal justifications that have been made. Unfortunately, there is not a lot of litigation under the Canada Evidence Act on the national security immunity provisions. So right now we're sort of at the mercy of justice department lawyers and their interpretation of those provisions.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

We'll move back to Mr. Hawn, please.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Chair.

I'll share my time with Mr. Obhrai.

Mr. Champ, I want to thank you for coming and stating your opinion and interpretation as an employee of Amnesty International and the B.C. Civil Liberties Association.

Everybody understands there is risk in a place like Afghanistan. Have you spoken to the people who are running our detention facility there now, specifically Colonel Hetherington, who is there now?

[Paul Champ]

No, I have not.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Have you looked at the progress that has been made over the number of years that we've been taking prisoners and developing the capacity of the Afghan system?

[Paul Champ]

I have not. I would love to see it, because when this sort of court case ended we were not able to get further production or disclosure. I would be very interested in learning about what other developments or progress they've made in that regard.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I'd suggest to you that it's not a secret. The information is available, and in fact they've made tremendous progress.

Do you think there's a danger...? Do you think it's appropriate to transfer the context and perspective that we in Canada have for how things should be and impose that context and perspective on a place like Afghanistan, which clearly is not like Canada and never will be?

[Paul Champ]

I'm not sure what you mean by that, Mr. Hawn. For example, I've heard General Hillier say that prisoners and Afghan prisoners in prisons obviously cannot expect the same standard of treatment and conditions that Canadian prisoners receive in penitentiaries here. But that's not what we're talking about. I don't think there are any Canadian prisoners who are subjected to electric shocks, beaten with electrical cables or rubber hoses, or hung for days. Those are the concerns we have.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I understand that, but would you also agree there may just be a chance that 90% of Taliban prisoners are going to claim torture regardless of the circumstances?

[Paul Champ]

I don't know what that statistic would be based on.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You gave the statistic that 90% have been tortured.

[Paul Champ]

That is the finding of the Afghan Independent Human Rights Commission--

[Laurie Hawn, Conservative, Edmonton Centre, AB]

What is it based on?

[Paul Champ]

It's based on their first-hand interviews with detainees.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

Clearly the detainees have a vested interest in that.

I suggest that you might want to check with the Brits. I'm not going to put words in their mouths, but I think you'll find that their prisoner handling situation is entirely different from ours.

Switching quickly to the MPCC for a second, you talked about the government changing its mind and allowing witnesses to cooperate. Are you not of the understanding that the MPCC is now operating within its mandate, and witnesses have been told to cooperate because the MPCC lost the court case to get outside their mandate and is now sticking to their mandate?

[Paul Champ]

I don't know the reasons why those witnesses have agreed to cooperate or why they refused to cooperate in the first place. We were advised by Government of Canada counsel in the hearings that each one of those 28 witnesses made their own individual decisions and exercised their own individual consciences to say they did not want to cooperate. Subsequently all 28 have coincidentally said they now want to cooperate and exercise their own individual judgments. So I don't know what each individual had in their mind at the time.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Hawn.

Mr. Obhrai, you have one minute.

[Deepak Obhrai, Conservative, Calgary East, AB]

Thank you, Mr. Chair.

I'm going to the question that Mr. Bachand raised today in the House of Commons with reference to the minister in the agreement of 2007. Over 200 visits have already been made to the Afghan prison, including one as early as ten days ago. So there are constant visits there that we know of, yet we keep hearing you and Mr. Bachand not taking into account what my colleague Mr. Laurie said about the capacity-building of the Afghan government coming from ground zero. There are positive things that are happening, yet you keep ignoring all of the other positive aspects that are going on with these things.

Why are you not looking at some of the positive aspects that Canada has contributed towards achieving? What we say is torture...nobody agrees with that.

[Paul Champ]

I think we have been fairly clear that we think it's commendable that Canada has increased its resources. When we started the court case, for example, Canada had donated almost no money to the Afghan Independent Human Rights Commission. Since that time it has increased to the extent that Canada is the greatest contributor to the Afghan Independent Human Rights Commission. That's commendable.

We know that there were almost no Department of Foreign Affairs officials in Kandahar prior to our court case. I think there were two officials. Now they have about 12 officials, with a specific detainee officer. That's obviously commendable.

Canadian police officers have now been deployed to provide direct on-the-ground training. Those things are all commendable. I don't think we've ever not recognized that or said that those aren't significant improvements.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

We'll go back to Mr. Dosanjh and Mr. Wilfert.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

I have two things I want you to either confirm or say they're wrong.

Mr. Obhrai just mentioned that they have had 210 visits to the prisons. I understand the way the government counts visits is if they have met 210 detainees through various visits, they call them 210 visits. Is that your understanding?