Evidence of meeting #48 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Liberal
The Chair Liberal Tom Wappel
No, no, Mr. Martin, does the experts' opinion make it so? It is for us to decide that.
NDP
Pat Martin NDP Winnipeg Centre, MB
Mr. Esau, you mentioned that you got a letter from the PCO saying that they had never seen the DFAIT report. This is the organization that supports the cabinet.
Now, I guess I should ask you this. Do you think it's plausible that these reports have been published year after year, and ministers have stood up and denied any knowledge of the adverse treatment of detainees, at least since April of last year, when our member Dawn Black asked these questions? Do you think it's plausible that PCO has never heard of these reports, never mind never read them?
As an Individual
Well, they said they haven't found any records under their control that are relevant to my request.
My belief is that there's a division within PCO that I think would very logically be the recipient of the type of report that has been released. They have an international assessment directorate that does these kinds of analyses for the government, and I have copies of them. They're heavily redacted, but they include commentary on human rights.
NDP
Pat Martin NDP Winnipeg Centre, MB
Ministers have stood up and said they've never heard of the idea that detainees may be being tortured in Afghanistan. Could it be that the PCO is keeping ministers on a need-to-know basis? Maybe the PCO reads these things and says they'd better not tell the minister about this because if the minister knew detainees were being tortured and he got asked if detainees were being tortured.... It goes from blindness to wilful blindness.
As an Individual
As I mentioned, this is dated May 14, so I got this yesterday, and I have not finished with this. I will be following this up, because it strikes me as so strange to get that kind of response in light of everything that's been going on with respect to the DFAIT report.
NDP
Pat Martin NDP Winnipeg Centre, MB
It certainly strikes me that way too.
Professor Attaran, do you have anything to add?
Prof. Amir Attaran
I'd like to comment on the rogue bureaucrat hypothesis you mentioned--I believe those were your words--that one official just did not know about the report or didn't apply the act correctly.
It's important to note that the Afghanistan 2006 report, first, is not a top secret document; it's not even a secret document. It's only marked “confidential”, and that's a fairly low-level classification. Since it appeared on page 1 of The Globe and Mail in its partial glory, three colleagues of mine in three separate government departments have told me casually that they've seen that report. So it's not simply within DFAIT; other departments have this report as well.
It's curious, though, that within DFAIT some people who ought to have seen it have not. I won't go into that before this committee, because that's a different subject. But there is some evidence from the Amnesty International matter before the Federal Court that an assistant deputy minister of DFAIT, responsible for defence and international security, on oath said she had never seen the report, which is curious. It also strikes me as unusual, to say the least, that PCO would not have records of it.
The title of the document is not simply about human rights. It's “Good Governance, Democratic Development and Human Rights”. As I understand it, this year the government is spending $200 million on development in Afghanistan, so presumably some feedback on democratic development would be warranted from the embassy in Kabul and would be relevant to be seen.
I won't get into it here because, frankly, I don't know what PCO has or has not read.
NDP
Pat Martin NDP Winnipeg Centre, MB
You were given a disk with the reports from 2002, 2003, 2004, 2005, and 2006. Excerpts have been picked up elsewhere and published in the media, and you can actually see through the censored sections. You can read what was censored. Do you have any information how that may have come about? It's a rare thing to be able to read the uncensored version of a censored document when it's censored by the federal government. It's really quite amazing.
Liberal
The Chair Liberal Tom Wappel
Before the witnesses answer that, professor, in the document that you have, is that a fact? Can you in fact read sentences under what appears to be blackout or whatever you want to call it?
Prof. Amir Attaran
I'm holding a faithful copy, a faithful printout of the document that was provided to me on CD, and you see these grey boxes here, Mr. Chairman, they are opaque. They were opaque when I viewed them on my computer screen; they were opaque when I printed them. I cannot make out the words underneath there, but I have seen another copy, which was provided to La Presse, in which the grey is not opaque and the words bleed through and can be read. That is, however, not the copy I was given under ATI.
Liberal
The Chair Liberal Tom Wappel
Thank you. That's what I was trying to get at.
The next questioner is Mr. Dhaliwal, followed by Mr. Tilson.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Thank you.
I would like to follow up on Mr. Pearson's comments. This in no way is a comment on our troops, who are serving us proudly and in heroic circumstances, who, like us, have not been given accurate information either. So perhaps it is more a comment on this Conservative government shielding themselves, leaving our troops to hide their own mistakes.
I'm going to get down to the question, sir, that you get all the time. You mentioned section 31, why do you think section 31 was not invoked?
Liberal
As an Individual
I don't know. It's certainly used by other institutions to withhold information obtained in confidence from other governments. I haven't even seen the documents, so I don't know why one section was used. I'm hoping the Information Commissioner can shed some light on that.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Professor Attaran talked about the possibility of criminal acts of withholding information being involved here. I wonder if you can explain this. I'm not very clear on this.
Prof. Amir Attaran
Let me approach it in a lay sense rather than an overly legalistic one.
It's something each of you can answer in your own thoughts, without necessarily speaking up on it. But if you believe that records were concealed, based on what Mr. Esau and I have said, then that's a prima facie violation of paragraph 67.1(1)(c) of the Access to Information Act, which is punishable by imprisonment or a fine. It's as simple as that.
If, hearing the story, you think that nothing was concealed, then you would have to possess the opinion that there has been no possible criminality. If you believe it is possible that documents and records were concealed, then prima facie you must believe there could be criminality.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
The way I see it is that it's a very serious matter. Would you agree that we should have a first-class public inquiry into this situation?
Prof. Amir Attaran
I am in favour of any process that will ascertain why evidence in Canada's possession about how human beings were being tortured and killed by a regime to whom we were delivering human beings.... I'm interested in any inquiry that can establish why that evidence was not readily shared in response to several access to information requests, and why it is not being shared with the Federal Court in the Amnesty International and B.C. Civil Liberties Association judicial review.
That seems to be the sort of information where the stakes--human lives--are so overridingly important that there is no ethical scope for paltering about what the act means. The ethics of the civil service must be to disclose information that isn't within one of the stated exemptions of the act and also has a profound public interest to be free. Evidence of torture fits that category. It should be free where it does not, as in this case, legitimately become exempt under the act.
Liberal
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Basically that's all. I think I've taken four and a half minutes.