PIH Hearing Transcript - April 6 2010

1
2 Military Police Complaints Commission

3
4
5 AFGHANISTAN PUBLIC INTEREST HEARINGS
6 held pursuant to section 250.38(1) of the National Defence
7 Act, in the matter of file 2008-042
8
9 LES AUDIENCES D'INTÉRÊT PUBLIQUE SUR L'AFGHANISTAN
10 tenues en vertu du paragraphe 250-38(1) de la Loi sur la
11 défense nationale pour le dossier 2008-042
12
13
14 TRANSCRIPT OF PROCEEDINGS
15 held at 270 Albert St.
16 Ottawa, Ontario
17 on Tuesday, April 6, 2010
18
19 VOLUME 1-A
20
21
22BEFORE:
23
24Mr. Glenn Stannard Acting Chairperson
25
26Mr. R. Berlinquette Commission Member
27
28Ms. R. Cléroux Registrar
29
30
31APPEARANCES:
32
33Mr. R. Lunau Commission counsel
34Ms. Catherine Beaudoin
35
36Mr. A. Préfontaine For Maj Bernie Hudson, Maj
37Ms. H. Robertson Michel Zybala, Maj Ron Gribble,
38Mr. V. Wirth LCol (Ret'd) William H. Garrick,
39Ms. E. Richards CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner
40
41Mr. P. Champ For Amnesty International and
42Mr. K. Elgazzar B.C. Civil Liberties Association
43
44Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM
45
46 A.S.A.P. Reporting Services Inc. © 2010
47
48 200 Elgin Street, Suite 1105 333 Bay Street, Suite
49 900
50 Ottawa, Ontario K2P 1L5 Toronto, Ontario
51 M5H 2T4
1 (613) 564-2727 (416) 861-
2 8720
1 (ii)
2
3
4 INDEX
5
6
7 PAGE
8
9
10Opening Submissions by Mr. Champ 35
11
12Opening Submissions by Mr. Wallace 42
13
14Opening Submissions by Mr. Préfontaine 44
15
16
17PREVIOUSLY SWORN: SGT CAROL UTTON 50
18
19 Examination-In-Chief by Mr. Lunau 50
20
21 Cross-Examination by Mr. Champ 105
22
23 Cross-Examination by Mr. Wallace 162
24
25 Cross-Examination by Ms Richards 164
26
27
1 (iii)
2
3 LIST OF EXHIBITS
4
5NO. DESCRIPTION PAGE
6
7
8P-20 Letter from Lori Bokenfohr to Alain Préfontaine
9 dated October 13th, 2009. 11
10
11P-21 Letter from Alain Préfontaine to List of Addressees
12 dated July 28th, 2009. 11
13
14P-22 Collection A, Human Rights and Related Materials,
15 Additions (3 Volumes). 11
16
17P-23 Collection B, Additional Federal Court Documents
18 (3 Volumes). 11
19
20P-24 Collection C, DND Documents (6 Volumes). 12
21
22P-25 Collection D, Captain Moore’s Documents, (1 Volume). 12
23
24
25P-26 Collection E, Colvin’s documents (1 Volume). 12
26
27P-27 Collection F, NIS documents (6 Volumes). 12
28
29P-28 Collection G, Notebooks (1 Volume). 12
30
31P-29: Collection H, Documents from public open sources
32 (1 Volume). 12
33
34P-30 Collection I, Transcript of Major Rowcliffe
35 (included in 2 volumes identified as Collection I to S) 12
36
37P-31 Collection J, Transcript of Major Gribble (included
38 in 2
39 volumes identified as Collections I to S) 12
40
41P-32 Collection K, Transcript of Sergeant Utton
42 (included in
43 2 volumes identified as Collections I to S). 13
44
45P-33 Collection L, Transcript of Major Hudson (included
46 in
48
49P-34 Collection M, Transcript of Major Boot (included
50 in
52
53P-35 Collection N, Transcript of Ms. Duschner (included
54 in
1 (iv)
2
3 LIST OF EXHIBITS (cont’d)
4
5NO. DESCRIPTION PAGE
6
7P-36 Collection P, Transcript of Brigadier Genera
8 Laroche (included in 2 Volumes) 13
9
10P-37 Collection P, Transcript of Brigadier General
11 Laroche
12 (included in 2 Volumes identified as Collections I to S). 14
13
14P-38 Collection Q, Transcript of Lieutenant General
15 Gauthier
16 (included in 2 Volumes) 14
17
18P-39 Collection R, Transcript of Captain Moore
19 (included in
20 2 volumes identified as Collections I to S. 14
21
22P-40 Collection S, CSC documents (included in 2
23 volumes
24 identified as Collections I to S). 14
25
26P-41 Collection T, relevant documents received from AG
27 on
28 March 22nd, 2010 (1 volume). 14
29
30P-42 Document index for the Main Witness book. 15
31
32P-43 Document index for the NIS Witness Book. 15
33
34P-44 Transcript of hearing held on December 4th, 2008. 15
35
36P-45 Transcript of hearing held on May 25th, 2009. 15
37
38P-46 Transcript of hearing held on May 26th, 2009. 15
39
40P-47 Transcript of hearing held on June 1st, 2009. 15
41
42P-48 Transcript of hearing held on June 2nd, 2009. 15
43
44P-49 Transcript of hearing held on June 3rd, 2009. 15
45
46P-50 Transcript of hearing held on October 7th, 2009. 15
47
48P-51 Transcript of hearing held on October 14th, 2009. 16
49
50P-52 Transcript of hearing held on December 10th, 2009. 16
51
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1 Ottawa, Ontario
2--- Upon commencing on Tuesday, April 6, 2010
3 at 10:00 a.m.
4 THE REGISTRAR: Ladies and
5gentlemen, the Afghanistan Public Interest Hearings
6held pursuant to Section 250.38(1) of the National
7Defence Act in the matter of the Military Police
8Complaints Commission, file 2008-042 are now in
9session.
10 Acting Chair, Mr. Glenn Stannard,
11presiding together with Commission Member, Mr. Roy
12Berlinquette.
13 Mesdames et messieurs, les
14audiences d’intérêt publique sur l’Afghanistan
15tenues en vertu du paragraph 250.38(1) de la Loi
16sur la défense nationale pour le dossier de la
17Commission d’examen des plaintes concernant la
18police militaire 2008-042 sont maintenant ouvertes.
19 Le président intérimaire, monsieur
20Glenn Stannard préside les audiences avec le
21commissaire Roy Berlinquette.
22 THE CHAIR: Thank you, Madam
23Registrar.
24 Good morning and bonjour.
25 Once again, please allow the Panel
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1to introduce ourselves.
2 I am Glenn Stannard, the Acting
3Chairperson of the Military Police Complaints
4Commission, and my fellow Panel Member is Mr. Roy
5Berlinquette, also a Member of the Military Police
6Complaints Commission.
7 We would like to begin by thanking
8all present here today.
9 Counsel, public observers and
10members of the media for your continued interests
11in the work of the Military Police Complaints
12Commission.
13 We apologize for the delay, we had
14to sort through a little bit for a court reporter,
15but we are back in business.
16 Thank you.
17 Madam Registrar, thank you for
18calling to order the resumption of the Public
19Interest Hearing into the Military Police
20Complaints Commission, file 2008-042, in relation
21to a complaint by the Amnesty International and
22B.C. Civil Liberties Association, dated June 12th,
232008.
24 The Afghanistan Public Interest
25Hearings commenced on December 4th, 2008, with the
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1Commission panel consisting of the then Chair of
2the MPCC, Mr. Peter Tinsley and Mr. Roy
3Berlinquette.
4 On December 11th, 2009, I was
5appointed Acting Chairperson of the Complaints
6Commission, with full statutory powers of that
7position.
8 On February 23rd, 2010, I assigned
9Mr. Roy Berlinquette and myself to conduct the
10Public Interest Hearing in relation to Military and
11Police Complaints Commission, 2008-042.
12 On March 24th, 2010, we heard
13three motions and arguments from the parties in
14respect to those motions.
15 The motion for reconsideration of
16the decision to name Lieutenant Colonel Retired
17Garrick as a subject, the standard of conduct
18applicable to the Military Police subjects, and the
19motion to determine the standard of conduct
20applicable to situations where it is alleged that
21the Military Police subjects had the means of
22knowing of a situation which they should have
23investigated.
24 Last week, Mr. Berlinquette and I
25considered these three motions, as well as the
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1arguments advanced by the three parties, and issued
2three decisions in relation to the motions.
3 I trust counsel has received the
4decisions on Thursday, April 1st, as transmitted by
5the Registrar of the MPCC?
6 All parties have received?
7---(No response/pas de réponse)
8 I would again request counsel
9present to introduce themselves and their co-
10counsel.
11 Let us begin with the lead
12counsel, Mr. Ron Lunau.
13 MR. LUNAU: Thank you.
14 I am Ron Lunau, the lead counsel
15for the Commission. With me is Ms. Catherine
16Beaudoin.
17 THE CHAIR: Mr. Préfontaine?
18 MR. PRÉFONTAINE: Bonjour, Alain
19Préfontaine. I am lead counsel representing the
20eight subjects.
21 I am assisted today by Liz
22Richards, to my left, behind me to the left is
23Commander Retired Vance Wirth, who is also a member
24of the team.
25 To his right, Helene Robertson.
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1 Not in the room, but also a member
2of our team is Nathalie Benoit.
3 THE CHAIR: Thank you. Mr.
4Champ?
5 MR. CHAMP: I am Paul Champ for
6the Complainants, Amnesty International Canada and
7the British Columbia Civil Liberty Association.
8 I am joined by Khalid Elgazzar
9today, as co-counsel.
10 Through this hearing we will also
11be represented by Sebastien Jodoin and also Grace
12Pastine and Carmen Chung.
13 THE CHAIR: Thank you.
14 Mr. Wallace?
15 MR. WALLACE: Good morning. My
16name is Mark Wallace, I am counsel here today for
17retired navy captain, Steve Moore, one of the
18subjects and the former Canadian Forces Provost
19Marshal.
21 MR. BERLINQUETTE: To reiterate
22from our March 24th, 2010 opening statement on our
23guiding principles, remained as follow: 1)
24thoroughness; 2) expeditiousness; 3) openness to
25the public and; 4) fairness.
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1 As a Public Interest Hearing, it
2is essential that the proceedings be as
3transparent, accessible and open to the public as
4possible.
5 We are mindful that inquiries can
6have a serious impact on those implicated in the
7process.
8 Therefore, this process must
9balance the interests of the public in finding out
10what happened with the rights of those involved to
11be treated with fairness in the utmost respect.
12 This is not an adversarial
13process, but an inquisitorial process.
14 The role of the Commission is to
15receive complaints regarding the conduct of members
16of the Military Police relating to policing duties
17and functions.
18 Conduct investigations or public
19hearings and render a report with findings and
20recommendations.
21 It is the Commission’s intention
22to commence hearing testimony today and continue on
23April 7th and 8th.
24 On subsequent weeks, we will
25preside Monday to Thursday with Friday liberated
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1for counsel preparation.
2 Only if it becomes necessary to
3accommodate a witness will we sit on a particular
4Friday.
5 We will commence hearings at 9
6a.m. to 12 noon, with a break returning at 1330.
7 We intend to preside to 1630 hours
8on hearing days and we will also take a short
9morning and afternoon break.
10 We seek your cooperation in
11abiding to these schedule hearing times.
12 Are there any questions at this
13stage?
15 Hearing none, I would ask Mr.
16Lunau for his opening remarks.
17 MR. LUNAU: Thank you, Mr.
18Berlinquette, Mr. Stannard.
19 The Commission is, this morning,
20entering upon the evidence phase of the Afghanistan
21Public Interest Hearings. Over the next several
22weeks, the Commission will receive testimony from
23approximately 25 witnesses of fact.
24 To set the stage for these
25hearings, the issues that the Commission will
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1generally be examining arise from what has been
2called the Failure To Investigate Complaint.
3 This complaint was delivered to
4the Commission by Amnesty International and the
5B.C. Civil Liberties Association on June 12th,
62008.
7 In summary terms, the complaint
8alleges that from May 3rd, 2007 to June 12th, 2008,
9members of the Canadian Forces National
10Investigation Service in Kandahar and the Task
11Force Provost Marshal were aware that former
12Canadian Forces detainees were likely tortured by
13Afghani authorities, yet failed to investigate
14whether any members of the CF should be charged for
15their role in facilitating these alleged crimes.
16 The complaint also alleges that
17senior officers occupying the position of Commander
18Task Force Afghanistan ordered the transferred
19detainees to the custody of Afghan Secret Police
20during the relevant period of time, despite first-
21hand reports that previous detainees were tortured
22by Afghani authorities.
23 The date of May 3rd, 2007, which
24is the beginning date of the complaint, is tied by
25the complainants to the date on which Canada signed
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1a Supplementary Detainee Transfer Agreement with
2Afghanistan that permitted Canadian officials to
3visit and inspect detainees in Afghani custody.
4 Although transfers were suspended
5on November 6th, 2007, the complainants allege that
6the transfer should have been halted much sooner,
7since information was available through public
8reports and from what the complainants described is
9highly credible, first-hand reports of torture from
10Canadian officials.
11 It has to be emphasized that the
12allegations made in the complaint are just that,
13allegations, and people should not be tempted to
14leap to conclusions based on allegations and
15incomplete evidence.
16 It is our intention to proceed
17this morning first with the filing of documentary
18exhibits.
19 As mentioned previously, the
20Commission has compiled a tremendous volume of
21documentary material through the power of summons,
22interviews by Commission investigators and through
23voluntary disclosure by parties and some witnesses.
24 Today these documents are being
25filed publicly.
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1 Many, if not all of them, may
2already have been put in the public domain through,
3for example, the recent productions in Parliament.
4 All of the counsel here this
5morning have been provided with a list of exhibits.
6 Previously filed were exhibits P-1
7to P-19 and our intention is not to re-file those
8exhibits, but simply to adopt them.
9 They will retain the same exhibit
10numbers as they have already been assigned.
11 The second batch of exhibits from
12what will become P-20 to the end of the list, are
13those new materials that are being filed today.
14 I would ask the Registrar to
15assign exhibit numbers to those documents,
16beginning with Exhibit P-20, letter from Lori
17Bokenfohr to Alain Préfontaine dated October 13,
182009.
19 Before the Registrar does that, I
20should just point out that all of the parties have
21previously received disclosure of these documents
22as they were made available to us and they have
23before today been provided with a complete copy of
24the various collections and documents that are set
25out on the exhibit list.
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1 So if there are no objections, I
2would like to proceed to ask the Registrar to
3identify those exhibits.
4 THE CHAIR: If I could, before we
5ask the Registrar, are there any comments from any
6of counsel at opening?
7 Mr. Préfontaine?
8 Mr. Champ?
9 Mr. Wallace?
10---(no response/pas de réponse)
11 None.
12 Please proceed.
13 THE REGISTRAR: (as entered)
14 EXHIBIT P-20: Letter from
15 Lori Bokenfohr to Alain
16 Préfontaine dated October
17 13th, 2009.
18 EXHIBIT P-21: Letter from
19 Alain Préontaine to List of
20 Addressees dated July 28th,
21 2009.
22 EXHIBIT P-22: Collection A,
23 Human Rights and Related
24 Materials, Additions (3
25 Volumes).
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1 EXHIBIT P-23: Collection B,
2 Additional Federal Court
3 Documents (3 Volumes).
4 EXHIBIT P-24: Collection C,
5 DND Documents (6 Volumes).
6 EXHIBIT P-25: Collection D,
7 Captain Moore’s Documents, (1
8 Volume).
9 EXHIBIT P-26: Collection E,
10 Colvin’s documents (1
11 Volume).
12 EXHIBIT P-27: Collection F,
13 NIS documents (6 Volumes).
14 EXHIBIT P-28: Collection G,
15 Notebooks (1 Volume).
16 EXHIBIT P-29: Collection H,
17 Documents from public open
18 sources (1 Volume).
19 EXHIBIT P-30: Collection I,
20 Transcript of Major Rowcliffe
21 (included in 2 volumes
22 identified as Collection I to
23 S)
24 EXHIBIT P-31: Collection J,
25 Transcript of Major Gribble
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2 identified as Collections I
3 to S)
4 EXHIBIT P-32: Collection K,
5 Transcript of Sergeant Utton
8 to S).
9 EXHIBIT P-33: Collection L,
10 Transcript of Major Hudson
13 to S).
14 EXHIBIT P-34: Collection M,
15 Transcript of Major Boot
18 to S).
19 EXHIBIT P-35: Collection N,
20 Transcript of Ms. Duschner
23 to S).
24 EXHIBIT P-36: Collection O,
25 Transcript of Warrant Officer
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1 Watson (included in 2 Volumes
3 to S).
4 EXHIBIT P-37: Collection P,
5 Transcript of Brigadier
6 General Laroche (included in
7 2 Volumes identified as
8 Collections I to S).
9 EXHIBIT P-38: Collection Q,
10 Transcript of Lieutenant
11 General Gauthier (included in
12 2 Volumes identified as
14 EXHIBIT P-39: Collection R,
15 Transcript of Captain Moore
18 to S).
19 EXHIBIT P-40: Collection S,
20 CSC documents (included in 2
21 volumes identified as
23 EXHIBIT P-41: Collection T,
24 relevant documents received
25 from AG on March 22nd, 2010
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1 (1 volume).
2 EXHIBIT P-42: Document
3 index for the Main Witness
4 book.
5 EXHIBIT P-43: Document
6 index for the NIS Witness
7 Book.
8 EXHIBIT P-44: Transcript of
9 hearing held on December 4th,
10 2008.
12 hearing held on May 25th,
13 2009.
15 hearing held on May 26th,
16 2009.
18 hearing held on June 1st,
19 2009.
21 hearing held on June 2nd,
22 2009.
24 hearing held on June 3rd,
25 2009.
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2 hearing held on October 7th,
3 2009.
5 hearing held on October 14th,
6 2009.
8 hearing held on December
9 10th, 2009.
10 MR. LUNAU: Thank you, Madam
11Registrar.
12 With respect to the transcripts of
13hearings held on December 4th, 2008, up to December
1410th, 2009 that we filed as exhibits, some of those
15transcripts contain evidence that was led at the
16time the former Chair was a member of the panel and
17our intention is not to recall those witnesses
18unless we are requested to do so by a party and we
19will be relying on the transcripts in lieu of
20recalling those witnesses.
21 Now, we were advised late last
22week that counsel on behalf of a number of the
23subjects intends to present a request to the
24Commission that certain evidence be heard in-
25camera.
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1 This type of request is permitted
2by rule S-14 of the Commissions Afghanistan Public
3Interest Hearing Rules.
4 I would ask counsel for the
5subjects to speak to that request.
6 MS. RICHARDS: Good morning.
7 THE CHAIR: First of all, relative
8to the filing of the transcripts, especially during
9the time, Mr. Tinsley, if there are any issues that
10need to be raised on that, or is that satisfactory?
12 Hearing none. Thank you.
13 Ms. Richards?
14 MS. RICHARDS: Good morning,
15members of the Panel.
16 As you are aware, we have raised
17with your counsel some weeks ago and followed up
18last week a request that a portion of these
19proceedings be held in private in accordance with
20the rules, and as counsel has referred to in
21accordance with Rule 14 of the Afghan Public
22Interest Hearing Rules; and in accordance with
23250(42) of the National Defence Act.
24 Pursuant to your Rules and dealing
25in accordance with the Act, that request must be
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1dealt with in private, so we are asking that our
2request be dealt with following the completion of
3the public portion of the opening statements this
4morning.
5 THE CHAIR: The Rules also state
6that the reasons then would be public, the response
7to that; correct?
8 MS. RICHARDS: My understanding
9under the Rules is that there will be a public
10decision rendered, but there may also be a
11confidential decision.
12 Of course, as you are no doubt
13aware, there are some sensitivities about the
14request itself, and it is for that reason that it
15must be held in private.
16 THE CHAIR: Yes.
17 Any reason why this would not have
18come up during the week of motions?
19 MS. RICHARDS: We were hopeful
20that we were going to be able to resolve it among
21counsel, and we have not been able to. So that is
22why it is coming up today.
23 THE CHAIR: That is unfortunate.
24 We would have liked to have been
25able to deal with it so that we could proceed with
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1testimony, obviously.
2 We have a number of people here,
3including the members of the media, and other
4counsel, obviously.
5 But having regard for the request,
6I really am not in much of a position to move in-
7camera.
8 How long do you anticipate to
9take?
10 MS. RICHARDS: In terms of the
11request?
12 I think we would be happy to
13address it on a preliminary basis with you this
14morning.
15 I think that will take 20 minutes
16just to give you the overview and I think we can
17come back this afternoon to deal with it in more
18specificity.
19 THE CHAIR: You are anticipating
20that this will end today though, we will be dealing
21with the motion in its entirety today?
22 MS. RICHARDS: Yes, I hope so.
23Yes.
24 THE CHAIR: I am sorry, go ahead.
25 MR. BERLINQUETTE: Will we be
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1hearing from the witness tomorrow?
2 MS. RICHARDS: I hope so. And
3yes.
4 MR. BERLINQUETTE: We have a
5schedule and we are trying to follow that schedule.
6 MS. RICHARDS: The witnesses are
7available and depending on the resolution of this,
8absolutely.
9 MR. BERLINQUETTE: Thank you.
10 THE CHAIR: In terms of the in-
11camera portion, if counsel is in agreement, the
12only persons that can remain are counsel and there
13is no issues with any of your counsels at the
14tables, including Mr. Champ.
15 I would also ask that exclusion be
16made for allowing the MPCC counsel to remain, if
17that is sufficient.
18 MS. RICHARDS: The only issue we
19have and that we would ask is that counsel who
20remain sign an undertaking, and we are happy to
21discuss that as well.
22 THE CHAIR: Provide an
23undertaking in --
24 MS. RICHARDS: Not to disclose
25matters that are discussed in private.
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1 THE CHAIR: Did you say sign or
2just provide it to the panel?
3 MS. RICHARDS: Normally, it would
4be done by way of written undertaking, but we can
5discuss that.
6 THE CHAIR: Okay, thank you.
7 We will adjourn in-camera.
8 MR. CHAMP: I am sorry, Mr.
9Chair, just before we break, if I may, I was just
10wondering, it looks like we are going to be
11breaking to deal with this ex parte issue or in-
12camera issue.
13 I am wondering if we can get some
14other direction also about where we stand in terms
15of other disclosure issues?
16 I am not sure if Commission
17counsel can assist us with that.
18 I wrote to Commission counsel near
19the end of last week, providing disclosure of
20documents that we had recently obtained that we
21viewed as highly relevant and had not been
22previously disclosed.
23 We were wondering if we could get
24some kind of update on the status of disclosure.
25 I know when we convened about ten
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1days ago, we were apprised that there was some
2disclosure outstanding but that it would occur
3later on and it would not necessarily interfere at
4the hearing.
5 Some of the information that we
6have now seen suggests to us that we should get
7access to some disclosure as soon as possible, if
8perhaps Commission counsel can give us an update
9where that stands.
10 We also understand there has been
11outstanding Canada Evidence Act proceeding, we are
12not sure where that is at either, whether some of
13the documents are covered by that.
14 So just before we embark on some
15of these other things, if I may, Mr. Chair, perhaps
16look for an update from Commission counsel or from
17the Panel on those issues.
18 THE CHAIR: That is fine.
19 Mr. Lunau --?
20 MR. LUNAU: We are still looking
21at the letter and the materials from Mr. Champ in
22terms of document production.
23 We have been, first of all,
24reporting to the parties weekly as documents have
25come in.
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1 We are told that there are still a
2substantial number of documents that are being
3processed and that are to be provided to us.
4 They will be provided as they are
5redacted and disclosed. I cannot provide a time
6frame for when that will happen.
7 Obviously when the documents do
8come in, we will have to examine them and see what
9steps are required to be taken to deal with those
10documents.
11 In terms of the Canada Evidence
12Act proceedings that my friend alludes to, those
13proceedings are still before the Court, they have
14not been discontinued, but there has been a process
15trying to deal with the government over the extent
16and nature of those redactions.
17 By and large, the redactions that
18have been made, we do not intend to contest
19further.
20 MR. CHAMP: If I might on that,
21Mr. Chair, there is a core set of documents that we
22view as relevant and we note that one of those
23document has, fortunately, become less redacted by
24the government. This was one of the AColvin
25documents”.
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1 This was a document that we have
2had in our possession for quite some time.
3 One of the only Colvin documents
4that we had up until last fall, but for the
5purposes of this proceeding, one that we viewed as
6highly relevant.
7 This was one of the first
8monitoring visits by Canadian diplomats on June 6th
9of 2007 into an NDS facility in Kabul.
10 We received, I guess it’s about
11two weeks ago now, another version of that document
12that is much less redacted which is very helpful in
13sort of casting more light on what was happening at
14the time, what information was received by Canadian
15diplomats.
16 In that context, we had hoped that
17perhaps there were other redactions going on or a
18second look at certain documents, specifically all
19the other -- what we have termed the Atorture
20reports”, these were the monitoring visit reports
21between June 5th, 2007 and November 5th, 2007.
22 There were, by our count, four
23visits -- pardon me, five visits, including the
24November 5th, 2007 stop where Canadian diplomats
25heard first hand accounts of torture.
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1 On at least two of those documents
2we do not even have the precise date. We can
3estimate the date, that they are in the summer or
4early fall of 2007.
5 They were visits to the NDS
6facility in Kandahar and we were wondering if
7Commission counsel had considered exploring with
8the Attorney General if further redactions were
9possible on those documents.
10 If the coven visit on June 6th
11could have some redactions removed, it is our view
12that some of those other documents could have
13redactions removed and would cast, in our view,
14really critical light on what we view as our most
15serious concern.
16 The November 5th, 2007 detainee
17who, in our view, really cannot be seriously
18contested that that individual was tortured, where
19they found the electrical cable and rubber hose in
20the cell and wounds on the gentleman’s back.
21 There was two other reports that
22must have been in close time frame, one titled
23Kandahar 0074 and Kandahar 0082, if we could get
24access to even the dates of those reports, we think
25that it could provide all of us with a bit more
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1information of what information was in the hands of
2Canadian diplomats, at least.
3 We are hoping that information was
4transmitted to the Canadian Forces, but also the
5dates when it was in their hands.
6 We view this as very critical
7information and it is issues that we intend to
8raise in cross-examination with witnesses because
9we think the time line is critical and we are
10wondering if this is something that is still -- we
11were hoping actually there was a subject of ongoing
12discussion, but it sounds like it is not and we are
13wondering if we can suggest that Commission counsel
14continue looking into those issues.
15 THE CHAIR: Mr. Lunau?
16 MR. LUNAU: We are happy to
17continue looking into matters of concern to my
18friend, but I cannot say that with respect to all
19of these documents that have been produced, they
20have been examined and there has been a lot of back
21and forth with the government to try to explain
22from the Commission’s perspective why certain
23redactions, in our view, should be reconsidered.
24 Many of them were reconsidered in
25the documents that were tabled here today reflect
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1those consultations.
2 I can tell you, we have made
3significant efforts to limit the redactions to
4those that the government considers strictly
5essential.
6 As I say, if there are particular
7pieces of information that you would like us to
8take up again and continue trying to resolve those
9issues with the government, we are quite happy to
10do that.
11 That is about all I can say on the
12matter.
13 I mean, we have tried to get as
14much information out of these documents as we can.
15 Also bear in mind that witnesses,
16including Mr. Colvin, will be testifying and there
17will be an opportunity to supplement these written
18reports with his oral testimony.
19 THE CHAIR: Mr. Préfontaine, any
20comment?
21 MR. PRÉFONTAINE: Yes, in the
22sense that the sole purpose of this Commission is
23obviously to look at what the eight subjects knew
24or had the means of knowing and whether they ever
25had reason to form a suspicion that the orders
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1issued by the commander to transfer individual
2detainees would expose each and every one of those
3detainees to a serious risk of torture.
4 So the concern of Mr. Champ about
5what diplomats knew is actually irrelevant to the
6work of this Commission.
7 It is very relevant to the cause
8being pursued and advanced by Amnesty International
9in other forums.
10 I recognize it is a legitimate
11issue of debate in other forums.
12 But we have gone through the
13exercise of clarifying this Commissions’ purview,
14we have gone to the Federal Court and it has been
15very precisely defined what Parliament intended
16this Commission to look at.
17 I think expressions of interest
18are one thing, but they have to be reconciled both
19with Parliament’s mandate to this Commission, which
20defines relevancy and with the requirement to
21protect information which, if disclosed, would be
22injurious to Canada’s international relations,
23national defence or national security, which is the
24interest covered by section 38.
25 I think that Mr. Lunau quite
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1fairly conceded that the present results, that is
2to say the documents redacted in their present
3form, represent the most viable compromise between
4these competing tensions.
5 Obviously, as witnesses testify,
6they will have to protect the same information.
7 It is not because the witness is
8in the witness box, that something was deemed to be
9worthy of protection, yesterday, all of a sudden
10becomes open season today.
11 THE CHAIR: Would you agree that
12if some documents, further redactions become
13available, then they be made available to the
14Panel?
15 MR. PRÉFONTAINE: Of course,
16certainly.
17 I have already made that
18commitment to my friend, Mr. Lunau, in relation to
19the process going on in the other place, which is
20spearheaded by former Justice Iacobucci.
21 THE CHAIR: Is it possible to
22have some of the documents specifically mentioned
23by Mr. Champ included in that review?
24 That ongoing discussion and
25review?
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1 MR. PRÉFONTAINE: They all are,
2Mr. Chairman.
3 But I do not control the timelines
4of that process.
5 The only thing I can report is
6that former Justice Iacobucci is presently busily
7working away.
8 When he will report and when he
9will make his recommendations is something I do not
10know.
11 THE CHAIR: Okay.
12 Before I turn to you.
13 Mr. Wallace?
14 MR. WALLACE: I have nothing to
15add on this issue at this point in time.
16 THE CHAIR: Briefly, Mr. Champ?
17 MR. CHAMP: Just very briefly,
18Mr. Chair, I guess what I am hearing is that --
19 I guess my concern is this, Mr.
20Chair.
21 Last week we came into possession
22of documents through -- it was an access to
23information request by a media outlet that
24indicated that the acting commander of Task Force
25Afghanistan on November 6th, 2007, who suspended
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1transfers was in possession of the DFAIT monitoring
2report of November 5th, 2007, that is the one where
3they found the electrical cable and the rubber
4hose.
5 I am now, it seems to me, hearing
6that perhaps --
7 And first of all, I do not know
8how we did not have those documents before, why
9those documents were not disclosed. That is of
10concern to me.
11 And secondly, I am hearing my
12friend now suggesting that the Military Police
13subjects of this complaint were unaware of the
14other Department of Foreign Affairs monitoring
15reports.
16 If that is the case, I would like
17that confirmed for the record.
18 I disagree with my friend that it
19would not be in the means of knowing, but I think
20it would very much sort of shape how at least we
21would be approaching the complaint.
22 THE CHAIR: I did not say we
23agree with Mr. Préfontaine, I just heard him say
24that.
25 MR. CHAMP: Mr. Chair, you were
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1not here before, neither was lead counsel, but it
2was about a week before the hearing was going to
3start in October 2009, Mr. Berlinquette, you might
4recall, where we had learned for the first time
5that in fact there had been investigations by the
6Military Police.
7 We did not know that until a week
8before hearing.
9 My concern now is, at least from
10my perspective, this is a very critical piece of
11information were the Canadian Forces Military
12Police unaware of the DFAIT monitoring reports.
13 It would be very helpful, I think
14for all parties, if we could just be advised by
15counsel for the subject if that was or was not the
16case.
17 MR. PRÉFONTAINE: The answer is
18simple, Mr. Chairman.
19 This Commission has set, for
20itself, the role of finding out whether M.P.’s knew
21or had the means of knowing.
22 I think I would not assist the
23Commission its endeavour if I was to take a
24position on that.
25 It is for the Commission to
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1inquire into and report on.
2 THE CHAIR: Mr. Lunau?
3 MR. LUNAU: I do not think I can
4add anything further, Mr. Chair.
5 Certainly amongst the witnesses
6who are going to be called are members of the
7Military Police from all levels of command
8involvement and involvement on the ground in
9Kandahar.
10 The issue of what they knew or had
11the means of knowing, and in particular with
12respect to the number of e-mails and human rights
13reports and other sources of information that were
14available is going to be one of the topics that
15will be the subject of examination.
16 So I think it is premature at this
17point to try and speculate or speak to what they
18will say in terms of what information reports they
19saw or did not see.
21 I think your comments we have
22noted, and I know the issue of the redactions is an
23ongoing process.
24 Obviously when we hear from the
25witnesses the necessary examination will take place
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1by all parties.
2 We are going to take five minutes
3just to adjourn, but I expect when we come back we
4will move in-camera.
5 MR. PRÉFONTAINE: I am sorry, Mr.
6Chairman, I had understood from your counsel that
7we were going to deal with the opening remarks that
8you called for, and it might be an opportune time
9for us to do that now before you move in-camera so
10that you can do as much publically before you break
11to move in private as you can.
12 THE CHAIR: That is fine.
13 MR. PRÉFONTAINE: I have not
14discussed with Mr. Lunau if he had an order of
15presentation.
16 If Commission counsel does not
17have opening remarks to offer, then I would assume
18that the complainants will make their opening
19remarks first.
20 THE CHAIR: Mr. Lunau, I believe
21you have made your --
22 MR. LUNAU: That is correct, yes.
23 THE CHAIR: They have all done
24theirs.
25 In terms of order, I know there
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1has been discussions in the previous -- I have read
2them on the transcripts, so are we satisfied, Mr.
3Champ, that you will proceed?
4 MR. CHAMP: That is fine, Mr.
5Chair.
6 THE CHAIR: Followed by Mr.
7Préfontaine?
8 MR. PRÉFONTAINE: No, usually it
9is my friend, Mr. Wallace, and then I get to be the
10last.
11 THE CHAIR: Okay. Mr. Champ?
12 MR. CHAMP: In terms of opening
13remarks, Mr. Chair, I will just note that we have,
14in fact, made opening remarks previously on May
1525th, 2009, so we fully adopt those at that time.
16 We also note the opening remarks
17that are made by Mr. Lunau, the new Commission lead
18counsel this morning and we believe he has, for the
19most part, accurately captured the core of our
20complaint.
21OPENING REMARKS BY MR. CHAMP:
22 As indicated in our June 12th,
232008 complaint, our concern is that on May 3rd,
242007, the Canadian Government signed a new detainee
25transfer arrangement with the Government of
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1Afghanistan that allowed Canadian officials to
2monitor those detainees in Afghan detention
3facilities.
4 As soon as they commenced that
5monitoring, from almost the very first visit,
6Canadian diplomats began hearing first hand
7accounts of torture and abuse.
8 Between June 5th, 2007 and
9November 5th, 2007, approximately 1/4 to 1/3 of
10detainees interviewed told Canadian diplomats that
11they had been tortured in the most horrible forms
12imaginable.
13 Some of those detainees had wounds
14consistent with their allegations. Others were
15described by Canadian diplomats as clearly
16traumatized.
17 Our concern, Mr. Chair, is that
18notwithstanding those reports, and notwithstanding
19also the numerous public reports available from
20various credible organizations such as the United
21Nations, the United States State Department, the
22Afghan Independent Human Rights Commission and the
23Department of Foreign Affairs own annual Human
24Rights reports on Afghanistan, all finding that
25torture is endemic in Afghan detention facilities,
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1and suspension transfers continued.
2 We believe that this issue really
3comes to a point in November 5th, 2007 when one
4detainee could actually point to the implements
5with which he was tortured.
6 Now, governing by what we know of
7how long the NDS or the Afghan Secret Police keep
8detainees in custody, that is approximately one
9month, we can infer that the November 5th, 2007
10detainee was transferred within a few weeks of that
11interview.
12 So in short, he was transferred to
13torture at a time when at least the Canadian
14Department of Foreign Affairs was in possession of
15numerous reports of first-hand allegations of
16torture.
17 Our concern here is that once that
18November 5th, 2007 allegation came to light, it
19should have been incumbent upon the responsible
20Military Police officials to inquire further and
21investigate whether such transfers were in fact
22lawful.
23 That is the core of our complaint,
24Mr. Chair.
25 We have extended our complaint to
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1June 2008. That is essentially a black hole in
2terms of information for us.
3 We do not know precisely what was
4going on in that period, although in our view,
5given all of those accounts of torture,
6approximately a quarter of individuals saying that
7they were being tortured, there should not have
8been any further transfers or at the very least
9such transfers should have been investigated by the
10Military Police. That is the core of our concern,
11Mr. Chair.
12 We are looking forward to hearing
13the evidence of the next few weeks.
14 In terms of preliminary points, I
15would note again, at this point, Mr. Chair, we are
16not satisfied with the disclosure that has been
17obtained thus far.
18 Obviously, you see beside us many
19volumes of paper, but I have been working on this
20file for some time, Mr. Chair, and what we are
21missing, in my view, are the critical documents
22where are the detainee transfer records?
23 We know that apparently there was
24some kind of reports or forms that were filled in
25on the risk of torture at the time of transfer
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1decisions. We do not see those.
2 We do not even know the precise
3dates, as I just pointed out earlier, of some of
4these torture reports.
5 We know the general time frame,
6within a couple of months, but no one knows
7precisely when they occurred.
8 We do not know, as I say, what
9precisely did the relevant military police officers
10know.
11 And we have a hard time believing
12that there is absolutely no documents on that.
13 So given that what we have heard
14today, that it appears that the search for
15documents is, to a large extent, closed, we may
16well bring a motion sometime in the next week or
17two on that issue, Mr. Chair.
18 Final point on opening remark,
19because I anticipate it may be raised, is some of
20the exhibits that have been introduced this morning
21concern a letter from previous counsel for Mr.
22Richard Colvin, Lori Bokenfohr as well as a letter
23from Mr. Préfontaine, counsel for the subjects to
24all of the witnesses, there was an exchange of
25letters on those exhibits some time ago and we have
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1not had an opportunity to address those yet.
2 If I may, I would just suggest
3this.
4 The concern about those letters is
5that witnesses were in some way intimidated or
6interfered with in preventing their cooperation
7with this Inquiry and with this Commission.
8 In our view, those letters do bear
9that out.
10 In our view, Mr. Chair, it would
11also suggest that there is perhaps an ongoing issue
12with accountability within the Canadian Forces that
13has been revealed by that conduct.
14 Previous Commission Chair, Mr.
15Tinsley had already pointed out that his concern of
16disclosure of documents related to that.
17 But we also know, Mr. Chair, I am
18sure you have had an opportunity to read the MPCC
19report on the Attaran complaint, although somewhat
20of a different nature of allegation, some of the
21systemic issues concerning the independence of the
22military police in theatre, and also the
23willingness of the Canadian Forces to cooperate
24with inquiries or investigations into their
25actions, in our view, is laid bare.
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1 In that report, the Commission
2pointed out that the national investigation service
3was obstructed in trying to obtain detainee
4documents from other Canadian Forces units. They
5were contemplating getting a warrant, a judicial
6order, to obtain documents in Kandahar.
7 There is also an account in that
8report from the Deputy Director of International
9Humanitarian Law and the Department of Foreign
10Affairs raising a concern about potential
11mistreatment of a detainee, sending an e-mail to
12the Department of National Defence, asking for an
13account. That e-mail was ignored.
14 It was communicated to that
15individual through indirect channels that such
16intervention was unwelcome.
17 Then of course there is the Somali
18report, which also had an entire chapter on issues
19of transparency or lack thereof within the Canadian
20Forces.
21 We think this is a systemic issue,
22that we may see through this hearing, Mr. Chair,
23and we ask that the panel be alive to it.
24 With respect to the both
25Préfontaine letters, we have not heard how
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1commission counsel intends to proceed, but our
2suggestion might be that they are in the record,
3that some witnesses could be asked questions about
4them.
5 And on final submissions, parties
6might address that issue, but the willingness of
7the department and the Forces to cooperate with
8this inquiry and perhaps appropriate
9recommendations from this Commission panel could
10then be forthcoming in the final report.
11 So that is just, I guess a sub-
12plot or a sub-theme if you will, to this complaint,
13but we wanted to raise it with you and we thought
14that this would situate or contextualize those
15letters and how we see them fitting into the
16overall conduct of this inquiry.
17 Those are our opening remarks.
18Thank you, Mr. Chair.
20 Mr. Wallace?
21 MR. WALLACE: Thank you, Mr.
22Chair.
23 I will be very brief.
24OPENING SUBMISSIONS BY MR. WALLACE:
25 As you know, my client is Retired
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1Navy Captain, Steven Moore, who was the Canadian
2Forces Provost Marshal during the period of time
3that is covered by the complaint.
4 Being the Canadian Forces Provost
5Marshal means that he, at the time, was the highest
6ranking military police officer in the Department
7of National Defence.
8 It also means that he is the
9commanding officer of the National Investigation
10Service (NIS).
11 Despite his rank, however, he does
12not and did not command the military police
13officers in theatre.
14 This makes his position very
15different from that of a civilian chief of police.
16 Because of this difference and his
17dual role, it makes the command structure and flow
18of information following that command structure of
19particular importance from his perspective.
20 These hearings will examine the
21conduct of the subjects in the context of the
22complaint by Amnesty International and B.C. Civil
23Liberties Association.
24 We must all keep our eyes on that
25ball, that is the nature of the complaint.
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1 These hearings are not about the
2wisdom of the government’s policy in Afghanistan,
3but rather the specific conduct of the subjects.
4 Keeping the proper focus will
5allow you to make a sharper assessment of the facts
6that are presented to you.
7 Thank you.
8 THE CHAIR: Thank you, Mr.
9Wallace.
10 MR. PRÉFONTAINE: I welcome this
11opportunity, Mr. Chairman and member Berlinquette
12to make a few introductory remarks to assist the
13Complaints Commission.
14OPENING SUBMISSIONS BY MR. PRÉFONTAINE:
15 This public hearing is an aide to
16an investigation into a specific conduct complaint
17made against eight individuals.
18 It is not a trial.
19 My opening remarks will not follow
20the usual patron of opening remarks made by counsel
21when they open their case at a trial, but will
22focus instead on what the Commission in mandated by
23law to do and what it is not mandated to do.
24 At its most basic level, the
25complaint is about whether the subjects of the
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1conduct complaint could reasonably suspect that the
2task force commander had committed a crime, and if
3they had such a reasonable suspicion whether a
4reasonable M.P. placed in similar circumstances
5would have initiated an investigation against the
6commander.
7 The focus of your investigation
8and of the hearing which it serves, must, as the
9Federal Court has already decreed, be about what
10the eight subjects knew or had the means of knowing
11to form that reasonable suspicion.
12 Conversely, the hearing is not
13about what other actors knew or had the means of
14knowing.
15 The mandate of the Complaints
16Commission is limited to a review of the conduct of
17members of the Military Police in the performance
18of their policing duties and function, and of no
19one else.
20 This obviously includes, not
21looking into the offence the complainants allege
22the various task force commanders for task force
23Afghanistans would have committed, because the
24purpose of the Commission is not to perform the
25investigation.
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1 If the Complaints Commission had
2the mandate to conduct that investigation, it would
3have to focus its investigation on each of the
4individual decisions made by the task force
5commander to transfer each and every detainee.
6 The legality of those decisions
7cannot be gauged by looking at the general
8allegation of poor conditions throughout
9Afghanistan, but must be gauged by looking at the
10actual situation prevailing at the time of each
11transfer, taking into account everything the
12commander knew, including all of the mitigation
13measures in place.
14 Simply put, press reports and
15generalized country conditions, reports, are simply
16not enough, even if they say what my friend for the
17complainants say they say.
18 That inquiry would lead the
19Commission far afield from its mandate, and
20therefore, for that reason, is not something that
21this Commission can do.
22 How Canada lives up to its
23international law obligation under the Geneva
24Conventions and under the convention against
25torture are important and legitimate issues, but
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1the fact that these issues are important and
2legitimate matters of inquiry by other bodies, does
3not expand the role parliament has assigned to this
4Commission.
5 If the rule of law, which the
6complainants say they want to see upheld, is to
7mean anything, then it means that the law must be
8obeyed in every circumstance where it applies, not
9only when it seems convenient to do so.
10 The law in this particular matter
11has defined precisely the scope of this
12Commission’s mandate.
13 So as you hear evidence that other
14Government of Canada actors might have formed
15beliefs and opinions about the treatment of
16detainees post-transfer, the issue for review is
17not what those actors did or did not do, but only
18whether they shared these opinions and beliefs with
19one of the eight subjects, because then it connects
20back to your mandate of what the subjects knew or
21had the means of knowing.
22 In that respect, you must keep in
23mind the rules governing the protection of
24sensitive information.
25 When we last met, I alluded to the
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1high level articulation of those rules contained in
2the Treasury Board Policy on the security of
3information.
4 The most relevant of those rules
5is the rule restricting access to classified or
6protected information on a need-to-know basis.
7 To understand that rule, you must
8keep in mind who decides who needs to know what
9information.
10 The regime entrusts that
11responsibility to the originator of the
12information.
13 Thus, in the declassified
14documents forming part of your record, which has
15been considerably expanded upon today, you will
16often see the acronym Asecret CEO” at the top of
17messages.
18 This acronym was obviously
19inserted by the originator of the message. It is a
20direction by that originator that the information
21is classified, and that is what the word Asecret”
22means, and is intended for Canadian eyes only.
23That is what ACEO” stands for.
24 Thus, as you inquire into what the
25eight subjects knew or had the means of knowing,
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1you must be mindful that it was not up to the
2subjects to decide what they needed to know in the
3classified information other Government of Canada
4actors might have had access to.
5 Quite simply, you cannot impute to
6the eight subjects the knowledge of other actors,
7which once properly understood, considerably
8assists in defining the scope of the documents that
9are relevant to the inquiry this Commission is
10mandated to perform.
11 Thank you.
12 THE CHAIR: Mr. Lunau, anything
13further from yourself?
14 MR. LUNAU: No, sir.
15 THE CHAIR: All of our opening
16remarks are then completed.
17 What I would like to do is, if we
18have nothing further, we will take 15 minutes.
19 When we resume at say 11:20, we
20will resume in-camera and address the issues that
21we need to and address the issue of waivers or
22whatever.
23 We will discuss that at that time.
24 Thank you.
25--- Whereupon adjourning in public at 11:05 a.m.
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1--- Whereupon the in camera motion was heard
2 at 11:34 a.m., transcribed under separate
3 cover.
4--- Whereupon the in camera motion concluded
5 at 12:30 p.m.
6--- Upon resuming the public portion at 2:00 p.m.
7--- In camera witness Sgt. Utton transcript in full
8 reproduced below.
9 THE CHAIRPERSON: All counsel have
10acknowledged. Are we ready to proceed? Is there
11anything further we need to just clarify, or is
12everybody ready to go?
13 MR. LUNAU: Yes, sir, I am ready,
14and that certain person is just outside? Okay.
15--- (Witness entered the hearing room)
16 THE CHAIRPERSON: Thank you. Good
17afternoon. Has the witness been sworn?
18 MS. RICHARDS: Yes, it has.
19 THE CHAIRPERSON: Thank you. Good
20afternoon. I am the acting chair, Glenn Standard,
21and this is Mr. Roy Berlinquette, also a Panel and
22Commission Member. Mr. Lunau.
23 MR. LUNAU: Thank you.
24PREVIOUSLY SWORN: SGT CAROL UTTON
25EXAMINATION-IN-CHIEF BY MR. LUNAU:
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1 Q. Good afternoon, Sgt. Utton.
2We haven't met yet. My name is Ron Lunau. I am
3counsel for the Commission and I am going to be
4asking you some questions this afternoon. And when
5I finish my friends here will have some questions
6to ask you.
7 I would like to start with a brief
8review of your background in the military and I am
9going to go through what I understand your
10background to be. If there is anything that needs
11to be added or corrected, please let me know.
12 I understand you enrolled in the
13Canadian Forces in 1987, took basic training in
14January 1988, and military police training in the
15fall of 1988. Is that correct?
16 A. Yes.
17 Q. And then you were posted to
18Canadian Forces Base Cold Lake, and then the
19Provost Marshal's office in Ottawa where you worked
20in the data room?
21 A. Yes.
22 Q. Following that, you were
23posted to the CFB Kingston military police section.
24Then you served with the Royal Canadian Dragoons
25and then CFB Petawawa military police section. Is
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1that correct?
2 A. Yes.
3 Q. Then you transferred to the
4military police company here in Ottawa and
5subsequently did one tour of duty in Afghanistan
6from February to July 2007. Is that correct?
7 A. Yes.
8 Q. And you were part of Roto 3?
9 A. Yes.
10 Q. I understand your rank is
11currently sergeant, but at the time of your
12deployment you were a master corporal and you were
13promoted to a sergeant while you were in
14Afghanistan?
15 A. Yes.
16 Q. What position in Afghanistan
17were you posted to?
18 A. It was the security NCM
19position.
20 Q. I have seen reference to 2
21I/C detainee operations. Is that another way off
22describing that position?
23 A. No.
24 Q. Who was your immediate
25supervisor?
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1 A. Sergeant Steward.
2 Q. Did you hold that position
3throughout Roto 3?
4 A. My primary was security NCM.
5Secondary was 2 I/C detainee ops.
6 Q. I see, are these two
7different --
8 A. Yes.
9 Q. -- positions? Okay. Can
10you explain for us what the responsibilities for
11each of these two positions was.
12 A. Security NCM, I did the
13physical security surveys that had to be done for
14our mission. They were cyclical. They had to be
15done yearly. And I did the identification NCM
16responsibilities and general police investigations
17into security matters.
18 Q. Is NCM an acronym for
19something?
20 A. Non-Commissioned member.
21 Q. In terms of your duties as 2
22I/C detainee ops, what did those duties entail?
23 A. Assisting the I/C, Sergeant
24Steward.
25 Q. Can you explain to us, sir,
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1or give us some idea of the kind of activities you
2would have carried out and how you would have
3interacted with detainees.
4 A. I would take my, Sergeant
5Steward would indicate if we were to receive
6detainees or it would come from our chain of
7command and we would do the preparatory work,
8making sure the paperwork, all the paperwork was
9ready, notify the Role 3 medical facilities to have
10a Canadian doctor ready and await for the detainee
11arrival.
12 Q. In terms of the amount of
13time you would have devoted to your job as security
14NCM, your job as 2 I/C detainee ops, how would you
15allocate your time?
16 A. Depended on the day.
17 Q. Was one more a primary duty
18than the other?
19 A. Detainee ops was the
20priority. Everything else, unless it was mission
21critical, would be, you would have to prioritize.
22 Q. In your role as security NCM
23or 2 I/C detainee ops, did you have any
24investigative duties?
25 A. For security-related minor MP
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1investigations.
2 Q. Can you give us some examples
3of the types of investigations you might have been
4involved in?
5 A. Security infractions.
6Security infractions or potentially breaches,
7normal in accordance with national defence security
8policy investigations.
9 Q. Anything involving detainees
10or treatment of detainees?
11 A. No, that was not our -- that
12was not within -- that's not a security NCM duty in
13accordance with the national defence security
14policy.
15 Q. If you know, which MP element
16was responsible for conducting criminal
17investigations in theatre?
18 A. The Kandahar airfield
19military police detachment, patrol sections did
20criminal investigations, and the NIS did criminal
21investigations.
22 Q. Did you have any involvement
23in investigations carried out by any of those
24bodies?
25 A. The KAF MPs, there was one
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1incident I was in I was the senior ranking person
2in the detachment at night and we had the
3accidental negligent discharge where the soldier
4was killed.
5 Q. But again, nothing to do with
6detainees or treatment of detainees?
7 A. I knew the NIS was
8undertaking an investigation at that time, and that
9is all I know from that.
10 Q. You mentioned I think
11Sergeant Steward. He was your immediate
12supervisor?
13 A. Yes.
14 Q. Going up the chain of
15command, who would Sergeant Steward have reported
16to?
17 A. Warrant Le Blanc.
18 Q. And then from Warrant Le
19Blanc, the change of command would go to?
20 A. Captain Worsfold.
21 Q. And then from Captain
22Worsfold to the Task Force Provost Marshal?
23 A. Yes.
24 Q. Where were you physically
25located during your tour of duty?
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1 A. In Kandahar airfield, KAF.
2 Q. In terms of the work you were
3doing that involved detainees, who would you take
4instructions from?
5 A. Can you elaborate what you
6mean?
7 Q. Sure. In the chain of
8command the activities that you have described that
9you were carrying out with respect to paperwork,
10documenting arrivals, and that kind of thing, who
11did you take instructions from on a day-to-day
12basis?
13 A. If Sergeant Steward was there
14it would be him, and then if not, it would come
15from either Warrant Le Blanc or Captain Worsfold or
16if they were not there from MP ops, MPHQ.
17 Q. Are you familiar with the
18detainee facility at KAF?
19 A. Yes.
20 Q. And I have seen reference to
21it being called a transfer facility as opposed to a
22holding facility. Are you familiar with that?
23 A. Yes.
24 Q. Can you tell us why it was
25called a transfer facility as opposed to a holding
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1facility?
2 A. I believe that because it
3wasn't -- detainees were never -- were intended to
4be held there for a period longer than the 96
5hours, so it was either -- it was a transfer. They
6were brought in and then they were transferred or
7released.
8 Q. Had the facility been
9designed to hold persons for lengthy periods of
10time?
11 A. In my opinion, no.
12 Q. And then you made reference
13to 96 hours. What was the significance of the 96
14hours?
15 A. I have no idea.
16 Q. Did it have something to do
17with the time limit within which detainees were to
18be transferred or released?
19 A. That was initially, yes, they
20were supposed to be brought from their point of
21capture into the detainee transfer facility and
22either transferred, released within a 96-hour
23period.
24 Q. You first arrived at KAF in
25February 2007. Did you get involved in detainees
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1right away? As soon as you arrived were you
2involved detainee processing and detainee
3transfers?
4 A. No, because initially upon
5KAF you have a three-, four-day intake cycle into
6the camp.
7 Q. So how long do you think it
8was before you got involved with detainee
9processing?
10 A. I don't recall the exact
11dates. I believe it was in February, early March.
12 Q. Can you tell us what the
13intake process, how it operated when you got
14involved in February?
15 A. There's certain specific
16security details. I don't think I can elaborate on
17that.
18 Q. Let me see if I can ask some
19more specific questions without getting into any
20sensitive areas. First of all, when you arrived in
21February 2007, were detainees being released by
22troops in the field?
23 A. I believe so.
24 Q. So they would be released
25without going through the detainee facility or your
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1intake process?
2 A. Yes.
3 Q. And do you know to whom they
4were being transferred?
5 A. I believe it would be -- it
6was either the Afghan National Police or the Afghan
7National Army.
8 Q. During the time when those
9releases were taking place, to your knowledge were
10you getting any paperwork or information,
11documented information back on these detainees?
12 A. Yes.
13 Q. Can you tell us how these
14transfers were being documented?
15 A. On the paperwork as per the
16task force standing order, the annexes, the capture
17report.
18 Q. Initially were there some
19concerns about the quality of the paperwork that
20was being done?
21 A. I don't think there was
22concerns, but we -- not we, the MP ops we
23streamlined it. We made it more efficient, that
24paperwork.
25 Q. At some point the field
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1released stopped, as I understand it, is that
2correct?
3 A. Yes.
4 Q. Do you know the reasons why
5they stopped?
6 A. No, I do not.
7 Q. Did you ever hear rumours or
8stories about possible mistreatment of detainees
9after they were handed over to the Afghan
10authorities? I am talking still in this period of
11time when detainees were being released by the
12troops in the field without going through your
13detainee facility.
14 A. I just heard a basic soldier
15rumour.
16 Q. What were those rumours?
17 A. One rumour -- the only rumour
18I ever heard was that they were going to turn them
19over to one of those, either the Afghan National
20Army, the Afghan National Police and an interpreter
21said as soon as the Canadians left they would be
22killed, so the Canadian soldier intervened and took
23back the detainee.
24 Q. Right.
25 A. But that was just a rumour.
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1Nothing was ever -- I never saw any paperwork or
2anything official policy on it, on that. That was
3just a soldier's rumour.
4 Q. I understand, so there were
5rumours going around. I think when you were
6interviewed by the Commission you referred to the
7transfers being stopped because of what you called
8stories out there and so what I am interested in is
9knowing what kind of stories were you referring to.
10 A. That would be it.
11 Q. At some point the field
12releases stopped. Do you recall when that was?
13 A. No, not really. Could have
14been April, May, before. I don't recall.
15 Q. And then was it mandatory
16that detainees captured in the field had to be
17turned over to the MP section at KAF for
18processing?
19 A. Yes, any detainees that were
20captured after that, when it came there was no more
21releases, capture and releases in the field, yes,
22they all had to come to the detainee transfer
23facility.
24 Q. Again without getting into
25any areas that were sensitive, they would arrive at
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1the detainee facility and would some paperwork be
2done on them?
3 A. Yes.
4 Q. Were they given medical
5checks?
6 A. They were given medical
7checks upon capture by medics in the field and then
8once they were brought to KAF they were taken to
9the Role 3 medic facility and checked by either
10Canadian physician or the senior physician's
11assistant medic.
12 Q. And you have told us the
13paperwork that was done was set out in a SOP or a
14standing order?
15 A. Yes.
16 Q. Were the detainees told what
17might be happening to them in terms of transfer
18release?
19 A. What do you mean by that?
20From what point in time?
21 Q. The detainee arrives at the
22detainee facility. Are they told what lies in
23store for them? In other words, here is what is
24going to happen? Within 96 hours you will be
25either released or a decision will be made about
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1being transferred?
2 A. No, we never got in specifics
3like that.
4 Q. Did you have any discussions
5with detainees -- first of all, when the detainees
6arrived and were being sort of in, processed in,
7were you involved at that stage?
8 A. If I was actually in KAF,
9yes.
10 Q. Were they given any
11information about the Afghan Human Rights
12Commission?
13 A. Detainees would be told
14through an interpreter that they were currently
15being held by the Canadians, Canadian Forces, and
16that their families would be notified through the
17Red Cross and that the Afghan government would be
18told where they are.
19 Q. Were you personally aware of
20the obligations to treat detainees in a humane
21fashion?
22 A. Yes.
23 Q. And the people you worked
24with in the MP company, were they aware of those
25obligations?
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1 A. Yes.
2 Q. What steps were taken to
3ensure that detainees were treated well?
4 A. For one thing when they are
5brought into KAF into the detainee transfer
6facility, we ensured that they were given food and
7water. They were given a Koran, a prayer mat; they
8were told the Red Cross would be notified where
9they are; and we would give them clothing,
10coveralls, flip-flop sandals, toothbrush, shower,
11soap. And they would be given ice cold bottles of
12water to take into their holding area. And on
13really hot days we would make sure they had cold
14beverages. We gave them towels to cool themselves
15down.
16 Q. And did you ever witness what
17could be characterized as any mistreatment or
18ill-treatment of detainees?
19 A. Never.
20 Q. In terms of the decisions as
21to the disposition of detainees, do you know who
22made the decision in the case of each detainee
23whether they would be released or transferred?
24 A. That was task force
25commander.
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1 Q. Can you explain to us what
2the process was for obtaining or communicating that
3decision down to the detention facility.
4 A. We would get a call from MP
5operations being told whether the detainee would be
6released or transferred.
7 Q. Do you have any sense of how
8many were released as opposed to transferred?
9 A. The number of detainees that
10were detained by the Canadian Forces has
11consistently been protected under section 38. I
12just raise that. If you talk in generalities,
13that's fine, but talking specific numbers is not
14permitted.
15 Q. I was talking in
16generalities. I would like to try to get a sense,
17were more released than were transferred or the
18other way around?
19 A. During my time there were
20several releases, yes.
21 Q. Is it correct that the
22detainees who were transferred to the Afghani
23authorities were all transferred -- and I am
24talking about the detention facility, transfers out
25of the detention facility -- that they were all
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1transferred to the NDS?
2 A. I believe so.
3 Q. And again when a transferee
4was released to the NDS was there documentation
5that was completed with respect to the transfer or
6handover?
7 A. The NDS if there was a
8transfer would sign the change of custody form.
9 Q. Do you know who would be
10notified that the NDS had taken custody of the
11prisoner or detainee?
12 A. I don't understand. What do
13you mean?
14 Q. You hand over the prisoner to
15a representative of the NDS --
16 A. Yes.
17 Q. -- who presumably then leaves
18with the prisoner or detainee.
19 A. Yes.
20 Q. What I am asking you is who
21if anyone would have been notified after that
22handover had taken place that the custody of the
23prisoner has now been transferred to someone else.
24 A. I would take the paperwork up
25to MP headquarters. If, now, then it was Sergeant
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1Hart, if Warrant Hart was there, he was MP Ops NCM,
2we would put the information into a computer
3database that was directly -- CEFCOM had access to
4and then we go into the TOC, which is the Tactical
5Ops Centre, and notify the ops warrant that the
6detainee, whether transferred or released, had
7departed KAF.
8 Q. And after the detainee had
9departed KAF and these notifications or entries had
10been made, was there any subsequent follow-up on
11the part of the MP companies to what happened to
12that detainee afterwards?
13 A. No.
14 Q. Was that one of the MP
15company's responsibilities?
16 A. Not that I believe. I didn't
17read it in any SOP.
18 Q. So far as you were aware, you
19never saw any order, instruction making the MP
20company responsible for any follow-up?
21 A. Not at my level, no.
22 Q. Did the MP company have any
23responsibility for notifying either the
24International Committee of the Red Cross or the
25Afghanistan Independent Human Rights Commission
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1that detainees had been received?
2 A. Yes, at the beginning that
3was the detainee ops responsibility. And then once
4the detainee officer came to the Canadian
5headquarters he undertook that responsibility.
6 Q. Do you know or can you recall
7about when this detainee officer would have taken
8up that position? Maybe just to help you locate it
9--
10 A. Probably was in April or May.
11 Q. It might have -- was it
12around -- do you remember the agreement May 3,
132007?
14 A. I don't recall. I know we
15did it and then we stopped doing it.
16 Q. The detainee officer, had he
17been there throughout your entire tour or was that
18somebody new who came along?
19 A. I don't recall ever meeting
20him. I believe it was Major Mackay. I don't know
21if he was replaced during the tour, if there was
22another officer. I just know that they weren't
23there right when we arrived in February and March
24and it took a while.
25 Q. When you first arrived there,
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1and I would like to ask to address your mind to the
2period of time before May 2007, so we are looking
3at about the first four months you were there. As
4far as you know, when detainees were transferred
5over to the NDS do you have knowledge who if
6anybody was doing any follow-up visits or
7monitoring of these detainees?
8 A. No, I do not.
9 Q. Did that cause you or to your
10knowledge your fellow MPs concern?
11 A. I can't speak for my fellow
12MPs, but I never thought about it.
13 Q. Did you have any belief that
14a government agency apart from the military would
15be doing any follow-up checks?
16 A. I never thought about it.
17 Q. Did you have any knowledge
18whether Foreign Affairs, for example, was checking
19into detainees?
20 A. I had no knowledge. I knew
21there was a Corrections Service Canada personnel in
22theatre because I saw a lady wearing the uniform,
23but I never thought about any of that. I was told
24we turn them over to Afghan lawful authority.
25 Q. Are you aware whether during
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1your rotation an agreement was made that allowed
2follow-up on detainees?
3 A. I believe that was after the
4initial stop of transfers and releases in May and
5when it resumed that was the agreement made by the
6Canadian government and the Afghan government.
7 Q. If I could just ask you a
8couple of questions about the handing over of
9detainees to the NDS. Can you tell us how that
10process worked?
11 A. No, I cannot, for security
12reasons.
13 Q. We have, you recall that you
14were interviewed by Mr. Lenton of the Commission?
15 A. Yes.
16 Q. The transcript of that
17interview has been filed as an exhibit and it has
18been redacted by the government so there is no more
19-- anything that is secret or confidential has been
20taken out of it. I would like to read you a
21response you gave to a question that is at page 57.
22 MR. ELGAZZAR: Can I ask which
23volume here?
24 MR. LUNAU: It is called Documents
25I to S, volume 1 of two.
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1 MR. ELGAZZAR: Exhibit 30, is it?
2 MR. LUNAU: Page 57. There is
3actually three different page numbers depending
4where you look. At the top of the page, it is 57.
5At the bottom right, it is 58. And it begins -- so
657 at the top centre.
7 BY MR. LUNAU:
8 Q. The question you were asked
9by Mr. Mills:
10 "You likely had some contact
11 in your tour with either ANA
12 people or NDS people. Did
13 you ever have any concerns
14 about the safety of the
15 detainees that were being
16 released to any of those
17 agencies?"
18 And your answer was:
19 "Like I said, we'd never
20 release to the ANA or the ANP
21 from the transfer facility,
22 it was just the NDS. Blank
23 would make the arrangements.
24 They would bring the NDS to
25 the facility. I mean, there
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1 was no guarantee they were
2 going to accept them. So
3 that could be, it is like
4 court thing. I'd present the
5 evidence and the documents to
6 the gentlemen. It was
7 usually the same guy. It was
8 a long process, I mean a long
9 time, and if the detainees
10 were on any medication or
11 anything I know I made a
12 point, I'd get the
13 interpreter to write in
14 Pashto in regards to what the
15 prescription was for, when it
16 had to be taken, and I handed
17 it right over to the
18 gentleman in charge of the
19 NDS and we explained we used
20 medication for this and he
21 would say fine. He accepted
22 it, said he would ensure that
23 they get their medication and
24 whatever. And -- no -- they
25 were --
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1 Mr. Mills: Who contacted the
2 NDS?"
3 The answer is blacked out.
4 "Mr. Mills: So you didn't
5 have to do any of that?
6 "Sgt Utton: No, we didn't
7 have to contact them, but I
8 mean, the ANP, they'd come
9 over, or I mean the NDS, and
10 they would bring in their
11 guards and I mean blank and
12 blank and we were told to
13 still watch them. They're,
14 you know, still in your
15 compound. They would have
16 their blank and we would
17 whatever. But no, the NDS
18 never gave us (inaudible) or
19 anyone, you know, anything
20 like that."
21 So your answer with respect to
22someone making arrangements for the NDS to come and
23then you would present them with documentation, it
24was usually the same NDS person, it took a long
25time, you'd tell them about the medications and so
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1on. Was that how the handover was generally
2effected?
3 A. Yes.
4 Q. During any of handovers that
5you participated in or even heard about from
6somebody else, did this NDS representative ever
7physically or verbally abuse any of the detainees?
8 A. No.
9 Q. Did you ever hear any
10detainees being threatened during these handovers?
11 A. I don't speak Pashtu or Dari,
12but no, I never had any indication.
13 Q. Can you tell us, how did the
14detainees seem to behave when they were being
15handed over? Did they seem scared or did they ask
16not to be transferred or --
17 A. Never.
18 Q. -- what was their -- no?
19 A. Never. They seemed -- some
20of them seemed quite delighted. At one time we had
21two injured detainees that were to be transferred.
22The NDS refused to take one gentlemen because of
23his medical concerned (sic). He was quite
24distraught that he didn't get to go with the NDS
25and every day he would ask to go with the NDS and
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1he did his physical therapy walking around so he
2didn't limp so the NDS could transfer him.
3 Q. You referred to one detainee
4the NDS refused to take. Were there other
5instances they would show up and decline to take a
6detainee?
7 A. There was one other occasion.
8The detainee was -- he had suffered severe medical
9complications after his IED exploded on him and he
10was quite injured by the time the transfer was to
11be made, and the NDS were going to refuse because
12the paper said that the NDS jail is filthy and the
13NDS did not want to be blamed for anything that
14might happen to this detainee. And it took a lot
15of convincing that he was medically fit to be
16transferred. And the NDS did take him at the time,
17but under -- they had reservations, that gentlemen.
18 Q. Sorry, you referred to
19something in a paper?
20 A. That's when the media story
21came out about the allegations of what transpired
22in the Afghan jails. The NDS gentlemen said, Your
23Canadian papers lie. And he was quite indignant
24about what was written in the media.
25 Q. So because of that he didn't
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1want to take the --
2 A. Not because of that. He did
3not want to be blamed if anything, if the detainee
4would get an infection from the so-called filthy
5conditions that the papers wrote about in his jail.
6 Q. You mentioned some of the
7detainees were quite happy -- quite happy might be
8overstating it. I don't suppose anybody would be
9quite happy to go off to prison, but they didn't
10protest at being turned over --
11 A. Never.
12 Q. -- to the NDS. Do you know
13why?
14 A. I believe because they could
15be bought out of the Afghan jails.
16 Q. They saw it as a way of
17getting a quick release?
18 A. I believe that is a way of
19life in the Afghan system. It is so corrupt that
20if you had enough money you could buy people out of
21jail.
22 Q. You had mentioned before
23around April 2007 transfers or releases out of
24detention facility were suspended for a period of
25time?
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1 A. No.
2 Q. No? Do you recall the
3releases and transfers being suspended?
4 A. Yes.
5 Q. What period of time?
6 A. That was in May.
7 Q. I think I said around April,
8but. Do you know why they were suspended?
9 A. We were told because the B.C.
10Civil Liberties Association and Amnesty
11International put in a court order request to stop
12all transfers and releases.
13 Q. And who told you that?
14 A. It came down, I believe,
15through MPHQ. Word of mouth.
16 Q. When you say it was word of
17mouth, does that mean there was no, that wasn't the
18official communication?
19 A. Okay, it was verbally
20conveyed to us.
21 Q. MPHQ, is that task force
22headquarters? What headquarters?
23 A. MP headquarters, task force
24military police headquarters.
25 Q. Task force headquarters,
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1okay. And this was in May 2007?
2 A. Yes.
3 Q. Do you recall how long that
4suspension lasted?
5 A. It was weeks.
6 Q. And do you know where the
7order came from to suspend those transfers?
8 A. I believe it came from the
9task force commander and I don't know where he got
10his directions from.
11 Q. At the time the transfer of
12detainees was suspended did you have any detainees
13in custody?
14 A. Yes.
15 Q. Do you recall how many?
16 A. Again, the number of
17detainees in custody is, has been generally
18protected. I think we can talk in generalities.
19 Q. So you had one or more
20detainees in custody. Were they affected by the
21suspension?
22 A. Yes.
23 Q. Without stating the exact
24length of time, did these detainees end up being
25held in your facility for a number of days?
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1 A. Yes.
2 Q. Was the detainee facility
3designed to hold a person for as long as this
4detainee was held?
5 A. Not at that time, no.
6 Q. What were the conditions like
7for this detainee?
8 A. It was extremely hot.
9 Q. Did anything happen during
10that time that gave you cause for concern?
11 A. Yes, the mental well-being
12for the detainee.
13 Q. What did you observe that
14gave you reason to be concerned about his mental
15well-being?
16 A. At first he had some medical
17concerns that were not diagnosed at the beginning.
18Then through numerous trips to the medical facility
19the doctors were able to finally diagnose and give
20him treatment. The heat. And the fact that he
21didn't quite understand what -- why he was being
22held for such long period, and he was concerned for
23his family.
24 Q. Would you say he was severely
25distressed by the heat?
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1 A. I mean, I was severely
2distressed by the heat. It was hot.
3 Q. What you said earlier is that
4it was about 140 degrees and it was miserable for
5him. Is that right?
6 A. There was, yes, radiant heat
7in the facility, but we took steps to rectify it by
8cutting air holes, giving him cold bottles of
9water, cold showers, everything that we could think
10of.
11 Q. A swamp cooler?
12 A. That eventually came. We put
13in a request for that, but we took steps to improve
14the situation and rectified the situation
15afterwards.
16 Q. And he was concerned about
17who was going to be feeding his family?
18 A. That's right.
19 Q. Did he exhibit other
20behaviour like screaming and yelling?
21 A. Yes.
22 Q. Did he try to injure himself
23with a plastic knife?
24 A. I don't know if he tried to
25injure himself but he had a plastic knife in his
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1hand. We were concerned and myself and another
2guard entered into his holding area to take the
3knife and we did.
4 Q. Did you end up doing a report
5on that, a military police report?
6 A. No, we did a use of force
7report, which is our SOP.
8 Q. Did you have to call an
9ambulance to come and get him?
10 A. No.
11 Q. I am wondering because at
12page 36 you said of your transcript:
13 "They were taking him up, one
14 time he screamed and yelled
15 and they thought he was
16 having a heart attack, so
17 they had to call the
18 ambulance to get him."
19 A. That was prior to. That was
20his ongoing medical concerns that the doctor upon
21physically examining him rectified.
22 Q. "It would be 140 degrees in
23there and we did everything we could to cool him
24down. I mean, it was radiant heat, but the
25facility was just not made to hold somebody that
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1long."
2 A. Yes.
3 THE CHAIRPERSON: Which page were
4you reading?
5 MR. LUNAU: Page 36 of Sgt.
6Utton's interview transcript.
7 BY MR. LUNAU:
8 Q. And why couldn't this fellow
9be released?
10 A. Because the order came that
11there would be no transfers or release because of
12the ongoing court action in Canada. And I believe
13the task force commander or somebody related at
14DFAIT had rendered that decision to the task force
15commander.
16 Q. Did you communicate up the
17chain of command your concerns about this
18individual's situation?
19 A. Every day.
20 Q. And to whom did you relay
21those concerns?
22 A. It would be Warrant Le Blanc
23or Captain Worsfold.
24 Q. What was the response if any
25that you got back?
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1 A. I know Captain Worsfold
2brought that up to her immediate chain and she
3would tell me she had sent e-mails and she would
4show me the e-mails she had with our concerns.
5 Q. And did those e-mails do
6anything to address --
7 A. We were told there was no
8transfers and there was no releases.
9 Q. When the suspensions were
10lifted eventually what happened to this fellow?
11 A. He was released.
12 Q. Was he, because of kind of
13behaviour and distress he was showing, was he
14videotaped?
15 A. We had a video camera in the
16holding facility and tapes put in every 12 hours,
17or if they ran out, when there was detainees in the
18facility. But it was very hard to keep your
19cameras clean because of the sand and the dust
20storms so the quality of the tape, I can't --
21whatever. They were videotaped, yes.
22 Q. So he was videotaped?
23 A. Oh, yes.
24 Q. Do you know what happened to
25that tape?
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1 A. I believe that tape, I put
2that into evidence for safekeeping.
3 Q. You mean in a lock-up, an
4evidence lock-up?
5 A. I put it into military police
6evidence safekeeping, our storage facility for all
7evidence for the military police company in
8Kandahar.
9 Q. Do you know if it was still
10there when you left?
11 A. I put it into evidence in
12safekeeping. I turned the custody over to the
13evidence custodian. So I don't know. When I put
14it in the box it is in safekeeping.
15 Q. You have mentioned you became
16aware of the Amnesty International court action.
17 A. Yes.
18 Q. And you mentioned this NDS
19fellow had told you about some stories in
20newspapers about the conditions in prisons in
21Afghanistan. Did you, were you personally aware of
22newspaper stories about detainee or potential
23mistreatment of detainees that came out April, May
242007 time frame?
25 A. I recall there was such
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1articles but I don't remember if I read them all.
2I was aware of it.
3 Q. As far as you can recall, and
4I will refer you to one of articles just in case it
5refreshes your memory. You see there is a pile of
6books there beside you. If you could take volume 3
7and go to tabs 5 and 6. Do you have that in front
8of you?
9 A. Yes. I did not see them. I
10don't read the Globe & Mail at that time.
11 Q. That was what I was going to
12ask you. You didn't at that time see these
13newspaper stories?
14 A. I don't read the Globe & Mail
15at that time.
16 Q. Had you read any reports on
17the treatment of prisoners or prisons in
18Afghanistan that had been published by the
19Department of Foreign Affairs?
20 A. No, but I did read Esprit de
21Corps magazine, Scott Taylor's article on
22conditions of the Afghan jails.
23 Q. I haven't seen that article.
24Do you recall what Mr. Taylor said?
25 A. I recall he said yeah, the
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1conditions were harsh, but the guards live in the
2same condition.
3 Q. Did you have any information,
4whether from newspaper articles or having read
5reports by Foreign Affairs or the U.S. State
6Department or other sources --
7 A. No.
8 Q. -- that gave you cause for
9concern about --
10 A. Never.
11 Q. -- what would happen to
12detainee?
13 A. Never saw any of those
14articles you're referring to and we didn't get a
15lot of media other than what we could get on our
16DWAN, our open source and that would be the Star or
17the Sun. Or we had the CBC channel. So that was
18it for current media event reporting.
19 Q. What about -- have you heard
20the name Richard Colvin?
21 A. Yes.
22 Q. Were you aware of any e-mails
23or other communications he had originated?
24 A. I only became aware of
25Richard Colvin's name on the media reporting that
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1occurred in December of 2009. I have never heard
2of him or seen anything from him that I can recall
3before that.
4 Q. And no one ever spoke to you
5about any information he had provided them or --
6 A. Not --
7 Q. -- any communications from
8him?
9 A. No.
10 Q. Did you eventually become
11aware of the agreement that had been signed in May
122007 with respect to handling of detainees and
13monitoring what happened to them after transfer?
14 A. I believe we were told a new
15agreement was reached between the Canadian
16government and the Afghan government and that the
17transfers and releases would occur and there would
18be some sort of ongoing monitoring, but I don't
19know who was to do it.
20 Q. Was that a formal briefing
21that you were given?
22 A. No.
23 Q. Did you ever see a copy of
24the May 3rd agreement?
25 A. No. Until I met with the
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1Justice lawyers and I was shown this.
2 Q. After this agreement had been
3signed were there any changes made at your level
4with respect to how the process of transferring
5works?
6 A. Yes. A member of
7Parliamentary Affairs -- that is what we were told,
8Parliamentary Affairs, would come to the detainee
9transfer facility when detainees were transferred
10to the NDS and then on the occasion where that one
11gentlemen, one detainee was held for that period of
12time when he was released.
13 Q. You mentioned the
14representative from Parliamentary Affairs and I
15have seen elsewhere references to a political
16advisor.
17 A. Yeah, sorry. It wasn't
18Parliamentary Affairs, it was POLAD, political
19advisor. Yeah, sorry. Retract that Parliamentary
20Affairs.
21 Q. So the political advisor,
22after May 2007 this political advisor now shows up
23on the scene?
24 A. Yes, or somebody that was a
25political advisor for the transfers, yes.
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1 Q. And did you know who this
2political advisor was?
3 A. No, I never -- I don't recall
4his name, if it was given, no.
5 Q. Did you know who this person
6represented and why they were there?
7 A. I know he represented
8somebody in the government and that they were there
9to explain the new agreement between the Canadian
10government and the Afghan government.
11 Q. After May 3, 2007, when
12detainees are transferred and this political
13advisor was present, what role did he play in the
14handover? What would he actually do?
15 A. When the detainees were being
16brought out from the holding area into the area
17where the NDS vehicles were, an interpreter would
18explain in Pashto or Dari what was going on and the
19political advisor had a piece of paper with the
20agreement in English and the other side in Pashto.
21And they were given a copy.
22 Q. Did the political advisor, so
23far as you're aware, did he or she ever mention
24anybody anything to them about torture or that they
25wouldn't be tortured?
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1 A. I can't recall. I was -- you
2know, I would be busy with other tasks and you
3would hear the interpreter going back and forth,
4and stuff. But the specifics of a conversation I
5cannot recall.
6 Q. To see if I can refresh your
7memory, your transcript at page 81 of your
8interview. Do you have that there, sergeant?
9 A. Yes.
10 Q. Beginning at line 8 and you
11say:
12 "Yes, it was when all the
13 policy came in and whatever
14 the Canadian government
15 worked out this is what we
16 were going to follow. So the
17 political advisor was there
18 explaining, you know, to this
19 detainee, you are going to be
20 turned over to the Afghan
21 authorities. You are not to
22 be tortured. You are not to
23 be this or that. I don't
24 know the whole thing, but
25 these guys are all illiterate
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1 anyways so they are handing
2 them some document written in
3 Pashto written by the
4 Canadian government."
5 That is why I asked if there was
6some, when the political advisor was involved in
7the transfer of detainees he or she would have made
8reference or given some assurance that they weren't
9going to be tortured?
10 A. They could have. I cannot
11specifically recall.
12 Q. After May 2007 did you learn
13of transfers being suspended again? In other words
14was there another suspension after May 2007?
15 A. I don't believe I can answer
16that for security reasons.
17 Q. At page 88 of your
18transcript, beginning at line --
19 A. Yeah, that --
20 Q. Five?
21 A. -- I understand I said that
22at the time, but I don't know where I got that
23information from and it could have been from
24classified means that -- but the interviewers gave
25me the impression that everything I said they had
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1the appropriate security clearances and it would
2not be revealed.
3 Q. I think maybe you and I may
4have to have an understanding that if there is an
5issue about the security of information your
6counsel will object and if your counsel doesn't
7object, then I would appreciate it if you would
8answer the question.
9 MS. RICHARDS: In all fairness to
10the witness, she is aware and likely more aware
11than I of what information she has that is
12classified. It is appropriate and indeed she is
13required as a public servant and a government
14official to raise the issue when she believes her
15information would violate her obligation to
16maintain the confidentiality of it. So it is
17entirely appropriate that the witness raise those
18concerns when they arise.
19 MR. LUNAU: I think there have
20been a couple of instances now where we have had an
21objection that something was classified that was
22obviously public and contained in the transcript.
23I would like to try and come to some understanding
24so we are not met with an objection, just
25continually met with objections.
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1 MS. RICHARDS: In all fairness, I
2don't think she is objecting. I think she is
3raising the issue and what Mr. Lunau is doing is
4appropriate and is very helpful for the witness to
5take her through, so she can see where it has been
6vetted and that this information can be publicly
7released and she is being cooperative in providing
8the information. She is not -- she is advising you
9when she thinks there is security concern.
10 THE CHAIRPERSON: What would have
11changed from her interview to now?
12 MS. RICHARDS: This information
13has gone through a section 38 process, where the
14Attorney General of Canada has decided what
15information can be publicly released.
16 THE CHAIRPERSON: But it was
17disclosed at the time of the interview, and
18subsequently not redacted. So it has never been
19treated.
20 MS. RICHARDS: Sorry, to be clear,
21I am not saying the information is protected. She
22has a concern. She is raising a concern. And I
23think Mr. Lunau is properly taking her through to
24show her that that concern has been addressed and
25she can give him that information.
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1 But to suggest that a witness
2cannot raise before this Commission, a witness who
3works in this environment and has an obligation to
4maintain the security of information, cannot raise
5before the Commission that she is concerned about
6disclosing that information I think is not proper.
7 THE CHAIRPERSON: Any comments
8from Mr. Champ, sorry, from your colleague? Mans
9first of all I wonder what passage we were
10referring to on page 88 and then I will let Mr.
11Champ comment on the discussion between Ms.
12Richards and --
13 THE CHAIRPERSON: We are bringing
14him in from the back benches.
15 MR. CHAMP: I agree with Ms.
16Richards' interpretation of the act that it is
17proper for the individual themselves to raise the
18objection. However, I would suggest or note that
19they then have their counsel to perhaps assist them
20on whether something is in fact now in the public
21domain or not.
22 THE CHAIRPERSON: Mr. Wallace?
23 MR. WALLACE: I didn't actually
24get the sense that there is any disagreement
25amongst the parties.
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1 THE CHAIRPERSON: Mr. Lunau.
2 BY MR. LUNAU:
3 Q. You refer if your transcript
4at page 88, and in particular the lines 16 through
521, there is a reference to -- there is a large
6portion that is blacked out and then you go on to
7say:
8 "Right there you can see they
9 have got detainees in the
10 process and they have been in
11 there before Christmas
12 because DFAIT has ordered
13 they cannot be transferred to
14 the NDS."
15 Does that relate to a second
16suspension or is that still the suspension in May
172007?
18 A. That could be a second
19suspension.
20 Q. Did you learn of this
21particular suspension by reading about it on SAMPIS
22or an internal military web site?
23 A. No, I learned from (sic) it
24from other classified means.
25 Q. So this particular suspension
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1you are talking about, did that take place after
2you had left?
3 A. Yes.
4 Q. After May 3, 2007 did you
5have any knowledge about what was going on insofar
6as conducting inspections of Afghan prisons or
7facilities?
8 A. No.
9 Q. Was the MP company given any
10monitoring or inspection responsibilities, after
11May 3 agreement?
12 A. Not that I was aware of at my
13level.
14 Q. Did you ever see any of the
15reports that related to inspections or site visits
16that were done after May 3, 2007?
17 A. No.
18 Q. Can you tell us what SAMPIS
19is?
20 A. Security and military police
21information system.
22 Q. While you were in
23Afghanistan, did you have access to SAMPIS?
24 A. Yes.
25 Q. Did you have access to all
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1the information on SAMPIS or only to selected parts
2of it?
3 A. Some reports that perhaps the
4NIS work on were sensitized or private information,
5so no, you could not see access to it.
6 Q. It is also my understanding
7that information classified -- is it above
8protected B -- can't be displayed on SAMPIS?
9 A. Yes. SAMPIS is encrypted for
10protected B information only.
11 Q. Any of your reviews of
12SAMPIS, did you come across any information or any
13reports raising concerns about abuse of detainees?
14 A. No.
15 Q. If I could ask you to turn to
16volume 2 of the books in front of you there, tab 2.
17If I could ask you to turn to page 13 of 37 in the
18lower right-hand corner, and you will see there.
19There is a list of various annexes, some of which
20are blacked out in whole or in part. Annex is a
21detainee process flow chart. Annex B, tasks and
22responsibilities of JTF Afghanistan staff. Annex
23C, solders' actions to be taken on the capture of
24detainees. Are these forms that you are familiar
25with?
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1 A. Yes.
2 Q. The form at annex C, have you
3seen these before?
4 A. Yes.
5 Q. What were these forms for?
6 A. Sorry?
7 Q. Page 18 of 37 in the lower
8right-hand corner. It is entitled "Soldiers'
9actions to be taken on the capture of detainees."
10 A. Yes.
11 Q. Who would have filled out
12this form?
13 A. The unit that captured the
14detainee.
15 Q. And then would this form
16completed be given to the detainee facility?
17 A. Yes, all paperwork from the
18capturing unit would come forward and it would go
19from chain of custody if the capturing unit
20couldn't bring them into KAF and it would go to
21whoever brought them into KAF and then come to the
22detainee transfer facility.
23 Q. And then there is an
24instruction on the next page, page 19 of 37,
25standard of treatment for detainees.
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1 A. Yes.
2 Q. Is this a document that you
3would have seen before?
4 A. Yes.
5 Q. The next page, there is a
6detainee tag.
7 A. Yes.
8 Q. Can you tell me what this
9document is?
10 A. That would be the -- it would
11be secured on them. It was similar to the old
12prisoner of war tag in the Cold War, when they used
13those terms it would be a waterproof paper that the
14information would be recorded and it would still be
15there and it would be secured on their person.
16 Q. Page 22 of 37 there is seized
17property record for a detained person.
18 A. Yes.
19 Q. Is this something that would
20be filled out at a detainee facility --
21 A. Yes.
22 Q. -- so it would be filled out
23at the detainee facility. And you would do an
24inventory of whatever property was taken?
25 A. Everything.
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1 Q. Then the next at page 24 of
237 there is a witness statement?
3 A. Yes.
4 Q. Who would fill this out?
5 A. The person that either
6witnessed some of the activity at the time that
7they were detained outside and they would put that,
8all that, fill in what they saw. If they saw them
9planting an IED or picking up a cell phone when a
10com point -- something like that. Just a witness
11statement that they saw that brought them to the
12attention that this person would be detained.
13 Q. So it is basically like a
14little narrative as to why the person was captured
15and what they were doing --
16 A. Yes.
17 Q. -- at the time they were
18captured? And the next document at 25 of 37 there
19is a tactical questionnaire report. Again, is this
20something completed at the detainee facility?
21 A. No, that would be done by the
22qualified tactical questioner.
23 Q. So this is after the detainee
24arrives at the facility?
25 A. No, it's done at either point
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1of capture or if it is safe to do so. If it was
2done that would -- it was a tactical questioning to
3see if they should be questioned further.
4 Q. Then at page 27 of 37, a
5custody record for a detained person.
6 A. Yes.
7 Q. Is this something, again, was
8it filled out at the detainee facility?
9 A. No, again, that would be done
10by the unit that did the capture and then
11subsequently you can see that it says custody
12transfers within Canadian Forces elements. So if
13it was -- the detainee was brought back to say
14other Canadian MPs they would sign. It was like a
15custody record that they accepted the custody and
16then when they eventually bring them to the
17detainee transfer facility I would sign it saying
18yes, we accept custody.
19 Q. Then at page 28, a record of
20release.
21 A. Yes.
22 Q. This would be filled out when
23a person was released outright?
24 A. Yes.
25 Q. If you would just jump over
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1to the page 33, there is a record of transfer. So
2again this would be a form filled out?
3 A. That would be the NDS, yes.
4 Q. When a record of transfer was
5filled out, to whom would this form be forwarded
6to?
7 A. It would go to MPHQ and
8eventually the main detainee file that were held at
9the military police headquarters. And I think, I
10believe, I can't say for sure, the detainee officer
11would review it too, but it was held at MP
12headquarters.
13 Q. If I understand correctly,
14basically for each detainee, at least after the
15period of this particular standing order, there
16should be basically be a bundle of documentation?
17 A. Yes, there was.
18 Q. Now I would like to just ask
19you some questions about your training before you
20deployed. Before you went to Afghanistan, did you
21receive any specialized training about detainees,
22detainee handling?
23 A. Not specialized. I went on a
24tactical questioner course.
25 Q. Did you receive any training
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1in the Geneva Convention?
2 A. That's standard training for
3every, from primary leadership qualification you
4get instruction on that. And yes, we did review
5Geneva Convention details on my tactical
6questioning course.
7 Q. Did you attend any of the
8training courses that Major Hudson put on?
9 A. Depends on the location. I
10left training early in Gagetown to go on my
11tactical questioner course, but I was in Petawawa
12for briefings.
13 Q. Were you there in November
142007 when he put on training on detainee and
15prisoners of war issues?
16 A. Do you have the date?
17 Q. Not an exact date, I just
18have November, 2006.
19 A. Yes, I was there.
20 Q. Did you attend -- I didn't
21have a date for this, but a training course major
22Hudson put on in Petawawa involving treatment of
23detainees from, including psychological issues,
24media factors?
25 A. I recall there was training
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1in Petawawa and it focussed on the mistakes made at
2Abu Ghraib in Iraq and about guards that weren't --
3that were employed as military place that shouldn't
4have been, and I don't recall all the specifics of
5the training but that was the general points of
6this wouldn't happen on our tour. We will treat
7the detainees with respect.
8 Q. During any of the training
9that you can recall, was there any consideration
10about post-transfer treatment of detainees?
11 A. Not that I can recall.
12 Q. During your tour in
13Afghanistan, did you ever obtain any information or
14knowledge that made you believe a police
15investigation should be undertaken into the
16transfer of detainees?
17 A. No.
18 MR. LUNAU: I have no other
19questions, thank you.
20 THE CHAIRPERSON: I think it would
21be fair to take 10 minutes. Thank you.
22--- Recess Taken at 3:22 p.m.
23--- Upon resuming at 3:35 p.m.
24 THE CHAIRPERSON: Mr. Champ?
25CROSS-EXAMINATION BY MR. CHAMP:
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1 Q. I just have some questions
2for you about your deployment in Afghanistan from,
3I believe --
4 A. I’m sorry, but there is a
5camera at the door. When the gentleman walked in,
6there was a guy with a camera.
7 THE CHAIRPERSON: Could we just
8take a minute and see what gentleman is out there.
9--- Short pause
10 THE CHAIRPERSON: Madam Registrar,
11just for the purposes of the record, who is out
12there?
13 THE REGISTRAR: It’s one of the
14media. They are waiting to interview, I believe,
15Mr. Lunau, and they are sitting on the side on the
16chairs.
17 MS RICHARDS: Mr. Lunau, I take it
18when you meet with them, you can just confirm that
19they didn’t take any footage of the hearing.
20 MR. LUNAU: I can do that.
21 THE CHAIRPERSON: Could we do that
22now just to make sure nothing gets transposed out
23of here, if that is the case?
24 We will break for a few minutes to
25get this taken care of.
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1--- Short recess at 3:38 p.m.
2--- Upon Resuming at 3:45 p.m.
3 THE CHAIRPERSON: For purposes of
4the record, I take it everybody is satisfied
5relative to -- made sure there was no breach,
6there?
7 MS RICHARDS: Thank you, yes.
8 THE CHAIRPERSON: We will leave
9that screen in place for whatever time we require
10for today and tomorrow so that when the door opens
11and closes we don't have to worry about that.
12 Okay, I am sorry, Mr. Champ, for
13the break, but safety is better than none.
14 MR. CHAMP: Thank you.
15 BY MR. CHAMP:
16 Q. Ms Utton, I have a few
17questions about you, about your tour in Afghanistan
18in 2007. I understand you were there during Roto 3
19from, was it February 2007 to July 2007?
20 A. Yes.
21 Q. you were sergeant in military
22police, the KAF Company, is that right?
23 A. I was master corporal and
24promoted to sergeant, in theatre, in July. I was
25in the KAF Military Police Platoon.
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1 Q. Sorry, platoon, right. And
2you I understand were involved in the actual
3handover of detainees from Canadian Forces' custody
4to the custody of NDS?
5 A. I did the paperwork and the
6disclosure packages for the NDS. Then I would
7leave and go outside while the actual -- all the
8other briefings were done.
9 Q. So you would just do the
10paperwork for the handover, the package that would
11actually be given to the NDS?
12 A. Yes.
13 Q. Then it would be another
14Military Police officer who would take the detainee
15to the actual handover point?
16 A. The handover point, it was a
17holding area where vehicles could come in. Then we
18had, like, a little trailer where the meeting with
19the NDS and other personnel would take place.
20 Q. It would occur in a trailer?
21 A. Yes.
22 Q. The detainee would be brought
23in one door of the trailer, and the NDS would be
24already waiting there, something like that?
25 A. No. The detainee would be in
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1the holding area until the actual -- they moved
2into the NDS vehicles.
3 Q. So that the NDS vehicle would
4come into the compound. They would come into the
5trailer to sort of speak to the Canadian Forces or
6Military Police officials. Then, when it came time
7to actually do handover, the NDS would come out,
8the detainee would be brought out of the compound,
9or be brought out of the holding area -- what would
10you call it?
11 A. Yes, the transfer facility,
12the holding area, yes.
13 Q. The holding area, and they
14would go directly into the vehicle?
15 A. Yes.
16 Q. I am wondering, what kind of
17notice would the detainee get that they are going
18to be handed over? Do you know?
19 A. They would be told -- it
20depended on the timings we got, but there is a
21procedure. They would be taken for a medical, they
22would be given a shower, then put back into their
23clothing, if it was suitable, and then they would
24sit. So they knew something was going to happen.
25 I can't recall if they were
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1specifically told they were going to be transferred
2to the NDS at the time, but it was usually during
3this time period they would be told that the NDS
4was there.
5 Q. Who would be the officials in
6the Canadian Forces that actually do the handover?
7I will start, like, maybe from post-May 2007, once
8the new agreement came in. Just ranks, maybe?
9 A. Can I -- I don't know if I
10can answer that. It is -- that was --
11 Q. It is my understanding there
12would be a department of foreign affairs official
13there, usually?
14 A. The POLAD was there, after
15me.
16 Q. Right.
17 A. But before that, no.
18 Q. So, after May, the POLAD
19would be there, and it is my understanding they
20would actually -- I think you described this
21earlier: they would give a copy of the detainee
22arrangement in Pashto or Dari, to the detainee?
23 A. Yes, it would be the copy of
24the agreement.
25 Q. The POLAD or the department
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1of foreign affairs political adviser at KAF would
2be there at the time of transfer, and then Canadian
3Forces officials?
4 A. Yes.
5 Q. Among those Canadian Forces
6officials at the handoff, would it be a Military
7Police person?
8 A. I don't know if I can answer
9that.
10 Q. Would it be more than one
11Canadian Forces person?
12 A. Yes.
13 Q. Would you be present at that
14handoff, sometimes?
15 A. I was there to get the
16paperwork signed by the NDS official and then I
17would leave, because of cultural -- men-women.
18 Q. Right. I guess, then, you
19wouldn't know what kind of discussion would go on
20between, say, the NDS and the Canadian Forces
21officials at the time of handover?
22 A. No, I left to go --
23 Q. Right. I gather then nor
24would you hear what the detainee might be saying or
25not saying?
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1 A. The detainees were in their
2holding facility until the NDS were ready to accept
3the transfer and move him into the vehicles.
4 Q. They would just be brought
5out and put right back on the vehicle?
6 A. Yes. They would have
7blindfolds on.
8 Q. They would have blindfolds
9on?
10 A. Yes, for the security of the
11camp.
12 Q. All right. Did you actually
13witness that process very many times?
14 A. Yes.
15 Q. You actually witnessed the
16detainee being brought out of the holding --
17 A. Yes.
18 Q. -- facility and put onto the
19truck?
20 A. Yes.
21 Q. Did you ever see a detainee
22resist?
23 A. Never.
24 Q. Never. When you were on
25duty, would you have been present to witness all of
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1the handovers?
2 A. No. I travelled. I had a
3leave, a home-leave travel, where I came back to
4Canada for three weeks.
5 Q. Right. But when you were in
6theatre and at KAF, would you have seen all of the
7handovers?
8 A. Pretty much, if I was there.
9 Q. Mr. Lunau, for the
10Commission, he asked you some questions about what
11sort of training or understanding you had before
12you got to theatre about detainee handling. I
13think you indicated that you did get some training
14in Petawawa about detainee handling, is that right?
15 A. We had some lectures, yes.
16 Q. It was emphasized to you and
17the other Military Police officers that humane
18treatment of detainees was an operational
19objective?
20 A. We would follow the Geneva
21Convention.
22 Q. Right. Maybe I was inferring
23some thing in what you are saying. When you were
24referring to the Abu Ghraib sort of scandal, it was
25my understanding that you were suggesting -- and
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1disagree with me if you want -- that events like
2that can really undermine the overall mission.
3That is why it was emphasized to Military Police
4officers that you have to ensure that detainees are
5treated well?
6 A. No, I think it was an
7educational that Military Police personnel were in
8charge of Abu Ghraib and this is what happened and
9that we had responsibilities to make sure that it
10did not happen on our mission and that we would all
11have the tool sets to know that detainees would be
12respected in accordance with the Geneva Convention.
13 Q. What was your understanding
14about post-transfer obligations of the Canadian
15Forces?
16 A. I didn't have any
17understanding. I was told that we would transfer
18them over to the Afghan lawful authority; it would
19go through their legal system.
20 Q. But you understood at some
21point in theatre that there were concerns raised by
22some in Canada about what was happening to
23detainees, post-transfer?
24 A. There were media reports that
25were out, but it was just what the media reported.
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1 Q. Yes, you were aware that
2concerns were being raised about what might be
3happening to detainees, post-transfer?
4 A. Yes.
5 Q. That was a topic of some
6discussion in theatre, I gather?
7 A. It might have been a little
8bit but it wasn't like a, you know -- we might have
9discussed it, "Hey, look at what the paper wrote."
10That was about it.
11 Q. Once it was in the paper and
12there was this sort of general discussion that you
13are talking about, it was never raised or discussed
14with anyone about actual obligations on the
15Canadian Forces for post-transfer treatment of
16detainees?
17 A. That wasn't at my level, no.
18 Q. It was never discussed in the
19context for you?
20 A. No.
21 Q. You spoke about the presence
22of the political adviser at the time of transfer.
23In KAF, I note there were probably long shifts, I
24guess? You would be doing, like -- was it 12-hour
25shifts?
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1 A. No, I was on call 24/7.
2 Q. Twenty-four/seven. What kind
3of exposure or interactions would you ever have
4with officials of the department of foreign
5affairs?
6 A. None. I didn't know they
7were in the camp. If you know anything about
8military culture, you stay with your own,
9especially Military Police. We are a unique social
10group.
11 Q. You knew they were there at
12the time of transfers, though?
13 A. Yes, once that policy
14started.
15 Q. Right. Before then, you had
16never even seen them?
17 A. I never even thought about
18it.
19 Q. Then, once the new agreement
20came into place and the political advisers started
21playing some role, you saw them for that purpose
22but that was it?
23 A. No. When the detainees that
24were held beyond the 96 hours, during the lull in
25transfers-release, the POLAD actually came up to
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1the entry control point to watch that detainee
2leave KAF.
3 Q. Do you remember the name of
4that POLAD?
5 A. No, I do not.
6 Q. It was a male?
7 A. It was a male.
8 Q. Was there ever more than one
9that you saw?
10 A. I don't remember. I didn't
11pay attention to it.
12 Q. You spoke earlier about a
13political adviser. Are you distinguishing, there?
14 A. Sorry, I said parliamentary
15affairs, but I think it was a political adviser;
16that is the term I meant.
17 Q. The department of foreign
18affairs official?
19 A. If he was DFAIT; I didn't
20know. I knew he was a political adviser; he worked
21for somebody in high government, in here, level.
22 Q. That is all and that was it,
23okay. You would not have been involved at all in
24tactical questions?
25 A. No. I went on the course to
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1understand what it was, the procedures, but I never
2did any tactical questioning.
3 Q. You were responsible for
4putting together the packages of materials to go to
5the NDS?
6 A. Yes. We had a disclosure
7package that would go to the NDS.
8 Q. You would do the paperwork.
9And would you be responsible for receiving packages
10of information back from the NDS on the detainees?
11 A. No. Never.
12 Q. Who was responsible for that?
13 A. I think the detainee officer.
14 Q. The detainee officer was a
15Major McKay at that time?
16 A. I believe that is the name I
17recall from reading some documents that the justice
18department lawyers gave me.
19 Q. What was your understanding
20would happen to detainees, post-transfer?
21 A. That they would go through
22the Afghan court system.
23 Q. On the basis of what?
24 A. The Afghan law.
25 Q. No, but in terms of what
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1evidence?
2 A. The evidence that was given
3to them in the disclosure package, from the witness
4statements to -- I believe they are given witness
5statements and a capture report. I can't recall
6everything given in disclosure, but they were given
7enough of a disclosure package then, yes, to know
8why that they were detained by the Canadian Forces.
9 Q. You have the transcripts
10there of your interview with the MPCC investigators
11on January 22, 2008?
12 A. Yes.
13 Q. I would like to turn you to
14page 32; we have been going by the numbers on the
15top. At line 12, as I understand it here, you were
16describing the paperwork package that you had put
17together for the NDS, is that accurate?
18 A. Yes.
19 Q. You say here:
20 "So I would do the paperwork,
21 I would do the disclosure
22 packages to give to the NDS,
23 with all of the info. That
24 would be sanitized. We would
25 take out witnesses' names and
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1 stuff. They would just get,
2 like, basic information why
3 they were captured, what
4 information they had and then
5 they would get photos and
6 their medical records and
7 stuff in sealed envelopes."
8 A. Yes.
9 Q. The stuff in sealed
10envelopes, that was their personal possessions?
11 A. I think -- I can't recall.
12They would get -- we would -- they would get their
13clothing back. We would give them their clothing
14if they could still wear it. Sometimes they came
15in and their clothing was destroyed, so we would
16give them coveralls. But, yes, they would get
17their -- the NDS would take possession of their
18belongings, they would sign the inventory and agree
19that it was all there, especially with the money,
20if they had any.
21 Then I think their medical records
22were put in sealed envelopes because it would be to
23safeguard medical information.
24 Q. To protect their personal
25privacy?
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1 A. Yes.
2 Q. You say here that some of the
3information would be sanitized. What would be
4sanitized?
5 A. We would take out the names
6of any military members from the witness statements
7to protect their names. We would sanitize, so --
8 Q. You would black-out the names
9of the Canadian Forces members?
10 A. Yes.
11 Q. Why is that?
12 A. I don't know. I was told to
13do that.
14 Q. You are a Military Police
15officer. How long were you a Military Police
16officer?
17 A. I am a Military Police NCM.
18 Q. When were you sworn in as a
19Military Police officer?
20 A. I was given my credentials
21in, I think, March of 1989.
22 Q. For a very long time.
23 A. Yes.
24 Q. I am wondering, as a police
25officer, when you look at this information that is
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1provided to the NDS, what do you think they are
2relying on to prosecute?
3 A. There is other information I
4wasn't privy to. There is other information given
5to them by other elements of the Canadian Forces.
6This was just the paperwork that we had, that we
7had custody of.
8 Q. There was multiple packages
9going to them?
10 A. There could have been. I
11didn't see everything.
12 Q. Were you speculating there
13was other packages?
14 A. No, I know there was other
15info.
16 Q. You knew there were other
17packages going?
18 A. I don't know about
19"packages", but there was other information that
20they were getting that I did not get that I hold in
21the detainee records.
22 Q. You would agree with me then,
23as a police officer, the information that you were
24providing to the NDS on its own could never support
25a prosecution?
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1 A. I don't know. This was
2stuff, it probably had gone through our legal
3adviser in KAF, and I received a direction down
4about what information would be sanitized and given
5to the NDS.
6 Q. But I am asking you in terms
7of as a professional, as a police officer, this
8kind of information, where it is secondhand hearsay
9and you don't even know the person who said it,
10that that is not enough to prosecute someone?
11 A. I don't know if the Afghan
12laws are -- they have different court systems than
13we have, so I can only ascertain, what can we do in
14Canada.
15 Q. Did you ever turn your mind
16to that?
17 A. I didn't think about that.
18No, I was surviving day by day out there.
19 Q. If that is the only
20information that was provided to the NDS, you never
21turned your mind to how else the NDS might be
22trying to obtain information about what the
23detainee may or may not have done?
24 A. I don't know what all
25information the NDS was given so, what I gave them,
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1I did what I was told to do and no, I never thought
2about anything afterwards. I just focused on my
3tasks, that day.
4 Q. Had you ever heard about the
5NDS before you went into theatre?
6 A. No.
7 Q. Have you learned a bit about
8them since the time you have been in theatre?
9 A. Since the time in theatre to
10today?
11 Q. Yes.
12 A. There has been a lot of stuff
13in the paper. I just know that they were the
14equivalent of the FBI, in Afghanistan.
15 Q. Right, the secret police.
16 A. The FBI. We were told FBI,
17or were -- yes, like the FBI, and they were just
18their national police force, like -- yes. Not --
19well, secret police, but equivalent to the FBI is
20what we were always told.
21 Q. You learned that after the
22new agreement came into place in May 2007 that
23there were visits to Afghan prisons by Canadian
24officials?
25 A. I wasn't aware there were
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1visits by Canadian officials; I was aware there was
2agreement that they would be able to. That was in
3the agreement, and that they would account for all
4detainees turned over after that point.
5 Q. But during your time in
6theatre you never heard anything about what was
7happening with those visits?
8 A. I didn't even know if they
9were taking place during the time we heard they
10were going to, but I don't know -- no, we never
11heard any specifics that who went or what the
12conditions were, no.
13 Q. You never heard about whether
14they were ongoing at all?
15 A. I --
16 Q. Not even rumours?
17 A. I think there was some
18discussion about who would do it. I can't recall,
19but I think it was the detainee officer or they
20were going to Corrections Services to come in, but
21not anything specific that it was occurring. Like,
22we heard stuff, but I mean, I am lower on the -- I
23am not privy to it. My supervisors or superiors
24knew, if they didn't tell me.
25 Q. I was kind of curious if
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1there was any kind of buzz in camp.
2 A. It wouldn't be in camp. The
3detainee transfer facility was -- we kept that --
4that was classified, how it operated and anything
5-- and it was within the Military Police and those
6who knew it, at KAF headquarters.
7 Q. If the department of foreign
8affairs officials or the Canadian correctional
9service officials were hearing that detainees were
10being subjected to electric shocks and beaten with
11electric cables at the NDS facility, you would not
12have heard about that?
13 A. I wouldn't, no. I don't know
14if there were talks -- but if anybody was informed
15at headquarters, if it was, they kept it -- that
16would have been sensitive information and they
17would probably keep it at that level, to who would
18need to know. But it certainly never filtered down
19to the rank and file.
20 Q. You don't think that that
21information -- if you had had that information, it
22wouldn't have made any impact on how you performed
23your job?
24 A. I would think if that
25information came that the task force commander
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1would have looked into it and ascertained whether
2we would stop until it was rectified or seek
3guidance from his chain of command, in Canada.
4 Q. I am trying to think, who was
5the task force provost marshal while you were in
6theatre, again?
7 A. Major Hudson.
8 Q. Major Hudson. Did you ever
9have much contact with Major Hudson?
10 A. Not a lot but, yes, we would
11see him and we would see him at the meeting
12facilities and when you saw him at headquarters or
13if he came to visit the KAF MP platoon.
14 Q. Because he was about two or
15three levels above you in the chain of command?
16 A. Yes, probably.
17 Q. Steward, Worsfold.
18 A. Steward, or Leblanc, Captain
19Worsfold. I mean, I had dealings with him, but
20they would be through the official chain.
21 Q. Right. Did you know what
22role he played in the detainee transfer decisions?
23 A. I don't think he played a
24role in decisions. That came from the task force
25commander and he conveyed it down through his
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1chain.
2 Q. Right. You may not know this
3but whether the task force provost marshal -- the
4duty of the task force provost marshal was to
5provide advice to the commander on transfer
6decisions?
7 A. I don't know that.
8 Q. Yes. For example, Mr. Lunau
9had taken you to the theatre standing orders.
10 A. Yes.
11 Q. You wouldn't have had
12occasion to really have exposure to that, that full
13document, while you were in theatre, I gather?
14 A. I read them, yes.
15 Q. In your direct testimony, you
16had indicated that the Red Cross and the Afghan
17Human Rights Commission were informed upon the
18capture of a detainee, is that correct?
19 A. No. When they got to the
20detainee transfer facility, we took steps to inform
21them, officially.
22 Q. Who took those steps? Was it
23you or was it someone else?
24 A. At the beginning, it was
25Sergeant Steward and myself, we would try to e-mail
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1the Red Cross representative in Kandahar City and
2the Afghan Independent Human Rights Commission, but
3it was very difficult. Then the detainee officer
4took over those duties.
5 Q. What time did the detainee
6officer take over those duties?
7 A. I think it was in April and
8May, in April or May, because --
9 Q. Around the same time as the
10new arrangement came into place?
11 A. Yes, or it might have been
12before that because we streamlined the reporting
13process and we created the new database to -- you
14know, it was a direct line; CEFCOM had accurate
15information when they needed it. So, before it was
16a different procedure; slides that would be e-
17mailed.
18 Q. Slides of?
19 A. Slides that had information
20on -- what we would do, like, information on, and
21then the information would be e-mailed to CEFCOM.
22 Q. Then CEFCOM would take care
23of informing --
24 A. I don't know what CEFCOM did.
25 Q. But you --
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1 A. CEFCOM, that would be here in
2Canada.
3 Q. Yes, I know, I know, yes.
4 A. Yes.
5 Q. But you would have presumed
6that CEFCOM was then informing the Red Cross at
7that time?
8 A. No. We were informing them
9in theatre.
10 Q. Okay. I thought you were
11suggesting that it changed in April or May, where
12you were informing --
13 A. It did, where the detainee
14officer took on more of the duties.
15 Q. Okay. How would you know if
16the Red Cross or the independent human rights
17commission actually received your notification?
18Would there be a reply e-mail or anything like
19that?
20 A. I only attempted to do it
21once and then I think Sergeant Steward had
22confirmation. But I know the Afghan Independent
23Human Rights Commission visited KAF and the Red
24Cross would come along, all the time, to the
25detention transfer facility. They would speak with
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1the detainees or they spoke with Captain Worsfold,
2so there was a constant contact.
3 Q. Had you ever heard about
4difficulties with the Red Cross in the past
5receiving information from the Canadian Forces?
6 A. No, I don't recall. They
7didn't seem to have any issues when they came to
8visit.
9 Q. You had also mentioned in
10your direct testimony that at some point in the
11middle of your rotation the Canadian Forces stopped
12battlefield transfers with the ANA and the ANP?
13 A. I think they stopped all --
14yes, captures and releases in the field, and then
15the direction was they would all come back to the
16detainee transfer facility.
17 Q. But specifically with respect
18to those authorities, the ANP and the ANA, that
19occurred at some point?
20 A. It did, before the previous
21rotos and prior to ours.
22 Q. The previous roto before --
23 A. It did happen, I think. I
24wasn't privy to all information because I wasn't
25the I/C.
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1 Q. No, for sure. No, I
2understand. Actually, you have done a great job.
3I am surprised that you had as much information as
4you did.
5 During your rotation,
6approximately how many detainees were transferred?
7 A. I can't answer that question.
8 MS RICHARDS: Again --
9 MR. CHAMP: I am noting them, for
10the record, because we will see whether we receive
11them, afterwards.
12 Q. Can you say a percentage of
13detainees, of transfer versus release?
14 A. There was quite -- I can't
15say a percentage, I can't -- I can't really answer
16that question, for security reasons.
17 Q. You were informed at some
18point that you couldn't answer that question
19because of security reasons, is that right?
20 A. Yes, I was told not to talk
21about those specifics.
22 Q. In the transcript of your
23interview at page 88, there is a mention there, and
24this is starting at page 18, that DFAIT had ordered
25that detainees could not be transferred to NDS.
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1 A. As I have mentioned before,
2that --
3 Q. Did you learn about that from
4DFAIT?
5 A. No.
6 Q. Did you learn about it
7officially as part of your job at that time?
8 A. I learned about it in my
9current job, from reading classified information.
10 Q. Okay, that is fine. You
11returned to Canada in July 2007. You assumed your
12new job shortly thereafter?
13 A. Yes.
14 Q. I guess there would have been
15the decompression period, whatnot -- maybe, like,
16October or something like that?
17 A. No. I reported back to work,
18with the Military Police Company at CFSU Ottawa in
19mid-September.
20 Q. In September, okay. When you
21testified or when you -- not testified, pardon me,
22but when you were interviewed about this, saying
23that you had learned that DFAIT had ordered that
24detainees can't be transferred --
25 I am trying to frame it in a way
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1where you can feel comfortable answering it.
2 When you learned about this order
3to stop transfers in around Christmastime of 2007,
4did you at that time learn about the DFAIT
5monitoring visits?
6 A. I can't remember.
7 Q. You can't remember?
8 A. I can't recall.
9 Q. I gather that if you had read
10reports that indicated detainees had been subjected
11to electrical shocks or beaten with electrical
12cables, you probably would have remembered that?
13 A. I have never read such a
14report.
15 Q. When did you learn that you
16might be called as a witness in this proceeding?
17 A. When I was subpoenaed in
18September or October of 2009, and was given my
19summons.
20 Q. How did you receive the
21summons? Was it from the department of justice?
22 A. It was from DND, civil
23litigation lawyers.
24 Q. Ms Hanners(ph), one of those
25folks?
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1 A. Meaghan Enright(ph).
2 Q. Okay. Did you ever receive a
3letter from Mr. Alain Prefontaine?
4 A. I received e-mails, I
5believe. There was something from Mr. Prefontaine
6in some of the e-mails.
7 Q. Once you received your
8summons, did you obtain legal advice?
9 A. Upon getting authority that I
10would be entitled to legal advice at Crown expense,
11yes.
12 Q. Did you get advice from the
13department of justice or external counsel?
14 A. It was department of justice.
15 MR. CHAMP: Ms Cleroux, I am
16wondering, we were looking at the exhibits and we
17are trying to figure out where one of them might
18be, P-21 in particular. It doesn't seem to have
19any connection or reference to a document number,
20where we might be able to find it.
21 THE REGISTRAR: P-21?
22 MR. CHAMP: Yes.
23 THE REGISTRAR: Did you see it in
24any collection?
25 MR. CHAMP: We haven't. It is
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1just listed as P-21, so we are not sure how it was
2incorporated and where it would be.
3 THE REGISTRAR: Where is it
4listed?
5 MR. CHAMP: It is listed in the
6exhibit list, Afghanistan Public Interest Hearings,
7P-21. We numbered it this morning. It is not part
8of any collection. It is loose.
9 THE REGISTRAR: Are you talking
10about document P-1 or Exhibit P-1?
11 MR. CHAMP: Exhibit P-21.
12 THE REGISTRAR: P-21.
13 MR. CHAMP: Frankly, I am not even
14sure if I have figured out what these things are,
15these main documents for witnesses.
16 MR. LUNAU: I can explain. What
17we have done, instead of trying to deal with how
18many black binders of documents --
19 MR. CHAMP: Right.
20 MR. LUNAU: -- we have found that
21a number of documents are going to be common to all
22the witnesses. We have extracted them and put them
23into this subset to make it easier to refer them to
24the witnesses for everybody to use.
25 MR. CHAMP: Now I see.
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1 MR. LUNAU: Everything in the
2subset is in the big set of black binders.
3 MR. CHAMP: All the older exhibits
4that were entered before are listed in there but,
5for example, we don't know where the new documents
6are located in terms of the new exhibits.
7 MR. LUNAU: P-20 and P-21 are
8individual documents. The others, P-22, -23, -24,
9if you look at the black binders, you will see that
10they are labelled, Collection "A", Collection "B",
11Collection "C" and so on.
12 MR. CHAMP: Yes.
13 THE REGISTRAR: P-21 is this one.
14 MS RICHARDS: Were you talking
15about the Exhibit P-21?
16 MR. CHAMP: The Exhibit P-21.
17 THE REGISTRAR: I believe you said
18document no. 21. Would you like a copy?
19 MS RICHARDS: Sure.
20 THE REGISTRAR: P-21. You said
21there was a cover letter that went with this, from
22Mr. Prefontaine.
23 MR. CHAMP: To Mr. Lunau, you
24mean?
25 MS RICHARDS: Yes. You will
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1recall that Mr. Prefontaine sent this with a cover
2letter and asked that both the cover letter and
3this document be filed, if we were to file this
4document.
5 MR. CHAMP: I don't --
6 MR. LUNAU: Yes. No, I don't take
7issue with that. But, in fact, it is not here.
8 MS RICHARDS: Okay. So will you
9be filing the cover letter to go with it?
10 MR. LUNAU: Yes. It was not my
11intention, to not file it.
12 MS RICHARDS: No, no, I just --
13no, no. I figured it was an inadvertence.
14 MR. LUNAU: Yes.
15 MS RICHARDS: I was raising it for
16your --
17 MR. CHAMP: Is there a copy for
18the witness? Sorry --
19 MS RICHARDS: I just raised the
20issue of the cover letter because this witness,
21just in in fairness to her, to understand how and
22why this has been filed with the Commission.
23 MR. CHAMP: Actually, I am just
24going to check. Yes, she was after. Sorry. Yes,
25that is fine, sorry. I thought you were on the
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1list of witnesses.
2 THE CHAIRPERSON: We can disregard
3this?
4 MR. CHAMP: For now. We are going
5to have to figure out where it goes in terms of one
6loose document amidst all the binders.
7 THE CHAIRPERSON: In terms of the
8cover letter, we will address that after. Are you
9going to need a couple of minutes, Mr. Champ?
10 MR. CHAMP: I think I will be done
11in a moment. A couple more questions and I will be
12all done, Ms Utton.
13 Q. First of all, the
14transcripts, you have had an opportunity to read
15those, obviously?
16 A. Yes.
17 Q. Is there anything in there
18that you had any concerns about or disagreed with
19or changed your mind about?
20 A. I had concerns because when I
21was initially interviewed by the MPCC investigators
22they told me everything I said they had the
23appropriate security clearances and the classified
24information I talked about would remain classified.
25Since that, it was released to the media, so I had
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1concerns about that.
2 Q. But it is redacted.
3 A. I don't know when it was
4released to the media, but I know it was released.
5My testimony before the MPCC investigators was
6released to the media. There were quotes and
7misconstrued quotes.
8 Q. Right. But you will see that
9there are significant portions of your testimony
10that are blanked out, here.
11 A. Since the section 38, yes.
12 Q. Right. An unredacted version
13was never released, or at least not to my
14knowledge.
15 A. Okay.
16 Q. If there was, I would like to
17see it. Aside from that concern that you have, in
18terms of the content of what you said in response
19to the questions that were put to you in January
202008, do you have any concerns or disagreements or
21reconsiderations?
22 A. Apparently some of the stuff
23was inaudible, so I don't know the validity of
24everything that was said because they couldn't
25transcribe it from the audio to paper, accurately.
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1You can see, "(inaudible)" there.
2 Q. Where it says, "(inaudible)",
3you didn't say "inaudible."
4 A. No.
5 Q. It is obviously the person
6who transcribed it couldn't hear what you said and
7has said, "inaudible."
8 In terms of what is recorded as
9your statement, is there anything that you have
10concerns about or disagree with?
11 A. No.
12 Q. I gather that you have been
13interviewed by Commission counsel prior to today,
14to prepare for your testimony?
15 A. Yes.
16 Q. When did that occur?
17 MS RICHARDS: I am not sure how
18that is relevant.
19 THE CHAIRPERSON: Can I hear your
20basis?
21 MS RICHARDS: I do have an
22objection. We have an arrangement with Commission
23counsel that whether or not witnesses choose to
24attend a voluntary prehearing interview is entirely
25confidential.
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1 MR. CHAMP: I am not party to
2that. I don't see how that would prohibit this
3witness from testifying to that.
4 MS RICHARDS: How and when she met
5with Commission counsel is entirely irrelevant to
6the matters before you and to the facts of the
7complaint.
8 MR. CHAMP: The purpose of the
9introduction of Exhibits P-20 and P-21 was to
10demonstrate the concern that witnesses were being
11interfered with or perhaps intimidated to
12cooperating with the Commission. Prior to October
132007, to my knowledge, no individuals or
14prospective witnesses would agree to speak to the
15Commission. In our view, that remains a live,
16relevant issue; that is why those exhibits were
17entered, to my understanding. As I indicated in my
18remarks this morning, that is an issue that I
19intend to pursue with a number of the witnesses who
20appear here today.
21 For that reason, in my view, it is
22relevant to know when this witness agreed to start
23-- agreed to cooperate and be interviewed by
24Commission counsel. I do not intend to ask her
25questions about her own legal advice about that
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1issue. But Mr. Lunau is not her counsel and I
2can't understand how that would be covered by any
3privilege.
4 MR. LUNAU: The purpose of the
5interviews was to allow Commission counsel to meet
6with witnesses, determine what kind of evidence
7they could offer, how they could help the
8Commission with its hearing. It was subject to
9certain understandings between ourselves and the
10witnesses through their counsel.
11 The interviews are confidential.
12We have told the parties at our monthly updates in
13a general way that interviews were occurring but no
14specifics have been disclosed about who was being
15interviewed or when they have been interviewed or
16what the substance of those interviews was.
17 THE CHAIRPERSON: You said the
18subject matters?
19 MR. LUNAU: That is right.
20 THE CHAIRPERSON: When was the
21interview, and what else?
22 MR. LUNAU: The subject matters of
23the interview, who was interviewed, the dates of
24the interviews, have not been disclosed.
25 THE CHAIRPERSON: The purpose
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1behind that?
2 MR. LUNAU: Behind the interviews?
3 THE CHAIRPERSON: No, I know the
4purpose behind the interviews, but for the
5agreements, that none of this information would be
6--
7 MR. LUNAU: There were conditions
8--
9 THE CHAIRPERSON: Conditions?
10 MR. LUNAU: -- on which witnesses
11agreed to be interviewed that were discussed
12between us and their counsel, and they were agreed
13to, so the interviews could proceed.
14 MR. CHAMP: I am totally confused,
15Mr. Chair. I will say that I was involved in the
16process prior to Mr. Lunau and yourself. I do
17recall there were discussions in September of 2007
18at which Ms Richards was present, Mr. Wirth as
19well, where there were concerns raised by
20department of justice counsel about what might be
21said in interviews and how interviews might be
22conducted and so forth, by Commission counsel.
23 I am not looking now to ask about
24the content, but I fail to understand how the date
25of the interview and why the interviews took place
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1could in any way be confidential. I wasn't party
2to that agreement; I don't see why I should be
3bound by it.
4 THE CHAIRPERSON: Why would the
5date be so important?
6 MR. CHAMP: To follow what
7happened. Perhaps I could ask Mr. Lunau why P-21
8is even in the record. The issue is that Mr.
9Colvin raised his concern that he and other
10witnesses were being pressured not to cooperate
11with the Commission. The fact of the matter is
12that prior to October --
13 THE CHAIRPERSON: Excuse me.
14Should we be excusing the witness?
15 MR. CHAMP: Yes, it might be --
16 THE CHAIRPERSON: It might be the
17best thing --
18--- REPORTER'S NOTE: The witness withdraws
19 MR. CHAMP: The fact of the
20matter, Mr. Chair, is that all cooperation in my
21view and in the view of the previous Chair between
22the Military Police Complaints Commission and the
23department of justice ended abruptly in January of
242008; no further documents were provided and no
25more access to witnesses was allowed.
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1 This situation continued until
2these hearings, through the spring of last year of
32009 and up into October of 2009. At that point,
4there were 25-odd witnesses who were subject to
5subpoena, all Canadian government officials or
6military officers of some description or other, all
7of whom with one sole exception, that of Mr.
8Colvin, were refusing to be interviewed by the
9Commission, to cooperate with the Commission.
10 When Mr. Colvin obtained
11independent counsel, he then indicated he wished to
12cooperate with the Commission, and that caused a
13variety of kerfuffles that I don't need to get into
14right now. But the concern raised at that time and
15it is my understanding remains a concern is whether
16witnesses were being pressured not to cooperate
17with the Commission and who was applying such
18pressure?
19 It is my understanding that is why
20Exhibits P-20 and P-21 have been introduced into
21the record and, as I indicated this morning, this
22is an issue that I intend to pursue throughout the
23course of the proceeding as I view it as one of the
24systemic elements to this entire issue.
25 I will conclude to what I
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1understand, right now: I am hearing now for the
2first time that there is some agreement between
3Commission counsel and counsel for some or perhaps
4all of the witnesses that they would not disclose
5the dates of the interviews? I wasn't a party to
6that and it makes no sense to me why the date has
7to be confidential.
8 THE CHAIRPERSON: In my
9understanding, their counsel was a part of that.
10 MR. CHAMP: I wasn't a party to
11it, so, I mean --
12 THE CHAIRPERSON: You are not
13their lawyer, though.
14 MR. CHAMP: That is right, and I
15am asking her questions. If she is here and if it
16is relevant to the issue of the integrity of the
17administration of this process, then I should be
18allowed to ask that question and the question
19should be answered. I don't see how I should be
20bound by that agreement or my client should be
21bound by said agreement.
22 THE CHAIRPERSON: Before I go to
23Ms Richards, Mr. Wallace, do you have anything?
24 MR. WALLACE: My client was not in
25receipt of this letter. I am out of it on this
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1one.
2 THE CHAIRPERSON: You are fine,
3thank you. You and your team?
4 MR. WALLACE: Yes.
5 THE CHAIRPERSON: Ms Richards?
6 MS RICHARDS: Mr. Lunau has
7something to say.
8 MR. LUNAU: Yes. With respect to
9why Exhibit P-21 was filed, the history behind that
10you may recall is it had been tendered for filing
11back in October. At that time, there was an
12objection to it being filed on the basis of a claim
13of solicitor-client privilege. Those issues were
14addressed by the parties through written
15submissions.
16 Subsequently, the government
17notified us that it withdrew its objections and
18asked that if the letter be filed it be filed with
19-- sorry, if Exhibit P-20 be filed, and that was
20the letter from Ms Bokenfehr that originally
21sparked the objection, that it also be filed with
22what is now P-21, which was Mr. Prefontaine's
23original letter dated July 28, 2009.
24 The reasoning was simply that it
25had been tendered for filing, was objected to, the
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1objection was withdrawn, so the letter was refiled
2or was filed. As Mr. Prefontaine requested, it was
3tendered for filing with his original letter of
4July 28.
5 THE CHAIRPERSON: Correct.
6 MR. CHAMP: That is inaccurate.
7With all due respect, Mr. Prefontaine asked that it
8not be filed. He said this is no longer an issue,
9and the issue is about whether it could be filed or
10not be filed. They withdrew their objection and
11they said it should not be filed at that point.
12The Commission counsel said sorry, it is going to
13be filed. The issue then is why is it filed, not
14over the objection about whether it should or
15should not be filed. It is my understanding, it
16has always been my understanding, that the issue of
17the letter was to address the concern that
18witnesses were being interfered with.
19 I would like to hear from
20Commission counsel. Is that not a concern for
21present Commission counsel?
22 MR. LUNAU: Is what not a concern?
23I mean, I don't understand what this debate is
24about, frankly. If you have an issue with respect
25to the process, then pursue it. We have filed the
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1letters, you can make whatever use of them you
2wish.
3 MR. CHAMP: But why were they
4filed, Mr. Lunau?
5 THE CHAIRPERSON: No. Speak --
6 MR. CHAMP: Do you have an
7understanding as to why they were filed?
8 THE CHAIRPERSON: Speak to me.
9 MR. CHAMP: Sorry. Mr. Chair, I
10am wondering if I could get from Commission counsel
11their understanding of why the letter was filed.
12That might assist me in going forward.
13 MR. LUNAU: Would you rather we
14did not file it? We filed it so the record would
15be complete. What do we intend to do with it? At
16the moment, I don't intend to make an issue out of
17it. If you intend to make an issue out of it, that
18is your prerogative. They are part of the record,
19you can put questions to the witness.
20 This started with a discussion
21about the interviewing of witnesses. Somehow it
22has now turned into a challenge as to why have we
23filed these letters. I mean, would you be better
24off if we had not filed them?
25 MR. CHAMP: With the greatest of
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1respect to my friend, I am not sure if I follow the
2position, Mr. Chair. It may be helpful for others
3to review P-20 to understand what the concern was
4when that information was sought to be filed.
5 The fact of the matter is no one
6from the Government of Canada would cooperate with
7this Commission until some unknown date. It is our
8view that this should be a relevant issue for this
9Commission.
10 Mr. Chair, I will remind you that
11in, I believe, its 12-year history this body,
12established under Part V of the National Defence
13Act, this is only the second public interest
14hearing ever called, the second ever. I believe it
15was the view of the previous chair that there were
16serious concerns about how the Canadian Forces and
17the Government of Canada responded to that. We
18view that as an issue that persists and it is an
19issue that we intend -- apparently Commission
20doesn't -- to lead evidence on throughout this
21hearing and make submissions at the end because, in
22our view, this is an important body. It is
23civilian, one of the only oversight bodies of the
24Canadian Forces and of the Canadian Forces Military
25Police. It was created in the wake of the Somalia
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1Inquiry; it is a very crucial body.
2 To the extent that its processes
3might be interfered with, we intend at the very
4least to lead evidence on that and make submissions
5on at the end of the hearing.
6 THE CHAIRPERSON: Ms Richards?
7 MS RICHARDS: Obviously, my friend
8makes some broad and very strong statements to
9which we object very strongly. I think that
10probably goes without saying.
11 Having said that, I do want to
12correct some of the perhaps misapprehensions that
13he may leave you with that there has been no
14cooperation. As you know, the Commission during
15the investigation stage interviewed over 33
16witnesses. In fact, many of the witnesses who are
17appearing before you today, including Sergeant
18Utton, were interviewed by Commission investigators
19and those transcripts are before you. If you want
20to know when Sergeant Utton first spoke to the
21MPCC, it was on January 22, 2008 and you have
22before you those transcripts.
23 In terms of what went on and why
24the letter was filed with Ms Bokenfehr, I think we
25have made our submissions on the record; I don't
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1intend to recreate those and you do not want me to.
2 I would agree with my friend that
3we stated and it was our position that it was not
4necessary to file those letters before the
5Commission; the Commission found otherwise.
6 We do not think it is a legitimate
7or real issue that my friend has raised. I can
8tell you that we have and continue to enjoy a good
9working relationship with Commission counsel. I
10have not received any information from Commission
11counsel that he currently or his team has a current
12concern about the level of cooperation that he is
13receiving from the Government of Canada, or about
14this very serious allegation that my friend has
15made about interference of witnesses.
16 He said he understood that this
17remains a concern; that is certainly not any
18information that has been communicated to us.
19 THE CHAIRPERSON: Mr. Champ, if we
20boil this down, the issues of the letters, they
21have been filed, and what happens in terms of them
22and the weight that is applied to them is a whole
23different story. That is another matter for
24another day, potentially, to discuss those
25exhibits.
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1 In terms of you are looking for,
2if I could narrow this down, you want to know the
3dates of the interviews. You feel entitled to know
4that? Can I narrow it down to that? Close?
5 MR. CHAMP: Yes, I am going to ask
6what were the dates of the interviews. I intend to
7ask the witness if she was asked to be interviewed
8in the fall and whether she agreed to that or not.
9 In terms of what my friends have
10indicated to you, the best I can do, Mr. Chair, is
11commend to you the transcripts of October 14, 2009
12and December 10, 2009. I assure you I wasn't the
13only one of the view that there hasn't always been
14full cooperation from the Government of Canada; it
15is not me making this up.
16 THE CHAIRPERSON: I have read
17those transcripts. You want to ask if the witness
18was interviewed in the fall? What else do you want
19to ask?
20 MR. CHAMP: I want to ask her if
21she was asked to interview in the fall. I presume
22she will probably say no. I will ask her why she
23didn't participate. She will indicate, I presume,
24that she did so on the advice of her counsel. I
25will ask her --
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1 THE CHAIRPERSON: Slow down, one
2second -- participate? Why she did not
3participate?
4 MR. CHAMP: Why she didn't
5participate, and then I will ask her when she was
6interviewed by Commission counsel.
7 THE CHAIRPERSON: On these points,
8what other questions did you have on this issue
9that we are dealing with?
10 MR. CHAMP: I will ask her if
11anyone suggested to her that she should not
12cooperate with the Commission and, if so, why.
13 THE CHAIRPERSON: Anything else?
14Is that about it?
15 MR. CHAMP: That is it.
16 THE CHAIRPERSON: Of those
17questions, Ms Richards and Mr. Lunau, which of
18those questions breach your agreements that you
19have had, or the understanding between witnesses
20and counsel?
21 MS RICHARDS: What I would say is
22this: Whether or not a witness chooses to attend a
23prehearing interview, it is entirely voluntary.
24 THE CHAIRPERSON: Yes.
25 MS RICHARDS: If Mr. Champ is
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1trying to infer something improper for the witness
2refusing to attend that, that is our concern. If
3he is asking this panel to draw some kind of
4negative inference against a witness who exercised
5their rights, their constitutional rights not to
6attend a voluntary interview, I have a real problem
7with that.
8 If the nub of what he wants to ask
9is, "Has anybody ever suggested to you that you
10should not cooperate with the Commission?", I have
11no problem with him asking that question. He
12doesn't need to ask the remainder of the questions.
13He can ask, if she has been asked or felt pressured
14not to cooperate with the Commission. And I think
15that gets him where he wants to go.
16 THE CHAIRPERSON: Mr. Lunau?
17 MR. LUNAU: I have no difficulty
18if my friend wants to ask that question, if Ms
19Richards doesn't object to it.
20 THE CHAIRPERSON: Which is the
21one? Repeat that again that you were saying, Ms
22Richards?
23 MS RICHARDS: He can ask if anyone
24has suggested or encouraged her not to cooperate
25with the Commission.
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1 THE CHAIRPERSON: Any further
2comments or submissions?
3 MR. CHAMP: No.
4 THE CHAIRPERSON: Go ahead.
5 MR. CHAMP: Yes. I don't know if
6I have heard any reason why we can't know the date
7of the interview. Frankly, in my view, I think it
8only supports my submission, but --
9 MR. LUNAU: There are certain
10things that are the workings of the Commission that
11are carried out by Commission counsel. This is the
12Commission's inquiry; we are the ones who decide
13who we are going to summons, we are the ones who
14issue the summonses, we are the ones who try to
15interview the witnesses that we have summonsed.
16 Now, frankly, I don't know what
17the hang-up is about the dates. I don't see what
18that is relevant at all. What my friend wants to
19know is, "At any time were you ever told or advised
20not to cooperate?" I don't see what the date of an
21interview has to do with that.
22 If the Commission decides
23otherwise or Ms Richards thinks it is relevant in
24some way, I am in your hands. But what I am
25concerned about is protecting what we do as
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1Commission counsel to prepare this case for
2presentation to the panel. There are certain
3things that are part of the workings of the
4Commission in terms of dealing with witnesses.
5 MS RICHARDS: I would only add to
6that, members of the panel, that, in the opening,
7one of the prevailing issues that you have said, or
8concerns that would guide this Commission in how
9they handled this hearing was respect and dignity
10to the witnesses. Putting each and every witness
11on the stand and allowing Mr. Champ to cross-
12examine them about when they met with Commission
13counsel, on what date and why, does not respect the
14dignity of those witnesses who are coming before
15this Commission.
16 THE CHAIRPERSON: We are going to
17take five minutes, to have a discussion with my
18partner here. Actually, at five o'clock, we will
19be back.
20--- Short recess at 4:50 p.m.
21--- Upon resuming at 5:00 p.m.
22 THE CHAIRPERSON: If I may,
23briefly, we have had some discussions relative to
24this matter. Certainly we recognize, even going
25back to the -- from my point of view, the
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1transcripts of the testimony that was on the 10th
2and the 14th, this issue of cooperation of
3government was raised back then.
4 I can also say that certainly the
5issue relative to cooperation between MPCC, the AG,
6or the government, and counsel has certainly been a
7dynamic situation. We have seen many changes in
8the last several months, much of which I would say
9are very positive in terms of information and such.
10 In regards to the issue of the
11questions regarding the witness that you are
12looking at, Mr. Champ, whether or not you agree or
13disagree, the witnesses have come forward here and
14they have that right to independence in terms of
15they can consent to an interview if they want or
16not; that is entirely up to their right. They
17could come here without interviews or they could
18come with six interviews. They could come in cold.
19The issue of the interviews I think is something
20that that witness holds the cards to.
21 Having said that, the witnesses
22have come forth here with some understandings that
23between their counsel, counsel for the government
24and counsel for the Commission, that they would not
25deal with the issue of the subject matter, when it
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1was and who was interviewed and who was present at
2the interviews, and not to disclose those dates --
3and that is the "who."
4 I am going to, and this panel is
5going to continue to treat that witness with the
6agreement and the understanding and the respect
7that they have come forward under those conditions.
8 Now, having said that, as we move
9forward, this issue may not die in terms of if
10counsel can ever reach some agreement as to the
11future in terms of how witnesses believe they are
12coming forward and whether counsel or not can reach
13different agreements in terms of dates and whatnot,
14but at this stage, I am going to say no. I am
15going to say that you cannot ask that question.
16 To go back to the issue of
17government interference, I will say go ahead and
18ask the question: Did anyone suggest that he or
19she should not cooperate and if so, why? -- you can
20ask that question. But I am going to restrict you
21from asking the questions relative to if she was
22asked to participate in an interview in the fall,
23why she didn't participate or, if she did, and when
24she was interviewed by counsel, so around those
25issues.
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1 But the issue going to the heart
2of where you are talking about some of the facts
3around the lack or threatening or the cooperation,
4you asked that, and I think everybody here is
5agreed that that question can be asked. And how
6that gets pursued into the future will be another
7story in terms of other witnesses.
8 But I would ask that counsel
9consider just revisiting that kind of understanding
10for witnesses so that we may or may not run into
11this again with other witnesses. Having said that,
12we are prepared to have the witness come back in
13and you can restrict your questions on that
14particular point to that question.
15--- REPORTER'S NOTE: Witness returns
16 THE CHAIRPERSON: I apologize for
17the delay in keeping you, but we had a couple of
18issues that we had to clear up regarding the issue.
19 Mr. Champ, if you can pick it up
20from where we were?
21 MR. CHAMP: Thank you, Mr. Chair.
22In these circumstances, we have no further
23questions for this witness.
24 THE CHAIRPERSON: Okay. Mr.
25Wallace?
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1 MR. WALLACE: Yes, thank you, Mr.
2Chair.
3CROSS-EXAMINATION BY MR. WALLACE:
4 Q. Sergeant Utton, my name is
5Mark Wallace. I am here representing Retired Navy
6Captain Steven Moore who, at the time you were in
7theatre was the Canadian Forces provost marshal. I
8am sort of setting up who I am and why I am asking
9questions.
10 I only have a couple of questions
11for you. You indicated in your evidence in chief
12that during your training, which I presume was your
13predeployment training, one of the things that was
14brought home to you was that the detainees were to
15be treated with respect, correct?
16 A. Yes.
17 Q. Yes. Throughout your
18training, the fair and humane treatment of
19detainees was a very high priority, and that was
20brought home to you, correct?
21 A. Yes.
22 Q. While in theatre, those views
23did not change, correct?
24 A. No.
25 Q. It was still a very high
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1priority?
2 A. Yes.
3 Q. I want to refer you to, and
4you referred to it earlier, in Volume 2 at tab 2,
5the Theatre Standing Order 321 that was in place on
6May 27, 2007. That is the document that Mr. Lunau
7took you to earlier this afternoon.
8 I want to draw your attention to
9the second page, paragraph no. 6. I want to read a
10passage to you and get your comments on it, please.
11I am referring you to the last sentence of
12paragraph 6, the paragraph entitled, "Commander's
13Intent." I will read this to you:
14 "Under the Third Geneva
15 Convention, the treatment of
16 detainees is a national
17 responsibility and it is of
18 the utmost importance that
19 Canadian Forces personnel
20 deal with detainees in a
21 manner that reflects credit
22 on Canada at all times."
23 Do you see that?
24 A. Yes.
25 Q. Is it your belief based on
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1your experience in theatre that Canadian Forces
2personnel acted in a manner consistent with this
3set of principles?
4 A. Yes.
5 MR. WALLACE: Thank you. Those
6are my questions.
7 THE CHAIRPERSON: Go ahead.
8 MS RICHARDS: Thank you.
9CROSS-EXAMINATION BY MS RICHARDS:
10 Q. Sergeant, I have a few
11questions that I wanted to go back on, to follow up
12on and clarify from the testimony that you gave
13earlier.
14 My friend, Mr. Champ, had asked
15you about your access to reports from foreign
16affairs, prison reports from foreign officials who
17had gone in. You referred to that information as
18sensitive and would have been provided on a need-
19to-know basis. I am wondering if you could
20explain, particularly given your experience as a
21security officer, what you mean by sensitive
22information and what you mean by, "on a need-to-
23know basis"?
24 A. That information, if it was
25related, would go through the task force commander
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1at a higher level and it would more than likely
2have been classified, at least secret, and that
3anything classified as sensitive, if -- to get out
4to people that are authorized with the need to
5know, it could be exploited by a foreign
6intelligence services, or such, or cause
7detrimental damage to the national security of
8Canada; that would be sensitive, classified.
9 Q. If something was classified
10as secret, am I correct that you would have to have
11the requisite security clearance at a secret level
12to receive that information?
13 A. Yes, and the need to know.
14 Q. And the need to know. Can
15you explain? We always talk about the need to
16know; are you able to explain other than the
17obvious what that means?
18 A. That, if it was classified
19information, the appropriate security clearance
20would be required and that you would have to have a
21direct need to know this information; it is not
22something that goes out based on your position or
23title. You would actually have the need to know to
24have access to the information. Just based on
25people's positions, they are not given all
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1classified information. It is a need to know.
2 Q. Thank you. You also
3testified and spoke about the detainee officer. Am
4I correct that the detainee officer was not a
5Military Police member?
6 A. No.
7 Q. Sorry, I asked --
8 A. Sorry, you are correct.
9Sorry, he was not an MP member.
10 Q. You were asked some questions
11about your training predeployment and about the
12Geneva Convention. Isn't it true that Geneva
13Convention is part of the training, the basic
14training for all Military Police?
15 A. I believe it is every soldier
16deploying is given briefings on it, and it is part
17of the -- you get Geneva Convention and law of
18armed conflict training in leadership levels when
19you progress through your training cycle.
20 Q. You had also refereed to the
21fact, very early on in your testimony this
22afternoon, that you knew that NIS were conducting
23investigations. Am I correct that you were
24referring to the fact that they were conducting
25investigations regarding detainees?
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1 A. I knew something. They were
2doing investigations with something because they,
3now Chief Warrant Officer Watson would come and
4take detainee files, just take them, or say, "I
5need these detainee files," and we didn't ask
6questions. We would know it was -- there was
7something. I assumed there was an investigation
8ongoing.
9 Q. Thank you. Finally, the last
10point I wanted to clarify was about the article by
11Scott Taylor in, "Esprit de Corps" that you had
12referred to?
13 A. Yes.
14 Q. Do you have your transcripts
15in front of you, still?
16 A. Yes.
17 Q. Turn to page 101. I am going
18to wait a minute so that the members can --
19 Look partway down, at line 11.
20You say here:
21 "Because I can recall reading
22 in the Esprit de Corps
23 magazine about Scott Taylor
24 and everything. And actually
25 he had some photos in there
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1 and there was actually our
2 first detainee to be
3 transferred, his photo was in
4 there and he is sitting there
5 and he looked fine to me, in
6 fact, a little smile on his
7 face. So, I mean, Scott
8 Taylor went there
9 independently on his own. He
10 didn't get the Canadian Armed
11 Forces to take him, right? --
12 so he went in and did that
13 article on his own and he was
14 saying, you know, if the
15 deals are not nice, but it is
16 what they are ... and I don't
17 recall him saying that they
18 were being tortured in
19 there."
20 Does that accurately reflect your
21recollection of that article that you were talking
22about?
23 A. Yes.
24 MS RICHARDS: Thank you. Those
25are all my questions.
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1 THE CHAIRPERSON: Mr. Lunau?
2 MR. LUNAU: Nothing further, sir.
3 THE CHAIRPERSON: Do we have
4anything further for this witness, then? I wish to
5thank you very much for your time and appreciate
6you being here. I know the lateness of the day and
7the hour in which we were able to structure this,
8so, I thank you. You are free to leave.
9 I want to briefly discuss for
10tomorrow morning. We are in a position to, Mr.
11Lunau, for a second witness, first thing tomorrow
12morning?
13 MR. LUNAU: That is right. The
14witness tomorrow will be Captain Bouchard; the same
15arrangements will apply as for Sergeant Utton.
16Captain Bouchard will be testifying in French.
17Appearing tomorrow as Commission counsel will be
18Danielle Barile(ph) and Nigel Wershman(ph).
19 THE CHAIRPERSON: Arrangements
20have been made for the timing, and that? Mr.
21Bouchard will be in here? I guess you have done
22that?
23 MS RICHARDS: I will. Because it
24is in French, it is also a different member of our
25team. It will be Nathalie Benoit who will be here
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1tomorrow. I have to go and speak to Ms Benoit to
2bring her up to speed. But we will coordinate all
3of that.
4 THE CHAIRPERSON: Okay. Yes, and
5we have translation services for tomorrow, as well.
6Mr. Berlinquette will lead the French portion for
7tomorrow.
8 Having said that, we are going to
9start at nine o'clock? The witness can be here for
10then?
11 MS RICHARDS: As far as I know. I
12have to go back to the office and double-check
13everything.
14 THE CHAIRPERSON: How is our court
15reporter for nine o'clock tomorrow. We are all set
16for tomorrow?
17 THE REPORTER: We are supposed to.
18 THE CHAIRPERSON: Nine o'clock.
19We will adjourn till nine o'clock tomorrow morning.
20Thank you.
21--- Whereupon the hearing adjourned at 5:17 p.m.
22 on Tuesday, April 6, 2010, to be resumed
23 at 9:00 a.m. on Wednesday, April 7, 2010.
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1
2 I HEREBY CERTIFY THAT I have, to the best
3 of my skills and abilities, accurately recorded
4 by Stenomask and transcribed therefrom, the
5 foregoing proceeding.
6
7
8 Marc Bolduc, Stenomask Reporter
9
10
11 and
12
13 I HEREBY CERTIFY THAT I have, to the best
14 of my skill and ability, accurately recorded
15 by Stenomask and transcribed therefrom,
16 the foregoing proceeding.
17
18
19
20 _______________________________
21 Suzanne Hubbard, Stenomask Reporter
7
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