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Military Police Complaints Commission

2 3 4 AFGHANISTAN PUBLIC INTEREST HEARINGS 5 held pursuant to section 250.38(1) of the National Defence 6 Act, in the matter of file 2008-042 7 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 TRANSCRIPT OF PROCEEDINGS 14 held at 270 Albert St. 15 Ottawa, Ontario 16 on Monday, April 13, 2010 17 mardi le 13 avril 2010 18 19 VOLUME 5 20 21BEFORE: 22 23Mr. Glenn Stannard Acting Chairperson 24 25Mr. R. Berlinquette Commission Member 26 27Ms. R. Cléroux Registrar 28 29 30APPEARANCES: 31 32Mr. Ron Lunau Commission counsel 33Ms. Catherine Beaudoin 34 35Mr. A. Préfontaine For Maj Bernie Hudson, Maj 36Mr. V. Wirth Michel Zybala, Maj Ron Gribble, 37Ms. H. Robertson LCol (Ret'd) William H. Garrick, 38 CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner 39 40Ms. Grace Pastine For Amnesty International and 41Me S. Jodoin ForB.C. Civil Liberties Association 42 43Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM 44 45Mr. Owen Rees For Mr Richard Colvin 46 47 A.S.A.P. Reporting Services Inc. © 2010 48 49 200 Elgin Street, Suite 1105 333 Bay Street, Suite 50 900 51 Ottawa, Ontario K2P 1L5 Toronto, Ontario 52 M5H 2T4 53 (613) 564-2727 (416) 861-

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1 2 (ii) 3 4 5 INDEX 6 7 8 9 10 11AFFIRMED: RICHARD COLVIN 12 13 Examination by Mr. Lunau 14 Cross-Examination by Ms. Pastine 15 Cross-Examination by Mr. Wallace 16 Cross-Examination by Mr. Préfontaine 17 18 19 20 ********

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Ottawa, Ontario

2--- Upon resuming on Tuesday, April 13, 2010 3 at 9:05 a.m. RICHARD COLVIN THE CHAIR: Thank you. Please be

4AFFIRMED: 5 6seated. 7 8 9Chair.

Good morning. MR. LUNAU:

Mr. Lunau.

Good morning, Mr.

Our next witness will be Mr. Colvin,

10Richard Colvin, if we could bring him in. 11 THE CHAIR: And we have one new

12counsel with us today? 13 14Chair. 15 MR. REES: Good morning, Mr.

Owen Rees, I am counsel to Mr. Colvin. THE CHAIR: Thank you.

16--- Richard Colvin enters hearing room. 17EXAMINATION BY MR. LUNAU: 18 19 20 21been affirmed? 22 23 A. Q. Yes, I have. Okay. Now, I would like to Q. A. Q. Good morning, Mr. Colvin. Good morning. I understand that you have

24begin by reviewing the positions you've held at the 25Department of Foreign Affairs and your role in 6 7 8(613) 564-2727

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I understand that you have been a

2foreign service officer with the Department of 3Foreign Affairs since April 1994? 4 5 A. Q. That's correct. And you have had five

6overseas assignments in Sri Lanka, Russia, the 7Palestinian territories and Afghanistan? 8 9 A. Q. That's correct. And you presently are the

10Deputy Head of the Intelligence Liaison Office at 11the Canadian Embassy in Washington? 12 13 A. Q. Yes. Okay. And I also understand

14that your assignment in Afghanistan was your third 15in a country confronted with an insurgency? 16 17 A. Q. That's correct. And that you served in

18Afghanistan from late April 2006 to early October 192007? 20 21 A. Q. Yes. And your first capacity in

22Afghanistan was as the senior DFAIT representative 23at the Provincial Reconstruction Team headquarters 24in Kandahar City? 25 6 7 8(613) 564-2727 A. Yes.

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You were there for a period

2of approximately two months? 3 4 A. Q. That's correct. And then you became head of

5the political section and chargé d'affaires at the 6Canadian Embassy in Kabul? 7 8 A. Q. Yes. Now, Mr. Colvin, you

9previously provided an affidavit to the Commission, 10which is in the blue book in front of you, and it's 11been filed as Exhibit P-14. 12 13 A. Q. And it is tab 14.

Hmm-hmm. In paragraph 13 of your

14affidavit, you describe your position at the 15Provincial Reconstruction Team as political 16director. 17 Could you tell us what that

18position entailed? 19 20was the senior. A. Sure. The political director

At the time, it was the only DFAIT

21officer in the PRT, and the PRT at the time was, I 22think it is fair to say, the whole-of-government 23vehicle for Kandahar, meaning that every government 24department represented in Kandahar had officials or 25staff at the PRT. 6 7 8(613) 564-2727 And those were intended to

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1mobilize all the different aspects of Canadian 2government power in the interests of stabilization 3and reconstruction. 4 So in that framework, there is a CIDA implemented its

5division of responsibility. 6projects.

The RCMP and other civilian police were The military elements

7training the Afghan police.

8of the PRT had a range of functions from civil 9military engagement to intelligence and some forms 10of engagement with Afghan leaders. 11 And we did the rest, and also

12tried to understand how the different pieces fit 13together. So it was a lot of engaging with

14Afghans, with local officials, with the governor, 15with provincial council members, with 16representatives of non-governmental organizations, 17with internationals, for example, from the United 18Nations, with poppy eradication officials. 19 We talked to the military, talked

20to the police, and tried to build a picture of what 21was happening in Kandahar. 22 Then as part of that

23responsibility, we would receive instructions from 24DFAIT headquarters and report back to DFAIT 25headquarters and other parts of the Canadian 6 7 8(613) 564-2727

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So a lot of the function was gathering

2information, feeding that information back to 3relevant parts, excuse me, of the Canadian 4government and acting in the field to try to fix 5some of these problems. 6 Q. Did the Canadian Forces have

7a representative at the PRT? 8 A. Yes. There was at the time The commander of the He had a deputy, who

9about 80 uniformed soldiers. 10PRT was a Lieutenant-Colonel.

11was a major, and then there was a range of other 12soldiers in different -- different elements. They

13weren't combat forces, per se, but there was, for 14example, a quick reaction force which would be sent 15out from the PRT if there had been an IED attack. 16There would be civil military engagement officers, 17as I mentioned. There was maybe five or six

18different components of the PRT itself. 19 Q. Okay. Now, could you tell

20us, in terms of PRT detainees that were taken by 21the Canadian Forces, to what extent did your 22mandate, your personal mandate at the Provincial 23Reconstruction Team and later at the embassy in 24Kabul, include reporting on detainee issues? 25 6 7 8(613) 564-2727 A. At the PRT, it wasn't an

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1explicit part of my mandate, but my mandate was 2very open-ended. I wasn't really given specific

3marching orders before going to the PRT, so it was 4really left to my discretion to identify what was 5important, what Ottawa needed to know, and, if 6there were problems, what those problems were. 7 So detainees was one of those

8issues that seemed to be problematic, and so I 9focussed on it at the PRT. In Kabul, detainees

10were more an explicit part of the mandate, and we 11looked at it in the embassy in Kabul from two 12different directions. One was a human rights

13direction and one was what we call pol/mil, pol/mil 14being a sort of diplomatic function, the interface 15between the military and diplomacy, if you like. 16 That would include everything from

17police reform to deploying Afghan army soldiers to 18the south, to detainee issues, anything -- civilian 19casualties, anything that fit within that sort of 20general basket of issues. 21 Q. Now, you said in paragraph 21

22of your affidavit, you said that for the purposes 23of the flow of information, there is no separation 24between DFAIT and DND. 25meant by that? 6 7 8(613) 564-2727 Can you explain what you

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Yes.

On a very simple level,

2it meant that we sent them reporting and they sent 3us reporting. 4 More specifically, we had two ways

5of -- actually, I guess three ways of sending 6information out. Two of those were on the

7classified system, which is called a C4 system, and 8the third way would be just using regular emails on 9an Internet-based system. 10 Most messages would have gone on

11the C4, and there you could either just file off 12little emails, informal emails, to anyone who had 13an address, but more typically we would write 14formal reports and send those off, and those could 15go to any division, branch or individual in DFAIT, 16and also to a range of addresses of other 17government departments. 18 So DND had, you know, maybe 12 or

1915 different addresses on their address book, and 20so we could send our messages to any or all of 21those 12 to 15. CIDA has one address, and I think

22RCMP had one address, but in DND you could choose 23who to send the information to. 24 And they would receive these over

25C4 terminals in the appropriate places, and those 6 7 8(613) 564-2727

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1messages would get passed on to DND. 2 Q. Okay. Who would decide if an And we will come to a

3email was going to be sent?

4number of emails that you sent in a moment, but who 5would decide who the addressees would be? 6 7the email. A. That would be the drafter of

If you had a structure like in Kabul

8where maybe the head of mission is signing off, 9they may add some names or take some names out. 10But, typically, you would decide yourself who was 11an appropriate recipient who needed to get this 12information. It would include, for example,

13relevant embassies around the world. 14 So, you know, on Afghanistan

15issues, we would typically copy our mission in 16NATO, our mission in London because of the link 17with the UK, our embassy in the Hague because of 18the Dutch connection. 19 So you would sort of sit and think

20who might be interested in this, and then you would 21put them on the distribution list. 22 Q. Now, before you went to

23Afghanistan in April of 2006, did you have any 24previous experience or background with Afghanistan? 25 6 7 8(613) 564-2727 A. No, none whatsoever.

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Okay.

So when you first

2arrived there, what did you do to educate yourself 3about the issues with the government mission in 4Afghanistan? 5 A. Well, I began trying to meet We were limited in our

6as many people as I could. 7ability to get out.

After my colleague, Glynn

8Barry, was killed, travel restrictions became very 9strict, so you had to petition headquarters for 10permission to leave the base, which was granted, 11but you had to give them a very solid reason. 12 But, fortunately, a lot of Afghans So there was a constant

13would come on to the PRT.

14flow of all kinds of Afghans, and so I would meet 15with them. 16military. I spent a lot of time with our We had an operations centre at the PRT.

17I spent time with non-governmental officials who 18would also come. We had a regular meeting each

19week which we hosted at the PRT with 20representatives of the international community in 21Kandahar, with the UN. 22 Yeah, we had a good range of

23sources, and we also had, without getting into 24details, intelligence information which was also 25available in large quantity, and of course 6 7 8(613) 564-2727

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1diplomatic reporting, so reporting coming from 2Kabul, from other embassies around the world, 3reports from the military, but mostly it was 4face-to-face contacts. 5 Q. Okay. Within the

6two-month-or-so period of time you were at the PRT, 7did you get out and have meetings with, I guess, 8first of all, key people either in Kandahar or the 9NDS or other agencies with whom the Canadian 10government was working? 11 12 13those for us? 14 A. Sure. I met many times with I met A. Q. Yes. And can you name some of

15the Governor of Kandahar, Asadullah Khalid. 16with the deputy director of the NDS.

I met with a

17number of provincial council members, you know, the 18heads of department, like Department of Education. 19Yeah, those are some of the more sort of senior 20people, and, you know, top policemen, I used to 21meet with them, army officers sometimes. 22 Q. Okay. While you were at the

23PRT, did you visit any local prisons? 24 25 6 7 8(613) 564-2727 A. Q. I did, yes. And which facilities?

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I went to just one.

It was

2Sarpoza Prison, which is the major prison in 3Kandahar. It is a regional facility. It holds

4several hundred people, and it is part of the 5Ministry of Justice. 6 Q. Now, when you say it is part

7of the Ministry of Justice, was that an NDS 8facility, or no? 9 A. My understanding is that most

10of it is Ministry of Justice, but that there is one 11element within it which is run by the NDS. 12 Q. Now, in the course of the

13meetings that you had in your visit to Sarpoza, how 14long did it -- first of all, did issues with 15respect to detainees begin to come to your 16attention? 17 18 19 A. Q. A. Only indirectly. Okay. Essentially, it was a site

20visit to look at the facility itself, what 21condition it was in, how many people were there, 22what was missing in the view of the warden and 23staff. The idea was that Canada might help

24renovate the facility, and the context of this was 25an initiative by one of our allies in the south -6 7 8(613) 564-2727

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1actually, two of our allies in the south, to 2possibly create either a new facility to hold ISAF 3detainees or to renovate one Afghan facility or 4part of an existing Afghan facility. 5 And the idea was that we would

6then bring it up to international standards and 7help manage it, embed corrections officers and 8management and human rights people inside the 9facility to take care of our collective pool of 10detainees. 11 Within the course of the visit, I We were

12didn't meet any detainees at Sarpoza. 13given a tour of the site.

They said, you know, We

14would like X, Y and Z, you know, more medicines, 15vocational facilities to be rebuilt, and there are 16cracks in the walls. 17 Q. It was that kind of tour. Okay. What about issues of

18notification of transfers of detainees by the 19Canadian Forces? During your time at the PRT, did

20notification issues come up? 21 22 A. Q. Yes, they did. And can you -- how long did

23it take before those issues came to your attention? 24 25 6 7 8(613) 564-2727 A. Q. About three weeks. Generally, what were the

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1notification issues that arose? 2 A. Well, the issues arose -- so

3as follow-up to the visit to Sarpoza, I realized 4from the trip it was impossible to tell what 5conditions were like for detainees, and so that was 6a missing piece of the puzzle. 7 So to try and get more information

8on that, I contacted the local office of the 9International Committee of the Red Cross, the ICRC. 10 The ICRC told us they were unable,

11because of confidentiality, to speak to the issues 12of conditions of detainees. However, they did have

13some complaints about how Canada was engaging with 14the ICRC, specifically complaints about 15notification. 16 Q. And were these complaints

17about notification a concern to you? 18 19 20 21to it. A. Q. A. Yes. Why? Well, there were two aspects

One was that the substance of the issue

22itself was troubling, and the other troubling 23aspect was how, I would say, upset the Red Cross 24were, which I was surprised at, given how important 25the Red Cross is as a partner for Canada. 6 7 8(613) 564-2727 They

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1were quite forceful in their comments on what was 2not working. 3 And, specifically, what was not

4working was that -- there were two main issues. 5One was timeliness of notification. 6was coming very late. Notification

Sometimes weeks and even

7months would pass before we would notify them after 8transferring a detainee. 9 Secondly, the information we were

10passing to the ICRC was inadequate, often just one 11name and maybe a village, but it was not enough for 12the ICRC to actually find these detainees. 13 So that was their main complaint,

14but because of these two problems, late 15notification, inadequate information, they were 16losing many, if not most, possibly all of our 17detainees and were unable to monitor them. 18 And this was troubling, because

19under, you know, our international laws, which 20provide a basis for Red Cross access, but also, in 21our December MOU, there was a specific provision 22that Red Cross should be able to monitor at any 23time. And obviously they couldn't monitor at any

24time, because we weren't telling them in time, and 25then some -- in many cases they couldn't monitor at 6 7 8(613) 564-2727

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1all, because they were unable to find our people. 2So it was quite a serious problem. 3 4second, please. 5 6 A. Q. Sure. If I could ask you to find Q. Just bear with me for a

7volume 2 in the books on your desk? 8 9 A. Q. Hmm-hmm. It is called "Main Book For And turn to tab 25.

10Witnesses", volume 2 of 5. 11 12 A. Q.

Sorry, 25? Sorry, tab 22. Now, you Is this the

13mentioned the December 2005 agreement. 14agreement you were referring to? 15 16 A. Q.

Yes, that's the one. Okay. And then there's also,

17at tab 23, a supplement to that arrangement. 18 19 A. Q. Correct. And at paragraph 2 of the

20supplement, the very last, it says: 21 22 23 24 25 6 7 8(613) 564-2727 "In addition to the International Committee of the Red Cross (ICRC) relevant human rights institutions within the UN system will be

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allowed access to visit such persons." (As Read)

And it also provides that

4representatives of the Afghanistan Independent 5Human Rights Commission and Canadian government 6personnel will have full and unrestricted access to 7any persons. 8 So was that the original

9monitoring regime for detainees who are 10transferred? 11 A. What you just read, Mr.

12Lunau, that's from the -- yeah, the supplementary 13arrangements. 14of 2007. So that didn't take effect until May

So up to that point, we were being

15governed by the December 2005 arrangements. 16 Q. I see. So under the December

172005 agreement, who had responsibility for 18monitoring what was happening to detainees after 19they were turned over to the Afghanistan 20authorities? 21 A. Well, it was exclusively the

22International Committee of the Red Cross, which 23is -- the way the arrangement is worded, the 24arrangement seems to confer on the ICRC the right 25-- it says: 6 7 8(613) 564-2727

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"The International Committee of the Red Cross will have a right to visit detainees at any time while they are in custody, whether held by the Canadian Forces or by Afghanistan." (As Read)

But the, you know, ICRC's rights

9to monitor, I believe, were also embedded in some 10international frameworks, irrespective of this 11arrangement. 12 Q. So do I understand correctly,

13then, that if there are issues with notification to 14the ICRC, that impaired their ability to follow up 15on the treatment of detainees? 16 A. Right. I mean, in a sense,

17and I am not a lawyer, but it seems to me that what 18we were doing was in fact infringing on a right 19which we have tried to confer on the ICRC. On the

20one hand, we tell them they have the right to 21monitor at any time. 22them from doing that. 23 This reference, for example, "ICRC In practice, we were blocking

24will have a right to visit detainees at any time 25while they are in the custody, whether held by the 6 7 8(613) 564-2727

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1Canadian Forces or by Afghanistan", no notification 2was given while we still had detainees. 3 Therefore, monitoring Canadian

4Forces' handling of detainees was completely 5impossible, because we didn't even tell the ICRC 6until after they had been transferred, rather than 7on detention, unlike our NATO allies, but even this 8idea that the ICRC can visit detainees at any time 9while they are in custody, that was also being 10prevented because of these consistent delays and, 11in some cases, quite extreme delays in notifying 12the Red Cross, to a point where they were, in many 13cases, unable to monitor at all, because they 14couldn't find our people because so much time had 15passed and because the information we were 16transferring was so inadequate. 17 Q. Okay. Now, the agreement is

18signed by the Minister of Defence and Chief of the 19Defence Staff. You made reference earlier to the

20Afghanistan mission being a whole-of-government 21mission. 22 I am not sure whether I have the

23terminology right, but was this agreement what you 24would call a whole-of-government agreement, or 25perhaps put the matter another way: 6 7 8(613) 564-2727 Who would have

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1been responsible for operationalizing this 2agreement? 3 A. Yes. I am not sure how the

4agreement or the arrangement was drafted and what 5the role of DFAIT was as opposed to DND, for 6example. I have read some accounts suggesting it

7was more DND than DFAIT, but I wasn't around and I 8obviously have no idea. 9 But in terms of how it was

10operationalized, it was, I would say, exclusively a 11DND arrangement and you could even say exclusively 12a Canadian Forces arrangement, but it was 13implemented by them and managed by them with, from 14my point of view, really no input from other 15departments, at least in the field. 16 And even getting information on

17the detainee system was quite difficult for people 18from other government departments. 19 So, in a sense, it wasn't really a

20whole-of-government arrangement in how it was 21implemented and operationalized. 22 Q. Okay. Now, between December

232005 and May 3, 2007, did the operation of this 24agreement run into obstacles or difficulties? 25 6 7 8(613) 564-2727 A. Could you explain a little

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Well, on May 3, 2007 you have

3a supplement to the agreement that changes the 4provisions for monitoring. 5 6 A. Q. Hmm-hmm. And the Canadian government I would

7assumes a more direct responsibility.

8infer, from that, that something about the December 92005 agreement wasn't working. 10wouldn't have been changed. 11 12 13 14 15working? 16emerged? 17 A. I think the main issue was A. Q. A. Q. Yes. Correct? Yes. So what -- why wasn't it Otherwise, it

What were the kinds of issues that

18the issue of -- well, there were two issues, which 19were related to each other, but were slightly 20different, or different aspects of the same issue. 21 First was the follow-up provision,

22the monitoring provision which, according to 23article 4 of the original agreement, it is the Red 24Cross's job to monitor. 25 6 7 8(613) 564-2727 That was conceptually badly flawed

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1from the beginning, not because the Red Cross does 2a bad job. 3job. As far as I know, they do a very good It's a very professional

They get access.

4organization, and they have been doing this for a 5long time. 6 The problem for us, of course, is

7the Red Cross is forbidden from informing us about 8problems they may identify in Afghan facilities. 9The only people they are allowed to notify are the 10Afghans themselves. 11 In other words, for our purposes,

12it was a source of no information on what was 13happening to our detainees. Therefore, in effect,

14there was no awareness on our part what was 15happening to these people we were handing over, in 16terms of monitors who were reporting back to us. 17 At the same time we were of course

18aware of the patterns of risk facing our detainees, 19which was information we got from a number of very 20credible sources. And so we were certainly aware

21that detainees in Afghan custody, especially in NDS 22custody, especially even in NDS custody in 23Kandahar, in our assessment, which was again based 24on a number of very good sources, detainees were at 25high risk of abuse and torture. 6 7 8(613) 564-2727

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So those were the two problems, I

2would say, the awareness on the ground, in the 3field, that bad things were happening to our 4people, but, at the same time, no mechanism to 5actually follow up on individuals, and, therefore, 6no specific information, if you like, on what had 7happened to Canadian-transferred detainees. 8 9 Q. A. Okay. So if I could add to that, no We

10specific information on individual detainees.

11had specific information on the pool of detainees, 12if you like, but not on particular people in that 13pool. 14 15 Q. A. Could you explain that? So our knowledge was kind of

16systemic knowledge, you know, that this category of 17people is facing mistreatment, and that category 18was explicitly Canadian-transferred detainees. 19 MR. PRÉFONTAINE: I'm sorry, Mr.

20Lunau, could you ask the witness to clarify 21whether, when he uses the "we" or "our", it is a 22corporate or regal "we" or "our", because it is 23difficult to follow? 24 25 6 7 8(613) 564-2727 BY MR. LUNAU: Q. Who do you mean when you

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Sure.

I would just say our

3kind of protocol is we are supposed to use the "we" 4form, because, you know, we're part of the 5government, speaking on behalf of the department 6or, in this case, the PRT, but I could use the "I" 7form. 8 You know, the reality was, though,

9it was just one DFAIT person in the PRT at the 10time, which was me. So in that sense, it was an

11"I", but to the extent I was part of the PRT -- it 12was a collective leadership and we shared 13information among ourselves -- it was also a "we". 14I think that information was widely shared within 15the PRT, and when we sent messages out on these 16issues, it was a collective product, in that sense 17the royal "we" rather than just me, personally, 18conveying information. 19 Q. We will come to some of your

20emails in a minute, but before you sent out your 21email reports that are in the productions, did you 22consult with our members of the PRT about the 23content of those emails? 24 25 6 7 8(613) 564-2727 A. Q. Yes, I did. And, in particular, the CF

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1representative, Major Liebert? 2 3 4emails? 5 A. He did. I mean, he helped But of the two A. Q. Yes, that's correct. Did he agree with those

6draft portions of those emails.

7emails sent out from the PRT on detainees, one I 8co-wrote with Major Liebert, who was the deputy 9command of the PRT, and the other one was sort of a 10collective product of myself as the DFAIT 11representative, Major Liebert as the DND 12representative, and Superintendent Wayne Martin of 13the RCMP. 14 So one report was signed off by

15two of those and the other by the three of us. 16 Q. So now I think you were

17starting off with an explanation that while you 18were at the PRT, the kinds of issues that came to 19your attention were systemic issues? 20 A. Yes, on this issue, on the

21question of detainees, general detainees, and the 22information we had spoke to the pool of people. 23wasn't, you know, that 'Abdullah' has been 24mistreated. It is that the group of detainees It

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1mistreatment or were being mistreated. 2 Q. And without disclosing

3anything that has been redacted from your emails, 4how long after your arrival in Afghanistan did 5warnings emerge to you that there was this systemic 6risk to detainees? 7 8 9 A. Q. A. One month. Within a month? So by the end of -- I arrived

10at the very end of April, and by the end of May I 11had that information. 12 Q. Okay. And did you -- again,

13without disclosing anything that's been redacted, 14did you consider that that information was 15credible? 16 17 A. Q. Yes, very credible. Again, without disclosing

18anything that has been redacted, is it your 19evidence that this systemic risk of mistreatment of 20detainees was communicated to CEFCOM headquarters 21and to Task Force headquarters in Kandahar? 22 23 A. Q. Yes. Would that include the period

24of time before the May 3, 2007 agreement? 25 6 7 8(613) 564-2727 A. Yes.

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Would it also include the

2time after the May 3, 2007 agreement? 3 4 A. Q. Yes. And is it your evidence that

5this risk was known to these headquarters as a 6result of your own reports? 7 A. Yes. And there were other

8reports, too, from other sources which were 9conveying that same information, but, in terms of 10Canadian officials, yes, it was -11 Q. So your reports were one

12source that you would say for sure communicated 13this risk? 14 15 A. Q. That's correct. Now, you have had an

16opportunity, I think, to look at the redacted 17versions of your emails? 18 19 A. Q. Hmm-hmm. There are some that are very

20heavily deleted that we will take a look at, but 21could I ask you, by and large, and subject to some 22particular exceptions, do these redacted emails 23fairly convey the substance of your communications? 24 A. As you say, it varies email

25by email, depending on the level of redaction, but 6 7 8(613) 564-2727

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1I would say that probably in the case of each email 2there is something important missing as a result of 3the redaction. 4 Q. Okay. Now, we have -- do you

5know the name Asadullah Khalid? 6 7 8him to be? 9 A. He was at the time the Then he was the Minister of A. Q. Yes, I do. Can you tell us who you know

10Governor of Kandahar.

11Border and Tribal Affairs, and now he seems to be 12helping the Afghan government on issues related to 13reconciliation. 14 Q. And when you say "at the

15time", are you referring to the time you were at 16the Provincial Reconstruction Team? 17 A. Yes, that's correct. He was

18I think governor from approximately 2005 to 2008. 19 Q. Okay. How soon after your

20arrival at the PRT did you hear about Mr. Khalid? 21 22on. A. Well, I met him quite early

I had quite a lot of personal contact with

23him, and then, yeah, from the beginning, you know, 24I would discuss him with Afghans coming into the 25PRT. I would ask them what their views are of the

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1governor, and I also received some more 2comprehensive information from some -- from various 3sources about how the governor was conducting his 4affairs. 5 Q. Okay. And what information

6did you hear about Mr. Khalid? 7 A. I heard a lot of negative

8information on Mr. Khalid, generally, among people 9we met. It was actually very hard to find somebody He was, on a

10who had a good word to say about him.

11governance level, seen as difficult, handled tribal 12elders poorly, alienating many of them. 13 14in governance. He wasn't really that interested He was interested in security

15issues where he was enthusiastic, but his 16enthusiasm was often seen as counterproductive. 17 There was an episode of friendly

18fire where some Afghan police officers were killed 19by an allied airplane, which was a result of Mr. 20Khalid's personal intervention in the fighting, 21after which efforts were made to remove him from 22having a hands-on optional military role; more 23generally, though, troubling reports about the 24governor's human rights performance. 25 6 7 8(613) 564-2727 We heard early on that he, in his

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1previous governorship in the Province of Ghazni, 2which is a little bit northeast of Kandahar, the 3governor had a terrible human rights record, that 4he had private detention facilities, that he would 5keep businessmen, among others, in those facilities 6for the purposes of extortion of money and that 7some of those people were never seen again. And he

8was seen, in human rights terms, as an unusually 9bad actor. 10 Then there were anecdotes you

11would hear in Kandahar about sexual misconduct with 12young women, involvement with narcotics, heavy 13involvement with narcotics. I mean, this is

14information which, I should emphasize, I am telling 15you what we were hearing from different sources. 16 I don't wish to say, you know, I am

17that Mr. Khalid was running a drugs network. 18just telling you that I heard from different

19sources, from credible sources, that this was the 20case. 21 Q. And did he have any

22connection with the NDS in Kandahar? 23 A. Yes. He seemed to have a We also

24quite intimate relationship with the NDS.

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1indeed set up private detention facilities in 2Kandahar, as well, and was detaining people in 3those facilities. 4 Q. Was Mr. Khalid's reputation

5known to the Canadian government in May/June 2006? 6 7 A. Q. Yes. Was his reputation known to

8CF commanders in CEFCOM and Task Force headquarters 9in Kandahar? 10 11 A. Q. Yes. Do you know if CF commanders

12from CEFCOM or Task Force Headquarters Kandahar 13ever met with Mr. Khalid? 14 A. Yes. They used to meet quite He

15regularly with him, as did I, as I mentioned. 16made himself available. 17that sense.

He is very responsive in

He is a very charming man and his He's young and quite

18English is very good.

19personable, and he made an effort to meet with us, 20talk to us, and he was quite available and 21accessible in that sense. 22 Q. And these meetings that you

23say took place, did they happen during the period 24of time that you were at the PRT? 25 6 7 8(613) 564-2727 A. That's correct, yes.

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Do you know about any

2meetings in December 2006 attended by 3Lieutenant-General Gauthier while he was commander 4of CEFCOM? 5 6yes. 7 8 Q. A. Okay. No. But you weren't there? That was in Ottawa. I A. I heard about that meeting,

9was in Kabul at the time. 10 11for that? 12 A. No. It was a discussion Q. Did Mr. Khalid come to Ottawa

13about him, rather than with him. 14 15 16 Q. A. Q. In Ottawa? Yes. Okay. Now, I would like to

17turn to some of -- not some of -- all of the 18reports relating to detainees that you sent from 19the PRT. You should hopefully have a binder in

20front of you called Collection E. 21 22 A. Q. Collection E? Collection E. I think it is

23under the blue book. 24 Now, just generally, I take it

25that while you were at the PRT, you issued two 6 7 8(613) 564-2727

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1reports that you deemed to be important to detainee 2issues. One you have described as KANDH-029, and

3the second KANDH-032? 4 5 A. Q. Yes. And is it your evidence --

6and, again, without disclosing anything that's been 7redacted, but is it your evidence that in these 8reports, as political director of the PRT, you 9conveyed information that there was a serious risk 10of mistreatment of detainees after they were handed 11over? 12 A. Yes. I would even go further

13and say the information was conveyed that there was 14mistreatment of detainees, not just a risk, but the 15fact of mistreatment. 16 Q. And by these reports, you

17conveyed this information to both CEFCOM 18headquarters and Task Force headquarters in 19Afghanistan? 20 A. Yes, among -- they were on

21the distribution list. 22 Q. And was it your intention

23that these reports or the information in these 24reports make its way to the military police or the 25provost marshals within those headquarters? 6 7 8(613) 564-2727

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Yes, that's correct. And, first of all, did the

3provost marshals have a C4 connection? 4 5 A. Q. No, they did not. So how did you intend that

6the information in these messages would be conveyed 7to the provost marshals? 8 A. Right. Well, there were two One was the Ottawa

9channels which I made use of.

10channel, and by that I meant that on the -- if I 11could take you to 0029, as an example, there is a 12fairly lengthy list of addressees on the CC list. 13 Q. Okay. Just before we start,

14to give everybody a chance to find them -15 16 A. Q. Of course, yes. -- it is in Collection E, tab

171, and the 029 email begins at the bottom of page 2 18of 4; correct? 19 20 21 A. Q. A. Correct. Okay? There is four -- five chunks,

22five portions to the address block, if you like. 23There is who it is from, Kandahar C4R. 24the PRT. There is another C4 called That was my That is us,

25Kandahar-KAF -- Kandahar hyphen K-A-F. 6 7 8(613) 564-2727

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1colleague who sat at Kandahar Airfield, which was 2physically separate from the PRT. 3 4the "to" line. You have the date. Then you have

These are all DFAIT addresses who

5were, to my knowledge, the most involved in the 6detainee question and who had, in a sense, the 7responsibility to respond to this message. 8 And just to run through it Tell me if I am boring That

9quickly -- I don't know.

10you, Mr. Lunau, but the first one is EXTOTT. 11means External Affairs at Ottawa. That is a

12holdover from when DFAIT was call External Affairs. 13 IRP, that was the peacekeeping

14division, and they are there, because they were the 15ones who I was reporting directly to, the money for 16acquisitions in Kandahar came out of IRP. 17 The next one is the key one, IDR. So they

18That is the Defence Relations Division.

19were -- they dealt with NATO policy issues, and 20detainee policy was part of that NATO policy 21framework, and they are also the appropriate 22division because they were the ones who interfaced 23regularly with DND and the Canadian Forces. 24 I had worked in that division

25before, so they talk every week and sometimes every 6 7 8(613) 564-2727

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It is kind of a channel between DFAIT

Next one, IRH-GHA is a

4humanitarian affairs, human rights division. 5Obviously they would be on there because of the 6human right dimension of detainees. And the fourth

7one, JLH, is part of a legal branch dealing with 8humanitarian law. So, again, they would look at

9detainees from the legal aspects. 10 Those are the four divisions I

11felt most important, the ones who should respond to 12this message, and IDR really being the key 13division. 14 Then you have the CC line, which

15is maybe 70 addresses, some individuals, some 16divisions, some parts of DND, which -- we'll start 17with NDHQ, and there is maybe roughly eight of 18those, maybe nine or ten; some, you know, embassies 19overseas which -- like in London or the Hague, 20which were also interested in this issue, a mission 21in NATO. 22 Then the final one is the subject Each formal message has a

23saying "KANDH-0029".

24number, so this was the 29th message sent in 2006, 25and then the subject is "Detainees ICRC concerns 6 7 8(613) 564-2727

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1over notification by Canadian Forces."*** 2 Q. So what was the particular

3concern you wanted to bring to people's attention 4in this email? 5 A. Oh, do you want me to answer

6-- I realize I didn't answer your question about 7the link with the military police. 8to do this now or -9 10 Q. A. Certainly. Sorry, I went on at such Right. So Do you want me

11length I forgot, myself, the question.

12the Ottawa channel, to get to the RCMP, is it goes 13up basically -- you know, you can imagine it kind 14of geographically. Here is the PRT. It shoots

15over to Ottawa, lands on the desk of all of these 16people who have these accounts. 17 The ones on the CC line aren't I

18expected to act on it, but may be interested. 19would expect IDR to act. 20relations division. That's the defence

They would sit down with their

21colleagues in NDHQ, National Defence Headquarters, 22and, you know, discuss the message, and then 23hopefully at some point IDR would respond to us. 24 And once the message is at NDHQ --

25so there is a kind of personal connection, IDR 6 7 8(613) 564-2727

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1talking to NDHQ, but there is also these addresses 2within NDHQ who are on the CC line, and those 3include the CEFCOM commander -- that's NDHQ CEFCOM 4COMD C4R. 5 6intelligence. That is general Michel Gauthier. CEFCOM-J2, that is CEFCOM CEFCOM-J3, that is CEFCOM

7operations, and CEFCOM-J9 is the key division. 8That's -- I think they deal with policies and legal 9issues, and detainees seem to fall under CEFCOM-J9. 10And so CEFCOM-J9 would then be in contact with 11their people in the field, including, on an issue 12such as this, the military police. 13 The second channel, that was the The

14Ottawa channel, kind of up and over and down. 15second channel was much simpler.

That was via my

16colleague, Pamela Isfeld, and she is at the address 17KANDH-KAF. She was the political advisor to the

18Task Force Afghanistan commander, Brigadier-General 19David Fraser, who is also the regional general 20command -- he was double hatted, as they say in the 21military. 22 23few functions. And in that capacity, Pamela had a One was to provide advice to the

24General on political issues, you know, governance 25issues, some policy advice, but also she was the 6 7 8(613) 564-2727

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1interface between him and DFAIT.

She would give

2him messages, pass on their positions and concerns 3and information back to DFAIT. Also, she would,

4you know, maintain contact with a full range of 5colleagues at KAF. 6 And so in the case of messages on

7detainees, she would physically print up the 8message, and then walk over with it to the Provost 9Marshal, in this case, discuss it with him, and 10then come back and report back to me. 11 And this was very informal. We joined DFAIT I

12have known Pam for 15 years. 13around the same time.

She used to talk quite a

14lot, so we would just pick up the phone and chat. 15So both of those channels, via Pam Isfeld, 16political advisor, and via Ottawa, those two were 17the channels by which these reports made their way 18to the Provost Marshal. 19 20the PRT? Q. What about Major Liebert at

Would he be talking to anybody at Task

21Force Headquarters or CEFCOM? 22 A. Yes. Yes, he would. He did

23that frequently, and he did that -24 MR. PRÉFONTAINE: I'm sorry. The

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I don't think that is a proper area of

MR. LUNAU:

Well, he would have

4had the means to observe Major Liebert's 5communications. 6 MR. PRÉFONTAINE: Well, if that is

7the case, then maybe we should start by 8establishing that, rather than asking what was said 9and purporting to present it as if it was fact. 10 MR. LUNAU: Well, I don't

11understand what the objection is, but -12 MR. PRÉFONTAINE: The objection is

13that discussion between two individuals that 14doesn't involve the witness is not something that 15the witness can testify to, unless you first 16establish that the witness was a party to that 17conversation. That's what I am looking for, the

18factual basis for the conclusion that you are 19seeking the witness to speak to. 20 21 BY MR. LUNAU: Q. Do you have direct knowledge

22that Major Liebert had communications with Task 23Force Headquarters or CEFCOM? 24 25he did. 6 7 8(613) 564-2727 A. I have good reason to believe

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Did you participate in any of

2those discussions? 3 4 5 6those calls. A. Q. A. No. Did he tell you about them? Yes. He volunteered to make

So just to -- so the context is after

7-- so I went to the Sarpoza prison on the 14th of 8May of 2006. I think my first meeting with the

9ICRC representative in Kandahar was on the 23rd of 10May 2006. 11 Based on that discussion, I went

12to see Major Liebert and I conveyed to him the 13content of that discussion. He was quite taken

14aback, as was I, and he said, one of the complaints 15just to -- it is mentioned here in the unredacted 16form, was the problem of a point of contact. Red

17Cross were finding it very hard to find someone in 18the Canadian Forces who would even take their 19calls. 20 Eric -- Major Liebert said to me,

21Don't worry, I will phone and find out that person 22and get back to you. 23 And so I left him to that. Then

24we had a follow-up conversation about two or three 25days later in which he conveyed to me that he, too, 6 7 8(613) 564-2727

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1had had no luck finding anyone willing to discuss 2the issue with him. He had phoned around at KAF

3and he said, No one wants to touch this. 4 This is what he told to me. He

5said, This is a hot potato and no one wants to pick 6it up. 7 And that was the point at which I Having tried to fix the

8wrote Kandahar 0029.

9problem locally and failed to do so, we pushed the 10issue to headquarters to resolve. 11 Q. Now, what -- to some extent

12the email speaks for itself, but what was the chief 13issue or chief concern you had that you wanted to 14bring to people's attention? 15 A. Well, in the case of 0029,

16which dealt really with procedural issues, there's 17a little bit of something else, tangentially, but, 18essentially, it was about procedural problems. 19 So given the results of these

20problems, results being that the ICRC was unable to 21monitor our detainees, the purpose of this message 22was to, you know, inform headquarters how the 23system had broken down in the field on the 24understanding or assumption that they would rectify 25the problems which the ICRC had addressed. 6 7 8(613) 564-2727

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42

And if I could draw your

2attention to the beginning of the email, the 3section "Report", some of which is redacted, but it 4says, "We met on May 23." 5 So do I take it the issues you're

6raising here, did they flow from that meeting on 7May 23rd? 8 9 A. Q. That's correct. Okay. I asked for the They said,

10meeting to talk about Sarpoza Prison.

11Well, we can't really talk about how prisoners are 12treated, but, while we have you here, we have been 13looking for someone to help fix these problems we 14have with notification. 15 16problems. They began to lay out the I would also mention, though, Mr. Lunau,

17that I didn't really mention this in this report, 18but during that meeting, as well, the ICRC noted 19they had already sent a written communication to 20the embassy in Kabul on these same issues, and that 21message went, I think, at the end of April. 22 So this was from the ICRC's point

23of view as sort of a followup, but from their point 24of view the problems had not been fixed, so they 25were trying again. 6 7 8(613) 564-2727

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43

Okay.

Now, in the summary

2section of your email, you refer to there being 3occasional reporting delays. 4 5reporting delays? 6 A. When I look back at this How often or consistent were the

7message, I see a couple of inaccuracies in it, and 8I think the use of this word "occasional" is 9somewhat inaccurate. 10 11reporting delays. I think there were consistent Every notification was late, and

12it varied from several days to several weeks and, 13in some cases, two months, but there were always 14delays. 15 Q. You describe your email in

16your affidavit as an action report, not an 17informational report. 18 What, if anything, were you

19expecting to be done as a result of this report? 20 A. Well, I was expecting these It seemed

21problems to be addressed and resolved.

22to me very simple business to fix them, and I was 23surprised the problems had arisen in the first 24place. 25 6 7 8(613) 564-2727 Q. Did you receive a response to

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I did, yes. If I could ask you to look at

4page 1 of tab 1, is this the response you received? 5 6 A. Q. That is. If I could ask you to go to

7paragraph 6, Mr. Laporte of the IDR advises that 8with regards to a point of contact, the National 9Command Element, NCE, Provost Marshal, Major James 10A. Fraser -11 THE CHAIR: I just haven't found

12the place where you are at. 13 MR. LUNAU: Oh, sorry. It is at

14tab 1, the second page in, paragraph 6. 15 THE CHAIR: "With regards to a

16point of contact"? 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 BY MR. LUNAU: Q. "With regards to a point of contact, the National Command Element (NCE) Provost Marshal, Major James A. Fraser, is the national point of contact on detainee issues in theatre." Was this the action that you were

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In a sense, yes.

It was

3action in the sense that, you know, the message had 4clearly been taken seriously. 5extensive consultations. 6 Here at the very end of the There had been

7message after paragraph 6, it shows the chain of 8people who were engaged, and it is an unusually 9extensive chain. If there is consultations,

10usually it would be maybe with two or three 11divisions, and here you have the drafter, the 12defence relations division, who, as I mentioned, 13had the lead. 14be replying. 15 He has consulted with three The humanitarian division So he is the appropriate person to

16divisions inside DFAIT:

17that's IRH-GHA; IRP, that is peacekeeping division, 18which, as I mentioned, was paying for the positions 19in Kandahar. RAS is what we call the geographic,

20the South Asian division, which dealt with 21Afghanistan as a country, as well as Pakistan and 22India. 23 Then you have four DND addresses,

24three policy ones, the assistant deputy minister 25policy, NATO policy and peacekeeping policy, and 6 7 8(613) 564-2727

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1finally CEFCOM, and then it is approved, signed off 2by the Director General, whom Eric Laporte reports 3to. 4 So this is quite an impressive It shows to me the message has There has been at least one

5consultation block. 6been taken seriously.

7meeting, possibly more than one, with these people. 8 There may have been phone

9consultations, but from the number it sounds like 10they actually got together, and they produced, you 11know, about a page of a response. So in that

12sense, it was an appropriate response. 13 Q. And the last sentence of

14paragraph 6 concludes with the sentiment: 15 16 17 18 19 "We are confident that future contacts between the Provost Marshal and the ICRC will be productive." Do I understand correctly, then,

20that from this point forward the Provost Marshal 21was to be the point of contact for the ICRC to 22raise any issues that it had? 23 24 25 6 7 8(613) 564-2727 A. Q. A. Yes. Okay. And it seems clear to me from

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1the message that the Provost Marshal, too, has been 2contacted as part of the information gathering to 3generate this response, because some information 4from paragraph 6 strongly suggests there's been 5contact with the people on the ground to have this 6level of detail that, you know, a phone call had 7been unanswered, people had been out of theatre, 8and so on. 9 So there seems to have been

10consultation not just with headquarters people, but 11from headquarters on the military side right down 12into KAF, which is where the Provost Marshal was 13based. 14 15 16 Q. A. Q. Okay. KAF being Kandahar Air Field. But that is an inference you

17are drawing from what is in paragraph 6? 18 19 A. Q. That's correct, yes. Now, this email, so far as I

20can tell, doesn't make specific reference to 21torture or risk of torture? 22 A. No. Let me just -- Yes. No,

23it deals exclusively with notification issues, 24procedural issues, contacts between ICRC and us, 25which is appropriate, because my message really 6 7 8(613) 564-2727

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1dealt with those questions, as well. 2responded to the questions I raised. 3 Q. Okay.

So they have

Now, if I could ask

4you to go to your next email, 032, which is tab -5for some reason tab 43 in the collection. 6 This was the second message that

7you sent while at the PRT? 8 A. Well, it was the second

9message on detainees that I sent, yes. 10 Q. I understand there would have

11been others, but in terms of the detainee issues 12that you were looking at or engaged in, this was 13the second significant report that you sent? 14 15 A. Q. Yes. Now, can you tell us the

16circumstances under which this report was prepared? 17 A. Certainly. So to backtrack a

18little bit -- and this I have seen in briefing 19notes which have been redacted and made available 20to me, which leads me to believe they're part of 21the public record. 22 23 Around this time -MR. PRÉFONTAINE: Actually, Mr.

24Lunau, maybe you should remind the witness that he 25shouldn't assume such things. 6 7 8(613) 564-2727 The public record is

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The witness just said that he has

3seen unredacted versions and, therefore, he assumes 4they're part -5 6versions. 7 THE CHAIR: Maybe you could THE WITNESS: Sorry, redacted

8address me so I know what -9 10Stannard. MR. PRÉFONTAINE: Yes, Mr.

I had understood the witness to make an

11assumption that, given that he had revised 12unredacted documents, they were part of the public 13record, and it is that assumption that I wanted Mr. 14Lunau to address, but now the witness has corrected 15me and I stand corrected. 16 17 18go. 19 MR. PRÉFONTAINE: As long as we THE CHAIR: MR. LUNAU: So we are okay? I think we are good to

20are clear that we are addressing what is before us 21and not something else, elsewhere, we are good to 22go. 23 24 THE CHAIR: THE WITNESS: Okay. So the overarching

25context for this was an initiative I referred to, 6 7 8(613) 564-2727

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1and I have been, as I mentioned, given redacted 2documents -- sorry, if I said unredacted -- where 3this is sort of general framework is being 4discussed, so I am fairly confident it is something 5I can talk about. 6 7 BY MR. LUNAU: Q. The redacted documents you're Are

8referring to, are they from the Commission? 9they part of the Commission's documents? 10 A. I believe so, yes.

I was

11sent them, I believe, by the Commission on a disk. 12 13 Q. A. I see. Okay.

Essentially, it was briefing

14notes for trilateral meetings which were taking 15place in June of 2006 between Canada, the UK and 16Netherlands. 17place. Actually, a few meetings which took

There was some in a NATO context and some

18on this trilateral basis. 19 And there was a number of issues

20on the agenda, but one was one which related to 21this issue, a proposal by our allies. We, as I

22mentioned earlier, set up this kind of joint 23facility for all our detainees, which would be 24either something we would build ourselves or 25preferably something we would renovate which would 6 7 8(613) 564-2727

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1be run by the Afghans, but with NATO staff embedded 2in, to, you know, help mentor the Afghans, ensure 3that human rights and other standards were 4observed, and to provide a much kind of more 5western standard detention experience, if I can use 6that phrase. 7 This was a policy initiative which

8our senior officials in DFAIT, as well as DND, had 9to respond to. 10 So this was the context for the These director generals I

11trip to Sarpoza Prison.

12from three departments came down to Kandahar.

13went with them to Sarpoza, and we looked at Sarpoza 14to try and understand the condition of Sarpoza and 15to use that information to develop a policy 16position to respond to this initiative by our NATO 17allies. 18arrived. 19of 2006. 20 So that was the context for this I was -- I I don't know quite when the initiative It was sometime around, you know, April

21report, which was a tasking, in effect.

22don't know if I -- I can't remember if I was asked 23or if I volunteered to write a report on the visit 24to Sarpoza, but it would be the logical thing for 25me to do as the DFAIT representative in the field. 6 7 8(613) 564-2727

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So a fairly large portion of this Some of it is

2report deals with Sarpoza Prison. 3quite mundane.

It was based on the visit itself,

4some other information we received from a couple of 5other sources, and it deals with things like 6facilities for vocational activities and a dining 7room for staff and some process issues, how 8prisoners were handled. 9needed for the clinic. 10 It is very specific, but the There is things like fans

11reason for this is that DFAIT had money available 12to potentially help renovate this prison. We were

13looking in very practical terms of what was needed 14that we could provide to help reconstruct, renovate 15Sarpoza, but in this policy context of developing a 16position for the British and Dutch on whether this 17might be a suitable facility for a regional 18detention or prison for our NATO allies. 19 So quite a bit of this report is

20on that issue, because that is what I had been 21asked to do. 22 However, in the course of

23researching this question, as I mentioned, we went 24on the 14th of May to Sarpoza. I then wanted to

25find out the information I didn't have, which had 6 7 8(613) 564-2727

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1to do with condition of detainees at Sarpoza; 2approached the Red Cross. 3can't tell you about that. 4 They said, Sorry, we That's confidential.

But, nevertheless, in the course

5of that period, the end of May period where I was 6interested in this issue, I was able to get good 7information from credible source or sources on that 8very issue of how prisoners are treated, including 9prisoners transferred by Canadian Forces, 10specifically that pool. 11 So the message ends up dealing Firstly, the prison itself,

12with the two subjects:

13the physical conditions of the prison and areas 14that might need attention; secondly, treatment of 15prisoners generally, including specifically those 16transferred by Canada. 17 To ensure there is no danger of

18the second bit getting lost in the volume of 19material on the first question, I made a point of 20doing two things. First, in the summary at the

21beginning of the message, I spell out that Kandahar 22prison actually is pretty good, and actually what 23is important in Kandahar is not the prison itself, 24but if I can quote my message: 25 6 7 8(613) 564-2727 "... overall treatment of

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detainees, including those transferred to Afghan custody by Canadian Forces." And, again, just to be sure that

5that message wasn't lost, I did something I hardly 6ever do, which is kind repeated myself at the end. 7There is this conclusion section which has three 8bullets, and we can see what the bullets are saying 9on page 4 of the message, that Kandahar prison is 10basically fine. Then it has the little bit on this

11situation with the Netherlands, and then the third 12bit is flagging that the significant information in 13the reports, which is not the prison itself, but, 14again, if I can quote the message: 15 16 17 18 19 "Overall treatment of detainees, including those transferred to Afghan custody by Canadian Forces." And then in paragraphs 20 to 23,

20some of which is redacted and I am not going to, 21you know, add anything beyond what is here, but 22there is information given which attempts to 23explain what is the basis of this concern. 24 Q. Okay. Now, at paragraph 23,

25the first sentence: 6 7 8(613) 564-2727

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"[blank] stressed the importance of speedy notification of detention and noted that Canada's responsibility for detainees did not cease just because they had been turned over to Afghan authorities." Without disclosing the redacted

10piece of this paragraph, did that statement 11accurately reflect the government's understanding 12of its responsibilities? 13 A. I would say this is --

14actually, could you rephrase the question, please? 15 Q. Well, somebody at this

16meeting has said to you that -- first of all, it 17seems from this paragraph, it is not you, but it is 18somebody else who seems to have some kind of issue 19with Canada's treatment of detainees, and they make 20two points. 21 One is they stress the importance So,

22of speedy notification of detention, okay?

23first of all, was there -- we have seen your 24previous email that raises notification issues. 25seems to be being raised for a second time -6 7 8(613) 564-2727 It

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Yes. -- during this visit. Hmm-hmm. Was it a significant concern

5to people outside of the Canadian mission, this 6whole-of-government mission, that the notification 7procedures weren't up to snuff? 8 9 A. Q. Yes. Okay. Yes, that's the case. And then they seem to

10go on and they make a second point, which sounds to 11be almost like a lecture, that Canada's 12responsibility doesn't cease just because they have 13been turned over to Afghan authorities. 14 I mean, the source, we don't know

15who it is because it's been redacted, but were they 16telling you that Canada is not meeting its 17international obligations? 18 19 A. Q. Yes. Now, this particular message,

20again, did you intend this message be communicated 21to the Provost Marshal or the MPs? 22 23 A. Q. Yes. Okay. Now, we just saw

24previously that Major Fraser had been designated 25the point of contact on detainee issues. 6 7 8(613) 564-2727 Was that

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1only with respect to communications with the ICRC, 2or did you intend that he would get a copy of this, 3as well? 4 5would. A. Yes, the second, that he

And, yes, with feedback from my colleague,

6Ms. Isfeld, I received confirmation that both these 7messages had been brought to his attention. 8 9 Q. A. So she told you that? Yes, and gave me a little bit

10of feedback of what he had said. 11 Q. Now, did you ever yourself

12speak with Major Fraser about detainee issues? 13 14 A. Q. I don't believe so. You indicate at the end of

15your email, paragraph 25, and part of it is 16redacted, but on May 30th somebody met with 17Lieutenant-Colonel Randy Smith, legal advisor with 18the National Command Element in KAF. 19 So is that the same element that

20Major Fraser was part of? 21 A. The organization of, you

22know, the military in Kandahar was confusing to me 23and seemed to be confusing to some of my military 24colleagues, too. But my understanding is that, no,

25that the legal advisor is sort of part of JAG, and 6 7 8(613) 564-2727

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1that is separate and reports back a separate chain 2to the Provost Marshal. 3the same basic place. They're colleagues and in It was the National Command

4Element which was one three-storey building in 5Kandahar Air Field. 6 They're all kind of working

7together, but in terms of organizational structure, 8they're different. 9 Q. Yes. But the point of my

10question was not so much the organizational 11structure, because I understand military police and 12legal advisors are separate branches, have separate 13technical chains, but we saw Major Fraser was 14located at the National Command Element and 15Lieutenant-Colonel Smith is at the National Command 16Element. 17 So the point of my question is

18they were both at the same headquarters? 19 A. Yes. And on top of that, I So to

20believe they're working closely together.

21explain why Lieutenant-Colonel Randy Smith is here, 22this was Major Liebert, who as you see again is 23consulted in his follow-up communications on trying 24to identify a point of contact on detainee matters. 25This was the person that he was able to identify as 6 7 8(613) 564-2727

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1somebody suitable as someone who is responsible and 2could speak on detainee questions. 3 So my inference would be that

4Colonel Smith and the Provost Marshal, Major 5Fraser, would be working closely together in a 6collaborative fashion, but, you know, looking at 7detainees from different aspects, the military 8police aspect and the legal aspect. 9 Q. Okay. Now, your section on

10treatment of detainees, did you actually speak to 11any detainees? 12 13 A. Q. No, I didn't. Okay. On what did you base

14the information set out in this report, without 15disclosing any redacted information? 16 A. Well, in general, you know,

17on any issue, we tried to, as part of our kind 18of -- you know, we are doing business trying to 19find the best sources, the most credible, the most 20authoritative, the best-informed sources on a given 21issue. 22 23went about it. So on detainees, that is how I I identified the source or sources

24that I believed would provide the best level of 25understanding of the issue, and that was the basis 6 7 8(613) 564-2727

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1for this section, treatment of detainees by Afghan 2authorities. 3 If I could just add to that, there

4is also a question of context, so being in Kandahar 5you're trying to understand, you know, general 6patterns and patterns in prisons and patterns of 7detention, and there was other information on 8issues that didn't relate directly to this, but 9related to detainee questions, which, you know, 10provided a further understanding to position this 11knowledge. 12 13 Q. Okay. Mr. Lunau, depending

THE CHAIR:

14on your questioning, if we could find a proper -15 16to break. 17 18time? 19 20 21quarter to 11:00. 22--- Recess at 10:29 a.m. 23--- Upon resuming at 10:45 a.m. 24 25 6 7 8(613) 564-2727 THE CHAIR: Thank you. Mr. Lunau. MR. LUNAU: THE CHAIR: Yes. We will break until THE CHAIR: Would now be a good MR. LUNAU: Now, is a good place

BY MR. LUNAU:

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Thank you.

Now, Mr. Colvin,

2we were looking at your 0032 email, and, similar to 3what I said about your first email, I didn't see 4any reference to torture or risk of torture in this 5email. 6 A. The issue of torture, risk of

7torture is in the section, paragraphs 20 to 23, but 8the words that are used, as I mentioned in the 9email, are code. So the words used do not mean

10exactly what, on the surface, they mean but are 11standing in for something else. 12 So in this case, unsatisfactory

13conditions, unsavoury conditions, all kinds of 14things are going on. My understanding at the time

15and my understanding today is that these are 16references to abuse, mistreatment, torture. 17 I mean, there's a question of, you

18know, what is abuse versus mistreatment versus 19torture, and that's obviously an issue that I am 20not really qualified to pass, but they all fit into 21a category of improper treatment, and that's what 22this section deals with. 23 In the context of the particular

24source or sources, the information we got was, by 25necessity, presented in a cautious fashion. 6 7 8(613) 564-2727 And so

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1I flag in this message that these words are being 2given in a cautious fashion, in code, and that 3there is more of the same ilk, which, for reasons 4which I can't get into, can't be told more 5directly. 6 So I am alerting the readership

7that these words are standing in for words which 8might --- would, in my view, include torture. 9 Q. Okay. Now, would you allow

10for the possibility that perhaps outside of the 11DFAIT circle, for example, within the CF command 12elements, they may not appreciate or understand 13that these terms are code for something else? 14 A. There is, you know, an

15assumption when you write these things that you are 16writing for a reasonably sophisticated audience, 17but I agree with you. I felt at the time there

18might be a risk of misunderstanding, and that was 19-- actually, maybe less for the content as for the 20amount of material on the prison. 21 So this is why I added this

22emphasis in the summary that the important material 23has to do with -- and then I summarize what my 24understanding of the concern was, but it is the 25overall treatment of detainees that is the concern, 6 7 8(613) 564-2727

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1and so there is no confusion and they think, well, 2it is maybe detainees generally or some other 3people's detainees or detainees in a specific 4province, I specify it is our detainees. 5 So it is not saying what exactly I didn't have that

6is happening to the detainees.

7level of knowledge, but the knowledge I did have 8spoke to the fact, the understanding, the 9assessment from very credible source or sources 10that our detainees were being subject to improper 11treatment, were being badly treated, mistreated, 12abused, without the knowledge of the techniques or 13specificity. 14 You know, to say that this rises

15to a level of torture would be a step for which I 16didn't have that detail, but I did have an 17awareness that there were problems with treatment, 18mistreatment. 19 And in the context of Afghanistan,

20the context of Kandahar, the context of other 21aspects that we were aware of, for example, 22behaviour of the Governor of Kandahar, it was clear 23that, in an Afghan context, this isn't some sort of 24mild treatment, or inadequate food or the beds 25aren't soft enough. 6 7 8(613) 564-2727 This would be a severe

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1problem, a clear problem of how our detainees are 2being treated. 3 Q. All right. Did anyone ever Mr. Colvin,

4contact you about this email to say:

5you make a reference here to overall treatment of 6detainees. 7 What exactly are you talking about? A. Sorry, can I add a final

8answer to your previous question; is that okay? 9 10 Q. A. Yes. Yes. So the other aspect

11that is important here, and, again, I can't get 12into this, but the nature of the source or sources 13also gives this great weight. So the message is

14important, but the source is also important. 15 Sorry, on your second question --

16or your first question was saying, Was there a 17reply? 18was. 19 Q. Now, just picking up on I don't recall one and I don't think there

20something you just said about the sources would 21help the reader identify what exactly you were 22talking about, you referred to the treatment of 23detainees? 24 25 6 7 8(613) 564-2727 A. Q. Yes. Okay. So without disclosing

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1the redacted information, is that -- is what has 2been redacted relevant to helping us understand the 3point you just made? 4 5 A. Q. Yes, it is very relevant. Okay. So now we looked at

6these two emails and we move on at this point in 7time to when you went to the Canadian embassy in 8Kabul. 9 And, as I understand it, you began

10working at the Canadian embassy in Kabul in August? 11 12 13 142006. 15 Q. And while you were at Kabul, A. Q. A. That's correct. Of 2000 -Yes, beginning of August

16you were the head of the political section and the 17de facto Deputy Head of Mission, and in your 18affidavit you say you were responsible for all 19Canadian policy files, any issues you judged 20important to Canada, especially as it related to 21its engagement in Kandahar. 22summary? 23 24 A. Q. Yes. Okay. And those matters Is that an accurate

25important to the Canadian engagement in Kandahar, 6 7 8(613) 564-2727

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1again, would have included detainee issues? 2 3 A. Q. That's correct. And in your capacity at the

4embassy, you supervised Catherine Bloodworth? 5 6 A. Q. Hmm-hmm. Now, I would like to look at

7some of the reports that you issued while you were 8in Kabul. If I could ask you to go to Collection

9E, tab 3, page 2 of 3. 10 11 A. Q. Hmm-hmm. So on August 28, 2006 you

12sent an email to a number of addressees, including 13CEFCOM-J9. What was the issue you were concerned

14with in this email? 15 A. Yes. The issue was that

16ISAF, as an organization, had no awareness of the 17fact that we had taken any detainees, even though 18we had taken several detainees. 19 20aware? 21 22 A. Q. Yes. And whose responsibility was Q. Were they supposed to be

23it to make them aware? 24 25responsibility. 6 7 8(613) 564-2727 A. I believe it was Canada's

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So we have seen in the This So

2previous emails ICRC has expressed concerns. 3email seems to indicate ISAF has concerns. 4these are two different -5 6 7 A. Q. A. Yes.

-- sources now of concern? That's correct. And the

8context for this briefly was, you know, every 9couple of weeks I would meet with my colleagues 10both at allied embassies and ISAF itself. 11a sort of permanent staff. 12them in Kabul. ISAF had

There is about 1,000 of

It is quite a large organization,

13ISAF being the sort of NATO force in the country. 14 We were discussing detainees and

15the ISAF rep mentioned there were a couple of 16detainees taken by one of the other allies, but 17that was it so far. I said, Actually, that can't

18be it, because we have taken a bunch of detainees, 19too. 20 21me. 22 He said, Really? You guys should tell us. So then that was the genesis of That's news to

23this message to CEFCOM-J9 saying, Hey, by the way, 24ISAF doesn't know about the detainees we have 25taken, and can you please make sure they are 6 7 8(613) 564-2727

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It was a kind of chatty message. It was one of these

3It wasn't a formal message.

4more relaxed emails without a number at the top, 5and, you know, signed off by me personally, written 6to this guy, Kim Rebenchuk, I guess. 7 So it was an attempt to informally

8address this problem that ISAF had identified. 9 Q. Did you subsequently raise

10this issue in a more formal way? 11 12 A. Q. Yes, I did. If I could ask you to look

13under the same tab, page 1, an email KBGR-00 -- or 140118 dated September 19, 2006? 15 Now, this email appears to be

16addressed only to within DFAIT, Department of 17Foreign Affairs? 18 19 20 A. Q. A. Yes. Why is that? Essentially it was a So I copied the

21follow-up to the August 28th.

22earlier chain so my colleagues would have a full 23picture. And as the email mentions, on September

2419th, we again received a complaint, this time I 25would say a blunter complaint. 6 7 8(613) 564-2727

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The wording used -- I didn't put

2it in the email -- was that getting information 3from the Canadians is like getting blood out of a 4stone. It was quite a surprisingly direct

5complaint, you know, in a diplomatic context. 6 And to provide context for my

7colleagues, I wanted to include the earlier 8messages, but, in essence, what I was doing was 9complaining that CEFCOM-J9 had done nothing in 10response to the earlier message. 11 So I didn't want to be rude to my

12colleagues by essentially sending a complaint to 13them complaining about them. So I simply provided

14that information to my DFAIT colleagues so they 15would go and engage with CEFCOM-J9 in Ottawa to try 16to get this problem resolved. 17 18off this chain. 19 20 Q. A. All right. This allowed me to be candid So I took all of the DND addresses

21with my -- it was a more candid in-house message. 22 23mind, is: Q. Okay. The question, in my

If your intention was that the message

24would go down to CEFCOM, anyway, why it just 25wouldn't have been addressed to them as a number of 6 7 8(613) 564-2727

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Yes.

I guess I tried that

3with the August 28th one addressing them directly, 4and it hadn't worked. So this was the next stage,

5which was to get Ottawa to -- to try and get them 6to fix it. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. Now, in paragraph 3, you say: "According to [blank], the situation has not, not improved. The Canadian

Provost Marshal in Kandahar has told ISAF that he would be pleased to provide the information, but that he has received explicit instructions from NDHQ not, not to do so. [Blank] said

this is very frustrating, as ISAF has responsibilities on detainees that it is obliged to discharge." (As Read)

Now, it appears whoever is

23speaking here, the name or the organization has 24been deleted, but are you reporting here something 25that was said to you by this someone? 6 7 8(613) 564-2727

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Yes. Okay. Do you have any other

3information about this assertion about the Canadian 4Provost Marshal saying he had been instructed by 5NDHQ not to provide information to ISAF? 6 A. There was more information

7which came a little bit later, and that was written 8into the message under tab 4 of 28th September, 9which is a follow-up to this message. 10 11individual. This was a meeting with another So it says here "unredacted". They're

12both ISAF contacts, and the first one was from the 13POLAD office. So this guy in the second message

14was yet a more senior, more authoritative, 15individual in ISAF, who gave me new information and 16some quite colourful quotes. 17 And, again, in order to be able to

18use the colourful quotes and convey as candidly as 19possible what the nature of the complaint was, I 20restricted it to my DFAIT colleagues. 21 Q. Okay. Now, in this email

220121, the first paragraph, you say: 23 24 25 6 7 8(613) 564-2727 "Further to recent discussions of detainee issues, we met with [blank]

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was one of the two ISAF contacts (other was from the POLAD office) who approached us in August about problems with Canada on detainee issues." So do I understand correctly that

8whoever these redacted entities or people are, they 9initiated the contact with you, because they were 10concerned about Canada's treatment of detainees? 11 A. Yes. The original contact,

12it was on the margins of a meeting on police 13reform. That was in the August 28th message I mean, this may be too much detail. So the September 19th message

14originally. 15

16refers to these two contacts having raised this 17issue with us several weeks ago. 18on the margins of this meeting. So, yes. Also, as I It was

19mentioned earlier, every two weeks we sat down and 20talked about these issues. 21 And then there was a follow-up

22with the one gentleman from the POLAD office, the 23political advisor office, and then following this 24message, I went back again to follow up. So I,

25again, initiated this third meeting, if you like, 6 7 8(613) 564-2727

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1which led to the September 28th message, so -- to 2find out if things had improved in the interim. 3 Q. Now, in paragraph 5, you say,

4the last sentence: 5 6 7 8 9 10 11 "... it is unclear even who is the point of contact in Kandahar, said [blank]. It

is sometimes difficult even to get a phone call answered." I thought that the Provost

12Marshal, Major Fraser, had been designated the 13point of contact in Kandahar. Was that link not

14working anymore, or what was the issue, or do you 15know? 16 A. Well, the issue, I think, was

17the -- as was explained to me, the unwillingness or 18inability of the person in Kandahar to tell ISAF 19what it wanted to know. 20 Q. Okay. So when you refer to

21the person, are you referring specifically to the 22Provost Marshal -23 24 25 6 7 8(613) 564-2727 A. Q. A. Well, it was --- or are you able to say? Well, it was, you know, in

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1the September 19th message, the information that 2was given to us by ISAF was it was the Provost 3Marshal that they had been talking to and he is the 4one who said, Well, I would give you, but I am not 5allowed to. 6 Then in the September 28th

7message, it seemed like the discussions had become, 8you know, more strained between ISAF and the 9Canadians in Kandahar, because this was quite a 10surprisingly blunt complaint, like, quite -- the 11person was quite worked up about us, used quite 12blunt language, and was clearly quite unhappy with 13the quality of his contacts with the Canadians in 14Kandahar Air Field. 15 16here -- yeah. I don't know if it specifies I mean, he's even struggling with

17finding out who the person he needs to talk to is. 18So he has a series of complaints about being told 19to, Mind your own business. We know what you want,

20but we're not going to tell you, like, that kind of 21stuff. 22 Q. So during this discussion

23when this person raised the difficulties they were 24having, did you advise them, Well, the Provost 25Marshal is the point of contact. 6 7 8(613) 564-2727 You should be

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Yes.

And I knew from the

3earlier discussions they had spoken to the Provost 4Marshal, but it seemed like there was a policy 5problem with Ottawa, and so I sent this message 6September 28th, again, to push our guys, IDR, to go 7and deal with CEFCOM, or whoever the appropriate 8person is, to get this issue fixed. 9 10says: 11 12 13 14 15 16 17 18 19 20 "According to [blank] when he contacts Canadian interlocutors in Kandahar, their first response to requests is, 'Why do you want to know?', followed by, 'We know you want it, but we won't give it to you'." Read) Do you know who those Canadian (As Q. Okay. In paragraph 2, it

21interlocutors are, at least by position, if not by 22name? 23 24exactly. A. In this context, no, not

But in the context of the earlier

25conversation with ISAF, one of the people that the 6 7 8(613) 564-2727

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1ISAF officials had been talking to was the Provost 2Marshal. So I had got that information in an

3earlier conversation, but I didn't get into the 4specifics with this guy. 5 He was the more senior of the two,

6the more -- the most authoritative, the September 728th message. He was sort of the top of the chain

8on these issues, I would say. 9 Q. Okay. Now, was it your

10intention that this message be passed to the 11Provost Marshal at either CEFCOM or Task Force 12Headquarters Afghanistan? 13 A. No. My intent here was for

14-- given that ISAF had identified the problem as 15being a policy problem at headquarters, that seemed 16the appropriate place to resolve it, from this 17comment earlier that I would like it -- you know, 18the message is a little bit contradictory. 19 First off, they say, We would like Then the

20to tell you, but we're not allowed to.

21second one, they're being a bit more dismissive, 22saying, Well, we're just not going to tell you, 23without really blaming it on Ottawa. 24 But from the earlier message, the

25conclusion I came to is this was an Ottawa issue; 6 7 8(613) 564-2727

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1therefore, Ottawa was the place to solve it.

And,

2therefore, this message September 28th was aimed at 3DFAIT in Ottawa to engage with National Defence 4Headquarters in Ottawa and to fix the policy and 5allow the people in the field to pass on the 6information, which did, jumping ahead a little, 7happen. 8 This problem was solved and the

9policy was changed, and the guys in the field were 10allowed to tell ISAF, but with some caveats 11attached. 12 Q. Okay. Now, if I could ask

13you to go to your next report, which is at tab 7, 14again dealing with detainee issues, this particular 15report is heavily redacted. It appears to relate

16to a proposed Afghan policy on detainees. 17 Without disclosing the policy or

18disclosing any of the information that has been 19redacted, was there discussion here relevant to the 20treatment of detainees? 21 22 A. Q. Yes. Okay. Again, I want you to

23be very careful about not disclosing anything 24that's been blacked out, but can you tell us, in a 25general way, what the concerns were that were 6 7 8(613) 564-2727

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Well, in a general sense, you

3know, we were -- this message makes it clear. 4There is there is a lot of references to the Dutch, 5UK, Australians, British, US, so our partners in 6southern Afghanistan. And, you know, we were all

7deployed sort of in separate provinces, but 8adjacent provinces in a zone that was dealing with 9many of the same problems, insurgency problems, 10narcotics problems, governance problems and, in 11this context, detainee problems. 12 And so this message deals with

13some of these common problems related to detainees, 14including issues related to treatment of detainees 15after transfer. 16 Q. Okay. Now, in December 2006

17through January 2007, you approved the Kabul 18embassy's 2006 human rights report? 19 20 A. Q. Yes. And I believe you also

21authored parts of that report? 22 23 A. Q. That's correct. What is the intended purpose

24behind these reports? 25 6 7 8(613) 564-2727 A. That's a good question. One

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1answer is that we do these reports because we do 2these reports. So in my previous posting in

3Romania, we did something similar on the 4Palestinian human rights situation and governance 5situation. 6 So you are aware, you know, in

7certain missions, there is this obligation to 8produce a report at the end of the year summarizing 9for Ottawa, you know, general patterns, tendencies 10on human rights and governance questions, and that 11would include some sort of general assessments, 12developments in the last year since the previous 13report, and then there are some recommendations at 14the end. 15 It was never clear, you know, what

16happened to these reports, if anything, once they 17were sent in, but, you know, it was a significant 18product. It was the embassy's major human rights

19report for that year. 20 21seriously. So, you know, we took it A lot of work usually goes into these,

22and it is supposed to lay out the kind of 23up-to-date state of our understanding, and then, as 24I mentioned, there is a few recommendations, 25usually eight, nine, ten recommendations, at the 6 7 8(613) 564-2727

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Those go to the human rights

3division at Ottawa headquarters of DFAIT, and after 4that I am not entirely clear where they go or what 5is done with them, but -6 Q. Okay. Now, if I could ask

7you to find volume 2 of the white covered witness 8book? 9 10 11 12 A. Q. A. Q. Hmm-hmm. And at paragraph 14 -Sorry, which tab? Sorry, tab 47. There is a

13section titled "Physical Integrity and Security of 14The Person". Paragraph 17 has been redacted

15completely, but starting with paragraph 14, you say 16that: 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "Political repression, human rights abuses and criminal activity by warlords, police, militia and remnants of past Afghan military forces are of serious concern to Afghans. Military, intelligence and police forces have been accused of involvement in

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arbitrary arrest, kidnapping, extortion, torture and extrajudicial killing of criminal suspects. Although

the situation has improved significantly compared to previous regimes, public trust in law enforcement agencies remains low." In that paragraph and in some

11others where the same type of comments are made, a 12question that came to my mind is: If you believed

13by December 2006 that there was serious and 14credible evidence of mistreatment, why wouldn't the 15report come out and expressly say so, instead of 16referring to accusations of these things? 17 A. That's a good question.

18First, I would say that obviously some parts of the 19report have been blacked out and it may be that 20some blunter language is behind those redactions. 21 In terms of paragraph 14, there is

22a certain format, you know, to these reports, and 23this kind of language often gets used in these 24kinds of reports. 25 6 7 8(613) 564-2727 If I look back at it and I was

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1writing it today, I might use something different. 2For example, you know, in the intelligence area, 3you use words like "assess" or "judge". 4 So if I was writing it with that

5sort of -- from that sort of perspective, I might 6have written, you know, We judge or we assess that 7military intelligence and police forces have been 8involved in arbitrary arrests and arbitrary 9extortion. 10 So here it is slightly -- there is

11a bit of an arm's-length element to this statement. 12I guess what it is is it's a summary overview of 13the situation based on information we have heard, 14which is I suppose technically in the form of 15accusations. We haven't been into facilities and We haven't -- we

16watched torture take place.

17weren't at the time interviewing detainees 18ourselves, so we didn't have any first-hand 19account. 20 So using a kind of language, which

21reflects, you know, this information is coming from 22sources which are not for us first hand. 23 But I am not crazy about it. Now

24I look at it, you know, it's not a -- it could have 25been worded more clearly, I would say. 6 7 8(613) 564-2727

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Having said that, it may well be

2that there is clearer wording in some of these 3areas that have been blacked out, but I can't speak 4to that, obviously. 5 Q. Right. So one paragraph in

6this section that appears to have been blacked out 7completely. 8 9 A. Q. Hmm-hmm. And paragraph 15 has got some But, along a similar vein, in

10deletions, as well.

11this report or in your emails that we have looked 12at so far, there doesn't seem to have been an 13express recommendations made that, We cannot allow 14transfers to continue under these circumstances and 15they should be stopped. 16 Is there a reason why that type of

17recommendation wouldn't have been expressly stated? 18 A. I just have one more thought

19to my previous question, if that is all right. 20 21 Q. A. All right. If we put information in

22here, there is a sort of implication that we 23believe it to be true, that we are not just 24repeating rumours that we have heard. Our judgment

25is that there is validity to these accusations, and 6 7 8(613) 564-2727

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1so that is sort of the premise for their being 2included. 3 So that is on paragraph 14, for example. As for the recommendations, it

4seems to me, when I look at them, I notice one 5recommendation which does touch on it. 6has been blacked out, but -7 Q. Are you looking at the third Some of it

8bullet point on the last page? 9 10 11 12the tab. 13 14on it? 15 16bullet point. 17 18 THE CHAIR: THE WITNESS: Okay. I think that is MR. LUNAU; 1829, yes, the third THE CHAIR: It has the number 1829 A. Yes. Which page are you on? The very last page of

THE CHAIR: MR. LUNAU:

19getting at this issue in a slightly oblique form. 20 As a general comment, though, you

21know, my sense, I think, when this was drafted, was 22that problems that had been identified earlier 23would have been resolved, you know, that by -24through the follow-up, going back to May/June 2006, 25and this is reflected in some of my messages in 6 7 8(613) 564-2727

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My impression was that action had

3been taken to address the concerns which we had 4identified. So it wasn't necessarily clear to me

5in December exactly what was happening with our 6detainees, and part of that is that there was, 7frankly, a great deal of secrecy within government, 8on the part of the Canadian Forces, as to what was 9happening with our detainees. 10 Q. Okay. But your impression by

11December 2006, you presumably had learned more than 12you knew when you first arrived in April. Is it

13fair to say that, first of all, the detainee 14situation was evolving during that period? In

15other words, it was not sort of a static situation; 16that there were steps being taken to address some 17of these issues? 18 A. Yes. You know, I mean, there One is that, you

19are two ways of looking at it.

20know, we -- and when I say "we" here, I am talking 21about the NATO allies in the south. 22 I used to meet, I'd say, every day We

23with someone from one of our NATO allies. 24talked all the time and we had very good

25information exchange, very collegial relations, 6 7 8(613) 564-2727

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1very candid and frank, and we used to talk about 2every and any issue. 3 So I was aware of kind of the

4broader patterns on other issues, detainees, and 5there were broader patterns which were of general 6concern. And I don't think I am revealing anything

7to this detainee policy, it was -- from the heavy 8redacted message earlier, it was an attempt to 9tackle some of these general patterns. 10 At the same time, that co-existed

11in my mind with a sense of there had been action 12taken by Canada in response to our earlier 13messages, and my impression was that there had been 14progress, and, you know, there was dialogue with 15the appropriate organizations, which should have 16led to improvements. 17 And maybe there was a third thing

18in my mind, which is that there were still some 19serious problems which had not been addressed, but 20the exact nature of those problems I wasn't aware 21of enough to come out with a forceful 22recommendation. 23 This is a very sensitive issue, to

24state the obvious, and, you know, I am fairly 25careful in my approach. 6 7 8(613) 564-2727 I like to have enough

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1information before weighing in, if I am going to 2weigh in, and I may have felt in December that I 3didn't have the information I needed to push 4aggressively on this. 5 It was clearly a -- if it was

6still a problem, clearly there were people in 7Ottawa who had come out with this policy under 8which we were operating, and to challenge those 9decisions would require a solid, solid information 10base, so that I wouldn't look ridiculous and say 11something which, you know, turned out to be 12mistaken, right? 13there. 14 We have to understand enough There is a credibility issue

15before intervening, and I am not sure in December I 16was at that stage. 17 18number. In general, we were very few in There was three of us, four if you include One of the three was doing

19an Afghan officer.

20embassy-wide communications. 21 So there were really only two of

22us doing policy issues, and this was a period 23around -- in the buildup to, around, and then in 24the aftermath, of Operation Medusa. And there were

25some very serious problems, and a great deal of 6 7 8(613) 564-2727

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1serious problems which we really were struggling to 2get on top of, and we were badly understaffed and, 3frankly, overworked. 4 So I simply didn't have as much

5time as I would have liked to devote to any one 6issue. If we had the dedicated pol/mil officer, we

7would have had that information base, but I was 8dealing with the pol/mil on a part-time basis. 9 So this was one of those issues

10that I sort of knew about as something that needed 11more attention, but we got at some of the aspects 12in this human rights report. But I think we

13weren't yet at the point where we felt we were 14ready to weigh in with what would amount to a 15frontal attack on the core policy. 16 Q. Would you agree that if you

17didn't feel you were in that position, it is 18possible that the CEFCOM Commander, the Task Force 19Commander and the Provost Marshal similarly didn't 20feel they were in a position to confront the policy 21or to weigh in on the matter? 22 A. I wouldn't extend that, no.

23I think they were in a quite different position. 24 So the differences are that -- so They're in Kandahar. And,

25first we were in Kabul. 6 7 8(613) 564-2727

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1you know, in Kabul we're dealing with embassies. 2We're dealing with the Afghan government. 3dealing with NATO and the UN. 4management is in Kandahar. 5 This was one issue among maybe 15 The Provost Marshal, this is In general, DND had a lot In terms We are

All the detainee

6we had to deal with. 7his meat and potatoes. 8of people.

They had about 2,000 people.

9of DFAIT, you could count them on one hand at the 10time. You know, we had one person in the PRT. We had two officers in We

11had one person at KAF.

12Kabul, plus the communications officer and the 13ambassador, but he was dealing with a whole range 14of issues, including administration. 15 16people. But the Task Force had over 2,000 It had MPs, people who dealt full time

17with, you know, these issues, including detainees. 18And as for CEFCOM, the commander, yes, he is in 19Ottawa, but I believe in his testimony he 20identified detainees as one of three big issues 21that they focussed on, were focussing on at the 22time. 23 The final aspect is, ultimately,

24it was their policy, CEFCOM's, Canadian Forces' 25policy. They created it and were managing it, so

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1they should have understood it.

It was hard for

2us, as I mentioned, to get information, partly for 3geography because we in Kabul, but partly because 4of relations between DFAIT and Canadian Forces, 5which, at senior levels, were quite strained and in 6the field were quite strained. 7by any means. 8 Individual working levels, Not with everybody,

9relations were often very good and collegial and 10effective, but at high levels there were serious 11frictions. 12 Q. Just to digress for a minute,

13something you said sparked something in my mind. 14You said that this policy was their policy, the CF 15policy. I assume you are referring to the policy

16reflected in the December 2005 agreement? 17 18 19 A. Q. A. Yes. And then -Partly that, and then partly

20how the arrangement was in fact implemented. 21 Q. So in May 3, 2007, there is a

22supplementary agreement in which DFAIT now assumes 23some responsibilities for follow-up. 24 25fumbled the ball? 6 7 8(613) 564-2727 Was there a feeling that CF had If it was their policy that in

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1effect is being replaced with a new regime, was 2that part of the thinking, that basically they had 3dropped the ball on this? 4 5general thinking? 6 Q. Well, no, I am really not A. Was it my thinking, or more

7interested in your -- well, I am very interested in 8your personal opinion. Maybe we can talk about it

9over a beer some time, but in terms of your being 10at the embassy in Kabul when this arrangement took 11place and being privy to official communications, 12and so on, I am just wondering if you can provide 13some insight into the -- into what I've just said. 14 15 If not, that's fine. A. Sure. I can give you my, I I

16guess, assessment based on my vantage point.

17think -- I don't know if there was a sense in DFAIT 18generally that DND had dropped the ball. My sense

19was that the messages I got from headquarters on 20this were somewhat protective of what CF was doing 21and what DND was doing. They didn't seem to be

22challenging them or criticizing them. 23 Nevertheless, the policy was

24clearly badly flawed and was not doing what it was 25supposed to do, and that became more and more 6 7 8(613) 564-2727

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1apparent with, frankly, outside scrutiny, legal 2scrutiny in the form of legal challenges and media 3coverage. 4 And the media quite early on

5identified what was wrong with the policy, and 6that, you know, media and other scrutiny came to a 7head in April of 2007, and that led to media, 8public, political pressure, and it was only that, 9in my view, which led to the change. 10 Up to that point, the government

11as a whole seemed to have been fairly content with 12how we were doing things. 13 In the field, personally, I mean,

14the view, my own awareness evolved, but I think by 15around December 2006, I had this sort of sense that 16this was -- there was a rock and, if you lifted the 17rock, you would find a lot of, you know, ugly 18things, creepy-crawlies under the rock. And I

19wanted to know enough, when we got to the point of 20perhaps trying to lift up the rock. 21 Q. Now, just to finish up my

22questions on your human rights report, do you know 23if the Provost Marshal or members of the military 24police would have obtained a copy or had an 25opportunity to read this report? 6 7 8(613) 564-2727

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They would have had the

2opportunity, and fairly -- I am a little 3constrained from answering, because I don't have 4the cover sheet which -- and the distribution list 5for this report. 6who it went to. 7 8 So I don't really know anymore Was it copied to DND? Q. A. I can't say. I don't know.

But it is an important report

9in the sense it was the Canadian government's kind 10of intended -- that is the intention of these 11reports. It is supposed to be the authoritative

12Canadian government view on human rights in country 13X. Here country X, Afghanistan, is obviously an

14important country for Canada in 2006. 15 So you would hope people would

16take an interest in it, but who it was given to and 17who read it, I am afraid I have no idea. 18 Q. Okay. Now, the next event

19that seems to be relevant is an interagency meeting 20that you went to in March 2007? 21 22 A. Q. Yes. And that is discussed in your

23affidavit at paragraph 54. 24 Was the commander of CEFCOM

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No. But the CEFCOM-J9 was

I think so.

There is some

5ambiguity about which parts of DND some of these 6people represented. 7I knew; one I didn't. There were two DND reps. One

And the one I knew, she has

8kind of jumped around a bit between different parts 9of DND. 10 There are messages which are

11around that time in which she is identified with 12CEFCOM-J9. So my conclusion was that she was a She seemed to be the major note So to the extent that

13CEFCOM-J9 rep.

14taker at the meeting.

15CEFCOM-J9 seemed to have the lead in DND, that 16would also make sense. 17 18percent sure. But I acknowledge I am not 100 She may have gone back to a I don't know

19different part of DND by that point. 20exactly when she changed. 21

The second person, I am not sure It was an

22who that was, the second DND person. 23interagency meeting.

I only really knew three

24people, apart from myself, at that meeting. 25 6 7 8(613) 564-2727 Q. Okay. Now, the two DND reps,

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1one of them, whom you knew, was Ms. Bos? 2 3 A. Q. Yes. She was the person you

4assumed was the J9? 5 6 A. Q. Yes. And then there was another

7person there whom you didn't know? 8 9 10 A. Q. A. Yes. Okay. I don't want to be too

11didactic about who all of the other people were, 12but my feeling at the time was they were sort of 13the DND contingent, and Mieka I'd know from before. 14Then there was a bunch of people I had never met 15from a bunch of government departments. 16 Q. Okay. The name Gabrielle

17Duschner, did that mean anything to you at the 18time? 19 20 A. Q. No, I don't think so. Now, you said that at this

21meeting you spoke very directly to the issue of the 22treatment of detainees who were transferred to 23Afghan authorities. 24 25 6 7 8(613) 564-2727 A. Q. Can you recall what you said? Yes. Can you tell us?

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I can, and I didn't -- this

2was the first detainee meeting I had been to in 3Ottawa. I had always been dealing with it from the

4field, and it just so happened it was taking place 5that week and I happened to be in Ottawa and I was 6invited along by Eric Laporte. 7 And it was an interagency meeting.

8There was maybe 12, 15 people around the table, so 9it seemed like a good opportunity to make sure that 10they understood what was happening. 11 I did have a sense that maybe --

12you know, there is a format with diplomatic 13reporting which, you know, encourages sort of, you 14know, careful use of language and can be slightly 15restrained. 16 And I had this idea that, you

17know, maybe these messages we had been sending in 18hadn't fully registered, and sitting at this table 19listening to people talk, I did get the sense there 20was -- that the dimension of the problem had not 21been grasped. 22 So I worked on it ahead of time I said it as clearly as I

23what I was going to say.

24could, and that was that, you know, by that point, 25detainees were being given to the NDS, the Afghan 6 7 8(613) 564-2727

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So I said, you know, the NDS

3tortures people, that is what they do, and if we 4don't want to have detainees tortured, we shouldn't 5give them to the NDS. 6 7at that meeting. 8 Q. Okay. And in your affidavit, That was my primary intervention

9you say that at this point you observed the person 10you described as the J9 representative put down her 11pen and cease taking notes? 12 13 14put her pen down? 15 16 A. Q. Yeah. That was Mieka Bos. A. Q. Mmm. Do you know who it was who

Now, the issue of the

17comments you raised about, The NDS tortures people, 18that is what they do, why did you table that issue 19at this meeting? 20 A. Well, this was sort of what

21the meeting was about, detainees, and it was in the 22context by this point of the challenge, you know, 23the legal challenge, if you like, the complaint 24from Amnesty and the BCCLA. I think that was in This

25February, February 21st, maybe, of 2007. 6 7 8(613) 564-2727

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1meeting was in early March. 2 3attention still. There was a great deal of media By this point, I had looked more

4into the question of our detainees and learned more 5about the NDS as an organization, and I had a 6better knowledge base and I felt ready at this 7point to make a more blunt intervention, and having 8the opportunity of being able to, you know, convey 9this information to the whole interagency Canadian 10government team. 11 It was a kind of working level

12meeting, but it was the key people from all of the 13different departments. 14an opportunity to waste. 15 Q. Okay. Apart from Ms. Bos, So it seemed like too good

16did anybody else stop taking notes? 17 A. Well, I think she was the

18only kind of -- she was, like, the main note taker. 19She was, like, from the beginning had been -- you 20know, often there is one note taker for the 21meeting. 22 So she was, in my memory, the only

23one taking notes, and she was certainly the only 24one I observed stop taking notes. 25 6 7 8(613) 564-2727 Q. Did you speak to her about it

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No.

No.

I found it -- it

3was very unusual, though. 4 Q. So after you raised this

5issue and sort of tabled this comment, 'The NDS 6tortures people, that's what they do, and if we 7don't want our detainees to be tortured, we 8shouldn't give them to the NDS', what happened 9after that comment was tabled? 10 11 12 13silence, I think. 14uncomfortable. A. Q. A. In the room? Yes. There was kind of a bit of

Some people looked a bit

Mieka stopped, was surprised

15enough, or whatever, to put her pen down. 16 It was interesting for me. I had

17been -- by that point, it was clear to me very 18little had been done to fix our detainee problems, 19that these earlier messages had not had any effect. 20Things were continuing as before, essentially. 21 And this wasn't exactly a

22revelation, but this meeting helped clarify in my 23mind what the -- what we were up against. Clearly,

24they felt this was information they could not 25really pass on to their superiors, and their way of 6 7 8(613) 564-2727

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1dealing with that was to, you know, essentially 2expunge the comments from the record of the 3meeting -- not expunge, but avoid entering them. 4 Q. So did the discussion change

5topics at that point? 6 A. I don't remember doing that.

7I remember sort of hanging there, and then sort 8of -9 Q. It seems kind of very

10peculiar, wherein this kind of dramatic statement 11gets tabled and -12 13 A. Q. Yes. -- people say, 'Well, that's Now let's get back on

14very interesting, Richard. 15topic.' 16 A. Yes.

I felt a bit -- you

17know, everyone reacted a bit differently, I would 18say. Some people seemed interested in it, and I

19think some people, you know, it confirmed maybe 20what they already knew, and some felt 21uncomfortable. And what can you say, really, to

22that kind of question -- that kind of comment, I 23mean? I just wanted to make sure that everyone

24knew that, that this was our assessment in the 25field. 6 7 8(613) 564-2727

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And, you know, I wasn't expecting I guess I was hoping it would

2anything immediate.

3be kind of maybe fed back into their superiors. 4And particularly as they had been sensitized, you 5know, I hoped, by what I will call the legal 6challenge and that they would be worried about what 7was going to come their way, and I was hoping that 8we might -- this would help encourage them to fix 9it, that understanding the scope and the enormity 10of the problem would give them the information they 11needed to tackle this problem. 12 But I wasn't expecting that to

13happen in the meeting, obviously, and these people 14were not really decision makers. They were -- as I So my

15say, it was kind of a working level meeting.

16intent was really just to help this information 17filter back into their organizations. 18 Q. At the time of this meeting,

19when you referred to the legal proceedings, is that 20the Amnesty proceedings in the Federal Court in, I 21think it was, February 2007? 22 A. Yes. There was the -- and I

23think at the same time there was -- correct me if 24I'm wrong. The complaint to the MPCC I believe was

25then issued at the same time, maybe even on the 6 7 8(613) 564-2727

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I have February 21st in my mind, but I

2stand to be corrected if that is not the case. 3 Q. Right. So you were aware of

4those things at the time of this meeting? 5 A. Yes. And, actually, that You

6was -- it helped also to clarify in my mind.

7know, when I read the Amnesty complaint, I thought, 8well, this is exactly what's happening, and then I 9felt, you know, that maybe I had not been forceful 10enough in alerting headquarters to what was 11happening with our detainees. 12 As I say, it took me a while to

13understand, but by early 2007 I had a pretty good 14picture. 15 Q. Okay. Now, in March 2007,

16you make a site visit. 17to Collection E, tab 30.

I would ask you to go back This email appears to

18refer to a visit to a detention facility in March. 19 20 A. Q. Hmm-hmm. Did you personally make this

21visit to the detention facility? 22 23 A. Q. Yes, I did. Did you personally speak to

24the warden who is referred to here? 25 6 7 8(613) 564-2727 A. I don't think I did.

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Okay. I was part of a delegation

3and, you know, the warden briefed the delegation. 4 Q. Do you recall if this visit

5took place before or after the interagency meeting? 6 7 8 A. Q. A. It would have been after. Okay. So the interagency meeting, I

9was in Ottawa and it was when Mr. David Mulroney 10had -- he had been appointed in February, but he 11came during that week and he gave a speech in our 12main auditorium in DFAIT to anyone interested in 13Afghanistan, which turned out to be a lot of 14people. 15 It was full, and I was there. I listened to his speech and went

16up and had a few words with Mr. Mulroney 17afterwards, and he -- we discussed that he was 18going to soon come out to Afghanistan. I wanted to

19talk to him and talk about some of the issues that 20I felt needed discussing. 21 He said, Well I'll be coming out So this was that

22very soon and we can talk then. 23visit.

We went down, and I am pretty sure the

24visit to this facility was part of this program we 25set up for Mr. Mulroney as a kind of introductory 6 7 8(613) 564-2727

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1tour of Afghanistan in his new capacity as 2Associate Deputy Minister of DFAIT. 3 4misunderstood. Q. I may have actually

The KAF detention facility you are

5talking about in this email is the CF? 6 7 8warden? 9 10 11 A. Q. A. He's the Canadian officer. Okay. Yeah. This is like a A. Q. That's right, yes. So the warden, who is the

12temporary place where you would hold detainees 13before transferring them within 96 hours to the 14Afghans. 15 Q. Right, okay. Then now the

16date of this email is May 4, 2007, so the new 17supplementary arrangement is now in place? 18 19 A. Q. Hmm-hmm. And under paragraph 2, the

20first bullet point says: 21 22 23 24 25 6 7 8(613) 564-2727 "It would underline DND ownership of detention. DFAIT would assume responsibility for follow-up once a detainee is

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transferred to GoA." Which is Government of So does this accurately reflect the

4regime that existed now after May 3, 2007; in other 5words, that DFAIT assumed responsibility for 6follow-up after transfer? 7 8 A. Q. Yes. Okay. And when it says "DND

9has ownership of detention", does that ownership 10mean during the period of time the detainee is 11actually in the custody of the CF? 12 A. Yeah. Here the idea was to

13make a different point, which was that they weren't 14just a mechanism for handing off detainees, but, in 15fact, there was a period of responsibility which 16extended beyond the hand-off. 17 So under the original proposal, it

18was DFAIT that would inform the ICRC and the 19Afghanistan Independent Human Rights Commission, 20who, as of March, were being informed and were 21doing monitoring. That was going to be a DFAIT

22responsibility as part of our sort of post-transfer 23follow-up. 24 Our idea was, and I think this was

25adopted, that ICRC certainly wanted this, too, but 6 7 8(613) 564-2727

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1we should inform them, while we still had them, you 2know, while they were still in Canadian custody, 3while the Canadian Forces still had them. 4 That is the point at which ICRC

5and AIHRC would get involved, and then the -- that 6would sort of also help reinforce the idea that 7monitoring isn't just something that is a DFAIT 8concern, that the monitoring or I guess, more 9generally, treatment of detainees is also -- it is 10a whole-of-government issue, if you like; that even 11if we break it down into detention, and then 12monitoring, with DND having a lead on detention and 13DFAIT having the lead on the monitoring, they would 14still fit it within the whole-of-government 15framework in which all parts of the system have 16roles, and that one organization doesn't sort of 17wash its hands of its role simply because it is 18transferred. 19 20 Q. A. Well -I don't know if that is a

21clear answer or not. 22 Q. One of the issues I have had

23in my mind about the whole-of-government approach 24is the notion that if everybody is responsible for 25something, nobody is responsible for something. 6 7 8(613) 564-2727

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And I would assume -- have to

2assume that there was some demarcation of various 3responsibilities amongst various government of 4Canada entities. 5 In other words, you have a

6whole-of-government approach, but, you know, CF, 7here is your mission. DFAIT here is your mission. CIDA,

8Correctional Services, here is your mission. 9here is your mission. 10 Notwithstanding it is a

11whole-of-government approach, the various 12government organs who are involved know where the 13responsibilities begin and end. 14 So what I am interested in knowing

15is if people come before the Commission and say, 16Well, look, at least after May 3, 2007, following 17up with what was happening to detainees and 18investigating allegations of abuse was not my -19not within my jurisdiction as an MP, because that 20responsibility at that point went to somebody else, 21went to DFAIT. 22 And can you comment? Is that sort

23of an accurate perception of how the 24whole-of-government approach was being 25operationalized? 6 7 8(613) 564-2727

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108

To answer your question, I

2would like to refer to the standard operating 3procedures, if I may. 4 5 6the tabs. Q. A. All right. I am just flipping through I think it is the

I found the draft.

7first draft of -- that's behind tab 29. 8 9book? 10 11 12 A. Q. A. Yes, Collection E. Okay. Twenty-nine. I am just not Q. Okay. Is that in the same

13sure if there is a final version of the SOPs in 14here, or not. 15 MR. PRÉFONTAINE: You find it in

16the main book of documents, volume 2, tab 27. 17 18Préfontaine. 19 20 THE WITNESS: Okay, good. MR. LUNAU: Thank you, Mr.

So these are -- if I can give you

21my kind of overview, if everyone has them, it's the 22same document, but in an earlier draft form, and 23then a later finalized form. 24finalize it. 25 6 7 8(613) 564-2727 There was an earlier finalization It took a while to

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1that took place in early May.

By the middle of

2May, we had kind of finalization in the sense that 3various parties, including us in the embassy, had 4passed in our suggestions, our ideas, and they had 5been -- all of these inputs had been incorporated. 6 But they weren't final in the

7sense there was a process then of implementing them 8on the ground and learning lessons from 9implementation and trying to refine further 10documents. 11 So this July 20th one, which is

12behind tab 27 of the main documents for the 13witnesses, volume 2, I can't say this is the final, 14final one. Obviously this is a much more advanced

15version, and, unfortunately, there is a big chunk 16blacked out. But, anyway, that is maybe not going

17to inhibit answering the question. 18 So, essentially, what this

19attempts to do is to integrate all of these 20different actors into a whole-of-government 21approach on the post-transfer -- not even the 22post-transfer follow-up. It is who has

23responsibility, when, from detention, up until the 24point we decide we are not responsible anymore, 25which I think was sentencing, although that may 6 7 8(613) 564-2727

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1have changed, and then, within that framework, who 2is responsible for which aspects. 3 And that includes, to answer your

4question, I mean, there was certainly in an earlier 5version -- and maybe it is not in this. 6is part of the blacked-out one. 7 8me look. 9 There is another one, too, which I don't know if we But in the earlier version -- Let Maybe it

10would be the midnight version.

11have that, which is the version after the first 12inputs had been collected. 13that is part of the package? 14 Does anybody know if No.

In general terms -- and I don't

15think I would be violating any section 38 issues 16here -- it was intended to be, and there was indeed 17built into the SOPs, a mechanism by which 18information gathered by one government department 19would be fed back into the other government 20departments. 21 And, specifically, here I am

22talking about information generated from site 23reports. So DFAIT took on -- David Mulroney agreed

24that DFAIT would take on the monitoring function. 25Those monitoring visits would generate reports. 6 7 8(613) 564-2727

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1Detainees would be interviewed. 2 We would collect information from

3those detainees, and then these reports -- this was 4the idea -- would be fed back to relevant actors, 5including the people who were transferring the 6detainees, in this case, the Canadian Forces, the 7military police. 8 So the idea was for the military

9police, Canadian Forces, based on these visits -- I 10mean, the idea was, certainly in the earlier 11versions, these visits would be frequent enough so 12that we would feel confident that the detainees we 13transferred would not be tortured after transfer. 14 And, you know, you would have to

15have somebody who would decide on the frequency of 16visits, and also make sure the visits are serious 17enough to generate the information that would 18provide the confidence to continue transferring. 19Then if you transfer, you know, a large number of 20detainees and you are confident those are not 21tortured, then you might be able to start reducing 22the frequency of monitoring, just kind keep an eye 23on it, but without such a rigorous or intrusive 24level, as would be required at the beginning. 25 6 7 8(613) 564-2727 That information generated from

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1these detainees would provide the commanders on the 2ground, military commanders and military police, 3with the confidence that the people they were 4handing over would not be tortured. 5 6SOPs. That was one of the intents of the It was made explicit in the -- I think the

7mid-May version, but I think it is probably -- if I 8was to sit and read through this, it would be kind 9of in an early form. This was the earliest form of

10the SOPs in here, as well. 11 That was the model that was drawn

12up, so, in that sense, a whole-of-government model, 13you know, with a feedback loop, if you like, to 14ensure the information was properly distributed to 15those who needed it and had to make these very 16difficult decisions about whether it was safe to 17keep handing people to the NDS. 18 19 Q. A. Okay. As an editorial comment, the

20system didn't work that way, I believe, in 21practice. I think it didn't work really anything

22like that, but that was the intention and this was 23I think what is embedded in the SOPs. 24 Q. Okay. I have some questions

25about the SOPs while we are here, but this might be 6 7 8(613) 564-2727

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1a good time to take a break. 2 THE CHAIR: Yes. We will take our

3lunch and we will resume at 1:30. 4--- Luncheon recess at 11:58 a.m. 5--- Upon resuming at 1:30 p.m. 6 7 8 9Wallace here. 10 THE CHAIR: Sorry, yes. I like to THE CHAIR: Mr. Lunau. MR. WALLACE: Mr. Chair, it's Mark Thank you.

11know where you're coming from. 12 MR. WALLACE: We are going to lose

13sight of each other pretty soon here. 14 15 THE CHAIR: MR. WALLACE: Yes. I would just like to

16make an observation and a request of Mr. Colvin, 17actually. 18 As we know here in the room, there

19are a number of people within the Canadian Armed 20Forces who have the title "Provost Marshal" as part 21of their title, and I was wondering if Mr. Colvin, 22when he is referring to someone as "Provost 23Marshal", could be a little more specific in terms 24of exactly which person he is referring to, whether 25by name or by office. 6 7 8(613) 564-2727

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THE CHAIR:

I think that is I think you know

There are several.

3which ones they would all be. 4 5 6fair with that? 7 8 9 Mr. Lunau. BY MR. LUNAU: Q. Now, before the break, Mr. THE WITNESS: THE CHAIR: Yes, very good. Okay. All counsel is

10Colvin, we were looking at the SOPs in the document 11book, volume 2, tab 27. 12 13 A. Q. Yes, that's correct. Okay. These SOPs, this I gather

14particular set, is dated July 20, 2007.

15we don't know if this is the final iteration of the 16SOPs or not; is that true? 17 18 A. Q. Yes, correct. Now, there are just a couple

19of paragraphs I would like to ask you about. 20 First of all, these SOPs were

21developed as a consequence of the May 3, 2007 22supplemental agreement? 23 24 A. Q. Correct. Okay. So, in effect, they're

25intended to -- we keep using this word 6 7 8(613) 564-2727

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1"operationalize", but that was their intention? 2 A. Yes, to flesh out,

3operationalize, and so on, yes. 4 5provide that: 6 7 8 9 10 11 12 13 14 15 16 17 "DFAIT will regularly share with the Canadian Forces its reports regarding the conditions of the facilities, holding detainees transferred by the Canadian Forces and an assessment of compliance by Afghan authorities with the Canada-Afghanistan detainee transfer arrangements." Read) To your knowledge, were such (As Q. So in paragraph 8, the SOPs

18reports provided to the Canadian Forces by DFAIT? 19 A. That's a hard one for me to

20answer, because especially as time went on, I, 21myself, began not to be copied on these reports. 22 So the distribution list was

23reduced to a very few people and I wasn't always 24privy to these reports, myself. So it is hard for

25me to say what happened to them and who they went 6 7 8(613) 564-2727

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116

Okay.

And then paragraph 9:

"While DFAIT leads in the implementation of these SOPs, this remains a wholeof-government effort and will require continued contributions and expertise from a variety of Canadian government departments and agencies." (As Read)

It lists some of them there, and

"The following lists the primary roles and responsibilities of selected authorities or departments, agencies." (As Read)

The second bullet point: "The Canadian Embassy in Kabul and the Canadian Ambassador have a central role in the coordination of Canadian post-transfer follow-up requirements, with

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the assistance of other relevant Canadian actors." (As Read) Now, were you at the Canadian

5embassy in Kabul at this time? 6 7 A. Q. Yes, I was. So did you have any

8involvement in what is being discussed in this 9particular bullet point? 10 A. Yes. Yes, I did, especially As time

11in, I would say, May and June of 2007.

12went on, as I mentioned, I began to be, I would 13say, cut out, but at the beginning I was very much 14involved. 15 So, for example, I helped draft

16the embassy's comments on the very first cut of the 17SOPs, and was involved with what you might call 18policy questions, but, as I said, after a couple of 19months, that began to peter out. 20 21 22 23 24 25 6 7 8(613) 564-2727 Q. Right, okay.

Then the next bullet point: "DFAIT personnel at Kandahar Air Field, the Provincial Reconstruction Team and the Embassy are responsible for

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assessing the condition of the detainees transferred by the Canadian Forces and conduct appropriate follow-up measures in accordance with agreed procedures and in consultation with the Ambassador..." And some others. (As Read)

So, again, given

10this is a task assigned to the embassy, were you 11involved in assessing the condition of detainees 12and follow-up measures? 13 14 15bullet point: 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "DND is responsible for the detention, release or transfer of individuals and retains appropriate records for detainees in their custody, provide legal, medical, technical and logistical and force protection support for DFAIT and other government A. Q. Yes, I was. Okay. And then the last

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departments in the conduct of post-transfer follow-up measures." (As Read)

Now, it seems pretty clear to me

5that after the May 3, 2007 agreement and the 6arrangement reflected in these SOPs, it was pretty 7clearly that DFAIT was taking responsibility for 8post-transfer assessment, the condition of 9detainees and follow-up measures, and DND was 10responsible for detention, release or transfer, 11which I would understand to mean the DND 12responsibility ended at transfer and the DFAIT 13responsibility then picked up. 14 15 Is that a fair understanding? A. Yes, in terms of what we call So,

16in government the lead responsibility.

17essentially, it went from a DND lead to a DFAIT 18lead, but I think even in this, you know, little 19delineation of roles and responsibilities, 20nevertheless it's presented still as a 21whole-of-government package. 22 So, for example, DND, yes, is

23responsible for detention of these -- or transfer 24of individuals, but even afterwards they have 25assigned roles. 6 7 8(613) 564-2727 So in the conduct of post transfer

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1measures, they are to provide legal, medical 2technical and logistical and force protection 3support for DFAIT. 4 So what it means is, yes, DFAIT is

5the organization tasked with the actual monitoring, 6but DND is required to, for example, get the teams 7to the facilities. So you had to have force

8protection, meaning on the convoys and soldiers to 9ensure they arrived safely and left safely. 10 Plus here we have a reference to

11legal support, because the only lawyers in theatre 12were JAG lawyers, DND lawyers. I'm not sure what

13technical is, but medical, if that is needed. 14 So there was still a role, an

15explicit role, for DND enabling the monitoring to 16take place, but the actual monitoring was to be led 17by DFAIT, yes. 18 Q. And amongst the supporting

19roles, I don't see any reference to investigative 20support. DND and, in particular, the military

21police, whom we are concerned with here, did they, 22after May 3, 2007, have any investigative 23responsibilities with respect to post-transfer 24treatment of detainees? 25 6 7 8(613) 564-2727 A. That's a good question. As

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1you say, it doesn't seem to be provided for here. 2 In practice, the investigations

3were devolved to other parties, meaning the Afghan 4government and the AIHRC, the Afghanistan 5Independent Human Rights Commission. 6 So I think the decision was taken

7that those were the bodies that should investigate 8allegations of torture. 9 10 Q. A. All right. But you are right, I don't

11think it is made explicit here in the document. 12 Q. Okay. And if I could ask you

13to look at paragraph 19: 14 15 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "In the event that Canadian personnel are made aware of allegations or evidence of abuse, mistreatment of a detainee or detainees transferred by the Canadian Forces during periodic follow-up visits or through other means, DFAIT will enact the diplomatic contingency plan as per Annex B, which could include notifying

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Afghan authorities, the AIHRC, UNAMA and the ICRC requesting the establishment of an Afghan investigation or conducting a subsequent follow-up visit and interview with the detainee or detainees as appropriate." (As Read) Again, there doesn't seem to be an

11investigative role for the military police to deal 12with such reports? 13 A. Yes, you are right. Annex B is blacked

14Obviously, I just looked ahead. 15out in its entirety.

So I suppose theoretically

16there might be some provision in there, but, as you 17say, according to the summary, it is not mentioned. 18 So I am not sure exactly what is Maybe that is one of the

19on that full menu. 20options. 21 22 23 24 25 6 7 8(613) 564-2727

It is hard to say. Q. Similarly, paragraph 20: "Where a detainee appears to be in immediate danger of abuse or in urgent need of medical care due to apparent

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abuse, Canadian personnel shall insist that Afghan authorities take appropriate measures and shall notify the AIHRC and the ICRC. If the

detainee in question was originally transferred by the Canadian Forces, Canadian personnel may request that Afghan authorities return that detainee to Canadian custody until Canadian personnel are satisfied the detainee is no longer at risk." (As read)

So, again, the first responders to

17reports of immediate danger of abuse appear to be 18Afghan authorities, the AIHRC and the ICRC; 19correct? 20 21 A. Q. Yes, yes. Okay. Now, you said before

22the break something to the effect that while these 23were the procedures on paper, it didn't actually 24end up working out that way? 25 6 7 8(613) 564-2727 A. Hmm.

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Can you explain what the

How did what actually happened

3diverge from these written procedures? 4 A. I am just going to look back

5at the first draft, because some of it is blacked 6out in the later one, if you don't mind. 7 8 Q. A. Sure. Well, there are two aspects One of those aspects is

9of it I've identified.

10something I wasn't necessarily aware of at the 11time, except by guesswork, and that has to do with 12who was getting these reports. 13 So I was certainly aware at the

14time that the distribution was being extremely 15curtailed, which seems to contradict somewhat the 16intention of the SOPs that these reports be shared 17with all appropriate officials, including obviously 18particularly the Task Force Commander in Kandahar, 19officials of the military police, provost marshals 20of whichever kind, officials who would need to be 21informed of what was happening to our detainees 22based on the monitoring reports. 23 And it seemed to me at the time

24that these reports were really being seen by a very 25small number of people, mostly very senior people 6 7 8(613) 564-2727

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1in Ottawa, who were jealously guarding them to the 2point where instructions began to be written into 3these reports not for forward distribution, just in 4case someone felt the urge to share them. 5 It was expressly prohibited, and,

6you know, this became difficult for us, because -7"us" being the embassy, you know, in my capacity as 8head of the political section. 9 We did get a pol/mil officer whose He was

10job would have included detainee affairs.

11not permitted to see these reports and was not 12really involved in detainee issues at all, and at 13the time I began not to see these reports either 14and I was supposed to be advising on policy. 15 So the information was not being

16shared in a form I think envisaged by the SOPs. 17 The second aspect, which is maybe

18more serious yet, is the -- I am not sure this is a 19violation of the letter of the SOPs, but I think it 20is a violation of the spirit of the SOPs, and that 21is the frequency of visits, of monitoring visits, 22and the underlying question of how many detainees 23are actually monitored. 24 The spirit of the SOPs is, you

25know, to monitor if not all of the detainees, 6 7 8(613) 564-2727

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1although that would be ideal, then a large enough 2pool that we have a good sense of what has happened 3to them and what is happening to them. 4 By what happened to them, I mean

5the large number of detainees who had been taken up 6until the May 3rd agreement, and I believe the 7exact number has been redacted out, but it is a 8number with three digits in. It is a substantial

9number, and then the freshly detained Afghans, 10which is the post May 3rd pool. 11 12monitoring. So both groups required They required monitoring, I would say,

13according to the spirit of the SOPs, in sufficient 14numbers to ensure that we had a good sense of what 15had happened to the first group and what was 16happening to the second group. 17 And this I think is where the

18implementation of the monitoring regime really 19broke down, that very few, very few of the first 20group were ever monitored, is my assessment, maybe 21just six, which is a small fraction of the entire 22number, and monitoring of the second group also 23turned out to be not rigorous. And, therefore,

24torture continued even after the May 3rd agreement. 25 6 7 8(613) 564-2727 So, again, I am not sure you could

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1say this is a violation of the SOPs, because the 2SOPs don't say, I don't believe, you know, every 3detainee has to be monitored or spells out how 4often monitoring should happen, but clearly the 5intent is to provide a rigorous, effective 6mechanism. So in that sense, I would say the

7spirit of the SOPs was not followed. 8 Q. Okay. Now, if I could ask

9you to turn to volume 5 of the witness book, the 10white-covered book at tab number 5? 11 When we looked at the SOPs, you We

12referred to Annex B having been blacked out.

13have in this document what appears to be a copy of 14Annex B dated July 2007. 15 Do you recognize this document and

16the one following, I guess, as Annexes B and C to 17the SOPs? 18 19 A. Yeah, it looks familiar.

I am not convinced I received this

20version of the SOPs, the 7th July version, but I 21certainly saw earlier versions, and this looks 22certainly similar to the ones that had been in the 23earlier version. 24document. 25 6 7 8(613) 564-2727 Q. So this is some version of So it is a familiar looking

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1the Annex B diplomatic contingency plan that was 2attached to the SOP? 3 4 A. Q. Hmm, yeah. Now, sir, if I could ask you

5to turn to Collection E, tabs 25 and 26, these 6appear to be two versions of the same email. 7that correct? 8 9 A. Q. That's correct. Now, at tab 26, the email has Is

10a number of strike-throughs and comments written 11in. 12 Do you know who made those changes? A. Yes. That was the newly

13arrived ambassador, Arif Lalani. 14 Q. Can you tell us a bit of the

15history behind this email? 16 17 18the person? 19 20L-A-L-A-N-I. THE WITNESS: Arif Lalani, A-R-I-F A. Sure. What was the name of

THE CHAIR:

So a little bit of the background is

21that I had -- tell me if I am going off too much on 22a tangent, but, you know, the former Ambassador, 23David Sproule, was replaced quite unexpectedly, and 24so I found myself chargé d'affaires for pretty much 25of the whole month of April. 6 7 8(613) 564-2727 And I had been

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1charging quite often before whenever Ambassador 2Sproule had been away, but never for such a long 3period. 4 And that period happened to be the

5exact month when the detainee issue really blew 6open with the Globe and Mail's article, and so on. 7 So the report here is a report

8based on meetings that were held when Ambassador 9Sproule was away, or hadn't returned, and 10Ambassador Lalani had not yet arrived, so I was in 11charge and went with my colleague, Catherine 12Bloodworth, who was dealing with legal issues, 13justice and human rights, among others, to meet 14with the International Committee of the Red Cross 15and with the UN Assistance Mission in Afghanistan. 16 And this was in the context of

17the, I would say, crisis with detainees, and we 18were meeting with these organizations to, you know, 19try and get some advice from them, frankly, on how 20to fix the problem, and also to understand better 21the nature and the scope of the problem. 22 So the meetings took place on the

2326th, but because it was a very busy period, I 24hadn't had time to write the meeting up. 25 6 7 8(613) 564-2727 So I think Ambassador Lalani

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1arrived on the 28th, and so when I did the draft on 2the 30th of April, I showed it to him. He had some

3changes, which are reflected in the second copy of 4the -- I guess it is not the second. It is the

5first copy of the message, and then that is the tab 626. 7 And then the version which he

8signed off and went out is tab 25. 9 Q. Okay. Now, if you could look

10at the version on tab 26, initially you appear to 11have intended the email to get fairly broad 12distribution. 13 Did Ambassador Lalani change that? A. Yes, yes, he cut it back

14quite significantly. 15 Q. Okay. And is that his

16handwritten note, "Richard, please go with my 17distribution"? 18 19 A. Q. That's correct, yes. Okay. So it looks like he

20intended it to go to five addressees, Proudfoot, 21Buck, Alexander, KAF, and I really can't make out 22the others. 23 24KANDH/Buchan. A. Yes. The final one is

That is Gavin Buchan, the PRT

25director at the time at the PRT. 6 7 8(613) 564-2727

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131

Okay.

And then looking at

2some of the things he struck out, in the summary he 3struck out the reference to: 4 5 6 7 8 9 10paragraph 9: 11 12 13 14 15 16 17 18 19 20 21out paragraph 10: 22 23 24 25 6 7 8(613) 564-2727 "ICRC first raised concerns about notification delays in June 2006. At the time they "[blank] the Globe and Mail reporting [blank] the allegations of abuse made by those Afghans interviewed which Graeme Smith fit a common pattern. More rapid "ICRC also flagged continued delays in notification by GoC. An average of two weeks

passes between detention and notification." (As Read) On the next page, he struck out

notification would offer better protection to the detainees." (As Read) He struck

So that was struck out.

also complained that Canadian

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Forces were collecting insufficient information." (As read) So on and so on. Do you know why

5he struck out those portions? 6 A. I think at paragraph 10 --

7you know, I should say I don't know for sure, but I 8had a view at the time as to why, so I can share 9with you, if you like, my opinion as to why those 10changes took place. But he never told me, Oh, this

11is why I am deleting these. 12 Q. Do you consider these

13deletions to contain significant information? 14 A. Yes. And, in fact, the

15reason I kept the original, which I had never done 16before that, or since, is because some of the 17information he deleted was the most important 18information in the message, from my point of view. 19 There was some critical new

20information which was essential to this message, 21which was removed. 22 Q. So these were not -- in your These

23mind, these were not just editing changes. 24were substantive changes to the content? 25 6 7 8(613) 564-2727 A. Yes.

On paragraph 10, my

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1view at the time and my view today is that this was 2considered a sensitive paragraph, because it showed 3or it flagged that the problem that had been 4identified almost a year earlier by the ICRC had, 5in fact, not been fixed. 6a year later continued. 7 And without -Yes, without The same problems almost

8getting into what is in the blacked-out areas, some 9of those areas relate to these points. 10 Q. Okay. So the email was

11subsequently sent without this information? 12 13 14 15 16 17people. 18 19change? 20 A. Yes. You know, the exact Some Q. Did that become a permanent A. Q. A. Q. A. That's correct. Okay. And to the -To the limited -And to the limited number of

21people, you know, changed a little bit.

22people would be added and some would be taken away. 23But, essentially, detainee messages were no longer 24sent to this kind of distribution list -- I am 25showing what was there before -- but to a handful 6 7 8(613) 564-2727

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1of carefully selected individuals, and then a later 2adjustment around August was a line began to be 3added "not for forward distribution", to further 4ensure that it reached only those individuals 5specified in the message. 6 Q. Okay. Do you have the book

7Collection B in front of you? 8 9 10up to tab 20? 11 12 13 14 MR. PRÉFONTAINE: MR. LUNAU: Which volume? A. Q. I do. If I could ask you to open it

Volume 3.

BY MR. LUNAU: Q. Tab 20. This is an email First of

15from Cory Anderson to various addressees. 16all, who is Cory Anderson? 17 A.

Cory Anderson has had three He

18jobs, to my knowledge, in or on Afghanistan.

19was first the political advisor to General Grant, 20which was around August of 2006 until early 2007, 21and then he came back to headquarters and he was 22effectively the detainee policy officer. 23 So sometime around maybe May or

24June, the lead responsibility for detainees was 25transferred from the Defence Relations Division, 6 7 8(613) 564-2727

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1IDR, FTAG, which is the Afghanistan task force. 2 So Cory became the kind of desk

3officer, if you like, who had day-to-day 4responsibility for the detainee file. 5 And then his third job was

6subsequently he was the political director for the 7PRT, and that was after this position. That was

8his third and I think final job in Afghanistan. 9 Q. Okay. Now, is this an

10example of what you had in mind when you said that 11communications began to be marked "not for forward 12distribution"? 13 A. Yes. This was -- there had

14been earlier versions of this message that were 15sent out I believe in August signed off not by 16Cory, but by someone much more senior. 17 18message. 19 This was, I would say, a follow-up But, yes, that is what I mean. Q. Okay. And so what Mr.

20Anderson is saying to the various addressees is: 21 22 23 24 25 6 7 8(613) 564-2727 "Please note that all future reports of visits to facilities will be only distributed to these interdepartmental addresses.

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In addition, the reports and all messages regarding the reports are not for forward distribution. We trust that

you understand the necessity of these restrictions. Thanks, Cory." (As Read)

Is this what you had in mind when

9you said that -- when we were talking about the 10SOPs, that reports began to be restricted in their 11distribution? 12 A. Yes. This was -- so the

13first stage was to cut down the numbers, as in this 14April 30th message. But, you know, the April 30th

15one, for example says -- this was one of Ambassador 16Lalani's handwritten comments, "We leave further 17distribution to FTAG", the Afghanistan Task Force. 18 So they were given certain amount So

19of discretion to decide who should get these.

20the -- but starting off with a very small number. 21This was, I guess, the next phase now, which was to 22prevent any such forward distribution, making 23explicit that it is for these people and these 24people only. 25 6 7 8(613) 564-2727 Q. So let's see who the selected

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We have, in Mr. Anderson's email,

2the Privy Council Office, Foreign and Defence 3Policy; NDHQ Ottawa ADM(POL). That was who the Don't know?

4CEFCOM-J9 worked for, I believe. 5 A. No.

Sorry, CEFCOM is

6separate to ADM(POL). 7 Q. Oh. The NDHQ+CEFCOM-J9 C4R,

8Public Safety C4R, Kerry Buck, Christopher Gibbins. 9 10list here? 11 12 13loop? 14 15 A. Q. Hmm-hmm, yes. Okay. And Mr. Anderson is A. Q. No. Okay. So you are out of the So were you on the distribution

16saying, "We trust you understand the necessity of 17these restrictions." 18 Do you understand the necessity of

19these restrictions? 20 A. Well, I understand the

21rationale for the restrictions. 22 23 Q. A. Okay. What is the rationale?

Well, the rationale is that

24every time we interviewed a detainee who told us he 25had been tortured, that quickly was, you know, 6 7 8(613) 564-2727

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Prison cases were announced, and, you

2know, stories were quickly written in Canadian 3newspapers and Canadian media, and obviously there 4was a great deal of sensitivity about who got to 5see these reports and the information contained in 6the reports. 7 So the rationale would be to

8ensure that as few people as possible were privy to 9that information, that highly sensitive 10information. 11line. 12 Q. Thank you. If you are you That would be my reading of that

13are a provost marshal or MP at, say, CEFCOM 14headquarters or Task Force headquarters, you are 15not on the distribution list. So you would only

16have knowledge of these site visit reports if one 17of these addressees chose to share it with you; is 18that correct? 19 A. Yes. There's one loophole I

20see in this, which is that if you look at the 21different addresses, some are individuals, like 22Christopher Gibbins, Kerry Buck -- Kerry Buck is 23actually the stand-in for David Mulroney, but that 24is another issue. 25 6 7 8(613) 564-2727 Cindy Termarshuizen, and then some

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1of the institutions like public safety, if you go 2to the distribution line, which is below where it 3says "Secret CEO, Not For Distribution", and then 4it spells out who in public safety, "Please pass to 5Deputy Minister." 6 However, the distribution

7specifies in most cases exactly which individuals 8should get them. 9CEFCOM-J9. That is not really done for

So according to this, CEFCOM-J9 in its

10entirety is the recipient, and, depending on how 11they define that, that CEFCOM-J9, I mean, it could 12extend right down into Kandahar. 13would be my expectation. 14 These were sort of vertically In fact, that

15structured, if you like, and so the people in the 16field under this distribution could still have got 17the message. That would depend on how you

18interpret CEFCOM-J9, but there is no restrictions 19spelling out who exactly in CEFCOM-J9 should get 20it. So it could be that everyone would receive it

21who is part of that silo, if you like. 22 23 24 Q. A. Q. Yes. Yes. Yes. It could be? It is ambiguous. And the Canadian Forces On the

25Provost Marshal is not in the loop here. 6 7 8(613) 564-2727

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1face of it, the CEFCOM Provost Marshal isn't one of 2the select few. The Task Force Headquarters'

3Provost Marshal isn't one of the select few. 4 So, as I said earlier, it would

5seem, if they are to receive reports of site 6visits, it is really dependent on one of the 7anointed ones passing it to them? 8 9 10 A. Q. A. I agree. Okay. Which here, as you point out,

11they're not allowed -- no one is allowed to pass 12these to anyone. 13distribution. 14 Q. So it would seem, then, it is They're not for forward

15really and truly these reports are being limited to 16a very, very select group of people who are told 17not to pass them to anybody else? 18 19 A. Q. Yes. So unless you are one of

20these addressees, the evidence would seem to 21indicate that you would not see these site visit 22reports? 23 A. Yes. There is something a

24little confusing about this, which creates a new 25ambiguity, which is the following -- right. 6 7 8(613) 564-2727

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So this is -- the top part is

2forwarding a message which is pasted below, right, 3the KANDH-0048 of June 29th. 4 I mean, clearly, there are people

5in the field who are producing the site reports, 6and in this, you know, June 29th message it is, you 7know, listing people who are actively involved 8either in site reports or who have a direct stake 9in knowing about the site reports. 10 It could be that the top message

11is addressed to the headquarters people, who may be 12receiving these site reports, trying to ensure that 13no one else in headquarters receives them. But it

14may not be regulating the field distribution. 15 On the surface of it, what they

16have in the top is impossible, because on that 17basis the people who are conducting the site 18reports themselves would not be allowed to get 19their own reports. 20 So I would read this perhaps as a

21supplement to the distribution in the 0048, rather 22than an exhaustive list of those who are the 23anointed ones, as you say. 24confusing fashion. But it is phrased in a

It could be read either way,

25but it seems to me it is probably more likely that 6 7 8(613) 564-2727

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1it is a supplement, and that the people in 0048, 2for example, KANDH-KAF, Kabul head of mission, 3there is no way the head of mission at Kabul would 4not be allowed to get the reports. 5 So I think this is like a second It is still a very limited

6phase of distribution.

7number of people, but it is not quite as limited as 8implied in the top. 9 10 Q. A. Okay. And then there is a new

11ambiguity, which is that these strict restrictions 12may only apply to the top people and not to these 13lower people. 14 So KANDH-KAF, that's the POLAD's He is working

15Task Force Afghanistan commander.

16for the Task Force Afghanistan commander, and I 17don't think there is any way the Task Force 18Afghanistan commander would not insist that he see 19those reports produced by his subordinate. 20 Then there may be lots of people

21in the task force, including the provost marshals 22in the field, who were getting these reports. 23is not ruled out. 24logical. 25 6 7 8(613) 564-2727 I think what they're doing is, In fact, it is, I would say, It

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1when I look at this, making sure that as few people 2in Ottawa as possible see them, father than 3preventing people in the field from seeing them. 4But I am just giving you my interpretation looking 5at this. It is strangely worded, I agree, and it

6is not entirely clear cut. 7 Q. Yes, yes. I am just glad I

8didn't get it, because I wouldn't have known who I 9could show it to. 10 11 A. Q. Yes. Okay. Now, coming to one of

12your most important, I guess, reports, you made a 13visit to the NDS facility in Kabul on or about June 145th and 6th. 15 16 A. Q. That's correct. And your email report is at Now, during the course of

17tab 33, Collection E.

18this visit, you had a chance to personally 19interview four detainees? 20 21 A. Q. That's correct. Okay. And the four detainees

22had purportedly been identified as Canadian 23transferees? 24 25 6 7 8(613) 564-2727 A. Q. Yes. Were you able to confirm they

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1had been transferred by the CF? 2 A. We were subsequently able to

3confirm that certainly one and probably two of the 4four were transferred by the CF, yes. 5 Q. Okay. Had they been

6transferred prior to or after May 3, 2007? 7 8 A. Q. Prior to May 3. So they were part of what you

9called the initial pool -10 11 A. Q. That's correct. -- detainees? Did anyone

12accompany you on this visit? 13 14days. A. Yes. We did it over two

It took a bit longer than we anticipated, So

15and the institution closed on the first day. 16the delegation changed slightly. One person

17dropped off because he couldn't come on the second 18day, but it was, on day 1, myself, Catherine 19Bloodworth, who, as I mentioned is -- she was my 20colleague subordinate who was dealing with human 21rights issues, among others. 22 We also had Brian Szwarc, who was

23the senior embassy management and consular officer, 24and here what is important is the consular party 25had training in consular cases and identifying 6 7 8(613) 564-2727

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He came on the first day.

We also had locally engaged staff,

3someone who worked at the embassy, who was a fluent 4Pashtun speaker, to interpret for us. 5 Then on the second day, it was Mr. Szwarc

6myself, Catherine and the interpreter.

7was unable to come because of a prior commitment. 8 Q. Now, the email speaks for

9itself, but, in essence, I guess the summary is 10really in paragraph 3: 11 12 13 14 15 16 17 "Of the four detainees we interviewed, three said they had been whipped with cables, shocked with electricity and/or otherwise 'hurt' while in NDS custody in Kandahar." Did you and the other individuals

18who accompanied you on these interviews consider 19these stories to be credible stories? 20 21credible. 22 23 Q. A. Okay. And on what basis? A. Yes. I would say highly

Well, one advantage we had is

24that these individuals were no longer in Kandahar. 25They were removed from the area of what we assessed 6 7 8(613) 564-2727

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1to be greatest risk and were in a facility that was 2far from the front lines that was generally 3assessed to be quite a safe facility, and that was 4reinforced by our visual impressions of the site. 5 What that means is these people

6were able to talk more freely than if they were if 7they were, for example, in Kandahar at the NDS 8facility in Kandahar, even Sarpoza in Kandahar. 9that made it easier for us to get information. 10 Secondly, each individual gave a, So

11you know, different sort of story, went about the 12interview a different way. 13us. One refused to talk to

We had a very brief discussion, and then when

14we got to the issue of treatment, he simply 15declined to continue, so he dropped out. 16 But the others, none of the three They

17alleged abuse or torture at the beginning.

18talked about mundane things like how often they're 19allowed out, whether they're allowed visitors, and 20they all told us how well they were being treated 21in the facility. 22 It was only well into each

23interview, when we pushed them on what happened in 24Kandahar, that they alleged torture, and each of 25them had a -- spoke about it in quite a different 6 7 8(613) 564-2727

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One kind of shrugged it off as,

3Yeah I got beaten for a couple of days, but that's 4all. One made -- a couple made more explicit

5allegations of what was done to them, and in all 6three cases there were physical marks on their body 7which corresponded to the abuse they were alleged 8to have suffered. 9 So we spent a long time with each

10of them, up to an hour, and, you know, the 11assessment that we collectively came to, that these 12were, yes, highly credible accounts. 13 Q. Okay. Now, the distribution

14list is much reduced from your earlier emails? 15 16 17 A. Q. A. Yes. What was the reason for that? Well, this is the -- you

18know, the new format, if I can use that, you know, 19the post April 30th format of reduced 20distributions, and that was a change that began 21with the arrival of the new ambassador. 22 Q. Now, I'm sorry to have to

23take you to another book of documents, but if I 24could ask you if you could just sort of keep this 25one open in front of you -6 7 8(613) 564-2727

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Hmm-hmm. -- and turn to volume 2 of

3your white books, tab 49. 4 Now, page 287, the small page

5numbers at the bottom of the page in the centre, 6outside the black border, this is another copy of 7your email, albeit differently redacted from the 8one we just looked at. 9 If I could ask you to go forward I don't know

10in the tab, there is another email. 11who it is sent from.

It is dated June 5, 2007, but That states, "As per

12the same date as your visit. 13the diplomatic" -14 15 16yourself? 17 A. Yes. A. Q.

Sorry, I don't -Are you trying to orient

When you say go

18forward, do you mean -19 20 21 22front of the tab. 23 24 252 of 3. 6 7 8(613) 564-2727 A. Oh, okay. Sure, yes. Q. A. Q. To page 278. Oh. We are working towards the

MR. REES:

I believe it is at page

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MR. LUNAU: THE WITNESS:

Yes. I see it, yes.

BY MR. LUNAU: Q. Page 278. "As per the diplomatic contingency plan provisions to respond to allegations of abuse, gratefully take the following steps to have the allegations investigated." (As Read) Was this, do you know, the

13follow-up to your visit to Kandahar or to Kabul? 14 A. No. This was the follow-up

15to the visit that is described beneath in Kandahar. 16 17 Q. A. All right. Because we didn't -- we We were only

18didn't complete our visit on the 5th.

19part way in, and we hadn't really got into the meat 20of it, so we didn't have our findings until the 216th. 22 23 Q. A. Okay. This visit in Kandahar, as

24you can infer, took place before June 5th. 25 6 7 8(613) 564-2727 Q. Okay. So, in fact, around

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1the 5th and 6th there were two visits, one to 2Kandahar, one to Kabul? 3 A. Yes. Let's say one in

4Kandahar a little bit before June 5th, and then one 5in Kabul on June 5th and 6th, within a few days of 6each other, yes. 7 Q. Okay. And allegations of

8abuse emerged during both of those visits? 9 10 A. Q. Yes. If I could take you to the

11front page of the tab, which is an email from Kerry 12Buck to Christopher Gibbons, "not for forward 13distribution". 14 15 16 17 18 19 20 21 22 So there is that phrase again? A. Q. Right. In paragraph 1: "Further to the instructions below, following the allegation of abuse reported to the PRT during its recent visit to Sarpoza..." Which is the Kandahar prison -THE CHAIR: Excuse me, where are

23you reading from, Mr. Lunau? 24 25tab, paragraph 1: 6 7 8(613) 564-2727 MR. LUNAU: The first page of the

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"Further to the instructions below, following the allegation of abuse reported to the PRT during its recent visit to Sarpoza prison, as well as allegations reported to Kabul during its recent visit to the Kabul NDS facility, HOM has met with National Security Advisor Rassoul to express Canada's concern." (As Read)

So there were in fact -- both of

14these visits in June revealed allegations that 15detainees had been or were being abused? 16 17 A. Q. That's correct. Now, at paragraph 4, "The

18question arises", still in the first page: 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "... As to how we ensure a meaningful investigation, given it is likely the NDS will be investigating themselves. Kabul recommends

we ask the AIHRC to investigate these recent

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allegations, especially given the assistance we are providing them in building up their capacity to monitor and investigate. As we cannot

reveal the names of the individuals involved, the suggestion is that we ask the AIHRC to interview all Canadian-transferred detainees currently held in both Kandahar and Kabul." (As Read) So, again, there seems to be no

15role for the military police to play when these 16allegations came to light? 17 A. I mean, if you would like, I

18can offer some general comments on these messages 19and visits, or not, as you wish. 20 21want to. Q. Certainly, I mean, if you

I am particularly interested, though, in

22terms of whether and what the responsibility was of 23the military police, in terms of DFAIT has now 24conducted its follow-up visits. 25allegations of abuse. 6 7 8(613) 564-2727 There are

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How do the military police get

2engaged in this, or do they even get engaged in 3this, because from these documents, it seems, under 4the May 3, 2007 agreement, there is really no role 5for them to play, and, in fact, it is not even 6contemplated bringing them in, in any investigative 7capacity? 8 9that's correct. 10 11 12 13 Q. A. Q. A. If you have some context? Yes. Go ahead, sure. Thanks. At around the A. Yes, I think that is --

14time -- at the time these decisions were being 15taken on how to conduct investigations, we had 16already received advice, from reliable sources, 17that AIHRC did not have capacity to conduct such an 18investigation. 19 And, you know, this comment that

20Kabul has recommended that AIHRC investigate, I 21would not have made that recommendation or I did 22not make that recommendation because of what we 23knew about the AIHRC. 24 It is a well-intended

25organization, but it has a very, very limited 6 7 8(613) 564-2727

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1capacity, which we had known for a while.

And

2specifically in this area of investigations, the 3advice we had received was that they would not 4really be a suitable organization. Nevertheless,

5they are, as you see here, chosen to conduct the 6investigation. 7 The second comment I would make is

8the Sarpoza Prison visits, which is -- here it says 94th June -- it hasn't been redacted. This is at

10the bottom of the second page, "following visit to 11Sarpoza prison 4 June". 12to Sarpoza. 13 14jump out at me. When I look at this, some things One is the very limited So it is a 4th June visit

15information provided on who exactly was interviewed 16and what they said. Three of the individuals, One

17there is really nothing provided at all.

18individual simply mentioned that he had been beaten 19with electrical cables. 20 21very odd line: 22 23 24 25 6 7 8(613) 564-2727 "When asked if he required any medical treatment subsequent to this, he indicated that none had been It is followed by what to me is a

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sought." (As Read) I am not sure how that is We don't ask that question. If you are

4being tortured, obviously you are not going to 5immediately request medical treatment from the 6people who are beating you. It is a bit of a

7strange juxtaposition of those, and other 8information. 9 Another strange thing to my mind

10is paragraph 9, where the author seems very 11concerned about this issue of who gets these 12reports. Frankly, it shouldn't really be a concern There is

13of the monitor limiting distribution.

14reference to a number of hard copies and 15establishing a registry. 16 The other thing that is a little

17weird is who has been chosen to conduct this 18monitoring visit. It is the same person who has

19been handling the file for the last year, who is 20very heavily implicated in the file and has been 21receiving all kinds of reports on detainees over 22the previous year, and without any visible change 23in policy. He is the person who is picked to

24conduct this monitoring visit. 25 6 7 8(613) 564-2727 The final comment I would make is

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1that as far as I can tell from the paper trail for 2this visit, and the one we conducted in Kabul, they 3are the only visits conducted to monitor the pool 4of detainees before May 3rd. 5 So when I look at all of that in

6conjunction with the choice of AIHRC as an 7investigative body, which we knew at that time had 8not the capacity to conduct an investigation, then 9the conclusion I come to, this wasn't really a 10serious effort in monitoring. 11 But this is an editorial comment,

12I wish to emphasize. 13 14 Q. Okay, thank you.

In one of the opening statements,

15Mr. Champ made the submission the military police 16were really sort of the face of law, at least 17amongst the Canadian presence in Afghanistan. 18are peace officers. 19 Is there some reason why they They

20weren't tasked to conduct investigations into these 21allegations of abuse? If the AIHRC seems to be

22kind of questionable or have concerns about its 23capabilities, why wouldn't one turn to the military 24police? 25 6 7 8(613) 564-2727 A. I mean, I can only offer you

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1my personal opinion, if you would like to hear 2my -3 Q. Well, are you aware of any

4decision or policy to keep the military police out 5of these types of investigations? 6 A. I am not aware. I wasn't

7privy to that decision making of who would be 8chosen to conduct them, so I am not sure what 9motivated the decision. All I can do is, if you

10would like, give an opinion, but it would only be 11an opinion. 12 I don't have any insight into it. Q. Yes. I think if you don't

13have information as to policy or direction -14 A. Yes. Yeah. No, I think

15these decisions were being, you know, as were the 16distribution lists, discussed and decided among a 17very small number of people. 18 19 20 Q. A. Q. Okay. Yes. You will be glad to know we If I could take you

21are getting close to the end.

22back to collection E, tab 42, this is your end of 23posting report. 24 25 6 7 8(613) 564-2727 A. Q. Yes. Okay. And you begin it by

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"After completing 18 months in Afghanistan, I have decided to record some personal observations and recommendations in this end-of-assignment memo. I

have limited my comments to three key issues: detainees, government and management by DFAIT of the Afghanistan file." Under the heading of "Detainees"

14after the big block of black, you say: 15 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "In this context, Canada in my view should stop handing Afghans to NDS custody in Kandahar. If we do continue

to transfer detainees to NDS, we should do so only in Kabul, where we can reasonably be assured that Canadian officials can monitor them effectively. However, a much better

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solution would be to transfer detainees to another Afghan structure together, either the Ministry of Defence or the Ministry of Justice." That seems to be the first time we

7have seen such an explicit recommendation as to 8stopping transfers altogether. 9 Now, who did you intend should be

10made aware of these views? 11 A. If I could -- if I can answer

12your question with a little bit of context first? 13 14 15answer. 16reasons. 17 18say that again? 19 THE WITNESS: Yes, the memo was THE CHAIR: I'm sorry, could you Q. A. Okay. Which I hope will provide an

This memo was never sent, for various

20never sent, for various reasons I can get into, if 21you like. 22 Much of it wasn't exactly new. It

23was really a compilation.

It was a compilation of

24earlier reports, earlier discussions of these views 25I had expressed at the time. 6 7 8(613) 564-2727 By "at the time", I

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1mean in this period sort of late April, early May 2of 2007 when we used to have conference calls every 3evening from Kabul with, you know, Arif Lalani and 4David Mulroney and, you know, General Gauthier on 5what to do about our detainee mess. 6 So these were, in a sense, old The purpose of

7ideas which I had had for a while.

8the memo was to put them all in one place, to put 9them on paper and to kind of summarize, you know, 10the problem and what I saw as the solution. 11 So, yes, this is the first time it The reason for this is

12had been put in writing.

13that I had a sort of period of freedom in writing 14things, which lasted from April of 2006 until the 15end of April of 2007. After that I was constrained

16in what I could send out under the new regime. 17 So I used to say things, you know,

18orally over the phone in these conference calls. 19But it was only really with the end of the 20assignment I saw an opportunity to reiterate them 21on paper. 22did I -23 Q. You say you had an So does that answer your question, or

24opportunity to reiterate, but you never sent the 25memo? 6 7 8(613) 564-2727

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That's correct. Why didn't you send it, if

3you saw this as an opportunity to reiterate? 4 5reasons. A. It was for a variety of

One was that by the time I had written

6it, I was into my new post in Washington, so there 7was sort of slight awkwardness with sending 8something from a new job to the old job. 9wasn't the main reason. 10 The two main reasons were, one, That

11primarily that I believed it would serve no 12purpose. Having pushed these ideas repeatedly

13without success, it would be pointless, purposeless 14and would not be -- you will see in the preamble 15there is sort of an attempt to present them as 16constructive advice, but I did not believe it would 17be received in that spirit, and I believed it would 18have been rejected out of hand by Mr. Mulroney, 19with whom I had very strained relations, certainly 20by that point. 21 And the third reason, I was just

22really physically tired after Afghanistan, and I -23I wrote it, and then looked at it and decided, 24yeah, it wasn't -- wouldn't do any good and I just 25shelved it. 6 7 8(613) 564-2727

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It is written partly for

2psychological purposes, for my own benefit, to sort 3of, you know, just to write it down. 4 5 Q. Yes, okay. A few

Just one final question.

6minutes ago we looked at these emails about site 7visits in June -8 9 A. Q. Hmm-hmm. -- to Kandahar and Kabul. We

10know there was a visit by Mr. Gosselin in November. 11Are you aware of any other visits that took place 12between June and November? 13 A. It seems from the record

14there were others, but it does -- when I look at 15them, it seems that these were visits of monitoring 16visits of detainees who had been taken after the 17arrangement. 18 So they were fresh intakes. In other words, when they had a

19fresh intake of detainees, then they would go 20monitor those detainees, and there seems to have 21been -- I am not sure how many, but maybe a couple 22of those. 23 Q. Okay. So that relates back

24to what you were saying about the initial pool of 25detainees kind of almost fell by the wayside. 6 7 8(613) 564-2727

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1There wasn't a lot of attention paid to them? 2 A. Yes. My sense is that it was

3realized that as soon as we started monitoring 4those, we immediately, in both Kabul and Kandahar, 5found credible cases of torture. 6 More monitoring visits of those

7people would have produced more cases of torture, 8and so it seems to me a decision was taken only to 9monitor the newly detained people who should not 10have been tortured, because the NDS knew we would 11be monitoring them. 12 And, indeed, we were monitoring

13them at the beginning, but this is only an 14assessment, I should say. 15 Q. In your mind, it was a case

16of don't ask the question if you don't want to hear 17the answer? 18 19 20sir. 21 THE CHAIR: Thank you. We will A. Yes, yes, I believe so. No further questions,

MR. LUNAU:

22break until five minutes to 3:00. 23--- Recess at 2:39 p.m. 24--- Upon resuming on at 2:56 p.m. 25 6 7 8(613) 564-2727 MR. BERLINQUETTE: Thank you.

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THE CHAIR:

Thank you.

I believe we go to Ms. Pastine. MS. PASTINE: Thank you.

4CROSS-EXAMINATION BY MS. PASTINE: 5 6Pastine. Q. Mr. Colvin, I am Grace

I represent the BC Civil Liberties I just have

7Association and Amnesty International.

8a few areas that I would like to ask you questions 9about. 10 First, I would like to ask you a

11couple of questions about your March 20, 2007 12meeting that you had in Ottawa that you stated was 13an interagency meeting, and Commission counsel 14asked you some questions about that meeting here 15today and it is also referenced in your affidavit 16at paragraph 54. 17 You stated to Commission counsel

18today that at that meeting you said, very bluntly, 19essentially: 20tortures. Our detainees go to the NDS. NDS

If we don't want out detainees to be

21tortured, we shouldn't transfer them to NDS. 22 23 24 Is that roughly what you said? A. Q. Yes, yes. And you also stated that many

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1sensitized to the issue of detainees, and you noted 2a few reasons why they were sensitized. 3 You mentioned media attention to

4the subject, and then you also mentioned the 5complaint filed by BC Civil liberties Association 6and Amnesty International before the Military 7Police Complaints Commission, and also the lawsuit 8also filed by my clients. 9 Now, I take it you said at that

10point you were aware of the lawsuit and the 11complaint; is that correct? 12 13 A. Q. That's correct, yes. And what gave you the

14impression that officials at that meeting were also 15aware of the complaint and the lawsuit? 16 A. Yeah, maybe if I could -- I So

17am not sure exactly what wording I used before.

18I was speaking more in a sort of objective sense of 19the objective environment in which this meeting 20took place. 21 I don't honestly know to what

22extent other officials in the room had focussed on 23that. I mean, I would assume they would know, but

24I don't recall if it was discussed specifically. 25But I was aware and it had objectively happened, 6 7 8(613) 564-2727

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1and I am sure anyone working on detainee issues 2would have known about it, and it would in a sense 3have been part of the context for the meeting. 4 First of all, remember, I sort of

5just turned up at this thing, because I happened to 6be in Ottawa. I don't remember exactly, either,

7who convened it or what the purpose was of 8convening it. I just remember it was an

9interagency meeting on detainees, and it did follow 10shortly after this complaint came out. 11 So I expect that people would have

12been thinking about that and that would have -- I 13mean, in general, there was more of a sense, I 14think, of perhaps building pressure on this issue 15in early 2007 as a result partly of the factors you 16mentioned. 17 Q. Now, the complaint was filed I think you alluded to that,

18in February of 2007.

19and the lawsuit also February of 2007. 20 Do you recall when you became

21aware of those of the complaint and the lawsuit, 22roughly? 23 A. Yeah. It would have been

24either the very end of February 2007 or very 25beginning of March, so before this meeting took 6 7 8(613) 564-2727

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So there is only really -- I think the

2meeting, if I had to guess, would have been around 3March 5th, give or take a few days, like toward -4you know, if the first week, basically. 5 6the complaint. So it was quite soon after this, So it was somewhere in that two

7weeks between the complaint and the meeting is when 8I would have heard about it, possibly when it came 9out. It was in the paper, I think, and I would,

10you know, scan the papers online. 11 Q. So this was widely available

12public information? 13 A. Yeah. I think, you know, I

14don't know if it was the Globe or CP, but there 15were, I think, news stories done the following day, 16in fact around -- perhaps maybe two days after, but 17I think it was covered in the media that this 18complaint had been made. 19 You know, I did follow, you know,

20in general, kind of roughly what was happening in 21Canada, including stories on detainees. I didn't

22see them all, but I saw quite a few of them. 23 Q. Now, I have just a bit of a

24technical question about the DFAIT monitoring 25reports, and Commission counsel took you through a 6 7 8(613) 564-2727

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1number of those and I will return to a couple of 2those. 3 But just to start out, my question

4is simply about the sequencing of those reports. 5Now, we see that those reports, many of them have 6the identifier "KANDH", and then a dash, followed 7by a number. 8 Could you confirm that the numbers

9are sequential; that is that, for example, KANDH-39 10would have been drafted or disseminated before 11KANDH-0125, for example? 12 13 14 A. Q. A. Sure, sure. Okay. The only time in which they

15wouldn't be sequential would be if, you know, 16someone took a number like 39, and then someone 17else took a number 40, and they're for a different 18message. Then the person doing 40 finished theirs It could be

19quicker than the one doing 39.

20possible that 40 went just before 39, but you would 21only have confusion with numbers right beside each 22other. 23 So 45 would definitely have gone

24after 40, and so on, and certainly the example you 25gave, yes, sequential. 6 7 8(613) 564-2727 And in that case, it is

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1clear that one came quite a bit after the first. 2 Q. Now, you were involved in For example, today you

3some of the DFAIT visits.

4spoke about your dispatch from Kabul, KGBR-0291. 5 And other of your colleagues, I

6take it, did other -- some of the other monitoring 7reports; is that correct? 8 A. Yeah, in Kandahar. I think

9in Kabul that was the only one that took place. 10 Q. One of your colleagues

11conducting those site visits was John Davison; is 12that correct? 13 14 A. Q. Yes. And could you please tell the

15Commission when he arrived in Afghanistan? 16 A. Yes, roughly. He replaced

17Gavin Buchan, and Gavin left, I think, at the end 18of the summer, August or maybe possibly September. 19 So John Davison would have arrived I might be

20to replace him, so September, possibly. 21off by a month or so.

It could have been October. You know, people

22Usually that's what happens.

23leave at the end of the summer, and then their 24replacement comes in at the beginning -- sorry, 25also at the end of the summer, in around the 6 7 8(613) 564-2727

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1August/September period, but it could have been 2slightly later, like October. It was sometime

3around then, August to October -4 5 6 Q. A. Q. Hmm-hmm, okay. -- I would say. Commission counsel asked you

7about the role of the ICRC in advance of the May 82007 agreement; that is, the role they played 9before Canada entered into that second agreement 10with Afghanistan. 11 Under that agreement, under the

12first 2005 agreement, as you stated, ICRC, the Red 13Cross, had a role in monitoring detainees after 14they were transferred, and you stated that they 15urged the importance of immediate notification when 16detainees were taken into Canadian Forces' custody; 17that is, before they were even -- they urged it was 18important to know the location and identity of 19detainees before they were even transferred to 20Afghan authorities? 21 22 A. Q. Yes. Could you please tell the

23Commission why the ICRC thought that that was 24important, that immediate notification? 25 6 7 8(613) 564-2727 A. I can give you a partial

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Parts of the answer I may

2not be able to give in this open forum. 3 But, in general, ICRC were

4concerned that with late notification, as I 5mentioned before, they were losing track of 6detainees, which obviously made it impossible for 7them to conduct any monitoring of those 8individuals. So they wanted speedy notification.

9That was usually the formulation they used. 10 They did want, as well, to monitor

11detainees while Canada still had them, not just 12after they were transferred. And, you know, the

13reason for that could be that it would make it 14easier to track these people, to be able to see 15them before they're given to the Afghans, and there 16cases, too, Canada did end up keeping people for a 17few weeks if they were wounded, for example, and 18were not in fit condition, in no condition to 19transfer. 20 There may be an issue of -- I

21mean, I am a little bit speculating about Red 22Cross. It could just be a general principle they

23have, you know, it is important to get them 24quickly. 25 6 7 8(613) 564-2727 It makes it easier for them. Then there is another reason which

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1I am afraid I am not able to discuss in this public 2forum. 3 Q. There is some information

4before this Commission that it is often more likely 5that torture occurs in the early period just after 6transfer. Might that be another reason why early And certainly if I

7monitoring might be important?

8am asking you something that veers into the area of 9confidentiality, please don't answer the question. 10 A. Well, I can just say, you

11know, leaving aside the Red Cross, in particular, 12that I think it was generally recognized by human 13rights organizations, and we were advised of this, 14that torture does generally happen in the first few 15days, yes. 16 Q. And that was also a concern

17that you and other officials at DFAIT were alive 18to, in terms of your own monitoring 19responsibilities; is that correct? 20 A. Yes. Certainly by the time

21we began monitoring, we were alert to that, to the 22urgency of monitoring. 23 Q. Now, I would like to ask you

24a few details about the June 6th, 2007 site report 25to the NDS facility in Kabul. 6 7 8(613) 564-2727

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You stated that you were one of

2the several individuals, Canadian officials, that 3were on that site visit, and that is KGBR-0291. 4 5that. I will direct the Commission to That can be found at volume 2 of 5 of the

6white volumes, tab 49. 7 A. I think this is a more

8heavily redacted version of the two, but there is 9another one which is less redacted. It might be I'm not

10easier to refer to the less redacted one. 11sure where it is. 12 Q. Certainly.

I think that

13might be in Collection E, tab 33. 14 Q. Yes, thank you. That appears

15to be an easier-to-read version.

So I would like

16to direct your attention to page 4 of 6 under the 17heading "Detainee 3". 18 Just by way of introduction and

19reminder to the Commission, this is the report 20where you report on the condition of three 21detainees, detainee 1, 2 and 3; is that correct? 22 A. Yes. I guess it is more

23detainee 2, 3 and 4.

One is the individual who

24doesn't wish to be interviewed and cuts off the 25interview, so we don't have much information on 6 7 8(613) 564-2727

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So, yeah.

It is 2, 3 and 4 are

3the ones that we effectively were able to monitor. 4 Q. Thank you. Now, for detainee

53, you stated that this person had a mark on their 6ankle. Do you recall how -- could you give further

7details about that mark? 8 A. Is that detainee 4, maybe? Detainee 4 had Detainee 2 is

9Detainee 3 had scars on his legs. 10the mark on the back of his ankle. 11the one with the toenail problem. 12 13clarification. 14 Q.

Thank you for the

Yes, I meant detainee 4. A. Sure. Yeah, it was like a It was visible, you

15dark -- like, a mark, bruise.

16know, from where we were sitting, which was about 17where you are from us. So he said, yeah, I've been

18-- he was the guy who kind of had a bit of -- not 19bravado, exactly, but he said, Yeah, they beat me 20with this wire for a couple of days, but that's 21all. 22 23marks? Then we asked him, Do you have any And he looks and pulled up his -- there was

24a mark on his ankle, one of the areas where he said 25he had been hit. 6 7 8(613) 564-2727

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And did that look like it was

2a relatively recent injury? 3 A. I'm -- I mean, it was -- I I am not a doctor All

4just don't know, to be honest.

5and I didn't really get up closely to examine. 6we could see was there was a mark in the place 7where he said there would be a mark. 8unusual mark. It was an

It was like a dark bruise, but --

9whether it was a bruise or maybe a scar, you know, 10some kind of dark patch, but whether it was fresh 11or older is -- I just am not able to say, I'm 12afraid. 13 14beaten. 15beaten? 16 174, yes? 18 19 Q. A. Yes. Yeah. So if you read the A. Two days. This is detainee Q. And he stated to you he was

Did he tell you how many times he was

20section, if you like.

You know, I went back to my

21notes before coming out here, and, you know, what 22he told us and we put in our notes is what is in 23the report. 24 25 6 7 8(613) 564-2727 "When we asked about his own treatment in Kandahar, he

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said he was hit on his feet with a cable or 'big wire' and forced to stand for two days, but 'that's all'. He

showed us a mark on the back of his ankle, which he said was from the cable. [Note:

There was a dark red mark on the back of his ankle.] said it was the NDS who interrogated and held him. "After two days of being beaten with the cable and made to stand, he was put in a very small room with another individual. had high ceilings. The room It was He

about only about one metre wide and just long enough to lie down in." So two days of beating and being

22forced to stand up. 23 Q. Now, you indicated initially

24that this was last redacted version and the version 25that I first directed you to was the more redacted 6 7 8(613) 564-2727

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It appears to me that in the first

2version, the number of days he was beaten was 3redacted. The fact that he was put in a very small

4room after being beaten was redacted. 5 Generally speaking, is it your

6view that important details are missing from some 7of these reports? 8 9 A. Q. Yes. Now, I have another question Under the section

10regarding that same report 291.

11of the report "Detainee 1" that can be found on 12page 3 of 6 -- I'm sorry, detainee 2. 13page 4 of 6. That's on

I would like to direct your attention

14to about two-thirds of the way down that page, and 15it says in your report: 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "Individual sat with his toes curled under his feet. When

he straightened his toes, it could be seen that the nails of the big toe and the one next to it, were a red/orange on the top of the nail (although the new growth underneath appeared fine)." Now, it is not entirely explicit

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1in this passage, but was it your impression that 2the man's toenails had been removed? 3 4 A. Q. Yes, that was our assessment. And that was as a result of

5torture or mistreatment at the hands of Afghan 6officials? 7 A. Yes, it would presumably have

8been as a result of torture, you know, and, yeah, 9the marks were unusual. This was noticed by our

10consular officer, who had had training in torture 11identification. We also know that pulling out toe-

12and fingernails is one of the methods that is quite 13widely used by the NDS, or is -- widely used. 14is one of the methods that is known to be used. 15 Q. You stated that the It

16allegations of these individuals you interviewed on 17this visit, in response to questioning by 18Commission counsel, were highly credible accounts. 19Do you remember saying that? 20 21 A. Q. Yes. Did anyone in the Canadian

22Forces ever ask you whether the abuse and torture 23detailed in this report, by these detainees, was 24legitimate or whether it was fabricated? 25 6 7 8(613) 564-2727 A. No. No, that was never --

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1no, one ever questioned us on it. 2 Q. Did anyone in the Canadian

3government at large ever question you directly, 4during your time in Afghanistan, about whether 5these reports were legitimate or fabricated? 6 7 A. Q. No. Did you -- after this visit,

8did you find this visit disturbing? 9 10 A. Q. Yes. Were your colleagues

11disturbed after this? 12 A. I don't know about that. The

13interpreter had been in the prison, had been kept 14there by the Taliban several years before, so he 15had been detained in that same prison, but, you 16know, Afghans are funny that way. He was sort of

17making jokes about it, so I am not quite sure what 18his personal feelings were. 19 The consular officer who took You know,

20part, he has interviewed people before.

21he is trained in interviewing people who may have 22suffered abuse. So I can't really speak to their

23reactions, to be honest. 24 If I could just make one more

25general comment, and I can't get into the details, 6 7 8(613) 564-2727

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1but there was some context around these 2individuals, a reason why they were in Kabul and 3not in Kandahar, which made a certain category of 4individual for which it was much more likely they 5would have suffered not only torture, but probably 6a more severe torture than other categories of 7individual. 8 So that was part of our assessment They weren't in

9of the credibility of these cases. 10Kabul by accident, shall we say. 11 Q.

Is it your understanding that

12not all detainees are taken by the Canadian Forces 13to Kandahar Air Field? 14 A. Yeah. I am not sure if I am

15allowed to speak about other places of possible 16detention, but I believe there are other places, 17yes. 18 Q. Certainly I wouldn't want you

19to go any further if you felt as though you are 20prevented from doing so. 21 Now, Commission counsel directed

22you to the first site visit, which was KANDH-39, 23and then we've been speaking about the next visit 24where the four detainees are discussed, 291. 25 6 7 8(613) 564-2727 Then there are a number of other

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1visits that are leading up to the November 5th, 22007 visit. The November 5th, 2007 visit is when

3the actual implements of torture were found. 4 Are you familiar with that

5November 5th visit? 6 A. Yes. I had left Afghanistan

7by then, so I became familiar later when it became 8a famous episode, if you like, and then I have a 9redacted document, which is the site visit for that 10day, which I have reviewed prior to this hearing. 11 Q. In your view, did the visits

12prior to that November 5th -- the infamous November 135th visit, did the visits prior to that already -14did they establish that torture was occurring to 15CF-transferred detainees? 16 A. I guess all I can say is that

17the visits to which I was privy while I was in 18Afghanistan still were our one of obviously of 5th, 196th June to these four individuals in Kabul, and 20the one that preceded it in Kandahar, which we 21discussed half an hour ago or so, the 4th of June 22one in Kandahar. 23 After that, I am not sure I was So I really I

24ever sent site visit reports.

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1didn't know who was being visited by our monitors 2and who was conducting the monitoring, what the 3results of those visits were. 4loop, as it were. 5what was happening. 6 Sorry, to answer your question, I was out of the

So I just didn't really know

7based on the 5th, 6th June one and the 4th June 8one, it was -- each of which turned up individuals 9who had, you know, credible allegations of torture, 10the assessment we could make is that the 11individuals detained before the May 3rd agreement, 12some of those at least, had been tortured. That

13was the assessment I would make from those visits. 14But the pool taken after May 3rd, I had no 15information. 16 You know, if the monitoring system

17had been working properly, then those people should 18not have been tortured, so just as a general 19comment, the 5th of November incident, and maybe 20there are others before that, that represent a 21breakdown in the monitoring regime. But I don't

22know the details of what was happening or how many 23visits took place. 24 A final comment I would make,

25though, is that, you know, the information I had 6 7 8(613) 564-2727

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1been given from the Commission, the visit reports 2suggest there weren't. I mentioned before, when I

3looked at those -- and this has some reports 4missing -- it seems like there were very few 5monitoring visits, and they were only after the 6post May 3rd pool, although some of those seem to 7suggest there had been, you know, beatings and so 8on of some of those individuals. 9 But I can't really talk to that

10with great authority, because I wasn't party to 11these. I haven't seen the originals at the time. So that

12I didn't really know what was happening.

13is just looking back at the patterns in the 14documents that have been made available as part of 15this Commission proceedings. 16 17Colvin. 18 19 20 21Chair. 22CROSS-EXAMINATION BY MR. WALLACE: 23 24 25 6 7 8(613) 564-2727 Q. A. Q. Good afternoon, Mr. Colvin. Good afternoon. We introduced or I introduced Q. Hmm-hmm. Thank you, Mr.

Those are my questions. A. Yes, thank you. Mr. Wallace. Thank you, Mr.

THE CHAIR: MR. WALLACE:

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1myself to you this morning.

My name is Mark

2Wallace, and I am representing the former Canadian 3Forces Provost Marshal, Retired Navy Captain 4Stephen Moore, okay? 5 One of the areas that I want to

6clarify with you is just that, that there is the 7command structure within the Canadian military. As

8I believe you say in your affidavit, it is a fairly 9confusing vehicle; correct? 10 11 A. Q. Yes. And there has been evidence

12that we have heard before that there are a number 13of people within the Canadian Armed Services and, 14more specifically, the military police, who have 15the title "Provost Marshal", and you are aware of 16at least two of them; that is, the Task Force 17Provost Marshal and the CEFCOM Provost Marshal, 18correct? 19 20 A. Q. Yes. At the time that you were in

21Afghanistan, were you even aware of the existence 22of my client's position; that is, the Canadian 23Forces Provost Marshal? 24 25not sure. A. That's a good question. I am

I think in my mind there was a provost

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Having said that, I mean, I

2guess the answer is, yes, to the extent that I knew 3that there was a colonel-level person who was at 4the top of the military police. 5 And one of the predecessors of

6Colonel Moore was a colleague of mine, and we lived 7and worked in close proximity. He was head of the

8Strategic Advisory Team in Kabul, which was right 9beside the embassy, and he had had that job before, 10I guess, and he had retired and joined this SAT. 11 So I knew that the peak of the

12military police sat at colonel, and whether I knew 13his title was Provost Marshal or something else, I 14am not sure about that. 15 Q. Okay. And I gather although

16you may have been aware of the existence of the 17office, you would not be aware of the intricacies 18of the command structure of the Canadian military 19police; correct? 20 21 A. Q. Correct. We have heard evidence that

22the Canadian Forces Provost Marshal, my client, had 23no command authority over the military police in 24theatre, i.e., in Afghanistan 25 6 7 8(613) 564-2727 Were you aware of that fact?

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No. You do not know my client;

3that's a fair statement? 4 5 6never met? 7 8 A. Q. No. Okay. Now, as I was A. Q. That's correct. As far as you know, you have

9following your evidence this morning, your 10correspondence that you originated out of either 11Kandahar or Kabul between May of 2006 and April of 122007, in this time frame you had created this 13expanded distribution list; correct? 14 A. Not exactly. I was using

15pretty much standard distribution lists, and the 16standard distribution list from Kabul and from 17Kandahar was quite big, because so many parts of 18the government were interested in Afghanistan or 19had a reason to receive our reports. 20 21would sort of -22 THE CHAIR: Mr. Colvin, if you I can't hear you. My apologies. You drifted away on So typically what you do, you

23could move a little closer? 24 25 6 7 8(613) 564-2727

THE WITNESS: THE CHAIR:

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THE WITNESS:

Sorry, Mr. Chair.

3In both Kabul and Kandahar, typically we would 4reuse distribution lists. So I would have

5inherited my predecessor's distribution list, and 6then some people appeared, new divisions were 7added. You know, the headquarters structure kept

8evolving, and so some people would drop off, new 9people would come on. 10 So the distribution lists changed,

11and they would change also depending on the 12subject. But there was sort of a consistency, in

13terms of the number of people. 14 However, as the number of

15individuals working on Afghanistan in Ottawa grew 16and grew, and it grew quite dramatically, the 17distribution lists would have got longer to reflect 18that growth. 19 But I didn't radically change the

20number of people on the distribution list compared 21to how it had been before I arrived. 22 23 24wrong term. 25 6 7 8(613) 564-2727 BY MR. WALLACE: Q. I guess maybe I was using the

The CC list, perhaps, is that fair? A. No, that is the distribution

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Okay. Yeah. In any event, following

5instructions to yourself in late April of 2007, 6that distribution list shrunk considerably? 7 A. Yes, especially on detainees, On other issues, I

8not so much for other issues.

9think we continued using a more normal distribution 10list, but detainees, yes, was an example where we 11were instructed to use a very limited distribution 12list, yes. 13 14earlier today. Q. You have explained that

Getting back to the pre-April time

15frame, you will agree with me that my client -16that is, the Canadian Forces Provost Marshal -- was 17not included on your distribution list that was in 18existence from May 2006 to April 2007? 19 A. That's correct, yeah. There

20was no C4 address for the Provost Marshal. 21 Q. And which, at least as I

22understand it, would mean he wouldn't even have the 23capability to receive it? 24 A. Well, he would -- he wouldn't So, you know, just to -- not

25receive it directly. 6 7 8(613) 564-2727

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1to get too much into the tedious details, but, yes, 2the C4 system is based on terminals which are 3dedicated C4 terminals. So the distribution

4network is finite and it is bounded by the number 5of terminals and where those terminals sit. 6 Inside DND, NDHQ, whatever, there

7were roughly 15 addresses in the email list from 8which you could pick to send your messages to, but 9no one beyond that 15. 10 So there was sometimes

11instructions given in the text of the message to 12pass it to certain individuals, and sometimes it 13was left to the discretion of the recipients at 14NDHQ to understand who should receive the message. 15 But the specifics of the details

16of how messages within NDHQ were distributed, I 17can't speak to that. I know a little bit about

18what was happening in Task Force Afghanistan, 19because my colleague and friend worked there. 20NDHQ, I don't know. 21 Q. Okay. But as far as my But

22client is concerned, he was not on your 23distribution list? 24 25 6 7 8(613) 564-2727 A. Q. Correct. Correct?

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Yes. Thank you. Those

MR. WALLACE:

THE WITNESS:

When I say NDHQ, I

5mean also CEFCOM, and National Defence structures 6in Ottawa, is what I mean by NDHQ, yes. 7 8 MR. WALLACE: THE CHAIR: Thank you. Mr. Préfontaine.

9CROSS-EXAMINATION BY MR. PRÉFONTAINE: 10 Q. Alain Préfontaine, and I some of the subjects, So there

11represent the subjects --

12seven subjects and most of the witnesses.

13is a few areas I would like to explore with you, 14Mr. Colvin. 15 As a foreign affairs officer, you

16actually have two roles to perform at the same 17time. The first one is to establish and maintain

18relations with others, journalists, representatives 19of other governments or international institutions. 20So that is the diplomatic side, establishing 21diplomatic relations; correct? 22 A. Sort of. So the journalist

23thing doesn't really fit with that. 24 Q. It is in your affidavit,

25which is why I mentioned it. 6 7 8(613) 564-2727

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If you want to refer to that,

But just a short version. Okay. The first portion of your

6duties is to establish relations with 7representatives of other governments, other 8agencies, international agencies? 9 A. We can go to -- if you want

10to give me your two pieces, and then I will say if 11I generally agree, or I could tell you what I think 12the sort of main components are. 13 14portion. Q. Please answer the first

Are you in agreement that it is part of

15your duties as a foreign affairs officer? 16 17governments? 18 19 20 21 22 Q. A. Q. A. Q. Yes. Yes. Establishing and fostering? Yes. And the other portion of your A. Relations with other

23duties is to advise internally? 24 25 6 7 8(613) 564-2727 A. Q. Yes. So in the first capacity you

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1seek out information, and in the second capacity 2you disseminate the information you have gathered 3to other government officials? 4 5 A. Q. That's part of it. And part of what you do when

6you disseminate the information is to try to 7validate it, to the extent that you can; is that 8correct? 9 10 11that is possible. 12 A. It depends. Not always. In some A. Q. Prior to dissemination? Prior to dissemination, if

13There are different ways of doing it.

14cases, we would simply meet with someone if a 15person is interesting, important. You might just

16write down what they have to say and pass it on for 17headquarters so they know what this person thinks. 18 It doesn't mean that you are, you And what you

19know, confirming what he has to say.

20do in those cases, you might put a comment at the 21end making a general comment on who this person is, 22and, you know, if he has particular biases or what 23his agenda is, that kind of thing. 24 Other times, we would write

25reports which were more of a synthesis, where you 6 7 8(613) 564-2727

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1would be more analytical, draw on a number of 2sources, and there you could even in those contexts 3quote certain individuals. 4 But there might be more processing

5of, you know, removing things you think are not 6valid and including information you think would be 7useful. 8 Q. But in both cases you would

9-- your reporting would involve some level of 10assessment and judgment? 11 12necessarily. 13 Q. You just said that even if A. Not in the first case. Not

14you reported something that you didn't believe to 15be true, you would make a comment to that effect. 16 17necessary. 18 A. Well, you could. It is not

You might want to add a comment. Q. And the reason why you would

19make a comment is that you would want the reader to 20understand what your assessment is? 21 A. Or to understand who the

22individual is who is giving the information. 23 24 Q. A. And -I can give you a concrete

25example, if you would like. 6 7 8(613) 564-2727

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No, no. Or we can just leave it. And the reason why you obtain

4and disseminate information is to allow others in 5the Government of Canada machinery to make 6decisions; correct? 7 A. That's certainly part of it,

8a core part of it. 9 Q. And there are, broadly

10speaking, when we speak of detainees, two types of 11decisions. The first one is setting the policy,

12and your information would feed that process, would 13it not? 14 15 16 17 A. Q. A. Q. Okay. Yes. -- decisions? The first part is setting the Sorry, two types of --

18policy on the transfer of detainees, the Government 19of Canada policy? 20 A. Can you give me the second

21part so I understand? 22 Q. No. I just want you to

23confirm whether you agree with this or not. 24 A. I am not sure. I don't quite

25understand, actually. 6 7 8(613) 564-2727

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Well -If you could rephrase it,

Let's come back, then.

The

5interest that Canada has in the treatment of 6detainee flows from the fact that Canada is a party 7to an international convention. The third

8convention, Third Geneva Convention of 1949; 9correct? 10 A. That is one of our interests,

11but it is not the only interest. 12 13 14 Q. A. Q. That is one of them? Yes. And as a state, we have

15undertaken state obligations? 16 A. Yes. I would say we have an

17interest in upholding international law -18 19 20 Q. A. Q. And therefore --- if that's the message. And, therefore, in deciding

21how it is going to go about upholding that 22obligation, the Government of Canada has to set 23policy; correct? 24 A. Well, I mean, the government

25needs policies for a number of reasons, including 6 7 8(613) 564-2727

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1presumably to ensure international law is upheld. 2 Q. Yes. And to set policy, it

3needs to have information? 4 5 A. Q. That's correct. And one of the sources of

6information would be its foreign affairs officers? 7 8 9those? 10 11 A. Q. That's correct. You would not be the only A. Q. That's correct. And you would be one of

12one, but you would be one of those? 13 14 A. Q. Yes. And the second process for

15which the information was required is not only to 16set the policy, but to implement it, actually 17implement it? 18 A. Sorry, the second process for

19which what is required? 20 Q. Your information was required

21is to inform those who had to implement the policy. 22 A. Are you talking about any

23policy or a specific policy? 24 Q. In terms of -- we're

25restraining ourselves to the handling of detainees, 6 7 8(613) 564-2727

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So in terms of handling of

3detainees, there are those who have to implement 4the policy the Government of Canada has adopted; 5correct? 6 7 A. Q. Yes. And in your understanding, in

8Afghanistan that individual was the commander of 9the Joint Task Force-Afghanistan? 10 11about? 12 13policy? 14 A. Under the December 2005 Q. The transfer of detainee A. Which policy are you talking

15arrangement or the May 3rd supplementary 16arrangement, because those policies were very 17different? 18 Q. No. I am addressing the Are you familiar

19theatre standing order, TSO 321A. 20with that? 21 A.

I have glanced over it.

22That's an internal Canadian Forces document. 23 24 Q. A. And are you -I don't know if you would I don't think that is a

25call that a policy. 6 7 8(613) 564-2727

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I think it is a theatre standing order. Q. Yes. And in your

3understanding of what the theatre standing order 4is, that's an order from the commander to his 5troops saying, This is how you are going to handle 6this particular duty; correct? 7 8 9 A. Q. A. I am -You are not aware? I know this thing exists, but

10how it fits into the CF, you know, doctrine, 11whatever, I don't know, to be honest. 12 Q. And are you aware of the fact

13that under that policy, the only person who can 14decide whether to release/transfer a detainee is 15the commander of the Joint Task Force-Afghanistan? 16 A. Well, I am not sure a theatre I think it is an

17standing order is a policy. 18order. 19 Q.

You want me to take -- do you

20agree with me that the person who decides whether 21to transfer -22 A. Do you have a copy of the

23theatre standing order? 24 Q. Yes. If you go to the main

25documents for witnesses, the white books? 6 7 8(613) 564-2727

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Uh-huh. Volume 1.

Which one? And I am just -- I

3just want to take you to the more useful one, 4because there were a number of those policies 5adopted. 6 If you could turn up the document

7at tab 14, and you see that, Mr. Colvin? 8 A. Yeah. Just to say I have

9never seen this before. 10 11 12was. 13 Q. And would you be prepared to Q. A. I understand that. It's not what I thought it

14accept my representation to you that according to 15this TSO and the later versions, the only person 16who has the authority to authorize the transfer or 17release of a detainee is the commander of JTF18Afghanistan? 19 A. Right. This would be under

20the December 2005 arrangement under which detainees 21was handled internally by Canadian Forces, the 22whole-of-government effort; is that correct? 23 Q. It is the standing order that

24was in force when the December 2005 agreement was 25in force; correct? 6 7 8(613) 564-2727

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Okay.

Sorry, what was your

2question, whether I accept that -3 Q. That the only person who is

4authorized under that policy to transfer a 5detainee, or release him, is the commander of the 6Joint Task Force? 7 8that? 9 Q. I will find it for you. Yes, A. Where in the document is

10if you turn to page 8 of 11, paragraph 32? 11 12 A. Q. Uh-huh. Paragraph 32 starts,

13"Commander TFA", and that is the commander Task 14Force-Afghanistan, we agree? 15 16 17 18 19 20 21 22 23 24 A. Q. A. Q. Hmm-hmm, yeah. "... is the sole authority and power to make the determination whether a temporarily detained person shall be retained in custody, transferred to ANSF or released." Hmm-hmm. So do you agree with me that (As Read)

25according to the theatre standing order, the only 6 7 8(613) 564-2727

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1person with the power to transfer a detainee would 2have been the commander? 3 4 A. Q. I would. And would you agree with me

5that under the Convention -- another of Canada's 6international obligations called the convention 7under torture, the commander had certain 8obligations in the exercise of that decision-making 9power? 10 A. Well, I should, you know,

11emphasize I am not a lawyer, so my understanding of 12international law is quite sketchy. 13 Q. That's what I am looking for.

14Under your understanding of international law, the 15commander had certain personal obligations before 16making a decision? 17 A. I am not really qualified to

18speak on the legal aspects, I am afraid, Mr. 19Préfontaine. 20 If I could just go back to your

21earlier question, I notice under point 1 that it 22says a theatre standing order is not policy, but is 23to promulgate policy, and it is promulgating not 24Government of Canada policy, but Task Force 25Afghanistan policy, just on that earlier point. 6 7 8(613) 564-2727

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Mr. Lunau, I don't have the

2exact reference to -- I understand yesterday the 3decision of the Federal Court Amnesty International 4Canada v. Canadian Forces was made an exhibit. 5 If you could tell me what is the

6number of exhibit so I could direct Mr. Colvin to 7it? 8 9 1056. 11 12list. 13 14witness's table? MR. PRÉFONTAINE: Is it on the MR. LUNAU: I don't have it on the MR. LUNAU: THE CHAIR: Just bear with me. I think it was 55 or

Madame Registrar, is the decision

15of the Federal Court of February 7th, 2008 on the 16witness's table? It was put yesterday to a number I would

17of witnesses and in the previous days. 18like to similarly use it. 19 20 21 22 MR. LUNAU:

Exhibit P-9. Exhibit P-9?

MR. PRÉFONTAINE: THE CHAIR:

Is that volume 5? Yes, it is, Mr.

MR. PRÉFONTAINE:

23Stannard, and I understand it would be tab -24 25 6 7 8(613) 564-2727 THE CHAIR: Forty-two. Forty-two.

MR. PRÉFONTAINE:

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THE CHAIR:

I have it.

BY MR. PRÉFONTAINE: Q. Do you have before you, Mr.

4Colvin, the February 7th, 2008 decision from Madame 5Mactavish? 6 7 8paragraph 14? 913. A. Q. Yes, I do. If you could turn up

Well, actually, we will start with

In 13 we see -- are you there, members of the

10Panel? 11 12 13 14Mactavish wrote: 15 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "In accordance with Task Force Afghanistan's Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of another country, is within the sole discretion of the Commander of Joint Task Force THE CHAIR: Yes.

BY MR. PRÉFONTAINE: Q. In paragraph 13, Justice

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Afghanistan, a position currently occupied by General Laroche." Do you see that? A. Q. I do. In paragraph 14: "Before transferring a detainee into Afghan custody, the Commander must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities." Do you see that? A. Q. I do. And do you accept that that

21would be the test which the commander would have to 22apply each and every time he had to consider 23whether to transfer, or not, an Afghan detainee in 24Canadian Forces custody? 25 6 7 8(613) 564-2727 A. It is hard for me to comment

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1on internal Canadian Forces procedures. 2 Q. That's not what I am asking That is the legal standard Are we in agreement;

3you about, Mr. Colvin.

4applicable to the commander. 5yes or no? 6 7 8 A. Q. A.

Which one? Paragraph 14. I am afraid I am not a

9lawyer, Mr. Prefontaine, so I am not qualified to 10speak on legal standards. 11 Q. So working on this as a

12hypothesis, then, because you do not wish to accept 13it, if this was true that this was the standard 14applicable to the commander's decision, would you 15not agree that the commander would be looking for 16information from different sources in order to 17assist and formulate his assessment of whether 18there is, or not, a serious risk of torture? 19 20 A. Q. Yes. And one of those sources

21would be sources within your department, the 22Department of Foreign Affairs and International 23Trade; correct? 24 25 6 7 8(613) 564-2727 A. Q. Correct. And it would come from

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Yes. And he would be looking for

4not only a reporting of facts, but also an 5assessment as to what those facts mean; correct? 6 7 A. Q. Correct. And he would be looking for

8signs that for those who had -- whose job it is to 9look at the information, there is a red flag going 10up? 11 12again, please? 13 Q. For those whose job it is to A. Can you say that question

14review the information and assess it, a red flag 15goes up. That's what he is looking for. If there

16are no red flags for DFAIT officers who review the 17information, then there should not be one for the 18commander? 19 A. I think here you are getting

20into the realm of the -- well, here it is important 21to understand if we're in the pre May 3rd, 2007 22period or post May 3rd, 2007. 23 Q. In actual fact it makes no

24difference, Mr. Colvin, because the legal tests 25remain the same throughout the period. 6 7 8(613) 564-2727

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So my question to you is:

Is it

2not fair for the commander to be expecting that the 3reports presented to him will contain some 4assessment which will help him formulate his own 5decision? 6 A. Right. I mean -- I mean,

7obviously, as I said, I can't comment on the legal 8aspect. 9question. I am talking about this as a policy That's what I am qualified to talk

10about, and -11 Q. Yes. But the Commission here

12is investigating whether certain MPs should have 13investigated a potentially illegal act which would 14have been committed by the commander, and I am 15looking at the decision-making process of the 16commander and how your information fed into that 17process. 18 19 20policy here. 21 A. But this is why it is A. Q. Yes. So we are not looking at

22important whether it is pre May 3 or post May 3rd 23of 2007, because the process post May 3rd was 24completely different to the process pre May 3rd. 25That process post May 3rd was guided by the SOPs, 6 7 8(613) 564-2727

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1which were whole-of-government SOPs, and they speak 2to this precise question; whereas before May 3rd 3there were no SOPs and there was a completely 4different regime in place. 5 6clarification. 7 Q. As a foreign affairs officer That's why I am asking for

8who has access to information and makes 9assessments, that hasn't changed from 2006 to 2008, 10has it? You still review information, still make

11recommendation and assessments? 12 A. Well, I mean, yes and no.

13For example, pre May 3rd, 2007 I never did any 14detainee monitoring. Post May 3rd I did. So a new

15function was added to my portfolio. 16 So in that sense -- and that was a

17very different type of reporting from what I had 18ever done before or since. So I am not sure I

19would fit it into some kind of global, you know, 20framework of what we do -21 22 23 Q. A. Q. Yes, but --- as a job. Wouldn't you agree, Mr.

24Colvin, that the first duty of somebody who advises 25is to be able to speak truth to power? 6 7 8(613) 564-2727

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That's important, yes. So that even before the May

32007 SOP, had you seen something that would have 4caused you tremendously, you would have reported 5it, would you not? 6 7 A. Q. What kind of something? If you think that there was a

8serious risk of torture, you would have reported 9that, at least within DFAIT? 10 A. Yes, if I had information You're

11that there was a serious risk of torture.

12talking about our detainees or Afghans, in general? 13 Q. Our detainees, because our

14legal obligations are limited to our detainees, and 15the potential liability of the commander is 16restricted to those whose transfer he orders, not 17to the rest of the population in Afghanistan. 18 19 A. Q. Yes. Agreed.

Could you look at the main That is on your

20documents for witnesses, volume 2? 21table, or should be there. 22 23 A. Q. Hmm-hmm.

Do you have it?

Could you

24turn now to tab 49, Mr. Colvin, please? 25 6 7 8(613) 564-2727 Now, if you look at the bottom of

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1each document, which were scanned, and then 2printed, which are contained in tab 49, you will 3see in the middle a number. 4you see it is 278? 5 6 7document 285? 8 9 A. Q. Hmm-hmm. And you see it is an email A. Q. On the first page, do

Do you see that, Mr. Colvin? Yes, I do. Can you turn up until you see

10that is printed by or was printed by Cyril Borlé? 11 12 13 Do you see that, Mr. Colvin? A. Q. Yes, I do. And if you go back to the

14bottom of the page, you will see on the right-hand 15side "1 of 3" in the corner, right-hand corner on 16the bottom, "1 of 3"? 17 18 19 20 21on the same page? 22 23 24 25is confusing. 6 7 8(613) 564-2727 THE CHAIR: Yes. I hope so. I recognize this A. Q. A. Q. Yes. Turn up to 3 of 3? Yes. Members of the Panel, are we

MR. BERLINQUETTE: MR. PRÉFONTAINE:

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THE CHAIR:

You are looking for

2the paragraph "When asked"; is that where you are 3going? 4 Is that the right page? MR. PRÉFONTAINE: Actually, no.

5On that very page, yes. 6 7 BY MR. PRÉFONTAINE: Q. You see, Mr. Colvin, title

8number 4, "Priority Requirements and 9Recommendations"? 10 11 12 13the same page? 14 15 16 THE CHAIR: Yes. A. I do. Got it. So we are all on

THE CHAIR:

MR. PRÉFONTAINE:

BY MR. PRÉFONTAINE: Q. Mr. Colvin, you see in the

17second paragraph there the allegation -- the 18previous paragraphs report allegations of abuse and 19torture, but since you were not present, I won't 20ask you about them. 21 22 23 24 25 6 7 8(613) 564-2727 A. Q. Right. But the last paragraph says: "The allegation of abuse and mistreatment should be taken very seriously, but should be

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addressed strategically." This is a report of the November

Right. And you understand that after

6that report was sent, transfers were suspended? 7 8 9period of time? 10 11 A. Q. Yes. And I take you to this, A. Q. Yes. For quite a considerable

12because here obviously those who not only reported 13the facts up the page upon which they made their 14assessment, do present the reader with an 15assessment, because they do say, "should be taken 16very seriously"; correct? 17 18 A. Q. That's correct. And I would like, in that

19vein, to come back to your own reports and see what 20one finds there, if we may. 21 In particular, we will look at the

22two reports that you generated after you visited 23the prisons. 24 25 6 7 8(613) 564-2727 A. Q. Hmm-hmm. The first one, to be sure we

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1have the right one, would be in your book of 2emails, Collection E, Colvin's documents. 3 4Kandahar, 029. 5 6 I am looking for your report from That you will find in tab 1. A. Q. Hmm-hmm. Oh, sorry. Thank you.

7Starting at page 2.

And I would like to discuss

8this document with you not from the point of view 9of the drafter, because that is obviously who you 10were in relation to this document, but in relation 11to the reader and the message that the reader could 12reasonably be expected to take away from reading 13your report. 14 15 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 The summary says: "Because of inadequate information collection and occasional reporting delays, the [blank] ICRC office is losing track of some Afghan detainees. Efforts to

resolve these problems to date have not been successful. ICRC is 'very

much taken aback' by the lack of..."

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THE CHAIR:

Excuse me.

I think

MR. PRÉFONTAINE: THE CHAIR:

I apologize.

I am in tab 1. Yes, third page.

MR. PRÉFONTAINE: THE CHAIR:

At the heading

MR. PRÉFONTAINE:

Under the

9heading "Summary", and I was simply reading the 10third paragraph under the heading "Summary". 11 12 13 14 15 16 17 18 19 20 21 22 23reader. 24correct? 25 6 7 8(613) 564-2727 A. Yes. BY MR. PRÉFONTAINE: Q. Efforts to resolve these problems to date have not been successful. ICRC is

'very much taken aback' by the lack of cooperation from Canadian military in theatre. A more detailed reporting form, and a helpful point of contact at KAF, would address principal ICRC concerns." That is what you are telling the The problem here is one of notification;

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And so if the commander of

2Joint Task Force-Afghanistan was reading your 3report and he read the summary, the message that he 4would derive from it is that there is a process 5issue to be worked out; correct? 6 7way. 8 Q. And nowhere in that report do A. Yes, you could put it that

9you say that detainees are at risk of torture and 10that you consider that to be a serious risk? 11 A. Right. There is an oblique

12reference to that, but, as you say, this message is 13primarily about notification or, as you say, 14process. 15 16Colvin -17 18with process. A. No, no. I agree it deals Q. Not to belittle process, Mr.

That is the point of its -- on the

19specific subject with hopefully a specific 20solution. 21 22 23 Q. A. Q. Let's turn up tab 43. Hmm-hmm. And that's another message

24you drafted; correct? 25 6 7 8(613) 564-2727 A. Correct.

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"Kandahar prison and Afghan

2detainees" is the subject line? 3 4 5reads: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "The Kandahar prison gets a passing grade from the ICRC. Although close to full capacity it requires only modest physical upgrades. [blank] for the southern region in Kandahar reflects the poor quality and severe overcrowding of the prison in Uruzgan..." I apologize for the pronunciation: "... where the Netherlands is deploying a battle group and PRT as part of NATO's expansion into southern Afghanistan. In Kandahar A. Q. That's correct. And here, again, the summary

[blank] not the prison itself but overall treatment of detainees, including those transferred to Afghan custody

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by Canadian forces." So this is your subtle signal? A. I would disagree with you If we had access to the

4there, Mr. Préfontaine.

5unredacted version, then there would be some 6crucial information, additional information, which 7obviously we don't have because of the 8redactions -9 10 11 Q. A. Q. Yes. -- which would -I have had access to the

12unredacted document. 13 14 A. Q. Yes. I don't see there anything

15that is missing or crucial or important, Mr. 16Colvin. 17 A. Oh, then I am afraid, then,

18you would be acknowledging your -- that you are new 19to this issue, because if you were someone who was 20involved in this file, involved in Afghanistan 21involved on this issue, what has been redacted is 22extremely important, and it is critical to 23understanding that there is nothing particularly 24subtle about this message. 25 6 7 8(613) 564-2727 I don't agree it is a subtle

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Okay.

And the substance of

3what you in this message -- not in your head, but 4in this message -- what you impart to the reader 5and the substance of what you have to say about 6treatment of detainees is contained in paragraphs 720 to 23; correct? 8 9and conclusions. 10 Q. And in the summary where you A. Correct, and in the summary

11repeat the introduction? 12 13 14 15 16 A. Q. A. Q. A. The conclusion, yes. The conclusion, sorry. Yes, that's correct. Which echoes word for word? Yes. And there is also the That is

17follow-up that also relates to that issue. 18paragraph 25. 19 Q. Yes.

And the Commission will

20decide whether it was too subtle for the reader to 21pick up your meaning. 22 A. I think the Commissioner is

23only given the redacted version, so he may have 24some difficulty fully assessing the subtlety, or 25lack thereof, of these reports. 6 7 8(613) 564-2727

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And I recognize it is

2difficult for the Commission to have to contend 3with -- without ability of independent verification 4what you say or, for that matter, what I say. 5 A. Yes. I am fully prepared for

6the Commission to see the unredacted version and to 7form his own opinion. 8 Q. So would I, but it is not my

9call to make, Mr. Colvin. 10 THE CHAIR: Can I just ask, did

11you say that the information contained in the 12unredacted really isn't critical, or did I misread 13that? 14 15Mr. Stannard. 16 17question, then. 18 THE CHAIR: Just a real silly MR. PRÉFONTAINE: No, you didn't,

Any reason why we don't have it? MR. PRÉFONTAINE: Because it would

19be injurious to either national defence, 20international relations or national security. 21 THE CHAIR: Even though it is not

22critical information? 23 MR. PRÉFONTAINE: It might be the

24information has nothing to do with what Mr. Colvin 25makes it out to be. 6 7 8(613) 564-2727

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THE CHAIR: MR. REES:

Okay. Mr. Chair, I have a

3general concern about cross-examining the witness 4on materials that may or may not be in the 5redactions where he is not in a position, because 6of the section 38 notice, to respond to those 7questions, and that is not appropriate as a matter 8of procedural fairness. 9 MR. PRÉFONTAINE: I intend to

10cross-examine only on what is here, but I do note, 11for my friend, Mr. Owen, that his client has 12previously stated that there might be something in 13the redacted portions. So this is not a line of

14enquiry I have opened up myself. 15 16Colvin -17 THE CHAIR: Just to answer Mr. So looking at paragraph 21, Mr.

18Rees, the witness did mention earlier about things 19that may be in the redacted portions, but I think 20Mr. Préfontaine is going to move on with only the 21information, as he says, that is here. 22 23 24 25 6 7 8(613) 564-2727 MR. PRÉFONTAINE: MR. REES: Correct.

Thank you, Mr. Chair.

BY MR. PRÉFONTAINE: Q. In paragraph 20, Mr. Colvin?

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Hmm-hmm. "[Blank] on the issue of how Afghan detainees are treated. In the case of prisoners in the Kandahar facility [blank]. However [blank] did

offer some roundabout answers." So that is your own assessment;

Which? Roundabout answers. He

13didn't say, I am going to offer you a roundabout 14answer? 15 A. That's right. That is my

16characterization of what is being said. 17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 Q. Okay. Paragraph 21:

"For example, in relation to a question about whether training was needed for guards [blank] training would be better be directed to the police and judiciary." And then there is a question: "'How police treat their

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detainees has a great bearing on how the populations sees' the authorities [blank]. This issue is 'increasingly important, increasingly complicated and should be taken more and more into consideration.' [blank] 'when things get difficult, some authorities in Afghanistan get tougher and tougher. This can turn the population against the authorities'." I assume the quotation marks are

15meant to convey to the reader that you are actually 16relaying words that were given to you? 17 18 A. Q. That's correct. And is there anything that

19would be obvious to the reader in the quotations 20that Canadian-transferred detainees are at serious 21risk of torture? 22 A. Well, I think here, Mr.

23Préfontaine, we are into the section 38 problem, 24which is that obviously critical information has 25been removed by the censor, and so I am not allowed 6 7 8(613) 564-2727

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1to speak to what is behind the blacked out 2portions. 3 So I am not sure what good it is

4to simply read the little bits which the censor has 5decided is available to the Canadian public to see. 6 Q. Because at the end of the

7day, Mr. Colvin, this Commission is going to be 8asked to pass judgment on the actions of some on 9the basis of this material. 10 A. That's why.

I can give you my assessment

11of the significance of the section, if you like. 12 Q. No. I am just looking at

13what you -- information you relayed to the reader, 14who eventually end up being the commander of JTF-A, 15who was tasked to make the decision of whether to 16transfer or not. 17 A. Okay. But your redactions,

18you must appreciate, Mr. Préfontaine, have made my 19content somewhat incoherent, because big chunks 20have been spliced out. 21it does to read out -22 23Mr. Colvin. Q. I have heard your opinion, You So I'm not sure what good

So let's move to 23, for example.

24in the last sentence say: 25 6 7 8(613) 564-2727 "For example, [blank] began

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by describing some of the detainees as being held in 'unsavoury' conditions, then changed that to 'unsatisfactory'." So those words I assume were used

Correct. And is it your testimony that

10the commander of JTF-A, in reading those words, 11ought to have understood that this was code for 12torture? 13 A. I am saying that the

14commander of JTF-A, receiving the unredacted 15version of this message, should have been aware 16that our detainees were being maltreated. 17my testimony. 18 Q. In the conclusions, is there That is

19anywhere that you express the opinion that the 20detainees -- the conclusion or the summary, that 21the detainees are facing a serious risk of torture? 22 A. I am not only giving that

23information, but I am attributing it to a source, 24sources, which are extremely credible. I can't

25tell what those are in this forum, because they 6 7 8(613) 564-2727

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So it is actually, I would say, It is the assessment of

3better than my assessment.

4others who have great credibility and authority. 5 Q. So are you telling this

6Commission that under the redactions somewhere in 7this document appear your words -- or your 8assessment, rather, that Canadian-transferred 9detainees faced a serious risk of torture? 10 11 A. Q. Say the question again? Is it your testimony before

12this Commission that under the redactions appear 13the words "serious risk of torture"? 14 15 16 17 18 19 20 A. Q. A. Q. A. Q. A. Those exact words? Yes. No. Torture? No. Risk? I can't remember what is

21under each of these blanked-out passages, I am 22afraid, Mr. Préfontaine. 23 24 Q. A. And mistreatment? Again, I don't remember

25exactly what the words are, so I am not sure what 6 7 8(613) 564-2727

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1the purpose of this questioning is. 2 My testimony would be that the

3reports conveys clearly that our detainees face 4serious risk. 5 6 7 8 Q. A. Q. A. No, I hear your testimony. Yes. There will others who -If you are talking about

9exact words which are under these blacked-out 10things, I am not even allowed to say what is under 11them, so even if these words were used, I am not 12sure I could publicly admit they have been, because 13they have been redacted. 14 Q. Well, we have seen in the

15November 5th, 2007 visit report that the words 16"serious risk of torture" were not blacked out. 17They were there. 18 19 A. Q. Sorry, which report is this? The report prepared by Mr.

20Gosselin in November 2007 that we looked at 21previously. 22 23risk of torture"? 24 25 6 7 8(613) 564-2727 Q. A. Serious allegation. Where does he say that? A. Where does he say "serious

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I will take you again. That final paragraph? Yes. That is not exactly what it

The allegation of abuse and

THE CHAIR:

Which page are we on? Sorry, we are in

MR. PRÉFONTAINE:

10volume 2 of 5 of the main documents for witnesses 11at tab 49. 12 MR. PRÉFONTAINE: Document 285,

13members of the Panel, if you look at -14 15 16 17 18says: 19 20 21 22 23 24 25 6 7 8(613) 564-2727 "The allegations 'of abuse and mistreatment should be taken very seriously but should be addressed strategically." Is that what you're referring to? BY MR. PRÉFONTAINE: THE CHAIR: Three of 3? Yes.

MR. PRÉFONTAINE: THE CHAIR: THE WITNESS: Yes.

What I see is he

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Yes.

So the words "serious"

2appear there, "the allegations of abuse and 3mistreatment", and that is clearly a red flag, 4would you not agree? 5 A. I would disagree. This is

6a -- I would say a pat phrase which gets used in 7these monitoring reports almost as if the people 8had been sent out or had been instructed to use 9this phrase. 10 I think it is quite a meaningless

11sentence, personally. 12 Q. You say that from the vantage

13point of somebody who, after June of 2007, was, as 14you stated previously, cut from that loop? 15 16 17the reports? 18 A. I can say as early as June A. Q. Well, I can -And does not have access to

19the 4th, this phrase is being used in this very 20poor quality monitoring mission made to Sarpoza. 21These allegations obviously we take very seriously. 22It is what you call a talking point, and it was in 23all the talking points, as instructed, to deliver 24to the Afghan government even prior to the 25appearance of the Globe and Mail article: 6 7 8(613) 564-2727 We take

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1these allegations very seriously. 2 It is a kind of cliché almost, Mr.

3Préfontaine, in my view. 4 Q. I think we are well served by I think we must, wouldn't

5taking them seriously. 6you agree? 7 A.

Taking the allegations of

8abuse of humans seriously? 9 10 11 Q. A. Q. Yes. Yes, I agree. But there is two assessments They have to be credible

12contained in there.

13allegations, so "credible" is an assessment; 14correct? 15 16 A. Q. Correct. And the risk has to be a

17serious risk, and "serious" also entails an 18assessment? 19 20 A. Q. Correct. And those who are making the

21assessment were, in part, you; correct? 22 23talking about? 24 Q. As to whether there were A. Which assessment are we

25credible allegations of serious risk of torture. 6 7 8(613) 564-2727

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I don't think I was ever

2asked to make that assessment, Mr. Préfontaine. 3 Q. In the report that you

4drafted for policy makers or decision makers, if 5you felt that there was an issue to be addressed, 6you would have made the assessment; correct? 7 A. Not in that form, no. I gave

8policy advice at one point -- actually, at two 9points, and that included an assessment of what the 10risks were. Rather, it was more -- actually, it It was an

11wasn't even an assessment of risk.

12explanation of the existing patterns of abuse. 13That's different really to assessing risk. 14 What you are talking about is, I

15think, according to your standard task force 16theatre standing orders. That's a requirement of

17the commander, I believe, in that section you 18showed me. He has to make some kind of risk

19assessment, but that wasn't what I was doing in my 20job. 21 Q. But he was relying on

22information to do that, would you not agree? 23 24 A. Q. Sure. And part of the information

25that he was relying on might have come from you? 6 7 8(613) 564-2727

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I agree. And it might have come from

Correct. And in actual fact, you were

6not privy to all the information the theatre 7commander had? 8 A. Right. I may have had more

9than him in some areas, and he may have had more in 10others. 11 12information? 13 14 A. Q. He may, yes. Yes. For example, he might Q. He might have different

15have met, personally, the different players, 16whoever the director of the prison, whoever was in 17charge of the NDS in Kandahar; correct? 18 19 A. Q. Yes, yes. And might have formed some

20personal assessment as to their reliability? 21 22 A. Q. Yes. And that might have been one

23of the factors the commander took into account? 24 A. The credibility of his

25sources, reliability of his sources? 6 7 8(613) 564-2727

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Yes. That is one of the factors

3that would -- yeah, it would inform his judgment, 4assessment. 5 Q. The same way, when we were

6discussing the previous document, you found a 7source that you were discussing with to be highly 8credible? 9 10 A. Q. Yes, that's right. So it is a common trait, to

11all of those who have to look at information and 12try to decide whether they can act on it, to have 13to assess its credibility? 14 A. The credibility of the

15information and source. 16 17 18 Q. A. Q. And reliability? Sure. And you had your sources and

19you fed reports, and the commander might have had 20different sources in addition to your reports? 21 22 A. Q. Yes, agreed. Let's come back to one of

23your reports, tab 33 of Collection E of the Colvin 24documents. 25 6 7 8(613) 564-2727 We find here the report that you

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1generated after your visit to the NDS detention 2facility on the 4th and 5th of June. 3 4 5 6 A. Q. A. Q. The 5th and 6th of June. Sorry, 5th and 6th of June? Correct, yes. Looking at the summary

7paragraph 3, you summarize that: 8 9 10 11 12 13 14 15 A. Q. "Of the four detainees we interviewed, three said they had been whipped with cables, shocked with electricity and/or otherwise 'hurt' while in NDS custody in Kandahar." Correct. In actual fact, not all three

16of them told you that they all had been whipped 17with cables or shocked with electricity or 18otherwise hurt; correct? This was not a

19description of the mistreatment they would have 20received that was shared by each and every one, 21agreed? 22 23 24 25 6 7 8(613) 564-2727 A. Q. A. Q. That's correct, yes. It was just an amalgamation? That's correct, yes. You told us earlier that you

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1eventually found out that these four persons you 2interviewed, including the three ones here, only 3one was a Canadian -- we could confirm was a 4Canadian-transferred detainee? 5 A. Yes. I would say one was

6definite and the second was probable. 7 Q. I would like to take you to And at page 4, you describe

8page 4 of your report.

9in bullets your interview of the detainee number 2 10in the top portion of the page; correct? 11 12 A. Q. Hmm-hmm. You have to -- sorry, for the

13purpose of the transcript, you have to say yes or 14no. 15 16 A. Q. Sorry. Yes.

You report, and I am looking

17at the fourth bullet from the bottom, immediately 18after, "He has been visited by human rights 19people"? 20 21 A. Q. Hmm-hmm. It is in quotation marks. What did

22What did you make of human rights people? 23you think it meant? 24 25 6 7 8(613) 564-2727 A. Q.

You know, I would guess ICRC. The next bullet:

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"Individual was quiet and careful, and sat with his hands clasped during the meeting. He was forthcoming,

but also seemed anxious, with some facial twitches." Now, the report doesn't say what Is there

8the reader ought to make of this.

9anything we should read into this description? 10 A. It is colour, I would say,

11sort of, you know, the reader understands the 12circumstances, the situation of this individual, 13and it links into the final comment, which was our 14general impression that he was traumatized. 15 So it is a little bit -- you know,

16some of this is just straight -- you know, we're 17conveying what we observed, and then there is a 18little bit -- at the end, a little bit of 19assessment. 20 Q. Yes. When you say he was

21somewhat traumatized, you don't specify by what? 22 A. Well, we are just conveying

23the impression he conveyed. 24 Q. No, I realize that, but you

25don't say traumatized, because in a previous 6 7 8(613) 564-2727

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1paragraph -- and we will come back to that -- you 2say that he told you he had been hurt and had 3problems. 4 5 A. Q. Hmm. And there is no ready

6connection to be made being somewhat traumatized 7and hurt and had problems in the previous 8paragraph. 9 10that. 11 12example. Q. Well, let me give you an At least you draw none in that report. A. Well, I am not sure about

If you go up to the third bullet from the

13bottom, your description of the toes? 14 15 A. Q. Hmm-hmm. "Individual" -- you have to

16say yes or no, Mr. -17 18 19 20 21 22 23 24 25 6 7 8(613) 564-2727 A. Q. Sorry. Yes.

"Individual sat with his toes curled under his feet. When

he straightened his toes, it could be seen that the nails of the big toe and the one next to it, were a red/orange on the top of the nail (although the new growth

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underneath appeared fine)." Is the purpose of putting

3something between parentheses to offer some 4assessment to the reader, because the first portion 5of the sentence seems to be as a straightforward 6description of what you have observed, and then 7what appears in parentheses seems to be an 8assessment of that? 9 A. I would describe it as an

10observation more than an assessment. 11 Q. And the conclusion that you

12drew in answer to Madame Pastine's question, that 13doesn't appear in your report, does it? 14 15 16 17 18 19 A. Q. No. And the next bullet you say: "When we asked him about his treatment in Kandahar rather than Kabul, he became quiet." But we previously noted, it seems

20to me, two bullets up, that he was quiet and 21careful? 22 23 24 A. Q. A. Hmm-hmm. So he became quieter? He paused, stopped talking The one above is a general

25for a bit, reflected. 6 7 8(613) 564-2727

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1description of how he was throughout the course of 2the meeting. 3question. 4 This relates to his reaction to our

It is a different -Q. You understand our You were there; we

5predicament, Mr. Colvin. 6weren't.

All we have to go by is the report that

7you have drafted, and so it was for the commander 8of JTF-A -- the only thing he had before him were 9your reports? 10 A. Well, I wouldn't -- I hope he

11had more than just our reports. 12 13 Q. A. And I believe -The report would be among the

14information which he would have had. 15 Q. So that reading that, that

16person has to form a judgment, which is why the 17lack of assessment is troubling. 18 A. Well, I believe there is

19enough information here to paint a fairly clear 20picture of what happened to this individual. 21 Q. Yes, but your report doesn't

22offer that conclusion, does it? 23 24conclusion? 25 6 7 8(613) 564-2727 A. It doesn't offer that

Sorry, was that your question? Q. Yes.

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I would say it does, in a

2sense, offer a conclusion, if you look at paragraph 33 of the summary. 4 Q. Yes. We have looked at that,

5but now we are looking at the factual foundation of 6the conclusion. 7 8 Paragraph 3 is the conclusion. A. Q. Yes. And now we are looking at the

9details of your report, which ought to give us the 10factual foundation of your conclusion. 11 12 A. Q. Okay, sure. Yes.

So we are looking at the

13factual foundation, and all that we see is that he 14had: 15 16 17 18 19 20 21 22 23 24 25it? "... red/orange on top of his toenails (although the new growth underneath appeared fine). When we asked him

about his treatment in Kandahar ... he became quiet. He said that in Kandahar he had been 'hurt' and 'had problems'." That is fairly elliptical, isn't It is not direct?

6 7 8(613) 564-2727

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I would say "hurt" is fairly

I wouldn't describe that as elliptical

3personally. 4 Q. But why is it that it doesn't

5appear right here in your assessment of the 6allegation made by detainee number 2? 7 8appear -9 Q. Why don't you share that A. Excuse me, why doesn't it

10assessment with the reader as you are describing 11detainee number 2? 12 13number 2. 14 Q. I know, but your assessment A. I'm sorry, that is detainee

15of whether you believe the allegation to be true or 16not doesn't appear here. 17 A. I'm sorry, I don't understand

18your question, Mr. Préfontaine. 19 Q. Okay. Let me give you If you go up

20another way of going at it, then.

21page 4, about midway in your description of your 22interview with detainee 2, you see a description of 23what the detainee told you he was being fed? 24 25 6 7 8(613) 564-2727 A. Q. Yes. And after the description of

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1what he was being served, by what food, there is a 2note in brackets: 3 4 5 6 7 8assessment? 9 A. No, it's not. It is a A. Q. "Other detainees talk of being fed potatoes rather than rice." Right. I mean, yes.

That is a comment that is an

10summary of what the other detainees said. 11 Q. Okay, but the reason why you

12put the note there is this particular detainee did 13not offer you that information. It was your

14ability to compare two versions of the same regime? 15 A. Yeah. I mean, this is a

16rather benign issue, obviously, whether they get 17potatoes rather than rice. 18comment we tossed in. 19 Q. Yes, yes. All I see, when It was just a little

20you describe the problems detainee number 2 had in 21Kandahar, is the absence of note. 22 23again, please? 24 25paragraphs -6 7 8(613) 564-2727 Q. When in the last three A. Sorry, can you say that

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Uh-huh. -- you describe the treatment

3of detainee number 2, there is no note; correct? 4 5 A. Q. Sure, yes. You are correct.

Moving on to detainee 3 on

6the same page, bullet number 2: 7 8 9 10 11 "Individual appeared in dirty clothes, although his fingernails were neatly trimmed." Now, is that a sign that he was

12getting a manicure? 13 14some colour. 15of that. A. It is, as with the other one,

I am not sure personally what to make

We simply are giving as much information

16as we can to people who were in there. 17 I would just add, as well, some of

18these observations were made by my colleague, who 19has had training by the government in what to look 20for in torture cases, and so he is observing all 21kinds of information, including things like whether 22his clothes are clean or dirty. 23 Q. And I agree that reporting

24observations is the first portion of that report, 25but the second portion is offering an assessment. 6 7 8(613) 564-2727

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Or a summary of what we saw. Yes, but an assessment much

3like Mr. Gosselin offered in November? 4 A. I don't believe what Mr. This

5Gosselin offered, frankly, is an assessment.

6is a -- it's a comment which is sort of, from my 7point of view, a meaningless comment, and in fact a 8very ambiguous comment. What does he mean -- I am The allegation should

9just -- this is what I read:

10be taken very seriously, but should be addressed 11strategically. 12means. 13 Q. But it seems, Mr. Colvin, I personally don't know what that

14that at least he was understood by those who read 15it, because transfers were suspended. Whereas,

16when you filed your report, there doesn't seem to 17have had the -- do not seem to have produced the 18same effect? 19 A. Well, you are comparing I would

20apples and oranges, Mr. Préfontaine.

21suggest to you the reason transfers were suspended 22was because the information we provided higher up 23on that page in Mr. Gosselin's report, when he 24says: 25 6 7 8(613) 564-2727 "He alleged that during

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interrogation, individuals held onto the ground while the other beating him with electrical wires and rubber hose. Indicated spot on the

ground in the room we were interviewing as the place he was held down. He then

pointed to a chair and stated the implements he had been struck with were underneath it. Under the chair we found

a large piece of braided electrical wire, as well as a rubber hose. He then showed

us a bruise approximately four inches long on his back that could possibly be the result of a blow." I would suggest to you, Mr.

21Préfontaine, that is the reason why transfers were 22stopped, not this meaningless line in the final 23section. 24 Q. Well, it is actually more It is a combination of all

25than that, Mr. Colvin. 6 7 8(613) 564-2727

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1of that, because the first portion gives you the 2credible allegation, and, the second, that there is 3a serious risk, and in the case -4 5 A. Q. That is not what it says. -- of your reports, in the

6case of your reports -7 8question there. 9 10 BY MR. PRÉFONTAINE: Q. Yes. In the case of your THE CHAIR: Maybe there is a

11reports that does not appear; correct? 12 A. Again, you are comparing These reports were the June

13apples and oranges. 145th and 6th.

We were interviewing detainees who

15had been transferred prior to the new arrangement 16being put in place. Everyone accepted that the

17previous arrangement was completely inadequate and 18that torture took place under that arrangement. 19 Mr. Gosselin's report speaks to Those are very

20post May 3rd, 2007 transfers. 21different regimes. 22 Q.

I quite agree that everyone

23accepts that the agreements had to be revisited. 24Whether it is for the reasons that you have 25offered, I will let others speak to that. 6 7 8(613) 564-2727

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Let's deal with detainee number 4 The second

2in your description of his condition. 3bullet on page 5, you write: 4 5 6 7 8 9 10

"Individual appeared relaxed and even sometimes smiled. He willingly spoke to us. said he had no health problems." So is this good or bad? A. The conclusion with this He

11individual is probably that it was bad, to the 12extent he did not wish to talk to us, but we 13couldn't really draw any conclusions, to be honest, 14on him, because the interview was so short and he 15terminated it before we were able to ask him 16meaningful questions. 17 Q. Actually, on the face of the

18interview itself, it is not clear that he would 19have been originally captured and detained by 20Canadian Forces? 21 22 A. Q. Correct. Because if you go down the

23page, sixth bullet: 24 25 6 7 8(613) 564-2727 "He has been asked questions eleven times."

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Then I am skipping a few words: "He said he does not know whether Canadians or Americans detained him." Correct? That is what your report

That is another individual,

So are you talking about detainee 1, or have

9we moved on? 10 11 12 13again? 14 15 16 17 18 19Colvin? 20 21 A. Q. I am, yes. The sixth bullet down, "He THE CHAIR: Page 5. Q. A. Q. No. We are at detainee 4.

Oh, sorry. Do you want me to start over

BY MR. PRÉFONTAINE: Q. A. Q. Page 5, detainee 4. Yes. Are you on page 5, Mr.

22has been asked questions eleven times", in 23quotation marks, do you see that? 24 25 6 7 8(613) 564-2727 A. Q. Hmm-hmm, I do. The next line, "He does not

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1know whether Canadians or Americans detained him", 2that is what you reported? 3 4 A. Q. Yes, correct. If you slide down four

5bullets, it is a fairly long bullet with four 6lines. 7 8 9 10 In the last line you write: "He asked us, 'If I am a serious Taliban, why didn't the Americans keep me?'" So that questioned whether he ever

11was captured or detained by Canadian Forces; 12correct? 13 A. Right. He was the one that I

14assessed was probably taken by Canadians when I got 15subsequent information on him, which we didn't have 16at the time of the visit. But here, when he says

17Americans, he is using Americans as shorthand for, 18you know, foreigners who have detained him. 19 Q. But the commander that reads

20this doesn't know that, because your text doesn't 21say it. If this is in code, you are not giving the

22reader the decoder ring that goes along with it to 23understand it. 24 A. As I mentioned before, you

25are comparing apples and oranges, in the sense that 6 7 8(613) 564-2727

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1what we're trying to establish here is whether 2Canadian-transferred detainees, prior to May 3rd, 3had been abused. It was essentially a forensic

4exercise, and we were hobbled in that, in 5conducting that, by, in this case, lack of 6information, which was partly corrected later. 7 It wasn't speaking to the issue of We

8what would happen to detainees post May 3rd.

9established, to my satisfaction, that the pool of 10people up to May 3rd had suffered substantial risk 11of torture, and, indeed, many had been tortured. 12 What Mr. Gosselin is writing is a

13very different document for a very different 14purpose. Whether that risk still existed and the

15way to assess that risk was by monitoring -16 Q. We are not addressing Mr. I am just looking at yours

17Gosselin's report. 18here. 19 A.

But you are suggesting that

20the commander would be using this as a basis for 21making the post May 5th assessments, correct, 22whether torture was continuing after -- rather, May 233rd. 24 Q. Actually, I am speaking to

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1and on who the rest of the system relies to make an 2informed report, which will inform the readers, to 3draft reports that are useful and provide 4assessments. 5 A. Well, I think the commander

6could quite usefully draw from this that in 7Kandahar, whether he was detained by Americans or 8Canadians, this person was, as he says, beaten for 9two days. 10 11 Q. A. Yes. From the commander's point of

12view, it is not necessarily important whether he 13was detained by Canadians or Americans. What is

14important is what happened to him in Kandahar and 15NDS custody, which is exactly where we were putting 16our detainees. 17 Q. Later on, in the same

18description, you describe a visit of ISAF, or his 19relation, I should say, of a visit ISAF paid to him 20while in Kandahar. 21 22 23 24 25 6 7 8(613) 564-2727 A. Q. Do you see that, Mr. Colvin? Yes, I do. Then you ask: "He, and others, told the ISAF visitors that three fellow detainees had their

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'fingers cut and burned with a lighter'..." When you were there, did you

4witness or see any cuts to his fingers or burn 5marks to his fingers? 6 7misreading. A. Sorry, I think you are

He said other detainees had their

8fingers cut and burned. 9 10others". 11 12 A. Q. Yes. So isn't he included in those Q. The sentence reads "he, and

13which would have been treated in that way? 14 A. Okay. "He, and others"

15refers to the people who told the ISAF visitors 16that three fellow detainees, "fellow" meaning other 17detainees, their compatriots who were in their 18cell, but not them. 19means. That is what the word "fellow"

He never alleged that his own fingers had

20been burned and cut. 21 22 Q. A. Then that is the meaning -I'm sorry, that is what the Some other people, my Sorry if

23word "fellow" here means.

24fellow, my buddy, this other guy, not me. 25my English is -6 7 8(613) 564-2727

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1 2 3 4 5 1 2clarification. 3 4 A. Q. Q.

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Thank you for that

My pleasure. Thank you, Mr. Colvin, for Moving on here, as we must -Mr. Préfontaine, how

5that clarification. 6

THE CHAIR:

7long do you think -8 MR. PRÉFONTAINE: That is

9precisely the question that I am asking myself, 10because cross-examinations are always so dynamic. 11 12 BY MR. PRÉFONTAINE: Q. Mr. Colvin, do you know who

13Lieutenant-Colonel -14 THE CHAIR: I don't think you

15helped me with an answer. 16 17have two minutes. 18 THE CHAIR: Oh, that's fine. And, MR. PRÉFONTAINE: Sorry, I think I

19Mr. Lunau, will you be -20 21questions. 22 23 BY MR. PRÉFONTAINE: Q. Mr. Colvin, do you know who MR. LUNAU: I have no further

24Lieutenant-Colonel Garrick is? 25 6 7 8(613) 564-2727 A. I don't.

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And a Major Kirschner? The name Kirschner is

3familiar, but I don't know him exactly. 4 5the name? 6 Q. And what is familiar about

What type of position? A. I think it comes up in some

7of the reports as someone who -- as a name that is 8listed, but I am not sure if it was even him or 9maybe some other Kirschner. But I don't know who

10he is, to be honest, a short answer, yes. 11 12 13come up, I think. 14 15 16 17 Q. A. Q. A. And are these names you -Provost Marshal, maybe. Sorry? I may have heard the name Q. A. Major Hudson? Major Hudson, his name does

18subsequently in the context of this case, so I am 19not sure. 20 21Hudson? 22 A. I don't know. I have seen Q. So who would have been Major

23his name, but I don't know who he is. 24 Q. And it might be that while

25you were preparing for your appearance here, you 6 7 8(613) 564-2727

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254

Yes, perhaps. But I am more interested in

4whether these names meant something to you while 5you were in Afghanistan? 6 7 8 9 10 11 12 13 14Girard? 15 16 A. Q. No. Those are the subjects of the A. Q. A. Q. A. Q. A. Q. Oh, no, I don't think so. Major Zybala? No. Major Gribble? No. Chief Warrant Officer Watson? No. Master Warrant Officer

17complaint that this Commission is investigating. 18 19 20Moore? 21 A. I have seen them only in the A. Q. Yes. Apart from Captain (Navy)

22context of this hearing, I think, on the list of 23witnesses or subjects. 24 MR. PRÉFONTAINE: Thank you.

25Those are all of my questions. 6 7 8(613) 564-2727

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THE CHAIR: MR. LUNAU:

Mr. Lunau. No further questions,

THE CHAIR:

That being said, I

5believe that will complete our examination of Mr. 6Colvin, correct, by everybody? 7 8very much. Mr. Colvin, I want to thank you I know you came down here from

9Washington, so thank you very much for your time 10being here, your testimony, and we will be 11adjourned until tomorrow at 9:00 a.m. Thank you.

12--- Whereupon the hearing adjourned at 4:40 p.m. 13 14 to be resumed on Wednesday, April 14, 2010 at 9:00 a.m.

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1 2 3 4 5 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Teresa Forbes, CRR, RMR, Computer-Aided Transcription I HEREBY CERTIFY THAT I have, to the best of my skill and ability, accurately recorded by Computer-Aided transcription and transcribed therefrom, the foregoing proceeding.

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