Brigadier-General Kenneth W. Watkin (Judge Advocate General, Department of National Defence):
Mr. Chairman, members of the committee, colleagues....
good afternoon. I would like to thank the members of the committee for inviting me to briefly describe the legal framework for the transfer of detainees to the Government of Afghanistan. I will first briefly describe the role of the Judge Advocate General, the JAG, and I will then discuss the legal framework.
The National Defence Act provides for the appointment of the Judge Advocate General by Governor in Council. I am legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces, in matters relating to military law.
Military law means all international and domestic law relating to the Canadian Forces, including its governance, administration, and activities. This includes operational law, which is the domestic and international law applicable to all domestic and international Canadian Forces operations.
I also superintend the administration of military justice in the Canadian Forces. As former Chief Justice Lamer recognized in his 2003 report on the military justice system, the JAG has attorney general-like responsibilities. I exercise command over all legal officers working in the office of the Judge Advocate General, including those deployed to Afghanistan to advise commanders regarding Canadian Forces operations.
We are here today to discuss a fundamental question, the law governing the transfer of detainees to the Afghan authorities and concerns about the possibility that some detainees will be transferred to a risk of torture.
In spite of the factual and legal complexity of this issue, there are certain fundamental legal principles that are clearly settled. I am going to review them briefly.
Torture is abhorrent and can never be tolerated. The prohibition against torture is a peremptory and non-derogable norm of international law. The transfer of detainees to a real risk of torture or ill-treatment is contrary to international humanitarian law, also known as the law of war or the law of armed conflict. It is a specialized body of law that governs the conduct of Canada, its officials, and its military forces during the armed conflict in Afghanistan. The policies and procedures put in place by the Canadian Forces in Afghanistan and the legal test that must be satisfied before detainees can be transferred are all meant to ensure compliance with these international legal obligations.
The question of the transfer of detainees was recently addressed by Canadian courts. The case of Amnesty International Canada and the British Columbia Civil Liberties Association v. the Chief of Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, which I will refer to as the Amnesty case, dealt with the issue of the extraterritorial application of the Canadian Charter of Rights and Freedoms. Justice Mactavish of the Federal Court held that the charter does not provide rights to non-Canadians detained by the Canadian Forces in Afghanistan. She held that the detainees have the rights conferred upon them by the Afghan constitution, along with those conferred on them by international law and in particular international humanitarian law. The Federal Court of Appeal upheld her judgment on 17 December 2008, and the Supreme Court of Canada denied leave to appeal on 21 May 2009. This is the law of Canada.
In its judgment, the Federal Court reviewed the legal bases for Canada's involvement in Afghanistan. It confirmed that the authority for Canada's presence and the operations of the Canadian Forces in Afghanistan rest upon three interrelated bases in international law: the right to individual and collective self-defence, the authority granted by the resolutions of the United Nations Security Council, and the consent of the Government of Afghanistan.
In UN Security Council Resolution 1386 of 2001, the Security Council authorized the establishment of the International Security Assistance Force, ISAF. In succeeding resolutions, the Security Council has renewed ISAF's mandate to “assist” and “support” the Afghan government in the “maintenance of security” within Afghanistan, and it authorized states participating in ISAF to take “all necessary measures” to fulfill this mandate.
The Government of Afghanistan's consent to the Canadian Forces' presence and operations in Afghanistan is made explicit by its participation in the Afghanistan Compact of 2006, its support and acceptance of the Security Council resolutions authorizing ISAF and, more particularly, in the technical arrangements made between Canada and Afghanistan on 18 December 2005. The technical arrangements assert that,
||the overall purpose of the Canadian assistance to the Government of Afghanistan includes the operational objectives of assisting the Government of Afghanistan in providing security and stability in the country.
They affirm the understanding of the Government of Afghanistan that Canadian personnel may take such measures as considered necessary, including the use of deadly force and the detention of persons, to accomplish their operational objectives. The technical arrangements expressly state that,
||[d]etainees would be afforded the same treatment as prisoners of war. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.
The reference to detainees being afforded the same treatment as prisoners of war does not mean they have the status of prisoners of war. Rather, it demonstrates that we are extending well-established and comprehensive international law protection for such detainees.
The UN Security Council resolutions, the Afghanistan Compact, and the technical arrangements all reaffirm the international community and Canada's respect for and commitment to Afghan sovereignty and independence. They reflect the common understanding that it is the Government of Afghanistan that bears responsibility for providing Afghans with security, the rule of law, and the protection of their human rights and fundamental freedoms. The role of the international community, including Canada, is to assist and support the Government of Afghanistan in fulfilling those responsibilities.
The operations and activities of the Canadian Forces in Afghanistan take place in the context of an armed conflict involving the Government of Afghanistan; ISAF; and the Operation Enduring Freedom, OEF, coalition against elements of the Taliban, Al-Qaeda, and other organized armed groups. The characterization of the armed conflict is the subject of considerable international debate. However, for the purposes of the litigation in the Amnesty case, the Government of Canada accepted the applicants' characterization of the conflict as a non-international armed conflict.
More specifically, the Court found that Canada is not an occupying power in Afghanistan. The Canadian Forces do not exercise effective control of Afghan territory. The Government of Afghanistan, not the Government of Canada, exercises state powers. With one exception, the Government of Afghanistan has not consented to the application of Canadian law or the exercise of Canadian jurisdiction in Afghanistan. The exception involves offences committed by "Canadian personnel".
The court found that under the technical arrangements the detention of persons adverse in interest or providing support in respect of acts harmful to the Canadian Forces and coalition forces, and the transfer to Afghan custody of such persons, is to be carried out in accordance with international law. Prior to transfer, detainees are held in a temporary Canadian facility on a multinational base. The decision to transfer such persons rests with the Canadian commander of Joint Task Force Afghanistan and is made on a case-by-case basis.
The court noted that the governments of Canada and Afghanistan have set out their shared understanding of their international legal obligations in a series of documents relating to the transfer of detainees. On December 18, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an arrangement that establishes procedures for the transfer of a detainee from the custody of the Canadian Forces to a detention facility operated by Afghan authorities.
The arrangement reflects Canada's commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody. Among other things, this arrangement provides that the International Committee of the Red Cross, the ICRC, has the right to visit detainees at any time while the detainees are being held in either Canadian or Afghan custody.
In February 2007 the Canadian Forces signed an exchange of letters with the Afghan Independent Human Rights Commission, AIHRC, to emphasize the role of the AIHRC in monitoring detainees. These letters further provide that the AIHRC is to provide immediate notice to the Canadian Forces should it become aware of the mistreatment of a detainee who has been transferred from Canadian custody.
On May 3, 2007, Canada and Afghanistan concluded a second arrangement governing the transfer of detainees held by the Canadian Forces. This arrangement supplements the first detainee arrangement, which continues to remain in effect. The second arrangement requires that detainees transferred by the Canadian Forces be held in a limited number of detention facilities to assist in keeping track of the individual detainees.
It further provides that members of the AIHRC, the ICRC, and Canadian government personnel all have access to persons transferred from Canadian to Afghan custody.
It also requires that approval be given by Canadian officials before any detainee who had previously been transferred from Canadian to Afghan custody is transferred on to a third country.
Finally, the second detainee arrangement provides that any allegation of abuse or mistreatment of detainees held in Afghan custody is to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
Of particular concern in the Amnesty case was the suggestion that detainees transferred by the Canadian Forces to Afghan authorities might be subject to torture by the Afghan authorities. There is a common aspect to all definitions of torture under international law. The definition provided in article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the CAT, to which Canada is a state party, is the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, in order to obtain information or a confession, or to punish, intimidate, or coerce the victim or a third person, or for any reason based on discrimination of any kind. This is also the essence of the offence of torture provided for in section 269.1 of the Criminal Code.
Both conventional and customary international humanitarian law prohibit torture under all circumstances. It is accepted that the meaning of torture under IHL is essentially the same as the meaning of torture under the convention against torture.
In addition to torture, other forms of ill-treatment, such as cruel treatment and outrages upon human dignity, are also prohibited under IHL. The Canadian Forces have been and remain alert to this issue.
The transfer of detainees is a state responsibility and a whole-of-government issue. On the ground in Afghanistan, in addition to the Canadian Forces, DFAIT, CSC, and the RCMP all play a role in detainee-related matters. The Office of the JAG has operated as part of a broader Government of Canada legal team, including the Department of Justice, PCO, and DFAIT.
The legal test that must be met before a detainee can be transferred by the Canadian Forces to Afghan authorities, and this was confirmed by the Federal Court of Canada and the Federal Court of Appeal in the Amnesty case, is clear: the commander of Joint Task Force Afghanistan must be satisfied that there are no substantial grounds for believing that there exists a real risk that a detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities. In applying this test, the commander considers information from a variety of sources, including DFAIT and other government departments. For example, in November 2007, transfers were suspended as a result of a credible allegation of ill treatment that arose during a monitoring visit by a DFAIT official. Transfers resumed in February 2008.
It bears repeating that Canada has not operated alone in its engagement in Afghanistan. We are there as part of a UN-sanctioned, NATO-led team of 42 states in the International Security Assistance Force, ISAF, and we also operate closely with the United States armed forces as part of Operation Enduring Freedom, OEF. Like Canada, other ISAF partners transfer detainees to the Government of Afghanistan.
To summarize, Mr. Chair, it must be noted, as Justice Mactavish said in the Amnesty case, and as affirmed by the Federal Court of Appeal, that there is no "legal no-man's land" concerning the transfer of detainees to the Government of Afghanistan. International humanitarian law applies. Canada has "applied" the words of that code by making arrangements and establishing procedures to guarantee that detainees transferred by the Canadian Forces are protected.
While this concludes my remarks on the legal framework applicable to the transfer of detainees, I would highlight for the committee that much of my work is covered by solicitor-client privilege. As the Supreme Court of Canada has noted:
||Solicitor-client privilege is fundamental to the proper functioning of our legal system.
||Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.
I would therefore ask for the committee's understanding with respect to this issue.
Finally, it is clear that contemporary armed conflict, and in particular the complex security situation in Afghanistan, presents both operational and legal challenges. However, I want to emphasize that both I and the courageous men and women who serve under my command are committed to ensuring the Canadian Forces are able to meet our international legal obligations. I know that our fellow members of the Canadian Forces have demonstrated tremendous professionalism in their handling and treatment of detainees. Respect for the rule of law is an essential aspect of Canadian Forces operations. Fostering respect for the rule of law is a key reason why we are in Afghanistan.
This concludes my opening remarks. If committee members have questions on this subject, I will be happy to answer.
Mr. Douglas Breithaupt:
I'm pleased to appear before you today to provide an overview of sections 37 and 38 of the Canada Evidence Act. These sections address the judicial balancing of interests when the disclosure of information in proceedings would encroach on a specified public interest or be injurious to international relations, national defence, or national security.
Under section 37 of the act, a minister of the crown or an official may object to the disclosure of information on the grounds of a specified public interest before a court, person, or body with jurisdiction to compel the production of information. Once an objection is made, the court, person, or body shall ensure that the information is not disclosed, other than in accordance with the Canada Evidence Act. The Federal Court and the Superior Court, as the case may be, will determine the objection. The section sets out in some detail how the determination by the court is to take place and for the judicial balancing of interest.
Section 37 can be used to protect such matters as the identity of police informers, police methodologies, ongoing investigations, and confidential relationships with foreign law enforcement agencies.
I will turn to section 38 of the Canada Evidence Act. The need to protect national security information has long been understood and recognized as the common law. Canada codified the crown privilege in the Federal Courts Act in 1970. In 1982 the precursor to the current section 38 was enacted, and in 2001 further amendments were made.
Section 38 sets out a code of procedure to assist all parties and persons involved in proceedings in which there's a possibility that information injurious to international relations or national defence or national security would be disclosed.
New elements were added in 2001 and they included the requirement to provide notice to the Attorney General of Canada in circumstances where it is foreseeable that the disclosure of information in the course of or in connection with proceedings could be injurious to international relations or national defence or national security. Various options for judges that could be employed to promote the public interest in disclosing and protecting such information were also added as an element.
Another element was providing for the possibility of the Attorney General of Canada personally to issue a certificate to prohibit the disclosure of information, but only after an order or decision that would result in its disclosure.
Finally, another element was the power of the Attorney General of Canada to assume the carriage of a prosecution in connection with which sensitive or potentially injurious information may be disclosed.
While new elements were added, the reforms were built on the former Canada Evidence Act scheme. The information at issue and the interests to be protected remained the same. These matters continue to be heard by the chief justice of the Federal Court or by a judge of that court designated by the chief justice for that purpose. The judicial balancing test of the public interests and disclosure versus non-disclosure was unaltered.
The amendments to section 38 of the Canada Evidence Act were intended to improve the scheme relating to the use and protection of information under section 38. They were designed to introduce greater flexibility into the system, offer the opportunity for evidentiary issues to be resolved early on in the proceedings, and improve the federal government's ability to protect from disclosure and for parties to use information relating to international relations, national defence, or national security in proceedings.
The Canada Evidence Act provides that any participant in connection with or in the course of a proceeding is required to notify in writing, as soon as possible, the Attorney General of Canada of the possibility of the disclosure of information that the participant believes is sensitive or potentially injurious information. Disclosure of the information, which is the subject of a notice, is prohibited unless such disclosure has been authorized in writing by the Attorney General of Canada.
The Attorney General of Canada may, subject to any conditions he or she considers appropriate, authorize the disclosure of all or part of the information. In making that determination, the Attorney General of Canada applies the same test as the Federal Court, namely, the Attorney General determines whether the disclosure of the information would be injurious to international relations, national defence, or national security, and if so, the Attorney General then considers whether the public interest in disclosure outweighs in importance the public interests in non-disclosure.
If the Attorney General has not authorized the disclosure of all the information about which notice was given, authorized its disclosure, subject to conditions, or not made a decision, then the Federal Court may be seized of the matter.
The Attorney General of Canada may, and at times must, also apply to the Federal Court for an order with respect to the disclosure of sensitive or potentially injurious information, and the participant or person who seeks disclosure may make a similar application. But the onus rests with the Attorney General of Canada to prove the probable injury to international relations, national defence, or national security.
Upon a finding that disclosure of the information would result in injury, the court must then determine whether the public interest in disclosing the information is greater than the public interest in not disclosing it. This is the same test that had applied before the 2001 amendments.
If the balance favours disclosure, the court may order disclosure, but it must do it in the manner most likely to limit injury to international relations, national defence, or national security, subject to any appropriate conditions. For instance, the judge could order the disclosure of a summary of the information or a written admission of facts relating to the information. This option is not open to the Attorney General of Canada when making his or her decision.
The intention here is to be able to have this information available for use in proceedings in ways that would serve, as far as possible, both the public interest in disclosure and the public interest in non-disclosure. If the balance favours the public interest in not disclosing the information, the court will confirm the prohibition of disclosure.
An appeal of the Federal Court order may be made to the Federal Court of Appeal and an application for leave to appeal may thereafter be made to the Supreme Court of Canada.
In closing, let me give you some examples of the kinds of information that the court has determined to be injurious under section 38. These include information that reveals or tends to reveal the identity of the human source, the targets of security investigations, the operating methods and techniques of security investigations, the identity of employees involved in covert intelligence activities, information provided in confidence by foreign agencies, the existence of a confidential relationship with a foreign agency, confidential diplomatic exchanges, military operations, military techniques, and information received in confidence from allies.
That's an overview of sections 37 and 38.
Mr. Claude Bachand:
Mr. Chair, I think this is starting quite badly. I might also have to speak with my lawyer present, because I think this has got off on the wrong foot.
However, I would like to raise some questions with Mr. Watkin and Mr. Breithaupt that are actually important.
I would like for us to have an admission facts, as is done in court. I don't know whether you are familiar with that approach. As lawyers, you must be familiar with it. Please understand, and I am speaking to the witnesses, Mr. Chair, that the House of Commons has a traditional role to play, as the Grand Inquest. We, all of us who are members, are the protectors of the realm; I think that is a good way of starting off. And you are entitled to protect your realm, or the people behind you, who have instructed you, are entitled to protect their realm. As a part of that Grand Inquest, I did not see any openness in your presentation to having the Grand Inquest perform precisely that role.
I want to remind you of the important principles that must be put on the table. That is why I suggest an admission of facts.
If a law allows ministers or the government to conceal information from Parliament, that will mean that the government may invoke the law and avoid its obligation to account to the House. At this point, I am immersed in parliamentary rights and I want you to know that parliamentary rights will soon take priority over your own rights. We here carry the legitimacy of elected representatives. The government is entitled to defend its realm, but we are entitled to get to the bottom of an investigation, and that is what must be done.
There is a second principle. Where there is legislation whose words provide that it applies to parliamentary proceedings, the House and its committees have the authority to decide whether the legislation applies to its proceedings, and how it applies. That is very far-reaching. It means that you could not cite the legislation to say that you cannot answer our questions. It takes precedence. We are the ones who will take precedence here. You must account to us.
I do not want to back you into a corner, but that is not all. In the case of legislation and provisions relating to national security... And we are going to get to the bottom of national security, because we, the members here, are tired of being told that we can't be told something because of national security. You are soon going to have to justify it, this national security, and we are the ones who will demand that, as the elected representatives of the people and the holders of parliamentary rights, which are very important.
How, in what circumstances, will the provisions apply to the House and its committees, if they apply? That will be our decision to make. The decisions of the House or its committees in that regard cannot be reviewed by any court. That means that you could not even go out the door here and tell your principals that you are going to court because you don't want to answer questions from the Standing Committee on National Defence. You could not do that.
I don't know whether you are prepared to answer my questions, but I can give you time to reconsider things and go back to your principals and ask them whether what I have said is true. You will see that what I am saying is true.
Will you be prepared to answer all questions concerning national security? And do you agree with my interpretation? Do you agree to the facts, that the parliamentary principles I have just laid out supersede your rights, in legal terms? Do you acknowledge that? If you want to take it under reserve and answer later, I have no problem with that. However, I want this question to be settled from the start.
Mr. Jack Harris (St. John's East, NDP):
Thank you, Mr. Chairman.
Welcome, General Watkin. It's nice to see you again after I think almost 30 years.
I take it that what you said a moment ago is correct, that international humanitarian law applies regardless, and whether they're prisoners of war or not is not really relevant in the application of law in this particular circumstance in terms of the prevention of torture. I'm assuming that's correct.
I'm going to try a little different tactic than Mr. Dosanjh and Mr. Bachand. In your presentation you indicate that in addition to being a legal advisor to the government in some of its various presentations--like the Governor General, etc.--you say you also superintend the administration of military justice in the Canadian Forces, and you also exercise command over all legal officers working in the office of the JAG, including those deployed to Afghanistan. You would have administrative and operational duties that I would assume would include the assurance that in the administration of military justice, if there were breaches of law, you would seek to have people prosecuted who had participated or done that.
In that context I want to refer you to an affidavit filed by Mr. Richard Colvin, a diplomat, to the Military Police Complaints Commission, specifically paragraphs 40 and following. He says he sent a number of memoranda, but he specifically intended that those memoranda reach the Provost Marshal in charge of the military police, and also the military and/or civilian legal advisors, which he calls LEGADs or JAGs, who are responsible for legal aspects of detainee management.
I also note that in the one report of Mr. Colvin's that has been made public, which was filed in the Federal Court, in the heading it says that it was to go to “NDHQ OTT ADM: For Vincent Rigby. Also please pass to JAG.”
This affidavit talks about the visits by Mr. Colvin to prisons and witnessing or getting first-hand reports of torture and seeing wounds on individuals that they described as resulting from ill treatment.
In these circumstances, had you been aware of this, do you see it as your responsibility as the person responsible for military justice--and I'm assuming the compliance with international law by the people who you are responsible for--to do something about that? Were you aware of this information and did you do anything about it?
Mr. Rob Walsh:
To go to Mr. Obhrai's question regarding oaths, I'm not sure to which oath he's referring or how many oaths he may be subject to.
Your first job, obviously, is as a member of Parliament, and you can say, in a broad public sense, there shouldn't be oaths at play here that put you in conflict. Leaving that issue aside, about the propriety of taking such oaths where you're not a member of cabinet, even if what you were to say here in this committee, this parliamentary proceeding, or in the House in a debate were, in the minds of some, to constitute a breach of your oath, there could be nothing that could be done about it in terms of using what you said in the House or in the committee as evidence to take steps against you for having breached your oath.
You have to ask yourself, where is your greater duty? Is it to the people to whom you swore the oath or to the people you represent in your function as a member of Parliament? There's a conflict there, potentially, where you have sensitive information. We all know that members of cabinet do have sensitive information, but they're recognized as ministers of the crown and they have crown confidences, cabinet confidences, which they will not disclose in the House because they're expected not to. But if they did, there couldn't be any legal proceedings brought against them. The Prime Minister may not be very happy, but there couldn't be any proceedings brought against them.
All I'm trying to stress here is that you don't have to--and this gentleman who's invoked solicitor-client privilege regarding his duties as a lawyer. There can't be anything done about it if he were, in the minds of some, to breach his duties to the law society or whatever and divulge information that otherwise would be protected. What happens here is here for this committee and it stays here. It can't be used elsewhere. That's the nub of the principle here. It can't be used elsewhere. You have an immunity, if you like.
Now, in your own conscience, you may say, yes, but still it's a breach. I swore an oath; I decided to give this information and I've breached my oath. Well, that's a matter for you to deal with in terms of your own sense of moral obligation. You might ask yourself why you've taken that oath and whether that oath has put you in conflict with your parliamentary duty, but that's another question.
Ms. Francine Lalonde (La Pointe-de-l'Île, BQ):
Thank you, Mr. Chair.
I was the foreign affairs critic during that period and I remember very well reading the agreement signed by General Hillier, and comparing it with other agreements signed at that point, and thinking it was very weak. At that time, I said in the House of Commons, during question period, that it was weak.
Mr. Rae, if you read the second agreement, it includes provisions to ensure that Canada will be able to check at all times and consider the detainees' conditions, when that is not the case at all in the first agreement. There is even a provision in the first one that says: "No person transferred from the Canadian Forces to Afghan authorities will be subject to the application of the death penalty." They may tickle them to death or abuse them to death with no problem.
So in the House of Commons there were several members who pressured the government to sign a new agreement. At that time, Mr. O'Connor was the minister and I recall that I was not very nice to him. I told him that it made no sense. In fact, my concern was that Canadian soldiers could be prosecuted under international law, because they were the ones doing it.
There is a military base in my riding, but everyone is concerned about this question. So could you tell us, yes or now, whether soldiers, not the upper echelons of the military, could or could have been convicted under international law for transferring detainees to the prisons?
At the time, there were articles saying that mistreatment was widespread. It was not as hard-hitting as in Richard Colvin's report, but there were a lot of articles. I recall that witnesses said that detainees were mistreated, tortured. Was that Mr. Colvin, at that time? I don't know.
Is that a question I may ask and you can answer? As an M.P., this subject concerns me.