Muzzling a military watchdog

For the past two and a half years, the Military Police Complaints Commission has been trying to discover whether Canada breached a Geneva Convention; whether the Canadian military transferred detainees to Afghan authorities despite the risk of torture; and what our government may or may not have known about it.

But its investigation has gone nowhere.

A member of the Canadian military in Afghanistan. Canadian Forces have been stationed there since 2002.The commission, established by Parliament in 1998 to provide an independent review of the military justice system, launched its probe into the transfer of Afghan detainees on Feb. 26, 2007.

It has faced repeated obstacles ever since, which are not only thwarting the commission’s oversight function, but also challenging its existence.

And critics charge that more is at stake than just who knew what and when. They say that the reputation of the military, the principles of democracy and Canada’s human rights image are suffering.

A series of hindering events

“Where do I begin?” sighs Freya Kristjanson, the commission’s counsel.

The military watchdog has experienced a multitude of problems, but one consistent roadblock has been obtaining documents and witnesses, she says.

“Since March 2008, not a single document has been received from the government,” she says. “Without access to documents and witnesses, the commission can obviously not proceed.”

Kristjanson adds she is concerned that the government may be overusing Section 38 of the Canada Evidence Act, which allows the blocking of testimony to protect national security.

“It’s being used extensively to cover a complete veil over many witnesses and documents,” she says.

Government lawyers have invoked Section 38 to withhold documents and prevent key witnesses from testifying live at commission hearings. Alain Préfontaine, senior counsel in the Department of Justice, wrote in a letter to the commission that the clause would “prevent the disclosure of sensitive or potentially injurious information.”

But Paul Dewar, the NDP Foreign Affairs critic, says he thinks there are other motivations.

“It’s in a legal quagmire, fighting with the government just so it can carry out its work” — Paul Champ

“The government has abused sections of law . . . in order to hinder the work of the commission,” says the Ottawa-Centre MP. “The fact is that the government is embarrassed by this case. But government’s embarrassment is not a national security issue.”

Adjournments and legal wrangling over its jurisdiction have also plagued the military watchdog.

“It’s just at a standstill,” says Paul Champ, counsel for the B.C. Civil Liberties Association, one of two human rights groups that lodged the complaint triggering the investigation. “It’s in a legal quagmire, fighting with the government just so it can carry out its work.”

A Sept. 16 Federal Court decision curtailed the watchdog’s scope, ruling that it could only probe the conduct and duties of the military police — not broader government policy or what other departments, such as Foreign Affairs, knew. The commission is appealing that decision, which is partly why its chair, Peter Tinsley, adjourned hearings indefinitely on Oct. 14.

Government not a team player?

But Tinsley cited another, more troubling reason for the shutdown: government stonewalling.

“The government has not been co-operating with the commission,” says Kristjanson.

Champ calls the government’s co-operation “abysmal” and says it is “in every way trying to obstruct…the commission.” 

Ottawa, however, says it’s doing everything by the book.

“The government has co-operated with the commission as per its mandate set out by the Federal Court,” says Dan Dugas, communications director for Defence Minister Peter MacKay.

Defence Minister, Peter MacKay

“We are co-operating. We have provided documents. We have provided witnesses. We will continue to do so,” MacKay said during question period on Oct. 19. He added that it was the commission, not the government, that suspended the hearings while the appeal goes through the courts.

The indefinite suspension — and all the delays, legal squabbling and stonewalling behind it — has led some to question whether a better way is needed to review the military police’s actions.

“The commission is incapable of continuing its work with these limits on the scope of its activities,” says Dewar. He says that’s why he’s pushing to have a parliamentary investigation into the matter. 

Collateral damage

Some critics argue that the muzzling of the military watchdog presents issues of even deeper concern. They say confidence in Canada's military, democracy and respect for human rights all hang in the balance. 

“The military police is a unit that carries Canada’s laws and values,” says Champ. “At the core of it, we want to know what the potential complicity is of Canadian Forces in torture. It’s critical to our respect of and confidence in Canadian Forces.”

Champ also says the commission’s oversight function is vital to Canadian democracy.

“The fact that today, in 2009, the government is stonewalling this body is an issue of public accountability,” he says. “Public accountability is fundamental to democratic countries. If we don’t have that, we have to question whether the bodies and the powers we have in place are sufficient.”

Yet the greatest damage could be to Canada’s human rights image.

“That the government won’t co-operate raises the concern that the government doesn’t respect human rights, and that it doesn’t want accountability for its human rights record,” Champ says.

“It is definitely hurting our reputation. It’s undermining our commitments to the Geneva Convention. It’s a dangerous precedent that the government is setting,” says Dewar.

So far, the commission has not been able to even start figuring out what our military police knew about the transfer of Afghan detainees and the likelihood of their torture. And, as some indicate, not knowing may be hurting us more than knowing ever could.

“This whole affair has really been a stain on Canada’s international human rights reputation,” says Champ.