Commission’s Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008
National Defence Act – Part IV
FINAL REPORTFollowing a Public Interest Hearing
Pursuant to Subsection 250.38(1) of the National Defence ActWith Respect to a Complaint
Concerning the Conduct of Captain (N) (ret’d) Steven Moore,
Lieutenant-Colonel (ret’d) William H. Garrick, Major John Kirschner,
Major Bernie Hudson, Major Michel Zybala, Major Ron Gribble,
Chief Warrant Officer Barry Watson and Master Warrant Officer (ret’d) Jean-Yves Girard
Pursuant to Subsection 250.38(1) of the National Defence ActWith Respect to a Complaint
Concerning the Conduct of Captain (N) (ret’d) Steven Moore,
Lieutenant-Colonel (ret’d) William H. Garrick, Major John Kirschner,
Major Bernie Hudson, Major Michel Zybala, Major Ron Gribble,
Chief Warrant Officer Barry Watson and Master Warrant Officer (ret’d) Jean-Yves Girard
File: MPCC 2008-042
Ottawa, June 27, 2012
Mr. Glenn M. Stannard, Chairperson
Mr. Roy Berlinquette, Commission Member
Ottawa, June 27, 2012
Mr. Glenn M. Stannard, Chairperson
Mr. Roy Berlinquette, Commission Member
Table of Contents
2.1 Factual and Legal Allegations Made by the Complainants
2.2 Time Period Covered by the Complaint
2.3 Subjects of the Complaint
2.2 Time Period Covered by the Complaint
2.3 Subjects of the Complaint
3.1 The Commission Decision to Commence a Public Interest Investigation into the Transfer Complaint
3.2 The Commission Decision to Hold a Public Interest Hearing into the Transfer Complaint
3.3 Application for Judicial Review of the February 21, 2007 Complaint and Decision to Hold Public Interest Hearings
3.4 Failure to Investigate Complaint Filed June 12, 2008 by the Complainants
3.5 The Commission’s September 30, 2008 Reasons Accepting Jurisdiction Over the June 12, 2008 Complaint
3.6 Attorney General of Canada’s Second Application for Judicial Review, in Respect of the June 12, 2008 AIC/BCCLA Complaint (October 30, 2008)
3.7 December 4, 2008 Procedural Overview
3.8 The BCCLA Application for Funding
3.9 Stay Application
3.10 Commencement of Hearings in May 2009 (Transfer and Failure to Investigate Complaints)
3.11 September 16, 2009 Federal Court Ruling on Jurisdiction
3.12 October 7 and 14, 2009: Hearings, Motions and Indefinite Adjournment
3.12.1 Issues with Respect to Document Disclosure
3.12.2 Commission Court Challenge to Section 38 Redactions
3.12.3 Obstacles with Respect to Witnesses
3.12.4 The Disruptive Impact of Section 38 Notices
3.12.5 The Pre-Hearing Motions Scheduled in October 2009
3.12.6 The Commission’s Decision to Adjourn (October 14, 2009)
3.13 December 10, 2009: Case Conference Convened to Set Schedule for Document Production
3.14 Start of Hearings, March 24, 2010
3.14.1 The Status of Document Production
3.14.2 Interlocutory Motions
3.14.3 Status of LCol (ret’d) Garrick
3.14.4 Standard of Conduct
3.14.5 Means of Knowing
3.15 April 6, 2010: Commencement of Substantive Hearings
3.15.1 Continuity with Past Sittings of the Afghanistan Public Interest Hearings
3.15.2 Status of Documentary Disclosure
3.15.3 In Camera Proceedings
3.16 April 20, 2010: Update on Document Production
3.16.1 Evidence on the Document Production Process: Gagnon and Edwards Testimony
3.16.2 DND Document Production Process
3.16.3 DFAIT Document Production
3.16.4 Issuance of the Gagnon Summons and a Return to Federal Court
3.16.4.1 Commission’s Process Upheld by Federal Court
3.2 The Commission Decision to Hold a Public Interest Hearing into the Transfer Complaint
3.3 Application for Judicial Review of the February 21, 2007 Complaint and Decision to Hold Public Interest Hearings
3.4 Failure to Investigate Complaint Filed June 12, 2008 by the Complainants
3.5 The Commission’s September 30, 2008 Reasons Accepting Jurisdiction Over the June 12, 2008 Complaint
3.6 Attorney General of Canada’s Second Application for Judicial Review, in Respect of the June 12, 2008 AIC/BCCLA Complaint (October 30, 2008)
3.7 December 4, 2008 Procedural Overview
3.8 The BCCLA Application for Funding
3.9 Stay Application
3.10 Commencement of Hearings in May 2009 (Transfer and Failure to Investigate Complaints)
3.11 September 16, 2009 Federal Court Ruling on Jurisdiction
3.12 October 7 and 14, 2009: Hearings, Motions and Indefinite Adjournment
3.12.1 Issues with Respect to Document Disclosure
3.12.2 Commission Court Challenge to Section 38 Redactions
3.12.3 Obstacles with Respect to Witnesses
3.12.4 The Disruptive Impact of Section 38 Notices
3.12.5 The Pre-Hearing Motions Scheduled in October 2009
3.12.6 The Commission’s Decision to Adjourn (October 14, 2009)
3.13 December 10, 2009: Case Conference Convened to Set Schedule for Document Production
3.14 Start of Hearings, March 24, 2010
3.14.1 The Status of Document Production
3.14.2 Interlocutory Motions
3.14.3 Status of LCol (ret’d) Garrick
3.14.4 Standard of Conduct
3.14.5 Means of Knowing
3.15 April 6, 2010: Commencement of Substantive Hearings
3.15.1 Continuity with Past Sittings of the Afghanistan Public Interest Hearings
3.15.2 Status of Documentary Disclosure
3.15.3 In Camera Proceedings
3.16 April 20, 2010: Update on Document Production
3.16.1 Evidence on the Document Production Process: Gagnon and Edwards Testimony
3.16.2 DND Document Production Process
3.16.3 DFAIT Document Production
3.16.4 Issuance of the Gagnon Summons and a Return to Federal Court
3.16.4.1 Commission’s Process Upheld by Federal Court
4.1 The Complaint from Professor Attaran to the Commission
4.2 Amnesty International Charter Litigation before the Federal Court (the Mactavish Decisions)
4.3 Parliamentary Proceedings
4.4 The April 25, 2010 UK Judgment on the Legality of Detainee Transfers
4.2 Amnesty International Charter Litigation before the Federal Court (the Mactavish Decisions)
4.3 Parliamentary Proceedings
4.4 The April 25, 2010 UK Judgment on the Legality of Detainee Transfers
6.1 Detainees are an Operational Command Responsibility
6.2 Military Police Role in Detainee Handling and Transfer
6.3 Military Police Detainee Handling for Task Force Afghanistan
6.2 Military Police Role in Detainee Handling and Transfer
6.3 Military Police Detainee Handling for Task Force Afghanistan
8.1 Purpose of the Supplementary Arrangement
8.2 Assurances from the Government of Afghanistan
8.3 Monitoring and Tracking of Detainees Post-Transfer
8.2 Assurances from the Government of Afghanistan
8.3 Monitoring and Tracking of Detainees Post-Transfer
9.1 Background
9.2 Theatre Standing Order 321 (May 2007)
9.3 Procedures Following the Capture of Detainees
9.4 Determination of the Requirement for Continued Detention, Transfer or Release
9.5 Procedures for Transfer of Detainees
9.2 Theatre Standing Order 321 (May 2007)
9.3 Procedures Following the Capture of Detainees
9.4 Determination of the Requirement for Continued Detention, Transfer or Release
9.5 Procedures for Transfer of Detainees
10.1 Military Police Doctrine
10.1.1 Definition and Purpose
10.1.2 Effect and Authority of Doctrine
10.1.3 Key Doctrinal Elements of MP Duties
10.1.3.1 Role of MPs in Support of the CF
10.1.3.2 Specific Roles and Responsibilities - Policing Duties
10.1.4 Command Structure and Technical Control
10.1.4.1 Command Structure – General
10.1.4.2 Command Structure - CFNIS
10.1.5 The Geneva Conventions, Detainee Issues, MPs and the NIS
10.2 Military Police Policy and Technical Procedures
10.3 Military Police Technical Directive
10.4 Status as Peace Officers under the National Defence Act
10.1.1 Definition and Purpose
10.1.2 Effect and Authority of Doctrine
10.1.3 Key Doctrinal Elements of MP Duties
10.1.3.1 Role of MPs in Support of the CF
10.1.3.2 Specific Roles and Responsibilities - Policing Duties
10.1.4 Command Structure and Technical Control
10.1.4.1 Command Structure – General
10.1.4.2 Command Structure - CFNIS
10.1.5 The Geneva Conventions, Detainee Issues, MPs and the NIS
10.2 Military Police Policy and Technical Procedures
10.3 Military Police Technical Directive
10.4 Status as Peace Officers under the National Defence Act
11.1 Canadian Forces Provost Marshal (CFPM)
11.1.1 Canadian Forces Military Police Accountability Framework
11.2 Canadian Expeditionary Forces Command (CEFCOM) Provost Marshal
11.3 Task Force Provost Marshal (TFPM)
11.4 Military Police Located at the Kandahar Air Field (KAF) Detention Facility
11.5 Canadian Forces National Investigation Service (CFNIS)
11.1.1 Canadian Forces Military Police Accountability Framework
11.2 Canadian Expeditionary Forces Command (CEFCOM) Provost Marshal
11.3 Task Force Provost Marshal (TFPM)
11.4 Military Police Located at the Kandahar Air Field (KAF) Detention Facility
11.5 Canadian Forces National Investigation Service (CFNIS)
12.1 General Information about the Risk of Detainee Torture in Afghanistan
12.1.1 AIC/BCCLA Complaint Letter Regarding the Transfer of Detainees by Military Police in Afghanistan (February 21, 2007)
12.1.2 Independent Reports
12.1.2.1 Afghan Independent Human Rights Commission (AIHRC) Reports
12.1.2.2 UN Reports
12.1.2.3 US Department of State Country Reports
12.1.2.4 DFAIT Reports
12.1.2.5 Amnesty International Reports
12.1.3 Newspaper Articles / Globe and Mail and La Presse Reports, April 2007
12.1.4 Reports on Site Visits Post May 3, 2007
12.1.5 Conclusion regarding General Information on the Risk of Mistreatment and Torture of Detainees in Afghanistan
12.2 The CEFCOM Information Environment
12.2.1 What is CEFCOM?
12.2.2 Role of CEFCOM PM
12.2.3 Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.4 Military Police Access to the Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.5 The Development of a New Transfer Regime and the Diminishment of the Military Police Role
12.2.6 The CEFCOM Investigation into the Graeme Smith Globe & Mail Articles
12.2.7 Investigation by the CEFCOM Provost Marshals into Post-Transfer Issues Between May 2007 and June 12, 2008
12.2.8 Conclusion with Respect to MP Knowledge at CEFCOM
12.3 The Afghanistan Theatre
12.3.1 ROTO 3 – MP Knowledge at the Detention Facility
12.3.1.1 Evidence of Sgt Carol Utton
12.3.1.2 Evidence of Capt Gillian Worsfold
12.3.2 ROTOs 4 & 5 – MP Knowledge at the Detention Facility
12.3.3 ROTO 3 – Task Force Headquarters
12.3.4 ROTOs 4 & 5–Task Force Headquarters
12.3.4.1 MGen Laroche
12.3.4.2 BGen Juneau
12.3.5 ROTO 3 – DFAIT in Afghanistan
12.3.6 ROTOs 4 & 5 – DFAIT in Afghanistan
12.3.6.1 Ed Jager, POLAD
12.3.6.2 John Davison, PRT Political Director
12.3.6.3 Nicholas Gosselin, Policy Officer, Human Rights
12.1.1 AIC/BCCLA Complaint Letter Regarding the Transfer of Detainees by Military Police in Afghanistan (February 21, 2007)
12.1.2 Independent Reports
12.1.2.1 Afghan Independent Human Rights Commission (AIHRC) Reports
12.1.2.2 UN Reports
12.1.2.3 US Department of State Country Reports
12.1.2.4 DFAIT Reports
12.1.2.5 Amnesty International Reports
12.1.3 Newspaper Articles / Globe and Mail and La Presse Reports, April 2007
12.1.4 Reports on Site Visits Post May 3, 2007
12.1.5 Conclusion regarding General Information on the Risk of Mistreatment and Torture of Detainees in Afghanistan
12.2 The CEFCOM Information Environment
12.2.1 What is CEFCOM?
12.2.2 Role of CEFCOM PM
12.2.3 Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.4 Military Police Access to the Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.5 The Development of a New Transfer Regime and the Diminishment of the Military Police Role
12.2.6 The CEFCOM Investigation into the Graeme Smith Globe & Mail Articles
12.2.7 Investigation by the CEFCOM Provost Marshals into Post-Transfer Issues Between May 2007 and June 12, 2008
12.2.8 Conclusion with Respect to MP Knowledge at CEFCOM
12.3 The Afghanistan Theatre
12.3.1 ROTO 3 – MP Knowledge at the Detention Facility
12.3.1.1 Evidence of Sgt Carol Utton
12.3.1.2 Evidence of Capt Gillian Worsfold
12.3.2 ROTOs 4 & 5 – MP Knowledge at the Detention Facility
12.3.3 ROTO 3 – Task Force Headquarters
12.3.4 ROTOs 4 & 5–Task Force Headquarters
12.3.4.1 MGen Laroche
12.3.4.2 BGen Juneau
12.3.5 ROTO 3 – DFAIT in Afghanistan
12.3.6 ROTOs 4 & 5 – DFAIT in Afghanistan
12.3.6.1 Ed Jager, POLAD
12.3.6.2 John Davison, PRT Political Director
12.3.6.3 Nicholas Gosselin, Policy Officer, Human Rights
13.1 General Occurences
13.1.1 GO 2007-2598 – Operation Camel Spider
13.1.2 GO 2008-6259 – Investigation into Allegations of Extended Detention
13.1.3 GO 2008-3134 – ROTO 4 Human Dimensions Operations (HDO) Survey
13.1.4 GO 2008-6906 – Operation Centipede
13.1.5 GO 2008-6912 – Investigation into Allegations of Possible Summary Execution, ROTO 1
13.1.6 GO 2008-6913 – Investigation into Allegations of Assault by ANA
13.1.7 GO 2008-6917 – Investigation into Allegations of Summary Executions – ROTO 2
13.1.8 GO 2008-6918 – Col Noonan Affidavit
13.1.9 GO 2008-6919 – Investigation into Tactical Questioning
13.1.10 GO 2008-6920 and 6921 – Investigation into Globe and Mail Reports of Abuse
13.1.11 GO 2008-23231 – Investigation into Disclosure during MP Training
13.2 Delays, Investigative Procedures, Resources and Priorities for NIS Investigations
13.1.1 GO 2007-2598 – Operation Camel Spider
13.1.2 GO 2008-6259 – Investigation into Allegations of Extended Detention
13.1.3 GO 2008-3134 – ROTO 4 Human Dimensions Operations (HDO) Survey
13.1.4 GO 2008-6906 – Operation Centipede
13.1.5 GO 2008-6912 – Investigation into Allegations of Possible Summary Execution, ROTO 1
13.1.6 GO 2008-6913 – Investigation into Allegations of Assault by ANA
13.1.7 GO 2008-6917 – Investigation into Allegations of Summary Executions – ROTO 2
13.1.8 GO 2008-6918 – Col Noonan Affidavit
13.1.9 GO 2008-6919 – Investigation into Tactical Questioning
13.1.10 GO 2008-6920 and 6921 – Investigation into Globe and Mail Reports of Abuse
13.1.11 GO 2008-23231 – Investigation into Disclosure during MP Training
13.2 Delays, Investigative Procedures, Resources and Priorities for NIS Investigations
15.1 The Standard of the Reasonable Police Officer
15.2 The Duty to Self-Initiate an Investigation
15.2.1 Case Law
15.2.2 MP Policies and Directives
15.2.3 The Means of Knowing Standard
15.2 The Duty to Self-Initiate an Investigation
15.2.1 Case Law
15.2.2 MP Policies and Directives
15.2.3 The Means of Knowing Standard
16.1 Major Bernie Hudson
16.2 Chief Warrant Officer Barry Watson
16.3 Major Michel Zybala
16.4 Master Warrant Officer (ret’d) Jean-Yves Girard
16.5 Major Ron Gribble
16.6 Major John Kirschner
16.7 Lieutenant-Colonel (ret’d) William H. Garrick
16.8 Capt (N) (ret’d) Steven Moore
16.8.1 Capt (N) (ret’d) Moore’s Access to Information about the Detainee Process and Detainee Treatment
16.8.2 Capt (N) (ret’d) Moore’s Responsibility for the NIS
16.8.3 Issues Related to Command and Control
16.2 Chief Warrant Officer Barry Watson
16.3 Major Michel Zybala
16.4 Master Warrant Officer (ret’d) Jean-Yves Girard
16.5 Major Ron Gribble
16.6 Major John Kirschner
16.7 Lieutenant-Colonel (ret’d) William H. Garrick
16.8 Capt (N) (ret’d) Steven Moore
16.8.1 Capt (N) (ret’d) Moore’s Access to Information about the Detainee Process and Detainee Treatment
16.8.2 Capt (N) (ret’d) Moore’s Responsibility for the NIS
16.8.3 Issues Related to Command and Control
17.1 Commission Commentary on the Hearing Process
17.1.1 Commission Comments on the Documentary Disclosure Process
17.1.2 Commission Comments on Access to Witnesses
17.1.3 Commission Comments on Government of Canada Use of s. 38 of the Canada Evidence Act
17.1.4 Claims of Cabinet Confidentiality Under s. 39 of the Canada Evidence Act517
17.1.5 Looking Back on the Somalia Inquiry: The Parallels and a Chance to Move Beyond
17.1.1 Commission Comments on the Documentary Disclosure Process
17.1.2 Commission Comments on Access to Witnesses
17.1.3 Commission Comments on Government of Canada Use of s. 38 of the Canada Evidence Act
17.1.4 Claims of Cabinet Confidentiality Under s. 39 of the Canada Evidence Act517
17.1.5 Looking Back on the Somalia Inquiry: The Parallels and a Chance to Move Beyond
