Hearing Transcript - April 272010

1 Military Police Complaints Commission
2
3 AFGHANISTAN PUBLIC INTEREST HEARINGS
4 held pursuant to section 250.38(1) of the National Defence
5 Act, in the matter of file 2008-042
6
7 LES AUDIENCES D'INTÉRÊT PUBLIQUE SUR L'AFGHANISTAN
8 tenues en vertu du paragraphe 250-38(1) de la Loi sur la
9 défense nationale pour le dossier 2008-042
10
11 TRANSCRIPT OF PROCEEDINGS
12 held at 270 Albert St.
13 Ottawa, Ontario
14 on Tuesday, April 27, 2010
15 mardi le 27 avril 2010
16
17 VOLUME 10
18
19BEFORE:
20
21Mr. Glenn Stannard Acting Chairperson
22
23Mr. R. Berlinquette Commission Member
24
25Ms. R. Cléroux Registrar
26
27
28APPEARANCES:
29
30Mr. Ron Lunau Commission counsel
31Ms Catherine Beaudoin
32Mr. Matthew McGarvey
33Mr. Nigel Marshman
34
35Mr. Alain Préfontaine For Maj Bernie Hudson, Maj
36Mr. V. Wirth Michel Zybala, Maj Ron Gribble,
37Ms. E. Richards LCol (Ret'd) William H. Garrick,
38Ms. H. Robertson CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner
39
40Mr. Paul Champ For Amnesty International and
41Mr. S. Jodoin For B.C. Civil Liberties Association
42
43Mr. Mark Wallace For Capt(N) (Ret'd) Moore, CFPM
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45 A.S.A.P. Reporting Services Inc. © 2010
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47 200 Elgin Street, Suite 1105 333 Bay Street, Suite
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49 Ottawa, Ontario K2P 1L5 Toronto, Ontario
50 M5H 2T4
1 (613) 564-2727 (416) 861-
2 8720
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2 (ii)
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5 INDEX
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8 PAGE
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11SWORN: BGEN RICHARD BLANCHETTE 1
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13SWORN: MAJOR DENIS GAGNON 1
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15 Examination-in-chief by Mr. Lunau 5
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17 Cross-examination by Mr. Champ 80
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19 Cross-examination by Mr. Wallace 141
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21 Re-examination by Ms Richards 153
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23 Further Examination by Mr. Lunau 168
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25 Further Cross-examination by Mr. Champ 194
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30 ********
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32
33
34 LIST OF EXHIBITS
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36NO. DESCRIPTION PAGE
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39B-57 Correspondence and Materials Document Production, Volumes
40 1 and 2 175
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1 Ottawa, Ontario
2--- Upon commencing on Tuesday, April 27, 2010
3 at 10:04 a.m.
4SWORN: BGEN RICHARD BLANCHETTE
5SWORN: MAJOR DENIS GAGNON
6 THE CHAIRPERSON: Good morning. I
7will be making a few brief opening remarks.
8 Is Assistant Deputy Minister
9Jillian Stirk with us?
10 MR. PRÉFONTAINE: She is. She is
11sitting in the public gallery.
12 THE CHAIRPERSON: I have some brief
13opening remarks. After we are finished, you will
14address yourself in terms of your attendance this
15morning.
16 Good morning. I have a few
17opening remarks that I will make in English. I
18understand, Brigadier-General, that you will be
19responding in French. I and others will have
20simultaneous translation available.
21 On Wednesday, April 21, there was
22a great deal of discussion regarding the
23documentation issues that affect the ongoing public
24interest hearing for which you have been summoned
25to appear. In order to properly put the issues to
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1you, I will make reference to parts of the Panel's
2Direction of April 21. We the Panel acknowledged
3the list of proposed documentation provided by Mr.
4Préfontaine and the availability of those documents
5and their tentative dates for production.
6 We also recognized Mr.
7Préfontaine's position although it was stated that
8we were disappointed with the dates as outlined and
9a need to consider fairness to the subjects and the
10adverse impact on the process of this hearing, thus
11impacting the scheduling and testifying of subject
12officers over the next two weeks.
13 We also stated that we carefully
14considered all submissions put forward by counsel
15on the issue of document production and our
16concerns about what relevancy test was being
17applied in the screening process. The Panel
18considered the relevancy test as an important issue
19to be addressed as soon as possible before agreeing
20to proposed production schedules.
21 Therefore, the Panel requested
22yourself, meaning Brigadier-General Blanchette and
23Mr. Edwards or other persons to appear with them or
24for them, to appear at today's session of the
25Public Interest Hearing.
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1 As stated a moment ago, it is
2important to hear from yourself on the issues of
3the screening tests for the relevance that is being
4applied to the document requests by the Commission.
5We also ask that you speak to greater detail as to
6where in the process these documents are, i.e., are
7they still with the department's designates being
8screened for relevance, or have they made their way
9to the National Security Group for their review?
10 We would also like to hear about
11the collection screening process and how many
12documents have been screened out and not provided.
13Once these documents are provided, the Panel will
14be in a better informed position to come to some
15conclusions regarding acceptable dates for
16production of the outstanding documents.
17 I understand, Brigadier-General
18Blanchette, that Major Gagnon is with us today.
19Welcome.
20 Could I ask counsel, in fairness
21to the Assistant Deputy Minister in terms of
22timing, can I have Ms Stirk wait outside or are we
23in a position to say that she can come back at a
24time that would be convenient to all? I will give
25her the option as to what she wants to do, but I
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1don't want her sitting here for two, three or four
2hours. Counsel, what can we all see as fair?
3 MR. LUNAU: I think we will
4probably be about an hour with General Blanchette
5and Major Gagnon. Depending on what other counsel
6say, I can see the examinations this morning taking
7until the lunch break.
8 THE CHAIRPERSON: Mr.
9Préfontaine...?
10 MR. PRÉFONTAINE: Unless you wish
11to direct that witnesses be excluded, I think it is
12Ms Stirk's choice. She was aware of the fact that
13she was not going to be heard first this morning,
14but she responded to the Direction as issued and
15appeared at the set time. I understand that she is
16prepared to stay here until she is called upon.
17 THE CHAIRPERSON: Mr. Champ, any
18comments on timing?
19 MR. CHAMP: Not on timing. We
20just have concerns about exclusion of witnesses.
21 THE CHAIRPERSON: Mr. Wallace...?
22 MR. WALLACE: No, that's fine with
23me.
24 THE CHAIRPERSON: Mr. Lunau, on
25exclusion?
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1 MR. LUNAU: I have no concerns if
2Ms Stirk stays this morning.
3 THE CHAIRPERSON: Inside?
4 MR. LUNAU: Yes.
5 THE CHAIRPERSON: No objections
6from anyone on that? Thank you.
7 Madam Minister, if you wish to
8stay here, you are welcome. Thank you for the
9issue on timing.
10 Have Brigadier-General Blanchette
11and Major Gagnon been sworn?
12 THE REGISTRAR: Yes, they have.
13 THE CHAIRPERSON: Mr. Lunau,
14please.
15EXAMINATION-IN-CHIEF BY MR. LUNAU:
16 Q. Good morning, General
17Blanchette and Major Gagnon.
18 I would like to start with General
19Blanchette. Can you please advise the Commission
20of the appointment which you presently hold in the
21CF?
22 BGEN BLANCHETTE: Monsieur le
23président, mesdames et messieurs, je suis le
24brigadier général Richard Blanchette et je suis
25directeur général des opérations au sein de l'état
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1major inter-armée, à Ottawa.
2 Q. How long have you been a
3serving officer in the CF?
4 BGEN BLANCHETTE: Je complète
5actuellement ma 33e année de service.
6 Q. Major Gagnon, can you tell us
7what appointment you presently hold?
8 MAJ GAGNON: I am currently the IS
9Team Leader within the Mission Support Team under
10General Blanchette, the Strategic Joint Staff.
11 Q. How long have you been in the
12CF?
13 MAJ GAGNON: I have been in service
14for 28 years.
15 Q. General Blanchette, are you
16aware that the Commission is conducting a Public
17Interest Hearing into a complaint about the
18decisions to transfer the Afghan detainees to
19Afghan authorities?
20 BGEN BLANCHETTE: Oui, Monsieur
21Lunau, je suis tout à fait au courant des travaux
22de la Commission. En fait, le ministère de la
23Défense nationale et le chef de l'état major de la
24défense reconnaissent l'importance du travail de la
25Commission d'examen des plaintes concernant la
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1police militaire.
2 Q. Major Gagnon, what is the
3extent of your knowledge about these hearings?
4 MAJ GAGNON: The same as the
5General's, sir.
6 Q. Have you both read the
7Complaint filed by Amnesty International and B.C.
8Civil Liberties Association?
9 BGEN BLANCHETTE: Je n'ai pas lu en
10détails toutes les documentations relatives à la
11plainte, mais j'ai une équipe de travail qui s'est
12assurée de me donner les exposés suffisants pour
13l'exécution de mes responsabilités par rapport au
14travail de la Commission.
15 Q. Major Gagnon, have you read
16the Complaint?
17 MAJ GAGNON: Yes, I have.
18 Q. General Blanchette, in terms
19of the team that has been briefing you, is that a
20team within DND?
21 BGEN BLANCHETTE: Effectivement,
22il y a deux équipes de travail que je pourrais
23identifier plus particulièrement.
24 Lorsqu'il y a eu le début des
25travaux de la Cmmission en 2007, il y a eu ce qu'on
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1appelait en anglais un Atiger team”, ou une équipe
2adoc qui a été mise sur pied pour présenter tous
3les documents qui étaient requis dans le cadre des
4travaux informels qui étaient présentés.
5 Un peu plus tard, nous avons mis
6sur pied un structure plus organisée, une structure
7à laquelle -- une structure dont fait partie le
8Major Gagnon, qui s'appelle IST, un acronyme pour
9AInformation Support Team”.
10 C'est les travaux de cette équipe,
11qui initialement avait cinq (5) membres. On a
12passé à une équipe de sept (7) membres lorsqu'il y
13a eu davantage de travail à faire, lorsqu'il y a eu
14une demande supplémentaire de documents.
15 Et lorsqu'en 2009 nous avons eu
16des demandes encore supplémentaires de documents,
17nous nous sommes rendus compte que nous devions
18augmenter la structure pour, justement, bien
19répondre aux demandes de la Commission.
20 Et puis c'est à ce moment que nous
21avons mis sur pied une équipe à laquelle je
22référerai en utilisant l'acronyme de APHST, qui est
23pour AAfghanistan Public Hearing Support Team”.
24 Donc APHST contient ou a une
25équipe de 12 personnes qui sont attitrées pour
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1ramasser les documents qui sont nécessaires et
2faire contact avec les officiels au sein du
3ministère de la Défense nationale, qui sont ces
4officiels de niveau I.
5 Il est, bien sûr, requis d'avoir
6un suivi assez précis avec toutes les organisations
7au sein de la Défense nationale pour obtenir ces
8informations-là.
9 Et dans plusieurs cas, comme par
10exemple pour le commandement de la force
11expéditionnaire, il faut également avoir contact ou
12établir des liens avec les troupes qui sont
13déployées sur le terrain pour avoir toutes les
14informations qui sont nécessaires.
15 Donc pour récapituler, ces deux
16équipes là, le IST et APHST, ils m'ont donné des
17exposés suffisants lorsque je suis arrivé en poste
18au mois de septembre dernier pour m'assurer de la
19bonne conduite des travaux.
20 Q. Do I understand correctly
21that you personally have been involved only since
22last September?
23 BGEN BLANCHETTE: Je suis arrivé
24dans mon poste actuel en septembre 2009 et j'ai
25effectivement pris mes responsabilités comme
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1directeur général des opérations pour les 16
2opérations que nous avions à l'étranger, mais
3également pour l'ensemble des opérations
4domestiques qui ont lieu au Canada, y inclus les
5olympiques, sans faire abstraction, bien sûr, des
6opérations récentes que nous avons menées en
7Haïti.
8 Q. Prior to your becoming
9involved in the document collection effort, who was
10your predecessor?
11 BGEN BLANCHETTE: Mon prédécesseur
12était dans un poste intérimaire, il s'agissait du
13Colonel Richard Giguère, qui lui-même avait
14remplacé le brigadier général, Gerry Champagne.
15 Q. You made a reference at the
16outset to -- I think you called it IST. I have
17seen a reference in the materials to something
18called the Detainee Information Support Team.
19 First of all, are there two
20different teams that have been involved in the
21document collection effort? You referred to the
22IST and then subsequently to something called the
23APHST -- I can't remember what it stands for, but
24there was an acronym that you referred to.
25 During the course of this file,
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1were there in fact two different teams who were
2involved in collecting documents?
3 BGEN BLANCHETTE: J'ai fait
4référence à deux équipes de travail, la première
5étant IST, AInformation Support Team”, et la
6deuxième étant APHST, qui est un acronyme qui
7signifie AAfghanistan Public Hearing Support Team.”
8 Je ne suis pas au courant d'une
9autre organisation que vous avez décrite comme
10étant ADetainee Information Support Team,” mais
11c'est peut-être une organisation qui était en place
12avant que je ne sois en place, alors je pourrais me
13tourner vers le Major Gagnon pour savoir s'il y a
14eu une autre organisation qui était appelée selon
15les termes que vous avez utilisés, Monsieur Lunau.
16 Q. Major Gagnon, are you aware
17of that?
18 MAJ GAGNON: Yes, I am. The
19Detainee Information Support Team was in fact the
20nickname given to the ATiger Team” which was
21gathering all the documents in the informal process
22in 2007.
23 Q. Were you part of the Detainee
24Information Support Team?
25 MAJ GAGNON: No, I was not.
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1 Q. Are you part of the APHST,
2the Afghan Public Hearing Support Team?
3 MAJ GAGNON: Only in an advisory
4role, sir.
5 Q. Who is in charge of the
6day-to-day activities of the Afghan Public Hearing
7Support Team?
8 BGEN BLANCHETTE: Il s'agit du
9Capitaine de marine de Santarpia. Et le Capitaine
10de marine Santarpia se rapporte ou est sous le
11commandement du Vice-chef de l'état major de la
12défense, le Vice-amiral Rouleau.
13 Q. In terms of the document
14collection effort, are you aware that the first
15complaint by Amnesty was filed in 2007?
16 BGEN BLANCHETTE: Yes, indeed. Je
17suis bien au courant que la première demande a été
18faite en 2007
19 Q. When that complaint was first
20filed, what did DND do in identifying the documents
21that could be relevant to the complaint?
22 BGEN BLANCHETTE: Je ne suis
23certainement pas un spécialiste de l'aspect
24historique de ce qui s'est fait en 2007 parce que
25je n'y étais pas, mais ma compréhension du
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1processus informel qui a été mis sur place est
2qu'il y a eu 1 300 documents qui ont été colligés
3par le ATiger Team”, et qui ont été acheminés,
4encore une fois, dans ce qui m'a été décrit comme
5étant un processus informel, et ces documents sont
6parvenus à la Commission des plaintes contre les
7policiers militaires.
8 Q. What was the process by which
9documents were identified for collection and for
10forwarding to the Commission?
11 BGEN BLANCHETTE: Ma compréhension
12du processus qui a eu lieu en 2007 était que nous
13répondions à la demande qui avait été exprimée par
14la Commission.
15 Je ne pourrais pas vous citer le
16texte exact de la demande, mais je peux
17certainement faire allusion aux directives qui
18avaient été soumises par la hiérarchie militaire à
19l'effet que nous devions coopérer au meilleur de
20notre habilité aux demandes de la Commission.
21 Et si je puis me permettre pour
22ouvrir une parenthèse sur l'importance des travaux
23des policiers militaires dans un théâtre
24d'opération, j'ai eu l'occasion d'être déployé dans
25de nombreux théâtres d'opération, et il est bien
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1évident que tout ceux qui ont eu à travailler
2connaissent l'importance que nous devons attacher
3aux travaux des policiers militaires et à leurs
4responsabilités.
5 Alors, s'il y a des questions à
6savoir sur la manière qu'ils se comportent dans le
7théâtre d'opération, il est bien sûr important que
8nous contribuions à l'effort pour améliorer les
9choses et bien sûr supporter les travaux de la
10Commission.
11 Q. You would agree that the
12production of documents in a timely manner is very
13important for the Commission to do its work?
14 BGEN BLANCHETTE: Il est bien sûr
15important de fournir tous les documents qui sont
16requis à la Commission, mais dès le début des
17travaux, je suis certain que mes prédécesseurs ont
18fait face à la même difficulté que celle à laquelle
19je fais face actuellement pour la préparation et
20l'envoi de ces documents.
21 Il s'agit évidemment de trouver un
22équilibre entre le besoin de répondre de façon
23rapide aux demandes de la Commission, mais en même
24temps s'assurer que les documents qui sont
25sensibles ou préjudiciables aux opérations qui sont
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1en cours ne deviennent pas publiques parce que, par
2le fait même, les ennemis que nous avons sur les
3théâtres d'opération pourraient utiliser les
4connaissances qui pourraient provenir d'une
5discussion qui aurait eu lieu sur les techniques,
6sur les tactiques, sur les procédures que nous
7employons dans les théâtres d'opération.
8 Au moment où je vous parle, nos
9soldats sont déployés, bien sûr, en Afghanistan,
10plus particulièrement à Kandahar.
11 J'ai récemment passé une année en
12Afghanistan et je sais pertinemment que les ennemis
13du Canada, si je puis référer à eux de cette façon,
14se tiennent prêts à utiliser ces informations
15contre nos troupes qui sont déployées.
16 Et c'est donc cet équilibre entre
17le besoin de répondre aux demandes relatives à la
18divulgation des documents et le besoin de protéger
19ces documents qui fait en sorte qu'il y a, dans
20certains cas, des retards pour la production de ces
21documents.
22 Q. Can you explain that to me a
23bit more? You say there is a need to protect the
24security interests inherent in the documents, and
25that is why there have been delays. Can you
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1elaborate on that for me?
2 BGEN BLANCHETTE: Il y a un besoin
3de protéger certaines informations que j'ai
4qualifiées comme étant sensibles ou préjudiciables
5et c'est pourquoi lorsqu'un document doit-être
6livré à la Commission dans le processus qui lui est
7un processus formel, il y a ce que nous appelons le
8caviardage des documents.
9 Ce processus de caviardage est
10exécuté en deux (2) étapes.
11 La première est au sein du
12ministère de la Défense nationale et ces travaux
13sont, bien sûr, effectués en coopération avec les
14deux (2) équipes de travail dont je vous ai parlé
15auparavant, c'est-à-dire le IST et le APHST.
16 Et une fois que ce caviardage à
17l'interne a été effectué, il faut comparer les
18résultats de notre vérification de ces documents
19avec nos confrères de l'extérieur, avec nos
20confrères, les autres confrères et consoeurs ou
21collègues, devrais-je dire, des autres ministères.
22 Ce processus s'effectue dans un
23forum qui est différent de ceux auxquels j'ai fait
24référence jusqu'à maintenant et il s'agit
25effectivement du groupe de la Sécurité nationale
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1qui travaille sous l'égide du ministère de la
2Justice.
3 C'est donc un processus qui est
4relativement complexe parce qu'il peut y avoir des
5vues qui sont différentes lorsqu'on regarde les
6documents qui doivent être amenés à la Commission
7parce qu'il ne s'agit pas d'une science exacte.
8 Bien sûr, le ministère des
9Affaires étrangères peut avoir une certaine vision
10des choses, et un autre collègue d'un autre
11ministère peut avoir une vision différente ou même,
12au sein d'un même ministère, vous pouvez avoir des
13individus qui vont considérer qu'une certaine
14partie de texte --
15 Et là, je ne parle pas les textes
16dans leur ensemble mais phrase par phrase, mot par
17mot, il faut déterminer s'il y a un risque, s'il y
18a un préjudice possible pour la sécurité des
19opérations.
20 C'est donc avec ce réflexe, avec
21ce filtre, que les individus qui sont dans les
22équipes dont je vous ai parlé doivent effectuer ces
23travaux.
24 Q. Are you aware that prior to
25March 2008 the Commission was given unredacted
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1documents?
2 BGEN BLANCHETTE: Oui, je suis au
3courant que c'est le cas.
4 Q. I assume that at that time
5DND and the other group of which you spoke were
6satisfied that the Commission could deal
7responsibly with sensitive information?
8 BGEN BLANCHETTE: Je suis certain
9que tous les travaux de la Commission seront menés
10avec tout le professionnalisme que je connais à la
11Commission. Il n'y a aucun doute dans mon esprit à
12cet effet.
13 Cependant, je me dois de vous
14mentionner qu'il y a un changement qui s'est
15effectué, et qu'il y a eu une décision de passer à
16un caractère publique des audiences.
17 Et à partir du moment où le
18caractère publique des audiences est utilisé, on
19doit passer à l'application de la Loi de la preuve
20au Canada qui tient compte de l'article 38, qui lui
21décrit clairement que si une partie des documents
22qui doivent être donnés à la Commission doivent
23être protégés pour la Sécurité nationale, que nous
24devons effectivement appliquer ce caviardage sur
25les documents.
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1 Q. Are you aware that under the
2Commission rules exhibits can be kept confidential?
3 BGEN BLANCHETTE: J'imagine que
4c'est le cas. Je ne suis pas au courant des
5règlements exacts qui sont ceux que vous utilisez
6au sein de la Commission, mais j'imagine que c'est
7une possibilité, effectivement.
8 Q. Could not sensitive
9information be safeguarded by keeping the exhibits
10confidential?
12si vous me dites que c'est le règlement, je
13prendrai certainement votre parole à l'effet que
14c'est une possibilité.
15 Cependant, lorsque nous effectuons
16le caviardage des documents, nous le faisons avec
17l'esprit que ces documents pourraient être rendus
18publiques.
19 Q. The group you referred to, an
20internal review by DND and then a review by another
21group involving other departments, is that the
22National Security Group you were referring to?
23 BGEN BLANCHETTE: Effectivement.
24 Q. In terms of how the National
25Security Group gets engaged in the process, is it
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1the case that DND first identifies the documents
2that it is going to submit to the NSG for review,
3the documents are then physically delivered to the
4National Security Group and then vetted by them?
5 BGEN BLANCHETTE: Ma première
6citation à comparaître datait du 29 juillet >09, et
7ma seconde citation a comparaître datait du 21
8octobre.
9 Je vous mentionne ces dates-là
10parce que c'est à partir de ce moment-là que j'ai
11vu de façon précise quels étaient les documents qui
12nous étaient demandés.
13 Cette liste de documents ou de
14types de documents, et il y en avait 39 si je ne
15m'abuse, pour celle qui date du 21 octobre, était
16donc l'outil à utiliser pour déterminer quels
17étaient les documents qui devaient être ou qui
18devaient parvenir à la Commission.
19 Q. The point of my question was
20to try to understand a bit better how the redaction
21process works. I assume the first step is that the
22Department of National Defence identifies documents
23that it is going to submit to the NSG for
24redaction. Is that the first step of the process?
25 BGEN BLANCHETTE: La première
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1étape est une de prise de -- pas une prise de
2conscience, mais plutôt il s'agit de connaître
3quels sont les documents qui sont demandés.
4 Alors c'est dans le texte même de
5la citation à comparaître, dans cette liste de 39
6types ou de 39 documents qui ont été demandés,
7c'est ce qui guide, bien sûr, notre choix des
8documents qui doivent être fournis à la Commission.
9 Et dans une deuxième étape, à
10l'intérieur de ce processus, nous devons regarder
11quelles sont les parties qui doivent être
12protégées, les parties qui doivent caviardées, pour
13la sécurité des opérations de notre personnel qui
14est déployé en Afghanistan.
15 Q. The second step you talked
16about is to see which parts have to be redacted.
17Is that something that DND does as an initial
18measure?
19 BGEN BLANCHETTE: Absolument, mais
20nous ne représentons pas l'autorité finale.
21 Cette recommandation de caviardage
22est le seul sur lequel se penche l'équipe d'IST et
23le Major Gagnon peut vous donner des détails
24supplémentaires sur la façon dont ce caviardage est
25effectué en respectant les règles de la Loi de la
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1preuve au Canada.
2 Q. Major Gagnon, can you
3elaborate on that for us, please?
4 MAJ GAGNON: Just to put it in
5context, the APHST team, once we have identified
6all the documents that apply to the request made by
7the Commission for each item, we then go around and
8ask all the Level 1s, like CEFCOM, Canada command,
9strategic joint staff and other organizations if
10they have such documents to find and provide such
11documents within a very short period of time. When
12all those documents have been gathered, then the
13APHST team will do the first Acaviardage” or first
14review of the document for any potential section 38
15claims and identify those claims..
16 When that is completed, the
17document would then be provided to the NSG in both
18clean and redacted format.
19 Q. What is the test that the
20APHST team applies in recommending a redaction?
21 MAJ GAGNON: They will look at our
22operational security risk, the public need to know,
23and what has been requested in your summons.
24 Q. Does it make determinations
25of whether information is relevant or not?
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1 MAJ GAGNON: The only test they
2made was a responsiveness test to your summons
3based on the item under which the document has been
4collected. An example that I can give is if I
5receive a request for a series of e-mails and I
6find an e-mail that is an invitation to a mess
7dinner, it is determined to be not responsive to
8your request, and therefore we will remove it.
9 Q. Not all the redactions are
10based strictly on considerations of injuriousness
11to national security.
12 MR. PRÉFONTAINE: Sorry, that was
13not the witness' answer. The witness' answer to
14the first portion of the test that is how are
15documents removed, not how they are reviewed for
16national security considerations.
17 MR. LUNAU: As I understood your
18answer, you indicated that information might be
19marked for redaction if it was deemed to be
20unresponsive to the summons.
21 MAJ GAGNON: Based on the material
22that was within the summons itself. That is our
23only guideline we can use to determine if a
24document is responsive or not.
25 Q. You gave the example of an
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1e-mail that refers to a mess dinner.
2 MAJ GAGNON: Yes, sir.
3 Q. When we get a document that
4has big, black lines through it, that redaction
5could either reflect a deletion under the Canada
6Evidence Act or a deletion of something that was
7considered unresponsive to the summons.
8 MR. PRÉFONTAINE: Actually, the
9witness' answer was that the document would not
10have been submitted to the redaction process
11because it was considered to be not responsive.
12 MR. LUNAU: What about part of a
13document?
14 MAJ GAGNON: No, sir.
15 Q. You don't redact parts of
16documents on the basis of responsiveness to the
17summons?
18 MAJ GAGNON: No, sir. Any
19document that has been collected, if any portion of
20that document meets completely or partially the
21responsive test, will be processed.
22 Q. If a reference to a mess
23dinner is contained in an e-mail dealing with
24detainees, what you are saying is that the e-mail
25would be submitted as it is, subject only to
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1national security review?
2 MAJ GAGNON: Exactly, sir.
3 Q. When the documents come in to
4this team from the field, how does DND organize
5those documents in determining that all of the
6items in the summons are being met?
7 MAJ GAGNON: All the documents
8that have been gathered are always based on
9specific items within the summons. When they are
10submitted, it has been identified which item is
11being answered, and they are all gathered together.
12 Q. Do you use some type of
13document management software to keep track of what
14is being received and whether it is responsive to
15the summons or not?
16 MAJ GAGNON: We keep track of all
17the documents we have.
18 Q. Do you use an electronic
19document management program or is it a manual
20process?
21 MAJ GAGNON: We are only using the
22Excel spreadsheet.
23 Q. Do you make an electronic
24copy of the document or does the spreadsheet just
25record the details of the document?
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1 MAJ GAGNON: We maintain a record
2of all the copies of the documents plus an
3electronic copy.
4 Q. For all the documents that
5come in to APHST, would there be an electronic copy
6of all those documents?
7 MAJ GAGNON: I cannot guarantee
8100 per cent, sir. I don't spend my days in APHST
9and I could not confirm that detail.
10 Q. There would be a paper copy
11in any event?
12 MAJ GAGNON: That's correct, sir.
13 Q. And there would be an Excel
14spreadsheet that would list everything received by
15DND as a result of your requests out to the field
16for documents?
17 MAJ GAGNON: To the best of my
18knowledge, yes, sir.
19 Q. Are you able to tell us, in
20response to your requests for documents that you
21sent out since the complaint was first filed in
222007, how many documents DND has received to date
23as a result of your requests out to the field?
24 MAJ GAGNON As General Blanchette
25indicated, sir, under the informal process that in
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1part supporting the inquiries of MPCC 1, Mr.
2Attaran's complaint, 1300 documents were collected.
3Under the first request that was made in February
42009 that evolved into Brigadier General
5Blanchette's summon, 719 documents were collected.
6 THE CHAIRPERSON: Just for
7clarification, is that documents or pages?
8 MAJ GAGNON: Documents.
9 Q. To make sure we are clear on
10the numbers, 1,300 documents were collected before
11March 2008?
12 MAJ GAGNON: That was what I am
13aware of, sir.
14 Q. And 719 more documents were
15collected since when?
16 MAJ GAGNON: In response to the
17request that was first submitted by the Commission
18in February 2009 that was also in the first summon
19to General Blanchette and then was amended and
20modified based upon the second summon to General
21Blanchette that was done in September, post
22September 2009.
23 Q. Were all of these
24approximately 2,200 documents delivered to the
25Commission?
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1 MAJ GAGNON: I am fully aware that
2the 1300 were submitted to the Commission
3unredacted as part of the inquiry you were
4conducting at time of the incident. Those document
5were sent back us for section 38 review, which was
6completed in the year 2009. We also have all 719
7had been submitted to NSG out of which 50 were
8deemed still responsiveness after second summon,
9based on the direction from the judicial review.
10And as far as I am -- my knowledge of those
11documents were had been produced to the Commission
12system, all 50 of them.
13 Q. You should have a copy of a
14transcript on your desk, a transcript of April 21,
152010. At the top of page 30 Mr. Préfontaine
16advises the Commission that on the basis of those
17indications that documents are screened out by the
18line departments, DND and the Canadian Forces in
19the case of DND and Canadian Forces documents, by
20the Department of Foreign Affairs in the case of
21Department of Foreign Affairs documents,
22Correctional Services Canada in the case of
23Correctional Services Canada documents.
24 With respect to the documents that
25are received by the APHST in response to its
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1requests, is there a screening process that takes
2place?
3 MAJ GAGNON: I would like to
4understand better your question, sir.
5 Q. You make requests for
6documents as a result of which you get a certain
7number back. Are those documents then reviewed to
8determine whether they go into a "give to the
9Commission" pile and Adon't give to the Comission”
10pile?
11 MAJ GAGNON: The only
12responsiveness test that we do is based on what has
13been requested in the summons, sir.
14 Q. So there is a screening
15process? You would screen out documents that you
16deem not to be responsive to the summons?
17 MAJ GAGNON: Based on what the
18summons actually requests.
19 Q. Do you know how many
20documents have been screened out on the basis that
21they are deemed unresponsive to the summmons?
22 MAJ GAGNON: I don't have a fixed
23number for you, sir.
24 Q. Can you find out and let the
25Commission know?
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1 MR. PRÉFONTAINE: Actually, the
2Commission already has the raw data since Major
3Gagnon has provided the number of documents which
4was responsive to the first summons but considered
5not responsive to the second, so it is just a
6matter of subtracting the second number from the
7first.
8 THE CHAIRPERSON: If I heard that
9right, there were 719 minus the 50, and all the
10rest were non-responsive.
11 MR. PRÉFONTAINE: Correct.
12 MR. LUNAU: I would like to
13clarify some of these numbers. The 719 documents
14you referred to -- my understanding was that that
15was the number of documents that had been
16identified as responsive to the Commission's
17summons.
18 MR. PRÉFONTAINE: Incorrect.
19 MR. LUNAU: Kindly let the witness
20--
21 THE CHAIRPERSON: Mr. Préfontaine,
22I think he can answer that question.
23 MR. PRÉFONTAINE: We have been
24over this ground on at least three occasions.
25There was a point at which repeating the same
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1question becomes abusive, and I think we are
2reaching that point fast.
3 MR. LUNAU: I disagree.
4 Q. The 719 documents, I thought
5you had described those as the number of documents
6that were found responsive to the summons.
7 MAJ GAGNON: Those were the
8documents that were collected as part of the first
9request in February 2009, which also matched the
10first Blanchette summon of -- I don't remember the
11exact date.
12 Q. That was the total universe
13that was collected?
14 MAJ GAGNON: Yes. All the
15document that we thought were responsive to your
16summon.
17 Q. With respect to the summons
18issued, the revised summons that was issued in
19October 2009 to General Blanchette, what was the
20total number of documents, if you can tell us, that
21were collected in response to that summons?
22 MAJ GAGNON: I don't have a number
23for you, sir.
24 Q. Can you determine that number
25for us and let us know?
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1 MAJ GAGNON: Certainly, sir.
2 Q. Thank you.
3 Is it the APHST team that
4determines whether documents are deemed responsive
5to the summons or not?
6 MAJ GAGNON: They did some of the
7responsiveness. We did a secondary test when
8reviewing the documents to make sure that we had
9all the right documents.
10 THE CHAIRPERSON: I am sorry, I
11missed the first part of that answer.
12 MAJ GAGNON: They did some of the
13test.
14 THE CHAIRPERSON: APHST did the
15test?
16 MAJ GAGNON: Yes.
17 Q. Are you aware of any
18instances within APHST where a question was raised
19whether a particular document should be produced or
20not?
21 MAJ GAGNON: No, I am not aware,
22sir.
23 Q. There was never a case you
24can think of where a screener had questions as to
25whether a document ought to be provided or not?
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1 MAJ GAGNON: The guideline they
2have is that, if there is a concern about it, they
3could seek advice from our legal team assisting the
4APHST team, if the document was to go in instead of
5going out. That was the normal directive.
6 Q. If I could ask you to look
7again at the transcript at the top of page 29, the
8first five lines, Mr. Préfontaine tells the
9Commission that, to address the summons for the
10moment and those parameters are reduced to
11guidelines, so we provide to the clients and the
12guidelines are in the nature of "this is what the
13Commission has requested, go out and seek what fits
14that." Are you aware of the existence of these
15guidelines?
16 MAJ GAGNON: The only thing we use
17is your summons.
18 Q. When Mr. Préfontaine alludes
19to guidelines having been given to the client, you
20are not aware of those guidelines?
22 Q. What guidelines were you
23referring to in your answer a few moments ago?
24 MAJ GAGNON: The only guideline
25that I was referring to, sir, is the text of the
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1summons and how each request was articulated to
2ensure that we were trying to find the right
3documents that were matching the request.
4 Q. So there are not any written
5guidelines that are given to the Public Hearing
6Support Team to assist them in identifying what
7documents are relevant?
8 MAJ GAGNON: Not that I am aware
9of, sir.
10 Q. If in the course of your
11screening documents are deemed unresponsive to the
12summons, what happens to them?
13 MAJ GAGNON: They are preserved.
14They are just put aside, sir.
15 Q. Does that mean that they are
16available as a collection somewhere within DND?
17 MAJ GAGNON: The APHST has all the
18documents collected, regardless of whether they are
19responsive or not.
20 Q. This spreadsheet that you
21talked about, the Excel spreadsheet, does it also
22indicate what documents on the list have been
23provided or not provided to the Commission?
24 MAJ GAGNON: I don't know, sir.
25 Q. Can you give us a copy of
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1this spreadsheet?
2 MR. PRÉFONTAINE: We can certainly
3take the request under advisement. Whether we can
4produce the list depends on whether there is
5information which is protected by section 38, in
6which case obviously the document will have to be,
7like all the others, submitted to the review
8process.
9 THE CHAIRPERSON: I appreciate the
10section 38, but I would like to hear the witness
11answer whether or not they can provide that
12document, aside from section 38.
13 MR. PRÉFONTAINE: I am sorry, I am
14not sure what you referred to, Mr. Stannard.
15 THE CHAIRPERSON: I want to hear
16whether or not the Major or Brigadier-General can
17make that document available to the Commission,
18having regard to section 38.
19 MR. PRÉFONTAINE: And the answer
20is: No, not until the section 38 process has been
21undergone.
22 THE CHAIRPERSON: Thank you. I
23want to hear that from the witness, not from you,
24Mr. Préfontaine.
25 MAJ GAGNON: Before the document
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1goes to the Commission, it will go under the
2section 38 process, if it contain claims. But I
3cannot give you that answer without looking at the
4spreadsheet itself.
5 MR. LUNAU: Thank you.
6 Q. Have you ever looked at this
7spreadsheet?
8 MAJ GAGNON: I have seen part of
9it, sir.
10 Q. Just bear with me for a
11moment. My technology has failed.
12 These documents, whatever the
13number is that has not been provided to the
14Commission, would they be available for Commission
15counsel to go over to DND and review?
16 MAJ GAGNON: It would depend if
17they meet the request of your summons.
18 Q. I know your position. We may
19have a different position. If we wanted to see
20what has been screened out to satisfy ourselves
21that it was not responsive to the summons, could we
22go over to DND, say this week, and view the
23documents and make our own decision?
24 MR. PRÉFONTAINE: The answer to
25that is a legal one, and the answer to that is
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1"no."
2 MR. LUNAU:
3 Q. So there is no way that the
4Commission can satisfy itself that documents it
5considers necessary have not been screened out?
6 MAJ GAGNON: Sir, when they went
7under section 38, that is the case.
8 Q. I take it that these
9documents that have been screened out, because they
10were screened out, have never been reviewed for the
11purposes of section 38?
12 MAJ GAGNON: That will be
13incorrect, sir. Some of that because of the
14timeline between first one, the request one, is
15Blanchette summon 1 and the Blanchette summon 2
16many of those document have gone through the
17process by the time we receive the update,
18Blanchette 2, which give us a more strict
19parameters by which to prepare these documents.
20 Q. Is there for some reason we
21can't see the documents that have been reviewed
22under section 38?
23 MAJ GAGNON: Sir, they weren't
24meeting the responsiveness test.
25 Q. Would you allow for the
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1possibility that the Commission could disagree?
2 MAJ GAGNON: I guess I'll allow
3for that, sir, but my understanding is that it is a
4legal issue that is still falling under the section
538.
6 Q. Major Gagnon, who do you
7think is responsible for deciding what the
8Commission deems necessary for its inquiry? Is it
9DND or the Commission?
10 MAJ GAGNON: Sir, we are working
11from the summons and the information that you have
12provided. At the end of the day I am bound by what
13the Department of Justice will allow to release.
14 Q. Could you repeat that last
15bit.
16 MAJ GAGNON: I said that I am
17bound by what the Department of Justice in the
18final review under section 38 will allow to
19release.
20 Q. The decision to release
21documents or not is made on the basis of
22Department of Justice input?
23 MAJ GAGNON: As was mentioned
24earlier, we do all the review and provide those
25documents to National Security Group, which
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1combines all claims from all departments into one
2package that is finally reviewed by ADAG, the
3Assistant Deputy Attorney General, which has the
4authority on behalf of the Minister of Justice to
5make a final section 38 review in deciding whether
6those claims are valid or not.
7 When the decision is made, then
8documents are released to whoever requested them.
9 Q. Let me come back to the
10question I asked before. You said that some number
11of documents that were screened out had nonetheless
12been reviewed under section 38. Is that correct?
14 Q. The stage in which those
15documents now find themselves is that they could in
16fact be publicly disclosed.
17 MR. PRÉFONTAINE: Sorry, I think
18there might be confusion here because Mr. Lunau as
19a preliminary question should ask Major Gagnon
20whether those documents have been the subject of an
21authorization, a decision to authorize disclosure
22by the ADAG.
23 MR. LUNAU: I don't think there is
24any problem with the question.
25 MR. PRÉFONTAINE: Unless and until
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1they reach that point, then section 38.02
2specifically provides that the documents cannot be
3made public. Ergo the question remains as a
4preliminary factual basis to ascertain from the
5witness whether those documents Mr. Lunau now
6speaks of have been the subject of a decision by
7the ADAG. If the answer is "no", then obviously
8the Commission cannot have access to them because
9essentially conditions precedent have not been
10fulfilled.
11 MR. LUNAU: I thought he said that
12they had been reviewed under section 38.
13 MAJ GAGNON: Sir, they had been
14reviewed by my organization, but the ADAG is not
15going to make any decision on those documents
16because they were deemed non-responsive.
17 MR. LUNAU:
18 Q. So there is no section 38
19decision with respect to those documents?
20 MAJ GAGNON: No, there is none,
21sir.
22 THE CHAIRPERSON: I was also under
23the impression that he had mentioned that there had
24been a section 38 review.
25 MAJ GAGNON: Maybe I was not clear
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1in my answer, sir. I said section 38 B DND applying
2it -- the Department of Justice and the final
3review has not been conducted.
4 Q. Thank you.
5 MR. LUNAU:
6 Q. Are any of the documents --
7the 719 or whatever number of documents it is that
8have been weeded out or screened out or decided not
9to be responsive, these 669. Was it your own
10internal review, or were there any of those
11documents that were found to contain nothing that
12would be injurious to national security?
13 MAJ GAGNON: I would say I cannot
14tell you. We would have to go through every single
15document to answer that question.
16 Q. Could I ask you to turn to
17the summons that was issued to Brigadier-General
18Blanchette on October 31, 2009.
19 THE CHAIRPERSON: That is Document
201 of 1 at tab 6?
21 MR. LUNAU: That's correct.
22 Q. Do you have that, General
23Blanchette and Major Gagnon?
24 Is it DND's position that it has
25now produced everything that is producible under
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1this summons or are there more documents to come?
2 BGEN BLANCHETTE: Nous avons
3fourni tous les documents qui ont été demandés dans
4le cadre de la citation à comparaître.
5 Il y a cependant quelques autres
6demandes qui sont toujours en cours, et j'en
7citerai trois en particulier, mais ces demandes
8sont relativement récentes, la première étant des
9documents qui sont requis par les témoins, soit
10pour leur préparation personnelle ou des documents
11qu'ils désirent verser à la Commission.
12 Ça, c'est la première catégorie
13sur laquelle nous avons du personnel qui continue à
14travailler.
15 La deuxième, ce sont des documents
16qui ont été obtenus par la Loi de l'accès à
17l'information, et qui ont été demandés par des
18conseillers juridiques qui sont dans la salle, et
19également une troisième catégorie, qui ceux sont
20les documents que nous avons appelés les documents
21CEFCOM, c'est-à-dire ceux qui sont reliés à
22l'enquête interne qui a eu lieu au sein du
23commandement de la force expéditionnaire suite à un
24article qui avait été écrit dans le Globe & Mail en
25avril 2007.
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1 Donc nous continuons de travailler
2sur ces trois types de documents, et je peux
3assurer la Commission que nous faisons tout ce qui
4est dans notre pouvoir pour que ces documents vous
5soient versés le plus rapidement possible.
6 Q. If I were to question whether
7item no.6, the request for all detainee transfer
8records from May 3, 2007 to June 12, 2008, as
9signed by the Detainee Task Force Commander or his
10delegate, whether those documents had been
11produced, how would you track what information had
12been provided in response to that item?
13 MAJ GAGNON: Based on our tracking
14record and working with the primary organization
15concerned, which is CEFCOM, we have gone to all
16efforts to try to find all of those documents. We
17have attempted to do all due diligence possible to
18find the documents in question.
19 Q. Are you saying basically that
20the response for item no. 6 is that you have
21attempted to find documents, but there is
22essentially no return? You can't find them?
23 MAJ GAGNON: Sir, I don't have a
24breakdown by request of how many documents were
25provided for each of them.
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1 Q. For each of these items you
2don't have any tracking to show what has been
3produced in response to Item No. 1, No. 2, No.3,
4No.4, and so on?
5 MAJ GAGNON: I couldn't give you
6the numbers, sir. I will have to inquire how much
7we had per item.
8 Q. What about the specific
9documents. For example, if we come back to item
10no. 6, all the detainee transfer records, did you
11have a list of documents or a record of what DND
12has produced in response to item no. 6?
13 MAJ GAGNON: Not with me. We can
14obtain the number through APHST or NSG.
15 Q. Does APHST keep track of what
16has been produced in response to each summons item?
17 MAJ GAGNON: Yes, they do.
18 Q. Is that on a spreadsheet?
19How is it maintained? Is it a written record?
20 MAJ GAGNON: I will assume it is
21on the spreadsheet, but I cannot confirm. I will
22have to look again at the document itself. Also we
23have binders that contain the documents that were
24collected per item list.
25 Q. Collected, but not
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1necessarily produced. Am I correct?
2 MAJ GAGNON: That is again where
3we get into what we were talking about earlier, sir
4-- the section 38 process review and the
5responsiveness test that was done.
6 Q. I would like to ask you to
7provide us with a list, if one exists, showing what
8has been produced in response to each of these
9summons items.
10 MAJ GAGNON: I can provide you the
11numbers, sir, but the list, if you want to start
12getting into the item number, go back to the
13previous request regarding the spreadsheet and the
14section 38 issue.
16collection U. These are documents that were
17provided to the Commission by the complainants,
18which they obtained from DND as the result of an
19Access to Information Request.
20 Can you say if you have seen these
21documents before? Are they documents that were
22collected by DND as part of its own effort?
23 MAJ GAGNON: I have seen many of
24these documents.
25 Q. You have seen many of them.
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1Are these documents that were screened out as part
2of your unresponsiveness to the summons test?
3 MAJ GAGNON: They failed to meet
4your summons request.
5 Q. You saw these documents, but
6you screened them out as unresponsive?
8 Q. On what basis were they
9deemed unresponsive?
10 MAJ GAGNON: One is the knowledge
11that the MP should have or should have been aware
12of those documents.
13 Q. In your screening, one of the
14tests you are applying is whether the MPs were --
15how did you put it? Saw or should have seen these
16documents?
17 MAJ GAGNON: The MPs knew or
18should have known about the content of those
19documents.
20 Q. You are making the
21determination that the MPs did not know or should
22not have known about these documents?
23 MAJ GAGNON: Yes, sir. It is why
24many of the witnesses that have appeared before
25this Commission were not aware of these documents
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1or didn't know they existed.
2 Q. On what basis are you
3determining that MPs didn't know or should not have
4known about a document? How do you know that?
5 MAJ GAGNON: It is based on our
6experience of being in theatre operations. You
7must understand how information is passed through
8the chain of command.
9 Q. Did you talk to anybody to
10see if MPs might have known about a document or the
11information in a document?
12 MAJ GAGNON: We have talked to MPs
13about this basic aspect of documents concerning
14their knowledge with similar documents.
16tab 3. Here is an example of an e-mail that is
17sent to many addressees within CEFCOM. Did you
18speak to any of the addressees on this e-mail to
19see if the MPs knew or had this information
20otherwise available to them?
21 MAJ GAGNON: No, we have not.
22 Q. Pardon me?
23 MAJ GAGNON: No, we have not.
24 Q. On what basis would you
25determine that, say, the CEFCOM Provost Marshal did
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1not have this document or the information in this
2document available to him?
3 MAJ GAGNON: First was determined
4regarding the distribution list, identifying which
5key position were notified of this specific
6document. And also based on what the information
7was in the document, which clearly indicated to us
8that MPs will have not be made aware or even be
9knowledgeable of this document at the time.
10 Q. You can tell that just by
11looking at the document?
13 Q. All of the addressees at
14CEFCOM -- are you aware that the CEFCOM PM did not
15have -- let me backtrack. Do you know about the C4
16communications network?
17 MAJ GAGNON: Yes, I am.
18 Q. You are aware that the CEFCOM
19PM didn't have the C4 connection?
20 MAJ GAGNON: There is only one C4
21connection in CEFCOM Headquarters, and that is with
22the Pol Ad.
23 Q. By necessity, communications
24passing over the C4 network, the CEFCOM Provost
25Marshal wouldn't be able to get them because they
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1didn't have C4 connection.
3 Q. Somebody might have given it
4to him?
5 MAJ GAGNON: They might, but the
6only way I can find out is if there is notification
7that will identify that the Provost Marshal was
8told of this. I don't have that ability to read
9minds.
10 Q. That I am glad to hear.
11 Ms Duschner is one of the
12addressees. Did you talk to Ms Duschner to ask
13her, "Did you ever pass a copy of this to the
14CEFCOM Provost Marshal?"
15 MAJ GAGNON: No, I did not, sir.
16 Q. Did you ever talk to any of
17these addressees to ask if they had passed --
18 MAJ GAGNON: As I responded
19before, sir, no.
20 Q. You look at the document.
21You look at the addressees. You look at the
22content, and you conclude, "This was not available
23to the MPs, so I am not going to produce it to the
24Commission." Right?
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1 Q. That, it seems to me, would
2be true of virtually every document that was passed
3over the C4 communications network.
4 MAJ GAGNON: That would be a fair
5assumption, sir, because truly the C4 is a DFAIT
6network, and we need to be aware that the
7information that is passed on this network is very
8limited. Even within the national departments,
9there are very few people who are even aware of the
10existence of this network and even less of the
11information that is on it.
12 Q. Do you agree that it is a
13fair assumption on our part that any messages
14passed over the C4 network, even if they had
15multiple addressees in CEFCOM, would have been
16screened out because the MPs did not appear as an
17addressee?
18 MAJ GAGNON: No, sir. We would
19still use your summons as the primary guideline for
20our final responsiveness test.
21 Q. When you are looking at an
22e-mail like this, the test I assume you are turning
23your mind to is whether this e-mail was available
24to the MPs.
25 MAJ GAGNON: As I said earlier,
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1based on the content of the document, based on the
2discussion being made inside this document, it was
3clear from my operational experience perspective
4that people available within chain of command will
5have even been aware of this discussion. I will
6not have been aware and so not an MP.
7 Q. Were you at CEFCOM in
8November 2007?
9 MAJ GAGNON: No, sir, but I am
10talking from my experience in theatre in 2006.
11Many of the discussions like that were not made
12privy to the Commander or any similar documents at
13a meeting. The ability of most of the staff to
14know what was happening was very limited.
15 Q. You were not at CEFCOM in
16November 2007.
17 MAJ GAGNON: No, I was not.
18 Q. In fact, you don't have any
19personal knowledge of whether this e-mail would
20have been available to the CEFCOM Provost Marshal
21or any other MP.
24tabs 6 and 7. Have you seen these letters as part
25of your collection of documents?
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1 MAJ GAGNON: I have seen Colonel
2Juneau's letter.
3 Q. The one to Brigadier-General
4Laroche at tab 6, which is similar, have you seen
5that one as well?
6 MAJ GAGNON: I would have to say
7yes, sir.
8 Q. Were these two
9letters/documents screened out as part of your
10process?
11 MAJ GAGNON: Yes, they were, sir.
12 Q. On what basis?
13 MAJ GAGNON: Once again, on the
14basis that the result of those decisions were made
15aware to the MPs but the content of these actual
16document were never provided to MPs.
17 Q. How did you determine that?
18 MAJ GAGNON: Once again, looking
19at who it was addressed, what was the content of
20the document and how was it responsive to your
21summons.
22 Q. Did you speak to Colonel
23Juneau?
24 MAJ GAGNON: No, I haven't, sir.
25 Q. Or General Laroche?
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2 Q. When you read these letters,
3did you think that they were relevant to some of
4the issues that the Commission was looking at?
5 MAJ GAGNON: They were certainly
6responding to summon 1 and that is the reason we
7gathered it. But once we have received the updated
8summons, we clearly had to review based on what was
9requested and what was invitation imposed by that
10request and that would mean that this document that
11was relevant -- responsive under the first request
12was no longer responsive under document 2.
13 Q. With respect to these e-mails
14-- we looked at the one at tab 3, for example. Do
15you have any information that shows that e-mails
16sent to addressees at CEFCOM, such as Ms Duschner,
17were specifically directed not to be given to MPs?
18 MAJ GAGNON: I would like to
19confirm that I understand your question. You are
20asking me if Ms Duschner specifically requested not
21to give the document to the MPs?
22 Q. No. What I am asking is:
23Are you aware, when you look at a document like
24this with multiple addressees at CEFCOM, from the
25addressees and your reading of the document, do you
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1conclude that it was not available to MPs? What I
2am asking you is: Do you have information or
3evidence that in fact there was a deliberate
4decision that messages sent to CEFCOM should not be
5given to the MPs?
7 Q. Do you have guidelines or a
8direction as to when a document will be considered
9as having been available to the Military Police,
10the wording used in the summons?
11 MAJ GAGNON: No written
12guidelines, sir.
13 Q. On a document-by-document
14basis, who ultimately makes the decision that "I am
15not going to produce that because I consider that
16it wasn't available to the Military Police?" Is
17that yourself?
18 MAJ GAGNON: I will make my
19recommendation and I am assisted by two members,
20one from the JAG office and one from the CFLA
21office.
22 THE CHAIRPERSON: I am sorry, from
23the JAG office and...?
24 MAJ GAGNON: Canadian Forces Legal
25Assistance, CFLA, and the Judge Advocate General or
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1JAG. But at the end of the day, the final decision
2was certainly with the ADAG, if the document goes
3through an actual section 38 final review.
4 THE CHAIRPERSON: Before we go on,
5Mr. Lunau, could I clarify that again.
6 You say that you make the decision
7assisted by someone from CFLA and someone from JAG.
8They assist you in making that decision?
9 MAJ GAGNON: They will challenge
10me B their real function is a challenge function.
11The claim that we make that the APHST has made that
12go to the NSG to do the qualify control on behalf
13of the department. Have those two lawyers with me
14that do the initial challenge function, on those
15claims. Then NSG counsel will also do another
16challenge --
17 THE CHAIRPERSON: Before we get to
18there, once they challenge you on that decision, is
19there a final decision at that point that it goes
20to NSG?
21 MAJ GAGNON: If one of them --
22 THE CHAIRPERSON: Who makes the
23recommendation? Is it you?
24 MAJ GAGNON: At the time.
25 THE CHAIRPERSON: Based on
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1assistance from JAG and CFLA, you make the
2decision. The answer is: Yes, you recommend it.
3It then goes to NSG.
4 MAJ GAGNON: I'm already at NSG,
5sir. That process has been at NSG.
6 THE CHAIRPERSON: If the answer is
7no, you are already at NSG. Right?
8 MAJ GAGNON: Yes. That document
9will be brought in front of the ADAG for a final
10decision.
11 THE CHAIRPERSON: All the
12documents that you are making a recommendation on
13go to NSG?
14 MAJ GAGNON: Yes. As we mentioned
15earlier, all 719 documents that were collected
16under the initial request from the Commission in
17February 2009 are in issue right now.
18 THE CHAIRPERSON: They would all
19be at NSG?
21 THE CHAIRPERSON: Is NSG in the
22same office as you?
23 MAJ GAGNON: No, sir. They work
24at Department of Justice.
25 THE CHAIRPERSON: Do you
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1physically take them documents?
2 MAJ GAGNON: Yes, we do.
3 THE CHAIRPERSON: They have a copy
4and you have a copy?
6 MR. LUNAU:
7 Q. Could I ask you to look at
8Volume 1, Correspondence and Materials, tab 9, page
96. This is a letter from Commission counsel to Mr.
10Préfontaine and Ms Richards.
11 At the top of page 6 we say:
12 "We, note in case this is of
13 assistance, that the
14 Commission does not seek all
15 materials on the detainee
16 file, only materials relating
17 to post-transfer treatment
18 and risk of abuse. Requests
19 of DFAIT are always limited
20 to documents communicated or
21 made available to DND CF
22 personnel. Commission
23 counsel would be pleased to
24 hold further discussions
25 about which documents should
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1 be viewed as available to MPs
2 or their chain of command.
3 Without a complete knowledge
4 of the system for filing an
5 Access to Information within
6 DND CF, we are not in a
7 position to assist further on
8 this issue. However, with
9 more information, a common
10 definition could be agreed on
11 which may facilitate and
12 accelerate the document
13 collection ultimately, the
14 document production process."
15 Were you made aware of this
16letter?
18 Q. You were not aware of the
19suggestion by Commission counsel that we should
20discuss a common agreement of what constituted
21being available to the Military Police?
23 Q. Since February 2007, have
24there been at any time, to your knowledge,
25instructions or directions to go slow on document
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1production?
2 MAJ GAGNON: Not that I am aware
3of, sir. It is more likely the opposite.
4 Q. Could I ask you to go to the
5same binder at tab 10, which is a transcript of the
6proceedings of October 7, 2009, at page 4, line 14.
7This is Commission counsel speaking, and she says:
8 "Since March 2008, however,
9 when the Chair announced that
10 this Panel would hold a
11 Public Interest Hearing, the
12 Commission had not been
13 provided with a single new
14 document by the government.
15 Since the duty to investigate
16 complaints was filed in June
17 2008, no relevant documents
18 have been produced."
19 Was there any decision within DND
20during this time period not to forward documents to
21the Commission?
22 MAJ GAGNON: Not at all, sir.
23 Q. What accounts for the fact
24that between March 2008 and October 7, 2009 no
25documents were delivered to the Commission?
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1 MAJ GAGNON: Two reasons, sir.
2One is the decision by the Commission to conduct a
3public hearing which brings us to the sudden
4decision that we had to go through through the
5Canadian evidence act section 38 review to be sure
6that any operationally sensitive information that
7could affect operation overseas, especially in
8Afghanistan and put at risk our soldiers' life will
9be properly protected.
10 Q. Over the course of more than
11a year, from March 2008 to October 2009 which is a
12year and some months later, not one document has
13made its way through the section 38 process?
14 MAJ GAGNON: As stated in there.
15 THE CHAIRPERSON: Sorry, I didn't
16hear that.
17 MAJ GAGNON: As stated in the
18transcript of the hearing.
19 MR. LUNAU:
20 Q. From March 2008 to October
212009 we have no documents produced because of the
22section 38 review.
23 MAJ GAGNON: Yes, sir, and also we
24just had the decision on the judicial review that
25was, again, affecting what the Commission would be
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1asking in terms of documents.
2 Q. After October 2009 the next
3set of productions from the Department of National
4Defence appears to be January 22, 1,259 pages of
5NIS documents.
6 MAJ GAGNON: They are all prior to
7the time, yes, as discussed with the Commission.
8 Q. During the period between
9October 2009 and January 22, we received Mr.
10Colvin's documents that had been redacted by the
11NSG.
12 MAJ GAGNON: Yes.
13 Q. They were not provided by
14DND?
15 MAJ GAGNON: DND had requested NSG
16to review all those documents for potential section
1738 claims by the department.
18 Q. DND reviewed the Colvin
19documents. The documents provided by Mr. Wallace
20did DND review those?
21 MAJ GAGNON: Yes, we did.
22 Q. Then on January 22 we get
231,259 pages from DND. On February 19 we receive
24back 340 pages, those being our own transcripts
25that had been redacted by NSG. They are not DND
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1documents; they are our documents.
2 MAJ GAGNON: I'm fully aware of
3that. Understand that any document that has been
4sent to NSG, NSG will ask all concerned departments
5to review the documents to see if they have any
6claims.
7 Q. The Colvin documents, for
8example, are the same people reviewing those for
9section 38 as are busy collecting documents for the
10Commission? You can only do one thing at a time?
11 MAJ GAGNON: The APHST team is
12focused on the collection and initial review for
13any potential section 38 claim. I and Commander
14Moffat are at the NSG to do the actual quality
15review of any documents that are to be brought in
16front of the ADAG. That will include any documents
17that had already been sent separately by the
18Commission, like your transcripts, for any
19potential claims.
20 Q. Not everybody on the APHST
21team is involved in the section 38 issue.
22 MAJ GAGNON: There are only two
23officers finding the documents, marking them and
24providing them to NSG. Their other role is to help
25prepare the witnesses that are looking at all the
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1administration. That is the only role APHST has;
2that is the only job they have.
3 Q. What I am trying to
4understand is: You say you have to review the
5Colvin documents. That does not require the whole
6APHST team to stop what they are doing and focus on
7that review. There should be concurrent activities
8taking place.
9 MAJ GAGNON: That is what happens,
10sir. We have the APHST team that is focused on
11what you requested. There are two arms that I
12mentioned earlier. I'm at NSG doing the quality
13control on all those claims, answering all the
14challenges made by the legal team to ensure that
15entries that have been identified are legitimate
16and have been properly identified. I have to
17convince the counsel at NSG. They in turn have to
18convince the ADAG. So there is multiple layers of
19challenges and had to be available to as defined to
20provide those answers.
21 Q. Let me come back to the
22schedule of document production. On February 19
23you give us back our own transcripts redacted. On
24February 1 we get a two-page Correctional Services
25document delivered, not a DND document. On March
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117 we got what was described as the response to
2General Blanchette's summons that we were told was
3464 pages.
4 MAJ GAGNON: Just to add to that,
5sir, the NIS report was initially requested as part
6of the Blanchette summons. There was an agreement
7with the Commission that we would provide it first.
8Then there was a document, the summon, that was
9provided afterward.
10 Q. To come back to the NIS
11documents, I just want to get an appreciation of
12what we have. March 17 was the last date I
13mentioned, a response to General Blanchette's
14summons, 464 pages produced by DND.
15 On April 20 we received four
16documents with some revised redactions from the
17NSG. These were all documents that came from us in
18the first place. They were not DND documents.
19 MAJ GAGNON: No, but we still
20looked at them, sir.
21 Q. I understand that you looked
22at them, but they are not DND documents.
23 MAJ GAGNON: I am fully aware of
24that, sir.
25 Q. In terms of DND documents,
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1from March 8 to October 2009 there was nothing
2received by the Commission. Do you agree?
3 MAJ GAGNON: I cannot say anything
4than what you have in your transcript, sir.
5 Q. After October 2009 we
6received on January 22 or thereabouts 1,259 pages
7of NIS documents. On March 17 we received the
8response to Major Blanchette's summons of some 464
9pages.
10 BGEN BLANCHETTE: My rank is
11Brigadier-General.
12 MR. LUNAU: Sorry, what did I say?
13 BGEN BLANCHETTE: You said Major.
14 MR. LUNAU: I'm sorry.
15 Q. We got 464 pages.
16 MAJ GAGNON: Yes. You got a
17number, sir. I will not deny anything that you
18already have.
19 Q. By my calculation, since
20March 2008 DND has produced 1,259 pages of NIS
21reports, 464 pages in response to General
22Blanchette's summons, for a total of 1,723 pages.
23Do you disagree with that, or is that correct to
24the best of your knowledge?
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1knowledge, that is correct.
2 Q. That is in the space of more
3than two years that you have produced 1,723 pages.
4 MAJ GAGNON: That's the number you
5have, sir.
6 MR. PRÉFONTAINE: Actually, that
7is a bit unfair, because as the witness has
8previously testified, the first request from
9Commission counsel came in February 2009. That was
10followed by a summons which is the only legal means
11available to the Commission to compel the
12production of documents in July 2009. The time
13frames, which are connected to the decision of the
14Commission to commence a Public Interest Hearing in
15March 2008 in and of itself mean nothing since
16legally the decision of the Commission to commence
17hearings does not by itself impose any obligation
18to disclose documents.
19 THE CHAIRPERSON: Does the
20document process commence on receiving the summons?
21 MR. PRÉFONTAINE: Of course, it
22does.
23 THE CHAIRPERSON: So that is all
24part of the one-step, two-step process?
25 MR. PRÉFONTAINE: The law provides
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1--
2 THE CHAIRPERSON: Never mind with
3the law, I am just saying that the process starts
4on March 8th.
5 MR. PRÉFONTAINE: No, it does not.
6The process starts when the Commission is telling
7the person that it wants the documents, and that
8starts in February 2009 when Ms Kristjanson wrote
9to us with an informal request which the witness
10has already explained. He testified to the fact
11that it was merged in July 2009 with the first
12Blanchette summons. Legally the first Blanchette
13summons is what starts the process.
14 In practice here, because of the
15agreement with Commission counsel, the process
16started in February 2009.
17 THE CHAIRPERSON: On March 17 we
18got 464 pages. Is that correct?
19 MAJ GAGNON: That is the number.
20 THE CHAIRPERSON: In the last two
21months, that is 464 pages as indicated by Mr.
22Lunau? That is a two-month period; that is like 10
23pages per day.
24 MR. PRÉFONTAINE: In actual fact,
25we know already that the number is incomplete,
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1because there were documents that were produced.
2 THE CHAIRPERSON: We are just
3going with the numbers that you provide us.
4 MR. PRÉFONTAINE: Yes, which I
5have already spoken to last week, but there were
6curiously absent from Mr. Lunau's question to the
7witness.
8 MR. LUNAU: I don't know what my
9friend is referring to about being curiously
10absent.
11 I am interested in documents DND
12has produced. I am not interested in information
13from you about what Mr. Colvin has produced or what
14Mr. Wallace.
15 I want to understand what
16documents we have got from DND. That was the
17purposes of my question in reviewing the numbers of
18pages produced by DND from its own collection since
19March 2008.
20 MR. PRÉFONTAINE: In actual fact
21the documents for Captain Moore are DND documents.
22So the question is incorrect. And in relation to
23Mr. Colvin, obviously the question misses the fact
24that the section 38 process is aimed at protecting
25information wherever it finds itself, so the fact
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1that the document originates or is controlled by
2DFAIT does not speak to whether DND should be
3consulted and have a role in reviewing it.
4 MR. LUNAU:
5 Q. Could I ask Major Gagnon to
6turn to Volume 2 of 2, Correspondence and
7Materials, tab 3. This is a letter from Mr.
8Préfontaine to Freya Kristjanson who was at the
9time lead commission counsel.
10 I ask you to look at Schedule B.
11Schedule B is a letter, page 1 of 6. This is an
12outstanding document request from S.J. Epps(ph).
13If you look at item 1, all records re treatment of
14transferred detainees generated in connection with
15visits by any CF/DND personnel to Afghan detention
16facilities, and so on.
17 If you want to take some time to
18look at the items, you will see that there is a
19number of document requests that date back to 2007
20that Mr. Préfontaine deals with in his letter. Had
21you see this letter before?
22 MAJ GAGNON: I don't remember this
23letter, sir.
24 Q. Mr. Préfontaine in his
25letter, under the column "Government of Canada"
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1responds to a number of these items and says they
2are not relevant. We see that with respect to
3items No. 1, No. 2, No. 3, No. 4, No. 7, No. 10,
411, 12, 13, 14, 15, 18, 19, 20, 23, 24, 25.
5 Were these determinations that
6these documents are not relevant. Were you
7consulted on that?
8 MAJ GAGNON: I was part of the
9group that made the initial recommendation to Mr.
10Préfontaine.
11 Q. You were consulted with
12respect to that particular response that those
13documents requested by the Commission were not
14relevant.
15 MR. PRÉFONTAINE: Objection. This
16is obviously a question that is intruding upon
17solicitor-client communications.
18 MR. CHAMP: Mr. Lunau was just
19asking whether he was consulted, not what the
20content of the consultation was.
21 MR. PRÉFONTAINE: That is the same
22thing.
23 THE CHAIRPERSON: I don't see the
24issue here. I think he can ask the question if he
25was consulted. He is not divulging anything that
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1was said between parties. This is a tribunal
2hearing and I think you can answer that simple
3question.
4 MR. LUNAU:
5 Q. The question is not whether
6you consulted, but whether you were consulted with
7respect to preparing that response.
8 MAJ GAGNON: I was present, sir,
9and so were other military expert and legal expert.
10 Q. When you say you were
11present, is that the same as being consulted?
12 MAJ GAGNON: I was not the lead at
13the time, sir.
14 Q. Who was the lead?
15 MAJ GAGNON: We had Commander
16Moffat who has more experience with this process
17than I had at that point.
18 Q. Who else was present at the
19discussion with respect to that response that these
20requests were not relevant?
21 MAJ GAGNON: A representative from
22the JAG and CFLA.
23 MR. CHAMP: Sorry, I missed that.
24Who from the JAG?
25 MAJ GAGNON: I did not give names,
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1sir. I just said a representative from the JAG and
2CFLA.
3 THE CHAIRPERSON: Mr. Lunau, if
4you can find an appropriate time, we have been
5going for about two hours.
6 MR. LUNAU: Can I ask one further
7follow-up?
8 THE CHAIR: Yes, we had to have a
9right time.
10 MR. LUNAU:
12tab 4, which is in the same book, the response from
13Commission counsel to Mr. Préfontaine, at page 7 of
1418. We have the same chart with Commission
15counsel's position, Schedule B, outstanding
16document requests. You will see in the comments
17that Commission counsel disagrees re relevance with
18most, if not all, of the Government of Canada's
19position that these requests were not relevant.
20 MAJ GAGNON: Yes, I do.
21 Q. Were you informed that that
22was the position of the Commission, that they
23disagreed with the determination that these
24documents were not relevant?
25 MAJ GAGNON: We were told about
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1that, and we were going to proceed based on what at
2the time was Request 1. We proceeded to get all
3the documents that were on that list.
4 Q. Were all these documents
5eventually produced?
6 MAJ GAGNON: As I mentioned
7earlier, we did gather all that we did find on
8every item of this list.
9 Q. Were all these documents
10produced?
12 MR. LUNAU: We can break now.
13 THE CHAIRPERSON: We will break
14for lunch until 1:15.
15--- Luncheon Recess
16--- Upon resuming at 1:25 p.m.
17 THE CHAIRPERSON: Mr. Lunau.
18 MR. LUNAU:
19 Q. General Blanchette and Major
20Gagnon, just following up on several areas we
21touched on this morning. In terms of the
22responsiveness assessment that we discussed,
23vetting documents to determine if they were
24responsive to the summons or not, you said there
25were no written guidelines. I just wanted to ask
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1if there were oral guidelines that were issued to
2APHST to assist them in carrying out this
3responsiveness assessment.
4 MAJ GAGNON: They were provided
5with an understanding of section 38, the articles
6under which a claim could be made, for example, TTP
7or tactics, techniques and procedures, and then
8just what was requested in the summons.
9 Q. I am not so interested in
10what you might have been briefed about section 38,
11but what was APHST told with respect to
12responsiveness to the summons?
13 MAJ GAGNON: That they have to
14answer what was in your summons.
15 Q. Was APHST given specific
16instructions on how to construe or interpret the
17summons?
19 Q. Who was it who provided the
20guidance that you just explained?
21 MAJ GAGNON: Major Van Veen who
22was the JAG officer who specializes -- who has a
23masters in section 38.
24 Q. So it was primarily on
25section 38 that you received some oral guidance
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1from Major Van Veen?
2 MAJ GAGNON: Mixed with it.
3 Q. You mentioned this morning
4that APHST had some role in witness preparation.
5What did APHST have to do with witness preparation?
6 MAJ GAGNON: They have them in all
7their administrative needs, specifically if the
8member is from the outside the Ottawa area,
9arranging for travel, lodging and to make sure that
10they are on time for the hearings. If the witness
11required any documents for their preparation, we
12will do due diligence to find them and provide them
13on time.
14 Q. Do you meet with the
15witnesses?
16 MAJ GAGNON: I don't personally.
17 Q. Does APHST meet with them to
18discuss their testimony?
19 MAJ GAGNON: They will meet with
20them, but not in terms of if you refer to prepare
21them, if that is what you are saying, sir.
22 Q. Yes, that's what I am asking
23about.
25 Q. But they may be given access
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1to documents by APHST?
2 MAJ GAGNON: Any document the
3witness has asked for and only those documents.
4 Q. Is that unredacted versions
5of documents?
6 MAJ GAGNON: Redacted versions.
7 Q. So they only see the redacted
8versions even if they authored the document?
10 Q. Do they see any documents
11that have not been given to the Commission?
12 MAJ GAGNON: I am not involved
13with the actual preparation, sir, so I cannot
14answer that question.
15 Q. Who would be able to answer
16that?
17 MAJ GAGNON: I don't have an
18answer for you, sir.
19 Q. You don't know?
21 Q. Who meets with the witnesses?
22 MAJ GAGNON: A member from APHST
23counsels to help them understand what they need to
24do as a witness.
25 Q. You are a member of APHST
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1yourself?
2 MAJ GAGNON: No, sir, I am not.
3 Q. You're not. All right.
4 BGEN BLANCHETTE: Mr. Lunau,
5perhaps I can help you with this. I can speak in
6English if your thing doesn't work there.
7 The basic point is that Captain
8Navy Santarpia, as I mentioned earlier, is in
9charge, so I believe we could find the information
10for you as to how this is unfolding to be more
11specific.
12 MR. LUNAU: If you could do that,
13I would appreciate that.
14 MS RICHARDS: Just to be clear on
15the record, some of those communications with the
16witnesses may be protected by solicitor-client
17privilege, so we can provide the answer to the
18extent that it is not protected by privilege.
19 MR. LUNAU: Understood.
20 MR. CHAMP: Which list and which
21client just so that we are clear here?
22 MS RICHARDS: As the witness has
23already stated, there are lawyers present during
24those meetings. So to the extent that there is
25counsel present during the meetings, it is
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1protected by solicitor-client privilege.
2 THE CHAIRPERSON: I don't know if
3he actually stated that during some of the
4preparation that there were lawyers there or not,
5so there may not have been in some cases.
6 MS RICHARDS: No, I think he said
7with counsel.
8 THE CHAIRPERSON: At all times?
9 MAJ GAGNON: For witness
10preparation, yes, sir.
11 MR. LUNAU:
12 Q. When you make your inquiries,
13would you advise us if at any of those meetings
14when a lawyer was present who the lawyer was?
15 MAJ GAGNON: If it doesn't impact
16on solicitor-client privilege, certainly.
17 Q. Sorry, I didn't hear.
18 MAJ GAGNON: I said if it doesn't
19impact on the solicitor-client privilege,
20certainly, sir.
21 Q. The Federal Court decision of
22Justice Harrington -- over the lunch break, I think
23there was a bit of uncertainty in my mind. You
24will remember we talked at the beginning of the 719
25documents and then there were 50 responsive
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1documents. I just want to make sure I understand
2this. Is what you were telling me that before the
3decision of Harrington in September of last year,
4DND had collected 719 documents that it deemed to
5be responsive?
6 MAJ GAGNON: 719 documents that
7were responsive to the first summons to General
8Blanchette.
9 Q. And then after the Harrington
10decision, this became 50 documents that were
11responsive.
12 MAJ GAGNON: Based on the second
13Blanchette summons.
14 Q. Your evidence is that all of
15those 50 documents have been given to the
16Commission?
18understanding, yes, sir.
19 Q. Thank you for clarifying
20that.
21 Has there been any discussion that
22you are aware of or have been privy to with respect
23to exploring certain options under section 38 by
24which the documents could be disclosed to the
25Commission?
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1 MAJ GAGNON: No, sir, not at this
2moment.
3 Q. So there hasn't been any
4discussion that you are aware of with respect to
5the possibility of a disclosure agreement?
7 Q. The Attorney General
8permitting disclosure subject to terms and
9conditions?
10 MAJ GAGNON: That would be outside
11my privy, sir.
12 Q. Wouldn't those be possible
13solutions to the issue of dealing with sensitive
14information under section 38?
15 MAJ GAGNON: It seems to me, sir,
16it is more within the realm of the legal community
17and, therefore, I cannot give you any answer on
18that one.
19 MR. LUNAU: Those are my
20questions. Thank you very much.
21 THE CHAIRPERSON: Mr. Champ,
22please.
23 MR. CHAMP: Thank you, Mr. Chair.
24CROSS-EXAMINATION BY MR. CHAMP:
25 Q. Brigadier-General and Major,
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1my name is Paul Champ and I am counsel for the
2complainants in this matter, Amnesty International
3and the BC Civil Liberties Association. I just
4have some questions for you in relation to your
5testimony today.
6 I will direct my first question to
7Brigadier-General Blanchette. You have overall
8responsibility for the operation of the Afghanistan
9Public Hearing Support Team.
10 BGEN BLANCHETTE: The IST is
11reporting to me, not the APHST.
12 Q. So both of those teams are
13still operating separately. Is that right?
14 BGEN BLANCHETTE: Separately from
15a chain of command perspective, but very much in
16co-operation with each other.
17 Q. So you are responsible for
18IST but not APHST. Who has overall responsibility
19for APHST?
20 BGEN BLANCHETTE: Comme j'ai
21mentionné tout à l'heure à M. Lunau, la personne
22qui a la responsabilité de l'équipe même pour les
23activités quotidiennes, c'est le Capitaine de
24marine Santarpia.
25 Q. What precisely is your role
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1then with respect to the production of documents to
2this Commission?
3 BGEN BLANCHETTE: J'ai une
4responsabilité que je pourrais qualifier de
5corporative à partir du moment où ce sont mes
6prédécesseurs qui étaient impliqués lorsqu'il y a
7eu des commandes initiales lorsque la Commission a
8commencé à siéger.
9 Le Directeur général des
10opérations est certainement au fait de ce qui se
11passe dans le théâtre d'opération et doit être
12conscient des risques qui peuvent surgir lorsque
13l'on traite des questions qui sont afférentes aux
14opérations.
15 Les documents qui ont été demandés
16doivent être revus, doivent être caviardés selon la
17section 38 de la Loi sur la preuve au Canada parce
18que, justement, les ennemis de nos forces qui sont
19sur le terrain pourraient profiter des ces
20informations-là.
21 Alors, je suis bien placé s'il y a
22une question qui survient, une question précise,
23pour être impliqué dans le processus, mais j'ai une
24confiance très solide dans l'équipe professionnelle
25qui a été mise sur pied à la fois du côté IST et du
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1côté de APHST pour faire en sorte que ce processus
2soit délégué, justement, à ce niveau-là.
3 Ce n'est pas moi qui prends les
4décisions au jour le jour, à chacune des lignes.
5Je ne lis pas ces documents-là.
6 On n'a pas eu à me contacter
7personnellement pour prendre des décisions à savoir
8si telle ou telle information pouvait être jugée
9sensible ou préjudiciable.
10 Q. I can't recall if you had
11said this in your testimony earlier. When exactly
12was APHST created? Do you know?
13 BGEN BLANCHETTE: APHST a été créé
14au début de 2009. Je crois que c'est en février
152009.
16 Q. Your team, IST, also deals
17with requests for information under the Access to
18Information Act.
20IST a aussi une responsabilité de traiter les
21demandes d'accès à l'information.
22 Q. What is your work with Major
23Gagnon then? If he does work with APHST, do you
24have to work with him in any fashion?
25 BGEN BLANCHETTE: Le Major Gagnon
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1travaille à IST, non pas à APHST.
2 Q. So he works for IST with you,
3yet he provides some oversight and interaction with
4the work of APHST?
5 BGEN BLANCHETTE: Le Major Gagnon
6travaille au sein de IST, mais il a effectivement
7des échanges fréquents avec APHST parce que APHST
8est justement une équipe qui doit aller et
9contacter tous les éléments que j'ai décrits comme
10étant des éléments de niveau I pour avoir les
11informations requises, avoir des documents qui sont
12requis, et par la suite procéder pour le processus
13de caviardage.
14 Q. If I understand correctly
15then, APHST is responsible for gathering the
16documents. Then they provide them to IST to make
17the subsequent determinations on section 38
18relevant to the requests and so forth.
19 BGEN BLANCHETTE: En gros, c'est
20une description adéquate, mais il y a quand même
21des détails qui peuvent vous être donnés par le
22Major Gagnon sur la manière exacte que l'interface
23se fait parce qu'au jour le jour, il y a
24effectivement des contacts avec APHST.
25 Et il ne faut pas oublier non plus
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1que le processus de caviardage dans le moment a
2deux (2) étapes au niveau interministériel.
3 Nous avons des recommandations qui
4sont faites de la part de la Défense, et lorsque le
5tout se retrouve au niveau du cours de sécurité
6nationale, il y a une autre étape.
7 Les consultations ont lieu entre
8les différents ministères pour s'assurer que
9l'intégrité du processus n'est pas mise en cause,
10c'est-à-dire qu'on doit s'assurer qu'on a pris en
11compte tous les points de vue pour que le processus
12soit le plus efficace possible.
13 Q. Major Gagnon?
14 MAJ GAGNON: Just one little
15correction here. All documents collected by APHST,
16the initial severance is done at APHST. It does
17not go back to IST. It goes: Document collected,
18APHST, initial severance, then goes to NSG. This
19is not in that loop.
20 Q. I was trying to follow it as
21best as I could with your testimony this morning,
22but then where does IST fit into that loop then?
23They gather the documents, they give a preliminary
24view with respect to redaction under section 38 and
25then provide them to NSG. Where does IST fit into
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1that loop?
2 MAJ GAGNON: IST is providing the
3client that will review the document at NSG as
4representative of the National Defence Department.
5 Q. Sorry, can you explain?
6Where do you fit into the loop? So APHST gives
7them to you to give them to NSG? Is that what you
8are saying or am I misunderstanding?
9 MAJ GAGNON: No. APHST collects
10the documents. They review them. They will make
11the initial claims, then send both the severed copy
12and the clean copy to NSG. We, at the Department,
13have to send someone to validate all of those
14claims and be able to answer any challenges by
15counsel from both DND department, NSG and maybe the
16ADAG if necessary. IST provides the individual
17that does that role at NSG.
18 Q. So after it is at NSG, you
19are the liaison with NSG as they go through their
20own process.
21 MAJ GAGNON: I represent DND,
22every single document, review all of them, and I am
23the one being challenged for any claim that has
24been made by APHST.
25 Q. So you are responsible for
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1the claims made by APHST. You defend the claims
2made by APHST to the NSG. Is that what you are
3saying?
4 MAJ GAGNON: Exactly.
5 Q. Who do you talk to at APHST
6to understand why they made the redactions they did
7if they are the ones making the initial
8determinations?
9 MAJ GAGNON: As required, I will
10contact the team. It could be the analysts, the
11senior analyst, to understand what was claimed. I
12will rely on the challenge made by my legal team
13and consider what has been claimed, and based on
14all the documents we have seen so far or
15previously, understanding, comparing the other
16documents that have been released, like under the
17Amnesty case, we are going to see whether the claim
18is valid or not.
19 Q. But then you also played a
20role, as I understand it, in determining what
21documents were responsive to the summonses. Is
22that correct? You yourself played a role in that.
23 MAJ GAGNON: Yes, I did play a
24role.
25 Q. How did you play a role in
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1that? If APHST is making those determinations,
2where do you fit into that loop?
3 MAJ GAGNON: Especially right
4after the second summons for General Blanchette,
5many if not most of those documents were already at
6NSG. So we were holding the position to make the
7determination right there to assist the ADAG in his
8final decision instead of going back to APHST to
9make that decision for us.
10 Q. Who is ADAG again? Sorry.
11 MAJ GAGNON: It is the Associate
12Deputy Attorney General.
13 Q. Who makes the final
14determination within the Department of Justice?
16 Q. If I understand you
17correctly, and maybe I'm not, between when the
18first request for documents -- actually, I think
19the first request, Mr. Préfontaine was saying
20February 2009, but I think it was in November 2008
21because I was looking at the letters. In any
22event, up until the second summons given to
23Brigadier-General Blanchette, did you play any role
24in that determination of what is relevant and what
25is not relevant?
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1 MAJ GAGNON: At that time, we were
2not making a relevant test other than specifically
3meeting what was asked in the summons. Again, if
4there was a document that obviously was not
5answering the question, then we would put it aside.
6But if it in any fashion may meet the requirement,
7then we kept it in the file.
8 Q. And the 1,719 documents, they
9have all been at NSG for quite some time?
10 MAJ GAGNON: Which documents are
11you talking about, sir?
12 Q. The 1,719 number from, I
13believe, the initial request to Brigadier-General
14Blanchette.
15 MR. PRÉFONTAINE: I believe the
16number was 719.
17 MR. CHAMP: 719, sorry.
18 Q. The original 719 documents.
19 MAJ GAGNON: By the time the
20second summons was issued, they were out there.
21 Q. But they had been there for
22some time. Had any of them -- but some of them
23might be included in that process. Is that
24correct? The section 38 process.
25 MAJ GAGNON: Not at the ADAG
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1level.
2 Q. Not at the ADAG level. But
3that has nothing to do with your department. That
4is all the Department of Justice. Correct?
5 MAJ GAGNON: At that point, yes.
6 Q. From your department's
7perspective, your role in assisting the NSG group
8in determining what redactions should or should not
9be under section 38, when from your perspective
10were you done in that process with the first
11request?
12 MAJ GAGNON: It is a difficult
13question to answer from the perspective that it is
14based on the change in request and the change of
15which document was being requested by the
16Commission. On many occasions, we used the example
17of the transcripts. As we were progressing to
18release to finalize the documents under General
19Blanchette, we were also given the task of
20reviewing the transcripts or the documents that Mr.
21Colvin had provided to the Commission. So those
22also were included in all of that process.
23 Q. But that all occurred in
24October 2009 and I am just wondering from your
25perspective -- let's use the February 2009 date,
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1although I think the document indicates the request
2in November of 2008. From the February 2009
3request and the subsequent summons to
4Brigadier-General Blanchette, which included those
5categories of documents, when from your
6perspective, from your role as IST liaison with the
7NSG group, had the section 38 process been
8concluded? I am not asking about the Assistant
9Deputy Attorney General's final decision. I am
10thinking about your role and providing advice and
11the challenge function or the review function or
12advice function to the NSG. When was that role
13done?
14 MAJ GAGNON: When the ADAG
15actually did render his decision. Until then, the
16ADAG was challenging us in terms of some of our
17claims. So until he actually gave his decision, I
18was still providing -- my role was still ongoing.
19 Q. But there are still a large
20number of -- of the 719 documents, there has not
21been a final decision with respect to many of those
22documents. Is that correct?
23 MAJ GAGNON: Exactly, as many of
24them were judged to be not responsive to the
25summons for General Blanchette.
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1 Q. And that was a determination
2that you made, the second request?
3 MAJ GAGNON: We reviewed the
4documents and we made some recommendations, but at
5the end of the day, at this time, this is within
6the Department of Justice.
7 Q. What was your explanation --
8if I understand your testimony, Major Gagnon, the
9delay in producing documents from February 2009 to
10October 2009 was purely because of the section 38
11process. Is that correct?
12 MAJ GAGNON: From my
13understanding, until the first formal summons, we
14were getting documents, but on more a freely basis.
15After the formal summons which was the proper
16authority for the Commission to ask for documents,
17we were continuing to gather documents and try to
18find them as quickly as we could. So we are
19talking July 2009.
20 Q. When was the date
21approximately when the 719 documents were in fact
22all gathered together?
23 MAJ GAGNON: I don't have that
24answer.
25 Q. Prior to the formal summons
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1being served in July 2009?
2 MAJ GAGNON: As I said, I don't
3remember the exact -- I was not tracking that
4number.
5 Q. I am just trying to get some
6sense. Once you received the -- Brigadier-General
7Blanchette, maybe I could ask you: Were you
8getting any updates on these issues? You were
9ultimately the individual served with the summons.
10You knew that the summons was going to come to you.
11When you received the summons, did you seek a
12briefing on where that process was at?
13 BGEN BLANCHETTE: My first day at
14work was on the 8th of September.
15 Q. That's correct. So why was
16the summons prior to that in your name? Do you
17have any idea?
18 BGEN BLANCHETTE: Parce que
19j'avais reçu un message du mutation à l'effet que
20je m'en allais dans ce poste.
21 Q. Major Gagnon, I will ask you
22this question: Obviously it is taking thousands
23and thousands of hours of time for the staff at
24APHST and yourself in going over redactions
25pursuant to section 38. Correct?
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1 MAJ GAGNON: It does.
2 Q. That's time that obviously --
3those are all military officers and soldiers doing
4that work. Correct?
5 MAJ GAGNON: Not all of them. Of
6course, NSG personnel are not military.
7 Q. But I gather you and those
8others responsible for that could probably put your
9time to use doing other things if you were freed of
10that responsibility?
11 MAJ GAGNON: Given the choice,
12sir, I will still do this job because for me it is
13more critical to ensure the proper security of our
14people that are in harm's way than anything else.
15 Q. Brigadier-General Blanchette,
16maybe I will put this question to you: I am not
17sure if you followed some of the questions earlier
18from Mr. Lunau to Major Gagnon that there been
19suggestions at times that perhaps some arrangement
20could be made with the Military Police Commission
21lawyers who are top secret cleared, to arrange to
22have them review the documents to determine which
23documents do they really need instead of having all
24of the documents go through the section 38 process.
25Did you have any knowledge of that proposal?
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1 BGEN BLANCHETTE: Non. Je n'avais
2aucune connaissance de ces discussions.
3 Q. Now that you have heard that,
4the suggestion would be that the top secret cleared
5lawyers in the Military Police Complaints
6Commission could go in there and review documents
7to significantly reduce the work of Major Gagnon
8and the people on the APHST team. Just from your
9perspective, wouldn't that make some sense?
10 BGEN BLANCHETTE: Je pense que je
11dois me limiter à décrire ce qui est mon rôle dans
12cette organisation qui est relativement complexe.
13 J'ai décrit ce qui se passe avec
14APHST, ce qui se passe avec IST.
15 Le réflexe d'un militaire qui est
16responsable pour une organisation semblable, c'est
17de s'assurer qu'il y ait suffisamment de personnes
18qui puissent remplir les tâches qui ont été
19données.
20 Et pour ce faire, il faut bien sûr
21écouter les comptes rendus qui nous sont donnés par
22nos subordonnés pour faire les ajustements qui sont
23nécessaires.
24 J'ai rencontré à de nombreuses
25reprises le capitaine de frégate Moffat, ainsi que
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1le Major Gagnon, et dans tous les comptes rendus
2qu'ils m'ont donnés, j'ai eu l'impression qu'ils
3étaient prêts à répondre à la tâche, qu'ils étaient
4prêts à faire en sorte que les travaux soient
5effectués dans les délais raisonnables, compte tenu
6qu'il y avait effectivement quand même beaucoup de
7travail à faire, parce qu'il faut garder
8l'équilibre entre la sécurité des troupes sur le
9terrain et le besoin de réviser ces documents-là
10pour que les travaux de la Commission s'effectuent
11de la meilleure manière possible.
12 Tout ceci pour vous signifier que
13la responsabilité que j'ai comme gestionnaire des
14ressources au sein de la défense, je les ai
15assumées au meilleur de ma capacité pour faire en
16sorte que la Commission soit capable de faire son
17travail.
18 Maintenant, en ce qui concerne la
19possibilité de recevoir ces informations-là à un
20niveau autre que ceux qui nous ont été expliqués,
21c'est-à-dire que c'était une audience publique, je
22pense que ce sont des débats qui doivent avoir lieu
23dans un cadre juridique et de notre point de vue,
24il fallait appliquer la section 38 de la Loi sur la
25preuve au Canada parce que tout le document qui
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1était versé ou déposé à la Commission pouvait se
2retrouver dans le domaine public.
3 Et moi, ayant été sur le terrain
4et étant tout à fait au fait de ce que nos soldats
5font dans le théâtre d'opération, je tenais à ce
6que la sécurité des soldats soit certainement notre
7première priorité.
8 Q. Given the enormous work that
9your team is performing, Brigadier-General
10Blanchette, that might be an issue that you might
11want to explore further with some of your advisors
12about how much work it is requiring for you and
13your team and Major Gagnon and whether there are
14other means. I think what Mr. Lunau is suggesting
15is not that the documents would be publicly put
16before the Commission. There are ways around that.
17 Another question I had for you is:
18You assumed your responsibilities in September of
192009 and you have indicated that you are trying to
20produce the documents within a reasonable time. Is
21my understanding correct?
22 BGEN BLANCHETE: Oui,
23effectivement. Ma responsabilité en ayant l'équipe
24d'IST sous mon commandement ou sous ma
25responsabilité, c'est bien sûr de m'assurer qu'il
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1soit en mesure de remplir les fonctions qui leur
2ont été attribuées.
3 Q. I am not sure how closely you
4followed it, but I gather you would be aware that
5in October of 2009, this Commission adjourned its
6proceedings because Mr. Wallace who is counsel for
7retired Captain Steven Moore and then these counsel
8here for some of the other subjects, when they were
9acting as counsel for those subjects as opposed to
10the Attorney General, were indicating that their
11clients' fairness rights were being violated
12because they could not have access to those
13documents and the Commission had to adjourn. Were
14you aware that that is what had happened at that
15time?
16 BGEN BLANCHETTE: Je n'ai pas une
17connaissance détaillée de tout ce qui s'est passé
18durant cette période de temps, mais ce dont je suis
19au courant c'est certainement que les efforts qui
20ont été faits pour premièrement ramasser les
21documents et ensuite passer à travers le processus
22de caviardage, était tout à fait approprié.
23 Je pense quand on utilise des
24chiffres pour démontrer le rythme de travail, pour
25démontrer la quantité de travail abattu, cela peut
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1mener à une certaine confusion parce que ce ne sont
2pas les chiffres absolus qui sont significatifs.
3 Le fait que l'on ait traité 10 ou
415 documents dans une semaine, ce n'est pas aussi
5significatif que de dire que 100 pourcent des
6documents ont été traités, et de mon point de vue,
7c'est ce qui a été fait au niveau de nos équipes de
8travail.
9 Lorsqu'il y avait du pain sur la
10planche, lorsqu'il y avait du travail à accomplir,
11le travail a été accompli à la fois par APHST et
12par IST, et nous avons même contribué à aider une
13équipe s'il y avait trop de travail pour faire en
14sorte que le travail soit effectué de façon plus
15rapide.
16 Alors du point de vue de la
17responsabilité de mettre en oeuvre ce qui est
18nécessaire pour rencontrer les exigences de la
19Commission, tout en respectant, bien sûr, les
20exigences de la Loi sur la preuve au Canada, je
21pense que le travail qui a été accompli par le
22ministère de la Défense nationale et les Forces
23canadiennes et les officiers et sous-officiers qui
24sont impliqués dans ce processus-là, a été tout à
25fait adéquat.
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1 Q. It was done adequately in
2your view, but, Brigadier-General Blanchette, I am
3not sure if the public or the Commission or my
4clients would agree. This process was adjourned
5once in October 2009. We are now in April 2010 and
6we are on the precipice, on the brink of adjourning
7again, perhaps for a very long time while your team
8conducts its work. So I am wondering at least from
9a public -- do you have concerns about what the
10public perception is and whether the Department of
11National Defence is doing all it can to produce the
12documents?
13 BGEN BLANCHETTE: Effectivement, le
14ministère de la Défense nationale a fait ce qu'il
15avait à faire dans un processus qui est très
16complexe et que nous avons déjà décrit jusqu'à un
17certain point dans les discussions que nous avons
18eues ce matin, et même cet après-midi, à l'effet
19que c'est un processus qui demande différentes
20étapes.
21 Au sein d'une équipe dont je suis
22responsable, ce travail a été accompli de façon
23tout à fait adéquate dans le sens qu'on a mis les
24ressources nécessaires pour rencontrer les
25obligations de production des documents et la
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1partie du processus de caviardage qui incombe au
2Forces canadiennes ou au ministère de la Défense
3nationale.
4 Il y a une partie de cette tâche
5ou de ces responsabilités qui est encore beaucoup
6plus complexe parce qu'on doit comparer nos
7travaux, nos impressions de ces documents.
8 Lorsque j'ai mentionné à M. Lunau
9que s'il ne s'agit d'une science exacte, vous
10comprendrez certainement qu'il peut y avoir des
11points de vue qui sont différents à savoir ce qui
12constitue une information qui est sensible ou une
13information qui est préjudiciable.
14 Pour ce faire, il faut le faire
15avec attention, avec la minutie que les soldats sur
16le terrain méritent.
17 Comme j'ai mentionné plus tôt, nos
18soldat sont déployés et ils font qu'est-ce qu'ils
19ont à faire au point de vue de leur mission
20opérationnelle.
21 Nous ici, dans un quartier
22général, nous avons également une responsabilité
23extrêmement importante, qui est d'assurer la
24protection de ces soldats en faisant en sorte que
25nous respectons les mesures qui font partie
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1intégrante de la Loi sur la preuve au Canada.
3are you aware of the origins of the Military Police
4Complaints Commission and why it was created?
5 BGEN BLANCHETTE: Yes, indeed.
6 Q. What is that in your
7understanding?
8 BGEN BLANCHETTE: Les plaintes ont
9été posées, bien sûr, contre les officiers qui
10auraient permis le transfert de prisonniers Afghans
11à des autorités Afghanes alors qu'ils auraient su
12qu'il y avait un risque qu'ils soient maltraités.
13 Q. Then the actual Commission as
14a body is a body under Part VI, I believe, of the
15National Defence Act. Are you aware when the
16Military Police Complaints Commission as a
17statutory body was created?
18 BGEN BLANCHETTE: J'aurais sans
19doute besoin de regarder les détails exacts de la
20date précise, mais je comprends qu'il y a eu un
21processus informel au départ, et que l'on est passé
22par la suite à un processus formel, et c'est le
23moment à partir duquel on a eu à commencer à voir
24comment s'effectuerait le caviardage des documents
25qui seraient requis pour le travail de la
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1Commission.
3I just want to make sure that you are understanding
4my question. I am not talking about the complaints
5right now for the moment. I am talking about the
6body, the Military Police Complaints Commission.
7It was created by statute in 1998 in the wake of
8the Somalia Inquiry, and I was wondering if you
9were aware of the history of why the Military
10Police Complaints Commission as a body was created.
11 BGEN BLANCHETTE: J'étais un
12membre des Forces canadiennes en 1998, donc j'ai
13une connaissance superficielle des travaux qui ont
14été accomplis à ce moment-là, mais je n'ai pas relu
15récemment la façon dont a été mise sur pied la
16Commission en 1998.
17 Q. In 1998, following the
18Somalia Inquiry, there was the concern that there
19was insufficient accountability and transparency
20with respect to the operation of the Military
21Police.
22 BGEN BLANCHETTE: Vous parlez de
23la Commission Dixon, est-ce que c'est --
24 Q. Yes.
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1oui. À l'époque, j'ai lu les documents de la
2Commission Dixon.
3 En fait, le Général Charles
4Belzile, qui je pourrais pratiquement qualifier
5comme étant un ami, est certainement une personne
6avec qui j'ai discuté de la situation à ce
7moment-là.
8 Mais si je fais le calcul là, ça
9fait quand même une quinzaine d'années, alors je ne
10saurais vous donner le détail des conversations que
11nous avons eues à ce moment-là.
12 Q. The Somalia Inquiry itself
13had been titled The Lessons of the Somalia Affair.
14What do you think were some of the lessons that
15were meant to be learned from the Somalia Affair
16for the Canadian Forces?
17 MR. PRÉFONTAINE: I am not sure
18how relevant this historical inquiry is.
19 MR. CHAMP: I have a document I
20would seek to introduce. I had sent it around to
21the parties yesterday.
22 MR. PRÉFONTAINE: I understand
23that, but that doesn't answer the question of
24relevancy.
25 MR. CHAMP: I am not asking a
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1question. I am withdrawing the question for the
2moment. I will introduce this document and then I
3will put the question another way.
4 THE CHAIRPERSON: Please continue,
5Mr. Champ.
6 MR. CHAMP:
8I see you have a copy with you. What I have
9provided here is Chapter 39 of the report titled
10"The Report of the Commission of Inquiry into the
11Deployment of Canadian Forces to Somalia'.
12 BGEN BLANCHETTE: What page,
13please?
14 Q. 1199 at the bottom. That's
15the only chapter I produced. The Commission was
16seriously concerned that -- or concluded that the
17Department of National Defence had not exercised
18complete openness and transparency with respect to
19the production of documents and they produced an
20entire chapter about that. They expressed their
21concerns about the accountability of the military
22and its failure to comply with several orders for
23disclosure.
24 I was wondering: Has anyone in
25the Canadian Forces and Department of National
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1Defence considered some of that history in the
2context of this proceeding?
3 BGEN BLANCHETTE: Je ne saurais
4te répondre --
5 MR. PRÉFONTAINE: It will be
6difficult for the witness to answer a corporate
7question. That is to say, the question was B-
8 MR. CHAMP: I asked him if he was
9aware.
10 MR. PREFONTAIN: He can speak to
11his personal knowledge, but he can't go any
12further.
13 BGEN BLANCHETTE: Pouvez-vous me
14répéter votre question s'il vous plaît?
15 THE CHAIRPERSON: I think if you
16just rephrase. I am okay with the question, but
17just rephrase it.
18 MR. CHAMP:
20I am wondering if you are aware of any discussions
21or concerns within the Department of National
22Defence or the Canadian Forces that perhaps similar
23concerns might now be raised in the public's mind
24about the willingness of the Canadian Forces to
25co-operate with an inquiry into its conduct. Have
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1you heard any concerns about that?
2 BGEN BLANCHETTE: Non. Je n'ai
3connaissance d'aucune discussion qui a eu lieu
4entre ce que vous me décrivez dans ce document sur
5la Commission de la Somalie et du travail ou des
6responsabilités actuelles que j'ai dans mon poste
7de Directeur général des opérations.
9if you turn to page 1241 of the document, you will
10see it is about a 25-page chapter all dealing with,
11again, openness and disclosure of documents. Here
12the Commission says:
13 "The effect of our work of
14 the shortcomings in the
15 production of documents
16 cannot be overstated. We
17 depended on the receipt of
18 accurate information from the
19 Department on a timely basis
20 to be able to decide which
21 issues to investigate and how
22 the hearings were to be
23 conducted. The fact that the
24 production was not timely and
25 the documents were incomplete
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1 to such a large extent meant
2 that the work of the inquiry
3 was delayed and that our
4 staff were constantly
5 occupied with document
6 related issues.' (As read)
7 Brigadier-General Blanchette, I
8would suggest to you that at least from the
9public's mind, there is that concern again. Do you
10have a concern that the --
11 MR. PRÉFONTAINE: I am not sure
12how a commission of inquiry's report and the public
13minds are equated.
14 MR. CHAMP: I am asking
15Brigadier-General Blanchette if he is concerned
16about what the public's perception might be about
17the willingness of the Canadian Forces to
18co-operate and produce documents to this inquiry.
19 THE CHAIRPERSON: Please answer.
20 BGEN BLANCHETTE: J'ai, comme
21officier des Forces armées canadiennes, toujours à
22coeur qu'est-ce que le public canadien peut penser
23des opérations que nous menons, de ce que les
24hommes et femmes des Forces canadiennes font sur le
25terrain et de la capacité des commissions de faire
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1leur travail.
2 De façon personnelle, c'est
3certain que j'ai ceci à coeur. Il n'y a aucun
4doute dans mon esprit.
5 Cependant, votre question semble
6se diriger vers le fait que nous n'ayons pas
7fournis les documents à temps ou que nous ne
8l'ayons pas fait de façon adéquate et je m'objecte
9à cette prémisse parce que, selon moi, les Forces
10canadiennes et certainement les personnes qui
11travaillent pour moi dans ce dossier, ont fait ce
12qu'ils avaient à faire.
13 Et de faire un parallèle avec ce
14qui a pu se passer durant la Commission d'enquête
15de la Somalie, je trouve que c'est un parallèle qui
16n'a probablement pas sa place parce que nous avons
17fait ce que nous avions à faire.
18 C'est l'évaluation que je fais
19certainement, et je crois que le public canadien
20s'intéresse d'autant plus à la sécurité de nos
21troupes que sur la façon que nous -- ou au moins
22tout autant que la façon que nous devons nous
23préparer pour s'assurer que le travail de la
24Commission est fait.
25 J'ai mentionné auparavant qu'il
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1s'agit de trouver un équilibre et cet équilibre a
2été certainement atteint avec ce que j'ai vu du
3travail et des gens qui travaillent pour moi, et
4des efforts qui ont été fournis pour s'assurer que
5vous ayez les documents à temps.
6 Mais c'est un travail herculéen
7que de mettre sur pied tout ce qui doit être fait
8pour produire ces documents et avoir les
9consultations interministérielles dont vous allez
10réentendre parler plus tard, car c'est difficile à
11faire.
12 Ce n'est pas une tâche simple que
13de s'assurer de la sécurité de nos gens, tout en
14s'assurant que vous ayez le maximum d'information
15pour que la Commission puisse faire son travail.
16 MR. CHAMP:
18my clients filed two complaints to the Commission.
19One was in February of 2007 and the second was in
20June of 2008. So here we are now well past three
21years from the first and now closing in on two
22years from the second, and it looks like this
23Commission is going to be adjourned again for a
24long period of time. That's just the way it goes
25and we should just continue to wait another year
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1for a full hearing until the department has
2produced the documents?
3 BGEN BLANCHETTE: Je ne suis pas
4sûr si vous m'avez posé une question.
5 Q. Do you at least appreciate
6the concerns that my clients may have that maybe
7there has been some foot-dragging on the part of
8the Canadian Forces in producing documents? It has
9been three years.
10 BGEN BLANCHETTE: Alors vous me
11demandez?
12 MR. PRÉFONTAINE: Sorry. In
13fairness to the witness, the first complaint three
14years ago was declared to be outside of this
15Commission's mandate by the Federal Court in
16September of 2009. But for this unfortunate
17detour, the real date at which this Commission
18should have started this work was June of 2008.
19 MR. CHAMP: Actually, Mr.
20Préfontaine has been providing a great deal of
21evidence and I would be more than happy if he
22wishes to put himself forward as a witness. I
23would have a few questions for him if he did want
24to provide himself as a witness because he clearly
25has a view of the timeline of this. But I think
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1the Commission is aware, if you look at the two
2complaints, there is a high degree of similarity
3between the two and that is why the two complaints
4were joined in the period of time.
5 THE CHAIRPERSON: I am okay with
6the question. Proceed.
7 MR. CHAMP:
9I am just suggesting to you that it has been
10roughly three years that the Commission has been
11looking at these issues and until just the last
12couple of months, there have been no real documents
13produced from my clients' perspective. Would you
14at least appreciate from my clients' perspective
15that perhaps the process isn't working so well?
16 BGEN BLANCHETTE: Je considère que
17tout est relatif. La question du temps,
18l'évaluation du temps que vous faites sur une
19échelle temporelle de trois (3) ans peut donner
20cette impression comme vous l'avez décrite.
21 Cependant, il faut regarder
22l'ensemble des facteurs pour déterminer quelle a
23été la qualité du travail abattu par ceux qui se
24sont impliqués dans ce dossier.
25 Je suis arrivé relativement sur le
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1tard dans cette question, mais quand je suis arrivé
2en poste, j'ai certainement reçu les explications
3du chef d'état major de la défense à l'effet que
4nous devions faire tout ce qui était dans notre
5pouvoir pour que le travail s'accomplisse de la
6manière la plus rapide possible.
7 J'ai été introduit sur l'ensemble
8des dossiers dont je suis responsable, c'est-à-dire
9les 16 opérations qui étaient en cours à ce
10moment-là, la planification que nous avions à faire
11pour le départ de nos troupes d'Afghanistan, la
12lancée que nous avions pour les Jeux Olympiques et
13lorsqu'est arrivé janvier dernier, le travail que
14nous avons accompli pour le déploiement d'une force
15interarmée en Haïti.
16 Alors quand vous considérerez la
17quantité de tâches que nous avons à accomplir, vous
18vous rendrez certainement compte que nous devons
19mettre la priorité aux bons endroits.
20 Et une des priorités qui avait été
21nommée et qui avait été bien précisée à mon égard
22par mon patron immédiat et par le chef de la
23Défense nationale, c'était justement cette
24Commission.
25 Mon prédécesseur au même grade,
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1qui était le Général Champagne, m'a bien dit dans
2le bureau:
3 "Il faut absolument se
4 concentrer sur cette
5 Commission, parce que c'est
6 très important aux yeux du
7 publique. Il faut faire en
8 sorte que nous soyons prêts à
9 répondre aux questions qui
10 vont nous être posées. Il
11 faut que les bons documents
12 aillent au bon endroit avec
13 une assurance que nos soldats
14 seront protégés sur le
15 théâtre opérationnel.'
16 Alors quand vous regardez
17l'ensemble de cette situation, je suis tout à fait
18persuadé que nous avons fait ce qu'il fallait pour
19y répondre.
20 Maintenant, quand vous utilisez le
21terme de "trois années depuis que la plainte a été
22faite', les Forces canadiennes ne sont pas
23responsables des difficultés qui existent avec le
24niveau, bien sûr, de coordination qui est requis
25pour les discussions internes ministérielles, pour
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1le défi qui existe à faire en sorte que ces
2informations qui doivent sortir an jour au public,
3pour faire en sorte que ces informations-là ne
4portent pas préjudice à la sécurité de nos soldats.
5 Nos soldats font vraiment le
6travail qui est nécessaire dans le terrain. C'est
7notre responsabilité, c'est ma responsabilité comme
8chef militaire de m'assurer qu'ils vont continuer à
9être protégés de façon à ce qu'ils puissent revenir
10au Canada et prendre les tâches que nous allons
11continuer à leur donner dans le futur.
13I appreciate that the Canadian Forces and your team
14in particular are extremely busy and no doubt new
15tasks are being put on your plate all the time.
16One task, I gather, that is on your plate now is
17gathering and providing documents to Mr. Iacobucci
18and his work?
19 BGEN BLANCHETTE: La
20responsabilité de ce qui se passe avec le processus
21de M. Iacobucci est distinct de ce que nous
22discutons ici. Je n'ai pas la responsabilité
23immédiate de fournir ces documents.
24 Mais IST, de par la présence du
25Major Gagnon ici à mes côtés, peut être impliqué
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1dans ces dossiers, comme APHST aussi peut être
2occupés.
3 Lorsque vous êtes un chef
4militaire, vous comprenez rapidement qu'il faut
5toujours savoir qu'est-ce qu'on attend de nous,
6qu'est-ce qui est requis comme tâches, quelle est
7la mission.
8 Et lorsque la mission est
9clairement énoncée, c'est beaucoup plus facile de
10savoir quel est le nombre de troupes -- En anglais,
11le terme utilisé est "troop to task ratio'.
12 You have to make sure you have
13enough forces to do the job at hand.
14 Et cette situation-là, dans le cas
15présent, peut être relativement flou. On n'est pas
16certain de la quantité de travail à abattre parce
17qu'on ne sait pas les demandes qui vont nous
18arriver.
19 Lorsqu'il y a eu des changements,
20nous avons passé d'une équipe d'IST avec cinq
21personnes jusqu'à une équipe de sept personnes.
22 APHST a été ajusté, ça a joué
23entre douze personnes jusqu'à quatre personnes.
24 Maintenant que M. Iacobucci va
25demander des informations supplémentaires ou
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1demande, je peux utiliser le temps présent, il va y
2avoir des ajustements de faits.
3 Le chef de la Défense nationale
4veut que nous ayons les équipes agiles, qui soient
5prêtes à répondre aux questions et à répondre aux
6tâches qui nous sont données, parce que c'est
7l'appui dont la Commission peut avoir besoin.
8 Q. If I get your answer
9correctly, the IST and APHST is busy gathering
10documents from Mr. Iacobucci as well?
11 BGEN BLANCHETTE: Effectivement.
12Je ne saurais vous décrire avec précision le
13travail qui est accompli par APHST, mais je peux
14effectivement me renseigner et vous donner des
15informations supplémentaires à cet avis, sur ce
16sujet.
17 Q. Major Gagnon, do you have any
18information on that? Is that taking up some of
19their time?
20 MAJ GAGNON: Not at this moment.
21We have met with the Commission just to introduce
22ourselves and to describe somewhat the process that
23has happened. But until the Commission has
24identified to us what exactly is the document they
25need, we will stand by.
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1 Q. And when you say the
2Commission, you are referring to Mr. Iacobucci, the
3private individual?
5 Q. And it is IST and AFHST who
6will be working to assist and gather any documents?
7 MAJ GAGNON: APHST will be doing
8the collection once again.
9 Q. Is APHST going to be getting
10any more people or any more staff for that task?
11 BGEN BLANCHETTE: Lorsque je vous
12ai expliqué tout à l’heure quelle était la façon de
13procéder, j’ai mis l’accent sur le fait que nous
14devons connaître la mission, savoir quelle est la
15quantité de documents qui doivent être ramassés,
16qui doivent être colligés, qu’est-ce que nous
17devons faire avec cette information-là, quel est le
18processus et quelles seront les étapes de
19consultation.
20 Une fois qu’on a une meilleur idée
21de la tâche à accomplir, là on peut mettre en
22batterie les ressources qui sont nécessaires pour
23remplir la tâche de la manière la plus efficace
24possible.
25 MR. CHAMP: Thus far, in your
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1view, Brigadier-General Blanchette, your team and
2APHST has been performing their duties as
3effectively as possible? As effectively and
4efficiently as possible?
5 BGEN BLANCHETTE: Yes, sir.
7there was the bound volume of correspondence that
8was provided to you this morning. I would like to
9take you to tab 6, sir, which is the summons that
10was served upon you.
11 THE CHAIRPERSON: Volume 1, tab 2?
12 MR. CHAMP: Yes, sir.
13 Q. This is your summons. How
14are you updated or from whom are you updated on the
15progress of this matter of these documents being
16provided? Who is your contact person? Is it Major
17Gagnon?
18 BGEN BLANCHETTE: Il est juste à
19côté de moi.
20 Q. At number 6 you will see all
21detainee transfer records from May 3, 2007 to June
2212, 2008 as signed by the TF Commander or his
23delegate. To my knowledge, those documents have
24not been produced yet. Indeed, those were
25documents requested back in November 2008, February
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12009, the first summons, the subsequent summons.
2Do you have any knowledge of where those documents
3are at in the process?
4 BGEN BLANCHETTE: Je peux demander
5au Major Gagnon qu’il me donne le compte rendu le
6plus à jour sur cette situation.
8earlier, sir, we did all due diligence to find said
9documents. If there was a case where we were told,
10they have looked, they have inquired and they have
11found nothing. Then we advise the Commission that
12we have found nothing based on what the summons was
13asking for.
14 MR. CHAMP: It is a simple
15one-line sentence: All detainee transfer records
16from May 3, 2007 to June 12, 2008 as signed by the
17TF Commander or his delegate. Just on that, and if
18you look back -- I will ask the question of Major
19Gagnon, General Blanchette, as he may have better
20knowledge.
21 Major Gagnon, if you have an
22opportunity to look at that bound document at tab
234, you have the letter of February 18, 2009 to Mr.
24Préfontaine here. If you go to Schedule A of that
25letter, the very first category of document, the
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1original request date they say there is 11/19/2008,
2November 19, 2008, and it says, "All detainee
3transfer records from April 2006 to June 12, 2008,"
4signed by TF Commander.
5 So this is the same request that
6was made throughout. I am just wondering: Do you
7have any knowledge about, specific knowledge --
8have all those documents been gathered now? Do you
9know?
11earlier, we have looked for all these documents.
12What you are presenting to me is what we refer
13normally as the request 1 that has been superseded
14by the summons that you have in tab 6 which
15includes the judicial review.
16 Q. What is the relevance of the
17judicial review?
18 MAJ GAGNON: It is the one that
19provides that the MPCC reissued the summons to
20General Blanchette with the new parameter that was
21established within that decision. So for us the
22current document by which we are seeking documents
23is the summons in six.
24 Q. I appreciate that perhaps
25some of the requests were changed somewhat, but
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1this particular one that I am asking about, Major
2Gagnon, didn't change at all. It is almost the
3exact same language going back to not simply
4February 2009, but November 2008. It is all the
5way throughout. Judicial review did not change the
6nature or description of that request. Perhaps
7actually just by month. Instead of April 2006, it
8is May 2007. So if anything, it has shrunk.
9 MAJ GAGNON: Exactly. It is
10meeting what the judicial review has established as
11the timeline.
12 Q. Right. So where are they?
13 MAJ GAGNON: Some of them may
14still be in theatre, sir, and that was an issue
15that was identified to the Commission, that based
16on the current tempo of operations of our soldiers
17and all the associated staff that are in theatre,
18the ability to search and find documents was
19extremely limited and very difficult. In terms of
20efficiencies and helping the Commission proceed on
21time, I was made aware at the time that we were not
22to go and get all those documents because of the
23difficulties to get them.
24 Q. You were told not to go get
25them because of the difficulties in obtaining them?
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1Is that it?
2 MAJ GAGNON: Let me rephrase that
3to make sure I expressed myself correctly.
4 Q. Please.
5 MAJ GAGNON: We had documents both
6in theatre and in Canada. All the documents in
7Canada, I am pretty confident we found them. The
8documents in theatre are far more difficult to find
9because of the constant rotation of our personnel,
10and plus with the current tempo of operations, they
11don't have the ability, as expressed earlier, to
12dedicate the proper troops to task in order to
13properly identify all those documents that may be
14co-located with many other documents in the storage
15area.
16 Q. Sorry, I am trying to
17understand. Can you tell us again? The request
18was made to theatre to try to get those documents?
19Yes?
20 MAJ GAGNON: My understanding,
21yes.
22 Q. And that would be APHST
23trying to request those documents?
24 MAJ GAGNON: Through CEFCOM.
25 Q. Who is the contact in CEFCOM
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1dealing with that? Do you know?
2 MAJ GAGNON: I don't have a name,
3sir.
4 MR. CHAMP: Sorry, what is the
5response then back? To your knowledge, it would
6take too long to get them or it would be too
7difficult to obtain them?
8 MAJ GAGNON: Just to explain, they
9are basically all in a big storage bin all mixed
10with other administrative and you have multiple
11rotations in there. In order for someone just to
12go in and catalogue all the documents that are in
13one of those container may take a year or more, and
14you have nine rotations now that have been in
15theatre.
16 Q. This isn't nine rotations.
17This is three rotations, I guess, covering -B now
18we are in five and six. Two rotations?
19 MAJ GAGNON: They are not marked,
20the rotations. They are all together.
21 Q. Yes, but if I look at the
22timeline, May 3, 2007 to June 12, 2008, I am sure
23we could probably figure out the rotations fairly
24quickly, could we not, Major Gagnon?
25 MAJ GAGNON: You are certainly
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1right, we can identify the rotation. The point
2that I am expressing is that all the documents are
3not nicely filed per rotation. They are all thrown
4together in a storage bin, or in this case what we
5call a sea container. So we really have literally
6a sea container full of documents that covers the
7entire rotation, for everything that has happened
8in this rotation, not just dedicated to detainees.
9That is what I was expressing, that if you need to
10go in a catalogue everything that is in one of
11those sea containers, you may find yourself having
12to spend years going through to do that
13cataloguing, just to identify the documents you are
14asking about right here. That was identified to
15the Commission.
16 Q. I am not sure if I follow yet
17exactly then where -- I understand that maybe that
18was the work that would be required to obtain them.
19I am not sure if I understand yet where that search
20is at, but I will get back to that.
21 Major Gagnon, just so you
22understand, just by coincidence actually my clients
23requested these documents a couple of times just
24over the last months saying, "These seem like
25relevant documents that we should get." We had no
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1idea that they had been requested quite some time
2ago by the Commission. Our understanding of these
3records is that they would show the risk assessment
4matrix that was considered by each commander,
5whether it is the commander or the acting
6commander, when he made the decision to transfer.
7 So these documents, I would
8understand, then, Major Gagnon, would be the only
9records that the Canadian Forces would have that
10show why the commander considered or what the
11commander considered the risk of torture to be for
12any particular detainee. These are the only
13records that the Canadian Forces would have. Is
14that correct?
15 MAJ GAGNON: They are part of the
16records that are used for the commander to make his
17decision. However, especially when you are talking
18matrix, you are now getting into information that
19we have put claims on.
20 Q. But the detainee transfer
21order records would have that information, the risk
22assessment matrix, would it not?
23 MAJ GAGNON: I don't know because
24I have never seen an actual matrix that you are
25mentioning. Otherwise, as I said, most likely
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1there would have been sensitive information we may
2have wanted to protect.
3 Q. So if that information was in
4Ottawa, no doubt you would have seen it by now. Is
5that right?
6 MAJ GAGNON: If it was there.
7 Q. And you say you have not seen
8documents like that yet, that show the risk
9assessment for each particular detainee. Correct?
11 Q. So it is safe for us to
12assume then that those documents are not in Ottawa.
13Is that right?
14 MAJ GAGNON: That would be a good
15guess, sir.
16 Q. So transfers have been going
17on now for five-odd years and the documents that
18would demonstrate how the commander assessed the
19risk of torture for each particular detainee, those
20documents are not even in Ottawa at this point. Is
21that right?
22 MAJ GAGNON: If you are talking
23about the actual individual document that the
24commander gives to make a decision, you are
25correct.
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1 Q. The actual documents that
2relate to detainees who diplomats later interviewed
3and were told had been tortured, who had signs on
4them that they were tortured, and they found the
5torture points, those individuals, the transfer
6decision, that document is not even in Ottawa.
7Correct?
8 MAJ GAGNON: I was specifying that
9detainee documents other than the ones you are
10mentioning or you keep referring to are transferred
11to CEFCOM. So we have seen all the documents that
12are linked to a detainee up to the transfer point.
13But the actual decision matrix that you are
14referring to we don't have.
15 Q. That's right. So CEFCOM
16would not know, has no record of why in the end the
17commander made a decision to transfer or not
18transfer; correct?
19 MAJ GAGNON: That would be a fair
20assumption, sir.
21 Q. Let's go back then a little.
22So my original question is: Where is the search at
23to obtain these documents? They are in these sea
24containers, you tell me. Do you know what the
25efforts have been to obtain those documents?
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1 MAJ GAGNON: They have sent a team
2to make just an estimate of how much time we will
3take to go through them.
4 Q. You sent a team or someone
5sent team?
6 MAJ GAGNON: CEFCOM.
7 Q. CEFCOM sent a team?
8 MAJ GAGNON: As the responsible
9authority.
10 Q. When did CEFCOM do that? Do
11you know?
12 MAJ GAGNON: No, I don't.
13 Q. Was it in 2009 or 2010?
14 MAJ GAGNON: I just said, sir, I
15don't know.
16 Q. But you are aware of it now.
17How did you become aware of that information?
18 MAJ GAGNON: Through the
19discussion at the APHST team,
20 Q. In preparation for your
21testimony today?
22 MAJ GAGNON: Not at all.
23 Q. So at some point in the past
24the topic has come up in your discussions at the
25APHST team that CEFCOM has tasked someone or some
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1team to go to Afghanistan and look to see how long
2it might take to find these documents?
3 MAJ GAGNON: Yes, sir. It is also
4part of our process just to properly catalogue
5everything we have. We still have to do that
6regardless of this report, sir.
7 Q. Just so I understand, you
8have no timeline then on when those documents might
9be produced. Is that fair to say?
11 Q. None?
12 MAJ GAGNON: Based on this, no.
13 Q. Major Gagnon, here is another
14question that I had: At APHST, is there anyone who
15is a military police officer who is a member of
16APHST?
17 MAJ GAGNON: No.
18 Q. Is there anybody who is a
19member of the Information Support Team who is a
20military police officer?
21 MAJ GAGNON: No policemen,
22military police working in my organization.
23 Q. As I understand, what you
24were testifying earlier is that it is basically you
25yourself who makes the decision of whether a
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1document was available to a military police officer
2or not. Is that fair?
3 MAJ GAGNON: Well, I will precise
4it. As I mentioned earlier, always assisted by
5members from the JAG and CFLA that will challenge
6me on any of those decisions prior to making the
7recommendation.
8 Q. And so they would challenge
9you where you would say, "I don't think this would
10have been available to a military police officer,"
11and they would challenge you saying, "Well, have
12you thought about this or thought about that? They
13could have been available." Is that correct?
15 Q. Did you ever consider
16consulting with a military police officer on what
17his or her view might be of whether a document
18could be available to a military police officer?
20 Q. So it is fair to say that
21there has been no military policing sort of
22approach brought to the screening out of those
23documents?
24 MAJ GAGNON: If we are talking
25about the responsiveness at the NSG, you are
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1correct, sir. If you are talking all the APHST
2work, I failed to mention that we have a
3coordination meeting every week and a
4representative from the CF Provost Marshal is
5always present.
6 Q. A representative from the
7Canadian Forces Provost Marshal is always present.
8 Major Gagnon, I missed this. How
9long have you been associated with the IST?
10 MAJ GAGNON: Since the summer of
112008.
12 Q. So shortly after the second
13complaint of June 12, 2008 was filed; correct?
14 MAJ GAGNON: That would be
15correct.
16 Q. And I guess shortly or almost
17immediately after you being assigned to the IST,
18you were involved with these matters of reviewing
19and producing documents to the Military Police
20Complaints Commission. Correct?
21 MAJ GAGNON: Correct.
22 Q. I think you had already
23testified that you had in fact read the complaints
24and were aware of their content?
25 MAJ GAGNON: Yes, I am aware of
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1the contents.
2 Q. One question I had, Major
3Gagnon, then is: The second complaint coming in
4June 12, 2008, being concerned with specific
5detainee transfer decisions and then ultimately
6your request in November 2008 to produce to
7detainee transfer order records, I am wondering why
8-- or did anyone, I guess, yourself or anyone you
9were working with, between June 2008 or November
102008 think those might be documents that we should
11ask the rotations to hold on to rather than
12sticking away in the sea container? Those might be
13documents that we might have to produce to the
14Military Police Complaints Commission at some time?
15Was there any kind of discussion like that?
16 MAJ GAGNON: We understood right
17away that we would need documents out of theatre.
18As I mentioned earlier, based on the operational
19tempo over there and the multitude of other
20taskings that were happening, they were aware that
21it would be extremely difficult to get documents
22out of theatre, especially when considering that we
23were looking for documents that may have been going
24back to 2006.
25 Q. But given that the complaint
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1was up to June 2008, you were just coming in in the
2summer of 2008. The 2006 documents may be a couple
3years old, but at least the 2008 documents,
4arguably, could have been relatively close at hand
5at that time. I appreciate now we are two years
6later and it might be harder to find those
7documents two years later, but what I am asking you
8is: In 2008 did it occur to anyone that maybe
9those might be documents that should be secured?
10 MAJ GAGNON: It might have, but
11remember at the time we already had started the
12section 38 process and as such we were limited on
13our -- sorry, let me rephrase that. We had stopped
14providing documents until we went through the
15formal legal process.
16 Q. Major Gagnon, there were no
17documents produced at all until October 2009. I am
18wondering, from the -- let's call it the first
19request, February 2009 to October-November 2009,
20you indicated that the delay was caused by the
21section 38 process. Was that the only cause of
22delay?
23 MAJ GAGNON: It was our main
24concern.
25 Q. It was your main concern. I
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1know there were judicial review proceedings
2outstanding and there was a possibility that both
3complaints might be quashed and this whole
4proceeding might be over. Did that enter into your
5mind at all over that period of time?
6 MAJ GAGNON: It was a possibility,
7sir, but in fact we doubled our efforts during that
8time to go through the documents instead of
9anything else.
10 Q. When did you double your
11efforts, sir?
12 MAJ GAGNON: During the same
13period where the judicial review happened we were
14spending eight hours a day in the NSG.
15 Q. So the rate of documents that
16we have received thus far, we should expect that
17will continue to be the rate at which we will
18receive documents. Is that fair to say?
19 MAJ GAGNON: Sir, you are asking
20me a hypothetical question that is based on what
21documents are going to be asked for in the future,
22what type of documents that we have right now, and
23I cannot give you an answer like that.
24 Q. Based on the documents and
25the requests that you already have --
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1 MAJ GAGNON: Which one? Those
2documents that are also with the Department of
3Foreign Affairs? With the Correction Service
4Canada?
5 Q. No, all documents that are
6with your department, sir, Canadian Forces and
7Department of National Defence. For those
8documents, is it fair to say that we might be
9looking at another nine to ten months at least to
10get all of those documents? Is that fair to say?
11 MAJ GAGNON: No, sir, that is not.
12 Q. What sort of time frame are
13we looking at?
14 MAJ GAGNON: Again, it is a
15question of the tempo and the type of document.
16The documents I mentioned earlier are also part of
17what are considered documents to be provided. When
18we reach the NSG level, this is an
19interdepartmental effort, so we have to look at all
20the other departments’ documents.
21 Q. So you are reviewing the
22DFAIT documents as well, is what you are saying?
24 Q. Even from that perspective,
25then, is nine or ten months from now a reasonable
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1expectation of time of when we will get all the
2requests from DFAIT and Department of National
3Defence?
4 MAJ GAGNON: Again, sir, you are
5asking me a question that I cannot give you an
6answer.
7 Q. Why can't you answer that?
8You have produced some. You have been through it.
9You have been in the Information Support Team since
10the summer of 2008. You are coming up on two years
11in the position. You worked all of last year in
12producing documents. You produced a large number
13of documents and given that rate, I am wondering,
14do you have any estimate -- on the requests that
15are outstanding right now, how much longer is it
16going to take?
17 MAJ GAGNON: As I said, sir, it
18depends on the type of document, what the content,
19the type of information we find in these documents
20since we are reading every single document, and we
21go very quickly over each of them. So, again, my
22answer stands; I cannot give you a timeline.
23 Q. So you don't know. So when I
24said nine to ten months, you said that wasn't
25reasonable. Maybe it is. You don't know. Is that
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1fair to say? It could be nine or ten months based
2on what you are telling me now.
3 MAJ GAGNON: Again, it all depends
4on the type of document and the quantities of
5documents being requested.
6 Q. So, yes, it could be ten
7months?
8 MAJ GAGNON: As I said before,
9sir, it may or may not.
10 Q. Just one or two more
11questions, and I will ask them all of Major Gagnon.
12 Major Gagnon, in your role as
13liaison with the NSG and the challenge function you
14are performing there, which side is generally
15making the greater claim? Which side is
16recommending more redactions? Is it NSG or is it
17Department of National Defence?
18 MS RICHARDS: That information
19can't be disclosed in a public forum. That would
20disclose sensitive information.
21 MR. CHAMP: How so?
22 MR. PRÉFONTAINE: Because
23identifying the source of the information
24identifies the types of concern, and therefore
25relates to the injury.
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1 MR. CHAMP: I am not asking for
2the source. I am asking for --
3 MR. PRÉFONTAINE: Yes, you have.
4You have asked the witness to identify who was
5making the most claims.
6 MR. CHAMP: Correct, yes. Is it
7Department of National Defence or is it the
8Department of Justice? Is he sending over
9documents that the Department of National Defence
10thinks is fine, and the Department of Justice says,
11"No, we don't think so?" I don't see how that is
12solicitor-client privilege or in any way impacts on
13the operational security of soldiers in
14Afghanistan.
15 MR. PRÉFONTAINE: That is because
16Mr. --
17 THE CHAIRPERSON: One at a time.
18 MR. PRÉFONTAINE: -- has
19construed. The Department of Justice doesn't make
20claims. Claims come from the stakeholders, the
21line departments, Foreign Affairs or DND. The role
22of the Department of Justice is to perform a
23challenge function to ensure that the claims are
24viable. That has been described by the witnesses.
25So identifying who is the source of the claim, that
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1is to say, attributing the majority of claims to
2either the Department of National Defence or the
3Department of Foreign Affairs, will ipso facto
4identify the concern, injury to international
5relations or injury to national defence, which is
6precisely why this witness cannot ask without
7causing the prejudice section 38 seeks to avoid.
8 MR. CHAMP: Given that I am not
9asking in relation to any specific document, I
10don't know how that puts it at risk.
11 MR. PRÉFONTAINE: You have our
12objection. It is a section 38 objection which
13means that the witness is not at liberty to answer.
14 THE CHAIRPERSON: Mr. Lunau.
15 MR. LUNAU: I was hoping I could
16kind of sneak by here without having to get
17involved. Frankly, I don't really know what to
18say. I have difficulty seeing how in the light of
19the fact we have had extensive evidence this
20morning about section 38, the role of DND in
21reviewing the redactions and sending them to the
22National Security Group -- I have a little
23difficulty in seeing what is injurious about Mr.
24Champ's question.
25 MR. CHAMP: I accept, Mr. Chair,
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1now that the objection has been made by my friends,
2Mr. Préfontaine and Ms Richards, that it would be
3injurious to national defence or national security
4for us to know whether Department of Justice or
5Department of National Defence are making
6redactions. Once they have raised that objection,
7unfortunately I don't think this Commission can
8make a ruling on that.
9 THE CHAIRPERSON: I agree, and I
10will not allow the question.
11 MR. CHAMP: Major Gagnon and
12Brigadier-General Blanchette, those are all the
13questions that I have for you today. Thank you.
14 THE CHAIRPERSON: Mr. Wallace.
15 MR. WALLACE: Thank you, Mr.
16Chair.
17CROSS-EXAMINATION BY MR. WALLACE:
18 Q. Gentlemen, my name is Mark
19Wallace. I am the lawyer for Steven Moore, retired
20naval captain, who is the former Canadian Forces
21Provost Marshal.
22 My interest this afternoon
23primarily is in the area of relevance. For
24practical reasons, I will address my questions to
25Major Gagnon because I think you are more familiar
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1with the actual process here, and that is really
2what I am interested in.
3 Just by way of background --
4 THE CHAIRPERSON: Excuse me, Mr.
5Wallace. Major, you will have to move up a little
6bit to the mike if you could, please. Thank you.
7 MR. WALLACE: Major, relatively
8speaking to the rest of the folks at the counsel
9table, I came a little late to this process. I got
10involved in July of 2009. The first summons that I
11looked at with any closeness is the one the 21st of
12October to Brigadier-General Blanchette. I want to
13use that as my foundation here.
14 As far as the process in terms of
15gathering the documents, the first thing that has
16to happen is a summons has to be issued. Correct?
17 MAJ GAGNON: Correct, sir.
18 Q. When the summons is issued,
19do you actually see it yourself?
20 MAJ GAGNON: The summons normally
21goes through our civil litigator, in this case, Mr.
22Préfontaine or Ms Richard, who then will
23communicate to APHST. They are our first point of
24contact, that we will then start looking at the
25document. It is at that time when we see it.
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1 Q. But at some point in time you
2do actually see the summons, correct?
3 MAJ GAGNON: Some of them, yes,
4sir.
5 Q. We will deal with this one
6here, the one dated the 21st of October 2009. Did
7you see that document?
8 MAJ GAGNON: Yes, I have.
9 Q. The APHST office, they have
10to then send out requests for documents. Correct?
11 MAJ GAGNON: Yes, they do, sir.
12 Q. They would send out the
13request to -- I am not sure I am using the right
14term -- various departments within National
15Defence, various units within National Defence?
16 MAJ GAGNON: Yes, sir, that is
17what we normally refer to as level 1, which is the
18level of command like the Canadian Expeditionary
19Force command, Canada command, the Canadian
20operational support command, the Canadian operation
21force command, the army, the navy, the air force.
22Those are all what we call level 1s.
23 Q. With respect to documents
24that you would think logically would lie in
25Afghanistan, would you send that request to CEFCOM
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1or would you send it to the task force in
2Afghanistan?
3 MAJ GAGNON: We will send it to
4CEFCOM which is the operational authority for the
5task force.
6 Q. On the assumption that the
7request will make its way into the proper hands?
9 Q. When the request is made for
10information, is the actual summons transmitted? In
11this case here, it has a little over five pages
12worth of information that is being requested. What
13I would like to know is -- for example, if we stick
14with CEFCOM, are the five pages transmitted to
15CEFCOM?
16 MAJ GAGNON: I am not involved
17with the day-to-day operations of the APHST, so it
18is difficult for me to provide you with a clear
19answer.
20 Q. But someone from APHST would
21be the person who would send this request out?
23 Q. You may know this, then. Do
24you know if there is a preliminary screening
25process that takes place at APHST prior to the
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1request for information going out? Do you
2understand what I am asking you?
3 MAJ GAGNON: Screening in what
4aspect, sir?
5 Q. For relevance.
6 MAJ GAGNON: How will they do that
7if they don't have the documents?
8 Q. I want to establish that to
9be the case. Do you know if there is any
10preliminary screening process? For example, I am
11going to use number six on the summons here,
12because it has been spoken of a couple of times.
13That is at tab 6.
14 MAJ GAGNON: Annex A.
15 Q. You have it?
17 Q. It is asking there for, as
18you can see, all detainee transfer order records
19from May 3, 2007 to June 12, 2008 as signed by the
20task force commander or his delegate. Is it your
21understanding that there would be some sort of a
22determination made in advance that this class of
23documents is not relevant?
25 Q. Because what has me confused
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1here is, as I understood your evidence this
2afternoon, those documents that you presume exist
3have not been located. Is that a fair statement?
4 MAJ GAGNON: It is a fair
5statement in which we have a good -- I don't know
6where they may be, but we have not been able -- we
7haven't been able to even put them in power to try
8to locate them at this moment.
9 Q. The reason I am asking about
10whether there is a predetermination of relevancy is
11that on the document that Mr. Champ made reference
12to, which is the letter of May 14th, tab 4, from
13Mr. Préfontaine to Commission counsel, if you look
14at the chart there --
15 MAJ GAGNON: Pardon me, sir, you
16are talking the 19 February document?
17 Q. 14th of May, 2004.
18 MAJ GAGNON: Is it tab 4?
19 Q. That’s what I have. I think
20maybe we have different indexes.
21 MAJ GAGNON: No problem, sir.
22 Q. I am looking for the letter
23of the 14th of May 2009.
24 MAJ GAGNON: I have it, sir.
25 Q. If you look at Schedule A,
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1line 1.
2 MAJ GAGNON: Yes, sir, I have it.
3 Q. It appears to be the same
4document. As you have seen, the time fame in the
5summons is tightened up to reflect the decision of
6the Federal Court, but it is the same class of
7documents. Correct?
9 Q. But the claim that is being
10made at this stage, at least at that time, is that
11the documents aren't relevant. That is what has me
12confused here.
13 MAJ GAGNON: As we discussed
14earlier, when this document was provided to me,
15there is another one in which the Commission was
16not in agreement with those relevancy. We accepted
17the position of the Commission and we tried to find
18it. And this --
19 Q. Okay, but my point is that it
20appears at least that there was a relevancy
21determination made without reference to the actual
22documents. Is that a fair statement as far as you
23can see? I am open to whatever input you have
24here.
25 MAJ GAGNON: The relevance test
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1that is linked to this document was based on trying
2to identify what was responding to the two
3complaints, and what was known to us should have
4been known by MPs. We make suggestions as a group
5that involved a legal operations expert and I was
6part of that group in which we made those
7recommendations to Mr. Préfontaine, to the
8Commission, which because of what we perceive, that
9may not be relevant. The Commission disagreed with
10us, and we proceed today.
11 Q. My point is that there
12appears to have been, using this as an example, a
13determination of relevancy of a class of documents
14without actually seeing the documents. Is that
15fair?
17 Q. You know from looking here at
18Annex A, the schedule of documents that is being
19requested, if there are other areas where there has
20been a determination of relevancy in the absence of
21the documents?
23 Q. The answer is that you do not
24know or there are not?
25 MAJ GAGNON: From what I am aware
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1of, I have to say, no, sir, I don't think there
2have been any others since.
3 Q. In some case, the documents
4that are being looked for or requested are pretty
5easy to figure out. So, for example, if you drop
6down to number eight, MP technical directives in
7effect from May 3, 2007 to June 12, 2008.
9 Q. You don't have to be an
10expert in military affairs to figure out which
11documents are being looked for here. Correct?
12 MAJ GAGNON: Correct, sir.
13 Q. That is pretty clear on its
14face?
15 THE CHAIRPERSON: Which line
16number are you on, Mr. Wallace?
17 MR. WALLACE: Number eight.
18 MAJ GAGNON: Six and seven.
19 MR. WALLACE: I am on the summons,
20sir. Sorry.
21 THE CHAIRPERSON: So you are at
22number eight?
23 MR. WALLACE: Yes.
24 THE CHAIRPERSON: Thank you.
25 MAJ GAGNON: I am just finding the
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1summons, sir.
2 MR. WALLACE: Okay.
3 MAJ GAGNON: My apologies, which
4tab again?
5 MR. WALLACE: Tab 6, I am told.
6It is the first page of annex --
7 MAJ GAGNON: You are back to the
8General Blanchette summons, number eight?
9 MR. WALLACE: Yes.
10 MAJ GAGNON: I have it, sir.
11 MR. WALLACE:
12 Q. As I have indicated, it is
13pretty clear and not requiring the exercise of any
14discretion to figure out what is being asked for
15here. Correct?
16 MAJ GAGNON: Absolutely correct,
17sir.
18 Q. If we jump up to number five,
19this is a little more subject to interpretation,
20you will agree with me, because it is asking for
21all documents provided to -- and I guess the one
22that is a bit discretionary -- available to or
23authored by, and then it goes on to name various
24people. You would agree with me that this
25category, number five, requires the exercise of
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1some discretion by whoever it is that is going to
2be gathering up to documents?
3 MAJ GAGNON: In some aspects, sir,
4it could identify to us that not only do we have to
5find the documents themselves, but also that we
6will have to seek out from the organization where
7each individual worked at the time, if they have
8any correspondence, documents, e-mails, notebooks
9that may have been either drafted by the
10individuals or received by the individuals that are
11linked to the document requested.
12 Q. But it is also drafted in
13terms of the documents that are available to it.
14It is this discretionary area that I am interested
15in, and my question is: Were there any directions
16given to the people who were asking for the
17documents.
18 MAJ GAGNON: The only direction I
19can think of, sir, is what would have been received
20or sent by the individual.
21 Q. So when you are asking people
22to go out and find documents, the people at CEFCOM
23that you have asked to find the documents in answer
24to paragraph five, you are limiting it -- and if I
25am not stating this right, tell me -- you are
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1limiting it to the documents that the main persons,
2for example, Captain Moore, any documents that he
3either authored of received?
5earlier, sir, this is more of the day-to-day
6process of APHST team. What you are asking now is
7just to give you an understanding of what I
8understand of this process. But a question like
9that would basically be two questions. One would
10be: What document do we have that meets this
11question as a department as a whole? Then what
12does the subject know? And those are all the
13individuals that are named.
14 So we have the question of
15information that the subject may have known, may
16have seen, and then you have the documents
17themselves. Where are they and what do we have to
18produce?
19 Q. My question is: Were these
20directions that you have just described here being
21given to the people who are out there actually
22finding the documents?
23 MAJ GAGNON: As I said, this is
24more of an APHST process. I could not confirm that
25to you.
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1 Q. That is something which you
2really can't tell us?
3 MAJ GAGNON: It is not my
4day-to-day operation, sir.
5 MR. WALLACE: I think the last
6area has been answered already. Those are my
7questions.
8 THE CHAIRPERSON: Mr. Lafontaine,
9Ms Richards.
10 MS RICHARDS: You will have to put
11up with me for this.
12 THE CHAIRPERSON: No problem.
13RE-EXAMINATION BY MS RICHARDS:
14 Q. I want to go back briefly, I
15hope, not to cause any more confusion on the letter
16of May 14, 2009 that you have been taken to with
17the chart regarding relevance. I will try and make
18it very simple.
19 In terms of how the Department of
20National Defence responded to the summonses that
21were issued subsequent to this exchange of
22correspondence in the charts, can you tell us
23whether or not in response to the summons APHST
24refused to collect documents or a category of
25documents based on a view that they were not
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1relevant?
2 MAJ GAGNON: The simple answer is:
3No, we did not refuse or discriminate, for lack of
4a better term, against any categories.
5 Q. Thank you. I also wanted to
6take you back. You had said in answer to some of
7the questions to Mr. Champ about the concerns that
8were expressed about documents that were in theatre
9and in sea containers, as you recall.
10 I apologize, because I don't have
11the same version of documents that you have or an
12index to yours, but I believe if you look at what
13is called volume one of two of the correspondence
14and materials, and I am looking for the letter
15dated November 23rd, which I think is at tab 9. Is
16that correct?
17 MAJ GAGNON: That's correct.
18 Q. If I can ask you to look at
19the second page, down at the bottom paragraph, you
20will see this is a letter from Commission counsel
21to Mr. Préfontaine and myself. It states:
22 "At the meeting you expressed
23 concerns about the apparently
24 large volume of documents
25 that would be responsive to
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1 this summons. You mentioned
2 that compliance would require
3 going through sea containers
4 of documents in Afghanistan,
5 a task that could divert
6 resources from other tasks
7 and which would likely
8 receive a low priority in the
9 operational setting of the
10 theatre." (As read)
11 Is that what you were referring
12to?
13 MAJ GAGNON: Yes, that is what I
14was referring to.
15 THE CHAIRPERSON: Just one moment,
16Ms Richards.
17 MS RICHARDS: Sorry. Tab 9,
18second page.
20 MS RICHARDS:
21 Q. If you could turn over to the
22next page at page 3, if I could get you to look
23towards the bottom again. I am going to start at
24the end of second line of that bottom paragraph:
25 "By reviewing some of the
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1 documents previously provided
2 to the Commission we have
3 acquired sufficient
4 information about the
5 recording of information
6 respecting detainees to be
7 confident that all the
8 information the Commission is
9 requesting can be compiled by
10 relying on CEFCOM records in
11 Ottawa without resort to any
12 of the documents that may be
13 included in the sea
14 containers in Afghanistan."
15 (As read)
16 So when you testified that it was
17your understanding that there was not a requirement
18to go to Afghanistan, is that what you were
19speaking about?
20 MAJ GAGNON: Yes, it was.
21 Q. There are just a few other
22areas that I want to go back and clarify with you
23on some of the evidence. I apologize because I am
24going to be going back through numbers again. I
25apologize for the tedium of talking about numbers
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1and pages of documents.
2 You have been asked a number of
3questions by Commission counsel and Mr. Champ about
4the production of documents between March 8th and
5October 2009, during the last adjournment if you
6recall back.
7 MAJ GAGNON: Yes.
8 Q. In your testimony earlier
9this morning, you referred to the fact that 1,300
10documents had been provided to the Commission
11before they decided to hold a public interest
12hearing. Do you recall that?
13 MAJ GAGNON: Yes, they were
14provided as part of the informal inquiry on Mr.
15Attaran's complaint, which we normally refer to as
16MPCC 1.
17 Q. You had referred in your
18testimony this morning to the fact that after the
19Commission decided to hold public interest
20hearings, a number of those documents that had been
21produced before had to be reviewed for section 38
22privileges?
23 MAJ GAGNON: Yes, the Commission
24sent us those documents for review. We applied the
25section 38 claims, and then sent them back to the
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1Commission.
2 Q. If you have in front of you
3the transcript from April 21st that you referred to
4earlier this morning, if I could ask you to look to
5page 2, and specifically if start at line 14, it
6states:
7 "After the Commission decided
8 to hold a public hearing into
9 that complaint and as well in
10 this complaint but prior to
11 October of 2009, 92 documents
12 which represented
13 approximately 3,500 pages
14 were reviewed for the
15 Commission at the
16 Commission's request, and
17 redacted for public release."
18 (As read)
19 Are those the documents that you
20were speaking about?
21 MAJ GAGNON: Yes.
22 Q. To the best of your knowledge
23is it accurate to say that they were produced to
24the Commission between March 2008 and October 2009?
25 MAJ GAGNON: The final documents
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1were provided to the Commission in May 2009.
2 Q. In terms of the level of
3effort for your team, for APHST in reviewing and
4redacting these documents, can you explain that to
5the Commission?
6 MAJ GAGNON: The level of efforts
7is based as always, as General Blanchette explained
8earlier, on our tasked troop efforts. As documents
9were needed or there was a clear requirement to
10produce documents in a timely fashion, we scaled up
11our efforts and we were spending more time as
12needed to process those documents as quickly and as
13efficiently as possible, while meeting our
14requirement, that balance of ensuring that we are
15protecting the right information to ensure the
16safety of our soldiers in theatre.
17 Q. Maybe I will go back and try
18to be little more specific. We have already heard
19that these were documents that had previously been
20produced to the Commission, and so now your team is
21reviewing them from public release. Is there a lot
22of work involved in that process?
23 MAJ GAGNON: As mentioned earlier,
24we received those documents early in January 2009
25and the last document was produced in May of 2009.
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1So it was a five-month effort to go through all
2those documents.
3 MS RICHARDS: You were also asked
4this morning some questions about the production of
5Canadian Forces documents. Since the adjournment
6in October 2009, and Mr. Lunau has taken you
7through some categories of documents that had been
8produced by the CF, I want to take you -- again, if
9you still have the transcripts in front of you, if
10you can look at page 8 in that same volume from
11April 21st, starting at line 5 where it is stated:
12 "The next item, the documents
13 relevant to the subjects, 319
14 pages that were released to
15 the Commission on January 29,
16 2010." (As read)
17 Are you aware of that package that
18was released?
19 MAJ GAGNON: Yes, I reviewed this
20package.
21 Q. And are you aware whether or
22not those were Canadian Forces documents?
23 MAJ GAGNON: They were all linked
24to the subject.
25 Q. Finally, just in terms of
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1document production, the Chairperson had asked you
2some questions about documents that had been
3produced in the last two months, as you will
4recall, and there had been some discussion about
5the number of pages per day that would account for.
6 Are you aware whether or not any
7additional documents have been produced to the
8Commission in the last week?
9 MAJ GAGNON: No.
10 Q. If there were additional
11documents that were produced to the Commission this
12week, would your organization have been involved in
13the review and redaction of those?
14 MAJ GAGNON: We are following the
15final steps after the ADAG, no, but all before,
16somebody will.
17 Q. That leads into my next
18question, and you have been asked or talked a lot
19about your involvement in the review of documents
20that are coming from other departments. Just to be
21clear, are you able to speak generally to APHST's
22involvement in the production of documents that are
23being collected by other departments?
24 MAJ GAGNON: The process is that
25once another department produces documents and
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1gives them to NSG, they will then provide a clean
2copy to all the other departments for their own
3review for any potential claims. That clean copy
4will go to APHST to do the initial claims and then
5go back to NSG.
6 Q. If I understand you
7correctly, for all documents that are produced to
8the Commission, your team is responsible for
9reviewing them for potential redactions?
10 MAJ GAGNON: Yes.
11 Q. So in terms of effort, there
12is an additional effort that has to be extended by
13your team for documents produced outside of CF
14documents?
15 MAJ GAGNON: Yes.
16 Q. And it is fair to say that
17that would have some impact on the work that is
18done within your organization?
19 MAJ GAGNON: It does.
20 Q. We have heard evidence about
21a number of documents where the redactions were --
22I will use the loose term revisited after the first
23release. Are you aware of that having occurred?
24 MAJ GAGNON: In fact I have done
25that many times.
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1 Q. When that process occurs,
2does your organization have any involvement in
3reviewing those documents?
4 MAJ GAGNON: The moment any
5department is asked to revisit claims, it affects
6all departments.
7 Q. So if a document had been
8previously released and it is being revisited, is
9it the same thing again that your organization has
10to review every page of that document that is being
11revisited for the claims?
12 MAJ GAGNON: We are revisiting all
13the claims DND has made to see based on the
14revision whether we may be able to still justify
15the claim or release it.
16 Q. And so that is an additional
17level of work that your organization has to do?
18 MAJ GAGNON: Yes, it is.
19 Q. Mr. Lunau had also referred
20you to documents that came from the Commission. We
21will talk about the transcripts of the witnesses.
22Would that be the same thing? When documents come
23from the Commission, is your organization
24responsible for reviewing those documents on a
25page-by-page basis?
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1 MAJ GAGNON: All documents
2involved for the Commission, they are treated the
3same way.
4 Q. In terms of who does the
5work, you have testified to the fact that there was
6some concurrent activity going on in terms of
7collection and redaction. If we were just to focus
8on the process of redacting documents, do you know
9whether or not it is the same people who were
10involved in assessing the redactions under section
1138 in your organization?
12 MAJ GAGNON: The team that is at
13NSG, yes. It is the same small group for
14consistency.
15 Q. So the same small group that
16is reviewing the CF documents is also reviewing the
17MPCC documents that come to you or the DFAIT
18documents?
19 MAJ GAGNON: All of them.
20 Q. When you say consistency, can
21you explain what you mean by that?
22 MAJ GAGNON: What I mean by that
23is that it allows the same individual to have a
24very clear knowledge of what has been in place on
25the claim, what happened to previous court cases
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1like Amnesty International and which documents were
2released, and to apply that to ensure that we won't
3make a claim that is not defendable in front of
4ADAG.
5 Q. I am going to ask you to look
6at another letter. Again, I apologize. I think it
7is in the volume two correspondence and materials
8that you have. I suspect it is the final tab. It
9is a letter dated February 8, 2010. It is Tab 7.
10If I could ask you to look at page 2, this is a
11letter to Mr. Lunau from myself. At the top
12paragraph, it says:
13 "One of the fundamental
14 considerations in this review
15 process is to ensure
16 consistency in the disclosure
17 and protection of
18 information. Consistency is
19 not only difficult to achieve
20 in itself, it is particularly
21 difficult to achieve because
22 of the mosaic effect. A
23 piece of information which
24 seems innocuous in a given
25 context might well be the
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1 missing piece to the
2 intelligence puzzle persons
3 with interests adverse to
4 Canada are attempting to
5 complete. That level of
6 consistency can only be
7 achieved by using the same
8 persons to review all the
9 information involved, since
10 it ensures that the same
11 people who have reviewed the
12 many documents produced to
13 date and are educated about
14 the matters at issue in this
15 file continue to be
16 involved." (As read)
17 Do you agree with that explanation
18of the involvement of the same people?
19 MAJ GAGNON: Yes, I do.
20 Q. And that is what you were
21just explaining?
22 MAJ GAGNON: Yes.
23 Q. Earlier this morning you were
24asked by Mr. Lunau whether or not your organization
25had been given directions to slow down the
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1production of documents to this Commission, and
2your response was no, quite to the contrary. I am
3wondering if you would like to explain what you
4meant when you said "quite to the contrary".
5 MAJ GAGNON: What I meant by that
6is in the summer 2008, right after the summonses
7were issued, we started ramping up eight hours a
8day, five days a week, to try to the best of our
9ability to meet production of documents by the
10start of the Commission on 5th of October.
12I am not sure you were asked the same question or
13given an opportunity to respond, but I would like
14to ask you the same question, about any directions
15coming from within the Canadian Forces to
16deliberately slow down the production of documents
17to this Commission. What is your response to that
18request?
19 BGEN BLANCHETTE: Absolutely not.
20I have never received such orders.
21 MS RICHARDS: Thank you. Those
22are all my questions.
23 THE CHAIRPERSON: Mr. Lunau, do
24you have any questions?
25 MR. LUNAU: Just a couple of
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1follow-up, primarily on a couple of questions that
2were asked by Mr. Champ and Ms Richards.
3FURTHER EXAMINATION BY MR. LUNAU:
4 Q. Going back to this question
5of 719 documents we have been talking about, my
6notes with respect to Mr. Champ's questions say
7that you said the 719 documents, there had been no
8final decision by ADAG. Many were judged not
9responsive to the second request. Were you
10referring to the summons to General Blanchette?
11 MAJ GAGNON: To the second summons
12to General Blanchette.
13 Q. Does that mean that after the
14date of that summons, October 21st, the 719
15documents were re-evaluated for relevance?
16 MAJ GAGNON: We went through every
17single document to do the test of responsiveness
18based on the new summons.
19 Q. When you say we went through
20ever single document, who was that? It was
21yourself?
22 MAJ GAGNON: It is what I like to
23refer to as my team, the two lawyers and myself
24that were working at NSG, going through every
25single document.
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1 Q. The two lawyers, JAG and
2CFLA?
3 MAJ GAGNON: CFLA.
4 Q. And as a result of that, that
5is how the number 50 came about. It was as a
6result of that review.
7 MAJ GAGNON: Yes.
8 Q. Both Ms Richards and Mr.
9Champ referred you to item 6 on the summons and the
10reference to the sea containers. Ms Richards
11referred you to our letter at tab 9 of volume 1 of
12the document book.
14 Q. In particular, she took you
15to page 3, the bottom of the page 3.
16 MAJ GAGNON: Yes.
17 Q. "As for paragraphs 6 and 10
18 of the summons, we have
19 already provided a list of
20 the information which could
21 be provided in lieu of the
22 numerous documents covered by
23 these requests. By reviewing
24 some of the documents
25 previously provided to the
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1 Commission we have acquired
2 sufficient information about
3 the reporting of information
4 respecting detainees to be
5 confident that all of the
6 information the Commission is
7 requesting can be compiled by
8 relying on CEFCOM records in
9 Ottawa without resort to any
10 of the documents that may be
11 included in sea containers in
12 Afghanistan." (As read)
13 When this letter was first written
14on November 23, was it discussed with you whether
15the information requested in paragraph six and ten
16could be compiled by relying on CEFCOM records in
17Ottawa?
18 MAJ GAGNON: I don't recall this
19letter, sir. I cannot give you an answer on that.
20 Q. I had the impression from my
21friend's questions that you had read the letter.
22Did you make any inquiries of CEFCOM, whether the
23information at paragraph 6 and 10 could be compiled
24from their records without having to go searching
25through sea containers?
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1 MAJ GAGNON: That was APHST’s role
2to do so, sir.
3 Q. Sorry?
4 MAJ GAGNON: That was the APHST
5team role to do so.
6 Q. Is there some reason why a
7person from APHST didn't come today?
8 MAJ GAGNON: I have no -- I cannot
9answer that question, sir.
10 Q. In any event, you have no
11knowledge. When you answered my friend's question
12that such records couldn't be found in Ottawa, it
13sounds like you really don't know that for a fact.
14 MAJ GAGNON: The way the question
15was asked by Mr. Champ was it was very specific
16decision-matrix concept, which is not part of any
17of the normal documents that are forwarded to
18CEFCOM. So my answer was correct in which the only
19way I could confirm if this document exists is to
20go through those sea containers.
21 Q. I guess another way to
22confirm would be to ask people within CEFCOM?
23 MAJ GAGNON: We would then ask
24theatre the same question, sir, with most likely
25the same answer.
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1 Q. If you haven't asked the
2question, you don't know what answer you would have
3gotten.
4 MAJ GAGNON: Sir, the summons
5especially asked for a specific set of documents
6including signed by the task force commander. They
7don't ask for a decision matrix or any other type
8of document that may lead to that decision. With
9all due respect, it is very difficult for us to
10start to make interpretations of the intent of the
11Commission and what they want other than what you
12give us in writing.
13 Q. So we have to ask for
14documents that we may not know exist in order to be
15sure of getting what we want? Is that your
16position?
17 MAJ GAGNON: I am just saying,
18sir, that you may be asking about documents that do
19not exactly exist because we never made such
20documents.
21 Q. With respect to paragraph 6
22of the summons which I referred to this morning,
23and both Mr. Champ and Mr. Wallace have referred
24to, do I take it that the search for these
25documents is over?
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1 MAJ GAGNON: At this moment, I
2would have to say yes, sir.
3 Q. So that's it?
4 MAJ GAGNON: It's never it, sir,
5if you’re referring that way. As we identified
6earlier, we are more than willing to co-operate
7with this Commission, including if necessary to go
8back and look for more. But as we pointed out, and
9as you mentioned in many letters, there is real
10difficulties to be able to get material, especially
11if those documents only reside in theatre.
12 Q. If they only reside in
13theatre.
14 Number 10, the other item, do I
15take it the search for those documents is over?
17yes, sir.
18 Q. All right, so that is done.
19Is the search for all of the other documents that
20are listed in the summons over too? That is
21finished?
22 MAJ GAGNON: As far as I
23understand, yes, sir.
24 Q. When Mr. Champ asked you
25about the pace of production and you said it was
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1hypothetical, it would depend on the demands and so
2on, basically what you are telling me is that DND
3believes it is done except for three items that I
4believe you mentioned this morning -- document
5requests by witnesses, Amnesty International ATIP
6requests, and the documents requested as a result
7of Colonel Booth's evidence, the CEFCOM
8investigation documents.
9 MAJ GAGNON: Those are the three
10that General Blanchette has identified this
11morning.
12 Q. As of today, that is the
13parameters of what DND is looking to produce.
14 MAJ GAGNON: At this moment, based
15on the summons, yes, sir.
16 Q. You mentioned in response to
17Mr. Champ that there was a co-ordination meeting
18every week at APHST at which a member of the
19military police was always present.
20 MAJ GAGNON: Yes, there is.
21 Q. Who is that member of the
22military police?
23 MAJ GAGNON: Unfortunately, sir,
24it has been changing depending on the availability
25of the primary point of contact, the individual
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1that was selected. So there have been many times
2we had different members.
3 Q. Can you name any of them?
4 MAJ GAGNON: Not by heart, sir.
5 MR. LUNAU: Just as a housekeeping
6matter, throughout the course of the day we have
7referred to two books of documents, one that we
8reproduced, one that was produced by government
9counsel. I think we should mark those as exhibits
10unless there is an objection.
11 MS RICHARDS: No objection, just
12if we could get a copy of the index you have been
13using because I think we are all using different
14versions.
15 MR. LUNAU: Of course.
16 THE CHAIRPERSON: I think we
17should get a copy of the same document which we
18have.
19 MR. LUNAU: It was partly due to
20the last-minute nature of producing the books.
21 The book marked Correspondence and
22Materials Document Production, Volumes 1 and 2, I
23think we could mark just as one exhibit.
24 THE CHAIRPERSON: Madam Registrar,
25what number will that be?
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1 THE REGISTRAR: B-57.
2 EXHIBIT B-57: Correspondence
3 and Materials Document
4 Production, Volumes 1 and 2
5 MR. LUNAU: Mr. Chair, if anyone
6has questions following from my reply, then I
7suggest they should be given a chance to ask them.
8 THE CHAIRPERSON: Yes.
9 Any questions? I will have a
10couple of questions.
11 QUESTIONS BY THE PANEL:
12 THE CHAIRPERSON: Major and
13Brigadier-General, I have a couple questions and
14Mr. Berlinquette may as well.
15 On the documentation, obviously -B
16and this is to you, Major -- you are quite
17knowledgeable in terms of documents and types of
18documents and that. Just to help me understand,
19documents that may be in the sea container, these
20particular ones that we are making reference to in
21number six, the transfer orders between May 3, 2007
22and June 12, 2008, I believe were the dates, they
23are there plus all of the other rotos mixed in, I
24take it, is what you are saying?
25 MAJ GAGNON: Yes, sir. Because of
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1limited space available to us as a whole contingent
2on the Kandahar Airfield, we are limited in where
3we can store documents.
4 THE CHAIRPERSON: I can understand
5that. What other types of documents from your
6knowledge are also in that sea container? Is it
7just detainee records or what other kinds of --
9everything that is related to a rotation, from
10personnel movement, repatriation, unfortunately
11anything that's related to fallen comrades,
12administration, anything that can link to that.
13 THE CHAIRPERSON: Anything that is
14written in theatre, I take it?
16 THE CHAIRPERSON: So what
17documents come back to Canada, then?
18 MAJ GAGNON: In terms of
19detainees, because I know this is the topic of
20interest, every time a detainee is transferred, all
21the documents, a copy of all those documents minus
22the matrix that has been inferred as existing are
23being sent to CEFCOM. So a copy of all of that is
24being sent to CEFCOM.
25 THE CHAIRPERSON: So each
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1individual detainee would have a file and all of
2that documentation. Why would the transfer orders
3not be married up with that and then also sent
4over? What is the reason, if you are able to
5answer it, that that particular document would be
6separated from a detainee's file?
7 MAJ GAGNON: Your honour, I don't
8have really a proper answer for you on this one.
9The only answer is that it was based on the
10question by Mr. Champ in which he was asking for a
11matrix decision. This is a document I am not
12familiar --
13 THE CHAIRPERSON: I am not even
14going to ask about the matrix right now. I am just
15going to ask about very specifically transfer
16orders on these dates. I am trying to get an
17understanding of why these documents would be
18separated from a detainee file which is coming back
19to Canada. Why would it go into a bin and not the
20others?
21 MAJ GAGNON: I don't have an
22answer for you, sir.
23 THE CHAIRPERSON: Who would have
24that answer?
25 MAJ GAGNON: Based on our TSO,
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1which I know the copy has been provided to the
2Commission --
3 THE CHAIRPERSON: Each TSO
4changes, though.
5 MAJ GAGNON: They change, but the
6core is still the same. It is a meeting that is
7advising the TFA commander on the decision to
8release or to transfer. I don't have -- so an
9actual signed transfer record may never have even
10existed because the commander may make a verbal
11decision to transfer or release.
12 THE CHAIRPERSON: I would think
13that -- you have reviewed documents for some time
14now -- that the transfer of a detainee would
15require a signature.
16 MAJ GAGNON: They do, sir.
17 THE CHAIRPERSON: I’m sorry?
18 MAJ GAGNON: They do, sir, and the
19committee I was mentioning, the Provost Marshal of
20the task force is always present. So he could be
21given right away the direction to transfer or
22release.
23 THE CHAIRPERSON: But would that
24not be considered a significant document to be
25included in the detainee file coming back to
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1Ottawa?
2 MAJ GAGNON: If there was such a
3document, sir.
4 THE CHAIRPERSON: You mean you
5would transfer -- I guess you wouldn't because you
6are not responsible for the transfer, but would it
7not make sense that if there was a detainee being
8transferred, that there would be a signed document?
9 MAJ GAGNON: Yes, sir, but most of
10those documents, the actual transfer would be
11signed by the detention sergeant MP from the
12detention facilities to the NDS, not by the task
13force commander.
14 THE CHAIRPERSON: That's fine. He
15would have that opportunity to give authority for
16delegation authorities, but would it not make
17sense, you being an expert in documentation
18management, that that would be a significant
19document to be included with the package? Doesn't
20that make sense? Wouldn't that be common sense
21then? Let's put it that way.
22 MAJ GAGNON: And I am agreeing
23with you, sir. I just said if the document exists.
24 THE CHAIRPERSON: The document has
25to exist. There is no way the military are
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1transferring a prisoner without having a signed
2document.
3 MAJ GAGNON: As I said, sir, there
4is -- we have a transfer signed document, but it is
5signed between the detention transfer facility and
6the NDS. The task force commander is not the one
7signing this documents.
8 THE CHAIRPERSON: So because this
9one specifically says "task force commander or
10delegate", is that why we wouldn't have these
11documents? Because it may not be his delegate? Is
12that what you are saying? That it could be the
13detention sergeant, did you say?
14 MAJ GAGNON: Let me just identify
15another item in the TSO, sir. The task force
16commander is the only authority to order transfers
17orally. That authority is not delegated.
18 THE CHAIRPERSON: Not the
19authority, but signature may be?
20 MAJ GAGNON: The actual paperwork
21at the end of the pay when the detainee is
22transferred may be actually indeed -- when they are
23doing the transfer, physical transfer, they will
24sign the paper.
25 THE CHAIRPERSON: But that
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1transfer would be based on the authority of the
2task force commander.
4 THE CHAIRPERSON: Would you not
5think that that would be a significant document to
6include in a package coming back to Ottawa?
7 MAJ GAGNON: Again, sir, I am not
8disagreeing with you. I think it is a professional
9assumption, but since we have a committee in which
10they are briefing the task force commander on every
11detainee's release from detention, there may be
12just a verbal direction, agree or not, about that
13decision by the task force commander.
14 THE CHAIRPERSON: I think I could
15ask the question six different ways and I am going
16to get the same answer.
17 In regards to the Excel
18spreadsheet, you are not a member of APHST; you are
19a member of the IST team. Is that correct?
21 THE CHAIRPERSON: Who creates the
22Excel spreadsheet?
23 MAJ GAGNON: The APHST team.
24 THE CHAIRPERSON: That spreadsheet
25is then the document that is used. Your evidence
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1also was that you read every document and give
2approval for every document that goes through.
3 MAJ GAGNON: Sorry, sir, what do
4you mean by approval?
5 THE CHAIRPERSON: That you give
6the authority to move that document forward.
7 MAJ GAGNON: Not at APHST, sir.
8 THE CHAIRPERSON: No. After it
9comes through APHST to you.
10 MAJ GAGNON: Basically at the
11National Security Group.
12 THE CHAIRPERSON: So you see every
13document at that point. Does that Excel
14spreadsheet, is that not part of the review? Do
15you not ever see any of that?
16 MAJ GAGNON: No, what we receive
17is normally a letter from APHST with each series of
18documents that describes each, identifies each
19document that is part of that.
20 THE CHAIRPERSON: You don't use
21the Excel spreadsheet as a reference?
22 MAJ GAGNON: No, sir, this is an
23internal document for APHST only.
24 THE CHAIRPERSON: But you did say,
25or I believe the Brigadier-General did say that we
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1could try to make access of that, if that was
2possible, based on section 38 requirements.
3 MAJ GAGNON: Exactly, sir. We
4will have to review the spreadsheet and whatever we
5can release, again, we will have to discuss with
6our legal team.
7 THE CHAIRPERSON: How would we
8make that happen, Mr. Préfontaine? Can I just ask
9the witness or can you work together to see if we
10can get that?
11 MS RICHARDS: Yes, we have your
12request and we will go back with it.
14 I would like to take you to volume
152, tab 3. It is the letter from Mr. Préfontaine.
16If you go to Schedule A, using line 1 as an
17example, original request was 11/19/2008. It goes
18on, and the Government of Canada response on this
19one,
20 "All detainee transfer orders
21 from April 20, 2006 to June
22 12, 2008. Government of
23 Canada response: Not
24 relevant. Could be subject
25 to redactions."
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1 Where does that "not relevant"
2come from in your opinion? Does that come from
3you?
4 MAJ GAGNON: As I explained
5earlier, sir, we were a group. That is the
6beginning of the APHST team, so we were just
7identifying to our civil litigator which documents
8we thought were not relevant based on the key
9conditions.
10 THE CHAIRPERSON: Am I to
11understand, just to make sure, that these 22 items,
12that is Schedule A, all went through your team and
13wherever it is not relevant, that comes from you?
14Or does it come from somebody else? When I say
15you, I mean your team.
16 MAJ GAGNON: The group, yes, sir.
17 THE CHAIRPERSON: This document
18that was May 14, 2009, a decision was made by your
19group at NSG --
20 MAJ GAGNON: At APHST at the time,
21sir.
22 THE CHAIRPERSON: I’m sorry? So
23this was done at APHST.
25 THE CHAIRPERSON: So this was long
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1before it goes to NSG.
3 THE CHAIRPERSON: So this was done
4at APHST, and you believe your recommendation was
5and the recommendation of the two lawyers groups
6was that these documents were not relevant.
7 MS RICHARDS: I am just a little
8concerned because it is getting very close to
9disclosing solicitor-client advice and
10solicitor-client communication. I know Major
11Gagnon has given evidence today that they
12participated in providing their advice on which
13documents were or were not relevant. To go beyond
14that gets into disclosing the communications and
15the particular advice being provided to counsel.
16 THE CHAIRPERSON: I don't want to
17ask between the three of them. All I know is that
18he made the statement that every document went
19through him.
20 MS RICHARDS: I understand, it is
21just when you ask him whether it or not --
22 THE CHAIRPERSON: Let me rephrase
23that. I will answer my own objection for you.
24 Did you believe that all of these
25items that were not relevant were not relevant?
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1 MAJ GAGNON: At the time --
2 THE CHAIRPERSON: Take your time
3and go through them.
4 MAJ GAGNON: I’m fully aware of
5all the documents. Our estimated time, what they
6may not be relevant. As the letter from the
7Commission was sent later, you didn't agree with
8our recommendation.
9 THE CHAIRPERSON: That is not what
10I am asking you. On May 14 we have a letter from
11Mr. Préfontaine that says on appendix schedule A,
12sometime prior to that date a determination was
13made and you were part of that determination.
14 I am not going to ask what the
15lawyers had to say, I am going to ask what you had
16to say, that these are all not relevant?
17 MS RICHARDS: I'm sorry, I think
18that is what he is saying is that it is what he
19communicated to counsel. That is my only concern.
20When you say determination was made, I understand
21that his evidence to be that recommendations were
22made to counsel and when you go the next step, you
23are getting into what his recommendation to counsel
24were.
25 THE CHAIRPERSON: He said earlier
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1that he made recommendations.
2 MS RICHARDS: Yes, that's right,
3yes, he had. I guess when you ask him what those
4recommendations actually were, then it is trenching
5into what is the communications with his lawyer.
6 THE CHAIRPERSON: I am reading a
7letter that says "not relevant." If he didn't make
8the decision, then Mr. Préfontaine made the
9decision and I don't want to call him as a witness.
10So who do you want me to ask?
11 MS RICHARDS: I guess you can't
12ask that, because that is what is privileged.
13 THE CHAIRPERSON: I don't believe
14that is privileged but he was involved in that.
15 Let's go to the next step of this.
16If I heard it right, a determination was made that
17a non-relevant decision was made without having
18seen the documents. Did I hear that right on one
19of these cases? How can that be? How can you
20determine relevance without reading documents and I
21don't believe that has anything to do with lawyer
22privilege.
23 MAJ GAGNON: Relevance was tested
24based on a government approach and perspective on
25the actual complaints.
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1 THE CHAIRPERSON: How do you know
2if you don't read the document, what the document
3says?
4 MAJ GAGNON: Sir, it was just
5based on what has been requested.
6 THE CHAIRPERSON: Who requested?
7Just based on the request from MPCC?
9 THE CHAIRPERSON: Based on that
10request, without reading the document, you
11determined not relevant?
12 MAJ GAGNON: We identified the
13documents that we thought were not relevant.
14 THE CHAIRPERSON: Brigadier
15general, do you not see that as a problem? In all
16due respect, I know this is a difficult job to be
17done. I understand the section 38, but when we
18start deeming documents not relevant without having
19read them, do you not see an issue with that?
20 BGEN BLANCHETTE: Having not been
21privy to any of the discussions that took place, it
22is very hard for me to answer one way or another.
23What I could say, I guess, is when you have some
24information about a document and you have a vague
25idea or more precise idea of a document I think
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1some views could be expressed as to whether or not
2it is relevant. Again, I haven't been privy to
3this process and I don't think it would be fair for
4me to comment about any specifics.
5 THE CHAIRPERSON: That is fair,
6sir. Were you privy to information about that
7document without seeing it?
8 MAJ GAGNON: I am privy to
9solicitor-client information, sir.
10 THE CHAIRPERSON: Let me get this
11right. You haven't seen the document but you have
12solicitor-client information about the document
13that you can't share and then you deem it to be
14non-relevant?
16 THE CHAIRPERSON: I have some
17difficulty with that, but I guess that is for later
18on.
19 MS RICHARDS: Mr. Chairman, in
20fairness, if I could ask you to look back to the
21front page of the letter. There is a position
22explained in the letter that may be of some
23assistance, or it may not.
24 In paragraph 2 you will see the
25position that has been put forward by the
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1government when providing this chart, and as you
2will recall at that time there was a judicial
3review outstanding. The position was that:
4 "You were aware of difference
5 of opinion as to the
6 jurisdiction of the
7 Commission to investigate the
8 complaints. Until the court
9 decides which position is
10 correct, we will continue to
11 disagree as to what is
12 legitimately relevant to the
13 investigations." (As read)
14 So for what that is worth, there
15was a publicly stated position as to the issue of
16relevance.
17 THE CHAIRPERSON: That is noted,
18but it is still somewhat problematic.
19 Mr. Préfontaine addressed us
20yesterday, I believe -- sorry, last week, with some
21dates and Mr. Préfontaine, or Ms Richards, if I’m
22wrong on this maybe you will jump in. I know you
23will.
24 In regard to Lieutenant Colonel
25Boots, he suggested that somewhere in mid June is
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1what he suggested to us. Are you aware of that
2date?
4 THE CHAIRPERSON: If I told you it
5was mid may, would that be better.
6 MAJ GAGNON: Are we talking about
7the incident related to the Globe and Mail or the
8investigation that Major Booth did?
9 THE CHAIRPERSON: It is regarding
10the investigation -- I think it is the Globe and
11Mail, April 7. Anyway, that is the date Mr.
12Préfontaine gave on that one issue. On the second
13issue, relative to a witness there were several
14documents involved in that. There was date given
15of May 14, and that included the Duschner
16documents, correct?
17 MS RICHARDS: Yes.
18 THE CHAIRPERSON: And then there
19was another document relative to the Gosselin
20reports. I believe that was a third one, and that
21was a proposed date of May 7. Are you aware of
22those dates?
24 THE CHAIRPERSON: What is your
25position on the availability of production based on
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1those dates, from what you know? Having regard
2there are some DFAIT documents in here, and we can
3deal with that later.
4 MAJ GAGNON: Sir, what they tell
5me is how much time I have to work ahead to be at
6NSG to review these document so we can give the
7reports to the ADAG to give the decision in time
8for the release of those documents.
9 THE CHAIRPERSON: We will come
10back to that after.
11 MEMBER BERLINQUETTE: General, you
12had mentioned that you did an analysis as
13responsible for that area to determine your
14resources, the need, or what was required in
15resources to meet the demand and I appreciate that
16was several demands at the same time. In that
17analysis, were you able to learn from these people
18that -- I understand you canvassed two people, that
19there was an appreciation by them of the importance
20and the priority of this? Did you sense that or
21did they speak to that or did they just suggest
22that they needed more resources?
23 BGEN BLANCHETTE: The extent of
24this analysis, sir, was really an interview
25process.
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1 MEMBER BERLINQUETTE: I understand
2that.
3 BGEN BLANCHETTE: With these
4folks, me talking with Major Gagnon because at the
5time, commander Moffat was still in Afghanistan or
6on leave coming back from Afghanistan. Once he
7came back we had a discussion again of their
8responsibilities and this was not a detailed
9analysis of how much work they have. What I was
10referring to was the perception that I gathered
11from them as to the amount of work they have. They
12were certainly very busy conducting their business,
13but at the same time, they inferred to me how
14important their task was. And I could only agree
15with them, having heard it from other sources, of
16course. It was clear to me that what was required
17to meet the challenges that we have been busy
18describing here for the last couple hours.
19 THE CHAIRPERSON: I have one more
20question to ask the Brigadier General, but any
21questions arising from my or our questions?
22 MR. CHAMP: I have one narrow area
23arising.
24 THE CHAIRPERSON: Mr. Champ.
25FURTHER CROSS-EXAMINATION BY MR. CHAMP:
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1 MR. CHAMP: Major Gagnon, I am
2trying to clearly understand what documents exist
3on the decision to transfer a detainee. Are there
4documents that exist that reflect what the
5commanders' decision was to transfer specific
6detainees and what factors that he took into
7account in making that decision? Are there
8documents like that?
9 MAJ GAGNON: Honestly I cannot --
10I don't know, sir.
11 MR. CHAMP: You don't know?
12 MAJ GAGNON: I would have to be in
13theatre, in that room with the commander to know
14what documents.
15 MR. CHAMP: No, but you are
16responsible. You work with the IST and APHST and
17you have indicated that the detainee file comes
18back to Canada. I think I have seen some of those,
19and those files contain stuff like information
20concerning the capture, the point of capture, the
21reason for capture, correct?
22 MAJ GAGNON: Yes.
23 MR. CHAMP: They concern the
24change of custody, the transfer from the platoon or
25unit who captured the individual, and their
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1transfer to the MPs either in the field or back at
2Kandahar airfield; correct?
3 MAJ GAGNON: Correct.
4 MR. CHAMP: And then these
5documents also reflect the medical evaluation of
6the detainee, that the list of their personal
7effects --
8 THE CHAIRPERSON: Is there a
9question somewhere in there?
10 MR. CHAMP: I am trying to get to
11the point you were making, what they keep together
12and what they send back to Ottawa and what they
13didn't. The list of the inventory of the items and
14possessions on the detainee that is all part of the
15file that comes back to Ottawa?
17 MR. CHAMP: All of that
18information is gathered together, sent back to
19CEFCOM, sent back to Ottawa, but nothing, nothing
20at all that you have ever seen that reflects in any
21way why the commander decided one way or another to
22transfer a detainee, correct? There is nothing
23like that you have ever seen?
24 MAJ GAGNON: The only document we
25see, sir, is the actual transfer or release
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1document that is signed by the MPs saying we will
2release this individual with the detail about that,
3however we will transfer him and that is what we
4will receive.
5 MR. CHAMP: From the perspective
6of CEFCOM and the perspective of Ottawa, the only
7record that you have in Ottawa that indicates what
8the commander's decision was one way or the other
9is that sergeant or corporal document that is
10signed at the time of transfer, correct?
11 MAJ GAGNON: Very much so.
12 MR. CHAMP: That is the only
13document which gives you indication of which way
14the commander decided?
15 MAJ GAGNON: The only other
16document you may know about and you have seen
17before are the SIRs.
18 MR. CHAMP: Major Gagnon, I have
19to confess, I have been working on this file for
20almost four years now, making access requests,
21making document productions in the court, and so
22forth, and I have seen these files. Forgive me,
23but all of that information that you just went over
24that is sent back to Ottawa, seems to pale in
25comparison in importance or significance to a
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1document that indicates why the commander would
2transfer a detainee. Do you have any explanation
3about why those kinds of documents would not be
4coming back to Ottawa?
5 MAJ GAGNON: The only explanation
6I can give is many of these documents would be of
7intelligence nature or other similar source, and as
8such they will not be attached to the file.
9 MR. CHAMP: So it might in some
10way be categorized as an intelligence document and
11then filed elsewhere?
12 MAJ GAGNON: It might, sir. You
13asked me for potential documents. I am giving an
14example.
15 MR. CHAMP: Given the course or
16pace of this issue in the Federal Court, Military
17Police Complaints Commission, et cetera, the
18numerous access to information requests, frankly, I
19am kind of surprised we find in the spring of 2010
20that there are no documents in Ottawa that reflect
21how the risk of torture was assessed by the
22commander for any particular detainee. We have no
23documents like that in Ottawa.
24 MAJ GAGNON: I don't have any
25documents, sir.
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1 THE CHAIRPERSON: You may not like
2the answer, but I think he gave it.
3 MR. CHAMP: I don't like that
4answer on many levels, I have to confess. I am
5sure my clients feel the same way. Thanks, those
6are my questions.
7 THE CHAIRPERSON: Any further
8questions?
9 General Blanchette, I certainly
10respect the task that yourself and Major Gagnon and
11the IST team, the APHST team have and the
12difficulties surrounding the whole aspect of
13document gathering, especially when it may not all
14even be here, properly, and I understand the issues
15regarding sensitive and national security
16information. I think it's important and I don't
17think we can understate that. I think you have
18expounded on that very well, today, both yourself
19and Major Gagnon.
20 Having been summonsed to be here,
21and having seen summonses before, you are well
22aware and as you know that you have received, I
23don't know if the word instructions, but the
24overtone is that to cooperate with the Commission
25as much as humanly possible. I am paraphrasing.
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1 Now I think you can appreciate the
2situation we are in as we move forward with this
3hearing that we have some significant issues
4relative to obtaining documentation for a variety
5of purposes. One of them is for the subject
6officers, current members and retired members of
7the Canadian Forces who obviously may wish to have
8or know all the documentation to be out there.
9Also what we may need to know in terms of
10performing our function, and all of us as players
11in this function as well need all the necessary
12information.
13 And I guess my question to you is,
14having heard all of the questions today, having
15heard all of the issues and concerns from the
16complainant's counsel, from Mr. Wallace's counsel,
17from Mr. Préfontaine and Ms Richards, who are
18counsel for seven subjects as well as wearing the
19other hat of representing the Government, the
20counsel for the Commission, and myself and Mr.
21Berlinquette.
22 What is it that can be done to
23assist these individuals to get the necessary
24documentation in a faster way than we are getting
25it today? Your self and Major Gagnon have
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1explained -- I will stay away from the word delays
2-- explained the lengthy time it has taken in order
3to achieve some of the results and not achieve some
4of the results that we desire.
5 These dates, there are a couple of
6them that are not bad in terms of getting the
7documents, but Commission counsel has work to do
8once they receive documents before you can actual
9put them to a witness. So May 7, May 14 is clearly
10going to delay some things regarding the other
11documents that are required. We have questions for
12DFAIT later.
13 What can you do for us? What is
14available? I hear that you have one person that
15all the documents go through, and I understand the
16issue of consistency, and it is not a matter of
17working lunch hours to get it done, because I know
18it is a bigger issue than that.
19 What is it that you can do, as a
20brigadier general, to try and move this forward on
21behalf of the Canadian Forces?
22 BGEN BLANCHETTE: Mr. Chair, your
23question has a specific emphasis on what can be
24done in realistic terms. The premise of your
25question is that we have done what could be done in
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1terms of structure. I think I have explained to
2you how we are set up to do this.
3 THE CHAIRPERSON: Yes.
4 BGEN BLANCHETTE: The fact that
5there is a lot of pressure on this gentleman's
6shoulders is certainly something that I realize,
7but I must emphasize again that we have to err on
8the side of caution in this particular case,
9because we are talking about the life of
10individuals. And I hate to repeat myself, but in
11this particular case, we have people that are just
12waiting for this information to be available. And
13I am not trying to depict a situation that is worse
14than what it is.
15 We know that there is a specific
16attempt to gather information about what is
17happening in Canada. We know that there is a
18deliberate process by which they put -- and when I
19say they, I am talking about the Taliban. I am
20talking about the people who can kill our people.
21In this particular case, we have to continue to err
22on the side of caution.
23 Now, I can really assure you that
24what I can do to help this process is to look at
25the task at hand and to find if not different
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1people, because we have heard from Ms Richards how
2important it is to have consistency in that
3process, to avoid giving the enemy a chance of
4using the mosaic process, because we have to ensure
5that this same person has to go through this
6process.
7 We will go through everything that
8is necessary to meet the timelines, and I will
9continue to get involved. I can get even more
10involved in this process. This is certainly a
11leadership challenge that I have felt today more
12than any time before. I realize how important it
13is for the commission to get this process to unfold
14as quickly as possible.
15 I have people at heart, people of
16the military police side. My own brother was a
17military police. I have worked with the military
18police throughout my career. When I was in
19Brussels, I had between 25 and 30 of them who were
20working for me while I was working there. So I am
21extremely conscious of how important this process
22is. And if we are not taking about having
23different people doing this, I will certainly go
24back, meet with Commander Moffat meet with Major
25Gagnon, and do everything that is possible to
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1support the work of the Commission.
2 Beyond that, if you ask me to
3speed up the process to the price of putting the
4life of the individual at risk, I find myself in
5the unfortunate position of saying no, sir.
6 THE CHAIRPERSON: We are not
7asking you to do that. We are not asking you for
8the sake or the risk of the men and women that are
9serving. I don't think there is anybody in this
10room that would want a piece of paper that was
11gathered on the backs of our men and women who are
12serving. That is clearly not an issue and I know
13from talking with the legal team here, that isn't
14what we want.
15 BGEN BLANCHETTE: I appreciate
16that.
17 THE CHAIRPERSON: We have the
18discussions about section 38, but we have lots of
19discussions about section 38 from time to time. I
20guess we are asking you to do what you can do
21within the parameters of your difficult job and the
22Major's difficult job in supplying that
23information. Fully well understanding that we
24don't want documents that we can't have and we
25recognize that there are other people out there
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1that are looking to do harm to our people.
2 I think the message is there for
3you to assist and take a look at it. Major Moffat
4is --
5 MS RICHARDS: Commander.
6 THE CHAIRPERSON: Commander Moffat
7is here, and he has obviously heard today's
8testimony and discussions, so I am sure he may have
9things to share with each other in terms of
10process. I don't know. I leave that with you.
11 BGEN BLANCHETTE: Sir, if I may,
12you have mentioned or we have heard of three sets
13of documents and I intend to get more information
14about this and see how we can do what is in the art
15of possible to make this happen.
16 THE CHAIRPERSON: I thank you,
17sir. Thank you, Major Gagnon and to Commander
18Moffat who has been listening intently today.
19 I want to thank you for your
20attendance today. I know it has taken a whole day
21out of your busy schedule, a whole day away that we
22may have been able to receive more documents, so we
23apologize for that. We appreciate what you are
24doing for us today and your service to the people
25of Canada. Thank you very much.
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1 We would like to start -- will we
2go for the rest of the day? I would like a break.
3 MR. LUNAU: Ms Stirk isn't
4available tomorrow, but judging from how long we
5are today, I am doubtful we are going to get very
6far continuing this afternoon. We have a number of
7days, particularly next week. The only event next
8week is Thursday and possibly Friday, with the
9experts. So there are a number of days available
10next week for Ms Stirk.
11 THE CHAIRPERSON: What is the best
12thing for you, Ms Stirk?
13 MS STIRK: I am really in your
14hands, Mr. Chairman. I am prepared to start
15tonight, and I am prepared to do that but if you
16feel it is too late in the date, I am sure we can
17find an alternate date.
18 THE CHAIRPERSON: By the time we
19start it will be 4:30 and I think I would rather do
20the entire testimony in one day. I think it is
21unfair to do it over two. In terms of
22availability, you’re not available tomorrow?
23 MS STIRK: I am not available
24tomorrow morning.
25 THE CHAIRPERSON: Thursday? All
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1day?
2 MS STIRK: I have some problems on
3Thursday. Friday I am not available. Next week
4would actually be better but today or tomorrow
5afternoon.
6 THE CHAIRPERSON: Monday is what
7date?
8 THE REGISTRAR: May 3rd.
9 THE CHAIRPERSON: What is your
10best date?
11 MS STIRK: That would be fine.
12 THE CHAIRPERSON: Mr. Lunau?
13 MR. LUNAU: Yes, that would be
14fine, if it's fine with Ms Stirk.
15 THE CHAIRPERSON: How is Tuesday?
16I guess Monday is going to be good.
17 MR CHAMP: Wednesday?
18 THE CHAIRPERSON: We have --
19 MR. LUNAU: It is Thursday for the
20expert. Thursday afternoon.
21 THE CHAIRPERSON: Monday. Is that
22okay? Could we start at nine o'clock? Would that
23be a good time for you? Hopefully, I can't promise
24you to be out by noon because of my friends, but we
25will do our best.
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1 Thank you and I apologize for the
2delay for today. I hope you enjoyed today's
3proceedings.
4 We will adjourn to next Monday,
5May 3rd at 9:00 a.m. Thank you very much.
6--- Whereupon the hearing adjourned on Tuesday,
7 April 27, 2010 at 4:10 p.m. to be resumed
8 on Monday, May 3, 2010 at 9:00 a.m.
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8 I HEREBY CERTIFY THAT I have, to the best
9 of my skill and ability, accurate recorded and
10 transcribed, the foregoing proceeding.
11
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15 ___________________________________
16 Nathalie Fisher, Court Reporter
17
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9(613) 564-2727 (416) 861-8720

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1 Military Police Complaints Commission

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