'It would seem that some of the key lessons of the Somalia experience ... have not been learned' - Macleans.ca

‘It would seem that some of the key lessons of the Somalia experience … have not been learned’


Lost somewhat in all the discussion of Richard Colvin’s testimony, is the statement of Peter Tinsley, chair of the Military Police Complaints Commission, that immediately followed Colvin’s appearance.

Here is that statement.

Mr. Chairman and members of Parliament’s Special Committee on Afghanistan, good afternoon. I’m pleased to respond to your invitation and to assist as I may be able to the committee in its work pursuant to its motions of October 28, 2009 concerning the treatment of detainees of the Canadian Forces in Afghanistan.

As you are aware, the Military Police Complaints Commission has been engaged in the investigation of complaints concerning the treatment of detainees by the military police of the Canadian Forces since January 2007 when the first such complaint was received from Dr. Amir Attaran. Through the clerk, I have provided a chronology and I hope that you’ve received it, a chronology of the history of the commission and more importantly these complaints and the decisions related thereto. I hope they may be helpful to you.

The first complaint filed by Dr. Attaran was resolved through a public interest investigation and the file was very recently closed following the reduction of the redactions to the original report and the re-release of the report. A copy of that re-released version may be found at tab E of the additional materials provided to you this afternoon.

The other complaints also received in early 2007 from Amnesty International Canada and the British Columbia Civil Liberties Association have not been resolved and remain either before the commission pending an adjournment of the commission’s inquiry by public interest hearing process or before the Federal Court of Appeal pending a decision on the commission’s application for leave to appeal, a decision of the Federal Court. Again I’ve supplied the committee clerk with a chronology and the commission’s decisions in respect of these matters which I hope may assist you in understanding my very brief remarks.

It is because of these unresolved complaints that I believe that I’ve been invited here to speak to you and answer your questions. It’s also because of the state of these complaints still as said in the process of the commission’s inquiry or before the Federal Court that I may have to restrained in what I may say in response to your questions. That is restrained out of respect for and to maintain the integrity of these processes. I am currently presiding over a panel conducting hearings into the complaint that remains before the commission and have a duty to act fairly in respect of the parties including a requirement to speak about matters specifically before the commission only through the decisions of the commissions. I hope that you will understand.

Given the constraints upon me, perhaps I can briefly and appropriately elucidate the present situation of the commission and its inquiry process by recapping and paraphrasing some concluding remarks that I’ve made previously following delivery of the commission’s decision to adjourn on October 14th this year. The matter of the treatment of detainees by the Canadian Forces in Afghanistan by Canada’s military police has particularly given a notorious experience of some other nations in similar situations in Iraq and Afghanistan and our own recent history in Somalia attracted much public attention across our country and internationally. There is clearly an expectation of answers in respect of the complaints filed with the commission.

As I’ve said before, the concerns raised by the complaints are serious in the interests of what have been referred to as the victims or potential victims of the treatment in question. They also potentially call into question the honour and professionalism of Canada’s military police in discharging their solemn duty to uphold the rule of law within the Canadian Forces even in the midst of Canada’s most substantial military engagement in half a century.

As an agency specifically created by Parliament in the ’90s to provide greater accountability following the tragic experience in Somalia where in the outstanding efforts of so many of the Canadian Forces were nationally and internationally stained by a few and more particularly by a lack of transparency regarding the events in question. The Military Police Complaints Commission very much regrets the delays occasion to its inquiry process in these matters and to leave the public record as it is at this time replete with more questions than answers. When I speak of the public record, I am not to be sure speaking of the commission’s evidentiary record in respect of its hearing.

As of this moment, very little “evidence” is actually before the commission in the context of the formal proceedings of the public interest hearing. Nonetheless over the past two and a half years of the preceding public interest investigation and other inquiries preliminary to these hearings, certain information has come to the attention of the commission that moved the commission to convene its hearing process and underscore the importance of the inquiry.

Some of that information is indeed already in the public domain and much published.

The danger and difficulty of all of this, what I will refer to as “information”, is that it is incomplete and/or untested in a procedurally fair and thorough manner, respecting the rights of those involved. Accordingly, it cannot properly be referred to as a proper and complete evidentiary base of fact. As such, we, the commission and I, cannot draw any conclusions or implications from such information and I have cautioned the public to adopt similar restraint.

The commission also appreciates the reality that by inquiring into the conduct of military police in respect of these allegations, facts may well come to light which reflect on the actions and decisions of those outside the military police. But as has been said repeatedly, that was never the purpose or focus of this inquiry, only a possible and necessary contextual consequence exacerbated by public attention.

However, for over a year the commission sought to address this complaint through an investigation without hearings, and for that matter, without challenge to its jurisdiction. But it was compelled to resort to the more formal and public route of a hearing which was the only means available to compel production of information, or so the commission thought.

Agencies for the independent oversight of the police, like all parts of our administrative law structure, are intended to serve the people or community on behalf of the government that created them. That is, in the police oversight context in maintaining public confidence in the police, unquestionably what should be a priority for any democratic government today. The norms of independent oversight of the police across Canada, and indeed such international norms as do exist, dictate that such oversight agencies be created in statute form with the purpose of providing independence, both real and perceived, from the government of the day, of which the police are an agent.

This commission was so created in order to ensure its credibility and effectiveness in fostering public confidence in military policing, which effectively means the caring and enforcement of the laws and standards that Canadians expect within their military, including from the chain of command at home and abroad. Unfortunately, the fallibility of this arrangement has been exposed in the matter of the detainee complaints when quite out of step with the normal situation wherein the principle challenge to police oversight is what has been often referred to as “the blue wall”. The government becomes the obstacle in the oversight piece, as opposed to the police themselves.

In such circumstances, notwithstanding establishment empowerment by Parliament, experience to date in this matter has demonstrated that when the government does not cooperate, there is no equality of arms. By this martial analogy, which is also a legal one, I do not mean to suggest that the relationship between the government of the day and administrative tribunals is properly adversarial in nature; quite the contrary, it is not. Indeed, they form part of the executive branch.

However, administrative tribunals such as, or including police oversight agencies, are generally intended to serve the public interest by bringing to bear their particular expertise in a quasi-judicial fashion, including a certain independence from the government of the day. But while they are often imbued with court-like powers, they do not have the same degree of independent authority as the judiciary and are intended to provide more informal, expeditious, and expert forums for dealing with specialized matters.

However, the intended value of administrative tribunals is rendered for naught when they are confronted by the need to rely on the courts to give effect to their mandates, with all of the associated costs and delays associated therewith, a result likely not intended by Parliament when establishing such agencies.

It would seem that some of the key lessons of the Somalia experience, from which I have already said this commission arose, wherein accusations–whether well-founded or not–were fueled by a lack of transparency, have not been learned. Oversight of military policing, like military policing itself, presents a number of unique challenges. The commission’s goal throughout this process has been focused on one overarching objective: to ensure public confidence in the integrity and professionalism of military policing and the rule of law.

Again, I very much regret the additional delay occasioned by the present adjournment in rendering this service to the Canadian people, the complainants, and indeed to the military police personnel involved who continue to live under a dark cloud of unproven suspicion. However, for the duration of my appointment, I can assure that the commission will continue to be committed to resolving these matters as soon as possible, and in the public interest.

Thank you, Mr. Chair.