Afghan detainees: The final report of the MPCC

The Military Police Complaints Commission has released its final report on the inquiry brought after Amnesty International and the British Columbia Civil Liberties Association “alleged a failure on the part of certain Military Police (MP) to investigate the Canadian Task Force Commanders in Afghanistan for directing the transfer of detainees to Afghan authorities in the face of a known risk of torture.”

The Commission’s mandate in this public interest hearing is limited to the question: Did these subjects fail to meet a positive duty to investigate the transfer orders of the Task Force Commanders in Afghanistan during the timeframe of this complaint? This mandate does not extend to making findings and recommendations concerning the Government of Canada and Canadian Forces’ (CF) policy on detainee transfers. The Commission is limited to determining whether it was reasonable for the CFPM and the other military police subjects of this complaint not to have investigated the legality of detainee transfer orders made by the Task Force Commanders.  It is for others to examine the overall appropriateness of Canada’s detainee transfer policies, and the results achieved.

The Commission finds the allegations made by AIC and BCCLA against the eight subject officers in the June 12, 2008 complaint to be unsubstantiated.  Viewing the evidence as a whole, the Commission finds no grounds to conclude any of these officers should have investigated the Task Force Commanders while in theatre, or should have caused such an investigation to occur.  The Commission finds their actions under the circumstances prevailing at the time met the standards of a reasonable police officer.

The commission’s recommendations are detailed here. Previous coverage of the MPCC hearings is here. The Colvin Encyclopedia is here.

The commission devotes an entire chapter to detailing the problems it encountered in trying to access documents and witnesses.

With the Commission’s decision to conduct public interest hearings in March 2008, and through to November 2009, the doors were basically slammed shut on document disclosure. The Commission did not receive a single, new document from the Government throughout that time period despite many requests … In addition to document issues, the Government’s uncooperative stance was also demonstrated in the difficulties experienced by the Commission in accessing witnesses for pre-hearing interviews and even into the hearings themselves…

This Commission is not the first tribunal to be confronted with difficulties in obtaining access to Government documents and evidence. As former Chairperson Peter Tinsley stated at an early stage of this Commission’s proceedings, it seemed that some of the key lessons from the Somalia experience had not been learned. This Commission was indeed struck by a number of similarities between the process issues which it faced, and the experiences reported by the Somalia Inquiry.

The Somalia Inquiry mainly had to do with the actions of the Canadian military in Somalia. The Somalia Inquiry felt compelled in its Report to tell the story of DND’s apparent reluctance to cooperate with the Inquiry when it came to transparency and disclosure of documents. The comments made by the Somalia Commission in Chapter 39 of its Report on this issue could, in many respects, be adopted almost word for word to describe the issues this Commission faced in obtaining disclosure of relevant information from the Government during these proceedings.

Early reviews are in from the Canadian Press, Ottawa Citizen, CBC, Globe and iPolitics.

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