Hearing Transcript - April 12 2010

8/9/2019 Hearing Transcript - April 12 2010

1/210

Military Police Complaints Commission

AFGHANISTAN PUBLIC INTEREST HEARINGSheld pursuant to section 250.38(1) of the National Defence

Act, in the matter of file 2008-042

LES AUDIENCES D'INTRT PUBLIQUE SUR L'AFGHANISTANtenues en vertu du paragraphe 250-38(1) de la Loi sur la

dfense nationale pour le dossier 2008-042

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.

Ottawa, Ontarioon Monday, April 12, 2010

VOLUME 4

BEFORE:

Mr. Glenn Stannard Acting Chairperson

Mr. R. Berlinquette Commission Member

Ms. R. Clroux Registrar

APPEARANCES:

Mr. Nigel Marshman Commission counselMr. Matthew McGarvey

Ms. H. Robertson For Maj Bernie Hudson, MajMs. E. Richards Michel Zybala, Maj Ron Gribble,Mr. V. Wirth LCol (Ret'd) William H. Garrick,

CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner

Ms. Grace Pastine For Amnesty International andMr. Khalid Elgazzar ForB.C. Civil Liberties Association

Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM

A.S.A.P. Reporting Services Inc. 2010

200 Elgin Street, Suite 1105 333 Bay Street, Suite900

Ottawa, Ontario K2P 1L5 Toronto, OntarioM5H 2T4

(613) 564-2727 (416) 861-

1

2

3

4

5

67

8

9

10

11

12

13

14

15

16

17

18

1920

21

22

23

24

25

26

27

28

29

30

31

3233

34

35

36

37

38

39

40

41

42

43

44

4546

47

48

49

50

51

52

53


2/210

87201


3/210

(ii)

INDEX

PAGE

SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE 1

Examination by Mr. McGarvey 7Cross-Examination by Ms. Pastine 118Cross-Examination by Mr. Wallace 164Cross-Examination by Ms. Richards 171Re-Examination Mr. McGarvey 194

********

123456789

1011121314151617

18


4/210

(iii)

LIST OF EXHIBITS

NO. DESCRIPTION PAGE

P-53 Collection U. 2

P-54 Email from Lieutenant-Colonel Garrick datedMarch 1, 2007, document number C448. 6

P-55 Email from Lieutenant-Colonel Garrick datedMarch 6, 2007, document number C449. 6

P-56 MPCC Final Report - Public Interest Investigation. 133

********

123456789

1011121314151617

18192021


5/210

Ottawa, Ontario

--- Upon resuming on Monday, April 12, 2010

at 9:05 a.m.

SWORN: LIEUTENANT-COLONEL GILLES SANSTERRE

THE CHAIR: Good morning. Thank

you.

Bonjour. Good morning.

Before we start this morning, I

would just like for us to take a moment in

remembrance of Canadian Forces Private Tyler

William Todd, 26 years old, who was killed about

7:30 in the morning on Sunday in Afghanistan. I

think it appropriate we take a moment and remember

him and his family and the other injured soldier in

our thoughts and prayers as we move along with our

day. So if we could take a moment in remembrance.

Thank you.

Mr. McGarvey.

MR. McGARVEY: Yes, good morning,

members of the Panel. Thank you.

Just a couple of brief

housekeeping matters. First, if I could introduce,

for counsel for the complainants, this morning we

have someone who is a new face to the Panel and

myself, but not new to these proceedings, Ms. Grace

ASAP Reporting Services Inc.(613) 564-2727 (416) 861-8720

112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


6/210

Pastine, who is counsel to the BC Civil Liberties

Association and is appearing also in conjunction

with Mr. Elgazzar, with whom we are familiar, for

Amnesty International, as well.

So she is here this morning. I

would like to welcome her.

THE CHAIR: Welcome.

MR. McGARVEY: The second

housekeeping matter, there are some new exhibits to

be entered this morning. First, there is something

which is referred to as Collection U, and it is a

series of documents that were produced by Mr.

Champ, counsel for the complainants. And if those

could be entered, they already have been assigned a

number, P-53.

EXHIBIT NO. P-53: Collection

U.

MR. McGARVEY: It is a collection

of nine documents, and they have been bound and

tabbed into a volume for the parties.

THE CHAIR: Okay.

MR. McGARVEY: If I could just

make a couple of comments about these documents.

These documents were provided to

Mr. Champ apparently either directly or indirectly


212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


7/210

as a response to a public document request under

the Access to Information legislation. They were

never provided to the Commission, and it is

troubling to Commission counsel that that is the

case. It appears that the government unilaterally

decided, on the basis of evidence unknown to us,

that the documents were unavailable to the military

police, despite the fact that they appear to be

publicly available on request to members of the

public.

In our view, whether these

documents were available to the military police is

exactly what the Commission is supposed to be

determining, and we find it troubling, to say the

least, and I think it is fair to say that Mr. Lunau

and/or other Commission counsel intend to pursue

this and other issues further, but I do not propose

to canvass all of the issues in relation to that

this morning.

I simply wanted to make that

comment in relation to these documents.

THE CHAIR: Are there other

documents that are like documents that somebody has

that we have not received?

MR. McGARVEY: At this point, we


312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


8/210

cannot know that, for the simple reason that you

can't know what you don't have. So that is, I

think, what we will be pursuing. I think it is

based on some contention over the framing of and

interpretation of the summonses that were issued by

the Commission in relation to documents and what

test the government might be applying to the issue

of whether these documents were "available" to the

military police.

Of course, our view is if they are

available to the general public, these ones at the

very least ought to have been captured. But we

will leave that to further discussion perhaps

between counsel, and we will advise the Commission

further, if and when it becomes necessary to seek

Commission's formal input into the issue.

The other --

MS. RICHARDS: If I could just

comment on that before you move on, I just want to

be clear about Commission counsel's assertion that

the documents were available to the general public.

As you are aware, under ATIP all

government documents are available to the general

public subject to the appropriate privileges being

applied.


412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


9/210

So it's a bit of a misnomer to say

because these documents are available to the

general public, they would have been available to

MPs. Under the regime that we work in in the

government, all documents can be requested by the

public.

THE CHAIR: I think the argument

is bigger than that, isn't it, though, in terms

of --

MR. McGARVEY: Well, as I said, I

don't think it is productive to get into the

substance of any dispute at this time. I simply

wanted to put some comments on the record and you

have those comments.

There are two more documents to be

entered this morning. They have an MPCC number

C448 and C449. They have been assigned, subject to

being entered, Exhibit Nos. P-54 and P-55. And

they are an email -- two emails from

Lieutenant-Colonel Garrick dated March 1st and

March 6th, 2007, respectively.

THE CHAIR: So 54 would be which

email?

MR. McGARVEY: P-54 would be the

March 1st, 2007 email.


512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


10/210

EXHIBIT NO. P-54: Email from

Lieutenant-Colonel Garrick

dated March 1, 2007, document

number C448.

MR. McGARVEY: Document number

C448. And P-55 would be the March 6th, 2007

document, C449.

EXHIBIT NO. P-55: Email from

Lieutenant-Colonel Garrick

dated March 6, 2007, document

number C449.

THE CHAIR: Where are those

documents?

MR. McGARVEY: They should already

have been placed in the collection by --

THE CHAIR: Oh, they're in the

binders?

REGISTRAR: Yes, 54 and 55.

THE CHAIR: All right. Okay,

thank you very much.

MR. McGARVEY: Thank you.

Today we have one witness

scheduled. That would be Lieutenant-Colonel Gilles

Sansterre, or Sansterre, depending on how people

pronounce his name. He apparently has no


612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


11/210

preference as to the pronunciation, so we are

fortunate that the people whose inclinations lean

towards the anglicized pronunciation --

THE COURT: People have probably

messed up the pronunciation so much he has given up

in the hope of correcting.

MR. McGARVEY: Yes. I appreciate

his cooperation in that area. In any event, if we

could have Lieutenant-Colonel Sansterre appear,

please?

MR. McGARVEY: He has already been

sworn by the registrar.

THE WITNESS: Good morning.

THE CHAIR: Good morning, and

welcome. And we apologize if we at any time

butcher the proper pronunciation of your name.

THE WITNESS: No problem at all.

EXAMINATION BY MR. McGARVEY:

Q. Just for the assistance of

the members of the public and the reporters, if you

could draw the microphone a little closer to you so

that we can all hear you properly. Thank you.

Lieutenant-Colonel Sansterre, I

understand that you are currently the commanding

officer of the Canadian Forces National


712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


12/210

Investigation Service?

A. Yes, that's correct.

Q. How long have you been in

that position?

A. I have been in that position

since August of 2008.

Q. And you took command of the

National Investigation Service after retirement of

Lieutenant-Colonel Garrick?

A. Yes.

Q. Who is the subject in these

proceedings?


Q. I understand there was a

slight gap between his retirement and your taking

command?

A. Yes, there was, a month or so

or maybe a little more than that.

Q. Fair enough. If I can just

get a little bit more of your experience and

background. First of all, when did you join the

Canadian Forces?

A. In 1985, March of 1985.

Q. And you obviously, either

immediately or at some point, became a military


812345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


13/210

police. When did you become a member of the

military police?

A. I graduated from my basic

military police course, my QL3 course, in December

of '85.

Q. Okay. And could you just

tell us a little bit about your career path from

that time up until taking over the reins of the

National Investigation Service?

A. Sure. In, as I say, '85 I

graduated from my QL3 as a private military

policeman. I was posted to Shearwater, Nova Scotia

and did five years -- six years there.

I was commissioned in 1992 after

studying at St. Mary's University and acquired a

criminology degree, a bachelor of arts, majored in

criminology, and was commissioned in the Canadian

Forces as an officer in the military police branch.

From there, had postings to

Halifax to the military police guard room there;

Winnipeg, Manitoba as the detachment commander of

the military police section there; one year with

the Military Police Academy where I was a training

officer; followed by 2001 with a posting to Ottawa

in a position then known as the Deputy Provost


912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


14/210

Marshal National Investigation Service - 2, so kind

of a senior operations officer's position in the

organization in headquarters.

Following that, I was the officer

commanding of our support detachment. On promotion

to major, I took over that detachment for 18 months

to two years. Then following that I was the

officer commanding of central region of the NIS

detachment, and in 2006 was promoted to my current

rank of Lieutenant-Colonel.

And from there, did jobs in

resource management, in individual training and

education, a short stint in our professional

standards organization, and in -- which brings me

to 2008, in August, where I was appointed as the CO

of CFIS.

I had one operational tour in

Kosovo in 1999 and attended, you know, Manitoba

floods, off in Montreal with the ice storm in early

2000.

Q. Thank you. I would just

like, for the assistance of the Panel, if we could

go into a little bit about what the NIS is, how it

is structured, how it its command is structured and

what its purpose is.


1012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


15/210

So perhaps we could start this

way. We have heard that the Canadian Forces

National Investigation Service is a branch of the

military police; correct?

A. Yes. We are a unit within

the military police organization, yes.

Q. Can you describe the chain of

command within the National Investigation Service?

In other words, you're the head of the National

Investigation Service. Who reports to you and who

do you report to?

A. All detachments' OCs report

to me, so everybody that works within the National

Investigation Service, through their officers of

course, report to me, and I report directly to the

Canadian Forces Provost Marshal.

Q. Okay. And with respect to

the non National Investigation Service military

police, what, if any, command relationship is there

between the NIS and those military polices?

A. I have no command

relationship over any military police other than

National Investigation Service, unless -- there are

times that military police members are seconded to

the unit to work on NIS-related files. At that


1112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


16/210

time, I would have command relationship.

Q. So, in essence, if I

understand correctly, it is a separate and

independent chain of command of its own, separate

from the military police chain of command; is that

correct?

A. We have a separate, an

independent chain of command from the Canadian

forces, but we are -- I report to the Canadian

Forces Provost Marshal as the head of the military

police.

Q. Fair enough. But, sorry, I

-- the Canadian Forces Provost Marshal, he's the

head of the military police for the Canadian

Forces, but there is no reporting relationship

between, for instance, detachment commanders who

are not in the NIS, the task force Provost Marshals

who might be deployed in various places in the

world. There is no direct command relationship

between those people and your organization; is that

correct?

A. That's correct.

Q. Okay. What would the purpose

of the National Investigation Service be, and why

would it be in a separate sort of chain of command


1212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


17/210

all on its own?

A. The purpose of the National

Investigation Service is, essentially, it's a major

crimes unit of a police department to investigate

serious and sensitive matters.

Q. And what kind of matters

would count as serious and sensitive matters, such

that they would be perhaps unique to the purview of

the NIS?

A. Sure. By definition, serious

are those indictable or hybrid offences, those more

serious crimes. And sensitive is -- sensitive

would be, firstly, to find as crimes committed by

persons in authority. In the beginning, we tagged

it majors and above, but there are times that, you

know, base chiefs or people in significant

positions, any crimes that they commit, we would be

responsible for investigating.

Q. Now, you have been using the

crimes that they commit. What you really I think

mean is allegations; correct?

A. Yes, that's correct,

allegations of any crimes that have been committed.

We investigate them and determine if there is any

factual basis to those allegations and lay charges,


1312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


18/210

if warranted.

Q. Right. Would your

investigative duties include -- would the NIS

investigative duties include investigation into

whether, for instance, a commander's orders were

proper or unlawful? Would that be the kind of

thing, I guess, that is within the NIS purview?

A. Yes. That could be something

that could be investigated, yes.

Q. And are there specific NIS

duties which relate to treatment of detainees or

prisoners of war?

A. All of the complaints -- all

of the allegations or complaints made with regards

to treatment of detainees and those subjects go to

discipline as part of the technical authorities on

deployment. The NIS detachment in Afghanistan

would investigate; would investigate any of those

allegations, yes.

Q. Okay. And just in terms of

the legal framework that that might include, I may

be referring to some of the documents in front of

you. And just so I can clarify in advance, there's

a collection of five documents with white covers

called the main witness documents.


1412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


19/210

There's then a collection of two

documents with blue covers, which are the NIS

witness documents. I may be referring to those,

and we have a couple of other documents we may look

at today, just for clarity for your assistance, if

I can look at that.

If you could turn to the main

witness book, volume 2, so the large white

collection? This document -- sorry, this volume

contains documents at tab 19, and, unfortunately,

not all of the individual pages are numbered, but

if you leaf through so that you are approximately

two pages from the end of that tab?

Now, first of all, at the top of

the page on the right-hand side there's an

identification number, and it seems to be a policy

document of sorts in relation to military police

officers. Is this document familiar to you?

A. No, it isn't.

THE CHAIR: Which page are you on,

Mr. McGarvey?

MR. McGARVEY: Well, all of the

pages at the top -- if you turn to the very front

of it, it has "Chapter 5 - Detention Operations".

Then at the very top there is a


1512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


20/210

document number, and it seems to be a military

police document entitled -- well, it has a

reference number B-GL-362-001/FP-001.

MS. RICHARDS: Just for the

clarity of the Panel and for Mr. McGarvey, we heard

testimony regarding this document previously when

we had general witnesses. This is not a military

police document. This is an army document. If you

go back to the front page, you will see that

there's a footnote down at the bottom, which says,

"Conduct of Land Operations - Operational Level

Doctrine for the Canadian Army".

MR. McGARVEY: Okay.

MR. BERLINQUETTE: On the page

just previous to that at paragraph 4 -- 34-4:

"The purpose of this manual

is to establish the doctrinal

basis for the provision of

Military Police support to

tactical units and formations

of the Canadian Army."

So --

MS. RICHARDS: It is a Canadian

Army document. It was prepared by the Land Force,

and it is an internal document that talks about how


1612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


21/210

military police support their operation.

So as you may recall, Member

Berlinquette, we heard testimony previously about

these documents. It certainly does talk about

military police, but it is not a military

police-generated document.

MR. BERLINQUETTE: Thank you.

BY MR. McGARVEY:

Q. That's fair enough. Perhaps

if I can direct you, then, to this document two

pages from the end, there is a title, "Criminal

Investigations".

I think what this outlines is the

Canadian Army's understanding of how the National

Investigation Service offers what would be termed

operational support. Does that accord with what

you might read in this document?

A. You are referring to

paragraph 37 that talks about the NIS; correct?

Q. Yes.

A. Yes.

Q. And I think if I understand,

to sum paragraph 37 up, what it seems to indicate

is that, when deployed with the army, the National

Investigation Service is independent of the army


1712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


22/210

chain of command and remains under the command of

the Canadian Forces Provost Marshal, and then down

through your chain; is that correct?

A. When deployed, the NIS

resources remain under command of the Canadian

Forces National Investigation's CO, myself;

correct.

Q. And the National

Investigation Service, as they point out, has the

authority to lay charges if they investigate and

see fit to lay charges; correct?


Q. The upshot of this, I take

it, would be that the decision to lay charges, or

not, would be independent of the army's own command

structure. It would be up to the military police

and the National Investigation Service people

investigating to decide whether or not to lay

charges in circumstances where they were met with

an allegation when deployed with the army; is that

correct?

A. That's correct. The NIS can

lay charges independent of the army chain of

command when the elements of any offence have been

met.


1812345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


23/210

Q. And, conversely, if the army

chain of command preferred there not be charges

laid, the NIS could do so, anyway?


Q. In paragraph 38, it indicates

that the army's understanding, at least, is that

this can include allegations of breaches and grave

breaches to the Geneva Conventions, and that

persons who are alleged to have violated these

conventions could be investigated and brought

before Canadian courts pursuant to the Criminal

Code and National Defence Act.

Does that accord with your

understanding of the NIS's jurisdiction?

A. The NIS has jurisdiction over

persons subject to the Code of Service Discipline;

that's correct, yes.

Q. And that would include

allegations of violations of such statutes as the

Geneva Convention, at least as it is incorporated

into Canadian law?

A. Yes.

Q. When you indicate that you

have jurisdiction over Code of Service Discipline

offences, would that include such things as


1912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


24/210

violations of the law of armed conflict or the

rules of engagement?

A. Just to clarify, I said we

have jurisdiction over persons subject to Code of

Service Discipline.

Q. Fair enough. When you have

jurisdiction over persons who are subject to the

Code of Service Discipline, would that entail that

you have jurisdiction to investigate allegations

that they have breached the Code of Service

Discipline by violating, for instance, the rules of

engagement of conflict, the laws of armed conflict?

A. Yes.

Q. Would that also include the

jurisdiction to investigate if a commander had

issued an order which -- I'm not saying that you

would necessarily conclude they had issued an order

which was illegal, but if somebody alleged they had

issued an order which was illegal, would you have

the jurisdiction under the Code of Service

Discipline and/or Criminal Code to investigate a

Canadian Forces commander who has issued an order?

A. A Canadian Forces commander

who has issued an order, yes.

Q. Okay. The topic that has


2012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


25/210

been raised by the complainants in this matter is

that certain commanders may have issued orders

which violate various Canadian statutes and perhaps

international statutes, and thereby their orders

were unlawful.

I take it from what you have said

that investigation of such an allegation would at

least be something the NIS has jurisdiction to

pursue?

A. Yes.

Q. Just getting to your own role

in the National Investigation Service, sometimes it

is difficult, for people who aren't directly

involved, to understand exactly where you stand

with respect to particular investigations and what

your role is as an oversight commander of the NIS.

Could you just explain how

involved you are in the day-to-day operation of the

NIS investigations that are conducted or initiated?

Do you have decision-making power into what is

initiated? Are you consulted? Do you have

oversight and do you determine whether it was

appropriate after the fact, or --

A. Well, I am head of the

Canadian Forces National Investigation Service, so


2112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


26/210

I have people that look after day-to-day operations

of it. I can't be involved in every one of the

investigations that are ongoing, so I have

oversight, I guess is the best way --

Q. Do you personally have to

give your approval before an investigation is

initiated, or does that happen lower down on the

CFNIS chain of command?

A. That can happen at the

detachment level. If the detachment receives

allegations, receives a complaint, they can

initiate an investigation. We are made aware of

that initiation of investigation and we monitor it.

Somebody within my staff would

monitor that investigation.

Q. And what about the decision

to either not investigate or to cease to continue

to investigate something? Is that something that

occurs at the lower levels or would that decision

have to occur at your level, if an allegation was

raised?

A. If an allegation is raised

and it goes to the detachment level and they feel

that it should be left to the military police

detachment to investigate, not the NIS to


2212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


27/210

investigate, they can do that. But, again, they

notify us that they have -- I would not say refused

an investigation, but are not proceeding with the

investigation and feel it is best to investigate it

by the military police detachment.

Q. Can you just tell us, in

general, are NIS officers empowered to initiate

investigations on their own, absent a specific

complaint? In other words, if they detect that

there may be something, you know, based on, for

instance, publicly available documentation or

publicly available discussions, if they detect

there may be an issue which raises a matter of a

serious and sensitive nature in the military

command, are NIS officers empowered to initiate an

investigation on their own?

A. Yes, they are. They would

tell their chain of command that, you know, I have

heard about this through whatever means.

As you can appreciate, we're not

the front line police officers out patrolling the

beat, so don't come upon crimes ourselves often.

Q. Sure.

A. It is usually through

allegations and complaints made to us.


2312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


28/210

Q. One of the allegations that

did make it into the public sphere was the

allegation contained in the complaint to the

Military Police Complaints Commission by Amnesty

International and the BCCLA in June of 2008. First

of all, are you familiar with that complaint?

A. I am familiar with the

complaint, yes.

Q. Okay. So you took over the

NIS shortly after that complaint, a couple of

months, and that complaint relates to an alleged

failure to investigate on the part of various

military police officers, including the NIS,

potentially unlawful orders to transfer detainees

between May 3rd, 2007 and June 12th 2008.

Do you know if there were any NIS

investigations of that kind during that period of

time?

A. Can you say that question

again, please?

Q. Sure. The complaint alleges

that the NIS and the military police failed to

investigate potentially unlawful orders to transfer

detainees between the period of May 3rd, 2007 and

June 12th, 2008.


2412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


29/210

You took command of the NIS in

August of 2008. Do you know whether there were any

investigations? In other words, they're saying

nobody investigated. Do you know if there were

investigations into the lawfulness of transfer

orders between May 2007 -- made between May 2007

and June 2008?

A. No, I have no knowledge of

any of those investigations.

Q. And none have been initiated

under your command; is that fair to say?

A. Into the orders, no.

Q. Okay. Now, I would like to

get into some specific investigations that I

believe were ongoing during your tenure.

A. Sure.

Q. There is a matter known as

Operation Centipede. Are you familiar with that

investigation?

A. I am familiar, yes, with the

investigation.

Q. And, more accurately, that's

a series of investigations that were collected

under a single umbrella; is that fair to say?



2512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


30/210

Q. And it had a general

occurrence number, which would be 2008-6906. And

were you involved in the startup of operation

Centipede?

A. No.

Q. It predates your tenure as

the commander of the NIS, the startup of it?

A. That's correct.

Q. And I believe it started in

March 2008 under your predecessor,

Lieutenant-Colonel Garrick; is that correct?

A. I don't know the exact date

when it started, but Lieutenant-Colonel Garrick was

my predecessor, yes.

Q. Fair enough. You, however,

were the commanding officer when it wrapped up in

April 2009; is that correct?

A. When some of the

investigations wrapped up, that's correct.

Q. Okay. If you can turn to the

NIS collection?

A. Which volume?

Q. Volume 1, please. If you

look at -- the page references I will use are the

ones at the very bottom of each page, the very


2612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


31/210

small lettering or numbering. So tab 11, if I

could just direct your attention to page 6 of 66?

Then we have page 6 and 7. There is a letter, I

believe, under your signature; is that correct?


Q. And this is a letter directed

to the Canadian Forces Provost Marshal, the CFPM?

A. Yes.

Q. And this is a report from you

concerning the findings of Operation Centipede?

A. That's correct. It is a

summary of the eight specific investigations under

Op Centipede.

Q. Okay. And I am just

wondering. You said that in April 2009 you

reported on or concluded some of the

investigations. Could you clarify whether it was

some of them or all of them that were concluded as

of April 1st, 2009?

A. This is a summary of all of

the Op Centipede investigations, and it is a letter

saying that they have all been concluded now. Some

of these specific investigations were concluded

earlier, but this one closes off all of them, the

last one, I guess.


2712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


32/210

Q. In fairness, some of the ones

concluded before you were even commanding officer

of the NIS, the individual investigations; correct?

A. That's correct. Some of them

were concluded prior to, yes.

Q. And so, again, this is an

oversight letter from the commander of the National

Investigation Service saying, My people have

concluded these investigations and here is a

summary of the results?

A. Here is the general findings,

correct.

Q. When you, if I can put it

this way, signed off on this umbrella

investigation, did you first review the individual

investigation findings? Did you go through each

one of these?

A. I would have had a cursory

review of them and briefings from my ops or my DCO

on what the outcome of those investigations were.

Q. So you either looked over

them or you were briefed on them before signing off

on them?

A. Yes.

Q. And by signing off on them,


2812345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


33/210

are you, I guess, sustaining that they have been

fully and properly investigated to the best of your

knowledge at that time?

A. I am signing off that the

investigations are complete, yes.

Q. And that would include that

the scope of the investigation was as thorough as

you would expect?

A. Yes.

Q. And the conclusions reached

were appropriate in light of the evidence that was

uncovered?

A. Yes.

Q. Are you familiar with -- you

must be familiar with something called SAMPIS, the

military police data bank of investigative

materials, computer-based data bank?

A. Security and Military Police

Information Centre, that's correct -- Information

System, sorry.

Q. So what we have a fair number

of with relation to Operation Centipede would be

SAMPIS printouts in relation to these

investigations. Would you have reviewed things

like the SAMPIS printouts before signing off?


2912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


34/210

A. Yes.

Q. What, in your view, was the

focus of Operation Centipede in terms of the

investigation? It is umbrella, but why is it an

umbrella and what is its purpose?

A. I understand when Centipede

stood up, it was to investigate allegations of

abuse of detainees by military personnel or persons

subject to the Code of Service Discipline in

Afghanistan.

Q. So your understanding was it

is to investigate abuse of Afghan detainees by

Canadian Forces members or persons covered under

the Code of Service Discipline?

A. Allegations of those abuses,

yes.

Q. Was it your understanding

that it was limited to abuse allegations where the

abuse itself was committed by persons covered by

the Code of Service Discipline?

A. Yes. That would be my

understanding, yes.

Q. So I take it it would follow,

from your understanding, at least, Operation

Centipede was not meant to capture the situation


3012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


35/210

where somebody other than a person covered under

the Code of Service Discipline abused a detainee

after we had transferred them?

A. Persons not subject to the

Code of Service Discipline that we have no

jurisdiction over, no.

Q. I take it also that it did

not include an investigation of the persons making

orders to transfer where there was an allegation of

subsequent abuse by a non-Code of Service

Discipline jurisdiction person?

A. No, it did not.

Q. I asked you earlier about

whether the NIS had jurisdiction to investigate

allegations that an order was unlawful.

There is something that crops up

fairly routinely in our enquiry and that is

something called a theatre standing order.

Could you explain, first of all,

just so that we have an understanding, what is a

theatre standing order in military parlance?

A. A standing order would be a

commander's order to the troops on specific rules

and regulations, for example, maybe one on alcohol.

There will be no consumption of alcohol on camp.


3112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


36/210

That would be --

Q. Would it be accurate to

characterize a standing order as an order that

applies not to a specific set of circumstances or

specific individual conduct, but it is an order

that covers conduct over a period of time? In

other words, alcohol while in Afghanistan, here is

the broad regulatory framework and this is an order

now, that kind of thing?

A. Could you repeat your

question, please? Sorry.

Q. Sure. I just want to

distinguish a standing order from an individual

order. You know, an officer can issue an order. I

would like to know the difference.

A. Well, the standing order is,

of course, in writing and, until revoked, is the

order.

Q. A broadly applied set of

rules for the set of circumstances that the order

is directed at?

A. Yes.

Q. Now, one of the theatre

standing orders that we have a lot of interest in

here would be something called TSO-321A. Are


3212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


37/210

you familiar with that?

A. No. I wouldn't -- you know,

I would have to refer to whatever book, if you have

a book here.

Q. Fair enough. If you could

turn to volume 2 of the main witness collection,

the white collection, and if you could turn to tab

2.

A. Thank you.

Q. This is something referred to

as the theatre standing order or TSO 321,

"Detention of Afghan Nationals and Other Persons".

I think, if you turn to page 12 of

37, it indicates that this TSO is effective as of

27 May 2007?

A. Yes. It does, yeah.

Q. Okay. This appears to be a

standing order concerning the detention of Afghan

nationals and other persons and how that is to be

handled; is that fair to say?

A. Yes.

Q. Would the National

Investigation Service have jurisdiction to

investigate allegations that this theatre standing

order was not complied with, if it were not -- if


3312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


38/210

there were an allegation it was not complied with?

A. Yes, it could be possible

that if there was an allegation that it was not

complied with, that we would investigate, yes.

Q. Do you know if, either in

relation to Operation Centipede or in relation to

matters occurring between May 2007 and June 2008,

there were ever investigations by the NIS into

allegations that any element of the theatre

standing order was not complied with?

A. I don't know.

Q. Are allegations of violations

of orders always a matter for the military police,

or are they sometimes dealt with by the chain of

command on its own, to your knowledge?

A. They can be dealt with by the

chain of command, depending on the seriousness of

the order. For example, some soldier doesn't get

his hair cut, but it says there is an order he is

supposed to have a haircut, it certainly would not

be something that the NIS would investigate.

Q. Certainly, though, if it was

something that counted as serious, it would be an

NIS matter?

A. Yes.


3412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


39/210

Q. If I can turn to some

specific general occurrences under Operation

Centipede just to get some clarification and to get

your views on some of them?

A. Sure.

Q. There is a general occurrence

at tab 1.

A. To volume?

Q. And it is NIS witness

documents volume 1 of 2.

A. Thank you.

A. Sorry, tab 1?

Q. Tab 1.

A. Thank you.

Q. And if you turn to page 6 of

11, there is a letter, I believe under your

signature, January 15th, 2009; correct?

A. Yes.

THE CHAIR: There is nothing in my

notes --

MR. McGARVEY: Oh, okay.

THE CHAIR: Go ahead.

MR. McGARVEY: Okay, good.

BY MR. McGARVEY:

Q. So January 15th, 2009, you


3512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


40/210

write a letter which seems to be directed towards

the issue of a loss of a server containing secret

information.

Could you tell us a little bit

about -- first of all, was that the main subject

matter of 2007-2589, or was this a side issue in

that investigation, or do you know?

A. I don't really know.

Q. If you would turn to page 8

of 11, we have the synopsis of it, and I believe,

to put it in short form, this is the Attaran

investigation into the alleged abuse of three

Afghan detainees. Is that -- I may be wrong about

that, but --

A. That's certainly what it --

it seems to deal with a complaint from three

detainees from April '06, it looks like

investigated by Inspector Gfellner, which would be

the file known as Camel Spider, I guess.

Q. We have heard a little bit

about Camel Spider in the past, but your letter

seems to be directed specifically towards a loss of

a server, a computer server?

A. Correct.

Q. Your conclusion was that the


3612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


41/210

server wasn't lost. It was wiped clean and brought

back into service?

A. Yes.

Q. Was this seen as something

sort of administrative and routine, or was there a

concern about whether, in this rather sensitive

investigation, information was being tampered with,

or do you know?

A. I don't know.

Q. In any event, there were no

charges or steps taken as a result of this server

being wiped clean?

A. Not to my knowledge.

Q. If you could turn to tab 21?

I think if we look at page 5 of 45, this is General

Occurrence 2008-6918?

A. Yes.

Q. And what we have at page 5 of

45 appears to be Sergeant Patricia Scowen's summary

of the nature of the investigation or the nature of

the complaint; is that fair to say?

A. Yes. The MPIR complaint,

correct, military police information report

complaint.

Q. Okay. Could you just


3712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


42/210

clarify? What is an MPIR complaint synopsis?

A. When we open an

investigation, we put a complaint in, so it is a

military police information report complaint.

Q. Okay. This is essentially

the framing of the complaint as entered by the

military police on their SAMPIS system?

A. Correct.

Q. And it indicates that there

was information raised from Colonel Noonan's

affidavit, which is in the news on May 4th, that

abuse had taken place after a detainee was handed

over and Canadian Forces persons observed it and

took no action. Why did chain of command not

report this?

I think attached to this we see at

page 13 of 45, and also at page 8 of 45, two

newspaper articles dated May 4th, 2007. Then

starting at page 18, we see Colonel Noonan's

affidavit itself.

A. Yes. That's correct.

Q. Now, do you know the context

in which this affidavit of Colonel Noonan existed?

Do you know about the court application or

applications upon which it was tendered?


3812345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


43/210

A. No, I don't.

Q. So did you go into any other

documents with respect to the Federal Court

application to see if there was another side of the

story, other than Colonel Noonan's affidavit, to

address this allegation?

A. Did I personally do that?

Q. Or direct anybody or

understand anybody under your command to have done

so?

A. I am not aware, no.

Q. I am going to be referring to

something that is already an exhibit. However, it

doesn't, for some reason, appear to have been put

into the binder collection, perhaps because it was

already an exhibit entered. We are just handing

out copies. If you could bear with us for a

moment?

THE CHAIR: Where we might find

that one?

MR. McGARVEY: You will find that

at Exhibit P-9, which I believe is -- it is in the

human rights and related materials book volume.

THE CHAIR: Volume 5, tab?

MR. BERLINQUETTE: Tab number?


3912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


44/210

MR. McGARVEY: Oh, sorry. Tab 42.

BY MR. McGARVEY:

Q. And, Colonel Sansterre, do

you have that document in front of you?

A. Tab 42 to volume 5?

Q. Yes.

A. Yes.

Q. If you look at paragraph 2,

which is at page 2 of that decision of Madam

Justice Mactavish, just to give you context, this

was an injunction application by Amnesty

International to cease the transfer of detainees

because of the risk of torture or abuse.

At tab 2, Madam Justice Mactavish

indicates that:

"The evidence adduced by the

applicants..."

That is by the complainants in

this matter:

"... clearly establishes the

existence of very real

concerns as to the

effectiveness of the steps

that have been taken thus far

to ensure that detainees


4012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


45/210

transferred by the Canadian

Forces to the custody of

Afghan authorities are not

mistreated."

MS. RICHARDS: In fairness to the

witness, perhaps we could ask him first if he has

ever seen this document, and also to, in fairness

to him, give him the date of the decision.

BY MR. McGARVEY:

Q. Very well. This is a

decision dated February 7th, 2008. You can see it

on the front on the first page.

A. Yes.

Q. I took it from your earlier

answer you had not reviewed this document, because

you said you did not review anything other than

Colonel Noonan's affidavit in the record. Am I

correct in saying that?

A. I have never seen this

document, no.

Q. Okay. Had you been aware

that a Federal Court judge was of the view that

evidence filed in this matter clearly establishes

the existence of very real concerns as to the

effectiveness of steps that have been taken thus


4112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


46/210

far to ensure the detainees transferred by Canadian

Forces to the custody of Afghan nationals -- of

Afghan authorities are not mistreated -- had you

been aware of that and perhaps whatever led her to

come to that conclusion, do you think that might

have been relevant to an assessment of General

Occurrence 2008-6918?

A. Well, without the opportunity

to review the entire document, it is very difficult

to say. However, this does not give me any

suspicion that any torture or any abuse has

occurred.

It says that there is concerns

that the Canadian Forces doesn't take effective

steps to make sure that there is no -- there's no

crimes committed, so --

Q. You would want to see more

before you could come to that assessment,

basically?

A. Certainly this doesn't --

yeah.

Q. I suppose part of the point

is: Why would the Canadian Forces National

Investigation Service not look to see more; in

other words, look at the actual documents that


4212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


47/210

underlay a decision like this?

A. I don't know if we had access

to these documents. Like I say, I didn't see these

documents, so --

Q. Well, this is an application

in the Federal Court, which would include materials

that were matters of public record, such as the

affidavit of Colonel Noonan. Presumably the

complainants didn't file Colonel Noonan's

affidavit. They would have relied on their own set

of supporting documents.

Is there a reason the NIS wouldn't

have looked to the application records to see if

there is anything relevant to detainee abuse

issues, in your view?

A. No.

THE CHAIR: Excuse me, would that

be "no", nothing relevant, or -- what are you

saying "no" to?

THE WITNESS: In answer to his

question, no, there is no reason why we wouldn't

have, I guess.

BY MR. McGARVEY:

Q. No reason not to?

A. Right.


4312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


48/210

A. Okay, fair enough. Thank

you.

If you would turn to page 20 of

that decision, paragraph 85, it indicates that:

"Eight complaints of prisoner

abuse were received by

Canadian personnel conducting

site visits in Afghan

detention facilities between

May 3, 2007 and November 5,

2007. These complaints

include allegations that

detainees were kicked, beaten

with electrical cables, given

electric shocks, cut, burned,

shackled, and made to stand

for days at a time with their

arms raised over their heads.

"While it is possible that

these complaints were

fabricated, it is noteworthy

that the methods of torture

described by detainees are

consistent with the type of

torture practices that are


4412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


49/210

employed in Afghan prisons,

as recorded in independent

country condition reports,

including those emanating

DFAIT.

"Moreover, in some cases..."

Paragraph 87:

"... prisoners bore physical

signs that were consistent

with their allegations of

abuse. In addition, Canadian

personnel conducting site

visits personally observed

detainees manifesting signs

of mental illness, and in at

least two cases, reports of

the monitoring visits

described detainees as

appearing 'traumatized'."

If that kind of information, which

pertains to site visits between May 3rd, 2007 and

November 5th, 2007, if that had been brought to the

attention of the NIS or if the NIS had looked at

documents supporting such contentions, would that

have initiated an investigation into the


4512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


50/210

circumstances, including perhaps whether it was

appropriate to order people to be transferred into

those circumstances?

A. There is not enough specific

information in these paragraphs to lead me to

believe that these were detainees that were

captured by Canadians, and their mistreatment of

course happened in Afghan jails.

So without more specific

information, it would be difficult to say we could

launch an investigation.

Q. Now, just on the second

point, the mistreatment certainly is alleged to

have happened in Afghan prisons, and you do not

have jurisdiction in the NIS over Afghan personnel

abusing people in Afghan prisons; correct?

A. That is correct, yes.

Q. However, the fact that you do

not have jurisdiction to lay a charge against such

a person does not mean you cannot enquire of those

persons in order to establish facts that might be

relevant to laying a charge against a Canadian

Forces member; is that correct?


Q. You can ask and enquire and


4612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


51/210

look into facts in Afghanistan if you want to

investigate allegations against a Canadian Forces

commander, for instance; correct?

A. Yes.

Q. If you could turn, please, to

page -- sorry. Just to continue, you indicated

that there is a lack of information in those three

paragraphs I have excerpted to come to any

conclusions about whether any crime has been

committed by a member of the Canadian Forces; fair

enough?

A. Yes. Yes, that's correct.

Q. Is there not enough in those

paragraphs to lead one to make further enquiries

into the basis for a Federal Court judge's

conclusions of that nature?

A. I mean, you are asking me to

give you my opinion based on three paragraphs of --

again, you know, of a lengthy document.

We could enquire further, based on

this, to get more information.

Q. In your view, having read

this, should the NIS either have enquired further

or should it enquire further into this kind of

allegation?


4712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


52/210

A. Again, sorry, you are asking

me to make a split-second decision based on just

three paragraphs, and I don't think I can do that

today. I mean, we make decisions on what we

investigate as a command team, more information,

seek legal opinion on the matter, seek legal

review, some opinions, some guidance. So --

Q. Fair enough. I am not asking

you to come to a conclusion as to whether you

should charge anybody or do anything like that. I

am just asking, and I think you have confirmed,

that it might merit looking into further facts once

you read something like this coming from the

Federal Court?

A. There really isn't much

specific in here that would lead me to that

conclusion.

Q. Now, if you can just turn

back to Colonel Noonan's affidavit, if you look at

page 31 of 45? That is in the NIS volume, witness

book volume 1, tab 21, again, page 31 of 45 at tab

21.

First of all, I would like to be

clear about the sequence of events. Colonel

Noonan's affidavit is sworn on May 1st, 2007, if


4812345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


53/210

you look at the end of it. The Federal Court

decision I have been reading from is from February

2008, and you signed off on Operation Centipede in

April of 2009.

So the injunction decision comes

after Colonel Noonan's affidavit, before you have

concluded Operation Centipede, which includes 6918?

THE CHAIR: Can you just go slow

and give me those dates again?

MR. McGARVEY: Sure. Colonel

Noonan's affidavit, if you look at page 40 of 45,

is sworn on May 1st, 2007.

THE CHAIR: Okay.

MR. McGARVEY: The Federal Court

decision I have been reading from is dated Ottawa

February 7th, 2008. That's from the first page of

Madam Justice Mactavish's decision.

THE CHAIR: Right.

MR. McGARVEY: And Officer

Sansterre's letter wrapping up globally Operation

Centipede is dated April 1st, 2009.

BY MR. McGARVEY:

Q. Do you think it would have

been helpful to you, before concluding at least

this general occurrence in Operation Centipede, to


4912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


54/210

have had an opportunity to review those Federal

Court materials that might have informed Madam

Justice Mactavish's decision and her comments in

those paragraphs I have read?

A. First off, I am not really

clear on the Madam Justice's decision. Was it to

cease transfers? I am not familiar with the

document enough to know that.

Q. It was an injunction

application to cease the transfer of detainees

because of the risk of torture.

THE CHAIR: For purposes of

clarity, maybe we should take the time so that he

can read the document. I think it may be important

enough.

MS. RICHARDS: Yes, or fully and

fairly characterize that the decision at the time,

transfers had been ceased. So just to be clear.

MR. McGARVEY: Yes.

THE CHAIR: Because you are going

to rely on the document, I think we should take the

time for him to read it.

MR. McGARVEY: Fair enough.

MS. RICHARDS: I guess my only

comment on that is certainly Lieutenant-Colonel


5012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


55/210

Sansterre is being as helpful as he can. He's

already said he hasn't read this document.

Commission counsel is asking him

to hypothesize, and I think he is being as helpful

as he can, but I am not sure how helpful that

information is to the Panel when you are asking a

witness to hypothesize or guess.

THE CHAIR: I think we will wait

and see at the end of it. Whichever documents you

think he should read, if we -- whether it be

Noonan's affidavit or Mactavish's decision, we can

take 20 minutes and give the Lieutenant-Colonel

time.

MR. McGARVEY: That might be a

good idea to allow him the opportunity to do that.

THE CHAIR: I think it is fair.

MR. McGARVEY: Thanks.

THE CHAIR: We will adjourn, we'll

say until -- in fairness to the witness, say until

20 to 11:00 to give him ample time to review them.

--- Recess at 10:10 a.m.

--- Resuming at 10:52 a.m.


THE CHAIR: Thank you.

--- Upon resuming at 10:56 a.m.


5112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


56/210


THE CHAIR: Thank you.

BY MR. McGARVEY:

Q. Thank you, Colonel Sansterre,

and obviously, you know, given that length of time,

we are not expecting you to have an encyclopedic or

textbook knowledge.

A. Thank you.

Q. But I hope we can just

advance a little bit of the questioning as a result

of your review.

Maybe I could back up one step to

establish: Did you in fact at some point, when

reviewing General Occurrence 6918, review Colonel

Noonan's affidavit or portions thereof? Do you

recall?

A. I don't recall.

Q. But it was scanned into the

SAMPIS records that would have been available for

anyone reviewing that particular general

occurrence?


Q. I took you to several

paragraphs of the decision, the injunction

decision, which is in Exhibit P-9, tab 42. I think


5212345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


57/210

the last one I had read was number paragraph 87.

If I could just ask you, having

had a chance to review Madam Justice Mactavish's

commentary about the complaints of prisoner abuse

that were received between May 3rd, 2007 and

November 5th, 2007, would you have liked, on

reflection, to have had more information at your

disposal before finishing 6918 than simply Colonel

Noonan's affidavit?

A. Having an opportunity to

review this now, I point to section -- to paragraph

30 and I wonder. I assume that is a typo in the

date? It says November 6th, 2008 is when the

transfers ceased.

I assume that is 2007, because the

next paragraph talks about, as a result of the

receipt of this allegation, no detainee transfers

took place after November 5th.

Q. Yes. I would think that is a

typo; that's correct.

A. Okay. Having reviewed this

and taking particular note of paragraph 91 --

Q. Yes.

A. -- which, in summary, says:

"The allegations of


5312345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


58/210

mistreatment occurring in the

period between May 3 and

November 5 were allegedly

investigated, and found to be

without merit. Even though

Afghan authorities considered

allegations to be

unsupported..."

There were additional preventive

measures taken by the Canadian Forces.

My read of this is, on the 5th of

November, the commander in theatre was given

reports on allegations of mistreatment, and on the

6th he ceased transfers.

So none of what I have read or

skimmed through has given me cause to believe or

suspect that the commander knowingly or willingly

would have given any detainees over to the Afghan

authorities to be tortured.

Q. Fair enough. With respect to

the suggestion in paragraph 91 that you just

referred to, that allegations of mistreatment were

investigated and found to be without merit, was

that, to your knowledge, done by the National

Investigation Service?


5412345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


59/210

A. No, it was not.

Q. Do you know if it was done by

any military police officer if it wasn't the NIS?

A. No, I don't.

MS. RICHARDS: It says right in

there it was done by the Afghan authorities.

BY MR. McGARVEY:

Q. So would it be your evidence,

then, based on paragraph 91, that on the basis of

Afghan authorities' reassurances, there would be no

cause to take further steps to investigate these

matters?

A. Can you say that again,

please?

Q. Paragraph 91, as my friend

quite aptly points out, indicates that they were

investigated and it appears to be their view that

they were unsupported.

Does that conclude the matter,

from your perspective, that if Afghan authorities

say there was no support for this, there is no

cause for investigation by the NIS into the

circumstances?

A. Well, I don't have the

jurisdiction to go investigate what happens in


5512345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


60/210

Afghan jails, so I am not really sure what you are

getting at. I'm sorry.

Q. Well, no, but you can

investigate the orders to transfer, and there were

allegations that abuse occurred post-transfer.

And I think your answer to a

question earlier was that you can, of course,

investigate facts in Afghanistan even though you

can't take jurisdiction to proceed with any kind of

legal proceedings vis--vis Afghan nationals or

non-CF Code of Service Discipline covered

personnel.

So my question would be, first of

all: Did you or anyone at the NIS, to your

knowledge, review the Afghan investigations to

confirm whether the allegations were unsupported?

A. No, no.

Q. And so would there be any

cause to, in your view, second-guess an

investigation by the Afghan authorities into

allegations of abuse by the Afghan authorities?

A. With the absence of clear

evidence of all torture, abuse, I guess it wouldn't

be my job to second-guess, no.

Q. Now, with respect to this


5612345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


61/210

decision, as well, there are some further

paragraphs, 111, 112 and 113, that I asked you to

review.

Madam Justice Mactavish indicates

that:


applicants is very troubling,

and creates real and serious

concerns as to the efficacy

of the safeguards that have

been put in place thus far to

protect detainees transferred

into the custody of Afghan

prison officials by the

Canadian Forces.

"As a result of these

concerns, the Canadian Forces

will undoubtedly have to give

very careful consideration as

to whether it is indeed

possible to resume such

transfers in the future

without exposing detainees to

a substantial risk of

torture.


5712345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


62/210


63/210

he was given some information and he ceased the

transfers on November 6th.

I know they put further measures

into place, which are obviously not a National

Investigation Service purview, with human rights

people going to visit the jails.

Having reviewed this, I just can't

see where else I would investigate.

Q. Now, she does continue, in

fairness to you, at paragraphs 118 -- and I don't

think I took you to these, but 118 and 119 and 120,

she does indicate that even Amnesty International

and the BC Civil Liberties Association conceded

there are scenarios under which transfers could

potentially take place in the future.

So, in fairness to you, there are

circumstances where maybe the concerns could be

alleviated; fair enough?

A. Yes.

Q. I asked you to review the

decision of March 2008 that follows this, and I

think it is -- I am just trying to find the date of

the release. It appears to be March 12th, 2008,

from the top the first page, at tab 43 of the same

volume. And I asked you to take a look at


5912345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


64/210

paragraphs, I think I said, 82 and 83.

Now, paragraph 81, she notes that

transfers resumed as of February 26th, 2008, and at

paragraph 82, she notes.


applicants clearly establish

the existence of very real

and serious concerns as to

the effectiveness of the

steps that had been taken

prior to November 5, 2007 to

ensure that detainees

transferred by the Canadian

Forces are not mistreated."

And at paragraph 83:

"While the Canadian Forces

have implemented additional

measures designed to reduce

the risk to detainees

transferred into the custody

of Afghan authorities since

November 5, 2007, it is not

necessary for the purposes of

this motion to pass judgment

on the efficacy or


6012345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


65/210

sufficiency of these

additional protective

measures."

First of all, is it clear in your

mind that the concern is not transfer to a

guarantee of abuse or torture, but transfer to a

substantial risk of torture or abuse? Do you

understand?

A. Well, I would assume that if

you have evidence that there is torture or abuse

going on there, then you have put the people at

risk that you transferred there, I guess.

Q. Right. I am just wondering

what your understanding would be when you are

confronted with a suggestion, as is suggested in

the June 12th complaint to this Commission, that

the NIS failed to investigate these transfer orders

and the persons who made them.

Can you tell us what it would

entail, in terms of an assessment of the risk of

torture? In other words, how high is the bar set

in terms of risk, from your perspective, when you

look at the legality of these transfer orders?

A. Well, I mean, on the face of

it, we would need some clear, you know, evidence,


6112345

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

7

8


66/210

the time, date, place, wh

Documents

Hearing Transcript - April 12 2010