Hearing Transcript - April 272010

8/9/2019 Hearing Transcript - April 272010

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(ii)

INDEX

PAGE

SWORN: BGEN RICHARD BLANCHETTE 1

SWORN: MAJOR DENIS GAGNON 1

Examination-in-chief by Mr. Lunau 5

Cross-examination by Mr. Champ 80

Cross-examination by Mr. Wallace 141

Re-examination by Ms Richards 153

Further Examination by Mr. Lunau 168

Further Cross-examination by Mr. Champ 194

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LIST OF EXHIBITS

NO. DESCRIPTION PAGE

B-57 Correspondence and Materials Document Production, Volumes1 and 2 175

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Ottawa, Ontario

--- Upon commencing on Tuesday, April 27, 2010

at 10:04 a.m.

SWORN: BGEN RICHARD BLANCHETTE

SWORN: MAJOR DENIS GAGNON

THE CHAIRPERSON: Good morning. I

will be making a few brief opening remarks.

Is Assistant Deputy Minister

Jillian Stirk with us?

MR. PRFONTAINE: She is. She is

sitting in the public gallery.

THE CHAIRPERSON: I have some brief

opening remarks. After we are finished, you will

address yourself in terms of your attendance this

morning.

Good morning. I have a few

opening remarks that I will make in English. I

understand, Brigadier-General, that you will be

responding in French. I and others will have

simultaneous translation available.

On Wednesday, April 21, there was

a great deal of discussion regarding the

documentation issues that affect the ongoing public

interest hearing for which you have been summoned

to appear. In order to properly put the issues to

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

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you, I will make reference to parts of the Panel's

Direction of April 21. We the Panel acknowledged

the list of proposed documentation provided by Mr.

Prfontaine and the availability of those documents

and their tentative dates for production.

We also recognized Mr.

Prfontaine's position although it was stated that

we were disappointed with the dates as outlined and

a need to consider fairness to the subjects and the

adverse impact on the process of this hearing, thus

impacting the scheduling and testifying of subject

officers over the next two weeks.

We also stated that we carefully

considered all submissions put forward by counsel

on the issue of document production and our

concerns about what relevancy test was being

applied in the screening process. The Panel

considered the relevancy test as an important issue

to be addressed as soon as possible before agreeing

to proposed production schedules.

Therefore, the Panel requested

yourself, meaning Brigadier-General Blanchette and

Mr. Edwards or other persons to appear with them or

for them, to appear at today's session of the

Public Interest Hearing.


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As stated a moment ago, it is

important to hear from yourself on the issues of

the screening tests for the relevance that is being

applied to the document requests by the Commission.

We also ask that you speak to greater detail as to

where in the process these documents are, i.e., are

they still with the department's designates being

screened for relevance, or have they made their way

to the National Security Group for their review?

We would also like to hear about

the collection screening process and how many

documents have been screened out and not provided.

Once these documents are provided, the Panel will

be in a better informed position to come to some

conclusions regarding acceptable dates for

production of the outstanding documents.

I understand, Brigadier-General

Blanchette, that Major Gagnon is with us today.

Welcome.

Could I ask counsel, in fairness

to the Assistant Deputy Minister in terms of

timing, can I have Ms Stirk wait outside or are we

in a position to say that she can come back at a

time that would be convenient to all? I will give

her the option as to what she wants to do, but I


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don't want her sitting here for two, three or four

hours. Counsel, what can we all see as fair?

MR. LUNAU: I think we will

probably be about an hour with General Blanchette

and Major Gagnon. Depending on what other counsel

say, I can see the examinations this morning taking

until the lunch break.

THE CHAIRPERSON: Mr.

Prfontaine...?

MR. PRFONTAINE: Unless you wish

to direct that witnesses be excluded, I think it is

Ms Stirk's choice. She was aware of the fact that

she was not going to be heard first this morning,

but she responded to the Direction as issued and

appeared at the set time. I understand that she is

prepared to stay here until she is called upon.

THE CHAIRPERSON: Mr. Champ, any

comments on timing?

MR. CHAMP: Not on timing. We

just have concerns about exclusion of witnesses.

THE CHAIRPERSON: Mr. Wallace...?

MR. WALLACE: No, that's fine with

me.

THE CHAIRPERSON: Mr. Lunau, on

exclusion?


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MR. LUNAU: I have no concerns if

Ms Stirk stays this morning.

THE CHAIRPERSON: Inside?

MR. LUNAU: Yes.

THE CHAIRPERSON: No objections

from anyone on that? Thank you.

Madam Minister, if you wish to

stay here, you are welcome. Thank you for the

issue on timing.

Have Brigadier-General Blanchette

and Major Gagnon been sworn?

THE REGISTRAR: Yes, they have.

THE CHAIRPERSON: Mr. Lunau,

please.

EXAMINATION-IN-CHIEF BY MR. LUNAU:

Q. Good morning, General

Blanchette and Major Gagnon.

I would like to start with General

Blanchette. Can you please advise the Commission

of the appointment which you presently hold in the

CF?

BGEN BLANCHETTE: Monsieur le

prsident, mesdames et messieurs, je suis le

brigadier gnral Richard Blanchette et je suis

directeur gnral des oprations au sein de l'tat


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major inter-arme, Ottawa.

Q. How long have you been a

serving officer in the CF?

BGEN BLANCHETTE: Je complte

actuellement ma 33e anne de service.

Q. Major Gagnon, can you tell us

what appointment you presently hold?

MAJ GAGNON: I am currently the IS

Team Leader within the Mission Support Team under

General Blanchette, the Strategic Joint Staff.

Q. How long have you been in the

CF?

MAJ GAGNON: I have been in service

for 28 years.

Q. General Blanchette, are you

aware that the Commission is conducting a Public

Interest Hearing into a complaint about the

decisions to transfer the Afghan detainees to

Afghan authorities?

BGEN BLANCHETTE: Oui, Monsieur

Lunau, je suis tout fait au courant des travaux

de la Commission. En fait, le ministre de la

Dfense nationale et le chef de l'tat major de la

dfense reconnaissent l'importance du travail de la

Commission d'examen des plaintes concernant la


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police militaire.

Q. Major Gagnon, what is the

extent of your knowledge about these hearings?

MAJ GAGNON: The same as the

General's, sir.

Q. Have you both read the

Complaint filed by Amnesty International and B.C.

Civil Liberties Association?

BGEN BLANCHETTE: Je n'ai pas lu en

dtails toutes les documentations relatives la

plainte, mais j'ai une quipe de travail qui s'est

assure de me donner les exposs suffisants pour

l'excution de mes responsabilits par rapport au

travail de la Commission.

Q. Major Gagnon, have you read

the Complaint?

MAJ GAGNON: Yes, I have.

Q. General Blanchette, in terms

of the team that has been briefing you, is that a

team within DND?

BGEN BLANCHETTE: Effectivement,

il y a deux quipes de travail que je pourrais

identifier plus particulirement.

Lorsqu'il y a eu le dbut des

travaux de la Cmmission en 2007, il y a eu ce qu'on


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appelait en anglais un Atiger team, ou une quipe

adoc qui a t mise sur pied pour prsenter tous

les documents qui taient requis dans le cadre des

travaux informels qui taient prsents.

Un peu plus tard, nous avons mis

sur pied un structure plus organise, une structure

laquelle -- une structure dont fait partie le

Major Gagnon, qui s'appelle IST, un acronyme pour

AInformation Support Team.

C'est les travaux de cette quipe,

qui initialement avait cinq (5) membres. On a

pass une quipe de sept (7) membres lorsqu'il y

a eu davantage de travail faire, lorsqu'il y a eu

une demande supplmentaire de documents.

Et lorsqu'en 2009 nous avons eu

des demandes encore supplmentaires de documents,

nous nous sommes rendus compte que nous devions

augmenter la structure pour, justement, bien

rpondre aux demandes de la Commission.

Et puis c'est ce moment que nous

avons mis sur pied une quipe laquelle je

rfrerai en utilisant l'acronyme de APHST, qui est

pour AAfghanistan Public Hearing Support Team.

Donc APHST contient ou a une

quipe de 12 personnes qui sont attitres pour


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ramasser les documents qui sont ncessaires et

faire contact avec les officiels au sein du

ministre de la Dfense nationale, qui sont ces

officiels de niveau I.

Il est, bien sr, requis d'avoir

un suivi assez prcis avec toutes les organisations

au sein de la Dfense nationale pour obtenir ces

informations-l.

Et dans plusieurs cas, comme par

exemple pour le commandement de la force

expditionnaire, il faut galement avoir contact ou

tablir des liens avec les troupes qui sont

dployes sur le terrain pour avoir toutes les

informations qui sont ncessaires.

Donc pour rcapituler, ces deux

quipes l, le IST et APHST, ils m'ont donn des

exposs suffisants lorsque je suis arriv en poste

au mois de septembre dernier pour m'assurer de la

bonne conduite des travaux.

Q. Do I understand correctly

that you personally have been involved only since

last September?

BGEN BLANCHETTE: Je suis arriv

dans mon poste actuel en septembre 2009 et j'ai

effectivement pris mes responsabilits comme


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directeur gnral des oprations pour les 16

oprations que nous avions l'tranger, mais

galement pour l'ensemble des oprations

domestiques qui ont lieu au Canada, y inclus les

olympiques, sans faire abstraction, bien sr, des

oprations rcentes que nous avons menes en

Hati.

Q. Prior to your becoming

involved in the document collection effort, who was

your predecessor?

BGEN BLANCHETTE: Mon prdcesseur

tait dans un poste intrimaire, il s'agissait du

Colonel Richard Gigure, qui lui-mme avait

remplac le brigadier gnral, Gerry Champagne.

Q. You made a reference at the

outset to -- I think you called it IST. I have

seen a reference in the materials to something

called the Detainee Information Support Team.

First of all, are there two

different teams that have been involved in the

document collection effort? You referred to the

IST and then subsequently to something called the

APHST -- I can't remember what it stands for, but

there was an acronym that you referred to.

During the course of this file,


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were there in fact two different teams who were

involved in collecting documents?

BGEN BLANCHETTE: J'ai fait

rfrence deux quipes de travail, la premire

tant IST, AInformation Support Team, et la

deuxime tant APHST, qui est un acronyme qui

signifie AAfghanistan Public Hearing Support Team.

Je ne suis pas au courant d'une

autre organisation que vous avez dcrite comme

tant ADetainee Information Support Team, mais

c'est peut-tre une organisation qui tait en place

avant que je ne sois en place, alors je pourrais me

tourner vers le Major Gagnon pour savoir s'il y a

eu une autre organisation qui tait appele selon

les termes que vous avez utiliss, Monsieur Lunau.

Q. Major Gagnon, are you aware

of that?

MAJ GAGNON: Yes, I am. The

Detainee Information Support Team was in fact the

nickname given to the ATiger Team which was

gathering all the documents in the informal process

in 2007.

Q. Were you part of the Detainee

Information Support Team?

MAJ GAGNON: No, I was not.


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Q. Are you part of the APHST,

the Afghan Public Hearing Support Team?

MAJ GAGNON: Only in an advisory

role, sir.

Q. Who is in charge of the

day-to-day activities of the Afghan Public Hearing

Support Team?

BGEN BLANCHETTE: Il s'agit du

Capitaine de marine de Santarpia. Et le Capitaine

de marine Santarpia se rapporte ou est sous le

commandement du Vice-chef de l'tat major de la

dfense, le Vice-amiral Rouleau.

Q. In terms of the document

collection effort, are you aware that the first

complaint by Amnesty was filed in 2007?

BGEN BLANCHETTE: Yes, indeed. Je

suis bien au courant que la premire demande a t

faite en 2007

Q. When that complaint was first

filed, what did DND do in identifying the documents

that could be relevant to the complaint?

BGEN BLANCHETTE: Je ne suis

certainement pas un spcialiste de l'aspect

historique de ce qui s'est fait en 2007 parce que

je n'y tais pas, mais ma comprhension du


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processus informel qui a t mis sur place est

qu'il y a eu 1 300 documents qui ont t colligs

par le ATiger Team, et qui ont t achemins,

encore une fois, dans ce qui m'a t dcrit comme

tant un processus informel, et ces documents sont

parvenus la Commission des plaintes contre les

policiers militaires.

Q. What was the process by which

documents were identified for collection and for

forwarding to the Commission?

BGEN BLANCHETTE: Ma comprhension

du processus qui a eu lieu en 2007 tait que nous

rpondions la demande qui avait t exprime par

la Commission.

Je ne pourrais pas vous citer le

texte exact de la demande, mais je peux

certainement faire allusion aux directives qui

avaient t soumises par la hirarchie militaire

l'effet que nous devions cooprer au meilleur de

notre habilit aux demandes de la Commission.

Et si je puis me permettre pour

ouvrir une parenthse sur l'importance des travaux

des policiers militaires dans un thtre

d'opration, j'ai eu l'occasion d'tre dploy dans

de nombreux thtres d'opration, et il est bien


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vident que tout ceux qui ont eu travailler

connaissent l'importance que nous devons attacher

aux travaux des policiers militaires et leurs

responsabilits.

Alors, s'il y a des questions

savoir sur la manire qu'ils se comportent dans le

thtre d'opration, il est bien sr important que

nous contribuions l'effort pour amliorer les

choses et bien sr supporter les travaux de la

Commission.

Q. You would agree that the

production of documents in a timely manner is very

important for the Commission to do its work?

BGEN BLANCHETTE: Il est bien sr

important de fournir tous les documents qui sont

requis la Commission, mais ds le dbut des

travaux, je suis certain que mes prdcesseurs ont

fait face la mme difficult que celle laquelle

je fais face actuellement pour la prparation et

l'envoi de ces documents.

Il s'agit videmment de trouver un

quilibre entre le besoin de rpondre de faon

rapide aux demandes de la Commission, mais en mme

temps s'assurer que les documents qui sont

sensibles ou prjudiciables aux oprations qui sont


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en cours ne deviennent pas publiques parce que, par

le fait mme, les ennemis que nous avons sur les

thtres d'opration pourraient utiliser les

connaissances qui pourraient provenir d'une

discussion qui aurait eu lieu sur les techniques,

sur les tactiques, sur les procdures que nous

employons dans les thtres d'opration.

Au moment o je vous parle, nos

soldats sont dploys, bien sr, en Afghanistan,

plus particulirement Kandahar.

J'ai rcemment pass une anne en

Afghanistan et je sais pertinemment que les ennemis

du Canada, si je puis rfrer eux de cette faon,

se tiennent prts utiliser ces informations

contre nos troupes qui sont dployes.

Et c'est donc cet quilibre entre

le besoin de rpondre aux demandes relatives la

divulgation des documents et le besoin de protger

ces documents qui fait en sorte qu'il y a, dans

certains cas, des retards pour la production de ces

documents.

Q. Can you explain that to me a

bit more? You say there is a need to protect the

security interests inherent in the documents, and

that is why there have been delays. Can you


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elaborate on that for me?

BGEN BLANCHETTE: Il y a un besoin

de protger certaines informations que j'ai

qualifies comme tant sensibles ou prjudiciables

et c'est pourquoi lorsqu'un document doit-tre

livr la Commission dans le processus qui lui est

un processus formel, il y a ce que nous appelons le

caviardage des documents.

Ce processus de caviardage est

excut en deux (2) tapes.

La premire est au sein du

ministre de la Dfense nationale et ces travaux

sont, bien sr, effectus en coopration avec les

deux (2) quipes de travail dont je vous ai parl

auparavant, c'est--dire le IST et le APHST.

Et une fois que ce caviardage

l'interne a t effectu, il faut comparer les

rsultats de notre vrification de ces documents

avec nos confrres de l'extrieur, avec nos

confrres, les autres confrres et consoeurs ou

collgues, devrais-je dire, des autres ministres.

Ce processus s'effectue dans un

forum qui est diffrent de ceux auxquels j'ai fait

rfrence jusqu' maintenant et il s'agit

effectivement du groupe de la Scurit nationale


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qui travaille sous l'gide du ministre de la

Justice.

C'est donc un processus qui est

relativement complexe parce qu'il peut y avoir des

vues qui sont diffrentes lorsqu'on regarde les

documents qui doivent tre amens la Commission

parce qu'il ne s'agit pas d'une science exacte.

Bien sr, le ministre des

Affaires trangres peut avoir une certaine vision

des choses, et un autre collgue d'un autre

ministre peut avoir une vision diffrente ou mme,

au sein d'un mme ministre, vous pouvez avoir des

individus qui vont considrer qu'une certaine

partie de texte --

Et l, je ne parle pas les textes

dans leur ensemble mais phrase par phrase, mot par

mot, il faut dterminer s'il y a un risque, s'il y

a un prjudice possible pour la scurit des

oprations.

C'est donc avec ce rflexe, avec

ce filtre, que les individus qui sont dans les

quipes dont je vous ai parl doivent effectuer ces

travaux.

Q. Are you aware that prior to

March 2008 the Commission was given unredacted


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documents?

BGEN BLANCHETTE: Oui, je suis au

courant que c'est le cas.

Q. I assume that at that time

DND and the other group of which you spoke were

satisfied that the Commission could deal

responsibly with sensitive information?

BGEN BLANCHETTE: Je suis certain

que tous les travaux de la Commission seront mens

avec tout le professionnalisme que je connais la

Commission. Il n'y a aucun doute dans mon esprit

cet effet.

Cependant, je me dois de vous

mentionner qu'il y a un changement qui s'est

effectu, et qu'il y a eu une dcision de passer

un caractre publique des audiences.

Et partir du moment o le

caractre publique des audiences est utilis, on

doit passer l'application de la Loi de la preuve

au Canada qui tient compte de l'article 38, qui lui

dcrit clairement que si une partie des documents

qui doivent tre donns la Commission doivent

tre protgs pour la Scurit nationale, que nous

devons effectivement appliquer ce caviardage sur

les documents.


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Q. Are you aware that under the

Commission rules exhibits can be kept confidential?

BGEN BLANCHETTE: J'imagine que

c'est le cas. Je ne suis pas au courant des

rglements exacts qui sont ceux que vous utilisez

au sein de la Commission, mais j'imagine que c'est

une possibilit, effectivement.

Q. Could not sensitive

information be safeguarded by keeping the exhibits

confidential?

BGEN BLANCHETTE: Effectivement,

si vous me dites que c'est le rglement, je

prendrai certainement votre parole l'effet que

c'est une possibilit.

Cependant, lorsque nous effectuons

le caviardage des documents, nous le faisons avec

l'esprit que ces documents pourraient tre rendus

publiques.

Q. The group you referred to, an

internal review by DND and then a review by another

group involving other departments, is that the

National Security Group you were referring to?

BGEN BLANCHETTE: Effectivement.

Q. In terms of how the National

Security Group gets engaged in the process, is it


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the case that DND first identifies the documents

that it is going to submit to the NSG for review,

the documents are then physically delivered to the

National Security Group and then vetted by them?

BGEN BLANCHETTE: Ma premire

citation comparatre datait du 29 juillet >09, et

ma seconde citation a comparatre datait du 21

octobre.

Je vous mentionne ces dates-l

parce que c'est partir de ce moment-l que j'ai

vu de faon prcise quels taient les documents qui

nous taient demands.

Cette liste de documents ou de

types de documents, et il y en avait 39 si je ne

m'abuse, pour celle qui date du 21 octobre, tait

donc l'outil utiliser pour dterminer quels

taient les documents qui devaient tre ou qui

devaient parvenir la Commission.

Q. The point of my question was

to try to understand a bit better how the redaction

process works. I assume the first step is that the

Department of National Defence identifies documents

that it is going to submit to the NSG for

redaction. Is that the first step of the process?

BGEN BLANCHETTE: La premire


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tape est une de prise de -- pas une prise de

conscience, mais plutt il s'agit de connatre

quels sont les documents qui sont demands.

Alors c'est dans le texte mme de

la citation comparatre, dans cette liste de 39

types ou de 39 documents qui ont t demands,

c'est ce qui guide, bien sr, notre choix des

documents qui doivent tre fournis la Commission.

Et dans une deuxime tape,

l'intrieur de ce processus, nous devons regarder

quelles sont les parties qui doivent tre

protges, les parties qui doivent caviardes, pour

la scurit des oprations de notre personnel qui

est dploy en Afghanistan.

Q. The second step you talked

about is to see which parts have to be redacted.

Is that something that DND does as an initial

measure?

BGEN BLANCHETTE: Absolument, mais

nous ne reprsentons pas l'autorit finale.

Cette recommandation de caviardage

est le seul sur lequel se penche l'quipe d'IST et

le Major Gagnon peut vous donner des dtails

supplmentaires sur la faon dont ce caviardage est

effectu en respectant les rgles de la Loi de la


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preuve au Canada.

Q. Major Gagnon, can you

elaborate on that for us, please?

MAJ GAGNON: Just to put it in

context, the APHST team, once we have identified

all the documents that apply to the request made by

the Commission for each item, we then go around and

ask all the Level 1s, like CEFCOM, Canada command,

strategic joint staff and other organizations if

they have such documents to find and provide such

documents within a very short period of time. When

all those documents have been gathered, then the

APHST team will do the first Acaviardage or first

review of the document for any potential section 38

claims and identify those claims..

When that is completed, the

document would then be provided to the NSG in both

clean and redacted format.

Q. What is the test that the

APHST team applies in recommending a redaction?

MAJ GAGNON: They will look at our

operational security risk, the public need to know,

and what has been requested in your summons.

Q. Does it make determinations

of whether information is relevant or not?


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MAJ GAGNON: The only test they

made was a responsiveness test to your summons

based on the item under which the document has been

collected. An example that I can give is if I

receive a request for a series of e-mails and I

find an e-mail that is an invitation to a mess

dinner, it is determined to be not responsive to

your request, and therefore we will remove it.

Q. Not all the redactions are

based strictly on considerations of injuriousness

to national security.

MR. PRFONTAINE: Sorry, that was

not the witness' answer. The witness' answer to

the first portion of the test that is how are

documents removed, not how they are reviewed for

national security considerations.

MR. LUNAU: As I understood your

answer, you indicated that information might be

marked for redaction if it was deemed to be

unresponsive to the summons.

MAJ GAGNON: Based on the material

that was within the summons itself. That is our

only guideline we can use to determine if a

document is responsive or not.

Q. You gave the example of an


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e-mail that refers to a mess dinner.

MAJ GAGNON: Yes, sir.

Q. When we get a document that

has big, black lines through it, that redaction

could either reflect a deletion under the Canada

Evidence Act or a deletion of something that was

considered unresponsive to the summons.

MR. PRFONTAINE: Actually, the

witness' answer was that the document would not

have been submitted to the redaction process

because it was considered to be not responsive.

MR. LUNAU: What about part of a

document?

MAJ GAGNON: No, sir.

Q. You don't redact parts of

documents on the basis of responsiveness to the

summons?

MAJ GAGNON: No, sir. Any

document that has been collected, if any portion of

that document meets completely or partially the

responsive test, will be processed.

Q. If a reference to a mess

dinner is contained in an e-mail dealing with

detainees, what you are saying is that the e-mail

would be submitted as it is, subject only to


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national security review?

MAJ GAGNON: Exactly, sir.

Q. When the documents come in to

this team from the field, how does DND organize

those documents in determining that all of the

items in the summons are being met?

MAJ GAGNON: All the documents

that have been gathered are always based on

specific items within the summons. When they are

submitted, it has been identified which item is

being answered, and they are all gathered together.

Q. Do you use some type of

document management software to keep track of what

is being received and whether it is responsive to

the summons or not?

MAJ GAGNON: We keep track of all

the documents we have.

Q. Do you use an electronic

document management program or is it a manual

process?

MAJ GAGNON: We are only using the

Excel spreadsheet.

Q. Do you make an electronic

copy of the document or does the spreadsheet just

record the details of the document?


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MAJ GAGNON: We maintain a record

of all the copies of the documents plus an

electronic copy.

Q. For all the documents that

come in to APHST, would there be an electronic copy

of all those documents?

MAJ GAGNON: I cannot guarantee

100 per cent, sir. I don't spend my days in APHST

and I could not confirm that detail.

Q. There would be a paper copy

in any event?

MAJ GAGNON: That's correct, sir.

Q. And there would be an Excel

spreadsheet that would list everything received by

DND as a result of your requests out to the field

for documents?

MAJ GAGNON: To the best of my

knowledge, yes, sir.

Q. Are you able to tell us, in

response to your requests for documents that you

sent out since the complaint was first filed in

2007, how many documents DND has received to date

as a result of your requests out to the field?

MAJ GAGNON As General Blanchette

indicated, sir, under the informal process that in


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part supporting the inquiries of MPCC 1, Mr.

Attaran's complaint, 1300 documents were collected.

Under the first request that was made in February

2009 that evolved into Brigadier General

Blanchette's summon, 719 documents were collected.

THE CHAIRPERSON: Just for

clarification, is that documents or pages?

MAJ GAGNON: Documents.

Q. To make sure we are clear on

the numbers, 1,300 documents were collected before

March 2008?

MAJ GAGNON: That was what I am

aware of, sir.

Q. And 719 more documents were

collected since when?

MAJ GAGNON: In response to the

request that was first submitted by the Commission

in February 2009 that was also in the first summon

to General Blanchette and then was amended and

modified based upon the second summon to General

Blanchette that was done in September, post

September 2009.

Q. Were all of these

approximately 2,200 documents delivered to the

Commission?


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MAJ GAGNON: I am fully aware that

the 1300 were submitted to the Commission

unredacted as part of the inquiry you were

conducting at time of the incident. Those document

were sent back us for section 38 review, which was

completed in the year 2009. We also have all 719

had been submitted to NSG out of which 50 were

deemed still responsiveness after second summon,

based on the direction from the judicial review.

And as far as I am -- my knowledge of those

documents were had been produced to the Commission

system, all 50 of them.

Q. You should have a copy of a

transcript on your desk, a transcript of April 21,

2010. At the top of page 30 Mr. Prfontaine

advises the Commission that on the basis of those

indications that documents are screened out by the

line departments, DND and the Canadian Forces in

the case of DND and Canadian Forces documents, by

the Department of Foreign Affairs in the case of

Department of Foreign Affairs documents,

Correctional Services Canada in the case of

Correctional Services Canada documents.

With respect to the documents that

are received by the APHST in response to its


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requests, is there a screening process that takes

place?

MAJ GAGNON: I would like to

understand better your question, sir.

Q. You make requests for

documents as a result of which you get a certain

number back. Are those documents then reviewed to

determine whether they go into a "give to the

Commission" pile and Adon't give to the Comission

pile?

MAJ GAGNON: The only

responsiveness test that we do is based on what has

been requested in the summons, sir.

Q. So there is a screening

process? You would screen out documents that you

deem not to be responsive to the summons?

MAJ GAGNON: Based on what the

summons actually requests.

Q. Do you know how many

documents have been screened out on the basis that

they are deemed unresponsive to the summmons?

MAJ GAGNON: I don't have a fixed

number for you, sir.

Q. Can you find out and let the

Commission know?


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MR. PRFONTAINE: Actually, the

Commission already has the raw data since Major

Gagnon has provided the number of documents which

was responsive to the first summons but considered

not responsive to the second, so it is just a

matter of subtracting the second number from the

first.

THE CHAIRPERSON: If I heard that

right, there were 719 minus the 50, and all the

rest were non-responsive.

MR. PRFONTAINE: Correct.

MR. LUNAU: I would like to

clarify some of these numbers. The 719 documents

you referred to -- my understanding was that that

was the number of documents that had been

identified as responsive to the Commission's

summons.

MR. PRFONTAINE: Incorrect.

MR. LUNAU: Kindly let the witness

--

THE CHAIRPERSON: Mr. Prfontaine,

I think he can answer that question.

MR. PRFONTAINE: We have been

over this ground on at least three occasions.

There was a point at which repeating the same


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question becomes abusive, and I think we are

reaching that point fast.

MR. LUNAU: I disagree.

Q. The 719 documents, I thought

you had described those as the number of documents

that were found responsive to the summons.

MAJ GAGNON: Those were the

documents that were collected as part of the first

request in February 2009, which also matched the

first Blanchette summon of -- I don't remember the

exact date.

Q. That was the total universe

that was collected?

MAJ GAGNON: Yes. All the

document that we thought were responsive to your

summon.

Q. With respect to the summons

issued, the revised summons that was issued in

October 2009 to General Blanchette, what was the

total number of documents, if you can tell us, that

were collected in response to that summons?

MAJ GAGNON: I don't have a number

for you, sir.

Q. Can you determine that number

for us and let us know?


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MAJ GAGNON: Certainly, sir.

Q. Thank you.

Is it the APHST team that

determines whether documents are deemed responsive

to the summons or not?

MAJ GAGNON: They did some of the

responsiveness. We did a secondary test when

reviewing the documents to make sure that we had

all the right documents.

THE CHAIRPERSON: I am sorry, I

missed the first part of that answer.

MAJ GAGNON: They did some of the

test.

THE CHAIRPERSON: APHST did the

test?

MAJ GAGNON: Yes.

Q. Are you aware of any

instances within APHST where a question was raised

whether a particular document should be produced or

not?

MAJ GAGNON: No, I am not aware,

sir.

Q. There was never a case you

can think of where a screener had questions as to

whether a document ought to be provided or not?


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MAJ GAGNON: The guideline they

have is that, if there is a concern about it, they

could seek advice from our legal team assisting the

APHST team, if the document was to go in instead of

going out. That was the normal directive.

Q. If I could ask you to look

again at the transcript at the top of page 29, the

first five lines, Mr. Prfontaine tells the

Commission that, to address the summons for the

moment and those parameters are reduced to

guidelines, so we provide to the clients and the

guidelines are in the nature of "this is what the

Commission has requested, go out and seek what fits

that." Are you aware of the existence of these

guidelines?

MAJ GAGNON: The only thing we use

is your summons.

Q. When Mr. Prfontaine alludes

to guidelines having been given to the client, you

are not aware of those guidelines?


Q. What guidelines were you

referring to in your answer a few moments ago?

MAJ GAGNON: The only guideline

that I was referring to, sir, is the text of the


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summons and how each request was articulated to

ensure that we were trying to find the right

documents that were matching the request.

Q. So there are not any written

guidelines that are given to the Public Hearing

Support Team to assist them in identifying what

documents are relevant?

MAJ GAGNON: Not that I am aware

of, sir.

Q. If in the course of your

screening documents are deemed unresponsive to the

summons, what happens to them?

MAJ GAGNON: They are preserved.

They are just put aside, sir.

Q. Does that mean that they are

available as a collection somewhere within DND?

MAJ GAGNON: The APHST has all the

documents collected, regardless of whether they are

responsive or not.

Q. This spreadsheet that you

talked about, the Excel spreadsheet, does it also

indicate what documents on the list have been

provided or not provided to the Commission?

MAJ GAGNON: I don't know, sir.

Q. Can you give us a copy of


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this spreadsheet?

MR. PRFONTAINE: We can certainly

take the request under advisement. Whether we can

produce the list depends on whether there is

information which is protected by section 38, in

which case obviously the document will have to be,

like all the others, submitted to the review

process.

THE CHAIRPERSON: I appreciate the

section 38, but I would like to hear the witness

answer whether or not they can provide that

document, aside from section 38.

MR. PRFONTAINE: I am sorry, I am

not sure what you referred to, Mr. Stannard.

THE CHAIRPERSON: I want to hear

whether or not the Major or Brigadier-General can

make that document available to the Commission,

having regard to section 38.

MR. PRFONTAINE: And the answer

is: No, not until the section 38 process has been

undergone.

THE CHAIRPERSON: Thank you. I

want to hear that from the witness, not from you,

Mr. Prfontaine.

MAJ GAGNON: Before the document


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goes to the Commission, it will go under the

section 38 process, if it contain claims. But I

cannot give you that answer without looking at the

spreadsheet itself.

MR. LUNAU: Thank you.

Q. Have you ever looked at this

spreadsheet?

MAJ GAGNON: I have seen part of

it, sir.

Q. Just bear with me for a

moment. My technology has failed.

These documents, whatever the

number is that has not been provided to the

Commission, would they be available for Commission

counsel to go over to DND and review?

MAJ GAGNON: It would depend if

they meet the request of your summons.

Q. I know your position. We may

have a different position. If we wanted to see

what has been screened out to satisfy ourselves

that it was not responsive to the summons, could we

go over to DND, say this week, and view the

documents and make our own decision?

MR. PRFONTAINE: The answer to

that is a legal one, and the answer to that is


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"no."

MR. LUNAU:

Q. So there is no way that the

Commission can satisfy itself that documents it

considers necessary have not been screened out?

MAJ GAGNON: Sir, when they went

under section 38, that is the case.

Q. I take it that these

documents that have been screened out, because they

were screened out, have never been reviewed for the

purposes of section 38?

MAJ GAGNON: That will be

incorrect, sir. Some of that because of the

timeline between first one, the request one, is

Blanchette summon 1 and the Blanchette summon 2

many of those document have gone through the

process by the time we receive the update,

Blanchette 2, which give us a more strict

parameters by which to prepare these documents.

Q. Is there for some reason we

can't see the documents that have been reviewed

under section 38?

MAJ GAGNON: Sir, they weren't

meeting the responsiveness test.

Q. Would you allow for the


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possibility that the Commission could disagree?

MAJ GAGNON: I guess I'll allow

for that, sir, but my understanding is that it is a

legal issue that is still falling under the section

38.

Q. Major Gagnon, who do you

think is responsible for deciding what the

Commission deems necessary for its inquiry? Is it

DND or the Commission?

MAJ GAGNON: Sir, we are working

from the summons and the information that you have

provided. At the end of the day I am bound by what

the Department of Justice will allow to release.

Q. Could you repeat that last

bit.

MAJ GAGNON: I said that I am

bound by what the Department of Justice in the

final review under section 38 will allow to

release.

Q. The decision to release

documents or not is made on the basis of

Department of Justice input?

MAJ GAGNON: As was mentioned

earlier, we do all the review and provide those

documents to National Security Group, which


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combines all claims from all departments into one

package that is finally reviewed by ADAG, the

Assistant Deputy Attorney General, which has the

authority on behalf of the Minister of Justice to

make a final section 38 review in deciding whether

those claims are valid or not.

When the decision is made, then

documents are released to whoever requested them.

Q. Let me come back to the

question I asked before. You said that some number

of documents that were screened out had nonetheless

been reviewed under section 38. Is that correct?


Q. The stage in which those

documents now find themselves is that they could in

fact be publicly disclosed.

MR. PRFONTAINE: Sorry, I think

there might be confusion here because Mr. Lunau as

a preliminary question should ask Major Gagnon

whether those documents have been the subject of an

authorization, a decision to authorize disclosure

by the ADAG.

MR. LUNAU: I don't think there is

any problem with the question.

MR. PRFONTAINE: Unless and until


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they reach that point, then section 38.02

specifically provides that the documents cannot be

made public. Ergo the question remains as a

preliminary factual basis to ascertain from the

witness whether those documents Mr. Lunau now

speaks of have been the subject of a decision by

the ADAG. If the answer is "no", then obviously

the Commission cannot have access to them because

essentially conditions precedent have not been

fulfilled.

MR. LUNAU: I thought he said that

they had been reviewed under section 38.

MAJ GAGNON: Sir, they had been

reviewed by my organization, but the ADAG is not

going to make any decision on those documents

because they were deemed non-responsive.

MR. LUNAU:

Q. So there is no section 38

decision with respect to those documents?

MAJ GAGNON: No, there is none,

sir.

THE CHAIRPERSON: I was also under

the impression that he had mentioned that there had

been a section 38 review.

MAJ GAGNON: Maybe I was not clear


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in my answer, sir. I said section 38 B DND

applying it -- the Department of Justice and the

final review has not been conducted.

Q. Thank you.

MR. LUNAU:

Q. Are any of the documents --

the 719 or whatever number of documents it is that

have been weeded out or screened out or decided not

to be responsive, these 669. Was it your own

internal review, or were there any of those

documents that were found to contain nothing that

would be injurious to national security?

MAJ GAGNON: I would say I cannot

tell you. We would have to go through every single

document to answer that question.

Q. Could I ask you to turn to

the summons that was issued to Brigadier-General

Blanchette on October 31, 2009.

THE CHAIRPERSON: That is Document

1 of 1 at tab 6?

MR. LUNAU: That's correct.

Q. Do you have that, General

Blanchette and Major Gagnon?

Is it DND's position that it has

now produced everything that is producible under


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this summons or are there more documents to come?

BGEN BLANCHETTE: Nous avons

fourni tous les documents qui ont t demands dans

le cadre de la citation comparatre.

Il y a cependant quelques autres

demandes qui sont toujours en cours, et j'en

citerai trois en particulier, mais ces demandes

sont relativement rcentes, la premire tant des

documents qui sont requis par les tmoins, soit

pour leur prparation personnelle ou des documents

qu'ils dsirent verser la Commission.

a, c'est la premire catgorie

sur laquelle nous avons du personnel qui continue

travailler.

La deuxime, ce sont des documents

qui ont t obtenus par la Loi de l'accs

l'information, et qui ont t demands par des

conseillers juridiques qui sont dans la salle, et

galement une troisime catgorie, qui ceux sont

les documents que nous avons appels les documents

CEFCOM, c'est--dire ceux qui sont relis

l'enqute interne qui a eu lieu au sein du

commandement de la force expditionnaire suite un

article qui avait t crit dans le Globe & Mail en

avril 2007.


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Donc nous continuons de travailler

sur ces trois types de documents, et je peux

assurer la Commission que nous faisons tout ce qui

est dans notre pouvoir pour que ces documents vous

soient verss le plus rapidement possible.

Q. If I were to question whether

item no.6, the request for all detainee transfer

records from May 3, 2007 to June 12, 2008, as

signed by the Detainee Task Force Commander or his

delegate, whether those documents had been

produced, how would you track what information had

been provided in response to that item?

MAJ GAGNON: Based on our tracking

record and working with the primary organization

concerned, which is CEFCOM, we have gone to all

efforts to try to find all of those documents. We

have attempted to do all due diligence possible to

find the documents in question.

Q. Are you saying basically that

the response for item no. 6 is that you have

attempted to find documents, but there is

essentially no return? You can't find them?

MAJ GAGNON: Sir, I don't have a

breakdown by request of how many documents were

provided for each of them.


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Q. For each of these items you

don't have any tracking to show what has been

produced in response to Item No. 1, No. 2, No.3,

No.4, and so on?

MAJ GAGNON: I couldn't give you

the numbers, sir. I will have to inquire how much

we had per item.

Q. What about the specific

documents. For example, if we come back to item

no. 6, all the detainee transfer records, did you

have a list of documents or a record of what DND

has produced in response to item no. 6?

MAJ GAGNON: Not with me. We can

obtain the number through APHST or NSG.

Q. Does APHST keep track of what

has been produced in response to each summons item?

MAJ GAGNON: Yes, they do.

Q. Is that on a spreadsheet?

How is it maintained? Is it a written record?

MAJ GAGNON: I will assume it is

on the spreadsheet, but I cannot confirm. I will

have to look again at the document itself. Also we

have binders that contain the documents that were

collected per item list.

Q. Collected, but not


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necessarily produced. Am I correct?

MAJ GAGNON: That is again where

we get into what we were talking about earlier, sir

-- the section 38 process review and the

responsiveness test that was done.

Q. I would like to ask you to

provide us with a list, if one exists, showing what

has been produced in response to each of these

summons items.

MAJ GAGNON: I can provide you the

numbers, sir, but the list, if you want to start

getting into the item number, go back to the

previous request regarding the spreadsheet and the

section 38 issue.


collection U. These are documents that were

provided to the Commission by the complainants,

which they obtained from DND as the result of an

Access to Information Request.

Can you say if you have seen these

documents before? Are they documents that were

collected by DND as part of its own effort?

MAJ GAGNON: I have seen many of

these documents.

Q. You have seen many of them.


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Are these documents that were screened out as part

of your unresponsiveness to the summons test?

MAJ GAGNON: They failed to meet

your summons request.

Q. You saw these documents, but

you screened them out as unresponsive?


Q. On what basis were they

deemed unresponsive?

MAJ GAGNON: One is the knowledge

that the MP should have or should have been aware

of those documents.

Q. In your screening, one of the

tests you are applying is whether the MPs were --

how did you put it? Saw or should have seen these

documents?

MAJ GAGNON: The MPs knew or

should have known about the content of those

documents.

Q. You are making the

determination that the MPs did not know or should

not have known about these documents?

MAJ GAGNON: Yes, sir. It is why

many of the witnesses that have appeared before

this Commission were not aware of these documents


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or didn't know they existed.

Q. On what basis are you

determining that MPs didn't know or should not have

known about a document? How do you know that?

MAJ GAGNON: It is based on our

experience of being in theatre operations. You

must understand how information is passed through

the chain of command.

Q. Did you talk to anybody to

see if MPs might have known about a document or the

information in a document?

MAJ GAGNON: We have talked to MPs

about this basic aspect of documents concerning

their knowledge with similar documents.


tab 3. Here is an example of an e-mail that is

sent to many addressees within CEFCOM. Did you

speak to any of the addressees on this e-mail to

see if the MPs knew or had this information

otherwise available to them?

MAJ GAGNON: No, we have not.

Q. Pardon me?

MAJ GAGNON: No, we have not.

Q. On what basis would you

determine that, say, the CEFCOM Provost Marshal did


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not have this document or the information in this

document available to him?

MAJ GAGNON: First was determined

regarding the distribution list, identifying which

key position were notified of this specific

document. And also based on what the information

was in the document, which clearly indicated to us

that MPs will have not be made aware or even be

knowledgeable of this document at the time.

Q. You can tell that just by

looking at the document?


Q. All of the addressees at

CEFCOM -- are you aware that the CEFCOM PM did not

have -- let me backtrack. Do you know about the C4

communications network?

MAJ GAGNON: Yes, I am.

Q. You are aware that the CEFCOM

PM didn't have the C4 connection?

MAJ GAGNON: There is only one C4

connection in CEFCOM Headquarters, and that is with

the Pol Ad.

Q. By necessity, communications

passing over the C4 network, the CEFCOM Provost

Marshal wouldn't be able to get them because they


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didn't have C4 connection.


Q. Somebody might have given it

to him?

MAJ GAGNON: They might, but the

only way I can find out is if there is notification

that will identify that the Provost Marshal was

told of this. I don't have that ability to read

minds.

Q. That I am glad to hear.

Ms Duschner is one of the

addressees. Did you talk to Ms Duschner to ask

her, "Did you ever pass a copy of this to the

CEFCOM Provost Marshal?"

MAJ GAGNON: No, I did not, sir.

Q. Did you ever talk to any of

these addressees to ask if they had passed --

MAJ GAGNON: As I responded

before, sir, no.

Q. You look at the document.

You look at the addressees. You look at the

content, and you conclude, "This was not available

to the MPs, so I am not going to produce it to the

Commission." Right?



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Q. That, it seems to me, would

be true of virtually every document that was passed

over the C4 communications network.

MAJ GAGNON: That would be a fair

assumption, sir, because truly the C4 is a DFAIT

network, and we need to be aware that the

information that is passed on this network is very

limited. Even within the national departments,

there are very few people who are even aware of the

existence of this network and even less of the

information that is on it.

Q. Do you agree that it is a

fair assumption on our part that any messages

passed over the C4 network, even if they had

multiple addressees in CEFCOM, would have been

screened out because the MPs did not appear as an

addressee?

MAJ GAGNON: No, sir. We would

still use your summons as the primary guideline for

our final responsiveness test.

Q. When you are looking at an

e-mail like this, the test I assume you are turning

your mind to is whether this e-mail was available

to the MPs.

MAJ GAGNON: As I said earlier,


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based on the content of the document, based on the

discussion being made inside this document, it was

clear from my operational experience perspective

that people available within chain of command will

have even been aware of this discussion. I will

not have been aware and so not an MP.

Q. Were you at CEFCOM in

November 2007?

MAJ GAGNON: No, sir, but I am

talking from my experience in theatre in 2006.

Many of the discussions like that were not made

privy to the Commander or any similar documents at

a meeting. The ability of most of the staff to

know what was happening was very limited.

Q. You were not at CEFCOM in

November 2007.

MAJ GAGNON: No, I was not.

Q. In fact, you don't have any

personal knowledge of whether this e-mail would

have been available to the CEFCOM Provost Marshal

or any other MP.



tabs 6 and 7. Have you seen these letters as part

of your collection of documents?


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MAJ GAGNON: I have seen Colonel

Juneau's letter.

Q. The one to Brigadier-General

Laroche at tab 6, which is similar, have you seen

that one as well?

MAJ GAGNON: I would have to say

yes, sir.

Q. Were these two

letters/documents screened out as part of your

process?

MAJ GAGNON: Yes, they were, sir.

Q. On what basis?

MAJ GAGNON: Once again, on the

basis that the result of those decisions were made

aware to the MPs but the content of these actual

document were never provided to MPs.

Q. How did you determine that?

MAJ GAGNON: Once again, looking

at who it was addressed, what was the content of

the document and how was it responsive to your

summons.

Q. Did you speak to Colonel

Juneau?

MAJ GAGNON: No, I haven't, sir.

Q. Or General Laroche?


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MAJ GAGNON: No, I haven't, sir.

Q. When you read these letters,

did you think that they were relevant to some of

the issues that the Commission was looking at?

MAJ GAGNON: They were certainly

responding to summon 1 and that is the reason we

gathered it. But once we have received the updated

summons, we clearly had to review based on what was

requested and what was invitation imposed by that

request and that would mean that this document that

was relevant -- responsive under the first request

was no longer responsive under document 2.

Q. With respect to these e-mails

-- we looked at the one at tab 3, for example. Do

you have any information that shows that e-mails

sent to addressees at CEFCOM, such as Ms Duschner,

were specifically directed not to be given to MPs?

MAJ GAGNON: I would like to

confirm that I understand your question. You are

asking me if Ms Duschner specifically requested not

to give the document to the MPs?

Q. No. What I am asking is:

Are you aware, when you look at a document like

this with multiple addressees at CEFCOM, from the

addressees and your reading of the document, do you


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conclude that it was not available to MPs? What I

am asking you is: Do you have information or

evidence that in fact there was a deliberate

decision that messages sent to CEFCOM should not be

given to the MPs?


Q. Do you have guidelines or a

direction as to when a document will be considered

as having been available to the Military Police,

the wording used in the summons?

MAJ GAGNON: No written

guidelines, sir.

Q. On a document-by-document

basis, who ultimately makes the decision that "I am

not going to produce that because I consider that

it wasn't available to the Military Police?" Is

that yourself?

MAJ GAGNON: I will make my

recommendation and I am assisted by two members,

one from the JAG office and one from the CFLA

office.

THE CHAIRPERSON: I am sorry, from

the JAG office and...?

MAJ GAGNON: Canadian Forces Legal

Assistance, CFLA, and the Judge Advocate General or


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JAG. But at the end of the day, the final decision

was certainly with the ADAG, if the document goes

through an actual section 38 final review.

THE CHAIRPERSON: Before we go on,

Mr. Lunau, could I clarify that again.

You say that you make the decision

assisted by someone from CFLA and someone from JAG.

They assist you in making that decision?

MAJ GAGNON: They will challenge

me B their real function is a challenge function.

The claim that we make that the APHST has made that

go to the NSG to do the qualify control on behalf

of the department. Have those two lawyers with me

that do the initial challenge function, on those

claims. Then NSG counsel will also do another

challenge --

THE CHAIRPERSON: Before we get to

there, once they challenge you on that decision, is

there a final decision at that point that it goes

to NSG?

MAJ GAGNON: If one of them --

THE CHAIRPERSON: Who makes the

recommendation? Is it you?

MAJ GAGNON: At the time.

THE CHAIRPERSON: Based on


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assistance from JAG and CFLA, you make the

decision. The answer is: Yes, you recommend it.

It then goes to NSG.

MAJ GAGNON: I'm already at NSG,

sir. That process has been at NSG.

THE CHAIRPERSON: If the answer is

no, you are already at NSG. Right?

MAJ GAGNON: Yes. That document

will be brought in front of the ADAG for a final

decision.

THE CHAIRPERSON: All the

documents that you are making a recommendation on

go to NSG?

MAJ GAGNON: Yes. As we mentioned

earlier, all 719 documents that were collected

under the initial request from the Commission in

February 2009 are in issue right now.

THE CHAIRPERSON: They would all

be at NSG?


THE CHAIRPERSON: Is NSG in the

same office as you?

MAJ GAGNON: No, sir. They work

at Department of Justice.

THE CHAIRPERSON: Do you


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physically take them documents?

MAJ GAGNON: Yes, we do.

THE CHAIRPERSON: They have a copy

and you have a copy?


MR. LUNAU:

Q. Could I ask you to look at

Volume 1, Correspondence and Materials, tab 9, page

6. This is a letter from Commission counsel to Mr.

Prfontaine and Ms Richards.

At the top of page 6 we say:

"We, note in case this is of

assistance, that the

Commission does not seek all

materials on the detainee

file, only materials relating

to post-transfer treatment

and risk of abuse. Requests

of DFAIT are always limited

to documents communicated or

made available to DND CF

personnel. Commission

counsel would be pleased to

hold further discussions

about which documents should


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be viewed as available to MPs

or their chain of command.

Without a complete knowledge

of the system for filing an

Access to Information within

DND CF, we are not in a

position to assist further on

this issue. However, with

more information, a common

definition could be agreed on

which may facilitate and

accelerate the document

collection ultimately, the

document production process."

Were you made aware of this

letter?


Q. You were not aware of the

suggestion by Commission counsel that we should

discuss a common agreement of what constituted

being available to the Military Police?


Q. Since February 2007, have

there been at any time, to your knowledge,

instructions or directions to go slow on document


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production?

MAJ GAGNON: Not that I am aware

of, sir. It is more likely the opposite.

Q. Could I ask you to go to the

same binder at tab 10, which is a transcript of the

proceedings of October 7, 2009, at page 4, line 14.

This is Commission counsel speaking, and she says:

"Since March 2008, however,

when the Chair announced that

this Panel would hold a

Public Interest Hearing, the

Commission had not been

provided with a single new

document by the government.

Since the duty to investigate

complaints was filed in June

2008, no relevant documents

have been produced."

Was there any decision within DND

during this time period not to forward documents to

the Commission?

MAJ GAGNON: Not at all, sir.

Q. What accounts for the fact

that between March 2008 and October 7, 2009 no

documents were delivered to the Commission?


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MAJ GAGNON: Two reasons, sir.

One is the decision by the Commission to conduct a

public hearing which brings us to the sudden

decision that we had to go through through the

Canadian evidence act section 38 review to be sure

that any operationally sensitive information that

could affect operation overseas, especially in

Afghanistan and put at risk our soldiers' life will

be properly protected.

Q. Over the course of more than

a year, from March 2008 to October 2009 which is a

year and some months later, not one document has

made its way through the section 38 process?

MAJ GAGNON: As stated in there.

THE CHAIRPERSON: Sorry, I didn't

hear that.

MAJ GAGNON: As stated in the

transcript of the hearing.

MR. LUNAU:

Q. From March 2008 to October

2009 we have no documents produced because of the

section 38 review.

MAJ GAGNON: Yes, sir, and also we

just had the decision on the judicial review that

was, again, affecting what the Commission would be


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asking in terms of documents.

Q. After October 2009 the next

set of productions from the Department of National

Defence appears to be January 22, 1,259 pages of

NIS documents.

MAJ GAGNON: They