PIH Hearing Transcript.april 6 2010

8/9/2019 PIH Hearing Transcript.april 6 2010

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Military Police Complaints Commission

AFGHANISTAN PUBLIC INTEREST HEARINGSheld pursuant to section 250.38(1) of the National DefenceAct, in the matter of file 2008-042

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

défense nationale pour le dossier 2008-042

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.

Ottawa, Ontarioon Tuesday, April 6, 2010

VOLUME 1-A

BEFORE:

Mr. Glenn Stannard Acting Chairperson

Mr. R. Berlinquette Commission Member

Ms. R. Cléroux Registrar

APPEARANCES:

Mr. R. Lunau Commission counselMs. Catherine Beaudoin

Mr. A. Préfontaine For Maj Bernie Hudson, MajMs. H. Robertson Michel Zybala, Maj Ron Gribble,Mr. V. Wirth LCol (Ret'd) William H. Garrick,Ms. E. Richards CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner

Mr. P. Champ For Amnesty International andMr. K. Elgazzar B.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

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(ii)

INDEX

PAGE

Opening Submissions by Mr. Champ 35

Opening Submissions by Mr. Wallace 42

Opening Submissions by Mr. Préfontaine 44

PREVIOUSLY SWORN: SGT CAROL UTTON 50

Examination-In-Chief by Mr. Lunau 50

Cross-Examination by Mr. Champ 105

Cross-Examination by Mr. Wallace 162

Cross-Examination by Ms Richards 164

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(iii)

LIST OF EXHIBITS

NO. DESCRIPTION PAGE

P-20 Letter from Lori Bokenfohr to Alain Préfontainedated October 13th, 2009. 11

P-21 Letter from Alain Préfontaine to List of Addresseesdated July 28th, 2009. 11

P-22 Collection A, Human Rights and Related Materials,Additions (3 Volumes). 11

P-23 Collection B, Additional Federal Court Documents(3 Volumes). 11

P-24 Collection C, DND Documents (6 Volumes). 12

P-25 Collection D, Captain Moore’s Documents, (1 Volume). 12

P-26 Collection E, Colvin’s documents (1 Volume). 12

P-27 Collection F, NIS documents (6 Volumes). 12

P-28 Collection G, Notebooks (1 Volume). 12

P-29: Collection H, Documents from public open sources(1 Volume). 12

P-30 Collection I, Transcript of Major Rowcliffe(included in 2 volumes identified as Collection I to S) 12

P-31 Collection J, Transcript of Major Gribble (includedin 2volumes identified as Collections I to S) 12

P-32 Collection K, Transcript of Sergeant Utton(included in2 volumes identified as Collections I to S). 13

P-33 Collection L, Transcript of Major Hudson (includedin2 volumes identified as Collections I to S). 13

P-34 Collection M, Transcript of Major Boot (includedin2 volumes identified as Collections I to S). 13

P-35 Collection N, Transcript of Ms. Duschner (includedin

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2 volumes identified as Collections I to S). 131





Ottawa, Ontario

--- Upon commencing on Tuesday, April 6, 2010

at 10:00 a.m.

THE REGISTRAR: Ladies and

gentlemen, the Afghanistan Public Interest Hearings

held pursuant to Section 250.38(1) of the National

Defence Act in the matter of the Military Police

Complaints Commission, file 2008-042 are now in

session.

Acting Chair, Mr. Glenn Stannard,

presiding together with Commission Member, Mr. Roy

Berlinquette.

Mesdames et messieurs, les

audiences d’intérêt publique sur l’Afghanistan

tenues en vertu du paragraph 250.38(1) de la Loi

sur la défense nationale pour le dossier de la

Commission d’examen des plaintes concernant la

police militaire 2008-042 sont maintenant ouvertes.

Le président intérimaire, monsieur

Glenn Stannard préside les audiences avec le

commissaire Roy Berlinquette.

THE CHAIR: Thank you, Madam

Registrar.

Good morning and bonjour.

Once again, please allow the Panel

to introduce ourselves.

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

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I am Glenn Stannard, the Acting

Chairperson of the Military Police Complaints

Commission, and my fellow Panel Member is Mr. Roy

Berlinquette, also a Member of the Military Police

Complaints Commission.

We would like to begin by thanking

all present here today.

Counsel, public observers and

members of the media for your continued interests

in the work of the Military Police Complaints

Commission.

We apologize for the delay, we had

to sort through a little bit for a court reporter,

but we are back in business.

Thank you.

Madam Registrar, thank you for

calling to order the resumption of the Public

Interest Hearing into the Military Police

Complaints Commission, file 2008-042, in relation

to a complaint by the Amnesty International and

B.C. Civil Liberties Association, dated June 12th,

2008.

The Afghanistan Public Interest

Hearings commenced on December 4th, 2008, with the

Commission panel consisting of the then Chair of

the MPCC, Mr. Peter Tinsley and Mr. Roy


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Berlinquette.

On December 11th, 2009, I was

appointed Acting Chairperson of the Complaints

Commission, with full statutory powers of that

position.

On February 23rd, 2010, I assigned

Mr. Roy Berlinquette and myself to conduct the

Public Interest Hearing in relation to Military and

Police Complaints Commission, 2008-042.

On March 24th, 2010, we heard

three motions and arguments from the parties in

respect to those motions.

The motion for reconsideration of

the decision to name Lieutenant Colonel Retired

Garrick as a subject, the standard of conduct

applicable to the Military Police subjects, and the

motion to determine the standard of conduct

applicable to situations where it is alleged that

the Military Police subjects had the means of

knowing of a situation which they should have

investigated.

Last week, Mr. Berlinquette and I

considered these three motions, as well as the

arguments advanced by the three parties, and issued

three decisions in relation to the motions.

I trust counsel has received the


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decisions on Thursday, April 1st, as transmitted by

the Registrar of the MPCC?

All parties have received?

---(No response/pas de réponse)

I would again request counsel

present to introduce themselves and their co-

counsel.

Let us begin with the lead

counsel, Mr. Ron Lunau.

MR. LUNAU: Thank you.

I am Ron Lunau, the lead counsel

for the Commission. With me is Ms. Catherine

Beaudoin.

THE CHAIR: Mr. Préfontaine?

MR. PRÉFONTAINE: Bonjour, Alain

Préfontaine. I am lead counsel representing the

eight subjects.

I am assisted today by Liz

Richards, to my left, behind me to the left is

Commander Retired Vance Wirth, who is also a member

of the team.

To his right, Helene Robertson.

Not in the room, but also a member

of our team is Nathalie Benoit.

THE CHAIR: Thank you. Mr.

Champ?


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MR. CHAMP: I am Paul Champ for

the Complainants, Amnesty International Canada and

the British Columbia Civil Liberty Association.

I am joined by Khalid Elgazzar

today, as co-counsel.

Through this hearing we will also

be represented by Sebastien Jodoin and also Grace

Pastine and Carmen Chung.

THE CHAIR: Thank you.

Mr. Wallace?

MR. WALLACE: Good morning. My

name is Mark Wallace, I am counsel here today for

retired navy captain, Steve Moore, one of the

subjects and the former Canadian Forces Provost

Marshal.


MR. BERLINQUETTE: To reiterate

from our March 24th, 2010 opening statement on our

guiding principles, remained as follow: 1)

thoroughness; 2) expeditiousness; 3) openness to

the public and; 4) fairness.

As a Public Interest Hearing, it

is essential that the proceedings be as

transparent, accessible and open to the public as

possible.

We are mindful that inquiries can


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have a serious impact on those implicated in the

process.

Therefore, this process must

balance the interests of the public in finding out

what happened with the rights of those involved to

be treated with fairness in the utmost respect.

This is not an adversarial

process, but an inquisitorial process.

The role of the Commission is to

receive complaints regarding the conduct of members

of the Military Police relating to policing duties

and functions.

Conduct investigations or public

hearings and render a report with findings and

recommendations.

It is the Commission’s intention

to commence hearing testimony today and continue on

April 7th and 8th.

On subsequent weeks, we will

preside Monday to Thursday with Friday liberated

for counsel preparation.

Only if it becomes necessary to

accommodate a witness will we sit on a particular

Friday.

We will commence hearings at 9

a.m. to 12 noon, with a break returning at 1330.


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We intend to preside to 1630 hours

on hearing days and we will also take a short

morning and afternoon break.

We seek your cooperation in

abiding to these schedule hearing times.

Are there any questions at this

stage?


Hearing none, I would ask Mr.

Lunau for his opening remarks.

MR. LUNAU: Thank you, Mr.

Berlinquette, Mr. Stannard.

The Commission is, this morning,

entering upon the evidence phase of the Afghanistan

Public Interest Hearings. Over the next several

weeks, the Commission will receive testimony from

approximately 25 witnesses of fact.

To set the stage for these

hearings, the issues that the Commission will

generally be examining arise from what has been

called the Failure To Investigate Complaint.

This complaint was delivered to

the Commission by Amnesty International and the

B.C. Civil Liberties Association on June 12th,

2008.

In summary terms, the complaint


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alleges that from May 3rd, 2007 to June 12th, 2008,

members of the Canadian Forces National

Investigation Service in Kandahar and the Task

Force Provost Marshal were aware that former

Canadian Forces detainees were likely tortured by

Afghani authorities, yet failed to investigate

whether any members of the CF should be charged for

their role in facilitating these alleged crimes.

The complaint also alleges that

senior officers occupying the position of Commander

Task Force Afghanistan ordered the transferred

detainees to the custody of Afghan Secret Police

during the relevant period of time, despite first-

hand reports that previous detainees were tortured

by Afghani authorities.

The date of May 3rd, 2007, which

is the beginning date of the complaint, is tied by

the complainants to the date on which Canada signed

a Supplementary Detainee Transfer Agreement with

Afghanistan that permitted Canadian officials to

visit and inspect detainees in Afghani custody.

Although transfers were suspended

on November 6th, 2007, the complainants allege that

the transfer should have been halted much sooner,

since information was available through public

reports and from what the complainants described is


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highly credible, first-hand reports of torture from

Canadian officials.

It has to be emphasized that the

allegations made in the complaint are just that,

allegations, and people should not be tempted to

leap to conclusions based on allegations and

incomplete evidence.

It is our intention to proceed

this morning first with the filing of documentary

exhibits.

As mentioned previously, the

Commission has compiled a tremendous volume of

documentary material through the power of summons,

interviews by Commission investigators and through

voluntary disclosure by parties and some witnesses.

Today these documents are being

filed publicly.

Many, if not all of them, may

already have been put in the public domain through,

for example, the recent productions in Parliament.

All of the counsel here this

morning have been provided with a list of exhibits.

Previously filed were exhibits P-1

to P-19 and our intention is not to re-file those

exhibits, but simply to adopt them.

They will retain the same exhibit


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numbers as they have already been assigned.

The second batch of exhibits from

what will become P-20 to the end of the list, are

those new materials that are being filed today.

I would ask the Registrar to

assign exhibit numbers to those documents,

beginning with Exhibit P-20, letter from Lori

Bokenfohr to Alain Préfontaine dated October 13,

2009.

Before the Registrar does that, I

should just point out that all of the parties have

previously received disclosure of these documents

as they were made available to us and they have

before today been provided with a complete copy of

the various collections and documents that are set

out on the exhibit list.

So if there are no objections, I

would like to proceed to ask the Registrar to

identify those exhibits.

THE CHAIR: If I could, before we

ask the Registrar, are there any comments from any

of counsel at opening?

Mr. Préfontaine?

Mr. Champ?

Mr. Wallace?

---(no response/pas de réponse)


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EXHIBIT P-27: Collection F,

NIS documents (6 Volumes).

EXHIBIT P-28: Collection G,

Notebooks (1 Volume).

EXHIBIT P-29: Collection H,

Documents from public open

sources (1 Volume).

EXHIBIT P-30: Collection I,

Transcript of Major Rowcliffe

(included in 2 volumes

identified as Collection I to

S)

EXHIBIT P-31: Collection J,

Transcript of Major Gribble


identified as Collections I

to S)

EXHIBIT P-32: Collection K,

Transcript of Sergeant Utton



to S).

EXHIBIT P-33: Collection L,

Transcript of Major Hudson




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to S).

EXHIBIT P-34: Collection M,

Transcript of Major Boot



to S).

EXHIBIT P-35: Collection N,

Transcript of Ms. Duschner



to S).

EXHIBIT P-36: Collection O,

Transcript of Warrant Officer

Watson (included in 2 Volumes


to S).

EXHIBIT P-37: Collection P,

Transcript of Brigadier

General Laroche (included in

2 Volumes identified as

Collections I to S).

EXHIBIT P-38: Collection Q,

Transcript of Lieutenant

General Gauthier (included in

2 Volumes identified as



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EXHIBIT P-39: Collection R,

Transcript of Captain Moore



to S).

EXHIBIT P-40: Collection S,

CSC documents (included in 2

volumes identified as


EXHIBIT P-41: Collection T,

relevant documents received

from AG on March 22nd, 2010

(1 volume).

EXHIBIT P-42: Document

index for the Main Witness

book.

EXHIBIT P-43: Document

index for the NIS Witness

Book.

EXHIBIT P-44: Transcript of

hearing held on December 4th,

2008.


hearing held on May 25th,

2009.



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hearing held on May 26th,

2009.


hearing held on June 1st,

2009.


hearing held on June 2nd,

2009.


hearing held on June 3rd,

2009.


hearing held on October 7th,

2009.


hearing held on October 14th,

2009.


hearing held on December

10th, 2009.

MR. LUNAU: Thank you, Madam

Registrar.

With respect to the transcripts of

hearings held on December 4th, 2008, up to December

10th, 2009 that we filed as exhibits, some of those

transcripts contain evidence that was led at the


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time the former Chair was a member of the panel and

our intention is not to recall those witnesses

unless we are requested to do so by a party and we

will be relying on the transcripts in lieu of

recalling those witnesses.

Now, we were advised late last

week that counsel on behalf of a number of the

subjects intends to present a request to the

Commission that certain evidence be heard in-

camera.

This type of request is permitted

by rule S-14 of the Commissions Afghanistan Public

Interest Hearing Rules.

I would ask counsel for the

subjects to speak to that request.

MS. RICHARDS: Good morning.

THE CHAIR: First of all, relative

to the filing of the transcripts, especially during

the time, Mr. Tinsley, if there are any issues that

need to be raised on that, or is that satisfactory?


Hearing none. Thank you.

Ms. Richards?

MS. RICHARDS: Good morning,

members of the Panel.

As you are aware, we have raised


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with your counsel some weeks ago and followed up

last week a request that a portion of these

proceedings be held in private in accordance with

the rules, and as counsel has referred to in

accordance with Rule 14 of the Afghan Public

Interest Hearing Rules; and in accordance with

250(42) of the National Defence Act.

Pursuant to your Rules and dealing

in accordance with the Act, that request must be

dealt with in private, so we are asking that our

request be dealt with following the completion of

the public portion of the opening statements this

morning.

THE CHAIR: The Rules also state

that the reasons then would be public, the response

to that; correct?

MS. RICHARDS: My understanding

under the Rules is that there will be a public

decision rendered, but there may also be a

confidential decision.

Of course, as you are no doubt

aware, there are some sensitivities about the

request itself, and it is for that reason that it

must be held in private.

THE CHAIR: Yes.

Any reason why this would not have


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come up during the week of motions?

MS. RICHARDS: We were hopeful

that we were going to be able to resolve it among

counsel, and we have not been able to. So that is

why it is coming up today.

THE CHAIR: That is unfortunate.

We would have liked to have been

able to deal with it so that we could proceed with

testimony, obviously.

We have a number of people here,

including the members of the media, and other

counsel, obviously.

But having regard for the request,

I really am not in much of a position to move in-

camera.

How long do you anticipate to

take?

MS. RICHARDS: In terms of the

request?

I think we would be happy to

address it on a preliminary basis with you this

morning.

I think that will take 20 minutes

just to give you the overview and I think we can

come back this afternoon to deal with it in more

specificity.


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THE CHAIR: You are anticipating

that this will end today though, we will be dealing

with the motion in its entirety today?

MS. RICHARDS: Yes, I hope so.

Yes.

THE CHAIR: I am sorry, go ahead.

MR. BERLINQUETTE: Will we be

hearing from the witness tomorrow?

MS. RICHARDS: I hope so. And

yes.

MR. BERLINQUETTE: We have a

schedule and we are trying to follow that schedule.

MS. RICHARDS: The witnesses are

available and depending on the resolution of this,

absolutely.

MR. BERLINQUETTE: Thank you.

THE CHAIR: In terms of the in-

camera portion, if counsel is in agreement, the

only persons that can remain are counsel and there

is no issues with any of your counsels at the

tables, including Mr. Champ.

I would also ask that exclusion be

made for allowing the MPCC counsel to remain, if

that is sufficient.

MS. RICHARDS: The only issue we

have and that we would ask is that counsel who


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remain sign an undertaking, and we are happy to

discuss that as well.

THE CHAIR: Provide an

undertaking in --

MS. RICHARDS: Not to disclose

matters that are discussed in private.

THE CHAIR: Did you say sign or

just provide it to the panel?

MS. RICHARDS: Normally, it would

be done by way of written undertaking, but we can

discuss that.

THE CHAIR: Okay, thank you.

We will adjourn in-camera.

MR. CHAMP: I am sorry, Mr.

Chair, just before we break, if I may, I was just

wondering, it looks like we are going to be

breaking to deal with this ex parte issue or in-

camera issue.

I am wondering if we can get some

other direction also about where we stand in terms

of other disclosure issues?

I am not sure if Commission

counsel can assist us with that.

I wrote to Commission counsel near

the end of last week, providing disclosure of

documents that we had recently obtained that we


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viewed as highly relevant and had not been

previously disclosed.

We were wondering if we could get

some kind of update on the status of disclosure.

I know when we convened about ten

days ago, we were apprised that there was some

disclosure outstanding but that it would occur

later on and it would not necessarily interfere at

the hearing.

Some of the information that we

have now seen suggests to us that we should get

access to some disclosure as soon as possible, if

perhaps Commission counsel can give us an update

where that stands.

We also understand there has been

outstanding Canada Evidence Act proceeding, we are

not sure where that is at either, whether some of

the documents are covered by that.

So just before we embark on some

of these other things, if I may, Mr. Chair, perhaps

look for an update from Commission counsel or from

the Panel on those issues.

THE CHAIR: That is fine.

Mr. Lunau --?

MR. LUNAU: We are still looking

at the letter and the materials from Mr. Champ in


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terms of document production.

We have been, first of all,

reporting to the parties weekly as documents have

come in.

We are told that there are still a

substantial number of documents that are being

processed and that are to be provided to us.

They will be provided as they are

redacted and disclosed. I cannot provide a time

frame for when that will happen.

Obviously when the documents do

come in, we will have to examine them and see what

steps are required to be taken to deal with those

documents.

In terms of the Canada Evidence

Act proceedings that my friend alludes to, those

proceedings are still before the Court, they have

not been discontinued, but there has been a process

trying to deal with the government over the extent

and nature of those redactions.

By and large, the redactions that

have been made, we do not intend to contest

further.

MR. CHAMP: If I might on that,

Mr. Chair, there is a core set of documents that we

view as relevant and we note that one of those


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document has, fortunately, become less redacted by

the government. This was one of the AColvin

documents”.

This was a document that we have

had in our possession for quite some time.

One of the only Colvin documents

that we had up until last fall, but for the

purposes of this proceeding, one that we viewed as

highly relevant.

This was one of the first

monitoring visits by Canadian diplomats on June 6th

of 2007 into an NDS facility in Kabul.

We received, I guess it’s about

two weeks ago now, another version of that document

that is much less redacted which is very helpful in

sort of casting more light on what was happening at

the time, what information was received by Canadian

diplomats.

In that context, we had hoped that

perhaps there were other redactions going on or a

second look at certain documents, specifically all

the other -- what we have termed the Atorture

reports”, these were the monitoring visit reports

between June 5th, 2007 and November 5th, 2007.

There were, by our count, four

visits -- pardon me, five visits, including the


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November 5th, 2007 stop where Canadian diplomats

heard first hand accounts of torture.

On at least two of those documents

we do not even have the precise date. We can

estimate the date, that they are in the summer or

early fall of 2007.

They were visits to the NDS

facility in Kandahar and we were wondering if

Commission counsel had considered exploring with

the Attorney General if further redactions were

possible on those documents.

If the coven visit on June 6th

could have some redactions removed, it is our view

that some of those other documents could have

redactions removed and would cast, in our view,

really critical light on what we view as our most

serious concern.

The November 5th, 2007 detainee

who, in our view, really cannot be seriously

contested that that individual was tortured, where

they found the electrical cable and rubber hose in

the cell and wounds on the gentleman’s back.

There was two other reports that

must have been in close time frame, one titled

Kandahar 0074 and Kandahar 0082, if we could get

access to even the dates of those reports, we think


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that it could provide all of us with a bit more

information of what information was in the hands of

Canadian diplomats, at least.

We are hoping that information was

transmitted to the Canadian Forces, but also the

dates when it was in their hands.

We view this as very critical

information and it is issues that we intend to

raise in cross-examination with witnesses because

we think the time line is critical and we are

wondering if this is something that is still -- we

were hoping actually there was a subject of ongoing

discussion, but it sounds like it is not and we are

wondering if we can suggest that Commission counsel

continue looking into those issues.

THE CHAIR: Mr. Lunau?

MR. LUNAU: We are happy to

continue looking into matters of concern to my

friend, but I cannot say that with respect to all

of these documents that have been produced, they

have been examined and there has been a lot of back

and forth with the government to try to explain

from the Commission’s perspective why certain

redactions, in our view, should be reconsidered.

Many of them were reconsidered in

the documents that were tabled here today reflect


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those consultations.

I can tell you, we have made

significant efforts to limit the redactions to

those that the government considers strictly

essential.

As I say, if there are particular

pieces of information that you would like us to

take up again and continue trying to resolve those

issues with the government, we are quite happy to

do that.

That is about all I can say on the

matter.

I mean, we have tried to get as

much information out of these documents as we can.

Also bear in mind that witnesses,

including Mr. Colvin, will be testifying and there

will be an opportunity to supplement these written

reports with his oral testimony.

THE CHAIR: Mr. Préfontaine, any

comment?

MR. PRÉFONTAINE: Yes, in the

sense that the sole purpose of this Commission is

obviously to look at what the eight subjects knew

or had the means of knowing and whether they ever

had reason to form a suspicion that the orders

issued by the commander to transfer individual


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detainees would expose each and every one of those

detainees to a serious risk of torture.

So the concern of Mr. Champ about

what diplomats knew is actually irrelevant to the

work of this Commission.

It is very relevant to the cause

being pursued and advanced by Amnesty International

in other forums.

I recognize it is a legitimate

issue of debate in other forums.

But we have gone through the

exercise of clarifying this Commissions’ purview,

we have gone to the Federal Court and it has been

very precisely defined what Parliament intended

this Commission to look at.

I think expressions of interest

are one thing, but they have to be reconciled both

with Parliament’s mandate to this Commission, which

defines relevancy and with the requirement to

protect information which, if disclosed, would be

injurious to Canada’s international relations,

national defence or national security, which is the

interest covered by section 38.

I think that Mr. Lunau quite

fairly conceded that the present results, that is

to say the documents redacted in their present


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form, represent the most viable compromise between

these competing tensions.

Obviously, as witnesses testify,

they will have to protect the same information.

It is not because the witness is

in the witness box, that something was deemed to be

worthy of protection, yesterday, all of a sudden

becomes open season today.

THE CHAIR: Would you agree that

if some documents, further redactions become

available, then they be made available to the

Panel?

MR. PRÉFONTAINE: Of course,

certainly.

I have already made that

commitment to my friend, Mr. Lunau, in relation to

the process going on in the other place, which is

spearheaded by former Justice Iacobucci.

THE CHAIR: Is it possible to

have some of the documents specifically mentioned

by Mr. Champ included in that review?

That ongoing discussion and

review?

MR. PRÉFONTAINE: They all are,

Mr. Chairman.

But I do not control the timelines


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of that process.

The only thing I can report is

that former Justice Iacobucci is presently busily

working away.

When he will report and when he

will make his recommendations is something I do not

know.

THE CHAIR: Okay.

Before I turn to you.

Mr. Wallace?

MR. WALLACE: I have nothing to

add on this issue at this point in time.

THE CHAIR: Briefly, Mr. Champ?

MR. CHAMP: Just very briefly,

Mr. Chair, I guess what I am hearing is that --

I guess my concern is this, Mr.

Chair.

Last week we came into possession

of documents through -- it was an access to

information request by a media outlet that

indicated that the acting commander of Task Force

Afghanistan on November 6th, 2007, who suspended

transfers was in possession of the DFAIT monitoring

report of November 5th, 2007, that is the one where

they found the electrical cable and the rubber

hose.


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I am now, it seems to me, hearing

that perhaps --

And first of all, I do not know

how we did not have those documents before, why

those documents were not disclosed. That is of

concern to me.

And secondly, I am hearing my

friend now suggesting that the Military Police

subjects of this complaint were unaware of the

other Department of Foreign Affairs monitoring

reports.

If that is the case, I would like

that confirmed for the record.

I disagree with my friend that it

would not be in the means of knowing, but I think

it would very much sort of shape how at least we

would be approaching the complaint.

THE CHAIR: I did not say we

agree with Mr. Préfontaine, I just heard him say

that.

MR. CHAMP: Mr. Chair, you were

not here before, neither was lead counsel, but it

was about a week before the hearing was going to

start in October 2009, Mr. Berlinquette, you might

recall, where we had learned for the first time

that in fact there had been investigations by the


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Military Police.

We did not know that until a week

before hearing.

My concern now is, at least from

my perspective, this is a very critical piece of

information were the Canadian Forces Military

Police unaware of the DFAIT monitoring reports.

It would be very helpful, I think

for all parties, if we could just be advised by

counsel for the subject if that was or was not the

case.

MR. PRÉFONTAINE: The answer is

simple, Mr. Chairman.

This Commission has set, for

itself, the role of finding out whether M.P.’s knew

or had the means of knowing.

I think I would not assist the

Commission its endeavour if I was to take a

position on that.

It is for the Commission to

inquire into and report on.

THE CHAIR: Mr. Lunau?

MR. LUNAU: I do not think I can

add anything further, Mr. Chair.

Certainly amongst the witnesses

who are going to be called are members of the


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Military Police from all levels of command

involvement and involvement on the ground in

Kandahar.

The issue of what they knew or had

the means of knowing, and in particular with

respect to the number of e-mails and human rights

reports and other sources of information that were

available is going to be one of the topics that

will be the subject of examination.

So I think it is premature at this

point to try and speculate or speak to what they

will say in terms of what information reports they

saw or did not see.


I think your comments we have

noted, and I know the issue of the redactions is an

ongoing process.

Obviously when we hear from the

witnesses the necessary examination will take place

by all parties.

We are going to take five minutes

just to adjourn, but I expect when we come back we

will move in-camera.

MR. PRÉFONTAINE: I am sorry, Mr.

Chairman, I had understood from your counsel that

we were going to deal with the opening remarks that


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you called for, and it might be an opportune time

for us to do that now before you move in-camera so

that you can do as much publically before you break

to move in private as you can.

THE CHAIR: That is fine.

MR. PRÉFONTAINE: I have not

discussed with Mr. Lunau if he had an order of

presentation.

If Commission counsel does not

have opening remarks to offer, then I would assume

that the complainants will make their opening

remarks first.

THE CHAIR: Mr. Lunau, I believe

you have made your --

MR. LUNAU: That is correct, yes.

THE CHAIR: They have all done

theirs.

In terms of order, I know there

has been discussions in the previous -- I have read

them on the transcripts, so are we satisfied, Mr.

Champ, that you will proceed?

MR. CHAMP: That is fine, Mr.

Chair.

THE CHAIR: Followed by Mr.

Préfontaine?

MR. PRÉFONTAINE: No, usually it


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is my friend, Mr. Wallace, and then I get to be the

last.

THE CHAIR: Okay. Mr. Champ?

MR. CHAMP: In terms of opening

remarks, Mr. Chair, I will just note that we have,

in fact, made opening remarks previously on May

25th, 2009, so we fully adopt those at that time.

We also note the opening remarks

that are made by Mr. Lunau, the new Commission lead

counsel this morning and we believe he has, for the

most part, accurately captured the core of our

complaint.

OPENING REMARKS BY MR. CHAMP:

As indicated in our June 12th,

2008 complaint, our concern is that on May 3rd,

2007, the Canadian Government signed a new detainee

transfer arrangement with the Government of

Afghanistan that allowed Canadian officials to

monitor those detainees in Afghan detention

facilities.

As soon as they commenced that

monitoring, from almost the very first visit,

Canadian diplomats began hearing first hand

accounts of torture and abuse.

Between June 5th, 2007 and

November 5th, 2007, approximately 1/4 to 1/3 of


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detainees interviewed told Canadian diplomats that

they had been tortured in the most horrible forms

imaginable.

Some of those detainees had wounds

consistent with their allegations. Others were

described by Canadian diplomats as clearly

traumatized.

Our concern, Mr. Chair, is that

notwithstanding those reports, and notwithstanding

also the numerous public reports available from

various credible organizations such as the United

Nations, the United States State Department, the

Afghan Independent Human Rights Commission and the

Department of Foreign Affairs own annual Human

Rights reports on Afghanistan, all finding that

torture is endemic in Afghan detention facilities,

and suspension transfers continued.

We believe that this issue really

comes to a point in November 5th, 2007 when one

detainee could actually point to the implements

with which he was tortured.

Now, governing by what we know of

how long the NDS or the Afghan Secret Police keep

detainees in custody, that is approximately one

month, we can infer that the November 5th, 2007

detainee was transferred within a few weeks of that


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interview.

So in short, he was transferred to

torture at a time when at least the Canadian

Department of Foreign Affairs was in possession of

numerous reports of first-hand allegations of

torture.

Our concern here is that once that

November 5th, 2007 allegation came to light, it

should have been incumbent upon the responsible

Military Police officials to inquire further and

investigate whether such transfers were in fact

lawful.

That is the core of our complaint,

Mr. Chair.

We have extended our complaint to

June 2008. That is essentially a black hole in

terms of information for us.

We do not know precisely what was

going on in that period, although in our view,

given all of those accounts of torture,

approximately a quarter of individuals saying that

they were being tortured, there should not have

been any further transfers or at the very least

such transfers should have been investigated by the

Military Police. That is the core of our concern,

Mr. Chair.


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We are looking forward to hearing

the evidence of the next few weeks.

In terms of preliminary points, I

would note again, at this point, Mr. Chair, we are

not satisfied with the disclosure that has been

obtained thus far.

Obviously, you see beside us many

volumes of paper, but I have been working on this

file for some time, Mr. Chair, and what we are

missing, in my view, are the critical documents

where are the detainee transfer records?

We know that apparently there was

some kind of reports or forms that were filled in

on the risk of torture at the time of transfer

decisions. We do not see those.

We do not even know the precise

dates, as I just pointed out earlier, of some of

these torture reports.

We know the general time frame,

within a couple of months, but no one knows

precisely when they occurred.

We do not know, as I say, what

precisely did the relevant military police officers

know.

And we have a hard time believing

that there is absolutely no documents on that.


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So given that what we have heard

today, that it appears that the search for

documents is, to a large extent, closed, we may

well bring a motion sometime in the next week or

two on that issue, Mr. Chair.

Final point on opening remark,

because I anticipate it may be raised, is some of

the exhibits that have been introduced this morning

concern a letter from previous counsel for Mr.

Richard Colvin, Lori Bokenfohr as well as a letter

from Mr. Préfontaine, counsel for the subjects to

all of the witnesses, there was an exchange of

letters on those exhibits some time ago and we have

not had an opportunity to address those yet.

If I may, I would just suggest

this.

The concern about those letters is

that witnesses were in some way intimidated or

interfered with in preventing their cooperation

with this Inquiry and with this Commission.

In our view, those letters do bear

that out.

In our view, Mr. Chair, it would

also suggest that there is perhaps an ongoing issue

with accountability within the Canadian Forces that

has been revealed by that conduct.


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Previous Commission Chair, Mr.

Tinsley had already pointed out that his concern of

disclosure of documents related to that.

But we also know, Mr. Chair, I am

sure you have had an opportunity to read the MPCC

report on the Attaran complaint, although somewhat

of a different nature of allegation, some of the

systemic issues concerning the independence of the

military police in theatre, and also the

willingness of the Canadian Forces to cooperate

with inquiries or investigations into their

actions, in our view, is laid bare.

In that report, the Commission

pointed out that the national investigation service

was obstructed in trying to obtain detainee

documents from other Canadian Forces units. They

were contemplating getting a warrant, a judicial

order, to obtain documents in Kandahar.

There is also an account in that

report from the Deputy Director of International

Humanitarian Law and the Department of Foreign

Affairs raising a concern about potential

mistreatment of a detainee, sending an e-mail to

the Department of National Defence, asking for an

account. That e-mail was ignored.

It was communicated to that


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individual through indirect channels that such

intervention was unwelcome.

Then of course there is the Somali

report, which also had an entire chapter on issues

of transparency or lack thereof within the Canadian

Forces.

We think this is a systemic issue,

that we may see through this hearing, Mr. Chair,

and we ask that the panel be alive to it.

With respect to the both

Préfontaine letters, we have not heard how

commission counsel intends to proceed, but our

suggestion might be that they are in the record,

that some witnesses could be asked questions about

them.

And on final submissions, parties

might address that issue, but the willingness of

the department and the Forces to cooperate with

this inquiry and perhaps appropriate

recommendations from this Commission panel could

then be forthcoming in the final report.

So that is just, I guess a sub-

plot or a sub-theme if you will, to this complaint,

but we wanted to raise it with you and we thought

that this would situate or contextualize those

letters and how we see them fitting into the


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overall conduct of this inquiry.

Those are our opening remarks.

Thank you, Mr. Chair.


Mr. Wallace?

MR. WALLACE: Thank you, Mr.

Chair.

I will be very brief.

OPENING SUBMISSIONS BY MR. WALLACE:

As you know, my client is Retired

Navy Captain, Steven Moore, who was the Canadian

Forces Provost Marshal during the period of time

that is covered by the complaint.

Being the Canadian Forces Provost

Marshal means that he, at the time, was the highest

ranking military police officer in the Department

of National Defence.

It also means that he is the

commanding officer of the National Investigation

Service (NIS).

Despite his rank, however, he does

not and did not command the military police

officers in theatre.

This makes his position very

different from that of a civilian chief of police.

Because of this difference and his


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dual role, it makes the command structure and flow

of information following that command structure of

particular importance from his perspective.

These hearings will examine the

conduct of the subjects in the context of the

complaint by Amnesty International and B.C. Civil

Liberties Association.

We must all keep our eyes on that

ball, that is the nature of the complaint.

These hearings are not about the

wisdom of the government’s policy in Afghanistan,

but rather the specific conduct of the subjects.

Keeping the proper focus will

allow you to make a sharper assessment of the facts

that are presented to you.

Thank you.

THE CHAIR: Thank you, Mr.

Wallace.

MR. PRÉFONTAINE: I welcome this

opportunity, Mr. Chairman and member Berlinquette

to make a few introductory remarks to assist the

Complaints Commission.

OPENING SUBMISSIONS BY MR. PRÉFONTAINE:

This public hearing is an aide to

an investigation into a specific conduct complaint

made against eight individuals.


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It is not a trial.

My opening remarks will not follow

the usual patron of opening remarks made by counsel

when they open their case at a trial, but will

focus instead on what the Commission in mandated by

law to do and what it is not mandated to do.

At its most basic level, the

complaint is about whether the subjects of the

conduct complaint could reasonably suspect that the

task force commander had committed a crime, and if

they had such a reasonable suspicion whether a

reasonable M.P. placed in similar circumstances

would have initiated an investigation against the

commander.

The focus of your investigation

and of the hearing which it serves, must, as the

Federal Court has already decreed, be about what

the eight subjects knew or had the means of knowing

to form that reasonable suspicion.

Conversely, the hearing is not

about what other actors knew or had the means of

knowing.

The mandate of the Complaints

Commission is limited to a review of the conduct of

members of the Military Police in the performance

of their policing duties and function, and of no


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therefore, for that reason, is not something that

this Commission can do.

How Canada lives up to its

international law obligation under the Geneva

Conventions and under the convention against

torture are important and legitimate issues, but

the fact that these issues are important and

legitimate matters of inquiry by other bodies, does

not expand the role parliament has assigned to this

Commission.

If the rule of law, which the

complainants say they want to see upheld, is to

mean anything, then it means that the law must be

obeyed in every circumstance where it applies, not

only when it seems convenient to do so.

The law in this particular matter

has defined precisely the scope of this

Commission’s mandate.

So as you hear evidence that other

Government of Canada actors might have formed

beliefs and opinions about the treatment of

detainees post-transfer, the issue for review is

not what those actors did or did not do, but only

whether they shared these opinions and beliefs with

one of the eight subjects, because then it connects

back to your mandate of what the subjects knew or


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had the means of knowing.

In that respect, you must keep in

mind the rules governing the protection of

sensitive information.

When we last met, I alluded to the

high level articulation of those rules contained in

the Treasury Board Policy on the security of

information.

The most relevant of those rules

is the rule restricting access to classified or

protected information on a need-to-know basis.

To understand that rule, you must

keep in mind who decides who needs to know what

information.

The regime entrusts that

responsibility to the originator of the

information.

Thus, in the declassified

documents forming part of your record, which has

been considerably expanded upon today, you will

often see the acronym Asecret CEO” at the top of

messages.

This acronym was obviously

inserted by the originator of the message. It is a

direction by that originator that the information

is classified, and that is what the word Asecret”


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We will discuss that at that time.

Thank you.

--- Whereupon adjourning in public at 11:05 a.m.

--- Whereupon the in camera motion was heard

at 11:34 a.m., transcribed under separate

cover.

--- Whereupon the in camera motion concluded

at 12:30 p.m.

--- Upon resuming the public portion at 2:00 p.m.

--- In camera witness Sgt. Utton transcript in full

reproduced below.

THE CHAIRPERSON: All counsel have

acknowledged. Are we ready to proceed? Is there

anything further we need to just clarify, or is

everybody ready to go?

MR. LUNAU: Yes, sir, I am ready,

and that certain person is just outside? Okay.

--- (Witness entered the hearing room)

THE CHAIRPERSON: Thank you. Good

afternoon. Has the witness been sworn?

MS. RICHARDS: Yes, it has.

THE CHAIRPERSON: Thank you. Good

afternoon. I am the acting chair, Glenn Standard,

and this is Mr. Roy Berlinquette, also a Panel and

Commission Member. Mr. Lunau.

MR. LUNAU: Thank you.


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PREVIOUSLY SWORN: SGT CAROL UTTON

EXAMINATION-IN-CHIEF BY MR. LUNAU:

Q. Good afternoon, Sgt. Utton.

We haven't met yet. My name is Ron Lunau. I am

counsel for the Commission and I am going to be

asking you some questions this afternoon. And when

I finish my friends here will have some questions

to ask you.

I would like to start with a brief

review of your background in the military and I am

going to go through what I understand your

background to be. If there is anything that needs

to be added or corrected, please let me know.

I understand you enrolled in the

Canadian Forces in 1987, took basic training in

January 1988, and military police training in the

fall of 1988. Is that correct?

A. Yes.

Q. And then you were posted to

Canadian Forces Base Cold Lake, and then the

Provost Marshal's office in Ottawa where you worked

in the data room?

A. Yes.

Q. Following that, you were

posted to the CFB Kingston military police section.

Then you served with the Royal Canadian Dragoons


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and then CFB Petawawa military police section. Is

that correct?

A. Yes.

Q. Then you transferred to the

military police company here in Ottawa and

subsequently did one tour of duty in Afghanistan

from February to July 2007. Is that correct?

A. Yes.

Q. And you were part of Roto 3?

A. Yes.

Q. I understand your rank is

currently sergeant, but at the time of your

deployment you were a master corporal and you were

promoted to a sergeant while you were in

Afghanistan?

A. Yes.

Q. What position in Afghanistan

were you posted to?

A. It was the security NCM

position.

Q. I have seen reference to 2

I/C detainee operations. Is that another way off

describing that position?

A. No.

Q. Who was your immediate

supervisor?


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A. Sergeant Steward.

Q. Did you hold that position

throughout Roto 3?

A. My primary was security NCM.

Secondary was 2 I/C detainee ops.

Q. I see, are these two

different --

A. Yes.

Q. -- positions? Okay. Can

you explain for us what the responsibilities for

each of these two positions was.

A. Security NCM, I did the

physical security surveys that had to be done for

our mission. They were cyclical. They had to be

done yearly. And I did the identification NCM

responsibilities and general police investigations

into security matters.

Q. Is NCM an acronym for

something?

A. Non-Commissioned member.

Q. In terms of your duties as 2

I/C detainee ops, what did those duties entail?

A. Assisting the I/C, Sergeant

Steward.

Q. Can you explain to us, sir,

or give us some idea of the kind of activities you


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would have carried out and how you would have

interacted with detainees.

A. I would take my, Sergeant

Steward would indicate if we were to receive

detainees or it would come from our chain of

command and we would do the preparatory work,

making sure the paperwork, all the paperwork was

ready, notify the Role 3 medical facilities to have

a Canadian doctor ready and await for the detainee

arrival.

Q. In terms of the amount of

time you would have devoted to your job as security

NCM, your job as 2 I/C detainee ops, how would you

allocate your time?

A. Depended on the day.

Q. Was one more a primary duty

than the other?

A. Detainee ops was the

priority. Everything else, unless it was mission

critical, would be, you would have to prioritize.

Q. In your role as security NCM

or 2 I/C detainee ops, did you have any

investigative duties?

A. For security-related minor MP

investigations.

Q. Can you give us some examples


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of the types of investigations you might have been

involved in?

A. Security infractions.

Security infractions or potentially breaches,

normal in accordance with national defence security

policy investigations.

Q. Anything involving detainees

or treatment of detainees?

A. No, that was not our -- that

was not within -- that's not a security NCM duty in

accordance with the national defence security

policy.

Q. If you know, which MP element

was responsible for conducting criminal

investigations in theatre?

A. The Kandahar airfield

military police detachment, patrol sections did

criminal investigations, and the NIS did criminal

investigations.

Q. Did you have any involvement

in investigations carried out by any of those

bodies?

A. The KAF MPs, there was one

incident I was in I was the senior ranking person

in the detachment at night and we had the

accidental negligent discharge where the soldier


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was killed.

Q. But again, nothing to do with

detainees or treatment of detainees?

A. I knew the NIS was

undertaking an investigation at that time, and that

is all I know from that.

Q. You mentioned I think

Sergeant Steward. He was your immediate

supervisor?

A. Yes.

Q. Going up the chain of

command, who would Sergeant Steward have reported

to?

A. Warrant Le Blanc.

Q. And then from Warrant Le

Blanc, the change of command would go to?

A. Captain Worsfold.

Q. And then from Captain

Worsfold to the Task Force Provost Marshal?

A. Yes.

Q. Where were you physically

located during your tour of duty?

A. In Kandahar airfield, KAF.

Q. In terms of the work you were

doing that involved detainees, who would you take

instructions from?


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A. Can you elaborate what you

mean?

Q. Sure. In the chain of

command the activities that you have described that

you were carrying out with respect to paperwork,

documenting arrivals, and that kind of thing, who

did you take instructions from on a day-to-day

basis?

A. If Sergeant Steward was there

it would be him, and then if not, it would come

from either Warrant Le Blanc or Captain Worsfold or

if they were not there from MP ops, MPHQ.

Q. Are you familiar with the

detainee facility at KAF?

A. Yes.

Q. And I have seen reference to

it being called a transfer facility as opposed to a

holding facility. Are you familiar with that?

A. Yes.

Q. Can you tell us why it was

called a transfer facility as opposed to a holding

facility?

A. I believe that because it

wasn't -- detainees were never -- were intended to

be held there for a period longer than the 96

hours, so it was either -- it was a transfer. They


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were brought in and then they were transferred or

released.

Q. Had the facility been

designed to hold persons for lengthy periods of

time?

A. In my opinion, no.

Q. And then you made reference

to 96 hours. What was the significance of the 96

hours?

A. I have no idea.

Q. Did it have something to do

with the time limit within which detainees were to

be transferred or released?

A. That was initially, yes, they

were supposed to be brought from their point of

capture into the detainee transfer facility and

either transferred, released within a 96-hour

period.

Q. You first arrived at KAF in

February 2007. Did you get involved in detainees

right away? As soon as you arrived were you

involved detainee processing and detainee

transfers?

A. No, because initially upon

KAF you have a three-, four-day intake cycle into

the camp.


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Q. So how long do you think it

was before you got involved with detainee

processing?

A. I don't recall the exact

dates. I believe it was in February, early March.

Q. Can you tell us what the

intake process, how it operated when you got

involved in February?

A. There's certain specific

security details. I don't think I can elaborate on

that.

Q. Let me see if I can ask some

more specific questions without getting into any

sensitive areas. First of all, when you arrived in

February 2007, were detainees being released by

troops in the field?

A. I believe so.

Q. So they would be released

without going through the detainee facility or your

intake process?

A. Yes.

Q. And do you know to whom they

were being transferred?

A. I believe it would be -- it

was either the Afghan National Police or the Afghan

National Army.


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Q. During the time when those

releases were taking place, to your knowledge were

you getting any paperwork or information,

documented information back on these detainees?

A. Yes.

Q. Can you tell us how these

transfers were being documented?

A. On the paperwork as per the

task force standing order, the annexes, the capture

report.

Q. Initially were there some

concerns about the quality of the paperwork that

was being done?

A. I don't think there was

concerns, but we -- not we, the MP ops we

streamlined it. We made it more efficient, that

paperwork.

Q. At some point the field

released stopped, as I understand it, is that

correct?

A. Yes.

Q. Do you know the reasons why

they stopped?

A. No, I do not.

Q. Did you ever hear rumours or

stories about possible mistreatment of detainees


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after they were handed over to the Afghan

authorities? I am talking still in this period of

time when detainees were being released by the

troops in the field without going through your

detainee facility.

A. I just heard a basic soldier

rumour.

Q. What were those rumours?

A. One rumour -- the only rumour

I ever heard was that they were going to turn them

over to one of those, either the Afghan National

Army, the Afghan National Police and an interpreter

said as soon as the Canadians left they would be

killed, so the Canadian soldier intervened and took

back the detainee.

Q. Right.

A. But that was just a rumour.

Nothing was ever -- I never saw any paperwork or

anything official policy on it, on that. That was

just a soldier's rumour.

Q. I understand, so there were

rumours going around. I think when you were

interviewed by the Commission you referred to the

transfers being stopped because of what you called

stories out there and so what I am interested in is

knowing what kind of stories were you referring to.


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A. That would be it.

Q. At some point the field

releases stopped. Do you recall when that was?

A. No, not really. Could have

been April, May, before. I don't recall.

Q. And then was it mandatory

that detainees captured in the field had to be

turned over to the MP section at KAF for

processing?

A. Yes, any detainees that were

captured after that, when it came there was no more

releases, capture and releases in the field, yes,

they all had to come to the detainee transfer

facility.

Q. Again without getting into

any areas that were sensitive, they would arrive at

the detainee facility and would some paperwork be

done on them?

A. Yes.

Q. Were they given medical

checks?

A. They were given medical

checks upon capture by medics in the field and then

once they were brought to KAF they were taken to

the Role 3 medic facility and checked by either

Canadian physician or the senior physician's


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assistant medic.

Q. And you have told us the

paperwork that was done was set out in a SOP or a

standing order?

A. Yes.

Q. Were the detainees told what

might be happening to them in terms of transfer

release?

A. What do you mean by that?

From what point in time?

Q. The detainee arrives at the

detainee facility. Are they told what lies in

store for them? In other words, here is what is

going to happen? Within 96 hours you will be

either released or a decision will be made about

being transferred?

A. No, we never got in specifics

like that.

Q. Did you have any discussions

with detainees -- first of all, when the detainees

arrived and were being sort of in, processed in,

were you involved at that stage?

A. If I was actually in KAF,

yes.

Q. Were they given any

information about the Afghan Human Rights


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Commission?

A. Detainees would be told

through an interpreter that they were currently

being held by the Canadians, Canadian Forces, and

that their families would be notified through the

Red Cross and that the Afghan government would be

told where they are.

Q. Were you personally aware of

the obligations to treat detainees in a humane

fashion?

A. Yes.

Q. And the people you worked

with in the MP company, were they aware of those

obligations?

A. Yes.

Q. What steps were taken to

ensure that detainees were treated well?

A. For one thing when they are

brought into KAF into the detainee transfer

facility, we ensured that they were given food and

water. They were given a Koran, a prayer mat; they

were told the Red Cross would be notified where

they are; and we would give them clothing,

coveralls, flip-flop sandals, toothbrush, shower,

soap. And they would be given ice cold bottles of

water to take into their holding area. And on


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really hot days we would make sure they had cold

beverages. We gave them towels to cool themselves

down.

Q. And did you ever witness what

could be characterized as any mistreatment or

ill-treatment of detainees?

A. Never.

Q. In terms of the decisions as

to the disposition of detainees, do you know who

made the decision in the case of each detainee

whether they would be released or transferred?

A. That was task force

commander.

Q. Can you explain to us what

the process was for obtaining or communicating that

decision down to the detention facility.

A. We would get a call from MP

operations being told whether the detainee would be

released or transferred.

Q. Do you have any sense of how

many were released as opposed to transferred?

A. The number of detainees that

were detained by the Canadian Forces has

consistently been protected under section 38. I

just raise that. If you talk in generalities,

that's fine, but talking specific numbers is not


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permitted.

Q. I was talking in

generalities. I would like to try to get a sense,

were more released than were transferred or the

other way around?

A. During my time there were

several releases, yes.

Q. Is it correct that the

detainees who were transferred to the Afghani

authorities were all transferred -- and I am

talking about the detention facility, transfers out

of the detention facility -- that they were all

transferred to the NDS?

A. I believe so.

Q. And again when a transferee

was released to the NDS was there documentation

that was completed with respect to the transfer or

handover?

A. The NDS if there was a

transfer would sign the change of custody form.

Q. Do you know who would be

notified that the NDS had taken custody of the

prisoner or detainee?

A. I don't understand. What do

you mean?

Q. You hand over the prisoner to


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A. Not that I believe. I didn't

read it in any SOP.

Q. So far as you were aware, you

never saw any order, instruction making the MP

company responsible for any follow-up?

A. Not at my level, no.

Q. Did the MP company have any

responsibility for notifying either the

International Committee of the Red Cross or the

Afghanistan Independent Human Rights Commission

that detainees had been received?

A. Yes, at the beginning that

was the detainee ops responsibility. And then once

the detainee officer came to the Canadian

headquarters he undertook that responsibility.

Q. Do you know or can you recall

about when this detainee officer would have taken

up that position? Maybe just to help you locate it

--

A. Probably was in April or May.

Q. It might have -- was it

around -- do you remember the agreement May 3,

2007?

A. I don't recall. I know we

did it and then we stopped doing it.

Q. The detainee officer, had he


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been there throughout your entire tour or was that

somebody new who came along?

A. I don't recall ever meeting

him. I believe it was Major Mackay. I don't know

if he was replaced during the tour, if there was

another officer. I just know that they weren't

there right when we arrived in February and March

and it took a while.

Q. When you first arrived there,

and I would like to ask to address your mind to the

period of time before May 2007, so we are looking

at about the first four months you were there. As

far as you know, when detainees were transferred

over to the NDS do you have knowledge who if

anybody was doing any follow-up visits or

monitoring of these detainees?

A. No, I do not.

Q. Did that cause you or to your

knowledge your fellow MPs concern?

A. I can't speak for my fellow

MPs, but I never thought about it.

Q. Did you have any belief that

a government agency apart from the military would

be doing any follow-up checks?

A. I never thought about it.

Q. Did you have any knowledge


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whether Foreign Affairs, for example, was checking

into detainees?

A. I had no knowledge. I knew

there was a Corrections Service Canada personnel in

theatre because I saw a lady wearing the uniform,

but I never thought about any of that. I was told

we turn them over to Afghan lawful authority.

Q. Are you aware whether during

your rotation an agreement was made that allowed

follow-up on detainees?

A. I believe that was after the

initial stop of transfers and releases in May and

when it resumed that was the agreement made by the

Canadian government and the Afghan government.

Q. If I could just ask you a

couple of questions about the handing over of

detainees to the NDS. Can you tell us how that

process worked?

A. No, I cannot, for security

reasons.

Q. We have, you recall that you

were interviewed by Mr. Lenton of the Commission?

A. Yes.

Q. The transcript of that

interview has been filed as an exhibit and it has

been redacted by the government so there is no more


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-- anything that is secret or confidential has been

taken out of it. I would like to read you a

response you gave to a question that is at page 57.

MR. ELGAZZAR: Can I ask which

volume here?

MR. LUNAU: It is called Documents

I to S, volume 1 of two.

MR. ELGAZZAR: Exhibit 30, is it?

MR. LUNAU: Page 57. There is

actually three different page numbers depending

where you look. At the top of the page, it is 57.

At the bottom right, it is 58. And it begins -- so

57 at the top centre.

BY MR. LUNAU:

Q. The question you were asked

by Mr. Mills:

"You likely had some contact

in your tour with either ANA

people or NDS people. Did

you ever have any concerns

about the safety of the

detainees that were being

released to any of those

agencies?"

And your answer was:

"Like I said, we'd never


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release to the ANA or the ANP

from the transfer facility,

it was just the NDS. Blank

would make the arrangements.

They would bring the NDS to

the facility. I mean, there

was no guarantee they were

going to accept them. So

that could be, it is like

court thing. I'd present the

evidence and the documents to

the gentlemen. It was

usually the same guy. It was

a long process, I mean a long

time, and if the detainees

were on any medication or

anything I know I made a

point, I'd get the

interpreter to write in

Pashto in regards to what the

prescription was for, when it

had to be taken, and I handed

it right over to the

gentleman in charge of the

NDS and we explained we used

medication for this and he


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someone making arrangements for the NDS to come and

then you would present them with documentation, it

was usually the same NDS person, it took a long

time, you'd tell them about the medications and so

on. Was that how the handover was generally

effected?

A. Yes.

Q. During any of handovers that

you participated in or even heard about from

somebody else, did this NDS representative ever

physically or verbally abuse any of the detainees?

A. No.

Q. Did you ever hear any

detainees being threatened during these handovers?

A. I don't speak Pashtu or Dari,

but no, I never had any indication.

Q. Can you tell us, how did the

detainees seem to behave when they were being

handed over? Did they seem scared or did they ask

not to be transferred or --

A. Never.

Q. -- what was their -- no?

A. Never. They seemed -- some

of them seemed quite delighted. At one time we had

two injured detainees that were to be transferred.

The NDS refused to take one gentlemen because of


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his medical concerned (sic). He was quite

distraught that he didn't get to go with the NDS

and every day he would ask to go with the NDS and

he did his physical therapy walking around so he

didn't limp so the NDS could transfer him.

Q. You referred to one detainee

the NDS refused to take. Were there other

instances they would show up and decline to take a

detainee?

A. There was one other occasion.

The detainee was -- he had suffered severe medical

complications after his IED exploded on him and he

was quite injured by the time the transfer was to

be made, and the NDS were going to refuse because

the paper said that the NDS jail is filthy and the

NDS did not want to be blamed for anything that

might happen to this detainee. And it took a lot

of convincing that he was medically fit to be

transferred. And the NDS did take him at the time,

but under -- they had reservations, that gentlemen.

Q. Sorry, you referred to

something in a paper?

A. That's when the media story

came out about the allegations of what transpired

in the Afghan jails. The NDS gentlemen said, Your

Canadian papers lie. And he was quite indignant


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about what was written in the media.

Q. So because of that he didn't

want to take the --

A. Not because of that. He did

not want to be blamed if anything, if the detainee

would get an infection from the so-called filthy

conditions that the papers wrote about in his jail.

Q. You mentioned some of the

detainees were quite happy -- quite happy might be

overstating it. I don't suppose anybody would be

quite happy to go off to prison, but they didn't

protest at being turned over --

A. Never.

Q. -- to the NDS. Do you know

why?

A. I believe because they could

be bought out of the Afghan jails.

Q. They saw it as a way of

getting a quick release?

A. I believe that is a way of

life in the Afghan system. It is so corrupt that

if you had enough money you could buy people out of

jail.

Q. You had mentioned before

around April 2007 transfers or releases out of

detention facility were suspended for a period of


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time?

A. No.

Q. No? Do you recall the

releases and transfers being suspended?

A. Yes.

Q. What period of time?

A. That was in May.

Q. I think I said around April,

but. Do you know why they were suspended?

A. We were told because the B.C.

Civil Liberties Association and Amnesty

International put in a court order request to stop

all transfers and releases.

Q. And who told you that?

A. It came down, I believe,

through MPHQ. Word of mouth.

Q. When you say it was word of

mouth, does that mean there was no, that wasn't the

official communication?

A. Okay, it was verbally

conveyed to us.

Q. MPHQ, is that task force

headquarters? What headquarters?

A. MP headquarters, task force

military police headquarters.

Q. Task force headquarters,


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okay. And this was in May 2007?

A. Yes.

Q. Do you recall how long that

suspension lasted?

A. It was weeks.

Q. And do you know where the

order came from to suspend those transfers?

A. I believe it came from the

task force commander and I don't know where he got

his directions from.

Q. At the time the transfer of

detainees was suspended did you have any detainees

in custody?

A. Yes.

Q. Do you recall how many?

A. Again, the number of

detainees in custody is, has been generally

protected. I think we can talk in generalities.

Q. So you had one or more

detainees in custody. Were they affected by the

suspension?

A. Yes.

Q. Without stating the exact

length of time, did these detainees end up being

held in your facility for a number of days?

A. Yes.


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Q. Was the detainee facility

designed to hold a person for as long as this

detainee was held?

A. Not at that time, no.

Q. What were the conditions like

for this detainee?

A. It was extremely hot.

Q. Did anything happen during

that time that gave you cause for concern?

A. Yes, the mental well-being

for the detainee.

Q. What did you observe that

gave you reason to be concerned about his mental

well-being?

A. At first he had some medical

concerns that were not diagnosed at the beginning.

Then through numerous trips to the medical facility

the doctors were able to finally diagnose and give

him treatment. The heat. And the fact that he

didn't quite understand what -- why he was being

held for such long period, and he was concerned for

his family.

Q. Would you say he was severely

distressed by the heat?

A. I mean, I was severely

distressed by the heat. It was hot.


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Q. What you said earlier is that

it was about 140 degrees and it was miserable for

him. Is that right?

A. There was, yes, radiant heat

in the facility, but we took steps to rectify it by

cutting air holes, giving him cold bottles of

water, cold showers, everything that we could think

of.

Q. A swamp cooler?

A. That eventually came. We put

in a request for that, but we took steps to improve

the situation and rectified the situation

afterwards.

Q. And he was concerned about

who was going to be feeding his family?

A. That's right.

Q. Did he exhibit other

behaviour like screaming and yelling?

A. Yes.

Q. Did he try to injure himself

with a plastic knife?

A. I don't know if he tried to

injure himself but he had a plastic knife in his

hand. We were concerned and myself and another

guard entered into his holding area to take the

knife and we did.


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MR. LUNAU: Page 36 of Sgt.

Utton's interview transcript.

BY MR. LUNAU:

Q. And why couldn't this fellow

be released?

A. Because the order came that

there would be no transfers or release because of

the ongoing court action in Canada. And I believe

the task force commander or somebody related at

DFAIT had rendered that decision to the task force

commander.

Q. Did you communicate up the

chain of command your concerns about this

individual's situation?

A. Every day.

Q. And to whom did you relay

those concerns?

A. It would be Warrant Le Blanc

or Captain Worsfold.

Q. What was the response if any

that you got back?

A. I know Captain Worsfold

brought that up to her immediate chain and she

would tell me she had sent e-mails and she would

show me the e-mails she had with our concerns.

Q. And did those e-mails do


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anything to address --

A. We were told there was no

transfers and there was no releases.

Q. When the suspensions were

lifted eventually what happened to this fellow?

A. He was released.

Q. Was he, because of kind of

behaviour and distress he was showing, was he

videotaped?

A. We had a video camera in the

holding facility and tapes put in every 12 hours,

or if they ran out, when there was detainees in the

facility. But it was very hard to keep your

cameras clean because of the sand and the dust

storms so the quality of the tape, I can't --

whatever. They were videotaped, yes.

Q. So he was videotaped?

A. Oh, yes.

Q. Do you know what happened to

that tape?

A. I believe that tape, I put

that into evidence for safekeeping.

Q. You mean in a lock-up, an

evidence lock-up?

A. I put it into military police

evidence safekeeping, our storage facility for all


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evidence for the military police company in

Kandahar.

Q. Do you know if it was still

there when you left?

A. I put it into evidence in

safekeeping. I turned the custody over to the

evidence custodian. So I don't know. When I put

it in the box it is in safekeeping.

Q. You have mentioned you became

aware of the Amnesty International court action.

A. Yes.

Q. And you mentioned this NDS

fellow had told you about some stories in

newspapers about the conditions in prisons in

Afghanistan. Did you, were you personally aware of

newspaper stories about detainee or potential

mistreatment of detainees that came out April, May

2007 time frame?

A. I recall there was such

articles but I don't remember if I read them all.

I was aware of it.

Q. As far as you can recall, and

I will refer you to one of articles just in case it

refreshes your memory. You see there is a pile of

books there beside you. If you could take volume 3

and go to tabs 5 and 6. Do you have that in front


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of you?

A. Yes. I did not see them. I

don't read the Globe & Mail at that time.

Q. That was what I was going to

ask you. You didn't at that time see these

newspaper stories?

A. I don't read the Globe & Mail

at that time.

Q. Had you read any reports on

the treatment of prisoners or prisons in

Afghanistan that had been published by the

Department of Foreign Affairs?

A. No, but I did read Esprit de

Corps magazine, Scott Taylor's article on

conditions of the Afghan jails.

Q. I haven't seen that article.

Do you recall what Mr. Taylor said?

A. I recall he said yeah, the

conditions were harsh, but the guards live in the

same condition.

Q. Did you have any information,

whether from newspaper articles or having read

reports by Foreign Affairs or the U.S. State

Department or other sources --

A. No.

Q. -- that gave you cause for


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concern about --

A. Never.

Q. -- what would happen to

detainee?

A. Never saw any of those

articles you're referring to and we didn't get a

lot of media other than what we could get on our

DWAN, our open source and that would be the Star or

the Sun. Or we had the CBC channel. So that was

it for current media event reporting.

Q. What about -- have you heard

the name Richard Colvin?

A. Yes.

Q. Were you aware of any e-mails

or other communications he had originated?

A. I only became aware of

Richard Colvin's name on the media reporting that

occurred in December of 2009. I have never heard

of him or seen anything from him that I can recall

before that.

Q. And no one ever spoke to you

about any information he had provided them or --

A. Not --

Q. -- any communications from

him?

A. No.


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Q. Did you eventually become

aware of the agreement that had been signed in May

2007 with respect to handling of detainees and

monitoring what happened to them after transfer?

A. I believe we were told a new

agreement was reached between the Canadian

government and the Afghan government and that the

transfers and releases would occur and there would

be some sort of ongoing monitoring, but I don't

know who was to do it.

Q. Was that a formal briefing

that you were given?

A. No.

Q. Did you ever see a copy of

the May 3rd agreement?

A. No. Until I met with the

Justice lawyers and I was shown this.

Q. After this agreement had been

signed were there any changes made at your level

with respect to how the process of transferring

works?

A. Yes. A member of

Parliamentary Affairs -- that is what we were told,

Parliamentary Affairs, would come to the detainee

transfer facility when detainees were transferred

to the NDS and then on the occasion where that one


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gentlemen, one detainee was held for that period of

time when he was released.

Q. You mentioned the

representative from Parliamentary Affairs and I

have seen elsewhere references to a political

advisor.

A. Yeah, sorry. It wasn't

Parliamentary Affairs, it was POLAD, political

advisor. Yeah, sorry. Retract that Parliamentary

Affairs.

Q. So the political advisor,

after May 2007 this political advisor now shows up

on the scene?

A. Yes, or somebody that was a

political advisor for the transfers, yes.

Q. And did you know who this

political advisor was?

A. No, I never -- I don't recall

his name, if it was given, no.

Q. Did you know who this person

represented and why they were there?

A. I know he represented

somebody in the government and that they were there

to explain the new agreement between the Canadian

government and the Afghan government.

Q. After May 3, 2007, when


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detainees are transferred and this political

advisor was present, what role did he play in the

handover? What would he actually do?

A. When the detainees were being

brought out from the holding area into the area

where the NDS vehicles were, an interpreter would

explain in Pashto or Dari what was going on and the

political advisor had a piece of paper with the

agreement in English and the other side in Pashto.

And they were given a copy.

Q. Did the political advisor, so

far as you're aware, did he or she ever mention

anybody anything to them about torture or that they

wouldn't be tortured?

A. I can't recall. I was -- you

know, I would be busy with other tasks and you

would hear the interpreter going back and forth,

and stuff. But the specifics of a conversation I

cannot recall.

Q. To see if I can refresh your

memory, your transcript at page 81 of your

interview. Do you have that there, sergeant?

A. Yes.

Q. Beginning at line 8 and you

say:

"Yes, it was when all the


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policy came in and whatever

the Canadian government

worked out this is what we

were going to follow. So the

political advisor was there

explaining, you know, to this

detainee, you are going to be

turned over to the Afghan

authorities. You are not to

be tortured. You are not to

be this or that. I don't

know the whole thing, but

these guys are all illiterate

anyways so they are handing

them some document written in

Pashto written by the

Canadian government."

That is why I asked if there was

some, when the political advisor was involved in

the transfer of detainees he or she would have made

reference or given some assurance that they weren't

going to be tortured?

A. They could have. I cannot

specifically recall.

Q. After May 2007 did you learn

of transfers being suspended again? In other words


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was there another suspension after May 2007?

A. I don't believe I can answer

that for security reasons.

Q. At page 88 of your

transcript, beginning at line --

A. Yeah, that --

Q. Five?

A. -- I understand I said that

at the time, but I don't know where I got that

information from and it could have been from

classified means that -- but the interviewers gave

me the impression that everything I said they had

the appropriate security clearances and it would

not be revealed.

Q. I think maybe you and I may

have to have an understanding that if there is an

issue about the security of information your

counsel will object and if your counsel doesn't

object, then I would appreciate it if you would

answer the question.

MS. RICHARDS: In all fairness to

the witness, she is aware and likely more aware

than I of what information she has that is

classified. It is appropriate and indeed she is

required as a public servant and a government

official to raise the issue when she believes her


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information would violate her obligation to

maintain the confidentiality of it. So it is

entirely appropriate that the witness raise those

concerns when they arise.

MR. LUNAU: I think there have

been a couple of instances now where we have had an

objection that something was classified that was

obviously public and contained in the transcript.

I would like to try and come to some understanding

so we are not met with an objection, just

continually met with objections.

MS. RICHARDS: In all fairness, I

don't think she is objecting. I think she is

raising the issue and what Mr. Lunau is doing is

appropriate and is very helpful for the witness to

take her through, so she can see where it has been

vetted and that this information can be publicly

released and she is being cooperative in providing

the information. She is not -- she is advising you

when she thinks there is security concern.

THE CHAIRPERSON: What would have

changed from her interview to now?

MS. RICHARDS: This information

has gone through a section 38 process, where the

Attorney General of Canada has decided what

information can be publicly released.


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THE CHAIRPERSON: But it was

disclosed at the time of the interview, and

subsequently not redacted. So it has never been

treated.

MS. RICHARDS: Sorry, to be clear,

I am not saying the information is protected. She

has a concern. She is raising a concern. And I

think Mr. Lunau is properly taking her through to

show her that that concern has been addressed and

she can give him that information.

But to suggest that a witness

cannot raise before this Commission, a witness who

works in this environment and has an obligation to

maintain the security of information, cannot raise

before the Commission that she is concerned about

disclosing that information I think is not proper.

THE CHAIRPERSON: Any comments

from Mr. Champ, sorry, from your colleague? Mans

first of all I wonder what passage we were

referring to on page 88 and then I will let Mr.

Champ comment on the discussion between Ms.

Richards and --

THE CHAIRPERSON: We are bringing

him in from the back benches.

MR. CHAMP: I agree with Ms.

Richards' interpretation of the act that it is


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proper for the individual themselves to raise the

objection. However, I would suggest or note that

they then have their counsel to perhaps assist them

on whether something is in fact now in the public

domain or not.

THE CHAIRPERSON: Mr. Wallace?

MR. WALLACE: I didn't actually

get the sense that there is any disagreement

amongst the parties.

THE CHAIRPERSON: Mr. Lunau.

BY MR. LUNAU:

Q. You refer if your transcript

at page 88, and in particular the lines 16 through

21, there is a reference to -- there is a large

portion that is blacked out and then you go on to

say:

"Right there you can see they

have got detainees in the

process and they have been in

there before Christmas

because DFAIT has ordered

they cannot be transferred to

the NDS."

Does that relate to a second

suspension or is that still the suspension in May

2007?


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A. That could be a second

suspension.

Q. Did you learn of this

particular suspension by reading about it on SAMPIS

or an internal military web site?

A. No, I learned from (sic) it

from other classified means.

Q. So this particular suspension

you are talking about, did that take place after

you had left?

A. Yes.

Q. After May 3, 2007 did you

have any knowledge about what was going on insofar

as conducting inspections of Afghan prisons or

facilities?

A. No.

Q. Was the MP company given any

monitoring or inspection responsibilities, after

May 3 agreement?

A. Not that I was aware of at my

level.

Q. Did you ever see any of the

reports that related to inspections or site visits

that were done after May 3, 2007?

A. No.

Q. Can you tell us what SAMPIS


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is?

A. Security and military police

information system.

Q. While you were in

Afghanistan, did you have access to SAMPIS?

A. Yes.

Q. Did you have access to all

the information on SAMPIS or only to selected parts

of it?

A. Some reports that perhaps the

NIS work on were sensitized or private information,

so no, you could not see access to it.

Q. It is also my understanding

that information classified -- is it above

protected B -- can't be displayed on SAMPIS?

A. Yes. SAMPIS is encrypted for

protected B information only.

Q. Any of your reviews of

SAMPIS, did you come across any information or any

reports raising concerns about abuse of detainees?

A. No.

Q. If I could ask you to turn to

volume 2 of the books in front of you there, tab 2.

If I could ask you to turn to page 13 of 37 in the

lower right-hand corner, and you will see there.

There is a list of various annexes, some of which


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are blacked out in whole or in part. Annex is a

detainee process flow chart. Annex B, tasks and

responsibilities of JTF Afghanistan staff. Annex

C, solders' actions to be taken on the capture of

detainees. Are these forms that you are familiar

with?

A. Yes.

Q. The form at annex C, have you

seen these before?

A. Yes.

Q. What were these forms for?

A. Sorry?

Q. Page 18 of 37 in the lower

right-hand corner. It is entitled "Soldiers'

actions to be taken on the capture of detainees."

A. Yes.

Q. Who would have filled out

this form?

A. The unit that captured the

detainee.

Q. And then would this form

completed be given to the detainee facility?

A. Yes, all paperwork from the

capturing unit would come forward and it would go

from chain of custody if the capturing unit

couldn't bring them into KAF and it would go to


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whoever brought them into KAF and then come to the

detainee transfer facility.

Q. And then there is an

instruction on the next page, page 19 of 37,

standard of treatment for detainees.

A. Yes.

Q. Is this a document that you

would have seen before?

A. Yes.

Q. The next page, there is a

detainee tag.

A. Yes.

Q. Can you tell me what this

document is?

A. That would be the -- it would

be secured on them. It was similar to the old

prisoner of war tag in the Cold War, when they used

those terms it would be a waterproof paper that the

information would be recorded and it would still be

there and it would be secured on their person.

Q. Page 22 of 37 there is seized

property record for a detained person.

A. Yes.

Q. Is this something that would

be filled out at a detainee facility --

A. Yes.


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Q. -- so it would be filled out

at the detainee facility. And you would do an

inventory of whatever property was taken?

A. Everything.

Q. Then the next at page 24 of

37 there is a witness statement?

A. Yes.

Q. Who would fill this out?

A. The person that either

witnessed some of the activity at the time that

they were detained outside and they would put that,

all that, fill in what they saw. If they saw them

planting an IED or picking up a cell phone when a

com point -- something like that. Just a witness

statement that they saw that brought them to the

attention that this person would be detained.

Q. So it is basically like a

little narrative as to why the person was captured

and what they were doing --

A. Yes.

Q. -- at the time they were

captured? And the next document at 25 of 37 there

is a tactical questionnaire report. Again, is this

something completed at the detainee facility?

A. No, that would be done by the

qualified tactical questioner.


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Q. So this is after the detainee

arrives at the facility?

A. No, it's done at either point

of capture or if it is safe to do so. If it was

done that would -- it was a tactical questioning to

see if they should be questioned further.

Q. Then at page 27 of 37, a

custody record for a detained person.

A. Yes.

Q. Is this something, again, was

it filled out at the detainee facility?

A. No, again, that would be done

by the unit that did the capture and then

subsequently you can see that it says custody

transfers within Canadian Forces elements. So if

it was -- the detainee was brought back to say

other Canadian MPs they would sign. It was like a

custody record that they accepted the custody and

then when they eventually bring them to the

detainee transfer facility I would sign it saying

yes, we accept custody.

Q. Then at page 28, a record of

release.

A. Yes.

Q. This would be filled out when

a person was released outright?


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A. Yes.

Q. If you would just jump over

to the page 33, there is a record of transfer. So

again this would be a form filled out?

A. That would be the NDS, yes.

Q. When a record of transfer was

filled out, to whom would this form be forwarded

to?

A. It would go to MPHQ and

eventually the main detainee file that were held at

the military police headquarters. And I think, I

believe, I can't say for sure, the detainee officer

would review it too, but it was held at MP

headquarters.

Q. If I understand correctly,

basically for each detainee, at least after the

period of this particular standing order, there

should be basically be a bundle of documentation?

A. Yes, there was.

Q. Now I would like to just ask

you some questions about your training before you

deployed. Before you went to Afghanistan, did you

receive any specialized training about detainees,

detainee handling?

A. Not specialized. I went on a

tactical questioner course.


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Q. Did you receive any training

in the Geneva Convention?

A. That's standard training for

every, from primary leadership qualification you

get instruction on that. And yes, we did review

Geneva Convention details on my tactical

questioning course.

Q. Did you attend any of the

training courses that Major Hudson put on?

A. Depends on the location. I

left training early in Gagetown to go on my

tactical questioner course, but I was in Petawawa

for briefings.

Q. Were you there in November

2007 when he put on training on detainee and

prisoners of war issues?

A. Do you have the date?

Q. Not an exact date, I just

have November, 2006.

A. Yes, I was there.

Q. Did you attend -- I didn't

have a date for this, but a training course major

Hudson put on in Petawawa involving treatment of

detainees from, including psychological issues,

media factors?

A. I recall there was training


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in Petawawa and it focussed on the mistakes made at

Abu Ghraib in Iraq and about guards that weren't --

that were employed as military place that shouldn't

have been, and I don't recall all the specifics of

the training but that was the general points of

this wouldn't happen on our tour. We will treat

the detainees with respect.

Q. During any of the training

that you can recall, was there any consideration

about post-transfer treatment of detainees?

A. Not that I can recall.

Q. During your tour in

Afghanistan, did you ever obtain any information or

knowledge that made you believe a police

investigation should be undertaken into the

transfer of detainees?

A. No.

MR. LUNAU: I have no other

questions, thank you.

THE CHAIRPERSON: I think it would

be fair to take 10 minutes. Thank you.

--- Recess Taken at 3:22 p.m.

--- Upon resuming at 3:35 p.m.

THE CHAIRPERSON: Mr. Champ?

CROSS-EXAMINATION BY MR. CHAMP:

Q. I just have some questions


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for you about your deployment in Afghanistan from,

I believe --

A. I’m sorry, but there is a

camera at the door. When the gentleman walked in,

there was a guy with a camera.

THE CHAIRPERSON: Could we just

take a minute and see what gentleman is out there.

--- Short pause

THE CHAIRPERSON: Madam Registrar,

just for the purposes of the record, who is out

there?

THE REGISTRAR: It’s one of the

media. They are waiting to interview, I believe,

Mr. Lunau, and they are sitting on the side on the

chairs.

MS RICHARDS: Mr. Lunau, I take it

when you meet with them, you can just confirm that

they didn’t take any footage of the hearing.

MR. LUNAU: I can do that.

THE CHAIRPERSON: Could we do that

now just to make sure nothing gets transposed out

of here, if that is the case?

We will break for a few minutes to

get this taken care of.

--- Short recess at 3:38 p.m.

--- Upon Resuming at 3:45 p.m.


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THE CHAIRPERSON: For purposes of

the record, I take it everybody is satisfied

relative to -- made sure there was no breach,

there?

MS RICHARDS: Thank you, yes.

THE CHAIRPERSON: We will leave

that screen in place for whatever time we require

for today and tomorrow so that when the door opens

and closes we don't have to worry about that.

Okay, I am sorry, Mr. Champ, for

the break, but safety is better than none.

MR. CHAMP: Thank you.

BY MR. CHAMP:

Q. Ms Utton, I have a few

questions about you, about your tour in Afghanistan

in 2007. I understand you were there during Roto 3

from, was it February 2007 to July 2007?

A. Yes.

Q. you were sergeant in military

police, the KAF Company, is that right?

A. I was master corporal and

promoted to sergeant, in theatre, in July. I was

in the KAF Military Police Platoon.

Q. Sorry, platoon, right. And

you I understand were involved in the actual

handover of detainees from Canadian Forces' custody


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to the custody of NDS?

A. I did the paperwork and the

disclosure packages for the NDS. Then I would

leave and go outside while the actual -- all the

other briefings were done.

Q. So you would just do the

paperwork for the handover, the package that would

actually be given to the NDS?

A. Yes.

Q. Then it would be another

Military Police officer who would take the detainee

to the actual handover point?

A. The handover point, it was a

holding area where vehicles could come in. Then we

had, like, a little trailer where the meeting with

the NDS and other personnel would take place.

Q. It would occur in a trailer?

A. Yes.

Q. The detainee would be brought

in one door of the trailer, and the NDS would be

already waiting there, something like that?

A. No. The detainee would be in

the holding area until the actual -- they moved

into the NDS vehicles.

Q. So that the NDS vehicle would

come into the compound. They would come into the


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trailer to sort of speak to the Canadian Forces or

Military Police officials. Then, when it came time

to actually do handover, the NDS would come out,

the detainee would be brought out of the compound,

or be brought out of the holding area -- what would

you call it?

A. Yes, the transfer facility,

the holding area, yes.

Q. The holding area, and they

would go directly into the vehicle?

A. Yes.

Q. I am wondering, what kind of

notice would the detainee get that they are going

to be handed over? Do you know?

A. They would be told -- it

depended on the timings we got, but there is a

procedure. They would be taken for a medical, they

would be given a shower, then put back into their

clothing, if it was suitable, and then they would

sit. So they knew something was going to happen.

I can't recall if they were

specifically told they were going to be transferred

to the NDS at the time, but it was usually during

this time period they would be told that the NDS

was there.

Q. Who would be the officials in


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the Canadian Forces that actually do the handover?

I will start, like, maybe from post-May 2007, once

the new agreement came in. Just ranks, maybe?

A. Can I -- I don't know if I

can answer that. It is -- that was --

Q. It is my understanding there

would be a department of foreign affairs official

there, usually?

A. The POLAD was there, after

me.

Q. Right.

A. But before that, no.

Q. So, after May, the POLAD

would be there, and it is my understanding they

would actually -- I think you described this

earlier: they would give a copy of the detainee

arrangement in Pashto or Dari, to the detainee?

A. Yes, it would be the copy of

the agreement.

Q. The POLAD or the department

of foreign affairs political adviser at KAF would

be there at the time of transfer, and then Canadian

Forces officials?

A. Yes.

Q. Among those Canadian Forces

officials at the handoff, would it be a Military


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Police person?

A. I don't know if I can answer

that.

Q. Would it be more than one

Canadian Forces person?

A. Yes.

Q. Would you be present at that

handoff, sometimes?

A. I was there to get the

paperwork signed by the NDS official and then I

would leave, because of cultural -- men-women.

Q. Right. I guess, then, you

wouldn't know what kind of discussion would go on

between, say, the NDS and the Canadian Forces

officials at the time of handover?

A. No, I left to go --

Q. Right. I gather then nor

would you hear what the detainee might be saying or

not saying?

A. The detainees were in their

holding facility until the NDS were ready to accept

the transfer and move him into the vehicles.

Q. They would just be brought

out and put right back on the vehicle?

A. Yes. They would have

blindfolds on.


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Q. They would have blindfolds

on?

A. Yes, for the security of the

camp.

Q. All right. Did you actually

witness that process very many times?

A. Yes.

Q. You actually witnessed the

detainee being brought out of the holding --

A. Yes.

Q. -- facility and put onto the

truck?

A. Yes.

Q. Did you ever see a detainee

resist?

A. Never.

Q. Never. When you were on

duty, would you have been present to witness all of

the handovers?

A. No. I travelled. I had a

leave, a home-leave travel, where I came back to

Canada for three weeks.

Q. Right. But when you were in

theatre and at KAF, would you have seen all of the

handovers?

A. Pretty much, if I was there.


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Q. Mr. Lunau, for the

Commission, he asked you some questions about what

sort of training or understanding you had before

you got to theatre about detainee handling. I

think you indicated that you did get some training

in Petawawa about detainee handling, is that right?

A. We had some lectures, yes.

Q. It was emphasized to you and

the other Military Police officers that humane

treatment of detainees was an operational

objective?

A. We would follow the Geneva

Convention.

Q. Right. Maybe I was inferring

some thing in what you are saying. When you were

referring to the Abu Ghraib sort of scandal, it was

my understanding that you were suggesting -- and

disagree with me if you want -- that events like

that can really undermine the overall mission.

That is why it was emphasized to Military Police

officers that you have to ensure that detainees are

treated well?

A. No, I think it was an

educational that Military Police personnel were in

charge of Abu Ghraib and this is what happened and

that we had responsibilities to make sure that it


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did not happen on our mission and that we would all

have the tool sets to know that detainees would be

respected in accordance with the Geneva Convention.

Q. What was your understanding

about post-transfer obligations of the Canadian

Forces?

A. I didn't have any

understanding. I was told that we would transfer

them over to the Afghan lawful authority; it would

go through their legal system.

Q. But you understood at some

point in theatre that there were concerns raised by

some in Canada about what was happening to

detainees, post-transfer?

A. There were media reports that

were out, but it was just what the media reported.

Q. Yes, you were aware that

concerns were being raised about what might be

happening to detainees, post-transfer?

A. Yes.

Q. That was a topic of some

discussion in theatre, I gather?

A. It might have been a little

bit but it wasn't like a, you know -- we might have

discussed it, "Hey, look at what the paper wrote."

That was about it.


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Q. Once it was in the paper and

there was this sort of general discussion that you

are talking about, it was never raised or discussed

with anyone about actual obligations on the

Canadian Forces for post-transfer treatment of

detainees?

A. That wasn't at my level, no.

Q. It was never discussed in the

context for you?

A. No.

Q. You spoke about the presence

of the political adviser at the time of transfer.

In KAF, I note there were probably long shifts, I

guess? You would be doing, like -- was it 12-hour

shifts?

A. No, I was on call 24/7.

Q. Twenty-four/seven. What kind

of exposure or interactions would you ever have

with officials of the department of foreign

affairs?

A. None. I didn't know they

were in the camp. If you know anything about

military culture, you stay with your own,

especially Military Police. We are a unique social

group.

Q. You knew they were there at


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the time of transfers, though?

A. Yes, once that policy

started.

Q. Right. Before then, you had

never even seen them?

A. I never even thought about

it.

Q. Then, once the new agreement

came into place and the political advisers started

playing some role, you saw them for that purpose

but that was it?

A. No. When the detainees that

were held beyond the 96 hours, during the lull in

transfers-release, the POLAD actually came up to

the entry control point to watch that detainee

leave KAF.

Q. Do you remember the name of

that POLAD?

A. No, I do not.

Q. It was a male?

A. It was a male.

Q. Was there ever more than one

that you saw?

A. I don't remember. I didn't

pay attention to it.

Q. You spoke earlier about a


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political adviser. Are you distinguishing, there?

A. Sorry, I said parliamentary

affairs, but I think it was a political adviser;

that is the term I meant.

Q. The department of foreign

affairs official?

A. If he was DFAIT; I didn't

know. I knew he was a political adviser; he worked

for somebody in high government, in here, level.

Q. That is all and that was it,

okay. You would not have been involved at all in

tactical questions?

A. No. I went on the course to

understand what it was, the procedures, but I never

did any tactical questioning.

Q. You were responsible for

putting together the packages of materials to go to

the NDS?

A. Yes. We had a disclosure

package that would go to the NDS.

Q. You would do the paperwork.

And would you be responsible for receiving packages

of information back from the NDS on the detainees?

A. No. Never.

Q. Who was responsible for that?

A. I think the detainee officer.


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Q. The detainee officer was a

Major McKay at that time?

A. I believe that is the name I

recall from reading some documents that the justice

department lawyers gave me.

Q. What was your understanding

would happen to detainees, post-transfer?

A. That they would go through

the Afghan court system.

Q. On the basis of what?

A. The Afghan law.

Q. No, but in terms of what

evidence?

A. The evidence that was given

to them in the disclosure package, from the witness

statements to -- I believe they are given witness

statements and a capture report. I can't recall

everything given in disclosure, but they were given

enough of a disclosure package then, yes, to know

why that they were detained by the Canadian Forces.

Q. You have the transcripts

there of your interview with the MPCC investigators

on January 22, 2008?

A. Yes.

Q. I would like to turn you to

page 32; we have been going by the numbers on the


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top. At line 12, as I understand it here, you were

describing the paperwork package that you had put

together for the NDS, is that accurate?

A. Yes.

Q. You say here:

"So I would do the paperwork,

I would do the disclosure

packages to give to the NDS,

with all of the info. That

would be sanitized. We would

take out witnesses' names and

stuff. They would just get,

like, basic information why

they were captured, what

information they had and then

they would get photos and

their medical records and

stuff in sealed envelopes."

A. Yes.

Q. The stuff in sealed

envelopes, that was their personal possessions?

A. I think -- I can't recall.

They would get -- we would -- they would get their

clothing back. We would give them their clothing

if they could still wear it. Sometimes they came

in and their clothing was destroyed, so we would


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give them coveralls. But, yes, they would get

their -- the NDS would take possession of their

belongings, they would sign the inventory and agree

that it was all there, especially with the money,

if they had any.

Then I think their medical records

were put in sealed envelopes because it would be to

safeguard medical information.

Q. To protect their personal

privacy?

A. Yes.

Q. You say here that some of the

information would be sanitized. What would be

sanitized?

A. We would take out the names

of any military members from the witness statements

to protect their names. We would sanitize, so --

Q. You would black-out the names

of the Canadian Forces members?

A. Yes.

Q. Why is that?

A. I don't know. I was told to

do that.

Q. You are a Military Police

officer. How long were you a Military Police

officer?


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A. I am a Military Police NCM.

Q. When were you sworn in as a

Military Police officer?

A. I was given my credentials

in, I think, March of 1989.

Q. For a very long time.

A. Yes.

Q. I am wondering, as a police

officer, when you look at this information that is

provided to the NDS, what do you think they are

relying on to prosecute?

A. There is other information I

wasn't privy to. There is other information given

to them by other elements of the Canadian Forces.

This was just the paperwork that we had, that we

had custody of.

Q. There was multiple packages

going to them?

A. There could have been. I

didn't see everything.

Q. Were you speculating there

was other packages?

A. No, I know there was other

info.

Q. You knew there were other

packages going?


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A. I don't know about

"packages", but there was other information that

they were getting that I did not get that I hold in

the detainee records.

Q. You would agree with me then,

as a police officer, the information that you were

providing to the NDS on its own could never support

a prosecution?

A. I don't know. This was

stuff, it probably had gone through our legal

adviser in KAF, and I received a direction down

about what information would be sanitized and given

to the NDS.

Q. But I am asking you in terms

of as a professional, as a police officer, this

kind of information, where it is secondhand hearsay

and you don't even know the person who said it,

that that is not enough to prosecute someone?

A. I don't know if the Afghan

laws are -- they have different court systems than

we have, so I can only ascertain, what can we do in

Canada.

Q. Did you ever turn your mind

to that?

A. I didn't think about that.

No, I was surviving day by day out there.


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Q. If that is the only

information that was provided to the NDS, you never

turned your mind to how else the NDS might be

trying to obtain information about what the

detainee may or may not have done?

A. I don't know what all

information the NDS was given so, what I gave them,

I did what I was told to do and no, I never thought

about anything afterwards. I just focused on my

tasks, that day.

Q. Had you ever heard about the

NDS before you went into theatre?

A. No.

Q. Have you learned a bit about

them since the time you have been in theatre?

A. Since the time in theatre to

today?

Q. Yes.

A. There has been a lot of stuff

in the paper. I just know that they were the

equivalent of the FBI, in Afghanistan.

Q. Right, the secret police.

A. The FBI. We were told FBI,

or were -- yes, like the FBI, and they were just

their national police force, like -- yes. Not --

well, secret police, but equivalent to the FBI is


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what we were always told.

Q. You learned that after the

new agreement came into place in May 2007 that

there were visits to Afghan prisons by Canadian

officials?

A. I wasn't aware there were

visits by Canadian officials; I was aware there was

agreement that they would be able to. That was in

the agreement, and that they would account for all

detainees turned over after that point.

Q. But during your time in

theatre you never heard anything about what was

happening with those visits?

A. I didn't even know if they

were taking place during the time we heard they

were going to, but I don't know -- no, we never

heard any specifics that who went or what the

conditions were, no.

Q. You never heard about whether

they were ongoing at all?

A. I --

Q. Not even rumours?

A. I think there was some

discussion about who would do it. I can't recall,

but I think it was the detainee officer or they

were going to Corrections Services to come in, but


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not anything specific that it was occurring. Like,

we heard stuff, but I mean, I am lower on the -- I

am not privy to it. My supervisors or superiors

knew, if they didn't tell me.

Q. I was kind of curious if

there was any kind of buzz in camp.

A. It wouldn't be in camp. The

detainee transfer facility was -- we kept that --

that was classified, how it operated and anything

-- and it was within the Military Police and those

who knew it, at KAF headquarters.

Q. If the department of foreign

affairs officials or the Canadian correctional

service officials were hearing that detainees were

being subjected to electric shocks and beaten with

electric cables at the NDS facility, you would not

have heard about that?

A. I wouldn't, no. I don't know

if there were talks -- but if anybody was informed

at headquarters, if it was, they kept it -- that

would have been sensitive information and they

would probably keep it at that level, to who would

need to know. But it certainly never filtered down

to the rank and file.

Q. You don't think that that

information -- if you had had that information, it


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wouldn't have made any impact on how you performed

your job?

A. I would think if that

information came that the task force commander

would have looked into it and ascertained whether

we would stop until it was rectified or seek

guidance from his chain of command, in Canada.

Q. I am trying to think, who was

the task force provost marshal while you were in

theatre, again?

A. Major Hudson.

Q. Major Hudson. Did you ever

have much contact with Major Hudson?

A. Not a lot but, yes, we would

see him and we would see him at the meeting

facilities and when you saw him at headquarters or

if he came to visit the KAF MP platoon.

Q. Because he was about two or

three levels above you in the chain of command?

A. Yes, probably.

Q. Steward, Worsfold.

A. Steward, or Leblanc, Captain

Worsfold. I mean, I had dealings with him, but

they would be through the official chain.

Q. Right. Did you know what

role he played in the detainee transfer decisions?


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A. I don't think he played a

role in decisions. That came from the task force

commander and he conveyed it down through his

chain.

Q. Right. You may not know this

but whether the task force provost marshal -- the

duty of the task force provost marshal was to

provide advice to the commander on transfer

decisions?

A. I don't know that.

Q. Yes. For example, Mr. Lunau

had taken you to the theatre standing orders.

A. Yes.

Q. You wouldn't have had

occasion to really have exposure to that, that full

document, while you were in theatre, I gather?

A. I read them, yes.

Q. In your direct testimony, you

had indicated that the Red Cross and the Afghan

Human Rights Commission were informed upon the

capture of a detainee, is that correct?

A. No. When they got to the

detainee transfer facility, we took steps to inform

them, officially.

Q. Who took those steps? Was it

you or was it someone else?


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A. At the beginning, it was

Sergeant Steward and myself, we would try to e-mail

the Red Cross representative in Kandahar City and

the Afghan Independent Human Rights Commission, but

it was very difficult. Then the detainee officer

took over those duties.

Q. What time did the detainee

officer take over those duties?

A. I think it was in April and

May, in April or May, because --

Q. Around the same time as the

new arrangement came into place?

A. Yes, or it might have been

before that because we streamlined the reporting

process and we created the new database to -- you

know, it was a direct line; CEFCOM had accurate

information when they needed it. So, before it was

a different procedure; slides that would be e-

mailed.

Q. Slides of?

A. Slides that had information

on -- what we would do, like, information on, and

then the information would be e-mailed to CEFCOM.

Q. Then CEFCOM would take care

of informing --

A. I don't know what CEFCOM did.


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Q. But you --

A. CEFCOM, that would be here in

Canada.

Q. Yes, I know, I know, yes.

A. Yes.

Q. But you would have presumed

that CEFCOM was then informing the Red Cross at

that time?

A. No. We were informing them

in theatre.

Q. Okay. I thought you were

suggesting that it changed in April or May, where

you were informing --

A. It did, where the detainee

officer took on more of the duties.

Q. Okay. How would you know if

the Red Cross or the independent human rights

commission actually received your notification?

Would there be a reply e-mail or anything like

that?

A. I only attempted to do it

once and then I think Sergeant Steward had

confirmation. But I know the Afghan Independent

Human Rights Commission visited KAF and the Red

Cross would come along, all the time, to the

detention transfer facility. They would speak with


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the detainees or they spoke with Captain Worsfold,

so there was a constant contact.

Q. Had you ever heard about

difficulties with the Red Cross in the past

receiving information from the Canadian Forces?

A. No, I don't recall. They

didn't seem to have any issues when they came to

visit.

Q. You had also mentioned in

your direct testimony that at some point in the

middle of your rotation the Canadian Forces stopped

battlefield transfers with the ANA and the ANP?

A. I think they stopped all --

yes, captures and releases in the field, and then

the direction was they would all come back to the

detainee transfer facility.

Q. But specifically with respect

to those authorities, the ANP and the ANA, that

occurred at some point?

A. It did, before the previous

rotos and prior to ours.

Q. The previous roto before --

A. It did happen, I think. I

wasn't privy to all information because I wasn't

the I/C.

Q. No, for sure. No, I


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understand. Actually, you have done a great job.

I am surprised that you had as much information as

you did.

During your rotation,

approximately how many detainees were transferred?

A. I can't answer that question.

MS RICHARDS: Again --

MR. CHAMP: I am noting them, for

the record, because we will see whether we receive

them, afterwards.

Q. Can you say a percentage of

detainees, of transfer versus release?

A. There was quite -- I can't

say a percentage, I can't -- I can't really answer

that question, for security reasons.

Q. You were informed at some

point that you couldn't answer that question

because of security reasons, is that right?

A. Yes, I was told not to talk

about those specifics.

Q. In the transcript of your

interview at page 88, there is a mention there, and

this is starting at page 18, that DFAIT had ordered

that detainees could not be transferred to NDS.

A. As I have mentioned before,

that --


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Q. Did you learn about that from

DFAIT?

A. No.

Q. Did you learn about it

officially as part of your job at that time?

A. I learned about it in my

current job, from reading classified information.

Q. Okay, that is fine. You

returned to Canada in July 2007. You assumed your

new job shortly thereafter?

A. Yes.

Q. I guess there would have been

the decompression period, whatnot -- maybe, like,

October or something like that?

A. No. I reported back to work,

with the Military Police Company at CFSU Ottawa in

mid-September.

Q. In September, okay. When you

testified or when you -- not testified, pardon me,

but when you were interviewed about this, saying

that you had learned that DFAIT had ordered that

detainees can't be transferred --

I am trying to frame it in a way

where you can feel comfortable answering it.

When you learned about this order

to stop transfers in around Christmastime of 2007,


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did you at that time learn about the DFAIT

monitoring visits?

A. I can't remember.

Q. You can't remember?

A. I can't recall.

Q. I gather that if you had read

reports that indicated detainees had been subjected

to electrical shocks or beaten with electrical

cables, you probably would have remembered that?

A. I have never read such a

report.

Q. When did you learn that you

might be called as a witness in this proceeding?

A. When I was subpoenaed in

September or October of 2009, and was given my

summons.

Q. How did you receive the

summons? Was it from the department of justice?

A. It was from DND, civil

litigation lawyers.

Q. Ms Hanners(ph), one of those

folks?

A. Meaghan Enright(ph).

Q. Okay. Did you ever receive a

letter from Mr. Alain Prefontaine?

A. I received e-mails, I


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believe. There was something from Mr. Prefontaine

in some of the e-mails.

Q. Once you received your

summons, did you obtain legal advice?

A. Upon getting authority that I

would be entitled to legal advice at Crown expense,

yes.

Q. Did you get advice from the

department of justice or external counsel?

A. It was department of justice.

MR. CHAMP: Ms Cleroux, I am

wondering, we were looking at the exhibits and we

are trying to figure out where one of them might

be, P-21 in particular. It doesn't seem to have

any connection or reference to a document number,

where we might be able to find it.

THE REGISTRAR: P-21?

MR. CHAMP: Yes.

THE REGISTRAR: Did you see it in

any collection?

MR. CHAMP: We haven't. It is

just listed as P-21, so we are not sure how it was

incorporated and where it would be.

THE REGISTRAR: Where is it

listed?

MR. CHAMP: It is listed in the


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exhibit list, Afghanistan Public Interest Hearings,

P-21. We numbered it this morning. It is not part

of any collection. It is loose.

THE REGISTRAR: Are you talking

about document P-1 or Exhibit P-1?

MR. CHAMP: Exhibit P-21.

THE REGISTRAR: P-21.

MR. CHAMP: Frankly, I am not even

sure if I have figured out what these things are,

these main documents for witnesses.

MR. LUNAU: I can explain. What

we have done, instead of trying to deal with how

many black binders of documents --

MR. CHAMP: Right.

MR. LUNAU: -- we have found that

a number of documents are going to be common to all

the witnesses. We have extracted them and put them

into this subset to make it easier to refer them to

the witnesses for everybody to use.

MR. CHAMP: Now I see.

MR. LUNAU: Everything in the

subset is in the big set of black binders.

MR. CHAMP: All the older exhibits

that were entered before are listed in there but,

for example, we don't know where the new documents

are located in terms of the new exhibits.


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MR. LUNAU: P-20 and P-21 are

individual documents. The others, P-22, -23, -24,

if you look at the black binders, you will see that

they are labelled, Collection "A", Collection "B",

Collection "C" and so on.

MR. CHAMP: Yes.

THE REGISTRAR: P-21 is this one.

MS RICHARDS: Were you talking

about the Exhibit P-21?

MR. CHAMP: The Exhibit P-21.

THE REGISTRAR: I believe you said

document no. 21. Would you like a copy?

MS RICHARDS: Sure.

THE REGISTRAR: P-21. You said

there was a cover letter that went with this, from

Mr. Prefontaine.

MR. CHAMP: To Mr. Lunau, you

mean?

MS RICHARDS: Yes. You will

recall that Mr. Prefontaine sent this with a cover

letter and asked that both the cover letter and

this document be filed, if we were to file this

document.

MR. CHAMP: I don't --

MR. LUNAU: Yes. No, I don't take

issue with that. But, in fact, it is not here.


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MS RICHARDS: Okay. So will you

be filing the cover letter to go with it?

MR. LUNAU: Yes. It was not my

intention, to not file it.

MS RICHARDS: No, no, I just --

no, no. I figured it was an inadvertence.

MR. LUNAU: Yes.

MS RICHARDS: I was raising it for

your --

MR. CHAMP: Is there a copy for

the witness? Sorry --

MS RICHARDS: I just raised the

issue of the cover letter because this witness,

just in in fairness to her, to understand how and

why this has been filed with the Commission.

MR. CHAMP: Actually, I am just

going to check. Yes, she was after. Sorry. Yes,

that is fine, sorry. I thought you were on the

list of witnesses.

THE CHAIRPERSON: We can disregard

this?

MR. CHAMP: For now. We are going

to have to figure out where it goes in terms of one

loose document amidst all the binders.

THE CHAIRPERSON: In terms of the

cover letter, we will address that after. Are you


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going to need a couple of minutes, Mr. Champ?

MR. CHAMP: I think I will be done

in a moment. A couple more questions and I will be

all done, Ms Utton.

Q. First of all, the

transcripts, you have had an opportunity to read

those, obviously?

A. Yes.

Q. Is there anything in there

that you had any concerns about or disagreed with

or changed your mind about?

A. I had concerns because when I

was initially interviewed by the MPCC investigators

they told me everything I said they had the

appropriate security clearances and the classified

information I talked about would remain classified.

Since that, it was released to the media, so I had

concerns about that.

Q. But it is redacted.

A. I don't know when it was

released to the media, but I know it was released.

My testimony before the MPCC investigators was

released to the media. There were quotes and

misconstrued quotes.

Q. Right. But you will see that

there are significant portions of your testimony


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that are blanked out, here.

A. Since the section 38, yes.

Q. Right. An unredacted version

was never released, or at least not to my

knowledge.

A. Okay.

Q. If there was, I would like to

see it. Aside from that concern that you have, in

terms of the content of what you said in response

to the questions that were put to you in January

2008, do you have any concerns or disagreements or

reconsiderations?

A. Apparently some of the stuff

was inaudible, so I don't know the validity of

everything that was said because they couldn't

transcribe it from the audio to paper, accurately.

You can see, "(inaudible)" there.

Q. Where it says, "(inaudible)",

you didn't say "inaudible."

A. No.

Q. It is obviously the person

who transcribed it couldn't hear what you said and

has said, "inaudible."

In terms of what is recorded as

your statement, is there anything that you have

concerns about or disagree with?


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A. No.

Q. I gather that you have been

interviewed by Commission counsel prior to today,

to prepare for your testimony?

A. Yes.

Q. When did that occur?

MS RICHARDS: I am not sure how

that is relevant.

THE CHAIRPERSON: Can I hear your

basis?

MS RICHARDS: I do have an

objection. We have an arrangement with Commission

counsel that whether or not witnesses choose to

attend a voluntary prehearing interview is entirely

confidential.

MR. CHAMP: I am not party to

that. I don't see how that would prohibit this

witness from testifying to that.

MS RICHARDS: How and when she met

with Commission counsel is entirely irrelevant to

the matters before you and to the facts of the

complaint.

MR. CHAMP: The purpose of the

introduction of Exhibits P-20 and P-21 was to

demonstrate the concern that witnesses were being

interfered with or perhaps intimidated to


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cooperating with the Commission. Prior to October

2007, to my knowledge, no individuals or

prospective witnesses would agree to speak to the

Commission. In our view, that remains a live,

relevant issue; that is why those exhibits were

entered, to my understanding. As I indicated in my

remarks this morning, that is an issue that I

intend to pursue with a number of the witnesses who

appear here today.

For that reason, in my view, it is

relevant to know when this witness agreed to start

-- agreed to cooperate and be interviewed by

Commission counsel. I do not intend to ask her

questions about her own legal advice about that

issue. But Mr. Lunau is not her counsel and I

can't understand how that would be covered by any

privilege.

MR. LUNAU: The purpose of the

interviews was to allow Commission counsel to meet

with witnesses, determine what kind of evidence

they could offer, how they could help the

Commission with its hearing. It was subject to

certain understandings between ourselves and the

witnesses through their counsel.

The interviews are confidential.

We have told the parties at our monthly updates in


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a general way that interviews were occurring but no

specifics have been disclosed about who was being

interviewed or when they have been interviewed or

what the substance of those interviews was.

THE CHAIRPERSON: You said the

subject matters?

MR. LUNAU: That is right.

THE CHAIRPERSON: When was the

interview, and what else?

MR. LUNAU: The subject matters of

the interview, who was interviewed, the dates of

the interviews, have not been disclosed.

THE CHAIRPERSON: The purpose

behind that?

MR. LUNAU: Behind the interviews?

THE CHAIRPERSON: No, I know the

purpose behind the interviews, but for the

agreements, that none of this information would be

--

MR. LUNAU: There were conditions

--

THE CHAIRPERSON: Conditions?

MR. LUNAU: -- on which witnesses

agreed to be interviewed that were discussed

between us and their counsel, and they were agreed

to, so the interviews could proceed.


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MR. CHAMP: I am totally confused,

Mr. Chair. I will say that I was involved in the

process prior to Mr. Lunau and yourself. I do

recall there were discussions in September of 2007

at which Ms Richards was present, Mr. Wirth as

well, where there were concerns raised by

department of justice counsel about what might be

said in interviews and how interviews might be

conducted and so forth, by Commission counsel.

I am not looking now to ask about

the content, but I fail to understand how the date

of the interview and why the interviews took place

could in any way be confidential. I wasn't party

to that agreement; I don't see why I should be

bound by it.

THE CHAIRPERSON: Why would the

date be so important?

MR. CHAMP: To follow what

happened. Perhaps I could ask Mr. Lunau why P-21

is even in the record. The issue is that Mr.

Colvin raised his concern that he and other

witnesses were being pressured not to cooperate

with the Commission. The fact of the matter is

that prior to October --

THE CHAIRPERSON: Excuse me.

Should we be excusing the witness?


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MR. CHAMP: Yes, it might be --

THE CHAIRPERSON: It might be the

best thing --

--- REPORTER'S NOTE: The witness withdraws

MR. CHAMP: The fact of the

matter, Mr. Chair, is that all cooperation in my

view and in the view of the previous Chair between

the Military Police Complaints Commission and the

department of justice ended abruptly in January of

2008; no further documents were provided and no

more access to witnesses was allowed.

This situation continued until

these hearings, through the spring of last year of

2009 and up into October of 2009. At that point,

there were 25-odd witnesses who were subject to

subpoena, all Canadian government officials or

military officers of some description or other, all

of whom with one sole exception, that of Mr.

Colvin, were refusing to be interviewed by the

Commission, to cooperate with the Commission.

When Mr. Colvin obtained

independent counsel, he then indicated he wished to

cooperate with the Commission, and that caused a

variety of kerfuffles that I don't need to get into

right now. But the concern raised at that time and

it is my understanding remains a concern is whether


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witnesses were being pressured not to cooperate

with the Commission and who was applying such

pressure?

It is my understanding that is why

Exhibits P-20 and P-21 have been introduced into

the record and, as I indicated this morning, this

is an issue that I intend to pursue throughout the

course of the proceeding as I view it as one of the

systemic elements to this entire issue.

I will conclude to what I

understand, right now: I am hearing now for the

first time that there is some agreement between

Commission counsel and counsel for some or perhaps

all of the witnesses that they would not disclose

the dates of the interviews? I wasn't a party to

that and it makes no sense to me why the date has

to be confidential.

THE CHAIRPERSON: In my

understanding, their counsel was a part of that.

MR. CHAMP: I wasn't a party to

it, so, I mean --

THE CHAIRPERSON: You are not

their lawyer, though.

MR. CHAMP: That is right, and I

am asking her questions. If she is here and if it

is relevant to the issue of the integrity of the


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administration of this process, then I should be

allowed to ask that question and the question

should be answered. I don't see how I should be

bound by that agreement or my client should be

bound by said agreement.

THE CHAIRPERSON: Before I go to

Ms Richards, Mr. Wallace, do you have anything?

MR. WALLACE: My client was not in

receipt of this letter. I am out of it on this

one.

THE CHAIRPERSON: You are fine,

thank you. You and your team?

MR. WALLACE: Yes.

THE CHAIRPERSON: Ms Richards?

MS RICHARDS: Mr. Lunau has

something to say.

MR. LUNAU: Yes. With respect to

why Exhibit P-21 was filed, the history behind that

you may recall is it had been tendered for filing

back in October. At that time, there was an

objection to it being filed on the basis of a claim

of solicitor-client privilege. Those issues were

addressed by the parties through written

submissions.

Subsequently, the government

notified us that it withdrew its objections and


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I would like to hear from

Commission counsel. Is that not a concern for

present Commission counsel?

MR. LUNAU: Is what not a concern?

I mean, I don't understand what this debate is

about, frankly. If you have an issue with respect

to the process, then pursue it. We have filed the

letters, you can make whatever use of them you

wish.

MR. CHAMP: But why were they

filed, Mr. Lunau?

THE CHAIRPERSON: No. Speak --

MR. CHAMP: Do you have an

understanding as to why they were filed?

THE CHAIRPERSON: Speak to me.

MR. CHAMP: Sorry. Mr. Chair, I

am wondering if I could get from Commission counsel

their understanding of why the letter was filed.

That might assist me in going forward.

MR. LUNAU: Would you rather we

did not file it? We filed it so the record would

be complete. What do we intend to do with it? At

the moment, I don't intend to make an issue out of

it. If you intend to make an issue out of it, that

is your prerogative. They are part of the record,

you can put questions to the witness.


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This started with a discussion

about the interviewing of witnesses. Somehow it

has now turned into a challenge as to why have we

filed these letters. I mean, would you be better

off if we had not filed them?

MR. CHAMP: With the greatest of

respect to my friend, I am not sure if I follow the

position, Mr. Chair. It may be helpful for others

to review P-20 to understand what the concern was

when that information was sought to be filed.

The fact of the matter is no one

from the Government of Canada would cooperate with

this Commission until some unknown date. It is our

view that this should be a relevant issue for this

Commission.

Mr. Chair, I will remind you that

in, I believe, its 12-year history this body,

established under Part V of the National Defence

Act, this is only the second public interest

hearing ever called, the second ever. I believe it

was the view of the previous chair that there were

serious concerns about how the Canadian Forces and

the Government of Canada responded to that. We

view that as an issue that persists and it is an

issue that we intend -- apparently Commission

doesn't -- to lead evidence on throughout this


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hearing and make submissions at the end because, in

our view, this is an important body. It is

civilian, one of the only oversight bodies of the

Canadian Forces and of the Canadian Forces Military

Police. It was created in the wake of the Somalia

Inquiry; it is a very crucial body.

To the extent that its processes

might be interfered with, we intend at the very

least to lead evidence on that and make submissions

on at the end of the hearing.

THE CHAIRPERSON: Ms Richards?

MS RICHARDS: Obviously, my friend

makes some broad and very strong statements to

which we object very strongly. I think that

probably goes without saying.

Having said that, I do want to

correct some of the perhaps misapprehensions that

he may leave you with that there has been no

cooperation. As you know, the Commission during

the investigation stage interviewed over 33

witnesses. In fact, many of the witnesses who are

appearing before you today, including Sergeant

Utton, were interviewed by Commission investigators

and those transcripts are before you. If you want

to know when Sergeant Utton first spoke to the

MPCC, it was on January 22, 2008 and you have


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before you those transcripts.

In terms of what went on and why

the letter was filed with Ms Bokenfehr, I think we

have made our submissions on the record; I don't

intend to recreate those and you do not want me to.

I would agree with my friend that

we stated and it was our position that it was not

necessary to file those letters before the

Commission; the Commission found otherwise.

We do not think it is a legitimate

or real issue that my friend has raised. I can

tell you that we have and continue to enjoy a good

working relationship with Commission counsel. I

have not received any information from Commission

counsel that he currently or his team has a current

concern about the level of cooperation that he is

receiving from the Government of Canada, or about

this very serious allegation that my friend has

made about interference of witnesses.

He said he understood that this

remains a concern; that is certainly not any

information that has been communicated to us.

THE CHAIRPERSON: Mr. Champ, if we

boil this down, the issues of the letters, they

have been filed, and what happens in terms of them

and the weight that is applied to them is a whole


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different story. That is another matter for

another day, potentially, to discuss those

exhibits.

In terms of you are looking for,

if I could narrow this down, you want to know the

dates of the interviews. You feel entitled to know

that? Can I narrow it down to that? Close?

MR. CHAMP: Yes, I am going to ask

what were the dates of the interviews. I intend to

ask the witness if she was asked to be interviewed

in the fall and whether she agreed to that or not.

In terms of what my friends have

indicated to you, the best I can do, Mr. Chair, is

commend to you the transcripts of October 14, 2009

and December 10, 2009. I assure you I wasn't the

only one of the view that there hasn't always been

full cooperation from the Government of Canada; it

is not me making this up.

THE CHAIRPERSON: I have read

those transcripts. You want to ask if the witness

was interviewed in the fall? What else do you want

to ask?

MR. CHAMP: I want to ask her if

she was asked to interview in the fall. I presume

she will probably say no. I will ask her why she

didn't participate. She will indicate, I presume,


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that she did so on the advice of her counsel. I

will ask her --

THE CHAIRPERSON: Slow down, one

second -- participate? Why she did not

participate?

MR. CHAMP: Why she didn't

participate, and then I will ask her when she was

interviewed by Commission counsel.

THE CHAIRPERSON: On these points,

what other questions did you have on this issue

that we are dealing with?

MR. CHAMP: I will ask her if

anyone suggested to her that she should not

cooperate with the Commission and, if so, why.

THE CHAIRPERSON: Anything else?

Is that about it?

MR. CHAMP: That is it.

THE CHAIRPERSON: Of those

questions, Ms Richards and Mr. Lunau, which of

those questions breach your agreements that you

have had, or the understanding between witnesses

and counsel?

MS RICHARDS: What I would say is

this: Whether or not a witness chooses to attend a

prehearing interview, it is entirely voluntary.

THE CHAIRPERSON: Yes.


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MS RICHARDS: If Mr. Champ is

trying to infer something improper for the witness

refusing to attend that, that is our concern. If

he is asking this panel to draw some kind of

negative inference against a witness who exercised

their rights, their constitutional rights not to

attend a voluntary interview, I have a real problem

with that.

If the nub of what he wants to ask

is, "Has anybody ever suggested to you that you

should not cooperate with the Commission?", I have

no problem with him asking that question. He

doesn't need to ask the remainder of the questions.

He can ask, if she has been asked or felt pressured

not to cooperate with the Commission. And I think

that gets him where he wants to go.

THE CHAIRPERSON: Mr. Lunau?

MR. LUNAU: I have no difficulty

if my friend wants to ask that question, if Ms

Richards doesn't object to it.

THE CHAIRPERSON: Which is the

one? Repeat that again that you were saying, Ms

Richards?

MS RICHARDS: He can ask if anyone

has suggested or encouraged her not to cooperate

with the Commission.


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THE CHAIRPERSON: Any further

comments or submissions?

MR. CHAMP: No.

THE CHAIRPERSON: Go ahead.

MR. CHAMP: Yes. I don't know if

I have heard any reason why we can't know the date

of the interview. Frankly, in my view, I think it

only supports my submission, but --

MR. LUNAU: There are certain

things that are the workings of the Commission that

are carried out by Commission counsel. This is the

Commission's inquiry; we are the ones who decide

who we are going to summons, we are the ones who

issue the summonses, we are the ones who try to

interview the witnesses that we have summonsed.

Now, frankly, I don't know what

the hang-up is about the dates. I don't see what

that is relevant at all. What my friend wants to

know is, "At any time were you ever told or advised

not to cooperate?" I don't see what the date of an

interview has to do with that.

If the Commission decides

otherwise or Ms Richards thinks it is relevant in

some way, I am in your hands. But what I am

concerned about is protecting what we do as

Commission counsel to prepare this case for


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presentation to the panel. There are certain

things that are part of the workings of the

Commission in terms of dealing with witnesses.

MS RICHARDS: I would only add to

that, members of the panel, that, in the opening,

one of the prevailing issues that you have said, or

concerns that would guide this Commission in how

they handled this hearing was respect and dignity

to the witnesses. Putting each and every witness

on the stand and allowing Mr. Champ to cross-

examine them about when they met with Commission

counsel, on what date and why, does not respect the

dignity of those witnesses who are coming before

this Commission.

THE CHAIRPERSON: We are going to

take five minutes, to have a discussion with my

partner here. Actually, at five o'clock, we will

be back.

--- Short recess at 4:50 p.m.

--- Upon resuming at 5:00 p.m.

THE CHAIRPERSON: If I may,

briefly, we have had some discussions relative to

this matter. Certainly we recognize, even going

back to the -- from my point of view, the

transcripts of the testimony that was on the 10th

and the 14th, this issue of cooperation of


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government was raised back then.

I can also say that certainly the

issue relative to cooperation between MPCC, the AG,

or the government, and counsel has certainly been a

dynamic situation. We have seen many changes in

the last several months, much of which I would say

are very positive in terms of information and such.

In regards to the issue of the

questions regarding the witness that you are

looking at, Mr. Champ, whether or not you agree or

disagree, the witnesses have come forward here and

they have that right to independence in terms of

they can consent to an interview if they want or

not; that is entirely up to their right. They

could come here without interviews or they could

come with six interviews. They could come in cold.

The issue of the interviews I think is something

that that witness holds the cards to.

Having said that, the witnesses

have come forth here with some understandings that

between their counsel, counsel for the government

and counsel for the Commission, that they would not

deal with the issue of the subject matter, when it

was and who was interviewed and who was present at

the interviews, and not to disclose those dates --

and that is the "who."


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I am going to, and this panel is

going to continue to treat that witness with the

agreement and the understanding and the respect

that they have come forward under those conditions.

Now, having said that, as we move

forward, this issue may not die in terms of if

counsel can ever reach some agreement as to the

future in terms of how witnesses believe they are

coming forward and whether counsel or not can reach

different agreements in terms of dates and whatnot,

but at this stage, I am going to say no. I am

going to say that you cannot ask that question.

To go back to the issue of

government interference, I will say go ahead and

ask the question: Did anyone suggest that he or

she should not cooperate and if so, why? -- you can

ask that question. But I am going to restrict you

from asking the questions relative to if she was

asked to participate in an interview in the fall,

why she didn't participate or, if she did, and when

she was interviewed by counsel, so around those

issues.

But the issue going to the heart

of where you are talking about some of the facts

around the lack or threatening or the cooperation,

you asked that, and I think everybody here is


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agreed that that question can be asked. And how

that gets pursued into the future will be another

story in terms of other witnesses.

But I would ask that counsel

consider just revisiting that kind of understanding

for witnesses so that we may or may not run into

this again with other witnesses. Having said that,

we are prepared to have the witness come back in

and you can restrict your questions on that

particular point to that question.

--- REPORTER'S NOTE: Witness returns

THE CHAIRPERSON: I apologize for

the delay in keeping you, but we had a couple of

issues that we had to clear up regarding the issue.

Mr. Champ, if you can pick it up

from where we were?

MR. CHAMP: Thank you, Mr. Chair.

In these circumstances, we have no further

questions for this witness.

THE CHAIRPERSON: Okay. Mr.

Wallace?

MR. WALLACE: Yes, thank you, Mr.

Chair.

CROSS-EXAMINATION BY MR. WALLACE:

Q. Sergeant Utton, my name is

Mark Wallace. I am here representing Retired Navy


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Captain Steven Moore who, at the time you were in

theatre was the Canadian Forces provost marshal. I

am sort of setting up who I am and why I am asking

questions.

I only have a couple of questions

for you. You indicated in your evidence in chief

that during your training, which I presume was your

predeployment training, one of the things that was

brought home to you was that the detainees were to

be treated with respect, correct?

A. Yes.

Q. Yes. Throughout your

training, the fair and humane treatment of

detainees was a very high priority, and that was

brought home to you, correct?

A. Yes.

Q. While in theatre, those views

did not change, correct?

A. No.

Q. It was still a very high

priority?

A. Yes.

Q. I want to refer you to, and

you referred to it earlier, in Volume 2 at tab 2,

the Theatre Standing Order 321 that was in place on

May 27, 2007. That is the document that Mr. Lunau


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took you to earlier this afternoon.

I want to draw your attention to

the second page, paragraph no. 6. I want to read a

passage to you and get your comments on it, please.

I am referring you to the last sentence of

paragraph 6, the paragraph entitled, "Commander's

Intent." I will read this to you:

"Under the Third Geneva

Convention, the treatment of

detainees is a national

responsibility and it is of

the utmost importance that

Canadian Forces personnel

deal with detainees in a

manner that reflects credit

on Canada at all times."

Do you see that?

A. Yes.

Q. Is it your belief based on

your experience in theatre that Canadian Forces

personnel acted in a manner consistent with this

set of principles?

A. Yes.

MR. WALLACE: Thank you. Those

are my questions.

THE CHAIRPERSON: Go ahead.


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MS RICHARDS: Thank you.

CROSS-EXAMINATION BY MS RICHARDS:

Q. Sergeant, I have a few

questions that I wanted to go back on, to follow up

on and clarify from the testimony that you gave

earlier.

My friend, Mr. Champ, had asked

you about your access to reports from foreign

affairs, prison reports from foreign officials who

had gone in. You referred to that information as

sensitive and would have been provided on a need-

to-know basis. I am wondering if you could

explain, particularly given your experience as a

security officer, what you mean by sensitive

information and what you mean by, "on a need-to-

know basis"?

A. That information, if it was

related, would go through the task force commander

at a higher level and it would more than likely

have been classified, at least secret, and that

anything classified as sensitive, if -- to get out

to people that are authorized with the need to

know, it could be exploited by a foreign

intelligence services, or such, or cause

detrimental damage to the national security of

Canada; that would be sensitive, classified.


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Q. If something was classified

as secret, am I correct that you would have to have

the requisite security clearance at a secret level

to receive that information?

A. Yes, and the need to know.

Q. And the need to know. Can

you explain? We always talk about the need to

know; are you able to explain other than the

obvious what that means?

A. That, if it was classified

information, the appropriate security clearance

would be required and that you would have to have a

direct need to know this information; it is not

something that goes out based on your position or

title. You would actually have the need to know to

have access to the information. Just based on

people's positions, they are not given all

classified information. It is a need to know.

Q. Thank you. You also

testified and spoke about the detainee officer. Am

I correct that the detainee officer was not a

Military Police member?

A. No.

Q. Sorry, I asked --

A. Sorry, you are correct.

Sorry, he was not an MP member.


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Q. You were asked some questions

about your training predeployment and about the

Geneva Convention. Isn't it true that Geneva

Convention is part of the training, the basic

training for all Military Police?

A. I believe it is every soldier

deploying is given briefings on it, and it is part

of the -- you get Geneva Convention and law of

armed conflict training in leadership levels when

you progress through your training cycle.

Q. You had also refereed to the

fact, very early on in your testimony this

afternoon, that you knew that NIS were conducting

investigations. Am I correct that you were

referring to the fact that they were conducting

investigations regarding detainees?

A. I knew something. They were

doing investigations with something because they,

now Chief Warrant Officer Watson would come and

take detainee files, just take them, or say, "I

need these detainee files," and we didn't ask

questions. We would know it was -- there was

something. I assumed there was an investigation

ongoing.

Q. Thank you. Finally, the last

point I wanted to clarify was about the article by


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Scott Taylor in, "Esprit de Corps" that you had

referred to?

A. Yes.

Q. Do you have your transcripts

in front of you, still?

A. Yes.

Q. Turn to page 101. I am going

to wait a minute so that the members can --

Look partway down, at line 11.

You say here:

"Because I can recall reading

in the Esprit de Corps

magazine about Scott Taylor

and everything. And actually

he had some photos in there

and there was actually our

first detainee to be

transferred, his photo was in

there and he is sitting there

and he looked fine to me, in

fact, a little smile on his

face. So, I mean, Scott

Taylor went there

independently on his own. He

didn't get the Canadian Armed

Forces to take him, right? --


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so he went in and did that

article on his own and he was

saying, you know, if the

deals are not nice, but it is

what they are ... and I don't

recall him saying that they

were being tortured in

there."

Does that accurately reflect your

recollection of that article that you were talking

about?

A. Yes.

MS RICHARDS: Thank you. Those

are all my questions.

THE CHAIRPERSON: Mr. Lunau?

MR. LUNAU: Nothing further, sir.

THE CHAIRPERSON: Do we have

anything further for this witness, then? I wish to

thank you very much for your time and appreciate

you being here. I know the lateness of the day and

the hour in which we were able to structure this,

so, I thank you. You are free to leave.

I want to briefly discuss for

tomorrow morning. We are in a position to, Mr.

Lunau, for a second witness, first thing tomorrow

morning?


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MR. LUNAU: That is right. The

witness tomorrow will be Captain Bouchard; the same

arrangements will apply as for Sergeant Utton.

Captain Bouchard will be testifying in French.

Appearing tomorrow as Commission counsel will be

Danielle Barile(ph) and Nigel Wershman(ph).

THE CHAIRPERSON: Arrangements

have been made for the timing, and that? Mr.

Bouchard will be in here? I guess you have done

that?

MS RICHARDS: I will. Because it

is in French, it is also a different member of our

team. It will be Nathalie Benoit who will be here

tomorrow. I have to go and speak to Ms Benoit to

bring her up to speed. But we will coordinate all

of that.

THE CHAIRPERSON: Okay. Yes, and

we have translation services for tomorrow, as well.

Mr. Berlinquette will lead the French portion for

tomorrow.

Having said that, we are going to

start at nine o'clock? The witness can be here for

then?

MS RICHARDS: As far as I know. I

have to go back to the office and double-check

everything.


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THE CHAIRPERSON: How is our court

reporter for nine o'clock tomorrow. We are all set

for tomorrow?

THE REPORTER: We are supposed to.

THE CHAIRPERSON: Nine o'clock.

We will adjourn till nine o'clock tomorrow morning.

Thank you.

--- Whereupon the hearing adjourned at 5:17 p.m.

on Tuesday, April 6, 2010, to be resumed

at 9:00 a.m. on Wednesday, April 7, 2010.


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I HEREBY CERTIFY THAT I have, to the best

of my skills and abilities, accurately recorded

by Stenomask and transcribed therefrom, the

foregoing proceeding.

Marc Bolduc, Stenomask Reporter

and

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