Hearing Transcript - April 8 2010

8/9/2019 Hearing Transcript - April 8 2010

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Military Police Complaints Commission

AFGHANISTAN PUBLIC INTEREST HEARINGS

held pursuant to section 250.38(1) of the National DefenceAct, in the matter of file 2008-042

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

dfense nationale pour le dossier 2008-042

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.

Ottawa, Ontarioon Thursday, April 8, 2010

jeudi le 8 avril, 2010

VOLUME 3

BEFORE:

Mr. Glenn Stannard Acting Chairperson

Mr. R. Berlinquette Commission Member

Ms. R. Clroux Registrar

APPEARANCES:

Mr. R. Lunau Commission counselMs. Catherine BeaudoinMe Nigel MarshmanMe Matthew McGarvey

Mr. A. Prfontaine 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 andMe S. Jodoin B.C. Civil Liberties Association

Mr. M. WallaceMe Bill Carroll 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, Ontario

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M5H 2T4(613) 564-2727 (416) 861-

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Ottawa, Ontario

--- Upon resuming on Thursday, April 8, 2010

at 9:05 a.m.

THE CHAIR: Good morning. In

terms of counsel, I think everybody knows everyone.

We have no new counsel from previous days.

The first order of business for

today is that the decision relative to reasons to

proceed in camera was posted yesterday afternoon on

the MPCC website, and what I'd like to do today is

read it into the record, and then from there I'll

have a few comments beyond that.

The reasons for order to proceed

in camera:

At the resumption of the

Commission's public interest hearings on April 6,

2010, counsel from the Department of Justice made

an oral request pursuant to section 250.42 of the

National Defence Act, and Rule S14 of the

Afghanistan Public Interest Hearing Rules, for an

Order that certain evidence from non-subjects be

received in camera. The Order requested by counsel

was that the hearings conducted on April 6, 2010

and April 7, 2010, be conducted in private to

protect certain specified security interests.

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

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After hearing the representations

made by counsel for all parties, the Commission

granted the request that the hearings on April 6th

and 7th proceed in camera. In so doing, the

Commission was satisfied that the statutory

requirements for proceeding in camera were met.

Parliament has enacted section

250.42 of the National Defence Act, which provides

as follows:

"250.42 A hearing is to be

held in public, except that

the Complaints Commission may

order the hearing or any part

of the hearing to be held in

private if it is of the

opinion that during the

course of the hearing any of

the following information

will likely be disclosed:

(a) information that, if

disclosed, could reasonably

be expected to be injurious

to the defence of Canada or

any state allied or

associated with Canada or the


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likely be disclosed.Y

S15(1) The Complaints

Commission shall convene in

private to consider a request

under section S14, and may

convene periodically for this

purpose."

Parliament has thus directed, in

the National Defence Act, that in the course of the

Commission's public hearings some information will

likely be disclosed that would reasonably prove

injurious to Canada's defence and security

interests, the enforcement of Canada's laws, or to

a person's privacy and security interests, if it

were made public. In such cases, a request may be

made that the information be received in camera to

protect the interests that Parliament has deemed to

be of overriding importance.

The above provisions generally

reflect accepted common law principles and

procedures under which Courts may be asked to hear

evidence, in private, as to why substantial reasons

exist for keeping certain information confidential

notwithstanding the "open court" principle: see

e.g., Named Person and Attorney General of Canada


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on behalf of the Requesting State v. Vancouver Sun

et al.

In the circumstances of this case,

counsel for the Department of Justice relied on all

three subsections of section 250.42 of the National

Defence Act to submit that the hearings in question

should be conducted in camera. In assessing

counsel's request, the Commission applied the test

and principles established by Parliament in section

250.42 of the National Defence Act, and was

satisfied on the facts that the requirements of

section 250.42 were met. The Commission

accordingly issued a verbal Order, from the bench,

directing that the proceedings on April 6th and 7th

would be conducted in camera. The hearings

immediately resumed thereafter.

In arriving at its decision, the

Commission also took into account the public nature

of the hearings, and the principle that any

derogation from the public nature of its hearings

must be minimal. Factors that the Commission took

into account included:

No party opposed the request.

Granting the request was

considered by the parties to


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be the most expeditious way

to allow the hearings to

continue without delay in

accordance with section

250.14 of the National

Defence Act.

The unredacted transcripts of

the evidence in question

would be made public.

The Commission's reasons for

proceeding in camera would be

made public.

For the sake of clarity, the

Commission's Order to proceed in camera applies

only to the evidence being received on April 6 and

7, 2010. To date, no other request to proceed in

camera has been presented. If such a request were

subsequently presented, then it would be considered

on its own merits.

That decision was forwarded to

parties and it is part of the record.

Having read our reasons for

proceeding in camera, I will make a few additional

comments on behalf of the panel.

This panel has not lost sight of


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the need for this hearing to proceed with the eyes

and ears of the public. Faced with a motion

dealing with security issues, the decision to close

the two days of testimony was not taken lightly.

It was unfortunate with the timing of the motion

and the position of the hearing for the first two

witnesses. We have expressed our concern to

counsel as to the timing of the request, and the

circumstances were such that Commission counsel had

scheduled the first two witnesses, those being the

ones most affected. That being said, unless there

is an unknown reason, as was said in the decision,

the remaining witnesses will be heard and seen in

the public forum.

We have read and we have watched

over the past couple days the media accounts, and

we recognize the media's frustration with being

excluded. We know and appreciate they are the

conduit to the public to ensure the public has the

ability to hear and read the testimony presented.

We apologize for the timing, as you were set to

report and you were unable to do so.

As stated earlier, the decision to

go in camera was not taken lightly, and it should

be noted that the decision was not opposed by


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parties.

I wish to proceed with today's

testimony. Providing there are no other comments

from counsel, we'll hear from the first witness.

No issues from counsel?

Thank you.

MR. LUNAU: The next witness is

Captain Naipaul, and he will be examined by my

colleague Ms. Beaudoin.

THE CHAIR: Thank you.

SWORN: CAPTAIN (RET'D) NAIPAUL

THE CHAIR: Welcome. I would

assume you have been sworn.

THE REGISTRAR: Yes, he has.


Please proceed.

EXAMINATION-IN-CHIEF BY MS. BEAUDOIN:

Q. Good morning, Mr. Naipaul.

A. Good morning.

Q. You began your military

career in September 2004 as an infantry officer,

correct?

A. With the reg force, yes.

Q. Then you became a military

policeman in 2006?


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A. That is correct.

Q. You are currently retired

from the Canadian Forces?

A. Yes I am.

Q. You were deployed to

Afghanistan during roto 5, correct?

A. Yes.

Q. That was February 2008 to

August 2008?

A. To September 2008.

Q. You served as the GSMP

platoon commander for part this rotation, correct?

A. Yes.

Q. From February 2008 to April

2008?

A. Till the end of April, yes.

Q. After April 2008 what was

your position?

A. I was the senior police

mentor for in Zhari District with the OMLT, with

the Operational Mentoring Liaison Team.

Q. But during your whole

rotation you were located at KAF?

A. For my time with the GS

platoon I was located at KAF. When I moved to the


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OMLT, I located to a forward operating base.

Q. As the GSMP platoon commander

who did you report to?

A. Major Ron Gribble.

Q. And he was the task force

provost marshal at the time?

A. Yes, he was.

Q. How much contact did you have

with him?

A. I spoke with him daily during

my tenure as is GS platoon commander.

Q. Was your operational chain of

command and technical chain of command the same?

A. Yes, at that time.

Q. The TFPM. Who reported to

you?

A. My 2IC for the platoon was

MWO Annie Andrews.

Q. And who became the GSMP

platoon commander after you made the switch to the

OMLT?

A. That's right.

Q. What were your duties as the

GSMP platoon commander?

A. As the GS platoon commander I


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was responsible -- it was twofold. First, I was

responsible for policing the task force or

providing the personnel to police the task force.

My second duty was to administrate and run the

detention transfer facility.

Q. So as part of your duties did

you have an investigative role?

A. I could have had an

investigative role. During my tenure there were no

investigations for me to conduct.

Q. So you weren't involved in

any investigations regarding detainee issues

whatsoever?

A. No, I was not.

Q. Are you aware of any

investigations that were conducted with respect to

detainee issues?

A. Yes, I was.

Q. Who conducted those?

A. The NIS.

Q. Were you privy to any of the

information relating to the investigations?

A. Just initially at the front

end as far as identity of the detainees and the

general nature of the complaint.


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Q. In general terms, what were

your duties in your role on the POMLT?

A. I was responsible for the

mentoring of Afghan army and police personnel.

Q. Did you deal with any

detainee issues in that position?

A. Yes, I did.

Q. In what respect?

A. I was responsible for

detainee handling -- instructing the Afghan

personnel on detainee handling, and was present on

some occasions when they took detainees themselves.

Q. So were you involved at all

in that respect with the NDS or just the Afghan --

the police force and the army?

A. I'm not sure of your

question.

Q. I just wondered, as I

understood your answer, you were mentoring Afghan

authorities and I think you mentioned the army and

police force.

A. Yes.

Q. But did that include any

members of NDS?

A. If you're asking if I


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mentored the NDS, no, I did not.

Q. When you first arrived at KAF

in February 2008, were the transfers still

suspended?

A. Yes, they were.

Q. Did you have any knowledge of

the circumstances surrounding the suspension of

transfers in November 2007?

A. Other than to be told when I

arrived in theatre that they were suspended and

that any detainee brought in was currently being

held at the DTF, that was the extent of the

information that I was provided.

Q. Were you given any reasons

for the suspension?

A. In general terms I was told

that it was as a result of the questions regarding

detainee handling and torture, but beyond that I

didn't know the exact reasons why the transfers

were suspended.

Q. Did you know who had made the

decision to suspend the transfers?

A. At the highest level, no. I

simply assumed it was the task force commander who

had made that decision from the previous roto.


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Q. Were you aware of the

conditions that had to be met in order for

transfers to resume?

A. No, I wasn't.

Q. Do you know who made the

decision to resume transfers?

A. Once again, I can only assume

it was the task force commander, but I'm not sure

at what level.

Q. Transfers resumed a few weeks

after your arrival, correct?

A. Yes.

Q. And without providing any

details or classified information, could you please

describe the process with respect to detainees

after they were captured in the field and taken to

KAF?

A. Once detainees were captured

in the field it was a responsibility of the MPs to

handle the detainees. For our roto, roto 5, there

were some situations where MPs went out to the

field and some situations where we just accepted

detainees into our facility. In either event, once

a detainee came to the facility they were processed

in; for security reasons, searched; and essentially


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lodged in the facility to await either transfer or

release.

Q. Was the 96-hour rule still in

effect when you were there?

A. Yes, it was.

Q. Who was notified about the

fact that detainees had been taken into custody?

A. I'm not sure of everyone that

was notified. I know within the scope of my duties

I notified the task force provost marshal -- he

usually knew before I did -- and the detainee

officer for KAF. Those are the two individuals

that I ensured that knew that we had detainees

coming in other present at the facility.

Q. Did you file any notification

to the International Red Cross or the Afghan

Independent Human Rights Commission?

A. Once a detainee was processed

into the facility and the 96 hours had started, we

did advise the Red Cross that there were detainees

that had been brought in.

Q. And did you personally notify

them or did somebody else?

A. On some occasions it was me

personally; on other occasions it was the 2IC.


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Q. What was your understanding

about the purpose for notifying these

organizations?

A. As far as notifying -- in

general terms notifying the Red Cross, they would

eventually, at some point while the detainee was in

the facility, make every -- take an opportunity to

come and ensure the well-being of the detainee. As

far as I was personally concerned, it was more of a

courtesy call to let them know that we had

detainees. They didn't often come within the 96

hours to come check.

Q. Again without providing any

classified information, what was the process that

was followed for detainees that were transferred to

Afghan authorities from KAF?

A. Once again, with respect to

myself, I was notified, usually by the task force

provost marshal or the operations officer for the

MP company, that the documentation was going to be

received that there would be a transfer, at which

time we would start prepping the detainee for the

transfer; an administrative process essentially.

Once we received the hard copy of the paperwork, we

organized the personnel that were required to


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facilitate the transfer.

Q. And at what point would the

detainees be told they were being transferred?

A. Usually within minutes of me

being advised they would be advised. I would

advise my personnel and subsequently they would

advise the detainee.

Q. Were they specifically told

who they were going to be transferred to?

A. In some occasions -- first of

all, this was done through a translator, so on some

occasions they were told specifically that they

were being transferred to the NDS; on other

occasions they were told they were be transferred

to Afghan officials.

Q. In the cases they were told

they were being transferred to the NDS was there

any reaction from these detainees?

A. Yes, there were reactions.

Their reactions ranged from nothing at all to some

concern about leaving the facility.

Q. And why were they concerned?

A. Once again, through a

translator, typically most detainees did not want

to leave the facility. They felt that they were


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well treated at the facility and were uncertain

where they would go, what they would be faced with

once they left.

Q. Was there any fear that you

could see in terms of being associated with the

NDS?

A. I'm not sure "fear" would be

the correct word. I mean, there was some concern

of being transferred to Afghan officials. Whether

that was specifically because it was the NDS I can

only speculate.

Q. Were you physically present

at the actual transfer to the NDS?

A. On most occasions, yes.

Q. What was your role during

that handover?

A. I was to ensure that the

process went smoothly, ensure that all the key

players were present, the administration had been

done and that the detainee was ready to be

transferred, both medically and physically.

Q. When you say "key players,"

who were the key players?

A. Usually at a transfer there

would of course be the NDS representative, the task


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force provost marshal or his designate, and on most

occasions the detainee officer, and on some

occasions the political adviser, and of course the

MP personnel facilitating the process.

Q. The detainee officer, was he

a member of the Canadian Forces?

A. Yes, he was.

Q. But he wasn't an MP?

A. No, he was not.

Q. What was his role, I mean, in

general terms but also specifically in terms of --

A. In general terms I was made

to understand that he was to oversee the detainee

process specifically for the task force commander.

He was to ensure that the administration, the flow

of the process was conducted properly, and of

course he was there at transfers.

Q. And the POLAD; he was a

civilian, correct?

A. Yes.

Q. Did you know what department

he was from?

A. I believe it was DFAIT, but I

couldn't be sure.

Q. At the time you didn't know?


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A. At the time I did know. I

was introduced to him at the beginning of my tour

and it slipped my mind if that was his department.

Q. What was his role?

A. Once again, I believed it was

to oversee the process, ensure that it was being

done properly in accordance with the agreement.

Q. Do you know who he reported

to?

A. No, I don't, no.

Q. So in terms of the process

that you're talking about and in terms of the

agreement, what are you referring to there in terms

of what actually happened at the actual handover?

A. I'm not sure --

Q. I heard you say that the

POLAD, and the detainee officer, for that matter,

were there to see if the process and the agreement

were -- to oversee that process. So what was that

process?

A. They advised the detainee of

the agreement that was in place between the

Canadian government and the Afghan government.

They essentially read the agreement, and of course

it was translated.


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Q. Was there any discussion

about the treatment of detainees post transfer

during that whole process with the NDS, with the

detainee?

A. Specifically not that I can

recall.

Q. Now, in terms of your contact

with the NDS, did you speak with them directly?

A. Yes, I did.

Q. Through an interpreter?

A. Yes.

Q. And what was your impression

of their personnel?

A. Of the personnel that I met,

I found them to be professional and quite aware of

the situation of their end of the bargain, their

involvement in the agreement.

Q. Did anything they say or do

give you any cause for concern in terms of how

detainees would be treated post transfer?

A. No.

Q. Was there any physical

resistance by any of the detainees when you handed

them over to the NDS?

A. No.


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Q. Any emotional outbursts or

reactions of any kind?

A. I would say no, not in front

of the NDS. Any demonstration of emotion would

have occurred when we told them that they were

leaving the facility. In front of the NDS there

was nothing.

Q. With previous witnesses we've

seen examples of paperwork that was filled out with

respect to the detainees. They were mainly annexes

to the Theatre Standing Order. You're familiar

with that kind of paperwork?

A. Yes, I am.

Q. Just so we make sure we're on

the same page, if you could go to the witness book,

document A21, Volume 2.

MR. CHAMP: Which volume again?

MS. BEAUDOIN: Volume 2, Tab 2,

document A21.

BY MS. BEAUDOIN:

Q. Mainly beginning at page 18

of that tab. Do you see it?

A. I see the documentation.

Q. So the one that I'm looking

at first is Annex C on page 18 and following. So


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were you familiar with this documentation?

A. Yes, I was.

Q. This was the documentation

that was filled out for each detainee when they

were taken into custody and eventually either

released or transferred?

A. Yes, in general terms. This

is not exactly the one that we used in theatre for

our roto.

Q. Okay.

A. But the one we use is based

on this.

Q. Did you actually fill out

some of these forms or the equivalent of what you

guys had at the time of these forms?

A. Personally? Yes, I have

filled out the forms from the very beginning.

Can I just stop; a question

regarding the completion of these forms and whether

or not that's of a sensitive nature.

Q. I don't need the details in

that respect. I just wanted -- one the previous

witnesses did speak about the forms and the

paperwork that had to be filled out, so just in

general terms I wanted to understand that you were


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involved in that.

A. Okay.

Q. So once the paperwork was

done with respect to the detainees, what did you do

with that paperwork?

A. I submitted it to the

detainee officer. I personally hand delivered it

to him, and if he wasn't present I left it with the

MP company that he would pick it up at a later

date.

Q. To your knowledge, was the

detainee officer the custodian of the paperwork

that you provided to him?

A. I'm not sure if he was the

custodian of the paperwork.

Q. Do you have any knowledge of

what happened to the paperwork after you gave it to

him?

A. No. I know that there were

several other pieces of the process that needed to

be conducted, and he facilitated that. As far as

the documentation, once it came back to us we held

the documentation on file.

Q. So you mean it went to him

and went somewhere else and then eventually it came


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back?

A. Right.

Q. And it was held by you at the

detainee transfer facility?

A. That's right.

Q. Was there some kind of

management system in terms of reporting on detainee

information?

A. Management system? I don't

understand.

Q. You're not aware of any kind

of data management system?

A. I'm not sure of the question,

what you mean by "management system."

Q. Well, as I understand, data

-- maybe a computer system or any kind of system to

hold the paperwork.

A. I believe that's of a

sensitive nature.

Q. Okay. Now, overall did you

feel the process, including the transfer process,

was working well?

A. Yes.

THE CHAIR: The issue of SAMPIS or

something like that is not a sensitive issue, is


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that correct?

MR. PREFONTAINE: No, not SAMPIS

itself.

MR. BERLINQUETTE: Does that

change the answer?

A. No, it doesn't.

BY MS. BEAUDOIN:

Q. Just to clarify, you were

aware of SAMPIS but there was also another system

that is of a sensitive nature?

A. Yes. SAMPIS was not used to

record detainees.

Q. After detainees were

transferred to the NDS, were you aware of any

follow-up that was done regarding the detainees

post transfer?

A. In general terms I was aware

that both DFAIT and Corrections Canada were

following up at the prisons, but anything beyond

that I wasn't aware of.

Q. So you didn't have any

knowledge about the follow-up?

A. Specifically, no.

Q. Was there any discussion

amongst the MPs about any kind of obligation that


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MPs had in terms of keeping track of the treatment

of detainees post transfer?

A. No, not that I was privy to.

We were concerned strictly with the handling of

detainees while in Canadian hands, and once the

transfer occurred we no longer saw that there was a

responsibility for the MPs at that point, that

another government agency would be involved.

Q. Would it be fair to say that

you and the MPs in general saw post transfer issues

as a policy government issue as opposed to a

Canadian Forces issue?

A. I would say that the MPs in

general didn't see it as an issue that affected

MPs. I personally would say that, yes, it was a

whole-of-government issue as opposed to a Canadian

Forces issue.

Q. So what role did you see the

Canadian Forces playing in terms of post treatment

of detainees -- post transfer?

A. I would say more of a support

role in that, if we get specific, to move around

the country you would need the Canadian Forces to

be able to move personnel around, whether they

belonged to Corrections, DFAIT or the CF. So in


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that respect the Canadian Forces played a role by

supporting movement, supporting operations, but

beyond that to say that I knew that they were

specifically involved in post transfer, no, I was

under the impression that there were other agencies

involved.

Q. Were you privy to any

discussions about the obligations of any MPs in

terms of conducting investigations regarding post

transfer issues?

A. No, I was not privy to any

type of discussion.

Q. Do you recall any discussions

amongst MPs about any concern regarding the

treatment of detainees post transfer?

A. No.

Q. Did you personally have any

concerns about how the NDS might be treating

detainees after transfer?

A. While I was the GS platoon

commander, no.

Q. But afterwards?

A. Afterwards, when I was with

the POMLT, I wasn't sure the level of detainee

handling on the part of the Afghans, mainly because


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there was one allegation of mistreatment while I

was the GS platoon commander, and that was

investigated by the NIS.

Q. An allegation of mistreatment

by the NDS?

A. No.

Q. In terms of your awareness

prior to your rotation, this was through media

articles and so on?

A. Yes, initially. I was aware

of the media's take on the torture and the

treatment of detainees by the NDS or Afghan

officials. As a result of that, the task force

provost marshal, Major Gribble, made us aware, as

MPs in general, made us aware that these

allegations had occurred and that he didn't want to

have any of these issues arise in our roto.

Q. Were you aware of any of the

reports issued by the Department of Foreign

Affairs?

A. No.

Q. The U.S. State Department?

A. No.

Q. Reports by the Afghanistan

Independent Human Rights Commission?


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A. No.

Q. Or any of the UN/Amnesty

International reports?

A. No.

Q. Were you aware of the Amnesty

complaints that had been filed?

A. In general terms through

media, but specifically, no.

Q. Were you aware of any reports

or emails by Mr. Richard Colvin of DFAIT?

A. No.

Q. How about any of the reports

that were issued by DFAIT regarding the follow-up

visits?

THE CHAIR: You'll have to -- so

that the record --

A. No.


BY MS. BEAUDOIN:

Q. I know you said you didn't

have any concerns about the treatment of detainees

post transfer, but if you had had concerns, what

would you have done about that?

A. I understood the process to

be that I would speak with the NIS and, because of


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the sensitive nature of such an investigation, they

would be the ones responsible for such an

investigation.

Q. So you would have spoken with

them or would you have filed a written report of

any kind?

A. I would have spoken with them

and, based on what they required to initiate an

investigation, if they decided to initiate an

investigation, then I would just follow through.

Q. Can you think of any

circumstances under which you would have questioned

the fact that you were being ordered to transfer

these detainees to NDS?

A. Certainly as a commissioned

officer in the Canadian Forces, if I was presented

with an order that I felt was unlawful, I would

certainly -- I would certainly question the order,

but during my tenure as the GS platoon commander

and while I was on roto 5 I was never faced with an

order that was -- that I felt was unlawful. I

simply trusted the chain of command from my

superiors that what they were doing was right, what

they had ordered me to do was lawful, and I carried

on with the mission.


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Q. But in terms of -- let's say

you had heard something specific in terms of the

mistreatment of detainees post transfer. What kind

of information would have -- could have -- could

you have -- what kind of information or what level

of information would have been sufficient for you

to actually question an order to transfer might be

unlawful?

A. Obviously we're talking

hypothetically.

Q. M'hm.

A. Any situation where I felt

there was evidence for us to conduct an

investigation would be a situation where I would

follow through on the process of advising the task

force provost marshal and the NIS in order to

commence an investigation.

Q. So I guess what I'm trying to

understand is what kind of evidence would have been

sufficient for you --

A. Well, as a -- I would say

that as a police officer in general evidence that

would give credible evidence to the fact that

something occurred, and if you're talking about

torture, for instance, that there was some sort of


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credible evidence present that I personally was

aware of that I could act on.

Q. So what would have been

considered credible in your view as a police

officer?

A. I would say that certain

things we didn't have in theatre at the time, that

in general terms, DNA, photos, physical evidence,

testimony, statements, any of the natural things

that a police officer would look for to give -- to

round out an investigation, to conduct an

investigation, whether physical or evidentiary,

would be considered.

Q. So let's say if a detainee

had reacted in a fearful way to the fact that the

NDS -- that he was going to be transferred over to

the NDS, would that have been credible evidence?

A. In and of itself I would

suggest it would not be enough to simply -- based

on the fear or based on the reaction of a detainee,

I don't think that I would be able to conduct an

investigation based on that information alone.

Q. But if you had seen fear on

the part of any of the detainees, would you follow

it up with them to speak with them, to get more


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information?

A. I think that's a hypothetical

question that I can't answer. I wasn't faced with

that situation and, as such -- perhaps if I was I

would know exactly how to react to it, and I think

every situation would dictate accordingly, but I

could not hypothesize on that.

Q. So the last set of questions

I wanted to discuss with you was your training

prior or during your deployment. Could you

describe the kind of training you received before

you went on your rotation?

A. Once again, in general terms,

as the MPs, we received all the basic training that

an individual soldier would have received prior to

commencing workup training. We received all the

basic workup training that was required; and you

can imagine weapons handling, vehicles, the basic

skills.

As MPs, we received MP-specific

training. For the GS platoon, as I said

previously, our role was twofold. We were to

police the task force and we were to handle

detainees.

With regards to policing the task


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force, our training involved police-related tasks;

conducting investigations of various kinds, use of

SAMPIS and that sort of thing. As far as detainee

handling, we essentially practised detainee

handling.

Q. Did you receive any training

relating to the domestic and international laws

that applied, specifically to the process of

capturing, handling and transferring?

A. Yes. As part of our basic

workup training and our MP-specific training we

received instruction and direction from task force

provost marshal Major Gribble, and I recall on

three different occasions he provided lectures to

the entire MP company regarding law of armed

conflict, Geneva conventions, handling of

detainees, status, things of that nature.


of the kinds of issues that would give rise to

breaches of international law or domestic law?

A. Any mistreatment of a

detainee would be a contravention, was my

understanding. Mistreatment could be in a number

of different forms.



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of the Canadian Forces or MP obligations regarding

detainees post transfer in terms of international

and domestic law?

A. Post transfer?

Q. M'hm.

A. I didn't -- unless it was an

incident that occurred while they were in our

custody or related to an MP, I didn't see that

there -- for the GS platoon I didn't see that there

was as role for the GS platoon to play post

transfer.

Q. So there wasn't any

discussion in your training about obligations post

transfer?

A. No, there was no training; no

discussion regarding that.

Q. So it would be fair to say

that all the discussion relating to obligations in

terms of international law or domestic law was with

respect to while detainees were in your custody and

it ended once they were transferred to the NDS?

A. Yes.

MS. BEAUDOIN: Thank you. Those

are my questions.

THE CHAIR: Mr. Champ?


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CROSS-EXAMINATION BY MR. CHAMP:

Q. Would you like a break,

Captain Naipaul?

A. No, I'm good, thank you.

THE CHAIR: We probably will go

till about quarter after or so, unless that's going

to interrupt your -- we'll pick a spot around that

time.

MR. CHAMP: That's fine. Thank

you.

BY MR. CHAMP:

Q. Captain Naipaul, my name is

Paul Champ and I'm counsel for Amnesty

International and the B.C. Civil Liberties

Association where the complaints in this matter. I

want to thank you for appearing today and providing

us with the information of what you knew when you

were in theatre. We know it was a difficult

situation and difficult mission.

A. Thank you.

Q. I'd just like to start from

kind of where you ended about some of the training

that you received regarding Geneva conventions from

Major Gribble and wanted to ask you, what was your

understanding of the comfort level that the


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Canadian Forces must have in the receiving power

treating a detainee humanely before they could hand

over that detainee? Was that an issue that you

received any training on at all?

A. As I alluded to before, as

far as the training goes, that was training

conducted as a group, as an MP company, and Major

Gribble addressed us as a company. On occasions

where he and I spoke directly about

responsibilities, the agreement between the two

governments was made aware -- he made it aware to

me; he gave me a copy initially. And basically the

understanding, the way I understood it based on

what he explained to me, was that we, as the

Canadian government, the transferring power, needed

to be sure that the receiving power would in no way

torture the detainee or mistreat the detainee,

contrary to the conventions.

Q. And --

A. Sorry, I should say that was

not made aware in those specific terms to all of

the MP company. I don't think that members of the

MP company were made aware of the level that they

were looking for. I think that was something more

between task force provost marshal and myself.


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Q. So, for example, the Canadian

government, including the Canadian Forces, part of

the role of the mission is to provide training and

support for development in Kandahar so that Afghan

authorities can develop capacity to meet standards.

That's part of what you're doing in OMLT, correct?

A. Yes.

Q. So obviously there's concern

that they're meeting standards in those contexts,

but was Major Gribble explaining to you that

there's a little bit of an -- there's an extra

responsibility on the Canadian Forces and Canadian

government if they initially capture the detainee

and deprive that person of their liberty and then

hand it over to a detaining power, or a receiving

power?

A. Yes. He made it aware that

it was a different standard because we were a

professional army as opposed to the Afghans.

Q. And you spoke a bit about, in

your testimony, that you and Major Gribble would

have these conversations and Major Gribble

explained to you that there were these concerns and

that it wasn't going to happen during your roto.

Did he ever express to you what level of knowledge


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that he had about some of the information

concerning the risk of torture in Afghan --

A. Not in specific terms, no.

Q. Not in specific terms. You

explained that you had never seen any of the

international reports by the United Nations or the

United States State Department or the Afghan Human

Rights Commission --

A. That's right.

Q. -- or the DFAIT reports?

A. I had never seen any of

those.

Q. Did Major Gribble ever give

any indication to you that he had some level of

knowledge?

A. Not that I recall. I mean he

was quite knowledgeable. Whether he had knowledge

of those documents I'm not aware.

Q. Did he ever give you any

indication of whether he believed that the concern

about the risk of torture was legitimate or valid?

A. In so much as we trained for

that to be able to deal with that, I would assume

that he felt it was credible; credible enough to

train. Whether or not he believed it specifically,


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I don't know.

Q. I'm going to go back and ask

you some questions about your role in the actual

handoff, or handover, of detainees. You indicated

that some detainees did express some reluctance or

unwillingness to be transferred to the NDS. How

would they express that?

A. That's not exactly what I

expressed. It wasn't specifically about being

transferred to the NDS; it was about leaving the

facility. They would often joke about leaving the

facility, that they had good food, that they could

see that they were getting bigger. Ones that had

been there for the four days could see that -- they

enjoyed the food quite a bit.

As far as concerns about being

transferred to Afghan officials, they would

basically question why. They hadn't done anything

to indicate that -- they don't know why they were

being held, they were simply farmers, they were

just picked up. But like I said, nothing specific

about being transferred to the NDS.

Q. That's fine. So it was

transfer to Afghan authorities generally that was

some of the concern that was raised?


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A. As far as why; their question

was why more so than anything else.

Q. Right. And were there any

demonstrations of emotion by some of those

detainees when they were informed they would be

transferred?

A. On a few occasions, yes, but

nothing that I felt -- nothing that I felt was

directed specifically at the NDS or because of the

NDS.

Q. Okay. Could you give us an

example of an expression or demonstration of

emotion?

A. On one or two occasions the

detainee would get upset, raise his voice, question

why he was being transferred. He was -- he hadn't

done anything wrong.

Q. And would that ever make its

way -- you would do daily reports, I gather, or

every couple of days on the situation with

detainees, who has been transferred when and so

forth?

A. Yes.

Q. And would those kinds of

concerns -- would those kinds of expressions by


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detainees ever make it into your reports?

A. I don't think I can --

without getting into specifics of the reports, I

don't think I can answer that question.

Q. And you're aware that it was

the commander of Task Force Afghanistan who would

make the decision to transfer or release?

A. Yes.

Q. And were you ever asked,

through your platoon, to consult with the detainee

to see if the detainee had any concerns or fears

about being transferred? Were you ever asked to do

that?

A. I can't speak to that.

That's a sensitive -- that would lead me in a

direction that would be sensitive information. I

can't provide that information.

Q. And for which reason?

A. I can explain to you that as

the GS platoon commander I was responsible for

running the detention transfer facility. The

detainee remained in our custody the entire time,

at least the 96 hours, if not more.

Q. I'm just wondering if you had

any knowledge in any way whether the detainee was


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asked at any time if he or she had concerns or

fears about being abused if transferred.

A. I wasn't privy to that other

than, as previously described, when we were

advising them that they were being transferred or

released.

I should note that even when we

told them they were being released they were

reluctant to leave, and release was us calling them

a cab and releasing them.

Q. No, I understand. I guess if

it got well known in Kandahar that maybe, if

captured, you'd stay in KAF for a month or two,

that might lead some insurgents to surrender more

readily perhaps.

A. I wouldn't even try to

speculate on that.

Q. Or, alternatively, I guess,

if some insurgents became concerned that they would

pass through the hands of the Canadian Forces into

Afghan authorities' hands who would torture them,

that might also present some --

A. Once again, I couldn't

speculate on that.

Q. You spoke about the detainee


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officer. Who was the detainee officer while you

were in theatre?

A. Unfortunately I can't

remember his name.

Q. Okay, that's fine.

Do you have any knowledge; why was

that detainee officer not a military police

officer? Do you know?

A. Once again, I don't know. I

don't know.

Q. The Theatre Standing Orders

that Commission counsel took you to, she took you

to some of the annexes and so forth, but would you

have ever been aware of the Theatre Standing Order

in full?

A. Yes.

Q. Yes?

A. You mean --

Q. Volume 2.

A. You mean TSO-321?

Q. Precisely.

A. Yes.

Q. So you were aware of that?

A. Yes.

Q. You were asked some questions


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about your duties while you were in OMLT.

A. Yes.

Q. And that you were providing

mentoring to Afghan National Army and Afghan

National Police units?

A. Yes.

Q. And you had concerns that

they weren't very professional and were unable to

meet the standards. They simply didn't have the

capacity to meet the standards that a professional

army could provide?

A. Exactly. They were not at

that level.

Q. They were illiterate?

A. During my rotation they were

not at that level.

Q. Right. But basic humane

treatment, that doesn't require literacy, would you

agree with me?

A. No.

Q. Did you ever have concerns

about those units' capacity to provide basic humane

treatment?

A. No, I didn't have concerns

about it. I think it was a point that had to be


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mentored in order to achieve a professional army

standard, but other than an issue of mentoring, no,

I had no concerns.

Q. If you're saying it needed to

be mentored, that means there was a lack of some

kind. Am I wrong?

A. When we talk about

mistreatment or being treated humanely from a

detainee point of view, after being the GS platoon

commander and knowing the process of handling,

searching, securing of a detainee, those are things

that need to be mentored in order that the detainee

be treated properly and be treated humanely. For

instance, if an Afghan police officer or soldier

didn't have handcuffs, what would he or she -- what

would he use. They had a number of -- they had

ropes, lots of things that they could use, but

handcuffs would be the most humane way to treat a

detainee, so that had to be mentored.

Q. So you were mentoring them

more on the nuts and bolts of the process when you

take an individual into custody, that sort of

process?

A. Yes. When I was mentoring a

soldier or police officer, yes.


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Q. But would your mentoring go

further into areas of questioning of a witness --

pardon me, questioning of a detainee or a prisoner

or anything like that?

A. When I dealt with essentially

the officers, yes, those topics would be brought

up; the reason for detaining someone, the process,

what happens after they're brought back to a secure

facility. Those things would be mentored, but

specifically to the officers, or to the commanders.

Q. And what kind of guidance did

you provide in that regard?

A. Just the manner in which or

the reason why someone would be secured and brought

back to a secure facility, explaining what the

reason for that is and its importance overall to

the mission.

It should be noted that we had to

explain to the Afghan personnel the concept of

conducting a mission and the purposes of a mission.

So in that respect handling a detainee was just one

part of successfully completing a mission.

Q. And did you believe they had

the sort of level of knowledge and willingness that

they couldn't beat an individual in their custody?


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A. I'm sorry?

Q. The people that you were --

the units that you were mentoring, do you think

that those individuals were aware that they

shouldn't beat people in their custody?

A. Yes, we mentored that.

Q. Did it seem to some of them

like a surprise that a person in authority can't

beat someone in their custody?

A. In my opinion it was a

different process. When you look at the entire

process, it was different than what they were aware

of. The process of holding someone in order to get

information or get them off the battlefield was

almost an unknown concept to them. I think they

had a different concept of what you do. None of

them, as far as I was concerned, were soldiers --

particularly the police -- were soldiers and were

aware of the process of, once you conduct a

mission, what's the responsibility after the

mission is completed. So, no, I wouldn't say that

they were surprised; I think it was just learning.

Q. You would have dealt with

some higher level people who might have had some

background or experience?


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A. Yes.

Q. And would some of them ever

express to you, well, look, this is part of our

culture, if I get someone in our custody this is

what we do?

A. Some of the higher ranking

older commanders made it clear that this is not

what they used to do, and they alluded to certain

previous governments that were in the country.

Q. When you say this is not what

they used to do, would "this" be treating someone

humanely is not what they used to do?

A. The type of war that we were

fighting, the type of war that they were fighting

with us, was not what they used to do.

Q. Keeping prisoners at all?

A. I mean more in the sense of

the type of war that they were fighting. We as a

professional army were mentoring them on

professional tactics in war.

Q. Right.

A. Previous to Canadians --

previous to us being there, most of them that were

older fighters fought a different type of war

previously.


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Q. And what did you understand

that to mean?

A. In general terms, an

insurgency as opposed to counter-insurgency

operations.

Q. Well, getting back to the

original question I had on that, did any of them

ever express to you that humane treatment of a

prisoner was generally not something they used to

do?

A. No. No one specifically

addressed that to me.

Q. Not specifically. Not in an

indirect way or anything like that?

A. No, other than the fact that

they fought an insurgency in the past and now we

were fighting counter-insurgency.

Q. And when they expressed to

you that they fought an insurgency in the past, did

they ever give you any indication of what -- and

I'm talking about older officers now -- any

indication of what they would do with prisoners in

the past?

A. The dealings I had with some

of the older officers, they wouldn't specifically


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tell me what they had done, but they would talk

about how they fought an insurgency.

Q. I guess what I'm trying to

get at, Captain, I apologize; when you were

deployed, you obviously were aware Afghanistan is a

developing country. It's a country that hasn't

been able to meet human rights standards for a long

time. That was your general understanding?

A. Yes.

Q. And the fact that prisoners

might be abused in officials' custody, that

wouldn't be an entire surprise?

A. No, it would not be.

Q. So it's that kind of issue

that I'm looking at. It's my understanding that

that's part of the lack that Afghanistan had that

Canada and other allies are trying to assist, so I

was just trying to probe you about what specific

knowledge did you ever have about those

inadequacies, shall we say, or deficiencies in

Afghan authorities. Is there any direct

information that you might have had about that?

A. I would say no; direct

information, no. If you're speaking to the

personnel involved directly, no.


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Q. You were asked a bit about

whether you were aware a little bit of the

controversy, I guess, before you went into theatre.

A. Yes.

Q. About detainee handling. You

were aware of it?

A. Yes.

Q. And you were aware that there

was allegations that some detainees had been abused

in Afghan custody?

A. Yes, I was aware of that.

Q. And did you ever get any

indication from others whom you served with whether

those allegations were credible or not credible?

I'm not talking formal discussions because I

appreciate at your level that wouldn't have been

something that would come up necessarily, but

surely it's a topic of discussion at times in the

lunch tent or whatever?

A. I would say in general terms

the allegations were discussed previous to

deployment and while we were working as the GS

platoon. The allegations certainly came up in

conversation, but whether or not there was any

evidence, whether or not there was any proof,


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certainly not that I was privy to. Everything I

had heard was either gossip or speculation.

Q. Right. And that's kind of

what I'm wondering. What was the general sense of

people whom you served with; that there was really

anything to it or it was just a bunch of busy

bodies raising non-issues?

A. My general sense with the

people that I served with was, yeah, those

allegations, that they occurred and we're doing the

best we can to not have them happen in our custody.

That was the concern, that we didn't want to be

involved in mistreating detainees.

Q. Right. We're not talking

here, though, about allegations that Canadian

Forces are mistreating detainees directly; it's

about Afghan authorities mistreating detainees and

Canadian Forces delivering those detainees to the

Afghan authorities. What could you do to prevent

Afghan authorities from abusing detainees? There

was nothing that you could do in your role, was

there?

A. Me personally?

Q. Yeah.

A. No.


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Q. Because you had indicated

that Major Gribble, he would have these lectures

with you saying we're going to ensure that this

doesn't happen on our roto.

A. Yes, he talked to us.

Q. And did he give any

indication of how he or you --

A. Training and awareness were

his concerns, that we were properly trained and we

were aware of the situation.

Q. So, in terms of being aware

of the situation, would that not include being

aware of the details of what some those allegations

were?

A. Maybe at his level. I can

only speculate. At my level and what was

disseminated to myself and my troops it was more a

matter of, these are the allegations that are out

there, accept that it happens and now what do we do

about it to mitigate any discussion of Canadians

mistreating. The concern really was about

Canadians mistreating detainees, from our point of

view.

MR. CHAMP: I'll just be a moment.

BY MR. CHAMP:


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Q. Just a couple more questions,

Captain, and I'll be done. Thanks.

One was you indicated that at the

meeting that would occur at the time of transfer

the NDS would come in, the TFPM would come down

sometimes, the political adviser would be there.

You indicated that sometimes the political adviser

would not be there. Would there be someone who

would replace him?

A. Yes.

Q. Who would that usually be?

A. Either the detaining officer

or there was another person that I just took as

another representative to work with the POLAD.

Q. And you explained, or said,

that the political adviser at the time of transfer

would read part of the agreement, or all of the

agreement?

A. Yes.

Q. And what was the purpose of

that, to your understanding?

A. To make the detainee aware of

the transfer and the reason for the transfer as

well as the process that they were going through.

Q. And that they were to be


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protected from inhumane treatment; that was part of

it?

A. Absolutely.

Q. When the political adviser

wasn't there someone else would do it in that

person's stead?

A. Yes. It was always read.

The detainee was always made aware of that.

Q. And during your rotation did

you ever hear any allegations that detainees had

been abused post transfer, during your rotation?

A. No.

Q. You talked about an

investigation of an allegation of mistreatment, but

that wasn't concerning Afghan authorities?

A. No, it wasn't.

Q. That's fine. That's all I

need to know on that one.

And were transfers suspended at

any time during your rotation?

A. Just at the beginning.

MR. CHAMP: Thank you very much,

Captain Naipaul, for coming and answering my

questions.

THE CHAIR: Mr. Wallace, are you


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going to have any questions?

MR. WALLACE: Yes, I'm going to

have a few; not very long. If you're watching the

clock, I'll probably be five minutes.

THE CHAIR: And Mr. Prefontaine or

Ms. Richards?

MS. RICHARDS: I don't anticipate

anything right now, subject to what Mr. Wallace

asks.

THE CHAIR: Mr. Lunau?

MR. LUNAU: No, we have no further

questions.

THE CHAIR: Why don't we continue

on with Mr. Wallace, if we can, then we're able to

finish with the witness and allow him to proceed.

CROSS-EXAMINATION BY MR. WALLACE:

Q. Captain, my name is Mark

Wallace. My client is the former Canadian Forces

provost marshal, Captain Moore, who was the provost

marshal for the forces when you were serving in

Afghanistan. I just have a couple of rather

general questions for you.

When you were serving in your

capacity in the transfer facility, you reported to

Major Gribble, correct?


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A. Yes.

Q. And he was the task force

provost marshal, correct?

A. Yes.

Q. And he in turn reported to

the task force commander, correct?

A. Yes.

Q. And both the two of you were

subject to the military chain of command, correct?

A. Correct.

Q. Now, the National

Investigation Service, the NIS, they were also

military police officers, correct?

A. Yes.

Q. However, they had a different

chain of command than the one that you were subject

to, correct?

A. Yes.

Q. And part of their -- well,

the significant portion of their mandate was to

investigate allegations of a serious and/or

sensitive nature, correct?

A. Yes.

Q. And in the context of the

Afghan theatre, detainee mistreatment would be


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covered by both descriptive, serious and/or

sensitive, correct?

A. Yes, I would say so.

Q. And as you've told us, as you

saw it, if you became aware of any concerns of

detainee abuse by anyone, your obligation, as you

saw it, was to report that to the NIS, correct?

A. My obligation was to report

it to my chain of command. Part of that

expectation would be to also, out of courtesy,

report it to the NIS, but it would be the task

force provost marshal who would officially commence

an investigation through the NIS.

Q. And your notification to the

NIS would have been, I guess more colloquially,

along the lines of a heads up; here's what's coming

down the pipe?

A. Yes.

Q. And I think you made it quite

clear that your boss, Major Gribble, was acutely

aware of the obligations to ensure the humane

treatment of the detainees?

A. Yes.

Q. And there's no doubt in your

mind that, if you had made any report to him, that


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he would have in fact passed that report on to the

NIS?

A. There's no doubt in my mind.

Q. And during your time in

theatre, at no time did you make such a report to

Major Gribble, correct?

A. No.

Q. Nor obviously give the NIS a

heads up?

A. With regards to --?

Q. Detainee abuse.

A. Post transfer?

Q. Correct.

A. No.

MR. WALLACE: Those are my

questions. Thank you.


Any questions, Ms. Richards?

MS. RICHARDS: No. Thank you.

THE CHAIR: Mr. Lunau, as you

said, you had none.

MR. LUNAU: No.

THE CHAIR: I want to thank you

for your testimony today. Congratulations on your

retirement. I don't know if you're still working


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or retired, but enjoy. Thank you for your

forthright testimony.

Mr. Berlinquette, anything?

MR. BERLINQUETTE: No.

THE CHAIR: We'll break until 20

to 11:00. Will our next witness be ready at that

time?

MS. RICHARDS: We had made

arrangements with Commission counsel to have the

next witness come at 11:00. We've called him and

asked him to come sooner, so I don't know if he'll

be here by 20 to, but we'll do our best to get him

here.

THE CHAIR: We'll break until

quarter to, and if the witness is not here we'll

break until such time as you tell me we're ready to

go. Thank you.

--- Upon recessing at 10:23 a.m.

--- Upon resuming at 10:50 a.m.

THE CHAIR: Mr. McGarvey.

MR. McGARVEY: Good morning

members of the panel. My name is Matthew McGarvey

for anybody who has not yet seen me in these

proceedings.

The next witness this morning is


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Warrant Officer Steeve Chamberland. Perhaps I

could just advise you that the bulk, if not the

entirety, of references to documents from Warrant

Officer Chamberland will to be what are called the

NIS witness documents, two volumes.

SWORN: WARRANT OFFICER STEEVE CHAMBERLAND

THE CHAIR: I understand the

witness has been sworn.

MR. McGARVEY: Yes.

CROSS-EXAMINATION BY MR. McGARVEY:

Q. Good morning, Warrant

Officer. Thank you for coming a bit early this

Documents

Hearing Transcript - April 8 2010