In 2007, allegations surfaced of Canadian forces transferring Afghan detainees to local authorities despite the risk of torture, events that became known as the Afghan detainee scandal. As chair of the Military Police Complaints Commission (MPCC), Peter Tinsley launched investigations into the controversy. In 2009 the Harper government, after proroguing Parliament to stop further inquiries, and after launching unsuccessful court actions to block investigations and the testimony of diplomat Richard Colvin, decided not to renew Tinsley’s appointment to the MPCC.
In 1998, the Government of Canada created the MPCC to provide independent civilian oversight of Canada’s military police. The MPCC’s role was "to provide for greater public accountability by the military police and the chain of command in relation to military police investigations." Peter Tinsley was appointed chairperson of the MPCC in December 2005.
Afghan detainee scandal begins
In early 2007, a public controversy erupted when the Canadian military was alleged to have transferred Afghan prisoners to Afghan authorities, despite knowing that the prisoners would be tortured. This became known as the Afghan detainee scandal.
Amir Attaran, a law professor at the University of Ottawa, sent a letter to Tinsley, claiming that he had seen government documents showing the government knew Afghan prisoners were in fact being tortured and that Canadian troops had violated the Geneva Conventions.
Amnesty International Canada and the British Columbia Civil Liberties Association submitted a separate joint complaint to the MPCC, requesting a judicial review of the military’s policy of detainee transfers. The complaint was based on the Afghan Independent Human Rights Commission’s findings of detainee abuse, which stated that a third of prisoners handed over by Canadians were abused.
Over the following two years, three attempts were made to get to the bottom of the Afghan detainee scandal. The Harper government did not make these attempts easy for the MPCC, for Parliament, or for witnesses who were called to tell the public what they knew.
Attempt #1: The MPCC launches an investigation
Peter Tinsley’s MPCC launched an investigation in February 2007. The government was slow to respond to the MPCC’s initiatives. It refused to release uncensored versions of hundreds of pages of documents. Many of the pages that the government did release were so heavily redacted as to be unreadable, and some pages were entirely blacked out.
In its investigation, the MPCC subpoenaed former commanders of Canadian troops in Kandahar, as well as a Deputy Minister, four employees of Foreign Affairs and the head of the federal Correctional Service. And it asked for a court order to force the release of federal information concerning transfer of suspected Taliban fighters. But in April 2008, the government brought a suit to the Federal Court of Canada to halt the investigation, alleging that the MPCC had overreached its jurisdiction. It would take a year before a decision was reached on the matter.
In September 2009, the Federal Court ruled that the investigation could not delve into federal policies or the conduct of the military at large, but was restricted to looking at policing. Consequently, the MPCC couldn't examine whether departments such as Foreign Affairs knew about the transfers of Afghan prisoners.
However, the Court said the MPCC did have jurisdiction to investigate whether the Candian military had “failed to investigate” what was happening to Afghan prisoners appropriately, and whether Military Police personnel “knew or had the means of knowing” about the matter. On this legal basis, the MPCC’S investigation went forward.
Attempt #2: Parliamentary hearings
In 2009, while the MPCC was trying to investigate the Afghan detainee scandal, Parliamentary hearings were also convened on the matter. However, they closed after Conservative members of Parliament boycotted the panel.
Attempt #3: The MPCC holds public hearings
While waiting for the Federal Court’s decision on its investigation, the MPCC initiated a third attempt to get to the bottom of the Afghan detainee scandal: public hearings.
The MPCC subpoenaed 22 public servants to testify at the public hearings. However in July 2009, according to the lawyer for Canadian diplomat Richard Colvin, lawyers for the Department of Justice sent letters to potential witnesses. After that, of the 22 public servants asked to testify, only Colvin was willing to come forward.
Colvin testified that the Canadian military knowingly delivered Afghan detainees to torture. He added that the Red Cross tried to warn Ottawa about abuse as early as 2006, but those warnings were ignored.
Colvin’s testimony contradicted the government’s repeated denials of having any knowledge of prisoner torture. The government responded by attacking Colvin, calling his testimony mere hearsay and Taliban lies.
Harper prorogues Parliament and reduces scrutiny
In December 2009, while the Afghan detainee controversy raged, and the MPCC and the Canadian public tried to understand just what had happened and who was responsible, Prime Minister Harper prorogued Parliament, thereby halting the MPCC’s investigation altogether.
The prorogation became a national scandal in itself. Even conservative commentators and international publications called the move a disgrace to Canadian democracy. Prorogation effectively reduced the extent of public and media scrutiny over the Afghan detainee scandal.
Tinsley not renewed
Tinsley’s tenure as Chair of the MPCC came to an end on December 11, 2009. The Harper government had decided not to renew him for another term. Tinsley stated that his non-renewal was unprecedented, because it was customary to grant an extension to the position if an investigation was ongoing.
Tinsley believed his departure would “chill” other independent watchdogs, whose chairs are appointed by the government. He feared these watchdogs may end up being controlled by the governments they are meant to monitor.
Tinsley has suggested that his removal from the commission is part of a broader pattern with the Conservative government of silencing dissent, citing the government’s refusal to renew Paul Kennedy as chair of the Commission for Public Complaints against the RCMP in 2009, and the firing in 2008 of the head of Canada’s nuclear oversight agency, Linda Keen. “The perception has become widespread that something is not quite right in the system,” Tinsley told the Globe and Mail.
The government replaced Peter Tinsley in February 2010 with former Windsor police chief, Glenn Stannard.
Torture confirmed but questions remain
Canadian combat forces left Afghanistan in July 2011.
In October 2011, the United Nations reported routine torture of detainees in Afghanistan by local authorities. Canada was reported to have ceased transfers to suspect facilities in Kabul after widespread allegations of prisoner abuse, but continued to transfer to Kandahar’s MoJ Sarapoza prison.
An internal CSIS report cleared its officers of any wrongdoing in interrogating Afghan detainees, though the committee that monitors CSIS reported that “the Afghan detainee experience provided opportunities for CSIS to enhance its approach to managing operations overseas.”
The potential knowledge or involvement of various federal officials and members of the Harper government in the Afghan detainee scandal has still not been fully addressed. International Criminal Court prosecutor Luis Moreno-Ocampo said his office may launch a formal investigation into the treatment of Afghan detainees, which would include an investigation into Canada’s role.
The MPCC’s final report on the Afghan detainee scandal has as yet to be released.
- December 2005: Peter Tinsley is appointed Chairperson of the MPCC.
- February 2007: The MPCC launches investigations into whether Afghan detainee handovers violate international law under the Geneva Conventions.
- July 2009: The Harper government is accused of abusing Section 38 of the Canada Evidence Act, amended by the Anti-Terrorism Act, which gives the government power to block testimony for reasons of ‘national security’.
- 2007-2009: The Harper government stalls the MPCC investigation and denies access to detainee transfer details. Documents are delayed and then censored. The Federal Court is asked to put the MPCC’s public hearings on hold. The Court permits only the policing aspect of the investigation to proceed.
- September 16, 2009: The Federal Court restricts the MPCC’s investigation to the question of whether the military failed to investigate adequately the potential torture of Afghan prisoners.
- November 2009: Diplomat Richard Colvin testifies that the Canadian military knowingly delivered Afghan detainees to torture and that the Harper government ignored Red Cross warnings about abuse from as early as 2006. The government responds by attacking Colvin’s credibility.
- December 2009: The MPCC issues directions under the Afghanistan Public Interest Hearings Rules to address document production issues and allow substantive hearings to begin.
- December 11, 2009: Peter Tinsley’s mandate is not renewed.
- December 30, 2009: Prime Minister Harper prorogues Parliament, effectively reducing discussion of the controversy.
- September 2011: The Harper government’s three 2010 motions to the Federal Court seeking to limit the scope of the MPCC’s investigation are rejected.
Role or Position
Peter Tinsley was appointed by the Liberal government to a four-year term as chairperson of the Military Police Complaints Commission (MPCC) in December 2005. The MPCC is an independent body set up after the torture and abuse of a Somali teenager by Canadian soldiers in 1993. Before heading to the MPCC, Mr. Tinsley helped the UN investigate and prosecute war crimes in Kosovo and worked as an International Prosecutor for war crimes in Bosnia and Herzegovina.
Implications and Consequences
- Transparency: The Harper government’s efforts to delay and derail Peter Tinsley’s investigation, including its decision not to renew him in the middle of the investigation, are incompatible with the principles of transparency and accountability in government. A responsible government remains transparent, facilitates investigations into wrongdoing, admits its mistakes, and respects the vital role of watchdogs who are doing their jobs in the public interest.
- Free speech: The Harper government’s intimidation of witnesses and belittling of testimony by high-ranking officials such as Richard Colvin breaches the fundamental right of free speech and demeans the good faith of public servants. It also contributes to a chill factor in which other civil servants fear doing their jobs and coming forward with important information.
- Democracy: The Harper government’s removal of yet another civil servant for stating an opinion that the government wants repressed contributes to a dangerous trend, in which advocacy and dissent are stifled, and democracy suffers. A government that respects democracy is a government that honours the role of civil servants, respects the organizations that hold it to account, and acts according to the principles of honesty, accountability, and good faith.
Photo: The Equivocator