Law Times

Law Times • December 7, 2009 NEWS PAGE 3 Lawyers in Colvin affair battle over alleged conflict BY TIM NAUMETZ For Law Times OTTAWA — A pitched legal battle over the Justice Depart- ment's role in an inquiry into the treatment of Canada's detainees in Kandahar has been wag- ing behind the daily headlines about potential prisoner abuse by Afghan security police. Th e little-noticed legal fi ght is taking place at the Military Police Complaints Commis- sion, which since February 2007 has been attempting to investigate allegations Canadi- an troops transferred detainees to Afghans even though they faced the risk of torture. Repeated eff orts by Prime Minister Stephen Harper's government to deny the com- mission access to witnesses and documentary information, including the use of Canada Evidence Act threats against the key witness, eventually led to the ongoing and separate House of Commons inquiry by a special committee of MPs looking into Canada's role in the Afghanistan war. Th ough the detainee con- troversy has garnered headlines and led to several Federal Court hearings and rulings, the deter- mined tactics being used by the lead Justice Department lawyer at the commission recently came under attack, documents show. Th e independent lawyer for diplomatic offi cer Richard Col- vin, who testifi ed in Parliament that the government covered up his reports of torture, claims Justice Department lawyer Alain Préfontaine misled the inquiry and was in a confl ict of interest in his relations with witnesses and military police subjects of the inquiry as well as in his role with the government. Préfontaine dismisses the ac- cusations and, in a submission to the commission, argues a letter Colvin lawyer Lori Bokenfohr is attempting to fi le to register com- plaints about his advice to wit- nesses violates the solicitor-client privilege he shares with public ser- vice offi cials, the military police, and the government of Canada. None of the allegations contained in Bokenfohr's letter have been proven before the commission. Th e dispute is so sensitive and far-reaching that a lawyer who teaches at the University of Ot- tawa says he doesn't even want to appear in a Law Times story about the standoff . Interviews with three of the lawyers involved reveal deeply held convictions not only on the issue of the alleged confl ict of in- terest but also a shared view that the federal government has been attempting to stonewall the in- quiry from day one. "It's argument on argu- ment on argument," says Paul Champ, the lawyer representing Amnesty International Canada and the British Columbia Civil Liberties Association, whose complaint about the possible torture of detainees transferred by Canadian troops sparked CORRY_Mutual Gains Bargaining (LT 1-3x4).indd 1 the original investigation. Bokenfohr tells Law Times she can't comment on her complaint, the contents of which were included in an October letter to Préfontaine's letter would violate solicitor- client privilege. But in an in- terview, Champ explains the is- sue at hand: "Th e same Justice lawyers were representing the subjects of the complaint, they have independent counsel if there is a confl ict between the "Crown and the Crown ser- vant," something the Treasury Board of Canada must ap- prove. Th at approval involves Counsel from the Department of Justice will provide representation to Crown servants summonsed to testify before courts or tribunals about matters arising in the course of their employment. attention at the Justice De- partment. Préfontaine responded to brief questions over the phone, saying Bokenfohr's letter "cites or purports to cite large por- tions of a letter I sent to my clients, which at that time in- cluded Mr. Colvin. Th erefore, disclosing the letter would waive the privilege for the 28 other recipients of the letter." Bokenfohr's letter deals with Préfontaine's advice to his cli- ents regarding the commission counsel proceedings. It also claims he went on to mislead the commission about the cli- ents' participation in them. Law Times isn't publishing the specifi cs of the allegations giv- en Préfontaine's assertion that to reveal the contents of his were also seeking to represent the various witnesses called to testify, and they were also rep- resenting the government of Canada writ large with respect to the issue of disclosure of documents." Préfontaine's submission to the commission opposing the acceptance of Bokenfohr's let- ter argues Justice Department counsel represent "the federal government and all its institu- tions in all forms of litigation" as a condition of employment and that "counsel from the Department of Justice will pro- vide representation to Crown servants summonsed to tes- tify before courts or tribunals about matters arising in the course of their employment." Government employees can Marketplace SERVICES AVAILABLE PCLaw Bookkeeping services for the downtown Toronto area. Two ½ days or a single full day per week are available. Please call Rachel Nadler at Ruby & Shiller. 416-964-9664 To advertise call 905-841-6481 ntitled-4 1 Negotiation: The Art of Mutual Gains Bargaining Second Edition 12/1/09 11:16:47 AM a review of the application for independent counsel by Justice Department lawyers. But Champ and other law- yers argue Préfontaine's argu- ment misses the point about confl icts of interest given that law society rules and prec- edents prohibit counsel from concurrently representing cli- ents whose interests clash. In the case of the matter in- volving Colvin, the witnesses, the military police, and the government, the issue stands out like a sore thumb, lawyers say. For his part, Champ argues the commission has a duty to hear the allegations. "A failure to do so would seriously erode public faith in this commis- sion and in the justice system," his submission to the commis- sion says. LT Achieve mutual gains bargaining success in any negotiation setting Fully revised and updated to reflect recent labour negotiations, developments in negotiation and conflict management research No other book focuses on the negotiation aspect of collective bargaining from a co-operative mutual-gains perspective. 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