Law Times

Law TiMes • May 3, 2010 NEWS PAGE 3 'Good and ready' line part of adversarial system: lawyer Controversy over legal obligations envelops military inquiry and Parliament BY TIM NAUMETZ For Law Times O TTAWA — Th e Jus- tice Department lawyer representing the govern- ment and military police offi cers at an inquiry into prisoner trans- fers says the kind of confronta- tion he recently had during the proceedings is part of the "nature" of the adversarial court system. But the past chairman of the inquiry by the Military Police Complaints Commission chal- lenges that view and says the recent comments by Justice Department lawyer Alain Pré- fontaine refl ect the combative attitude the Conservative govern- ment has taken during the probe into allegations detainees may have been tortured after Cana- dian military police transferred them to Afghan authorities. Th e confrontational atmo- sphere at the hearings in Ottawa centres on attempts by the com- mission to obtain classifi ed doc- uments it argues could be cru- cial as it tries to judge the military's actions in the detainee controversy. But in the buildup to a recent outburst by Préfontaine — dur- ing which he told chairman Glenn Stannard the commission would get the documents "when they are good and ready" — commission counsel Ron Lunau called the back and forth with Préfontaine a "game of peeka- boo" because of the government's insistence the commission must show why it requires the docu- ments before it can see them. Th is portion of the battle be- tween Préfontaine and the com- mission panel, which includes former RCMP deputy commis- sioner Roy Berlinquette, revolved around a Federal Court ruling last September that limited the inquiry to events, information, and dates that directly concern only military police and the original complaint the commission is hearing. Th e government obtained the ruling as it fought to keep the commission from widening its probe. Préfontaine wants the com- mission to demonstrate why it needs the documents, but the Madsen_Military Law (LT 1-3x4).indd 1 May web specials government won't allow the commission to view them in order to argue their relevance. "We are being asked to talk about the relevance of documents that we have no opportunity to look at," argued Lunau, retained by the commission from Gowling Laf- leur Henderson LLP in Ottawa. As the confrontation contin- ued, Stannard said: "I don't really need a lecture on litigation, but what I do need is an answer relative to documentation production." At one point, Préfontaine re- sponded by telling Stannard "the documents will be given to your counsel when they are good and ready." Th at part of the exchange made national headlines, but Préfon- taine tells Law Times the events were normal for a courtroom. "I'll let you draw your own conclusion whether there are tense moments [at the inquiry]," he says. "It's obvious that there are questions that are asked and answers given, and whether the answers please is for you to decide. You draw your own conclusion. But in the normal course of litiga- tion, there will be moments when people will agree to disagree. Th at's the nature of an adversary process like a commission of inquiry." But lawyer Peter Tinsley, a former chairman of the commis- sion, says Préfontaine was wrong to compare a board of inquiry to the adversarial nature of criminal or civil litigation. "Unfortunately, that refl ects part of the thinking on the part of the government. Th is is not sup- posed to be an adversarial process. It's supposed to be an inquiry- based system, fact fi nding." In light of House of Commons Speaker Peter Milliken's ruling that MPs have a right to order the gov- ernment to produce uncensored versions of the same documents, Tinsley says the government's re- fusal to provide them to the com- mission is groundless. He notes he argued at the out- set of the hearings that he had a top-secret security rating with the government; that Berlinquette had a secret security rating; that Lunau and other lawyers had se- curity clearance; that a security- classifi ed computer system was installed; and that Gowlings even dedicated a room at its downtown Ottawa offi ces to provide Lunau with a secure space to work. "Arrangements can be made — it can be awkward and it's cumber- some — but it can be done [such that] the information which is sought, to be protected legitimate- ly, is not released in a fashion that violates the government's security policy and national interest." As politicians now attempt to hammer out a secrecy system to resolve the parliamentary dead- lock, similar problems may occur. "Whatever conditions are agreed to, a question I would have for you, and I don't have the answer, is who is going to enforce those conditions?" Préfontaine asks. "I give an undertaking to the court, then obviously I'm accountable for the discharge of my under- taking both to the court and to the law society. If a member of Parliament undertakes to protect public information but wants to make the information public, who does he go to and can he be relieved, and how, of his under- taking or oath?" LT Military Law and Operations Ensure you have all the legal information you need when working with the Canadian military Military Law and Operations is the first looseleaf publication to examine Canadian military law and operations, and the legal issues of the soldier from a Canadian perspective. This resource fills the need for a single source of information where you can readily access information on defence, armed forces and military law, as well as the legal dimensions of operations. Find detailed discussion on topics such as: • • legislative and civilian control over armed forces courts martial • domestic operations • UN operations • rules of engagement • war crimes • the historical background to Canadian military law ORDER your copy today Looseleaf & binders (2) • $232 Releases invoiced separately (1-2/yr) P/C 0266030000 • ISSN 1918-2236 Organized for easy reference, Military Law and Operations includes Appendices containing key statutes and case law summaries as well as comprehensive lists of recent courts martial and appeal cases summarized to provide quick access to charge and sentencing information. Military Law and Operations is an indispensable resource for lawyers, military professionals and academics in Canada and the United States. For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0503 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. 4/30/10 9:08:59 AM The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases Product Liability: Canadian Law and Practice Addressing the Jury: Achieving Fair Verdicts in Personal Injury Cases, Second Edition The Personal Injury Lawsuit: DVD and Workbook for the Plaintiff Client For a 30-day, no-risk evaluation call: 1.800.565.6967 CA082 CA082 (LT 1-4x5).indd 1 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com 4/28/10 1:51:22 PM Dr. Chris Madsen Professor, Royal Military College of Canada and Canadian Forces College Script by: Derek Lundy and Christoper Burke Roger G. Oatley Lawrence G. Theall, J. Scott Maidment, T eresa M. Dufort and Jeffrey A. Brown Roger G. Oatley and contributing authors , John McLeish

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