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Law Times • November 30, 2009 COMMENT Attempts to obstruct Colvin fail as story comes out B ad things happen to politicians who don't give their senior public servants the lawyer they want. When career diplo- mat Richard Colvin was called to testify before the Military Police Complaints Com- mission about torture in Afghanistan, he wanted his own independent lawyer to represent him, not somebody from the Justice Department. The government said no. So when Col- vin started talking about testifying on his own, Prime Minister Stephen Harper said he could be in violation of the Official Se- crets Act, which upon conviction carries a prison term of up to five years. With no star witness, commissioner Peter Tinsley shut down the inquiry. Harper's bully tactics had succeeded. Well, not quite. Don't fool around with the men in striped pants at Foreign Affairs. They've been at the game a lot longer than the poli- ticians have. So Colvin went over to a parliamentary committee with the story he would have told to the commission. With his career potentially in ruins, he had nothing to lose. There's nothing worse than that in politics. Colvin's testimony was shocking, dam- aging, and almost incredible as he brought allegations of Canadian politicians and gen- erals closing their eyes to torture in Afghani- stan. It made news around the world. The Harper government then fell back upon an inept strategy. Defence Minister Peter MacKay was sent out to brand Colvin's allegations of torture as false. Colvin was "a dupe" of the Taliban, he said. So why had the Harper government ap- pointed Colvin our intelligence chief at the Canadian Embassy in Washington? Would Americans relish sharing intelligence with a Taliban "dupe?" Three generals were trotted out last Wednesday to refute Colvin before a Commons committee: retired general Rick Hillier, former chief of the defence staff; retired general Michel Gauthier, who ran the Afghanistan show from Ottawa; and Maj.-Gen. David Fraser, who was on the ground over there. The generals were extremely insulted by what Colvin had said about their allegedly sloppy transfer of prisoners to Afghan jail guards and the apparent lack of followup as required by international law. That explains the virulence with which they shot back insults at Colvin. He had hurt their pride and forced them to rethink whether they had been negligent, as Hillier eloquently put it. They hammered Colvin. There was no torture in Afghanistan on their watch, they said. Nothing of what Colvin said was true. They had done their duty. They ex- uded credibility. Perhaps the Colvin reports do clear the generals, but what if they leave Harper and MacKay vulnerable to an investigation for war crimes violations for allegedly ignoring reports of torture in Afghanistan between May 2006 and October 2007? Gauthier said something rather telling during his testimony. The generals had read the requirements under international law. Gauthier was adamant that "we have understood our legal liability." International law holds the Harper government, not the Canadian military, responsible for setting policy in Afghanistan. prisoner-transfer The Hill By Richard Cleroux Was the general trying to tell us that others might not have understood their own legal liability? It was particularly strange that the gener- als made no effort to defend Harper and MacKay in their com- ments. They protected their backsides. Gauthier, in fact, openly defied Harp- er and MacKay. He said he "sincerely" hopes the Colvin documents are made available "soon" so that people can see for themselves how our generals weren't to blame and didn't ignore warnings of torture in Afghan prisons. Harper would rather swallow a bag of rusty nails than release the Colvin docu- ments. In the end, he may be forced to re- lease a version of sorts. If it is so redacted as to be virtually meaningless, it will bring on more public criticism. The usual approach for Harper on ma- jor scandals of this kind is to use the 3-D strategy: discredit, deflect, and dissipate. Discrediting went over well at the start. MacKay clobbered Colvin in the Com- mons. The polls showed a majority be- lieved Harper rather than the diplomat. Deflecting isn't going as well because the generals protected themselves without exonerating Harper. Harper made it worse by speaking on the issue himself in the Commons. That's called choosing to wear the scandal around your neck. Maybe Harper had to come to Mac- Kay's rescue. Maybe MacKay was set up from the start. Dissipate? This could be the scandal that never dies. With 76 copies of the Colvin memos floating around Ottawa, it's only a mat- ter of time before the leaks begin. Seventy-six e-mails of 16 reports aren't a secret; they're a broadcast. The leaks have already started. There was Alex Neve, secretary general of Am- nesty International Canada, standing up at a news conference and waving around a CD containing backup information for the Colvin reports. It's too late now to send somebody over to rip it out of Neve's hands. The Harper government has threatened anyone who leaks the Colvin memos with prosecution under the Official Secrets Act. But jailing the head of Amnesty Inter- national? That's out of the question. The CBC has the report of a Cana- dian torture inspector who interviewed prisoners in the Sarpoza jail in Kandahar that backs up Colvin. It's an interesting development given MacKay's claim that there was no independent confirmation of those allegations. There are still those non-governmental organizations that spoke to Colvin, the findings of the Afghanistan Independent Human Rights Commission, critical doc- uments from the Red Cross, and various Dutch and British warnings to Canada. There is a letter circulating that was sent to the Harper government detailing how the Dutch thought our military was doing such a sloppy job of transferring detainees with- out proper followup that they proposed to set up a joint prison facility run by their troops. The defence minister at the time, Gordon O'Connor, never followed up. Obviously, trying to prevent Colvin from getting his own lawyer didn't work. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. PAGE 7 Bill 212 introduces significant reform to charities regulation BY TERRANCE CARTER For Law Times O n Oct. 27, Attorney Gener- al Chris Bentley introduced bill 212, the good govern- ment act. If it passes, it will mean sig- nificant reform to the regulation of charities in Ontario by overcoming limitations that have plagued them for decades. Most of these changes are a direct result of a push by the Ontario Bar Association's charity and not- for-profit law sec- tion for reform in this area. One of the more noticeable changes included in bill 212 is the proposed re- peal of the Charitable Gifts Act. That law was originally enacted in 1949 to ensure that charitable organizations didn't carry on businesses themselves as well as to discourage placing charitable funds at risk in capital markets. Al- though not well known to those who practise outside the realm of charities, the act has long been the subject of criticism for unnecessarily limiting the ability of such organizations to own an interest in a business. Currently, where a charity in Ontario owns more than a 10-per-cent interest in a business for longer than seven years, the act requires it to dispose of its holding. In addi- tion, where a charity owns more than a 50-per-cent interest, it must file an- nual financial statements for the busi- ness with the Ontario Public Guardian and Trustee by March 31 of each year. As well, the organization and the pub- lic guardian must jointly determine the amount of profits to distribute from the business by June 30 of each year. The act also poorly defines what con- stitutes an interest in a business with little assistance from case law or com- mentary on what it actually means. These barriers have meant that charities in Ontario receiving an in- terest in, or wishing to acquire an interest in a business, have had to use complicated organizational structures, such as for-profit corporations, non- profit organizations or business trusts, to act as intermediaries in order to work around the restrictions. No other prov- ince in Canada has legislation similar to the Charitable Gifts Act, and since the Income Tax Act already imposes re- strictions on registered charities' ability to conduct business activities, the pro- visions of Ontario's act are both redun- dant and unnecessarily restrictive. As such, the repeal of the legislation will be a welcome relief for charities. Bill 212 also proposes important changes to the Charities Accounting Act. Currently, s. 8(1) restricts owner- ship of real estate by requiring that a charity that holds land for charitable ends can only do so for the purpose of its actual use or occupation for that charitable purpose. A charity that has held land for more than three years and during that time hasn't used or occupied it for the charitable purpose nor is likely to do so in the immedi- ate future faces the prospect of having the public guardian vest that property in itself in order to sell it and use the proceeds for the organization's chari- table purposes. Bill 212 proposes to www.lawtimesnews.com Speaker's Corner repeal s. 8 and replace it with a far simpler provision that states only that a person who holds an interest in real or personal property for a charitable purpose must use it as intended. The new language of s. 8 would satisfy the Ministry of the Attorney General's goal of ensuring that chari- ties use property for its stated purpose while at the same time allowing them more flexibility to earn income from it. As long as the charity's investments comply with the prudent investor standards under the Trustee Act, the organiza- tion will be able to hold land or other assets, such as mutual funds, for any length of time provided that it use them for their charitable pur- poses. Therefore, holding land for a charity would no longer be any dif- ferent from holding any other type of investment. Other proposed reforms to the Charities Accounting Act, specifically a new s. 4.1, would enhance the pow- ers of the public guardian to require the production of documents and make inquiries where an executor or trustee holds a "substantial interest" in an entity. As a result, the public guard- ian could apply to the Superior Court for an order to compel the charity to provide documents and informa- tion on the management, operation, ownership or control of the entity. The proposed amendments would make it an offence, punishable by a fine of up to $25,000, to obstruct or interfere with such an inquiry. This represents a much more appropriate scheme by which the public guardian can oversee what's happening with charitable property. More technical but still welcome developments include amendments to both the Accumulations Act and the Religious Organizations' Lands Act. Bill 212 proposes to change the Accumulations Act, for example, so that the rules of law and statutory enactments relating to accumulations don't apply and shall be deemed never to have applied to trusts created for a charitable purpose. As well, the bill would amend s. 10(1) of the Religious Organizations' Lands Act by striking out the limit of one term of 40 years or for more than one term of not more than 40 years for which the trustees of a religious organization may lease land held for its benefit. The proposed changes for the charitable sector contained within bill 212 represent a very significant move by the provincial government. Bentley should get credit for spear- heading this positive step in reform- ing the regulation of charities in On- tario. As well, the OBA's charity and not-for-profit law section undertook important work in engaging the gov- ernment to institute these changes. Hopefully, bill 212 will find smooth passage in the legislature given its promise of reducing the regulatory burden charities in Ontario face. LT Terrance Carter is the managing part- ner with Carters Professional Corp. and counsel to Fasken Martineau DuMoulin LLP on charitable matters.