2 1 JOSEPH PAUL ANDRE DESCHAMPS, SWORN: 2 EXAMINATION BY MR. CHAMP: 3 MR. CHAMP: This is Court File No. T-324-07 of the 4 Federal Court between Amnesty International Canada and BC 5 Civil Liberties Association, the Applicants, and Chief of 6 the Defence Staff for the Canadian Forces, Minister of 7 National Defence and Attorney General of Canada, 8 Respondents. My name is Paul Champ. I appear with Amir 9 Attaran for the Applicants. We are here today to cross- 10 examine on an affidavit of Joseph Paul Andre Deschamps, 11 sworn on December the 14th, 2007. 12 1. Q. General Deschamps, this is your Affidavit? 13 A. That is correct. That is my Affidavit. 14 2. Q. Just before us going on the record you were 15 sworn in that you would tell the truth the questions I'll 16 put to you today? 17 A. That is correct. I was sworn in. 18 3. Q. General Deschamps, how long have you been in 19 the Canadian Forces? 20 A. I've been in the CF since 1977, so 30 years 21 this year. 22 4. Q. And you were a pilot for much of your career? 23 A. That is correct. 24 5. Q. What is your experience with Afghanistan? 25 A. In 2003 it was my first experience with 3 1 Afghanistan, as I deployed overseas to be Camp Commandant 2 at our logistics base. 3 6. Q. Camp Mirage? 4 A. That's correct, for six months. So from fall 5 '03 to spring '04, and subsequent to that I went back to 6 command Eight Wing Trenton, and following that command I 7 came back to Ottawa to work at Canadian Expedition Forces 8 Command, CEFCOM, which is the operational headquarters 9 that oversees Canadian Forces operations offshore, and of 10 course Afghanistan being the primary operation that I was 11 concerned with when I got there. 12 7. Q. Occupying a lot of CEFCOM's time right now, I 13 gather? 14 A. Absolutely, yes. 15 8. Q. Sir, with respect to your time in Afghanistan 16 in 2003 to 2004, Camp Mirage was located in -- it was 17 close to Kabul? I don't want the specific location. Was 18 it Kandahar or Kabul area? I forget. 19 MR. GRAHAM: I object to the question. We can't 20 get into the location of that camp on the grounds of 21 security. *O* 22 MR. CHAMP: 23 9. Q. Isn't this the camp that we turned over to the 24 Afghans or whatever so they could use it? 25 A. No, no. It's a logistics base. It's not 4 1 located in Afghanistan. 2 10. Q. Sorry about that. Okay. 3 A. That's fine. 4 11. Q. All right. Sorry. No, that's perfectly fine. 5 I understand why you wouldn't answer that. I was mixing 6 it up with another one. So Camp Mirage is not located in 7 Afghanistan but it's a logistics base? 8 A. That's correct. 9 12. Q. So you weren't on the ground in Afghanistan on 10 an ongoing basis? 11 A. That's correct. I was not stationed there. I 12 would visit there on occasion for consultation with the 13 chain of command in Afghanistan. 14 13. Q. You were providing logistics support of some 15 type to the mission? 16 A. That's correct. Mainly through the air bridge 17 that we offer through C-130s and so on. 18 14. Q. Fair enough. Your duties at that time did not 19 have anything to do with detainees, I gather? 20 A. That is correct. 21 15. Q. Turning to your Affidavit, General Deschamps, 22 I'll start at paragraph 7. You say there that persons are 23 captured by the CF in the course of military operations 24 propose a threat or reasonably believe to pose a threat to 25 CF members, Afghan's members of ISAF, and so forth. First 5 1 of all, what is the source of your information or 2 knowledge on that? 3 A. The source of my knowledge as far as why they 4 pose a threat? Is that your question? 5 16. Q. No, I don't need to know that. That would be 6 an operational issue, I appreciate, but just the kind of 7 people that we're capturing, people who pose a threat or 8 reasonably to pose a threat. Who told you those are the 9 kinds of people that we capture? How do you know that? 10 A. Okay, I understand. In Afghanistan the 11 insurgent group, if you will, are mainly composed of -- or 12 anybody affiliated with Al-qada, Taliban, or any other 13 armed factions, individuals, or groups that are openly 14 engaged in hostilities with ISAF and the Government of 15 Afghanistan. So anybody in those groupings would be 16 considered potential combatants and therefore could be a 17 detainee. 18 17. Q. All of that information you just provided to 19 me, how do you know that information? Did another 20 Canadian Forces commander tell you that or -- because you 21 are not on the ground in Afghanistan and as I understand 22 it you don't have direct responsibility for detainees 23 right now. 24 A. That's correct. The -- who constitutes a 25 threat is defined in our intelligence assessments. 6 1 18. Q. Okay. 2 A. Our understanding of the -- those who are 3 posed on the ground, so those folks, if you will, those 4 categories of people are known to us in general terms. 5 The individuals, obviously, are a different story. 6 19. Q. Right. 7 A. But the type of threats that face our troops 8 is known throughout the chain of command, based on 9 intelligence analysis and knowledge of the practical 10 realities on the ground, as we've been there for a couple 11 of years now. 12 20. Q. Is it true that Canadian Forces at times 13 detain individuals who are not necessarily taking a direct 14 part in hostilities? 15 A. I guess the best way to answer that is to 16 characterize the types of contacts that we have when you 17 are out in the operating area. I would sort of capture 18 that in three sort of thematic approaches. One is self 19 defence. The other one would be force protection related. 20 And the third category would be legitimate targets or any 21 other legitimate targets. 22 Self defence is the more obvious one where you are 23 engaged in open hostilities. A good example of that is a 24 person carrying weaponry and engaging you directly. 25 Force protection is a -- is not necessarily with 7 1 somebody that's openly engaged in hostilities but is 2 enabling the Taliban or insurgents through combat 3 enablers, either through providing warning. In other 4 words, a spotter for an ambush, those who are providing 5 support directly to the combatants. So that would come 6 under a force protection threat assessment. 7 21. Q. So, for example, if a local farmer was acting 8 as a lookout or provided warning to the Taliban or armed 9 groups that the Canadian Forces are coming or had been 10 there, that person would be someone that we might decide 11 to detain? 12 A. Potentially. It depends on the nature of the 13 contact and the tactical situation. The assessment has to 14 be made whether he poses a force protection threat. 15 22. Q. Those individuals that we detain might be 16 acting as lookouts, or so forth, we, in some cases, 17 transfer those individuals to Afghan authorities? 18 MR. GRAHAM: I'm sorry, can I have the question 19 again? 20 MR. CHAMP: 21 23. Q. Individuals who are enablers, those types of 22 people we sometimes transfer them to Afghan authorities? 23 MR. GRAHAM: We were talking about detention. Are 24 we now on to transfer? 25 MR. CHAMP: Yes. 8 1 THE WITNESS: Okay, that's fine. I think I 2 understand the question you are asking. Throughout the 3 process, and I'm not sure how familiar you are with the 4 process itself from capture to transfer, but there's 5 reviews that occur throughout to validate whether or not 6 the individual remains a threat. At the point where the 7 commander, task force commander has satisfied himself that 8 the individual continues to pose a threat, then considers 9 to transfer to Afghan authorities will occur. So, yes, to 10 answer your question, at some point if he's still deemed 11 to be a threat, then there would be a discussion of 12 transfer to Afghan authorities. 13 MR. CHAMP: 14 24. Q. Okay. Taking you to paragraph 10 of your 15 Affidavit, there you speak about the decision to detain. 16 You talk about the commander's review meeting. Who would 17 be present at a commander's review meeting? And I don't 18 need the individuals necessarily, but what types of people 19 would be present at that meeting? 20 A. That normally occurs every 24 hours when 21 detainees are actually being held. It's normally as 22 primary -- obviously the commander and the detainee 23 officer who is the senior officer delegated or given the 24 responsibility. It could be overall subject matter expert 25 on all matters of detainee issues and he will bring forth 9 1 to the commander evidence and facts and summarize what the 2 recommendations are from the various staffs on the status 3 of the detainee. 4 25. Q. So it's generally just the commander and the 5 detainee officer? 6 A. As a minimum. It could be more, depending on 7 the commander's desires for information. 8 26. Q. Okay. Paragraph 11 of your Affidavit you make 9 reference in the final line there that from time to time 10 this decision may be held at a higher level of authority, 11 depending on the complexity of the case. Who would that 12 be referencing? CEFCOM, or something like that? 13 A. That's correct. Just to be clear on the chain 14 of command for Afghanistan there's the task force 15 commander who is currently General Laroche. 16 27. Q. Yes. 17 A. The next senior commander is General Gauthier, 18 Michel Gauthier, commander of CEFCOM. And then the next 19 senior commander on top of that is General Hillier, Chief 20 of Defence Staff. That is the chain of command for 21 Afghanistan. 22 28. Q. So a higher level of authority in this context 23 would be Gauthier or Hillier? 24 A. That's correct. 25 29. Q. Are there meetings held to make those 10 1 decisions? 2 MR. GRAHAM: To make what decisions? 3 MR. CHAMP: The decision to transfer, referenced 4 in paragraph 11; sorry. 5 MR. GRAHAM: By the commander? 6 MR. CHAMP: No, by higher levels of authority. 7 MR. GRAHAM: So you are asking whether meetings 8 are held for those people to make transfer decisions? 9 MR. CHAMP: Sorry, I'll preface my question, 10 Mr. Graham. 11 MR. GRAHAM: Yes. 12 MR. CHAMP: 13 30. Q. Paragraph 11 states: 14 "If the commander determines that the detainee 15 cannot be released because he poses a continued 16 military threat, a further determination must then 17 be made as to whether the detainee should be 18 transferred to Afghan authorities". 19 Just stopping there, General, I would understand 20 that the commander of Task Force Afghanistan would do that 21 in one of these commander's review meetings. 22 A. That's correct. 23 31. Q. Okay. But then the paragraph goes on to say: 24 "Sometimes on a case-by-case basis a higher level 25 of authority might make that decision". 11 1 So my question, and I apologize because I agree it 2 wasn't clear, that the higher levels of authority, did 3 they hold meetings to make those decisions? 4 A. I understand your question. If the authority 5 would be restricted or pulled back to higher level of 6 authorities, then that level would have to also conduct 7 detainee review meetings in the same sort of manner as the 8 theatre commander needs to do so. 9 32. Q. Would there be other officials taking part in 10 that discussion? 11 A. You mean at the higher levels? 12 33. Q. Yes. Like there's a detainee officer 13 providing support or information to the... 14 A. That's correct. 15 34. Q. ...commander of Task Force Afghanistan. Would 16 there be other officials providing information or support 17 to either General Gauthier or General Hillier on those 18 decisions? 19 A. I can't really speak to what they would 20 require as a minimum. As I said, it requires the 21 commander and his senior detainee advisor, which is the 22 detainee officer which CEFCOM also has one and any other 23 staff that the commander deems appropriate for him to be 24 able to come to a decision. 25 35. Q. What rank would the detainee officer have? 12 1 A. The rank of the detainee officer both in 2 theatre and at CEFCOM is a minimum of a major. Major 3 rank. 4 36. Q. Okay. If we go to paragraph 13, it says -- or 5 you say: 6 "In order to make the determination...", and the 7 determination here is about the decision to 8 transfer, "...the decision-maker considers a 9 number of factors using information from a variety 10 of sources". 11 Just stopping there, it would be my understanding, 12 based on your previous answers, General Deschamps, that it 13 would be these detainee officers who would gather that 14 information for the decision-maker. Is that fair to say? 15 A. That's correct. The detainee officer would be 16 the one responsible to gather sufficient information for 17 the commander to be able to achieve a decision. 18 37. Q. Right. 19 A. And that's from whatever source is applicable. 20 Foreign Affairs being our primary source, obviously. 21 38. Q. In this paragraph you also indicate that some 22 of the information would be monitoring reports and reports 23 of interviews of CF-transferred detainees provided by 24 DFAIT? 25 A. That is correct. 13 1 39. Q. So DFAIT is providing those reports to 2 Canadian Forces? 3 A. That is correct. DFAIT will provide reports 4 through our policy advisor that's attached to the task 5 force commander. 6 40. Q. Okay. Those reports are about the conditions, 7 in particular, detention facilities at that time? 8 A. The reports, if I remember correctly, cover a 9 wide range of issues that have to do with interaction with 10 the Afghans who are at large and may cover some issues 11 with detainees specifically. 12 41. Q. Well, what issues in those reports are 13 relevant to this determination? You don't have to tell me 14 specifics, but just generally, what are the types of 15 issues that are in those reports that are relevant to the 16 determination? 17 A. The task force commander would be looking for 18 those indicators or factors that would provide insight as 19 to whether or not there is issues within a certain prison 20 or within a certain process that he would have concerns 21 with. In other words, he's looking for facts that would 22 cause him to have concern. 23 42. Q. Right. So in other paragraphs here you are 24 talking about that Canadian Forces -- or the decision- 25 maker may decide not to transfer if there is a belief that 14 1 there's a risk of torture on transfer. 2 A. That is correct. If he forms a reasonable 3 belief, then he will have to consider other options. 4 43. Q. Right. So if he gets information on the 5 particular conditions in a detention facility would decide 6 potentially not to transfer. That would be a factor. 7 A. It could be one of the factors, as stipulated 8 in the paragraph. 9 44. Q. What are some of the other information that 10 might be relied upon? Would Canadian Forces rely on 11 international reports on the existence of torture in 12 Afghanistan? 13 MR. GRAHAM: Can you specify what you mean by 14 "international reports"? 15 MR. CHAMP: 16 45. Q. Reports by the United Nations or United 17 Nations officials. 18 A. I can't speak to what past task force 19 commanders have done, but potentially those reports if 20 they are made available through us, again, through Foreign 21 Affairs would be certainly part of our considerations. 22 46. Q. Who would be responsible for making that 23 information available to the commander or the decision- 24 maker? 25 A. Again, we don't have direct access to those 15 1 reports normally so we would be relying on probably 2 Foreign Affairs to provide us with those insights. 3 47. Q. How about the annual reports by Foreign 4 Affairs on human rights in Afghanistan? They produce an 5 annual report every year on human rights in Afghanistan. 6 Does Canadian Forces get those reports, to your knowledge? 7 A. I'm not aware at the task force level whether 8 or not those reports are distributed or available, but I 9 know they exist, yes. 10 48. Q. Do you know if that's information that is 11 relied upon in making the determination about the risk of 12 torture by the commander? 13 A. I don't -- I'm not sure, actually. You would 14 have to ask the actual commanders who make those 15 decisions. 16 49. Q. Okay. Are detainees allowed to make 17 representations to the commander on this decision? 18 A. No. The detainees are not present at the 19 review process. The review process is not a legal 20 undertaking. In other words, it's not a guilt or 21 innocence process. It's strictly a military review of 22 threat and whether or not the individual poses a threat. 23 So it's really a perspective of the military only. 24 50. Q. Okay. In paragraph 15 you talk about what 25 might happen if the decision-maker determines that there 16 1 is a risk of torture. Has that ever happened, to your 2 knowledge? 3 MR. GRAHAM: That's privileged information for 4 national security reasons, Section 38 of the Canada 5 Evidence Act. We object to the question. *O* 6 MR. CHAMP: Okay. 7 51. Q. Just before going on to some other questions, 8 General Deschamps, you had been served or counsel had been 9 served the Direction to Attend for your attendance here 10 and requested that you produce a number of documents. Did 11 you come with any documents with you today, sir? 12 A. Yes, we did. 13 MR. GRAHAM: Yes, we did. You asked for one 14 document. Where is the Direction to Attend? Here it is. 15 THE WITNESS: I've got it right here. 16 MR. GRAHAM: All correspondence from Canada to the 17 United Nations regarding deployment of Canadian Forces in 18 Afghanistan. I'll ask the Witness to identify the 19 document. 20 THE WITNESS: Yes, that's the document that we had 21 available at our headquarters. 22 MR. GRAHAM: Can you identify that document for 23 us? 24 THE WITNESS: That is correct, it is the document. 25 MR. GRAHAM: I mean can you tell us on the record 17 1 what it is? 2 THE WITNESS: I'm sorry. Okay. It's a letter 3 dated 24th of October 2001 from the Charg‚ d'affaires of 4 the Permanent Mission of Canada to the United Nations, 5 addressed to the President of the Security Council, and it 6 was signed by Michel Duval, Ambassador, and Charg‚ 7 d'affaires. 8 MR. CHAMP: I'll have that entered as an exhibit 9 to this. 10 EXHIBIT NO. 1: Letter dated October 24, 2001 from 11 Charg‚ d'affaires of the Permanent Mission of 12 Canada to the United Nations. 13 MR. CHAMP: 14 52. Q. Going back now, General, to the risk of 15 torture or information about that, had Canadian Forces 16 ever received information about a detainee, a Canadian 17 Forces detainee being abused after being transferred to 18 Afghan authorities, to your knowledge? 19 A. Are you asking if we are aware of allegations? 20 53. Q. Let me put it this way. Pre May 3rd -- 21 because we know and we've heard that there are other 22 allegations since May 3rd -- pre May 3rd was Canadian 23 Forces in possession of any information that detainees 24 transferred by Canadian Forces had been abused? 25 A. I believe we were made aware or we were aware 18 1 of some allegations that had been made, but I don't have 2 specific information as to which one you're referring to. 3 54. Q. This is a document that was produced to me, 4 General. November 14th, '07 it was produced to us. 5 You'll see the front page is a detainee transfer record. 6 A lot of stuff is blanked out there, but in general 7 physical condition upon transfer it says, "Cut on nose, 8 blunt force trauma and abrasions on upper back". I'll 9 just give you a couple of minutes to flip through the 10 document. 11 (OFF RECORD DISCUSSION) 12 MR. CHAMP: Back on the record. 13 55. Q. General Deschamps, so I had handed you a 14 document. Again, it's a 25-page document that had been 15 disclosed to us. You've had now some time to review it. 16 Are you familiar with this incident that's described in 17 these pages? 18 A. I remember the elements of this particular 19 incident, having read through the -- whatever I can read 20 through this photocopied statement. 21 56. Q. Yes, it is hard. I've read it a number of 22 times. I might go through parts to help you. But you 23 would agree with me this is one example of an individual 24 who was detained by Canadian Forces and then transferred 25 to Afghan authorities and subject to some abuse? 19 1 A. If I read the -- this is the problem with 2 this, is I'm not sure if the context is fully apparent. 3 It would appear to me that he was taken by the Canadian 4 Forces off Afghan security forces into our custody after 5 observing potentially him being injured while in Afghan 6 custody. 7 57. Q. Let's go through it. If you go to page 13 of 8 25, and the page numbers are in the bottom right-hand 9 corner is what I'm going by... 10 A. Okay, I've got it. 11 58. Q. So at page 13 of 25 there is a photocopy there 12 of someone's notebook. There's a lot blanked out here, 13 but if you go to the third line wherein on the far right 14 he says, "I was advised..." 15 A. Right. 16 59. Q. "I was advised by...", blank, "...2 local ANP 17 elements". I'm not sure what that "C/S" -- is that -- 18 A. That's call sign 2. That's the name of the 19 sub unit. 20 60. Q. Okay. 21 A. It's a tactical formation call sign. 22 61. Q. For a CF unit? 23 A. That is correct. 24 62. Q. Okay. "...advised by C/S 2 local ANP elements 25 were in possession of a...", then it's PUC, P-U-C. What 20 1 is that? I've seen that in a few different documents. 2 A. I believe it stands for person under control. 3 63. Q. "...detained by CDA troops...". Would that be 4 detained by Canada troops and subsequently transferred to 5 ANP custody? 6 A. That's the way it reads; correct. 7 64. Q. Then he goes on, "I located the PUC in the 8 southwest room of...", and I'm not sure what that is. 9 We'll just leave it, of blank. "I noted a single...", and 10 we'll turn to the next page, "...Afghan male seated 11 against the south wall of the room and surrounded by 5-6 12 ANP". 13 I'm reading through it also just to make sure that 14 we're all kind of on the same page. 15 MR. GRAHAM: You're not asking this Witness to 16 confirm any of this. I don't think he told us that he has 17 any knowledge about these matters. 18 MR. CHAMP: I think he indicated he's generally 19 familiar with the incident. 20 THE WITNESS: I'm generally familiar, that's 21 correct. 22 MR. GRAHAM: But your voice rises at the end of 23 every one of the -- 24 MR. CHAMP: Well, no, I -- 25 MR. GRAHAM: Are you asking him to confirm whether 21 1 or not these facts occurred? 2 MR. CHAMP: No. Actually, the reason I'm doing it 3 is also just to make sure that -- the primary reason is 4 that everyone agrees with the words that I'm reading, that 5 it's like, "No, I think that word is something else". 6 Okay? 7 MR. GRAHAM: All right. Okay. I just wanted to 8 be clear. 9 MR. CHAMP: Just for that purpose. No, that's 10 fair enough. 11 65. Q. So the next sentence is, "As I approached the 12 seated male, I noted a 3-4 cm cut on the bridge of his 13 nose. Further there was blood trickling from the cut and 14 that his nose was blooded". Is that the same phrasing 15 that you see? 16 A. Yes, that's correct. 17 66. Q. "I immediately assumed positive control of 18 this individual and removed him from the room. The 19 subject individual was placed in the north room/CQ stores 20 under guard of myself and...", then it makes reference -- 21 it looks like a private. I won't read his name. I don't 22 need to. "A call was sent to find an interpreter. 23 When...", blank, "...interpreter arrived, I asked the 24 individual where he rec'd [received] the cut". Are we 25 okay with that all so far? 22 1 A. Yes. 2 67. Q. Just in terms of the wording? 3 A. I'm following you, yes. 4 68. Q. You wouldn't disagree with it, that -- because 5 the reason I'm asking you, General, you might be more 6 familiar with reading these notes or some of the acronyms 7 or shorthand, and I just want to make sure that I'm 8 getting the shorthand and so forth correctly. 9 A. No, you are correct so far. 10 69. Q. Okay. "He responded by motioning to room 11 where he was taken from. He further related he had been 12 beaten against the neck/back/head. I requested B-com 13 [company] medic..." 14 MR. GRAHAM: I'm sorry, perhaps the Witness could 15 be asked about that last sentence. Does he read that the 16 same way? 17 MR. CHAMP: Yes. 18 70. Q. Sorry, do you read that last part the same 19 way? He further related he had been beaten against the 20 neck, back, head? 21 A. That's the way I read it, yes. 22 MR. GRAHAM: Okay. Is that word "about" or 23 "against"? 24 MR. CHAMP: I thought it was -- 25 THE WITNESS: About. It's about. It's a "B". 23 1 MR. GRAHAM: I don't want to put words in the 2 Witness's mouth, but that's what it reads to me. 3 MR. CHAMP: 4 71. Q. No, that's fine. "He had been beaten about 5 the neck/back/head. I requested B-com medic..." 6 A. That's correct, yes. 7 72. Q. So that's what it is? Okay. And I won't say 8 his name. "...to attend to conduct preliminary physical 9 upon...", the medic's arrival. "I released the individual 10 from his flex-cuffs to facilitate the examination". Do 11 you agree with all that? 12 A. Yes, that's correct. 13 73. Q. Flex-cuffs. That's what the Canadian Forces 14 use on detainees when they capture them? 15 A. It is one of the protection devices that they 16 use, yes. 17 74. Q. The Afghan officials don't use flex-cuffs is 18 my understanding. 19 A. I don't know. 20 75. Q. You don't know? The next page. "At this time 21 this male individual was given water and a halal food 22 pack. He drank the water, however, did not eat". The 23 medic, "...examination revealed a large contusion, caused 24 from blunt force trauma to the back of his neck and 25 shoulder contusions/abrasions on the upper back". Are you 24 1 okay with all that? 2 A. Yes, I'm with you there. 3 76. Q. "Further examination revealed apparent shoe 4 prints on the back of his vest/clothes. These marks were 5 consistent with his remarks...", pardon me either his 6 remarks or his reports, "...of being beaten with shoes". 7 Do you agree with that, that that's what it says? 8 A. That's also my interpretation, yes. 9 77. Q. "I took 3 photographs of the marks on his 10 neck/back/nose". That's all I wanted to read on that 11 page. If you go to the next page, if you go down there's 12 the paragraph near the bottom where he says, "I was". Do 13 you see that? 14 A. Yes. 15 78. Q. "I was further advised mbrs [members] of 5 plt 16 [platoon] had original contact with this individual". Do 17 you agree with me there? 18 A. Yes. 19 79. Q. "And that pictures were taken at the time of 20 detainment". Do you agree with that? 21 A. Yes. 22 80. Q. So now, General, it's true that Canadian 23 Forces take photographs of all detainees that they 24 capture? 25 A. Whenever possible that's what they do, yes. 25 1 81. Q. Based on that, General, would you agree with 2 me that this appears to be an incident where Canadian 3 Forces captured and detained an individual, transferred 4 that individual to Afghan authorities, and that individual 5 was subsequently abused by Afghan authorities? 6 A. Based on what we see here, this would be a 7 pre-May '07 time frame. 8 82. Q. Fair enough. 9 A. Because at that time there was the possibility 10 of doing field transfers to ANSF or Afghan national 11 security forces where detainees that were taken in the 12 field could be transferred in the field to Afghan 13 authorities. So that would be from that time frame. 14 Subsequent to the arrangement that they're no longer the 15 case, they are only transferred from the Kandahar airfield 16 to the NDS, the National Directorate of Security. But at 17 that time that was an acceptable practice. That's 18 correct. 19 83. Q. And it looks like we don't know when, what 20 month, but it looks like this was 2006. If you look to 21 the front page, it says "date of capture". The month and 22 day is blacked out but we see the year. It's '06. 23 A. It could very well be '06. 24 84. Q. And you have knowledge of this incident, I 25 think you said -- 26 1 A. Broadly speaking, you are right, that's 2 correct. 3 MR. CHAMP: Can I have it entered as an exhibit? 4 The exhibit is a document, 25 pages. It's numbered in the 5 bottom right-hand corner. It's photocopies of various 6 handwritten notes. 7 MR. GRAHAM: Why don't we call it a detainee 8 transfer record, which is the title on the first page. 9 MR. CHAMP: Well, that's just the first one. 10 That's just the first page. The detainee transfer record 11 is a particular document because after that is -- this 12 document was produced by the Respondents and at the bottom 13 middle they've got their document identification code EV- 14 DND-0003.0059. 15 MR. GRAHAM: That's clear enough. 16 EXHIBIT NO. 2: 25-page document, produced by the 17 Respondents, ID code EV-DND-0003.0059. 18 MR. CHAMP: 19 85. Q. General, were there any other pre-May 3rd 2007 20 incidents similar to that, like not in the specifics, 21 obviously, but... Incidentally it looks there that -- 22 A. I am not aware of any specific incidents such 23 as this one. 24 86. Q. Okay. It looks likes our soldiers acted 25 commendably there. 27 1 A. That's correct. They took action as they're 2 required to do if they see abuse. 3 87. Q. But if they don't see abuse, obviously they 4 wouldn't be in a position to take action? 5 A. They can only react to what they see. 6 88. Q. Fair enough. Returning to your Affidavit, 7 General, if we go to paragraph 17, you state there that 8 the CF has no... 9 MR. CHAMP: Do you know what, actually, 10 Mr. Graham, I'm just looking, it's a couple of minutes to 11 2:00. This is probably going to be a long area of -- not 12 a long, but I've probably got 20 more minutes to half an 13 hour, but unfortunately we've got a conference call here 14 at 2:00. 15 MR. GRAHAM: Yes. Why don't we go off and do 16 that. 17 (SHORT RECESS) 18 MR. CHAMP: Back on the record. 19 89. Q. General, I am going to try to move 20 expeditiously to get us done here. Just a question about 21 Kandahar airfield. That's our primary base right now for 22 the Canadian Forces military force? 23 A. That is correct, yes. 24 90. Q. Kandahar air force is not under Afghan command 25 and control. Would you agree? 28 1 A. Kandahar airfield? 2 91. Q. Yes. 3 A. It's a NATO base now. 4 92. Q. So it's -- 5 A. It's been transitioned to NATO last summer. 6 93. Q. So it's not under control of the Afghan 7 Government? 8 A. That's correct. 9 94. Q. And you would agree that the Government of 10 Afghanistan has consented to Canadian Forces detaining 11 Afghan civilians or Afghan citizens? Pardon me. 12 A. I'm not sure about consenting, but the Afghan 13 Government is aware that as we take, capture individuals 14 that we will hold them for a period of time as we make a 15 determination as to whether or not they pose a threat, 16 pending potential transfer to them. 17 95. Q. Canada's temporary detention facility, it's at 18 Kandahar airfield? I think that's on the record already, 19 I think. That's under Canadian command and control? 20 A. That is correct. 21 96. Q. Turning to your Affidavit, General Deschamps, 22 if you go to paragraph 17... 23 A. Okay. 24 97. Q. You say there in the first sentence: 25 "Canadian Forces has no capacity or ability to 29 1 hold detainees other than for transfer purposes". 2 Can you elaborate on that? What do you mean you 3 have no capacity or ability? 4 A. I guess the best way to characterize those two 5 statements, capacity would speak to resources from a 6 physical plant point of view. In other words, how much 7 infrastructure is available to us and how many personnel 8 can be assigned to that function. 9 Ability speaks to the qualification and training 10 of personnel specifically to deal with detainee issues. 11 So that's what that statement means, is we have limited 12 capacity in terms of resources and abilities in terms of 13 specific training and personnel, specifically assigned and 14 trained to that function. 15 98. Q. But presumably, General, Canadian Forces has 16 the expertise to develop that capacity and ability? 17 A. In what context though? 18 99. Q. Well, Canadian Forces has the capacity to -- 19 or pardon me, has the expertise to build a bigger 20 detention facility? It's not something that is impossible 21 for us to do. 22 A. Again, the issue is it's not so much what 23 we're capable of doing, it's what is acceptable for us to 24 do and where we are right now and under the mandate we're 25 on right now. 30 1 100. Q. So then just to clarify, it's not about our 2 capabilities, it's about what we want to do on this 3 mandate. It's a policy decision. 4 MR. GRAHAM: I think the Witness has already said 5 there is a capability question. In fact, he states that 6 in his Affidavit; capacity. He's indicated -- 7 MR. CHAMP: Mr. Graham, I think you are -- 8 MR. GRAHAM: I'm reading my notes, if I may, and 9 the Witness can tell me if I'm wrong and you can tell me 10 if I'm wrong. What he said was ability speaks to -- or 11 capacity speaks to the resources and the personnel 12 assigned to the matter. So if your question is, are there 13 resources assigned to this matter, he's indicated that 14 under present resources there is not that capacity. 15 MR. CHAMP: Mr. Graham, are you making an 16 objection? 17 MR. GRAHAM: Well -- 18 MR. CHAMP: The only reason I say that is I'm kind 19 of concerned that you are assisting the Witness with his 20 answers. 21 MR. GRAHAM: Well, no, but I'm just reading my 22 notes as to what he said here and you are saying... 23 MR. CHAMP: Well, we can all read what -- 24 MR. GRAHAM: ...it's not so much a question of 25 capability but a question of mandate. 31 1 MR. CHAMP: That was my understanding of what he 2 said and if he wants to disagree, he can. So I was 3 putting the question to him. 4 MR. GRAHAM: All right. My point is he's answered 5 the question, I think. *O* 6 MR. CHAMP: 7 101. Q. The Canadian Forces has made a decision not to 8 develop a detention facility there. Would you agree, 9 General? 10 A. That is correct. It was not part of our 11 intent when we went in there to have a detention facility. 12 102. Q. And in terms of the ability -- you are talking 13 about ability Canadian Forces personnel -- we could -- 14 surely we have the expertise somewhere within the Canadian 15 Forces to train soldiers or military police to have the 16 ability to operate a detention facility? 17 A. I am not an expert in that field, but that 18 would be a question you could pose to the provost marshal 19 community and they could answer you more specifically. 20 103. Q. But this is your Affidavit, General. You are 21 the one saying that we don't have the ability. What's the 22 source of your knowledge on that, that we don't have the 23 ability? 24 A. We don't have the -- I guess that way I'm 25 trying to frame this is given our current disposition on 32 1 the ground and our current mandate we are not configured 2 in resource to run a detention facility. 3 104. Q. In that paragraph and also paragraphs 18 to 21 4 you talk about the implications of what would happen if 5 the court ordered an injunction prohibiting the transfer 6 of detainees to Afghan authorities. Is that fair? 7 A. Yes, that's correct. 8 105. Q. Have the Canadian Forces developed any 9 contingency plans in the event that does happen or is this 10 the extent of our contingency plan what you've related 11 here? Are there any possible alternative outcomes? 12 A. If you are asking me if the Affidavit 13 considers options... 14 106. Q. Yes. 15 A. ...the Affidavit answers the question of what 16 we would foresee as consequences should an injunction be 17 put against us. That's what the Affidavit answers. It 18 does not go into contingency planning as you indicate. 19 107. Q. Have Canadian Forces made any contingency 20 plans? 21 A. I'm not sure what the question requires. 22 108. Q. Has the Canadian Forces developed any 23 contingency plans of what they would do if there was an 24 injunction and there were orders from the Chief of Defence 25 Staff to nevertheless continue operating and detaining 33 1 individuals? 2 A. It's premature and speculative to try and come 3 up with contingencies based on something the court hasn't 4 spoken to and the injunction may have conditions in there 5 that would, again, modify whatever we would need to look 6 at. So at this point in time it's premature for us to 7 even consider that. 8 109. Q. General, Canadian Forces, when they make 9 preparations for a mission, any kind of operation, I would 10 only presume that our soldiers are professionals and they 11 develop different contingency plans. If this happens, 12 then this, and if that happens then that. Is that fair to 13 say, that that's a military practice? 14 A. It is a practice of making sure we understand 15 what our options are, given the circumstances, and my 16 Affidavit lays out the optionalities that we have foreseen 17 in this circumstance. 18 110. Q. As I read your paragraphs 18 to 21, you are 19 basically saying -- it sounds like the consequences are 20 going to be pretty catastrophic. Is that a fair 21 description of what you are saying there? 22 A. It would be fair to say that it would be a 23 pretty significant operational impact. 24 111. Q. You are basically telling the court that if 25 Canadian Forces can't transfer detainees, Canada's mission 34 1 of Afghanistan would effectively be over? 2 A. It would be limited to the point where we 3 would be ineffective as a security force. 4 112. Q. Paragraph 22 you say in the second sentence: 5 "Thus restrained the CF would no longer be able to 6 conduct operations necessary to create security 7 and to extend the authority of the Afghan 8 Government as mandated to NATO-lead forces by the 9 UN. The insurgents would therefore face limited 10 opposition in their efforts to regain control of 11 that province. This would allow them free from 12 interference from the CF to conduct operations 13 from Kandahar province against the Afghan 14 Government, our allies and Canadians with the 15 Kandahar province and other parts of the country 16 or indeed outside of Afghanistan. Further, this 17 would put the civilian population of Kandahar 18 province at great risk as the insurgents would 19 reassert themselves fully and would in all 20 likelihood take action against any who may or 21 would oppose them". 22 General, you are basically saying here that 23 Kandahar would fall to the Taliban if the court allows the 24 injunction. Is that what you are saying? 25 A. What I'm saying, just to make sure it's stated 35 1 in a clear term, is at the front of my -- of that section 2 I make the assertion based on the current circumstances 3 that we have limited capacity to hold anybody -- transfer 4 facility, therefore our limited capacity would not allow 5 for a lot of hold-over time. 6 Should we not be allowed to transfer, our options 7 would become extremely limited in the fact that we would 8 start having to release people on an ongoing basis that we 9 capture, therefore if that's the case, we no longer have a 10 deterrent to the Taliban facing us because they know they 11 will be released, you know, in short order after being 12 captured. 13 That being the case, we now put our troops at 14 increased risk because they are going out there knowing 15 full well that should they capture someone -- because they 16 have to accept surrender -- that this individual will be 17 back again facing them likely in very short order. So it 18 would be significantly a greater risk to our troops and 19 obviously that is not acceptable to us. 20 113. Q. I think I understand the logic that is trying 21 to be tied here between all these paragraphs, that it 22 starts with the assumption that we can't hold detainees, 23 and if we can't hold detainees and we can't transfer them, 24 then the necessary result is that we must release them, 25 and if we release them and they know that we're going to 36 1 release them, they are going to fight all the harder or 2 they'll surrender and then return to the field and will be 3 hamstrung and fighting them. And if we're hamstrung and 4 fighting them, then they're going to reassert themselves 5 in Kandahar and put the entire region and potentially the 6 country at risk. Is that what you are saying there? 7 A. What I'm saying is if we are no longer able to 8 effectively deter through the detainment and prosecution 9 process through the Afghans, we've lost an important 10 aspect of our security operation, which would lead us to 11 have to restrict our operations dramatically, which would 12 create a security vacuum. 13 I can't speculate as to what NATO would do with 14 the circumstance, so I can't speak to that. I can only 15 speak to what we currently provide as a security footprint 16 and the fact that the Afghan security forces are still 17 struggling to develop capacity and capabilities, 18 especially on the police side, and therefore they would be 19 significantly disadvantaged should we not be in the field 20 providing a security envelope. 21 114. Q. Fair enough. So what you are saying there is 22 these implications that you anticipate would happen in 23 paragraph 17 to 22 doesn't include the assumption that 24 maybe other NATO countries would do something. 25 A. Exactly. I cannot speculate as to what NATO 37 1 would respond. 2 115. Q. And it also does not include the assumption 3 that Canadian Forces wouldn't take steps to develop 4 capacity or ability to hold detainees. 5 A. Exactly. I cannot speculate as to what 6 possible government actions would be required on this 7 point. 8 116. Q. Canadian Government action. 9 A. Canadian Government action, that's correct. 10 MR. CHAMP: General Deschamps, those are all the 11 questions I have for you. Thank you very much. 12 13 --THIS EXAMINATION ADJOURNED AT 3:04 P.M., 14 ON JANUARY 4, 2008. 15 16 17 I HEREBY CERTIFY THAT I have, to the best of my 18 skill and ability, taken down in stenomask and 19 transcribed the foregoing Examination. 20 21 ........................................... 22 Sheri Holt-Christensen 1 Examination No. 08-0002.4 Court File No. T-324-07 2 3 FEDERAL COURT 4 B E T W E E N: 5 AMNESTY INTERNATIONAL CANADA and 6 BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION 7 Applicants 8 - and - 9 CHIEF OF DEFENCE STAFF FOR THE CANADIAN FORCES, 10 MINISTER OF NATIONAL DEFENCE and 11 THE ATTORNEY GENERAL OF CANADA 12 Respondents 13 ********************** 14 CROSS-EXAMINATION OF JOSEPH PAUL ANDRE DESCHAMPS, on his 15 Affidavit, dated December 14, 2007, pursuant to an 16 appointment made on consent of the parties, to be reported 17 by Gillespie Reporting Services, on January 4, 2008, 18 commencing at the hour of 1:22 in the afternoon. 19 *********************** 20 APPEARANCES: 21 MR. P. CHAMP for the Applicants 22 MR. A. ATTARAN for the Applicants 23 MR. S. GRAHAM for the Respondents 24 MS. S. N™LKE for the Respondents 25 This Examination was reported by Sheri Holt-Christensen at Ottawa, 26 Ontario, having been duly sworn for the purpose. 1 (i) 2 3 4 INDEX 5 6 7 NAME OF WITNESS: JOSEPH PAUL ANDRE DESCHAMPS 8 9 EXAMINATION BY: MR. CHAMP 10 11 NUMBER OF PAGES: 2 THROUGH 37 12 13 14 15 ADVISEMENTS, OBJECTIONS & UNDERTAKINGS 16 17 *O* . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16, 31 18 19 20 21 22 23 EXHIBITS 24 25 26 EXHIBIT NO. 1: Letter dated October 24, 2001 from Charg‚ 27 d'affaires of the Permanent Mission of Canada to the 28 United Nations. . . . . . . . . . . . . . . . . . . . . 17 29 30 EXHIBIT NO. 2: 25-page document, produced by the 31 Respondents, ID code EV-DND-0003.0059. . . . . . . . . 26 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 DATE TRANSCRIPT ORDERED: January 4, 2008 50 51 DATE TRANSCRIPT COMPLETED: January 13, 2008