In a move that looks to further obstruct the progress of the MPCC inquiry, the federal government has applied for a judicial review of a summons for documents potentially crucial to the MPCC’s investigation.

The documents at issue are detainee transfer records dating from May 3, 2007 to June 12, 2008. They are believed to contain risk assessments considered by commanders in Afghanistan when decisions to transfer were made.  The military is already in the process of gathering these documents, it appears.

The Commission had requested the disclosure of these documents as early as November 2008, but their whereabouts only came to light during BCCLA counsel Paul Champ’s cross-examination of Major Gagnon on April 27, 2010. Major Gagnon revealed that the documents are in Afghanistan, “basically all in a big storage bin all mixed with other administrative” documents. He said it might take “a year or more” to catalogue them.  On April 29, the Chair of the Commission issued a summons to Maj. Gagnon to produce the documents.

The government applied for a judicial review of that summons on May 28.  This latest move by the government to block access to relevant documents is obviously troubling.

First, it seeks to withhold information from the MPCC that is essential to its inquiry. The MPCC is mandated to investigate what the military police “knew or had the means of knowing” about the risk of torture facing detainees. The government’s argument as to why the MPCC should be denied access to these documents is premised on some rather peculiar reasoning:  essentially, the DOJ’s position is that it shouldn’t have to turn over these documents because it’s already concluded that the military police had no means of knowing what was in those documents.  But that’s precisely the question the MPCC is supposed to answer, and it needs these materials to determine – as a threshold matter – what information was available to the CF in Afghanistan to begin with.

Second, this application for judicial review will unduly delay an inquiry that has been hampered from its inception by stall tactics. The MPCC hearings were intended as a vigorous inquiry into serious allegations involving Canada’s complicity in torture. Delays like the one represented by this judicial review serve only to divorce the proceedings from the urgent substantive issues they were meant to grapple with