Public Values

Whistleblower Colvin testimony, Tory committee members say they are "incredulous"

Professional Association of Foreign Service Officers expresses deep concerns about personal attacks on Colvin, one of its members.

Letters sent to subpoenaed public servants called threatening, designed to deter Mike Martin

The case of Richard Colvin is a disappointing one for anyone who cares about Canadian public values. His treatment as a whistleblower does not come as a surprise to anyone who has ever raised allegations of government wrongdoing in a public forum. Colvin was a senior diplomat who was posted in Afghanistan from April 2006 to October 2007. Almost from the beginning of his assignment, he started to document his concerns about the possibility that prisoners captured by the Canadian military and turned over to Afghan officials were being routinely abused and tortured. Not only did he write about these concerns, he apparently sent copies of his reports to nearly eighty Canadian officials across the federal government.

All of his memos to high ranking officers in the Canadian government were either misplaced or willfully ignored. On November 18, 2009, Richard Colvin, now the First Secretary, Embassy of Canada to the United States of America, testified before the Special Committee on the Canadian Mission in Afghanistan about his time in Afghanistan and the regular reports he sent back home. It is interesting that in his opening statement Colvin noted that he fully supported the Afghan mission and that he was proud to serve alongside the courageous and professional men and women of the Canadian Forces, including Canada's military police. His testimony went on to report that Canada had the highest rate of handover of prisoners to the Afghan authorities, that few records were kept of these transactions and most chilling of all was that the likelihood all the Afghans we handed over were tortured. For interrogators in Kandahar, he noted this was standard operating procedure.

How he got to the Special Committee is a story unto itself. It's not like he was asking for trouble, he was just doing his job. After Colvin transferred back from Afghanistan, he was assigned to his new post in Washington and started going about his work at the Embassy there. In April of this year he received a subpoena from the Military Police Complaints Commission to provide testimony to their investigation of the treatment of Canadian prisoners who were handed over in Afghanistan. But before he could testify his Department in collaboration with the Department of Justice refused his request for access to legal counsel. Then they refused him access to his own reports and finally to top it off they threatened him with section 38 of the Canada Evidence Act if he testified before the Military Police Complaints Commission.

(Editor note: Section 38 of the Canada Evidence Act is entitled International Relations and National Defence and National Security and refers to testimony that could be "injurious" and also states "'sensitive information' means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.")

In Colvin's testimony before the Special Committee, he said that he felt himself caught between one rock and a very hard other rock. If he refused to co-operate with the Military Police Complaints Commission he could be jailed for up to six months, but if he did co-operate under section 38 he could be jailed for up to five years. All the time this was happening he still had no legal rights or protections. Colvin wasn't the only one caught up in this legal and moral dilemma. Twenty two other public servants were subpoenaed by the Military Police Complaints Commission at the same time as Colvin. However, after receiving their warning letter all but Colvin declined to testify. In the words of Colvin's lawyer Lori Bokenfohr that these letters were threatening in tone and designed to deter the recipients from testifying. A clear message was being sent from someone that they didn't want any public service employee to give information to an investigation by one of their own tribunals.

The Military Police Complaints Commission had been stymied in its investigation ever since it began according to Freya Kristjanson, the Commission's counsel. In fact she noted that since March 2008 the Commission had not received a single document from the Federal Government. The Commission went to court to seek access to the documents it required but was told in a September 16, 2009 decision by the Federal Court that it could only probe its own activities and employees and could not investigate the actions or policies of any other government department or agency. Faced with the very real possibility of having no witnesses or access to documents the Commission finally pulled the plug on its investigation and suspended hearings indefinitely on October 14.

  "(Colvin) said that he felt himself caught between one rock and a very hard other rock. If he refused to co-operate with the Military Police Complaints Commission he could be jailed for up to six months, but if he did co-operate under section 38 he could be jailed for up to five years."

This stone-walling approach was also in full display in response to Richard Colvin's testimony before the Special Committee in November. His character and credibility was attacked by Conservative members of the Committee who claimed he was making up stories using words like incredulous and skeptical as their first line of attack. It was intimated that Colvin supported the Taliban and was part of a campaign to get Canadian troops out of Afghanistan. On November 19 the Associated Press filed a story which was picked up by the New York Times quoted Peter McKay, Canada's Defense Minister as saying there was no evidence to support Colvin's allegations and called him a Taliban dupe who has asked Canadians to accept the word of prisoners who, as Taliban members, have been trained to lie. And then the Tories trotted out three retired military commanders who had led Canadian missions in Afghanistan to toe the party line. Retired General Rick Hillier led the way by calling Colvin's testimony ludicrous and by stating he never heard suggestions that Canada may have been indirectly complicit in the torture of detainees in Afghanistan.

All of this has led to calls for release of Colvin's memos and for a public investigation into the allegations of prisoner torture and abuse. Some of this may indeed happen as the Conservatives feel more heat from Canadians concerned about possible abuse and the subsequent cover-up that's been playing out for the last two years. But what has this whole scenario also revealed about how people who blow the whistle on wrongdoing or misdeeds that come to their attention as part of their jobs to protect the public interest? It says that the song remains the same. Stick your head up out of the foxhole and you risk getting it blown off. has talked to several Canadian diplomats, none of whom for obvious reasons want to be indentified, to get a gauge on how people on the inside were reacting to the Colvin issue. People talked about feeling betrayed and disappointed with Colvin's treatment and that a deep chill had fallen over Canada's diplomatic core. Things may have been bad before but these recent events had many people thinking about a change in their career plans. The Professional Association of Foreign Service Officers who represents most of the front line diplomats publicly expressed its deep concerns about the public, personal attacks on one Richard Colvin who is one of its members. They were most concerned about the risk to Colvin's employment as a result of his testimony before the Special Committee.

Richard Colvin may well lose his job over what many see as an act of bravery in the line of duty and for all fair-minded Canadians that would a grave injustice. But an even greater injury may have been done to both the public face of Canada in the world and to any hopes that many of may have had that the people who work for us will be allowed, encouraged, and rewarded for telling the truth. Why would anyone in their right mind want to risk reporting on tainted meat, or polluters, or criminal activity like fraud or contract fixing after they have seen how Richard Colvin has been treated by his employer? Our guess is that they won't and all Canadians will be made to pay the price for that.

For more information and to see Richard Colvin's testimony to the Special Committee please click: CPAC Video on demand

Mike Martin is a former activist and senior staff member with the Public Service Alliance of Canada and a freelance writer and consultant specializing in workplace wellness.

Posted: December 03, 2009

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