Lawyers in Colvin affair battle over alleged conflict

OTTAWA - A pitched legal battle over the Justice Department’s role in an inquiry into the treatment of Canada’s detainees in Kandahar has been waging behind the daily headlines about potential prisoner abuse by Afghan security police.

The little-noticed legal fight is taking place at the Military Police Complaints Commission, which since February 2007 has been attempting to investigate allegations Canadian troops transferred detainees to Afghans even though they faced the risk of torture.

Repeated efforts by Prime Minister Stephen Harper’s government to deny the commission access to witnesses and documentary information, including the use of Canada Evidence Act threats against the key witness, eventually led to the ongoing and separate House of Commons inquiry by a special committee of MPs looking into Canada’s role in the Afghanistan war.

Though the detainee controversy has garnered headlines and led to several Federal Court hearings and rulings, the determined tactics being used by the lead Justice Department lawyer at the commission recently came under attack, documents show.

The independent lawyer for diplomatic officer Richard Colvin, who testified in Parliament that the government covered up his reports of torture, claims Justice Department lawyer Alain Préfontaine misled the inquiry and was in a conflict of interest in his relations with witnesses and military police subjects of the inquiry as well as in his role with the government.

Préfontaine dismisses the accusations and, in a submission to the commission, argues a letter Colvin lawyer Lori Bokenfohr is attempting to file to register complaints about his advice to witnesses violates the solicitor-client privilege he shares with public service officials, the military police, and the government of Canada. None of the allegations contained in Bokenfohr’s letter have been proven before the commission.

The dispute is so sensitive and far-reaching that a lawyer who teaches at the University of Ottawa says he doesn’t even want to appear in a Law Times story about the standoff.

Interviews with three of the lawyers involved reveal deeply held convictions not only on the issue of the alleged conflict of interest but also a shared view that the federal government has been attempting to stonewall the inquiry from day one.

“It’s argument on argument on argument,” says Paul Champ, the lawyer representing Amnesty International Canada and the British Columbia Civil Liberties Association, whose complaint about the possible torture of detainees transferred by Canadian troops sparked the original investigation.

Bokenfohr tells Law Times she can’t comment on her complaint, the contents of which were included in an October letter to Préfontaine’s attention at the Justice Department.

Préfontaine responded to brief questions over the phone, saying Bokenfohr’s letter “cites or purports to cite large portions of a letter I sent to my clients, which at that time included Mr. Colvin. Therefore, disclosing the letter would waive the privilege for the 28 other recipients of the letter.”

Bokenfohr’s letter deals with Préfontaine’s advice to his clients regarding the commission counsel proceedings. It also claims he went on to mislead the commission about the clients’ participation in them. Law Times isn’t publishing the specifics of the allegations given Préfontaine’s assertion that to reveal the contents of his letter would violate solicitor-client privilege.

But in an interview, Champ explains the issue at hand: “The same Justice lawyers were representing the subjects of the complaint, they were also seeking to represent the various witnesses called to testify, and they were also representing the government of Canada writ large with respect to the issue of disclosure of documents.”

Préfontaine’s submission to the commission opposing the acceptance of Bokenfohr’s letter argues Justice Department counsel represent “the federal government and all its institutions in all forms of litigation” as a condition of employment and that “counsel from the Department of Justice will provide representation to Crown servants summonsed to testify before courts or tribunals about matters arising in the course of their employment.”

Government employees can have independent counsel if there is a conflict between the “Crown and the Crown servant,” something the Treasury Board of Canada must approve. That approval involves a review of the application for independent counsel by Justice Department lawyers.

But Champ and other lawyers argue Préfontaine’s argument misses the point about conflicts of interest given that law society rules and precedents prohibit counsel from concurrently representing clients whose interests clash.

In the case of the matter involving Colvin, the witnesses, the military police, and the government, the issue stands out like a sore thumb, lawyers say.
For his part, Champ argues the commission has a duty to hear the allegations. “A failure to do so would seriously erode public faith in this commission and in the justice system,” his submission to the commission says.

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