HAFF Committee Report

APPENDIX I

 

DISSENTING OPINION

 

CANADIAN ALLIANCE

 

Committee on Procedure and House Affairs

Investigation of the Minister of National Defence

Canadian Alliance Minority Report

 

 

This question of privilege was referred to the committee as a result of the ruling of Mr. Speaker on February 1, 2002 that as the House was left with two statements by the Minister of National Defence which were contradictory and therefore this matter merited further consideration. Those contradictory statements were provided by the Minister to two questions put to him in Question Period; the first on January 29, 2002 by the Honourable Member for Laurier-Sainte-Marie and the second on January 30, 2002 by the Honourable Member for St. John. Those questions related to when the Minister knew for the first time that Canadian JTF2 forces had captured terrorists in Afghanistan and had turned them over to the Americans.

 

The evidence shows that on January 29 he informed the House that he had been briefed on the taking of prisoners on January 25. “I first became aware of the possibility on Friday” (January 25), he said. Yet, on January 30, he informed the House that he actually had been briefed on the taking of prisoners on January 21: “I was first informed about the detention of prisoners and the mission within 24 hours of when it actually occurred” (January 21).

 

It was conceded that the Minister’s two answers were clearly contradictory. The issue before this Committee is whether as a result of that contradiction, the Minister was in contempt of the House and has breached its privileges.

 

The Liberal majority report asserts that the conduct of the Minister of National Defence does not constitute contempt of the House of Commons. But this conclusion is simply not supported by the facts.

 

The issue before this Committee is not whether prisoners were taken or whether those same prisoners were handed over to American authorities. It is not about the indifferent fashion in which military issues are dealt with by the Government. It is not about the apparent detachment of the Prime Minister and the Privy Council Office from military matters in a time of war. It is not even solely about whether contradictory statements were made to the House of Commons – the evidence clearly shows that they were. Rather, it is whether the Minister showed contempt for Parliament in making the contradictory statements noted above. As the Speaker ruled on February 1:

 

“… integrity of information is of paramount importance since it directly concerns the rules of engagement for Canadian troops in Afghanistan, a principle that goes to the very heart of Canada’s participation in the war against terrorism”.

 

The Minister’s actions certainly have served to compromise that integrity of information. Evidence presented before Committee also shows that the Minister demonstrated contempt for Parliament in his actions.

 

 

The Effort to Mislead was Intentional:

It is the view of Canadian Alliance members, that the Minister’s deception was  intentional. The questions put to the Minister by MPs in the House of Commons and by reporters on January 29th and 30th were very clear.

The Minister has claimed that the reason he did not report to the House on January 29 that he had been briefed on January 21, is because he was confused as to the facts. The Minister asserted in Committee on February 20 that he confused the day he learned of the photograph (January 25) with the day he was actually briefed (January 21). Specifically he tried to claim that:   

“The previous question, by the honourable member from Portage--Lisgar, involved the photograph, and in that context and with that thought in mind, I gave my answer to the Bloc Québécois leader that I first became aware of the possibility on Friday. …in the cut and thrust of question period, I connected the two questions from the two members, which had come in quite rapid succession”.

However, this does not correspond with the facts. First, the question from the member from Portage-Lisgar was not directed at the Minister of National Defence, nor was it answered by him. Furthermore, the question asked by the Member for Portage-Lisgar only mentioned the photograph in passing.

 

The question from the Leader of the Bloc Quebecois to the Minister on January 29 was very specific and did not mention the photograph at all:  

 

Question: "Since when did he know that Afghans had been captured by Canadians and handed over to Americans? Since when did he know that? And why did he not inform the Prime Minister who, as recently as Sunday, stated that there were no such prisoners? Why did he not bother to tell him during yesterday's caucus meeting, before oral question period? What is going on with this minister? Did he know or did he not?

 

Minister's Answer: Mr. Speaker, I first became aware of the possibility on Friday. ...

 

The only conclusion that can be drawn is that the Minister’s statement to this Committee concerning why he answered in the way that he did, is not accurate.

 

The Minister has also claimed that when he was informed by Vice-Admiral Maddison, the Deputy Chief of Defence Staff, on January 29, that the above answer to the Leader of the Bloc Quebecois was incorrect, he resolved to set the matter straight the next day. However, on January 30, the Minister only corrected his statement of the previous day near the end of Questions Period when he was asked a direct question by Progressive Conservative member Elsie Wayne as to when he was first informed of the taking prisoners. The Minister had no way of knowing that this question would be asked and there is no evidence that the Minister would ever have admitted his incorrect statement of the previous day had this question not been asked. The conclusion that must be drawn is that the Minister deliberately misled that House as to when he was informed that prisoners were taken, and that he made no effort to correct the record until he happened to be asked a direct question on the issue the next day.     

 

The Minister claims that he was unable to reveal to the Prime Minister or to Parliament  that prisoners had been taken during the week of January 21 to 27, because he did not have all the facts when first briefed on the taking of prisoners. When asked in committee if he had all the facts he needed on January 21, he Minister replied as follows:

 

“Mr. Jay Hill: On an action that involved a multinational force, you were informed in your regular oral briefing, presumably, that the JTF had not taken control of any prisoners themselves, and, yet, when they did take control, when they had actually captured terrorists themselves, you weren't given that information?

 

Mr. Art Eggleton: No, I did not have all of the understanding of the details of the mission. I knew that they had been involved in this mission. I knew that prisoners had been taken. The details I got more clearly when I returned to Canada on January 25.”

 

But in reviewing the evidence as to when the Minister was informed that prisoners had been taken, and the detailed nature of those briefings, it is impossible to conclude that the Minister was not apprised of all the facts or simply “confused” when he made the false statements of January 29.

 

First the Minister himself acknowledged in his written statement that his briefings, particularly on vital issues, are very thorough:

 

"As Minister of National Defence I receive quality, timely briefings and advice from my officials, both in the military chain of command and in the civilian part of the department".

 

Second, the testimony of Vice-Admiral Maddison confirms that he thoroughly briefed the Minister about the mission and about the fact that prisoners were taken.

 

Mr. Vic Toews: … you would agree that you provided the minister with the following information on January 21. You advised the minister that firstly, the troops were safe, that the mission in respect to the detainees was successful and that the mission was carried out in accordance with government policy and the rules of engagement, Mr. Chair.

 

Vadm. G.R. Maddison: That was very much the message, Mr. Chairman, that I passed the minister.

 

Mr. Vic Toews: All right, and as far as you're concerned, you provide the minister with all the necessary available information on the taking of the detainees on January 21.

 

Vadm. G.R. Maddison: Mr. Chairman, when the minister was briefed by me on January 21, I stated to the minister; that a mission had occurred; that it was a very successful mission; that it was done entirely professionally, it was done entirely within the rules of engagement and the direction that our special forces had; that we had captured suspected terrorists, they had been transported and were turned over to American authorities, to their detention facility as was the direction that our people were to follow.

 

Mr. Vic Toews: So you were clear to the minister on January 21 then, Mr. Chair to the vice admiral, that you're clear that the Canadian troops were involved in the taking of detainees in Afghanistan and you were clear to the minister that the Canadians had turned over the detainees to the Americans?

 

Vadm. G.R. Maddison: Mr. Chairman, that is indeed my understanding certainly of the message that I passed to the minister .Vice-Admiral Maddison testimony, February 26)

 

Third, Vice-Admiral Maddison testified that the Minister was engaged in that discussion:

 

Mr. Vic Toews: Without getting into any security issue, did the minister ask you any questions on this issue, Mr. Chair?

 

Vadm. G.R. Maddison: Mr. Chairman, I've had the opportunity to brief the minister on many occasions over the past number of years, both as the commander of the navy and certainly in my current position. He is one who always asks questions whenever he's briefed in terms of points of clarification, reaffirming some of the key messages …”.

 

Mr. Vic Toews: Was there any indication from the minister at that time, Mr. Chair, that there was in fact any further need for information then, given his thoroughness? You've indicated he's been very thorough throughout this briefing. Was there any indication that he said “I need additional information”?

 

Vadm. G.R. Maddison: Mr. Chairman, I certainly understood in terms of the briefing that I gave him that there wasn't any other further information from the major points in this particular mission that needed to briefed to him. …”

 

Fourth, Vice-Admiral Maddison confirmed for Liberal member Marlene Catterall that the briefing on the matter of the prisoners was unusually lengthy and thorough:

 

Ms. Marlene Catterall: What I hear, Mr. Chair, is that so far in a 15 to 20 minute briefing, 15 different items were raised with the minister. So that would be, maybe, one minute per item?

 

 VAdm G.R. Maddison: Except in this case because of the, if I could, Mr. Chair, fact that this was the first mission, as we have said, in which we had captured suspected terrorists. My recollection of the briefing would have been that I was in there about five minutes with respect to this one.

 

Fifth, General Henault, the Chief of Defence Staff, confirmed that not only was the Minister thoroughly briefed about the mission on January 21, he had in fact known that this mission had been planned for some time before January 20 when the mission was carried out:

 

Mr. Vic Toews: ... General, Mr. Chair, we have heard today from Vice-Admiral Madison that on January 20, 2002, the General was briefed on the JTF-2 participation in the capture of prisoners in Afghanistan. Prior to the briefing on January 20, 2002, I was wondering if the General can advise us whether he was involved in any briefings with the minister regarding the development of this operation and the participation of Canadians in so far as he is free to disclose that.

 

Gen Raymond Henault: Thank you. … I can tell you that the minister was kept fully aware of operations, not only for JTF-2, but other operations that were being conducted in the campaign against terrorism and other operations around the world as they were developing.

 

Mr. Vic Toews: Including then, Mr. Chair, the development of this operation that occurred sometime around January 20 of this year.

 

Gen Raymond Henault: Yes.

 

Mr. Vic Toews: And would the general have briefed the minister then on the development of this operation?

 

Gen Raymond Henault: Mr. Chair, I can say that the minister was aware of the developing operation as it was evolving with some detail but not all of the detail of the mission.

 

The Minister was not only thoroughly briefed about the Mission on January 21, he was apparently asking questions about it. He had even been informed in advance that the mission was going to take place. He had to take time from his busy schedule in Mexico to go to the embassy for a special secure briefing. In other words, the Minister knew that Canadian troops would be going into action on or about January 20. One would have expected that as the Minister responsible for these troops he will have been anxious to hear what the outcome of their mission was.

 

We must therefore conclude that the Minister could not have forgotten about the briefing on January 21.

Motive:

The Minister concealed the taking of prisoners by Canadian troops until he became aware that a photograph of the event had been published. He became aware of this fact on January 25. He then falsely told the House of Commons (on January 29) that he had first learned of the event when he saw the photograph. This fabrication was repeated outside the House, and conflicted in every way with what he admitted the next day to be the truth.

On January 21, when the Minister first learned that prisoners had been taken, he was aware that this issue was raging both in the media, in Parliament and in the Liberal caucus. Evidence shows that many Liberal MPs were most unhappy that Canadian troops might take prisoners in Afghanistan and hand them over to American forces.

On January 17, the Minister had been extensively questioned on the issue of prisoners both by the media and by his own Liberal colleagues. Every Liberal Committee member who spoke on January 17 in a joint sitting of the House of Commons Defence and Foreign Affairs Committee, raised the matter of prisoners.

The taking of prisoners was the most prevalent and prominent news story in the country during the period leading up to, and immediately following the Committee meeting of January 17. After January 17, it is reasonable to assume that the Minister was probably anxious to conceal the fact that prisoners had actually been taken and prevent the issue from being raised at the Liberal caucus on the weekend of January 26 and 27 – a caucus meeting which was already likely to be divisive on a range of other issues.  

On the basis of the evidence before the committee, it is reasonable to conclude that the Minister deliberately concealed the incident about which he was briefed on Monday, January 21, for eight days. When he was presented with photographic evidence of the incident (on January 25), it became obvious that he could not feasibly deny that it had taken place. In order to avoid admitting that he had concealed the matter from January 21 to January 29, the Minister claimed that he had only learned of the incident on January 25 and he had needed the weekend of January 26 and 27 to get all the information. In his written statement to this Committee, he claimed that he used the weekend (January 26 and 27) to investigate the matter further. Specifically, the Minister said that: 

"to prepare for the cabinet meeting on the following Tuesday (January 29), I determined that further discussions with officials were necessary, both to get a better understanding about the mission that I had been advised about the previous Monday, but also to talk about the whole question of detainees and government policy in that respect. So I began a series of meetings and conversations by telephone everybody from the Chief of Defence Staff to the deputy chief of defence, the deputy minister and the Judge Advocate General, who is the chief legal adviser and most knowledgeable person on this subject in our department".

 

But these claims have been contradicted by Admiral Maddison, General Henault and the Deputy Minister of National Defence, Jim Judd. In response to questioning from Jay Hill, Admiral Maddison clarified what actually occurred.  

 

Mr. Jay Hill: ...  Were you involved in any briefings over the weekend? That would be January 26-27, prior to the House resuming the next week.

 

 VAdm G.R. Maddison: Mr. Chairman, yes, in fact I briefed the minister on Saturday morning and on Sunday. They were the normal sort of operations briefings. There was nothing that had changed from the information that obviously had been passed on January 21 and January 25 and so there was no need to raise any issues surrounding the operation on January 20 on those briefings.

 

Mr. Jay Hill: So since nothing had changed, then, I'm led to believe that you did not remind the minister during the briefing that you gave him on Saturday morning, January 26 and Sunday, January 27, you did not remind him that prisoners had been taken, or was that discussed?

 

VAdm G.R. Maddison: Mr. Chairman, that was not discussed.

 

General Henault confirms the same fact:

 

Mr. Jay Hill: General, did you have any conversations either face to face or by telephone with the minister between January 21 and your participation along with Vice-Admiral Madison in the briefing of January 29, so between January 21 and 29?

 

Gen Raymond Henault: Mr. Chair, I did not.

 

Mr. Jay Hill: I want to draw your attention to the statement that the minister made here and I want to quote from it: “So I began a series of meetings and conversations by telephone with everybody from the chief of defence staff to the deputy chief of defence staff, the deputy minister and the judge advocate general to get more information”, and he was referring to that period of time. Since we already know that the deputy minister in his testimony earlier today didn't confer with the minister during that period of time, why would you think that the minister would say that he conferred, had a series of meetings and conversations by telephone with everybody from yourself and these other individuals?

 

Gen Raymond Henault: Mr. Chairman, I can confirm for you that I did not talk to the minister between January 21 and 29 when I met him in the afternoon with the deputy chief of defence staff. I can't necessarily tell you why he would have said that because I can confirm for you here that that was not the case on my part.

 

And, extraordinarily, the Deputy Minister of National Defence also had no conversations with the Minister on the taking of prisoners.

 

Mr. Jay Hill: … You’ve stated that you found out that Canadians, specifically JTF2, were involved in the taking of prisoners … you found that out on the 22^nd when Vice-Admiral Maddison came to you and discussed the photograph. You didn’t discuss it with your minister until the 29^th? That’s correct? That’s what you’ve said today?

 

Mr. Jim Judd: I believe that’s correct, yes. 

   

Therefore, the Minister misled the Committee in his written statement about the conversations he had with the Chief of the Defence Staff, the Deputy Minister of National Defence and the Deputy Chief of Defence Staff on the matter of prisoners. This cannot be dismissed as mere forgetfulness that might occur in the heat of questioning. It is instead a deliberate attempt to mislead.

Although the Minister may have been able to shed light on this issue, when Opposition members tried to recall the Minister to explain why his written statement was contradicted by all the senior officials in the Department of National Defence, but the Liberal majority refused to permit this. 

 

Conclusion: 

 

In 1997, the Somalia Commission of Inquiry, which examined a badly mismanaged military deployment concluded that:

 

“The quintessential condition of control of military and all aspects of national defence is a vigilant Parliament … Parliament must exercise greater diligence in critically monitoring the terms agreed to, or set by Government for the employment of Canadian Forces personnel overseas, and safeguarding members of the armed forces from unreasonable risks; it must also monitor the operations of commanders and troops in the field”.

 

Parliament cannot exercise that vigilance when it is misled or lied to. To mislead Parliament shows contempt for Parliament. It must not be tolerated at any time, particularly when our country is at war.

 

Canadian Alliance members of the committee cannot agree with the majority report that the contradictory statements made by the Minister in the House of Commons were done without any intent to confuse or mislead. As the majority report states at paragraph 40, when establishing intent one must review the context surrounding the  incident involved.

 

In this case, the context was the serious divisions within the Liberal caucus over the question of whether Canadian troops should be taking prisoners in Afghanistan and handing them over to the Americans when it was not clear whether the Americans would  honour without question the provisions of the Geneva Convention. That context of that  division and debate up until the Minister was briefed on January 21 was to quote the Prime Minister “hypothetical”.  From the moment he was briefed, it was no longer so. It was in the interest of the Minister to keep it so for as long as possible. One way to do that was to ensure that he could have a rationale for not advising the Liberal backbench of this particular development at the Caucus Retreat scheduled for January 26 and 27. That rationale would be, that he only first found out about it on Friday January 25 just before  the caucus and that he needed sometime after that to have it fully clarified. Such a rationale would not have been available to him if the Liberal caucus knew that  had first known about the incident on Monday January 21.

 

The evidence heard by the committee indicates that the Minister was thoroughly briefed on the taking of prisoners on 21 January, that he understood that briefing, and that he did not seek subsequent clarification, contrary to the Minister’s own testimony. In establishing that the Minister knew of the taking of prisoners on 21 January, the committee has proven that the Minister knew his statement to the House of Commons on 29 January was false.

 

However, beyond our position that there was enough evidence before the committee when read in its proper context to conclude that the Minister intentionally misled the House, we do not agree with the test applied by the majority report for determining what constitutes a contempt.

 

Based on the test provided to the committee by Mr. J.P. Maingot, it is sufficient to establish contempt if the contradictory statements constituted an affront to Parliament. In his testimony Mr. Maingot commented that:

 

“it is incumbent upon the members to decide what is in their view a contempt. By all of what you’ve heard a contempt can be you felt a person intentionally misled or the conflicting statements were such that really reflected on the integrity, the dignity of the House”.

 

Indifference to one’s duties to the point where false statements are made in the House of Commons in a cavalier fashion would also constitute contempt of Parliament. It would call into serious question the Minister’s ability to exercise proper and credible authority over the actions of Canadian troops. And it would make it impossible for Parliament to exercise effective oversight and protect the interests of members of the Canadian Forces in time of war.

 

The Minister’s failure to get his facts straight on this matter which was then of crucial and central importance to Parliament, and then not on the same day to immediately correct the false statements which he gave on January 29, constitutes an affront to Parliament. To wait until Question Period the next day, and then still not clarify the matter, even after receiving several questions on the issue, and only come clean when he was finally pinned down on a question that was so precise, he could not avoid giving a straight answer, further added to this affront to Parliament.

 

The Minister then compounded this affront by deliberately misleading this Committee with respect to the discussions he had with senior officials in his Department. The clear contradictions between the Ministers written statement and the testimony of the two senior ranking military officers and the Deputy Minister of National Defence, as referred to above, combined with the decision by the Liberal majority on the committee not to recall the Minister to clarify those contradictions, leaves the committee with certain un-rebuffed facts. Those facts only enable us to conclude that the Minister misled the House, or failing that, conducted himself in such a way as to constitute an affront to the House.

 

Therefore the Canadian Alliance members of the Committee  dissent from the Majority Report of the Committee and would find that there is evidence that Minister Eggleton deliberately misled the House in his two statements in the House of Commons on January 29, 2002 and January 30, 2002, as to when he knew that prisoners taken by JTF2 troops in Afghanistan had been handed over to the United States.  Accordingly, the Canadian Alliance members of the Committee conclude that a contempt of the House was committed by Minister Eggleton.

 

The Canadian Alliance members of the Committee also dissent from the Majority Report of the Committee on the basis that even if there is insufficient evidence that Minister Eggleton deliberately misled the House the nature and the circumstances surrounding the making by him of the two conflicting statements and his failure to advises the House immediately when he became aware that he had so misled House reflected on the integrity and dignity of the House constituting an affront and therefore a contempt of the House.