2 1 ALEX NEVE, SWORN: 2 CROSS-EXAMINATION BY MR. ANDERSON: 3 1. Q. My name is Jeff Anderson and I am counsel for 4 the various respondents in Amnesty International et al. 5 and the Chief of the Defence Staff et al., court file T- 6 324-07. This is the cross-examination and the recording 7 of it of Mr. Alex Neve. Mr. Neve is the secretary general 8 of Amnesty International, Canadian Section. This is in 9 relation to an affidavit filed by Mr. Neve in response to 10 a motion to strike the underlying application for judicial 11 review and the affidavit is sworn August 29th, 2007. 12 Mr. Neve, I'll just confirm on the Record that you 13 have been sworn earlier today as well for the purpose of 14 this cross-examination. 15 A. Yes, I have. 16 2. Q. Just so that we know because there's been a 17 couple of affidavits from you already, I'm going to show 18 you a couple of affidavits without exhibits. You can 19 confirm for me, Mr. Neve, that this is in fact the 20 affidavit that was filed in relation to the motion to 21 strike? 22 A. Yes, it is and that is my signature. 23 MR. ANDERSON: I'll mark that as Exhibit 1 just so 24 we'll know which is which. 25 EXHIBIT NO. 1: Affidavit of Alex Neve sworn 3 1 August 29, 2007. 2 BY MR. ANDERSON: 3 3. Q. Just while we're going along, Mr. Neve, you'll 4 confirm for me in your affidavit that you are the 5 secretary general of Amnesty International, Canadian 6 Section, English Speaking? 7 A. That's right. 8 4. Q. For ease of reference I think that you have 9 and I will short form that as AIC. 10 A. That's fine. 11 5. Q. You have been in this role since January 2000? 12 A. That's correct. 13 6. Q. Amnesty International is one two applicants 14 set forth in the Notice of Application for judicial review 15 in court file number T-324-07? 16 A. That's right. 17 7. Q. I'm going to show you a copy of that 18 application. I'll give you a copy for your reference. 19 You confirm for me that this is the Notice of Application 20 in the underlying judicial review? 21 A. Yes, it is. 22 MR. ANDERSON: Thank you. I'll give you that for 23 identification as Exhibit 2, please. 24 EXHIBIT NO. 2: Notice of Application issued 25 February 21, 2007. 4 1 BY MR. ANDERSON: 2 8. Q. Just looking at that application, as I 3 understand it, that Notice of Application was issued out 4 of the federal court on February 21, 2007. It should be 5 on the last page. 6 A. Yes, it was. 7 9. Q. You agree with me the Notice of Application 8 has not been amended at this time? 9 A. No, it hasn't. 10 10. Q. Just again as a matter of housekeeping, Mr. 11 Neve, on last Friday, the 7th of September, your counsel 12 was served with a Direction to Attend here today? 13 A. That's right, yes, and I received a copy of 14 it. 15 11. Q. I'll again for identification provide you and 16 just have you look at the Direction to Attend and confirm 17 this is what you received. 18 A. Yes, that seems to be the same document. 19 MR. ANDERSON: If I may, we'll make that Exhibit 20 3. 21 EXHIBIT NO. 3: Direction to Attend served 22 September 7, 2007. 23 BY MR. ANDERSON: 24 12. Q. In the Direction to Attend you were asked to 25 bring a series of documents. As I understand it, you have 5 1 produced through your counsel a set of Amnesty 2 International AIC's operating by-laws? 3 A. Yes, that's correct. 4 13. Q. These operating by-laws you'll confirm for me 5 are the most up to date by-laws? 6 A. Yes, they are. 7 14. Q. Were these by-laws the same by-laws that 8 governed Amnesty International in February of 2007? 9 A. Yes, they were. 10 MR. CHAMP: Just for the Record, Counsel, we will 11 make clear that our position is that the by-laws or any 12 internal operations or authorizations of AIC as an 13 organisation are irrelevant to the application, however, 14 we are going to allow Mr. Neve to answer those questions 15 subject to objections we may make to the court. *O* 16 MR. ANDERSON: Fair enough. Thank you very much. 17 I appreciate your facilitating this by allowing Mr. Neve 18 to answer those questions under reserve. 19 BY MR. ANDERSON: 20 15. Q. Just so we're clear, before I get into the 21 operating by-laws, Mr. Neve, I'll note that one of the 22 other things that was requested -- first of all, there are 23 no other by-laws other than the ones you've provided? 24 A. That's right. 25 16. Q. In addition in the second bullet in the 6 1 Direction to Attend we made a request for a copy of any 2 corporate resolution authorizing Amnesty International to 3 engage in legal action either as a party or as an 4 intervener in this application or of any of the previous 5 legal proceedings that you have mentioned in your 6 affidavit. I note you haven't produced any such 7 resolution. 8 A. That's right. They do not exist and I assume 9 we'll have a chance to have me explain what our practice 10 is around decision making in this area. 11 MR. ANDERSON: I intend to go there. Moving on if 12 I may and maybe I'll just note if we can make the 13 operating by-laws Exhibit 3A under reserve. 14 EXHIBIT NO. 3A: Operating By-Laws, Amnesty 15 International Canadian Section (English Speaking), 16 Accepted May 2005. 17 BY MR. ANDERSON: 18 17. Q. If I could just ask you a little bit, and this 19 may help you, Mr. Neve, explain how decisions are made, as 20 I understand it if you can turn up to Article 5 of those 21 by-laws we see discussion of the executive committee. The 22 executive committee, as I understand it, is responsible, 23 and I'll refer you in particular to 5.05 of that article, 24 the executive committee has the full power, this is 25 between general meetings, the full power and authority to 7 1 manage and control the affairs and business of the 2 corporation subject to laws that are set out under there. 3 In other words, the executive committee directs the 4 business of the corporation? 5 A. It does. Obviously there's a further 6 relationship between the executive committee and the staff 7 as well. 8 18. Q. Let's just go back. First of all, it says the 9 executive committee between general meetings. Am I to 10 understand that general meetings will also have an effect 11 on the conduct of AIC? 12 A. Absolutely, yes. 13 19. Q. Just so I'm clear in terms of who comprises 14 the executive committee, if I turn you back to 5.01, just 15 the page before, we see that the executive committee shall 16 consist of five officers, the president of the executive 17 committee, the vice president, the secretary, the 18 treasurer, and five directors at large. 19 A. And also the chairperson. 20 20. Q. Mr. Neve, as I read that there's no provision 21 at this point for the secretary general to be one of the 22 members of the executive committee. 23 A. No, we're not. I don't know if it's laid out 24 here but sort of the practice is that we are sort of ex 25 officio members. We certainly are required to attend and 8 1 participate in all executive committee sessions but we do 2 not vote. 3 21. Q. Just so I'm clear on the Record, if we turn up 4 to Article 7 which is two pages in we'll see that Article 5 7 deals in particular with the secretariat. 6 A. That's correct. 7 22. Q. In fact, I understand given that you are the 8 secretary general that a secretariat was indeed created 9 for AIC? 10 A. That's correct, quite a fairly substantial 11 one. 12 23. Q. And you are the secretary general of the 13 secretariat? 14 A. Yes, I am. 15 24. Q. As I read Article 7.01, the secretariat's role 16 is to be responsible to the executive committee for the 17 implementation of the decisions of the general meeting and 18 the executive committee? 19 A. That's right. 20 25. Q. So your role is not to undertake action or 21 direct Amnesty International in terms of its dealings on 22 your own but just to implement the dealings either of the 23 committee or of the general meetings? 24 A. Recognizing that some of those decisions are 25 very broad in scope. It's not to suggest that every 9 1 decision about every action we take up or campaign we 2 launch or press conference we decide to convene would be 3 the responsibility of the executive committee. The 4 executive committee's primary role is to approve yearly 5 operational plans and even above that, to bring to our 6 annual general meeting longer term strategic plans, 7 previously at four-year intervals, soon to be at six-year 8 intervals, which set out the broad program of work that 9 the secretariat is then responsible for implementing. 10 26. Q. Just so that I'm clear on this, you alone as a 11 secretary general didn't make the decision to initiate 12 this application for judicial review in February 2007? 13 A. I certainly didn't make -- the decision making 14 process wasn't mine alone. The final decision as to 15 whether we would actually launch it was mine but it was a 16 decision made after significant consultation with a number 17 of colleagues both within Amnesty International in Canada 18 and also with, and this an important piece for something 19 like this, colleagues at our international office in 20 London. 21 27. Q. Just so I'm clear on this, did those 22 discussions and your ultimate decision arise out of an 23 executive committee meeting? 24 A. The executive committee has regularly been 25 informed of the progress of the decision making, this both 10 1 in advance of actually launching the court application and 2 certainly at every meeting since but there was not an 3 executive committee decision, because that's not our 4 practice, to actually launch the application. 5 28. Q. Was there an executive committee decision to 6 consider launching the application? 7 A. No. It wasn't put on the agenda in that way 8 and the executive committee didn't approach the decision 9 in that way. 10 29. Q. Fair enough. I'm just trying to understand 11 the structure. I suspect then that the same would be true 12 that there was no specific agenda item or direction from a 13 general meeting of AIC before authorizing either 14 litigation or contemplating litigation? 15 A. That's correct. Again particularly at this 16 year's annual general meeting the membership would have 17 been informed certainly orally and possibly even in 18 written reports, I can't quite recall the latter, of the 19 fact that we were involved and for most of them it was 20 pretty apparent because there was of course such media 21 coverage of it but many would have become aware of it from 22 the annual general meeting as well. 23 30. Q. When was the last annual general meeting? 24 A. It was in -- I'm trying to remember if it was 25 May or June. It was at the very beginning of June of 2007. 11 1 31. Q. Is it every June essentially? 2 A. Sometimes it's in late May or early June. 3 32. Q. You touched upon this a little bit in terms of 4 you discussing about consulting with Amnesty 5 International. Is that the Amnesty International 6 secretariat in London, England? 7 A. International secretariat, yes. 8 33. Q. Are there also Amnesty International branches 9 in other European countries? 10 A. Yes, in many. 11 34. Q. Are there branches in the Netherlands? 12 A. Yes, there is. 13 35. Q. In Denmark? 14 A. Yes, there is? 15 36. Q. And I guess you say obviously elsewhere in 16 Europe? 17 A. Yes. 18 37. Q. As I understand it both the Amnesty 19 International secretariat in U.K. is a separate legal 20 entity obviously from Amnesty International Canada? 21 A. It is. 22 38. Q. As are the Amnesty International branches in 23 the Netherlands, Denmark, or elsewhere in Europe? 24 A. That's correct. They're all separate 25 entities. 12 1 39. Q. As I understand it right now, Amnesty 2 International U.K. has not launched a similar court 3 challenge in the U.K. to the one here in Canada? 4 A. That's correct. Just to clarify, Amnesty 5 International U.K. and our international secretariat based 6 in the U.K. are also separate entities, neither of which 7 have launched a lawsuit but I just want you to be aware 8 that there's those two different entities both based in 9 the U.K. 10 40. Q. Amnesty International Netherlands, to your 11 knowledge have they initiated a similar lawsuit in the 12 Netherlands regarding the Dutch treatment of detainees? 13 A. No, they haven't. 14 41. Q. In Denmark? 15 A. No, they haven't. 16 42. Q. Anywhere else in Europe? 17 A. No, they haven't. 18 43. Q. In your discussions with other Amnesty 19 International entities both in the U.K. and Netherlands, 20 did you discuss it with anybody from the Netherlands? 21 A. No. Our exchanges with were our international 22 office around this. 23 44. Q. Was there discussion about any particular 24 country in which to bring this lawsuit? Did that come up? 25 A. We were the ones initiating the discussions so 13 1 the discussion was necessarily focused on whether it was 2 felt this would be an advisable step to take, whether it 3 was consistent with our international office's broader 4 objectives and concerns in Afghanistan particularly with 5 respect to issues related to torture obviously. The focus 6 was very much on whether it would happen in Canada. I 7 certainly don't have the authority nor would, we're a 8 complicated organisational beast, nor would our 9 international office have the authority to make decisions 10 or even really to launch discussions about whether a 11 lawsuit should be launched in some other country. 12 45. Q. So you did urge any of your related Amnesty 13 International groups to launch similar lawsuits in their 14 countries? 15 A. No, we didn't. 16 46. Q. Did you consider urging them to do that? 17 A. No, I don't think we did. We certainly have 18 through a variety of different channels sought to make 19 Amnesty International sections in those other countries 20 aware of the work we've been doing not just with respect 21 to the lawsuit because there were of course many years of 22 work around these issues that preceded the lawsuit and to 23 update them on the fact that we had taken this step but 24 we've left decisions about what those other sections feel 25 is the most strategic or useful way to take up the issue 14 1 in their national contexts to them to make. 2 47. Q. I guess it's fair to say there's a variety of 3 ways to obtain the change you seek. I think as you 4 described you did a letter writing campaign, you showed up 5 at committees. Other Amnesty groups would do the same in 6 their countries I assume? 7 A. Absolutely. I mean Amnesty International is 8 not a legal -- I'm trying to think of the right phrase 9 here. Going to court is not a standard part of our -- we 10 certainly do it from time to time both by means of 11 intervening in relevant court proceedings and even more 12 exceptionally by initiating our own court proceedings. We 13 do that in Canada. We do that in other countries. 14 48. Q. And I'll take you to that. We'll talk about 15 that. Just again looking at paragraph 8 of your affidavit 16 you indicate that you've been employed by Amnesty prior to 17 your current position as secretary general for 15 years 18 and that was with the secretariat in London, not with AIC 19 here. 20 A. Just to clarify, I've been a member of Amnesty 21 International for 15 years before starting this job. My 22 employment with Amnesty before starting the job was for a 23 total of three years. 24 49. Q. That would be 1997? 25 A. No, it wasn't immediately before. In 1992 and 15 1 1993 I was employed at the national level here in Amnesty 2 International as coordinator of our refugee program. Then 3 I worked in 1996 and 1997, let me just check that I'm 4 getting my years right here, at our international office 5 as part of our Africa program. In January of 2000 I took 6 up my current job. I first became a member of Amnesty 7 International back in 1985. 8 50. Q. You've got paragraph 8 in front of you. Just 9 so I'm clear that where it says that you're employed by 10 AIC and by international secretariat in London, England 11 for three years, that's your clarification? 12 A. That's what I've just described to you. The 13 15 years was referring to being a member. 14 51. Q. It was my misunderstanding. 15 A. That is now more than 15 years. That was 15 16 years when I took up the job. 17 52. Q. You indicate there that you've been involved 18 in various research missions and monitoring. In '92/'93 19 was that with respect to refugees? 20 A. Yes, although in 1992 and 1993 I didn't 21 participate in any international research missions at that 22 time. My work was very domestically focused on issues 23 arising in the Canadian refugee determination system which 24 would have involved working with individual refugee 25 claimants in Canada and also working on public education, 16 1 government policy, sort of wider issues. 2 53. Q. Later in '96 at the Amnesty International 3 secretariat? 4 A. Yes, I did participate in a research mission 5 at that time, actually the first international mission 6 that I was part of and that was a mission to Tanzania 7 focusing on the plight of refugees from Burundi. 8 54. Q. During the 15 years then that you were a 9 volunteer were you involved in any other research missions 10 or monitoring in assistance of Amnesty? 11 A. When I was volunteer as opposed to --- 12 55. Q. An employee, yes. 13 A. Yes. I was part of a research mission to 14 Ghana in West Africa focusing on a situation of Liberian 15 refugees and a short very focused mission to Mexico. In 16 these days my expertise was very much in the refugee area 17 and it was focused on refugee issues also. All the other 18 missions I've been part of since have been since I've 19 taken up my current job. 20 56. Q. Just so I'm clear, during those 15 years that 21 are referenced in paragraph 8 you've never travelled to 22 Afghanistan to do any research or monitoring? 23 A. I've never been to Afghanistan in my life. 24 57. Q. You agree with me and you can maybe help me if 25 I've missed it, as I understand it I see nothing in your 17 1 affidavit sworn today that any employees of AIC Canada 2 have travelled to Afghanistan directly to interview 3 witnesses or to review the conditions of Afghan jails. Am 4 I missing something? Is there something in there? 5 A. That employees of AI Canada have never gone to 6 Afghanistan? 7 58. Q. To monitor or research the conditions? 8 A. In jails? Yes, that has not happened. 9 59. Q. That's why it's not in your affidavit then? 10 A. That's right. 11 60. Q. Just if I can take you again to the Notice of 12 Application which we've made Exhibit 2 for the purpose of 13 this matter? We'll go to page 3. The second paragraph in 14 references "In December 15, 2005 General Rick Hillier the 15 Chief of the Defence Staff for the Canadian Forces signed 16 an agreement with Abdul Raheem Wardeck, Afghanistan's 17 Minister of Defence, to establish procedures for the 18 transfer of individuals captured and detained by Canadian 19 Forces in Afghanistan." 20 A. I see that paragraph. 21 61. Q. Below the next paragraph when you say the 22 "Canada-Afghanistan Detainee Agreement," you're referring 23 to this December 18, '05 agreement? 24 A. Yes. That was the only one in existence at 25 the time. 18 1 62. Q. We'll talk about that. If I can take you 2 through what would be paragraph number 3 there, the first 3 thing you note is that that particular agreement doesn't 4 provide adequate safeguards to ensure that detainees will 5 not be tortured by Afghan Forces? 6 A. That's right. 7 63. Q. In fact the first thing you say is that one of 8 the problems is that Canadian officials have no right to 9 access detainees who have been transferred? 10 A. That's right. 11 64. Q. Also another problem is that there is no role 12 in monitoring those detentions in that agreement? 13 A. That's right. 14 65. Q. You also say that the agreement contemplates 15 Afghanistan may transfer detainees received from Canada 16 onwards to the custody of a third party and that's another 17 deficiency? 18 A. That's right. 19 66. Q. Your concern isn't so much that they go to a 20 third party but rather that they go to a third party that 21 could actually torture or execute these detainees? 22 A. That's right. 23 67. Q. In fact I think in particular your concern is 24 for example a transfer to the United States? 25 A. It's given as an illustration here simply 19 1 because that was past practice but we would be concerned 2 with the transfer of prisoners into the custody of any 3 third government is there was a serious risk of torture or 4 execution or other serious human rights violations. 5 68. Q. Certainly it's your assertion in this 6 application that for example a transfer to Guantanamo Bay 7 would carry that risk? 8 A. We would be opposed to a transfer to 9 Guantanamo Bay, yes. 10 69. Q. That would be because it carries the potential 11 for torture? 12 A. The potential for torture, the potential for 13 execution, and the potential for other human rights 14 violations related to due process and fair trial rights, 15 et cetera. 16 70. Q. In terms of torture though, I mean due process 17 is certainly an issue, but in terms of torture is there a 18 substantial risk of torture if they're transferred to 19 Guantanamo Bay? 20 A. There is, yes, torture and ill treatment. 21 71. Q. In paragraph 4 you also note one of the 22 underlying concerns with the agreement is that you've got 23 grounds to believe, it says substantial grounds to believe 24 that Afghan Forces are torturing detainees and you say 25 there's an extensive record of torture in Afghanistan and 20 1 in fact you refer to reports of the U.S.? 2 A. That's right, yes, the U.S. State Department. 3 72. Q. Just so we're clear, none of those U.S. State 4 Department reports have been attached to your current 5 affidavit? 6 A. I don't recall if they have been or not. 7 73. Q. No, they haven't been. Just if I can take you 8 now moving in to your request for relief itself which is 9 at page 4 of that Notice of Application, Mr. Neve, what 10 you ask for first of all and this is at the bottom of page 11 4, paragraph (a), what you seek here in this application 12 is a declaration that the Canada-Afghanistan agreement and 13 that's the December 18, 2005 agreement that's referenced 14 in the third page? 15 A. That's right. 16 74. Q. I used the word agreement because I have 17 dyslexia when I read obviously. You refer to it as 18 agreement. Certainly just for clarity, we refer to it as 19 an arrangement. 20 A. We know the document we're talking about. 21 75. Q. Yes. You seek a declaration that it violates 22 sections 7 and 12 of the Canadian Charter of Rights and 23 Freedoms and it lays out the reasons therefore. In your 24 next paragraph on the next page you ask for a writ of 25 prohibition stopping the forces from transferring 21 1 detainees into custody until there are adequate and 2 substantial procedural safeguards? 3 A. Adequate, substantive, and procedural, that's 4 right, yes. 5 76. Q. Again you agree with me it's because at that 6 time the agreement in place didn't provide the safeguards 7 you needed or thought were required? 8 A. When we're seeking the writ of prohibition 9 here we're focusing on the practice not the agreement 10 itself. We would want there to be in place substantive 11 and procedural safeguards against the risk of torture 12 before we would be satisfied that it was appropriate to be 13 transferring individuals into Afghan custody pursuant to 14 any arrangement. 15 77. Q. Fair enough. You'll agree with me, sir, that 16 in terms of this application that December 18, 2005 17 arrangement, or what you say is an agreement, didn't 18 provide the safeguards that you thought were required? 19 A. No, it didn't. 20 78. Q. You also in the next request for relief down 21 you seek a write of mandamus actually requiring the 22 respondents to enquiring into the conditions of the 23 detainees who are transferred from the Canadian Forces to 24 the custody of other countries since 2001? 25 A. That's right. 22 1 79. Q. Again that's something that wasn't in the 2 December 18, 2005 arrangement? 3 A. That's right. 4 80. Q. If I can just take you to page 6 briefly and 5 in particular I'm trying to understand the reference at 6 paragraph (f) where you say by transferring detainees into 7 custody of states that may torture them Canada is in 8 breach of the Convention Against Torture and you carry on. 9 Is it your proposition that the international law standard 10 is that Canada may not transfer any detainees where they 11 may be tortured? 12 A. We would use the standard that is in the 13 Convention Against Torture which if I'm correct is where 14 there's a serious risk of torture. I would want to verify 15 what the wording is but it would be our -- Amnesty 16 International always works within the international legal 17 framework and the standard we would use is the one laid 18 out in Article 3 of the Convention Against Torture. 19 81. Q. You agree with me that whether you call it 20 serious or substantial risk, that's the test? It's not 21 maybe a risk? 22 A. That's right. 23 82. Q. Thank you. Is it also your position that in 24 transferring detainees, whether it's a substantial risk, 25 that the Charter is engaged because the right not to be 23 1 transferred under that risk is something that's subsumed 2 under the Charter as well? 3 A. That's correct. I mean I don't want to 4 suggest that I'm capable of sort of laying out the 5 sophistication of our Charter argument. I think our 6 starting point, the reason Amnesty International is 7 concerned about this issues, the reason we've raised it 8 with the government and the reason in the end we felt 9 compelled to turn to the courts was our concern that 10 Canada is not complying with its international legal 11 obligation here and that there is a case to be made that 12 that also raises concerns under the Charter of Rights. 13 83. Q. Fair enough. Thank you. Having reviewed the 14 application in your exhibit I see nothing in there that 15 alleges that Canadian citizens are being handed over to 16 Afghan authorities who in turn are torturing them or where 17 there's a substantial risk of torture. Is that correct? 18 A. We certainly are not aware of any such cases. 19 I wouldn't want to suggest that means that it doesn't 20 happen but that's not the focus of our application. 21 84. Q. In fact in the letters that you have as 22 exhibits in your affidavit there's no reference of 23 Canadians who are transferred to Afghans? 24 A. Yes. 25 85. Q. There are other countries where that's an 24 1 issue but not in Afghanistan? 2 A. That's right. 3 86. Q. Thank you. 4 A. Again I'm not trying to assert that that has 5 never happened. 6 87. Q. Fair enough. If I can take you now to 7 paragraph 12 of your affidavit, Mr. Neve? I think you 8 talked a little bit about this before where you say that 9 AIC advocates against torture at the level of policy, at 10 the level of judicial process, and at the level of grass 11 roots campaigning and then you go on to give some 12 examples. I think it was your evidence earlier that for 13 example engaging in a lawsuit either as an intervener or 14 as a direct party is a rare occasion with Amnesty and in 15 fact it would be fair to say that as a matter of course 16 it's a matter of last resort? 17 A. It's always hard to measure what last resort 18 is but it's certainly something well down the road of 19 options we would consider. 20 88. Q. You would try letter writing first? 21 A. Absolutely and public education and media 22 attention and direct one-on-one lobbying with relevant 23 officials at all levels be it ministerial or departmental 24 officials. When that's unsuccessful or when we're unable 25 to open up the avenues of dialogue we would like then 25 1 going to court is one option we may consider. 2 89. Q. In fact that's what ultimately has happened 3 here from my understanding of it? 4 A. That's right. We first began raising concerns 5 about Canada's prisoner practice in Afghanistan in early 6 2002. It was quite a number of years before, five years 7 before we then took the decision that we were going to 8 turn to the courts. 9 90. Q. We'll talk about the letters that you lay out 10 after paragraph 19 in your affidavit in just a moment. I 11 guess maybe the way to summarize it is it fair to say that 12 certainly by the time of your last appearance before the 13 Standing Committee on Defence in December of 2006 and 14 that's Exhibit E, the transcript of that, in your 15 affidavit that your attempts to have the government impose 16 monitoring and other safeguards that you didn't see in the 17 December 18, '05 agreement had failed at least at the 18 political level? 19 A. That was absolutely our position. The only 20 change that had ever happened of course was the change in 21 2005 of replacing the practice of transferring into U.S. 22 custody with the practice of transferring into Afghan 23 custody which in our view replaced one set of problems 24 with another. 25 91. Q. Just so we're clear, the 2005 agreement 26 1 certainly came after Amnesty International Canada was 2 involved in a lot of letter writing, lobbying in support 3 of some sort of agreement that would provide safeguards? 4 A. We we're lobbying for an agreement. We were 5 lobbying for the practice of transferring into U.S. 6 custody to come to an end unless in some way it could be 7 demonstrated that the concerns we had about torture and 8 other serious human rights violations would be addressed 9 for instance absolute binding assurances that no one 10 transferred into U.S. custody would be subjected to the 11 death penalty. As the concerns grew over that period 12 about the nature of what was happening at Guantanamo Bay, 13 we also sought assurances that prisoners wouldn't end up 14 at Guantanamo Bay. 15 92. Q. Maybe I can take you through some of the 16 evolution of this. In your affidavit one of the examples 17 you gave in terms of policy and briefing action is a 18 report that Amnesty International provided to I believe it 19 was the U.N. Committee Against Torture and this is 20 essentially a review of some of the topics that Amnesty 21 International Canada found important in Canada and the 22 title of it, it's Exhibit A of your affidavit, and we 23 won't make it an exhibit again, it's called "Redoubling 24 the Fight Against Torture." 25 If we look at the first sort of substantive 27 1 discussion at page 2 there's a discussion about justice in 2 the face of torture. Your reference in there relates to 3 the ability of Canada or the willingness of Canada to 4 prosecute people who have tortured other people, those 5 sorts of things. It has nothing to do with the Afghan 6 detainees, transferring of Afghan nationals by Canadian 7 Forces to Afghan authorities? 8 A. That's right, yes. 9 93. Q. As you move on you do talk about in the next 10 part which is at page 5, its title is "Return to Torture," 11 I think we also here -- this is about returning immigrants 12 or refugees to states where they face persecution and in 13 fact torture? 14 A. That's right. 15 94. Q. Again nothing about the transfer of Canadian 16 Forces detainees in Afghanistan to the Afghan authorities? 17 A. That's correct. 18 95. Q. The next brief is about torture abroad and 19 it's at page 7, the next part of the brief, number 3. 20 This is really about the transfer of Canadian citizens 21 either -- this is sort of the Arar type of situation where 22 a Canadian citizen is sent from one country to another 23 country where they may be tortured? 24 A. That's right although it actually refers to 25 other cases too, the William Sampson case, the Zahra 28 1 Kazemi case. It's essentially focusing on instances where 2 Canadian citizens have been tortured abroad and what is 3 needed to be done on the part of the Canadian government 4 to better safeguard against that. 5 96. Q. Again nothing in that heading about the 6 particular issue in this lawsuit? 7 A. That's right. 8 97. Q. Part 4 which is at page 10 is about indigenous 9 peoples. I'll assume by the title, indigenous peoples, 10 again has nothing to do with the issues in this lawsuit? 11 A. That's right. 12 98. Q. Part 5 at page 14 is simply dealing with the 13 use of taser guns? 14 A. That's right. 15 99. Q. Part 6 which is the next page over is about 16 federally sentenced women prisoners? 17 A. That's correct. 18 100. Q. The last part is about the ratification of the 19 optional protocol to the Convention Against Torture and 20 cruel, inhumane and degrading treatment of punishment? 21 A. Yes, that's right. 22 101. Q. In none of those last three areas of 23 discussion is there any discussion in particular about the 24 issue that's now in this lawsuit? 25 A. That's right. 29 1 102. Q. If I could move you on to the next --- 2 A. If I could make the obvious point, this is 3 2004 before the practice of transferring into Afghan 4 custody had emerged and while certainly there was some 5 concern about torture as a serious risk in the practice of 6 transferring to U.S. custody, that was much less the case 7 then once the practice of transferring into Afghan custody 8 emerged. 9 103. Q. You'll agree with me that this certainly comes 10 to a head in the next exhibit? This is your April 3rd, 11 2006 letter to the then Minister of Defence, the 12 Honourable Mr. Gordon O'Connor, Exhibit B? 13 A. Yes. 14 104. Q. Maybe we can take a look at that. The first 15 paragraph in the letter references that in 2002 you wrote 16 about again the decision to transfer detainees into U.S. 17 custody given the U.S. position not to formally abide by 18 the Geneva Conventions? 19 A. That's right. 20 105. Q. Nothing about Afghan detainees here in that 21 paragraph? 22 A. No. We wrote to Minister Eggleton about the 23 practice of transferring Afghan detainees. 24 106. Q. To Americans? To the U.S.? 25 A. Yes. 30 1 107. Q. Fair enough. You say in the next paragraph 2 down that you've written several times since. Again you 3 said reports about torture and mistreatment of detainees 4 in U.S. detention facilities in Afghanistan? 5 A. That's right. That would refer to places like 6 Bagram base. 7 108. Q. Again you then say that some of the detainees 8 handed over by Canadian troops were going to Guantanamo 9 Bay? 10 A. Yes. 11 109. Q. And again the next paragraph down your concern 12 is about the U.S. practice dealing with those detainees 13 and you want Canada to stop transferring to the U.S.? 14 A. That's right. 15 110. Q. The next paragraph you say that you had a 16 meeting with the then Minister of Defence, Mr. Graham, 17 that would be the Honourable Bill Graham, and the judge 18 advocate general. At that time you were told that there 19 would be an agreement that detainees would be transferred 20 into Afghan custody rather than U.S. Forces? 21 A. That's correct. 22 111. Q. It's at that point in 2005 that you say that 23 you then raised concern about mistreatment of prisoners 24 and conditions in Afghan detention centres? 25 A. That's right. 31 1 112. Q. At that point in time, there's nothing in the 2 letter that attaches any other material. Did you provide 3 any other material when you met with that Mr. Graham and 4 the judge advocate general in 2005? 5 A. Not at the time of the meeting but with the 6 November 21st letter. Is that here? With the November 7 21st letter, as I recall, we included a copy of a report 8 that Amnesty International itself had put out maybe two 9 years earlier on prison conditions in Afghanistan. 10 113. Q. Was that report focused on the physical 11 conditions? I know you raise issues about over crowding, 12 lack of washrooms, sanitary facilities, heating, broken 13 windows. Was it focused on that? 14 A. That was its primary focus but it also did 15 have reference to concerns about physical abuse and 16 torture and ill treatment and the approach that was taken 17 to shackling and the treatment of prisoners and those 18 sorts of things. Certainly much of the report was focused 19 on prison conditions. 20 114. Q. That report is not included in your affidavit 21 anywhere that I see. 22 A. No, I don't believe it is. 23 115. Q. Just moving on to the next page and it's not 24 numbered but it's the second page in, Mr. Neve, you note 25 that by this time there is a new arrangement and of course 32 1 that's the Canada-Afghanistan agreement that you refer to 2 in the Notice of Application of December 18, 2005? 3 A. That's correct. 4 116. Q. You have some questions that you lay out in a 5 bulletin. You also lay out some specific concerns. Maybe 6 just while we're at this point I can -- we've talked about 7 this agreement a bit, arrangement a bit. Maybe what I'll 8 do is propose to make this Exhibit 4. It's also an 9 exhibit, I believe Exhibit Y, to the affidavit of Yavar 10 Hameed in the main application. Just have a look so you 11 see and confirm that is the December 18, 2005 arrangement. 12 A. Yes. 13 MR. ANDERSON: I'll ask you some questions about 14 the arrangement, Mr. Neve. Why don't we make it an 15 exhibit and I'll give you a copy of this. 16 EXHIBIT NO. 4: Arrangement for the Transfer of 17 Detainees between the Canadian Forces and the 18 Ministry of the Defence of the Islamic Republic of 19 Afghanistan. 20 MR. CHAMP: Mr. Anderson, I'll just note for the 21 Record again you know our position that in a motion to 22 strike it's not appropriate to get into facts as alleged 23 in the matter and that the affidavit of Mr. Neve is 24 relevant to the issue of standing and therefore it's our 25 view that basically all these questions you're asking are 33 1 irrelevant to the application, however, in an effort to 2 expedite matters, we're allowing you to ask them under 3 reserve. I'll note that for the Record, at least for this 4 transcript and I would trust that we're not going to take 5 all afternoon on these kinds of questions. *O* 6 MR. ANDERSON: We shouldn't, especially with the 7 limited intervention you've taken. We should be done in 8 time. 9 MR. CHAMP: That's the reason I've done that. 10 MR. ANDERSON: Just to respond to your objection, 11 you've got my letter. You understand our position. I 12 won't reiterate it again but I will note that these 13 questions go directly also to issues of standing and some 14 of the other issues that certainly call for evidence and 15 this particular agreement of course is directly in dispute 16 in this application as Mr. Neve has already admitted. 17 MR. CHAMP: And I note the moving party didn't 18 enter it in evidence. 19 MR. ANDERSON: The moving party doesn't have to. 20 In any event, we're going to call this Exhibit 4. 21 BY MR. ANDERSON: 22 117. Q. I think your counsel indicated that he was 23 aware that this was an exhibit to the Yavar Hameed 24 affidavit. Mr. Neve, are you aware that this was an 25 exhibit to Mr. Hameed's affidavit? 34 1 A. Yes, I am. 2 118. Q. Obviously this is the December 18, 2005 3 arrangement that's referenced in the Notice of 4 Application? 5 A. Yes, it is. 6 119. Q. Thank you. I'll give you this to look at it. 7 As I understand it there is also another arrangement 8 dealing with Canadian detention and in particular how to 9 deal with Canadian personnel. This is Exhibit L to the 10 Hameed affidavit. I'll show you this first. This is 11 what's called a technical arrangement. I'm going to show 12 you a copy of those and you can tell me, Mr. Neve, if 13 you've seen these before. 14 A. Yes. I'm not by any means intimately familiar 15 with it. 16 MR. ANDERSON: Fair enough. I'll give you this. 17 It's nice and stapled for you. I'm going to make that 18 number 5 for now. 19 EXHIBIT NO. 5: Technical Arrangements between the 20 Government of Canada and the Government of the 21 Islamic Republic of Afghanistan. 22 BY MR. ANDERSON: 23 120. Q. The last matter dealing in particular with 24 detention issues with Afghanistan is an annex to the 25 arrangement regarding status of Canadian personnel in 35 1 Afghanistan. I'll show this to you. It's also Exhibit M 2 to the affidavit of Yavar Hameed. If you can have a look 3 at that, Mr. Neve, and let me know if you've seen that 4 document before. 5 A. Yes, I've seen it. I again don't have much 6 familiarity with the content. 7 MR. ANDERSON: Fair enough. I'm going to make 8 this Exhibit 6. 9 EXHIBIT NO. 6: Arrangements Regarding the Status 10 of Canadian Personnel in Afghanistan. 11 BY MR. ANDERSON: 12 121. Q. Just looking at this particular document -- 13 I'll take you to the one before actually which was the 14 technical agreement which should be Exhibit 5. If you 15 look at the last page you'll see that this arrangement was 16 also signed December 18, 2005? 17 A. Yes, I see that. 18 122. Q. The annex to the arrangement doesn't appear to 19 have a specific date. 20 A. No, I don't see a date on it either. 21 123. Q. You agree with being an annex to the technical 22 agreement this certainly would have been at play at the 23 time of your application for judicial review? 24 A. I don't feel I'm in a position to sort of know 25 what the proper relationship is between the documents. 36 1 124. Q. Fair enough. You agree it existed by 2 certainly March 2007? 3 MR. CHAMP: Mr. Neve can't speak to it. It's not 4 his affidavit and the document wasn't publicly available 5 at the time. 6 MR. ANDERSON: Mr. Neve has seen he's seen it 7 since and it's just a question of whether it was in play 8 during the time you filed your application for judicial 9 review. 10 THE WITNESS: Whether these documents --- 11 BY MR. ANDERSON: 12 125. Q. These documents along with the arrangement 13 that you reference in the Notice of Application were in 14 play as part of the scheme? 15 A. The sort of backdrop? 16 126. Q. Yes. 17 A. Yes, I guess I would accept that. 18 127. Q. Nothing more than that. If I can take you to 19 Exhibit B of your affidavit, Mr. Neve? In terms of the 20 issues that you raise, this is at page 2, the bullet, the 21 first bullet notes that the agreement implies that it's in 22 the event of a transfer to Afghan authorities and then you 23 say it doesn't require a transfer and you say this leaves 24 open the possibility that they will not be transferred to 25 Afghan custody and they'll either remain in Canadian 37 1 custody or be transferred somewhere else and the point in 2 this is I think in the next sentence that this raises the 3 concerns again about transfer to the U.S. and Guantanamo 4 Bay and the other issues. That's correct? 5 A. Yes. I mean that's the specific concern but 6 in general we're just wanting to clarify. All of these 7 questions are phrased as concerns that we have about the 8 agreement that we're trying to clarify. 9 128. Q. Some of them are pointing out problems more 10 than just asking concerns, you'll agree with me? 11 A. I believe that's probably the case, yes. 12 129. Q. In fact I think the next one down is you note 13 that this arrangement, that would be the December 18, '05 14 arrangement, references the third Geneva Convention but 15 you say it doesn't explicitly refer to any international 16 legal rights or obligations and you note that that sort of 17 reference does exist in the Dutch agreement and you're 18 concerned about that. That's another issue? 19 A. Yes. 20 130. Q. The next one after that is questions about 21 culpability of Canadians? 22 A. That's right. 23 131. Q. The next one after that, and I think this ties 24 into your first one, you can confirm that for me, that you 25 want to know if the government considers this arrangement 38 1 will ensure that there are no further transfers by Afghan 2 officials into custody of another government without 3 Canadian consent? 4 A. That's right. 5 132. Q. The point is you want to make sure that Canada 6 remains in some sort of control to ensure that people 7 aren't then transferred somewhere else where they could 8 face a substantial risk of torture or other poor 9 conditions? 10 A. That's correct. 11 133. Q. Just moving to the bullet on the next page you 12 also ask the government to explain why this agreement 13 doesn't appear to provide the same level of monitoring as 14 the arrangement between the Afghan and Dutch governments? 15 A. Yes, we've asked that question. 16 134. Q. I think it's implied in there that's a 17 shortcoming of the December 18, 2005 arrangement? 18 A. It is. I mean we've certainly not suggested 19 that if the two were the same we would be satisfied. 20 These are questions we are asking so that we can better 21 understand the nature of this agreement. 22 135. Q. Fair enough. If I can move you then to your 23 next letter? There was a response letter which is Exhibit 24 C. I won't take you there but I'll take you, Mr. Neve, to 25 your next letter which is November 14, 2006 again to 39 1 Minister O'Connor then Minister of Defence. That again is 2 Exhibit D. 3 A. Just to clarify, I guess it's not in the 4 affidavit but there was a further letter. You'll notice 5 it's referenced in the minister's reply that he was 6 actually responding to letters of April 3rd and May 12th. 7 I guess the May 12th letter isn't in here. The November 8 14th letter isn't the next one. It's the one after that. 9 136. Q. Let's look at the November 14th letter. In 10 paragraph 2 you again note under the heading "Concern 11 regarding treatment of detainees turned over to Afghan 12 authorities" you've expressed concerns before about the 13 conditions in Afghanistan and you go on to discuss some of 14 that in the next page. Did you attach any specific 15 reports, any witness statements, any transcripts of 16 interviews or tapes of interviews to this letter? 17 A. No, we did not. 18 137. Q. Just looking at what I have called paragraph 7 19 and 8, these are the last three paragraphs at page 2 of 20 that letter that starts "Press reports and Amnesty 21 International's own research provides grounds for 22 concern." The letter lays out recommended changes needed 23 to address these concerns and then you go on to list the 24 concerns. You say that on June 3rd, '06 a news report 25 from the Globe and Mail reports on a CTV television crew 40 1 travelling with Canadian troops that recorded the radio 2 chatter of a soldier saying that he was concerned that 3 Afghan Forces were preparing to summarily execute a man 4 caught in a raid. The quote is "Either we take him or he 5 gets executed" the soldier reportedly said although the 6 detainee was later turned over to a different group of 7 Afghans. 8 On that first point you'll agree with me that the 9 soldiers in question, at least in this scenario, 10 understanding that this man was in substantial risk of 11 being killed opted and chose not to turn him over to 12 Afghan authorities, those Afghan authorities at that point 13 in time? 14 A. Yes. I mean there's obviously a lot we don't 15 know about what later happened and who the other group of 16 Afghans were but clearly they took action here in the face 17 of what they saw was a very real risk of summary 18 execution. 19 138. Q. That's your point in the international law? 20 Where you know there's a real risk, for example in this, 21 you take action to make sure that that individual isn't 22 subjected to that risk? 23 A. That's right. 24 139. Q. Just looking at the next paragraph down you 25 relate that same Globe and Mail report noting that this 41 1 sort of intervention has happened on at least two 2 occasions. In other words, Canadian Forces soldiers have 3 taken the precaution of ensuring that they don't transfer 4 Afghan detainees to some Afghan authorities who will 5 appear to be in a position to do them harm? 6 A. That's right. 7 140. Q. Will you agree with me in making the decision 8 not to transfer these people when there's a substantial 9 risk as in these two cases that the CF Forces at that 10 point in time are certainly compliant with any 11 international law obligations? 12 A. Well, these are two --- 13 141. Q. In these two instances? 14 A. --- specific episodes. 15 142. Q. That's all I'm referring to, just these two. 16 A. In those two with the information we have it 17 does appear that proper decisions were made. 18 143. Q. Thank you. Just moving on to the next page, 19 your first two paragraphs under the heading 1.1 "Concerns 20 over the transfer of detainees to the National Security 21 Directorate," in the second paragraph under that heading 22 you refer to December '05 Amnesty International 23 information it received? 24 A. That's right, yes. 25 144. Q. The next paragraph down you refer again to a 42 1 record of allegations in 2004 again relating to the 2 National Security Directorate? 3 A. Yes. 4 145. Q. There's nothing in the reference to the 5 National Security Directorate that provides any reports 6 that are more up to date than December 2005 that I can 7 see. Am I missing something? 8 A. No. In the information that's provided here, 9 that's the most recent case that's highlighted. 10 146. Q. Thank you. Certainly there's no reference in 11 this letter to any particular reports of torture after 12 December 2005? 13 A. I would have to go through the letter to 14 clarify that. 15 147. Q. Do you want to take a minute to do that? Do 16 you want to have a bit of a break to get some water and 17 you can look at the letter, Mr. Neve? 18 A. Sure. 19 (SHORT RECESS) 20 BY MR. ANDERSON: 21 148. Q. The last question I asked was whether or not 22 there were reference to any other reports or evidence 23 after December 2005 and the letter that's at Exhibit D to 24 Mr. Neve's affidavit. We took a moment to give Mr. Neve 25 some time to look to see whether there were other reports. 43 1 I see Mr. Neve is now ready to answer that question. 2 A. The one reference I see, although it doesn't 3 use the word torture specifically, is at the bottom of 4 page 3 where we refer to deaths in NSD custody in the 5 course of 2006. I guess just the other point I would make 6 is the reason that the time period is what it is in this 7 letter is it reflects the fact that we had had a research 8 mission because we don't maintain a permanent presence in 9 Afghanistan and we had had a research mission in southern 10 Afghanistan in late 2005 so obviously specific 11 illustrations of cases, et cetera, would reflect things 12 that they had been hearing at that time. 13 149. Q. Just to go on in terms of all of these reports 14 it's a common refrain I think that there's no reference in 15 the reports in this letter about any Canadians who are 16 transferred from Canada to Afghanistan in the theatre? 17 A. Canadian prisoners? 18 150. Q. Yes. 19 A. No. 20 MR. CHAMP: If it speeds up or avoids any further 21 questions, we are not alleging and have no knowledge of 22 any Canadians in Afghan custody or at the subject of this 23 application. 24 BY MR. ANDERSON: 25 151. Q. Mr. Neve, I'll let you adopt, just so it's 44 1 easier, that answer if you wish and we'll just carry on. 2 A. Is it enough for me to say I adopt what my 3 counsel just said? 4 152. Q. We're good with that. Technically, no, but 5 it's fine. 6 A. That's fine. In this application neither 7 Amnesty International nor the B.C. Civil Liberties 8 Association are alleging that Canadian citizens have been 9 the subject of transfers from the custody of Canadian 10 military officials into the custody of Afghan officials. 11 153. Q. As we go on through your letter you also speak 12 at page 4 and point 1.3 "Detention conditions in 13 Afghanistan"? You talk about the wide ranging 14 shortcomings in Afghanistan prisons. As you go through 15 there I think what you're talking about there is for the 16 most part physical conditions, the physical facility 17 conditions? 18 A. Yes, this particular section is focused on 19 conditions. 20 154. Q. You'll agree with me, Mr. Neve, that 21 Afghanistan itself has very little infrastructure 22 nowadays? 23 A. That's correct. 24 155. Q. In fact most people don;t at this point enjoy 25 regular plumbing or heating or buildings with windows for 45 1 the most part in Afghanistan? It's not like Canada? 2 MR. CHAMP: I think Mr. Neve has testified that he 3 hasn't been to Afghanistan. 4 MR. ANDERSON: That's true but he has knowledge of 5 it from his research missions. 6 THE WITNESS: The reason that we raise the concern 7 here and the reason that Amnesty International published 8 its report in July 2003 is that prison conditions in a 9 whole variety of different ways in Afghanistan were in our 10 view not consistent with international standards. That 11 doesn't mean we don't also share the concern that more 12 needs to be done to address poverty more widely in 13 Afghanistan but in our human rights work we would never 14 trade the rights of one group off against another by 15 concluding that since others have it bad as well, everyone 16 should have it bad. We would press for improvements on 17 all fronts and certainly the report from 2003 and the 18 reason the concerns are highlighted here is that we think 19 Afghanistan obviously drawing upon meaningful and 20 substantial and generous support be it financial and 21 otherwise from the international community is needed to 22 address these concerns. 23 BY MR. ANDERSON: 24 156. Q. So the position you're taking is that 25 Afghanistan should have conditions at least as good in its 46 1 jails as here in Canada? 2 A. We don't work to national standards. We work 3 to international standards. It's entirely possible that 4 there are ways in which prison conditions in Canada exceed 5 international standards. If that's the case, while we 6 wouldn't oppose obviously a move to meet the best standard 7 possible, our concern is that it meets international 8 requirements. 9 157. Q. Fair enough. We'll move on to your next 10 exhibit. This is Exhibit E and this is the transcript of 11 the proceedings before the standing committee on national 12 defence. I think you can confirm for me that of course 13 you were one of the participants there on that day? 14 A. That's correct. 15 158. Q. As I understand it one of the other 16 participants is someone who is involved in this lawsuit 17 and that is Professor Michael Byers? 18 A. He's not involved in the lawsuit. He has 19 provided an expert affidavit. 20 159. Q. His expert affidavit is because he is an 21 expert in international law? 22 A. That's right. 23 160. Q. I think you've said before your intent to move 24 before the committee was to secure the sorts of safeguards 25 Amnesty International Canada perceives are required to 47 1 meet international law in terms of dealing with Afghan 2 detainees? 3 A. That's right. 4 161. Q. Certainly one of the things that you highlight 5 and I'll take you to page 38, looking through this I think 6 actually Professor Byers provided some testimony 7 immediately before you, if you recall? 8 A. I think that was the order, yes. Yes, it's 9 clear from the transcript. 10 162. Q. You were there to hear Professor Byers' 11 testimony? 12 A. I was. 13 163. Q. Once Professor Byers' testimony is finished, 14 your testimony starts at page 35? 15 A. Yes. 16 164. Q. You go through to talk about many issues 17 recounting your letters. Certainly by page 37 you 18 highlight for the committee four key points and you start 19 at the bottom of page 37. The first key point of course 20 is the concern that Amnesty has with respect to the 21 prevalence and severity of torture and ill treatment in 22 Afghan prisons and in particular the National Security 23 Directorate? 24 A. That's right. 25 165. Q. You indicate there are substantial grounds to 48 1 believe that when they're transferred they'll be subjected 2 to that sort of treatment? 3 A. Yes. 4 166. Q. At that point in time though before that 5 committee you didn't provide any specific reports from 6 Amnesty International about that treatment? 7 A. No, I didn't. 8 167. Q. In fact not that December '05 report that came 9 as a result of Amnesty's mission to Afghanistan? 10 MR. CHAMP: The 2003 report I think, wasn't it? 11 MR. ANDERSON: The last mission Mr. Neve said was 12 in 2005. 13 THE WITNESS: The mission was. There wasn't a 14 public report at that time. 15 BY MR. ANDERSON: 16 168. Q. You didn't provide any notes or other accounts 17 from that 2005 visit when you were at the committee this 18 day? 19 A. No, I didn't. 20 169. Q. The second point you note is you reference, 21 and this is I think some of the discussions that had gone 22 on about the effectiveness of the international committee 23 of the Red Cross and in particular its relationship with 24 other governments, its confidential relationship, and you 25 conclude by noting there that absolutely the monitoring 49 1 and oversight provisions must be strengthened, talking at 2 this point about the December 18, '05 arrangement, and at 3 the very least must be consistent with the provisions of 4 the Dutch memorandum? 5 A. That's right. 6 170. Q. In fact you may or may not recall that your 7 reference to this is in reference to some of the 8 discussion that Professor Byers had discussed earlier 9 about comparing the Canadian arrangement at the time with 10 the Dutch memorandum of understanding? 11 A. I don't remember the details of it but that 12 sounds familiar, yes. 13 171. Q. Just so I'm clear, obviously this testimony 14 was in December 2006 and I think it's fair to say that by 15 January 2007 certainly those concerns weren't addressed? 16 A. By January 2007 what concerns weren't 17 addressed? 18 172. Q. The concerns you raise before the committee in 19 December 2006 still hadn't been addressed? 20 A. In January --- 21 173. Q. The next month. 22 A. Yes, that's right. 23 174. Q. They still weren't addressed in February? 24 A. That's right. 25 175. Q. And that's what then prompted the lawsuit? 50 1 A. That's right. 2 176. Q. We talked about Professor Byers. As I 3 understand it to date Amnesty International hasn't 4 tendered any other expert in international law in support 5 of this application, filed any affidavit of any other 6 expert in international law. Is that correct? 7 A. That's correct. 8 177. Q. Just if we can go briefly to Professor Byers' 9 testimony starting at page 33? If we could maybe talk 10 about some of Professor Byers' discussions? I think that 11 the third paragraph down starting "I don't know how many 12 of you have met torture victims," he talks then about the 13 effect of it and says in the last sentence "that is also 14 why when we negotiate a detainee transfer arrangement we 15 should do what we can to protect the possibility of 16 detainees being tortured after they leave our hands." I 17 think that you agree with that statement? 18 A. That's right. 19 178. Q. Then Professor Byers notes that the Canada- 20 Afghanistan arrangement, that's the December 2005, doesn't 21 even include some of the patently obvious and reasonable 22 predictions and one of the things that Professor Byers 23 notes is that it provides for no access to Canadian 24 officials to go in to look at the detainees, no access to 25 our transferees? 51 1 A. That's what he says here. 2 179. Q. You agree with that as a shortcoming? 3 A. That the arrangement did not provide that 4 access, that's right. 5 180. Q. And that that's a shortcoming? 6 A. It was, yes. 7 181. Q. Then he goes on to note that the Dutch 8 memorandum actually gives rights of access to any of the 9 transferred detainees and also rights of access to 10 relevant U.N. institutions so at least at that point in 11 time the Canadian arrangement, that was another 12 shortcoming of the Canadian arrangement? 13 A. That's right. 14 182. Q. Just in the next page of the transcript, the 15 second paragraph in, Professor Byers notes that the 16 concern about just washing our hands in terms of 17 transferring detainees to Afghanistan and then doing 18 nothing. He says "The Canada-Afghanistan arrangement does 19 not even provide Canada with the right to be notified in 20 advance of any such transfers. This again stands in 21 contrast to the Dutch memorandum which does provide for 22 those transfers"? 23 A. That's right. That was another shortcoming. 24 183. Q. At that point in time, just taking you to page 25 35, Professor Byers notes where he says "So where do we go 52 1 from here?" under 1645, he notes that the Canada- 2 Afghanistan arrangement should be renegotiated to include 3 all the protections provided in the Netherlands and 4 Afghanistan memorandum. He notes that there are no 5 detrimental consequences in the next paragraph. Did you 6 agree with this statement that those were certainly 7 requirements? 8 A. Those were certainly requirements but I want 9 to make it clear that whatever Professor Byers' view might 10 have been as to the consequence of those renegotiated 11 provisions, we have not asserted that that would be 12 resolve the problem. It would be an improvement and in 13 some ways significant improvement and I think I made that 14 clear in my testimony later. 15 184. Q. In fact I'm going to ask you to point that out 16 in your testimony in a second. Professor Byers also 17 suggested an additional protection that wasn't in the 18 Dutch arrangement and that was the right to veto a 19 proposed transfer to a third country and the notification 20 and because of there being no notification is no right to 21 veto? 22 A. That's right. 23 185. Q. I think that you'll agree with me that with 24 those conditions rectified that are discussed by Professor 25 Byers, his testimony certainly is to the effect that 99 53 1 percent of all of the problems at that point that existed 2 would be resolved. I'm going to refer you specifically to 3 page 39. It's the last paragraph before Carolyn Bennett, 4 1705. 5 Professor Byers says "The point I would again like 6 to come back to is that the Dutch after several months of 7 very intensive work and study and committee meetings just 8 like this drafted an absolutely fine agreement that we 9 should use as a model today recognising that our agreement 10 was negotiated too quickly and in the midst of a federal 11 election campaign. It's easy to fix. I've just explain 12 how. The Dutch agreement plus a right of veto solves all 13 problems or at least 99 percent of the problems and that's 14 pretty good." 15 You say that that's not your position. I put it 16 to you, Mr. Neve, that nowhere in here did you object to 17 that position and in fact as I go through it there appears 18 to be approval. If you look at the next page you go on to 19 say "I just echo that." Going back to what you said, can 20 you point out --- 21 A. Just in fairness, what I was echoing was a 22 different point. 23 186. Q. Fair enough. Can you point out for me where 24 in this testimony you on behalf of Amnesty International 25 have distanced yourself from this position? 54 1 A. What I see perhaps would be at the top of page 2 38 where we say "Where we of course appreciate the 3 monitoring role played as we do around the world and also 4 by the Afghan Independent Human Rights Committee, abuses 5 continue despite the monitoring. The fact that monitoring 6 exists cannot justify or excuse turning over a prisoner to 7 a substantial risk of torture or ill treatment." 8 That has always been Amnesty International and 9 BCCLA's position and remains our position, despite the 10 improvements which we have certainly very much 11 acknowledged are improvements in the second supplementary 12 agreement, that when the risk of torture is widespread and 13 systematic, monitoring provisions including improved 14 monitoring provisions do no adequately protect against the 15 serious risk of transferred individuals being subjected to 16 that risk. 17 187. Q. Just moving on, we've discussed the fact that 18 there have been some improvements and in fact those 19 improvements I think it's fair to say came about in May 20 2007 with a supplemental arrangement between Canada and 21 Afghanistan? 22 A. That's correct. 23 188. Q. I'm going to provide you a copy of this 24 arrangement. It was provided as Exhibit A to the 25 affidavit of Scott Proudfoot. You confirm to me that 55 1 you've seen that arrangement? 2 A. I certainly have. 3 MR. ANDERSON: If I could make that particular 4 arrangement Exhibit 7? 5 MR. CHAMP: We can acknowledge it's in Proudfoot's 6 affidavit. 7 EXHIBIT NO. 7: May 2007 Supplemental Canada- 8 Afghanistan Arrangement. 9 BY MR. ANDERSON: 10 189. Q. Throughout the testimony in Exhibit E before 11 the standing committee there is reference to the 12 memorandum of understanding between the government of the 13 Netherlands and Afghanistan. I'm just going to show you a 14 copy of that. Is that, Mr. Neve, a document you've seen 15 before or at least does that reflect your understanding of 16 the agreement? 17 A. Yes, it does. 18 MR. ANDERSON: That is also contained in the 19 underlying affidavit, Exhibit KKK of Yavar Hameed in the 20 main application. If I can, I'll make that copy Exhibit 8 21 and you can hold onto that for the remainder. I'll just 22 ask for it back at the end. 23 EXHIBIT NO. 8: Memorandum of Understanding 24 between the Ministry of Defence of the Islamic 25 Republic of Afghanistan and the Ministry of 56 1 Defence of the Kingdom of the Netherlands. 2 BY MR. ANDERSON: 3 190. Q. If I can ask you to look at those two exhibits 4 side by side? If you look at Exhibits 7 and 8, the 5 supplemental arrangement and the Dutch arrangement, the 6 first substantive provision dealing with transfers in the 7 Dutch arrangement is at section 3 and that's the reference 8 to Afghan authorities once they get transferees being 9 responsible for treating individuals in accordance with 10 the relevant provision of international law including 11 providing humane treatment? 12 A. Yes, I see that. 13 191. Q. Will you agree with me if you cross-reference 14 this to the supplemental arrangement that Canada has, in 15 particular paragraph 4, paragraph 4 says that the Afghan 16 authorities will be responsible for treating such 17 individuals in accordance with Afghanistan's international 18 human rights obligations including prohibiting torture and 19 cruel, inhumane or degrading treatment, protection against 20 torture and only using such force as is responsible to 21 guard against the escape? You'll agree with me that the 22 Canadian provision is certainly far more explicit in terms 23 of what requires protection than in the Dutch agreement? 24 A. Yes, it is. 25 MR. CHAMP: Again if it expedites questions, we're 57 1 prepared to admit that the supplementary arrangement 2 between Canada and Afghanistan is substantively equivalent 3 to the Dutch agreement. 4 MR. ANDERSON: That goes some of the way but I 5 would like an agreement that in fact the Canadian 6 supplemental arrangement provides for further safeguards 7 not outlined in the Dutch arrangement. In fact it's 8 substantively better than the Dutch arrangement. 9 MR. CHAMP: Just point out the specific points 10 quickly and I'm sure we can admit them fairly easily. 11 BY MR. ANDERSON: 12 192. Q. We just looked at the first one. We dealt 13 with that. If we look at paragraph 4 of the Dutch 14 memorandum of understanding it talks about giving 15 representatives of the Afghan Independent Human Rights 16 Commission, members of the Netherlands and relevant U.N. 17 bodies access to the detainees? 18 A. That's right. 19 193. Q. And it talks about access. If you look at 20 paragraph 2 of the Canadian arrangement you'll see that it 21 provides for that same sorts of access but in fact it 22 also, unlike the Netherlands, specifically provides for a 23 full and unrestricted access which arguably is a broader 24 term than simply full access? 25 A. Arguably. I guess you would want a lot more 58 1 information about in both instances what that means in 2 practice. 3 194. Q. But certainly it is --- 4 A. It's an additional word making it clear that 5 the access is supposed to be --- 6 195. Q. Let's look at paragraph 5 of the Netherlands' 7 memorandum of understanding. It talks about the Afghan 8 authorities are responsible for keeping accurate account 9 of all persons transferred to them by the Netherlands' 10 military forces and for this purpose records will be kept 11 by Afghan authorities which will be available upon 12 request. If we can compare that, certainly we note that 13 the record keeping requirement was already in the December 14 2005 arrangement. What I'll refer you to is how that's 15 now dealt with in addition in paragraph 6 which is at the 16 bottom of the first page. It says first of all that 17 records required to be maintained by paragraph 7 of the 18 December 2005 arrangement will also be available for 19 inspection by officials of the Government of Canada and 20 the AIHRC, the Afghan Independent Human Rights Commission. 21 You'll agree with me that unlike the paragraph 5 22 of the Dutch MOU where the Dutch can access these 23 documents, in this one it's broader, in fact the AIHRC 24 also gets access so it's another level of review? 25 A. Right. I mean the Dutch one doesn't make it 59 1 clear upon whose request. We're not sure who exactly it's 2 referring to there but assuming that that is to be 3 interpreted as meaning only the Dutch government, you're 4 right that this is making it clear that both the Dutch and 5 the Human Rights Commission have that right in the 6 Canadian agreement. 7 196. Q. If we look at section 6 of the Dutch agreement 8 it talks about the Netherlands will be notified prior to 9 the initiation of any legal proceedings involving persons 10 transferred by the Netherlands' military forces and prior 11 to the transfer to third parties or the release of such 12 persons and they will be also notified if other relevant 13 changes concerning such persons occur. 14 I think that if I just reference you to paragraph 15 3 of the Canadian supplemental arrangement you'll see that 16 it also says that Canada will be notified of the 17 initiation of any proceedings involving persons 18 transferred by the Canadian Forces and prior to the 19 release of the detainees. The requirement for 20 notification of release is something that's not included 21 in the Dutch memorandum of understanding, not explicitly 22 anyway? 23 A. Right. Not explicitly, no. It is there. 24 "And prior to the transfer to third parties or release of 25 such persons." 60 1 A. Thank you. The Canadian supplemental 2 arrangement goes on then to say the Government of Canada 3 will also be notified of any material change in 4 circumstances regarding the detainee including any 5 instance of alleged improper treatment. You'll agree with 6 me that that certainly provides for far more detail about 7 circumstances of notice than the Netherlands' arrangement 8 which simply says the Royal Netherlands Embassy will 9 notified if other relevant changes concerning such persons 10 occur? 11 A. Yes, it is more detailed. 12 197. Q. In fact we would want to explicitly set out a 13 requirement that any allegations of improper treatment 14 should be brought to the attention of the Canadian 15 authorities? 16 A. We would certainly want the requirement. 17 There would be questions as to whether that was fulfilled 18 in practice but it's good to see the provision. 19 198. Q. Sure. The other thing that the Dutch 20 provision talks about is if you go on to section 6, 6 21 includes notification of transfer to other authorities and 22 the Canadian version of that or at least what deals with 23 it is paragraph 5. 24 It says the Afghan authorities will ensure any 25 detainee transferred to them by the Canadian Forces will 61 1 not be transferred to the authority of another state 2 including the detention in another country without prior 3 written agreement of the Government of Canada. You'll 4 agree with me that unlike the Netherlands' agreement which 5 is the discussion again in section 6, Canada has a right 6 to veto. In other words, if Canada doesn't give its 7 blessing in written agreement, at least under the terms of 8 this arrangement, Afghanistan is not to transfer any of 9 Canada's detainees? 10 A. Yes, and we've noted that and welcomed that as 11 an improvement. 12 199. Q. I think both documents provide for there to be 13 no imposition of the death penalty. In fact I think that 14 was in the original December 18, 2005 arrangement. 15 A. That's right. 16 200. Q. I'm not going to take you through the last 17 paragraphs of the Dutch arrangement. Those are 18 essentially procedural in nature. What I will do, 19 however, is just take you through the remaining provisions 20 of the Canadian supplemental arrangement. Paragraph 7 of 21 the Canadian supplemental arrangement is something that we 22 don't find in the Dutch arrangement which is the 23 requirement that the Afghan hold Canadian detainees only 24 in a limited number of facilities? 25 A. That's correct. 62 1 201. Q. That facilitates both access and capacity, 2 certainly that's the approach that is taken? 3 A. We don't know the details about what limited 4 means and which facilities are intended but that is 5 something that's not in the Dutch agreement. 6 202. Q. Another thing that's not in the Dutch 7 agreement is set out at paragraph 9. It says "During such 8 access" this is the access referred to at paragraph 8 9 above "representatives of either AIHRC or the Canadian 10 government are going to be permitted to interview 11 detainees in private without Afghan authorities present." 12 A. Yes, and we've noted that as an improvement 13 over the Dutch. 14 203. Q. Unlike the Dutch, the Canadian supplemental 15 arrangement specifically sets out in paragraph 10 a 16 particular course of conduct to be taken once any sort of 17 allegation of mistreatment occurs and it required 18 investigation and a notification to the Canadian 19 government? 20 A. That is the case. It's not clear as to how 21 this works in practice and it's been difficult to get 22 clarity as to how that works in practice but the provision 23 is one that's not in the Dutch. 24 204. Q. Unlike the Dutch, paragraph 12 makes it 25 explicit that the Government of Afghanistan is to ensure 63 1 that all prison authorities under its jurisdiction are 2 advised of the provisions both of the earlier December 3 2005 arrangement and the May 3rd, 2007 supplemental 4 arrangement? 5 A. That's right. 6 205. Q. I just have one more area. I don't think it 7 will take us that long. I'll have you out well before our 8 time. Just before I do that just so I'm clear on my 9 records, the Dutch arrangement we made Exhibit 8? 10 MR. CHAMP: Yes. 11 BY MR. ANDERSON: 12 206. Q. I'm going to show you a set of documents, Mr. 13 Neve. You may or may not know of them and if you don't, 14 that's fine. This is a copy of a Notice of Action and a 15 Statement of Claim in a recent action in the Superior 16 Court of Justice out of Toronto. I'll just give you that. 17 The action is between the Estate of Nasrat Ali Hassan, 18 Shereen Gul, Farid Ahmad, and several other people and the 19 Attorney General of Canada and Jane Doe. It lists a court 20 file number there. Do you see the Notice is the first 21 three pages? If you look just into the Statement of Claim 22 itself which is four pages in you'll see it says it's -- 23 it doesn't matter. The September 2006 is when the Notice 24 of Action was issued. We see a claim there. 25 MR. CHAMP: Can I ask about the relevance of this 64 1 given that he has no knowledge of it whatsoever? 2 MR. ANDERSON: It relates to the issue both of 3 standing and of -- really on standing for the most part. 4 Remember it's not a discovery. It's a cross-examination. 5 Mr. Champ, if you give me just a little more leeway, it 6 will become apparent. 7 MR. CHAMP: Okay, provided we're not going to take 8 too long on it. 9 MR. ANDERSON: No, no. This is and one other 10 little note relating to this issue of standing is my last 11 set. 12 BY MR. ANDERSON: 13 207. Q. Mr. Neve, just if I can turn you to the claim 14 itself which is one more page in, the Statement of Claim 15 itself? If you look at page 3 there's a discussion about 16 what happened. At this point I'll just summarise it for 17 you. Mr. Nasrat Ali Hassan was a citizen of Khandahar, 18 Afghanistan and he was shot at a roadside checkpoint by 19 Canadian Forces. His family then turned around and 20 ultimately brought an action for various things including 21 relief under the Charter, as you can see in the claim. My 22 question to you first and foremost is are you aware of the 23 particular incident, the shooting and then the following 24 lawsuit? Did you know it existed? 25 A. I think I recall the shooting. I have no 65 1 knowledge of the lawsuit. 2 208. Q. Fair enough. You'll see in the facts as it 3 goes through it, and Mr. Champ, in case you have any 4 concerns, I have no intention of making the particular 5 document an exhibit. If you look, Mr. Neve, at page 3 of 6 this Statement of Claim the first point of Shereen Gul who 7 was the wife of Mr. Nasrat resided with Mr. Nasrat and we 8 know from paragraph 4 that Mr. Nasrat resided in 9 Khandahar. The next one is the sister. They resided with 10 Mr. Nasrat as well. I guess my question to you is do you 11 have any reason to, in your knowledge of how litigation 12 works, any reason to believe that it wouldn't have been 13 possible for these people living in Afghanistan to have 14 done this, to have served this action here in Canada? 15 MR. CHAMP: He's not going to answer that 16 question. *O* 17 THE WITNESS: Do I know --- 18 MR. CHAMP: He's not going to answer that 19 question. 20 MR. ANDERSON: That's an outright objection? 21 MR. CHAMP: That's an outright objection. 22 MR. ANDERSON: Fair enough. Thank you very much. 23 MR. CHAMP: Do you want me to put it on the 24 Record? 25 MR. ANDERSON: No, no. It's on the Record. 66 1 MR. CHAMP: But the reason for the objection? 2 MR. ANDERSON: No. I'm okay with that. Thank 3 you. I'm satisfied. I won't ask further questions on 4 that. 5 BY MR. ANDERSON: 6 209. Q. I do have a question about this. You've said 7 you're not aware of this particular claim. I assume then 8 that Amnesty hasn't sought any sort of intervener status 9 then as far as you are aware in this matter? 10 A. I can say we haven't. I would be aware if we 11 had. 12 210. Q. Thank you. I think it becomes apparent what 13 we're talking here, Mr. Champ, is access to courts. I'll 14 take you, Mr. Neve, to my last set of questions which 15 relate to paragraph 27 of your affidavit. In paragraph 27 16 of your affidavit you say "Furthermore is AIC concerned 17 that detainees who may be adversely affected by the lack 18 of safeguards against torture do not have a practical 19 opportunity to litigate to protect the rights and 20 interests given both their location in Afghanistan and the 21 federal government's stated position that there is no 22 requirement to offer detained persons access to legal 23 counsel" and then you go on to cite a letter that came 24 later on on that issue. 25 My first question is has Amnesty International 67 1 actually spoken to anyone who claims to have been tortured 2 in any way 3 A. No, we haven't. Tortured after --- 4 211. Q. In Afghanistan after being transferred to 5 Afghanistan detention facilities by Canadian officials? 6 A. No, we haven't, not directly. 7 212. Q. Have you attempted to identify those people, 8 to go in there and look and search them out to bring an 9 action on their behalf or to bring them into this 10 application? 11 A. No, we haven't and of course their identity 12 has remained a matter secrecy on behalf of government 13 officials. Part of the challenge here has that no 14 information as to the identity, even the numbers, the 15 whereabouts, any information about those individuals has 16 been disclosed by government officials. 17 213. Q. Can you tell me what evidence you have that 18 can demonstrate or support the proposition that these 19 people, their families, their relatives, anybody in 20 Afghanistan couldn't bring an action or an application on 21 their behalf if they know they're being detained or 22 tortured? 23 A. They certainly would at the very least need to 24 know what their rights and options and ability to bring 25 such an application are and that's a significant gap here 68 1 in our understanding. Certainly we're aware of the fact 2 that Mr. Hameed had made an offer at one point to try to 3 provide some legal advice and assistance to detainees 4 which of course would have been one means by which people 5 would have become aware of what their rights might be and 6 what their options for bringing a lawsuit would have been 7 but that was denied. 8 In the case that you were referring to earlier we 9 obviously were dealing with a case where someone's 10 identity was publicly known. There were media reports 11 about that. I don't know the steps that followed after 12 that, how a lawyer hooked up with that family and the 13 possibility of a lawsuit emerged, but we're dealing with a 14 very different situation where a person and their identity 15 is a clear matter of public record. 16 214. Q. I guess my point on this is clear though that 17 to the extent someone, a relative or somebody in 18 Afghanistan, knows about someone who is being detained 19 there's nothing to preclude them from seeking legal advice 20 as to what they might do against the Government of Canada 21 in Canadian courts? 22 A. I think the word that is key here is the one 23 in second line of paragraph 27 which is "They do not have 24 a practical opportunity to do so." It's because of these 25 barriers there are about knowing identity, knowing 69 1 whereabouts, and not having any ability to provide legal 2 advice and representation to detainees. That means that 3 the practical opportunity -- no one is alleging, at least 4 we're not alleging that they are legally barred from 5 bringing a lawsuit but that there is significant, 6 virtually almost insurmountable practical barriers given 7 that they have no access to advice there, their identity 8 is not known, and those sorts of concerns. 9 215. Q. Let's be clear their identity is not known to 10 you? 11 A. The identity is not a matter of public record 12 for anyone. It's known to --- 13 216. Q. It's known to the detention officials? 14 A. That's right. 15 217. Q. Do you have any evidence to establish that the 16 particular family member wouldn't know that one of their 17 own has been taken captive or being held by authorities in 18 Afghanistan? 19 A. I'm sure it probably differs in different 20 circumstances. 21 218. Q. So there's a possibility that someone on the 22 ground would know? 23 MR. CHAMP: I object. Is there any evidence to 24 that effect? *O* 25 MR. ANDERSON: Well, that's what I'm asking. 70 1 MR. CHAMP: You're putting a proposition to him 2 that only your client can know and is keeping secret. 3 MR. ANDERSON: That's not at all the case. I'm 4 asking about the position on the ground. Mr. Neve has 5 said there is no practical effect so the question is what 6 evidence does he have to support that. He says that it's 7 not known here in Canada as a public record who is being 8 detained. It's relevant to ask then does he have evidence 9 to establish that family members wouldn't know if their 10 people had been detained by forces on the ground and he 11 said it depends on the circumstances. 12 THE WITNESS: What I'm trying to say, maybe not 13 saying very eloquently, is that because the identity of 14 the detainees is not a matter of public record it poses a 15 substantial practical opportunity for they or their 16 families being able to then have access to the kind of 17 independent legal advice from lawyers or advocacy 18 organisations or others who would be able to make people 19 aware of what their options might me to try to advance 20 litigation in Canada. 21 We don't know how often family members have or 22 have not known that their relatives have been arrested. 23 We don't know that information. I'm sure there are cases 24 where they haven't known at all. There are probably other 25 cases where they suspected. There may be other cases 71 1 where they knew it for sure but the practical barriers 2 arise here by virtue of the fact that there's no 3 meaningful way for those people to get access to any kind 4 of advice as to the fact that options even exist within 5 Canadian courts let alone how to go about trying to access 6 those options. 7 BY MR. ANDERSON: 8 219. Q. Just so I'm clear, has Amnesty put anybody on 9 the ground in Afghanistan in villages or in the way of 10 flyers in terms of providing advice in how to deal with 11 this issue? 12 A. We don't have the capacity to do that. 13 MR. ANDERSON: Amnesty International is aware of 14 reports of -- there's no firsthand accounts so I won't ask 15 that question. If you just bear with me, I think I'm 16 going to be able to let you go almost an hour early. 17 (SHORT RECESS) 18 MR. ANDERSON: That concludes my cross-examination 19 for the Crown in this matter and so we can go off the 20 Record. Thank you very much. 21 MR. CHAMP: I have an opportunity for re-direct. 22 MR. ANDERSON: Sorry. 23 MR. CHAMP: I'm just going to be a moment. 24 (SHORT RECESS) 25 RE-EXAMINATION BY MR. CHAMP: 72 1 220. Q. The actual Notice of Application in this 2 matter, you were asked some questions. Could you turn to 3 page 5? You were asked some questions about the 4 substantive and procedural safeguards? 5 A. Yes. 6 221. Q. Is it Amnesty's position that the substantive 7 and procedural safeguards requirements have been met by 8 the supplementary arrangement between Afghanistan and 9 Canada on the transfer of detainees? 10 A. No. It's our position the safeguards are not 11 adequate and that the substantial risk of torture 12 continues and that the supplemental arrangement, while 13 admittedly an improvement in a number of respects over the 14 previous agreement and even over agreements that other 15 countries such as the Netherlands have entered into is 16 apparent, that it has not addressed the concern about a 17 substantial risk of torture in the case of transfers. 18 MR. ANDERSON: Mr. Champ, you do realise this is a 19 re-examination? 20 MR. CHAMP: I do. 21 MR. ANDERSON: Re-examination requires open 22 questions as in chief, not directed questions as in cross. 23 I have no problem with that last question but I'll put you 24 on notice that I'm going to watch a little carefully on 25 that, sir. 73 1 MR. CHAMP: I understand. No problem. 2 BY MR. CHAMP: 3 222. Q. The next is 5(c), a writ of mandamus requiring 4 the respondents to formally enquire to the condition of 5 all detainees transferred from the Canadian Forces to the 6 custody of other countries since December 2001. Do you 7 have any knowledge that the Canadian Forces have in fact 8 enquired into the condition of detainees transferred to 9 other countries since December 2001? 10 A. We don't have any knowledge of that. All we 11 have is some awareness that since the time of the 12 supplemental arrangement there have been some enquiries 13 made into the condition of detainees, not detainees 14 transferred on to other countries. 15 223. Q. In Exhibit D of your affidavit there's the 16 letter there and you were asked some questions regarding 17 the incidents described at the bottom of page 2 and top of 18 page 3 as set out there about Canadian troops holding a 19 detainee and then deciding not to transfer them to a 20 particular Afghan unit. You had said that they acted 21 appropriately in your response to questions. Why did you 22 put that incident in your letter if you believe they acted 23 appropriately? 24 A. The example is provided here to highlight 25 concerns about the conduct and behaviour of Afghan forces. 74 1 It's meant to illustrate that concern, the fact that 2 abuses are widespread and serious, and throughout the 3 letter we have sought to provide some illustrations here. 4 There's a lot more information we would need to know about 5 what did happen in this particular instance to make a 6 final judgement as to whether Canadian troops acted 7 appropriately in the face of this particular instance. 8 The initial indication here that they may have at least 9 prevented this individual from being turned over to 10 someone who was going to summarily execute them is 11 something we would welcome but the example was being 12 provided here to illustrate the fact that there is good 13 reason to be concerned about the human rights record of 14 Afghan Forces. 15 MR. CHAMP: Thanks. Those are all my questions. 16 --- THE CROSS-EXAMINATION ADJOURNED AT THE HOUR OF 17 2:05 IN THE FORENOON. 18 19 I HEREBY CERTIFY THAT I have to the 20 best of my skill and ability accurately 21 taken down in Stenomask and transcribed 22 therefrom the foregoing Examination. 23 24 ......................................... 25 G R S / S P 1 Examination No. 07-0887 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 10 CHIEF THE DEFENCE STAFF 11 FOR THE CANADIAN FORCES, 12 MINISTER OF NATIONAL DEFENCE, 13 and ATTORNEY GENERAL OF CANADA 14 15 RESPONDENTS 16 ********************** 17 CROSS-EXAMINATION OF ALEX NEVE ON AFFIDAVIT sworn August 29, 18 2007, pursuant to an appointment made on consent of the 19 parties, to be reported by Gillespie Reporting Services, on 20 September 12, 2007, commencing at the hour of 12:00 in the 21 forenoon. 22 *********************** 23 APPEARANCES: 24 Paul Champ, for the Applicants 25 R. Jeff Anderson, for the Respondents 26 Agnieszka Zagorska, 27 Brian Harvey, 28 29 30 This Cross-Examination was reported by Stephanie Penman at Ottawa, 31 32 Ontario, having been duly sworn for the purpose. 1 (i) 2 3 INDEX 4 5 6 NAME OF WITNESS: ALEX NEVE 7 8 EXAMINATION BY MR. ANDERSON PAGES 2 - 71 9 10 EXAMINATION BY MR CHAMP: PAGES 71 - 74 11 12 NUMBER OF PAGES: 2 THROUGH 74 INCLUSIVE 13 14 15 ADVISEMENTS, OBJECTIONS & UNDERTAKINGS 16 17 *O* . . . . . . . . . . . . . . . . . . . . . . . . 5, 33, 65, 69 18 19 20 EXHIBITS 21 22 23 EXHIBIT NO. 1: Affidavit of Alex Neve sworn August 29, 24 2007. . . . . . . . . . . . . . . . . . . . . . . . . . 3 25 EXHIBIT NO. 2: Notice of Application issued February 21, 26 2007. . . . . . . . . . . . . . . . . . . . . . . . . . 3 27 EXHIBIT NO. 3: Direction to Attend served September 7, 28 2007. . . . . . . . . . . . . . . . . . . . . . . . . . 4 29 EXHIBIT NO. 3A: Operating By-Laws, Amnesty International 30 Canadian Section (English Speaking), Accepted May 31 2005.s . . . . . . . . . . . . . . . . . . . . . . . . 7 32 EXHIBIT NO. 4: Arrangement for the Transfer of Detainees 33 between the Canadian Forces and the Ministry of the 34 Defence of the Islamic Republic of Afghanistan. . . . . 32 35 EXHIBIT NO. 5: Technical Arrangements between the 36 Government of Canada and the Government of the Islamic 37 Republic of Afghanistan. . . . . . . . . . . . . . . . 34 38 EXHIBIT NO. 6: Arrangements Regarding the Status of 39 Canadian Personnel in Afghanistan. . . . . . . . . . . 35 40 EXHIBIT NO. 7: May 2007 Supplemental Canada-Afghanistan 41 Arrangement. . . . . . . . . . . . . . . . . . . . . . 55 42 EXHIBIT NO. 8: Memorandum of Understanding between the 43 Ministry of Defence of the Islamic Republic of 44 Afghanistan and the Ministry of Defence of the Kingdom 45 of the Netherlands. . . . . . . . . . . . . . . . . . . 56 46 47 48 DATE TRANSCRIPT ORDERED: SEPTEMBER 12, 2007 49 50 DATE TRANSCRIPT COMPLETED: SEPTEMBER 16, 2007 51