As public inquiries go, it won't be very public if Ottawa has its way, with key witnesses removed and the rest only taking questions in writing.
The long-delayed inquiry into Canada's handling of Afghan detainees is now facing a series of motions by Ottawa's lawyers that would restrict its scope, what it may make public and whether it can even begin to hear witnesses.
Allegations of inadequate safeguards to protect transferred detainees from abuse and torture were first published two years ago. Transferring prisoners to torture is a war crime as set out in the Geneva Conventions.
Although federal ministers and then-chief of defence staff General Rick Hillier initially ordered an internal board of inquiry and promised to co-operate with the independent probe, government lawyers have repeatedly sought to delay it and to thwart public hearings.
While the government's most recent motions could be overruled by the inquiry, it sets the stage for further legal delays as lawyers wrestle over what can be revealed about whether the Canadian military knowingly let prisoners be mistreated when they were handed to Afghan authorities.
The eight motions seek among other things, to eliminate witnesses, question the inquiry's jurisdiction and hold up proceedings.
One of the motions even asks to transfer the probe to the Canadian Forces' Provost Marshal, the military police, thus making it a private investigation.
“The onslaught has been quite extreme,” the inquiry's lead counsel, Freya Kristjanson, said about the government's legal moves, the latest in a series of manoeuvres by Ottawa to thwart the inquiry.
“The questions we ask and the evidence we deal with will be carefully structured to avoid important no-go zones. But the public deserves to hear this,” she said.
Along with the eight motions, the government is also opposing the inquiry's plans to question witnesses.
Instead of the usual back-and-forth and cross-examination process of an inquiry, the government would prefer that witnesses take questions in writing and then have the transcript of their answers edited before the inquiry lawyers sees them.
The inquiry wouldn't be able even to emulate past inquiries that looked into security matters and held some closed-door sessions.
To do that, it first has to be on a pre-approved schedule. The inquiry's request to be on that list was turned down by the office of Defence Minister Peter MacKay, Ms. Kristjanson said.
The matter still has to be resolved but she said she planned to call her first witness, a military police sergeant, on Oct. 13.
Ironically, the inquiry was created because Ottawa didn't want to release documents to a military watchdog.
The watchdog, the Military Police Complaints Commission, began its investigation 2 1/2 years ago after complaints from Amnesty International Canada and the B.C. Civil Liberties Association over allegations that suspects were mistreated once Canadian troops handed them to Afghan security forces.
However, the government repeatedly tried to forestall the investigation, invoking security concerns.
The witnesses Ottawa wants to remove include four generals who commanded Canadian troops in Afghanistan – David Fraser, Tim Grant, Michael Ward and Guy Laroche – along with Foreign Affairs and correctional staff who were in Afghanistan.
The motion said the inquiry hasn't proved those witnesses shared relevant information with military police about the treatment of detainees.
However, one witness, Richard Colvin, a diplomat formerly posted to Afghanistan, retained a lawyer to advise the inquiry that he had “personal knowledge of what the military police knew.”
The letter from Mr. Colvin's lawyer said he had evidence relating “to risks of torture resulting from the transfer of detainees to Afghan authorities.”
The legal tactics may delay the inquiry's work until the commissioner's term expires in December and he is replaced by another government appointee, said the lawyer for the two groups that filed the complaint.
“The Department of Justice lawyers are buzzing like bees over there, trying to come up with any gambit they can to stop this hearing,” said Paul Champ.
Despite a $2-million price tag, the inquiry was ordered in 2008 by MPCC chair Peter Tinsley because its subpoena powers could override Ottawa's refusal to provide documents.
Mr. Tinsley, a Liberal appointee, was advised last month that his one-term appointment would expire as scheduled on Dec. 11, a spokesman for Mr. MacKay said, declining to comment on who would the next appointee.
In previous moves, the government refused to provide documents, sought a court order to block the investigation and claimed that the MPCC has no jurisdiction because Canadian military police who hold detainees are engaged in military, not police, operations.