Following weeks of wrangling, Military Police Complaints Commission chairman Glenn Stannard wrote to MacKay late Monday afternoon urging him to take a “common sense approach” and release documents related to the 2008 suicide of Cpl. Stuart Langridge.
In his letter, Stannard tells the defence minister he was wrong when he told the House of Commons last week that Supreme Court of Canada decisions leave him no choice but to keep certain documents from the Commission.
“I believe there is no question that the law, including the applicable Supreme Court of Canada jurisprudence, authorizes you … to waive the privilege either on a blanket basis or with respect to specifically identified communications,” writes Stannard.
“The waiver being sought is not global or blanket waiver,” he says, “but rather a limited waiver restricted to specific communications that lie at the heart of the subject matter that the (hearing) is meant to investigate.”
He also warns MacKay that if he doesn’t waive his right to solicitor-client confidentiality in the case, it would lead to a challenge to the Federal Court, which would mean “enormous expense and significant delay.”
Although the Supreme Court has ruled several times on the sacrosanct nature of solicitor-client privilege, Commission lawyers argue that a client’s ultimate right to waive that privilege is unchallenged.
In correspondence between DND employees and departmental lawyers, the client for legal purposes is the defence minister.
Justice department lawyer Elizabeth Richards has argued that all documents produced by military police and forces personnel after consultation with lawyers are subject to the restriction that only MacKay can lift.
Stannard announced his decision to write MacKay after being rebuked by Richards for suggesting two weeks ago that the defence minister’s withholding of documents was tantamount to a lack of co-operation with the Commission.
Richards told Stannard he had no legal basis for making the comment.
Outside the hearing, Richards said that if MacKay took the rare step of waiving his right to confidentiality, it would have a ripple effect across his department.
“If solicitor-client privilege can’t be guaranteed,” she said, “people seeking advice will be guarded. When a (Canadian Forces) member seeks legal advice, they need to be sure it won’t be turning up at a public hearing a couple of years down the road.”
Commission lawyer Mark Freiman said it was “heartening” to hear MacKay promise full co-operation to the Commission when he spoke in the Commons last week.
The limited number of documents being asked for will set no precedents, he said, and are vital.
“They are right at the centre of the issues this Commission has to grapple with,” he said.
Michel Drapeau, lawyer for Langridge’s parents Sheila and Shaun Fynes, agreed.
“We have to take the minister at his word,” he said, urging MacKay to “ease up on this privilege so this Commission can make its findings with a full deck of cards and in the interest of justice and transparency.”
Drapeau has accused MacKay of bring out the “heavy artillery” of censorship because the Department of National Defence doesn’t like the way the Langridge inquiry is unfolding in public.
“We are going to be missing a significant part of the puzzle,” he said. “The purpose of this hearing is to inform the public and prevent a reoccurrence. This blatant refusal is the easy way out.”
If MacKay continues to refuse to waive his right to solicitor-client confidentiality, Stannard will either have to go the Federal Court route or continue without the documents.
Again Monday in Parliament, MacKay was under Opposition attack over the documents, and repeated during Question Period that he is bound by Supreme Court rulings and quoted from Supreme Court Justice Binnie that “Solicitor-client privilege is fundamental to the proper functioning of our legal system.
“He was crystal clear,” said MacKay, adding that the government was funding the Langridge hearing and paying for the Fynes’s legal representation.
NDP Defence critic Jack Harris accused MacKay of making excuses.
“The minister’s own lawyers at the Military Police Complaints Commission have admitted that the department is withholding documents and have said that it is not willing to give them up,” he said.
“Does the minister not feel any sense of accountability for this? Has he no shame?”
The Fynes family has been abused by the military system, added Harris, accusing MacKay of “hiding behind a legal principle that he knows does not prevent him from releasing the information.”
MacKay accused Harris of becoming “Parliament’s ambulance chaser” and again repeated that he was restricted by the Supreme Court.
Langridge, a veteran of both Bosnia and Afghanistan, hanged himself in his room at CFB Edmonton in March 2008, after a long struggle with alcohol, drugs and depression.
His parents claim he was suffering from post-traumatic stress disorder — a legacy of his Afghanistan tour — but military witnesses have testified that drugs and alcohol were at the root of his problems.
The Military Police Complaints Commission inquiry was launched after allegations by Fynes that military police officers of the National Investigation Service (NIS) who investigated their son’s suicide were biased in favour of the military.
Original Article
Source: ottawa citizen
Author: Chris Cobb
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