PANEL OF ARBITERS

June 15, 2011 The Honourable Robert Douglas Nicholson Minister of Justice and Attorney General of Canada 284 Wellington Street 4th Floor Ottawa, Ontario KIA oH8 Dear Minister:

Re:

Afghan Detainee Documents

We are writing to you in our capacity as members of the Panel ofArbiters established by the Memorandum of Understanding dated June 15, 2010, signed by the Prime Minister and the then Leader of the Official Opposition and leader of the Bloc Quebecois. In light of the developments to which we will refer below, we have been asked to transmit to you for tabling in the House of Commons our report and the results of the work completed by the Panel to date. Before describing the material that we are transmitting, we think it appropriate to set out the context for its transmission. On April 13, 2011, following the dissolution of the 40th Parliament, we wrote to the signatories of the MOU to set out our understanding of the Panel's role under the MOU and the consequences of the dissolution on its ability to carry out its mandate. As we explained, we understand that the role of the Panel under the MOU formed part of the mechanism adopted follo"ing the April 27, 2010 ruling of the then Speaker of the House of Commons for making government documents related to the transfer ofAfghan detainees from the Canadian Forces to Afghan authorities available to the House of Commons in response to the House's order for production, without compromising the security and confidentiality of the information that the documents contain. The MOU, as we understand it, contemplated that the Panel would report on its work to the Ad Hoc Committee of Parliamentarians, comprising Members of Parliament designated by the signatories, which like the Panel was established in accordance with the MOU. The MOU also provided that the documents that the Panel has reviewed would be tabled in the House as they became available following the Panel's review. The MOU called for regular consultation (which occurred) between the Panel and the Ad Hoc Committee of Parliamentarians. At the request of the Committee, the Panel had organized its work so as to be in a position to provide to the Committee on or about April 15, 2011 a report describing its mandate, work and methodology, together with the results of its review of an initial set of documents, taken from the documents assigned priority by the Committee. Following the sudden passing of fellow Panel member Donald Brenner on March 12, 2011, we carried on with the completion of this important task, and instructed our staff to continue their work in preparing further documents for the Panel's review, so that these documents could in turn be released once the Panel had made its determinations concerning the redactions that they contain.

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Our April 13 letter also conveyed our understanding that, according to Parliamentary law, the dissolution of the 40th Parliament by proclamation of the Governor General on March 26, 2011 meant that the House that adopted the order for production of Afghan detainee documents ceased to exist, and those who were members of the House no longer had the status of Members of Parliament. As a consequence of the dissolution, therefore, there was no longer an Ad Hoc Committee of Parliamentarians to which the Panel could provide its report and the results of its work, and no documents could be tabled in the House. We noted that while the MOU contemplated that under certain conditions it would survive the dissolution of Parliament, whether those conditions would be met could not be ascertained until the House reconvened. We went on to acknowledge the considerable time and effort that had been devoted to fulfilling the mandate of the Panel under the MOU. We indicated that, in these circumstances, we considered that it would not be appropriate to cease our work before completing what the Panel undertook to the Ad Hoc Committee of Parliamentarians it would seek to complete by mid April. We advised that we therefore intended to finalize the Panel's report and the preparation of the documents that were to accompany it by April 15 or shortly afterwards. However, since there was no longer a Committee in existence to which we could deliver it pursuant to the MOU and the Panel's undertaking to the Committee, we would retain this material pending the summoning of a new Parliament and any further directions that might be provided to the Panel at that time. We indicated that we had also instructed our staff to continue their preparatory work relating to other documents the Committee referred to the Panel, so that the Panel would be in a position to make determinations concerning those documents should it ultimately be called on to do so. We indicated that the Panel would make no further determinations beyond those reflected in its April report until its future role, if any, was clarified. With one modification, we have proceeded as we indicated we would proceed in our April 13 letter. We completed by mid-April a report describing the Panel's work and methodology. We also prepared by mid-April, in a form that could be tabled, the results of the Panel's review of an initial set of documents, taken from the documents assigned priority by the Committee. The modification is that we have also completed our review of, and determinations concerning, the remaining documents to which the Committee assigned priority. We considered it appropriate that we be in a position to communicate the results of our review of these additional documents should we be called upon to do so. In making our determinations concerning these documents, we continued to apply the methodology and approach set out in our April report. We did not undertake a review of the Government's claims of Cabinet confidence, since we received confirmation of these claims only shortly before Parliament was dissolved. Nor did we complete our review of all of the Government's claims of solicitor-client privilege, though we were able to review and make determinations concerning most of them. Following the opening of the 1st Session of the 41 st Parliament, we were advised by the Government that it is unlikely that the MOU will be renewed, but that the Government intends to table the Panel's April20ll report and all documents reviewed by the Panel in Parliament. We were asked to transmit to you for this purpose both the report and the documents that we have reviewed and in respect of which we have made determinations. We are accordingly transmitting to you with this letter the following material:
(1) the Panel's April 2011 report, which describes the Panel's mandate, its work, and the

I.:;.

methodology it has followed;

(2) the results of the Panel's review of and determinations concerning 362 documents referred

to us by the Committee, comprising the documents assigned priority by the Committee together with several additional documents whose review had been undertaken before the Committee removed them from its priority list; and (3) a list showing the disposition of the claims of solicitor-client privilege that the Panel has considered. Since this letter describes our activities since our April report, the Government may wish to consider tabling this letter in Parliament together with the material we are transmitting with it. We understand that no further work is now expected of the Panel. We appreciate the confidence that was placed in us as Panel members, and were honoured to have served in this capacity. Yours faithfully,

Claire L'Heureux-Dube

Frank Iacobucci

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Enclosures