So who investigates the Attorney-General for obstruction of justice?

From the letter of Lori Bokenfohr, legal counsel for Richard Colvin, to Alain Prefontaine, Department of Justice, October 13, 2009

(The letter was obtained from the Wikileaks Swedish site.)

In your July 28 letter, under the heading, in bold, “What is at stake for you”, you advised witnesses and subjects that their reputation was at stake. You cautioned that Government servants must appear before the Commission in public, and that “the Commission is actively seeking to publicize the hearings and the report”. You advised that the interview would provide Commission counsel with two advantages, but that the only advantage to a witness or subject would be to “get to know his interrogator and feel more comfortable about the interrogation.” You went on to state that: “There is
no reason to believe the interview will allow you to convince her not to call you to testify…” You advised that the pre-hearing interview would allow Commission counsel to obtain testimony in advance, and that “she [Commission counsel] will commit you to that recollection…” You stated as follows:

In her mind, your appearance [at the hearing] will be the occasion to confirm what she believes she has already learned informally, not the occasion for you to stray from the predicted path. Departures from this path during the course of the hearings will lead her to question why you are not providing the same answers, thus putting your credibility in issue. Are you lying now or did you lie then? What portion of my questions did you not understand when we last met?

You warned that Military Police are at especially high risk of reputational damage, that they could be directly criticized by the Commission, and that this criticism could further “trigger a review process before the Military Police Credential Review Board.” You stated that additional members of the Military Police could be served with a “notice of potential adverse findings” following certain procedural requirements. You warned, however, that “the level of observance by the Commission of this procedural safeguard is uneven”. Finally, you stated that military commanders could become the “collateral casualties” of the hearing, and “the legality of their decision to transfer Afghan detainees will be the battleground on which the allegation of failure to investigate will be fought.”

You closed the letter by “strongly” suggesting that witnesses and subjects obtain legal advice before deciding whether to be interviewed, and you directed them to named Department of Justice lawyers. You did not, as required by Law Society rules, advise that the Department of Justice was precluded by conflict of interest from simultaneously representing Canada, witnesses, and subjects, nor did you recommend Crown servants seek the advice of independent legal counsel.

And from the Crimes Against Humanities and War Crimes Act, 2000 - Sections 16 and 17

OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE

Obstructing justice

16. (1) Every person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the International Criminal Court is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

When deemed to have obstructed justice

(2) Without restricting the generality of subsection (1), every person is deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in an existing or proposed proceeding of the International Criminal Court
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; or
(b) accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence.

Obstructing officials

17. Every person who resists or wilfully obstructs an official of the International Criminal Court in the execution of their duty or any person lawfully acting in aid of such an official
(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) is guilty of an offence punishable on summary conviction.

And from the Criminal Code of Canada, Section 139

Obstructing justice

139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.

Idem

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Idem

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.
R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s. 8.