Amnesty International and the British Columbia Civil Liberties Association lose in Federal Court, but are winning the war....

Judge dismisses Charter appeal in Afghan detainee transfers

Commission 'left with no other choice,' chair says
Last Updated: Wednesday, March 12, 2008 1:10 PM ET CBC News

A federal judge has ruled the Charter of Rights and Freedoms does not apply to Afghan prisoners captured by Canadian troops.

The court's decision came just hours after Canada's civilian-run military police watchdog announced it will hold public hearings into the military's detainee transfer policy in Afghanistan, in response to "delays and difficulties" in obtaining relevant documents and information from government authorities.

In its decison, the court concluded that while detainees held by the Canadian military in Afghanistan "have rights accorded to them under the Afghan constitution and by international law, and, in particular, by international humanitarian law, they do not have rights under the Canadian Charter of Rights and Freedoms."

[So the Federal Court has ruled that prisoners have the rights accorded them under international humanitarian law, which includes the Third Geneva Convention concerning prisoners of war. - NK]

Prime Minister Stephen Harper announced the court decision during question period in the House of Commons.

"They have accepted the government's arguments," Harper said. "We're obviously very pleased by the decision and will look at it more carefully."

But NDP Leader Jack Layton accused the government and Harper himself of hindering the Military Police Complaints Commission's investigation into a complaint that transfers of Afghan detainees to Afghan security forces are in violation of international and Canadian law.

"This prime minister stands accused of withholding holding key information, witnesses and documents" from the commission, Layton said. "Why the refusal to co-operate?"

The complaint, filed jointly by Amnesty International Canada and the B.C. Civil Liberties Association in February 2007, argued that the Charter bars Canadian Forces operating abroad from transferring prisoners of war to custody in which they could be tortured.

They are also suing the minister of national defence, the chief of defence staff and the attorney general of Canada.

The complaint alleged military police officers, in particular, are in violation of the law because they handle all detainees captured by Canadian Forces in Afghanistan.

In the complaint, it was alleged that unidentified members of the military police handed over prisoners to Afghan authorities on at least 18 occasions despite Canadian officials finding evidence of torture in Afghan detention facilities.

On Wednesday, the commission announced its investigation had ground to a halt because two government departments refuse to provide it uncensored copies of documents about the transfers.

"The principal difficulty which has given rise to this decision has been the government's refusal to provide the commission with full access to relevant documents and information under the control of such as the Department of Foreign Affairs and International Trade (DFAIT) and the Correctional Service of Canada (CSC)," Peter Tinsley, the commission chair, said in a release.
"Ordering a public interest hearing is necessary to ensure a full investigation of the grave allegations raised in this complaint."

Subpoena powers available

The commission would have subpoena powers and would also be able to apply to the federal court to compel the departments to provide the information and documents should they refuse.
Tinsley said the commission had sought to avoid taking the step of holding a public hearing, which he estimated could cost around $2 million and add months to the investigation.

"However, we are simply left with no other choice," Tinsley said.

"Given the relevance of the information under the control of DFAIT and CSC, the commission must now seek to compel those documents which the government has failed to provide voluntarily."

This is not the first roadblock the commission has faced in its investigation.
Last year, the military threatened to block the commission from investigating the transfers, claiming it had no jurisdiction.

That fight was resolved when then Defence Minister Gordon O'Connor ordered the military to co-operate.

Last month, the Canadian military said it had resumed the transfer of detainees to Afghan officials after a suspension of the practice following allegations of abuse.

In January, it was publicly disclosed that the military decided on Nov. 6 to stop transferring prisoners to Afghan authorities after Canadian diplomats interviewing an Afghan prisoner during a prison visit found evidence of torture.