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Human-rights groups were handed a minor victory and a major defeat Wednesday in their bid to halt the transfer of Canadian-captured Taliban fighters to Afghan authorities.
A Federal Court judge ruled the legal obligations of the Charter of Rights and Freedoms cannot be extended to cover Canadian soldiers who seize militants on foreign soil.
In a decision released Wednesday, Madame Justice Anne Mactavish says detainees do have rights under the Afghan constitution and international law – but not Canadian law.
The case was brought forward by Amnesty International and the B.C. Civil Liberties Association, which argued that the prisoners should be protected by the Charter.
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The ruling came as a blow to both organizations.
“Basically what she said is: This whole situation can be governed by international law alone,” said Paul Champ, the lawyer for the British Columbia group.
“I would say that's a serious concern for the detainees currently held by Canadian Forces, who are about to be transferred to torturers. There's no court they can go to [in order] to say, ‘Please don't send me to be tortured'. Justice Mactavish has taken away any forum they might have.”
Prime Minister Stephen Harper told the House of Commons the government was pleased with the ruling and would study its ramifications.
The court victory, which Mr. Champ says will almost certainly be appealed, was announced by Mr. Harper as he faced opposition questions about a decision by the chairman of the Military Police Complaints Commission to order a public hearing into concerns over the fate of the prisoners.
Peter Tinsley said the hearings are necessary because the Conservative government has refused to provide full access to information.
“Ordering a public interest hearing is necessary to ensure a full investigation of the grave allegations raised in this complaint,” Mr. Tinsley said in a statement.
“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 the Department of Foreign Affairs and International Trade and the Correctional Service of Canada.”
Holding a public hearing gives Mr. Tinsley the power to subpoena documents, but an official with the commission said the national security nature of the case means some testimony and documents will be kept secret.
Mr. Harper denied the government has obstructed the investigation and said that Canadian law clearly allows the government to withhold some documents and information.
He was referring to the Canada Evidence Act, which contains broad restrictions related to secrecy and national security.
Amnesty and the B.C. Civil Liberties Association filed a complaint with the commission about the military police practice of transferring prisoners to Afghan authorities.
In the complaint, it was alleged that military police handed over prisoners on at least 18 occasions even though there was evidence of torture in Afghan jails.
Lawyers for Amnesty and the B.C. group have run into the same roadblocks as the commission and relied on a judge to order the Defence Department to surrender its documents on prisoners, which the army has deemed a matter of national security.
Jason Gratl of the B.C. group said the inquiry will be worth it and accused the Tory government of stonewalling. He said he expects this latest quasi-judicial process to be just as excruciating as the court case.
“The government is going to squirm and squirrel and use every means at its disposal, hoping to avoid disclosure,” Mr. Gratl said. “We're expecting Mr. Tinsley to be up to the task of holding the government to account.”
The Canadian military has been handing captured fighters over to Afghan authorities since a battle group arrived in Kandahar in early 2006. There have been dozens of abuse allegations, but the Conservative government insisted throughout most of last year that they were unproven claims or lies made up by propaganda-savvy Taliban.
The reports did prompt the government to beef up its agreement last spring with the Afghan government to allow for surprise inspections of prisoners and jails. It was on one of the those tours that Canadian diplomats came across a clear case of torture, where an Afghan prisoner had been beaten unconscious with an electrical cable and a hose.
The handovers were temporarily suspended and resumed only just recently.
The question of whether the Conservatives will allow public hearings remains up in the air because Mr. Tinsley still needs approval to fund the probe. The cost is expected to be in the range of $2-million.
Holding a full public inquiry would add months to the investigation.
