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Defence Minister Peter MacKay received a memo in March about Canada's handling of Afghan child prisoners. ((David Smith/Canadian Press))

The Canadian Forces have for years arrested children suspected of working with the Taliban and handed them over to an Afghan security unit accused of torture, CBC News has learned.

Allegations that militants captured by Canada were transferred to Afghan forces and later tortured were hotly debated in Parliament last fall.

A document obtained by the CBC's investigative unit shows that Canadian soldiers captured children as well in the fight against the Taliban, and that many of them were transferred to the custody of Afghanistan's National Directorate of Security, or NDS.

Document

Read the briefing note to Defence Minister Peter MacKay.

The document, obtained under an Access to Information request and marked "secret," shows that Defence Minister Peter MacKay was briefed on the topic of juvenile detainees in Afghanistan March 30.

The "Canadian eyes only" note informs MacKay of how many children suspected of "participating in the insurgency" have been arrested by Canadian Forces and how many of them have been transferred into Afghan custody in the previous four years.

The note also shows that an undisclosed number of juvenile detainees were being kept in a Canadian transfer facility at Kandahar Air Field for "a significant period."

The numbers in all cases, however, were blacked out.

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Lawyer Paul Champ at the Military Police Complaints Commission during the Public Interest Hearings regarding Afghan Detainees in Gatineau, Que., in 2009. ((Sean Kilpatrick/Canadian Press))

Human rights lawyer Paul Champ called the briefing note "troubling."

"Juveniles have been in Canadian Forces custody for a significant period of time," Champ said. "That's very troubling. I'm surprised by that.

"Are they talking about a week, or are they talking about two weeks or a month or longer? Kandahar Airfield is no place for children."

The briefing note alerts MacKay that the media could soon begin paying closer attention to the issue of juvenile detainees in Afghanistan once they got wind of a change in policy that called for the Canadian Forces to send captured children to a new facility, the Juvenile Rehabilitation Centre in Kandahar, instead of the Sarpoza prison.

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"This may draw attention to the role of juveniles in the Afghan conflict," the minister was told.

And while the March 2010 briefing note suggests the government was "likely" to post information about the new facility on its website, that did not happen until Oct. 28, the same day the CBC received the briefing note through the Access to Information Act.

University of Ottawa law professor Amir Attaran said Canada's duty to protect children from torture is even greater than in the case of adult prisoners.

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University of Ottawa law professor Amir Attaran. ((CBC))

"International law is dead clear that when a person is under 18 and in the hands of the Canadian military, the Canadian military must seek to take that person out of the conflict," he said.

"You can't treat them like an insurgent. You have to treat them as a child who's been forced into war against their will."

CBC News has also learned that Canadian Forces policy dictates that juveniles — defined as all prisoners under the age of 18 — are to be routed through the NDS.

One international report after another has cited the NDS's rough treatment of children, including a United Nations report issued in April.

"The use of harsh interrogation techniques [on children] and forced confession of guilt by the Afghan National Police and the National Directorate of Security was documented," according to the UN report. The report is silent on which countries detained those children.

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Hussain Nussrat of the Afghanistan Independent Human Rights Commission in Kabul told CBC News that Canada needs to find a better way to deal with child prisoners and suggested eliminating NDS from the process.

"We are a bit worried and we are not satisfied [with] the behaviour or treatment happening against the children at NDS," he said.

"Canadians are not, I think according to the law and the agreement, they are not forced to transfer children to the NDS. They can hand over or transfer these children to a specific department of prosecution which is dedicated for the children."

Figuring out what to do with child prisoners is a dilemma for international forces, said Radikha Coomaraswamy, the UN's special representative for children and armed conflict.

"That they be handed over to a civilian authority, either UNICEF or some child protection agency who would take the children and then work with them and try to reintegrate them back into society, that is what our preferred goal would be," she said.

"But I think the international forces don’t want to look like they’re detaining children [but] at the same time feel that these children should be interrogated."

Neither MacKay nor anyone from Canadian Forces or Foreign Affairs would agree to be interviewed on the record on the issue.  

'The primary responsibility for ensuring that the rights of detainees transferred to Afghan authorities are respected rests with the government of Afghanistan.'—Canadian government spokesperson

However, in an email, a government spokesperson said Canada remains committed to its international obligations. 

"The primary responsibility for ensuring that the rights of detainees transferred to Afghan authorities are respected rests with the government of Afghanistan and responsibility for juvenile prisoners lies with the Afghanistan Ministry of Justice."  

The Defence Department did confirm to CBC News that juvenile detainees are sent to NDS to be processed.

"In accordance with Afghan law, the subsequent NDS investigation leads to either the release of the individual or transfer to the Juvenile Rehabilitation Centre."

Canada currently has about 2,700 troops deployed to Afghanistan, mainly in the province of Kandahar. A vote in the House of Commons on Tuesday will determine the future of the Afghan mission.

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With files from the CBC's Nicole Rogers