An agreement between Canada and the Afghanistan government has not stopped the torture of Afghan detainees after Canadian troops hand them over to Afghan security forces, the Federal Court of Appeal heard Wednesday in Ottawa.

A lawyer for human rights groups that want to extend Canadian human rights protection to the detainees told court the agreement reached in February has not ended abuses that came to light in 2007.

"It is our submission it is not working," lawyer Paul Champ told a court tribunal. "There are still human rights abuses in Afghanistan."

Champ said investigations by UNICEF and the Afghanistan Human Rights Commission have found recent evidence of torture in Afghanistan. But, he noted, it has been impossible to obtain information from the Canadian Forces about the treatment of prisoners they hand over to Afghan police.

Champ urged the tribunal to overturn a Federal Court ruling earlier this year that rejected an application by Amnesty International and the B.C. Civil Liberties Association for a court order to halt Canadian transfers because they violate the Charter of Rights and Freedoms.

Justice Anne Mactavish ruled the government could not extend the charter to cover Afghan citizens, in part because the government of Afghanistan had not requested it and international law protecting the sovereignty of independent states otherwise prevented it.

She made the ruling after earlier rejecting an application from the two groups for a temporary ban on the transfers until she ruled on the charter question. It had been revealed the Canadian Forces had already secretly suspended the transfers. They were resumed in late February after Afghanistan reached a new agreement to prevent abuse.

Charter applies to Canadian soldiers: lawyer

Champ referred to several Supreme Court of Canada rulings and other cases to argue at the appeal tribunal that the Charter of Rights applies to Canadian soldiers in Afghanistan, and prevents them from taking part in prisoner transfers if there are reasonable grounds to suspect Afghan police intend to torture the detainees.

Federal lawyers argued the charter does not apply to Canadian troops taking part in military operations at Afghanistan's request, and does not protect Afghans who claim they have been tortured.

Champ responded that the charter is intended to prevent Canadian government officials and agents from taking part in activities that could eventually lead to human rights violations.

He cited the case of a Somali man who was tortured to death by a Canadian soldier in the early 1990s after a commanding officer of the Canadian unit urged troops to abuse prisoners because of an increase in thefts on the peacekeeping outpost in Somalia.

"What if Amnesty International and the B.C. Civil Liberties had intervened when [the commander] issued the order?" Champ asked the appeal tribunal.

Troops must protect human rights, federal lawyers say

Federal lawyers Sandy Graham and Jeff Anderson argued Canada had no right to extend charter protection to Afghan civilians, pointing out a range of international covenants requires Canadian troops and other soldiers in Afghanistan to protect human rights.

Graham noted the Criminal Code of Canada even contains a section incorporating international human rights law.

Champ said that should not preclude a ruling that the charter applies to activities of the Canadian troops.

"Why is it so controversial to say that the Canadian charter also applies?" he asked the tribunal, chaired by Court of Appeal Chief Justice John Richard.

The court reserved judgment in the case.