Judge dismisses charter appeal in Afghan detainee transfers

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

Decision comes as military police watchdog announces public hearings

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.

The federal ruling came in a lawsuit filed by Amnesty International Canada and the B.C. Civil Liberties Association against the minister of national defence, the chief of defence staff and the attorney general of Canada in a bid to halt the prisoner transfers.

In her decision, Judge Anne Mactavish 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."

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."

NDP Leader Jack Layton fired back, accusing 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 key information, witnesses and documents" from the commission, Layton said. "Why the refusal to co-operate?"

But Defence Minister Peter MacKay said the government has given the complaints commission "as much, if not more information that would have been provided" had a public hearing with subpoena powers already been called.

"Canada has met a very high standard when it comes to disclosure and transparency on this issue," MacKay said. "We're always to prepared to work with this commission."

Decision sets 'bad precedent': Amnesty lawyer

Paul Champ, a lawyer representing Amnesty in the case, told on Wednesday the human rights group was disappointed by the decision.

"It basically says that Canadian government actors on foreign soil are not subject to Canadian law in any way, and I think that's a bad precedent," Champ said from Ottawa following the ruling.

He cited numerous extradition and deportation cases as precedents in which foreigners are afforded the protection of the charter, but the challenge lay in convincing Mactavish that an exception should be made to allow it to apply to the actions of the Canadian military overseas.

"That was the more difficult issue for this judge," Champ said.

He added Amnesty and the B.C. rights group will make a decision whether to appeal well within the 30-day deadline. BCCLA president Jason Gratl indicated the appeal to the Supreme Court would go forward.

"We're not satisfied that the risk of torture has significantly and appropriately diminished," Gratl told CBC News. "This issue has not yet been put to rest."

The separate complaint to the military police commission, also filed jointly by Amnesty and the BCCLA in February 2007, argued that the Charter of Rights bars Canadian Forces operating abroad from transferring prisoners of war to custody in which they could be tortured.

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.