Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of Defence Staff for the Canadian Armed Forces, General Rick J. Hillier, Minister of National Defence and Attorney General of Canada is a case filed by the BCCLA and Amnesty in federal court against the Canadian military forces. The case aims to stop the Canadian Forces’ practice of transferring detainees to the custody of the Afghan National Security Forces where the detainees face serious risk of torture.
In 2007, the BCCLA and Amnesty International launched an application for judicial review of the actions of Canadian Forces regarding the transfers that have taken place under the Canada-Afghanistan Detainee Agreement signed on 18 December, 2005.
The BCCLA and Amnesty criticized the transfer deal for not providing adequate safeguards to ensure that individuals captured or detained in Afghanistan would not be tortured by Afghan forces. Our organizations had strong grounds to believe that Afghan forces are torturing detainees. An extensive record of pervasive and widespread torture in Afghanistan has been well documented by international organizations monitoring human rights issues.
We argue that transfers of these detainees violates the Canadian Charter of Rights and Freedoms and Canada’s international human rights obligations not to transfer detainees when there is a high probability of torture or ill treatment.
We sought an injunction to halt the transfer of all detainees to Afghanistan authorities, or any other country where torture may be likely. We also filed an application to determine whether the Charter of Rights and Freedoms binds Canadian Forces operating abroad to refrain from transferring prisoners of war to face a significant risk of torture.
A filing made just minutes before the injunction hearing was to start revealed that the government had struck a secret new transfer deal. The Government of Canada informed the BCCLA and Amnesty International Canada that it had ordered the Canadian Forces to cease all transfers of detainees into Afghan custody due to allegations of torture, effective November 5, 2007. The Government stated that transfers would only be resumed when it was possible to do so in “accordance with Canada’s international legal obligations.”
The BCCLA and Amnesty proceeded with its applications because despite Canada’s decision temporarily stop the transfers, the Canadian government refused to stop the transfers indefinitely or agree to give notice to the organizations when detainee transfers would resume.
In February 2007, Federal Court Justice Anne Mactavish dismissed the application for judicial review. She ruled that she would not grant a temporary injunction prohibiting Canadian Forces from transferring detainees into Afghan custody. She concluded that there is no way of knowing whether transfers will ever resume in future given the risk of torture in Afghan prisons, or, if they do resume, what additional safeguards may be put in place to protect detainees while they are in the hands of the Afghan authorities. The Judge dismissed the motion on this ground alone, without prejudice to the parties’ right to seek another injunction if transfers resume. She also concluded that the Charter does not apply to the actions of Canadian soldiers in apprehending, detaining and transferring prisoners in Afghanistan.
Although the Court failed to grant the relief that the our organizations sought, the ruling powerfully and unequivocally confirmed all of the serious human rights concerns that our two organizations have repeatedly raised with respect to prisoner transfers in Afghanistan. The decision confirms the prevalence of torture in Afghani prisons and sets out a list of deficiencies the government must resolve before resuming transfers.
On February 29, 2008, the Canadian government announced that transfers had resumed. While some new training and administrative initiatives have been undertaken – and a senior National Directorate of Security official in Kandahar arrested in connection with allegations of torture – our position that Canada should not hand prisoners over to Afghan officials remains unchanged. The Canadian government has not informed the Canadian public about which measures have been implemented and which may simply be plans or possibilities. We do not know which activities will be sustained and which may be one-off or time-limited. Above all, even if we had the information, we have no way of assessing the effectiveness of these measures. Canada should only transfer prisoners when there is no longer a serious risk that they will be subjected to torture. It is still too early to reach any such conclusion.
The BCCLA and Amnesty filed a Notice of Appeal with respect to the Federal Court ruling that concluded that the Charter does not apply to the actions of Canadian soldiers in apprehending, detaining and transferring prisoners in Afghanistan. Amnesty International and the BCCLA contend that the ruling by Justice Mactavish failed to acknowledge the Charter and international law obligations of Canada to prevent torture or ill treatment for prisoners under the complete control of Canadian forces. The grounds of appeal also note that the judgment failed to accept the legal authority of the conclusions of the United Nations Committee Against Torture and the United Nations Human Rights Committee, dismissing them as advocacy. We argue that the Canadian Charter of Rights and Freedoms, the Afghan Constitution and international law have concurrent application.
The appeal of the legal question concerning the applicability of the Charter will go forward in the coming weeks and months. In the meantime, we are urging the Canadian government to suspending detainee transfers and work with NATO allies and the Afghan government to establish a collaborative prisoner strategy that conforms to international law.
The BCCLA and Amnesty International are represented by Paul Champ of Raven, Cameron, Ballatyne & Yazbeck LLP.