Flashback: Watchdog rejects government bid to delay Afghan detainee inquiry | Ottawa moves to block Afghanistan detainee torture hearings again | Bid to Block Afghan Detainee Inquiry Slammed What Ottawa doesn’t want you to know: Government was told detainees faced ‘extrajudicial executions, disappearances, torture and detention without trial’
September 22, 2009
The Federal Court has curtailed – but not halted – a military watchdog probe into the high-profile controversy over Canada’s transfer of Afghan detainees.
Justice Sean Harrington ruled Tuesday that the Military Police Complaints Commission can look into allegations that police didn’t do their jobs when they failed to investigate officers’ actions.
But Harrington said the commission’s public-interest hearings cannot delve into broader issues involving federal policies or the conduct of the military at large.
As a result, it can’t directly examine what other departments such as Foreign Affairs knew about the transfers.
“The Commission does not have jurisdiction to investigate complaints about government officials whether or not they are carrying out their policing functions,” Harrington wrote in the decision.
Amnesty International has complained to the commission that military police failed to investigate officers who directed the transfer of detainees to Afghan authorities knowing they might be tortured.
The government argued that the capture, detention and transfer of insurgents in Afghanistan fall under the umbrella of military operations – not policing duties.
Harrington agreed the commission was overstepping its bounds in planning a broader set of hearings.
Government lawyer Alain Prefontaine welcomed the court ruling.
“It severely curtails what the commission can inquire into legitimately in relation to the failure to investigate,” he said.
“I think that the court merely found what was plain to see.”
Hearings in October
Commission hearings scheduled to begin Oct. 5 are expected to last six weeks.
In the decision, Harrington made it clear there are still legitimate issues for the complaints commission to investigate.
“To deny the commission jurisdiction is not to give the military police or any member of the Canadian Forces free rein to ignore or violate Canadian and international laws pertaining to human rights,” Harrington wrote.
“This decision does not leave the commission a toothless wonder.”
Transferring a prisoner between countries knowing they likely will face torture is considered a war crime.
Allegations that federal safeguards for transferred prisoners were inadequate first arose in spring 2007.
“The hearings will go on,” said Paul Champ, lawyer for Amnesty and co-complainant the British Columbia Civil Liberties Association.
“I think we’re still going to learn a significant amount of information,” he said.
“Canadian Forces members can be disciplined or charged if they violate international law. So this is a means by which we can bring out that violation.”
It was revealed this month the commission had subpoenaed senior federal officials and wants a court order to force the release of federal information concerning transfer of suspected Taliban fighters.
Subpoenas were served on four former commanders of Canadian troops in Kandahar, the deputy minister and four employees of foreign affairs, and the head of the federal Correctional Service.
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