[JURIST] Justice Anne Mactavish of the Federal Court of Canada ruled [judgment, PDF; summary, PDF] Wednesday that the protections of the Charter of Rights and Freedoms [text] do not extend to Afghan detainees captured by Canadian soldiers. Amnesty International Canada and the British Columbia Civil Liberties Association [advocacy websites] had filed complaints against the Canadian Forces Provost Marshal (CFPM) [official website] in Federal Court in February 2007, alleging complicity in torture by Canadian personnel serving in Afghanistan as part of the NATO International Security Assistance Force (ISAF). Amnesty alleged that Canada was violating its 1982 rights charter by turning Afghan detainees over to Afghan authorities without any protection against later cruel and unusual punishment. Mactavish held that:
I have concluded that while detainees held by the Canadian Forces in Afghanistan have the 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.Also Wednesday, the Canadian Military Police Complaints Commission [official website], which has been tasked with investigating the Canadian military's detainee transfer process, said that it was unable to complete its investigation because several departments in the Canadian government were refusing to hand over key information. Commission head Peter Tinsley said that the commission would hold public hearings, so that it could issue subpoenas to compel disclosure. CBC News has more.
Furthermore, although the actions of the Canadian Forces in Afghanistan in relation to the detention of non-Canadian individuals are governed by numerous international legal instruments, and may also be governed by Canadian law in certain clearly defined circumstances, the Canadian Charter of Rights and Freedoms does not apply to the conduct in issue in this case.
The transfer scandal erupted in April 2007 when the Toronto Globe and Mail reported [text] that more than 30 terrorism suspects had been tortured by Afghan investigators after being transferred from Canadian custody. Following public outcry, Canada signed a new agreement regarding detainee transfers [JURIST report] with the Afghan government, giving Canada the right to inspect detainees following their transfer. The Canadian military announced last month that it had resumed transfers of Afghan detainees to Afghan authorities [JURIST report].