Canada defence dept. tries to block complaint

This is not uncommon behavior towards oversight bodies. The same thing happened often with the RCMP complaints body.

Defence wants to stop Afghan torture investigation

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Canadian Press

The Defence Department says it may go to court to block a military watchdog from investigating a complaint about Canada's handling of prisoners in Afghanistan.

If it goes to court, lawyers might still be arguing long after Canadian soldiers have left Afghanistan.

The move could lead to a court showdown between the department and the Military Police Complaints Commission, or it could prompt the commission to take its investigation into the open with formal public hearings.

The department questions the jurisdiction of the commission to look into the complaint filed last month by Amnesty International Canada and the British Columbia Civil Liberties Association.

The rights groups said Canadian military police handed prisoners over to Afghan authorities, even though they should have known that Afghan police and the security directorate "routinely torture prisoners." They cited 18 specific cases of individuals who were turned over to the Afghan system.

The department, however, argues that there's no evidence that any prisoner handed over by Canadians was ever tortured.

Jason Gratl, president of the B.C. association, said a court case could drag out for years and delay the investigation to the point where "the bodies would have long been buried and the evidence lost."

"The Department of Justice is a department that is quite capable of engaging in protracted litigation," he said. "The nearly limitless resources that the Canadian government has would allow this litigation to possibly have a duration longer than the expected participation of Canadians troops in Afghanistan."

Col. Patrick Gleeson of the judge advocate general's office wrote to the commission earlier this week to say that, after reviewing commission chairman Peter Tinsley's decision to take on the case, the department and the Canadian Forces take the position that the complaint is outside the commission's mandate.

"We are therefore considering whether to instruct the attorney general of Canada to commence an application for judicial review of Mr. Tinsley's decision with respect to this specific complaint," he said in the letter, a copy of which was obtained by The Canadian Press.

Gleeson said the complaint involves "a hypothetical determination that a detainee might have been or might in the future be, tortured by Afghanistan authorities – with no evidence or even an allegation that a detainee transferred by the (Forces) was ever tortured."

He went on to say that the matter covers "a high-level, multi-departmental government of Canada policy regarding the transfer of detainees by the Canadian Forces to Afghanistan authorities and an arrangement made with the government of Afghanistan pursuant to this policy."

He added that the practice of handing over prisoners is ``directed by the operational chair of command and is required to be followed by all (Canadian Forces) members involved in the handling of detainees, not just the military police."

The commission wrote back, saying Tinsley's February decision was clear and "the complaint in question raises grounds relating to the conduct of members of the military police in an activity which is expressly enumerated in the regulations" of the National Defence Act.

Stan Blythe, chief of staff to the commission, said the government's letter was unusual.

"They've essentially asked this commission to explain their intentions ... and that seems like a very unusual thing to ask a tribunal to do. We are, after all, an independent tribunal with a statutory jurisdiction."

The commission was also counting on the department for help in obtaining documents and witnesses. If the department goes to Federal Court, that kind of co-operation is unlikely.

However, Tinsley has the option of calling public hearings. He decided against hearings initially, but could change his mind.

"If there is a lack of co-operation ... that's a factor which could lead the chair to reconsider and call a public hearing," said Blythe.

Gratl said he recognizes that the department has the right to question jurisdiction.

"We believe that their right should not be exercised and the commission should be permitted to carry on with its job and fulfil its mandate to investigate the conduct of the military police," he said.

"If the Department of Defence chooses to slowly grind our complaint to death using delays at the Federal Court of Canada it may well be able to do so.

"We believe, though, that they ought to let the commission carry out its mandate."