Amnesty International Canada and British Columbia Civil Liberties Association (Appellants) v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada (Respondents)

Court	Federal Court of Appeal, Canada
Case number	[2009] 4 F.C.R. 149
Decision title	Appeal Judgment
Decision date	17 December 2008
Parties	Amnesty International Canada British Columbia Civil Liberties Association (BCCLA) Chief of the Defence Staff for the Canadian Forces Minister of National Defence Attorney General of Canada Canadian Civil Liberties Association (Intervener)
Other names	Amnesty International Canada v. Canada
Categories	Torture
Keywords	Law of armed conflict; torture; detention; effective control; extraterritorial application
Links	Judgment in English Judgment in French
Other countries involved	Afghanistan

Summary

At the beginning of 2007, there were allegations that Afghan prisoners who were captured by Canadian forces and transferred to Afghan custody, were tortured.

On 21 February 2007, Amnesty International Canada and the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit against the Canadian Minister of National Defence, the Chief of the Defence Staff for the Canadian forces and the Attorney General of Canada in order to halt the transfer of Afghan prisoners. Plaintiffs specifically asked for a review of the Canadian prisoner transfer policy, and, in addition, claimed that the Canadian Charter of Rights and Freedoms should provide protection to the Afghan prisoners.

The case was dismissed. In March 2008, a federal judge stated that the Afghan prisoners have rights under both the Afghan Constitution and international law, but that they did not have rights under the Canadian Charter of Rights and Freedoms. This decision was upheld by the Court of Appeal in December 2008.

Procedural history

At the beginning of 2007, reports emerged that around 30 Afghan detainees had been tortured whilst in custody of the Afghan National Directorate of Security (NDS) after being transferred from Canadian custody. After reports that the Canadian government was aware of the allegations, followed by an announcement that an investigation had revealed no evidence of abuse, the claim for judicial review of the Canadian prisoner transfer policy was filed by Amnesty International Canada and the British Columbia Civil Liberties Association (BCCLA). Both applicants wanted to halt the transfer of Afghan detainees by Canadian forces to the custody of the NDS following the allegations of torture and other prisoner abuse. The Canadian Minister of Defence and the other respondents filed a motion to strike this claim.

In November 2007, the Canadian government halted the transfer of detainees to Afghan custody, though this decision was only made public in January 2008.

On 5 November 2007, the Federal Court of Canada dismissed the motion to strike the case and granted standing in the case to Amnesty International Canada and the BCCLA.

Nevertheless, despite more evidence of prisoner abuse, on 7 February 2008, Federal Court Judge Anne Mactavish refused a motion for an interlocutory injunction prohibiting the transfer of detainees captured by Canadian forces to Afghan custody (see also in French). The Court ruled that since transfers had been halted since November, the rights groups had failed to demonstrate that irreparable harm would result without the injunction.

On 29 February 2008, the Canadian Government announced that transfers had resumed.

On 12 March 2008, Judge Mactavish ruled that protection under the Canadian Charter of Rights and Freedoms (the Charter) does not extend to Afghan detainees and did not apply to the conduct of Canadian forces in Afghanistan (see also in French).

The BCCLA and Amnesty International Canada appealed.

Related developments

On 21 May 2009, the Supreme Court of Canada denied the application for leave to appeal and upheld the decision issued by the Federal Court of Appeal on 17 December 2008.

On 17 June 2012, the Military Police Complaints Commission released its final report following its inquiry conducted after Amnesty International Canada and the BCCLA ‘alleged a failure on the part of certain Military Police (MP) to investigate the Canadian Task Force Commanders in Afghanistan for directing the transfer of detainees to Afghan authorities in the face of a known risk of torture’. The Commission found the allegations to be unsubstantiated. The Commission held that the actions of the eight officers ‘under the circumstances prevailing at the time met the standards of a reasonable police officer’.

Legally relevant facts

The case concerned an attempt by Amnesty International and the BCCLA to stop Canadian Forces from transferring Afghan detainees from their detention facility at Kandahar Airfield in Afghanistan to the custody of the NDS because there were allegations of torture and other ill-treatment of prisoners.

It was the first time that Canadian courts considered whether individuals detained by the Canadian military on foreign soil can claim protection afforded by the Canadian Charter of Rights and Freedoms.

Core legal questions

Did the Federal Court err in holding that the Canadian Charter of Rights and Freedoms did not apply, even if the appellants were able to establish that the transfer of the detainees would expose them to a substantial risk of torture? (paras. 6-23)

Did the Federal Court err in holding that the Canadian Charter of Rights and Freedoms did not apply during the armed conflict in Afghanistan to the detention of non-Canadians by Canadian forces, or to their transfer to Afghan authorities? (paras. 24-35)

Specific legal rules and provisions

Canada Evidence Act, 1985:

Sections 38-38.16 - International Relations and National Defence and Security

Constitution Act, 1982, Canada:

Section 6 - Mobility of citizens
Section 7 - Life, liberty and security of person
Section 10 - Arrest or detention
Section 12 - Treatment or punishment
Section 24(1) - Enforcement of guaranteed rights and freedoms

Federal Courts Rules, 1998, Canada:

Rule 107 - Separate determination of issues

Geneva Conventions Act, 1985, Canada:

Schedules I - IV

Court's holding and analysis

On 17 December 2008, the Federal Court of Appeal of Canada rejected the appeal against the decision of the Federal Court.

The Court of Appeal upheld the conclusion of the Federal Court that the Charter did not apply even if the appellants were able to establish that the transfer of the detainees would expose them to a substantial risk of torture. In particular, the Court agreed with the Supreme Court’s holding in Canada (Justice) v. Khadr ‘that deference and comity end where clear violations of international law and fundamental human rights begin’. However, according to the Court, that does not lead to the conclusion that ‘the Charter then applies as a consequence of these violations’. The Court further held that ‘Even though section 7 of the Charter applies to “[e]veryone” (compare with the words “[e]very citizen” in section 6 of the Charter), all the circumstances in a given situation must be examined before it can be said that the Charter applies’ (paras. 19-20).

The Court also rejected the second ground of appeal. The Court held that the Federal Court did not err in deciding that the Canadian forces did not have “effective control” over territory in Afghanistan, meaning that the Charter could indeed not be given territorial application over Afghan territory and over Afghan people. In this regard, the Court held that although the Canadian forces had command and control over their detention facility at the Kandahar Airfield, Canada shared this facility with other countries participating in security and infrastructure operations in Afghanistan. Therefore, the control exercised by Canadian forces ‘cannot be considered “effective”’ (para. 25).

The appellants’ claim that the Federal Court did set ‘an unnecessarily high standard for establishing consent by a foreign state’ was rejected, as well as the claim that the Federal Court ‘failed to have due regard to whether the conduct of the Government of Afghanistan amounted to an invitation or “acquiescence” to Charter protection being afforded to its citizens held in detention by the CF [Canadian forces]’ (para. 31).

Further analysis

A. Deeks, ‘Detention in Afghanistan: The Need For an Integrated Plan’, Center for Strategic & International Studies, 13 February 2008.

D. J. Rennie and R. Rothschild, ‘The Canadian Charter of Rights and Freedoms and Canadian Officials Abroad’, Supreme Court Law Review, 2009, Vol. 2, pp. 127-146.

M. Gionet, ‘Canada the Failed Protector: Transfer of Canadian Captured Detainees to Third Parties in Afghanistan’, The Journal of Conflict Studies, 2009, Vol. 29, pp. 1-14.

D. Vallentgoed, ‘Welcome Back Khadr: Re-Examining Extraterritorial Applicability of the Charter after the Omar Khadr Decisions and Amnesty International v. The Canadian Forces’, The Canadian Bar Association – Military Law Branch, 2011, pp. 1-20.

M. Sassoli and M-L. Tougas, ‘International Law Issues Raised By The Transfer Of Detainees By Canadian Forces In Afghanistan’, McGill Law Journal, June 2011, Vol. 56, pp. 959-1010.

Instruments cited

Related cases

High Court of Justice(United Kingdom), The Queen (on the application of Maya Evans) v. Secretary of State for Defence, Case No. CO/11949/2008, Approved Judgment, 25 June 2010.

Additional materials

‘Detainees in Afghanistan must not face torture, say rights groups in a call for a judicial review’, Amnesty International, 21 February 2007.

‘B.C. rights group releases documents alleging Afghan prison abuse’, CBC News, 22 January 2008.

‘Canada ended handover of Afghan detainees months ago’, CBC News, 23 January 2008.

I. Austen, ‘Canadian Military Has Quit Turning Detainees Over to Afghans’, The New York Times, 24 January 2008.

A. Woods, ‘Canada halts transfer of Afghan detainees’, The Star, 24 January 2008.

‘Canadians resume transfer of Afghan detainees’, CTV News, 29 February 2008.

‘Judge dismisses charter appeal in Afghan detainee transfers’, CBC News, 12 March 2008.

R. J. Brennan, ‘Rights groups add to call for Afghan torture inquiry’, The Star, 24 November 2009.

C. Smith, ‘Canada fought giving Afghans charter rights’, Straight, 25 November 2009.

‘Commission hears final submissions on transfers to torture’, Amnesty International, 1 February 2011.

Social media links

J. Jansen, ‘Canada secretly halted Afghan detainee transfers over torture allegations: letter’, Jurist, 24 January 2008.

M. Rosen-Molina, ‘Canada judge rules Afghan detainees have no rights under Charter’, Jurist, 12 March 2008.

R. Annandale, ‘Afghan detainees subject to Charter: Amnesty, BC CLA’, The Tyee, 11 December 2008.

‘BCCLA and Amnesty International pull out of Inquiry hearings’, BCCLA, 6 October 2011.

‘History of the BCCLA’s involvement in Afghan Detainee issues’, BCCLA, 7 June 2012.

A. Wherry, ‘Afghan detainees: The final report of the MPCC’, Macleans, 27 June 2012.