Lawsuit developments

The latest on the efforts of the BC Civil Liberties Assoc. and Amnesty International:

Complaints body may defy Ottawa over hearings

OTTAWA, April 14 - The Military Police Complaints Commission says it may defy Ottawa and go ahead with scheduled public hearings into the handling of Afghan detainees in spite of the Conservative government's attempt to shut the inquiry down.

The commission had planned to begin hearings into the detainee affair starting May 1, but Ottawa filed an application last week in Federal Court to stop the procedures, arguing that the oversight body has overstepped its jurisdiction. ...

"As you know, anytime someone goes to court it delays proceedings," [Lead counsel Freya] Kristjanson said in an interview Monday.

"The commission intends to continue its investigation into these complaints." ...

After a year of investigation, the commission announced last month that it needed to call the hearings because the Foreign Affairs Department had stonewalled requests for information.

MacKay responded that the government is co-operating with the commission and has provided "incredible disclosure," including 1,300 documents and access to 38 witnesses for interviews. ...

"The government is seeking to stop the investigation," Kristjanson said. "They're looking for an order prohibiting the MPCC from investigating the complaint in addition to an order to stop the holding of public hearings." ...

Earlier in the day, commission chair Peter Tinsley said he was "surprised and disappointed" by the government's decision ...

"It's especially surprising given the fact that the government did not challenge our jurisdiction a year ago when we first launched our investigation," he said in a statement.

Last month, Tinsley accused the government of stonewalling his investigation. He said he had to resort to the rarely used public interest process in order to issue subpoenas and allow the commission to compel witnesses to testify and various government departments to provide uncensored documents. ...

Prime Minister Stephen Harper responded that the government was being co-operative with Tinsley's investigation and providing all the information it could under the law. ...

Contrary to the government's stance, the commission maintains that it is within its jurisdiction to conduct the investigation, which was initiated after a joint complaint made by Amnesty International and the British Columbia Civil Liberties Association. ... (link)

For the background to all this, as well as some interesting revelations about the Globe and Mail's Graeme Smith, see this piece from the Hill Times:

How two advocacy groups effectively brought national attention to Afghan detainees
Simon Doyle
March 24/08

... Frustrated with stonewalling and a lack of information, [BCCLA and Amnesty] launched a Federal Court challenge in February 2007 after they were approached by Amir Attaran, a law professor and human rights advocate at the University of Ottawa, and [Paul Champ, a human rights lawyer in Ottawa, who's been representing the BCCLA and Amnesty while Attaran does research]. ...

Mr. Attaran had been working on the issue for years, and in 2006, through a leak, he and Mr. Champ discovered an arrangement between Canada and Afghanistan on the transfer of detainees. Mr. Attaran approached Mr. Champ for a legal opinion on the arrangement, and Mr. Champ suggested that the Charter of Rights could apply, and that there was a chance of success in court. ...

[The Globe and Mail's Graeme Smith] began working on the BCCLA and Amnesty International's detainee story after they launched their court application. ...

Mr. Smith's work brought national attention to the issue, sustaining prominence in Question Period for weeks. Until then, as Mr. Champ noted, the government had been saying there was no evidence that Canadian detainees were being abused by Afghan authorities.

"Mr. Smith's article changed that, and it changed our case as well, because up until that point we had no direct, first hand information, or second hand information for that matter, on Canadian-transferred detainees," he said. ...

"We've fed him [Mr. Smith] information, and at different times he's assisted us," Mr. Champ said. "We had asked him to swear an affidavit but he was not interested in doing that. He felt that would be crossing a line, but his work has been very helpful to us."

The BCCLA and Amnesty International used Mr. Smith's investigative report to argue for a court injunction, seeking a halt to the transfer of detainees in Afghanistan. ...

On Feb. 7, Amnesty and the BCCLA lost their case ...

That court challenge is now being held in abeyance until the groups decide whether to appeal the Federal Court decision. ...

"As soon as our courts say that the Charter does not apply to the military when it goes abroad, we are essentially giving the military carte blanche to do things that the Americans have done abroad," Mr. Attaran said, pointing to American practices such as wiretapping and detaining prisoners at Guantanamo Bay. ... (link)