Date: 20080207
Docket: T-324-07
Citation: 2008
FC 162
Ottawa, Ontario, February 7, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AMNESTY INTERNATIONAL CANADA and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Applicants
and
CHIEF OF THE DEFENCE STAFF
FOR THE CANADIAN FORCES,
MINISTER OF NATIONAL DEFENCE and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
Amnesty
International Canada and the British Columbia Civil Liberties Association (“the
applicants”) seek an interlocutory injunction prohibiting General Rick J.
Hillier - the Chief of the Defence Staff for the Canadian Forces, the Minister
of National Defence and the Attorney General of Canada from transferring
detainees captured by the Canadian Forces to Afghan authorities, or to the
custody of any other country, pending the final disposition of the applicants’
application for judicial review.
[2]
The
evidence adduced by the applicants clearly establishes the existence of very
real concerns as to the effectiveness of the steps that have been taken thus
far to ensure that detainees transferred by the Canadian Forces to the custody
of Afghan authorities are not mistreated.
[3]
That said,
the Court has been advised that the transfer of detainees by the Canadian
Forces have ceased, at least temporarily. At this point, we do not know when,
and indeed, if, detainee transfers will ever resume.
[4]
Furthermore,
in the event that transfers do resume at some point in the future, we do not
know what safeguards may have been put into place by that time to protect
detainees while they are in the hands of the Afghan authorities.
[5]
In order
to be entitled to an interlocutory injunction, the applicants have to
demonstrate, amongst other things, that irreparable harm will likely result unless
the injunction is granted. This must be established on the basis of clear and
non-speculative evidence. Given the current uncertainty surrounding the future
resumption of transfers, and the lack of clarity with respect to the conditions
under which those transfers may take place, the applicants have not satisfied
this aspect of the injunctive test.
[6]
As a
consequence, the applicants’ motion for an interlocutory injunction will be
dismissed, without prejudice to the right of the applicants to renew their
request, should detainee transfers resume in the future.
The Underlying Application for Judicial
Review
[7]
The
applicants have brought an application for judicial review with respect to “the
transfers or potential transfers, of individuals detained by the Canadian
Forces deployed in the Islamic Republic of Afghanistan”.
[8]
The
application seeks to review the conduct of the Canadian Forces with respect to
detainees held by the Canadian Forces in Afghanistan, and the transfer of some of these
individuals to Afghan authorities.
[9]
In
particular, the applicants allege that the formal arrangements which have been
entered into by Canada and Afghanistan do not provide adequate substantive or
procedural safeguards so as to ensure that individuals transferred into the
custody of the Afghan authorities are not exposed to a substantial risk of
torture.
[10]
It is in
this context that the applicants now seek an interlocutory injunction
prohibiting the transfer of detainees captured by the Canadian Forces to Afghan
authorities, or to the custody of any other country, pending the determination
of their application for judicial review.
Background
[11]
Canadian
Forces personnel are currently deployed in Afghanistan, both as part of the NATO-led
multi-national International Security and Assistance Force (“ISAF”), and as
part of the American-led “Operation Enduring Freedom” (“OEF”). The majority of
Canadian personnel are deployed in Kandahar
province as part of ISAF.
[12]
In the
performance of Canada’s military operations in Afghanistan, the Canadian Forces are required from
time to time to capture and detain insurgents, or those assisting the
insurgents, who may pose a threat to the safety of Afghan nationals, as well as
to members of the Canadian military and allied forces.
[13]
In accordance
with Task Force Afghanistan’s Theatre Standing Order
321A, the decision as to whether individual detainees should be retained in
Canadian custody, released, or transferred to the custody of another country,
is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently
occupied by General Laroche.
[14]
Before
transferring a detainee into Afghan custody, the Commander must be satisfied
that there are no substantial grounds for believing that there exists a real
risk that the detainee would be in danger of being subjected to torture or
other forms of mistreatment at the hands of Afghan authorities.
[15]
It is the
position of the respondents that if this standard is not met, transfers will
not take place.
[16]
On
December 19, 2005, the Afghan Minister of Defence and the Chief of the Defence
Staff for the Canadian Forces signed an agreement entitled “Arrangement for
the Transfer of Detainees between the Canadian Forces and the Ministry of
Defence of the Islamic Republic of Afghanistan” (the “first Arrangement”).
[17]
The first
Arrangement was intended to establish procedures to be followed in the event
that a detainee was transferred from the custody of the Canadian Forces to a
detention facility operated by Afghan authorities. The Arrangement reflects
Canada’s commitment to work with the Afghan government to ensure the humane
treatment of detainees, while recognizing that Afghanistan has the primary responsibility to
maintain and safeguard detainees in their custody.
[18]
Amongst
other things, the first Arrangement provides that the International Committee
of the Red Cross has the right to visit detainees at any time, while the
detainees were being held in either Canadian or Afghan custody.
[19]
In
February of 2007, the Canadian Forces signed an exchange of letters with the
Afghan Independent Human Rights Commission, which letters emphasize the role of
the AIHRC in monitoring detainees. These letters emphasize the role of the
AIHRC in monitoring detainees, and further provide that the AIHRC is to give
immediate notice to the Canadian Forces, should it become aware of the
mistreatment of a detainee who had been transferred from Canadian custody.
[20]
On
February 1, 2007, the applicants filed their application for judicial review
with respect to the “actions or potential actions” of the Canadian Forces in Afghanistan. Amongst other relief
requested in their Notice of Application, the applicants sought to prohibit
further transfers of detainees until adequate safeguards were put in place. To
this end, the applicants also sought an interim injunction restraining the
transfer of detainees until the hearing of the application for judicial review.
[21]
The
applicants’ motion for an injunction was originally scheduled to be heard on
May 4, 2007.
[22]
On May 3,
2007, Canada and Afghanistan concluded a second Arrangement governing
the transfer of detainees held by the Canadian Forces (the “second
Arrangement”). This second Arrangement supplements the first Arrangement,
which continues to remain in effect.
[23]
The second
Arrangement requires that detainees transferred by the Canadian Forces be held
in a limited number of detention facilities, to assist in keeping track of
individual detainees. The designated institutions are the National Directorate
of Security detention facility in Kandahar, Kandahar central prison (Sarpoza), National
Directorate of Security detention facility No. 17 in Kabul, and Pul-e-Charki
prison, also in Kabul.
[24]
The second
Arrangement further provides that members of the Afghan Independent Human
Rights Commission, the International Committee of the Red Cross and Canadian
Government personnel all have access to persons transferred from Canadian to
Afghan custody.
[25]
The second
Arrangement also requires that approval be given by Canadian officials before
any detainee who had previously been transferred from Canadian to Afghan
custody is transferred on to the custody of a third country.
[26]
Finally,
the second Arrangement provides that allegations of abuse and mistreatment of
detainees held in Afghan custody are to be investigated by the Government of
Afghanistan, and that individuals responsible for mistreating prisoners are to
be prosecuted in accordance with Afghan law and internationally applicable
legal standards.
[27]
As a
result of the negotiation of the second Arrangement, the applicants’ motion for
an interim injunction was adjourned sine die.
[28]
The
applicants subsequently developed concerns with respect to the efficacy and
sufficiency of the protections afforded to detainees under the second Arrangement.
As a consequence, in November of 2007, the applicants renewed their motion for
an interlocutory injunction, and the matter was scheduled to be heard on
January 3, 2008. At the request of the respondents, this date was subsequently
pushed back to January 24, 2008.
[29]
On January
22, 2008, the applicants were advised by the respondents that the Canadian
Forces had suspended detainee transfers until such time as transfers could be
resumed “in accordance with Canada’s international
obligations”.
[30]
The decision
to suspend detainee transfers was made on November 6, 2008. The decision was
the result of a “credible allegation of mistreatment” having been received the
previous day by Canadian personnel monitoring the condition of detainees
transferred to Afghan authorities.
[31]
As a
result of the receipt of this allegation, no detainee transfers have taken
place since November 5, 2007.
[32]
On January
24, 2008, prior to the commencement of the hearing of the applicants’ motion
for an interlocutory injunction, Brigadier General Joseph Paul André Deschamps
testified with respect to recent developments in this matter.
[33]
Brigadier
General Deschamps works with the Canadian Expeditionary Forces Command in Ottawa, and is the Chief of Staff
responsible for overseeing operations for the Canadian Forces deployed outside
of Canada, including those stationed in Afghanistan.
[34]
Brigadier
General Deschamps testified that the day following the receipt of the November
5 allegation of detainee mistreatment, Colonel Christian Juneau, the Deputy
Commander of Task Force Afghanistan, made the decision to suspend
further detainee transfers. This decision was made by Colonel Juneau, in the
absence of General Laroche, who was on leave at the time.
[35]
According
to Brigadier General Deschamps, the suspension of transfers is temporary in
nature, and the Canadian Forces remain committed to the ISAF policy of
transferring Afghan detainees to the custody of Afghan authorities. He further
testified that the resumption of detainee transfers remains a real
possibility.
[36]
The
respondents further advise that detainee transfers will not resume until such
time as Canada is satisfied it can do so in
accordance with its international legal obligations.
Is the Motion Now Moot?
[37]
The first
issue to be considered is whether the applicants’ motion for an interlocutory
injunction is moot, in light of the suspension of detainee transfers.
[38]
The
respondents submit that the application for judicial review seeks to review the
Canadian Forces’ practice with respect to the transfer of detainees. Given
that there is currently no Canadian Forces practice to transfer detainees, the
case is therefore moot, and the Court should refuse to grant an injunction on
that basis.
[39]
Moreover,
the respondents say that transfers will not resume until such time as the
Canadian Forces can be satisfied that detainees will not face a substantial
risk of torture. As a consequence, there is currently no possibility that any
individual detainee will be transferred to the custody of Afghan authorities if
there is a substantial risk that the individuals would be tortured.
[40]
Finally,
the respondents submit that if and when transfers do begin again, such
transfers will take place on a new set of facts, necessitating the production
of an entirely new evidentiary record.
[41]
The
applicants argue that they are seeking injunctive relief on a quia timet
basis – that is, on the basis of apprehended future harm. Such future harm
remains a real possibility, the applicants say, in light of the evidence of
Brigadier General Deschamps as to the Canadian Forces’ ongoing commitment to
the ISAF policy of transferring detainees to the custody of Afghan authorities,
and the fact that the resumption of detainee transfers remains a real
possibility.
[42]
Moreover,
the applicants submit that the motion for an injunction should be entertained,
as it is clear from the record that no amount of post-transfer monitoring will
suffice to protect the detainees.
[43]
A review
of the Notice of Application confirms that the application for judicial review
is directed, in part, to the policy or practice of denying detainees access to
counsel, and transferring them to the custody of Afghan authorities where they
face a substantial risk of torture: see Amnesty International Canada et al.
v. Canada (Canadian Forces), [2007] F.C.J. No. 1460, 2007 FC 1147, at ¶68.
[44]
The
evidence of Brigadier General Deschamps confirms that the policy of the
Canadian Forces remains unchanged – that is, to transfer individuals detained
by the Canadian Forces to the custody of the Afghan authorities, unless those
individuals have already been released by the Canadian Forces.
[45]
There is
no question that the situation on the ground in Afghanistan with respect to detainee transfers is
extremely fluid. This is evidenced by changes that have occurred since the
commencement of the application for judicial review.
[46]
Amongst
other developments, there has been the negotiation of the second Arrangement,
the day before the applicants’ injunction motion was originally scheduled to be
heard. Other changes include the establishment of monitoring arrangements
involving representatives of both Canada
and the Afghan Independent Human Rights Commission, and the November 6, 2007
suspension of detainee transfers.
[47]
I agree
that what the respondents describe as a temporary suspension of transfers
creates problems for the applicants in seeking an interlocutory injunction
restraining future detainee transfers. These difficulties will be addressed
further on in this decision.
[48]
However, I
am not persuaded that the matter is ‘temporarily moot’, as the respondents
contend, as I am satisfied that there remains a live controversy between the
applicants and the respondents: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[49]
In coming
to this conclusion, I have taken into account the fact that:
1) The
applicants’ application for judicial review is directed to the policy of
detainee transfers, as well as the practice;
2) It
remains the policy of the Canadian Forces to transfer detainees into the hands
of the Afghan authorities unless the detainees are first released from custody
by the Forces;
3) It is
the avowed intention of the Canadian Forces to resume the practice of
transferring detainees as soon as satisfied that it can do so in accordance
with its obligations at international law;
4) There
is thus a very real possibility that detainee transfers will resume at some
point in the future;
5) The
respondents have refused to advise the applicants in the event that the
decision is made to resume the transfer of detainees to the custody of the
Afghan authorities; and
6) The
injunction is being sought quia timet, to prevent apprehended future
harm.
[50]
Furthermore,
if the Court were to grant an injunction, the Court’s order would have the
effect of resolving a controversy which affects or may affect the rights of the
parties: see Borowski, previously cited, at ¶15.
[51]
That is,
the order would affect the ability of the Canadian Forces to resume detainee
transfers. The dispute between the parties in this regard has not disappeared.
[52]
As a
consequence, I will deal with the applicants’ motion.
[53]
However,
before turning to address the merits of the applicants’ motion, I would simply
note that as a result of my finding that the applicants have not demonstrated
that irreparable harm will result if the injunction is not granted, it has been
unnecessary to address the respondents’ arguments with respect to the
availability of injunctive relief against the Crown, Crown Ministers and
servants.
The Test for Injunctive Relief
[54]
In
determining whether the applicants are entitled to an interlocutory injunction
restraining future detainee transfers, the test to be applied by the Court is
that established by the Supreme Court of Canada in RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311.
[55]
That is,
the applicants must establish that:
1) There is a serious issue to be tried;
2) They will suffer irreparable harm if the
injunction is not granted; and
3) The balance of convenience favours the
granting of an injunction.
[56]
Given that
the test is conjunctive, the applicants have to satisfy all three elements of
the test before they will be entitled to relief.
Serious Issue
[57]
In RJR-MacDonald,
the Supreme Court of Canada observed that the threshold for establishing the
existence of a serious issue is a low one. In this regard, the Supreme Court
noted that:
Once satisfied that the application is
neither vexatious nor frivolous, the motions judge should proceed to consider
the second and third tests, even if of the opinion that the plaintiff is
unlikely to succeed at trial. A prolonged examination of the merits is
generally neither necessary nor desirable. (at pp. 337-338)
[58]
The
respondents submit that the applicants have not demonstrated the existence of a
serious issue in this case, as the Canadian Charter of Rights and Freedoms
does not apply to the conduct of the Canadian Forces in Afghanistan. The respondents further
argue that even if the Charter does apply, the specific sections of the Charter
relied upon by the applicants are not engaged on the facts of this case.
[59]
The
question of the applicability of the Canadian Charter of Rights and Freedoms
to the conduct of the Canadian Forces deployed in Afghanistan is the subject of a separate motion
brought under the provisions of Rule 107 of the Federal Courts Rules. A
decision in relation to that motion is currently under reserve.
[60]
However, in
addressing the applicants’ motion for an interlocutory injunction, I am not
required to finally determine the applicability of the Charter to the
conduct in issue here, and nothing in these reasons should be read to decide
that question.
[61]
Rather, I
am simply called upon to determine whether the applicants have satisfied the
burden on them to establish the existence of a serious issue in this regard.
[62]
In October
of 2007, the Court ruled on the respondents’ motion to strike the applicants’
Notice of Application. In this regard, the Court found that while the issues
raised by the applicants were novel, the applicants had raised one or more
serious issues: see Amnesty International Canada et al, previously
cited. No appeal has been taken by the respondents from that decision.
[63]
In
particular, this case requires the determination of the extent to which, if at
all, a constitutional bill of rights such as the Canadian Charter of Rights
and Freedoms “follows the flag” when Canadian Forces personnel are deployed
outside of Canada.
[63]
[64]
While the
application of the Charter to the actions of the Canadian Forces in
relation to the Afghan detainees is by no means free from doubt, I am satisfied
that the applicants have demonstrated that the issue is neither vexatious nor
frivolous, and have thus satisfied the serious issue component of the
tripartite injunctive test.
[65]
The next
question, then, is whether the applicants have demonstrated that irreparable
harm will result between now and the time that the application for judicial
review is decided, in the event that an interlocutory injunction is not
granted.
The Law Regarding Irreparable Harm
[66]
Before
examining the evidence adduced by the parties in relation to this issue, it is
helpful to start by considering what the Courts have said on the question of
irreparable harm.
[67]
It is well
established by the jurisprudence that an interlocutory or interim injunction
should only be granted in cases where it can be demonstrated that irreparable
harm will occur between the date of the hearing of the motion for interim
relief and the date upon which the underlying application for judicial review
is heard, if the injunction is not granted: Lake Petitcodiac Preservation
Assn. Inc. v. Canada (Minister of the Environment) (1998), 149 F.T.R. 218,
at ¶23.
[68]
Moreover,
the burden is on the party or parties seeking injunctive relief to adduce clear
and non-speculative evidence that irreparable harm will follow if their motion
is denied: see, for example, Aventis Pharma S.A. v. Novopharm Ltd. 2005
FC 815, (2005), 40 C.P.R. (4th) 210, aff'd 2005 FCA 390, 44 C.P.R. (4th) 326,
at &59.
[69]
Indeed, as
was noted by Justice Rothstein in Ciba-Geigy Canada Ltd. v. Novopharm Ltd.
(1994), 83 F.T.R. 161, 56 C.P.R. (3d) 289, at ¶117, while a motions judge may
draw logical inferences that reasonably flow from the evidence before the
Court, at the end of the day, even where quia timet injunctive relief is
sought, the applicant’s evidence of irreparable harm must nevertheless be
clear, and non-speculative: see also Bayer HealthCare AG v. Sandoz Canada
Inc. [2007] F.C.J. No. 585, 2007 FC 352, at ¶34.
[70]
Furthermore,
in order to be entitled to quia timet injunctive relief, the applicants
must show a high degree of probability that a breach of the rights in issue
will occur imminently, or in the near future: see Merck & Co. v. Apotex
Inc. (2000), 8 C.P.R. (4th) 248 (F.C.A.).
[71]
With this
understanding of the jurisprudence, I turn now to consider the evidence
relating to the issue of irreparable harm.
The Evidence on the Issue of Irreparable
Harm
[72]
The
applicants have led substantial evidence with respect to the alleged
inadequacies in the safeguards that have been put into place to this point to
protect detainees transferred to Afghan authorities by the Canadian Forces.
[73]
Of
particular note are the following matters:
1. Deficiencies in Record
Keeping
[74]
Both the
first and second Arrangements impose an obligation on Afghanistan to maintain accurate written records
accounting for all detainees that pass through their custody. This does not
appear to be happening.
[75]
Indeed,
the documentation relating to the period between the negotiation of the second
Arrangement on May 3, 2007, and the suspension of transfers on November 6, 2007,
is replete with references to the ongoing difficulties facing the Canadian
Forces and the Department of Foreign Affairs and International Development
(“DFAIT”) in tracking down detainees once they leave Canadian custody.
[76]
These
difficulties seemingly arise from the poor level of record keeping by the
Afghan authorities. Amongst other shortcomings, Canadian documents refer to
the fact that Afghan records do not note the nationality of the military
personnel originally detaining individuals. Also leading to confusion are the
multiple ways of transcribing Afghan names into the Latin alphabet, and the
unreliability of, or inconsistencies in, the information provided by detainees
themselves.
2. Missing Detainees
[77]
Due in
part to the problems of record keeping identified above, Canadian personnel
appear to have lost track of a number of individuals who have been handed over
to Afghan authorities by the Canadian Forces.
[78]
While some
of these individuals have subsequently been located, according to the testimony
of Nicholas Gosselin, the DFAIT Human Rights Officer in Kandahar responsible
for detainee monitoring, at this point there are at least four detainees who
were taken into Canadian custody after May 3, 2007 and then subsequently
transferred to the Afghan authorities, whose current whereabouts are unknown.
[79]
As a
consequence, it has not been possible to determine whether these individuals
have been subject to abuse while in Afghan detention.
[80]
In
addition, Canadian personnel do not follow up on the condition of detainees
after they have been handed over to Afghan authorities, where those individuals
have allegedly been subsequently released by the Afghan authorities.
[81]
For
example, on June 26, 2007, Canadian personnel attended at the National
Directorate of Security detention facility in Kandahar City. In preparation for this visit the
Canadian Provincial Reconstruction Team prepared a list of 12 individuals who
had recently been transferred by the Canadian Forces to the NDS detention
facility. On the arrival of the Canadian personnel at the detention facility,
they were advised that ten of the individuals had been released the day before.
[82]
It appears
that Canada has no ability to verify this
information, with the result that it has not been possible to ascertain whether
these ten individuals had indeed been released, or were still in detention.
Moreover, there is no way of knowing whether these individuals had been
mistreated while they were in Afghan custody.
[83]
The second
Arrangement specifically imposes an obligation on Afghanistan to notify the Government of Canada prior
to the release of Canadian-transferred detainees from Afghan custody. Based on
the events of June 26, 2007, it is clear that this does not always occur.
3. Denial of Access to Afghan
Detention Facilities
[84]
The
documentation produced by the respondents relating to the period after the
negotiation of the second Arrangement on May 3, 2007 confirms that on one
occasion, Canadian personnel attempting to visit detainees following their
transfer to Afghan custody were denied access to detainees being held at
Sarpoza prison, allegedly because of security concerns relating to the large
number of visitors in the facility for a family visiting day.
4. Complaints of Mistreatment
Prior to November 5, 2007
[85]
Eight
complaints of prisoner abuse were received by Canadian personnel conducting
site visits in Afghan detention facilities between May 3, 2007 and November 5,
2007. These complaints included allegations that detainees were kicked, beaten
with electrical cables, given electric shocks, cut, burned, shackled, and made
to stand for days at a time with their arms raised over their heads.
[86]
While it is
possible that these complaints were fabricated, it is noteworthy that the
methods of torture described by detainees are consistent with the type of
torture practices that are employed in Afghan prisons, as recorded in
independent country condition reports, including those emanating from DFAIT.
[87]
Moreover,
in some cases, prisoners bore physical signs that were consistent with their
allegations of abuse. In addition, Canadian personnel conducting site visits
personally observed detainees manifesting signs of mental illness, and in at
least two cases, reports of the monitoring visits describe detainees as
appearing “traumatized”.
5. The Need to Rely on Afghan
Investigations of Allegations of Mistreatment
[88]
The second
Arrangement specifically provides that allegations of mistreatment at the hands
of Afghan authorities are to be investigated by the Government of Afghanistan.
It further provides that those alleged to be responsible for the abuse of
detainees are to be prosecuted in accordance with Afghan law and
internationally applicable legal standards.
[89]
Canada has no independent capacity
to investigate allegations of mistreatment of detainees in Afghan custody, as
to do so would encroach on Afghan sovereignty. Moreover, Canada’s offers of assistance with respect
to the investigation of allegations of detainee mistreatment have thus far been
refused by the Afghan authorities.
[90]
As a
result, Canada is entirely reliant on
investigations of detainee abuse carried out by Afghan officials.
[91]
The
allegations of mistreatment occurring in the period between May 3, 2007 and
November 5, 2007 were allegedly investigated, and found to be without merit.
Even though Afghan authorities considered the allegations to be unsupported, a
number of additional preventative measures were put into place as a result of
the allegations, including the implementation of visits to detention facilities
by doctors, increased monitoring, and enhanced human rights training for Afghan
officials.
[92]
It is not
clear, however, whether the investigation carried out in relation to these
allegations was an independent one. No written report of the investigation has
been produced to Canadian personnel, nor have any details of the investigation
been provided thus far. As a consequence, there is no way of knowing whether
the investigation was fair, thorough or impartial.
[93]
All of
these considerations raise concerns as to the reliability of the findings of
the investigation that all of the allegations were unfounded.
[94]
Furthermore,
in many cases, detainees were unwilling to be identified in complaints, for
fear of reprisals at the hands of Afghan prison officials. While this is
perfectly understandable, it does further constrain the extent to which a
meaningful investigation of detainee allegations of mistreatment could be
carried out.
6. The November 5, 2007
Allegation of Detainee Mistreatment
[95]
On
November 5, 2007, Canadian personnel, including Mr. Gosselin, attended at the
National Directorate of Security detention facility in Kandahar City on a site visit. In the course of the
visit, a detainee stated that he had been interrogated by his captors on more
than one occasion - the precise number of interrogations having been redacted
from the record on the grounds of national security and diplomatic relations.
[96]
At least
one of the interrogations had evidently taken place in the room in which the
interview was being conducted. The detainee stated that he could not recall
the details of that interrogation, as he had allegedly been knocked unconscious
early on. He did report, however, that he had been held to the ground and
beaten with electrical wires and a rubber hose.
[97]
The
detainee then pointed to a chair in the interview room, stating that the
instruments that had been used to beat him had been concealed under the chair.
Canadian personnel then located a large piece of braided electrical wire and a
rubber hose under the chair in question.
[98]
In the
course of the interview, the detainee also revealed a large bruise on his back,
which was subsequently described by Canadian personnel as being “possibly … the
result of a blow”. In cross-examination, Mr. Gosselin conceded that the
bruising that he observed was consistent with the beating described by the
detainee.
[99]
This
allegation was reported to Afghan authorities, and is currently under
investigation by them. While the investigation is ongoing, an employee at the
detention facility has evidently been suspended from his position and placed in
detention.
[100]
However,
once again, the detainee making the allegation of mistreatment refused to allow
his name to be disclosed to Afghan prison officials, necessarily limiting the
extent to which a meaningful investigation can be carried out.
[101]
It was as
a consequence of the receipt of this complaint that the decision was made by
the Deputy Commander of Task Force Afghanistan
to suspend further detainee transfers until such time as the Canadian Forces
was satisfied it could do so in accordance with its international legal
obligations.
7. Afghanistan’s Human Rights Record
[102]
All of the
foregoing concerns must also be considered in the context of Afghanistan’s human rights record.
[103]
In this
regard, entities such as the Department of State of the United States, the Afghan Independent Human
Rights Commission, the United Nations High Commissioner for Human Rights and
the United Nations Assistance Mission in Afghanistan have all recognized the serious systemic
problem of detainee torture and abuse in Afghan prisons.
[104]
These
problems are noted as being particularly prevalent in Kandahar and Paktia provinces.
[105]
Moreover,
Canada’s own Department of Foreign Affairs and International Trade has
recognized the pervasive nature of detainee abuse in Afghan prisons in its
annual reviews of the human rights situation in Afghanistan. For example, DFAIT’s 2006 report,
released in January of 2007, concluded that “Extra-judicial executions,
disappearances, torture and detention without trial are all too common”.
[106]
The Afghan
National Directorate of Security is often singled out for particular attention
in the country reports, as being responsible for the torture and mistreatment
of prisoners. Of particular note is the fact that Louise Arbour, the United Nations
High Commissioner for Human Rights, has described torture in NDS custody as
being “common”.
[107]
Many of
the detainees turned over to Afghan authorities by the Canadian Forces are in
fact handed over to the NDS.
8. The Expert
Evidence With Respect to Post-transfer Monitoring as a Means
Of Preventing Torture
[108]
The
applicants have also adduced expert evidence with respect to monitoring as a
means of preventing torture in the form of an affidavit from Dr. Vincent
Iacopino, the Medical Director of Physicians for Human Rights. Dr. Iacopino is
also one of the authors of the “Istanbul Protocol”, which is a United
Nations-sanctioned set of international guidelines for the investigation and
documentation of torture.
[109]
Dr.
Iacopino’s evidence raises serious questions as to the usefulness of
post-transfer monitoring as a means of preventing torture.
[110]
Dr.
Iacopino’s view that post-transfer monitoring mechanisms are not effective to
mitigate the risk of torture is shared by numerous international organizations,
including the United Nations Special Rapporteur on Torture and the United
Nations High Commissioner for Human Rights.
Have
the Applicants Shown that Irreparable Harm will Likely Occur in the Future if
the Injunction is not Granted?
[111]
The
evidence adduced by the applicants is very troubling, and creates real and
serious concerns as to the efficacy of the safeguards that have been put in
place thus far to protect detainees transferred into the custody of Afghan
prison officials by the Canadian Forces.
[112]
As a
result of these concerns, the Canadian Forces will undoubtedly have to give
very careful consideration as to whether it is indeed possible to resume such
transfers in the future without exposing detainees to a substantial risk of
torture.
[113]
Careful
consideration will also have to be given as to what, if any, safeguards can be
put into place that will be sufficient to ensure that any detainees transferred
by Canadian Forces personnel into the hands of Afghan authorities are not
thereby exposed to a substantial risk of torture.
[114]
That said,
it bears repeating that the applicants’ application for judicial review is
directed to the respondents’ policy or practice of denying detainees access to
counsel prior to transfer, and transferring them to the custody of Afghan
authorities without adequate safeguards in place, with the result that the
detainees face a substantial risk of torture.
[115]
The
Canadian Forces has indicated that it will not resume detainee transfers unless
it is satisfied that it can do so in accordance with its international
obligations, which would include obligations under the Convention Against
Torture.
[116]
At this
point, we have no way of knowing whether detainee transfers will ever be
resumed.
[117]
In the
event that the Canadian Forces does resume transferring detainees into the
hands of Afghan prison authorities at some point in the future, we do not know
what additional safeguards may have been put into place by that time, so as to
ensure that the detainees are not exposed to a substantial risk of torture.
[118]
Indeed, as
the applicants conceded in argument, there are scenarios under which detainee
transfers could potentially take place in the future, in circumstances that
would address the applicants’ concerns.
[119]
That is,
the applicants indicated that their concerns would be adequately addressed if,
by way of example, Canada was able to negotiate an
arrangement with Afghan authorities whereby a Canadian monitor was stationed in
the detention facilities holding Canadian-transferred detainees.
[120]
We have no
way of knowing whether such an arrangement would be possible, or would be
dismissed out of hand as an unacceptable encroachment on Afghan sovereignty.
What the above example does serve to illustrate, however, is that whatever
concerns may exist as to the adequacy of past efforts to protect detainees, it
is by no means clear at this point that future transfers will necessarily take
place in circumstances that would expose detainees to a substantial risk of
torture.
[121]
The
applicants submit that notwithstanding the uncertainty surrounding the
conditions under which future transfers might take place, an injunction should
nonetheless be granted, in light of the respondents’ refusal to undertake to
notify the applicants in advance, in the event that the decision is made to
resume detainee transfers.
[122]
While I
have some sympathy for the applicants’ position, given the degree of public
interest in this matter, I am not persuaded that the applicants will not know
when transfers are resumed, if that should occur between now and the time that
the applicants’ application for judicial review is heard.
[123]
Moreover,
the injunctive test puts the burden on the applicants to adduce clear and
non-speculative evidence that irreparable harm will result between now and the
time that their application for judicial review is heard, if the injunction is
not granted.
[124]
Given the
uncertainty as to whether transfers will resume during this period, as well as
the lack of information with respect to the terms and conditions that may
surround future detainee transfers, the applicants have not met this burden.
Notice of the Resumption of Detainee
Transfers
[125]
In the
event that the Court was to refuse the injunction in light of the temporary
suspension of detainee transfers, and the uncertainty surrounding future
transfers, the applicants ask that the respondents be ordered to provide them
with seven days advance notice of the resumption of transfers, in order that a
fresh motion for an injunction could then be brought on the basis of an updated
record.
[126]
While this
request has been given careful consideration, there are real concerns about the
Court inserting itself in such a fashion into decisions regarding the
disclosure of information made in theatre, by those charged with responsibility
for the Canadian Forces. The determination of whether information of this
nature should be disclosed could well involve operational or strategic
considerations well beyond the knowledge or expertise of the Court.
[127]
Moreover,
there is a real possibility that any such order may not, in the end, have any
practical utility. This is because the respondents have indicated that
information as to the resumption of transfers may be “sensitive information or
potentially injurious information” relating to national security and
international relations, as contemplated by section 38 of the Canada
Evidence Act.
[128]
If the
resumption of transfers would not otherwise be disclosed to the public on the
basis of the respondents’ belief that it is sensitive or potentially injurious
information, the respondents cannot not be compelled to disclose that
information, without first being afforded the opportunity to have their claim
reviewed through the procedures contemplated by section 38 of the Canada
Evidence Act. This would take some time.
[129]
Thus, even
if the determination were ultimately made that the information should be
disclosed, any such decision would likely not be made until well beyond the
seven day notice period requested.
[130]
As a
consequence, the Court declines to make such an order.
Other Issues Relating to Irreparable Harm
[131]
In light
of the finding that the applicants have not satisfied the irreparable harm
component of the injunctive test, it is unnecessary to address the respondents’
argument that even though the applicants have been granted public interest
standing to represent the interests of the detainees in this case, they cannot
rely on harm to those detainees to support an allegation of irreparable harm,
so as to entitle the applicants to injunctive relief.
Balance of Convenience
[132]
In Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, the Supreme Court stated that this
third branch of the injunctive test requires a determination of which of the
two parties will suffer the greater harm from the granting or refusal of an
interlocutory injunction, pending a decision on the merits (at p.129, per Beetz
J.).
[133]
To be
entitled to injunctive relief, the applicants have to satisfy all three
elements of the RJR-MacDonald test. Given that the applicants have not
provided clear and non-speculative evidence that irreparable harm will result
between now and the time that their application for judicial review is heard if
the injunction is not granted, it is not necessary to consider where the
balance of convenience lies in this case.
Conclusion
[134]
As has
been explained above, the evidence adduced by the applicants clearly
establishes the existence of real and very serious concerns as to the
effectiveness of the steps that have been taken thus far to ensure that
detainees transferred by the Canadian Forces to the custody of Afghan authorities
are not mistreated.
[135]
As a
result of the concerns that have arisen with respect to the treatment of
detainees, transfers of detainees by the Canadian Forces have ceased, at least
temporarily. It is not clear at this point when, and indeed, if, detainee
transfers will ever resume.
[136]
Furthermore,
in the event that transfers do resume at some point in the future, we do not
know what additional safeguards may be put into place to protect detainees
while they are in the hands of the Afghan authorities.
[137]
To be
entitled to injunctive relief, the applicants had to demonstrate on the basis
of clear and non-speculative evidence that irreparable harm will likely result
unless the injunction is granted. Given the current uncertainty surrounding the
future resumption of transfers, and the lack of clarity with respect to the
conditions under which those transfers may take place, the applicants have not
satisfied this aspect of the injunctive test.
[138]
For these
reasons, the applicants’ motion for an interlocutory injunction is dismissed,
without prejudice to the right of the applicants to renew their request, on the
basis of an updated evidentiary record, should detainee transfers resume in the
future.
The Status of the Record
[139]
The
applicants also seek an order directing that any evidence submitted on this
motion be considered as evidence submitted for the purposes of the hearing of
the application for judicial review.
[140]
The
respondents object to such an order, arguing firstly that there are questions
as to the admissibility of portions of the evidence adduced by the applicants,
given that some of the affidavit material is based upon the information and
belief of the deponents, rather than their first-hand knowledge.
[141]
In
addition, the respondents submit that it cannot be determined at this juncture
whether evidence currently before the Court on this motion will be relevant to
the facts in existence at the time that the application for judicial review is
finally decided.
[142]
I agree
with the respondents that this is a matter best left to the judge dealing with
the application for judicial review on its merits, and decline to make any
order in this regard.
Costs
[143]
Should
their motion be dismissed, either on the basis of mootness, or because of the
uncertainty surrounding future detainee transfers, the applicants contend that
they should nevertheless be entitled to their costs from November 6, 2007 to January
24, 2008. This is the period between the date on which the decision to suspend
detainee transfers was made, up to, and including, the date of the hearing.
[144]
Given that
the respondents were in possession of information relevant to these
proceedings, and chose not to disclose it in a timely manner, the applicants
say that they should be compensated for the enormous amount of work that was
done on this file in this period.
[145]
The
applicants also point to the fact that the respondents filed four affidavits
with the Court on December 14, 2007 which, they say, imply that detainee
transfers were ongoing. The applicants argue that the Canada Evidence Act
“ought not to be used as a licence to keep the Court ill-informed of pivotal
facts, or as a means to achieve a tactical advantage”.
[146]
The
respondents vigorously oppose this request, stating that they had serious and
legitimate national security concerns relating to the disclosure of this
information, and should not be penalized for dealing with these concerns in a
careful and responsible manner.
[147]
While the
respondents may well have needed some time to consider the security implications
of the disclosure of information with respect to the suspension of detainee
transfers, those concerns were surely rendered moot when, on November 14, 2007,
General Egon Ramms, the Executive Head of ISAF troops in Afghanistan, gave an interview to Deutsche Welle, Germany’s public broadcaster.
[148]
In the
course of this interview, General Ramms discussed the state of NATO’s knowledge
of detainee mistreatment at the hands of Afghan authorities. He then stated
that “Canadian troops in Kandahar province stopped handing over
prisoners until their safety and human rights could be guaranteed”.
[149]
Given that
the information had already been disclosed in the German media, the respondents
should have advised the applicants of the Canadian Forces’ suspension of
detainee transfers by mid-November, 2007.
[150]
That said,
it appears that the applicants were in fact, or should have been, aware of the
suspension of detainee transfers by November 29, 2007 at the very latest. We
know this because a report of General Ramms’ interview with Deutsche Welle was
produced by the applicants as an exhibit to the affidavit of Alex Neve sworn on
that date.
[151]
In all the
circumstances, taking into account the factors set out in Rule 400 of the Federal
Courts Rules, and in light of the public interest in having this matter
litigated, the Court declines to make any order as to costs.
ORDER
THIS COURT ORDERS that:
1. The
applicants’ motion for an interlocutory injunction is dismissed, without
prejudice to the right of the applicants to renew their request, should
detainee transfers resume in the future;
2. The
question of whether the evidence submitted on this motion should be considered
as evidence submitted for the purposes of the hearing of the application for
judicial review is left to the applications judge; and
3. Each side shall bear their own costs
of the motion.
“Anne
Mactavish”
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