Administrative law – National defence – Transfer of Afghan detainees – Torture – Charter of Rights and Freedoms – Prisons – Protection of inmates – Judicial review – Public interest – Standing – Evidence
Amnesty International Canada v. Canada (Canadian Forces),  F.C.J. No. 1460, Federal Court, November 5, 2007, Mactavish J.
Amnesty International and the British Columbia Civil Liberties Association applied for a judicial review with respect to “actions or potential actions” of the Canadian Forces in Afghanistan. The application sought to review the conduct of the Canadian Forces with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of those individuals to Afghan authorities. The Notice of Application asserted that the arrangement did not provide adequate safeguards to ensure the detainees transferred by the Canadian Forces to Afghan Forces would not be tortured by Afghan authorities. The Notice further asserted that there were substantial grounds to believe that Afghan Forces were torturing detainees and that the United States of America, “a likely third country to which detainees may be transferred”, was engaging in “cruel, degrading and inhuman treatment of detainees”. Finally, the Notice of Application stated that the Canadian Forces continued to capture and detain individuals in Afghanistan and to transfer those individuals to Afghan authorities without providing detainees with access to counsel before being transferred out of Canadian custody. The Chief of Defence Staff, the Minister of National Defence and the Attorney General applied to strike the Notice of Application asserting that the Applicants did not have standing to advance the issues and that the application had no chance of success.
The Court dismissed the application. The Court held that the Applicants were to be granted public interest standing. Further, while a number of the issues raised by the case were novel, it could not be said that they were clearly bereft of any chance of success. It was acknowledged by all parties that the Applicants did not have any “direct” interest in the issues raised by the application for judicial review. However, the Applicants satisfied the three criteria that had to be met in order to be granted public interest standing:
1. The action raised serious legal questions.
2. The Applicants had a genuine interest in the resolution of the questions raised by the application.
3. There was no other reasonable and effective manner in which the questions raised by the application might be brought to court.
The Court noted that it was unreasonable to expect that individuals directly affected by the actions of the Canadian Forces would be able to initiate their own legal proceedings in Canada. With respect to the merits of the application, the Court was satisfied that the application raised issues relating to a policy or practice that was ongoing, being the policy or practice of denying detainees access to counsel and transferring them to the custody of Afghan authorities where they faced a substantial risk of torture. Therefore, the application was not out of time.
In the result, the motion by the Chief of Defence Staff, Minister of National Defence and the Attorney General of Canada was dismissed.
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