The Attorney-General successfully appealed a decision made by the Military Police Complaints Commission to investigate the treatment of detainees in Afghanistan, on the basis that such matters are beyond the jurisdiction of the Commission

Administrative law – Military police – Disciplinary proceedings – Investigations – Public interest – Jurisdiction – Judicial review – Compliance with legislation – Statutory interpretation

Canada (Attorney General) v. Amnesty International Canada, [2009] F.C.J. No. 1096, 2009 FC 918, Federal Court, September 16, 2009, Harrington J.

The Respondent, Amnesty International, submitted two complaints to the Military Police Complaints Commission (the “Commission”) regarding the treatment of detainees in Afghanistan. In its first complaint, the Respondent alleged that the Provost Marshal and others transferred or allowed detainees to be transferred to authorities in Afghanistan notwithstanding that the transfer system lacked effective safeguards against torture and that there was evidence that Afghan authorities were routinely torturing detainees. In its second complaint, the Respondent alleged that the Military Police failed to investigate officers having command responsibility for directing the transfer of detainees to the Afghan authorities, in the face of a known risk of torture. On receipt of the complaints, the Commission stated that it would conduct a public interest investigation. The Appellant appealed this decision on the grounds that the complaints related to matters which were not within the jurisdiction of the Commission.

Pursuant to the National Defence Act, the Commission has jurisdiction over the conduct of members of the Military Police as a result of their “policing duties or functions”, but does not have jurisdiction to investigate complaints that relate to military operations resulting from “established military custom or practice.” Section 2(1) of the Complaints about the Conduct of Members of the Military Police Regulations enumerates a list of actions which constitute “policing duties or functions”. These include, among others, the conduct of an investigation, the enforcement of laws, and the arrest or custody of a person.

Drawing on principles of statutory interpretation, the Court held that even if the capture, detention and transfer of insurgents in Afghanistan could be construed as a policing duty or function if carried out by the Military Police, s. 2(1) has to be read down to exclude such duties or functions as they arise from “established military custom or practice”. Giving regard to the Dickson Report issued in March 1997 and the Somalia Inquiry Report issued in June 1997, the Court held that the detention of insurgents relates to military operations and is thus beyond the jurisdiction of the Commission.

The Court further held that the adjudication of the second complaint would require an investigation of government policy, including the state of knowledge of the Government of Canada at large and, more particularly, the Department of Foreign Affairs and International Trade, and the extent to which these bodies have any relevant information which was not shared by the Military Police. This is clearly beyond the jurisdiction of the Commission.

Accordingly, the Court quashed the Committee’s decision to investigate the complaints submitted by the Respondent.

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