On Wednesday, November 18, Richard Colvin, a former senior diplomat with Canada’s mission in Afghanistan, gave testimony before a Canadian Parliamentary Committee. He testified that Canada likely transferred detainees to torture, and that the monitoring of detainee transfers was inadequate. The government continues to deny that such practices took place. The issue of transfer of prisoners to potential torture must be publicly discussed. At this stage, a public inquiry is the only possibility to respond to Canada’s obligations to deter and denounce the practice of torture.
In 2008, CCLA had appeared before the Federal Court of Appeal arguing that the Charter should restrain Canadian Forces in Afghanistan from transferring detainees into the custody of Afghan forces, potentially leading to the detainees’ torture and a violation of fundamental human rights. CCLA was granted intervenor status in the case. CCLA special counsel Earl Cherniak, Jasmine Akbarali, and Shannon Puddister (Lerners) argued that the Charter applies to Canadian forces acting abroad when Canada’s actions threaten fundamental human rights such as the right to be free from torture. CCLA contended that government agents acting abroad have a basic Charter obligation to refrain from violating fundamental human rights. Members of Canadian forces should not be ordered, CCLA said, to engage in conduct that violates the most basic human rights protections, just as Canadians back home should not have to worry that such action is taking place in their name. On 17 December 2009, the Federal Court of Appeal found that the Charter did not apply in such circumstances. On May 21, 2009, the Supreme Court of Canada refused to hear an appeal of the lower courts’ decisions.
The question of the obligations of our army in relation to the prevention of torture must be discussed publicly. At stake are possibly violations of our international obligations and hence, a tarnishing of our international reputation.