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No Charter protection for Afghan detainees: Court

The Federal Court of Appeal has upheld a ruling that Afghans held by Canadian forces are not entitled to protection under the Charter of Rights and Freedoms.

The BC Civil Liberties Association (BCCLA) and Amnesty International have been trying to get the courts to order Canadian troops to stop handing prisoners over to Afghan authorities, a practice the rights groups say exposes the detainees to torture.

The two groups vowed on Thursday to continue their fight in the hopes of getting the Supreme Court of Canada to overturn a ruling they claim leaves prisoners in a “legal vacuum.”

“The Federal Court of Appeal and also the lower court said that they’re still protected by human rights law but really that’s completely illusory,” Grace Pastine, the BCCLA’s director of litigation, told the Tyee. “The reality is that the prisoners don’t have any access to an international court and no way of enforcing their international rights.”

But Justice Alice Desjardins, in her written reasons for the three-judge panel’s unanimous decision, agreed with the March ruling that Canada needs to respect agreements signed with the Afghan government.

“The CF are not an occupying force – they are in Afghanistan at the request and with the consent of the governing authority,” she wrote. “That authority has not acquiesced to the extension of Canadian law over its nationals.”

While Desjardins conceded that the Supreme Court has said deference to another jurisdiction’s laws should go out the window in obvious cases of human rights violations, she argued such a scenario “does not mean that the Charter then applies as a consequence of these violations.”

Instead, Desjardins again agreed with the lower court’s belief that international law is preferable to the “patchwork of different national legal norms” that could otherwise develop given the multinational nature of the Afghan mission.

Pastine countered that international obligations constrain nations without providing relief to individuals. She believes that if the Charter applied, there would be safeguards in place to prevent what she sees as Canada’s complicity in torture.

“It’s really up to the courts to step in at this point and constrain the activities of Canadian forces when those activities are leading to torture,” she said.

Rob Annandale is a regular contributor to the Hook.

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