Afghanistan Public Interest Hearing

Court file No. T-581-08

FEDERAL COURT OF CANADA
Attorney General of Canada

Applicant

and

Amnesty International Canada and
British Columbia Civil Liberties Association

Respondents

NOTICE OF APPLICATION

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Ottawa, Ontario.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Court Rules, 1998, and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

April 11, 2008

Issued by:

(signed by: Marc Cossette)
(Registry Officer)
Address of local office:
90 Elgin Street, Ottawa, Ontario

TO:

Amnesty International Canada
C/o Alex Neve
Secretary General
312 Laurier Avenue East
Ottawa (Ontario)
K1N 1H9

Tel: (613) 744-7667 ext. 234
Fax: (613) 746-2411
Email: aneve@amnesty.ca

AND TO:

British Columbia Civil Liberties Association
C/o Paul Champ
Raven, Allen, Cameron, Ballantyne & Yazbeck LLP
1600- 200 Laurier Avenue West
Ottawa (Ontario)
K1P 5Z9

Tel: (613) 567-2901
Fax: (613) 567-2921
Email: PChamp@Ravenlaw.com

APPLICATION

This is an application for judicial review in respect of the decision made by the Chairperson of the Military Police Complaints Commission on March 12, 2008 to hold a hearing into the complaint made by the respondents (MPCC file # 2007-006). The applicant first received the decision of the Chairperson of the Military Police Complaints Commission on March 12,2008.

The applicant makes application for:

1. A declaration that the complaint of the respondents is not a complaint about the conduct of a member of the military police in the performance of any of the 'policing duties or functions', as that expression is defined by subsection 250.18(1) of the National Defence Act, R.S.C. 1985, c, N-5 and section 2 of the Complaints About the Conduct of Members of the Military Police Regulations, P.C. 1999-2065;
2. A declaration that subsection 250.38(1) of the National Defence Act, R.S.C. 1985, c, N-5 consequently does not grant to the Military Police Complaints Commission the jurisdiction to either investigate or hold a hearing into the complaint of the respondents;
3. An order setting aside the decision of the Chairperson of the Military Police Complaints Commission to hold a hearing into the complaint made by the respondents;
4. A writ of prohibition, prohibiting the Chairperson and the Military Police Complaints Commission from investigating the complaint brought by the respondents; and
5. Its costs.

The grounds for the application are

1. The National Defence Act allows any person to make a complaint "about the conduct of a member of the military police in the performance of any of the policing duties or functions that are prescribed for the purposes of this section in regulations made by the Governor in Council".
2. The National Defence Act empowers the Canadian Forces Provost Marshal and Military Police Complaints Commission (MPCC) to investigate only conduct complaints related to the performance of policing duties and functions. By virtue of the definition of that expression, 'policing duties or functions' exclude a duty or function that relates to "military operations that result from established military customs and practice".
3. According to established military customs and practice, the handling of detainees is a duty or function that relates to military operations performed, in part, by military police officers acting under orders from the commander of the theatre of operations
4. While military operational decisions, including detainee handling, are not subject to oversight through the military police complaints process, they remain subject to oversight by the chain of command. In addition, individual and command action in relation to detainees can trigger both criminal and administrative accountability through a number of mechanisms, including:
   
   
   1. a service offence investigation by the Canadian Forces National Investigation Service, a unit of the military police. The National Investigation Service has the mandate to investigate serious allegations that members of the Canadian Forces may have contravened the Criminal Code of Canada or the Code of Service Discipline created by the National Defence Act; and,
   2. a military Board of Inquiry pursuant to s. 45 of the National Defence Act that may be convened to investigate any matter related to the government, discipline, administration, or function of the Canadian Forces.
5. Afghanistan is a sovereign state. The presence of Canada in this sovereign state is based, in part, on the inherent right of states to individual and collective self-defence following the events of September 11, 2001. It is also based on the decision of the UN Security Council to establish the NATO-led International Security and Assistance Force (ISAF) deployed to assist the Government of Afghanistan to restore peace and security in Afghanistan.
6. The international effort in Afghanistan involves more than 50 countries and United Nations agencies, and is carried out in support of the sovereign state of Afghanistan, with the full consent of its internationally-recognized and democratically-elected government.
7. The Technical Arrangements and the arrangements on the transfer of detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan, though not legally binding instruments, are a clear manifestation of the consent of the sovereign state of Afghanistan to the operation of the Canadian Forces on its territory for the purposes recognized therein.
8. Detaining and transferring dangerous individuals is part of Canada's military mission in Afghanistan. With the consent of the Afghan government, and as part of military operations, Canadian Forces, capture and detain insurgents, or those assisting insurgents, who may pose a threat to the safety of Afghan nationals and the international forces.
9. Detention of non-Canadians in Canadian Forces custody is intended to be temporary. Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan provide for Canadian Forces to transfer detainees to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.
10. In the course of military operations, occasions have arisen where Canadian Forces have detained insurgents or those assisting insurgents. In some cases these detainees have been transferred to Afghan authorities.
11. Decisions as to whether individual detainees should be retained in Canadian custody, released, or transferred are within the sole discretion of the Commander of Joint Task Force Afghanistan.
12. On January 29, 2007 an individual filed a complaint with the MPCC (MPCC file # 2007-003). The complaint alleged that members of the military police failed to exercise due diligence to investigate allegations about the possible abuse of three individuals apprehended and detained by other members of the Canadian Forces during operations in Afghanistan ("the first complaint").
13. Normally, the Canadian Forces Provost Marshal investigates those conduct complaints. However, subsection 250.38(1) of the National Defence Act authorises the MPCC to conduct an investigation or hearing into a conduct complaint if the Chairperson considers it advisable in the public interest to deviate from the normal process.
14. On February 9, 2007, the Chairperson decided that the MPCC would investigate the first complaint.
15. The MPCC investigation into the first complaint is on-going. The MPCC has reported that it has reviewed 2,500 pages of documents, reviewed reports of 27 witness interviews conducted by the Canadian Forces National Investigation Service and conducted 23 witness interviews of its own.
16. In parallel with the first complaint, the Canadian Forces National Investigation Service has commenced investigations into the allegations of abuse and the alleged failure of the military police to exercise due diligence to investigate the source of injuries sustained by at least one of the three detainees.
17. On February 21, 2007, the respondents filed a separate complaint with the MPCC (MPCC file # 2007-006). The complaint alleges that the Canadian Forces Provost Marshal and other unidentified Canadian Forces military police members either knew or were wilfully blind to information about the treatment, including torture, by various Afghan security forces of detainees transferred from Canadian Forces Military Police custody (the "second complaint").
18. The MPCC purported to take jurisdiction over the second complaint even though the complaint did not relate to the performance of a policing duty or function. The Chairperson relied upon the fact that the head of the military police branch of the Canadian Forces, the Provost Marshal, was named in the complaint as a consideration justifying his decision to commence an investigation.
19. In a spirit of cooperation, the government did not challenge the jurisdiction of the MPCC to investigate the second complaint. This should have given the Commission the opportunity to satisfy itself that the second complaint should be dismissed either because it lacked merit or because the Commission had no jurisdiction to investigate it.
20. The MPCC investigation into the second complaint is on-going. The MPCC has reported that it has reviewed 1,300 documents and has conducted 38 witness interviews.
21. In parallel with the MPCC investigation of the second complaint, the Canadian Forces National Investigation Service asked the Royal Canadian Mounted Police (RCMP) to review the allegation made in the second complaint against the Canadian Forces Provost Marshal.
22. In June 2007, the RCMP reported to the Canadian Forces National Investigation Service that it found no ground to proceed with either a criminal or a service offence investigation. The MPCC was provided with a copy of the RCMP report.
23. The Vice Chief of Defence Staff has convened a Board of Inquiry to conduct an administrative investigation into the circumstances surrounding the detention and treatment of three individuals and make recommendations as to the requirement for any changes to orders, directives, procedures, or training relating to detainees.
24. On March 12, 2008, the MPCC announced its intention to conduct a public hearing into the second complaint.
25. The Chairperson of the MPCC justified his decision to conduct a public hearing by the fact that it would endow him with the power to issue subpoenas to compel the Department of Foreign Affairs and the Correctional Service of Canada to disclose information under their respective control.
26. It is legally impossible for the Chairperson to be satisfied that it is in the public interest to hold a public hearing into the second complaint because the transfer of detainees is a military operation which does not form part of the 'policing duties and functions' for which the MPCC has oversight.
27. The National Defence Act, R.S.C. 1985, c, N-5, s. 2, 156, 250, 250.18(1),250.21(1),250.38(1).
28. The Complaints about the Conduct of Members of the Military Police Regulations, P .C. 1999-2065.
29. The Federal Court Act, R.S.C. 1985, c. F-7, s. 18 and 18.1.

The following material will support the application:

1. The affidavit of an affiant to be identified;
2. Such other material as counsel may advise and the Court permit.

April 11, 2008

(signed by: Alain Préfontaine)
John H. Sims, Q.C.
Deputy Attorney General of Canada

Per:

Alain Préfontaine
Department of Justice
Room 1109, East Tower
Bank of Canada Bldg.
234, Wellington Street
Ottawa, Ontario

Tel : (613) 946-3815
Fax :   (613) 954-1920
Of counsel to the applicant