Afghanistan Public Interest Hearing (APIH)

On March 12, 2008, the Chair of the Military Police Complaints Commission (MPCC) directed that the investigation into the complaints lodged by Amnesty International Canada and the British Columbia Civil Liberties Association (AIC-BCCLA) move to a public hearing process. This was largely due to the delays and difficulties in obtaining relevant documents and information from government authorities.

On February 26, 2007, the MPCC had announced the launching of a public interest investigation into a complaint regarding the transfer of detainees by Military Police in Afghanistan. This decision related to a joint AIC-BCCLA complaint letter received on February 21, 2007. In the complaint, it was alleged that the Canadian Forces Provost Marshal and unnamed members of the CF Military Police, on at least 18 occasions transferred detainees to Afghan authorities notwithstanding alleged evidence that there was likelihood they would be tortured.

On June 12, 2008, the complainants filed new, related complaints with the Commission. These new complaints effectively extended the timeframe covered by the original February 2007 “transfer complaint” to June 12, 2008, and added a new complaint that certain Military Police wrongly failed to investigate Canadian Forces commanders for allegedly ordering the transfer of Afghan detainees to a known risk of torture at the hands of Afghan security forces, most notably the Afghan National Directorate of Security. This new complaint became known as the “failure to investigate” complaint.

The Commission’s March 2008 decision to call public hearings triggered a legal challenge by the Government of Canada to the Commission’s jurisdiction over the complaints. On September 16, 2009, the Federal Court of Canada ruled that the Commission did not have jurisdiction to investigate the “transfer complaints”, but did have jurisdiction to investigate the “failure to investigate complaint”. However, the Court stipulated that in its proceedings on the remaining “failure to investigate complaint” the Commission could only investigate what Military Police personnel “knew or had the means of knowing”. On this legal basis, the Commission proceeded.

The Commission held preliminary hearings in May 2009 on background factual matters related to the scope and content of the complainants’ allegations and on the role and structure of the Canadian Forces Military Police and the Canadian mission in Afghanistan.

In December 2009, the Commission issued directions under the Afghanistan Public Interest Hearings Rules that were intended to address document production issues and allow substantive hearings to begin in March 2010.

The Commission was in fact able to commence substantive hearings in March 2010. After dealing with several preliminary motions from various subjects of the complaint, and adjourning to allow decisions on these motions to be rendered, the Commission began taking oral evidence at the hearing in April 2010. In the end, the Commission heard testimony from 40 witnesses. The evidentiary phase of the Hearings ended in December 2010, with closing submissions being heard in February 2011.

Meanwhile, in May, July and December of 2010, seven of the eight subjects of the complaint and the Attorney General of Canada launched three applications for judicial review of certain decisions by the Commission made in the course of the hearings. The three applications were heard together by the Federal Court in March 2011, and The Honourable Mr. Justice de Montigny rendered his decision on September 29, 2011 (2011 FC 1099) dismissing all three applications.

On December 22, 2011, the Military Police Complaints Commission issued its Interim Report, dated December 21, 2011, pursuant to section 250.48 of the National Defence Act, setting out its findings and recommendations with respect to the complaint to the Minister of National Defence, the Chief of Defence Staff, the Judge Advocate General and the Canadian Forces Provost Marshal.

Most of the Commission’s recommendations were accepted by the National Defense leadership in their April 3, 2012 Notice of Action in response to the Commission’s Interim Report.

On June 27, 2012, the Commission issued its Final Report with respect to this complaint.

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