OTTAWA - A federal lawyer characterized a legal challenge to the government's prisoner transfer policy in Afghanistan as "a political submission'' that should be thrown out of court.
Government counsel J. Sanderson Graham told the Federal Court of Canada on Wednesday there's no evidence to support the case mounted by human rights groups.
If successful, the motion to strike the application for review would derail the case before the parties get to the heart of the matter.
Amnesty International Canada and the British Columbia Civil Liberties Association contend a December 2005 transfer arrangement between Canada and Afghanistan lacks adequate safeguards to prevent torture of prisoners.
Allegations have persisted since April that some prisoners taken by the Canadian military were mistreated after being handed over to the Afghan government.
The government confirmed in May there had been accusations of abuse in six individual cases, and that Canada was looking into the complaints.
Ottawa has renegotiated the 2005 agreement with Kabul to allow Canadian officials to check up on the detainees following their transfer.
Graham said the rights groups have not produced specific evidence showing anyone has actually been abused. They cannot rely upon assumptions for which there is no proof, he said.
In a response filed with the court, Amnesty International and the Civil Liberties Association say such specifics are unnecessary. They note that in deportation and extradition cases the Federal Court has simply demanded evidence that there is a serious risk of torture in the destination country.
"The standard of proof in such matters cannot and must not be too onerous.''
The human rights groups say reports of widespread of abuse in Afghanistan mean that handing detainees over to local authorities exposes them to substantial risk of torture, a violation of the Canadian Charter of Rights.
The government argues the Charter does not apply in this case because Canada is not an occupying power and does not exercise military or civilian control in any part of Afghanistan.
"There's no evidence that Afghanistan consents to the application of the Charter within its borders, and therefore there is no Canadian authority to enforce it in Afghanistan,'' Graham told the court.
In its response, Amnesty International and the Civil Liberties Association call the federal position "an erroneous and even frightening view of the law.
"The exercise of military force, including of detention, is perhaps the most fundamental projection of state power.''
Graham said a detainee who wished to complain about alleged abuses could do so by taking legal action in Canada.
Justice Anne Mactavish asked whether it is realistic to think an Afghan detainee would be able to pursue such an avenue. "You're presuming they know about the Charter.''
Paul Champ, a lawyer for the human rights groups, said during a break in the proceedings the notion that Afghan prisoners could institute proceedings in a Canadian court was "simply unbelievable.''
The government is "desperate that this matter not be heard on its merits,'' Champ said.
Proceedings on the motion were expected to continue through Thursday.
