OTTAWA - A new chapter in the legal drama involving the suspected abuse of Afghan detainees has been playing out away from the public eye under strict, court-imposed secrecy, The Canadian Press has learned.
Amnesty International and the B.C. Civil Liberties Association applied on July 11 for an order to force the federal government to release as many as 140 pages of documents related to the handling of suspected Taliban prisoners.
A little known provision of the recently revised Canada Evidence Act, which the Crown invoked to block the release of the records, also gave federal lawyers the power to keep news of the court challenge a secret.
That restriction was lifted last week following a teleconference involving lawyers for Amnesty, the Crown and the chief justice of the Federal Court.
"The Attorney General of Canada has authorized the disclosure of the fact that an application" to challenge the refusal to release records has been made, said a July 30 Justice Department letter.
The letter was signed by attorney Linda Wall of the department's Civil Litigation Section.
National Defence, the Foreign Affairs Department and the federal Justice Department claim the documents being sought are protected under national security and releasing them to human rights lawyers could have grave consequences.
Laws allowing the state to keep documents secret are not new, said Amnesty lawyer Paul Champ.
"Unfortunately, the Canada Evidence Act has some very peculiar provisions that were enacted after 9/11 that prohibited us from even telling anyone that we were challenging them," he said in an interview.
"They are very strange provisions that don't allow anyone to disclose the existence of a (court) application. The court registry is not allowed to disclose it. The registry has to keep our files segregated from the other court files and not tell anyone about them."
Holding hearings in secret is an affront to the justice system and to anyone who believes in the rule of law, said Champ.
"I think it would offend any Canadian, this whole idea that they can't even know about the existence of a court action."
The civil liberties association has embarked on a separate Charter challenge, hoping to get the provision that allows secret court actions struck down.
A Justice Department spokesman defended the secrecy provision, describing it as a national security safeguard that the minister is capable of overriding.
"It was written in the legislation as a precautionary measure to prevent the disclosure of injurious material," said Chris Girouard.
"This section is used as a matter of course, but written consent to open proceedings to public scrutiny is usually given by the Attorney General."
The two human rights groups petitioned the Federal Court earlier this year for an injunction to halt the Canadian army from handing over captured insurgents to Afghan authorities, who are suspected of torturing prisoners.
Champ had asked for documents from National Defence and Foreign Affairs after officials from both departments testified in the first round of court action.
"It's unfair for the government to say there's no risk of torture without them being required to produce the documents they have," he said.
"We think they do have documents that do demonstrate they know there's a risk of torture or that in fact torture is going on in Afghan custody. And they're hiding behind the Evidence Act to refuse to disclose those documents."
Allegations of abuse surfaced in the media last April and at the time the Conservative government insisted it was not aware of any suspected cases of prisoner mistreatment.
It renegotiated its prisoner transfer agreement with the Afghan government, giving Canadian authorities greater access to detainees captured by Canadians.
Foreign Affairs Minister Peter MacKay conceded in late May that six cases of suspect mistreatment have been reported to Canadians and investigations are underway.
