Canadian judge refuses to derail Afghan detainee inquiry

OTTAWA — A public inquiry into Canada's handling of detainees in Afghanistan will go ahead after the Federal Court on Tuesday refused the Harper government's request to stay the probe.

The Military Police Complaints Commission is scheduled to begin hearings May 25 into allegations that Canadian soldiers transferred Afghan captives to local authorities knowing they faced a risk of torture.

Justice Anne Mactavish concluded that the government has not made a clear case for why the inquiry should be put on hold, pending the outcome of a federal court challenge to the commission's power to hold hearings at all.

"I find that the attorney general of Canada has not demonstrated with clear and convincing evidence that irreparable harm will result if the stay is not granted," she wrote.

The Conservative government, which went to court three months ago to delay the $4-million inquiry, failed to convince Mactavish that allowing it to proceed could unfairly damage the reputations of Canadian Forces members, inadvertently divulge military secrets, and turn out to be a waste of money during tight economic times.

Mactavish said, among other things, she is satisfied that the commission "is alive to the necessity of maintaining the confidentiality of potentially injurious information" and that special rules of procedure have been developed to prevent secrets that threaten national security from being blurted out.

The government argues that the inquiry is outside the commission's mandate to investigate complaints against the military police in performing "policing duties or functions."

Critics have accused the Conservative government of trying to derail the probe from the outset. Late last year, commission chairman Peter Tinsley also chided the government for ignoring requests by commission lawyers for documents and evidence.

The inquiry was called following complaints from Amnesty International Canada and the British Columbia Civil Liberties Association that military police failed to live up to their international obligations by transferring captured insurgents to Afghan authorities with a reputation for abusing their detainees.

The inquiry, which had been scheduled to begin public hearings in February, was adjourned earlier this year after the government went to court seeking the stay.

Defence Minister Peter MacKay, when questioned this week in the House of Commons, denied that the government has been withholding information.

"The only thing that we take issue with is the jurisdiction, the efforts of this body to reach into an area of jurisdiction that we feel is not correct," MacKay said. "That is the only issue. It has nothing to do with disclosure."

The commission was created in 1998 as an oversight body after the Somalia scandal, in which some Canadian Forces paratroopers tortured and killed a Somali teen.