OTTAWA -- A judge has refused to temporarily stop Canadian soldiers from transferring enemy prisoners into Afghan custody.

But Federal Court Justice Anne Mactavish said the matter can be reviewed if troops resume the transfers, which the military stopped in November after finding evidence of torture in Afghan jails.

Amnesty International Canada and the B.C. Civil Liberties Association had sought the temporary injunction pending the outcome of their case for a broader ban.

In a 36-page ruling released Thursday, Mactavish acknowledged that there are "real and very serious concerns'' over the effectiveness Canadian efforts to ensure prisoner safety.
But those concerns have been rendered moot, at least for now, she suggested.

"It is not clear at this point when, and indeed, if, detainee transfers will ever resume,'' Mactavish wrote

"Furthermore, in the event that transfers do resume . . . we do not know what additional safeguards may be put into place to protect detainees while they are in the hands of the Afghan authorities.''

In order to issue the temporary ban, Mactavish said the human-rights groups "had to demonstrate on the basis of clear and non-speculative evidence that irreparable harm will likely result unless the injunction is granted.''

"Given the current uncertainty surrounding the future resumption of transfers, and the lack of clarity with respect to the conditions under which those transfers may take place, the applicants have not satisfied this aspect of the . . . test.''

Their motion was dismissed, though Mactavish allowed the groups the right to renew their request if and when the transfers resume and new evidence arises.

The judge refused to grant costs in the case and declined to allow evidence presented during her hearings to be carried over into the groups' case for a full judicial review of the matter.

The groups set out to block transfers of prisoners to Afghan control until there's proof they aren't at risk of torture.

But a Canadian military commander on the ground made the decision to stop transfers Nov. 6 after officials found credible evidence at least one prisoner had been beaten unconscious with an electrical cable and a hose while in Afghan custody.

The governor of Kandahar, Asadullah Khalid, has denied allegations by Canadian diplomats in Afghanistan that he was personally involved in torturing at least one prisoner in Kandahar.

Mactavish's decision essentially went along with the argument put forward by government lawyers that the case was rendered moot by the military decision to halt transfers.

They had conceded the handovers could resume at any time, but argued the human-rights groups could always bring forward a new motion if they learned transfers had resumed.
Lawyers for the human-rights groups said it would be difficult to find out if Canada resumes transfers since the decision would occur in secret.

At the "bare minimum,'' they said, the government should have to give the court notice when it intends to resume transfers.