Government lawyers acknowledge the handover of enemy prisoners to Afghan authorities could resume "at any time,'' but argue a court case aimed at halting transfers is moot because Canada isn't doing it now.
The lawyers make the argument in Federal Court documents filed this week in response to a challenge from Amnesty International and the B.C. Civil Liberties Association.
The groups want the court to ban transfers until prisoners are considered safe from torture at the hands of Afghan authorities.
But federal lawyer J. Sanderson Graham argues the motion is no longer relevant.
"There is at present no live controversy that affects the rights of the parties,'' he said in the submission.
"On the facts before this court, there is currently no possibility that any individual detainee may be transferred to the custody of Afghanistan when the CF (Canadian Forces) has substantial grounds to believe that there is a real risk of torture.''
Canada halted transfers Nov. 6, a day after officials witnessed credible evidence that a prisoner had been beaten unconscious using an electrical cable and a hose while in custody.
The decision was made by the commander on the ground, Brig.-Gen. Andre Deschamps told Justice Anne Mactavish last week.
Graham acknowledges in the submission that transfers may resume "at any time.'' But he says human-rights groups could always bring a new motion for temporary injunction if transfers resume.
"Until then, the question is hypothetical and speculative and cannot be decided,'' he says.
But the onus should be on the government to tell the court if Canada resumes handing over prisoners to Afghan authorities, said Amnesty lawyer Paul Champ.
Otherwise, he said, it would be difficult to find out whether prisoner transfers had started again since a "culture of secrecy'' has permeated government.
"The fundamental problem is, we have no idea when they're going to do it. They're going to do it in secret,'' Champ said.
"They refuse to tell us when they're going to do it. So that's, in my view, a fundamental flaw to their argument.''
Mactavish likewise raised concerns last week that she could render a decision while unaware transfers had resumed.
Brian Evernden, another federal lawyer, said he'd been "instructed'' to tell her that government attorneys would notify the court if they learned of a "material change in circumstance'' -- a "big if,'' Mactavish said.
The "if'' referred to hypothetical situations in general, Evernden said in an interview, and not to doubts about whether the government would tell its lawyers if transfers resumed.
The court document "speaks for itself,'' he said, declining further comment.
The submission says the decision to hand over prisoners rests squarely with the commander in the field. The military's policy is to transfer prisoners only if a "substantial risk test'' is met, it says.
A spokeswoman for Prime Minister Stephen Harper angered the military last week when she said the government was kept in the dark about the decision to halt transfers. She later claimed she "misspoke.''
It was just revealed Wednesday that Defence Minister Peter MacKay -- during a visit to Afghanistan on Nov. 6 -- expressed concern about the alleged treatment of the prisoner within hours of officials discovering evidence of abuse.
NDP Leader Jack Layton said the government's position is "totally confusing and contradictory.''
"We're seeing contradictory statements in the courts, we're seeing contradictions between the prime minister and his own ministers on this issue,'' he said Thursday.
Meanwhile, the government lawyers say the court must decide whether the Charter of Rights and Freedoms follows the flag and applies to Afghan PoWs.
The human-rights groups want to extend the Charter of Rights to Afghan war prisoners, but the government attorneys say it only applies within Canada.
