OTTAWA — Ottawa was so embarrassed by the "catch-and-release conundrum" involving Somali pirates last year that it ordered the navy not to take any prisoners unless they had an iron-clad case that would stand up in court, say federal documents.
The policy change happened in the spring of last year and meant sailors would stand aside unless they actually saw the "commission of an act of piracy, or armed robbery generally defined as illegal use of violence" on the high seas.
At the time, the frigate HMCS Winnipeg was patrolling the northwest Indian Ocean as part of a NATO anti-piracy operation.
"Only in situations where HMCS Winnipeg apprehends persons during its current anti-piracy operations and where it believes that sufficient evidence exists that could lead to a prosecutable case" would prisoners be taken, said a May 29, 2009 letter asking Defence Minister Peter MacKay to approve the new policy.
"In cases where HMCS Winnipeg has reasonable grounds to suspect that persons encountered at sea are involved in piracy but where no evidence exists to prove an act of piracy was committed, the expectation is that no detainees would be taken."
The documents were obtained by The Canadian Press under the access to information law.
The warship made headlines by foiling an attack on a Norwegian oil tanker in the Gulf of Aden and hunting down the pirates in a dramatic night-time operation on April 18, 2009. But since Ottawa believed it didn't have the jurisdiction to prosecute under international law, the suspects were released.
The waters off east Africa were teeming that spring. The Somali coastal region was the scene of a series of brazen assaults and kidnappings by pirates intent on extorting millions of dollars in ransom.
Canada's allies took an increasingly hard line. French and American commandos shot suspected pirates, while Washington even attempted to try one of them for the capture of the cargo ship Maersk Alabama.
Legal experts looked at Ottawa's "catch-and-release" policy with dismay and pointed to a UN Security Council resolution which called on "all states" with an interest in the area to investigate and prosecute pirates off the coast of Somalia.
An extraordinary meeting involving staff from the prime minister's office, aides to MacKay and Foreign Affairs Minister Lawrence Cannon, as well as officials from four departments was convened on May 5, 2009, the documents say.
The question of whether the new rules would hamstring the crew of the frigate was considered.
"It would not be advisable to constrain the ability of HMCS Winnipeg to successfully accomplish her NATO mission to 'deter and disrupt' pirates," said a May 6, 2009 briefing note to MacKay. "Therefore HMCS Winnipeg will continue approaching and stopping vessels suspected of piracy."
It was decided to negotiate a transfer agreement with Kenya under which that country would agree to prosecute piracy suspects.
Over a year later, the deal has not been concluded, but the officer in charge of Canada's overseas command said recently he expected an arrangement will be struck by the end of this year.
"We still haven't solved the issue in detail," Lt.-Gen. Marc Lessard said in an interview. "I believe we'll have clarity in a positive way by December.
At the moment, Canada doesn't have a ship taking part on counter-piracy operations and no new mission is planned, Lessard said.
If there is a renewed contribution to the standing naval force next year, Lessard said he believes the issue of where to try pirates will still be solved in plenty of time.
