Practice Relating to Rule 125. Correspondence of Persons Deprived of Their Liberty
Canada’s LOAC Manual (1999) provides: “POWs [prisoners of war] shall be allowed to send and receive letters and cards and, in exceptional circumstances, telegrams as well.”
With regard to non-international armed conflicts, the manual states: “Detained persons shall be allowed to send and receive letters and cards.”
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “PWs shall be allowed to send and receive letters and cards and, in exceptional circumstances, telegrams as well.”
In its chapter on rights and duties of occupying powers, the manual provides:
1223. Control of persons in occupied territory
2. Permissible measures of population control include:
c. under certain exceptional circumstances, persons may be held without any right to communicate for a limited period.
In its chapter on non-international armed conflicts, the manual states: “Detained persons shall be allowed to send and receive letters and cards, subject to such numerical restrictions as may be imposed by the detaining authority”.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
1. PW [prisoners of war] are allowed to send and receive letters and to receive parcels. All mail must be conveyed as quickly as possible and in order to achieve this, some regulation of the mail system is necessary. The details of this are set out in the following paragraphs.
2. Capture Cards. Immediately on capture or within one week of arriving at a camp, each PW is to be allowed to write one card to his family and one card to the Central Tracing Agency of the ICRC or to the Protecting Power telling them of his capture, address and state of health.
3. Camp Postal Officer. The Camp Commander is to appoint an Officer or Warrant Officer of the Regular Forces as the Camp Postal Officer. His duties will be as follows:
c. To ensure that no letter is delivered to a PW unless it has been subjected to the PW censorship process.
d. Scrutinising all outgoing mail to ensure that the instructions concerning outgoing mail have been complied with.
4. Incoming Mail. There are no limitations on the amount of correspondence which a PW may receive. PW will be allowed to receive all letters and cards, which are addressed to them, unless they have been withheld due to censorship and security concerns. Mail must not be delayed or detained as a punishment, neither must mail be delayed under the pretext of censorship difficulties. Incoming mail is likely to be subjected to a censorship process both in the PW’s own country and by the Detaining Power. If the censor judges the content of an incoming letter to be objectionable on security grounds he may retain the letter. In this case, the PW will be informed of the letter’s retention and the letter will be retained by the censoring authorities as required under Canadian law should inquiries about the whereabouts of the letter be made by the ICRC or the Protecting Power.
5. Outgoing Mail.
There are no postal charges on PW mail which may only be written on stationery specially designated by the JTF [Joint Task Force] Postal Services. The normal allowance of outgoing mail is two letter forms and four post cards per month although an application for an increase in this quota may be made to the Camp Commander. Outgoing mail, with certain exceptions … will be subject to censorship by Canadian authorities and possibly by the authorities in the country to which the mail is addressed. Retained Personnel are to have the same postal quota as PW.
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces' agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
 Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
 The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
 Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
 Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
 … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with
international law and subject to negotiated assurances regarding their treatment and transfer.” …
 The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
 In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
 Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
 … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
 As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
 Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
 That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
 Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.