Related Rule
Canada
Practice Relating to Rule 100. Fair Trial Guarantees
Canada’s LOAC Manual (1999) provides:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognised principles of regular judicial procedure. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-8, § 65.
The manual also provides: “Sentences may be pronounced only after a regular trial.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 54.
The manual further specifies that it is a grave breach of the 1949 Geneva Convention III to “deprive a PW [prisoner of war] of the right to a fair and regular trial” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 13.
and that it is a grave breach to “wilfully deprive a protected person of the rights of a fair and regular trial prescribed by [the 1949 Geneva Convention IV]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 14.
According to the manual, “denial of a fair and regular trial to any person protected by the Geneva Conventions or [Additional Protocol I]” is a grave breach of the 1977 Additional Protocol I. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 17.
The manual further states that the “Geneva Conventions provide that all persons accused of grave breaches enjoy the safeguards of a proper trial and defence in accordance with international standards”. With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-2, § 10(a)(iv) and p. 17-4, § 28.
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status” that civilians who take a direct part in hostilities may be “punished as unlawful combatants but only following a fair trial affording all judicial guarantees”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 318.2.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Additional Protocol I”, the manual states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.4.
In its chapter on rights and duties of occupying powers, the manual states: “Sentences may be pronounced only after a regular trial.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.1.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “It is also a grave breach … to deprive a PW [prisoner of war] of the right to a fair and regular trial as prescribed in [the 1949 Geneva Convention III]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.5.
The manual further states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: … d. to wilfully deprive a protected person of the rights of a fair and regular trial prescribed by the Geneva Convention for Civilians [the 1949 Geneva Convention IV]”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.6.d.
The manual adds that “denial of a fair and regular trial to any person protected by the Geneva Conventions or [the 1977 Additional Protocol I]” is a grave breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.3.e.
In the same chapter, the manual further states:
1618. Pretrial considerations
2. If an alleged war criminal is a PW, that person is entitled to be treated, until conviction, in the same way as any other PW. The PW must be tried by the same tribunal and in accordance with the same rules and procedures as members of the armed forces of the state having custody of the PW.
3. The Geneva Conventions provide that all persons accused of grave breaches enjoy the safeguards of a proper trial and defence in accordance with international standards.
1620. Trials of foreign civilians for war crimes
1. Where civilians accused of war crimes are held for trial by a power of which they are not nationals, they are entitled to the safeguards of a proper trial and defence, which shall be not less than those provided for PWs. In addition, they must always be submitted for prosecution and trial in accordance with the applicable rules of International Law. If they do not enjoy more favourable treatment under the Geneva Conventions and [the 1977 Additional Protocol I], they are to be afforded the fundamental guarantees embodied in Article 75 of the Protocol.  
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1618.2–3 and 1620.1.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
iv the passing of sentences … without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual also states: “No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.1.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Grave breaches of the [1949 Geneva Conventions] and [the 1977 Additional Protocol I] include any of the following actions[:] … Wilfully depriving PW [prisoners of war] or other protected persons of the rights of a fair trial as set out in the [1949 Geneva Conventions] and [the 1977 Additional Protocol I]. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.2.d.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions or of the 1977 Additional Protocol I] is guilty of an indictable offence.” 
Canada, Geneva Conventions Act as amended, 1985, Section 3(1).
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
In 2010, in the Khadr case, the Supreme Court of Canada was called upon to decide whether the Canadian Government must request the United States of America to return a Canadian national detained at Guantanamo Bay to Canada. The Supreme Court stated:
[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
II. Background
[3] Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
[4] On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
[5] In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505, at para. 46. In 2008, this Court ordered the Canadian government to disclose to Mr. Khadr the transcripts of the interviews he had given to CSIS and DFAIT in Guantanamo Bay, under s. 7 of the Charter: Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 (“Khadr 2008”).
[6] Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada …
[7] The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008 …
[8] On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation … He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
[22] We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23–25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews … Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11–12). The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[48] … This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003–2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. 
Canada, Supreme Court, Khadr case, Judgment, 29 January 2010, §§ 2–8, 22, 24–25 and 48.
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
84. In order to ensure that those accused through the military justice system with a service offence are afforded guarantees provided to other members of Canadian society, amendments were brought to the National Defence Act. Consequently, the prosecutorial and defence services of the Canadian Forces have undergone extensive changes. Separate offices have been established under the Director of Military Prosecutions and the Director of Defence Counsel Services. The Director of Military Prosecutions is responsible for all court martial prosecutions and decides which type of court martial should be held and whether there should be one. The Director of Defence Counsel Services is responsible for the provision of legal services to accused persons subject to the Code of Service Discipline. The Director of Defence Counsel Services is appointed by the Minister for National Defence for renewable terms of up to four years and so would enjoy a certain autonomy from the Judge Advocate General as well as from prosecuting counsel.
85. An independent commission has also been established to make recommendations concerning the remuneration of military judges, in order to ensure the financial independence aspect of judicial independence. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, §§ 84–85.
Canada’s LOAC Manual (1999) provides for the necessity that “the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 56.
The manual also contains the requirement of “an impartial and regularly constituted tribunal” for internees in occupied territories. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-8, § 65.
With respect to non-international armed conflicts, the manual states:
No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 28.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
2. PWs are also subject to the laws, regulations and orders in force in the armed forces of the Detaining Power and may only be tried by the same courts and under the same procedures applicable to those armed forces.
4. … PWs may only be tried by a civil court if the Detaining Power’s forces may also be so tried for the offence involved, and provided the tribunal offers the essential guarantees of independence and impartiality generally recognized as compatible with the rule of law. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1039.2 and 4.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Additional Protocol I”, the manual states:
No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.4.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
iv the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual also states: “No sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.1.
In 2003, in Ell v. Alberta, the Supreme Court of Canada noted with regard to the meaning of judicial independence:
18 Judicial independence has been recognized as “the lifeblood of constitutionalism in democratic societies”: see Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 70, per Dickson C.J. It requires objective conditions that ensure the judiciary’s freedom to act without interference from any other entity. The principle finds explicit constitutional reference in ss. 96 to 100 of the Constitution Act, 1867 and s. 11(d) of the Canadian Charter of Rights and Freedoms. The application of these provisions is limited: the former to judges of superior courts, and the latter to courts and tribunals that determine the guilt of those charged with criminal offences: see Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”), at para. 84, per Lamer C.J. The respondents do not fall into either of these categories. Nonetheless, as this Court has recognized, the principle of judicial independence extends beyond the limited scope of the above provisions.
19 Judicial independence has been a cornerstone of the United Kingdom’s constitutional structure back to the Act of Settlement of 1700, 12 & 13 Will. 3, c. 2. See the comments of Lord Lane, cited in Beauregard, supra, at p. 71:
Few constitutional precepts are more generally accepted there in England, the land which boasts no written constitution, than the necessity for the judiciary to be secure from undue influence and autonomous within its own field (“Judicial Independence and the Increasing Executive Role in Judicial Administration”, in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 525).
The preamble to the Constitution Act, 1867 provides for Canada to have “a Constitution similar in Principle to that of the United Kingdom”. These words, by their adoption of the basic principles of the United Kingdom’s Constitution, serve as textual affirmation of an unwritten principle of judicial independence in Canada. Lamer C.J. concluded as follows in Provincial Court Judges Reference, supra, at para. 109:
… it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.
The preamble acknowledges judicial independence to be one of the pillars upon which our constitutional democracy rests.
20 Historically, the principle of judicial independence was confined to the superior courts. As a result of the expansion of judicial duties beyond that realm, it is now accepted that all courts fall within the principle’s embrace. See Provincial Court Judges Reference, supra, at para. 106:
… our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country.
The scope of the unwritten principle of independence must be interpreted in accordance with its underlying purposes. In this appeal, its extension to the office held by the respondents depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded.
21 The historical rationale for independence was to ensure that judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference: see Beauregard, supra, at p. 69. The integrity of judicial decision making depends on an adjudicative process that is untainted by outside pressures. This gives rise to the individual dimension of judicial independence, that is, the need to ensure that a particular judge is free to decide upon a case without influence from others.
22 In modern times, it has been recognized that the basis for judicial independence extends far beyond the need for impartiality in individual cases. The judiciary occupies an indispensable role in upholding the integrity of our constitutional structure: see Provincial Court Judges Reference, supra, at para. 108. In Canada, like other federal states, courts adjudicate on disputes between the federal and provincial governments, and serve to safeguard the constitutional distribution of powers. Courts also ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals. Dickson C.J. described this role in Beauregard, supra, at p. 70:
[Courts act as] protector of the Constitution and the fundamental values embodied in it — rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.
This constitutional mandate gives rise to the principle’s institutional dimension: the need to maintain the independence of a court or tribunal as a whole from the executive and legislative branches of government.
23 Accordingly, the judiciary’s role as arbiter of disputes and guardian of the Constitution require that it be independent from all other bodies. A separate, but related, basis for independence is the need to uphold public confidence in the administration of justice. Confidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry. Without the perception of independence, the judiciary is unable to “claim any legitimacy or command the respect and acceptance that are essential to it”: see Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at para. 38, per Gonthier J. The principle requires the judiciary to be independent both in fact and perception.
B. The Essential Conditions of Independence
28 As stated, judicial independence encompasses both an individual and institutional dimension. The former relates to the independence of a particular judge, and the latter to the independence of the court to which the judge is a member. Each of these dimensions depends on objective conditions or guarantees that ensure the judiciary’s freedom from influence or any interference by others: see Valente, supra, at p. 685. The requisite guarantees are security of tenure, financial security and administrative independence: see Provincial Court Judges Reference, supra, at para. 115.
32 The ultimate question in each case is whether a reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent: Valente, supra, at p. 689. The perception of independence will be upheld if the essence of each condition of independence is met … 
Canada, Supreme Court, Ell v. Alberta, Judgment, 26 June 2003, §§ 18–23, 28 and 32.
[emphasis in original]
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
80 Judicial independence is the “lifeblood of constitutionalism in democratic societies”: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 70. The importance of judicial independence to the promotion and preservation of the rule of law cannot be overstated. In this respect, as the late Professor Lederman noted, judicial independence is one of the original principles of the English Constitution: W. R. Lederman, “The Independence of the Judiciary”, in A. M. Linden, ed., The Canadian Judiciary (1976), 1, at p. 2. An independent judiciary is absolutely necessary to “ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals”: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at para. 22, per Major J.
81 This principle exists in Canadian law in a number of forms. In the Constitution, it is explicitly referenced in ss. 96 to 100 of the Constitution Act, 1867 and in s. 11(d) of the Charter. The application of these provisions, however, is limited. The former applies to judges of superior courts, and the latter to courts and tribunals charged with trying the guilt of persons charged with criminal offences: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 84; Ell, supra, at para. 18. Judicial independence has also been implicitly recognized as a residual right protected under s. 7, as it, along with the remaining protections in ss. 8 to 14, are specific examples of broader principles of fundamental justice: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Moreover, the commitment to the “foundational principle” of judicial independence has also been referenced by way of the Preamble to the Constitution Act, 1867: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 109; see also Ell, at para. 19. Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.
82 The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government: Beauregard , supra, at pp. 72-73. The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13. The relationship between judicial independence and impartiality was considered by the Court in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139:
The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
83 In this respect, we must ultimately consider whether a reasonable and informed person would conclude that the court under s. 83.28 is independent: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689; Ell, supra, at para. 32. 
Canada, Supreme Court, Application under s. 83.28 of the Criminal Code (Re), Judgment, 23 June 2004, §§ 80–83.
In 2005, in the Judges Associations case, the Supreme Court of Canada noted:
2 The concept of judicial independence has evolved over time. Indeed, “[c]onceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence . … Opinions differ on what is necessary or desirable, or feasible”: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 692, per Le Dain J.
II. General Principles
A. The Principle of Judicial Independence
4 The basis for the principle of judicial independence can be found in both our common law and the Canadian Constitution; see Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 70-73; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at paras. 18–23. Judicial independence has been called “the lifeblood of constitutionalism in democratic societies” (Beauregard, at p. 70), and has been said to exist “for the benefit of the judged, not the judges” (Ell, at para. 29). Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p. 70.
5 There are two dimensions to judicial independence, one individual and the other institutional. The individual dimension relates to the independence of a particular judge. The institutional dimension relates to the independence of the court the judge sits on. Both dimensions depend upon objective standards that protect the judiciary’s role: Valente, at p. 687; Beauregard, at p. 70; Ell, at para. 28.
6 The judiciary must both be and be seen to be independent. Public confidence depends on both these requirements being met: Valente, at p. 689. “Judicial independence serves not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice”: Ell, at para. 29.
7 The components of judicial independence are: security of tenure, administrative independence and financial security; see Valente, at pp. 694, 704 and 708; the Reference, at para. 115; Ell, at para. 28. 
Canada, Supreme Court, Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), Judgment, 22 July 2005, §§ 2 and 4–7.
[emphasis in original]
In the Lia case before a Canadian Federal Court in 2007, the applicants challenged a Pre-Removal Risk Assessment (PRRA) decision which held, inter alia, that diplomatic assurance against the risk of torture was sufficient to allow for their deportation. In its analysis relating to reasonable apprehension of bias, the Federal Court stated: “There is no doubt that the independence of the judiciary and the impartiality of its members are the cornerstones of our judicial system and essential characteristics of a state governed by the rule of law.” 
Canada, Federal Court, Lia case, Reasons for Order and Order, 5 April 2007, § 63.
Canada’s LOAC Manual (1999) provides that in non-international armed conflicts, “accused persons shall be presumed innocent until proved guilty according to law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(d).
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … d. shall be presumed innocent until proved guilty according to law”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.d.
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held: “In Canada, the accused has the constitutional right to the presumption of innocence. Therefore, it is up to the Crown to demonstrate the accused’s guilt beyond a reasonable doubt.” 
Canada, Superior Court, Criminal Division, Province of Québec, Munyaneza case, Judgment, 22 May 2009, § 50.
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
The Law: The fundamental principles of Canadian criminal law
63. The accused is presumed to be innocent and it is for the prosecution to prove his guilt beyond reasonable doubt.
64. The presumption of innocence applies throughout the trial. It shall cease to apply only at the end of the trial, if after taking into account the totality of evidence the Crown has convinced the court beyond reasonable doubt that the accused is guilty of the crime of which he is accused. The accused is not required to prove anything in the present case.
65. The presumption of innocence applies to issues of credibility. It is not only about choosing the version of the story which appears more likely to have happened. If following the analysis of the totality of evidence, the trier of facts is not convinced beyond any reasonable doubt of the guilt of the accused, the accused must be acquitted.
66. In the case at stake, the central question is to know whether the accused actively and with the required criminal intention took part in the deadly attacks against the Tutsi which took place in the area of Kibuye from April to July 1994. Mr. Mungwarere has testified and denied any implication in these attacks. If his testimony is believed, he must be acquitted. The presumption of innocence applies. Consequently, even if Mr. Mungwarere is not believed, if his testimony raises a reasonable doubt on his participation, he must be acquitted. Likewise, if the testimony of Mr. Mungwarere is rejected, he cannot be declared guilty unless if, in light of the totality of the other evidence, the court is convinced beyond reasonable doubt of his guilt. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 63–66.
Canada’s LOAC Manual (1999) provides: “Accused persons must be promptly informed, in writing, and in a language which they understand, of the charges brought against them.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 54.
With respect to non-international armed conflicts, the manual states: “Accused persons shall be informed of the particulars of the offence charged.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-4, § 29(a).
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “Accused persons must be promptly informed, in writing, and in a language, which they understand, of the charges brought against them.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.1.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: a. shall be informed of the particulars of the offence charged”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.a.
Canada’s LOAC Manual (1999) states that prisoners of war and accused persons in occupied territory must be allowed to present their defence. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 76.
The manual further states that accused persons in occupied territory must “have the right to be assisted by a qualified advocate or counsel of their own choice”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 57.
The manual adds that the advocate or counsel of the accused “must be able to visit them freely and to be provided with the necessary facilities for preparing the defence”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 57.
With respect to non-international armed conflicts, the manual provides: “Accused persons shall be afforded all the necessary rights and means of defence.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(a).
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
No PW may be tried or punished for any offence, which was not, at the time of its commission, forbidden by International Law or the law of the Detaining Power … The PW must be allowed to present his or her defence. If tried by judicial proceedings, the PW must be represented by qualified counsel or advocate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1040.2.
In its chapter on rights and duties of occupying powers, the manual states:
3. Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses. They have the right to be assisted by a qualified advocate or counsel of their own choice, who must be able to visit them freely and to be provided with the necessary facilities for preparing the defence. Failing a choice by the accused, the Protecting Power may provide the accused with an advocate or counsel.
4. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the occupying authorities must, subject to the consent of the accused, provide an advocate or counsel. Unless they voluntarily waive such assistance, accused persons must be aided by an interpreter, both during preliminary investigation and during the hearing in court. They have the right at any time to object to the interpreter and to ask for a replacement. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.3–4.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: a. shall … be afforded all the necessary rights and means of defence”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.a.
In the Khadr case before the Canadian Federal Court of Appeal in 2007, the appellant, a Canadian citizen detained at Guantanamo Bay, challenged a decision by the Canadian Federal Court. The Federal Court of Appeal summarized the facts of the case as follows:
[4] The appellant, a Canadian citizen, was apprehended by the American military in July 2002. He is presently detained in U.S. Naval Station, Guantánamo Bay, Cuba.
[5] In November 2005, the appellant was charged with: conspiracy to commit offences triable by Military Commission; murder by an unprivileged belligerent; attempted murder by an unprivileged belligerent; and aiding the enemy. As of February 2, 2007, the charges against him read: murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy; providing material support for terrorism; and spying.
[6] The charges relate to events which are alleged to have occurred in Afghanistan and elsewhere when the appellant was 15 years of age and younger. They carry a maximum penalty of life imprisonment. The prosecution is not seeking the imposition of the death penalty.
[7] The appellant currently awaits prosecution by a Military Commission established by order of the Secretary of Defence of the United States. No date for trial has yet been set.
[8] Prior to the laying of charges, Canadian officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT), with the consent of U.S. authorities, attended at Guantánamo Bay and interviewed the appellant in the absence of his counsel. These visits were allegedly not welfare visits or covert consular visits but were purely information-gathering visits with a focus on intelligence/law enforcement. The topics discussed with the appellant included matters which were the subject of the charges. Canadian agents took a primary role in these interviews, were acting independently and were not under instructions of U.S. authorities. Summaries of information collected were passed on to the RCMP and to U.S. authorities. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 4–8.
In its reasons for judgment, the Federal Court of Appeal stated:
[2] The appellant, Omar Ahmed Khadr, is appealing the decision of von Finckenstein J. of the Federal Court (Khadr v. Canada (Minister of Justice), 2006 FC 509) which dismissed his application for judicial review. The appellant sought a remedy under subsection 24(1) of the [Canadian] Charter [of Rights and Freedoms] for a violation of his right under section 7 of the Charter to a full answer and defence to criminal charges. He sought an order in the nature of mandamus directing the respondents to make full and complete disclosure of all the documents, records and other materials in the possession of all departments of the Crown in Right of Canada which might be relevant to the charges laid against him by the government of the United States.
[3] The four respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service, and the Commissioner of the Royal Canadian Mounted Police (collectively referred to herein as the Crown), are officials of the government of Canada who are in possession of voluminous documentary materials which are allegedly relevant to the charges against the appellant. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 2-3.
In its judgment, the Federal Court of Appeal stated:
Duty to disclose
[24] Since the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe, it is trite law that the Crown has a continuing obligation to disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant (at pages 339–340 and 343–344). The obligation to disclose is triggered by a request by or on behalf of the accused (page 343).
[26] A failure to disclose relevant information impedes an accused’s ability to make full answer and defence and creates the risk of an innocent person being convicted and imprisoned. As one of the principles of fundamental justice, the right to make full answer and defence has been entrenched in the section 7 [of the Canadian Charter of Rights and Freedoms] protection of the right to life, liberty and security of the person (Stinchcombe at paragraph 17).
Does the [Canadian] Charter [of Rights and Freedoms] have an extraterritorial reach in the circumstances of this case?
The right to make full answer and defence is a common law right that has been incorporated in s. 7 of the Charter as one of the principles of fundamental justice:
The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non-disclosure was an important factor in the conviction and the incarceration of an innocent person. Stinchcombe, supra, at p. 336.]
[34] In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre-charge level raises, in my view, a justiciable Charter issue (Kwok, at paragraph 106; Purdy at paragraph 22 (B.C.C.A.)). They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies. There is a sufficient causal connection between the Canadian government’s participation in the foreign investigation and the potential deprivation of life, liberty and security of the person which the appellant now faces. I am satisfied that the applications Judge erred in concluding that a sufficient causal connection did not exist.
CONCLUSION
[43] I am satisfied that the Charter applies in the circumstances of this case and that section 7 of the Charter is engaged. It may be that the respondents’ refusal to disclose relevant information goes as far as violating the appellant’s constitutional right to full answer and defence. This issue can only be determined by a review of the redacted and other relevant material and a balancing of the competing interests at stake with a view to reconciling them under the Charter.
[44] …
An order is issued directing that:
(a) the respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and the Commissioner of the Royal Canadian Mounted Police, produce before the Federal Court unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against the appellant and which are therefore necessary for the purpose of allowing him to raise full answer and defence to the charge. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 24, 26, 34 and 43–44.
The judgment by the Federal Court of Appeal was appealed by the Crown. In 2008, the Supreme Court of Canada dismissed the appeal but varied the order of the Federal Court of Appeal as it relates to the scope of disclosure. The Supreme Court held:
[1] … This appeal raises the issue of the relationship between Canada’s domestic and international human rights commitments. Omar Khadr currently faces prosecution on murder and other charges before a U.S. Military Commission in Guantanamo Bay, Cuba. Mr. Khadr asks for an order under s. 7 of the Canadian Charter of Rights and Freedoms that the appellants be required to disclose to him all documents relevant to these charges in the possession of the Canadian Crown, including interviews conducted by Canadian officials with him in 2003 at Guantanamo Bay. The Minister of Justice opposes the request, arguing that the Charter does not apply outside Canada and hence did not govern the actions of Canadian officials at Guantanamo Bay.
[2] We conclude that Mr. Khadr is entitled to disclosure from the appellants of the records of the interviews and of information given to U.S. authorities as a direct consequence of conducting the interviews. The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law, do not extend to participation in processes that violate Canada’s international human rights obligations.
[3] The process in place at the time Canadian officials interviewed Mr. Khadr and passed the fruits of the interviews on to U.S. officials has been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada is party. In light of these decisions by the United States Supreme Court that the process at Guantanamo Bay did not comply with either U.S. domestic or international law, the comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies, and Canada is under a s. 7 duty of disclosure. The content of this duty is defined by the nature of Canada’s participation in the process that violated Canada’s international human rights obligations. In the present circumstances, this duty requires Canada to disclose to Mr. Khadr records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity.
[4] We thus uphold the Federal Court of Appeal’s conclusion that Mr. Khadr is entitled to a remedy under s. 7 of the Charter.
[37] In reaching its conclusions on disclosure, the Federal Court of Appeal held that the Stinchcombe disclosure regime should apply, and consequently held that the scope of disclosure extended to all materials in the Crown’s possession which might be relevant to the charges against the appellant, subject to ss. 38 ff. of the Canada Evidence Act. Our holding is not based on applying Stinchcombe directly to these facts. Rather, as described above, the s. 7 duty of disclosure to Mr. Khadr is triggered on the facts of this case by Canadian officials’ giving U.S. authorities access to interviews conducted at Guantanamo Bay with Mr. Khadr. As a result, the disclosure order we make is different in scope than the order of the Federal Court of Appeal. The appellants must disclose (i) all records in any form of the interviews conducted by Canadian officials with Mr. Khadr, and (ii) records of any information given to U.S. authorities as a direct consequence of Canada’s having interviewed him. This disclosure is subject to the balancing of national security and other considerations as required by ss. 38 ff. of the Canada Evidence Act. 
Canada, Supreme Court, Khadr case, Judgment, 23 May 2008, §§ 1–4 and 37.
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). … Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
[5] Ribic appeals his convictions. … Ribic [inter alia … contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms [(Charter)] to a fair trial [and] to make full answer and defence to the Crown’s case … had been infringed. For the reasons that follow, I would dismiss the appeal. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[108] … An accused’s rights to a fair trial and to make full answer and defence are principles of fundamental justice protected by s. 7 of the Charter. They encompass the right to defend against “all of the state’s efforts to achieve a conviction” (R. v. Rose, [1998] 3 S.C.R. 262, at para. 103) and to have .the opportunity adequately to state [one’s] case. (R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at para. 32).
[109] However, these fundamental rights are not absolute. The jurisprudence of the Supreme Court of Canada recognizes that national security considerations can justify limitations on the extent and form of disclosure of confidential information to affected individuals. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 108–109, per Cronk J.A.
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
21. The trial started on 28 May 2012. The [C]rown closed its case on 23 July 2012. I had already declared that I would have granted a five-week suspension [of the trial] before the defence’s submission of evidence. Taking into account the intrinsic difficulties of such proceeding, it was fair to grant such period in order for the defence to be ready. The attorneys and their investigators had to return again to Rwanda to coordinate the submission of evidence …
22. Twice the accused requested an extension of the suspension. I agreed to such requests. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 21–22.
Canada’s LOAC Manual (1999) provides that in an occupied territory, accused persons “must be brought to trial as rapidly as possible”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 54.
Canada’s LOAC Manual (2001), in its chapter on rights and duties of occupying powers, states that accused persons “must be brought to trial as rapidly as possible”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.1.
In the Ribic case before the Ontario Superior Court of Justice in 2004, the accused, a Canadian national, was charged with four counts of hostage-taking contrary to section 279.1 of Canada’s Criminal Code. 
Canada, Ontario Superior Court of Justice, Ribic case, Reasons for Judgment and Judgment, 16 June 2004, § 1.
In its judgment, the Court stated regarding the right of an accused to be tried within a reasonable period of time:
[15] The Charter of Rights and Freedoms provides that:
11. Any person charged with an offence has the right
(b) to be tried within a reasonable time.
[16] The purpose of the provision in hand with section 7 is to protect the accused person’s right of liberty, security of the person and the ability to make full answer and defence from violation by an unreasonable delay in bringing his criminal trial to a conclusion. The interest of society as a whole in seeing that criminal cases are tried and in bringing the accused to trial without unreasonable delays has been recognized by the Court as well: R. v. Morin, 1992 CanLII 89 (S.C.C.), [1992] 1 S.C.R. 771 (S.C.C.), at p. 786. Fair trial interests find expression in section 7 of the Charter as well and there may be some overlap between considerations relevant to both sections 7 and 11(b). As Carthy J.A. said in Regina v. Williamson 2000 CanLII 3082 (ON C.A.), (2000), 144 C.C.C. (3d) 540 (Ont. C.A.) at para [29]:
The fair trial interests of the accused is an object of both s. 7 and s. 11(b). Once trial delay is sufficient to require scrutiny fair trial concerns could not be adequately assessed if prejudice of any type related to the passage of time is excluded from consideration. All relevant factors must be brought together and form the basis of the ultimate decision as to breach and remedy. A fact relevant to s. 7 concerns may also be a fact for consideration under s. 11(b).
[17] Four principal factors have been identified for examination and analysis in determining whether in any particular case, the time it takes to get the case to trial is unreasonable and in violation of the Charter. They are:
1. Length of the delay,
2. Waiver of the delay,
3. Reasons for the delay, which include
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay, and
4. Prejudice to the accused. 
Canada, Ontario Superior Court of Justice, Ribic case, Reasons for Judgment and Judgment, 16 June 2004, §§ 15–17.
In 2008, Canada’s Court of Appeal of Ontario dismissed an appeal to overturn the convictions on two grounds of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the appellant’s arguments as follows:
Ribic inter alia … contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms [(Charter)] … to trial within a reasonable time had been infringed. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, § 5, per Cronk J.A.
The Court held:
[142] In his first s. 11(b) ruling, when attempting to balance society’s fundamental and important interest in bringing the accused to trial and those factors that led to significant delay and adverse impact on the appellant, the trial judge correctly noted that the crimes charged in this case are very serious offences, which are punishable by a maximum sentence of life imprisonment. He also expressly averted to Sopinka J.’s critical observation in Morin R. v. Morin, [1992] 1 S.C.R. 771], at p. 787 that: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”
[143] Ultimately, after weighing the competing interests in detail and referring to the applicable legal principles that guide the balancing inquiry, the trial judge concluded that the seriousness of the offences in this case and “the national and international interests in bringing this case to trial” substantially outweighed the injury to the appellant’s interests in an earlier trial.
[144] The trial judge came to a similar conclusion when he undertook a fresh s. 11(b) analysis at the conclusion of the evidential phase of the appellant’s second trial:
The passage of another year … brings the balance more towards a position favourable to the accused, but I do not see, now that I have heard all the evidence that the societal interests are lessened in any significant way. Indeed, it seems to me, at least in terms of Canada’s small role in endeavouring to assert the rule of law into the protection of UN personnel in such a civil conflagration, that the national and international societal interests in having this case prosecuted are every bit as weighty as they were a year ago, possibly even more so.
[145] I agree. The crimes charged against the appellant are grave indeed. As the trial judge observed in his original s. 11(b) ruling, they “[strike] at the core of the safety and security of [UN] personnel in every outbreak of hostilities into which they are sent”. Further, as the trial judge also stated, “Canada’s armed forces … who participate in [UN] peace-making and peace-keeping efforts around the globe … and the armed services of all of the member states of the [UN] have a very real interest in [the] trial of this case.”
[146] The delay in this case, although considerable, was not unreasonable. As this court recently stated in R. v. Godin, [2008] 237 O.A.C. 324, at para. 46, appeal as of right to the S.C.C., [2008] S.C.C.A. No. 354, there will be circumstances where trial delay, even significant trial delay, will be caused by “a constellation of explicable factors”. This is such a case. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 142–146, per Cronk J.A.
Canada’s LOAC Manual (1999) provides that accused persons in occupied territory must “have the right to present evidence necessary to their defence and may, in particular, call witnesses”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 57.
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.3.
In 2004, in R. v. Lyttle, the Supreme Court of Canada noted with regard to the right to cross-examine witnesses:
1. Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.
2. That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.
41. As mentioned at the outset, the right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence. See R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608, per McLachlin J. (as she then was):
The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. … In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. [Emphasis added.]
42. In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. reviewed the relevant authorities and, at p. 663, explained why cross-examination plays such an important role in the adversarial process, particularly, though of course not exclusively, in the context of a criminal trial:
There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness’s weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence. See R. v. Anderson (1938), 70 C.C.C. 275 (Man. C.A.); R. v. Rewniak (1949), 93 C.C.C. 142 (Man. C.A.); Abel v. The Queen (1955), 115 C.C.C. 119 (Que. Q.B.); R. v. Lindlau (1978), 40 C.C.C. (2d) 47 (Ont. C.A.).
43. Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin, supra, at p. 665.
44. The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. See R. v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, supra.
45. Just as the right of cross-examination itself is not absolute, so too are its limitations. Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done – and seen to be done. In the exercise of that discretion, they may sometimes think it right to relax the rules of relevancy somewhat, or to tolerate a degree of repetition that would in other circumstances be unacceptable. See United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 925. 
Canada, Supreme Court, R. v. Lyttle, Judgment, 12 February 2004, §§ 1–2 and 41–45.
[emphasis in original]
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). … Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
[5] Ribic appeals his convictions. He argues that the trial judge erred by ruling that some of the substantive defences advanced by the appellant should not have been put to the jury and that he further erred in his instructions on certain of the defences left with the jury for its consideration. Ribic also contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms [(Charter)] to a fair trial [and] to make full answer and defence to the Crown’s case … had been infringed. For the reasons that follow, I would dismiss the appeal. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[23] The appellant’s first trial began on October 7, 2002 before Cunningham J. of the Superior Court of Justice. The Crown called six witnesses over eight days. On October 23, 2002, at the close of the Crown’s case, the defence sought to call as witnesses two former members of the Canadian Armed Forces who had served in Bosnia with UNPROFOR [UN Protection Force] during the hostage-taking incident. The first proposed witness – Witness A – was a Canadian intelligence officer who acted as Canada’s country analyst for Bosnia- Herzegovina. The second proposed witness – Witness B – was a forward air controller who engaged in intelligence-gathering, helped select bombing targets and assisted in guiding NATO aircraft to identified targets. Neither of these individuals was present during the hostage-taking incident. …
[24] Both Witnesses A and B expressed concerns that their testimony might include “potentially injurious” or “sensitive” information concerning Canada’s international relations, national defence or national security, within the meaning of s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the CEA). When notice of these concerns was provided to the Attorney General of Canada in accordance with s. 38.01(1) of the CEA, the Attorney General declined to authorize the disclosure of Witness A’s and B’s information. The appellant then applied to the Federal Court for an order authorizing Witnesses A and B to testify without restriction at his criminal trial and permitting the entirety of their proposed evidence to be disclosed. The Attorney General opposed this application and moved for directions from the Federal Court.
[73] There are two bases for the appellant’s argument that the trial judge erred by refusing to grant a stay of the proceedings on the ground of a violation of the appellant’s s. 7 Charter rights. First, the appellant attacks the Disclosure Process itself, describing it as “unprecedented and manifestly unfair”. He complains that neither he nor anyone who represented his interests was permitted to participate in the examinations of Witnesses A and B in the Federal Court disclosure proceedings, and no opportunity was afforded to his counsel to provide follow-up questions to be posed to the witnesses by examining counsel.
[74] Second, the appellant argues that the form and manner of the presentation of Witness A’s and Witness B’s evidence at trial as mandated by the Disclosure Rulings – the reading of excerpts from the redacted transcripts of their testimony to the jury in lieu of calling these witnesses to provide viva voce evidence – breached his s. 7 Charter rights. He also claims that the prejudicial effect of his inability to compel the oral evidence of these witnesses was illustrated, and exacerbated, by Crown counsel’s closing address to the jury, during which Crown counsel sought to impeach the reliability and credibility of Witnesses A and B by inviting the jury to compare their testimony as read to the jury with the “live” evidence of Crown witnesses who actually testified at trial.
[83] Unquestionably, the method of examination of Witnesses A and B under the Disclosure Process was far from ideal, involving as it did a filter between the appellant’s counsel and the witnesses and a proscription on the direct participation of the appellant’s counsel in the examination process. That said, it is my opinion that the appellant cannot rely on a challenge to the fairness of the Disclosure Process itself to support his claim in this court that a stay of the prosecution should have been granted due to the alleged infringement of his s. 7 Charter rights. I say this for several reasons.
[85] Ultimately, the Disclosure Process was authorized by consent court order of the Federal Court. Under that order, the Disclosure Process involved examinations of Witnesses A and B based on areas of questioning identified by the appellant’s counsel. In addition, the order required that while examining counsel questioned the witnesses, the appellant’s counsel “will remain available to provide further explanations on relevancy and suggestions as to possible areas of questioning”. The appellant thus participated, through counsel, in the design and approval of the Disclosure Process of which he now complains. Although the appellant’s counsel did not personally conduct the examinations in question, they had a pivotal role throughout.
[92] … [F]our judges of courts that are experienced in dealing with national security and national defence issues evaluated the fairness of the Disclosure Process and the nature and sufficiency of the information authorized for disclosure. They unanimously held that the information to be disclosed was fair and protective of the appellant’s interests to the extent possible, given the nature of the information at issue, the defences sought to be raised by the appellant at his criminal trial, and the urgency of the situation. .. [L]eave to appeal that determination to the Supreme Court of Canada was refused.
[108] There is no doubt that it would have been preferable if the defence had been able to call Witnesses A and B to testify at trial. An accused’s rights to a fair trial and to make full answer and defence are principles of fundamental justice protected by s. 7 of the Charter. They encompass the right to defend against “all of the state’s efforts to achieve a conviction” (R. v. Rose, [1998] 3 S.C.R. 262, at para. 103) and to have .the opportunity adequately to state [one’s] case. (R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at para. 32).
[109] However, these fundamental rights are not absolute. The jurisprudence of the Supreme Court of Canada recognizes that national security considerations can justify limitations on the extent and form of disclosure of confidential information to affected individuals. Moreover, s. 7 of the Charter does not include a guarantee that evidence may be tendered at a criminal trial in any particular form. …
[110] I am satisfied that adequate measures were found in the context of this unusual case to respect the appellant’s s. 7 Charter rights. As a result, there is no basis for appellate interference with the trial judge’s discretionary decision to refuse the extraordinary remedy of a stay of the proceedings under s. 24(1) of the Charter based on the appellant’s s. 7 claim. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 23–24, 73–74, 83, 85, 92 and 108–110, per Cronk J.A.
[emphasis in original; footnote in original omitted]
Canada’s LOAC Manual (1999) provides that accused persons in occupied territory must “be aided by an interpreter, both during preliminary investigation and during the hearing in court”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 58.
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers:
Unless they voluntarily waive such assistance, accused persons must be aided by an interpreter, both during preliminary investigation and during the hearing in court. They have the right at any time to object to the interpreter and to ask for a replacement. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.4.
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
12. The accused chose for the trial to be held in French. His mother tongue is Kinyarwanda, the official language of Rwanda. Nevertheless, he perfectly understands and speaks French, as many of his fellow countrymen who have completed their secondary education. The accused subsequently accepted for the trial to be held bilingually in order to allow for some parts of it to take place in English. This change was largely needed to allow one of his attorneys, which preferred the use of the English language while pleading, to do it in English. Throughout the proceeding, all use of English was simultaneously translated to French by certified translators.
13. On the other hand, the vast majority of testimonies were given in Kinyarwanda. This required the hiring of interpreters who could translate and communicate the questions to the witnesses in Kinyarwanda and translate their answers to French …
15. All parties soon realized that it was hard to translate in a satisfactory way from Kinyarwanda to French and from French to Kinyarwanda. Soon after the beginning of the trial, I put in place a system of verification which was approved by all parties. If the accused, the interpreter chosen by the Crown or even one of the official interpreters had a doubt on the validity of the interpretation given by the official interpreter in office at the time, he had to communicate it immediately to the court. The testimony would have been suspended at that moment and a consultation would have followed between the different interpreters and the accused until everybody would have agreed on the right interpretation. This system worked very well. As the trial went on, such interventions became less frequent, surely because the interpreters became more and more familiar with the particular expressions used by the witnesses. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 12–13 and 15.
In 2004, in its fifth periodic report to the Human Rights Committee, Canada reported:
In R. v. Beaulac, the Supreme Court set out a new principle of interpretation of language rights … The Court noted the positive nature of language rights, establishing a link with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees. In the same case, the Supreme Court of Canada ruled that the language-of-trial provisions of the Criminal Code (the right of any accused to have a trial before a judge, a jury and a prosecutor who speak the official language (English or French) of the accused, the right of the accused to have a judgment written in his official language, and the right of the accused, witnesses and the accused’s counsel to be assisted by an interpreter) create an absolute right, provided a request is made within the time allowed. The Court confirmed that such language rights are completely distinct from trial fairness and, as such, are not contingent upon the ability of the person making the request for interpretation services to understand the proceedings in the other official language. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, § 177.
Canada’s LOAC Manual (1999) provides that, in non-international armed conflict, “accused persons have the right to be present at their trial”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(e).
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … e. shall have the right to be present at trial”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.e.
Canada’s LOAC Manual (1999) provides: “No force of any kind may be imposed upon a PW [prisoner of war] to cause the PW to plead guilty.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 76.
It further states that in cases of non-international armed conflicts: “Accused persons shall not be compelled to testify against themselves or to confess their guilt.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(f).
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
No PW may be tried or punished for any offence, which was not, at the time of its commission, forbidden by International Law or the law of the Detaining Power. No force of any kind may be imposed upon a PW to cause the PW to plead guilty. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1040.2.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: … f. shall not be compelled to testify against themselves or to confess their guilt”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.f.
In the Lia case before a Canadian Federal Court in 2004, Justice Andrew MacKay held:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application. 
Canada, Federal Court, Lia case, Reasons for Order, 3 February 2004, § 24.
The Federal Court of Appeal in 2005 held that “[s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy”. 
Canada, Federal Court of Appeal, Lia case, Judgment, 11 April 2005, § 95.
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
70. This Court has recognized that the right against self-incrimination is a principle of fundamental justice: S. (R.J.), supra, at para. 95; Branch, supra; R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73. In Jarvis, at para. 67, the right against self-incrimination was described as “an elemental canon of the Canadian criminal justice system”. It has further been recognized in relation to the principle of individual sovereignty and as an assertion of human freedom: S. (R.J.), supra, at para. 81; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 248-49; and R. v. White, [1999] 2 S.C.R. 417, at para. 43. Having recognized the centrality of the principle in Canadian law, this Court’s jurisprudence has further articulated general principles regarding the relationship of self-incrimination to criminal law more broadly. To this end, testimonial compulsion has been invariably linked with evidentiary immunity. Beginning in S. (R.J.), supra, and continuing in Branch, supra, Phillips, supra, and Jarvis, supra, the more recent jurisprudence of our Court on self-incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and constitutional exemption.
71. Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means. The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness. Together these necessary safeguards provide the parameters within which self-incriminating testimony may be obtained. 
Canada, Supreme Court, Application under s. 83.28 of the Criminal Code (Re), Judgment, 23 June 2004, §§ 70–71.
[emphasis in original]
In 2005, in R. v. Turcotte, the Supreme Court of Canada noted:
41. Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
In Canada the right of a suspect not to say anything to the police … is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
42. Although its temporal limits have not yet been fully defined, the right to silence has also received Charter benediction. In R. v. Hebert, [1990] 2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7 right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel. He was then placed in a cell with an undercover officer posing as a suspect under arrest. During the course of their conversation, the accused incriminated himself. The question before the Court was whether the statement to the undercover officer was admissible. Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused’s right to silence found in s. 7 of the Canadian Charter of Rights and Freedoms.
43. In addition to emphasizing the importance of providing protection from the power of the state, McLachlin J. founded the s. 7 right to silence in two common law doctrines: the confessions rule and the privilege against self-incrimination, explaining that both emerge from the following unifying theme:
[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. [p. 164]
44. It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused’s silence could not be used as evidence of guilt:
It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]
45. Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be “a snare and a delusion” to allow evidence of any valid exercise of the right to be used as evidence of guilt.
46. Moreover, as Doherty and Rosenberg JJ.A. explained in R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.), since, in most circumstances, individuals are under no obligation to assist the police, their silence cannot, on its own, be probative of guilt:
… a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person’s culpability. [p. 529]
47. Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers, at p. 1318, if “the Crown can establish a real relevance and a proper basis”, evidence of silence can be admitted with an appropriate warning to the jury. 
Canada, Supreme Court, R. v. Turcotte, Judgment, 30 September 2005, §§ 41–47.
[emphasis in original]
In 2007, in R. v. Spencer, the Supreme Court of Canada noted:
11. At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. … It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):
The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
12. In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police … trickery” to obtain a confession “is a distinct inquiry … [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).
13. With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at the suspect … to have a coercive effect” (Oickle, at para. 51). While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is “sensitive to the particularities of the individual suspect” (para. 42), and its application “will by necessity be contextual” (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, … is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances” (para. 50). Inducements “becom[e] improper only when … standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” (para. 57).
14. To the extent that any distinction in law may be asserted between the traditional “confessions rule” in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court’s decision in Oickle, the latter must prevail. In my view, however, Lord Sumner’s formulation of the “narrow” rule does not mean that any quid pro quo will automatically render a statement involuntary. Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been “obtained from [the accused] either by fear of prejudice or hope of advantage”. In the subsequent case of Director of Public Prosecutions v. Ping Lin, [1976] A.C. 574 (H.L.), at p. 595, Lord Morris asked: “was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement”.
15. Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. 
Canada, Supreme Court, R. v. Spencer, Judgment, 8 March 2007, §§ 11–15.
[emphasis in original]
In 2007, in R. v. Singh, the Supreme Court of Canada noted:
3.1 Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived
21. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, described the principle against self-incrimination in these words:
The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.] 
Canada, Supreme Court, R. v. Singh, Judgment, 1 November 2007, § 21.
[emphasis in original]
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers:
Representatives of the Protecting Power have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the occupant, who must then so notify the Protecting Power. A notification in respect of the date and place of the trial, however, must be sent to the Protecting Power. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.2.
Canada’s National Defence Act (1985) states:
(1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
Witnesses
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial. 
Canada, National Defence Act, 1985, Section 180(1)–(3)
Canada’s National Defence Act (1985), as amended in 2013, states:
(1) Subject to subsections (2) and (3), courts martial, and proceedings before military judges … shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
(2) A court martial or military judge, as the case may be, may order that the public be excluded during the whole or any part of the proceedings if the court martial or military judge considers that it is necessary
(a) in the interests of public safety or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations, national defence or national security.
(3) Witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be. 
Canada, National Defence Act, 1985, as amended in 2013, Section 180.
The Mahjoub case in 2004 concerned an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000. In the context of proceedings before Canada’s Federal Court, related to the constitutionality of the detention, “Mr. Mahjoub sought an order that he be permitted to give a portion of his evidence in camera, in the absence of members of the public, including the media”. 
Canada, Federal Court, Mahjoub case, Reasons for Order and Order, 22 July 2004, § 3.
The Federal Court, in its 2004 decision on that motion, stated:
[17] It is a fundamental principle that the proceedings of Canadian courts are open and accessible to the public. This is a long recognized principle. The rationale for open proceeding was eloquently stated by Jeremy Bentham. His remarks have been quoted on more than one occasion by the Supreme Court of Canada:
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.”
See: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (Re R. v. Carson), supra at paragraph 21; Vancouver Sun (Re), 2004 SCC 43 at paragraph 24.
[18] Counsel for the parties and the intervener all argue that the exercise of the Court’s discretion to trench on that fundamental principle of openness is properly anchored by the principles established by the Supreme Court of Canada in Dagenais … Since the hearing of this application the correctness of this submission has been reaffirmed by the Supreme Court of Canada in Vancouver Sun (Re)
[19] Thus, where a judge is asked to limit freedom of expression of the public or the press in a judicial proceeding, either by way of closed proceedings or a publication ban, the judge is to apply the Dagenais test in order to balance freedom of expression and other important rights and interests. This balancing is required because where, as in the case of an application to restrict access to judicial proceedings, the Charter rights of two entities come into conflict, Charter principles require a balance to be achieved that respects the importance of both sets of rights. See Dagenais, at page 877.
[20] The Dagenais test requires a judge to restrict access to proceedings only when:
(a) such a restriction is necessary in order to prevent a real and substantial risk to the fairness of the hearing, because reasonably available alternative measures will not prevent the risk; and
(b) the salutary effects of the restriction outweigh the deleterious effects of the free expression of those affected by the ban.
See: Dagenais at page 878. See also: R. v. Mentuck, [2001] 3 S.C.R. 442 at paragraph 32 and Vancouver Sun (Re) at paragraph 29.
[21] To pose a serious risk to the proper administration of justice, the reality of the risk must be well-grounded in the evidence. It must also be a risk that “poses a serious threat to the proper administration of justice”. See: Mentuck at paragraph 34.
[22] The burden of displacing the general rule of openness lies on the party making the application.
[23] In Dagenais, at pages 890 to 891, the Supreme Court provided some general guidelines, which guidelines apply equally to applications for evidence to be adduced in camera. The guidelines included:
(c) […] A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban […].
(d) The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available.
(e) The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and
(f) The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate. 
Canada, Federal Court, Mahjoub case, Reasons for Order and Order, 22 July 2004, §§ 17–23.
[emphasis in original]
In 2004, in Vancouver Sun (Re), the Supreme Court of Canada noted:
24. The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21. The right of public access to the courts is “one of principle … turning, not on convenience, but on necessity”: Scott v. Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloistered virtue”: Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), per Lord Atkin, at p. 335. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”: J. H. Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115.
25. Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
27. Furthermore, the principle of openness of judicial proceedings extends to the pretrial stage of judicial proceedings because the policy considerations upon which openness is predicated are the same as in the trial stage: MacIntyre, supra, at p. 183. Dickson J. found “it difficult to accept the view that a judicial act performed during a trial is open to public scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy”: MacIntyre, at p. 186. 
Canada, Supreme Court, Vancouver Sun (Re), Judgment, 23 June 2004, §§ 24–25 and 27.
[emphasis in original]
In 2007, in Named person v. Vancouver Sun, the Supreme Court of Canada noted:
31. The “open court principle” is a “hallmark of a democratic society”, as this Court said in Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43, at para. 23. This principle, as the Court noted in that case, “has long been recognized as a cornerstone of the common law” (para. 24), and has been recognized as part of the law since as far back as Scott v. Scott, [1913] A.C. 417 (H.L.), and Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), where Lord Atkin wrote, at p. 335: “Justice is not a cloistered virtue”. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity” (J. H. Burton, ed., Benthamiana: or, Select Extracts from the Works of Jeremy Bentham (1843), at p. 115).
32. Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (“CBC”), at para. 22. An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a “principal component” of their legitimacy: Vancouver Sun, at para. 25. 
Canada, Supreme Court, Named person v. Vancouver Sun, Judgment, 11 October 2007, §§ 31–32.
[emphasis in original]
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
90. On 23 June 2004, the Supreme Court of Canada, in the context of a constitutional challenge to the investigative hearing provisions of the Anti-terrorism Act (see above under article 9), found that Parliament chose to have investigative hearings of a judicial nature, the open court principle is a fundamental characteristic of judicial proceedings that should not be presumptively displaced in favour of an in camera process and that judicial officers should therefore reject the notion of presumptively secret hearings. The presumption of openness should only be displaced upon proper consideration of the competing interests at every stage of the process. The existence of the hearing and as much of its subject-matter as possible should be made public unless, under a balancing exercise of minimal impairment/proportionality, secrecy becomes necessary. Applying the test in a contextual manner, judges would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice.
91. The Anti-terrorism Act amended the Canada Evidence Act (CEA) by setting out pre-trial, trial and appellate procedures to apply where there is a possibility that information injurious to international relations, national defence or national security could be disclosed. Once notice has been given to the Attorney General for Canada by any participant to a proceeding who expects to cause the disclosure of sensitive information, disclosure is prohibited unless authorized by the Attorney General of Canada or the Federal Court. The Federal Court must balance the public interest in disclosure against that in non-disclosure and, in order to serve as far as possible both of these public interests, may provide for the use in proceedings of summaries and agreed statements of fact. To ensure that these procedures are consistent with fair trial rights, the CEA provides that the person presiding at a criminal proceeding may make any order they consider appropriate, other than calling for disclosure of the information. Orders can include staying proceedings (if the judge takes the view that the accused would not otherwise get a fair trial), dismissing specified counts of the indictment or information or proceeding only in respect of a lesser or included offence. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, §§ 90–91.
Canada’s LOAC Manual (1999) provides that, in non-international armed conflicts, “accused persons shall be told, if convicted, of their judicial and other remedies and appellate procedures”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(g).
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … g. shall be told, if convicted, of their judicial and other remedies and appellate procedures”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.g.
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “There is no absolute right of appeal against sentence. [The 1949 Geneva Convention IV] merely states that ‘The convicted persons shall have the right of appeal provided for by the laws applied by the court’.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.5.
Canada’s National Defence Act (1985) states: “Every person subject to the Code of Service Discipline has … the right to appeal to the Court Martial Appeal Court.” 
Canada, National Defence Act, 1985, Section 230.
The Act further states:
A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court
(a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. 
Canada, National Defence Act, 1985, Section 245(1).
In 2004, in its fifth periodic report to the Human Rights Committee, Canada reported with regard to Ontario:
Offenders have the right to apply to the courts for a review of their detention. Sentenced offenders also have the right to appeal their sentence. Offenders who are charged with internal misconduct have the right to appeal any sentence that impacts on their legislated earned remission. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, § 404.
Canada’s LOAC Manual (1999) provides that no prisoner of war “may be punished more than once for the same offence, or on the same charge”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 58.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “No PW may be punished more than once for the same offence, or on the same charge”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1039.6.