Practice Relating to Rule 127. Respect for Convictions and Religious Practices of Persons Deprived of Their Liberty
Canada’s LOAC Manual (1999) provides that prisoners of war are to receive spiritual attention, if possible from chaplains attached to their own forces or of their own nationality. It adds that the detaining power must provide religious personnel with all the facilities necessary for the religious ministration of the prisoners of war.
Concerning the treatment of internees, the manual provides: “Premises for the holding of religious services must be made available.”
The manual also specifies: “Internees shall enjoy complete freedom to practise their own religion.”
The manual further states that persons undergoing sentences of imprisonment “have the right to receive any spiritual assistance which they may require”.
With regard to non-international armed conflicts, the manual states that the persons whose liberty has been restricted “must be allowed to practise their religion and to receive spiritual assistance from those performing religious functions”.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1026. Medical and Spiritual Care
1. PWs are to receive medical and spiritual attention, if possible from doctors or chaplains attached to their own forces or of their own nationality.
2. The Detaining Power must provide retained medical and religious personnel with all the facilities necessary for the medical care and religious ministration to the PWs.
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 “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual states: “The person, honour, family rights, religious conventions and practices, and manners and customs of protected persons must in all circumstances be respected.”
In the same chapter, in a section entitled “Treatment of internees”, the manual states:
5. … Premises for the holding of religious services must be made available …
6. … [Internees] shall enjoy complete freedom to practice their own religion.
In its chapter on rights and duties of occupying powers, the manual also states:
[The 1949 Geneva Convention IV] contains stringent provisions concerning the treatment of persons undergoing sentence of imprisonment. These are as follows:
b. They have the right to receive any spiritual assistance, which they may require.
In its chapter on non-international armed conflicts, the manual states that persons whose liberty has been restricted “must be allowed to practise their religions and to receive spiritual assistance from those performing religious functions”.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
PW [prisoners of war] are to be permitted to practice their religion or exercise their beliefs provided that this is carried out within the rules of camp discipline. A place of worship is to be provided where this is possible. Chaplains and other spiritual leaders are to be allowed to minister to PWs of the same religion or belief and where there is no minister or religious leader, a lay PW may be appointed by the Camp Commander to lead worship.
With regard to planning for the provision of prisoner-of-war amenities, the manual states that account must be taken of “any religious or ethnic differences that may apply”.
With regard to the handling of retained personnel (medical personnel and chaplains), the manual states:
[They] are to be allowed to retain their medical equipment and religious accoutrements and are to be granted the necessary facilities to provide medical and spiritual care to PW. Although they are subject to the disciplinary rules for the camp in which they live, they may not be forced to carry out work other than that connected with their professional duties.
With regard to the use of dogs during the escorting and guarding of prisoners of war, the manual states:
The deployment and use of dogs is to be at the discretion of the Camp Commander bearing in mind both the threat posed by the PW and the impact of the use of dogs on some religious and cultural groupings.
With regard to the construction of prisoner-of-war holding facilities, the manual states that “[a] facility for the conduct of religious services and intellectual pursuits” is to be provided.
With regard to the accommodation of prisoners of war, the manual states that “allowance should be made for special religious or national practices”.
With regard to the dietary requirements of prisoners of war, the manual states: “There may also be religious or ethnic dietary requirements for which, whenever possible, provision should be made.”
With regard to relief supplies, the manual states: “PW are allowed to receive individual parcels or collective relief shipments containing articles such as … religious, educational, cultural or recreational articles”.
With regard to the working conditions of prisoners of war, the manual states: “PW are to be allowed a period of 24 hours rest once a week. This rest period may be taken on a Sunday or on a day of rest usual in the PW’s country of origin or dictated by his religion.”
Canada’s Code of Conduct After Capture Manual (2004) states: “PWs [prisoners of war] are to receive medical and spiritual attention, if possible from doctors or chaplains attached to their own forces or of their own nationality.”
The manual further states: “The detaining power must provide retained medical and religious personnel with all the facilities necessary for the medical care and religious ministration to the PWs.”
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces' agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
 Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
 The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
 Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
 Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
 … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
 The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
 In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
 Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
 … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
 As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
 Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
 That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
 Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.