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.
The manual also provides: “Sentences may be pronounced only after a regular trial.”
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”
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]”.
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.
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’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”.
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.
In its chapter on rights and duties of occupying powers, the manual states: “Sentences may be pronounced only after a regular trial.”
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]”.
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]”.
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.
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.
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.
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’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’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’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.
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:
 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.
 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.
 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.
 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,  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,  2 S.C.R. 125 (“Khadr 2008”).
 Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada …
 The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008 …
 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?
 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.
 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).
 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.
 … 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.
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.”
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.