Practice Relating to Rule 99. Deprivation of Liberty
Canada’s LOAC Manual (1999) states that it is a grave breach of the 1949 Geneva Conventions to “unlawfully confine a protected person”.
Canada’s LOAC Manual (2001), 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 “Aliens in the territory of a party to the conflict”, states:
1. If a state considers that the measures of control over protected persons provided in [the 1949 Geneva Convention IV] are inadequate, the most severe additional measure of control that may be imposed by that State is that of assigned residence or internment in accordance with the provisions of [the 1949 Geneva Convention IV].
2. A belligerent may order the internment of protected persons, or their being placed in assigned residences, only if security requirements make such a course absolutely necessary.
In the same chapter, in a section entitled “Treatment of internees”, the manual states:
2. Protected persons may be interned only in accordance with the provisions of [the 1949 Geneva Convention IV] and only in cases when they pose a threat to the state in whose hands they are …
1131. Release and repatriation of internees
1. Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. However, internees who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom penal (that is, judicial) proceedings for offences not exclusively subject to disciplinary penalties are pending, may be detained until the close of the proceedings or end of the sentence.
In the same chapter, in a section entitled “Additional Protocol I”, the manual further states:
Except in cases of arrest or detention for penal offences, [any person arrested, detained or interned for actions related to the armed conflict] shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: … b. to unlawfully confine a protected person”.
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of force in international operations
1. The use of force by members of the CF [Canadian Forces] during international operations depends on diplomatic, political, operational and legal factors as well as the nature of the operation.
402. Types of international operations
1. In general, there are four types of international operational relationships in which the CF 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;
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.
2. When Canada is not acting unilaterally, the doctrine and concepts contained in this publication will underpin the use of force by Canadian forces during other types of international combined operations unless the CDS [Chief of the Defence Staff] specifically directs otherwise. When Canadian forces are in an alliance, coalition, or UN operation, the chain of command shall highlight the differences between Canadian doctrine and CDS authorized ROE and the doctrine and ROE issued by the alliance, coalition, or UN.
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.
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] … 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 the Charkaoui case before Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Court held:
88. Section 9 of the Charter [Canadian Charter of Rights and Freedoms] guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law.
107. … I conclude that the [Canadian Charter of Rights and Freedoms] s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.
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 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. …
 The Technical Arrangements and the two Arrangements entered into by Canada and Afghanistan with respect to the transfer of detainees (which will be discussed below), reflect the consent of the Government of Afghanistan to the operation of the Canadian Forces [CF] on Afghan territory for the purposes identified in the documents.
b) The Canadian Forces’ Detention of Individuals in Afghanistan
 As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
 The Canadian Forces possess a broad discretion to detain Afghan civilians, including individuals who may have no active role in hostilities.
 That is, Canadian Task Force Afghanistan’s Theatre Standing Order 321A regarding the “Detention of Afghan Nationals and Other Persons” provides that the Canadian Forces may detain any person on a “reasonable belief” (defined as “neither mere speculation nor absolute certainty”) that he or she is adverse in interest. This includes “persons who are themselves not taking a direct part in hostilities, but who are reasonably believed to be providing support in respect of acts harmful to the CF/Coalition Forces”.
 Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
 Following capture by the Canadian Forces, detainees are held in a Canadian Forces temporary detention facility at Kandahar Airfield. Kandahar Airfield is a NATO base, and is the location of the Canadian Forces’ base of operations in Kandahar province.
 Kandahar Airfield is not under the control of either the Afghan or Canadian governments, but is a facility shared by Canada and several other ISAF [International Security Assistance Force] countries participating in security and infrastructure operations in Afghanistan. Canada does, however, have command and control over the Canadian Forces’ detention facilities at the Kandahar Airfield.
 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”.
 Canada informs the International Committee of the Red Cross when the Canadian Forces detain an individual in Afghanistan, but does not notify the Afghan government that one of its citizens has been detained, unless and until the detainee is to be transferred to Afghan custody.
 It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.
 While in Canadian custody, detainees are interrogated, searched, photographed and fingerprinted. Detainees are not provided with access to legal counsel during their detention by the Canadian Forces, nor are they afforded any opportunity to make representations prior to being handed over to the Afghan authorities.
 The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.
 Before transferring a detainee into Afghan custody, General Laroche must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
 It is the position of the respondents that if this standard is not met, detainee transfers will not take place.
 The respondents have refused to provide any information with respect to the identity or whereabouts of specific individuals who have been detained by the Canadian Forces, on the grounds of national security.
 The respondents do maintain, however, that Canada has no legal authority to establish or run a long-term detention facility in Afghanistan. That is, according to the respondents, the Canadian Forces have not been authorized to detain for the long term, either by the Government of Canada or by ISAF commanders, who have operational control over Canadian Forces. Nor has the Government of Afghanistan authorized such an encroachment on their sovereignty.
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?
b) R. v. Hape
 R. v. Hape involved a question as to the admissibility of evidence obtained outside of Canada at a criminal trial in this country.
 As was noted above, the test articulated by the majority in Hape requires the Court to consider whether the activity in question falls under s. 32(1) such that the Charter applies to it. In answering this question, the conduct in issue must be that of a Canadian state actor. The respondents now concede that Canadian Forces personnel fall within the definition of state actors for the purposes of this motion[.]
 The second part of the Hape test requires the Court to determine whether there is an exception to the principle of sovereignty that would justify the application of the Charter to the extraterritorial activities of the Canadian state actor. Based upon [the] international law principle of state sovereignty, the majority was of the view that Canadian law, including the Charter, could ordinarily only be enforced in another state with the consent of the other state: Hape, at ¶69.
 As a consequence, in order to answer the first question identified by this motion, the Court must determine whether the Government of Afghanistan has consented to the application of Canadian law, including the Charter, to the conduct of Canadian Forces personnel in relation to the detention of individuals on Afghan soil.
 Before addressing the issue of consent, however, it should be noted that the applicants argue that Parliament has the authority to pass laws governing the Canadian Forces, and has in fact done so with the National Defence Act, R.S., 1985, c. N-5. As a result, the applicants submit that the conduct of the Canadian Forces in Afghanistan is self-evidently a matter “within the authority of Parliament”, as contemplated by section 32 of the Charter.
 The difficulty with the applicants’ position is that the same point could equally have been made with respect to the R.C.M.P. in Hape, in light of the enactment of the Royal Canadian Mounted Police Act, R.S., 1985, c. R-10.
 Nevertheless, in the view of the majority in Hape, the criminal investigation which had been undertaken outside of Canada was not a matter “within the authority of Parliament”, as Parliament did not have jurisdiction to authorize the enforcement of Canadian law in the Turks and Caicos, without the consent of that state.
 Similarly, in this case, as a foreign state, Canada would not ordinarily have the power to detain non-Canadians, including Afghan citizens, on Afghan soil, without the consent of Afghanistan.
 It is thus necessary to determine whether the Government of Afghanistan has consented to the application of Canadian law, including the Charter, to Canadian Forces personnel in relation to the detention of non-Canadians in Afghanistan. This will be considered next.
c) Has the Government of Afghanistan Consented to the Application of Canadian law, Including the Charter?
 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.
 In light of the foregoing, it is clear that while Afghanistan has consented to its citizens being detained by the Canadian Forces for the purposes described by the Afghan Compact, it cannot be said that Afghanistan has consented to the application or enforcement of Canadian law, including the Canadian Charter of Rights and Freedoms, to constrain the actions of the Canadian Forces in relation to detainees held by the Canadian Forces on Afghan soil.
 Furthermore, the Government of Afghanistan has not consented to having Canadian Charter rights conferred on non-Canadians, within its territorial limits.
 As a result, based upon the Supreme Court of Canada’s ruling in Hape, it would thus appear that the Charter does not apply to the conduct of the Canadian Forces in issue in this case.
d) “Effective Military Control of the Person” as a Test for Charter Jurisdiction
 Whatever its appeal may be, … the practical result of applying such a ‘control of the person’ based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.
 This would be a most unsatisfactory result, in the context of a United Nations-sanctioned multinational military effort, further suggesting that the appropriate legal regime to govern the military activities currently underway in Afghanistan is the law governing armed conflict – namely international humanitarian law.
 Indeed, international humanitarian law is a highly developed branch of international law comprised of both customary international law and treaties “that regulates the conduct of military operations and operated to protect civilians and other persons not actively participating in hostilities, and to mitigate harm to combatants themselves” …
 Moreover, international humanitarian law applies not only during times of war, but applies as well, albeit with some modifications, to non-international armed conflicts within the territory of High Contracting Parties …
 The application of international humanitarian law to the situation of detainees in Afghanistan would not only give certainty to the situation, but would also provide a coherent legal regime governing the actions of the international community in Afghanistan.
 Moreover, both military detentions and police searches and seizures involve the invasion of “the private sphere of persons”, which invasion is “paradigmatic of state sovereignty”: Hape at ¶87. According to the Supreme Court, such actions can only be authorized by the host state.
 In this case, the scope of the authority given to Canada by the Government of Afghanistan to detain individuals on its soil is limited, and specifically contemplates that Canadian actions in this regard be governed by international law. In addition, it is clear from a review of the documentation governing the relationship between Afghanistan and Canada that the rights to be accorded to detainees are those guaranteed by the Afghan constitution, and by international law.
 As a consequence, I cannot accept the applicants’ argument that the Charter applies to the conduct of members of the Canadian Forces in relation to detainees held by Canadian military personnel on Afghan soil, based upon the degree of control that the Canadian Forces exert over the detainees.
 … [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.
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 a report to Parliament in 2007 on Canada’s mission in Afghanistan, the Government of Canada stated: “With Canadian assistance, Afghanistan is … working to increase its capacity to comply with, and report on, its human rights treaty obligations, and to develop procedures aimed at preventing arbitrary arrest and detention.”
In 2009, in its third and fourth periodic reports to the Committee on the Rights of the Child, Canada stated under the heading “Optional Protocol on the involvement of children in armed conflict”: “All persons apprehended and detained by the Canadian Forces in a theatre of hostilities are treated … in a manner consistent with international legal standards.”