Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
Canada’s LOAC Manual (1999) states that prisoners of war and accused persons in occupied territory must be allowed to present their defence.
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”.
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”.
With respect to non-international armed conflicts, the manual provides: “Accused persons shall be afforded all the necessary rights and means of defence.”
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.
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.
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”.
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:
 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.
 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.
 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.
 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.
 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.
In its reasons for judgment, the Federal Court of Appeal stated:
 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.
 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.
In its judgment, the Federal Court of Appeal stated:
Duty to disclose
 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).
 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.]
 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.
 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.
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.
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:
 … 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.
 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.
 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.
 We thus uphold the Federal Court of Appeal’s conclusion that Mr. Khadr is entitled to a remedy under s. 7 of the Charter.
 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
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:
 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.
 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. …
 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.
 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.
 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.
The Court held:
 … 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,  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,  2 S.C.R. 577, at para. 32).
 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.
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.