Prisoner-of-War Status Determination Regulations (SOR/91-134)

Short Title

1 These Regulations may be cited as the Prisoner-of-War Status Determination Regulations.

Interpretation

2 In these Regulations,

detainee

detainee means a person in the custody of a unit or other element of the Canadian Forces who has committed a belligerent act; (personne détenue)

non-commissioned member

non-commissioned member has the same meaning as in section 2 of the National Defence Act; (militaire du rang)

officer

officer has the same meaning as in section 2 of the National Defence Act; (officier)

prisoner-of-war status

prisoner-of-war status means prisoner-of-war status under Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949 or under Section II of Part III of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts; (statut de prisonnier de guerre)

tribunal

tribunal means a prisoner-of-war status tribunal established pursuant to section 4. (tribunal)

Authorities

3 The following authorities may establish a tribunal:

• (a) the Minister of National Defence;

• (b) the Chief of the Defence Staff;

• (c) an officer commanding a command;

• (d) an officer commanding a formation; and

• (e) any other authority that the Chief of the Defence Staff may prescribe or appoint.

Prisoner-of-war Status Tribunals

4 A tribunal shall consist of one officer of the Legal Branch of the Canadian Forces who shall be appointed, with the concurrence of the Judge Advocate General, by the authority who establishes the tribunal.

Function of Tribunal

5 A tribunal shall, when directed to do so by the authority who established the tribunal, hold a hearing to determine whether a detainee brought before it is entitled to prisoner-of-war status.

Powers

• 6 (1) In carrying out its function, a tribunal may

  • (a) subject to subsection (2), order the appearance of any witness subject to the Code of Service Discipline, as defined in section 2 of the National Defence Act, and request the appearance of any other witness;

  • (b) require the production of documentary and real evidence under the control of the Canadian Forces; and

  • (c) require each witness to testify under oath or solemn affirmation.

• (2) A tribunal may not compel the detainee whose entitlement to prisoner-of-war status is to be determined by the tribunal to testify.

Screening of Detainees

7 The commanding officer of a unit or other element of the Canadian Forces shall ensure that each detainee is screened as soon as is practicable after being taken into custody by the unit or element, to determine

• (a) whether or not the detainee is entitled to prisoner-of-war status; or

• (b) whether there is doubt with respect to the detainee’s entitlement to prisoner-of-war status.

Request for Determination of Status

• 8 (1) Where a commanding officer believes that there may be doubt whether a detainee is entitled to prisoner-of-war status, the commanding officer shall request, as soon as is practicable, an authority referred to in section 3 to direct that a tribunal hold a hearing to determine the detainee’s entitlement to that status.

• (2) A request referred to in subsection (1) shall be accompanied by a summary of the information on which it was determined that there was doubt with respect to the detainee’s entitlement to prisoner-of-war status.

• (3) The authority shall review the summary referred to in subsection (2) and shall

  • (a) where the authority is satisfied that the detainee is entitled to prisoner-of-war status, direct the commanding officer to accord that status to the detainee;

  • (b) where the authority is satisfied that the detainee is not entitled to prisoner-of-war status, direct the commanding officer not to accord that status to the detainee; and

  • (c) where the authority is in doubt with respect to the entitlement of the detainee to prisoner-of-war status, direct a tribunal to hold a hearing to determine whether the detainee is entitled to prisoner-of-war status and inform the commanding officer of the direction.

• (4) Where a direction is made pursuant to paragraph (3)(c), the commanding officer shall cause the detainee to be informed of the direction and to be given reasonable notice of the time, date and place of the hearing.

Investigating Member

• 9 (1) An authority who directs a tribunal to hold a hearing to determine a detainee’s entitlement to prisoner-of-war status shall appoint an officer or a non-commissioned member to act as investigating member for the tribunal.

• (2) The investigating member shall

  • (a) perform the clerical and preliminary work for the tribunal hearing;

  • (b) arrange for the attendance of witnesses;

  • (c) gather, and present to the tribunal during the hearing, all available evidence relevant to the prisoner-of-war status of the detainee; and

  • (d) obtain such additional evidence as the tribunal directs.

Representation of the Detainee

• 10 (1) A detainee has the right to be represented before a tribunal by an assisting member appointed pursuant to subsection (2) or (3).

• (2) As soon as is practicable after a direction pursuant to paragraph 8(3)(c) is made, an officer or a non-commissioned member shall be appointed, by or under the authority of the commanding officer, as an assisting member.

• (3) A particular assisting member may be requested by the detainee and shall be appointed where exigencies of the service permit and the member is willing to act in that capacity.

• (4) The assisting member shall, to the extent requested by the detainee,

  • (a) assist the detainee in preparing for the hearing;

  • (b) represent the detainee during the hearing; and

  • (c) assist the detainee in preparing any written representations where, under subsection 17(1), the detainee requests a review of the tribunal’s determination.

• (5) Nothing in this section affects the discretion of a tribunal to permit additional assistance or representation in appropriate circumstances.

Interpreter

11 A detainee who does not understand the language in which a hearing is to be conducted is entitled

• (a) to the assistance of a qualified interpreter to enable the detainee to prepare for and participate in the hearing; and

• (b) to make written representations to the authority who directed the tribunal to make a determination, where, pursuant to subsection 17(1), the detainee requests a review of the determination.

Interim Status

12 A detainee whose entitlement to prisoner-of-war status is in doubt shall be treated as a prisoner of war until a tribunal determines that the detainee is not entitled to that status and, where a review of the tribunal’s determination is requested under subsection 17(1), until the completion of the review.

Hearing

13 A tribunal shall hold a hearing to determine a detainee’s entitlement to prisoner-of-war status in accordance with the following procedure:

• (a) the direction to hold the hearing shall be read;

• (b) the tribunal shall ask the detainee whether further time is required to prepare for the hearing and shall grant any reasonable adjournment requested for that purpose;

• (c) the investigating member shall present the relevant evidence without regard to whether the evidence tends to prove or disprove that the detainee is entitled to prisoner-of-war status;

• (d) the detainee may present relevant evidence;

• (e) at the conclusion of the presentation of the evidence, the tribunal may recall witnesses or call additional witnesses;

• (f) after all the evidence has been presented, an address to the tribunal may be made first by the investigating officer and then by the detainee;

• (g) after hearing the addresses, the tribunal shall

  • (i) if the evidence establishes on a balance of probabilities that the detainee is not entitled to prisoner-of-war status, determine that the detainee is not entitled to that status, or

  • (ii) in any other case, determine that the detainee is entitled to prisoner-of-war status; and

• (h) the tribunal shall announce its determination, give the reasons therefor and inform the detainee of the detainee’s right under subsection 17(1) to request a review of the determination.

Special Cases

14 In cases not provided for in these Regulations, the tribunal may, in carrying out its function, determine the procedure to be followed.

Evidence in Camera

• 15 (1) A tribunal may hear evidence in camera and in the absence of the detainee where the tribunal considers it necessary to do so in the interest of national security.

• (2) The tribunal shall give the detainee an oral or a written summary of any evidence heard in the absence of the detainee that, in the opinion of the tribunal, would not be injurious to national security.

Minutes of Proceedings

• 16 (1) A tribunal shall keep, or cause to be kept, minutes of proceedings in respect of each hearing.

• (2) The minutes of proceedings shall contain

  • (a) a copy of the direction to determine the status of the detainee;

  • (b) a record of the time and place of the hearing and the names of the persons present;

  • (c) a summary of the testimony of all witnesses heard by the tribunal;

  • (d) all real and documentary evidence considered by the tribunal; and

  • (e) a record of the tribunal’s determination and the reasons therefor and the time and date when the determination was announced.

• (3) The tribunal shall forward the minutes of proceedings to the authority who directed the tribunal to make a determination.

Review of Determination

• 17 (1) A detainee whose prisoner-of-war status has been determined pursuant to section 13 may, within 24 hours after the tribunal announces its determination, request a review of the determination.

• (2) The request referred to in subsection (1) shall be in writing and shall be given to the commanding officer of the unit or element that has custody of the detainee.

• (3) Where a request is made under subsection (1), the authority who directed the tribunal to make a determination shall review the determination.

• (4) Any written representations to the authority that the detainee wishes to make shall be submitted to the commanding officer within seven days after the determination is announced.

• (5) The commanding officer shall forward the request and any written representations to the authority.

• (6) The review shall consist of a review of the minutes of proceedings and any written representations made by the detainee.

• (7) The authority may, on completion of the review,

  • (a) substitute the authority’s own determination of the detainee’s entitlement to prisoner-of-war status for the determination of the tribunal;

  • (b) set aside the determination of the tribunal and direct that another tribunal hold a hearing to determine whether the detainee is entitled to prisoner-of-war status; or

  • (c) confirm the determination of the tribunal.

• (8) The authority shall give written reasons for the decision made under subsection (7).

Witness Fees

18 Any person who is not subject to the Code of Service Discipline, as defined in section 2 of the National Defence Act, and who attends as a witness at a tribunal hearing is entitled to compensation for such expenses as the tribunal considers reasonable in the circumstances.