File Number: 33289 IN THE SUPREME COURT OF … James O’Reilly April 23, 2009 13 ... Gonzales, Counsel to the President ... Transcript of cross-

File Number: 33289

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

THE PRIME MINISTER OF CANADA,

THE MINISTER OF FOREIGN AFFAIRS, THE DIRECTOR OF THE CANADIAN SECURITY INTELLIGENCE SERVICE, and

THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE

Appellants - and -

OMAR AHMED KHADR

Respondent

JOINT RECORD

PURSUANT TO RULE 38 OF THE RULES OF THE SUPREME COURT OF CANADA

Volume I of VII

Counsel for the Appellants Department of Justice Canada Room 1161, Bank of Canada 234 Wellington Street Ottawa, ON K1A 0H8 Per: Robert Frater/Doreen Mueller/ Jeffrey Johnston Tel: (613) 957-4763 Fax: (613) 954-1920 Email: [email protected] [email protected] [email protected]

Counsel for the Respondent Parlee McLaws LLP Barristers and Solicitors 1500 Manulife Place 10180 - 101 Street Edmonton, AB T5J 4K1 Per: Nathan J. Whitling and Dennis Edney Tel: (780) 423-8658 Fax: (780) 423-2870 Email: [email protected] [email protected]

Agent for the Appellants Department of Justice Canada Room 1161, Bank of Canada 234 Wellington Street Ottawa, ON K1A 0H8 Per: Robert Frater Tel: (613) 957-4763 Fax: (613) 954-1920 Email: [email protected]

Agent for the Respondent Lang Michner LLP Lawyers 300, 50 O’Connor Street Ottawa, ON K1P 6L2 Per: Marie-France Major Tel: (613) 232-7171 Fax: (613) 231-3191 Email: [email protected]

ii

TABLE OF CONTENTS

Description Date Page Number

PART I – CERTIFICATE OF COUNSEL

Certificate of Counsel 11

PART II – FORMAL JUDGMENTS

Reasons for Judgment and Judgment of the Honourable James O’Reilly

April 23, 2009 13

Reasons for Judgment and Judgment of the Federal Court of Appeal

August 14, 2009 55

PART III – PLEADINGS AND ORDERS

Notice of Application filed by the Respondent August 8, 2008 111

Notice of Appeal filed in the Federal Court of Appeal filed by the Appellants

May 7, 2009 117

PART IV – EVIDENCE

Affidavit of Omar Ahmed Khadr filed by the Respondent (Included in Appeal Book)

July 30, 2008 122

Affidavit of April Bedard filed by the Respondent (Included in Supplemental Appeal Book)

August 8, 2008 131

Affidavit of Lieutenant Commander William C. Kuebler filed by the Respondent (Included in Appeal Book and Supplemental Appeal Book)

August 8, 2008 133

• Exhibit “A” – Photo of Omar Khadr

Undated 149

• Exhibit “B” – Omar Khadr’s Canadian Identification

Undated 150

• Exhibit “C” – Correspondence sent by Omar Khadr to his family in Ontario

2002/2003 152

iii

• Exhibit “D” – Military Order entitled

“Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”

November 13, 2001 157

• Exhibit “E” – Memorandum from the President of the United States

February 2, 2002 162

• Exhibit “F” – Diplomatic Note from Canada to the U.S. Government

August 30, 2002 164

• Exhibit “G” – Diplomatic Note from Canada to the U.S. Government

September 13, 2002 166

• Exhibit “H” – Military Commission Order No. 1, “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism”

March 21, 2002 169

• Exhibit “I” – Interview notes

December 30, 2004 180

• Exhibit “J” – DVD – “Taxi to the Dark Side”

Undated 188

• Exhibit “K” – Extracts from Canada’s Department of Foreign Affairs and International Trade training manual

December 20, 2007 189

• Exhibit “L” – Employee statement disclosed by the Federal Bureau of Investigation

May 22, 2002 206

• Exhibit “M” - Employee statement disclosed by the Federal Bureau of Investigation

July 12 – August 2, 2004

213

• Exhibit “N” - Employee statement disclosed by the Federal Bureau of Investigation

Undated 215

• Exhibit “O” - Employee statement disclosed by the Federal Bureau of Investigation

July 9 – August 16, 2004

216

• Exhibit “P” – United States Department of Defense document entitled “GTMO Interrogation Techniques”

June 22, 2004 218

• Exhibit “Q” – U.S. Department of Justice, Memorandum for Alberto R. Gonzales, Counsel to the President

August 1, 2002 219

iv

• Exhibit “R” – United Nations Press

Release HR/4812

February 4, 2005 269

• Exhibit “S” – CSIS document re: Service Visit to Guantanamo Bay

February 21, 2003 271

• Exhibit “T” – CSIS document re: Visit of Canadian Officials to Guantanamo Bay

November 1, 2002 277

• Exhibit “U” – CSIS document re: Interview of Omar Khadr


• Exhibit “V” – DVD

February 13, 2003 284

• Exhibit “W” – DVD

February 13, 2003 285

• Exhibit “X” – DVD

February 14, 2003 286

• Exhibit “Y” – DVD

February 15, 2003 287

• Exhibit “Z” – DVD

February 16, 2003 288

• Exhibit “AA” – Interview summary prepared by the US and Canadian governments

February 24, 2003 289

• Exhibit “BB” - Interview summary prepared by the US and Canadian governments

February 17, 2003 292

• Exhibit “CC” - Interview summary prepared by the US and Canadian governments

February 17, 2003 294

• Exhibit “DD” - Interview summary prepared by the US and Canadian governments

April 20, 2004 296

• Exhibit “EE” - Interview summary prepared by the US and Canadian governments

February 20, 2003 301

• Exhibit “FF” – Affidavit of William Hooper (T-536-04)

February 18, 2005 303

• Exhibit “GG” – Transcript of cross-examination on Affidavit of William Hooper (T-536-04)

March 2, 2005 306

• Exhibit “HH” – Order of Paul Wolfowitz, Deputy Secretary of Defense re: Combatant Status Review Tribunal

July 7, 2004 320

v

• Exhibit “II” – Respondents’ Factual

Return to Petition for Writ of Habeas Corpus by Petitioner O.K.


• Exhibit “JJ” – “Charge Sheet” detailing the charges against Omar Khadr


• Exhibit “KK” – “Charge Sheet” detailing new charges against Omar Khadr

April 5, 2007 345

• Exhibit “LL” – Decision of Cpt. Keith Allred, Military Judge re: statements made by Mr. Hamdan in United States v. Hamdan

July 20, 2008 352

• Exhibit “MM” – Letter written by Lieutenant Commander William C. Kuebler to the Supreme Court of the United States

June 9, 2008 368

• Exhibit “NN” – Report entitled “Repatriation of Omar Khadr to be Tried Under Canadian Law” prepared by the University of Ottawa

January 2008 373

• Exhibit “OO” – Defense motion with attached documentary evidence “Optional Protocol on the Involvement of Children in Armed Conflict” and remarks made by Sandra L. Hodgkinson, Deputy Assistant Secretary of Defense for Detainee Affairs, before the UN Committee on the Rights of the Child

May 29, 2008 422

• Exhibit “PP” – U.S. Department of Defense, News Release entitled “Transfer of Juvenile Detainees Completed”

January 29, 2004 454

• Exhibit “QQ” – Document entitled “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age”

January 14, 2003 455

• Exhibit “RR” – Letter to the Honourable Robert Douglas Nicholson, Minister of Justice and Attorney General of Canada, and the Honourable Peter MacKay, Minister of Foreign Affairs from Nathan J. Whitling, Parlee McLaws

April 20, 2007 462

vi

• Exhibit “SS” – Letter to Nathan J.

Whitling from Peter G. MacKay, Minister of Foreign Affairs

May 31, 2007 465

• Exhibit “TT” – Letter to the Rt. Hon. Stephen Harper, Prime Minister of Canada from Current and Former Parliamentarians

June 14, 2007 466

• Exhibit “UU” – Letter to Audrey Macklin, Associate Professor, University of Toronto from Maxime Bernier, Minister of Foreign Affairs

October 17, 2007 472

• Exhibit “VV” – Letter to the Hon. Maxime Bernier, Minister of Foreign Affairs and International Trade from Lieutenant Commander William Kuebler

April 7, 2008 474

• Exhibit “WW” – Letter to the Right Honourable Stephen Harper, Prime Minister of Canada from Amnesty International

July 10, 2008 476

• Exhibit “XX” – Letter to the Right Honourable Stephen Harper, Prime Minister of Canada from the Honourable Stéphane Dion, Leader of the Opposition

July 29, 2008 478

Letter from Nathan Whitling to Office of the Prime Minister, Minister of Foreign Affairs, CSIS, RCMP and Department of Justice (Included by Consent)

July 28, 2008 481

Affidavit of Sean Robertson filed by the Appellants (Included in Appeal Book)


• Exhibit “A” – Diplomatic Note #ISI-2003

July 9, 2003 493

• Exhibit “B” – Letter to Colin L. Powell, US Secretary of State from Bill Graham, Minister of Foreign Affairs

October 6, 2003 495

• Exhibit “C” – Diplomatic Note #UNGR0308

November 11, 2003 497

• Exhibit “D” – Diplomatic Note #UNAG2919

November 14, 2003 498

vii

• Exhibit “E” – Diplomatic Note #JLH-

0179

June 7, 2004 499

• Exhibit “F” – Diplomatic Note #UNGR-0221

July 9, 2004 500

• Exhibit “G” – Diplomatic Note #UNGR0021

January 13, 2005 502

• Exhibit “H” – Diplomatic Note #0033

February 11, 2005 503

• Exhibit “I” – Diplomatic Notes #UNGR0187 and #UNWS0020

July 2005; April 17, 2006

505

• Exhibit “J” – Diplomatic Note #WSHDC-0290

November 10, 2005 510

• Exhibit “K” – Report of welfare visit

March 19, 2005 512

• Exhibit “L” – Report of welfare visit

December 15, 2005 529

• Exhibit “M” - Report of welfare visit

July 13, 2006 537

• Exhibit “N” - Report of welfare visit

June 6, 2007 543

• Exhibit “O” - Report of welfare visit

August 30, 2007 552

• Exhibit “P” - Report of welfare visit

December 3, 2007 558

• Exhibit “Q” - Report of welfare visit

February 3 and 4, 2008

563

• Exhibit “R” - Report of welfare visit

March 12 and 14, 2008

568

• Exhibit “S” - Report of welfare visit

April 8, 2008 573

• Exhibit “T” - Report of welfare visit

May 7, 8 and 9, 2008 578

• Exhibit “U” - Report of welfare visit

June 17, 18 and 19, 2008

584

Affidavit of Lillian Cook filed by the Appellants (Included by Consent)


• Exhibit “A” – Statement of Claim to the

Defendants, T-536-04

March 15, 2004 592

• Exhibit “B” – Amended Statement of Claim to the Defendants, T-536-04


• Exhibit “C” – Federal Court index and docket list for T-536-04


viii

• Exhibit “D” – Notice of Application, T-686-04

March 31, 2004 633

• Exhibit “E” – Amended Notice of Application, T-686-04


• Exhibit “F” – Second Amended Notice of Application, T-686-04

December 22, 2004 649

• Exhibit “G” – Federal Court index and docket list for T-686-04


• Exhibit “H” – Notice of Application, T-3-06

January 3, 2006 678

• Exhibit “I” – Federal Court index and docket list for T-3-06


• Exhibit “J” – Canada (Justice) v. Khadr, 2008 SCC 28

May 23, 2008 697

• Exhibit “K” – Supreme Court of Canada docket list for SCC 32147


• Exhibit “L” – Supreme Court of Canada, Respondent’s Fresh Evidence Record

January 25, 2008 728

• Exhibit “M” – Factum of the Appellants, the Attorney General of Canada et al, SCC 32147

December 19, 2007 1085

• Exhibit “N” – Respondent’s Factum, SCC 32147

February 14, 2008 1130

• Exhibit “O” – Factum of the Intervener, Criminal Lawyers’ Association (Ontario), SCC 32147

February 22, 2008 1180

• Exhibit “P” – Factum of the Intervener, University of Toronto, Faculty of Law – International Human Rights Clinic and Human Rights Watch, 32147

February 22, 2008 1201

• Exhibit “Q” – Factum of the Intervener, British Columbia Civil Liberties Association, SCC 32147

February 21, 2008 1222

• Exhibit “R” – Appellants’ Factum on the Motion to Strike, SCC 32147

February 26, 2008 1242

ix

Supplemental Affidavit of April Bedard submitted by the Respondent but unfilled (Included in Appeal Book)

October 22, 2008 1252

Written Cross-Examination questions, dated September 8, 2008, to the Affidavit of Omar Ahmed Khadr; and Omar Ahmed Khadr’s responses (Included in Appeal Book)

September 10, 2008 1255

Cross-examination on Affidavit (Videoconference) (sworn 4 August, 2008) of Lieutenant Commander William Christopher Kuebler (Included in Appeal Book)

September 26, 2008 1268

PART V – EXHIBITS

No documents.

PART I

CERTIFICATE OF COUNSEL

000010000010000010

File Number: 33289

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

THE PRIME MINISTER OF CANADA, THE MINISTER OF FOREIGN AFFAIRS, THE DIRECTOR OF THE CANADIAN SECURITY INTELLIGENCE SERVICE, and

THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE

Applicants (Appellants)

- and -

OMAR AHMED KHADR Respondent

(Respondent)

CERTIFICATE OF COUNSEL

I, Doreen Mueller, counsel for the Appellant, the Attorney General of Canada, hereby

certify that the annexed joint record contains only so much of the pleadings, evidence, affidavits

and other documents as is necessary to raise the question for the decision of the Court.

And I do further certify that I have closely examined the joint record and verily believe

that it is a true and correct reproduction of the originals and that the same has been proofread.

Dated at the City of Edmonton, in the Province of Alberta, this _____ day of September,

2009.

__________________________________ Per: Robert Frater/Doreen Mueller/Jeffrey Johnston Department of Justice Canada Counsel for the Appellants

BY CONSENT: ___________________________________ Nathan J. Whitling Parlee McLaws LLP Counsel for the Respondent

000011

PART II

FORMAL JUDGMENTS

000012000012000012

Reasons for Judgment and Judgment of the Honourable James O'Reilly, Federal Court, April 23, 2009

000013000013000013


000014000014000014


000015000015000015


000016000016000016


000017000017000017


000018000018000018


000019000019000019


000020000020000020


000021000021000021


000022000022000022


000023000023000023


000024000024000024


000025000025000025


000026000026000026


000027000027000027


000028000028000028


000029000029000029


000030000030000030


000031000031000031


000032000032000032


000033000033000033


000034000034000034


000035000035000035


000036000036000036


000037000037000037


000038000038000038


000039000039000039


000040000040000040


000041000041000041


000042000042000042


000043000043000043


000044000044000044


000045000045000045


000046000046000046


000047000047000047


000048000048000048


000049000049000049


000050000050000050


000051000051000051


000052000052000052


000053000053000053


000054000054000054

Reasons for Judgment and Judgment of the Federal Court of Appeal, August 14, 2009

000055000055


000056000056


000057000057


000058000058


000059000059


000060000060


000061000061


000062000062


000063000063


000064000064


000065000065


000066000066


000067000067


000068000068


000069000069


000070000070


000071000071


000072000072


000073000073


000074000074


000075000075


000076000076


000077000077


000078000078


000079000079


000080000080


000081000081


000082000082


000083000083


000084000084


000085000085


000086000086


000087000087


000088000088


000089000089


000090000090


000091000091


000092000092


000093000093


000094000094


000095000095


000096000096


000097000097


000098000098


000099000099


000100000100


000101000101


000102000102


000103000103


000104000104


000105000105


000106000106


000107000107


000108000108


000109000109

Documents

File Number: 33289 IN THE SUPREME COURT OF … James O’Reilly April 23, 2009 13 ... Gonzales, Counsel to the President ... Transcript of cross-