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
November 7, 2003 280
• 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.
September 15, 2004 324
• Exhibit “JJ” – “Charge Sheet” detailing the charges against Omar Khadr
November 7, 2005 341
• 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)
September 8, 2008 486
• 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)
September 8, 2008 589
• 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
November 8, 2004 597
• Exhibit “C” – Federal Court index and docket list for T-536-04
September 4, 2008 602
viii
• Exhibit “D” – Notice of Application, T-686-04
March 31, 2004 633
• Exhibit “E” – Amended Notice of Application, T-686-04
September 3, 2004 641
• 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
September 4, 2008 657
• Exhibit “H” – Notice of Application, T-3-06
January 3, 2006 678
• Exhibit “I” – Federal Court index and docket list for T-3-06
September 4, 2008 686
• Exhibit “J” – Canada (Justice) v. Khadr, 2008 SCC 28
May 23, 2008 697
• Exhibit “K” – Supreme Court of Canada docket list for SCC 32147
September 4, 2008 715
• 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.
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
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