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OMAR AHMED KHADR Respondent -And File No.: 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 SECUFUTY INTELLIGENCE SERVICE, and THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE Appellants - and - OMAR AHMED KHADR Respondent -and- AMNESTY INTERNATIONAL (CANADIAN SECTION, ENGLISH BRANCH), HUMAN RIGHTS WATCH, UNIVERSITY OF TORONTO, FACULTY OF LAW - INTERNATIONAL HUMAN RIGHTS PROGRAM AND DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, CANADIAN COALITION FOR THE RIGHTS OF CHILDREN AND JUSTICE FOR CHILDREN AND YOUTH, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CANADIAN BAR ASSOCIATION, AVOCATS SANS FRONTIERES CANADA, BARREAU DU QUEBEC ET GROUPE D'ETUDE EN DROITS ET LIBERTES DE LA FACULTE DE DROIT DE L'UNIVERSITE LAVAL, CANADIAN CIVIL LIBERTIES ASSOCIATION and NATIONAL COUNCIL FOR THE PROTECTION OF CANADIANS ABROAD Interveners RESPONDENT'S FACTUM NATHANJ. WHITLINGAND DENNISEDNEY LANGMICHENER LLP Parlee McLaws LLP Lawyers #1500, 10180 - 101 Street #300, 50 O'Connor Street Edmonton AB T5J 4Kl Ottawa, ON KIP 6L2 Telephone: (780) 423-8658 PER: MARIE-FRANCEMAJOR Facsimile: (780) 423-2870 Telephone: (6 13) 232-7 171 Email: [email protected] Fax: (613) 231-3191 dedney@,shaw.ca Email: rnrnajor@,lanmichener.ca Counsel for the Respondent Agent Counsel for the Respondent DOREENMUELLER DEPARTMENTOF JUSTICECANADA Department of Justice Canada Room #1161, Bank of Canada Bldg. Prairie Region, #211 Bank of Montreal Bldg. 234 Wellington Street 10199 - 101 Street, N.W. Ottawa, ON KIA OH8 Edmonton, AB T5J 3Y4 PER: ROBERTJ. FRATER Telephone: (780) 495-8352 Telephone: (6 13) 957-4763 Facsimile: (780) 495-5835 Fax: (613) 954-1920 Email:[email protected] Email: robert.frater~,iustice.gc.ca-. Counsel for the Appellants Agent Counsel for the Appellants SACHA R. PAUL COMMUNITYLEGAL SERVICES Thompson Dorfman Sweatman LLP -OTTAWACARLETON 2200 - 201 Portage Avenue 1 Nicholas Street, Suite #422 Winnipeg, MB Ottawa, ON KIN 7B7 Telephone: (204) 934-2571 PER: MICHAELBOSSIN FAX: (204) 934-0571 Telephone: (6 13) 241 -7008 E-mail: srp@,tdslaw.com- FAX: (613) 241-8680 Counsel for the Intervener Amnesty Email: bossinrn@,lao.on.ca International (Canadian Agent Counsel for the Intervener Section, English Branch) Amnesty International (Canadian Section, English Branch) JOHN NORRJS AND BRYDJE BETHELL LANGMJCHENER LLP 100 - 116 Simcoe Street 300 - 50 O'Connor Street Toronto, ON M5H 4E2 Ottawa, ON KIP 6L2 Telephone: (416) 596-2960 PER: MARIE-FRANCE MAJOR FAX: (416) 596-2598 Telephone: (6 13) 232-71 7 1 Email: inorris@,dcdlaw.ca FAX: (613) 231-3191 Email: bbethell@,dcdlaw.ca- E-mail: [email protected] Counsel for the Intervener Human Rights Agent Counsel for the Intervener Watch, University of Toronto, Faculty of Human Rights Watch, University of Law - International Human Rights Toronto, Faculty of Law - Program and David Asper Centre for International Human Rights Constitutional Rights Program and David Asper Centre for Constitutional Rights EMILY CHAN SOUTHOTTAWA COMMUNITY Justice for Children and Youth LEGALSERVICES 1203 - 4 15 Yonge Street 406 - 1355 Bank Street Toronto, ON M5B 2E7 Ottawa, ON K1H 8K7 Telephone: (41 6) 920-1633 PER: CHANTAL TIE FAX: (41 6) 920-5855 Telephone: (61 3) 733-0140 E-mail: chane@,lao.on.ca FAX: (613) 733-0401 Counsel for the Intervener Canadian Agent Counsel for the Intervener Coalition for the Rights of Children and Canadian Coalition for the Rights of Justice for Children and Youth Children and Justice for Children and Youth JOSEPH J. ARVAY, Q.C. HAMEEDFARROKHZAD LLP Arvay Finlay 43 Florence Street 1350 - 355 Burrard Street Ottawa, ON K2P OW6 Vancouver, BC V6C 2G8 PER: YAVAR HAMEED Telephone: (604) 689-442 1 Telephone: (613) 232-2688, Ext: 228 FAX: (604) 687-1941 FAX: (613) 232-2680 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener British Agent Counsel for the Intervener Columbia Civil Liberties Association British Columbia Civil Liberties Association BRIAN H. GREENSPAN GOWLINGLAFLEUR HENDERSON LLP Greenspan Humphrey Lavine 2600 - 160 Elgin Street 15 Bedford Road Box 466 Station D Toronto, ON M5R 2J7 Ottawa, ON KIP 1C3 Telephone: (416) 868-1755 PER: BRIAN A. CRANE, Q.C. FAX: (416) 868-1990 Telephone: (613) 233-1781 E-mail: bhg@, 15bedford.com FAX: (613) 563-9869 Counsel for the Intevener Criminal E-mail: brian.crane@gowlin~s.com Lawyers' Association (Ontario) Agent Counsel for the Intervener Criminal Lawyers' Association(0ntario) LORNE WALDMAN GOWLINGLAFLEUR HENDERSON LLP Waldman & Associates 2600 - 160 Elgin Street 28 1 Eglinton Avenue East P.O. Box 466, Stn "DM Toronto, Ontario Ottawa, ON KIP 1C3 M4P 1L3 PER: HENRYS* BROWN, Q.C. Telephone: (416) 482-6501 Telephone: (613) 233-1781 FAX: (41 6) 489-961 8 FAX: (613) 788-3433 E-mail: lawald@,web.apc.org E-mail: henry.brown@,~owlings.com Counsel for the Intervener Canadian Bar Agent Counsel for the Intervener Association Canadian Bar Association SIMONV. POTTER McCarthy Tetrault, s.e.n.c.r.l., s.r.1. 2500 - 1000, rue De la Gauchetiere Ouest Montreal, Quebec H3B OA2 Telephone: (5 14) 397-4268 FAX: (5 14) 875-6246 E-mail: [email protected] Counsel for the Intervener Avocats sans frontihres Canada, Barreau du QuCbec et Groupe dlCtude en droits et libertCs de la Faculti! de droit de llUniversitC Lava1 MARLYSA. EDWARDH GOWLINGLAFLEUR HENDERSON LLP Marlys Edwardh Barristers Professional 2600 - 160 Elgin Street Corporation Box 466 Station D 20 Dundas Street West, Suite 1100 Ottawa, ON KIP 1C3 Toronto, ON M5G 2G8 PER: BRIANA. CRANE,Q.C. Telephone: (416) 597-9400 Telephone: (613) 233-178 1 FAX: (416) 597-0070 FAX: (61 3) 563-9869 E-mail: edwardh@,marlysedwardh.com E-mail: brian.crane@,aowlinas.com Counsel for the Intervener Canadian Agent Counsel for the Intervener Civil Liberties Association Canadian Civil Liberties Association DEANPEROFF LANGMICHENER LLP Amsterdam & Peroff 300 - 50 O'Connor Street 35 Alvin Avenue Ottawa, ON KIP 6L2 Toronto, ON M4T 2A7 PER: EUGENE MEEHAN,Q.C. Telephone: (416) 367-4100 Telephone: (613) 232-71 71 FAX: (416) 367-0076 FAX: (613) 231-3191 E-mail: peroff@,amperlaw.com- E-mail: [email protected] Counsel for the Intervener National Agent Counsel for the Intervener Council For the Protection of Canadians National Council For the Protection Abroad of Canadians Abroad TABLE OF CONTENTS PART I: STATEMENT OF FACTS .................................................................................... Overview .................................................................................................................. The Respondent's Unlawful Conscription and Detention .................................. The Legal Regime at GTMO and Resulting Litigation ....................................... The Respondent's Torture at Bagram .................................................................. The Respondent's Torture at GTMO ................................................................... The Use of Sleep Deprivation and the "Frequent Flyer Program" ..................... Canada's Participation in GTMO's "Enhanced Interrogation Process" ........... Canada's Complicity in the Frequent Flyer Program" ........................................ Subsequent Consideration of the Frequent Flyer Program ................................. The Interim Injunction Issued by Justice von Finckenstein ................................ Khadr 2008 ............................................................................................................... The Respondent's Policy and Reasons .................................................................. PART 11: ISSUES ................................................................................................................... PART 111: ARGUMENT ........................................................................................................ A . Brief Overview of the Respondent's Response to the Crown's Arguments ....... B . Res Judicata. Issue Estoppel. and the Earlier Proceedings ................................. C . Jurisdiction .............................................................................................................. D . Standard of Review ................................................................................................. E . Applicable Provisions of the Charter ..................................................................... F . The Crown's Complicity in the GTMO Interrogation Process .......................... (i) The Effect of Previous Decisions .................................................................... (ii) State Responsibility for Internationally Wrongful Acts Under International Law .................................................................................................................. (iii) The Treatment in which the Crown Participated was "Cruel and Unusual Treatment" ...................................................................................................... (iv) The Crown's Complicity in Arbitrary Detention and Related Violations ...... (v) Conclusions on the Crown's Complicity in the GTMO Interrogation Process G. "Special Circumstances" and the "Duty to Protect" ........................................... (i) "Serious Breaches" of Peremptory Norms of International Law ...................... (ii) Positive Obligations Arising under the Convention on the Rights of the Child and its Optional Protocol on the Involvement of Children in Armed Conflict
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