Agent for the Appellants,

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) Court File No. 36081 BETWEEN: DAVID PELHAM, WARDEN OF THE BOWDEN INSTITUTION, and THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA - and - Appellants (Respondents) OMAR AHMED KHADR AMNESTY INTERNATIONAL CANADA, and THE CANADIAN CIVIL LIBERTIES ASSOCIATION Respondent (Appellant) Interveners FACTUM IN REPLY TO THE INTERVENERS OF THE APPELLANTS, DAVID PELHAM, WARDEN OF THE BOWDEN INSTITUTION, and THE ATTORNEY GENERAL OF CANADA Department of Justice Canada Centennial House 301-310 Broadway Winnipeg, MB, R3C OS6 Per: Sharlene Telles-Langdon I Michael Taylor I Cameron Regehr Telephone: 204-295-1026 Fax: 204-984-8495 E-mai 1: sharlcnc. tc 1 lcs-lang,don@justice.gc.ca Counsel for the Appellants, David Pelham, Warden of the Bowden Institution, and the Attorney General of Canada William F. Pentney Q.C. Deputy Attorney General of Canada Department of Justice Canada 50 O'Connor Street Suite 500, Room 557 Ottawa, Ontario KIA OHS Per: Christopher Rupar Tel: 613-670-6290 Fax: 6 13-954-1920 E-mail: christopher.rupar@justice.gc.ca Agent for the Appellants, David Pelham, Warden of the Bowden Institution, and the Attorney General of Canada

TO: Nathan Whitling and Dennis Edney Beresh Aloneissi O'Neill O'Keeffe Millsap 300 MacLean Block 10110-107 Street Edmonton, Alberta T5J I J4 Attention: Nathan Whitling Phone: 780-429-0346 Email: whitlin!!@.libertylaw.ca dednev@shaw.ca Fax: 780-421-4766 Counsel for the Respondent, Omar Ahmed Khadr Attorney General of Alberta Alberta Justice, Civil Law Branch 9th Floor, Peace Hills Trust Tower 10011 I 09th Street Edmonton. Alberta T5J 3S8 Per: Doreen Mueller Marie-France Major Supreme Advocacy LLP 340 Gilmour Street, Suite 100 Ottawa, Ontario K2P OR3 Phone: (613)695-8855 Fax: (6 13) 695-8580 Email: mfmajor@supremcadvocacy.ca Ottawa Agent for the Respondent, Omar Ahmed Khadr Michael Sobkin Barrister & Solicitor 331 Somerset Street West Ottawa, Ontario K2P 018 Phone: Cell: Fax: 780-644-5785 780-237-0845 780-427-1 230 Email: doreen.muellcr<@uov.ab.ca Phone: Fax: Email: 613-282-1712 613-288-2896 msobkin@sympatico.ca Counsel for the Appellant Her Majesty the Queen in Right of Alberta Ottawa Agent for the Appellant Her Majesty the Queen in Right of Alberta LERNERS LLP Lawyers 130 Adelaide Street West, Suite 2400 Toronto, Ontario M5H 3P5 Per: Jasmine T Akbarali Phone: 4 16-60 l -23 80 Fax: 416-867-2401 Email: jakbarali(@.lcrncrs.ca Per: Gillian T Hnatiw Phone: 416-601-2354 Email: ghnatiwcw.lemers.ca GOWLING LAFLEUR HENDERSON LLP 2066-160 Elgin St Box 466 Station D Ottawa, Ontario K 1 P 1 C3.Jeffrey W. Beedell Counsel for the Intervener, Association The Canadian Civil Liberties Association Phone: 613-786-0171 Fax: 613-788-3587 Email: jeff.bccdcll@gowlings.com Agent for Counsel for the Intervener, T he Canadian Civil Liberties

Fannie Lafontaine Universite Laval, Faculte de droit Phone: 418-656-2131 ext. 3859 Email: frl nnic. lafontainc(ttlfci.ulaval.ca POWER LAW Suite 1103-130 Albert Street Ottawa, Ontari o K lp 5G4 Fran~ois Larocque Phone: 613-894-4783 Fax: 1-888-404-2227 Email: ll arocque@,powerlaw.ca David Taylor Phone: 6 13-702-5563 Email : chavlor@.powcrlnw.ca Counsel for the Intervener, Amnesty International Canada

TABLE OF CONTENTS PART I-OVERVIEW AND STATEMENT OF FACTS... 1 A. Overview... 1 B. Additional Relevant Facts... 2 PART 11 - QUESTIONS IN ISSUE... 3 PART III - ARGUMENT... 4 A. Reply to Amnesty International... 4 B. Reply to Canadian Civil Liberties Association... 5 PART IV - SUBMISSIONS CONCERNING COSTS... 5 PART V - ORDER SOUGHT... 5 PART VI -TABLE OF AUTHORITIES... 6 PART VII - LEGISLATIVE PROVISIONS DIRECTLY IN ISSUE... 7 /\. international Transfer of Offenders Act, SC 2004, c 21, s. 18... 7 B. International Transfer of Offenders Act, SC 2004, c 21, s. 19... 7 C. International Transfer of Offenders Act, SC 2004, c 21, s. 20... 9

- I - PART I - OVERVIEW AND STATEMENT OF FACTS A. Overview l. While many of the general legal principles articulated by both Amnesty International Canada ("Al") and the Canadian Civil Liberties Association ("CCLA") are unobjectionable, their application of these principles in this case confuses Canada's role in the international transfer of offenders and relies on two false premises. Consequently, their submissions provide little assistance to this Court. 2. By definition, the International 7i an~fer <?l Qffenders Act 1 ("JTOA") pertains to offenders who have been sentenced by a foreign entity. Upon an offender's transfer, the role o f the Correctional Service of Canada ("CSC") is to continue enforcement of the sentence in accordance with the laws of Canada. 2 The CSC cannot question the sentence imposcd. 3 The presumption of reduced moral blameworthiness of young offenders, relied on by both intervcners; 1 is a Canadian principle that would apply when a Canadian court is sentencing a young offender in Canada. ln the contex t of an international transter, the foreign entity has already determined the length of the sentence, based upon that state' s own assessment o f the moral blameworthiness of the offender. 3. Both interveners erroneously presume that Canada's obligations under the United Nations Convention on the Rights of the Child (''UNCRC') and other international instruments with respect to children are relevant to the statutory interpretation questions before this Court. 5 State parties to the UNCRC have undertaken to extend rights to each "child.. within their jurisdiction. 6 The respondent was 26 years old when he was transferred. None of the steps taken by Canada with respect to the respondent's transfer occurred when he was a child. When a transfon-ed offender is under 18 years old, s. 20 of 1 International 7i ansfer of Offenders Act, SC 2004, c 2 1 I/TOA I. Book of Authorities of the... Attorney General of Canada [BA AGC], Tab 20. 2 /TOA. s. 13. BA AGC, Tab 20. 3 Affidavit of Chris llill [Hill Affidavit]. para 16. Record of the... Attorney General of Canada [AR], Vol 2. p 63:!TOA, s. 13, subject only to adaptation under ss. 14, 17(1). 4 Factum of the Intervener, The Canadian Civil Liberties Association (CCLA Factum], paras 24, 32; Factum of the Intervener Amnesty International Canada [A I Fae tum], parns 12, 13. 5 CCLA Factum, paras 27, 29. 31: A I Factum, paras 6, 7. I 0, I I. 14, 15. 6 United Nations Co11vention on the Rights of the Child. 20 November 1989. Can TS 1992 No. 3, Arts I, 2(1 ).

- 2 - the!toa ensures placement in a youth custody facility for both youth an adult sentences. 7 Regardless, it is not necessary to engage on the extent to which Canada's international obligations, beyond the specific treaties being implemented by the!toa, assist. Both interveners rely on the UNCRC to support their submissions that ss. 18 and 20 of the!toa must be interpreted to best achieve the goals of rehabilitation and reintegration. These goals are explicit objectives of the!toa. 8 Reference to external materials is superfluous. 4. Both interveners also presume that a penitentiary placement is inherently more.. restrictive than placement in a provincial institution, 9 but there is no evidence on the record to support this presumption. Conversely, the evidence that is on record shows that, if the respondent had been placed in a provincial institution, he would have similarly been subject to a security level assessment, and initial placement in administrative segregation or a provincial maximum security facility would have been a real possibility. 10 Moreover, the evidence clearly shows that the programs available in a penitentiary setting better support the rehabilitation and reintegration of Canadian offenders serving longer sentences. 11 B. Additional Relevant Facts 5. In reply to paragraph 6 of the CCLA s Factum, the determination that the respondent would be placed in a federa l penitentiary upon transfer was evident from the Minister's decision to approve his transfer, from the letter to the respondent advising him how hi s foreign sentence would be administered in Canada, and from the absence of consent from any provincial authority. 6. The Minister's decision to approve the respondent's transfer demonstrates the manner in which the Minister considered Mr. Khadr's circumstances, including Mr. Khadr s rehabilitative needs "in order to ensure safe reintegration into Canada." The Minister approved the transfer because, inter a/ia, he was satisfied that the "Correctional Service of Canada.. could address the Minister's concerns "through appropriate programing 7 /TOA, s. 20. 13A AGC. Tab 20 ~!TOA. s. 3, BA AGC, Tab 20. <> CCLA Factum. para 22; Al Factum. paras 14. 20, 21. 10 Affidavit of Leonard Goueffic, paras 4-14, AR, Vol 2, pp 6-8. 11 Affidavit of Leonard Goueffic. paras 3, 16. 17, AR, Vol 2, pp 6, 9; July 22, 20 14, Watson J.A. Oral Reasons for Decision, paras 8. 9. 14. AR, Vol I. p 64.

- 3 - during incarceration''. 12 The CSC is responsible for the care, custody, and rehabilitation of inmates serving penitentiary sentences. 13 7. Prior to his transfer, the Minister's delegate in the CSC, Ms. Lee Redpath, wrote to advise the respondent how his foreign sentence would be administered in Canada. In her letter, Ms. Redpath explained that "[s]tatutory release is designed to assist federal inmates in making the transition to law-abiding behavior upon their return into the community" and set out how statutory release is calculated when.. a Canadian offender transferred to Canada is detained in a peni tentiary". After reproducing the portion of s. 26 of the!toa that pertains to a Canadian offender detained in a penitentiary, Ms. Redpath informed the respondent that his statutory release would be calculated on this basis. 14 8. The fact that no consent from any province was sought prior to the respondent's transfer also reflected the placement decision. If a Canadian offender would be w1der provincial authority after a transfer, consent or that provincial authority is required. 15 If consent had been sought from Alberta, the evidence is that " [o]ffenders who have been sentenced for murder would not be approved fo r transfer unless a specific exception was approved by the centre director, in consultation wi th the branch executive director." 16 PART II-QUESTIONS IN ISSUE 9. The questions in issue are set out at paragraph 39 of Canada's factum. I 0. The CCLA's submissions regarding the content ot: and compliance with, the duty of procedural fairness rai se a new issue, contrary to this Court's order granting the CCLA leave to intervene. Thi s issue should not be considered. 12 Hill Affidavit, Exh ibit "C", AR, Vol 2, pp 204, 205. 13 Correc1ions and Co11c/i1io11al Release Act. SC 2002. c 20. ss 2( I) "inmate", "offender", "sentence", 3, 5, Supplementary Book of Authorities of the... Attorney General of Canada [S BA AGC], Tab 5. 14 Hill Aflidavit. Exhibit "O''. AR, Vol 2, p 248 [emphasis added). is!toa, s. 9, BA AGC. Tab 20. 16 Affidavit of Leonard Goueffic. para 3, AR. Vol 2, p 6. There is no evidence regarding the process in Ontario, the province to which the respondent was initially transferred.

- 4 - A. Reply to Amnesty International PART III - ARGUMENT 11. The JTOA is the statutory framework implementing treaties with 83 foreign entities. Without the!toa, and the treaties it implements, the repatriation of Canadian offenders serving sentences imposed by foreign states could not be achieved. 12. Canada agrees with Al that one of the objectives of the legislation is essentially humanitarian. In furtherance of the humanitarian objective, the provisions of the!toa directed towards children and "young persons" were explicitly enacted to faci litate their return to Canada. 17 In s. 18 of the!toa, Parliament made a deliberate decision to deem young persons who were 14 to 17 years old when they committed the offence and who received a sentence that is longer than the maximum Canadian youth sentence to be serving an adult sentence. This decision was made to faci litate transfers by increasing the likelihood of a foreign entity agreeing to the transfer. T his, in turn, is in the best interests of Canadian young offenders serving foreign sentences and seeking a transfer to Canada. 13. Ar s submissions provide little assistance to this Court. In applying the!toa to determine the placement of the offender, Canada is not making any assessment of the offender's moral blameworthiness. The sentence, and the moral blameworthiness of the offender, has already been determined by the sentencing state. 18 14. The actions of Canada with respect to the transfer of the respondent under the!toa were al l taken after the respondent was an adult. The UNCRC and related instruments cited by A l are consequently not relevant in this appeal. In any event, rehabilitation and societal reintegration are stated purposes of the!toa. In cases where a minor Canadian offender is transferred. the guarantee of placement in a youth custody facility of all minors to be detained is in conformity with these instruments. 17!TOA ss 3. 4(3). 17-20. BA AGC. Tab 20: House of Commons, Standing Comminee on Justice and Human Rights, Minutes of Proceedings, 37th Parl, 2nd Scss, No 065 (Oct I, 2003) at 1540-1545, 1550-1555, 1605-161 5, 1620-1625, 1645-1650, B/\ AGC. Tab 28. 18 Collerell v Grcmd Valley Peni1e111imy, 2006 CanLI I 12425 (ON SC), para 16, SBA AGC, Tab 2, leave to appeal dismissed 2007 ONCA 397.

- 5-15. Placement in a penitenti ary ts nol necessarily harsher or more restrictive that placement in a provincial correctional faci li ty. for adults. For offenders serving longer sentences, the rehabilitation obj ecti ve of the!toa is better served by placement m a peni tentiary, due to inadequate programming availabl e in provincial facilities. 19 16. Regarding A l" s submission at paragraphs 18 and 20, the CSC' s interpretation of the JTOA full y complies with Canada's treaty obligation to not aggravate the respondent's sentence. T he treaty requires that, "[n]o sentence of confinement shall be enforced by the Receiving State in such a way as to extend its duratio n beyond the date at which it would have terminated according to the sentence of the court of the Sending State." 20 On any interpretation of the!toa, the respondent's sentence expires on October 30, 2018. B. Reply to Canadian Civil Liberties Association 17. The CCLA 's submissions add very little that is different, so the argum ents above are equally responsive to the CCLA. The CCLA's submissions regarding the duty of proced ural fairness is diffe rent, but thi s is a new issue that this Court should not consider. Regardless. the procedure fo llowed was both exactly as required by /TOA and fair. PART IV - SUBMISSIONS CONCERNING COSTS 18. Canada is not seeking costs against the interveners. PARTY-ORDER SOUGHT 19. In addition to the order sought in Canada's factum, Canada requests that the CCLA not be pem1itted to make submissions regarding procedural fairness. Dated this 6 111 day of May, 2015 Sharlene Telles-Langdon Of Counsel for the Attorney General of Canada 19 Supra note I I. The finding that the respondent is serving an adult sentence rather than a youth sentence docs result in a later statutory release date. An impact on his liberty only materializes if the respondent is not granted paro le before August 19, 2015 (the entitlement to re lease date if he is serving a youth sentence). 20 Trea~)' hetween Canada and the United States of America on the Execution of Penal Sentences, Can TS 1978 No 12, Art IV 3, BA AGC, Tab 40. United Nations Office on Drugs and Crime, Handbook on the International Tram/er ofsenlenced Persons (New York: United Nations, 2012) at 52, 53, SBA AGC, Tab 8.

- 6 - PART VI - TABLE OF AUTHORITIES Jurisprudence Cotterell v Grand Valley Penitentimy, 2006 CanLll 12425 (ON SC) Para(s) 13 Statutes International Tran.~fer of Offenders Act, SC 2004, c 2 1 ss 3, 4(3), 9, 13, 14, 17(1), 17-20 Corrections and Conditional Release Act, SC 2002, c 20 s 2( I), 3, 5 2, 3, 7, 11-17 6 Secondary Sources United Nations Convention on the Rights of the Child, 20 November 3, 14 1989, Can TS 1992 No. 3, Arts I, 2(1) House of Commons, Standing Committee on Justice and Human Rights, 12 Minutes of Proceedings, 37th Parl, 2nd Sess, No 065 (Oct I, 2003) at 1540-1545, 1550-1555, 1605-1615, 1620-1625, 1645-1650 Treaty between Canada and the United States of America on the 16 Execution qf Penal Sentences, Can TS 1978 No 12, Art IV 3 United Nations Office on Drugs and Crime, Handbook on the 16 International Tran.~fer of Sentenced Persons (New York: United Nations, 2012)

- 7 - PART VII - LEGISLATIVE PROVISIONS DIRECTLY IN ISSUE A. International Transfer of Offenders Act, SC 2004, c 21, s. 18 18. A Canadian offender is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act if (a) the Canadian offender was, at the time the offence was committed, from 14 to 17 years old: and (b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence. 18. Si le delinquant canadien transfere avait entre quatorze et dix-scpt ans a la date de la commission de!' infraction et si la peine qui Jui a etc imposee est plus longue que la peine specifiq ue maxi male prevue par la Loi sur le systeme de justice penale pour /es adolescents pour!' infraction correspondante, ii est repute purger une peine applicable aux adultes au sens de cette loi. B. International Transfer of Offenders Act, SC 2004, c 21, s. 19 19. ( I) A Canadian offender who was from 14 lo 17 years old at the time the offence was committed, and who was sentenced to imprisonment for li fe for conduct that, if it had occurred in Canada, would have constituted first or second degree murder w ithin the meaning of section 23 1 of the Criminal Code. is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act. They are eligible fo r fu ll parole on the day on whi ch they have served the shorter or (a) the period of ineligi bility imposed by the foreign entity, and (b) either (i) five years, if they were 14 or 15 years old at the time the offence was committed, or (ii) ten years, in the case of first degree murder, or seven years, in the case of second degree murder, if they were 16 or 17 years old at the time the offence was committed. 19. ( I) Le delinquant canadien transfere ayant cntre quatorze et dix-sept ans a la date de la co1nmission de!' infraction qui a donne lieu a sa condarnnation a remprisonnement a perpetuite et qui, commise au Canada, aurait ete qualifiee de meurtre au premier ou au deuxieme degre au sens de!'article 23 1 du Code criminel est repute purger une peine applicable aux adultes au sens de la Loi sur le systeme de justice penale pour /es adolescents et est admissible a la liberation conditionnell e totale apres l' accomplissement de la plus courtc des periodes d'emprisonnement suivantes : a) la periode prealable a son admissibilite qui est applicable a la peine imposee par l'entite etrangere; b) rune des periodes suivantes : (i) cinq ans, s'il etait age de quatorze OU quinze ans a la date de la commission de!' infraction, (ii) dix ans, clans le cas du meurtre au premier degre, ou sept ans, dans le cas du meurtre au dcuxieme degrc, s'il etait age de Seize OU dix-sept ans a la date de la commission de!' infraction.

- 8 - (2) A Canadian offender who was from 14 to 17 years old at the time the offence was committed and who received a sentence for a detenninate period of more than ten years fo r conduct that, if it had occurred in Canada. would have constituted first degree murder withi n the meaning of section 231 of the Criminal Code - or of more than seven years for conduct that, if it had occurred in Canada, would have constituted second degree murder within the meaning of that section - is deemed to have received an adult sentence within the meaning of the Youth Criminal Justice Act. (3) A Canadian offender who was from 14 to 17 years old at the time the offence was committed and who received a sentence fo r a detenninate period of ten years or less for conduct that. if it had occurred in Canada, would have constituted first degree murder within the meaning of section 23 1 of the Criminal Code - or of seven years or less fo r conduct that, if it had occurred in Canada, would have constituted second degree murder within the meaning of that section - is deemed to have received a youth sentence within the meaning of the Youth Criminal Justice Act. (2) Est repute purger une peine applicable aux adultes au sens de la Loi sur le systeme de j ustice penale pour!es adolescents le delinquant canadien transfere qui avait entre quatorze et dix-sept ans a la date de la commission de I' infraction et qui a ete condamne a une peine d ' emprisonnement d' une dun~e determinee superieure soit a dix ans. pour une infraction qui, commise au Canada, aurait ete qualifiee de meurtre au premier degre au sens de I' article 23 1 du Code criminel, soit a sept ans, pour une infraction qui, commise au Canada, aurait ete qualifiee de meurtre au deuxieme degre au sens de cet article. (3) Est repute avoir fait l' objet d'une peine specifique au sens de la Loi sur le systeme de justice penale pour!es adolescents le delinquant canadien transfere qui avait entre quatorze et dix-sept ans a la date de la commission de )' infraction et qui a ete condamne a une peine d'emprisonnement d' une dun~ e determinee egaje OU inferieure soit a dix ans, pour une infraction qui, commise au Canada, aurait ete qualifiee de meurtre au premier degre au sens de I' article 23 1 du Code criminel, soit a sept ans, pour une infraction qui, commise au Canada, aurait ete quali fiee de meurtre au dcuxieme degre au sens de cet article.

- 9 - C. International Transfer of Offenders Act, SC 2004, c 21, s. 20 20. A Canadian offender who was from 12 to 17 years old at the time the offence was committed is to be detained (a) if the sentence imposed in the forei gn entity could, if the offence had been committed in Canada, have been a youth sentence within the meaning of the Youth Criminal Justice Act, (i) in the case of an offender who was less than 20 years old at the time of their transfer, in a youth custody facility within the meaning of that Act, and (ii) in the case of an oftender who was at least 20 years old at the time of their transfer, in a provincial correctional facility for adults; and (b) if the sentence imposed in the foreign entity could, if the offence had been committed in Canada, have been an adult sentence within the meaning of that Act, (i) in the case of an offender who was less than 18 years old at the time of their transfer. in a youth custody facility within the meaning of that Act, (ii ) in the case of an offender who was at least 18 years old at the time of their transfer, in a provincial correctional facility for adults if their sentence is less than two years, and (iii) in the case of an offender who was at least 18 years old at the time of their transfer, in a penitentiary if their sentence is at least two years. 20. Si le delinquant canadien transfere avait entre douze et dix-sept ans a la date de la commission de l' infraction, le lieu de sa detention est determine de la fa9on suivante: a) dans le cas OU la peine qui lui a ete imposee aurait pu, si l' infraction avait ete commise au Canada, etre une peine specifique au sens de la Loi sur le systeme de j ustice penale pour!es adolescents, ii est place : (i) dans un lieu de garde au sens de cette loi s'il est age de moins de vingt ans au moment de son transferement, (ii) dans un etablissement correctionnel provincial pour adultes s' il est alors age de vingt ans ou plus; b) dans le cas OU la peine qui lui a ete imposce aurait pu, si!' infraction avait ete commise au Canada, etre une peine applicable aux adultes au sens de cette loi, ii est place : (i) dans un lieu de garde au sens de cette loi s'il est age de moins de dix-huit ans au moment de son transforement, (ii) dans un etablissement correetionnel provincial pour adultes s' il est alors age de dix-huit ans ou plus et si sa peine d'emprisonnement est de moins de deux ans, (iii) dans un penitencier s' il est alors age de dix-huit ans ou plus et si sa peine d'emprisonnemcnt est d'au moins deux ans.