Court File No. CV-17-576756
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAYNE MORRIS, LIESL MORRIS, TABITHA SPEER in her personal
Capacity and as EXECUTRIX OF THE ESTATE OF CHRISTOPHER SPEER
and on behalf of her minor children, T.S. AND T.S.
Applicants
and

OMAR AHMED KHADR
Respondent

RESPONDENT’S FACTUM

July 12, 2017
Nathan J. Whitling
Beresh Aloneissi O’Neill Hurley O’Keeffe
Millsap
300 MacLean Block
10110 – 107 Street
Edmonton, Alberta T5J 1J4
Phone: (780) 421-4766
Fax: (780) 429-0346
whitling@libertylaw.ca
Counsel for the Respondent
Omar Ahmed Khadr

 1
I. OVERVIEW
1. The Respondent, Omar Ahmed Khadr, does not oppose the relief sought at paragraphs (a) to
(d) of the Applicants’ Notice of Motion.
2. The Respondent opposes the remainder of the relief sought by the Applicants. The
Respondent respectfully submits that the Applicants are not entitled to a Mareva injunction
since they (1) have failed to establish any real risk that the Respondent is hiding or
dissipating his assets, removing them from the jurisdiction, or otherwise dealing with
property so as to defeat future creditors; (2) have failed to provide an undertaking as to
damages; and (3) have failed to establish a strong prima facie case. The Respondent requests
that the Applicants’ request for a Mareva injunction be dismissed with costs.
II. SUMMARY OF FACTS
3. Given the abridged timeframe accorded to the Respondent to prepare these written
submissions, the Respondent here provides only an abbreviated summary of the facts.
Additional facts are examined in the argument section of this Factum. The absence of a
specific response from the Respondent ought not to be interpreted as an acceptance of any of
the facts contained in the Applicants’ Summary of Facts.
4. As is well known, the Respondent was captured by U.S. forces in Afghanistan on July 22,
2002, following a firefight in which he was severely injured, and in which the late SFC
Christopher Speer was killed by a grenade. The Respondent was 15 years old at the time of
these events. The Respondent was given life-saving medical treatment on the battlefield and
later at Bagram Air Base. Over the objection of the Canadian government,1 he was then taken
to the U.S. Naval Base, Guantanamo Bay, Cuba, where he was interrogated for several years
while still a minor, and was then charged before a military commission with certain offences
that did not exist at the time of the conduct alleged.
5. The circumstances of the Respondent’s detention have been examined in several decisions of
the Canadian Courts including in Canada (Prime Minister) v. Khadr, 2010 SCC 3 [Tab 1]
and Canada (Justice) v. Khadr, 2008 SCC 28 [Tab 2]. It has at all times been
1

Affidavit of Amanda Tameling, Exhibits ‘A’ and ‘B’.

 2
uncontroversial that the Respondent, while still a minor, was detained without charge and
without access to a lawyer or his family for years, and was denied of any ability to access the
Courts. In the words of the Court in Abbasi v. Secretary of State for Foreign and
Commonwealth Affairs, [2002] EWCA Civ. 1598, he was in a ‘legal black hole’.
6. By the time of the Supreme Court of Canada’s decision in Canada (Prime Minister) v.
Khadr, 2010 SCC 3 [Tab 1], it had also been established that while he was still a minor in
GTMO, the Respondent was subjected to a sleep deprivation program known as the “frequent
flyer program” in order to make him more amenable and willing to talk. This same treatment
was later found by Military Judge Henley to be “abusive conduct and cruel and inhuman
treatment” in a ruling with respect to another detainee (USA v. Jawad [Tab 3]).
7. The Respondent has previously filed Affidavit evidence before the Supreme Court of Canada
and Federal Court raising specifics as to additional abusive treatment that he suffered at the
hands of U.S. forces. That Affidavit is now included by the Respondent as an exhibit to the
Affidavit of a legal assistant in support of this application.2 To date, the Courts have not
found it necessary to rule upon the truth of these additional allegations of abuse, and it may
be necessary for these allegations to be determined in the context of the Applicants’ future
application to enforce their foreign judgment.
8. In order to secure his eventual release from GTMO, and pursuant to a plea agreement, the
Respondent signed a Stipulation of Fact, a Pre-Trial Agreement, and various other
documents. Following a formal guilty plea before Col. Patrick Parrish, Military Judge, he
was sentenced to 8 years of confinement by GTMO’s Convening Authority, and returned to
Canada approximately 1.5 years later.
9. Following the Respondent’s guilty plea and sentence, the Applicants commenced a civil
lawsuit against the Respondent in the United States District Court, District of Utah. The
Complaint which forms the basis for this lawsuit may be found at Exhibit A to the Affidavit
of Donald J. Winder. The Complaint attaches the Stipulation of Fact, Pre-Trial Agreement,
and transcript of proceedings in GTMO, as Exhibits. The Complaint places specific reliance
2

Affidavit of Amanda Tameling Exhibit ‘C’.

 3
upon the information derived from the abusive interrogations of the Respondent, and cites
that information throughout its factual averments. In essence, the Applicants’ lawsuit
constituted civil enforcement of the military commission convictions in GTMO.
10. Following his return to Canada, the Respondent commenced an appeal of his convictions
before the Court of Military Commission Review in Virginia. That appeal has been
indefinitely stayed by the CMCR and remains outstanding. The Respondent was granted
judicial interim release pending the determination of his appeal in Khadr v Bowden
Institution, 2015 ABQB 261 [Tab 4]. The Respondent remains on bail, and is subject to the
conditions set out in Justice Ross’s most recent bail variation order.3
11. Last week, the Canadian government made a public apology to the Respondent for its
involvement in his prosecution and treatment in GTMO.4
III. ARGUMENT
A. The Test Applicable to Mareva Injunctions
12. The relief sought by the Applicants is, in substance, a Mareva injunction rooted in the
seminal case of Mareva Compania Naviera SA v. International Bulkcarriers SA, [1980] 1 All
E.R. 213. The exceptional nature of this relief was examined by Estey J. in Aetna Financial
Services Limited v. Feigelman et al., [1985] 1 S.C.R. 2 [Tab 5]:
There is still, as in the days of Lister [& Co. v. Stubbs, [1886-90] All E.R. 797], a
profound unfairness in a rule which sees one's assets tied up indefinitely pending trial
of an action which may not succeed, and even if it does succeed, which may result in
an award of far less than the caged assets. The harshness of such an exception to the
general rule is even less acceptable when the defendant is a resident within the
jurisdiction of the court and the assets in question are not being disposed of or moved
out of the country or put beyond the reach of the courts of the country. This subrule or
exception can lead to serious abuse. A plaintiff with an apparent claim, without
ultimate substance, may, by the Mareva exception to the Lister rule, tie up the assets
of the defendant, not for the purpose of their preservation until judgment, but to force,
by litigious blackmail, a settlement on the defendant who, for any one of many
reasons, cannot afford to wait the ultimate vindication after trial.

3
4

Affidavit of Amanda Tameling, Exhibits ‘D’ and ‘E’.
Affidavit of Amanda Tameling, Exhibit ‘G’.

 4
Aetna Financial Services Limited v. Feigelman et al., [1985] 1 S.C.R. 2 at p. 186 [Tab 5].
13. The leading Ontario case respecting the requirements that must be established by an
applicant seeking a Mareva injunction is Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.)
[Tab 6], where MacKinnon A.C.J.O. referred to and adopted the following test from Third
Chandris Shipping Corp. et al. v. Unimarine S.A., [1979] Q.B. 645, [1979] 2 E.R. 972 at
984-85:
(i) The plaintiff should make full and frank disclosure of all matters in his knowledge
which are material for the judge to know.... (ii) The plaintiff should give particulars of
his claim against the defendant, stating the ground of his claim and the amount
thereof, and fairly stating the points made against it by the defendant. (iii) The
plaintiff should give some grounds for believing that the defendants have assets here
.... (iv) The plaintiff should give some grounds for believing that there is risk of the
assets being removed before the judgment or award is satisfied .... (v) The plaintiffs
must ... give an undertaking in damages.
Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.) [Tab 6 at p. 13].
14. Substantially the same test from Chitel has been reiterated in many subsequent cases. In
2057552 Ontario Inc. v. Dick, 2015 ONSC 3182, for example, Perell J. summarized the test
in the following terms:
82 Because procedural law disfavours pre-judgment execution, to obtain a Mareva
injunction, a plaintiff must satisfy the normal criteria for an injunction and also
several additional criteria. For a Mareva injunction, the moving party must establish:
(1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and
(3) that there is a serious risk that the defendant will remove property or dissipate
assets before the judgment. A Mareva injunction should be issued only if it is shown
that the defendant's purpose is to remove his or her assets from the jurisdiction to
avoid judgment. The moving party must also establish that he or she would suffer
irreparable harm if the injunction were not granted and that the balance of
convenience favours granting the injunction. Absent unusual circumstances, the
plaintiff must provide the undertaking as to damages normally required for any
interlocutory injunction.
2057552 Ontario Inc. v. Dick, 2015 ONSC 3182 at para. 82 [Tab 7].
See also: O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67 [Tab 8];
Croatian (Toronto) Credit Union Ltd. v. Vinski, [2010] O.J. No. 700 (S.C.J.) at para.
4 [Tab 9];

 5
Hostman-Steinberg Ltd. v. 2049669 Ont. Inc., [2009] O.J. No. 2380 (S.C.J) at para.
17 [Tab 10].
15. At paragraphs 58-60, the Applicants rely upon SFC Litigation Trust v. Chan, 2017 ONSC
1815 (Div.Ct.), where a majority of the Divisional Court characterized the test from Chitel as
merely setting out “guidelines” which may be potentially be departed from where required by
the interests of justice. On the facts of SFC, the majority chose to relax the requirement of
proof that the respondent has assets within the jurisdiction. Mr. Chan has sought leave to
appeal this decision to the Ontario Court of Appeal, and that application is currently under
reserve.
SFC Litigation Trust v. Chan, 2017 ONSC 1815 (Div.Ct.) [Applicants’ Authorities,
Tab 8].
16. But although one of the requirements from Chitel was treated as a “guideline” in SFC, that
case does not purport to overrule Aetna, Chitel or the many other cases addressing the subject
of Mareva injunctions. Such relief still constitutes a drastic and extraordinary pre-judgment
remedy, and may only be granted in exceptional circumstances, and upon consideration of
the factors set out in Chitel and cases following.
B. The Applicants have not established that the Respondent will hide or dissipate assets
17. As noted above, an applicant for a Mareva injunction is required to establish that that there is
a serious risk that the defendant will remove property or dissipate assets for the purpose of
defeating creditors. In Chitel, MacKinnon A.C.J.O. described this requirement as follows:
The applicant must persuade the court by his material that the defendant is removing
or there is a real risk that he is about to remove his assets from the jurisdiction to
avoid the possibility of a judgment, or that the defendant is otherwise dissipating or
disposing of his assets, in a manner clearly distinct from his usual or ordinary course
of business or living, so as to render the possibility of future tracing of the assets
remote, if not impossible in fact or in law.
Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.) at [Tab 6 at p. 16].
Followed: Croatian (Toronto) Credit Union Ltd. v. Vinski, 2010 ONSC 1197 at para.
6 [Tab 9].
18. In Aetna, Estey J. examined this requirement as follows:

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The overriding consideration qualifying the plaintiff to receive such an order as an
exception to the Lister rule is that the defendant threatens to arrange his assets so as to
defeat his adversary, should that adversary ultimately prevail and obtain judgment, in
any attempt to recover from the defendant on that judgment ...
[…]
In summary, the Ontario Court of Appeal recognized Lister as the general rule, and
Mareva as a "limited exception" to it, the exceptional injunction being available only
where there is a real risk that the defendant will remove his assets from the
jurisdiction or dissipate those assets to avoid the possibility of a judgment.
Aetna Financial Services Limited v. Feigelman et al., [1985] 1 S.C.R. 2 at paras. 2530 [Tab 5].
19. Estey J. in Aetna also emphasized that in Canada, the requirement of proof that the defendant
will remove assets “from the jurisdiction”, refers to the removal of assets from Canada, not
the province where the application is sought.
Aetna Financial Services Limited v. Feigelman et al., [1985] 1 S.C.R. 2 at paras. 4143 [Tab 5].
20. As the above authorities confirm, the onus is upon the applicant to prove – with actual
evidence – that there is a “real risk” that the defendant will act to avoid the possibility of
judgment by hiding or dissipating assets. As Cullity J. stated in 663309 Ontario Inc. v.
Bauman, [2000] O.J. No. 2674 (S.C.J.), it is insufficient for an applicant to raise a mere
possibility that the defendant will hide or dissipate assets, since such possibilities exist in
every case.
663309 Ontario Inc. v. Bauman, [2000] O.J. No. 2674 (S.C.J.) at para. 42 [Tab 11].
21. As the above authorities also confirm, transactions entered into “in the ordinary course of
business” will not meet this requirement. Even where it is proven that the respondent has
removed assets from Canada, this requirement will not be satisfied where the removal
occurred in the ordinary course of business. (In any event, there is no reason to believe that
the Applicant has removed any assets from Canada.)

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DeMenza v. Richardson Greenshields of Canada Ltd. (1989), 74 O.R. (2d) 172 (Div.
Ct.) (defendant selling home and moving to Maryland) [Tab 12, p. 4];
Croatian (Toronto) Credit Union Ltd. v. Vinski, 2010 ONSC 1197 at paras. 6-8
(assets moved to Croatia in ordinary course of business) [Tab 9];
Cope v. Skyvision Exploration Corp., 2010 ONSC 994 at paras. 17-18 (removal of
aircraft to India for use in ordinary course of geological survey business) [Tab 13].
C. The Applicants have not established that the Respondent is hiding or dissipating assets
for the purpose of defeating creditors
22. In their Notice of Motion at pp. 6-7, the Applicants plead that “there is a real risk that the
Respondent will dissipate his assets or otherwise deal with those assets in a manner that
renders it impossible for the Applicants to enforce any judgment obtained in this
proceeding”. The scant evidence offered in support of this pleading consists of double and
triple hearsay statements drawn from media reports and Wikipedia.
23. Although r. 39.01(4) provides that hearsay may be admitted on a motion, the hearsay now
relied upon by the Applicants is so vague and unreliable as to be of zero probative value. The
key evidence relied upon by the Applicants in support of this motion consists of the
following paragraph from a news report one the Globe and Mail’s website:
A legal attempt to force the government to take the compensation back from Mr.
Khadr would likely be difficult. One source told The Globe that the money has been
legally sheltered to prevent Ms. Speer’s lawyers from gaining access.
24. The problems inherent in relying upon media sources as evidence in judicial proceedings
were examined by Lord Reid in Attorney-General v. Times Newspapers Ltd., [1974] A.C.
273, a contempt of court case, at p. 300:
Responsible "mass media" will do their best to be fair, but there will also be illinformed, slapdash or prejudiced attempts to influence the public. If people are led to
think that it is easy to find the truth, disrespect for the processes of the law could
follow, and, if mass media are allowed to judge, unpopular people and unpopular
causes will fare very badly.

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Attorney-General v. Times Newspapers Ltd., [1974] A.C. 273 at p. 300 [Not
Reproduced];
Quoted in Retail, Wholesale and Department Store Union v. Saskatchewan, [1987] 1
S.C.R. 460 at para. 63 [Tab 14].
25. Citing the above authority, Wilson J. (dissenting) in Retail, Wholesale and Department Store
Union v. Saskatchewan, [1987] 1 S.C.R. 460 [Tab 14] stated that “it is because of their
inherent frailties as hearsay evidence that newspaper clippings are not admissible in civil or
criminal proceedings in England or in this country.” Dickson C.J. for the majority, found the
newspaper articles at issue to be admissible “in the peculiar circumstances of this case” since
the information contained in the articles had been “accepted by both parties”.
Retail, Wholesale and Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460
at paras. 61-62 (Wilson J. dissenting), and para. 32 (Dickson C.J., majority) [Tab 14].
26. The Respondent offers the following comments on the statement from the news article now
relied upon by the Applicants:
(1) it is at least double hearsay since it is presented by an affiant who in turn quotes reporters
who in turn state that they were told the information by “[o]ne source”;
(2) the reporters’ “one source” is anonymous in that his or her identity is intentionally
withheld by the reporters;
(3) since the basis for the source’s own information is not disclosed, the Court cannot assess
the credibility or reliability of the information, and cannot even determine whether the
source’s own information constitutes hearsay, double hearsay, lies, or speculation; and
(4) the statement is devoid of any detail or other explanation as to the manner in which the
respondent’s property has supposedly been “legally sheltered”.
In short, the news line relied upon by the Applicants is not capable of proving anything,
much less that the Respondent is hiding or dissipating assets in an attempt to defeat
prospective creditors.

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27. Counsel for the Respondent has sent an email to the reporters of the Globe and Mail article
asking that they ask their anonymous source to contact the Respondent’s counsel. At the time
of the filing of these materials, no response to that inquiry been received.5
28. The Applicants also rely upon the fact that the Respondent and his counsel have declined to
answer various questions put to them regarding the state of the Respondent’s financial
affairs. In other words, they rely upon silence in support of their claims. But the onus of
proof on this application lies on the Applicants, not the Respondent. The Applicants have no
right to examine the Respondent on his assets or other financial affairs. Given the absence of
any evidence from the Applicants respecting any manner of nefarious activity by the
Respondent, there is nothing for the Respondent to respond to, and no adverse inference
should be drawn from the fact that the Respondent apparently wishes to keep his private
affairs private.
29. In any event, an adverse inference does not constitute evidence capable of discharging the
Applicants’ burden of proof. As Wagner J. recently stated in Benhaim v. St-Germain, [2016]
2 S.C.R. 352: “[A]n approach that triggers an adverse inference on the basis of scarce
evidence has the same effect as reversing the burden of proof, and should generally be
avoided”.
Benhaim v. St-Germain, [2016] 2 S.C.R. 352 at para. 68 [Tab 15].
Quoting: Khoury, Lara. Uncertain Causation in Medical Liability. Cowansville, Qué.:
Yvon Blais, 2006 at p. 226 [Not reproduced].
30. Secondarily, the Applicants argue that the Respondent has relatives who are bad people, and
rely upon various news reports and Wikipedia pages in support of this characterization. The
Applicants also accuse the Respondent of stating publicly that he may choose to maintain a
relationship with his mother. But even presuming the dubious hearsay contained in the
Applicants’ materials to be true, it lends no support whatsoever to the Applicants’ bald
assertion that there exists a real risk that the Respondent will dissipate or hide his assets in
order to defeat creditors. This “evidence” is not even relevant to the point at issue, much less
does it rise to the level of convincing proof.
5

Affidavit of Amanda Tameling, Exhibit ‘F’.

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31. Since the Applicants have failed to establish that the Respondent has or will be hiding or
dissipating assets, this application ought to be dismissed.
D. The Applicants have declined to provide any undertaking as to damages
32. The requirement for an undertaking applies to all applications for injunctions, including, but
not limited to, Mareva injunctions. In addition to the cases cited above, this requirement is
contained in r. 40.03:
UNDERTAKING
40.03 On a motion for an interlocutory injunction or mandatory order, the moving
party shall, unless the court orders otherwise, undertake to abide by any order
concerning damages that the court may make if it ultimately appears that the granting
of the order has caused damage to the responding party for which the moving party
ought to compensate the responding party.
33. The Applicants have declined to provide the Court with the undertaking required by r. 40.03,
and have instead asked this Court to dispense with this requirement. This Court should
decline to do so. The Applicants reside outside of Canada and there is no evidence that they
have any assets in Canada, or for that matter, anywhere else. Nor are there any special
circumstances in the present case that would justify a departure from this requirement.
34. In Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 300
[Tab 16], van Rensburg J.A. (In Chambers) found no error in a chambers judge’s decision to
dispense with the usual undertaking as to damages since the Mareva injunction in that case
was sought by a Receiver in discharge of a public duty which had been imposed upon the
Receiver by a previous receivership order. Under these circumstances, the Receiver was not
acting in its own personal interests, and it was appropriate to dispense with the usual
requirement that the Receiver provide an undertaking as to damages in its own name.
Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA
300 at para. 25 [Tab 16].
35. But although the Applicants in the present case seek the appointment of a Receiver, this
motion has not been brought by a Receiver in discharge of any public duty. Rather, this

 11
motion is brought by private persons in furtherance of their own private interests. There is no
reason why the Applicants should be relieved from the usual requirement that they provide
an undertaking as to damages. Indeed, the fact that they reside outside of the country and
have no known assets within the jurisdiction heightens the need for such an undertaking.
36. The Applicants argue at paragraph 102 that the Respondent would suffer no prejudice as a
result of all of his property being frozen. With respect, that argument is unsound. An inability
to deal with one’s personal property constitutes prejudice. The introduction of a Receiver
does not alleviate the prejudice that is inherent in every Mareva injunction. Parties seeking
this exceptional and drastic relief prior to obtaining a judgment must be prepared to provide
an undertaking as to damages.
37. Given the Applicants’ non-compliance with r. 40.03 and the case law which requires the
provision of an undertaking as to damages, this application ought to be dismissed.
E. The requirement of a strong prima facie case on the merits
38. An applicant seeking the extraordinary remedy of a Mareva injunction must establish a
“strong prima facie case”. As MacKinnon A.C.J.O. stated in Chitel: “Whatever the test may
be regarding the granting of interlocutory injunctions generally, in my view, the granting of a
Mareva injunction, under special and limited circumstances, requires that the applicant
establish a strong prima facie case.”
Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.) [Tab 6 at p. 8].
39. In Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and
Technology, [2003] O.J. No. 40 (S.C.J.) [Tab 17], Justice Molloy emphasized that on
applications for a Mareva injunction, the standard applicable to the merits of the applicant’s
case exceeds that applicable to other types of injunctions:
[16] A Mareva injunction does not require the plaintiff to show any ownership
interest in the property subject to the injunction and does not require the plaintiff to
establish a case of fraud or theft. It is a recognized exception to the rule established in
Lister v. Stubbs (1890), 45 Ch. D. 1 that the court has no jurisdiction to attach the
assets of a debtor for the protection of a creditor prior to the creditor obtaining

 12
judgment. Because of the exceptional nature of the relief, the test on the merits for
obtaining a Mareva injunction is more onerous than for other injunctive relief and
requires that the plaintiff establish a strong prima facie case: Chitel v. Rothbart
(1983), 1982 CanLII 1956 (ON CA), 39 O.R. (2d) 513 at 522 and 532 (C.A.). In
addition to the other requirements for an injunction, the plaintiff must show that the
defendant is taking steps to put his assets out of the reach of creditors, either by
removing them from the jurisdiction of the court or by dissipating or disposing of
them other than in the normal course of business or living: Chitel v.Rothbart at p.
532-533.
Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and
Technology, [2003] O.J. No. 40 (S.C.J.) at para. 16 [Tab 17].
Adopted: Trade Capital Finance Corp. v. Cook, 2017 ONSC 1857 at para. 16 [Tab
18].
40. Many subsequent cases confirm that a “strong prima facie case” is one where the party
seeking a Mareva injunction has shown that it is “almost certain to succeed at trial”.
RBC Dexia Investor Services Trust v. Goran Capital Inc., 2016 ONSC 1138 at para.
11 [Tab 19];
MFC Structures Ltd. v. Mady Collier Centre Ltd., 2015 ONSC at para. 25 [Tab 20];
A.C. v. L.C., 2013 ONSC 7827 at para. 10 [Tab 21];
Beca v. Spork, [2009] O.J. No. 1754 (S.C.J.) at para. 10 [Tab 22];
SLMsoft.com Inc. v. Rampart Securities Inc. (Trustee of), [2004] O.J. No. 3290
(S.C.J.) at para. 14 [Tab 23].
41. At paragraphs 58 to 63, the Applicants argue that since the Court in SFC held that the
traditional requirements in Chitel are merely “guidelines” rather than immutable
requirements, this Court ought to discard the standard from Chitel and instead apply the
relaxed requirement of “a serious question to be tried”. But there is no case which suggests
that the standard applicable to a Mareva injunction is a serious question to be tried. Again,
SFC does not purport to overrule Aetna, Chitel, and the many other cases recognizing the
requirement of a “strong prima facie case”.
F. The Utah Lawsuit
42. The Applicants’ have not demonstrated that their application to enforce the Utah judgment
constitutes a strong prima facie case.

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43. The Respondent here refers this Court to the “Complaint” (the equivalent of a Statement of
Claim) underlying the Utah judgment which is set out at Tab 2, Exhibit A, of the Applicants’
materials, being the Affidavit of Donald J. Winder. The Respondent refers to the Complaint’s
factual allegations at paragraphs 7 to 48. The Applicant refers to all of the Exhibits that are
attached to, and forming part of the Complaint.
44. As the contents of the Complaint confirm, the Applicants’ Utah lawsuit constituted little
more than the civil enforcement of the Respondent’s convictions at GTMO. All of the
pleaded facts pertaining to the Respondent are derived from the pleadings from the GTMO
prosecution. The legal basis for the claim is the Respondent’s guilty plea in GTMO. The
private lawsuit and the GTMO prosecution are “joined at the hip”.
45. In short, both the Complaint and the default judgment derived from it are the product of, and
inseparable from, the Respondent’s detention, interrogations, and convictions in GTMO.
46. The Applicants will undoubtedly ask this Court to pretend that their Utah judgment is
entirely independent from the GTMO prosecution, and has nothing to do with the cruel and
inhuman treatment inflicted upon the Respondent during his 12 years in that place. But even
a cursory review of the Applicants’ Complaint refutes that contention.
G. The Defence of Public Policy
47. The Reciprocal Enforcement of Judgments Act states:
3. No judgment shall be ordered to be registered under this Act if it is shown to the
registering court that,
[…]
(f) the judgment was in respect of a cause of action which for reasons of public
policy or for some other similar reason would not have been entertained by the
registering court;
48. The defence created by s. 3(f) above was examined in Beals v. Saldanha, 2003 SCC 72 as
follows:
The Defence of Public Policy

 14

71 The third and final defence is that of public policy. This defence prevents the
enforcement of a foreign judgment which is contrary to the Canadian concept of
justice. The public policy defence turns on whether the foreign law is contrary to our
view of basic morality. As stated in Castel and Walker, supra, at p. 14-28:
... the traditional public policy defence appears to be directed at the concept of
repugnant laws and not repugnant facts... .
72 How is this defence of assistance to a defendant seeking to block the enforcement
of a foreign judgment? It would, for example, prohibit the enforcement of a foreign
judgment that is founded on a law contrary to the fundamental morality of the
Canadian legal system…
Beals v. Saldanha, 2003 SCC 72 at paras. 71-72 [Applicant’s Authorities, Tab 9].
H. The Applicants have not established that they are almost certain to succeed in enforcing
a civil judgment derived from the Respondent’s arbitrary detention, abusive treatment,
and resulting convictions in GTMO
49. Admittedly, the defence of public policy will only succeed in rare cases. The types of garden
variety lawsuits addressed in the vast majority of reciprocal enforcement cases do not engage
the sort of high-level policy concerns encompassed by this defence.
50. But this is a rare case.
51. Officials at the highest levels of the Canadian government have already stated – as early as
the Respondent’s initial capture and as recently as last week – that the Respondent’s
detention and prosecution in GTMO offended our most basic values and principles.
52. Even before the Respondent’s transfer to GTMO, by a diplomatic note dated September 13,
2002, the Government of Canada expressed its view to the Government of the United States
that the transfer of a 15-year old to Guantanamo would be contrary to Canada’s laws and
policies:
The Embassy of Canada would further urge the American authorities to consider the
fact that Mr. Omar Khadr, at the time the events in question took place, was less than
sixteen years of age. Under various laws of Canada and the United States, such an age
provides for special treatment of such persons with respect to legal or judicial

 15
processes. As such, the Government of Canada believes that it would be inappropriate
for Mr. Omar Khadr to be transferred to the detention facilities at the American naval
base at Guantanamo Bay, Cuba. From the information that is available to the
Government of Canada, such a facility would not be an appropriate place for Mr.
Omar Khadr to be detained.
Canadian Embassy, Diplomatic Note No. 0293 dated September 13, 2002.6
53. The Government of the United States ignored the above objection and transferred the
Respondent to GTMO the following month.
54. The Supreme Court of Canada has already held – twice – that the Respondent’s detention,
interrogation, and prosecution in GTMO violated international law and the principles of
fundamental justice.
55. In Canada (Justice) v. Khadr, 2008 SCC 28, the Court held that the circumstances of the
Respondent’s detention in GTMO constituted a violation of international law, including the
Geneva Conventions.
Canada (Justice) v. Khadr, 2008 SCC 28 at paras. 20-27 [Tab 2].
56. In Canada (Prime Minister) v. Khadr, 2010 SCC 3, the Court held that the same
interrogation process that created the factual averments and exhibits in the Applicants’
Complaint “offends the most basic Canadian standards about the treatment of detained youth
suspects.”
Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paras. 25 [Tab 1].
57. Many other Canadian Courts have also found the Respondent’s treatment in GTMO to have
been unacceptable from a public policy perspective.
58. In Khadr v. Canada, 2005 FC 1076, Justice Von Finckenstein issued an interim injunction
prohibiting any officials of the government of Canada from participating in further
interrogations of the Respondent in GTMO finding that the detention conditions,
interrogation techniques and rules of evidence employed at GTMO “do not comply with

6

Affidavit of Amanda Tameling, Exhibi ‘B’.

 16
Charter standards”, and on the basis that “the present case is one of these rare exceptional
cases where granting an injunction is required to prevent a potential grave injustice”.
Khadr v. Canada, 2005 FC 1076 at para. 25 [Tab 24].
59. A few years later, in Khadr v. Canada (Attorney General), 2008 FC 807, Justice Mosley
found that the infliction of the “frequent flyer program” upon the Respondent by U.S.
officials constituted a violation of the Geneva Conventions, 1949 and the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
Khadr v. Canada (Attorney General), 2008 FC 807 at paras. 85-89 [Tab 25].
60. In the aftermath of the Supreme Court of Canada’s second decision of 2010, the Government
of Canada sought formal assurances from the Government of the United States that the
statements extracted from the Respondent by Canadian officials in GTMO would not be used
against him in the GTMO prosecution. In Khadr v. Canada (Prime Minister), 2010 FC 715,
Justice Zinn found that the United States chose to ignore that request, and used those
statements against the Respondent anyway.
Khadr v. Canada (Prime Minister), 2010 FC 715 at para. 85 [Tab 26].
61. The above conclusions of the Courts of this country are strongly supported by an abundance
of international precedent. For example, approximately 10 years after the Respondent’s
initial

detention,

Radhika Coomaraswamy,

the U.N. Secretary-General’s Special

Representative for Children and Armed Conflict raised a public objection to the prosecution
of the Respondent and called for his repatriation to Canada. These objections were ignored
by the United States.
62. In the matter of Hicks v. Australia, the Human Rights Committee of the United Nations
found that Australia had violated Article 9(1) of the International Covenant of Civil and
Political Rights by permitting the enforcement of a sentence imposed upon another GTMO
detainee, David Hicks, following his repatriation to Australia. Similarly, the Applicants now

 17
seek to enforce the Respondent’s guilty plea and conviction in GTMO, albeit by way of a
civil damages award as opposed to imprisonment.
63. Of course, the public policy issues raised by the Applicants’ claim to enforce their foreign
judgment cannot be fully litigated in the context of this preliminary application, and the
authorities referred to above constitute a small sampling of the international condemnation of
the Respondent’s prosecution in GTMO. But in light of these authorities, it cannot be said
that the Applicants’ claim is “almost certain to succeed at trial”. Rather, it may fairly be said
that the Applicants will have an “uphill battle”.
64. The Applicants have not established that they have a strong prima facie case for the
enforcement of their foreign judgment. Rather, the precedents addressing the same
prosecution upon which the Applicants’ judgment is founded support a strong prima facie
case in support of the position that the enforcement of the foreign judgment would be
contrary to public policy. For this reason too, this application ought to be dismissed.
IV. ORDER SOUGHT
65. The Applicants have led no evidence capable of supporting the conclusion that the
Respondent has done or intends to do anything to hide or dissipate his assets for the purpose
of defeating creditors. They have not provided the undertaking as to damages required by r.
40.03 and the applicable case law. And they have not established a strong prima facie case.
For all and any of these reasons, the Respondent requests that this motion be dismissed with
respect to all items of relief other than items (a) to (d) of the Applicants’ Notice of Motion,
with costs payable to the Respondent.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 12th day of July, 2017.

______________________________
Nathan J. Whitling
Counsel for the Respondent
Omar Ahmed Khadr

 18
Table of Authorities
1. Canada (Prime Minister) v. Khadr, 2010 SCC 3.
2. Canada (Justice) v. Khadr, 2008 SCC 28.
3. United States of America v. Jawad.
4. Khadr v Bowden Institution, 2015 ABQB 261.
5. Aetna Financial Services Limited v. Feigelman et al., [1985] 1 S.C.R. 2.
6. Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.).
7. 2057552 Ontario Inc. v. Dick, 2015 ONSC 3182.
8. O2 Electronics Inc. v. Sualim, 2014 ONSC 5050.
9. Croatian (Toronto) Credit Union Ltd. v. Vinski, [2010] O.J. No. 700 (S.C.J.).
10. Hostman-Steinberg Ltd. v. 2049669 Ont. Inc., [2009] O.J. No. 2380 (S.C.J).
11. 663309 Ontario Inc. v. Bauman, [2000] O.J. No. 2674 (S.C.J.).
12. DeMenza v. Richardson Greenshields of Canada Ltd. (1989), 74 O.R. (2d) 172 (Div. Ct.).
13. Cope v. Skyvision Exploration Corp., 2010 ONSC 994.
14. Retail, Wholesale and Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460.
15. Benhaim v. St-Germain, [2016] 2 S.C.R. 352.
16. Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 300.
17. Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology,
[2003] O.J. No. 40 (S.C.J.).
18. Trade Capital Finance Corp. v. Cook, 2017 ONSC 1857.
19. RBC Dexia Investor Services Trust v. Goran Capital Inc., 2016 ONSC 1138.
20. MFC Structures Ltd. v. Mady Collier Centre Ltd., 2015 ONSC.
21. A.C. v. L.C., 2013 ONSC 7827.
22. Beca v. Spork, [2009] O.J. No. 1754 (S.C.J.).
23. SLMsoft.com Inc. v. Rampart Securities Inc. (Trustee of), [2004] O.J. No. 3290 (S.C.J.).
24. Khadr v. Canada, 2005 FC 1076.
25. Khadr v. Canada (Attorney General), 2008 FC 807.
26. Khadr v. Canada (Prime Minister), 2010 FC 715.