Abou-Elmaati v Canada (Attorney General), 2016 ONSC 6075

Court File and Parties

Court File No.: 06-CV-308130PD3 Date: 2016-09-27 Ontario Superior Court of Justice

Between:

AHMAD ABOU-ELMAATI, BADR ABOU-ELMAATI, SAMIRA AL-SHALLASH and RASHA ABOU-ELMAATI, Plaintiffs – and – THE ATTORNEY GENERAL OF CANADA, JOHN DOE and JANE DOE, Defendants

Counsel: M. Philip Tunley, Andrea Gonsalves, and Tiffany O’Hearn Davies for the Plaintiffs Barney Brucker and Helen Gray for the Defendants

Heard: September 13 and 14, 2016

Perell, J.

Reasons for Decision

A. Background to the Refusals Motion

1This is a refusals motion with respect to the examinations for discovery of the Defendant, the Attorney General of Canada (“AGC”). The refused questions and the court’s disposition are set out in the Charts found later in this decision.

2The Plaintiffs, Ahmad Abou-Elmaati, Abdullah Almalki, and Muayyed Nureddin, who are Canadian citizens, were the victims of brutal torture and other deeply disturbing human rights violations while in the custody of foreign governments. They allege that the Canadian government put them in harm’s way and was complicit and responsible for their horrific experience and for failing to come to their aid and rescue. They submit that they were defamed by allegations that they were terrorists.

3In 2006, Mr. Abou-Elmaati and members of his family commenced an action against Canada, and claimed, among other things, compensatory damages for breaches of Mr. Abou-Elmaati’s rights under the Canadian Charter of Rights and Freedoms. Mr. Almalki and Mr. Nureddin and their families also commenced similar actions; Almalki v. Attorney General of Canada, 06-CV-035416 and Nureddin v. Attorney General of Canada, 04-CV-270558 CM1. The parties have agreed that the result in this motion will apply to all three actions.

4The Plaintiffs seek answers to the questions taken under advisement and refused at the examinations for discovery of the AGC’s representatives and witnesses.

5It is no exaggeration to say the production of documents and examinations for discovery in these three actions have presented enormous problems in getting to the truth of what happened to the Plaintiffs.

6In the actions brought by Messrs. Abou-Elmaati, Nureddin, and Almalki respectively, Canada has asserted that certain relevant documents, if disclosed, would reveal “potentially injurious information” or “sensitive information,” as those terms are defined in s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Canada gave notice under s. 38.01 of the Act that it would not disclose the documents on grounds of national security.

7After Messrs. Abou-Elmaati, Nureddin, and Almalki challenged the claims of privilege, Canada commenced two applications in the Federal Court pursuant to s. 38.04 of the Canada Evidence Act (file numbers DES-1-10 and DES-1-11). The purpose of these proceedings in the Federal Court was to determine what information Canada must disclose in the Abou-Elmaati, Nureddin and Almalki actions.

8Application DES-1-10 has been determined. The decision in application DES-1-11 is pending. DES-1-10 and DES-1-11 involved both public and in camera hearings pursuant to s. 38.11 of the Canada Evidence Act. In both Federal Court applications, by Order dated September 19, 2011, Justice Mosley appointed amici curiae to represent the interests of Messrs. Abou-Elmaati, Nureddin, and Almalki, who were permitted to attend the public hearings but who were not permitted to attend the in camera hearings. The Appointment Order provides that the amici act as if they were in camera counsel.

9The Appointment Order prohibits the amici from communicating with Messrs. Abou-Elmaati, Nureddin, and Almalki without leave of the Federal Court.

10There is a Discovery Plan in force in all three actions in the Superior Court. Among other things, the Discovery Plan requires the parties to exchange synopses of the anticipated evidence of non-expert witnesses whom the parties intend to call at trial. As required by the Discovery Plan, the parties have exchanged witness synopses, and Canada provided synopses of the anticipated trial evidence of 23 named officials, primarily associated with the Royal Canadian Mounted Police and the Department of Foreign Affairs and International Trade (“DFAIT”), as well as 10 officials associated with the Canadian Security and Intelligence Service (“CSIS”), who are identified only by pseudonyms.

11If this were not complicated enough, the three cases are factually similar to the high profile case involving Maher Arar. In September 2006, Associate Chief Justice O’Connor released a report with respect to Mr. Arar. See Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Ottawa: Public Works and Government Services Canada, 2006) (the “O’Connor Report”).

12In 2006, after the commencement of the Almalki and Abou-Elmaati actions, Canada commissioned the Honourable Frank Iacobucci, Q.C. to conduct an internal inquiry. In October 2008, Commissioner Iacobucci released his inquiry report. See Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Ottawa: Public Works and Government Services Canada, 2008) (the “Iacobucci Report”).

13It is worth noting that Commissioner Iacobucci’s inquiry, like that of Commissioner O’Connor, was an inquiry into the actions of Canada’s officials. These inquiries investigated how it was that Canadian citizens with connections to Middle East countries came to be detained and tortured by foreign governments and what Canada’s role was in their captivity and release.

14It turns out that as a factual matter, there are some connections between what happened to Mr. Arar and what happened to Messrs. Almalki, Abou-Elmaati, and Nureddin.

15The testimony and the documents collected and presented to Commissioners O’Connor and Iacobucci are obviously relevant to both the claim and the defence in Messrs. Almalki, Abou-Elmaati, and Nureddin’s actions, and it was part of the Discovery Plan that portions of the transcripts of evidence given at the Arar Inquiry and the Internal Iacobucci Inquiry be produced for the three actions.

16Further, the Supplementary Discovery Plan at paragraph 14 required the AGC to produce excerpts of the transcripts of government witnesses who testified in camera at the Arar Inquiry that were adopted by those witnesses for the purposes of the Internal Iacobucci Inquiry.

17With respect to those questions taken under advisement and refused because the answer may engage national security concerns under s. 38 of the Canada Evidence Act, the Plaintiffs request an Order that the AGC deliver to them answers to those questions within 30 days of the release of the Federal Court’s decision in DES-1-11 unless, in accordance with that decision, the answer may not be disclosed.

18Pursuant to the Minutes of Settlement entered into by the parties in 2009 and agreements between the parties, counsel for the Plaintiffs examined a representative of each of DFAIT, the RCMP, and CSIS and the individual defendants against whom one or more of the actions were discontinued in accordance with the Minutes of Settlement.

19Examinations for discovery of AGC representatives and witnesses began on May 6, 2015.

20By agreement of the parties in the fall of 2015, the Plaintiffs also examined Keir MacQuarrie and Scott Heatherington in the Abou-Elmaati and Almalki actions. Examinations of two CSIS individual defendants, and the completion of the examination of the CSIS representative, have been deferred until release of the decision in DES-1-11.

21This first round of AGC Examinations was completed on April 21, 2016. The Plaintiffs also delivered written discovery questions to AGC counsel, which were marked as an exhibit to the examination of the RCMP representative, Michel Cabana, on April 20, 2016.

22AGC offered to produce Mr. Cabana for further examination. However, the offer was limited on condition of the questioning being referable to the Nureddin case or matters arising on or after February 4, 2003, which was Mr. Cabana’s last day as officer-in-charge of Project A-O- Canada.

23The AGC has produced over 13,000 documents as well as over 6,800 pages of Iacobucci Inquiry transcripts and over 3,800 pages of Arar Inquiry transcripts.

24With very limited qualification, all of the individual witnesses discovered in these actions adopted their prior inquiry testimony.

25The Plaintiffs have had discovery of sixteen AGC witnesses over 29 days, resulting in over 6,700 pages of civil discovery transcript evidence; adding to this the 48 days’ worth of public and in camera inquiry testimony adopted by Crown witnesses for the purpose of civil discovery, the Plaintiffs have had 77 days of discovery of Crown witnesses. In addition, the AGC has delivered answers to hundreds of undertakings and advisements given on the examinations of AGC witnesses.

26Amongst the questions that the AGC refused to answer was a request that it adopt as its own evidence, the transcript evidence that it produced in accordance with the Supplementary Discovery Plan of certain witnesses who testified at the Arar or Iacobucci Inquiries.

27It is to be noted that these witnesses, a few of them whom are now deceased, were never parties to the litigation and thus their direct evidence would not normally have been available as part of the discovery process save for an order under rule 30.01 of the Rules of Civil Procedure (discovery of non-parties with leave).

B. Analysis and Discussion

28There are a variety of grounds upon which it is proper for a deponent to refuse to answer a question at a cross-examination. In several cases, I have identified and categorized eight grounds or reasons for properly refusing to answer a question, one of which is a ground particular to class actions. See: CIBC v. Deloitte & Touche, 2013 ONSC 917; 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2012 ONSC 6549; Axiom Plastics Inc. v. E.O. Dupont Canada, 2011 ONSC 4510. The categorization scheme is also pertinent to deciding the refusals motion now before the court. Thus, the categorical justifications for refusals are:

(1) unanswerable - the question is not capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, beyond the scope of the examination, speculative, unfair, oppressive, or a matter of rhetoric or argument;

(2) immaterial - the question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue;

(3) irrelevant - the question is not relevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact;

(4) untimely - the question is not relevant because it concerns events or matters temporally unconnected to a cause of action or defence;

(5) idiosyncratic or uncommon – in an action under the Class Proceedings Act, 1992, the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial;

(6) answered – the question or the documents relevant to the question have already been provided by the party being examined;

(7) disproportionate - the question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and

(8) privileged – the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, or the privilege for communications in furtherance of settlement.

29On this refusals motion, the AGC’s position was that all of the refusals were justified on the grounds of proportionality. The AGC submitted that the Plaintiffs have had ample discovery such that answers to the items refused will provide little, if any, additional information of any probative value.

30I disagree with the AGC’s global quantitative approach to proportionality. It is true that there has been a considerable amount of oral and documentary discovery along with the rare instance of a considerable volume of evidentiary material from two Commissions of Inquiry, but, nevertheless, in the immediate case, the refusals to provide additional evidence must still be analyzed on an individual basis.

31In the context of pre-trial discovery, the notion of proportionality is, at its heart, a qualitative analysis about whether the amount of evidence has reached a point of diminishing returns in the pursuit of truth.

32I, therefore, will consider each of the questions discretely to determine whether or not the question should be answered.

33Before completing the charts below, I shall begin the analysis with the questions in Chart B. This Chart gathers together a group of questions that request the AGC to adopt, correct, or clarify the evidence that non-parties gave at the Commissions of Inquiry before Commissioners O’Connor or Iacobucci.

34While I shall analyze each of the questions of Chart B discretely, generally speaking, I regard these questions as unfair. As noted by the AGC, it is being asked to adopt, correct, or clarify the evidence of witnesses – non-parties to the immediate litigation. Having, in effect, obtained an answer from the AGC about the evidence that these persons might give, the AGC is being asked to confirm or adopt the evidence as its own. There is no obligation on it to do so, and in my opinion to ask it to do so is unfair. (Unfairness falls within the unanswerable category of justifiable refusals.)

35Turning to the questions in Chart C, the questions are requests for the production of transcripts of in camera testimony given at the O’Connor Inquiry. With respect to these questions the AGC joins its proportionality objection with an argument that the extent to which transcripts from Commissioner O’Connor’s Inquiry should be produced was settled by the Discovery Plan and after the AGC complied, this matter should not be revisited.

36Once again, I shall not approach proportionality on a global basis and I shall discretely analyze each question to determine whether there is a justification for the AGC’s refusal. That said, the fact that the Plaintiffs’ questions in Chart C may have gone beyond the scope of the Discovery Plan is not a reason to refuse to answer the questions. A discovery plan is still a plan and plans can be changed and amended as an action develops.

37With these background observations, I make the orders as set out in the charts below:

Chart B - Questions Requesting the AGC to Adopt, Correct or Clarify Inquiry Transcript Excerpts

REFUSAL & TAB NO. PAGE NO. QUESTION NO. REFUSAL (Cabana) DATE ANSWERED OR PRECISE REASON FOR NOT DOING SO PLAINTIFFS’ POSITION DISPOSITION BY THE COURT

Cabana 36 81 To provide witness templates for those individuals that the AGC intends to call. These individuals are not subject of examination for discovery in any of the three actions. The AGC is prepared to consider any content from these witnesses’ testimony that the Plaintiffs reformulate as statements of fact in order to determine whether such facts may be admitted or denied by the AGC in the context of the present actions. Prior to conducting examinations for discovery of the AGC’s witnesses and representatives, Plaintiffs’ counsel prepared templates identifying excerpts from the Inquiry transcripts that they were interested in. The Plaintiffs asked the following two questions (the “Template Questions”): 1. Will the Witness adopt as part of his/her discovery evidence, and confirm the accuracy of the following relevant excerpts from his/her transcripts, subject to any qualifications indicated? 2. Does the AGC admit the truth of the excerpt? If not, please state any knowledge, information, or belief of the AGC that qualifies the accuracy or completeness of the excerpt. The Plaintiffs’ view was that the Template Questions were a useful way to shorten the discoveries. The alternative was for the Plaintiffs to ask those two questions through the corporate representative and appropriate inquiries, or ask extensive questions (including making appropriate inquiries) about the substance of the Inquiry transcripts. For those Inquiry witnesses whom the Plaintiffs did not have a right to examine for discovery, the AGC has refused to answer the Template Questions. The Inquiry transcripts are part of the AGC’s documentary holdings and are part of the AGC’s information, as acknowledged by the DFAIT, RCMP and CSIS representatives. The Template Questions fairly provide the AGC with an opportunity to expressly adopt, clarify or qualify the evidence in the transcripts before they are read-in at trial. It is relevant and appropriate to ask the AGC to confirm that the contents of the transcript excerpts identified in the Templates are not disputed, unless the AGC advises otherwise. Need not be answered Unanswerable Disproportionate

MacKinnon 75 164 Mr. Brucker has reviewed the templates provided by Mr. Tunley for Mr. Sigurdson and Mr. Saunders, and has identified the exhibit reference. But he has not gone over the transcripts and adopted or considered, at least from the Department and the AGC’s perspective, whether the testimony can be adopted or accepted beyond that. Mr. Tunley has asked that Mr. Brucker do that. Mr. Sigurdson and Mr. Saunders are deceased. In any event they are not subject of examination for discovery in any of the three actions. The AGC is prepared to consider any content from these witnesses’ testimony that the Plaintiffs reformulate as statements of fact in order to determine whether such facts may be admitted or denied by the AGC in the context of the present actions. Need not be answered Unanswerable Disproportionate

MacKinnon 76 164 If the refusal above is maintained and upheld, to have the AGC or DFAIT advise whether they have any knowledge, information, or belief that the testimony, or any parts of it, is inaccurate in any respect. Need not be answered Unanswerable Disproportionate

MacKinnon 77 165 Mr. Brucker has reviewed the templates for Dan Livermore, Stuart Bale, Scott Heatherington, Roger Chen, Robert Fry, and Myra Pastyr-Lupul, and has identified the exhibit references. But he has not gone over the transcripts and adopted or considered, at least from the Department and the AGC’s perspective, whether the testimony can be adopted or accepted beyond that. Mr. Tunley has asked that Mr. Brucker do that. These individuals are not subject of examination for discovery in any of the three actions. The AGC is prepared to consider any content from these witnesses’ testimony that the Plaintiffs reformulate as statements of fact in order to determine whether such facts may be admitted or denied by the AGC in the context of the present actions. A revised response to the template for Scott Heatherington with transcript excerpts adopted was delivered to the Plaintiffs on January 14, 2016. Need not be answered Unanswerable Disproportionate

MacKinnon 77 165 If that refusal is maintained and/or upheld, to have the AGC and DFAIT advise if they have any knowledge, information or belief that is contrary to any of the testimony, as currently recorded, for those witnesses. This individual is not subject of examination for discovery in any of the three actions. The AGC is prepared to consider any content from this witness’ testimony that the Plaintiffs reformulate as statements of fact in order to determine whether such facts may be admitted or denied by the AGC in the context of the present actions. Need not be answered Unanswerable Disproportionate

MacKinnon 79 165 Mr. Brucker was provided with the templates for Mr. Solomon, Mr. Davis and Mr. Wright. But he has not gone over the transcripts and adopted or considered, at least from the Department and the AGC’s perspective, whether the testimony can be adopted or accepted beyond that. Mr. Tunley has asked that Mr. Brucker do that. In the alternative, Mr. Tunley is requesting any knowledge, information or belief, simply by reference, if it’s in the documents or elsewhere in the transcripts, that the government has to the contrary to their testimony. These individuals are not subject of examination for discovery in any of the three actions. The AGC is prepared to consider any content from these witnesses’ testimony that the Plaintiffs reformulate as statements of fact in order to determine whether such facts may be admitted or denied by the AGC in the context of the present actions. Need not be answered Unanswerable Disproportionate

Chart C - Questions Seeking Production of Transcripts of In Camera Evidence at the O’Connor Inquiry (Nb. – The motion with respect to Refusals 2, 3, 4, and 7 was withdrawn)

REFUSAL & TAB NO. PAGE NO. QUESTION NO. QUESTION DATE ANSWERED OR PRECISE REASON FOR NOT DOING SO PLAINTIFFS’ POSITION DISPOSITION BY THE COURT

Cabana 1053 2895 The O’Connor Inquiry Report, the subject of the September 10 meeting is canvassed from pages 109 to 110 of the Factual Background, Volume 1. To produce any evidence cited in the footnotes in that section of the Report that the Plaintiff does not already have, and specifically footnotes 717 to 725. The Roy transcript excerpt was not adopted for purposes of Iacobucci Inquiry. No reason given in respect of other evidence cited in the footnotes. Each of these questions requests production of specific and discrete excerpts from the transcripts of in camera evidence given at the O’Connor Inquiry. The relevance of the request is demonstrated in each case by the fact that the O’Connor Report cites them with respect to specific factual findings on events relevant to these actions. The Supplementary Discovery Plan required the AGC to produce those excerpts of the O’Connor Inquiry in camera transcripts that were adopted for the purposes of the Iacobucci Inquiry. That order was intended to provide a reasonable and proportional mechanism for identifying relevant excerpts from the extensive volumes of transcripts from the O’Connor Inquiry for production to the Plaintiffs. The Supplementary Discovery Plan was ordered at a time in these proceedings when production needed to be completed on a timely basis to allow examinations for discovery to begin. The terms of the Plan relating to production of the in camera O’Connor Inquiry transcripts allowed for easy identification of relevant passages from those transcripts. However, it did not preclude production of additional discrete excerpts of the transcripts that can be identified as relevant during oral examinations for discovery. Need not be answered Disproportionate

Clement 296 1157 Stockwoods version: To produce Mr. Clement’s transcript evidence referred to at footnotes 554 and 555 on page 88 of the O’Connor Report. AGC version: With respect to Volume 1 of the O’Connor Report, page 88, to produce the excerpts referred to in Mr. Clement’s transcript at footnotes 554 and 555 at pages 9117 and 9118 of his January 19, 2005 transcript. The AGC has produced all of those excerpts from the Arar transcripts that were adopted for purposes of the Iacobucci Inquiry in accordance with the Supplementary Discovery Plan. Those pages of Arar transcripts that fall outside the scope of the Discovery Plan will not be produced. Need not be answered Disproportionate

Clement 296 1158 Stockwoods version: To produce the pages of Mr. Clement’s transcript evidence referred to at footnote 565 on page 91 of the O’Connor Report. AGC version: With respect to Volume 1 of the O’Connor Inquiry, page 91, footnote 565, to produce pages 9210- 9211 of Inspector Clement’s evidence of January 19, 2005. The AGC has produced all of those excerpts from the Arar transcripts that were adopted for purposes of the Iacobucci Inquiry in accordance with the Supplementary Discovery Plan. Those pages of Arar transcripts that fall outside the scope of the Discovery Plan will not be produced. Need not be answered Disproportionate

Reynolds 121-122 425 Stockwoods version: To produce the transcript excerpts cited at footnotes 240 to 242 in Volume 2 of the O’Connor Report at pages 502 to 503 AGC version: Production of the transcript excerpts cited at footnotes 240 to 242 of the O’Connor Report, Volume 2, pages 502-503 of the factual background which are the excerpts from Mr. Callaghan’s testimony and Mr. Corcoran’s testimony that support certain conclusions that Mr. O’Connor arrived at, relating to the basis upon which the decision, in the summer of 2003 regarding contact between A-O-Canada and the CIA and the FBI, was made. The transcript references at footnotes 240 and 241 relate to the Arar matter and are not relevant. The transcript reference at footnote 241 was not adopted by the Iacobucci Commission. In any event Mr. Reynolds’ testimony at pages 280-282 of AGC12268 is responsive to the question. Same position as that set out above under Q 1 of this chart. Need not be answered Answered Irrelevant Disproportionate

Reynolds 124 - 125 429 To produce the transcript excerpt at footnote 586 in Volume 1 of the O’Connor Report at page 92 This segment of Mr. Reynolds’ Arar testimony was not adopted by the Iacobucci Inquiry. The AGC will not produce. However, see Mr. Reynolds’ Arar testimony at AGC12268 pgs. 280-282. Need not be answered Disproportionate

Written Qs 8(a) Produce all transcript excerpts of the evidence given by Randy Buffam in camera at the O’Connor Inquiry relevant to the notification of the FBI on November 30, 2001 that Mr. Almalki had departed Canada for Malaysia. No reason given. ANSWER REQUIRED

Written Q 30 Produce the transcript of the evidence given by James Gould in camera at the O’Connor Inquiry, redacted as appropriate pursuant to s. 38 of the Canada Evidence Act. As set out in email from B. Brucker to A. Gonsalves, March 10, 2016: “In accordance with the Supplementary Discovery Plan we have provided you or will provide you with those excerpts of Arabic transcripts, subject to review and redaction per s. 38 CEA adopted by the Iacobucci Inquiry, including as identified in my letter to you dated April 28/15, the adopted excerpts of Mr. Gould’s in camera testimony. In addition you have Mr. Gould’s notes and have asked questions of other discovery witnesses concerning his involvement with respect to your clients. Also since your request you have had discovery of Mr. Heatherington who served as Director of ISI during much of Mr. Gould’s tenure there that is relevant to these actions. We do not believe it appropriate to expand the scope of discovery to include excerpts of Arar testimony not adopted by the Iacobucci Inquiry which focused on the actions of Canadian officials in relation to your clients particularly given the considerable scope of discovery made by the AGC, including as noted above, Mr. Gould’s involvement.” Mr. Gould was an employee within the DFAIT ISI branch at times relevant to these actions. He was a key point of contact between DFAIT and RCMP in respect of the Abou-Elmaati and Almalki investigations, and attended various meetings and participated in phone calls with Project A-O-Canada investigators. The DFAIT corporate representative testified in examination for discovery that Mr. Gould is very ill and unavailable to answer inquiries (see MacKinnon transcript, p. 64). The Plaintiffs requested that certain inquiries be made of him should he become available, but do not expect that will occur. Mr. Gould did not testify at the Iacobucci Inquiry and did not testify publicly at the Arar Inquiry. The transcript of Mr. Gould’s in camera testimony at the Arar Inquiry is the best record of his evidence on matters related to these actions. (See letter from A. Gonsalves to AGC counsel, September 28, 2015.) ANSWER REQUIRED

Chart D: Questions Requesting Underlying Evidence to Support Allegations that May be Made at Trial (Nb. Refusals 2, 6-18 were resolved on consent. Refusals 19 and 27 were adjourned pending the decision in the Federal Court)

REFUSAL & TAB NO. PAGE NO. QUESTION NO. QUESTION DATE ANSWERED OR PRECISE REASON FOR NOT DOING SO PLAINTIFFS’ POSITION DISPOSITION BY THE COURT

Cabana 413 998 To advise what if any, financial information the RCMP had assembled on Mr. Almalki up to the date of the disclosure letter (AGC00211), and to advise from this date forward, what were the financial investigation findings by the RCMP, in terms of its investigation of Mr. Almalki. Narrowed as follows: Plaintiffs’ counsel is only interested in information that, from the RCMP’s perspective, indicates that Mr. Almalki is a procurement officer for Al-Qaeda. It is a huge question. That encompasses thousands of documents in the AGC’s productions, and a lengthy explanation. Ms. Gray is not sure if it's an appropriate type of question for an undertaking. Each of these questions seeks discovery of the RCMP’s investigation, and the information and evidence it had, if any, to support to allegations made against the Plaintiffs. The questions are relevant to the Plaintiffs’ claims for negligence, Charter breaches and defamation. The questions are also relevant to the AGC’s pleaded defences of reasonable belief and no breach of duty of care. If the AGC intends to lead any evidence about any of these allegations or beliefs at trial, fairness requires that these questions be answered. Full and detailed answers to these questions are critical to allow the Plaintiffs to test and respond to any of these allegations at trial by knowing what evidence, if any, the RCMP had at the time to support the allegations. ANSWER REQUIRED WITH RESPECT TO FINANCIAL INFORMATION

Cabana 1010 2797 Mr. Cabana said that in the course of A-O- Canada’s investigation he uncovered evidence that would support a belief that Ms. Kalifah is a terrorist. To advise what communications, what individuals and what organizations. Refusal. Advisement too broad. Need not be answered Unanswerable Disproportionate

Cabana 1121 3108 To have the RCMP identify at what point in its view the reasonable and probable grounds crystallized in respect of Mr. Almalki, and the evidence that it had at that point. There are concerns about breadth and this is an ongoing process. There may not be a crystallizing moment as such. See position set out above under Q 1 of this chart. If the AGC is going to lead any evidence at trial that the RCMP had any time reasonable and probably grounds in respect of Mr. Almalki, this question must be answered. Need not be answered Unanswerable Disproportionate

Cabana 1208 3337 To provide specific document references and all the evidence that supports Mr. Cabana’s statement that Mr. Almalki supported mercenaries. It is a broad question. See position set out above under Q 1 of this chart. The question should be answered to the extent the AGC will be leading any evidence at trial regarding Mr. Cabana’s or the RCMP’s belief that Mr. Almalki supported mercenaries. Need not be answered Unanswerable Disproportionate

See position set out above under Q 1 of this chart.

Cabana 1311 3565 Apart from Mr. Abou-Elmaati’s confession produced under torture, did the RCMP have any evidence to support the accusation that Mr. Almalki was a sleeper cell member? No reason given ANSWER REQUIRED

Cabana 1312 3567 What did the RCMP believe was Ms. Kalifah’s role in the transfer of funds between different entities, and what evidence was that belief based on? No reason given Need not be answered Unanswerable Disproportionate

Cabana 1312 3567 Who were the parties of concern in respect of these transactions? What specifically were the RCMP’s concerns about those individuals and what evidence does the RCMP have in support of those concerns? No reason given Need not be answered Unanswerable Disproportionate

Cabana 1328 3611 What did the RCMP have at the time that showed how the procurement activity was carried out? (AGC09790) There has been a vast amount of documentation seized through the search warrants, there has been myriad analysis types of reports produced and made available to you so those documents largely speak for themselves. Need not be answered Unanswerable Answered Disproportionate

Clement 320 1257 Exhibit 2, under the heading “Almalki”, it says: “…Mr. Clement is expected to give evidence about the investigation into Mr. Almalki’s financial and business dealings, both domestically and abroad, including RCMP concerns that items and/or funds might be exported abroad and used to support Al-Qaeda based activities…” To advise what Mr. Clement’s testimony is going to be in that regard. The information that Mr. Clement is going to rely on is his own evidence, plus the documents you've received, plus any additional information you received from section 38, plus any information that we'll receive from your clients and the discovery process through your clients. These questions all relate to evidence Mr. Clement is expected to give at trial as set out in his Synopsis of Anticipated Evidence. For the reasons set out above under Q 1 of this chart, full and detailed answers to these questions must be given if Mr. Clement is going to testify as indicated. Fairness requires that the Plaintiffs be given proper discovery of the details of Mr. Clement’s testimony about the investigations. Need not be answered Unanswerable Answered Disproportionate

Clement 322 1263 Exhibit 2 says: “…Mr. Clement is also expected to give evidence about Mr. Almalki’s activities, information recovered from his computer, his parent’s basement, and his behaviours generally, as uncovered during the RCMP’s ongoing investigation of Mr. Almalki, both before and after he left Canada on November 27, 2001…” To advise what Mr. Clement’s evidence is going to be on those matters. No reason given Need not be answered Unanswerable Answered Disproportionate

Clement 323 1265 In respect of Mr. Abou-Elmaati, exhibit 2 says: “…He is also expected to give evidence about the information project A-O- Canada investigators had about Mr. Abou-Elmaati’s departure from Canada and the rationale, as well as precautions taken before allowing him to board a plane for Frankfurt, Germany (with a covert RCMP escort)…” Has Mr. Clement given all of his evidence that he has on this point. No reason given Need not be answered Answered Disproportionate

These questions relate to information CSIS had, if any, at the time to support beliefs, suspicions and allegations it made about Mr. Abou-Elmaati. For the reasons set out above, if the AGC is going to lead any evidence at trial about these beliefs, suspicions and allegations, full and detailed answers to these questions must be given. This is particularly important in respect of CSIS allegations due to the extensive claims of national security privilege over CSIS documents, which makes finding specific references very difficult.

Witness P 96 264 To identify in the documents every reference to Mr. Abou-Elmaati’s activities and time in Afghanistan The AGC has produced many documents and the information that they have with respect to Mr. Abou-Elmaati that they’re able to release in this forum is in those documents. Need not be answered Unanswerable Answered Disproportionate

Chart E: A. Questions relating to events prior to February 2003 asked at Cabana Examination on April 20, 2016 B. Questions Relating to Immigration Issues C. Questions Relating to Sharing of Ahmad Abou-Elmaati’s Travel Information D. Questions Relating to the Baks ITO and Part VI Authorization E. Reliance on Tortured Confession in Search Warrant Applications F. RCMP Efforts to Obtain Access to Interview Mr. Abou-Elmaati prior to January 2002 G. Questions Relating to Wali Mohd and Wali Mohammad H. Questions Relating to Mahmoud Jaballah I. Questions Relating to Similar Cases J. Questions Relating to RCMP Investigation of Allegations against Mr. Almalki K. Questions Relating to RCMP Awareness of Conditions of Detention in Syria L. Questions Relating to the Elmaati Will M. Questions Relating to Elmaati Preventive Detention Application N. Questions Relating to RCMP Investigation of Farid Al Azem O. Questions Refused as Hypothetical or Speculative P. Questions Relating to Searches for Production of Relevant Documents Q. Questions Asked at Examination of Corporate Representative and Refused because other Witnesses were Examined R. Other Questions (nb. Refusals 14-22, 24-34, 51-56, 66, 67, 75, 84-89 were resolved on consent. Refusals 35-37 were withdrawn. Refusal 68 was adjourned.

REFUSAL & TAB NO. WITNESS & PAGE NO. QUESTION NO. REFUSAL DATE ANSWERED OR PRECISE REASON FOR NOT DOING SO PLAINTIFFS’ POSITION DISPOSITION BY THE COURT

A. Questions relating to events prior to February 2003 asked at Cabana Examination on April 20, 2016

Cabana 1151 3182 AGC09340, at 18:25 it says: “I received a telephone call from Corporal Dorion and he advised me that due to new developments in the file, the contents of the suitcases must be verified.” To advise what are these supposed new developments that justify the change in approach. Mr. Cabana re-attended on April 20 to answer questions from the period February 2003 onwards and in relation the Nureddin case, which Examination took place on April 21. The Plaintiffs have had ample discovery of Mr. Cabana over a period of five days, not to mention other RCMP witnesses, nine in total, over a period of 14 days, such that questions related to the pre-February 2003 period are not appropriate at this juncture and will not be answered. The AGC does not object to the relevance of the questions. The questions are relevant and discrete questions relating to events prior to February 2003, which have not been otherwise asked or answered. When the examination of D/Comm Cabana adjourned on 4 Sept. 2015 Plaintiffs’ counsel made clear their need for additional time (see Cabana transcript, pp 1143-1145). There is no prejudice to the AGC or Mr. Cabana in answering the question. The April examination was a continuation of the examination that was not completed between August 31 and September 4. There was never any agreement between counsel that any further examination would be limited to events subsequent to February 2003. The issue was raised by AGC counsel on a conference call the Plaintiffs’ counsel following which there was an exchange between counsel, with both sides setting out their positions (see email exchange between H. Gray and A. Gonsalves, April 18-19, 2016) Need not be answered Disproportionate

Cabana 1152 3183 Was Mr. Cabana apprised of those new developments at the time? Need not be answered Disproportionate

Cabana 1152 3184 To advise who else at A-Division was apprised of those new developments. Need not be answered Disproportionate

Cabana 1154 3191 AGC07807, page 20, it says “Is Almalki already in custody?” To advise what prompted that question and what the significance of that entry was at the time. Need not be answered Disproportionate

Cabana 1154-1155 3194 To advise whose handwriting is on page one of AGC02491, and when it was placed on the document. Need not be answered Disproportionate

Cabana 1156 3194 To advise what the handwritten note means (AGC02491, page 1), and who is the friend in Malaysia and what was the answer to the question about what this redacted person or entity is doing with him. Need not be answered Disproportionate

Cabana 1162 3210 In AGC07841 and AGC09223, it appears that Kevin Corcoran told Randy Walsh that Syria and another country have issued arrest warrants for Mr. Almalki and want Malaysia to hand him over. To confirm that that is accurate Need not be answered Disproportionate

Cabana 1162 3211 AGC00063, AGC12309, page 30, and AGC02972, page 3, indicate that the RCMP learns of a plan by an American agency, which is not the FBI, to intercept Mr. Almalki prior to his return to Canada. To confirm that that is accurate Need not be answered Unanswerable Disproportionate

Cabana 1163 3212 NSG00062, page 5, shows that Mr. Cabana instructed Pat Callaghan to provide the Americans with particulars of Ms. Kalifah’s passport, is that accurate Need not be answered Unanswerable Disproportionate

Cabana 1163 3213 In AGC04354, we see that the RCMP gives a possible address for Mr. Almalki in Malaysia to the Americans. To advise why that was done Need not be answered Disproportionate

Cabana 1163 3213 To the extent the AGC does not accept the characterization of events that M. Gonsalves has gone through, provide the AGC’s characterization of those events as they’ve been put on the record and described. Need not be answered Unanswerable Disproportionate

Cabana 1164 3214 AGC12224, page 110, is an excerpt from Gary Clement’s interview for the Iacobucci Inquiry. He stated that in the fall of 2001, President Bush in the U.S. was being briefed weekly on what he called “this file” which we presume relates to the subjects of the A-O-Canada and O-Canada investigation. To advise whether that was true of the Canadian Prime Minister at the time. Need not be answered Unanswerable Disproportionate

Cabana 1169 3225 AGC11161, page 2, says: “Elmaati interview….last August window of opportunity from Egyptians. Due to in-fighting with O-Division, interview not taken place.” To have Mr. Cabana explain those notes or comments, based on his experience with the project at the time. The question goes back in time to a reference of a prior time period Plaintiffs’ counsel has already examined the witness on. Same as above Need not be answered Unanswerable Disproportionate

B. Questions Relating to Immigration Issues

C. Questions Relating to Sharing of Ahmad Abou-Elmaati’s Travel Information

D. Questions Relating to the Baks ITO and Part VI Authorization

Cabana 527 1321 To make inquiries of Staff Sergeant Baks, and to identify all documents including his notes, if any, any meetings he had with anyone about his concerns with the Part VI intercept, and any other memos or documents he authored, all CSIS documents or other materials that he was looking at, and to identify them in the productions. And if the RCMP is aware of other documents where more senior members reviewed his concerns, to identify all of those as well. Refusal. No reason given. Both of these questions relate to the Part VI authorization, which was granted in October 2001, and the information to obtain that authorization, sworn by Sgt. Baks. The Part VI authorization permitted the RCMP to surreptitiously intercept the personal electronic communications of Mr. Almalki and Mr. Abou-Elmaati, among others for a 60-day period (subject to renewal). The intercepts were discontinued in November 2001 after the RCMP acknowledged deficiencies in the grounds it relied upon (primarily from CSIS) to obtained the authorisation. The Almalki and Abou-Elmaati Plaintiffs allege that the Part VI authorization was unlawful. The circumstances in which the Part VI authorization was obtained and the use of information obtained through the intercepts form part of the claims for negligence and breach of s. 8 of the Charter. These questions are relevant to those allegations. Need not be answered Unanswerable Disproportionate

E. Reliance on Tortured Confession in Search Warrant Applications

F. RCMP Efforts to Obtain Access to Interview Mr. Abou-Elmaati prior to January 2002

G. Questions Relating to Wali Mohd and Wali Mohammad

H. Questions Relating to Mahmoud Jaballah

Cabana 1078 2971 Was Jaballah in detention in Canada at the time (October 3, 2002)? The Jaballah case is not relevant. The Jaballah case and the questions are relevant. The connection between the Canadian detention of Jaballah and the Egyptian detention of Abou-Elmaati is raised in a DFAIT document (AGC00352, p 2) the content of which is quoted in the Inquiry transcript of Scott Heatherington (AGC12243, pp 122-124) Jaballah is shown in RCMP documents as allegedly being connected to Ahmad Abou-Elmaati (e.g. AGC02277). His name appears in the notes of A-O-Canada investigators without redaction on the basis of relevance (e.g. AGC08124, notes of Randy Buffam). Mr. Nureddin was asked about Jaballah in his examination for discovery (see pp 279-283). ANSWER REQUIRED

Cabana 1078 2972 Was Jaballah the target of any RCMP investigation? ANSWER REQUIRED

Cabana 1079 2973 Had there been a proposal to Mr. Cabana’s knowledge, at any point to essentially make an exchange of Mr. Abou- Elmaati for Mr. Jaballah? ANSWER REQUIRED

Cabana 1079 2974 Was that arrangement in any way conditional, if there was such an arrangement on Canada agreeing not to disclose the torture in respect of Mr. Abou-Elmaati? ANSWER REQUIRED

I. Questions Relating to Similar Cases

MacKinnon 982-983 2704 – 2706 Stockwoods version: Was an undertaking to repay and bill of costs required in Mr. Arar’s case? And if not, why the difference of treatment between Mr. Arar and Mr. Nureddin? (Q#2706) AGC version: To advise as to whether Mr. Arar had a similar bill of costs and undertaking for repayment as Mr. Nureddin did. If there was not, to advise as to why the difference in treatment. Refusal – particulars of Mr. Arar’s case, a separate consular matter, are not relevant to Mr. Nureddin’s case. Refusal is improper. The question is relevant to DFAIT’s standards of consular assistance. The statements of claim in these actions plead that the Defendants had a duty to provide consular services to the Plaintiffs and that the duty was breached. The case of Mr. Arar provides evidence of the standard for consular assistance at the time. The question is relevant to a material issue in the pleadings. Need not be answered Unanswerable Irrelevant Disproportionate

Martel 198 777 Is Mr. Martel aware of any reason for the difference in treatment regarding access for Mr. Al-Boushi and Mr. Almalki? Mr. Al-Boushi’s is an entirely different case. Consular cases depend on their circumstances so we can’t go into the circumstances of Mr. Al-Boushi’s detention and consular access. Mr. Al-Boushi was a dual Canadian-citizen, from Ottawa, like Mr. Almalki. He was accused of affiliation with the Muslim Brotherhood, in much the same way in which Mr. Almalki was accused of affiliation with alleged terrorist organizations. There is no apparent reason why consular access or risk of torture or other consular matters that are at issue in this Action would be different in the two cases. The question is relevant to DFAIT’s standards of consular assistance. The statements of claim in these actions plead that the Defendants had a duty to provide consular services to the Plaintiffs and that the duty was breached. The question is relevant to a material issue in the pleadings. Need not be answered Unanswerable Irrelevant Disproportionate

Martel 200 778 What does Mr. Martel mean by “Al-Boushi was of interest to the Syrians for their own reasons”? Need not be answered Unanswerable Irrelevant Disproportionate

J. Questions Relating to RCMP Investigation of Allegations Against Mr. Almalki

Cabana 1288 3519 Were the directing minds of either of those companies [Micro Electronics International and Ramanico Trading] ever charged with any terrorism offence by any agency in any jurisdiction? Refusal. Not relevant. These questions seek discovery of and information about the RCMP’s investigation of Almalki and allegations the RCMP has made about his activities. Questions 45-47 relate to a solar panel transaction between Mr. Almalki’s company and Micro Electronics International that the RCMP raised suspicions about. Question 48 relates to a US charity the RCMP raised suspicions about. The questions seek to understand what information the RCMP had in evaluating the reasonableness of those suspicions. Whether the RCMP had reasonable grounds to support the claims it made about Mr. Almalki and his alleged involvement in terrorist activities is a central aspect of Mr. Almalki’s negligence claim. If the AGC will be leading evidence at trial as to any suspicions the RCMP had about the solar panel transaction or Global Relief Foundation, these questions should be answered. Need not be answered Irrelevant Disproportionate

Cabana 1288 3519 If so, to advise if there were any convictions of any terrorist related offences, which jurisdiction and what dates. Refusal. Not relevant. Need not be answered Irrelevant Disproportionate

Cabana 1289 3522 To provide full particulars of all steps that the RCMP took to chase down all available evidence relating to the solar panel transaction. Refusal. Question too broad. Need not be answered Irrelevant Disproportionate

Cabana 1298 3544 Ms. Gonsalves’ understanding is that the Global Relief Foundation’s chief executive Rabih Haddad was arrested on immigration charges and deported from the United States but was not charged with any terrorism related offences. Does the RCMP have any documents relating to the charges against Mr. Haddad? Is that knowledge that the RCMP held? Refusal. Not relevant. Need not be answered Irrelevant Disproportionate

K. Questions Relating to RCMP Awareness of Conditions of Detention in Syria

Cabana 1081 2982 To advise if Jeff Thompson or Bob Lemay ever told Mr. Corcoran or Mr. Callaghan about the statement from Ahmed Abou Abed, who called Syria a black hole and expressed a concern that Mr. Arar might not be seen for weeks or years (AGC08119, page 8, item 9). Refusal. Not relevant. These questions relate to information obtained by or available to RCMP Project A-O- Canada investigators in early October 2002 about conditions in Syrian detention facilities and human rights abuses in those detention facilities. Mr Almalki was detained in Syria at the time. Such information relates to the knowledge that the RCMP officers had or ought to have had that their conduct risked exposing Mr. Almalki to torture and mistreatment in Syria. Need not be answered Unanswerable Disproportionate

Cabana 1081 2983 To advise whether any members of A-O- Canada or anyone at the RCMP after having received information about the website www.shrc.org , went and checked that website. Refusal. No reason given. Need not be answered Unanswerable Disproportionate

L. Questions Relating to the Elmaati Will

M. Questions Relating to Elmaati Preventative Detention Application

N. Questions Relating to RCMP Investigation of Farid Al Azem

O. Questions Refused as Hypothetical or Speculative

Covey 63 213 If different language was used in AGC05145, something perhaps more moderate, something that didn’t stress the urgency of the matter, or the immanency of this threat, for example, would that have caused Mr. Covey to have treated the cases differently? It is a subjective question. The question provides Ms. Gonsalves’ interpretation of what constitutes moderate language. To have Mr. Covey answer questions based on what Ms Gonsalves considers to be more moderate language, which isn't the fact in this case, is beyond the scope of proper. These are proper and relevant questions that seek to discover whether the witnesses would have conducted themselves differently or made different decisions done different things if the information available to them had been different. The questions all relate to matters within the witnesses’ knowledge, experience and expertise, and allow discovery of their evidence as to the factors that did or did not influence their decision-making and actions at the time. Need not be answered Unanswerable Disproportionate

Covey 65 219 Had the letter (AGC05145) used more moderate language, for example, not stressing the urgency, as it does, or not stressing the immediacy of the threat, as it does, might it have caused Mr. Covey to treat these cases differently It is a subjective question. The question provides Ms. Gonsalves’ interpretation of what constitutes moderate language. To have Mr. Covey answer questions based on what Ms. Gonsalves considers to be more moderate language, which isn't the fact in this case, is beyond the scope of proper. Need not be answered Unanswerable Disproportionate

Heatherington 105 444 Had CSIS asked Mr. Heatherington for advice or input, would he have advised them against sending the questions or warned that doing so might put Mr. Abou-Elmaati at risk of torture? The question is a hypothetical. Need not be answered Unanswerable Disproportionate

Heatherington 106 445 Based on the knowledge that Mr. Heatherington had at the time, would he have considered torture to be a likely consequence of sending questions to a third party in Syria to put to Mr. Abou-Elmaati? The question is a hypothetical. Need not be answered Unanswerable Disproportionate

MacKinnon 749 2007 Had someone at HQ, Mr. Pardy for example, known of the contents of that envelope, that it did contain questions for Mr. Almalki to be put to the Syrians, does Mr. MacKinnon expect Mr. Martel would have been told not to deliver it? The question is a hypothetical. Need not be answered Unanswerable Disproportionate

Martel 85-86 346 If Mr. Martel assumes that he knew the facts that any of these detainees were the subject of accusations of terrorist affiliation and national security risk, and that they were in detention of the Syrian military, would that not have enabled him to say to his head of mission or to headquarters, “you do realize that this means they are at increased risk, as Canadian citizens, of being tortured in this country”? The question is a hypothetical. Need not be answered Unanswerable Disproportionate

Martel 94 381 If CSIS or the RCMP or other Canadian agencies know of a Canadian detained in Syria specifically, and in the kinds of circumstances that arise in these cases, is it Mr. Martel’s expectation as a consular officer on the ground that they will inform consular officials so that appropriate actions can be taken? Mr. Martel's role was as a consular officer on the ground in Syria. How is he to know what CSIS and RCMP should or should not be properly doing in a given scenario? And, if Plaintiffs’ counsel is seeking his view it would be very much just his view and not necessarily the view of the AGC. Need not be answered Unanswerable Disproportionate

Pillarella 341 1189 Does Mr. Pillarella think that if he had seen the RCMP questions that Mr. Fiorido had brought for him to give to General Khalil, he might have had cause for greater concern about sending them? The question is entirely speculative. Need not be answered Unanswerable Disproportionate

Reynolds 113 405 AGC00146 reads, “Project A-O-Canada investigators provided…at an earlier date with details of Elmaati’s itinerary and further learned…would be contacting Syrian authorities regarding Elmaati’s impending arrival.” Assuming that they did not have the information from another source, would it be against the arrangement for the redacted agency here to share the information with the Syrians? Mr. Reynolds wasn’t personally involved in these events referred to in the question and is reluctant to make assumptions or speculate. Mr. Reynolds has knowledge about and was examined at length on the alleged information sharing arrangement which purportedly governed the Project A-O-Canada investigation. The document on which the question is based (AGC00146) shows that the US agency received that information from the RCMP. It was the witness who speculated – contrary to the evidence – as to the possibility of some other source of the information. The question fairly asks the witness to provide an answer about the information sharing arrangement based on the information provided in the document and not some other possibility which is not supported by any evidence. Need not be answered Unanswerable Disproportionate

P. Questions Relating to Searches for and Production of Relevant Documents

Cabana 46 96 Is the Attorney General going to bring up to date the concordance of notes that was provided in 2013? Adjourned

Cabana 112 273 To identify in the productions or to produce the CSIS instructions or training about how to use the information that they have access to. Refusal. No reason given. These questions seek relevant documents within the AGC’s power, possession or control and should be answered. If the documents have not been produced, they are relevant and should be produced. If they have been produced, the AGC should identify them by document number. The AGC has produced nearly 12600 productions (consisting of over 23000 documents). That volume of productions, coupled with the extensive s. 38 redactions, make it difficult for the plaintiffs to locate specific items. These requests are reasonable and should be answered. Need not be answered Unanswerable Disproportionate

Cabana 938 2533 To identify any written document back in September 2001 when the information sharing arrangement may have been arrived at, confirming what the arrangement was and what the terms are if any such written document exists and secondly, to produce all correspondence at any later date that the AGC says speaks to or sets out the terms of the information sharing arrangement. Refusal. Information is in the record, relevant documents have been produced. Need not be answered Unanswerable Answered Disproportionate

Written Qs (Exhibit 8 to Cabana examination) 51(a) In relation to the investigation and report of Chief Supt Garvie at AGC11754, produce copies of all statements by RCMP personnel in relation to the Garvie investigation, apart from those of Ron Lauzon (produced at AGC00443) and Rick Flewelling (produced at AGC00446). No reason given. These questions seek relevant documents within the AGC’s power, possession or control. RCMP Chief Supt Garvie conducted an investigation into allegations that RCMP members encouraged or failed to discourage the rendition of Mr. Arar from US territory to Syria, improperly shared information with US and/or Syrian authorities about Mr Arar, and impeded efforts to secure his release. Mr Arar was part of the same RCMP investigation as Mr Almalki. In the course of his investigation, Garvie interviewed various RCMP members who were involved in the Almalki and Arar investigations. The Report comments on various events that are relevant to Mr Almalki’s case but is heavily redacted on the basis of relevance. The interviews have not been produced, even though they potentially offer the investigators’ best recollection of key events, as the interviews were conducted in 2004. Need not be answered Unanswerable Disproportionate

Written Qs (Exhibit 8 to Cabana examination) 51(b) Reproduce the Garvie report (AGC11754) without the “Not Relevant” redactions. No reason given. Need not be answered Unanswerable Disproportionate

Q. Questions Asked at Examination of Corporate Representative and Refused Because other Witnesses were Examined

MacKinnon 542 1441 Stockwoods version: To advise if Mr. Heatherington forwarded AGC00241 to anybody else. AGC version: Was the CSIS memorandum dated February 5, 2002 to Scott Heatherington shared with anybody at DFAIT beyond Mr. Heatherington? (AGC00241) The plaintiffs have had discovery of Mr. Heatherington. Counsel for the AGC gave undertakings to answer these questions. The questions have not been answered and are not answered in the transcript pages from Mr. Heatherington’s examination referred to in the AGC’s responses. The questions were asked of Mr MacKinnon as DFAIT representative for the AGC. The undertakings having been given, the AGC is obligated to answer the question. Plaintiffs’ counsel were not required to ask the question a second time, of another witness. ANSWER REQUIRED

MacKinnon 555 1468 Stockwoods version: AGC01277, page 3, says “Almalki in Syria via Bahrain. Await CSIS advice.” To make inquiries of Mr. Heatherington and advise what he was awaiting CSIS advice about. (Q#1468) AGC version: AGC00267 are notes of Scott Heatherington. Page 3 of the document states: “Almalki in Syria via Bahrain: await CSIS advice.” Ms. Gonsalves asks that inquires be made of Mr. Heatherington as to what advice he was awaiting from CSIS. Mr. Brucker indicates that this may have been dealt with already in his transcript, and he will review the transcript and determine whether or not it has already been dealt with, and if not, Mr. Brucker will then decide whether further steps are needed. The Plaintiffs have had discovery of Scott Heatherington. See transcript of Mr. Heatherington’s examination at pp. 157-158. ANSWER REQUIRED

MacKinnon 413 1105 Stockwoods version: To make an inquiry of Mr. Heatherington to determine why he is only referring to the two targets (Mr. Almalki and Mr. Abou-Elmaati) and not all of the targets of the O-Canada investigation, in AGC00554. AGC version: With reference to AGC00554, to make an inquiry of Mr. Heatherington as to whether there is there any reason why only Mr. Almalki and Mr. Abou-Elmaati are named in this memo, and why the other targets of O-Canada are not listed The Plaintiffs have had discovery of Scott Heatherington. The defendant is the AGC. These questions were asked of Mr. MacKinnon as DFAIT representative for the AGC. Plaintiffs’ counsel were not required to ask the question a second time, of another AGC representative. ANSWER REQUIRED

MacKinnon 435 1157 Stockwoods version: AGC02593 deals with Mr. Abou-Elmaati having been moved to Egypt. To make an inquiry of Mr. Heatherington or the RCMP sources for this document, and advise whether there was any restriction placed on Mr. Heatherington as to his ability to provide this information to the consular section at this time. AGC version: With reference to AGC02593, to make inquiries of Mr. Heatherington, or of the RCMP source of the document, as to whether there was any restriction placed on Mr. Heatherington to prevent him from providing this information to the consular section at the time. The Plaintiffs have had discovery of Scott Heatherington. ANSWER REQUIRED

MacKinnon 435 1157 Stockwoods version: To make an inquiry of Mr. Heatherington and advise if he was privy to the information in AGC02593, that, essentially, the U.S. authorities were agreeable to Canadian investigators interviewing Mr. Abou-Elmaati. AGC version: With reference to AGC02593, to make inquiries of Mr. Heatherington to determine whether he was aware that the U.S. authorities were agreeable to the interviewing of Mr. Abou-Elmaati. The Plaintiffs have had discovery of Scott Heatherington. ANSWER REQUIRED

MacKinnon 437 1159 Stockwoods version: AGC02593 says, “…DFAIT’s reason for the call was to receive assurances that they would be kept informed of developments relative to any potential interviews in light of consular concerns.” To make inquiries of Mr. Heatherington, as to what he recalls about this discussion and what assurances he was given. To ask Mr. Heatherington if there is any document in his file, a DFAIT file, about these discussions and the assurances or undertakings given to him by the RCMP. AGC version: The last paragraph in AGC02593 refers to a telephone conversation between Mr. Heatherington and the RCMP wherein Mr. Heatherington requests assurances that DFAIT “would be kept informed of developments relative to any potential interviews in light of consular concerns”. To make inquiries of Mr. Heatherington as to what he recalls about this phone call, and what assurances he was given. Further, if there is any DFAIT document regarding the discussion, assurances or undertakings given by the RCMP to identify that document. The Plaintiffs have had discovery of Scott Heatherington. See transcript of examination for discovery of Mr. Heatherington at pages 121-122 and AGC02593 referred to therein. ANSWER REQUIRED

MacKinnon 443 1181 Stockwoods version: To make an inquiry of Mr. Heatherington and advise if a discussion took place with Mr. Pardy in March 2002 (AGC00557). AGC version: To make inquiries of Mr. Heatherington as to whether the new developments Mr. Pardy refers to in AGC00557 relate to the information Mr. Heatherington received from the RCMP (see AGC02593), and whether he had a discussion with Mr. Pardy to convey that information. The Plaintiffs have had discovery of Scott Heatherington. ANSWSER REQUIRED

MacKinnon 545 1448 Stockwoods version: To make an inquiry of Mr. Heatherington, and advise the form in which he got the information from the RCMP, when and from whom (AGC00554). AGC version: AGC00554 is an ISI Memo dated February 15, 2002 from S. Heatherington (D. Saunders) to G. Lavertue, and indicates that Almalki is thought to be in Malaysia. Ms. Gonsalves asks for an inquiry to be made of Mr. Heatherington as to the form in which he obtained the information contained in AGC00554 from the RCMP and when. The Plaintiffs have had discovery of Mr. Heatherington. See transcript of the examination for discovery of Mr. Heatherington at pages 119 – 121.

MacKinnon 572 1509 Stockwoods version: To make inquiries of Mr. Heatherington, if in early June 2002 ISI was receiving its information about Mr. Almalki from CSIS primarily, or the RCMP primarily, or both. AGC version: To make inquiries of Mr. Heatherington as to whether in June 2002 ISI was receiving its information about Mr. Almalki from CSIS primarily, or the RCMP primarily, or both? The Plaintiffs have had discovery of Scott Heatherington. See transcript of examination for discovery of Mr. Heatherington at pp. 156-157 and 164. ANSWER REQUIRED

MacKinnon 809-810 2187 Stockwoods version: If AGC04820 is not related to the meeting that is the subject of the STOC007233 document, to ask Mr. Heatherington what was discussed at the meeting that is referred to in AGC04820 that took place on November 12, 2003. And to advise if Mr. Heatherington has any notes of that meeting. (Q#2187) AGC version: To advise if Mr. Heatherington has any notes of the meeting referenced at AGC04820. What was discussed at that meeting? The Plaintiffs have had discovery of Scott Heatherington. ANSWER REQUIRED

R. Other Questions

38Order accordingly.

39Given the divided success, I order that the costs be in the cause.

Perell, J.