The Power of Perspectives

The Canadian Bar Association

Mariane Gravelle

Omar Khadr civil suit settlement: Canadian experts weigh in

July 10 2017 10 July 2017

It’s front page news: last week, the federal government reached a settlement with Omar Khadr in a civil suit (read about it here). Khadr and his team filed the suit against the government alleging a violation of his rights under the Canadian Charter of Rights and Freedoms by Canadian officials during his incarceration at the Guantanamo Bay detention camp.

As one can expect in such a polarized case, this settlement elicited a wide range of reactions from citizens, journalists and politicians alike.  Many decry the fact that a person they consider to be a former terrorist has now been made a millionaire at taxpayers’ expense. Vancouver radio host Charles Adler, cited by the Globe and Mail, sums up this opinion:

“This is not residential schools we’re apologizing for. We’re apologizing to an enemy combatant who betrayed his country and went overseas to build roadside bombs. […] Most [people on the street] think that when you turn your guns on your own country, you stop being a Canadian.”

Still, others believe that the settlement is justified. As Prime Minister Trudeau declared during a press conference at last week’s G20 summit in Hamburg, Germany,

“The Charter of Rights and Freedoms protects all Canadians, every one of us, even when it is uncomfortable. This is not about the details or merits of the Khadr case. When the government violates any Canadian's Charter rights we all end up paying for it.”

The PM’s words were echoed by many human rights activists, including Lieutenant-General (ret’d) Roméo Dallaire and Amnesty International Canada secretary-general Alex Neve, who conclude that Khadr “is indeed a victim of human rights violations for which Canada has much to account.”

Some legal experts have begun weighing in on the issue. The Chronicle Herald writes,

“Legal experts think [that seeking a settlement was the most sensible approach]. Cases concerning Khadr have come before the Supreme Court three times. The court found that Canada breached Khadr's constitutional rights. Carmen Cheung, executive director of the Global Justice Lab at University of Toronto's Munk School of Global Affairs, says the breach pertained largely to Khadr's interrogation by Canadian officials while incarcerated at Guantanamo Bay. "The remedy for that breach has been quite limited," she said. As a result, Cheung said the government probably felt Khadr's civil suit was likely to succeed and opted to resolve matters out of court for less money.”

Echoing the above, professor and national security expert Craig Forcese adds that the government was smart to settle the case given their “own legal exposure for, essentially, a form of complicity.” Forcese refers here to “two Supreme Court and several lower court holdings collectively finding that the government had violated its obligations -- including under the Charter -- in using Khadr's detention in a system violating international law as an interrogation opportunity.” Continues Forcese, “[…] even where a government case has merit, the evidence of that merit may be clothed in secrecy, leading to a form of gray mail: you cannot prove the merit.”

Another legal battle may ensue from this settlement: the Globe and Mail reports that Tabitha Speer – widow of the soldier killed by a grenade allegedly thrown by Khadr – and Layne Morris – a soldier also wounded in the same fight – have “won a 2015 default judgment in Utah against Mr. Khadr for $134-million (U.S.) in damages for his alleged actions in Afghanistan. Mr. Khadr was in prison and did not defend himself.” It is alleged that they have filed an application blocking Ottawa from remitting payment to Khadr and may also request any funds received by Khadr to be paid to them instead.

Exploring this issue, the Chronicle Herald writes that

“Lawyers monitoring the case say the prospect of recovering money to pay the U.S. court-ordered damages is dubious. Lorne Sossin, dean of York University's Osgoode Hall Law School, says Khadr's legal team will likely rely on elements from Ontario's Reciprocal Enforcement of Judgments Act. A section of the act lays out several criteria that would bar courts from enforcing an American ruling, and Sossin said several of them apply to Khadr. "That suit was conducted in Mr. Khadr's absence and is based on evidence and information obtained at Guantanamo using interrogation techniques found to violate international and Canadian law," he said in an email.”

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