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Dislike of Khadr settlement does not entitle critics to disregard law or facts

Omar Khadr is a polarizing figure. To some, Khadr is a child soldier who was brainwashed by his parents and then abandoned by the Canadian government in the notorious and illegal Guantanamo Bay detention camp in Cuba. To others, Khadr is a terrorist deserving of no sympathy.


So, it should come as no surprise that the Canadian government’s apology and payment of $10.5 million to Khadr as compensation for his ill treatment was seized upon by many as a convenient political wedge.


But first, some history.


Khadr is a Canadian citizen. His father, Ahmed, was a card-carrying terrorist who was affiliated with al-Qaida. This is how a 15-year-old Khadr ended up on a battlefield in Afghanistan following the Sept. 11, 2001 terrorist attacks in New York City. Khadr was taken prisoner by the United States on July 27, 2002 following an intense firefight. He was seriously injured in the battle. The United States alleged he had thrown a grenade that killed an American soldier.


Khadr was detained at Guantanamo Bay for the next decade. It was during this time that Canadian officials interrogated Khadr and passed on the fruits of their interrogation to U.S. officials.


In two separate decisions, the Supreme Court of Canada found that the Canadian interrogations violated Khadr’s Charter rights and that the information derived from that illegal interrogation contributed to Khadr’s then seemingly indefinite detention at Guantanamo Bay.


Despite the final damning judgment by Canada’s highest court in 2010, it took Stephen Harper’s Conservative government almost two years to repatriate Khadr.


Khadr then sued the government for $20 million in compensation for the wilful violation of his Charter rights, negligent investigation, conspiracy with the United States in his arbitrary detention, torture, cruel, inhumane and degrading treatment, false imprisonment, intentional infliction of mental distress and failure to comply with domestic and international human rights obligations.


After a decade of losses in various legal forums, the government recently settled Khadr’s lawsuit and issued an apology.


And then the Conservative pundits and members of Parliament sprang into action attacking Trudeau’s payout to a “convicted terrorist.” It would have been naive to expect anything different — after all, there are votes to be had and fundraising to be done.


The anti-Khadr talking points have been remarkably consistent: The Charter does not apply outside Canada and if it does there were only limited Charter violations, critics of the settlement claim. And in any event, the pundits claim, Khadr is morally guilty and the author of his own misfortune — he is an admitted terrorist. Besides, the Supreme Court never ordered a secret compensation deal, they claim.


So let’s take these talking points apart, piece by piece.


It is clear that in Khadr’s case the Charter does indeed apply.

Critics of the settlement have pointed to the 2007 Supreme Court ruling in " target="_blank"]R. v. Hape where the court found that the Charter did not apply to the search and seizure of evidence by the Royal Canadian Mounted Police in the Turks and Caicos.  


But Khadr’s critics must not have read past the first paragraph of the Hape decision because the court went on to carve out an exception to the principle of comity.


The court was clear that the Charter does apply if Canadian officials operating in a foreign territory participate in activities that are contrary to Canada’s international human rights obligations.


In 2008, the Supreme Court found that that was exactly what Canada had done. This should have come as no surprise as the United States Supreme Court had already found that the procedures in place at Guantanamo Bay violated the Geneva Conventions. Consequently, Khadr was detained in violation of his fundamental human rights protected by international law and Canada’s actions contributed to his ongoing detention.


So it is clear that the Charter does indeed apply. Khadr’s critics say, however, that any violations were minimal — Canadian officials did not set up and run Guantanamo Bay, they only travelled to Cuba to ask Khadr some questions.


Except that is not what the Supreme Court found in 2010.

Canada interrogated Khadr with the full knowledge that he was being detained in a prison camp that violated international law and that Khadr had been subjected to a program of sleep deprivation designed to make him less resistant to interrogation.


The United States military commission described Guantanamo’s sleep deprivation program as “a measure designed to disorient selected detainee [. . . ] disrupt their sleep cycles and biorhythms, make them more compliant and break down their resistance to interrogation.” The commission went on to find that the program “was intended to create a feeling of hopelessness and despair in the detainee.”


Canada’s Federal Court of Appeal found the program of sleep deprivation to be cruel and abusive treatment contrary to the principles of fundamental justice.


Canada knew that this is what had been done to Khadr prior to their interrogation. In other words, Canada was complicit in torture.


But it gets worse: Canada then provided the fruits of Khadr’s interrogation to U.S. authorities. The Supreme Court found that Khadr’s statements — obtained in violation of international human rights law — contributed to his continued detention, thereby impacting his liberty and security interest.


Only the cruelest and most disingenuous partisan could claim that the violations of Khadr’s Charter rights by Canadian officials were limited.


And so the Khadr critics fall back to the moral high ground: “Khadr is a terrorist, this is why he was detained and questioned in Guantanamo. His actions contributed to the situation, so there should not be any compensation.”


Let’s leave aside the fact that the precise level of Khadr’s moral culpability is very much in doubt. The evidence that Khadr threw the grenade that killed the U.S. soldier is conflicting. Khadr’s admission of guilt was extracted in oppressive and torturous conditions. This confession would never be admissible in a Canadian court.


But none of that actually matters.


Khadr is being compensated for Charter breaches that occurred after the events on the battlefield. Khadr’s acts may have contributed to his detention, but he did nothing to bring about his own torture.


Conflating the events on the battlefield and the violations of international law that occurred afterwards may be self-serving, but it misses the point.


Charter protections do not evaporate after a finding of guilt. We do not and should not detain the guilty in illegal and inhumane conditions. We do not abuse or torture the guilty and then claim they were the cause of their own misfortune.


The Charter protects the innocent and guilty equally.


And then the critics have one last argument to fall back on — the government arrived at the compensation number by some kind of voodoo. The Supreme Court held that Khadr’s rights were violated, but it did not say he should receive millions of dollars.


That is true. But then again, the Supreme Court was never asked to rule on monetary compensation. This issue was not before the Supreme Court.


Experienced counsel through court-guided mediation arrived at the compensation amount.


Could the amount of compensation have been different after a trial? Of course it could have been. Damages would have likely been higher and costs would have been ordered against the government. According to legal experts, the estimated bill to fight a losing court battle would have been between $30 million and $40 million.


It is perfectly acceptable to be uncomfortable with the Khadr settlement. It is fine to say the government should have litigated the issue to the bitter end. But a dislike of Khadr and distaste for the settlement does not entitle critics to disregard the law or the facts.


The simple fact is that the Khadr critics’ ideology is irreconcilable with the law and the facts. The repetition of ill-informed and disingenuous talking points by the Conservative pundits and members of Parliament is nothing but a dishonest attempt at political gain that will only serve to undermine respect for human rights and the rule of law — and no settlement can compensate Canada for that crime.

  • facts

    David Hamilton
    How about these facts. 1. he was a Canadian citizen, fighting along side forces that were fighting against Canada and our allies; 2. there are videos showing Omar Khadr building IED's and teaching others how to build and deploy them format least 2 years prior to his being captured; 3. He admitted to throwing the grenade that killed Sgt Speers and wounded another American soldier.
  • Mr.

    Fred Bushor
    This is appreciated but many opponents will not be convinced. They have their opinion and do not want to be confused by facts. The facts do not support their position. (Res Ipsa Loquiter????)
  • Mr

    Donald Cirne
    The government finally did the right thing the USA mistreat prisoners disgustingly in jails and prisons all over the country.
  • Les MORLEY

    Les MORLEY
    Thank for the clear, concise explanation of the issues.
  • Mr.

    Charles Evans
    My problem starts with the fact that this is a secret deal. We have no information with respect to the amount of the settlement nor the applicable terms. We have no information with respect to how the amount of the settlement was determined. We have been told that the estimated damages if the case went to trial would be between 30-40$M - but again no analysis with respect to the legal basis for such an estimate. On this basis alone the settlement ignores "the law and the facts" as it gives none. It's a "trust Me" settlement. As a taxpayer - and effectively the client paying the bills - the lack of transparency is very troubling. My comfort level would have been considerably higher if I could have read a Supreme Court judgement that properly and fully addressed "the law and the facts" that this settlement so flagrently ignores. We don't even have a good legal opinion - but then I suspect that is secret too.
  • Ethics

    I would not hire a lawyer, like Mr Spratt, who may be following the tenets of international human rights law, but makes little allowances for moral and ethical obligations, and who is also biased about conservative views and political stripe. You should be non partisan- that is what being a true professional is all about. It’s never about the individual or party name, it’s about the crime committed. Omar Kadhr May have been a child soldier, but this fact cannot obliterate his guilt in killing innocent people, and the lack of blame and remorse he seems to display towards these victims and victims families. He just keeps asking for more privileges: a Canadian passport, the right to see his sister. Everyone has a right to see their family before they die, but not to associate with radical extremists, unaccompanied. It should be a personal sacrifice to not see his family as a form of penance for his war crimes. He says he did not commit them, but there are videos showing his intentions were otherwise. It’s still a crime.
  • Hush money

    L. Douglas Rae
    I wonder as well whether Mr. Khadr is prohibited from discussing the case and the settlement. Can the payment be considered "hush money"?
  • Canadian Citizen

    Keith Thompson
    I agree with the decision of the government to compensate MR. Khadr. However, if the government had let the case run its course, then what excuse could the critics use to make their case?
  • Ms.

    Lucretia Martenet
    As a retired lawyer who represented children in Child Welfare matters, I was appalled from the start with the government's approach to Mr. Khadre. I, as many others did, wrote letters and signed petitions, all ignored by the government. This could have been settled both morally and financially for very little if the law had been followed in the first place. For people to use this as a political football, especially in international forums and before major negotiations of NAFTA, is unconscionable.

    Thank you for standing for the rule of law and facts as opposed to uninformed opinion and a cynical stirring up of the ignorant for political advantage.
  • Ever read QB VII?

    Bill Grigg
    I have no issue with the ruling, just the amount. $0.01 would have been more in line.

    Was the settlement ordered by the court? This is the central point of the argument, and your article is silent on this issue. If not ordered, then it was a gift from the Trudeau government; however, if ordered, then certainly it is beyond politics and should not be criticized.
  • I completely agree

    Sam C.
    I don't know if Khadr (a minor at the time) engaged in terrorism. But, I would never rely on Khadr's "confession" (obtaining via torture) or the US military court's decision in that regard. That "court" has been widely criticized by jurists around the world as little more than a kangaroo court in the service of a government owned and run by big-business plutocrats.
  • Health and safety officer

    Mike Laderoute
    It is time to change the laws when someone from our country murders our allies.
    There is no room for this kind law in our society where we award this behaviour
  • Citizen

    Michael McCarthy
    "Could the amount of compensation have been different after a trial? Of course it could have been. Damages would have likely been higher and costs would have been ordered against the government. According to legal experts, the estimated bill to fight a losing court battle would have been between $30 million and $40 million."

    Speculation at best. Its also valid to speculate the Canadian gov't would have won at trial, or that in the event of losing the case, damages awarded might have been less, significantly less, possibly nothing at all! The secretive decision, without any open judicial oversight, to cave and enrich a convicted terrorist who denounced, betrayed and took up arms against his country and its clearly what rightly upsets Canadians, and Khadr's endless supply of pro bono apologists know this.

  • Mr

    Doc Fleming
    The Charter is supposed to protect the innocent and guilty equally but it does not In Canada. The system is much more slanted to the Hug-A-Thug bunch. Just look at the rules on length of time to trial. How do the victims get justice when the court realises the accused and the police say sorry we had the right guy but our justice system let him go. Even murderers get an out of jail free card and the victims and families get shafted. Equal I think not. Khadr's rights were not violated by Canadians but our Hug-A-Thug SCC could not or didn't want to look at that. They want to play God.
  • Mr

    Jim Brown
    Damages likely would have been higher? Where did you learn your law of damages? Proximity, remoteness and, most importantly, causation? Tell me any case where someone got ten million in damages for any wrong, let alone one largely caused by another party (the USA).

    And what about contributory conduct. He didn't get put in Guantanamo because he was a little angel.

    Doesn't anyone who comments on this settlement understand basic tort law?