Liberals could have defended Khadr case

The Trudeau Liberals insist they had little choice but to settle with Omar Khadr for $10.5 million.

This in light of Khadr’s $20-million civil suit against them and because the Supreme Court found in 2010 that the Jean Chretien and Paul Martin Liberal governments violated Khadr’s Charter rights to life, liberty and security of the person in 2003 and 2004.

That was when they sent CSIS and Foreign Affairs interrogators to question Khadr in Guantanamo, and shared the information they obtained with his American captors, knowing he had been sleep deprived.

The Supreme Court ruled subjecting Khadr to this as a youth, while questioning him without access to legal counsel, violated his rights.

None of that, however, means the Trudeau government couldn’t have defended the Khadr suit, nor that it would automatically have had to pay $10.5 million.

A veteran lawyer I spoke with said the amount awarded by the court could have been much less, given that the Liberal government could have mounted a credible defence, based on several factors.

First, the 2010 court decision did not require the federal government to try and repatriate Khadr, who was nonetheless repatriated just two years later, under the Stephen Harper government.

Second, plaintiffs routinely ask for much more than they expect to be awarded if they win, so there was nothing written in stone about Khadr’s $20-million claim.

Third, while it’s likely (though not automatic) the government would have been found liable for damages, given the 2010 court ruling, it could have argued those damages should be well short of $10.5 million.

For example, it could have argued the major violator of Khadr’s rights was the U.S., not Canada, and that Canada isn’t responsible for what the U.S. did.

Then there’s the issue of to what extent Khadr was the author of his own misfortune, known legally as volenti non fit injuria,

Here, the lawyer said, the Trudeau government could have argued Khadr caused the situation he was in by participating in a firefight against U.S. soldiers in Afghanistan in 2002, that led to the death of Sgt. Christopher Speer and the blinding of Sgt. Layne Morris in one eye.

In a car accident, for example, damages to a plaintiff can be eliminated or reduced if it’s found he was speeding and/or not wearing a seat belt.

In the Khadr case, the court would have had to decide to what extent Khadr acted under his own free will at 15 years of age, and to what extent he was under the influence of his terrorist father, Ahmed Said Khadr, who sent him to terrorist training camps operated by the Taliban and Osama bin Laden.

Given these arguments, the lawyer said, the court could have awarded damages substantially less than $10.5 million, or the $11.5 million, with an apology, that Maher Arar settled for in 2007 with the Harper government.

That was another case, caused by the Chretien government, in which Arar, who was innocent, was deported by the Americans to Syria in 2002 and tortured, after the RCMP gave the U.S. false information about his supposed ties to terrorists.

In other words, the Chretien government’s actions were far worse than with Khadr.

Simply put, the Trudeau government, which claimed the Khadr case has already cost almost $5 million — which the lawyer said sounds extraordinarily high — could have defended itself had it wanted to. It didn’t.