Khadr cash likely to prevail
Experts say controversial $10.5m deal would be upheld
Does Omar Khadr deserve $10.5 million?
Not according to Conservative leader Andrew Scheer, who said Friday the reported amount of the federal government’s settlement with the former Guantanamo Bay detainee was “a slap in the face” and insisted that simply bringing Khadr back to Canada was compensation enough.
Scheer’s argument could prove a winner with voters, but would it hold up in court?
In 2010, the Supreme Court of Canada overturned a court order that Khadr should be repatriated but agreed his Charter rights had been violated. Khadr hoped a win would lead to his release, but the court stopped short of demanding he be sent home from the detention camp in Cuba, despite documenting the participation of Canadian officials in his interrogation.
That Supreme Court decision, though, would lay the foundation for Khadr’s civil claim worth $20 million and which alleged complicity by Canadian officials in Khadr’s torture at Guantanamo. On Friday the government announced a settlement in the case, reported to be worth $10.5 million.
At a press conference announcing the decision, Public Safety Minister Ralph Goodale said the government had sunk millions into the case with virtually no chance of success.
Khadr spent 10 years in Guantanamo Bay before eventually being released in Edmonton, where he now lives. But was his return to Canada remedy enough, as Scheer argued?
James Lockyer, a Toronto lawyer who specializes in social justice issues, said there’s “not a chance” the government could win the civil case by arguing that Khadr’s repatriation was a sufficient remedy.
The irony, Lockyer said, is if previous governments had lobbied for Khadr’s return from Guantanamo Bay from the beginning then the current government would have had a better argument in the civil case.
“Given our acquiescence in torture of Mr. Khadr, I’ve no doubt the damages would have been ... punitively high” if the case had gone to trial, said Lockyer.
Khadr was interrogated by Canadian officials who were aware he had been subjected to sleep deprivation, which is the foundation of his Charter complaint.
That was affirmed by the Supreme Court decision and was the basis of the civil case but they were separate cases and “the rights at stake and the remedies available differ,” said Lorne Sossin, the dean of York University’s Osgoode Hall Law School,
“While it is true that repatriation was what Mr. Khadr sought in 2010, he sought a different remedy in (the civil case),” Sossin continued.
It would have been technically possible for the government to go to trial and argue that repatriation was compensation enough but it’s hard to find an expert who thinks that’s a good strategy.
“Repatriating Khadr was minimally necessary only to finally end the prolonged rights infringement in the first place. Whether he was owed damages, and what amount, are completely separate questions,” said University of Waterloo political scientist Emmett Macfarlane.
Scheer’s argument is purely hypothetical because we can’t know for sure if Khadr would have won more in court, but “the government acted on legal advice in making the decision to avoid costly litigation,” said Macfarlane.
In a Facebook post, Conservative MP Lisa Raitt wrote that “it is a fair assumption that a federal court trial judge would find that Mr. Khadr’s Charter rights were violated,” but she still thinks the settlement was premature.
Raitt said it’s impossible to know how a judge would have ruled in this case and, since mediation can happen at any point, it was worth travelling down the road to trial a little further.
Whatever the decision on a settlement, Raitt said Prime Minister Justin Trudeau’s absence after such a critical and unpopular decision is concerning. “The fact that he was not forthcoming with the decision indicates that he must have known what the public reaction would be,” Raitt wrote.