Effort to freeze Khadr’s assets rejected

‘You’re asking for execution before judgment’

An Ontario judge refused to slap a “draconian” freezing order on the assets of Omar Khadr, saying there is no evidence the former child soldier is trying to hide money from the American soldier and widow who are trying to claim his recent $10.5-million settlement payment from Canada.

The quick decision of Judge Edward Belobaba is a lost battle for the widow and children of U.S. Sgt. Christopher Speer, who was killed in the 2002 firefight that led to Khadr’s capture in Afghanistan, and for Layne Morris, who was seriously injured, and his wife, Leisl.

But the broader legal war continues, and a full and complex hearing in the fall is expected to settle whether the Americans can enforce their controversial 2015 U.S. court judgment in a Canadian court.

That is normally a simple and uncontroversial process, but Khadr is not a normal civil defendant.

His lawyer, Nathan Whitling, indicated his defence will amount to a “deep dive” into public policy, foreign law, expert testimony, and the bizarre jurisdictional issues that were in play when Khadr was sued in Utah.

Khadr declined to participate in the lawsuit from a jail in Alberta, and was ordered to pay Speer and Morris $134 million based on a confession he gave to an American military commission in order to escape from their extraterritorial torture camp, and which he has since recanted.

Rather than helping him in this, Canada participated in his interrogation under what the Supreme Court of Canada called “oppressive circumstances,” specifically, sleep deprivation.

The top court found this behaviour was “contrary to Canada’s international human rights obligations” and amounted to a serious breach of Khadr’s charter rights.

As a result, enforcing that $134-million judgment in Canada will be what folksy lawyers call a “tough row to hoe.” But freezing his assets until the case is decided proved straight up impossible.

“We don’t have one law for Mr. Khadr and one law for other Canadians,” Judge Belobaba said.

Prime Minister Justin Trudeau said he shares the concerns of Canadians who object to the settlement payment, but he said it was the responsible thing to do, both morally and economically.

“I can understand Canadians’ concerns about the settlement. In fact, I share those concerns about the money. That’s why we settled,” Trudeau said on Thursday in Ottawa. “If we had continued to fight this, not only would we have inevitably lost, but estimates range from $30- to $40-million that it would have ended up costing the government . ... The measure of a society — a just society — is not whether we stand up for people’s rights when it’s easy or popular to do so. It’s whether we recognize rights when it’s difficult, when it’s unpopular.”

In court in Toronto, it was clear Speer and Morris’s lawyer, David Winer, had an uphill climb.

“You’re asking for execution before judgment,” Belobaba told him, before refusing to issue a Mareva injunction, which would have tied up Khadr’s settlement for the duration of this case, on a timeline of perhaps two years. Belobaba called this freezing order a “very drastic and extraordinary remedy” that requires at least some kind of evidence that the money in question is being “dissipated,” or as he put, that Khadr is, for example, fixing to fly to Venezuela and stash his money in the Cayman Islands.

“If you can’t clear this one criteria, then we’re done,” Belobaba said.

In the end, Winer could not. The best evidence he could muster were some anonymously sourced claims in news reports from the Globe and Mail and The Canadian Press, to the effect that the $10.5 million has been paid by Canada to settle Khadr’s lawsuit; that the payment was “specifically expedited” so that Khadr would get the money before Canada could be legally barred from paying it; and that the money is being “sheltered,” presumably by being transferred to other people or places.

The matter is set to return for a full hearing in October.