News & Media

Khadr settlement the correct choice, but we don’t have to like it.

July 14, 2017

Robert Karrass discusses the Omar Khadr Settlement.

The Lawyer’s Daily, July 2017

The Omar Khadr settlement has been a political bloodbath for the Left and the Right. The Left has stated that Khadr was a child soldier who was detained, interrogated by Americans and Canadians, tortured, and (though a child) tried for war crimes as an adult, all in violation of his S. 7 Charter rights. For this breach the federal government settled a 20 million dollar civil lawsuit by paying Khadr 10.5 million dollars.

The Right has immediately responded by denouncing this settlement calling Khadr a terrorist and murderer. The leader of the Conservative party, Andrew Scheer, called the settlement “disgusting” stating that “this payout is a slap in the face to men and women in uniform who face incredible danger every day to keep us safe.” 

As usual, the answer lies somewhere in the middle. Khadr was an enemy combatant, either he was immune from prosecution for murder (combatant immunity) or he was entitled to avail himself of the criminal justice system and be treated like all other accused individuals; as a child, he was entitled to even stricter protections.

How were Khadr’s Charter rights breached? According to a unanimous Supreme Court in Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44:

… Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. …  The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld).  … Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording … Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations.  Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation”… 

This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

Is a breach of an individual’s Charter rights compensable in damages? Again, according to the Supreme Court in Vancouver (City) v. Ward, [2010] 2 SCR 28, the answer is yes.

As stated in Ward, if a breach of Charter rights has occurred and if damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches, and where the state cannot demonstrate countervailing factors, damages may properly be awarded.

In the law it is often necessary to remove the individuals from the issues and put aside the need to “win”. If we look at the jurisprudence, it seems that Khadr was likely to be successful in his claim (although it is unclear how much money he would have been awarded). Settling was the best and most likely way to mitigate risk and reduce potential damages, especially since the government would be responsible for Khadr’s costs as well as their own. 

The Federal government made the correct and practical choice; that doesn’t mean we have to like it.

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