Andrew Scheer Facebook page
By: Dana Wagner on
Andrew Scheer, Conservative Leader and MP for Regina — Qu'Appelle, in a Facebook post on July 10, 2017
The government had a choice to settle Khadr’s lawsuit or fight it in court. However, according to a few experts, going to court might make political sense but not practical sense. Khadr’s lawsuit followed a Supreme Court decision that found Canadian officials participated in keeping him detained in a foreign prison system that violated his human rights.FactsCan Score: True
Earlier this month, Canadians learned the government agreed to pay $10.5 million to Omar Khadr, a Canadian citizen who spent a decade in detention since age 15 for his disputed role in killing an American soldier in Afghanistan. A large part of his detention passed in Guantanamo Bay prison. The money, and a separate apology, settles a lawsuit launched by Khadr against the Government of Canada.
The settlement has attracted steady criticism from opposition politicians including Conservative leader Andrew Scheer. In a Facebook post on July 10, Scheer said, “the payout to Omar Khadr was a choice made by Justin Trudeau.” In a later post, Scheer wrote, “As Prime Minister, I would have fought this payout in court. Justin Trudeau could have defended this in court and allowed due process to decide if a settlement was warranted.” And again, he wrote, “I would have fought against this payout in court and made absolutely clear that taxpayers won’t be rewarding an admitted terrorist.”
Using words like “rewarding” and “admitted terrorist” could imply the money is undeserved or gratuitous, and therefore that government had a shot at winning Khadr’s lawsuit. This check examines the technical question of whether or not the government had a choice to settle, and for context, analyzes the possibility of a win in court.
Khadr initially launched a civil lawsuit against Canada in 2004. In 2014, he won the right to amend the lawsuit, adding a lot to it, and pegging the cost of damages to $20 million.
Khadr’s claim against the government alleged: “negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff [Khadr], failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office.”
Did the government have a choice to settle or go to court?
Yes, the government had a choice. There was no requirement to settle. Instead of pay $10.5 million and offer an apology, Trudeau could have decided to argue against Khadr’s $20 million lawsuit in court.
Sébastien Grammond, a constitutional lawyer at the University of Ottawa, explained, “settling a case is always the result of a choice, but this choice is often made under significant constraints, depending mainly on one’s assessment of one’s chances of winning or losing, the amount at issue and the cost of going to trial.”
Did the government have a chance of winning in court?
According to several prominent lawyers, the government was unlikely to win, in full, the civil lawsuit launched by Khadr, as Canada’s highest court had already sided with him on some important points.
In a 2010 decision, the Supreme Court of Canada found the Canadian government violated its obligations within a system that deprived Khadr of his human rights. Specifically, Canadian officials interrogated Khadr and provided the results to Americans. Although the U.S. was the primary source of violating Khadr’s rights, the court found, “Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person.”
The court further wrote, “the interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”
This is not the only relevant Canadian court ruling in favour of Khadr, but one of the more significant.
Grammond didn’t directly comment on the likelihood of a win or loss in Khadr’s lawsuit, but said, “it is obvious that the Supreme Court’s decision would have loomed large in a judge’s eventual decision.”
Given the facts established by the Supreme Court case, it was “prudent” to settle, wrote Audrey Macklin, law professor and director of the Centre for Criminology and Sociolegal Studies at the University of Toronto, in a Globe and Mail opinion. That decision “provides the starting point for civil liability but does not exhaust it. Litigation would be protracted, ugly and force disclosure of conduct by Canadian officials that would publicly disgrace the government, and potentially lead to liability and a damages award that would dwarf the amount of a settlement, especially when added to the staggering costs of litigation.”
Lorne Sossin, the dean of Osgoode law school at York University, said, “Scheer is right that the settlement represented a choice by government – in terms of the timing and amount of the settlement in particular.” But Sossin continued in agreement with Macklin that, “had the civil suit reached its conclusion, it is likely that Mr. Khadr would have prevailed (at least on some of the grounds he had raised) by relying on the findings of the Supreme Court in 2010 that Mr. Khadr’s Charter rights were violated, and that his incarceration at Guantanamo Bay, prolonged by the collaboration of Canadian government officials with the American military was contrary to international law.”
Sossin said that payment resulting from a lost civil suit could have far exceeded $10.5 million, as Khadr sued for $20 million excluding legal costs.
Craig Forcese, a constitutional lawyer at the University of Ottawa, wrote in his blog, “the government will eventually lose such cases” that involve wrongful conduct by Canadian officials within systems that violate international law. In a follow-up blog, Forcese wrote, “basically, the Khadr case was probably mostly just a question of quantifying the damages.”
Not everyone agrees the government’s chances of winning were so slim.
“Anyone who says it was a slam dunk is over-simplifying the case,” said Howard Anglin, former senior legal counsel to Prime Minister Stephen Harper, who now leads the Canadian Constitution Foundation. Anglin said, “Bottom line: I can’t imagine a Canadian court exculpating Canada altogether, but it was possible. But nor do I see Khadr prevailing on all his claims.”
Anglin explained the political case for going to trial. While he thinks there were good legal reasons to pursue the case in court, even at higher overall cost, he argued that it could still make sense if the government was likely to lose. “Long-shot or even losing causes may be fought for noble reasons. I suspect Scheer is incorporating this approach into his position, regardless of the prudential merits of the settlement. I also suspect that’s what many people who oppose the settlement believe: that it was the wrong choice (in a non-legal sense), even if there was a real risk of paying more eventually under court order. That element can’t be discounted in politics.”
Scheer is right that Trudeau had a choice: settle or go to court. However, the choice was more limited than Scheer portrayed from a practical perspective. The alternative to a settlement was the possibility of a long and costly court case with at best an uncertain outcome. Because of the facts already established by the Supreme Court that Canada participated in an illegal process and the deprivation of rights, it’s unlikely the government would have won in full.
Background on Omar Khadr
Omar Khadr is 30 years old and a Canadian citizen. In July 2002 at age 15, he was captured by U.S. forces in Afghanistan. He is alleged to have thrown a grenade that killed an American soldier, a charge he disputes. He was transferred to Guantanamo Bay prison later the same year, in October 2002, at age 16.
Khadr faced criminal charges in the U.S., to which he initially pleaded not guilty, but switched to a guilty plea with the prospect of transfer to a Canadian prison. Once in Canada, Khadr appealed the convictions and launched a new civil lawsuit against the Canadian government.
Since his capture, three Canadian governments under prime ministers Jean Chrétien, Paul Martin and Stephen Harper refused to request Khadr’s repatriation back to Canada.
Read more analysis about the settlement:
“Omar Khadr’s legal odyssey, from Guantanamo Bay to apology,” The Canadian Press: http://www.cbc.ca/news/politics/omar-khadr-s-legal-odyssey-from-guantanamo-bay-to-apology-1.2987034
“What 3 legal minds think about the Omar Khadr settlement,” Aaron Wherry, CBC: http://www.cbc.ca/beta/news/politics/omar-khadr-legal-analysis-aaron-wherry-1.4199409
“A Once & Final Parsing of the Legal Context for the Khadr Settlement” by Craig Forcese, National Security Law blog: http://craigforcese.squarespace.com/national-security-law-blog/2017/7/11/a-once-final-parsing-of-the-legal-context-for-the-khadr-sett.html