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‘Odious’ Khadr payout is the penalty for being lax on the rule of law

"Odious" was the word used by Jason Kenney, the current Alberta Progressive Conservative Party leader and former federal minister, to describe a $10.5-million settlement for Omar Khadr. Yet at the time Mr. Kenney was a minister of the Crown, the lawyers dispatched by the federal government kept losing.

That's important because of what is really at play in the Khadr case now: liability. The Crown was on the hook.

The Supreme Court of Canada had already found in 2010 that the government acted unconstitutionally, that Canadian officials were complicit in the 2003 interrogation of a youth who'd been subjected to sleep deprivation, and then handed over the info to the Americans. That, the court ruled, violated the principles of fundamental justice, and it made the Canadian government partly responsible for Mr. Khadr's continued imprisonment in Guantanamo Bay.

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After that, there wasn't really a ton of doubt that Ottawa would one day have to pay. That was especially true after another Supreme Court ruling, Vancouver v. Ward, made it clear that Canadians can claim damages when the government violates their Charter rights, said Eugene Meehan, a lawyer and former executive legal officer of the Supreme Court.

It's one thing to feel distaste that Mr. Khadr is pocketing such a sum. But it's pointless to feel outrage that the government is settling a legal case it really lost long ago. Are we a nation of laws? That's been a recurring question in this case.

No doubt many feel a sense of injustice at the thought of Mr. Khadr getting millions. He was captured on a battlefield in Afghanistan and pleaded guilty to throwing the grenade that killed U.S. Army Sergeant Christopher Speer. Whether he actually threw that grenade is now less clear, but he was clearly an armed combatant in a firefight. Even some who feel sympathy for a 15-year-old kid captured on a battlefield won't believe these millions add up to justice.

Mr. Khadr's age is the dividing point of public opinion. His father, Ahmed Said Khadr, was a senior al-Qaeda associate, and Omar was part of what former Ontario MPP and current senator Bob Runciman labelled "Canada's first family of terrorism." Some see Omar Khadr as a child soldier coerced into bad acts by his father; others say he was a bad guy and don't care about this age.

But the Supreme Court did care. One of the key aspects of its rulings regarding Mr. Khadr was that he was an underage kid, so the Canadian government couldn't just take part in interrogating him, under duress, without access to counsel, and allow the results to be used against him. That, the court found, "offends the most basic Canadian standards."

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Another key point established in the case, according to Robert Currie, a professor at Dalhousie University's Schulich School of Law, is that Canadian officials outside of Canada aren't immune from legal responsibility in such things.

Both points are critically important. There were enough examples of post-9/11 rendition, where governments were complicit in sending citizens abroad for interrogation and torture, that we should want laws to protect us. Most Canadians think minors should have special legal protection. If those are real legal principles, they apply to bad guys, too.

Mr. Khadr was the object of such outrage that such legalisms could be ignored. While Australia and Britain asked for their citizens to be repatriated from Guantanamo to domestic jails, Canada didn't. That was the nub of Mr. Khadr's Canadian court cases: that Canadians had violated his rights, and still weren't doing anything to get him out of Guantanamo. The Supreme Court decided they could not order Prime Minister Stephen Harper to ask for the United States to send him back, but they declared Mr. Khadr's rights were violated. "The failure to request his repatriation was part of the Charter breach, and therefore part of the compensation," said Mr. Meehan.

The payout, in the end, is the penalty for being lax on the rule of law. But the blame for the sum doesn't lie with Justin Trudeau for settling, but the two prime ministers chiefly responsible for the liability, Jean Chrétien and Stephen Harper. Those illegal 2003 Canadian interrogations took place on Mr. Chrétien's watch, and Mr. Harper made the liability larger by telling Mr. Khadr to keep rotting in Guantanamo. That's what has made Mr. Khadr's case worth millions.

Justin Trudeau asked about Omar Khadr settlement (The Canadian Press)
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About the Author
Chief political writer

Campbell Clark has been a political writer in The Globe and Mail’s Ottawa bureau since 2000. Before that he worked for The Montreal Gazette and the National Post. He writes about Canadian politics and foreign policy. More

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