Did Canada Reward a Terrorist or Respect the Judgment of the Supreme Court of Canada and Comply with it?

Saturday, 8 July 2017

In this note, I propose to address two issues that have been the subject of acrimonious debate and one issue that has been ignored. 

The compensation and the amount of it

The payment of $10.5 million dollars to Omar Khadr by way of compensation aroused a great deal of political and public indignation and anger. The government’s apology to Khadr that accompanied the monetary compensation, simply added fuel to fire.

Let me start by stating that the compensation is based on and necessitated by the 2010 decision of the Supreme Court of Canada which unanimously held that the way Canadian officials went about treating during Khadr during his the interrogations while he was detained as a prisoner by the U.S. military in Guantanamo Bay, “offended the most basic Canadian standards about the treatment of detained youth suspects.”

Despite the considerable number of misleading, exaggerated and downright erroneous facts that have been spewed and the highly questionable analogies and comparisons that have been made by the outraged and the indignant, the latest poll indicated that 60% of Canadians approve the government’s decisions, while a maximum of 40% objected to them. I say “maximum”, because, as in almost all polls, besides those who express their approval or disapproval without the slightest clue about the true facts of a case, there is a group of respondents who simply cannot make up their minds or think or feel that they do not know enough about the facts of the case or the issues raised by it, to be able to express an opinion, whose answers are usually recorded as “I don’t know”.

Now what is the government faced with a damning Supreme Court judgment supposed to do? One thing for sure, it could not ignore it particularly since the wrongs were committed by its own employees and refuse to come up with a remedy.

The conventional remedy in such cases is to provide monetary compensation. And seven long years from the date of the judgment, it came up with a figure that took into account, first, the gravity of the wrongs committed by the government and confirmed by the Supreme Court; second, the inevitable increase in the amount of the compensation necessitated  by the length of time it took to reach the final decision, and third, the prospect of facing a lengthy trial which ,at the end of the day, would likely end up costing  the public treasury far more than the amount of compensation Khadr agreed to accept.  .

I suppose had the government been one that fails to read carefully  and appreciate fully  the import of the findings of the Supreme Court, and/or a gutless political opportunist one, it would have let the matter go to Court so that the Court would be the one to blame for the amount of the compensation awarded.

Whatever the shortcomings of the Prime Minister’s might be, in this instance, his decision to pay compensation is a principled one.

In the absence of access to all the files related to this matter, whether a lower sum would have been more reasonable and whether such a sum would have been accepted by Khadr’s counsel, are matters which could be debate forever without ever getting to the right answers.

Concerning the public apology

I now come to the matter of the government issuing a public apology. Was it necessary to issue this apology?

In the ordinary course of events, the government does not issue a public, or for that matter, a private apology to individuals victimised by the mis-or-malfeasances of its employees, in addition to paying compensation, possibly save where a timely private apology by an appropriate official may be necessary to settle a claim and prevent it from going to court, particularly those cases where the facts are particularly bad for the government.

So what distinguishes Khadr’s case?

Ultimately, I suspect that the decision to make the apology was triggered by a combination of the Prime Minister’s moral values; his proclivity to apologise, and his political instincts to keep the Liberals in the good graces of the Muslim community, and to solidify the support of the Liberals in Quebec and Ontario, both of which have a significant Muslim electoral clout.

Personally, I think, the apology was overdoing things and need not have been made, unless that is, the apology was necessary in order to clinch the settlement of the court action initiated by Khadr, keeping in mind that by the time the claim was settled, the government had already spent nearly $5 million in legal costs.

The propriety of the government’s payment of the compensation at this time

The third issue concerns the ethics of the way the government conducted itself in executing its decision.

About the time the word got around that the government intended to pay Khadr $10 million, the widow of the soldier killed and the one  partially blinded by a hand grenade allegedly thrown by Khadr  at or near these two soldiers, applied to the Superior Court of Ontario to freeze or block the payment of the compensation by the government and pending the outcome of the application and of the other proceedings they intended to bring against Khadr in  the due course, by way of having the Court recognise and enforce the default  judgment against Khadr issued by  the  U.S. Federal Court in the State of Utah.

In that default judgment, issued in 2015, the Court awarded the plaintiff widow and partially blinded soldier damages in the order of $134 million that consisted of the actual damages suffered by the parties tripled as punitive damages.

I would have thought that in the light of first set of proceedings in Ontario, the government should have held up the payment of compensation pending the outcome of the proceedings on the cardinal principle that, where the government has no pecuniary or public policy interest in the outcome that of a litigation between private parties, the government must not only stay strictly neutral but must also appear to be doing so.

In this particular instance, the government appears to have breached this principle by writing and forwarding the cheque to Khadr’s counsel post-haste to insure that Khadr got paid, before the Court has had the opportunity to decide on the merits of the proceedings, and, in the interim, to determine whether it ought to issue an order to halt the payment of the compensation, pending the outcome of the proceedings. 

Unless, the facts prove otherwise, it looks like, the government conspired with counsel for Khadr to pre-empt and hopefully defeat the proceedings initiated by the American applicants/plaintiffs and thereby behaved in an unethical manner unbecoming the government of Canada.