http://www.cbc.ca/news/politics/omar-khadr-legal-analysis-aaron-wherry-1.4199409
What 3 legal minds think about the Omar Khadr settlement
Detailed perspectives to put alongside the polarized public and political reactions
By Aaron Wherry, CBC News Posted: Jul 12, 2017 11:00 AM ET| Last Updated: Jul 12, 2017 11:00 AM ET
It has been a week since word leaked that the federal government had agreed to pay Omar Khadr a settlement of $10.5 million to resolve his civil suit over allegations of mistreatment and breaches of his charter rights.
According to an Angus Reid Institue survey released Tuesday, many Canadians seem unhappy about the payment, but also seem to believe that Khadr has not been treated fairly.
The Liberals and Conservatives, meanwhile, have staked out diametrically opposed positions.
The government argues that it had "virtually no chance" of winning the case, that further contesting Khadr's suit would have cost more and that, above all, an individual's rights were violated.
The Conservatives, under leader Andrew Scheer, object to the notion of paying a "convicted terrorist," a reference to the 2010 plea deal that Khadr is appealing, and say they would have fought his lawsuit in court.
Since the case is ultimately a legal matter, CBCNews.ca reached out to three legal minds for their perspective.
Each was asked about Khadr's chances of success, how much he might have received and whether Justin Trudeau's government was wise to settle. Their comments, posted below, were lightly edited or shortened for clarity.
Craig Forcese, a law professor at the University of Ottawa, who briefly assisted Khadr's American counsel, has also written two long posts on the settlement here and here.
'The government really had no choice'
Eugene Meehan is a former executive legal officer to the Supreme Court of Canada and now a lawyer at Supreme Advocacy LLP in Ottawa, specializing in Supreme Court matters. Meehan references Vancouver vs. Ward, a ruling in 2010 that established that damages can be awarded for the breach of charter rights. (Supreme Advocacy acted as an Ottawa agent for Khadr's lawyers in the Supreme Court hearings, providing technical and procedural advice.)
The [Supreme Court of Canada] did hold, in a full-bench unanimous decision, that Mr. Khadr's constitutional rights to "life, liberty and security of the person" were violated.
The court also indicated the "proper remedy" is a declaration that his charter rights were infringed, but specifically held back from stating how that remedial declaration should be dealt with: "leaving the government a measure of discretion in deciding how best to respond."
The court did go on to say that "through the conduct of Canadian officials …Canada actively [acted] contrary to … international human rights obligations."
Vancouver vs. Ward came out six months after the Supreme Court's Khadr's decision. The Vancouver vs. Ward case stands for the proposition that charter damages are available independent of tort or proof of bad faith.
Given those two decisions, the government really had no choice. It's likely the Supreme Court believes what the government did here was the constitutionally right thing to do — but of course we'll never know that.
Given that the Supreme Court found clear charter breaches, Mr. Khadr almost certainly would have been successful at trial. The real question is, how much would he be awarded? Calculating damages is not an exact science, especially when it comes to charter breaches.
The most recent guidance is found in the Ivan Henry case. In 2016, after having been successful in the Supreme Court in 2015, he was awarded $8 million at trial. He was wrongfully convicted and imprisoned for almost 27 years. Most of the award was to vindicate Mr. Henry's breached charter rights, and to deter similar breaches of charter rights.
Similarly, David Milgaard was paid $10 million in 1999 for over 22 years imprisonment. Steven Truscott received $6.5 million for 10 years in jail and living with the stigma of being a convicted murderer for almost 50 years.
The payments for wrongful convictions likely serve as the upper limit for charter breaches. For government, a certain practicality comes in: what's the price of not having this dragged out for another 10 years and having a possible further loss at the Supreme Court of Canada? That's where the $10.5 million figure comes from.
A complicated case that deserved clarity
Howard Anglin was deputy chief of staff and senior adviser, legal affairs and policy, to former prime minister Stephen Harper from May 2013 to October 2015. Quoting former prime minister Brian Mulroney, Anglin would advise Trudeau that "You had an option, sir."
Omar Khadr's 2004 lawsuit against the government of Canada sought $100,000 in damages. Over the next decade, it was amended several times, with concomitant increases in damages until it reached $20 million in the 2014 "amended amended amended fresh as amended" statement of claim.
The most significant amendment was the last one, alleging that Canada had conspired with the United States to violate Khadr's rights. This was important because, if proved, it would overcome the inconvenient fact that the alleged mistreatment was at the hands of the Americans, not Canadians. The government would still have been able to argue that there was no conspiracy and, even if there were, Canada was not liable for the alleged mistreatments which Khadr himself said occurred in Afghanistan and Guantanamo Bay before Canadian officials visited him.
The separate claims founded in Canada's alleged failure to bring him back to Canada before 2012 were similarly complicated. There was good reason to have the courts hear and decide these claims, as they could affect how Canada treats future consular cases. If Khadr can be compensated for Canada's alleged failure to repatriate him sooner, how does that affect the cases of Canadians imprisoned in Saudi Arabia, North Korea or China? How should a court weigh a putative duty to act in the best interests of a detained Canadian against competing diplomatic considerations that fall within the Crown's prerogative power over foreign affairs? These are not straightforward legal questions.
To state the obvious, this was never a routine case. Most commentary ignores the (sui generis?) novelty of the Supreme Court's charter analysis in 2008 and 2010, which makes a poor basis for predicting the outcome of a separate civil suit. The originality of the issue was reason enough to make Khadr establish his case to a standard of legal proof in court.
I am sure the government received a risk analysis from Justice Department lawyers, which may have said that $10.5 million was a reasonable settlement. That should have factored into the government's decision, but it didn't need to be decisive. Unlike a class action, where the potential compensation could have ranged into hundreds of millions of dollars, the upper range of the risk in this case was limited.
Back in 2014, Khadr's own lawyer looked forward to "a full hearing and full airing of what happened to Omar and how he was treated by both the United States and Canadian government authorities." The Canadian government should have given him that opportunity, for his sake, for the taxpayer's sake, and for the sake of clarity and certainty in the law.
Khadr's suit had a 'pretty reasonable chance'
Lorne Sossin is dean of the Osgoode Hall Law School at York University. Sossin also spoke with CBC radio's Metro Morning this week.
If the question is whether there was a sound basis for the government's decision to settle the civil suit by Mr. Khadr, I think the answer is yes.
The suit for $20 million Mr. Khadr brought in 2014 after his repatriation to Canada (following his plea arrangement) had a pretty reasonable chance of success. In effect, Mr. Khadr would have used the findings of fact accepted by the Supreme Court in 2010 (which found his charter rights had been violated by the involvement of Canadian officials who shared fruits of their interrogation with American officials) as a foundation for claims for charter damages, and damages for various torts (including conspiracy and misfeasance of public office).
Taking this bitterly contested civil suit to trial would have taken years, cost many tens of thousands of dollars (with the government paying both its and Mr. Khadr's legal fees if Mr. Khadr succeeded), and prevented both Mr. Khadr and the government of Canada from reaching any kind of closure on this painful saga.
The case demonstrates (again) that law has real limits. It cannot bring back the life of Sgt. Christopher Speer, lost in the attack on the Afghan compound, nor can it bring back the years of Mr. Khadr's youth spent enduring unlawful confinement and unlawful treatment at Guantanamo Bay. Settlements, similarly, are imperfect. No one gets what they want or feel they deserve. Both sides make compromises in the interest of closure and this case is no different. Settlements are not for winners or losers; they are for people willing to move on.
