On November 29, 2017, the OBA Foundation hosted a debate entitled: “The Omar Khadr Settlement – Fair and Reasonable?”  Pro: James Morton  Con: Rachel Curran  Moderator: Jennnifer Hollett.

On July 7, 2017, Justice Minister Jody Wilson-Raybould and Public Safety Minister Ralph Goodale confirmed a $10.5-million settlement with former Guantanamo Bay inmate Omar Khar. They also delivered a formal apology to Khadr for the role played by Canadian officials in his mistreatment while in the U.S. military prison.

The announcement capped a decade of litigation, which included two Supreme Court of Canada judgments declaring that Canada had violated Khadr’s Charter rights, but refusing to dictate how the Harper government should respond to his request for repatriation to Canada.

The events following the capture of this child soldier in Afghanistan kept open a divide in Canadian public opinion since the U.S.-led war in the Central Asian country against the Al-Qaeda terror group and its Taliban government protectors.  Some viewed Khadr, captured in combat against American forces in a “War on Terror” involving Canadian forces, as a traitor. Others saw Canada’s refusal to request his return to Canada as a politically-motivated stance playing to anti-Muslim and anti-immigrant sentiment. Yet others, especially in the legal community, struggled between the government’s public safety mandate and an ally’s treatment of a Canadian citizen and a minor. But was the amount of the settlement justified?

On November 29, the OBA Foundation hosted its second annual debate to cut through the political rhetoric.  OBA Past-President James Morton argued for the resolution that the settlement was ‘fair and reasonable.’  Rachel Curran, a Senior Associate with Harper & Associates Consulting, broadcast commentator and Director of Policy to former Prime Minister Stephen Harper, argued against the resolution.  Jennifer Hollett, head of News and Government at Twitter Canada, moderated. OBA Foundation Chair Steven Rosenhek said the debate is important because “the public wants to know whether it was necessary to pay anything, let alone millions of dollars.”

Pro

“We must not lose our moral compass the next time” ​

James Morton, Morton Barristers

Morton launched the debate with two sentences: “Actions have meaning. Moral panic is a real thing.” He gave the moral justification for the settlement as Canadian officials’ complicity in the U.S. military imprisonment of a soldier who, due to his lack of years, also lacked legal responsibility. Khadr’s time in prison included various forms of torture that were designed not to inflict physical scars. The settlement was symbolic because, as a country, “We must not lose our moral compass the next time.” 

Morton’s legal argument was that the Supreme Court had already ruled that Khadr’s Charter rights were violated, and that damages were available independent of private law remedies. The closest analogy was compensation for those wrongfully convicted and imprisoned, and the amount of the settlement was in the range. Nevertheless, to circle back to the moral argument, “The number is not important. What is important is the principle of a material and significant settlement.”

Con

Litigate the action to find out what a court had to say on the damages

Rachel Curran, Harper and Associates

Curran narrowed the focus of the resolution by accepting, as the Supreme Court had ruled, that there was a Charter violation. However, in the absence of a private law remedy, such a violation cannot justify a $10.5 million award. In her view, the settlement was a political choice and not driven by legal imperative. The Supreme Court had only ruled on the Charter violation for the purposes of an application for Khadr’s repatriation to serve the rest of his U.S. sentence in Canada.  The original Charter damages were claimed in the amount of $100,000. When Canadian officials reported to the government on Khadr’s condition, they did not find him showing signs of serious mistreatment, and he appeared to be in good health. They knew his U.S. captors had used sleep deprivation techniques, but this conduct was independent of any Canadian involvement.

It was only when Khadr’s lawyers added pleadings of civil conspiracy and public misfeasance did the claim increase to $20 million, Curran argued. It was hard to win on those claims in the absence of evidence of intent to do him harm and, moreover, the absence of the United States as the alleged co-conspirator. In her legal analysis, the compensation principle justified at most an award of about $100,000, and it would not have been that expensive to litigate the action to find out what a court had to say on the damages. When Prime Minister Justin Trudeau stated that the claim could have been worth $40 million, according to Curran, “He either had bad legal advice, or there is something more to the story that we don’t know about.” 

Questions

The debate concluded with questions from the audience. Although the sense was that there was no prevailing argument, Morton and Curran, in answering questions, agreed the outrage among many Canadians could have been mitigated with better media relations. While acknowledging that settlements involve confidentiality of the bargaining process, the government should have been able to provide a clearer and more detailed justification for the settlement. Had that occurred, perhaps the settlement would have brought Canadians of different political views together in discourse, instead of allowing them to step onto familiar soapboxes. For one afternoon, at least, Morton and Curran challenged us to come together and search for a middle ground.

The debate will soon be posted to the OBA Foundation page on OBA.org, to serve a resource for public discourse and education.

The Second Annual OBA Foundation Debate continued the goal of the First Annual Debate , "A New Approach to Sexual Assault Trials", namely to provide legal education on important issues of the day. 

The OBA Foundation promotes legal education and advances innovative research with the goal of improving the justice system. It is a registered charity and may issue charitable receipts under its CRA registration number 0779728-21.  Some of the Foundation's other projects include the OBA Foundation - Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism; The OBA Foundation Awards; The Hoffstein Book Award;  The Widdifield Award; The Wolfe Goodman Award; The OBA Foundation Canadian Aboriginal, Environmental and/or Natural Resources Essay Competition; and  the Justice Video Library.  The Foundation welcomes funding proposals for worthwhile projects within its mandate. For more information, please visit oba.org/Foundation