The Legal Case Against the Khadr Settlement

Was the Government of Canada’s decision to settle with Omar Khadr for $10.5 million a pragmatic choice that saved the taxpayers millions in the long run? This is certainly what the government and some commentators would have us believe. If true, this would provide a sensible justification for the settlement. A multi-million dollar payout to an individual who previously participated in a war against Canada and its allies, and may have thrown a grenade that killed one American soldier and blinded another, is unlikely to sit well with the majority of Canadians. But if the law is such that Khadr would have been awarded this amount or more at trial, then we can hardly criticize the government for taking the fiscally prudent course.

A closer examination of the applicable legal principles, however, casts grave doubt on the government’s assertion.

To begin, Khadr was advancing numerous tort law claims, each of which would have presented a steep uphill battle at trial. The main claim was for civil conspiracy, i.e., that the Canadian government conspired with the U.S. government to torture Khadr and keep him shackled. It was an interesting allegation, but where was that evidence going to come from? Khadr’s lawyers would have been required to prove, without any evidence from the U.S. since it had not been named as a defendant, that Canada and the U.S. entered into an agreement to commit unlawful actions. On top of that, they would have also had the burden of proving that Khadr sustained “special damages” – meaning financial losses – as a result of the conspiracy. The claim made for catchy newspaper headlines, but there was little, if any, chance of success had it gone to trial.

Proving the other tort claims would have been even more onerous, which is why Khadr’s lawyers fought so hard to include the conspiracy claim. The public misfeasance claim was going to have all the same evidentiary problems, and Khadr would have had the hefty burden of proving that Canadian officials deliberately engaged in conduct they knew at the time to be unlawful, and with the intention of harming him.

The negligence claims would have been dismissed unless the court affirmed a new duty of care between intelligence personnel and suspected terrorists. Such a duty would have almost certainly been rejected at the second stage of the “Anns Test” on the basis that it is contrary to public policy. What is more, even if this new duty of care were established, Khadr’s potential recovery for pain and suffering would have been capped at about $360,000 – and that amount is typically reserved for the most catastrophically injured individuals.

The assault, battery and wrongful imprisonment claims were similarly doomed to fail since Khadr had been detained by the U.S. and there was no evidence Canadian officials had abused him.

Then there was the claim under the Charter. Many have pointed to the Supreme Court’s decision in Canada v. Khadr, in which the Court found that the government had infringed Khadr’s rights under section 7 of the Charter, as a justification for the settlement.  But the decision in Khadr is a bit of a double-edged sword. While the Court certainly found that Khadr’s rights had been breached, the scope of the breach was relatively narrow. The Court did not find that the government was complicit in cruel or unusual punishment, or that it had a duty to repatriate Khadr. Rather, the violation of Khadr’s rights occurred when Canadian officials questioned him at Guantanamo Bay, despite the fact that he had been subject to sleep deprivation, and then shared this information with the Americans thereby contributing to his continued detention.

There is no way to know with any certainty what a court would have done with these findings at the damages stage, but past precedent suggests the award was going to be nominal.  Since the Supreme Court’s decision in Ward, which established the framework for when Charter damages can be awarded, few Charter cases have resulted in a damages award, and of those that have, most judgments have been in the range of $10,000 or less.

There are a few outliers where damages have been more significant, but these are typically cases where an individual has been subject to cruel and unusual treatment or was wrongfully imprisoned. And even these cases fall far short of the Khadr settlement.

For example, in Ogiamien v Ontario, the court concluded that the claimants had been subjected to treatment that “was so excessive as to outrage standards of decency; was disproportionate; and was degrading.” These findings go well beyond what the Supreme Court said about the treatment of Khadr, and yet the applicants in Ogiamien were only awarded $60,000 and $25,000 respectively.

The highest award to date following a trial is the case of Ivan Henry who was wrongly imprisoned for 27 years. He was awarded $7.5 million as compensation for being denied his fundamental liberty for nearly three decades. The contrast with Khadr’s case is obvious. And yet, supporters of the settlement evidently believe that Khadr’s damages would have eclipsed Henry’s and that Khadr was going to receive the largest award in the history of the Charter. Put bluntly, that was never going to happen.

There are certainly examples of the government writing cheques that mirror the Khadr settlement to victims of serious injustice, most notably Maher Arar. To be sure, Arar’s settlement is not a legal “precedent,” as we will never know what damages would have been awarded at trial. But even taking it as a guide, it is clearly distinguishable, since Canada was complicit in his torture. More importantly, Arar was 100% innocent and there was a sound basis for the government to pay a premium and settle early rather than going to trial against an extremely sympathetic plaintiff.

In sum, based on the law and the facts as we know them today, had Khadr’s case been litigated to judgment, it is highly unlikely (i) that Khadr would have proved any of the tort law claims on a balance of probabilities, and (ii) that, even if he established liability against Canada for the various torts and everything else had gone his way at trial, the court would have ordered Canada to pay Khadr anything close to the $10.5 million the government has now paid him voluntarily.