{"id":2430,"date":"2017-07-27T20:36:09","date_gmt":"2017-07-27T20:36:09","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2430"},"modified":"2018-08-31T18:45:54","modified_gmt":"2018-08-31T18:45:54","slug":"a-respectful-dissent-from-the-khadr-consensus","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/a-respectful-dissent-from-the-khadr-consensus\/","title":{"rendered":"A Respectful Dissent from the Khadr Consensus"},"content":{"rendered":"

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, \u201cthe restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.\u201d This is doubly true respecting violations of rights and freedoms.<\/span><\/p>\n

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example,\u00a0<\/span>Prime Minister Justin Trudeau has argued<\/span><\/a>\u00a0that $10.5M is the invariable cost, in this case, of a\u00a0Charter of Rights and Freedoms<\/em>\u00a0violation.\u00a0<\/span>Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada\u2019s actions were \u201cmorally reprehensible\u201d;<\/span><\/a>\u00a0and what\u2019s more, a damages award at trial would have \u201cdwarfed\u201d the settlement figures. Prof Craig Martin simply argues that a restoration of\u00a0<\/span>\u201cCanadian values\u201d justifies the Khadr settlement.<\/span><\/a>\u00a0Other\u00a0<\/span>examples<\/span><\/a>\u00a0abound.<\/span><\/p>\n

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from\u00a0political<\/em>\u00a0premises about the importance of the\u00a0Charter<\/em>\u00a0to Khadr\u2019s \u201chuman rights\u201d to wholly justify the settlement, without considering the\u00a0legal\u00a0<\/em>justifications and difficulties associated with awarding\u00a0Charter<\/em>damages in this case. Indeed, much of the analysis has not engaged with\u00a0<\/span>Ward v Vancouver (City)<\/span><\/i><\/a>, in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr. \u00a0In this post, I use the\u00a0Ward\u00a0<\/em>analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have \u201cdwarfed\u201d the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.<\/span><\/p>\n

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes\u2013and why I dissent from the orthodoxy on this issue.<\/span><\/p>\n

*****
\nI will start with the former claim. \u00a0Let\u2019s begin with what is true. The\u00a0Charter<\/em>\u00a0must apply for a damages award to be available. Contrary to Conservative MP Erin O\u2019Toole, the\u00a0Charter<\/em>\u00a0does apply extraterritorially in this case. While there is a complex set of cases on\u00a0Charter<\/em>\u00a0application abroad (see the recent episode of\u00a0<\/span>The Docket<\/span><\/a>\u00a0for a solid analysis), the Supreme Court held in\u00a0<\/span>Khadr 2010<\/span><\/i><\/a>\u00a0that the\u00a0Charter<\/em>\u00a0applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of\u00a0Charter<\/em>\u00a0application\u2014constitutional rights exist to afford protection \u00a0to those who the majority may not consider worthy of protection.<\/span><\/p>\n

But it is not enough for the supporters of the settlement to draw a direct line from a\u00a0Charter\u00a0<\/em>violation to the settlement. In\u00a0Ward<\/em>, the Supreme Court held that a complex analysis is required after a\u00a0Charter<\/em>\u00a0breach is found in order to determine whether damages are an \u201cappropriate and just remedy,\u201d as per the text of s.24(1) of the\u00a0Charter.<\/em>\u00a0The Court outlined the functional justifications for a\u00a0Charter\u00a0<\/em>damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate\u00a0Charter<\/em>\u00a0rights.<\/span><\/p>\n

It follows that whether a\u00a0Charter\u00a0<\/em>damages remedy\u00a0qua\u00a0<\/em>settlement is \u201cappropriate\u201d\u00a0writ large<\/em>\u00a0is the wrong question. Instead, we must ask what the\u00a0functional<\/em>\u00a0justification for the Khadr settlement is in the context of\u00a0Ward.\u00a0<\/em>The settlement could be justified from different perspectives. This is a question of legal policy.<\/span><\/p>\n

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a\u00a0Charter\u00a0<\/em>violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow\u00a0Charter\u00a0<\/em>breaches, because his loss (the violation of\u00a0Charter<\/em>\u00a0rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see\u00a0<\/span>Andrews<\/span><\/i><\/a>) that courts routinely award for intangible, non-pecuniary loss. \u00a0\u00a0It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis:\u00a0<\/span>Blackwater v Plint<\/span><\/i><\/a>, para 81. Much of this thinking informed the reasoning in\u00a0Ward<\/em>, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages. \u00a0But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances. \u00a0For example,\u00a0Andrews\u00a0<\/em>introduced a cap for non-pecuniary loss. On the other hand,\u00a0Ward\u00a0<\/em>holds that even if a functional justification is identified, \u201cgood governance\u201d concerns may militate against the award of\u00a0Charter\u00a0<\/em>damages. If one cannot conclude that damages would properly compensate Khadr\u2019s loss,\u00a0Ward\u00a0<\/em>provides appropriate guidance, at para 53: \u201cLarge awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant\u2019s needs and may be inappropriate or unjust\u2026\u201d In other words, we should not throw good money after bad, even to vindicate\u00a0Charter\u00a0<\/em>rights in an abstract sense. This does not mean \u00a0that the law should not compensate when it is difficult\u2014private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives\u2014especially when the law itself recognizes the limitations.<\/span><\/p>\n

Deterrence is a more promising function in this particular case.\u00a0<\/span>Law and economics theory tells us<\/span><\/a>\u00a0that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims\u00a0<\/span>in one of a series of blog posts<\/span><\/a>, perfection is not of this world.\u00a0 Damages fail on the deterrence rationale only if a defendant is\u00a0perfectly irrational<\/em>. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including\u00a0Charter<\/em>\u00a0damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.<\/span><\/p>\n

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent\u00a0<\/span>Elmardy<\/span><\/i><\/a>\u00a0case at the Ontario Divisional Court demonstrates how the\u00a0Ward<\/em>\u00a0analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also\u00a0<\/span>Gabriella Jamieson\u2019s recent analysis<\/span><\/a>\u00a0of\u00a0Ward\u00a0<\/em>in the context of race, and the importance of deterrence).<\/span><\/p>\n

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of \u201chuman rights\u201d does not justify\u00a0Charter <\/em>damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or\u00a0Charter<\/em>\u00a0damages.<\/span><\/p>\n

*****
\nThe second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister\u2019s assertion that the litigation of Khadr\u2019s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the\u00a0Charter<\/em>\u00a0breaches and damages flowing from same. Much of the uncertainty respecting\u00a0Charter<\/em>\u00a0damages applies to the relationship between common law and constitutional damages, at any rate.<\/span><\/p>\n

First, there is a paucity of\u00a0Charter<\/em>\u00a0damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions.\u00a0Ward\u00a0<\/em>holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when\u00a0Ward<\/em>\u00a0was decided, only a handful of cases have awarded\u00a0Charter<\/em>\u00a0damages awards in the millions.\u00a0<\/span>Henry<\/span><\/i><\/a>\u00a0involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in\u00a0Charter\u00a0<\/em>damages, designed to vindicate Henry\u2019s rights; an additional $530 000 was awarded for pecuniary loss. In\u00a0<\/span>BCTF v British Columbia<\/span><\/i><\/a>, a trial court awarded $2M for bad-faith legislation\u2014a rarity in constitutional remedies. Finally, in\u00a0<\/span>Conseil scolaire francophone de la Colombie-Brittanique v British Columbia<\/span><\/i><\/a>, the BC Supreme Court awarded $6M in\u00a0Charter <\/em>damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly\u2014making it difficult to draw any legal conclusions or precedential value for the Khadr case.<\/span><\/p>\n

Moreover, few\u00a0Charter<\/em>\u00a0damages awards since\u00a0Ward<\/em>\u00a0have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In\u00a0<\/span>Ogiamien<\/span><\/i><\/a>, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which \u201coutraged standards of decency.\u201d In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the\u00a0Charter<\/em>. If that amount of money satisfied the judge\u2019s \u201coutrage\u201d in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise\u2014compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.<\/span><\/p>\n

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the \u201cseriousness of the breach.\u201d\u00a0<\/span>Michael Spratt argues that the breach was quite serious, given Khadr\u2019s youth and circumstances<\/span><\/a>. But Professor Macklin characterizes\u00a0Khadr 2010,\u00a0<\/em>which found the breaches,<\/em>\u00a0as a \u201cnarrow\u201d ruling, simply based on questioning and interrogation\u2014no cruel and unusual punishment as in\u00a0Ogiamien<\/em>, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any \u201cdwarfing\u201d\u2013and to support the opposite conclusion.<\/span><\/p>\n

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have \u201cdwarfed\u201d the settlement figure. There are simply too many variables to make that conclusion\u2014there is at least some reasonable doubt.<\/span><\/p>\n

*****<\/span><\/p>\n

At the end of the day, while the\u00a0Charter<\/em>\u00a0protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr\u2019s rights. That may be a sound political argument. But the\u00a0law<\/em>\u00a0requires more. It would be appropriate to see observers engage with the legal justifications for\u00a0Charter <\/em>damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of\u00a0Charter\u00a0<\/em>damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.<\/span><\/p>\n

 <\/p>\n

This article was also posted on Double Aspect<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, \u201cthe restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of …<\/p>\n","protected":false},"author":1321,"featured_media":2434,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[371,107,369,373,370,105,372],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2430"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1321"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2430"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2430\/revisions"}],"predecessor-version":[{"id":2435,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2430\/revisions\/2435"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2434"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2430"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2430"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2430"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}