Dislike of Khadr settlement does not entitle critics to disregard law or facts

Omar Khadr is a polarizing figure. To some, Khadr is a child soldier who was brainwashed by his parents and then abandoned by the Canadian government in the notorious and illegal Guantanamo Bay detention camp in Cuba. To others, Khadr is a terrorist deserving of no sympathy.

So, it should come as no surprise that the Canadian government’s apology and payment of $10.5 million to Khadr as compensation for his ill treatment was seized upon by many as a convenient political wedge.
 
But first, some history.
 
Khadr is a Canadian citizen. His father, Ahmed, was a card-carrying terrorist who was affiliated with al-Qaida. This is how a 15-year-old Khadr ended up on a battlefield in Afghanistan following the Sept. 11, 2001 terrorist attacks in New York City. Khadr was taken prisoner by the United States on July 27, 2002 following an intense firefight. He was seriously injured in the battle. The United States alleged he had thrown a grenade that killed an American soldier.
 
Khadr was detained at Guantanamo Bay for the next decade. It was during this time that Canadian officials interrogated Khadr and passed on the fruits of their interrogation to U.S. officials.
 
In two separate decisions, the Supreme Court of Canada found that the Canadian interrogations violated Khadr’s Charter rights and that the information derived from that illegal interrogation contributed to Khadr’s then seemingly indefinite detention at Guantanamo Bay.
 
Despite the final damning judgment by Canada’s highest court in 2010, it took Stephen Harper’s Conservative government almost two years to repatriate Khadr.
 
Khadr then sued the government for $20 million in compensation for the wilful violation of his Charter rights, negligent investigation, conspiracy with the United States in his arbitrary detention, torture, cruel, inhumane and degrading treatment, false imprisonment, intentional infliction of mental distress and failure to comply with domestic and international human rights obligations.
 
After a decade of losses in various legal forums, the government recently settled Khadr’s lawsuit and issued an apology.
 
And then the Conservative pundits and members of Parliament sprang into action attacking Trudeau’s payout to a “convicted terrorist.” It would have been naive to expect anything different — after all, there are votes to be had and fundraising to be done.
 
The anti-Khadr talking points have been remarkably consistent: The Charter does not apply outside Canada and if it does there were only limited Charter violations, critics of the settlement claim. And in any event, the pundits claim, Khadr is morally guilty and the author of his own misfortune — he is an admitted terrorist. Besides, the Supreme Court never ordered a secret compensation deal, they claim.
 
So let’s take these talking points apart, piece by piece.
 
It is clear that in Khadr’s case the Charter does indeed apply.

Critics of the settlement have pointed to the 2007 Supreme Court ruling in R. v. Hape where the court found that the Charter did not apply to the search and seizure of evidence by the Royal Canadian Mounted Police in the Turks and Caicos.  
 
But Khadr’s critics must not have read past the first paragraph of the Hape decision because the court went on to carve out an exception to the principle of comity. 
 
The court was clear that the Charter does apply if Canadian officials operating in a foreign territory participate in activities that are contrary to Canada’s international human rights obligations.
 
In 2008, the Supreme Court found that that was exactly what Canada had done. This should have come as no surprise as the United States Supreme Court had already found that the procedures in place at Guantanamo Bay violated the Geneva Conventions. Consequently, Khadr was detained in violation of his fundamental human rights protected by international law and Canada’s actions contributed to his ongoing detention.
 
So it is clear that the Charter does indeed apply. Khadr’s critics say, however, that any violations were minimal — Canadian officials did not set up and run Guantanamo Bay, they only travelled to Cuba to ask Khadr some questions.
 
Except that is not what the Supreme Court found in 2010.
Canada interrogated Khadr with the full knowledge that he was being detained in a prison camp that violated international law and that Khadr had been subjected to a program of sleep deprivation designed to make him less resistant to interrogation.
 
The United States military commission described Guantanamo’s sleep deprivation programas “a measure designed to disorient selected detainee [. . . ] disrupt their sleep cycles and biorhythms, make them more compliant and break down their resistance to interrogation.” The commission went on to find that the program “was intended to create a feeling of hopelessness and despair in the detainee.”
 
Canada’s Federal Court of Appeal found the program of sleep deprivation to be cruel and abusive treatment contrary to the principles of fundamental justice.
 
Canada knew that this is what had been done to Khadr prior to their interrogation. In other words, Canada was complicit in torture.
 
But it gets worse: Canada then provided the fruits of Khadr’s interrogation to U.S. authorities. The Supreme Court found that Khadr’s statements — obtained in violation of international human rights law — contributed to his continued detention, thereby impacting his liberty and security interest.
 
Only the cruelest and most disingenuous partisan could claim that the violations of Khadr’s Charter rights by Canadian officials were limited.
 
And so the Khadr critics fall back to the moral high ground: “Khadr is a terrorist, this is why he was detained and questioned in Guantanamo. His actions contributed to the situation, so there should not be any compensation.”
 
Let’s leave aside the fact that the precise level of Khadr’s moral culpability is very much in doubt. The evidence that Khadr threw the grenade that killed the U.S. soldier is conflicting. Khadr’s admission of guilt was extracted in oppressive and torturous conditions. This confession would never be admissible in a Canadian court.
   
But none of that actually matters. 
 
Khadr is being compensated for Charter breaches that occurred after the events on the battlefield. Khadr’s acts may have contributed to his detention, but he did nothing to bring about his own torture.
 
Conflating the events on the battlefield and the violations of international law that occurred afterwards may be self-serving, but it misses the point.
 
Charter protections do not evaporate after a finding of guilt. We do not and should not detain the guilty in illegal and inhumane conditions. We do not abuse or torture the guilty and then claim they were the cause of their own misfortune.
 
The Charter protects the innocent and guilty equally. 
 
And then the critics have one last argument to fall back on — the government arrived at the compensation number by some kind of voodoo. The Supreme Court held that Khadr’s rights were violated, but it did not say he should receive millions of dollars.
 
That is true. But then again, the Supreme Court was never asked to rule on monetary compensation. This issue was not before the Supreme Court.
 
Experienced counsel through court-guided mediation arrived at the compensation amount.
 
Could the amount of compensation have been different after a trial? Of course it could have been. Damages would have likely been higher and costs would have been ordered against the government. According to legal experts, the estimated bill to fight a losing court battle would have been between $30 million and $40 million.
 
It is perfectly acceptable to be uncomfortable with the Khadr settlement. It is fine to say the government should have litigated the issue to the bitter end. But a dislike of Khadr and distaste for the settlement does not entitle critics to disregard the law or the facts.
 
The simple fact is that the Khadr critics’ ideology is irreconcilable with the law and the facts. The repetition of ill-informed and disingenuous talking points by the Conservative pundits and members of Parliament is nothing but a dishonest attempt at political gain that will only serve to undermine respect for human rights and the rule of law — and no settlement can compensate Canada for that crime.