Why we had to settle with Omar Khadr - Macleans.ca

Why we had to settle with Omar Khadr

Opinion: Liberal MP Steven MacKinnon on the futility of fighting the case and the need to defend Canadian rights, no ifs, ands or buts

Omar Khadr walks to meet the press before a news conference after being released on bail in Edmonton, Alberta, May 7, 2015. Khadr, a Canadian, was once the youngest prisoner held on terror charges at Guantanamo Bay. (Todd Korol/Reuters)

Omar Khadr walks to meet the press before a news conference after being released on bail in Edmonton, Alberta, May 7, 2015. Khadr, a Canadian, was once the youngest prisoner held on terror charges at Guantanamo Bay. (Todd Korol/Reuters)

Steven MacKinnon is the Member of Parliament for Gatineau and the Parliamentary Secretary to the Minister of Public Services and Procurement.

This article is in response to a commentary written by Conservative MP Garnett Genuis.

There were no good options for settling the Omar Khadr legal case, only varying degrees of bad ones—the outcome of years of mismanagement by all political stripes, and a legal case that fell squarely in Khadr’s favour.

Settling was not easy, and the Liberal government did not expect it to be popular. It was the responsible thing to do, nonetheless.

What occurred on that battlefield 15 years ago can only be described as painfully tragic, from all perspectives, and no more so than for the families of U.S. Armed Forces personnel killed and injured in that conflict.‎ Beyond that, conflicting reports, inadmissible evidence and understandably, much emotion have animated our ongoing debate on the case of Omar Khadr.

We decided to bring closure to this case. The legal settlement concludes the civil lawsuit launched by Mr. Khadr on the pivotal question: Long after the firefight in Afghanistan and while he was being interrogated in Guantanamo Bay after being tortured, did the actions of federal officials violate his Charter-protected human rights as a Canadian?

The answer is “yes”. In making the settlement, we recognized the clear message that came from Canada’s top court. In fact, that very same question had already been put to the Supreme Court of Canada twice before, and the Court was unanimous and clear in deciding that Khadr’s basic human rights were, in fact, violated.


READ MORE: The ‘grievous injustice’ of the Khadr settlement

The civil suit dealt with the role of federal officials, Mr. Khadr’s continued detention at Guantanamo Bay, and the violation of his rights guaranteed under the Canadian Charter of Rights and Freedoms, especially given that he was a child at the time.

In 2010, the Supreme Court ruled that “Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by Section 7 of the Charter, contrary to the principles of fundamental justice.”

The civil suit was about the violation of Mr. Khadr’s human rights at Guantanamo Bay. It was not about what people say or think happened in a firefight where a U.S. military medic was killed and another serviceman injured. It was about acts or omissions by the federal government after Omar Khadr was captured and in prison.

And there’s no doubt how the Supreme Court feels about them—the Government of Canada offended “the most basic standards about the treatment of detained youth suspects.” This view has been echoed by civil rights experts and jurists, from Supreme Court judges, to Amnesty International, The Canadian Civil Liberties Association and the Dean of the Osgoode Hall Law School.

Legal costs to date—taxpayers’ money—had already reached $5 million. Continuing to contest a civil suit would have added millions more—and that’s without the damage claim of $20 million, costs to the applicant or even the possibility of punitive damages—in a case the government had virtually no chance of winning.

We were simply not prepared to gamble taxpayers’ money on a case it had little-to-no prospect of winning. And while no court verdict is ever a sure thing, the facts of this case are not in dispute: They are known, clear and compelling.

We had a duty to taxpayers to make a realistic assessment about the likely outcome and weigh that against the combined costs of further litigation and the potential award to the applicant. The Supreme Court ruling leaves little doubt as to how the civil suit would have concluded.

Perhaps more critical is the main issue which had already been concluded by the Supreme Court: Canadian governments must apply the Constitution, follow the rule of law and respect the human rights of Canadian citizens, no “ifs,” “ands” or “buts.” A Canadian is a Canadian is a Canadian.

READ MORE: Omar Khadr: a political inkblot test

Some suggest the settlement was rushed to avoid getting embroiled in further litigation. That is simply offensive. Payment was made in accordance with the court-assisted mediation scheduled months ago—and long before any suggestion of the families’ plan to seek compensation in Canada. As Canada’s Minister of Justice said: “First, our rights are not subject to the whims of the government of the day. And second, there are serious costs when the government violates the rights of its citizens.”

For too long, the previous government, with the aid of taxpayers’ money, avoided bringing closure to this matter. Canadians, I believe, prefer governments that do not apply political calculation to the application of the rights of Canadians.

Defending rights is not always comfortable when the citizens involved are unpopular or controversial. Before he became Chief Justice of the Supreme Court of Canada, and when our Charter was just five years old, the late Antonio Lamer said: “The courts are often the only effective shelter for individuals and unpopular minorities from the shifting winds of public passion.”

My constituents’ views about the apology and court-mediated settlement with Omar Khadr are probably no different from those of other Canadians. They seek explanation. They probe for detail. Understandably, they are sceptical.

As a father, I often reflect on the question, “what if this was my son or daughter?” Would I want a government or a prime minister that steadfastly defended their rights, no matter the circumstances, or would I want those rights to be subordinate to political management or whim?

Public passion will continue to fuel the debate on this matter. But it is my hope that the view that prevails is that Canada is a country built on laws, and that the government that writes those laws has a fundamental obligation to lead by example and apply them equally, without fail, to every Canadian.



Why we had to settle with Omar Khadr

  1. Cons just like being teabaggers.

    • And what could be more clever than this comment?
      Geee, I guess Liberals really do hold the intellectual high ground…

      • You don’t have to reach to beat a Con mentally

  2. Utter rubbish.
    No, $10.5 million was excessive. YOU and your party made a terrorist and traitor who fought against Canadians and our allies a very wealthy man.
    The Canadian tax payer deserved a vigorous defence. No one has ever received an award of damages like this. If awarded by the court, $10.5 million would have been a record.
    Where is your legal opinion on quantum? From, you know, an actual lawyer?
    All I hear are Liberals, who betrayed our men and women in uniform and the Canadian tax payer, making excuses.
    So, when do the injured Canadian soldiers and the widows of fallen soldiers get their big, fat payday, hmmm?

    • Like I said….you don’t have to reach to beat…..

    • Did you know that Maj. Watt, a senior officer, who was there, made a report the next day that Khadr did not throw the grenade, exonerating him. Did you know that the story evolved from exonerating him, to they didn’t know who did it, to he did it. Did you know that the american’s threw some of their own grenades and that a report that Khadr did throw the grenade was made two years after the fact. Did you know that Khadr, still a teenager, after being tortured, and without representation, confessed after two years as part of plea deal that would allow him to eventually return to Canada as opposed to a life in Guantanamo? Did you know that part of the plea deal involved that he agree that he would never request forensic evidence that would exonerate him and that he give the US government permission to to destroy all evidence in relation to the incident? And, did you know that Khadr was found face down in what looks like a ditch, under a pile of rubble, also covered by a partially collapsed roof with a bullet in his back? There’s a rather graphic photo of it. One has to ask why was it necessary to include that it was okay for the US to destroy all evidence? So we have a dead american soldier, possible friendly fire and a 15 year old shot in the back. It never ceases to amaze me how fired up people will get over things and not bother to do any fact checking.

    • “No one has ever received an award of damages like this.”

      Uh, Sally, this was a negotiated settlement. It’s also nearly identical to the one given Maher Arar in 2007. He received $10.5 million, plus $1 million in court costs. Like Khadr, Arar also received an apology from the Prime Minister (Stephen Harper), “On behalf of the government of Canada … for any role Canadian officials may have played in the terrible ordeal that all of you experienced.”

      Like Khadr, Arar’s settlement was for the actions and inaction of Canadian Officials regarding his international and Charter rights during detention.

      Of course, Conservatives didn’t go on a US media tour denouncing Stephen Harper after his government settled. But hypocrisy is nothing new to Tories.

      • Couple of major differences. Firstly. The Khadr deal was secret. We have no idea what the settlement amount is. We only have a “leak”. We know nothing of the terms of the settlement. We also have no detailed review of the facts and the law. We also have a recipient – Khadr – who was a member of Al Qaeda and Taliban with video vidence of him building IEDs. In the Arar case we had a public settlement with a specified amount. We also had the O’Connor commission which provided a detailed review of the facts and the applicable law. We also have a recipient – Arar – who was completely innocent. He was not involved in any terrorist organization. He was not involved in any terrorist action that resulted in the deaths of any allied soldiers- medics etc. So. Maybe you can appreciate the difference and why some people are upset with this settement. If the settlement was such a “good and noble” why as it secret. Why. Why. Why.

  3. If anyone votes Liberal in next election they are sanctioning their approval to this criminal event. I hope Kadr never has a day or nights peace to enjoy this blood money. He is a criminal from a criminal family that took arms against our country. He is a traitor and a convenient Canadian. Let’s hope justice is swift and final. Mistake was he wasn’t the casualty that day instead of our American brother.

    • ‘Our American brother???’

      • As you pass next to the “Peace Arch” traveling from Canada to the USA at the Blaine Washington crossing the inscription on the monument says “Children of a Common Mother”. ….

        • Yeah that would be after the US invaded us…….5X…..and got it’s ass kicked.

          Viet Nam wasn’t the first war they lost.

    • “If anyone votes Liberal in next election they are sanctioning their approval to this criminal event.”

      Not necessarily. Not unless you’re a single-issue voter.

      Personally, I agree with the Liberals’ decision on this. If Chretien and Martin had acted according to the law, we wouldn’t have had any issue to take to court. If Harper had acted according to the law, rather than doing everything he could to circumvent the law and the courts’ decisions, we likely would have been able to get away with a smaller payment.

      The payment has zero to do with what Khadr may or may not have done. Your – or anyone else’s – opinion on his actions are irrelevant. The suit was about what our government did, and failed to do. Our laws protect criminals as well as the innocent (and given there had been no trial or even charges laid at the time the government breached his rights, presumption of innocence should have prevailed in any case).

      If cops have a suspect in jail, and beat the living crap out of him, they have broken the law – regardless of whether the suspect is guilty or not. Same goes here. Learn to separate Khadr’s actions from the government’s.

  4. 1) Amount settled . . . . . revolting given issue

    2) When settled . . . . . timing very skeptical

    3) Outstanding issue . . . . why isn’t Khadr’s mother being investigated and charged with child abuse for putting this son in that situation . . . since he is not responsible (being a minor) and Mom – dead Dad – were his legal guardians, I assume Dad did not sign over his son to Bin Laden when they all lived together, she would appear to be guilty of child abuse and neglect . . . . so why no investigation or charges????

    • Hmmm, #3 is an interesting point. Was the mother complicit in young Khadr being turned into a child soldier? If I were to bet, it would be yes, given what’s been written about the Khadr family. Regardless, shouldn’t she at the least be investigated re this?

  5. Khadr’s rights were violated. But he is also a terrorist, as the video of him gleefully making IED’s demonstrates.

    So it is perfectly appropriate to fight in the courts any compensation award till the bitter end. Small price to pay for all the people killed by the IED’s he made.

  6. Getting out of jail free is compensation enough.

  7. Good thing Joseph Mengele was not Canadian or the world would look upon Canada in disgust. We cannot allow war criminals to have the rights of regular Canadians. I was so embarrassed by Harper’s far right agenda but Trudeau’s far left is just as embarrassing.

    • Harp was responsible for not protecting a Canadian citizen.

      He had 10 years to do so, and failed

      In the meantime Khadr racked up lawyer bills, rent, plane travel, medical bills, food, protection….and missing a large chunk of his life.

      Other countries came to the aid of their citizens right away.

      • Chretien and Martin also have blame on this file.

        • Oh wellllllll as long as you can blame a Liberal it’s okay.

          • Why in the world would Chretien’s and Martin’s culpability in this make it ‘okay’?

            Harper has more blame due to his more extreme actions, but all 3 PMs ignored the law to the detriment of Canadians in general, and Khadr in particular – that’s CPC and LPC MPs.

          • Agreed

      • It was Harper who got him home. It was the Liberal government who violated his rights, which is why the Liberals paid him off to make the problem go away. This article is complete bunk written by a Liberal MP and shouldn’t be taken seriously by anyone with a brain in their head.