Earlier this month it was revealed that the Canadian government was settling with Omar Khadr, the Canadian citizen who had spent eight years in detention at a US naval base in Cuba known as Guantanamo Bay. The detention centre at Guantanamo has been notoriously controversial for its treatment of detainees. Khadr had launched a civil lawsuit against the federal government, and rather than litigating the issue, the parties agreed to settle for a reported $10.5 million. In addition, the government issued a public apology towards Khadr. The settlement and apology sparked heated debate across Canada about whether it was appropriate for the government to compensate Khadr, who has been convicted of murder and terrorism offences by a US military court. Given the outrage that these events have prompted, it is important to understand the precise details of the settlement and the underlying facts of Khadr’s legal saga, which has spanned 15 years.
Omar Khadr, now 30 years old, was born in Toronto in 1986. Khadr and his family moved between Canada and Pakistan until 2001, when they moved to Afghanistan. Khadr’s father was known to be an associate of Osama bin Laden and there is evidence that Khadr’s father and older brothers were involved in an Al-Qaeda training camp in Afghanistan, although there is no evidence that Khadr participated in the training camp.
On July 27, 2002, Khadr was taken prisoner by US military forces in Afghanistan, he was 15-years-old at the time. Khadr is alleged to have thrown a grenade during a firefight with US forces, which ultimately killed Sergeant Christopher Speer, a US medic, and blinded Sergeant Layne Morris in one eye. The United States eventually transferred Khadr to Guantanamo Bay. During his eight years in detention at Guantanamo Bay, Canada made a number of diplomatic efforts expressing concern for Khadr’s detention, including: noting that he was a minor, fear that he might be subject to the US death penalty, acknowledgement of Canadian citizen’s right to return to Canada upon release, requesting assurances that Khadr was receiving appropriate medical treatment, and concern about his ability to access counsel. However, Khadr continued to be detained and was declared to be an “enemy combatant” before a US military tribunal. Khadr requested that he be repatriated by Canada, but that request was denied, although it was subsequently subject to judicial review and appealed up to the Supreme Court of Canada.
A 2010 decision by the SCC unanimously held that Canada had violated Khadr’s constitutional rights. While he was being detained at Guantanamo, agents from the Canadian Security Intelligence Service (CSIS) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) had interrogated Khadr. They also questioned Khadr without a lawyer present, despite being a minor, and knowing that he had previously undergone objectionable questioning tactics, such as a sleep deprivation method conducted “in an effort to make him less resistant to interrogation” (para 5). The information gathered from the interrogations was then shared with US authorities, and contributed to his continued detention. The SCC held that the interrogations conducted by the Canadian agents amounted to participation and involvement in practices that were contrary to Canada’s international human rights obligations and violated Khadr’s section 7 right to “life, liberty, and the security of the person” under the Canadian Charter of Rights and Freedoms. While the Court did not go so far as ordering the federal government to repatriate Khadr, this judgment was intended to provide the legal basis for the government to do so.
The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter. (para 47)
Yet, that same year Khadr plead guilty to murdering Speer, as well as attempted murder, conspiracy, spying, and providing material support to terrorism (Agreed Stipulation of Fact and Signed Offer for Pre-Trial Agreement). By most metrics, at 15 years old Khadr was a child soldier, but he was nevertheless tried as an adult. According to the United Nations, Khadr is the first child to be prosecuted for war crimes since World War II. He was returned to Canada in 2012 to serve out the remainder of his 8-year sentence in a Canadian facility, and finally released on parole in 2015.
In 2015 the widow of Christopher Speer, Tabitha Speer, and Sgt. Morris, won a civil lawsuit against Khadr (Plaintiffs’ Complaint). A Utah judge awarded Speer and Morris $134 million, after Khadr was noted in default. The judgment rested primarily on the confessions that were elicited from Khadr while he was in Guantanamo. However, Khadr has since recanted those confessions, and claims that they were only made under the duress of torture.
Khadr and his lawyers launched a civil suit against the Canadian government, seeking damages for the violations of his Charter rights. The action claimed that the government’s complicity in Khadr’s detention at Guantanamo Bay violated his legal rights as a citizen, regardless of whether or not he is culpable for throwing the grenade that killed Speer. Since the SCC had previously declared that Khadr’s rights had been unjustifiably infringed, Khadr’s claim had a firm legal basis. Statements from Ralph Goodale, the Public Safety Minister of Canada, recognized that both Khadr and the government had already expended significant time and money in litigation, and suggested that a settlement with Khadr was the most prudent course of action. The settlement with Khadr is not without precedent. For example, in 2007 the federal government settled with Maher Arar for $10 million for Canada’s involvement in violating Arar’s rights. Arar is a Canadian citizen who was deported by the US to Syria in 2002, where he was detained and tortured. The RCMP had indiscriminately shared intelligence with US officials, erroneously claiming that he was linked to an Al-Qaeda terrorist group. That intelligence was then used by US officials to place Arar on a terrorist watchlist and deport him to Syria. Following the incident a commission was struck to conduct a full inquiry, and found that Canada had violated his rights in its complicity in his deportation, detention, and torture, which all flowed from the sharing of the inaccurate intelligence. Section 24(1) of the Charter provides that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
Khadr is currently in the process of appealing his murder and terrorism convictions from Guantanamo Bay. Speer and Morris are still trying to have their judgment against Khadr enforced in Canada and, following the settlement, are attempting to have his assets frozen, although the request for that injunction has dismissed by an Ontario Superior Court judge.
The US Office of Military Commissions have posted a number of files and materials related to Khadr here.
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.