ONE LAST THING

A Review of the Facts

Canadians recently learned that their federal government had decided to issue an apology to Omar Khadr and to provide him with $10.5M in ‘compensation’. The apology and payment were purportedly made to settle an outstanding civil suit brought by Khadr for alleged violations of his Charter rights by Canada while he was detained by the U.S. at the Guantanamo Bay prison and where he ultimately pled guilty to five terrorism offences. 

The information about the Khadr payoff did not come from a formal Government statement, as might be expected in such a high-profile case, but rather through an extremely well-informed leak on July 4th when, by remarkable co-incidence, Prime Minister Justin Trudeau was out of the country. 

The decision understandably sparked controversy and outrage, especially when it became clear that the payment had already been made. This was relevant because the rushed payment likely made it more difficult for a civil judgement, awarded in the U.S. to victims of Khadr’s terrorist crimes (which were committed in Afghanistan while part of an Al Qaeda fighting unit) and to be enforced in Canada. 

Three days after the information was ‘leaked’, Public Safety Minister Goodale and Justice Minister Wilson-Raybould held an awkward media conference where they issued the apology and ‘explained’ why the payment was made. 

Minister Goodale expressly stated that the Government had no choice in light of the 2010 Supreme Court ruling that Khadr’s Charter rights had been violated by the actions of Canadian officials in interviewing him in Guantanamo Bay in February and October of 2003 (CSIS and Foreign Affairs) and February 2004 (just FA). Goodale also stressed that the payoff was in relation to what happened to Khadr in Guantanamo Bay and was completely unrelated to his actions in Afghanistan. He then explained that the decision saved Canadians money as the claim for damages was $20M and that the Trudeau government was forced to make this deal because the previous Conservative government had failed to take action to repatriate Khadr from U.S. custody. 

If the Government hoped the public announcement would put an end to the public outrage, they were clearly wrong. It continues to this day. Prime Minister Trudeau has been forced to attempt to explain the Khadr payoff – by asserting that the Government had no choice in light of the Charter breach finding by the Supreme Court, and warning that Charter breaches have “consequences” for all Canadians. 

In effect, his message is that the Liberal government was simply complying with what the Charter and the Canadian justice system ordered, and that the payment to Omar Khadr is really the fault of the previous Harper Conservative government. 

The absence of any factual justification suggests that this may simply have been a decision made to avoid the political discomfort of contesting Khadr’s claims in public, as that might contradict the ‘sunny ways’ image the government has successfully adopted. 

At the core of this messaging strategy is the assumption that Canadians will believe and accept the ‘facts’ of being ‘forced’ to take this action. With that in mind, it is important to review the facts as we know them.

Who is Omar Khadr, and how did he end up in U.S. custody?
Omar Khadr was a Canadian-born 15-year-old who was captured in Afghanistan in July 2002 following a fierce battle with U.S. forces. At the time, Khadr was a member of an al Qaeda (AQ) unit established by his father, Ahmad Khadr, who was himself a senior AQ leader with long and direct ties to Osama bin Laden and Ayman al Zawahiri the current leader of AQ. 

The battle in which Khadr was captured began when U.S. forces attended an AQ safehouse and had Afghan aides try and convince the people inside to surrender. Those inside responded by shooting and killing the Afghans. Air strikes were then launched, and the house reduced to rubble. U.S. military personnel then went through the remains looking for survivors and, during this effort, a grenade was thrown at them from a hidden location. The explosion killed U.S. Army medic Christopher Speer and partially blinded Corporal Layne Morris. American troops opened fire on the area from which the grenade was thrown, and wounded Omar Khadr who was found in possession of a loaded weapon as well as with grenades around him. Khadr lost sight in one eye and had severe wounds to his upper body. 

Khadr was transported to a U.S. medical facility in Afghanistan where his life was saved and, in subsequent questioning, he admitted throwing the grenade and provided at least some information about his family’s extensive links to the highest AQ leaders. After several months, he was transferred to Guantanamo Bay for detention and further questioning in accordance with a U.S. Executive Order in place at the time. 

It is also important to recognize the links of the Khadr family to the highest levels of AQ, as this was the reason that Canadian officials from Foreign Affairs and CSIS took the initiative to interview him while in U.S. custody and with U.S. support. Khadr’s father, Ahmad Khadr, co-founded and worked for Health and Education Project International-Canada (HEPIC), an organization that, despite stated goals of providing humanitarian relief to Afghani orphans, is alleged to have provided funding/supplies to al Qaeda to support terrorist training camps in Afghanistan. 

Khadr family history
In December 1995, Ahmad Khadr was arrested in Pakistan in relation to a plot to blow up the Egyptian Embassy, which was carried out by family friend Ayman al Zawahiri – who is currently the leader of al Qaeda. Omar’s sister Zaynab’s fiancé at the time, Khalid Abdullah, was identified as al Zawhari’s lead operative on the attack. A subsequent search of the Khadr home in Pakistan found $100K (believed to have been raised by Omar’s mother Maha from mosques in Ontario).  In early 1996, then PM Jean Chretien intervened with the Pakistani government following complaints from the Canadian Arab Federation, and Ahmad was released in March 1996.
 

The Khadr family’s “charity” fundraisings have been the subject of extensive investigation, as it is clear that the funds were also used to support AQ activities, especially in Afghanistan where the entire family moved after the father’s release in 1996. 

Subsequently, Ahmad was injured in a bomb blast and appears to have somehow qualified for, and thereafter received, a Canadian (Ontario) disability payment, which he arranged to have sent to Pakistan to carry on his “work”. It is well-documented that from 1996 to 2001, the Khadr family traveled throughout Afghanistan and Pakistan, including yearly trips to Osama bin Laden’s compound in Jalalabad for the Eid celebration at the end of Ramadan. After the terror attacks against the United States on September 11, 2001, the Khadr family moved repeatedly throughout Afghanistan.

In summary, by the age of 15. Omar Khadr was a low-level foot soldier from a family with the highest level of involvement with AQ’s leadership. As such, he potentially had critically important information about AQ operations, including their links and activities in Canada. This undeniable fact completely justifies the CSIS decision to interview Omar Khadr in order to gain information that could protect the safety and security of Canadians. In fact, failing to do so would have been negligent non-performance of their duties. 

The child soldier question
Another issue that has deservedly attracted public attention is the fact that Omar Khadr was just 15 when he was captured and taken into custody by U.S. forces. There are conflicting interpretations of the different UN Resolutions relevant to this issue, but there can be no doubt that Khadr’s young age at the time of his terrorist activity is at least a relevant consideration as to how he should have been treated then… and now. 

Advocates of Khadr tend to overlook that Canadian law (Youth Criminal Justice Act) expressly permits the criminal prosecution of persons over the age of 12. Had these actions taken place in Ajax rather than Afghanistan there is no question that he would have been criminally prosecuted. 
 

Ironically, following Khadr’s guilty plea, sentencing, and transfer back to Canada, Khadr’s lawyers sought and won a Canadian court ruling that, because of his age at the time of the commission of his crimes, the International Transfer of Offenders Act required that he serve the remainder of his sentence in a less restrictive provincial jail rather than a federal penitentiary. 

In another ironic twist, the Canadian legal system made him eligible for early release through parole on July 1 (Canada Day) 2013. However, contrary to what he had agreed to in order to get the reduced 8-year sentence rather than the 40-year sentence recommended by the jury, Khadr applied for bail instead of parole, and sought to appeal his U.S. conviction. Bail was granted in May 2015. 

Clearly, the Canadian justice system has benefitted Omar Khadr – and this would undoubtedly have been argued at any claim for financial compensation (had it been allowed to get to court). 

One issue that has rarely been raised goes to the heart of how 15-year-old Omar Khadr ended up with an AQ battle unit in Afghanistan in 2002. 

Like his brothers and sisters, Khadr was brainwashed by his parents into the death cult of extremist Islam. It is clear that Canadian officials had awareness of his parents’ activities, yet no steps were taken by child welfare authorities to protect them – as Canadian children surely deserve – from the horrific abuse being inflicted by their parents. It is a criminal offence under section 215 of the Criminal Code for a parent to fail to provide the necessaries of life, including protection from harm, to their children. Ahmad Khadr is now dead, but his wife Maha lives in Toronto. Why has she not been charged? And what is the status of Zaynab Khadr’s children? Are they also in need of protection?   
 

What were the charges and trial process for Khadr?
After an Executive Branch determination of special status (‘Unprivileged Belligerent’) in November 2005, Khadr was charged with five offences:

• AQ conspiracy (June 2002-July 2002) 
• Aiding the enemy (June-July 2002) 
• Spying (watching a truck convoy, etc.) 
• Attempted murder re: AQ activities (bomb planting and July 27 fight) 
• Murder (throwing a grenade at U.S. Army Medic, Sergeant Christopher Speer, as he was looking for the wounded following a battle on July 27, 2002).

The U.S. Supreme Court ruled the original non-statutory procedure unconstitutional, following which, the U.S. Congress enacted the Military Commissions Act in 2006 that was altered by a subsequent US Supreme Court ruling and which permitted detainees the right to seek review of their detention through habeus corpus applications. 

Khadr’s U.S. legal team (provided by the U.S. military) unsuccessfully pursued a number of procedural challenges to his detention and the process itself. These actions delayed the matter coming to trial, including the original application to the Canadian Supreme Court in 2008 for an order directing the Canadian government to provide Khadr’s lawyers with full disclosure of the interviews of him by Canadian officials in 2003 and 2004. Subject to the Canada Evidence Act security restrictions, the Supreme Court ordered disclosure in accordance with its previous Stinchcombe decision. This was an appropriate decision inasmuch as the information had been provided to the U.S. prosecuting authorities. 

It was the disclosure of this information in 2008, which included an interview where Khadr is seen crying (coincidentally when, unlike in 1996 when Canadian intervention resulted in his father’s release, the Canadians are not there to get him out of custody) that prompted significant public attention in Canada. Indeed, Khadr’s lawyers used this opportunity to try and generate public pressure on the Harper Conservative government to formally seek his repatriation from the US. Like the previous Chretien and Martin Liberal governments, the Harper government did not ask for repatriation. 

What is often overlooked in the discussion of Khadr’s prosecution, is the fact that pursuant to the 2004 U.S. Supreme Court ruling in Hamdi v. Rumsfeld, the U.S. government could have declared Khadr an ‘enemy combatant’ which meant he could have been detained indefinitely without trial until the Islamist threat no longer existed. 
 

Further, each charge faced by Khadr carried a potential life sentence. This is especially relevant because the U.S. subsequently recovered a video tape from the rubble of the firefight (which was aired by ‘60 Minutes’) in which Khadr is seen making and planting the improvised explosive device roadside bombs.  

It is likely that the U.S. decided to prosecute Khadr, rather than simply detain him, in large measure due to the killing and wounding of their soldiers. Understandably, the murder charge, to which he confessed and admitted, in an agreed statement of facts, has generated most of the public attention including whether his confession was the result of torture or not. 

To date, Khadr has both admitted and denied throwing the grenade. His most recent version of events (after his transfer to Canada, which also inherently includes acceptance of responsibility for the crimes that he was sentenced for) is that he no longer remembers what actually happened. The following is an excerpt from a 2015 interview with Toronto Star reporter Michelle Sheppard who has followed the case in great detail from day one: 

The owner of the compound had warned them that the Americans were coming and Khadr says he was ordered to guard a door. “I was standing there and something just exploded beside me ... I got tossed, I don’t know, two, three metres back, and I got up and that’s when I lost my left eye and my right eye was pretty badly damaged.”

He says his vision and memories are foggy after that but he recalls the men dragging him to another location and giving him a grenade and a gun.

As the U.S. Special Forces attacked the compound from the ground, Apache helicopters, A-10 Warthog fighter jets and F-18s pounded the site from the air.

Khadr said it got quiet and he started hearing American voices. “They were screaming, shouting and stuff, I got scared. I was thinking ‘What should I do?’ I didn’t know what to do, so I thought I’m just going to throw this grenade and maybe scare them away... It was the only thing I had and I didn’t know what to do so I lobbed the grenade behind me.”

The grenade exploded. More shooting. Khadr was hit in the back at least twice, holes the size of pop cans in his chest where the bullets exited. He was pulled from under the debris and dragged from the compound, treated by an American medic and taken to Bagram.

“[As] I became conscious in the hospital, a soldier would come and scream at me and tell me that I killed an American soldier and they would tie me up to the bed ... they tried to make that as painful as possible.

“For the longest time I thought that’s what happened; whether it did or not, I don’t know. I always hold to the hope that, you know, maybe my memories were not true.” 

This last comment – hoping he didn’t do what he remembers doing – is not exactly a fact to be relied on. 

After multiple delays, Khadr’s trial was scheduled for October 2008 but further delayed due to procedural applications, firing of his lawyers, and a systemic ‘review’ of the entire Guantanamo system following the election of Barack Obama. With new U.S. military legal counsel, the trial finally started in September 2010. 

A further delay occurred when Khadr’s new lawyer fainted in court after it became clear in cross examination that his announced ‘foolproof defence’ that Khadr did not throw the grenade fell apart. 
 

During the adjournment, a plea bargain deal was worked out where Khadr pled guilty to all charges, agreed to a factual description of the offences committed, and agreed to accept a single 8-year sentence. The agreement also stipulated that Khadr would serve the first year of his sentence in the U.S. but thereafter would be eligible for transfer to Canada at the discretion of the Canadian government. 

What the Liberal government has failed to mention is that the Harper government made possible both the plea bargain and the subsequent potential repatriation a mere nine months after the Court ruling. Immediately prior to completion of the plea bargain, the Canadian Embassy in Washington provided a formal written confirmation that, should Khadr be convicted and sentenced in the U.S. for the crimes he faced, Canada would give ‘favourable consideration’ for any request for transfer to Canada pursuant to the International Transfer of Offenders Act. This is vital because this repatriation was exactly what his lawyers had sought at the 2010 Supreme Court of Canada hearing – and which the Court refused to order, despite finding Charter breaches based on Canada’s actions. 

Khadr entered the plea and on October 31, 2010 was sentenced to eight years in custody, His application to return to Canada was made and, after American and Canadian procedural delays, he was returned to Canada in September 2012. These are very relevant facts, but were not mentioned by the Liberal government at the media conference explaining the payout or subsequently.  

What were the Charter breaches identified by the Supreme Court?
As noted, this process really began in 2008 when the Supreme Court found that non-disclosure by the Crown of the statements, notes, and tapes to Khadr’s lawyers was a violation of his Charter rights as articulated in the Stinchcombe decision. This finding is a distinction from the earlier Hape decision of the Court in 2007, which concluded that the Charter does not apply to Canadians detained abroad. 

The Court concluded that the Charter breaches resulted from:

• the participation of Canadian officials in the U.S. process that violated Canadian international agreements and standards; 
• officials interviewing Khadr without ensuring he had access to counsel (even though the U.S. controlled the process);
• officials providing the interview tapes and notes to U.S. officials (even though it was clear that the U.S. was recording everything, which meant we gave them what they already had);
• FA official conducting interview of Khadr in February 2014 despite being advised that the U.S. officials had subjected Khadr to restricted sleep deprivation (moving every three hours) in advance of the interview, which was neither requested nor approved by Canadian officials and, which their post-interview notes reveal, had no effect on Khadr;
• the conclusion that the actions of Canadian officials created “a sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected” (para. 54).

This last conclusion is especially important because it is based on an affidavit from Khadr’s U.S. lawyer, and resulted in a finding that: “During the February and September 2003 interrogations, CSIS officials repeatedly questioned Mr. Khadr about the central events at issue in his prosecution, extracting statements from him that could potentially prove inculpatory in the U.S. proceedings against him.” 

Interestingly, this appears to contradict the CSIS reporting of their interviews with Omar Khadr, which they described as “highly successful, as evidenced by the quality of intelligence information” elicited from Mr. Khadr. 

The 2008 Supreme Court of Canada (SCC) ruling ordered the remedy for the identified Charter breach as full disclosure of the statements and recordings of Khadr by Canadian officials. In 2010, with the trial looming, Khadr’s lawyers went back to Court to try and get a new remedy, which was a direction from the Court to compel the Harper government to actively seek Khadr’s repatriation to Canada. While the Court confirmed the Charter breach, it rejected the requested remedy, explaining that it would be up to the Government to decide how the breach should be addressed.

Nine months after the ruling, as noted above, the Canadian government formally assured the U.S. government that it would give ‘favourable consideration’ to a prisoner transfer of Khadr back to Canada, thus enabling the plea bargain and the 8-year sentence rather than the 40-year sentence recommended by the jury. Additionally, before the trial commenced the Canadian government formally requested that U.S. authorities not use the statements made by Khadr to Canadian officials as evidence – to my knowledge, the Americans agreed to this. 

These measures are specific steps, taken by the Canadian government, which benefited Omar Khadr. These facts could have been advanced by the Crown as mitigation of harm in any civil suit for damages arising from the Charter breach, but the Government’s decision to ‘settle’ the claim rather than litigate it meant that was not done. It would be helpful, therefore, if the Government were to explain to Canadians if this was even considered before deciding to settle the case out-of-court, and paying Omar Khadr $10.5M.  

The claim for damages
Although the claim for damages is based on the SCC ruling that Omar Khadr’s Charter rights had been violated, it was a separate civil action where monetary damages were expressly sought. The action began in 2004 with a $100K claim filed by his grandmother. His team of Canadian lawyers successfully increased that amount to $10M in 2010 and then to $20M in 2014. 

There is no mention in the SCC decision as to whether the Justice Department lawyers raised the issue, or the Court considered the issue of whether any perceived Charter breach was justifiable in a free and democratic society as expressly articulated in section 1 of the Charter. This is potentially a complete answer to what the remedy, if any, should be for a Charter breach – and the silence of the Court and the federal government on this speaks volumes on whether the payoff to Khadr was justified or not (and what the real purpose of it was… like paying off his lawyers perhaps through a percentage cut known in the legal world as ‘contingency fees’).  

In considering whether section 1 of the Charter should apply, a Court would be obliged to consider, not only the claims of harm suffered from a Charter breach, but also mitigating factors such as benefits received and the public interest. The notes from the interviews of Khadr that have been released provide specific examples of this, including:

• intervening to get Khadr immediate medical attention to deal with a lingering wound;
• providing Khadr with correspondence from his family;
• getting details from Khadr about the location and assembly of the roadside bombs, which facilitated their safe extraction and prevented injury to Canadian and U.S. military in the area;
• absence of any impact of the U.S. initiated sleep disruption;
• discussion about the value of Khadr speaking with a lawyer;
• Khadr commenting that he was having ‘fun’ by lying;
• getting intelligence information about the Khadr family and AQ operations, which has the potential for huge public benefit through terrorism disruption.

All of these facts are relevant in assessing any claim for damages – including in the special circumstances of a Charter breach. However, because the government settled the suit out-of-court, none of them were considered by a Court with respect to damages or a s.1 Charter application. It is also unknown if the Government even considered these issues before settling the case. 

Another issue that merits scrutiny is the amount of money the government agreed to provide Khadr, and how it will be distributed. Financial compensation as a remedy for a Charter breach is a relatively new concept. As Toronto litigation lawyer James Cooper noted in a detailed and insightful column on July 11th:

“In the very same year that the Supreme Court of Canada released its findings in Mr. Khadr’s case, it released another decision – Ward v. Vancouver (City) – which broadened the right to sue the government in monetary damages arising from a Charter breach. But here is what Minister Goodale didn’t tell you: According to the Supreme Court, “granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally.”

Mr. Cooper goes on to point out that the Supreme Court also articulated an exception to compensation being awarded if the government can demonstrate that awarding financial damages would be “inappropriate or unjust” and that in determining this the Court should consider if alternative remedies exist and take “concerns for good governance” into account.

In summary, the factual concerns noted above are all potentially relevant to a determination by a Court as to whether or not a monetary award of damages should be made for a Charter breach. Given this, the government’s claim of the need to settle because of an inevitable loss are suspect – to put it mildly. 

And what about the amount? $10.5M is a lot of money and, coincidentally, is the same amount paid previously to Maher Arar by the previous Conservative government. Arar’s case was significantly different as Canadian law enforcement and intelligence officials provided investigative, and apparently exaggerated, information to both U.S. and Syrian officials that was shown to have directly impacted his subsequent abusive treatment. Has Canada now developed a standard ‘payoff’ amount of $10.5M for terrorism-related complaints?

In his detailed analysis of the legal precedents regarding such financial compensation as a remedy for breach of Charter rights, James Cooper notes,

“… had the government offered Mr. Khadr a settlement in the range of $300,000, it is unlikely that Mr. Khadr would have achieved a better result at trial, and would have likely been exposed to the cost consequences of proceeding to trial in the face of such an offer.”

And yet, without even bothering to contest the matter in court, the Canadian government handed over $10.5M in taxpayers’ money to Omar Khadr and, I surmise, his lawyers – Dennis Edney and Nate Whitling from Edmonton and John Phillips from Toronto (there may be others as Khadr has a history of changing lawyers).

One of Khadr’s lawyers, John Phillips, was recently interviewed on CBC’s ‘Power and Politics’ by host Rosie Barton about his most recent case, where five CSIS employees are suing the Service for religious, racial and sexual harassment. During the interview, Barton shifted gears and asked Phillips about whether, as one of Omar Khadr’s lawyers, he got a cut of the $10.5M settlement to cover his fees. Mr. Phillips responded that he could not comment on that due to ‘solicitor client privilege’ which suggests that the answer to the astute question is… ‘yes’. 

Mr. Phillips is likely correct with respect to his convenient professional disclosure restriction, but what he didn’t mention is that the client can waive that privilege and agree to release the information. So how about it Omar? Why don’t you demonstrate your commitment to being transparent with Canadians and tell us who got what out of the $10.5M payoff you have been awarded? 

If the Khadr team doesn’t proactively disclose the information, the Canadian government should step up and ask Mr. Khadr to let Canadian taxpayers know the truth about how their money was split up. And while they’re at it, why doesn’t the government explain how much has been awarded to Khadr and his lawyers over the years in court ordered ‘costs’ following their multiple court cases? And if the Khadr lawyers are receiving contingency fees from the $10.5M payment, how does their cut compare with what Legal Aid rates would be for the time spent?

This issue is relevant for Canadians because the Government has publicly explained that the payment is to compensate Omar Khadr for the abuse he claims to have suffered resulting from the conduct of Canadian officials. If, instead, it is a vehicle to compensate his lawyers for the years of litigation and political advocacy on his behalf then that should be made public and not concealed in solicitor client ‘privilege’.
 
Transparency and public accountability
The Trudeau government was democratically elected and has the clear right to make policy decisions, including on issues like settling lawsuits and making payments related thereto. Those decisions are inherently a reflection of the government’s policy choices, which follow the priorities of that government. Canadians deserve to know why those decisions have been made and what facts they were based on. 

This can be achieved by the government releasing the full legal analysis they relied on to make this decision, and by asking Omar Khadr to authorize the full truth being revealed on how much of the money he received has been paid to his lawyers thanks to the closed-door deal with Department of Justice lawyers. 

The Omar Khadr case is obviously one of factual and legal complexity. The issues involved in it, however, are unfortunately not unique – as the recent capture and detention of two Canadian female jihadis fighting for ISIS in Iraq demonstrates. 

A good approach to go forward on this would be one that recognizes and supports the principle that Canadians have the right to know the whole truth. 

Postscript
Since preparing this analysis, Omar Khadr and his lawyers are back in the news with their announcement that Khadr is seeking a loosening of his current bail conditions to allow him unfettered access to the Internet, unrestricted travel in Canada and unsupervised access to meet with his sister Zaynab whose extremist views and connections are well documented and whom Khadr advises in his affidavit is about to return to Canada. Naturally, the announcement generated interest as to whether these changes were appropriate in light of Khadr’s confessed (and now recanted) terrorist crimes. Some calls were inappropriately made for the Government to politically intervene in the case but rationality has largely prevailed in recognition that our rule of law justice system should handle this application. Strangely, the case was adjourned at the last minute and is now scheduled for September 15 when presumably the Court will also examine how Omar Khadr knows his sister’s travel plans and whether he’s breached the previous conditions in finding out.

As always with the Khadr family; stay tuned as there’s more to come.

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Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada.