July 2017

As appears to be the case for many Canadians (and perhaps most, if reported polling is to be believed), the settlement of the Charter case brought by Omar Khadr has left me deeply disappointed.  However, in my case that disappointment lies not in the substance of that settlement but in the inability and/or unwillingness of the government to acknowledge the complexities that make it so divisive.

To liberals (but apparently not all Liberals), the calculus is simple: the Supreme Court has ruled that Mr. Khadr’s Charter rights were breached in Canada’s explicit endorsement of his continuing incarceration in and mistreatment at Guantanamo Bay.  With this finding, a ruling favourable to the plaintiff in the civil action brought by Mr. Khadr was a certainty.  The appropriate range for the award of damages had been established by the earlier settlement with Maher Arar.  Any further litigation in the matter would have only resulted in the incurrence of additional cost to Canadian taxpayers.

Of course, this represents only the legal and rational argument for settlement.  The moral argument, many would argue, is perhaps even more compelling.  By any measure, Omar Khadr was a child soldier, recruited by his own father to serve the jihadist cause of al-Quaeda.  If this same situation had arisen with respect to an African child soldier, we would not hesitate to identify such a child as a victim, irrespective of whatever atrocities (or in this case, basic acts of warfare) that had been committed by the child.  The fact that this child was offered up to such service by his own parent and from the safety and relative comfort of residency in Canada should only intensify our support for a settlement with respect to our government’s complicity in his imprisonment and mistreatment by the Americans.

So if this settlement can be so easily reconciled on legal, rational and moral grounds, surely there can be no room for dissent.  But there is in fact widespread dissent, and it too can be justified on a reasonable moral argument.  Democracies, including liberal democracies, cannot survive solely on the presumption of a unanimous commitment to right wrongs.  There will inevitably be disagreements over which wrongs merit righting, and what and how much need be done to right any such wrongs.

In recognition of the impossibility of unanimity in the full detail our individual moral judgments, we bind ourselves as a nation in a general commitment to moral behaviour and a corresponding general expectation of loyalty to our common welfare.  This type of loyalty is mostly ardently demonstrated in military service, in which citizens commit themselves to act in accordance with the will of the government of the day and not on the basis of their own personal morality.

Those that undertake such exceptional commitments of loyalty do so only in return for a fair wage.  We offer no exceptional reward, and only break with our covenant when we, through negligence or malice, punish those who have offered their loyalty.  Conversely, the freedoms promised to us by the Charter do not allow us to punish those who do not offer their loyalty.  Indeed, every citizen is free to express views that many might view as disloyal.  The only reasonable expectation is that such citizens not be rewarded for such behaviour lest we denigrate the expectation of loyalty that is critical to cohesive nationhood.

Which brings us back to the Khadr settlement.  Mr. Khadr’s loyalty to Canada is irrelevant to his right to the compensation that is the subject of the settlement.  So too is his loyalty to his family.  For the record he has said nothing publicly to suggest he has anything but an appropriate loyalty to both his country and his family, notwithstanding the peril that the latter placed him in and from which the former was reluctant to do much to extricate him.  Just as there were government officials who condoned and participated in the breach of his Charter rights, there were responsible adults within the Khadr family beyond his deceased father who expressly condoned his deployment as a child soldier in a foreign cause.  Furthermore, it is possible and perhaps likely that there remain members of his family who continue to be involved in jihadist activity in places in which Canada and its allies maintain a military presence.

The Canadian government should be obliged to pay Mr. Khadr the amount required to negate the disadvantages to his future earning potential that have resulted from his characterization as a terrorist rather than a cruelly exploited child soldier since it is in that characterization that it has been complicit.

However, to the extent that the settlement received by Omar Khadr exceeds that base amount, there exists a material risk that others in his family will be indirectly rewarded for declining to act in a manner that reflects loyalty to this country or to Mr. Khadr himself.

The settlement extended by the Canadian government is rumoured to be $10.5 million.  If correct, it certainly exceeds the amount required to offset any economic disadvantage that Mr. Khadr is likely to suffer as a consequence of his notoriety.  There are two justifications for this excess that have been suggested.

The most fundamental reason for the $20 million action brought by Mr. Khadr against the Canadian government and the purported $10.5 million settlement amount is the argument that the award must include exemplary and punitive damages that condemn and deter the impugned  behaviour rather than merely compensate the victim.  While this concept make sense in the context of private actors, the immediacy of the deterrence is lost when the defendant is a government.  Punishing current taxpayers for the acts of prior administrations is not likely to directly alter either the behaviour of the  current government nor the future voting behaviour of taxpayers.  Accordingly, the consideration of deterrence in the context of actions such as this seems misplaced

However, even if one nonetheless accepts the notion that exemplary and punitive damages are appropriate in this case, there remains the question of how substantial these damages should be.  In this case it has been suggested that the earlier Arar settlement had established $10.5 million as the benchmark for Charter breaches of this sort.  On this point, there would appear to be a fundamental basis for distinguishing these cases in a fashion that is favourable to the government.  That argument is rooted in the observation that it was the act of the Canadian authorities in identifying Mr. Arar to the Americans that set in motion the events that led to his “extraordinary rendition”  to Syria for detention and torture.  In the Khadr case, Canadian authorities played no role in placing him in Afghanistan nor Guantanamo.  The breach of his Charter rights only arose on the government’s acquiescence in his continued detention and its participation in his interrogation.  This would seem to be reasonable basis for distinguishing the level of exemplary and punitive damages to which Mr. Khadr should be entitled.

Mr. Khadr is owed a settlement, but Canadians are within their right to expect that the settlement be sized or otherwise structured to avoid the likelihood of indirectly benefiting those whose betrayal of both Omar Khadr and any reasonable standard of loyalty to Canada was at least as substantial as the government’s breach of Mr. Khadr’s Charter rights.  By failing to acknowledge the need to reconcile these conflicting obligations, the government has failed to appropriately justify this settlement.

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