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.


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