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Thread: Reading material for those "irked" by the Kadr settlement

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    Default Reading material for those "irked" by the Kadr settlement

    I came across this rant and I think it's worth a read for all the people raging about the settlement (here and elsewhere).

    The story (the facts we know).
    * Canadian born Khadr was taken to Afghanistan at age 9, by his father. We don't know if he wanted to go, and we don't know why they went. There has been zero evidence put forth to suggest the trip had anything to do with terrorism. Regardless, as he was only 9, he had no choice in the matter.
    * Khadr, aged 15, was found in critical condition following a firefight. The mission debrief report filed by the US troops stated that a middle aged man threw a grenade, which killed one US soldier. The grenadier was shot in the head and confirmed killed.
    * Khadr was taken to Guantanamo Bay prison. No charges were filed against him at that time.
    * Several years later, formal charges were filed. These charges were technically not even charges of war crimes, as if they were true, Khadr would be considered an enemy combatant during a time of war, and thus everything he was accused of doing, was legal under rules of engagement. He was denied access to a lawyer at this point and no trial date was set. He was held in detention and tortured for nearly 10 years.
    * Nearly a decade later, an addendum to the original mission debrief was submitted, which identified the grenadier as Khadr by name. The original report was not rescinded. No one knows who made the addendum. No US personnel present during the firefight confirms the addendum. (at least I've not been able to find any).
    * A week later, Khadr is offered a plea deal. The terms of the deal were to admit guilt to all charges and serve a few more years in a Canadian prison, or refuse to admit guilt and be denied trial indefinitely. (the latter portion is not confirmed by the US government, but let's be realistic here...)
    * Khadr takes the plea deal, is transferred to Canada.
    * Khadr sues the Canadian government for their involvement in his illegal detention, torture, and lack of a trial.

    All of the above is true as far as anyone knows. That is the official story, from both the Canadian and US governments. They have said straight out that Khadr would not be offered a trial unless he took the plea deal. Just let that sink in for a moment.

    Now let me ask you a question.
    As a Canadian, what do you stand for? Do you believe that you, as a Canadian, have the right to be presumed innocent, until proven guilty, as well as the right to a fair and quick trial? I know this is hard for many of you to consider without jumping to "oh, but he's a terrorist, so **** him, he's a traitor and doesn't deserve anything", but we'll get to that in a minute. Seriously consider this. Do you believe you have, as a Canadian, the inalienable right to everything laid out in the Canadian Charter of Rights and Freedoms?

    If you do, but still think Khadr does not, because he is a terrorist, let me ask you; "How do you know he is guilty?" There was no trial for 10 years, and he was only offered a trial on the condition that he plead guilty. How do we, as Canadians, determine guilt? Have you read and understood the Charter of Rights and Freedoms? It's entire purpose is precisely to ensure that what happened to Khadr, is not allowed to happen. Period.

    Now I know many of you still can't get past the "but he's a traitor so he doesn't deserve a trial" even though neither you, nor me, nor the US or Canadian government were able to provide ANY evidence whatsoever, of his guilt (no evidence was submitted during his trial, presumably because none exists), but that doesn't matter. Let me explain the problem to you.

    You are worried that terrorists are trying to take away your freedoms as a Canadian right? They're trying to force their way of life upon us and we as Canadians, won't stand for that right?

    Do you see where I'm going here? Presuming Khadr's guilt, with no evidence and without trial, is precisely what the terrorists want to do to Canada. Isn't that your concern? Does it not strike you then, that by saying that Khadr doesn't deserve a fair trial because he is a terrorist, with absolutely no evidence, nor a trial to prove the charges, that you are doing precisely what you are worried the terrorists are trying to do do us? A presumption of guilt, no trial, a decade of detention and torture. Is that not EXACTLY what you are worried terrorists are trying to do to us?

    At this point, I don't think any of us should even be concerned about Khadrs innocence or guilt. He is inconsequential at this point. The REAL concern for all Canadians, is that our government denied a Canadian citizen his inalienable rights, guaranteed to him under the Charter of Rights and Freedoms. They did EXACTLY what you are worried the terrorists are trying to do. If Khadr was guilty, a trial probably would have proven such, so why was he denied a trial?

    For your information, the Canadian government did not simply offer up an apology and $10m for no reason. They were sued. Khadr filed a civil suit with the supreme court of Canada, and that court found in favour of Khadr, in that the Canadian government was in breach of Canadian and International law. Over half the money awarded will be going toward legal fees.

    Think about it this way. Your government, was just successfully sued for war crimes. Crimes they committed not only against Khadr, but against the entire Canadian public. They assured us that we would all be given a fair trial, but now we know that is not true. They assured us that we will always be presumed innocent until proven guilty. We know that is not true. They took your money, money which could have been spent on building half a hospital or something, and spent it instead, on committing war crimes, and crimes directly against the Charter for which our country stands.

    Now I don't know if Khadr is innocent or guilty and I don't know if that money will end up right back in the middle east, but before you get upset about that, I want you to consider this: Had the Canadian government offered Khadr a fair trial, regardless of his guilt, there would have been no civil suit and we'd have $10.5m more Canadian Pesos to spend on Moose shirts, or maple syrup flavoured hockey sticks.
    All they had to do, was abide by our own legal doctrine, and this whole mess would have never happened.

    In summation:
    If you believe Khadr did not deserve a fair and quick trial, you are not Canadian. You do not stand for what Canada stands for. You are saying very clearly, that you don't care about evidence, treating people (who we presume are innocent until proven guilty) with basic decency, or your own or anyone else's right to a fair trial. You are, quite literally, openly supporting about half of Sharia law.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Great post forumname. Lots of info. I don't agree with some of what you wrote, especially regarding Khadr's guilt. There appears to be plenty of evidence that he was building IED's in Afghanistan and he was physically WITH terrorists when the location (compound?) they were in was assaulted by allied forces fighting terrorism. I agree that it can be disputed whether or not he threw the grenade that killed the U.S. service member and maimed another. I was not aware of the addendum to the mission debrief and I definitely am not supportive of being charged with an offence that was created AFTER the incident in question.

    I am not on board with Canada being responsible for Guantanamo Bay imprisonment, the alleged torture and trial (kangaroo court), but don't think that Canada put him in that position, HE did by his actions. Where we failed Khadr was not trying to help him out by advocating for legal representation and not trying to get him repatriated back to Canada sooner. However, I do think that most Canadians would balk at having Canada go to bat for a person who quite obviously was involved in terrorist activity abroad. We ought to have petitioned for a fair trial. That's it.

    My guess is that this lawsuit is 95% at the suggestion of his lawyer. I watched a CBC special on him and I found myself thinking he deserves a second chance. He was not an unlikeable character. I do not believe that he embraces a radical ideology anymore and only wants to live his life in peace. I just don't think he should win the lottery for something that was initiated through terrorist activity. Cover his lawyer costs, ensure that he is recovered from the ordeal both mentally and physically and that's it.
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    Default Re: Reading material for those "irked" by the Kadr settlement

    I read this article the other day myself. It does contain a lot of good information, however I wish it came across less combative and less accusing of your ability to be a Canadian if you disagree with this. One thing that I am starting to realize with this case, is that there is tons of information, and a fair amount of it is conflicting. That means that it may be difficult for us to separate fact from fiction. It does bother me when people jump to conclusions without looking into the details. It REALLY bothers me when media outlets distort the facts or are intentially misleading to push their own biased agendas.

    I also need to point out, that I truly don't understand the legality of the actual firefight. In a combat situation, Americans killed most everyone else in the compound. Somehow, this is legal. However, after everyone around him has been killed by bombs and small arms fire from the US military, it is somehow illegal and an act of terrorism for the survivors to fight back? I don't get it.

    For the record, I believe that he deserves this money. Canada failed him. Not only did Canada not help him, they were complicit with his torture and mistreatment. I hope that he can live out the rest of his days in peace.

    Rylant

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Quote Originally Posted by Rylant View Post
    I read this article the other day myself. It does contain a lot of good information, however I wish it came across less combative and less accusing of your ability to be a Canadian if you disagree with this. One thing that I am starting to realize with this case, is that there is tons of information, and a fair amount of it is conflicting. That means that it may be difficult for us to separate fact from fiction. It does bother me when people jump to conclusions without looking into the details. It REALLY bothers me when media outlets distort the facts or are intentially misleading to push their own biased agendas.

    I also need to point out, that I truly don't understand the legality of the actual firefight. In a combat situation, Americans killed most everyone else in the compound. Somehow, this is legal. However, after everyone around him has been killed by bombs and small arms fire from the US military, it is somehow illegal and an act of terrorism for the survivors to fight back? I don't get it.

    For the record, I believe that he deserves this money. Canada failed him. Not only did Canada not help him, they were complicit with his torture and mistreatment. I hope that he can live out the rest of his days in peace.

    Rylant
    I agree with all of this.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Quote Originally Posted by Rylant View Post
    I read this article the other day myself. It does contain a lot of good information, however I wish it came across less combative and less accusing of your ability to be a Canadian if you disagree with this. One thing that I am starting to realize with this case, is that there is tons of information, and a fair amount of it is conflicting. That means that it may be difficult for us to separate fact from fiction. It does bother me when people jump to conclusions without looking into the details. It REALLY bothers me when media outlets distort the facts or are intentially misleading to push their own biased agendas.

    I also need to point out, that I truly don't understand the legality of the actual firefight. In a combat situation, Americans killed most everyone else in the compound. Somehow, this is legal. However, after everyone around him has been killed by bombs and small arms fire from the US military, it is somehow illegal and an act of terrorism for the survivors to fight back? I don't get it.

    For the record, I believe that he deserves this money. Canada failed him. Not only did Canada not help him, they were complicit with his torture and mistreatment. I hope that he can live out the rest of his days in peace.

    Rylant
    I also agree with all of this. Good post.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    I am concerned that this might be an issue that is very difficult to debate in an internet forum. I have a lot of respect for many of the people on this forum and hope that if they choose to delve into this quagmire of a case that they will draw their own conclusions. As Rylant pointed out, the sheer volume of information and the conflicting information would be a challenge for any scholar to decipher, let alone a casual follower of the case. In a nutshell: The Khadr family chose to leave Canada. The family chose to involve themselves in a foreign conflict. They chose to associate with people their country deemed as terrorists. They chose to make and use weapons against an ally of Canada. At some point, the Khadr family, who has never denied any of this, should be responsible. If at 15 Omar was still a child, then why aren't his parents in prison for child abuse, terrorism, murder or treason? We live in a world of victimization (my reference is in Canada), where everyone demands that "I am" the most deserving of sympathy, how "my life" is the most unfair, how "I deserve" money, apologies or special treatment. I was always told that life is hard, you reap what you sow and that Karma is a bitch. No one ever said that life was fair. No none told me that if i screw up, that its not my fault and blame someone else. I respect the views and opinions that a 15 year old Canadian boy should not be taken prisoner by an ally, they should not be tortured, they should not be abandoned by their government. I am just not sure that these rules should apply to all 15 year old boys, especially Omar Khadr. To OP Forumname: I truly appreciate you passion and understand the sentiment of your argument but I think that it is an over simplified analysis as he was not tried in Canada. Your post, I believe that we as Canadians would be responsible for every Canadian charged in every court anywhere in the world? He was convicted in a US military court, not a Canadian court. Morally and ethically, the theory of your argument is correct. I just think that sometimes the facts get in the way of a good story.
    Last edited by Chuk; July 10, 2017 at 12:36 AM. Reason: wtf.. why cant i get any formatting going?

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    Default Re: Reading material for those "irked" by the Kadr settlement

    I unfollowed a coworker on FB because he kept posting meme's on the subject. I got fed up seeing people clearly not doing their research before making an opinion.
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    Default Re: Reading material for those "irked" by the Kadr settlement

    here's one point that's not in the article. And in this case, considering Kadr's age at the time he travelled to Afghanistan it should be taken into consideration when thinking about the morality of the situation. He was 9. He has no say in what his family, or his father decides to do, he's along for the ride. Let's change the landscape for a moment and remove the word terrorist.

    Lets suppose, Kadr went to Sierre Lione or a war torn African Country (leaveeverything else the same) and he was later found in a rebel camp in the samecondition, similar firefight situation ? at 15. What happens to him then? He likely would be entered into a UnitedNations sponsored child soldier rehabilitation program to try to de-programhim.



    Admittedly, I know little about Kadr's story or when he becameinvolved in the Taliban or an ?extremist? movement. But how much of this is/wasactually his choice? What else was he supposed to believe? It?s not like he haddaily access to the internet or newspapers to be given alternative opinions.



    Our capitalistic society to a some degree has created aportion of the terrorist threats we now face.



    Personally, I don?t think you can label him a terrorist becausehe was involved in combat vs. US Forces in Afghanistan. These tribes have been fighting with each other, Russians, Pakistani?s, US, among others for hundredsof years. They fight for family, tribal pride and freedom. What western politics and media have done is seemingly label everyone with a weapon in that country a terrorist or an ?insurgent? ?well, if you look at the definition of insurgent, ?a person who rises in forcible opposition to lawful authority, especially a person who engages in armed resistance to a government or to the execution of its laws; rebel.? - this fits the allied forces better than the citizens of the country whom they?re fighting.



    I have friends that fought inAfghanistan and I?m not arguing that their service was wrong or unjust. They did what they were asked/told in honour of our country. The issue is with the language that has been sent back to us and fed to us from the media and politicians to paint everyone in that country that fights in the same colour. That?s not, in my opinion, fair, accurate, or even acceptable reporting.
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    Default Re: Reading material for those "irked" by the Kadr settlement

    Quote Originally Posted by lucafen4 View Post
    Lets suppose, Kadr went to Sierre Lione or a war torn African Country (leaveeverything else the same) and he was later found in a rebel camp in the samecondition, similar firefight situation ? at 15. What happens to him then? He likely would be entered into a UnitedNations sponsored child soldier rehabilitation program to try to de-programhim.
    Hi Lucafen4 - so interesting that you write this. The guy I was speaking to last night, who is much more informed than I am, used a similar point about Canadian prisoners in China, Syria, Portugal even Mexico and the expectations of the government to help. In most cases they cannot, but you would think with the US, we would have more say. Then the use of child soldiers in Africa was brought up as well but he discarded the issue due to upbringing, indoctrination and lack of any other option. Plus the UN resolutions are supposed to cover these issues but they do not (in reality). The only point that was made was that if any country other than the US had found them, the usual procedure is to kill everyone. Hence eliminating most political issues. Sadly this was more true than I had believed. I also believe that if this was a child soldier from Sierra Leone, our federal government would not have had this charade and not provided a dime to the child. It just would not send the message that this government is intent on sending. As I mentioned before, when are his parents responsible for putting a 15 year old in this situation?

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Quote Originally Posted by Chuk View Post
    Hi Lucafen4 - so interesting that you write this. The guy I was speaking to last night, who is much more informed than I am, used a similar point about Canadian prisoners in China, Syria, Portugal even Mexico and the expectations of the government to help. In most cases they cannot, but you would think with the US, we would have more say. Then the use of child soldiers in Africa was brought up as well but he discarded the issue due to upbringing, indoctrination and lack of any other option. Plus the UN resolutions are supposed to cover these issues but they do not (in reality). The only point that was made was that if any country other than the US had found them, the usual procedure is to kill everyone. Hence eliminating most political issues. Sadly this was more true than I had believed. I also believe that if this was a child soldier from Sierra Leone, our federal government would not have had this charade and not provided a dime to the child. It just would not send the message that this government is intent on sending. As I mentioned before, when are his parents responsible for putting a 15 year old in this situation?
    His parents are definitely largely responsible for this. He father was a high ranking officer from Al-Qaeda and he has since been killed in combat. Keep in mind, that not only did the Canadian Government know that Omar was being held and tortured in Guantanamo, they actually helped the interrogations. Khadr is not being paid this money because he was treated inhumanely by the Americans, he is being given this money because Canada actually contributed to the situation, and did not try to help him when they are legally and morally required to do so.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Not sure I agree..

    I do not think there was a court ruling that Canada is guilty and that we owe him 10.5 million. My understanding is that this was purely a political act. If so, where is the ruling by a Canadian court that requires the government to pay? Who says that Canada was legally and morally required and furthermore negligent of providing these protections?

    If we are all debating the rule of law and legal obligation, where is the Canadian court ruling? Isn't everything else just opinion and politics?

    I guess another question is the are they more obligated to help a citizen or more obligated to protect citizens from terrorism. Pretty tough to measure. Isnt that the Locke and Hobbs debate? Rights of the many vs. rights of the individual.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Khadr has sued the Canadian government on numerous occasions since his capture. 3 of these cases have been heard by the Supreme Court of Canada and each time the SCC ruled unanimously (9-0) in favour of Khadr.. The Supreme Court decisions were handed down in 2008, 2010 and 2015. I will attempt to summarise those ruling as briefly as possible

    1. Canada (Justice) v. Khadr 2008 SCC 28
    https://www.canlii.org/en/ca/scc/doc...?resultIndex=1
    The Court found that Khadr was being held by US forces in Guantanamo Bay. The Court confirmed that “In 2003, Canadian officials, including agents of the Canadian Security Intelligence Service, questioned K at Guantanamo Bay with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities.”
    The SCC found that the government of Canada had a duty to Khadr (as a citizen) and that in this case his rights under the Canadian Charter of Rights and Freedoms applied. Specifically section 7 which includes the “right to life, liberty and security of the person.

    The SCC ruled that:
    In the present circumstances, this duty requires Canada to disclose to K records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity. Since unredacted copies of all documents, records and other materials in the appellants’ possession which might be relevant to the charges against K have already been produced to a designated judge of the Federal Court, the judge will now review the material, receive submissions from the parties and decide which documents fall within the scope of the disclosure obligation.
    Essentially the Canadian government was required to give a copy of all documents it had on Khadr to Khadr and his legal team. At first glance this decision isn't overly important because the Charter breach was eventually cured by handing over documents. However, this decision is key because it laid the groundwork for the other decisions specifically by finding that the Charter applied to Khadr and that the Canadian government had aduty to Khadr even though he was being held by a foreign government.

    2. Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44
    https://www.canlii.org/en/ca/scc/doc...&resultIndex=1

    At the time of this case the Canadian government had not formally requested that Khadr be repatriated back to Canada, and the PM (Harper) specifically refused to do so. Other counties (UK, Portugal, Germany) had made such requests for citizens (and permanent residents) held in Guantanamo and the American government had honoured some of these.

    Khadr took the position that his Charter rights were being violated by the Canadian government and that the government had a duty to request his repatriation. Acknowledged in this point was that the Canadian government could not force a repatriation, Khadr alleged the duty was to ask. The Canadian government took the position that there was never a duty to request the repatriation of a citizen held by another country and that it did not have a duty to Khadr.
    The Court held that:
    • the Canadian government actively took part in a process that violated Khadr’s Charter rights.
    • There was connection between the government’s actions and Khadr’s deprivation of his rights;
    • That Canada’s refusal to ask for repatriation was contributing to Khadr’s deprivation of rights and the government had an obligation to do something to defend those rights.

    Key note is the SCC did not actually order the government to request Khadr’s repatriation. Instead the SCC ruled
    “we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”
    That is, the Canadian government could have come up with another way to meet its obligations to Khadr, such as requesting the US government adhere to principles of his detention etc. which may have met the obligation. Ultimately, the Canadian government did request his repatriation which was granted by the US government (which was all intertwined into his guilty plea). Khadr returned to Canada in 2012.

    3. Bowden Institution v. Khadr, [2015] 2 SCR 325

    ps://www.canlii.org/en/ca/scc/doc/2015/2015scc26/2015scc26.html?resultIndex=13
    This action was brought against the prison in which Khadr was held which is under federal government control. The federal government runs the prison and argued on behalf of the prison.
    This is a rather short ruling. The question revolved around what type of prison Khard should serve his sentence in. The government argued his sentence was 5-8 year terms to be served concurrently (still only 8 years in custody) but that amounted to a 40 year sentence and thus he needed to be held in a higher security prison.Khadr argued his sentence was 1-8 year term for all of his crimes and thus he should be held in a lower level prison. The SCC ruled in favour of Khadr.

    In the grand scheme of things this ruling was rather minor.

    Settlement Dollars
    None of the above rulings deal with money or issue Khadr any dollar figure. Rather they cases give declarations from the Court that Khadr’s Charter rights were being violated, and general orders to the government to fix said Charter violations.
    Chuk is right in that there is no case from any Canadian court that says “Pay Khadr $XX”. What exists is 3 cases from the SCC (and about a dozen from Federal Court of Appeal and Alberta Court of Queen’s Bench) stating that the Canadian Government has violated his rights. At the time these cases were brought Khadr was detained, first in Guantanamo, and then in Alberta and getting paid compensation was not high on his list of things to accomplish.

    Once the detention issues had been dealt with, and Khadr multiple rulings stating his rights were violated,he sued for compensation for said violations. Khadr issued a lawsuit seeking $20 million in damages plus legal costs, plus interest. Khadr and the Trudeau government agreed to settle the case for $10.5 million and an apology. The Trudeau government could have taken the position that they were not going to settle, not pay a dime and defended all actions tooth and nail. Trudeau chose to settle which gives certainty to the damages, ends the matter and avoids lengthy testimony and news coverage.

    The case law is clear that the Canadian government violated Khadr’s rights over and over again. Whether you agree with those decisions or not they are the law. Liability was not in dispute the only thing in dispute was damages.
    Quantifying damages for charter violations is extremely difficult. Khadr wasn’t out any money because of the actions, what is an individual’s “pain and suffering” worth; further, what portion of his damages was caused by the Canadian government- the torture and detention was the US government. Usually in quantifying damages the courts look to case law but there’s not exactly a ton of cases on point to help set damages. The only similar case is that of Maher Arar who was detained by US officials based on information provided by the RCMP, Arar was then sent to Syria to be tortured. He was imprisoned for slightly over a year, he settled with the Canadian government (Harper’s government) for $10 million. He was held for 1 year, Khadr was held for 10+ years. It was not a court ruling but a settlement but still gives a decent idea of the quantifying of Charter violations.

    Opinion time: Trudeau knew the government had no case. Damages would have been severe; the Court would be looking to send a strong statement, IMO damages would have been close to the $20 million Khadr sought, plus legal fees. Trudeau saved the government millions by settling. From a pragmatic fiscal perspective it was absolutely the right call.
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    Default Re: Reading material for those "irked" by the Kadr settlement

    You sir... are way too good to us.
    Quote Originally Posted by LawMan View Post
    Khadr has sued the Canadian government on numerous occasions since his capture. 3 of these cases have been heard by the Supreme Court of Canada and each time the SCC ruled unanimously (9-0) in favour of Khadr.. The Supreme Court decisions were handed down in 2008, 2010 and 2015. I will attempt to summarise those ruling as briefly as possible

    1. Canada (Justice) v. Khadr 2008 SCC 28
    https://www.canlii.org/en/ca/scc/doc...?resultIndex=1
    The Court found that Khadr was being held by US forces in Guantanamo Bay. The Court confirmed that “In 2003, Canadian officials, including agents of the Canadian Security Intelligence Service, questioned K at Guantanamo Bay with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities.”
    The SCC found that the government of Canada had a duty to Khadr (as a citizen) and that in this case his rights under the Canadian Charter of Rights and Freedoms applied. Specifically section 7 which includes the “right to life, liberty and security of the person.

    The SCC ruled that:


    Essentially the Canadian government was required to give a copy of all documents it had on Khadr to Khadr and his legal team. At first glance this decision isn't overly important because the Charter breach was eventually cured by handing over documents. However, this decision is key because it laid the groundwork for the other decisions specifically by finding that the Charter applied to Khadr and that the Canadian government had aduty to Khadr even though he was being held by a foreign government.

    2. Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44
    https://www.canlii.org/en/ca/scc/doc...&resultIndex=1

    At the time of this case the Canadian government had not formally requested that Khadr be repatriated back to Canada, and the PM (Harper) specifically refused to do so. Other counties (UK, Portugal, Germany) had made such requests for citizens (and permanent residents) held in Guantanamo and the American government had honoured some of these.

    Khadr took the position that his Charter rights were being violated by the Canadian government and that the government had a duty to request his repatriation. Acknowledged in this point was that the Canadian government could not force a repatriation, Khadr alleged the duty was to ask. The Canadian government took the position that there was never a duty to request the repatriation of a citizen held by another country and that it did not have a duty to Khadr.
    The Court held that:
    • the Canadian government actively took part in a process that violated Khadr’s Charter rights.
    • There was connection between the government’s actions and Khadr’s deprivation of his rights;
    • That Canada’s refusal to ask for repatriation was contributing to Khadr’s deprivation of rights and the government had an obligation to do something to defend those rights.

    Key note is the SCC did not actually order the government to request Khadr’s repatriation. Instead the SCC ruled
    “we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”
    That is, the Canadian government could have come up with another way to meet its obligations to Khadr, such as requesting the US government adhere to principles of his detention etc. which may have met the obligation. Ultimately, the Canadian government did request his repatriation which was granted by the US government (which was all intertwined into his guilty plea). Khadr returned to Canada in 2012.

    3. Bowden Institution v. Khadr, [2015] 2 SCR 325

    ps://www.canlii.org/en/ca/scc/doc/2015/2015scc26/2015scc26.html?resultIndex=13
    This action was brought against the prison in which Khadr was held which is under federal government control. The federal government runs the prison and argued on behalf of the prison.
    This is a rather short ruling. The question revolved around what type of prison Khard should serve his sentence in. The government argued his sentence was 5-8 year terms to be served concurrently (still only 8 years in custody) but that amounted to a 40 year sentence and thus he needed to be held in a higher security prison.Khadr argued his sentence was 1-8 year term for all of his crimes and thus he should be held in a lower level prison. The SCC ruled in favour of Khadr.

    In the grand scheme of things this ruling was rather minor.

    Settlement Dollars
    None of the above rulings deal with money or issue Khadr any dollar figure. Rather they cases give declarations from the Court that Khadr’s Charter rights were being violated, and general orders to the government to fix said Charter violations.
    Chuk is right in that there is no case from any Canadian court that says “Pay Khadr $XX”. What exists is 3 cases from the SCC (and about a dozen from Federal Court of Appeal and Alberta Court of Queen’s Bench) stating that the Canadian Government has violated his rights. At the time these cases were brought Khadr was detained, first in Guantanamo, and then in Alberta and getting paid compensation was not high on his list of things to accomplish.

    Once the detention issues had been dealt with, and Khadr multiple rulings stating his rights were violated,he sued for compensation for said violations. Khadr issued a lawsuit seeking $20 million in damages plus legal costs, plus interest. Khadr and the Trudeau government agreed to settle the case for $10.5 million and an apology. The Trudeau government could have taken the position that they were not going to settle, not pay a dime and defended all actions tooth and nail. Trudeau chose to settle which gives certainty to the damages, ends the matter and avoids lengthy testimony and news coverage.

    The case law is clear that the Canadian government violated Khadr’s rights over and over again. Whether you agree with those decisions or not they are the law. Liability was not in dispute the only thing in dispute was damages.
    Quantifying damages for charter violations is extremely difficult. Khadr wasn’t out any money because of the actions, what is an individual’s “pain and suffering” worth; further, what portion of his damages was caused by the Canadian government- the torture and detention was the US government. Usually in quantifying damages the courts look to case law but there’s not exactly a ton of cases on point to help set damages. The only similar case is that of Maher Arar who was detained by US officials based on information provided by the RCMP, Arar was then sent to Syria to be tortured. He was imprisoned for slightly over a year, he settled with the Canadian government (Harper’s government) for $10 million. He was held for 1 year, Khadr was held for 10+ years. It was not a court ruling but a settlement but still gives a decent idea of the quantifying of Charter violations.

    Opinion time: Trudeau knew the government had no case. Damages would have been severe; the Court would be looking to send a strong statement, IMO damages would have been close to the $20 million Khadr sought, plus legal fees. Trudeau saved the government millions by settling. From a pragmatic fiscal perspective it was absolutely the right call.
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    Default Re: Reading material for those "irked" by the Kadr settlement

    Dear Lord Lawman you are the best. Will positive Rep when I can. Permission to repost your post on Facebook? I will credit you.

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    Default Re: Reading material for those "irked" by the Kadr settlement

    Lawman you are a scholar and a gentleman. Absolutely brilliant write up. Very thankful as I am familiar with some but not all of the details.

    If I might be so bold, i would like to suggest that there are a few areas that maybe I could ask your clarification on:

    1- The Charter rights of Canadians do not extend to foreign countries; citizens must comply with the laws of the country where they travel.
    2- The death of Christopher Speer occurred in 2002, the firefight that Khadr confessed to murdering him with the IED. I do not bring this up to debate the value of teh confession, but I wanted to "start at the beginning" only to show that it was actually the Paul Martin Government, with the high-horsed Ralph Goodale in cabinet, that could have repatriated young Mr. Khadr and avoided all this history, if it felt that US was not acting appropriately. Furthermore I think Mr. Goodale's time to "save the government money" had long passed and it was likely in the best interests of the Canadian people to hear what a civil case would have determined the value and merits of this case were.
    3- the 2008 case was resolved by the government handing over information.
    4- the 2010 case was resolved by the government asking for Khadr to be repatriated.
    5- the 2015 case was relatively insignificant.
    6- we agree that no court has indicated what the penalty should be for the various violations that are mentioned in the above rulings.

    I reject the association with the Maher Arar case because he was pulled off an airplane and falsely convicted on the information provided by the RCMP at the time. The RCMP played a pivotal role in his conviction, which is completely different than Khadr, an armed assailant in a military zone. Furthermore, the apology to Arar came by way of a both an official government statement and a unanimous House of Commons resolution.

    NOW....The present settlement was political, serving no one and especially not our charter. A back, door out of session, cheque writing session on the heels of an injunction that prevents the Speers family from collecting on their $134 million settlement in a Utah court.

    The Canadian government's history around right violations rewards are actually much smaller than any of the numbers surrounding this case. The larger numbers are primarily due to court costs and legal fees as opposed to settlements.

    Where are we now:

    No one knows what exactly happened in the 2002 firefight in Afghanistan. The confession of Khadr should not be accepted, based solely on the fact that Canadian personnel chose to question him in Guantanamo instead of bringing him back to Canada to be tried. This is the only incident that the government can be clearly called out for. He was 15, not entitled to protection of the charter, as he was charged by the US, but we as Canadians should have demanded it.

    opinion time:
    We as Canadians should have demanded that a trial took place here to determine whether Khadr was a guilty of murder or not.
    We never should have paid out any money because the people of this country deserved their day in court just as much as Khadr does.
    The settlement is neither pragmatic or correct. Correct would have been allowing the legal process its due course. This is politics.
    You cannot argue that we as Canadians or the Canadian government have violated the charter and were circumventing justice, and then summarily cut a cheque to "save money". No. Not right.
    If a court give him 5, 10, 20 or 30 million, the fact would be that we ALL as Canadians woudl have had our day in court, been legally represented and kept the politics out of a fundamentally necessary process, that we as Canadians deserve.

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