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.