Omar Khadr.1.

• Author: Bowal, Peter

"That when a government violates a Canadian, any Canadian's fundamental rights, and allows them to be tortured, there are consequences and we all must pay . . . the question is what the Government of Canada did or didn't do and that as a deterrent, as taking responsibility, and that as actually avoiding what could have been a $40-million payout at the end of the day was why we made that decision [to pay Omar Khadr $10.5 million]."

PM Justin Trudeau, response at public meeting, January 9, 2018

Introduction

In early July 2017, the Government of Canada announced a settlement payment of $10.5 million and apology to accused murderer and terrorist Omar Khadr. In Parliament, the Prime Minister defended the payment and apology on the basis "that a Canadian government violated a Canadian's fundamental rights."

Many Canadians wondered what rights of Khadr were violated that would warrant a $10.5 (or $40) million pay day.

There are actually several Khadr judicial decisions from the Supreme Court of Canada. This article describes the first decision where the question was a threshold one: whether Khadr actually enjoyed rights under the Charter of Rights and Freedoms. The next article will refer to the follow-up judicial decision.

Facts

The whole Khadr story is long and detailed. Only the basic context is necessary here. Canadian-born Khadr was accused of killing an American soldier in Afghanistan. He was captured and imprisoned at Guantanamo Bay by the United States in July 2002. The next year, Canadian intelligence officials interviewed Khadr in custody about the charges and shared the information with the Americans. In themselves, the interviews and sharing probably amounted to nothing.

After Khadr was formally charged by the Americans in late 2005, he asked the Canadian government for its videotape and other records of these interviews. The principle is called disclosure and is based on the 1991 case called Stinchcombe, which has been recently discussed in this LawNow column. Canada refused to give Khadr disclosure. This was not disclosure of evidence that could catch Khadr by surprise or complicate (or assist) his defence. It was a request for the physical record of evidence of which he was well aware.

Unusual Case

Now, this was a highly atypical case. Khadr's connection to Canada was tenuous. He and his family had spent much time outside of Canada. He was a child fighting against the American coalition. He had killed an American which he admitted...