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Accounting for Khadr

Convivium Publisher Peter Stockland argues Canadians deserve better from the Khadr case than sketches of fact becoming caricatures of truth.

5 minute read
Topics: Journalism
Accounting for Khadr July 20, 2017  |  By Peter Stockland
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One remarkable aspect of the eruption over Omar Khadr was how it instantly became about one man standing in for our preferred images of good versus evil.

The debate over the federal government’s $10.5 million payment to him for breaches of his Charter Rights during his imprisonment in Guantánamo Bay, Cuba immediately descended into tit-for-tat vilification or hagiography.

The stance taken at the outset by the Conservative Party has depicted Khadr as a terrorist monster who has unscrupulously hit the jackpot at Canadian taxpayers’ expense. The counter claim from liberals and Liberals is that he’s a victimized haloed-innocent who has been tarred, feathered, and defamed by the country’s hate-mongers.

Yet as Ottawa lawyer Don Hutchinson wrote on Convivium.ca last week, Khadr is neither all of one or the other. He is someone who did wrong - and who was wronged. We tend to forget it is possible to be both.

Reminded of the possibility, we see again how it is also possible to be punished for a reckless act and to be justifiably compensated when punishment disregards the rule of law. Each outcome fits Khadr’s case.

American judges ruled that he threw a grenade that killed one U.S. soldier and blinded another in Afghanistan, opening the door to a jail cell for him. The Supreme Court of Canada ruled that Ottawa grievously violated his Charter rights, opening the door to compensation for him. It is pointless to pick one side over the other when both comprise the whole.

Unfortunately, polarization has become such a powerful reflex among us that we too often prefer to argue for the selective half rather than discern and accept the full reality. Whatever else it is, the Khadr case is another instance of sketches of fact becoming caricatures of truth that look remarkably like whoever commented last. 

That’s not how human beings should reason. It’s not how we should learn the truth about the world around us. It’s not how the common good is best served.

Prime Minister Trudeau’s tongue-tied inability to articulate the reasoning and the process behind the $10.5 million payment only compounded the damage. Clarity and consistency were essential to calm the emotional storm. But, as Rex Murphy noted recently in the National Post, the PM’s initial explanation split off from itself so rapidly that it left 71 per cent of Canadians even more bewildered and distrustful.

It must be stressed our current prime minister is in no way responsible for the larger events that underlie all the anger about the Khadr payment. He inherited the fiasco from a succession of governments stretching back to the early 2000s. He came in late, and ended up wearing a mess made by others.

Still, his political tic of giving multiple partial explanations for his government’s decisions served Canadians has extremely poorly. His first foray in the Khadr matter was to argue we must pay the cost when Charter rights are violated. He then followed up by claiming the government actually “saved” Canadians money by spending $10.5 million rather than the $20 million to $30 million it would have purportedly paid out had the government fought Khadr’s civil suit through the courts and “inevitably” lost.

Both might be credible. Why not pick one, especially when the two are inherently contradictory?

Here the prime minister himself was poorly served by the big media’s abject failure to press him to get his story straight, stick to it, and explain clearly to Canadians exactly what was going on. Rather than doing what is their essential job, most journalists simply covered Trudeau’s muddled Khadr account as they have covered him from the beginning of his term: by resolutely refusing to challenge what ‘s left unanswered.

For example, the PM should be pressed relentlessly on his claim that the Khadr case was a foregone loser at trial. Why? Even if the best legal minds advising the government came to that conclusion, are Canadians not entitled to know their reasoning? Put another way, what is it we don’t know about this case that made settling out of court the only choice? We can all speculate. Only the prime minister can elucidate.

While he’s at it, he should be pestered to supply the arithmetic by which he came up with the estimate for the cost of taking Khadr to trial. One fine legal mind pointed out to me that the costs of the residential schools case, which involved thousands of claimants and witnesses across the country, were capped below what the prime minister forecast for Khadr, a case where there was a sole claimant and no new facts to be ferretted out.

Likewise, while Khadr’s civil suit was for $20 million, up markedly from the $100,000 claim he originally filed years ago, a lawyer who handles both Charter and personal injury litigation told me it’s highly doubtful the courts would have awarded him anywhere close to that. How so? Because injury suits, which is what Khadr’s claim amounts to, are settled by the rather brutally named “meat chart” method of dispensing justice.

“You get so much for a hand, so much for a foot, so much for an eye. And the loss in measured against the cost to you. So if you’re a surgeon who loses a hand, and you show how that’s going to have a huge effect on your future income, you can expect a high settlement.”

What if you’re a homeless person picking bottles out of the trash? Not so much. That may offend Canadians’ egalitarian sensibilities, but it is the way our system works. It’s applicable to Khadr because, harsh as this might seem, the monetary compensation to which he might have been entitled would, in normal circumstances be far closer to the bottle picker than to the surgeon. He had a Grade 8 education at the time of his arrest. His own father was primarily to blame for deliberately placing his son in harm’s way in the Afghan combat zone where he threw the grenade that killed and maimed two soldiers. His prospects, and therefore the compensation to which he might have been legally entitled, were grim to put it generously.

“The reality is if he hadn’t killed someone, been arrested and sent to prison, he might well have spent the rest of his life living in a cave in Afghanistan,” one lawyer told me. “The question that has to be asked is how much compensation the courts would normally award someone with a future like that.”

Does that mean Omar Khadr is an irredeemable terrorist unworthy of redemption? Absolutely not. Does it mean his Charter rights weren’t violated by his treatment at the hands of the Canadian government. No. The Supreme Court has clearly said they were. Does it mean he wasn’t entitled to some compensation, up to and including the amount of the settlement he received. It means no such thing.

It does mean there remain a myriad of questions that journalists, and the Conservative official opposition, must start asking so Canadians have the whole Khadr story, not just selective parts that suit preferred images of good and evil. For a second remarkable aspect of the eruption is how, at time when transparency is the buzzword of the day, Canadians seem more interested in polarizing around epithets than in demanding basic democratic accountability.

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