How Canada won the Khadr Case

 

Omar Khadr will take ten million of our dollars, but not what really matters. 

Many years ago the government of Canada, first under a Liberal administration and then a Conservative one, betrayed the principles of our law and abandoned a Canadian citizen to rough, imperfect foreign justice. The citizen was a boy – the child of committed Islamist terrorists – who confessed (under duress, he later claimed) to blinding and murdering US soldiers. Those victims could just as easily have been Canadian soldiers, fighting the forces of Islamism. That boy was named Omar Khadr. And in the ultimate of too many ironies, he used the Canadian legal system to fight for what he felt was justice. Now the government of Canada, under a new Liberal administration, has settled his law suit with a payout exceeding $10 million.

This we all knew, or have been reminded of in the past week. And the announcement of the settlement has spawned a seesaw of rage and defensiveness, much of it deeply partisan and highly hypocritical. There is legitimate nausea at the prospect of an avowed traitor and admitted murderer receiving $10 million in compensation, particularly when we contrast that with the treatment of our veterans. There is legitimate righteousness in a defence of some settlement, because Khadr was wronged and the law was violated.

It is the rule of law which is at issue here and we must remember that we are a nation of laws, and those laws apply to everyone, whether we like or loathe him. We are all protected by law, from the prejudices or inclinations of those who have more power. And the Khadr case is about that – it is about the insult done to our law, by our government.

Those of us who are lawyers tell our clients every day that settlement can be more “cost effective” than fighting, even if we might win. But winning, losing and the mercenary calculus of dollars are not the only values we weigh, when making a difficult decision. Sometimes we stand up for a principle.

The problem with standing up for a principle in the Khadr case is, we don’t have a principle worth standing up for. The rule of law really does matter, and I for one would not relish the prospect of public servant lawyers burning our tax dollars for years defending how Canada’s government betrayed Canada’s laws and citizenry. That is not, I think, a fight worth fighting.

As an officer of the court and a believer in the rule of law, I am angry to think my government – of any party – would use raw power to behave illegally, in particular when it means abandoning a citizen to the vagaries of foreign justice. The truth is that the government of Canada violated MY rights, and other Canadians’ rights, and all of our interests when it arrogantly subverted one of the things that makes us better than the enemy we were fighting. If Omar Khadr deserves an apology for what was done to him, the rest of us do too.

I haven’t heard that apology yet, and I think the failure of the government to recognize that the country itself is a victim of what happened to Khadr, is a tragic mistake. A mistake they have time to correct.

Meanwhile, we watch the slings and arrows of invective spray across the gulf between those who would defend the latest Liberal administration and those who would assail it. And to them all on both sides I say, please stop. We are each of us entitled to judge the case and the settlement, as Canadians, but let’s do it within the context of what it all means, not just what we want to accomplish with it. Let’s use the wreckage of the Khadr case to make something, not just to beat each other up.

In the past few days, I have read and heard smart, sensitive and earnest comment from people of diverse backgrounds and beliefs: Khadr was a child enslaved into soldiering, a victim himself not capable of making choices and not fairly judged as a terrorist; his confession was coerced; he suffered in Gitmo; the years of his life consumed cannot be returned, at any price. And I have read that he is part of a hard, cruel maniacal cadre of Islamists who are laughing tonight, on a bed of money, paid for by suckers. That he blinded one man and murdered another, confessed to it and by later denying that, shows no real remorse or humanity.

What I think, when I hear all this, is that every bit of it may be a little bit true. The truth in the Khadr case may be starkly, simply ugly, or it may be complex and ugly. One thing for sure, it’s ugly.

But in the wake of this, we can remember some truths which are not ugly:

• for generations, Canadian sailers, soldiers and aviators have committed their lives – and surrendered their lives – to protect the rule of law and democratic liberty;
• they have bequeathed that freedom to us and still stand on guard for it, every night and day;
• they defended it against Omar Khadr, his family and friends;
• and we have that freedom – the right to know, to think, to speak, to vote – all of it.

And, being the beneficiaries of such sacrifice, it behooves us to respect those freedoms, by using them, and by remembering that we all get to use them.

What I have been reminded of this week is that with the freedom of speech, which we all seem to enjoy exercising, there comes a concomitant duty to listen. I have the right to speak, which means you have some duty to hear me out. And if you have the right to speak, then by God, I owe you a hearing. Rights may be innate, but they are also interdependent; the right of free speech is meaningless, after all, if the whole world makes itself deaf.

Canada Day week began with the celebration of our 150th birthday, and ends with the recrimination and debate over this terrible case. If there is some shouting going on (and there is) there is also much talk and much listening. There is little to be proud of in the Khadr saga, but we might be proud of this: we have, belatedly, upheld the rule of law in the hardest of circumstances. And we can, if we try, disagree about it without being disagreeable.

Men and women have died, and will die, to give us the right to debate. And it is that principle – that we will listen to one another, make the best peace we can and move on together as fellow citizens, it is that principle which is the very thing the Khadr family fought to kill. And they failed. Tonight, that principle is very much alive.

Let’s keep it that way.