About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.


For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.


Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese


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Latest Book: Available from Irwin Law in April 2018.


Rethinking Intelligence Sharing and Torture

The government released yesterday revamped ministerial directions on intelligence sharing that may implicate mistreatment. The new directions reach CSIS, CBSA and RCMP (the agencies under the Public Safety Portfolio). We should hope for and expect the roll-out of equivalents for other departments and agencies (such as CSE and GAC).

The standards Canada should apply in sharing and receiving intelligence from foreign agencies which may engage in mistreatment (torture or cruel, inhuman or degrading treatment) is a longstanding debate. I rehearse the history in a 2014 article. I have blogged regularly on the issue in this space (keyword search "torture" in the site search field).  And Roach and I cover the topic in our 2015 book, False Security.

Here, I offer up a few quick process thoughts and a few quick substance thoughts tied to the latest development.

1. Process

Up to now, it has been difficult to figure out a) what the government policy was and b) how it was applied. We know about earlier policies because of dogged access to information applications and work by, chiefly, Jim Bronskill. In assessing actual conduct under the policies, it's been like pulling teeth. In terms of public reporting, the best we've had it SIRC's short assessment from last year. And that was confined to CSIS.

The 2017 directions are notable for several reasons.  First, they were proactively released, in keeping with the government's new transparency pledge. Ministerial directions are, in essence, law, because of the manner in which governing statutes give them legal imprimatur. That they have been held close to the chest, and if released, redacted, has been a major irritation -- and should be concerning in a society governed by the rule of law. So A+ on the proactive release.

Second, the directions themselves impose transparency expectations. Key features include the following requirements:

19. Transparency about the use of this Direction is a key principle. In accordance with Principle 4 of the Government's National Security Transparency Commitment, CSIS is expected to publish information that explains how this Direction is implemented, including how risk assessments are conducted, in line with Canadian values, including those expressed by the Canadian Charter of Rights and Freedoms.

The agencies are to compile annual reports on their performance under the directions.  This will be classified, but shared with the minister and the review bodies. But also:

27. This report, in an unclassified format, will be released publicly, containing the contents described above to the extent possible without compromising the national interest, the effectiveness of operations, or the safety or security of an individual.

Maybe you need to have spent a career banging up against agency insularity, but I regard this too as a big deal.  We'll wait and see how thorough these reports are, but so far an A+ for the principle.

2. Content


Intelligence sharing needs to be divided into "in-bound" (coming from foreign partners) and "out-bound" (disclosed to foreign partners).  Out-bound is the most fraught historically and legally. Sharing information in knowledge of risk that it might lead to someone's torture opens the door to a violation of Canada's international obligations (depending on how you define "complicity" in the Torture Convention), constitutional law (depending on the application of causality principles suggested in cases like Suresh) and international and domestic criminal law (depending on the scope of the intent requirement in aiding and abetting concepts).  I discuss all this in the 2014 article noted above. 

Out-bound intel sharing was at the heart of the Arar, Almalki, Elmaati and Nureddin matters -- which were tragic for the victims, tarnishing for the services and expensive in terms of liability and reputation for the government.

We have gone back and forth on the standard to be applied to outbound intel sharing for years.  In 2002, for instance, internal CSIS policies provided: “if there are allegations of human rights abuses, the Service always ensures to use a cautious approach when liaising with the foreign agency and closely scrutinizes the content of the information provided to, or obtained from, the foreign agency” either “in an effort to avoid instances where the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations” or “to ensure none of the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations.”

Various accountability bodies have questioned the effectiveness of these operational policies.  In its 2004-5 annual report, the Security Intelligence Review Committee doubted CSIS could meet the human rights standards expressed in its 2002 policy.

In May 2009, the minister of public safety issued a specific ministerial direction on CSIS information-sharing with foreign agencies.  This document provided:

 so as to avoid any complicity in the use of torture, CSIS is directed to

  • not knowingly rely upon information which is derived from the use of torture, and to have in place reasonable and appropriate measures to identify information that is likely to have been derived form the use of torture;
  • take all other reasonable measures to reduce the risk that any action on the part of the Service might promote or condone, or be seen to promote or condone the use of torture, including, where appropriate, the seeking of assurances when sharing information with foreign agencies.

This standard was revised again in 2011. The 2011 version began with a section on “Canada’s legal obligations”, defined several key terms, established “information sharing principles” and then provided a road map for approving both in-bound and out-bound information sharing “when there is a substantial risk of mistreatment in sharing information”.

Having acknowledged the international, statutory and constitutional prohibitions on torture, the instruments defined “mistreatment” to include both torture and CID treatment or punishment.  “Substantial risk” of such treatment meant a “personal, present and foreseeable risk of mistreatment” that is “real and must be based on something more than mere theory or speculation” that typically arises when “it is more likely than not that there will be mistreatment”.  The latter test was not, however, to be “applied rigidly because in some cases, particularly where the risk is of severe harm, the ‘substantial risk’ standard may be satisfied at a lower level of probability”.

The information-sharing principles applicable to CSIS, RCMP and CBSA included an obligation to avoid “complicity in mistreatment by foreign entities” as well as a requirement to assess the accuracy and reliability of information received from partner agencies.  Approvals for information-sharing was to be indexed to the level of risk of mistreatment.

Where the risk of sending or soliciting information from a foreign entity was substantial, and it was unclear that the risk could be mitigated by caveats and assurances, the CSIS director, the RCMP commissioner or the CBSA president decided on the information-sharing.  These officials considered a list of factors in arriving at their decisions, including the national security interest, the basis for believing a substantial risk existed, measures to mitigate that risk and the views of other departments, including Foreign Affairs.  The matter might also be referred to the minister.  The minister or the director “shall authorize the sharing of information with the foreign entity only in accordance with” the direction and “Canada’s legal obligations”.

For use of in-bound information, the 2011 directions noted that in exceptional circumstances CSIS, RCMP and CBSA could share information from foreign entities that likely stemmed from mistreatment: “When there is a serious risk of loss of life, injury, or substantial damage or destruction of property, CSIS [RCMP or CBSA] will make the protection of life and property its priority.”  As a prudential measure, “[m]easures will also be taken to ensure that the information which may have been derived through mistreatment is accurately described, and that its reliability is properly characterized. Caveats will be imposed on information shared with both domestic and foreign recipients to restrict their use of information, as appropriate.”

Bottom line: the 2011 directions for both out-bound and in-bound had "in case of emergency, break glass" permissions to share information even where torture risk remained high (or in the case of in-bound, even when it had occurred). Hence the criticism.

For me, the out-bound sharing was the most doubtful, because the link to complicity was more acute and the causal consequences more evident. I have urged that in-bound raises different issues. It is not enough to argue, as many human rights advocates do, that use creates a "marketplace" for torture. That is a good sound bite, but a bad analogy. And to the extent people conflate any use with complicity, they stretches the complicity concept beyond both it legal and plain meaning. (And I would accuse the UN Committee Against Torture of invoking implausible understandings of complicity, contributing to the unfortunate sense that the UN human rights bodies are norm entrepreneurs with an indifferent commitment to law.)

On the dilemmas of in-bound, see some of my discussion here and in my 2014 article.

There are, however, some bright lines for in-bound, beyond complicity. For instance, it can't be used as evidence. Art 15 of the UN Torture Convention provides: "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."

In 2006, a group of academics and human rights groups struggled with what other standards should guide in-bound use, beyond this Art 15 expectation. Even that group (which included Canada's chief international human rights groups of the period) chose not to endorse an absolute bar on in-bound use. This is what we came up with, codified as the Ottawa Principles on Human Rights and Anti-terrorism (principle 4.3.2):

Information, data, or intelligence that has been obtained through torture or cruel, inhuman or degrading treatment or punishment may not be used as a basis for:


(a) the deprivation of liberty;
(b) the transfer, through any means, of an individual from the custody of one state to another;
(c) the designation of an individual as a person of
interest, a security threat or a terrorist or by any other description purporting to link that individual to
terrorist activities; or
(d) the deprivation of any other internationally protected human right.


2017 Directions

So what is new in the 2017 directions? For out-bound, the "in case of emergency break glass" prospect is now gone: "If that substantial risk [of mistreatment] cannot be mitigated, information will not be disclosed to that foreign entity." So too when information is requested of a foreign service: "If that substantial risk cannot be mitigated, information will not be requested from that foreign entity."

This an important shift. It amounts to a moral choice about the primacy given to the prohibition on torture. Much will turn on what "mitigation" may mean (for example, would mitigation include doubtful possibilities like "we will tell the Americans and they will tell the Egyptians". )  But if the new checks and balances and transparency discussed above work, these are dilemmas that will regularly be "red teamed" by independent reviewers. [There will be lots of application issues. For instance, Paul Champ raises an excellent point about the definition of substantial risk, which reads in part "a personal, present and foreseeable risk of mistreatment." In Badesha this month, the Supreme Court declined to limit review of torture risk on extradition to this highly personalized assessment, and refused to foreclose "the possibility that there may be cases in which general evidence of pervasive and systemic human rights abuses in the receiving state can form the basis for a finding that the person sought faces a substantial risk of torture or mistreatment."]

On in-bound, there is no absolute bar on use. The information can never be used in a proceeding or "in any way that creates a substantial risk of further mistreatment".  But the "in case of emergency break glass" prospect remains: generally, the information could not be used to deprive someone of their rights or freedoms, except where "it is necessary to prevent loss of life or significant personal injury." So does this line up with the Ottawa Principles? Well, I struggle to imagine a deprivation of a right or freedom that would occur independent of "a judicial, administrative, or other proceeding", for which the suspect in-bound information cannot be used. So the result might be something like:

Ottawa Principles

2017 Direction

Cannot be used as basis for:


(a) the deprivation of liberty;

In Canada, would require use in a proceeding (criminal, civil, administrative, warrant or threat reduction, peace bond, preventive detention – all are proceedings). I would argue that passport revocation and no fly listing is a proceeding captured by this same limitation. Therefore, use in these contexts is barred. Maybe the initial detention under preventive detention in exigent circumstances, prior to show cause review by the court? But to justify detention on evidence could then never use in front of the court would be very suspect.

(b) the transfer, through any means, of an individual from the custody of one state to another; 

In Canada, would require use in a proceeding. Therefore barred.

(c) the designation of an individual as a person of interest, a security threat or a terrorist or by any other description purporting to link that individual to terrorist activities; or

This is the thorny issue.  See below.

(d) the deprivation of any other internationally protected human right. 


In Canada, would almost certainly require use in a proceeding. Therefore barred.


Paragraph c) is the headache. For instance, CSIS may commence an investigation on reasonable grounds to suspect a threat to the security of Canada. If in-bound information constitutes the basis for that reasonable suspicion, nothing in the directions would appear to preclude an investigation, subject to the requirement that the feared security threat is one related to loss of life or significant personal injury. (Or potentially even without this requirement if there is no risk of deprivation of someones rights or freedoms, which is the more likely prospect if we are simply talking about an investigation.)

Now to be clear, CSIS could never get a search warrant using this in-bound information -- that would require a proceeding. But it will collect open source information, perhaps follow a target and flag a person in a dataset of some sort.

People will debate whether this is appropriate. Again, be careful about calling this "complicity". And be careful of overreaching and arguing that this violates Canada's legal obligations.  And note also that if the investigation culminates in some proceeding, the in-bound information cannot be used in it.  Still, the tainted in-bound information seeds an investigation. It seems to me, at the very least, there should be standards on cleaning out this data trail if the investigation turns up nothing. The directions provide that tainted in-bound information needs to be caveated and its reliability properly categorised. But more than that, if there is an authorized use, which turns into a goose chase, then it seems to me that any person flagged by that information or in the deadend investigation it sparked should be protected from forever being in some government security database. That is, there should be a scrubbing. I fear otherwise that even caveated information will prove fungible and the genesis of fruit of poisoned trees down the path.


Government Proposals for Reforming National Security Criminal and Civil Trials

In August, the government circulated a targetted consultation document propoing a series of changes to the way in which national security secrets are kept in criminal and civil proceedings. This is very inside-baseball stuff, but essentially the government is responding to long-standing concerns about "intelligence-to-evidence", the thorniest matter in Canadian national security law.

The criminal law changes would reform the Canada Evidence Act, s.38 process to, among other things, open the door to provincial superior court trial judges, allowing them to participate more fully in it. (Section 38 allows the government to block disclosure of national security secrets in legal proceedings. This preserves sensitive information from exposure, but there is a trade-off: the government cannot then use these same secrets in the legal proceeding to defend or prosecute a case.) The civil law proposals echo these Canada Evidence Act changes, but then also propose "closed material proceedings" (CMP). The latter is a novel proposal. Basically, CMP would allow secret trials in civil cases: the government could use secrets in closed proceedings on the merits of the case, in a closed hearing from which the public and the other litigants are excluded.

Kent Roach and I have prepared a brief response to these proposals, generally supporting the criminal law reforms, but also urging that the need for reform here is as much operational as legal. We also express doubts about the closed material proceedings proposal.  Our paper is posted here. The abstract for that paper is as follows:

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule -- something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.


A Once & Final Parsing of the Legal Context for the Khadr Settlement

I have a few moments this morning for a “once more unto the breach” post on the Khadr settlement.  Please read my prior one, because I will try to make a few other points in this one, given how the discussion has evolved.  (This will be my last foray, hopefully for a long time, as I need to finish writing my book for my anticipated audience of 4.)

Disclosure Statement

In the interest of disclosure, I provided minor assistance to Khadr’s US JAG defence lawyer a decade ago, and was co-counsel in the amicus brief by law professors and parliamentarians in the US Supreme Court case of Boumediene, which had a Khadr angle. I also supervised law student directed research projects on the Khadr matter.

These were small involvements. I don't raise them because of some excessive sense of importance, but because people will want to know where I come from.


I am mad as hell and so should you be

I may be mad for different reasons than you are, but here are my reasons:

1. As an excellent team of law students discussed here in detail, Khadr could have been (and, in my view, should have been) Canada’s first modern terrorism case. By summer 2002, Canada had a whole raft of new, shiny, extraterritorial terror offences. They were available, and would not (all) have required adjudicating who did what in the 2002 firefight: no need to debate grenades. Participating with Al Qaeda would have been enough, and the evidence of that would have been straightforward and required no extreme detention, maltreatment, or doubtful confession.  Nor would we have had to resort to made-up retroactive crimes, like in the US military commission process, or a patently flawed commission structure.  We could have used real courts, with real judges, adjudicating real crimes, using real evidence. 

  • Further addendum: no, the fact that Khadr was in the midst of an armed conflict would not have immunized him. Under the laws of armed conflict, he would have been an unprivileged belligerent, disentitled to what is known as “combatant’s immunity”.  Basically, he was a civilian who fought.  That can be treated as unlawful (although is not in itself a war crime), whether done in Afghanistan for AQ or in Syria for ISIS.
  • As a prosecutor, I would not have sought treason charges for one reason in particular: our treason crime is so antiquated that it hasn’t been used since the 1950s, and would be really complicated.  And I wouldn’t need it, because of the terror charges. (In recent cases, we have not used treason.  See Ribic.)

2. The youth offender issue was one our system could grapple with, and often does.  This didn’t need to be a overstated debate about a “child soldier”.  And any other extenuating or mitigating issues could have been part of sentencing.

3. It was past negligent for Canada to not only be the only Western country that left one of its nationals at Guantanamo, but then send CSIS [and DFAIT] interrogators to interrogate/inteview Khadr (softened up by the Americans through maltreatment that was probably torture, and if not torture, the equally unlawful cruel, inhuman or degrading treatment). 

4. And then to top it off: Sharing the fruits of that interrogation for use in a military commission system the United States Supreme Court itself concluded was unlawful, compounded the Canadian delinquency.  It also meant that Canada was contributorily tied to the whole Guantanamo mess, running up the meter on Canada’s moral and legal culpability.

5. And then to have the gall to claim that we had no choice, because our legal system could not have dealt with Khadr (which, if true, will be tremendously happy news to Canadians now fighting for ISIS.  Fortunately, it was never true). The other doubtful argument: the Americans would be angry at us if we asked for Khadr back.  By the end of this saga, the Americans really wanted us to take Khadr back.  There are even Hilary Clinton emails.

In sum, the Government of Canada screwed this up. Massively.  And now a criminal trial is impossible because of tainted evidence, maltreatment, double jeopardy (from the US process that may, ironically, end up overturned on appeal in DC because of all the retroactive crimes).  Nor would a trial serve any purpose: even with a conviction, hard time in Guantanamo (in pre-trial detention, no less) exceeds anything a Canadian court would hand out.


What about Khadr’s lawsuit: Shouldn’t the government have fought it?

It did. Since 2004. Here’s the Federal Court docket. It got to the point that the government’s legal tactics were costing it. For instance, in resisting Khadr’s amendment of his statement of claim, the government skated past the point of credibility. And here’s what the judge ordered in 2014:

The Plaintiff [Khadr] was successful on nearly every aspect of this motion. Only a handful of the Defendant’s [Canada’s] myriad arguments had any merit. By opposing this motion, the Defendant considerably increased the costs and delay of this complex action, which has occupied this Court for ten years now. Consequently, I exercise my discretion to award costs in favour of the Plaintiff, pursuant to Rules 400 and 401

In the end, Khadr was suing Canada for a lot of things, not just the Charter breaches everyone is talking about:

$20,000,000 in compensatory damages alleging negligence, negligent investigation, conspiracy with the United States in the arbitrary detention, torture, cruel, inhuman and degrading treatment, false imprisonment, intentional infliction of mental distress and assault and battery of the Plaintiff, failure to comply with domestic and international obligations with regard to treatment while confined, and misfeasance in public office. In the alternative, he sought an award of damages pursuant to s 24(1) of the Charter and a declaration that the Defendant violated the Plaintiff’s ss 7, 8, 9, 10, 12 and 15 Charter rights.

Would he have won? On the Charter breaches, the Supreme Court of Canada had already concluded (twice) that Canada had breached Khadr’s Charter s.7 rights through the CSIS/DFAIT interrogations and sharing of resulting information with the Americans.  The issue of what damages should be paid for that had not been decided – it was not before the Supreme Court and that was what the Federal Court lawsuit was about.  But the existence of the constitutional breach was probably governed by “issue estoppel” – it had already been decided by the Supreme Court, and so that legal question was decided (although, per its habit, the government would have likely contested this, racking up more costs).  

I don’t underestimate the complexities of the Ward case and its standard for damages in Charter cases. But basically, the Khadr case was probably mostly just a question of quantifying the damages.

On the other causes of action, well, there was a good chance for some of them -- although suing government for negligence can be tough.  And some of them would have required some really interesting (and uncomfortable evidence).  Which brings me to…


But no one really can say how litigation should unfold.  So perhaps the government should have fought it.  Why not?

Well, if I had been advising the government, I would have urged them to settle.  Here’s why.  First, don’t underestimate the cost to the taxpayer of fighting: 

1. Maybe if you do not care about sharp legal practice, you can wear the plaintiff down through stalling tactics. Let injustice be done, though the sky fall! But sooner or later, you will end up in front of a judge, probably now very irritated and happy to assess costs against you.

2. You won’t win everything in this case. You are almost certain to pay some damages, and quite possibly a lot of damages. 

3. Either way, if you fight a trial, here’s what will happen:

  • Because of what he needs to prove for the negligence and misfeasance causes of action especially, plaintiff will call the former Prime Ministers Chrétien, Martin and Harper, and all of their former foreign affairs and public safety ministers, CSIS, DFAIT and RCMP officials (former and present) and any number of other officials.
  • Former officials will have their own reputational exposure (at minimum), and will likely want independent legal advice, indemnified by the government of Canada.
  • Departments will divert resources, as they did during the commissions of inquiry of the last decade. There will be oodles of lawyers and staff time on this – do not underestimate the resources poured into this.
  • Plaintiff will be seeking confidential information, on top of what is on the public record. Some of that will raise national security interests. It will need to be fought, probably in Canada Evidence Act s.38 proceedings. Those are long and arduous and costly.  See above about staff resourcing.
  • The trial will be several weeks long, and the costs skyrocket. (There is a reason most civil cases settle).

Put another way, this will cost a bundle. And that’s not including resources expended by the court itself.  And that’s assuming in the end the government isn’t stuck with the plaintiff’s legal costs (which, as noted, was already starting to happen).

The Arar commission cost $20 million. Commissions and courts are different, but the Khadr case has been a longer process.  All costs in, I suspect a full trial in the Khadr matter would have been close to Arar number – certainly more than $10 million.  The government had already spent $5 million – and the process looks like it had not yet reached the full discovery process (let alone trial), or resolved the section 38 issues.

So I think an all-in number in the $30-40 million range, including damages, costs to the court, etc was very possible, even likely, and maybe even low-balling.

But then there are the more intangible (but perhaps even more pressing) costs:

  • Some of these section 38 proceedings would probably mean some information would come out the government does not want out for plausible security reasons (in this case, outweighed by the fair trial interest). You may not care, but the security services do, passionately.
  • Since the lawsuit (by definition) implicates the Americans, they will have an interest and perhaps reaction, especially if some of their confidential information was potentially in play. This is an unpredictable US administration.  This trial pokes a hornet’s nest.
  • The last thing the security services need is for graphic exposure concerning misdeeds of the prior decade.  It diverts resources, and diminishes morale and public confidence and makes it very difficult to do their jobs if the public believes that they are rogue operators. (Losing a misfeasance claim would be disastrous; we are getting into intentional malice territory there.)

If I were the security services, I would have wanted this case settled, badly. 

In sum: You can still wish there had been trial for a lot of different reasons. Maybe you’d like all this to have come out in open court – certainly, I would have found it interesting as a national security law academic.  Maybe it would have been good to expose the government malfeasance.  Maybe the responsible should be exposed, and heads put on spikes.  Maybe all that would serve as a cautionary tale for security services, on the (unlikely) assumption they would do a repeat in the same manner.  Maybe you don’t care about any of the reasons, but do care about the symbolism.

That is your prerogative. But none of your reasons for supporting a full civil trial in Khadr should be “because it would have been cheaper” or “because it would be a good way to support the security services”.

But was this really worth the $10.5M, and wasn't this too secretive?

I wasn't part of the process, but a couple of thoughts: First, a settlement depends on what you negotiate.  The negotiations are confidential, and so too (often) is the settlement.  (Public settlements advertise to all future plaintiffs what the going rate is, leading to a bidding war).

Why $10.5 million? Probably because the (public) Arar matter set that as the benchmark for the cost of participating, however indirectly, in maltreatment with a foreign government.  Legally, I don’t think it make a difference that Mr Arar was picked up and rendered from JFK airport, and Khadr from the battlefields of Afghanistan.  I don't see how their relative virtues would affect the lawsuit.  An “eye for an eye” is ancient Sumerian law, not Canadian.

Maybe the government should have negotiated a better deal – $10.5M is several million more than wrongful convictees have typically received.  Maybe the government should have conceded liability and gone to court on damages.  Personally, I am not sure that would have obviated all (or even many) of the problems with going to trial, noted above, since the conduct of those same officials would have been what compounded damages. 

But bottom line: the current government made a judgment call, burdened with the conduct of 3 prior governments and lingering legacy cases that continue to cast a shadow over the security services. 

Perhaps there were other more partisan political reasons for settling.  This is not my area. I leave it to others to discern the partisan political upside of this settlement for the Trudeau government.  It is not immediately apparent to me.


What about Canada paying Ms Speer and Mr Morris?

I certainly know what I hope for on this question, as a human being.

But a couple of lawyerly points:

As a principle, the Canadian government has no legal exposure for Khadr’s (alleged) conduct in the 2002 firefight. Canada is not responsible for the conduct of its private citizens overseas – if that were a principle, I imagine there would be many fewer passports issued.

Whether Khadr is himself liable for the 2002 firefight is a question that has never been adjudicated in an adversarial process in front of a real court, applying real evidence.  Basically, we have no idea what happened in 2002.  Anyone with clarion vision on this point is exhibiting motivated fact-interpretation.

As I understand it, the Utah default judgment (in which Khadr’s side did not appear) was built on the Guantanamo record.  Enforcing that judgment in Canada will be hard, although perhaps aspects of it can be teased away from the tainted Guantanamo process.

(Unfortunately, a new “clean” civil proceeding is likely precluded by expiry of limitations periods. Too bad Khadr wasn't repatriated sooner.)

If there can be enforcement, whether there are assets to be seized is a question beyond my knowledge.  (The negotiated settlement may be structured so that the money is paid out in increments, not as a lump sum. This is not my area, at all, so I defer to others on the civil procedure and civil action components of this case.)

Finally, whether the Speer and Morris proceeding itself will settle remains an open question.  It may be a good way to judge character.


Take home:

So to sum up: there are many villains and few heroes in this saga. There are degrees of victimization, and there are stages in it.  There is too much “eye for an eye”, and too little “rule of law”.  None of this had to be this way.  Justice could have been served.  Be angry at your government, but make sure you are angry at them for all the right reasons.

It is possible to believe:

  • Khadr is not a folk hero and should have been held to account and he should not have been maltreated and railroaded in a patently flawed process.
  • Khadr should have been repatriated much earlier and held to account.
  • Khadr was wronged and was in the wrong, with the degree of that error something that deserved careful, evidence-based inquiry.
  • That settling this case was smart for financial and security reasons, and that others may deserve compensation.



I want to end with a nod to Dennis Edney and Nate Whitling, Khadr’s chief lawyers on the criminal side (who will not agree with all I have said here). They represented the country’s most unpopular client for almost two decades, without any real prospect of compensation and in the face of public vitriol.  If any of us are ever targeted by governments willing to toss centuries of due process into the dumpster, we would be fortunate to be represented by two such dogged advocates.

And while I am less familiar with the civil side, I have reason to believe that similar credit is owed to John Kingman Phillips.  And there are any number others that I risk damning by not mentioning, for which I apologize. These would include many of the US JAG defense lawyers who I knew in person or by reputation, and who stand out as defending fidelity to the rule of law.