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The latest development in the saga of Omar Khadr has provoked a renewed national outrage that has a number of dark undertones ones which strike at the heart of our very notions of civilization.  That the rule of law is under attack by those who vehemently oppose Khadr and any form of recognition that his rights were violated should disturb absolutely everybody.

Without looking to re-litigate the issue, there are some relevant facts to the case that Khadr was subject to degrading and inhumane conditions that violated his Charter rights of liberty and security of the person as well as the principles of fundamental justice; that Canadian agents who questioned him in Guantanamo Bay were aware that he had been subject to these conditions, and by interrogating him under those conditions and turning over their results to the Americans, violated his Charter rights as well as Canada's international obligations; and that the Supreme Court of Canada found in both 2008 and 2010 that Khadr's rights had been violated but didn't offer a particular remedy because it would have put the Court in an impossible position of intruding on the Crown prerogative of foreign affairs.

Also relevant were the facts that these breaches occurred under the Chrétien and Martin governments, and that the Harper government refused to provide a remedy to the situation by repatriating Khadr, when other allied Western governments had repatriated their own nationals and when the American government was looking for Canada to do so; in fact, the Harper government fought tooth and nail to keep Khadr in Guantanamo Bay, where his rights continued to be violated, and even upon his eventual repatriation in 2012, they continued to petulantly drag their feet, as they continued to do with his appeals and civil suit with regard to remedying his Charter breaches.

The method by which his settlement was reached has given over to some of the particular performative outrage that we're seeing, but again, most of this has to do with the way that our legal system operates.  When the current government decided that enough was enough, that $5 million had already been spent litigating a losing cause, and that continuing to fight this all the way to the Supreme Court on a third try would most likely have cost the government millions more in legal fees plus a damage award that likely would have been the $20 million that Khadr was asking for in addition to his legal costs, that it was time to cut their losses.  Timing and manner of these kinds of settlements is a process that usually relies on non-disclosure, and when the settlement is reached, it is likely to have been done in such a way that for the $10.5 million awarded (an amount in line with previous settlements), 20 to 30 percent will probably go to Khadr's lawyers, and he is likely to get a small lump sum with the rest going into a structured settlement that pays out over his lifetime.  Structured settlements cannot be touched by other court decisions, and in Khadr's case, is likely a means of ensuring that he'll be able to support himself for the rest of his life, given that he's aware he may never be able to hold a job as blowback would hurt future employers.  It's not like he'll be in a position to blow this cash on flashy cars or a palatial mansion.

But those who insist that this was done "in secret" and that this is somehow a matter of principle, that the government should have fought for a lower award (preferably that Khadr gets nothing), are ignoring the most fundamental point that successive governments violated Khadr's Charter rights, and that he is entitled to a remedy for that violation.  That the Supreme Court didn't demand a dollar amount in 2010 misses the point of that judgment it was a pointed reminder that the government had an obligation to remedy but the circumstances of his being in Guantanamo Bay meant the Court simply couldn't order his repatriation at the time.

That successive governments have been willing to violate Charter rights should concern everybody, because we should be adhering to the rule of law.  That means that people are innocent until proven guilty (and Khadr's confession was obtained under duress and his finding of guilt was not in a court of law but a tribunal that was found to violate American law), that they have the right to counsel, to a fair trial, and that they aren't subject to cruel and unusual punishment.  And it's not like they can point to any particular justification for this treatment he didn't give up valuable intelligence, and any crime he is alleged to have committed (and there is a great deal of dispute that he could have even thrown the grenade he is alleged to have) doesn't justify torture.  We don't subject suspected terrorists or murders to such treatment because we're the good guys.

With the settlement now in place, the fact that certain political actors are trying to stoke populist outrage is especially troubling because the underlying message is that the rule of law only applies to people we like.  When the mob demands that someone's rights be taken away, we're not supposed to adhere to those demands because we are a rules-based society.  We have laws and a Charter of Rights and Freedoms for a reason.  And if we let the mob dictate that we strip away the rights of accused terrorists, or even the criminally accused and make no mistake, there has been an undermining of those rights in recent years with the rhetoric that victims' rights should overrule those of the accused then who is next?

Will these political actors stoking these populist fires start talking about stripping away the rights of minorities when the mobs demand it?  Is our respect for the rule of law so tenuous that we are willing to suspend it for partisan benefit, so that these political actors can virtue-signal as though there were no broader, long-lasting consequences for those calls?  This isn't about what Khadr may or may not have done it's about making it okay for people to demand that someone's rights be violated for no good reason.  And with any case like this, a willingness to violate Charter rights makes us all less safe in the long run.

Photo Credit: Huffington Post

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