Complicity in torture?

By Justin Ling November 18, 201418 November 2014

How Omar Khadr is trying to prove that the Canadian Government conspired with the U.S. to deny him his rights.

Complicity in torture?

Video stills of Omar Khadr interrogated at Guantánamo Bay in 2003.

Omar Khadr’s legal team has succeeded in opening a new front in their lawsuit against the Canadian Government, seeking $20 million in damages from Ottawa over his decade-long detention — an ongoing effort to deprive him of his Charter rights, done in concert with the American Government. It’s a conspiracy, Khadr alleges. Last month a Federal Court judge ruled that he should be allowed to proceed with the claim.

The 28-year-old, who spent nearly a decade held as an enemy combatant in the American prison in Cuba, has been pursuing a lawsuit against the Canadian Government while being held in various prison facilities in Alberta.

Khadr’s legal team has been trying to get their original statement of claim amended since 2013, but had their first application rejected, before — according to Federal Court Judge Richard Mosley — facing delays at the hands of the Attorney General.

“While he has pleaded negligent investigation, misfeasance in public office and various Charter breaches,” notes Mosley in his decision, “his conspiracy claim alleges that Canada formed an agreement with the United States government to commit the following torts against him: false imprisonment, intentional infliction of emotional distress, assault and battery.”

Khadr has not yet proven the merits of the alleged torture he says he suffered in that prison, yet a pair of Supreme Court of Canada decisions — one, stating that Ottawa erred in trying to withhold information from Khadr’s interrogations; and a second, ruling that Canadian officials violated Khadr’s s.7 rights when interrogating him — suggest that the courts are receptive to Khadr’s case.

Mosley himself has spent nearly a decade on this file, having originally ruled in 2007 that Canada violated international law by refusing to disclose information that could assist Khadr in his defense.

The current lawsuit is relying on these past decisions to prove damages suffered by Khadr as a result of the actions of Canadian officials.

To do so, however, Khadr’s team must prove that the Government of Canada — not just the Americans — denied Khadr his rights.

The amendment to the original lawsuit contends that “Canada owed Omar a duty of care which it breached” — by sending interrogators to Guantanamo, to furnish the Americans with evidence despite his supposedly illegal detention, and by not liberating or rehabilitating Khadr once he was returned to Canada — “resulting in damages to Omar.”

The damages include a loss of sleep, impact on his self-esteem, physical harm, a decline in his health, and a loss of income.

Canada is liable for those damages, the claim states, because “Canada chose to leave its own citizen imprisoned,” adding: “Canada facilitated the gathering of information from Omar, knowing that he was a child without the aid or protection of an adult, legal counsel or a fair and balanced legal process. Moreover, Canada knew that Omar was being subjected to harsh and degrading treatment, physical and psychological torture, and that his rights as a child, a child soldier and prisoner were being violated. Canada did not seek to remedy Omar's plight. It sought to take advantage of it.”

To try and head off this expansion of Khadr’s original suit, the Attorney General contended that the U.S. was protected by the State Immunity Act, and therefore the conspiracy charge couldn’t be added.

The Act forbids criminal or civil proceedings from taking place in Canada over an act that occurred abroad if the offending act falls under the guise of the state’s prerogative, except for acts of terrorism. Indeed, the Attorney General’s case here seems bolstered by the Supreme Court’s recent decision in R. v. Kazemi, where it found that “Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad,” ruling that the son of an Iranian-Canadian journalist who was tortured and killed by Iranian authorities did not have the ability to sue Tehran.

Yet, there’s a fundamental distinction in this case – one that Mosley underscored in this month’s decision – Khadr isn’t suing the American Government. While he may be “indirectly impleading the United States government,” as Mosley phrased it, he is not actually naming Washington in the suit. While Mosley left the door open for arguments on that matter at the eventual trial, he did conclude that “the Plaintiff’s claim of conspiracy does not fall within the traditional ambit of the doctrine of sovereign immunity.”

Nate Whitling, who had served on Khadr’s team until his removal in 2011 and is now counsel at Beresh Aloneissi O’Neill, says the Attorney General’s arguments on the State Immunity Act have no merit.

“Canada's argument on that point is obviously wrong,” says Whitling. “He's not seeking anything against the United States.”

Whitling points out that the Act would only apply if American were actually named in the lawsuit. Forbidding Khadr’s team from naming other members of the conspiracy would obviously frustrate the claim itself.

“In order to plead conspiracy, you have to plead that there are multiple parties to the conspiracy,” he says. “There's nothing that says that you have to sue every member of a conspiracy.”

Endorsing that line of thinking, Mosley found: “There is no indication that such a judgment might impose any liability on the United States.”

With the claim of conspiracy, Whitling says, Khadr has opened a new door to either receive, or increase, the damages he could receive.

Whitling points out that there could be a scenario where a court finds that Ottawa isn’t liable for the treatment that Khadr endured in Guantanamo, but that it is liable for Khadr’s damages that occurred once he returned to Canada — or vice versa. Ottawa could also be held responsible for working in conjunction with Washington to hold Khadr without a proper trial (he came before a military tribunal) but not for his subsequent detention. The complex network of possibilities highlights the usefulness of adding conspiracy as a tort to Khadr’s Charter-based claim.

To that end, adding the conspiracy charge covers his bases.

Mosley also awarded legal costs to Khadr’s pro-bono team, admonishing the Attorney General, writing “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.”

Justin Ling is a regular contributor based in Ottawa.

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