The rule of law

Omar Khadr: The majority isn’t always right

So what if 71 per cent of Canadians don’t support the Khadr settlement?
Photo: Joshua Sherurcij

Ever since the federal government announced that it had reached a $10.5 million settlement in the Omar Khadr case the anger and outrage of many Canadians has been palpable.

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According to those who oppose it, the government’s decision to settle out of court was wrong and hasty. The image of our Prime Minister “handing out” a significant “payout” to a “terrorist” circulated in a few editorial cartoons and was evoked by more than a few politicians and pundits.

The truth is far from those damaging optics. The Canadian government didn’t willingly “hand out” anything. Omar Khadr, who as a child had been left to rot in a jail cell in Guantanamo, subjected to torture and the whims of a U.S. kangaroo court, deserved better. Regardless of his guilt or innocence (this National Observer op-ed by former prosecutor Sandy Garossino lays out how flimsy the military evidence and the prosecution case against Khadr actually was), regardless of people’s personal feelings or discomfort with the decision, he was a Canadian citizen who was owed protection and extradition back home.

The results of an Angus Reid poll released this past Monday, showing that 71 per cent of Canadians feel the federal government made the wrong decision in settling the lawsuit and compensating him financially, have been somehow touted as irrefutable proof that this majority opinion is right.

It isn’t.

The Canadian government didn't “hand over” $10 million to Khadr. It was sued and it lost. Repeatedly. Canada had a moral and legal obligation to defend the human rights of a Canadian (a child soldier and a minor, might I remind you) and it repeatedly failed. This boy was abandoned in a prison for a decade with very little evidence of his guilt and a confession obtained by torture, yet our government did nothing. On the contrary, it was complicit in the repeated violation of his human rights.

In 2004, Khadr sued the federal government for $20 million for wrongful imprisonment and in 2010 the Supreme Court of Canada unanimously ruled that our government had acted unconstitutionally by allowing the most basic Canadian standards about the treatment of detained youth suspects to be violated. The Supreme Court would rule in his favour a total of three times. Even the International Criminal Court in the Hague, recognizing the limited culpability of children as combatants, concluded that the U.S. (and Canada by doing nothing to protect Khadr) had violated international law and the Geneva Conventions.

In short, the writing was on the wall and it had become obvious that Khadr was going to win, and would likely get the $20 million he had sued for. Settling out of court for $10 million was the right thing to do. Delaying this case further would continue to drag it out at taxpayer’s expense, and at great risk. As it stands, a significant amount of the money awarded to Khadr will go to his lawyers.

Despite the facts being crystal clear as to why he was awarded compensation, the Angus Reid results have reignited a debate about whether a majority of Canadians somehow know better than the Supreme Court justices, whose ruling the government relied on for their decision.

This appeal to the majority is a fallacious argument. It implies that just because something enjoys popular support it must be legally or morally correct precisely because it enjoys popular support. An argumentum ad populum falsely gives ammunition to populism and to people who have decided to focus on and respond to bad optics, politically motivated arguments, or the simple notion that someone’s feelings about a decision should override facts and the laws of the land.

If nothing else, history has taught us that the correct conclusion cannot always be arrived at by popular sentiment, which can often be manipulated by propaganda, populist opinion, and/or intimidation. In fact, the opposite has often proven to be quite true. If not for court rulings, women and black citizens would have never been allowed to vote when they were granted the franchise. Do you know what else a majority of Canadians currently support? The death penalty, a values test for immigrants, and all three major pipelines currently being debated. Do you still think the majority of Canadians are right?

The Khadr case was a complex one that made headlines in this country for over a decade. In many instances, however, Canadians haven’t read past the headlines. Supreme Court rulings aren’t the stuff of light reading and attention spans are short these days. Throw in emotionally charged words like “terrorism,” “radicalization,” and “military vets,” stir in populism and a prisoner with an Arabic name who was recruited by Al Qaeda and you’ve got a story where the optics don’t work for many people and public sympathy is hard to come by.

But Supreme Court judges don’t rule on optics or their personal feelings about a case. They rule on the letter of the law. And the law is very clear. Children are protected by international law in situations of armed conflict. To date, no international tribunal has prosecuted an individual for warlike acts committed when that individual was still a minor. All Canadians are protected by the Charter of Rights and Freedoms. No exceptions. It’s either all Canadians or none. Keeping these two things in mind it’s easy to understand why the decision by the SCC was unanimous. There isn’t anything to dispute. Given their past rulings, the Trudeau government had no choice but to apologize and compensate him.

A majority of Canadians not agreeing with the ruling offers no proof of moral superiority or legal legitimacy. Not all opinions are created equal, particularly in such a complex legal case. What a layperson feels shouldn’t offer proof of anything. Seventy-one per cent of Canadians might disagree with compensating Khadr, but let’s remember that 100 per cent of Supreme Court justices ruled in his favour. That needs to count for something, otherwise what’s the point of deferring to an expert on any subject matter; particularly one so convoluted and complex and easily manipulated for political advantage?

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