A Respectful Dissent From the Khadr Consensus: Ward Revisited

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is doubly true respecting violations of rights and freedoms.

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example, Prime Minister Justin Trudeau has argued that $10.5M is the invariable cost, in this case, of a Charter of Rights and Freedoms violation. Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada’s actions were “morally reprehensible”; and what’s more, a damages award at trial would have “dwarfed” the settlement figures. Prof Craig Martin simply argues that a restoration of “Canadian values” justifies the Khadr settlement. Other examples abound.

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from political premises about the importance of the Charter to Khadr’s “human rights” to wholly justify the settlement, without considering the legal justifications and difficulties associated with awarding Charter damages in this case. Indeed, much of the analysis has not engaged with Ward v Vancouver (City), in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr.  In this post, I use the Ward analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have “dwarfed” the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes–and why I dissent from the orthodoxy on this issue.

*****
I will start with the former claim.  Let’s begin with what is true. The Charter must apply for a damages award to be available. Contrary to Conservative MP Erin O’Toole, the Charter does apply extraterritorially in this case. While there is a complex set of cases on Charter application abroad (see the recent episode of The Docket for a solid analysis), the Supreme Court held in Khadr 2010 that the Charter applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of Charter application—constitutional rights exist to afford protection  to those who the majority may not consider worthy of protection.

But it is not enough for the supporters of the settlement to draw a direct line from a Charter violation to the settlement. In Ward, the Supreme Court held that a complex analysis is required after a Charter breach is found in order to determine whether damages are an “appropriate and just remedy,” as per the text of s.24(1) of the Charter. The Court outlined the functional justifications for a Charter damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate Charter rights.

It follows that whether a Charter damages remedy qua settlement is “appropriate” writ large is the wrong question. Instead, we must ask what the functional justification for the Khadr settlement is in the context of Ward. The settlement could be justified from different perspectives. This is a question of legal policy.

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a Charter violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow Charter breaches, because his loss (the violation of Charter rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see Andrews) that courts routinely award for intangible, non-pecuniary loss.   It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis: Blackwater v Plint, para 81. Much of this thinking informed the reasoning in Ward, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages.  But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances.  For example, Andrews introduced a cap for non-pecuniary loss. On the other hand, Ward holds that even if a functional justification is identified, “good governance” concerns may militate against the award of Charter damages. If one cannot conclude that damages would properly compensate Khadr’s loss, Ward provides appropriate guidance, at para 53: “Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust…” In other words, we should not throw good money after bad, even to vindicate Charter rights in an abstract sense. This does not mean  that the law should not compensate when it is difficult—private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives—especially when the law itself recognizes the limitations.

Deterrence is a more promising function in this particular case. Law and economics theory tells us that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims in one of a series of blog posts, perfection is not of this world.  Damages fail on the deterrence rationale only if a defendant is perfectly irrational. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including Charter damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent Elmardy case at the Ontario Divisional Court demonstrates how the Ward analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also Gabriella Jamieson’s recent analysis of Ward in the context of race, and the importance of deterrence).

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of “human rights” does not justify Charter damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or Charter damages.

*****
The second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister’s assertion that the litigation of Khadr’s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the Charter breaches and damages flowing from same. Much of the uncertainty respecting Charter damages applies to the relationship between common law and constitutional damages, at any rate.

First, there is a paucity of Charter damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions. Ward holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when Ward was decided, only a handful of cases have awarded Charter damages awards in the millions. Henry involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in Charter damages, designed to vindicate Henry’s rights; an additional $530 000 was awarded for pecuniary loss. In BCTF v British Columbia, a trial court awarded $2M for bad-faith legislation—a rarity in constitutional remedies. Finally, in Conseil scolaire francophone de la Colombie-Brittanique v British Columbia, the BC Supreme Court awarded $6M in Charter damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly—making it difficult to draw any legal conclusions or precedential value for the Khadr case.

Moreover, few Charter damages awards since Ward have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In Ogiamien, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which “outraged standards of decency.” In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the Charter. If that amount of money satisfied the judge’s “outrage” in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise—compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the “seriousness of the breach.” Michael Spratt argues that the breach was quite serious, given Khadr’s youth and circumstances. But Professor Macklin characterizes Khadr 2010, which found the breaches, as a “narrow” ruling, simply based on questioning and interrogation—no cruel and unusual punishment as in Ogiamien, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any “dwarfing”–and to support the opposite conclusion.

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have “dwarfed” the settlement figure. There are simply too many variables to make that conclusion—there is at least some reasonable doubt.

*****

At the end of the day, while the Charter protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr’s rights. That may be a sound political argument. But the law requires more. It would be appropriate to see observers engage with the legal justifications for Charter damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of Charter damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.

 

 

Author: Mark Mancini

I am a recent graduate of the University of New Brunswick Faculty of Law, and an incoming Federal Court law clerk with academic interests in constitutional remedies, administrative law, and federalism. Any views expressed on Double Aspect are mine, and mine alone.

3 thoughts on “A Respectful Dissent From the Khadr Consensus: Ward Revisited”

  1. Fantastic comment – at last someone is analyzing this in accordance with the law of damages. It has been amazing to see the Charterphiles rather superficially approve of the amount of the settlement based only on their evaluation of the importance of the Charter rights involved, not the law of damages. So many are approaching this as an opportunity to express their personal feelings about the importance of the Charter rather than the actual law. The law is first year law school stuff!

    One other thing to consider…. what about the issue of causation? To what extent is Khadr’s conduct the primary cause of him ending up in Guantanamo and staying there? To what extent is the United States responsible for all or part of the damage?

    Finally, the government says it settled because if it continued it would have spent 40 million. So many blindly accept this. Don’t any of the supposedly expert commentators online know anything about legal costs? If one assumes (way way generously) that five (!) DOJ lawyers each working 1000 hours a year over the next four years at approx $400 an hour, you get to only $1.6 million in total legal costs!

    It is really hard to understand why so many law professors and others in the elite chattering classes have formed a choir in favour of this settlement, one of the highest in history, closing their eyes to the law! Bravo Mr. Mancini.

    1. DOJ lawyer costs, the cost of tying up the court itself, the cost of risking a higher settlement in the ruling and thus building bar to reach next time, at taxpayers’ expense.

      Given that this mirrors the Arar settlement, which shares similar breaches but over a much shorter period, it’s not unreasonable to figure a much larger cost to fighting it.

      Nevermind that he still has to fight off the CPC folks who kept him there, as they insist that he’s a terrorist despite him never actually carrying out terrorist acts.

      Read the papers and look at the public outrage, and the language they use. In the minds of Canadians he’s a terrorist and a murderer. That’s the government’s role in this and it can be quantified.

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