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Old 07-26-2017, 12:37 PM   #961
Fighting Banana Slug
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I generally try to keep my snide comments proportional to the level of obtuseness I'm dealing with. Not sure I was snide enough.

The xyz has been explained in this thread many times.

Has any reporter asked the question? If not, why not? Perhaps because it's an irrelevant question with an obvious answer...
I think you are being a little over the top with the snide on this one. The questions Zulu has seem to be authentic in my mind. Notwithstanding that I agree with you that criminal charges would have been unlikely, asking these doesn't seem obtuse to me.

On a slightly different tact, I still wonder about settling the civil suit. Not because of the liability issue, but rather the quantum of damages. Are we sure it would be closer to $20MM? Is there any precedent for such a unique situation? Would there be some value in going to court, to provide some precedent and argue the merits in an open way? I think those are totally legit questions, even if it does cost money. Prosecutors shouldn't be judged on their winning percentages. They are officers of the court and should be interested in finding the truth. I would submit if the civil case went to trial, there would be much less teeth gnashing regarding the $10.5MM or whatever the award would be, as it would have actually been decided in open court.
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Old 07-26-2017, 12:42 PM   #962
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I dunno,

I don't really have any issue with a chief prosecutor coming out and saying "we have reviewed the purported evidence against Mr. Khadr with regard to various charges, including but not limited to treason, however given the high standards the courts place on evidential burden among other factors, there is not a reasonable likelihood of conviction."

* * * * *

Also keep in mind that the paper from the University of Ottawa was an overview of what happened to Omar Khadr while discussing whether it would be possible to charge him under Canadian law if the allegations were true:

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This section of the brief considers whether and how Omar Khadr might be tried in Canadian criminal proceedings for his alleged actions in Afghanistan, 2002. For the purposes of this analysis, the brief assumes that the allegations made by the United States against Omar are true (a supposition that may ultimately prove unwarranted).
It's not arguing that he SHOULD be tried, nor does it talk about the likelihood of conviction. It's a thought process with regard to whether the Canadian government could charge one of its citizens for an act of terrorism abroad.
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Old 07-26-2017, 12:46 PM   #963
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Originally Posted by Fighting Banana Slug View Post
I think you are being a little over the top with the snide on this one. The questions Zulu has seem to be authentic in my mind. Notwithstanding that I agree with you that criminal charges would have been unlikely, asking these doesn't seem obtuse to me.

On a slightly different tact, I still wonder about settling the civil suit. Not because of the liability issue, but rather the quantum of damages. Are we sure it would be closer to $20MM? Is there any precedent for such a unique situation? Would there be some value in going to court, to provide some precedent and argue the merits in an open way? I think those are totally legit questions, even if it does cost money. Prosecutors shouldn't be judged on their winning percentages. They are officers of the court and should be interested in finding the truth. I would submit if the civil case went to trial, there would be much less teeth gnashing regarding the $10.5MM or whatever the award would be, as it would have actually been decided in open court.
I wonder if the amount of $10.5 million is related to the same thing Harper settled for with Maher Arar?
https://en.wikipedia.org/wiki/Maher_...and_settlement
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Old 07-26-2017, 02:02 PM   #964
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I wonder if the amount of $10.5 million is related to the same thing Harper settled for with Maher Arar?
https://en.wikipedia.org/wiki/Maher_...and_settlement
In fairness Arar was returning from vacation when held in the States. As I recall there wasn't any arguement about his innocence/guilt. Nor did his family have ties to an #######.

I think to compare the two disrespects and diminishes what happened to Arar.

If memory serves he really is wrong place wrong time.
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Old 07-26-2017, 02:04 PM   #965
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Right, but the government failed both of them in a similar way, so a similar settlement amount would make sense. It's not based on why they were imprisoned, but how the government failed them as citizens.
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Old 07-26-2017, 02:06 PM   #966
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Right, but the government failed both of them in a similar way, so a similar settlement amount would make sense. It's not based on why they were imprisoned, but how the government failed them as citizens.
Fair comment.

To me it is important that people understand that Arar was completely innocent of anything. There was no "grey" space, unlike Khadr.
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Old 07-26-2017, 02:15 PM   #967
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Fair comment.

To me it is important that people understand that Arar was completely innocent of anything. There was no "grey" space, unlike Khadr.
Absolutely. I think people have a lot of trouble separating the Kadhr settlement from his terrorist associations. The settlement should be taken in isolation, becuase that is what it is. There is no grey area around his rights being violated, and the Supreme Court has ruled on that.
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Old 07-26-2017, 02:33 PM   #968
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Absolutely. I think people have a lot of trouble separating the Kadhr settlement from his terrorist associations. The settlement should be taken in isolation, becuase that is what it is. There is no grey area around his rights being violated, and the Supreme Court has ruled on that.
Agreed on all counts. Still doesn't preclude the idea that there is value in litigating the award to Kadh or questioning the award settlement value.
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Old 07-27-2017, 05:17 PM   #969
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Perhaps people are not aware, but Khadr offered to be charged and plead guilty to domestic criminal offences together with waiving any right to sue the governments of the US or Canada but was rejected out of hand by the Guantanmo military commission.

https://beta.theglobeandmail.com/new...beandmail.com&

That bit of info might influence how some people look at that element of the debate.

Also, on the topic of how the settlement was handled, I thought back to a case I argued several years ago that I said the Crown should be obligated to explain why they were conceding parts of my argument in a public-law Charter case and I relied on this decision from back in 1997 from the Federal Court:

https://www.canlii.org/en/ca/fct/doc...ocompletePos=1

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Bluntly speaking since it is the Minister's role, and the Attorney General's role, to uphold and enforce the public law, the Court, and by extension the public, need to know, and to fix the Minister publicly with, cogent reasons for "throwing in the towel". The Court and the public need to be assured that it is not a case of favouritism, or that the would-be immigrant or refugee is not a genocidal monster or other sort of criminal, and therefore that the Court has not gone along with the Minister's consent "no questions asked". This Court asks questions, and will not subscribe to the risk of being, by silence in public law, complicit in an unlawful or remotely possibly corrupt deal. No one can assert that it cannot happen here.

So, would it kill the Minister and Crown counsel to give a cogent reason for consent, assuming that consent is accorded for a good, lawful, cogent reason? Then the Minister and the government would be publicly fixed with it, as is proper in public law for the upholder and enforcer of the public law; and the Court would not have to ask many or any questions, and certainly not have spur the Minister to fulfil his or her public office.

That is why the Court will not accept a dry, taciturn and groundless consent to the government's apparent lying down on its job. Justice must not only be done, but must be manifestly seen to be done.
This appears to be close to on point with what a lot of people are saying about not having been given sufficient information to understand why the government chose not to fight to trial (even if just over the amount of damages).

To be clear, the requirement to explain a consent to have a court make an order involves the court process and therefore is not the same as an out of court settlement. But if the above principle had been followed, it might have made things a lot easier for everyone to understand / accept even if they still disagree with the government decision.
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