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Using Charter Damages to Provide Meaningful Redress and Promote State Accountability: A Re-examination of the Omar Khadr Case
(2020-08-11) Fisher, Katharine June; Cameron, Jamie
In July 2017, the Government of Canada reportedly paid Omar Khadr $10.5 million to settle his civil suit. Khadr sought damages under the Canadian Charter of Rights and Freedoms resulting from Canada's active participation in human rights breaches during his imprisonment at Guantanamo Bay. Although the Charter damages remedy serves critically important public law functions, it is not achieving its full potential in many cases. Using Khadr as a case study, I apply the framework developed in Vancouver (City) v Ward to analyze what Khadr's entitlement to Charter damages might have been if his civil claim had not settled. The Khadr case poses potential challenges relating to Crown prerogative, institutional competence, and causation. Despite these possible concerns, I argue that Khadr had a strong case for a large constitutional damages award based on the severity of Canada's actions and the impact of Canadian decision-making on a vulnerable youth detainee.