What’s a Canadian soldier’s life worth?

It should not be the end of the matter that Canada’s juvenile terrorist Omar Khadr got a C$10.5 million payout for temporary sleep deprivation at Guantanamo, and no lasting disability. For background, Khadr was born in Toronto and therefore his Canadian citizenship is not in question. His father and mother were immigrants from Egypt and Palestine respectively. During Khadr’s formative years, the family shuttled between Canada and Pakistan. His father became a close associate of Osama bin Laden and he was killed in a raid by a Pakistani helicopter team in 2003. Under the influence of his parents, and perhaps implied compulsion, Khadr joined the anti-government guerrillas in Afghanistan. He became involved in an engagement with American forces during which he is said to have thrown a grenade that killed combat medic Christopher Speer, and blinded another soldier, Layne Morris, in one eye.

As this incident wound down, the Americans rescued the severely wounded Khadr and he ended up in Guantanamo. There, he is said to have been tortured by sleep deprivation prior to being interrogated by Canadian security personnel who gave the Americans their findings. In 2010, the Supreme Court of Canada ruled that there was a sufficient connection between the Canadian government’s participation in what it called the illegal process and the deprivation of Khadr’s liberty and security of the person.  Here then are the issues, each with the potential for evaluation of mitigating or exacerbating factors:

1. Was Khadr an enemy combatant—that is, fighting against his own country or their allies?
2. What is the significance of his age, fifteen, at the time of the incident?
3. Did he actually throw the grenade? If not, so what?
4. What actual damage deserving of compensation did Khadr sustain at the hands of the Americans, the Canadians or as the author of his own misfortune?

On the first issue, it’s unrebuttable that Khadr had taken up arms against Canada and Canadian interests. As such it’s, therefore, unrebuttable that he violated the Treason Act of 1399, still on the statute books. It’s high treason to adhere to the King's enemies in his Realm, giving them aid and comfort in his Realm or elsewhere. The Act applies whether the involvement is at home or abroad. The last conviction under this Act occurred in England in 1945, of William Joyce, nicknamed Lord Haw-Haw. He didn’t kill anyone and despite questions about his British citizenship, he was sentenced to death for broadcasting propaganda from Germany during World War II. Under this Act, Khadr was open to prosecution, not compensation.

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In any case, Canada was clearly in a position to defend Khadr’s claim for damages on the basis of the clean hands doctrine in law. On that principle, a dirty dog has no rights in court. On the second issue, much has been made of the fact that at age fifteen he was a child soldier, with sixteen the assumed age for consent. But the law also provides for young people to be tried as an adult for serious crimes. The difference in this case between the age of fifteen and sixteen is semantic. Having said that, some mitigation, if not exoneration, may be appropriate for his having succumbed to his father’s presumed coercion. On the third issue, as to whether Khadr actually threw the grenade, this’s essentially a non-issue. Regardless of whether he was the thrower, he was an accessory. As the Supreme Court of Canada ruled, in R. v. Briscoe, wilful blindness to a likely outcome is no defence for a participant in murder. The fourth key issue is how much money, if any, would be appropriate compensation. The only remedy that Khadr sought before the Supreme Court in 2010 was to have the Canadian government ask that he complete his sentence by the Americans in Canada. This the government did, at substantial cost to taxpayers. On his return, he underwent substantial surgery, at further taxpayers’ expense, to remedy the injury sustained in Afghanistan.

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It seems that Khadr was indeed deprived of sleep sufficiently for that operation to be defined as torture. Offsetting that is the fact that the Americans saved his life on the battlefield. There’s is no evidence that he was physically disabled at Guantanamo by sleep deprivation or otherwise... In 2010 the Supreme Court of Canada went on to say, correctly of course, that the U.S. was the primary source of Khadr’s deprivation. A primary source clearly means mostly, and that falls within the range between, say, 75 and 95 percent. The Supreme Court did not address the issues of Khadr’s own contributory liability. In any case, per the Supreme Court, Canada’s liability, if any, falls between 5 and a maximum of 25 percent. Assuming any legal liability at all for compensation, my sense is that allocations might be 80 percent for the U.S; 15 percent for Khadr himself; and at most 5 percent for Canada. But I would also cap total liability at C$100,000, again if any at all.

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But working backwards from Canada’s payment of C$10.5 million and, say, a 10 percentile allocation for liability, that would value the damage supposedly sustained by Khadr above a hundred million Canadian dollars. Now let it be said again that Khadr sustained no long-term physical disability and, on the evidence, his mental state is undiminished. What in blazes then is one of our own soldiers entitled to for a lasting mental or physical disability sustained in combat? Or even a life? Count me among the outraged. I believe Prime Minster Trudeau personally initiated the decision to buy off Khadr as a ploy to curry favour with Canada’s exponentially expanding Muslim population. That would be in character with much manifest idiocy, such as his admiration expressed for China and his praise for Fidel Castro.