'Competing Canadian values': Awarding Khadr's settlement to U.S. widow a challenge for Ont. court

The familyof a slain U.S. soldier whowon a $134 million lawsuit against OmarKhadrin a Utah court could face some significant legal hurdles in collecting any money recently awarded to the former Guantanamo Bay inmate.

With such a complexcase, legal analysts say it's too difficult to predict whether that lawsuit will be upheld in a Canadian court.

"There are a lot of question marks about whether they will ultimately be successful in the claim of the foreign judgement," said Stephen Pitel, alaw professor atWestern University in London, Ont.

Last week, the Canadian government announced it has apologized to Khadr and awarded him a settlement as part ofthe civil suithis lawyerslaunched against Ottawa for wrongful imprisonment. The government said details of the settlement are confidential, but sources told CBC News the amount totalled$10.5 million.

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The deal hasdrawnsharpcriticismamong those who believeKhadris a terrorist and does not deserve compensation.

The Canadian-bornKhadrwas 15 when he was captured by U.S. troops following afirefightat a suspectedal-Qaedacompound in Afghanistan that resulted in the death of a U.S. special forces medic, Sgt. 1st Class ChristopherSpeer,and the injury of Sgt.LayneMorris, who lost an eye.

Khadrpleaded guilty to five war-crime charges, including murder, and received an eight-year sentence from a U.S. military commission. He was released in May 2015 pending an appeal of his conviction, arguinghis initial confessions to military and FBI investigators were made under duress.

'Considerable debate'

Speer's widow,Tabitha, and Morris launched a wrongful death and injury lawsuit against Khadrin Utah in 2014.A U.S. judge awarded them $134million US in damages in 2015.

In early June, lawyers forSpeer and Morris filed an application in Ontario Superior Court to recognizeand enforce the Utah judgment. This Thursday, the court will hear a request by the legal team to freeze Khadr'ssettlement money, pending the outcome of the application.

A letter sentto Khadr'slegal team by Donald Winder, theUtah-based lawyerof Speer and Morris, says they "desire to talk about an equitable settlement of the judgment" against Khadr.

When it comes to enforcing judgments from foreign jurisdictions, Canadahas a "relatively liberal test," said Pitel.

"But it's still a test, and I think [in this case]there would be considerable debate," he said.

Part of that test is determining whether theUtah courthad proper jurisdiction to render such a ruling.

For example, the Ontario Superior Court will look at whether thedefendant (Khadr) was in thejurisdiction whenthe litigation got started, and how closely tied arethe alleged actions and the place where the dispute washeard.

"What's the connectionbetweenKhadrand Utah? Arguably none," saidPitel. "Difficult to say this disputehasgood factualconnections to Utah."

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However, Matt Latella, a Toronto-based litigator who specializes in cross-border proceedings, said that since the Utah court made a proper finding of jurisdiction,theCanadian court would be reluctant to take issue with that finding.

Latellasaid the Ontario Superior Courtwill likely want to wait for the outcome ofKhadr'sappeal of his war crime convictions before making adecisionon the enforcement of the Utah court settlement ruling.

If his appeal is unsuccessful, the money judgment will still hang over him, and he will have "a bit of anuphill battle,"as Utah is a jurisdictionwherelegal processes are not radically different fromCanada, Latella said.

'Public policy' defence

Khadr'sbest hope to defend against enforcement of the Utah ruling may be touse the "public policy" defence simply that the ruling in Utah was based on evidence "offensive to Canadian notionsof fairnessand justice," Latella said.

One of his key arguments is likely to bethe Supreme Court of Canada's ruling that Khadr's charter rights were violated while he was detained in Guantanamo Bay. His lawyers could alsoargue the Utah court relied primarily on Khadr's confession, which was made under torture.

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However, in afactumfiledin advance of Thursday's hearing on thefreezing ofKhadr'ssettlement, lawyers for Speerand Morris argued that the Utah judgment "does not offend public policy."

TheyciteCanada's federal Justice for Victims of Terrorism Act, which "allows victims of terrorism to sue perpetrators of terrorism and their supporters."

Latella saidit's a difficult case on the facts, and it will likely make some new law when it winds itswaythroughthe Canadian courts.

"Itrepresentsa fascinating clash betweentwo competing Canadianvalues," he said.

"Asgood internationalists, we have adopted a policy of enforcing other courts' judgments, generallyspeaking. This may well prove to be one of those cases wherethe exception proves the rule, because the facts are so extreme."

If ever there was a case that demonstrated a divergenceinCanadian and U.S. notion of "publicpolicy," it may be this one,Latella said.

"We have the highestcourt inCanada taking a fairly strong view about both detentionat Guantanamo Baygenerally and Mr. Khadr'srights in particular and how they were affected," Latella said. "On the other hand, inthe U.S. jurisdiction, theyhave become more comfortablewith what has happened there."