A lawyer for the widow of the U.S. soldier allegedly killed by Omar Khadr is arguing that the former child soldier's controversial $10.5-million settlement from Ottawa should be frozen, so it will not disappear or be given to his "extremist" family.
Written arguments were filed on Monday with the Ontario Superior Court by lawyer David Winer on behalf of his client Tabitha Speer, the widow of Sergeant Christopher Speer. Sgt. Speer was killed by a grenade in the 2002 firefight in Afghanistan that ended with Mr. Khadr's capture, at the age of 15. Also among the plaintiffs is Layne Morris, a U.S. soldier partly blinded in that battle.
In 2015, Ms. Speer and Mr. Morris won a $134-million (U.S.) default judgment in a U.S. federal court in Utah against Mr. Khadr for his alleged actions in Afghanistan. They want their judgment recognized in Ontario, so they can collect at least some of that cash from Mr. Khadr. The former Guantanamo Bay prisoner confessed to throwing the grenade as part of a plea deal, but has since recanted.
In their court filing Monday, Ms. Speer and Mr. Morris are asking for an interim court order freezing the settlement funds "whether in the hands of [Mr. Khadr] or anyone else," and an order requiring a full accounting of the money, including "the current location of all such funds, or property acquired thereby." They also call for the appointment of a receiver to hold the cash, pending the outcome of their case. Their lawyers will make that argument in court on Thursday.
On Monday evening, lawyers for Ms. Speer and Mr. Morris released a letter in which they offer to engage in settlement talks with Mr. Khadr's legal team. They said it was sent July 7, and that a deadline for a response by the end of business on Monday had passed without a word.
The letter, signed by the plaintiffs' Salt Lake City lawyer, Donald Winder, says they respect that the government has agreed to apologize and settle Mr. Khadr's claims.
"We ask Mr. Khadr do the right thing and accept responsibility for his actions and the pain he caused the Speer family and Layne Morris," the letter reads. "We desire to talk about an equitable settlement of the judgment against Mr. Khadr."
In justifying their calls for these orders, they warn of a "real risk" that Mr. Khadr "will dissipate the funds" or handle them in a way that it makes it impossible for them to get their hands on them.
They also cite media reports that say the July 5 payment was "specifically expedited in light of this motion to ensure that the funds reached Khadr before they could be executed upon."
And they say that some in Mr. Khadr's family "have previously expressed support for al-Qaeda or violent extremism," and that Mr. Khadr, in an interview last week with the CBC, "did not deny his past conduct" and said he remains "close with his family."
"One may reasonably infer that Khadr may provide some of the Settlement Funds to his family members, who appear to be unrepentant supporters of violent extremists," the court filing reads.
Nathan Whitling, a lawyer for Mr. Khadr, declined to respond in detail to the allegations in the court filing, saying he would be responding with submissions of his own before Thursday's hearing.
He did say that an allegation in the court filing that Mr. Khadr's settlement funds had been legally "sheltered" to keep them from Ms. Speer – an allegation that appeared to be based on a Globe and Mail report – was "false." But he would not elaborate or say where the funds were being held.
After securing their Utah judgment in 2015, the plaintiffs have always maintained they would seek to enforce it in Canada. But until recently, Mr. Khadr had few assets. Just before a legal time limit expired, on June 8, they did file a 10-page application with the Ontario Superior Court asking for an order that would have blocked any payment to Mr. Khadr by Ottawa. But no court date was set, and no order secured.
In their arguments filed on Monday, the plaintiffs say Sgt. Speer was a medic who was trying to help the injured Mr. Khadr. Sgt. Speer was airlifted to an army hospital in Germany after the grenade sent "shrapnel into his temple through the front of his skull … lodging into his brain." Ms. Speer, who stayed by his side until he died, describes living without him ever since as "utter hell." His children were 3 and 1 at the time.
The plaintiffs say a lawyer for Mr. Khadr, Dennis Edney, was notified of their Utah court action, and even requested more time to prepare a defence. But in the end, Mr. Khadr's lawyers were a no-show.
The documents filed on Monday say the plaintiffs' lawyers first heard about Mr. Khadr's $10.5-million settlement in media reports on July 3, but they did not receive a response when they contacted Mr. Edney on two occasions. Lawyers for the government would tell them only that the settlement was confidential, their filing reads.
Legal experts say that to get a judgment such as this recognized in Canada, the court needs to address some technical questions of jurisdiction. But a judgment that offends Canadian public policy could also be tossed out.
In the arguments, the plaintiffs assert that the Utah ruling does not offend Canadian public policy, citing Canada's own Justice for Victims of Terrorism Act, passed by the Harper government in 2012, which allows for lawsuits by terrorism victims against governments, terrorists or their supporters.
They also cite a recent Ontario Court of Appeal ruling siding with a group of American terrorism victims and their families seeking to enforce $1.7-billion (U.S.) in judgments against Iran in Canada after suing the Iranian government for sponsoring terrorist acts.
News of Mr. Khadr's settlement provoked outrage in Canada, and was condemned as "disgusting" by new Conservative Party Leader Andrew Scheer.
The Supreme Court of Canada ruled in 2010 that agents of the Canadian Security Intelligence Service "offended the most basic Canadian standards of detained youth suspects" when they participated in abusive U.S. interrogations of Mr. Khadr while he was imprisoned at Guantanamo Bay.
Mr. Khadr faced sleep deprivation, solitary confinement and shackling in stressful positions during his decade at the notorious U.S. facility in Cuba. He was only transferred to a Canadian jail after a plea deal before a U.S. military commission. He has since withdrawn the confessions he made, and is challenging his U.S. conviction.
He also launched a lawsuit against Ottawa for $20-million, claiming the federal government had violated his Charter rights. The lawsuit ended with last week's $10.5-million payout and an apology.
Justice Minister Jody Wilson-Raybould said last week Ottawa had little chance of winning the $20-million lawsuit, and she noted its legal fees had already cost $5-million and were rising. But she would not officially disclose the amount Mr. Khadr had received in his legal settlement.
Speaking to reporters at Group of 20 meetings in Hamburg, Germany, last week, Prime Minister Justin Trudeau defended the deal: "The Charter of Rights and Freedoms protects all Canadians, every one of us, even when it is uncomfortable."