A lawyer for Omar Khadr says a requested freeze order on the former child soldier's $10.5-million payout from Ottawa should be turned down as the case against him relies on his flawed convictions by a U.S. military commission at Guantanamo Bay.
Lawyer Nathan Whitling will be in court on Thursday facing off with a lawyer for both Tabitha Speer, the widow of the U.S. soldier allegedly killed by a grenade thrown by a 15-year-old Mr. Khadr in a 2002 battle in Afghanistan, and Layne Morris, another solider who was partially blinded in the firefight.
The plaintiffs are seeking an urgent freeze order in Ontario Superior Court on Mr. Khadr's assets, pending the ultimate outcome of their bid to enforce a 2015 default U.S. civil court judgment against Mr. Khadr in Ontario. That U.S. ruling declares that he owes $134-million (U.S.) for his alleged actions in Afghanistan.
In written arguments filed on Wednesday, Mr. Whitling argues the plaintiffs have provided little evidence to show there is a "real risk" Mr. Khadr intends to move or hide his assets – something plaintiffs must demonstrate to win a freeze order like this.
"The scant evidence offered in support of this pleading consists of double and triple hearsay statements drawn from media reports and Wikipedia," his court filing reads.
One piece of evidence the plaintiffs cite is a Globe article published last week that stated a source said the money had been sheltered. Mr. Whitling says that the information is false, but declined to answer questions about the location of Mr. Khadr's money.
In the court filing, Mr. Whitling says the Globe report is "at least double hearsay" and cannot be tested by the court or relied upon as evidence: "In short, the news line relied upon by the Applicants is not capable of proving anything, much less that the Respondent is hiding or dissipating assets in an attempt to defeat prospective creditors."
To win a freeze order, the plaintiffs must also show they have an underlying case with a strong chance of success on its face. And Mr. Whitling says that here, too, the plaintiffs have failed.
Their U.S. judgment, obtained in Utah in 2015, he argues, relies entirely on Mr. Khadr's guilty pleas at Guantanamo Bay, where Canada's Supreme Court has ruled he faced abuse that contravened his Charter rights. Mr. Khadr has recanted his confession, made as part of deal to allow him to leave Guantanamo Bay, and is appealing his convictions. Mr. Whitling calls the plaintiffs' case an "uphill battle."
"The Applicants have not established that they are almost certain to succeed in enforcing a civil judgment derived from the Respondent's arbitrary detention, abusive treatment, and resulting convictions in" Guantanamo Bay, Mr. Whitling writes.
He also argues that ultimately recognizing the Utah judgment could conflict with Canadian public policy, which is one of the grounds under Canadian law that allows a court to disregard a foreign court judgment.
"Officials at the highest levels of the Canadian government have already stated – as early as the [Mr. Khadr's] initial capture and as recently as last week – that [Mr. Khadr's] detention and prosecution in GTMO offended our most basic values and principles," the court filing reads.
The plaintiffs, in their court filings, suggest Mr. Khadr remained close to his "extremist" family, and allege there is a risk he will provide some of his funds to them.
In his written submission, Mr. Whitling dismisses this argument as baseless, saying "the Applicants argue that [Mr. Khadr] has relatives who are bad people, and rely upon various news reports and Wikipedia pages in support of this characterization."
Calling the material "dubious hearsay," Mr. Whitling argues none of these arguments support the "bald assertion" that Mr. Khadr intends to dissipate or hide his assets.
Mr. Khadr, 30, received the $10.5-million payout and an apology to settle his $20-million lawsuit against the federal government for its complicity in the abuse he faced at Guantanamo Bay. Neither he nor the government has publicly confirmed the amount.
In 2010, the Supreme Court of Canada ruled that failing to repatriate him, and allowing Canadian officials to interrogate him after he was subjected by his U.S. captors to a program of sleep deprivation known as the "frequent flyer program," was a violation of his Charter rights.
A lawyer for Ms. Speer and Mr. Morris declined to comment.