An Ontario Superior Court judge has rejected a bid to freeze Omar Khadr's assets, saying there's "no actual evidence" he might fritter away settlement money before having to deal with a $134-million US judgment against him.
The decision came a week after it was announced that Khadr received an apology and financial settlement from the Canadian government that reportedly totals $10.5 million.
"We do not have one law for Omar Khadr and another for all other Canadians," Justice Edward Belobaba wrote in his decision. "The law, including the law for obtaining a pre-judgment freezing order, applies equally to everyone."
The request for an injunction came from the widow of Sgt. 1st Class Christopher Speer, a U.S. special forces medic killed in Afghanistan in 2002, and former sergeant Layne Morris, who was wounded in the same incident.
Speer's widow, Tabitha, and Morris were awarded $134 million US in damages in 2015 by a Utah court in their wrongful-death suit against Khadr and have filed an application in Ontario Superior Court to have that judgment recognized and enforced.
They had asked the court to freeze Khadr's assets until their case is heard.
Belobaba said obtaining such an injunction to freeze one's assets is a "drastic" and "extraordinary" remedy and that the onus was on the applicants to prove there was a real risk that Khadr might hide or dissipate his assets.
"There is no actual evidence before the courts of any real risk that the respondent is about to remove assets from the jurisdiction to avoid the possibility of a judgment or is otherwise dissipating his assets to frustrate the claims of actual or potential creditors."
Request based in part on 'hearsay statement'
In arguing for the injunction, David Winer, representing Speer and Morris, had cited a line in a Globe and Mail July 7, 2017, news article that stated: "One source told the Globe that the money has been legally sheltered to prevent Ms. Speer's lawyers form gaining access."
But Belobaba dismissed that argument, saying a "hearsay statement attributed to an anonymous source does not constitute the kind of credible evidence that a court requires to grant an order freezing someone's property or assets before judgment."
Belobaba also rejected Winer's argument that one could infer nefarious intent by Khadr's refusal to respond to letters sent by the legal team of Speer and Morris about the funds.
During Thursday's hearing, Belobaba asked Nathan Whitling, Khadr's lawyer, why his client doesn't, as a gesture of goodwill, consent to voluntarily freeze the bulk of his settlement, while the Utah enforcement judgment case is pending.
Whitling said that Khadr, like anyone else, has plans for his property, that there are family members close to Khadr, and there's no reason the money should be tied up.
Outside the courthouse, Whitling told reporters that in order to get this type of injunction there has to be strong evidence that the party is actually trying to hide or dissipate their assets.
'There's just no indication at all that Mr. Khadr is doing any such thing.' - Nathan Whitling, lawyer for Omar Khadr
"And there simply just wasn't any evidence in this case, because there's just no indication at all that Mr. Khadr is doing any such thing," he said.
Winer, who also spoke to reporters following the decision, said they came to court believing they had a good case and a good shot at seeking injunctive relief.
"Obviously, everyone knows it's a high test and a high standard to meet, and we put our best foot forward," he said.
But he said Speer and Morris are intent on proceeding with their application to seek to recognize and enforce the Utah judgment in Ontario.
The Canadian-born Khadr was 15 when he was captured by U.S. troops in July 2002 following a firefight at a suspected al-Qaeda compound in Afghanistan that resulted in the death of Christopher Speer and the wounding of Morris, who lost an eye as a result of his injury.
Khadr's appeal of 2010 conviction pending
Khadr was taken first to prison at the Bagram U.S. military base in Afghanistan and then to the prison at the Guantanamo Bay U.S. naval base in Cuba and ultimately charged with war crimes by a military commission.
Under interrogation, he admitted to throwing the grenade that killed Speer and eventually pleaded guilty to five war crimes charges, including murder. He was convicted of all charges in 2010 and was sentenced to eight years plus the time he had already spent in custody.
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He returned to Canada two years later to serve the remainder of his sentence and was released in May 2015 pending an appeal of his war crime convictions, in which he argued that his initial confessions to investigators were made under duress in an attempt to get out of U.S. custody.
The Supreme Court of Canada ruled in 2010 that Canadian intelligence officials obtained evidence from Khadr under "oppressive circumstances," such as sleep deprivation, during interrogations at Guantanamo Bay in 2003, and then shared that evidence with U.S. officials.
Last week, the Canadian government announced it has apologized to Khadr for its role in his imprisonment and awarded him a financial settlement as part of the civil suit his lawyers launched 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.
On Thursday, Prime Minister Justin Trudeau said he understood the concerns some Canadians have about the settlement. But Trudeau said had the goverment continued to fight the case in court, it would have been a losing battle, possibly costing the government $30 million to $40 million.
"So this was the responsible path to take," he said.