Tuesday, 18 July 2017

U.S. judgment against Omar Khadr not likely enforceable in Canada

     The judgment, from the U.S. District Court in Utah in Morris and Speers v. Khadr (415 F. Supp. 2d 1323 (D. Utah 2006) is a default judgment, issued when Omar Khadr was a prisoner at Guantanamo Bay, Cuba.    According to the reasons for judgment, “given the obvious difficulties of serving process on Mr. Khadr personally… the plaintiff obtained leave to “serve notice by publication”, specifically, “by publishing one notice in a newspaper of general circulation in the Toronto Canada area, and by posting the complaint on the website www.september11classaction.com”.  There was no response from Khadr.    The Court proceeded to award damages of US$102,600,000, which was the amount claimed, plus costs.     

     One well-established defence to the enforcement of foreign judgments is breach of natural justice, for example if the defendant did not get proper notice of the proceeding.   Speers v Khadr is an excellent example of such a case. 

     It comes as no surprise that serving the papers on Khadr at Guantanamo is difficult.   After all, Khadr was denied access even to legal counsel for lengthy periods.   If a process server cannot serve papers there, and if for some reason the papers cannot be mailed to Khadr there, what are the chances that family members could bring the papers to him?  The jail is not easily accessible for someone living in Canada.    Presumably family members could inform him by telephone, but only if they knew themselves.  Why then did the court not require the plaintiffs to serve the papers on his relatives?     

     The Court chose service by publication instead.  Seriously, what are the chances the plaintiffs would pick, out of the four or more newspapers of general circulation in Toronto, the newspaper that the relatives usually read, if indeed they usually read any newspaper?   There are other sources of news, after all, including radio and television.   Even if the plaintiffs picked the right newspaper, the Khadr family might not read it everyday.  What are the chances they would read it on that one single day when the notice appeared, and that they would see the notice, which may well be an inconspicuous one in the legal notices section     In short, why would anyone think it likely that the proceeding would come to Khadr’s attention?  Quite possibly the plaintiffs aimed to obtain a judgment without Khadr ever knowing of the proceeding.    

    Neither Khadr, nor pretty much anyone, would ever be able to pay more than a tiny fraction of US$102,600,000, even if he worked all his life and paid every penny of his earnings to Speer.  One would expect that a court would require that great care be taken to ensure the defendant gets notice of such a big claim, or for that matter, even a claim one thousandth that size.       

     Even if the proceeding did come to his attention, would he even be able to instruct a lawyer for his defence, or be able to give evidence?   

     In short, Khadr has a very strong defence to enforcement. The U.S. court seems to have been highly sympathetic to the plaintiffs, and chillingly indifferent, or worse, to the defendant's right to notice.  If the judgment is held enforceable notwithstanding, one would have to question whether the enforcing court respected the principle of the rule of law.