Would you do it for 9 million USD?

[Bangkoktraveler]

........ sounds like we need a refresher course in the Roosevelt Corollary to the Monroe Doctrine and the idea of Manifest Destiny, because that is what the USA has been and what it is now really all about.

[McBif]

An interesting an dissenting view, especially for all you legal beagles out there:

 

 

 

We paid too much: $11.5-million for Maher Arar is legally indefensible

 

PETER BOWAL

National Post

 

Thursday, February 08, 2007

 

The federal government's mea culpa and financial settlement with Maher Arar were well-received last week. Commentary has been favourable. Respectfully, I offer a dissent: Canadian taxpayers paid too much.

 

The legal basis for Mr. Arar's claim was not as slam-dunk as many assumed. In such cases, Crown liability is hard to prove. Absent a showing of malice, it can be difficult to beat the government in a courtroom.

 

Mr. Arar's legal case was shaky in other ways. Because he was detained and tortured in Syria after being apprehended and shipped off by the Americans, his constitutional claim on the ground of Canadian deprivation of liberty was uncertain. His case therefore had to stand on private- law grounds such as negligence, defamation, false imprisonment, battery and abuse of public office. While judges would be sympathetic, favourable rulings in these murky areas would not be assured.

 

The factual obstacle for Mr. Arar was causation, in regards to both liability and quantum of damages. That is because Canada played a comparatively minor role in his suffering. Canada did not detain or deport him. Canada did not direct anything be done to Mr. Arar. And Canada certainly did not torture him. Just the opposite, in fact: Canada applied diplomatic pressure and secured his release from a Syrian jail.

 

True, the RCMP information that was acted upon by the Americans was wrong. But that was a reflection of negligence, not malice. The standard in negligence cases is whether the decision made was reasonable at the time -- not whether it later proved to be incorrect.

 

Since the abuses occurred at the hands of other sovereign states, Mr. Arar should be pursuing his remedies from them. Yet his case has been rejected in U.S. courts. If the country that questioned and deported Arar to his torturers has no liability, why should Canada be more responsible? By making this settlement, Canada is essentially paying debts owed by Syria and the United States.

 

In other words, Canada's legal responsibility here is minimal. Mr. Arar's settlement was based on political, not legal, considerations. The media has embraced Mr. Arar and kept his file on the front pages. It carried him on a wave of compassion that few folks will ever taste. The media can be credited with the settlement as much as the lawyers.

 

Even if Mr. Arar might have prevailed in court, the amount of the payout -- $11.5-million, tax-free (including legal costs) -- is not legally defensible. The Supreme Court of Canada set an upper limit of what today would be $400,000 in compensation for pain and suffering. If Mr. Arar had been injured and forced to endure a lifetime of pain and loss of bodily function as a quadriplegic due to someone else's negligence -- imagine the worst case scenario -- for that pain and suffering he would receive from a court no more than about $400,000.

 

Mr. Arar received more than the money. He got his name officially vindicated after a long and expensive public judicial inquiry, as well as several apologies at the highest levels. The federal government promises to implement all 23 recommendations of the judicial inquiry. The RCMP commissioner resigned over the issue. Ottawa went to bat for him against a brawny U.S. government. Diplomatic letters were exchanged.

 

Now Mr. Arar has $11.5-million to pay expenses and turn the page. While he may say that securing this sum has taken time and effort, by the glacial standards of litigation, he has received deliverance at the speed of lightning -- especially given how shaky his case really was. No human should go through what he did. But in the aftermath, he has done well for himself-- too well, perhaps.

 

- Peter Bowal is professor of law at the University of Calgary

 

 

 

Link

[Bangkoktraveler]

Too bad the USA can not say they are sorry. By not saying they are sorry, they seem to be presenting to the world the position that they can not make any mistakes. Sad!