Federal Appeals Court Reverses Judge Rooke’s ruling: Omar to be transferred to a provincial institution

Today the Alberta Court of Appeal upheld the habeas application by lawyer Dennis Edney to move Omar Khadr from a federal penitentiary to a provincial jail. The judgment was clear and stated that: “…the chambers judge erred in law in finding that Khadr was properly placed in a federal penitentiary under the International Transfer Agreement (ITOA). For reasons explained below, we conclude that Khadr ought to have been placed in a provincial correctional facility for adults in accordance with s. 20(a)(ii) of the ITOA (International Transfer Agreement). In summary, the eight-year sentence imposed on Khadr in the United States could only have been available as a youth sentence under Canadian law, and not an adult one, had the offences been committed in Canada..”

On April 30, Omar’s lawyer appealed Judge Rooke’s ruling (November ’13) which denied Omar’s transfer to a provincial institution where he would have access to educational and parole opportunities. Edney challenged that Omar should not be detained in a Federal institution as an adult offender, since he was a juvenile when captured and the sentence of 8 years was a youth sentence. The federal lawyers claimed that Omar was sentenced as an adult for four of the five ‘crimes’ and his total sentence was 40 years. The Alberta Court of Appeal judgment referred to the federal argument of 40 years as “pure speculation” and not supported by the International Transfer Agreement between Canada and the U.S., Youth Criminal Justice Act nor the sentence imposed by the Military Commission.

The judgement also stated, “The legal process under which Khadr was held and the evidence elicited from him have been found to have violated both the
Charter and international human rights law”. This legal reference to the violation of Omar’s legal and human rights is an important one.
The judgment clearly stated that the difference between Omar being in a federal penitentiary and a provincial one was significant in terms of his liberty. “In addition, the differential of that disposition from a penitentiary placement is sufficient to constitute an alteration of Khadr’s residual liberty interest under the laws of Canada so as to justify an order for habeas corpus”.

And so: “[126] Khadr is to be transferred to a provincial correctional facility for adults in accordance with s. 20(a)(ii) of the ITOA.”

Lawyer Nate Whitling, a defence lawyer working with Edney, says the decision is another setback to the federal government. “The court clearly rejected their interpretation,” said Whitling.

Incl. video with Nate Whitling: Tories accused of ‘pandering to politics’ as they vow to appeal Omar Khadr ruling By Andy Radia | Yahoo Canada Politics – 8 Jul, 2014.

In a statement Dennis Edney said that he is pleased the Appeal Court’s decision gets his client “out of the hands of the Harper government” and that “the federal government would rather pander to politics than to apply the rule of law fairly to each and every Canadian citizen.” … “This government chose to misinterpret the International Transfer of Offenders Act and place Omar in a maximum security prison, where he spent the first seven months in solitary confinement, instead of treating him as a youth as required under both Canadian and international law.”

Read more here: Court rules Khadr has youth sentence; will serve time in provincial jail By Sheila Pratt | Edmonton Journal – July 8,2014.

The decision comes within days of the revelation that a memo released by the U.S. Department of Justice indicates that the U.S. and Canada knew in 2010 that the charges brought against Omar Khadr by the military commission were not supported by the law. (“U.S. and Canada knew charges against Omar Khadr were bogus.” By Gail Davidson, Lawyers’ Rights Watch Canada.)

While we celebrate this court victory for Omar, we know that the only just and lawful response is his release from jail.

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