Court victory for Omar Khadr:
[126] Khadr is to be transferred to a provincial correctional facility for adults in accordance with s. 20(a)(ii) of the ITOA.X.
Appeal heard on April 30, 2020
Reasons filed at Edmonton, Alberta July 8, 2014
Conclusion:
[124] In summary, our reasons for allowing the appeal are as follows:
1. The Convening Authority, as the designee of the United States Secretary of Defense, imposed an eight-year unitary sentence on Khadr representing his total cumulative culpability for all five offences to which he pled guilty.
2. This sentence was a result of a plea agreement approved by the Convening Authority under which Khadr agreed to plead guilty and give up legal rights in exchange for receiving a total sentence for all five offences not to exceed eight years.
3. Under the Treaty and the ITOA, Canada is to enforce the sentence that the Convening Authority imposed on Khadr unless it is incompatible in nature or duration with the laws of Canada or unless those laws mandate its adaptation to five 8-year concurrent sentences.
4. The unitary sentence is a legally enforceable sentence under the laws of Canada. It is not incompatible with Canadian laws. Nor do those laws mandate its adaptation from a unitary sentence of eight years for five offences to five 8-year concurrent sentences. In fact, under the YCJA, a unitary sentence may be imposed as a youth sentence on young persons convicted of multiple offences.
5. Due regard by Canada to the authority of the United States as the sentencing state includes respect for the substance of the sentence the Convening Authority imposed on Khadr.
6. It is wrong in law to treat Khadr’s eight-year sentence for five offences as five 8-year concurrent sentences. To do so effectively increases the eight-year unitary sentence, is not realistic on the facts, is not required by the laws of Canada and contravenes the ITOA. No policies of the CSC could operate to do otherwise than the ITOA requires.
7. Section 18 of the ITOA does not apply to Khadr’s sentence so as to deem him to be serving an adult sentence. The sentence for murder is indisputably a youth sentence within the meaning of the YCJA and the ITOA. The sentence for the other offences is reflected in the eight-year total sentence that the Convening Authority imposed on Khadr. It is pure speculation to suggest that any one of the other four offences attracted a portion of the eight-year sentence higher than the maximum under the YCJA for that offence, whether individually or collectively with the others.
8. A unitary or global sentence of eight years for the multiple offences to which Khadr pled guilty could have been a valid youth sentence under the YCJA, but a unitary or global sentence of eight years for those offences could not have been a valid adult sentence under the YCJA or elsewhere under the laws of Canada.
9. Khadr’s sentence to be enforced in Canada is, by operation of s. 20(a)(ii) of the ITOA, a sentence to be served in a provincial correctional facility for adults. 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.
[125] Accordingly, the appeal is allowed and the application for habeas corpus is granted.
[126] Khadr is to be transferred to a provincial correctional facility for adults in accordance with s. 20(a)(ii) of the ITOA.
Appeal heard on April 30, 2020
Reasons filed at Edmonton, Alberta
this 8th day of July, 2014
