Foreign Sentences Served in Canada: Khadr v Edmonton Institution
Omar Khadr’s journey through this country’s various courts will continue in May when the Supreme Court of Canada (“SCC”) holds a hearing for the appeal of Khadr v Edmonton Institution, 2014 ABCA 225.
Unlike earlier legal proceedings involving Khadr, this appeal is relatively less complex. The issue essentially boils down to whether Khadr should have been placed in a provincial correctional facility rather than a federal penitentiary when he was transferred to Canada to serve the remainder of his sentence.
Despite the limited scope, however, the SCC’s decision in this matter will have important implications regarding how the International Transfer of Offenders Act, SC 2004, c 21 (“ITOA”) is interpreted in conjunction with the Criminal Code, RSC 1985, c C-46 (“Criminal Code”) and the Youth Criminal Justice Act, SC 2002, c 1 (“YCJA”).
Khadr’s legal history has been well publicized. Khadr is a Canadian citizen who became involved with al Qaeda as a youth through his father’s influence. Khadr admitted to throwing a grenade at American forces during an altercation in Afghanistan in 2002, resulting in the death of an American soldier. He also admitted to having been the recipient of training by al Qaeda.
Later that year, Khadr was captured by the US military and was transferred to Guantanamo Bay. He was held there for years without a charge and eventually declared to be an enemy combatant. Formal charges were laid in 2005.
It was not until 2010 that Khadr agreed to plead guilty to five charges under the condition that he receive a sentence no greater than eight years and that the US Government facilitate his transfer to Canada after one year. Khadr was sentenced to 40 years by a Military Commission, which was subsequently reduced to eight years pursuant to the plea agreement.
The eight year sentence Khadr received was a single sentence meant to reflect the cumulative culpability of all five offences. This is commonly referred to as a “unitary sentence,” a “single inclusive sentence,” or a “global sentence.”
When Khadr was transferred to Canada, Correctional Services Canada (“CSC”) placed him in a federal penitentiary. Khadr challenged this placement, arguing that he should have been placed in a provincial facility.
The Decision Below
CSC’s decision to place Khadr in a federal penitentiary hinged on how Khadr’s American sentence was interpreted in Canada. While there is no inherent right to serve a foreign sentence in Canada, the ITOA provides a framework for Canadians convicted of crimes while abroad to serve their sentences in Canada in certain circumstances.
There are two methods for approaching a foreign sentence: conversion and continued enforcement. Under conversion, the recipient state would impose a new sentence based on its own laws, meaning that the sentence may be longer or shorter than the foreign sentence.
The Treaty Between Canada and the United State of America on the Execution of Penal Sentences, Can TS 1978 No 12 (“Treaty”) and the ITOA utilize the continued enforcement method. Continued enforcement means that the recipient state is bound to the nature and duration of the foreign sentence. There is no conversion of the foreign sentence, only enforcement.
The only exception to continued enforcement is if the foreign sentence is not compatible with the laws of the state that will administer the sentence. For example, if the sentence imposed by the foreign state is longer than the maximum sentence for an offence under Canadian law, the Canadian offender will serve the shorter sentence.
Another provision in the ITOA provides that, if a sentence could be construed as a youth sentence, the offender will be placed in a provincial correctional facility for adults.
Because Khadr had plead guilty to five offences, the chambers judge concluded that Khadr’s sentence should be characterized as five separate eight year sentences served concurrently, as that is how it would have been handled in a Canadian Court. Doing so allowed the chambers judge to characterize Khadr’s sentence as adult sentences, resulting in Khadr’s placement in a federal penitentiary.
The Court of Appeal Decision
The Court of Appeal of Alberta (“ABCA”) determined that the chambers judge committed an error in law by engaging in an analysis of how a Canadian court would have approached sentencing Khadr. The ABCA noted that the Attorney General and CSC’s position on the appeal seemed to be predicated on a view that the eight years Khadr received did not reflect the seriousness of the offences.
However, under the Treaty and the ITOA, a foreign sentence should be enforced as if it had been imposed by a Canadian court, except in those cases where the sentence is not compatible with Canada’s laws.
There was no legal authority for the argument put forward that a global sentence is not compatible with Canadian law. In fact, global youth sentences that do not allocate specific sentences to individual offences are commonly imposed in Canadian courts and are recognized in the YCJA.
With respect to the issue of whether Khadr’s sentence was properly construed as a youth or adult sentence, the ABCA noted that there is a presumption against adult sentences in the ITOA. Because the eight years Khadr received was less than the maximum 10-year cumulative sentence he could have received as a youth sentence in Canada, the ABCA determined that Khadr’s sentence should be treated as a youth sentence. As a result, the ABCA determined that Khadr should be placed in a provincial correctional facility.
Although the issue in this appeal seems narrowly focused on where Khadr should be serving his sentence, the issue of whether Khadr should be in a provincial or federal facility is not necessarily what is important about this appeal. In fact, the ABCA did not discuss why one would be preferable to the other in any detail.
The SCC’s decision in Khadr will help clarify what authority, if any, the CSC possesses in determining how it interprets foreign sentences. As noted by the ABCA, there are consequences to allowing the Attorney General or CSC to alter or challenge a sentence imposed by a foreign state. Allowing this meddling could open up the door to the possibility of the sentence being challenged by the convicted person and lead to further litigation and uncertainty.