Supreme Court rejects federal bid to consider Omar Khadr adult offender

It is the third time Khadr's case has been before the high court

Chris Wattie/Reuters

Chris Wattie/Reuters

OTTAWA _ The Supreme Court of Canada has rejected the federal government’s bid to have former Guantanamo Bay prisoner Omar Khadr declared an adult offender.

It was the third time Khadr’s case has been before the high court, and the third time the justices have ruled in his favour.

The latest case centred on whether the eight-year war-crimes sentence Khadr was given by a U.S. military commission in 2010 ought to be interpreted as a youth or adult sentence.

The federal government has consistently branded Khadr a hardened terrorist, arguing that he was really given five concurrent eight-year terms for each of his five war crimes — a conclusion the high court abruptly rejected.

In a rare ruling from the bench just minutes after the hearing ended, Chief Justice Beverley McLachlin dismissed the appeal, saying Khadr did not receive five concurrent sentences and that his time should be served in a provincial facility.

After almost 13 years in custody, the 28-year-old Khadr was released on bail last week while he appeals his U.S. conviction, which has drawn fierce criticism from legal and human rights experts.

Khadr was 15 when he threw the grenade that killed U.S. Sgt. Christopher Speer during a firefight in Afghanistan in July 2002.

Canada has extradition relations with some 83 countries, all of whom want assurances that an offender transferred here will serve their intended sentence, Department of Justice lawyer Sharlene Telles-Langdon argued during the hearing.

Several members of the panel challenged Telles-Langdon during her 50-minute oral argument before a packed courtroom.

“We can’t slice and dice the eight years,” said Justice Marshall Rothstein.

Compared with the mandatory adult sentence for first-degree murder, which is life behind bars with no parole eligibility for 25 years, “eight years for first-degree murder would be a youth sentence,” Justice Andromache Karakastanis added.

Justice Rosalie Abella wondered aloud whether the U.S. government actually views Khadr’s sentences as being concurrent. The only party that seems to take that view, Abella said, is the Canadian government.

Abella asked Telles-Langdon whether she considers eight years to be a youth sentence. Yes, the lawyer replied.

“Then, isn’t that the end of the story?” Abella said.

Khadr’s sentence is not open to interpretation, his lawyer Nate Whitling argued before the court. A concurrent sentence is without precedent in U.S. military procedure, and not supported in Canadian law, Whitling said.

“It is one sentence for eight years, and that is undisputed,” he argued.

Khadr’s lawyers say the Harper government is simply being vindictive as it pursues its tough-on-terror, tough-on-crime agenda prior to a fall election.

While the government concedes the sentence for the most serious charge — the murder of an American special forces soldier — can only be considered a youth sentence, it argued the other four, including attempted murder, must be viewed as adult sentences.

No provisions exist for an inmate to serve both youth and adult sentences at the same time, so Ottawa classified him as an adult offender when he transferred to Canada from Guantanamo Bay in September 2012 under an international treaty to serve out his punishment.

The federal government is bound by United Nations conventions that Canada has signed that protect the rights of the child and children in armed conflict, argued Fannie Lafontaine, a lawyer for Amnesty International, which was granted intervener status in the case.

The Canadian Civil Liberties Association, which has also intervened in the case, said Canada as consistently taken a heavy-handed approach towards Khadr.

The Supreme Court has taken up Khadr’s case twice before, and sided with him both times.

In 2008, the court ruled Canadian officials had acted illegally by sharing intelligence information about him with his U.S. captors.

In 2010, the top court declared that Ottawa had violated Khadr’s constitutional rights when Canadian agents interrogated him in Guantanamo Bay despite knowing he had been abused beforehand.


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