May 14, 2015

David Taylor and François Larocque of Power Law’s Ottawa office, alongside Professor Fannie Lafontaine of l’Université Laval, appeared before the Supreme Court of Canada on May 14th, 2015 in the case of David Pelham, Warden of the Bowden Institution, et al v Omar Ahmed Khadr (Court File number 36081) on behalf of Amnesty International Canada.

The respondent, Mr. Omar Khadr, is a Canadian citizen who was found fighting in Afghanistan in 2002 at 15 years of age. Mr. Khadr was detained for eight years by the United States government in Guantanamo Bay, Cuba, before he pled guilty to first degree murder, attempted murder, participation in terrorist group activities, commission of offences for a terrorist group and spying for the enemy. He was sentenced to eight-years’ imprisonment, serving the first year in the custody of the United States, after which he applied to serve the remainder of his sentence in Canada under the International Transfer of Offenders Act (ITOA). Once Mr. Khadr was transferred to Canada a year later, correctional officials interpreted his sentence as five separate concurrent eight year sentences, the balance of which was to be served in a federal correctional facility. The issue under consideration in the appeal was whether Mr. Khadr, transferred from another country to Canada, must serve the remainder of his foreign single sentence on multiple convictions in a federal correctional facility or a provincial correctional facility for adults. While already serving his time in a federal correctional facility, Mr. Khadr applied for habeas corpus on the basis of section 20 of the

The issue under consideration in the appeal was whether Mr. Khadr, transferred from another country to Canada, must serve the remainder of his foreign single sentence on multiple convictions in a federal correctional facility or a provincial correctional facility for adults. While already serving his time in a federal correctional facility, Mr. Khadr applied for habeas corpus on the basis of section 20 of the ITOA, which states that an adult Canadian who committed offences between the ages of 12 to 17 is to be detained in a provincial correctional facility for adults where the sentence imposed by the foreign entity would have been a youth sentence had the offence been committed in Canada. Amnesty International Canada argued that Mr. Khadr should indeed have been sent to a provincial facility, reminding the Court of Canada’s obligations under

The issue under consideration in the appeal was whether Mr. Khadr, transferred from another country to Canada, must serve the remainder of his foreign single sentence on multiple convictions in a federal correctional facility or a provincial correctional facility for adults. While already serving his time in a federal correctional facility, Mr. Khadr applied for habeas corpus on the basis of section 20 of the ITOA, which states that an adult Canadian who committed offences between the ages of 12 to 17 is to be detained in a provincial correctional facility for adults where the sentence imposed by the foreign entity would have been a youth sentence had the offence been committed in Canada.

Amnesty International Canada argued that Mr. Khadr should indeed have been sent to a provincial facility, reminding the Court of Canada’s obligations under international human rights law, particularly as it pertains to the United Nations Convention on the Rights of the Child.

The Court delivered the judgment from the bench in Mr. Khadr’s favour, with costs. Given the decision of the Alberta Court of Queen’s Bench, rendered April 24th, 2015, releasing Mr. Khadr on bail while awaiting the results of his appeal in the United States, this decision would only take effect if and when Mr. Khadr is required to serve the remainder of his sentence as a result of the appeal decision.

The judgment of the Supreme Court of Canada can be found here: http://scccsc.lexum.com/scc-csc/scc-csc/en/item/15359/index.do. For more information on this case, please consult the Supreme Court of Canada’s website or contact Caroline Etter at cetter@powerlaw.ca.