Oct 15, 2014

International criminal law; Sentencing of young persons; Habeas corpus

Khadr v Edmonton Institution, 2014 ABCA 225 (CanLII)

A cumulative sentence in a foreign jurisdiction generally may not be converted into a series of concurrent sentences following transfer to Canada under the International Transfer of Offenders Act

BACKGROUND: The Appellant, Canadian citizen Omar Khadr, spent eight years in the United States' detention facility at Guantanamo Bay, Cuba, before pleading guilty to five offences. He was 15 years old at the time the offences were committed. After pleading guilty, he was sentenced to eight years' imprisonment. The United States transferred the Appellant to Canada in 2011 to serve the remainder of his sentence there, under the International Transfer of Offenders Act (ITOA). Under the ITOA, Canada continues the enforcement of foreign sentences, rather than adapting them into Canadian sentences, unless a foreign sentence is incompatible with Canadian law. The Correctional Service of Canada (CSC) placed the Appellant in a federal pentitentiary, applying an internal policy under which, where an offender is sentenced in Canada for multiple offences on the same day and the judge imposes what is described as a “global sentence”, the sentence will be entered for “each of the offences”. This meant that the CSC considered the Appellant to be under five separate concurrent sentences of eight years each. The Appellant challenged this, demanding that the Warden of the Respondent Edmonton Institution release him from the federal facility pursuant to s 20(a)(ii) of the ITOA, which provides that a Canadian offender who is now 20 years of age or older and was between 12 and 17 years old at the time of the offence must be placed in a provincial correctional facility for adults if the sentence imposed could, had the offence been committed in Canada, have been a youth sentence. The Warden refused the Appellant's demand. The Appellant then applied for habeas corpus against the Warden. The chambers judge denied that application, finding that the eight-year sentence would have resulted, had it been imposed in Canada, in five eight-year sentences to be served concurrently. He found that all of the sentences except the murder one were deemed to be adult sentences under the ITOA because the sentence given for each of those offences would exceed the maximum youth sentence for them in Canada.

APPELLATE DECISION: The appeal was allowed. The Appellant argued that the chambers judge erred in converting his eight-year sentence into five separate concurrent sentences. The Respondent Attorney General of Canada argued that s. 20 of the ITOA had to be read in conjunction with the Criminal Code and the Youth Criminal Justice Act (YCJA). The Attorney General argued that under Canadian law, a sentencing judge must, in accordance with s. 725(1)(a) of the Code, specify the individual sentence to be imposed for each offence. The Attorney General contended that where that is not done s. 719 of the Code, which has been interpreted to require that sentences imposed in Canada be treated as running concurrently absent an explicit direction to the contrary, applies. Thus, the Attorney General argued that the sentence had to be interpreted as five concurrent ones. The Court of Appeal disagreed, finding that s. 719 did not apply. It only applies to cases where the trial judge has imposed a specific sentence for each of a number of offences but has not said whether they will run consecutively or concurrently. This was not the case with the original sentence, which was cumulative. The Court also held that the chambers judge erred when he framed the issue as whether "if sentenced in Canada, how would the sentence be applied?" What a Canadian court would have done was not the issue. The Court relied on American authorities and expert evidence to find that the eight-year sentence originally imposed reflected the Appellant's cumulative culpability for all five offences. Furthermore, the ITOA mandates continued enforcement of a unitary sentence of a foreign state, and a unitary sentence is not incompatible with Canadian law. Treating the sentence as five concurrent sentences would contravene the ITOA, because even if the court found that the sentence could have been adapted, this is only allowed where it does not result in increasing the foreign sentence. Five concurrent sentences amount to a greater sentence than a cumulative sentence of the same number of years. The internal CSC policy cannot override the law. Furthermore, although at age 15 the Appellant could have been subject to an adult sentence in Canada, there is a presumption against adult sentences and under s. 19(3) of the ITOA, if the offender received a sentence of less than 10 years for first degree murder the sentence is deemed a youth one within the meaning of the YCJA. There is no way in which the Appellant's eight-year sentence could have been an adult sentence for first degree murder in Canada. The Court accordingly ordered that the Appellant be transferred to a provincial correctional facility.