Khadr V Warden of Bowden Institution, 2019 ABQB 207
Total Page：16
File Type：pdf, Size：1020Kb
Court of Queen’s Bench of Alberta Citation: Khadr v Warden of Bowden Institution, 2019 ABQB 207 Date: 20190325 Docket: 150056836X1 Registry: Edmonton Between: Omar Ahmed Khadr Applicant - and - Dave Pelham, Warden of the Bowden Institution and Her Majesty the Queen Respondents _______________________________________________________ Reasons for Decision of the Honourable Chief Justice Mary T. Moreau _______________________________________________________ I. Executive Summary ................................................................................................................ 2 II. Introduction ............................................................................................................................. 4 III. Background Facts................................................................................................................ 4 IV. Issues ................................................................................................................................... 7 V. Relevant Legislation and Treaty ............................................................................................. 7 VI. Jurisdiction .......................................................................................................................... 7 Page: 2 VII. Where the parties agree ....................................................................................................... 7 VIII. Issue #1: Does s 5(1) of the ITOA preclude Mr. Khadr from applying for a s 94 YCJA review? ............................................................................................................................................ 7 IX. Issue #2: Should Mr. Khadr be ordered released from custody and placed on conditional supervision pursuant to s 105 of the YCJA and if so, for how long and on what conditions? ...... 10 1. Applicant’s Submissions ....................................................................................................... 10 2. AG Can’s Submissions ..................................................................................................... 11 3. ACPS Submissions ........................................................................................................... 12 4. Analysis............................................................................................................................. 13 A. Principles underlying the YCJA .................................................................................... 13 B. What is a review under s 94? ........................................................................................ 14 C. Can the Court consider the time Mr. Khadr has been out of custody under bail conditions? ............................................................................................................................ 15 i. Sentencing decisions look to the effect of pre-sentence restrictions ........................ 15 ii. Mr. Khadr’s conditions on bail ................................................................................. 17 iii. Can sentencing decisions apply to these circumstances? ..................................... 20 iv. Does the bail order prevent consideration of the judicial interim release conditions when conducting the s 94 review? .................................................................................... 21 v. Has Mr. Khadr served his sentence? ......................................................................... 22 X. Conclusion ............................................................................................................................ 23 Appendix 1 .................................................................................................................................... 25 I. Executive Summary [1] At issue in this application under s 94 of the Youth Criminal Justice Act, SC 2002, c 1 (YCJA) is whether the nearly four years the Applicant, Omar Khadr, spent out of custody on judicial interim release, subject to conditions that essentially mirror those of conditional supervision, should be credited towards the conditional supervision portion of the eight-year sentence of confinement imposed on him by the Convening Authority for United States Military Commissions. [2] Mr. Khadr applies under s 94 of the YCJA for a review of the eight-year sentence, and is seeking an order placing him under conditional supervision for one day, following which his sentence would expire. The Alberta Crown Prosecutorial Service (ACPS) and the Attorney General of Canada (AG Canada) agree that no further custodial time is required for Mr. Khadr, but they oppose his release from custody on conditional supervision for only one day. Mr. Khadr Page: 3 has served 1650 days (4 ½ years) of his sentence in custody, leaving 1272 days (3 ½ years) to be served under conditional supervision. The AG Can argues that while the time Mr. Khadr has spent under various conditions could factor into the nature of the conditions placed upon him during the remaining period of conditional supervision, it cannot be used to reduce or otherwise alter his sentence. [3] A preliminary issue arises as to whether a review under s 94 of YCJA contravenes s 5 of the International Transfer of Offenders Act, SC 2004, c 21 [ITOA]. The parties agreed it does not, but I have considered the issue for the sake of completeness and context. Section 5 provides that “[t]he verdict and the sentence, if any, are not subject to any appeal or other form of review in Canada.” A review under s 94 of YCJA, however, is about the young person’s progress since being incarcerated and does not involve a review of the trial process for error. I accept that s 94 of the YCJA authorizes a proceeding related to the completion and carrying out of sentences. [4] I find that Mr. Khadr has raised appropriate grounds for review under s. 94(6), including the unique circumstances of his case. What remains to be determined is the appropriate period of conditional supervision. Under s 94(19)(b), I may release the young person subject to the appropriate conditional supervision, modified as necessary to meet the particular circumstances, and keeping in mind that the conditional supervision cannot exceed the remainder of the youth sentence. [5] Case authorities confirm that pre-sentence credit can be granted for restrictions other than custody, including driving prohibitions and bail restrictions: R v Wust, [2000] 1 SCR 455 at para 9; R v McDonald, (1998) 40 OR (3d) 641 (ONCA) at 659; R v. Wooff (1973), 14 CCC (2d) 396 (ONCA) at 398 (in dissent); R v Lacasse, 2015 SCC 64; R v Lau, 2004 ABCA 408; R v Newman, 2005 ABCA 249; R v Ewanchuk, 2002 ABCA 95. Moreover, where the sentence and the pre-sentence restriction are the same or similar, the pre-sentence restriction can be deducted from the sentence. Interpreting these cases within the framework of s. 94(19) and the objects of the YCJA, I conclude that the youth justice court, as part of its s. 94 review function, should consider the substance of the restrictions imposed on a young person as comprising part of the punishment or sentence in order to determine the length of time the young person will be subject to release on conditional supervision. [6] I find that paragraph 1 of the interim release order granted by Ross J. in May 2015, which provides that the sentence does not run while on judicial interim release, does not prevent me from considering the impact of Mr. Khadr’s bail conditions on a subsequent s 94 YCJA review. Like the statutory mandatory minimum provisions and the provision that a sentence cannot begin to run until imposed, the bail order must be considered in context. That context is now framed by s. 94 of the YCJA. [7] While s. 94 of the YCJA does not expressly provide authority to credit time under interim release to conditional supervision, Mr. Khadr has been subject to restrictions that coincide with those of conditional supervision since May 2015, a period of close to 4 years. Keeping in mind the YCJA principles emphasizing that young persons are entitled to both timely and prompt intervention and to effective rehabilitation and reintegration, I credit Mr. Khadr for the time spent under the bail conditions that have essentially mirrored the mandatory conditions set out in s 105 of the YCJA governing conditional supervision orders. Page: 4 [8] As a result, I order that Mr. Khadr be placed on conditional supervision for one day, which I consider to have been served. His eight-year sentence having been completed, he is no longer bound by Ross J’s interim release order. II. Introduction [9] Mr. Khadr has been on judicial interim release since May 2015 (almost 4 years) pending the determination of an appeal from his convictions (but not sentence) still pending in the United States. The May 5, 2015 judicial interim release order of Ross J provides: Any time during which the Applicant is lawfully at large on judicial interim release pursuant to the Order shall not count as part of any sentence imposed on the Applicant which will be deemed interrupted. [10] In her most recent review of the conditions of Mr. Khadr’s interim release on December 21, 2018, Ross J noted: Mr. Khadr’s feelings about his indefinite legal status are understandable, but they do not change the fact of that status or the nature of that status. While his appeal remains pending, he remains convicted of very serious offences. He has not served his sentence for these offences. Bail cannot be a replacement for the appeal itself. Bail