Convicted terrorist Omar Khadr has won a major victory over the federal government in a court ruling that says he should be treated as if he were sentenced as a youth. After a decade of incarceration stretching back to when he was 15, it is as close as the Canadian al-Qaeda recruit has come to being declared a child soldier.
The Alberta Court of Appeal ruling means Mr. Khadr can serve the remaining six years of his eight-year sentence, handed down by the U.S. military justice system, in a provincial adult jail, rather than the much harsher confines of the maximum-security federal penitentiaries in which he has been held.
But it also brings him a step closer to freedom. He has the right any time he wishes to apply to a Youth Court judge for early release, Nate Whitling, his lawyer, said in an interview. Without the ruling, his only chance at release would be through the National Parole Board.
"You say that the youth has made very significant progress in terms of his rehabilitation. We have nothing but absolutely glowing reports. And that there are new programs available in the community. When his sentence was imposed in Guantanamo, the programs available to him were zero." Mr. Whitling said he could not say when or if Mr. Khadr would apply for early release.
Public Safety Minister Steven Blaney said a youth sentence is not appropriate for Mr. Khadr. He said the government will appeal to the Supreme Court, and would also seek an order blocking the transfer while the appeal is being heard.
Mr. Khadr, now 27, was 15 when he was captured by the United States on an Afghan battlefield. After being held for eight years at the U.S. prison for terrorists at Guantanamo Bay, Cuba, he pleaded guilty to murder (by throwing a grenade in a battle, killing U.S. soldier Christopher Speer), attempted murder and other offences in return for the eight-year sentence and transfer to the Canadian prison system.
The ruling is a vindication of the view held by lawyers for Mr. Khadr that the Conservative government went out of its way to treat their client harshly – more harshly than the laws of Canada allow.
"While not explicitly stated," the court said in a 3-0 ruling, "it appears that underlying the [Attorney-General of Canada's] position on this appeal is the view that a cumulative sentence of eight years for the five offences to which Khadr pled guilty is not sufficiently long to reflect the seriousness of the offences."
And if the Canadian justice department wished to make that argument, the court said, Mr. Khadr could respond that the U.S. military justice system treated him unfairly – an argument he might well win, for reasons the court took some pains to spell out.
"The legal process under which Khadr was held and the evidence elicited from him have been found to have violated both the Charter and international human rights law," the court said, citing two rulings from the Supreme Court of Canada on other aspects of Mr. Khadr's case.
Khadr's father, Ahmed, was a prominent al-Qaeda member, and moved the family to Afghanistan when Omar Khadr was 11.
The Supreme Court of Canada twice criticized the Canadian government's treatment of Mr. Khadr in Guantanamo, in questioning him without counsel while he was still a teenager and turning the information over to U.S. authorities. (Last fall, Prime Minister Stephen Harper named a little-known lower-court judge who found Canada nearly blameless in the Khadr affair to the Supreme Court last fall – but the court ruled the appointment of Justice Marc Nadon of the Federal Court of Appeal illegal.)
The Alberta appeal court ruling turned on the issue of whether Mr. Khadr's sentence was five eight-year terms to run at the same time or one sentence of eight years. The court said it was one sentence, which meant it fell within the 10-year maximum for murder under Canada's Youth Criminal Justice Act. Mr. Khadr, therefore, had to be treated as if he were sentenced as a youth.