Skip to main content

Omar Khadr's sentence will not change if he transfers to a Canadian prison cell, but he would hit the jackpot when it comes to parole.

Transfer treaties require that prison sentences remain intact, but Canadian inmates returning home almost invariably benefit from the country's relatively liberal rules governing parole, legal experts say.

"In the context of Mr. Khadr, it's very advantageous to him to be repatriated because he then falls under Canadian rules," said Brian Greenspan, a Toronto lawyer with extensive experience on international criminal cases. "He will get better treatment, his progress will be vetted in a more meaningful way here, and it will be subject to review."

In the United States, prisoners have little chance of being paroled until they have served 85 per cent of their prison sentence, Mr. Greenspan said.

In contrast, Mr. Greenspan said that Canadian inmates are usually eligible for some form of parole after they have served one-third of their sentences. Most have been conditionally released by the two-thirds point in their sentences.

Mr. Khadr will also benefit from the fact that he is leaving a notoriously repressive prison regime at Guantanamo and entering a more regulated system, where will be an instant celebrity. Mr. Khadr's safety will be closely attended to by authorities, and the strong support he has in Canada will make itself felt.

"He has significant support within the legal community, that's for sure," Mr. Greenspan said. "I acted for the Criminal Lawyers Association at the last intervention in his case, and the number of organizations who were there advancing his interests was very broad and very significant."

Ed Morgan, a University of Toronto law professor who has worked on prisoner exchanges, said that there should be nothing contentious about bringing a citizen back to a prison system that Canadians regard as fair.

"I don't see these prison exchanges as ... putting our seal of approval on a foreign process in any way," he said. "I see it as a humanitarian gesture toward our citizens. In particularly egregious cases, there is even more reason to bring them back to serve their sentences here."

Prof. Morgan noted that transfer treaties exist only because they guarantee that sentences imposed abroad will not be altered.

"We don't pass judgment on the foreign legal system," he said. "The choice we face is either to not get involved and let the citizen languish in a foreign jail, or to get involved to the extent that a Canadian citizen can have the benefit of Canadian prison conditions. This is not just in the Khadr case. All of our prison-transfer treaties work this way."

Prof. Morgan agreed that parole comes into play in a big way when a Canadian citizen has received a life sentence in a foreign country. In some nations, a life sentence can genuinely mean spending one's entire life behind bars, he said. But, in Canada, it immediately translates into a life sentence with parole eligibility after 10 to 25 years.

Canadian prisoners are routinely transferred from countries like Mexico and Thailand, and most of their convictions involve drug trafficking.

What sets Mr. Khadr's case apart from most others is that his charges involve acts allegedly committed when he was a youth. In theory, this could raise the possibility that his parole conditions will come under the more lenient Youth Criminal Justice Act.

However, Mr. Greenspan predicted that, since Mr. Khadr was sentenced as an adult in the U.S., his parole conditions will reflect that reality. "At any rate, it may take longer to litigate that than to get him released," he remarked.

"There appears to be a compromise here that is aided by practical reality as opposed to principle," Mr. Greenspan said. "It creates some certainty for this young man and future, including a speedier return to the community than would be the case in America."