Khadr v. Bowden Institution (Warden) et al., (2015) 590 A.R. 359 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday April 24, 2015
• Citations: (2015), 590 A.R. 359 (QB);2015 ABQB 261

Khadr v. Bowden Institution (Warden) (2015), 590 A.R. 359 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.060

Omar Ahmed Khadr (applicant) v. Dave Pelham, Warden of Bowden Institution and Her Majesty the Queen (respondents)

(150056836X1; 2015 ABQB 261)

Indexed As: Khadr v. Bowden Institution (Warden) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

April 24, 2015.

Summary:

Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006, and received a sentence of eight years. He was transferred to Canada pursuant to the International Transfer of Offenders Act, and placed in the custody of the Correctional Service of Canada. Khadr had waived his rights to appeal or collaterally attack the conviction or sentence. He applied for bail pending his appeal before the Court of Military Commission Review. The application was brought by way of habeas corpus, or under s. 24 of the Charter. There was unchallenged expert evidence that his appeal was not barred by his waiver of appeal rights and had a strong probability of success. It was also argued that if bail was not granted, the appeal would be rendered nugatory. The respondents argued that: (1) the Court should decline to exercise its jurisdiction in habeas corpus because granting bail would constitute a breach of Canada's international treaty obligation to continue the enforcement of Khadr's sentence and was barred by the International Transfer of Offenders Act (ITOA); and (2) Khadr had not established a Charter right to bail pending appeal.

The Alberta Court of Queen's Bench granted the application. The right to seek bail pending appeal was a principle of fundamental justice. When an applicant's liberty was at stake, as in this case, the right to seek bail pending appeal was guaranteed under s. 7 of the Charter. Neither the ITOA nor the Treaty Between Canada and the United States of America on the Execution of Penal Sentences barred the application. The Court adopted and applied the test under s. 679(3) of the Criminal Code. The parties were to return on the agreed date to address the terms of release.

Civil Rights - Topic 646.1

Liberty - Limitations on - Bail and interim release - [See Civil Rights - Topic 3504 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 3504 ].

Civil Rights - Topic 3504

Detention and imprisonment - Right to habeas corpus - Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006, and was serving his U.S. sentence in Canada - Section 13 of the International Transfer of Offenders Act provided that the sentence was continued "in accordance with the law of Canada" - Khadr applied for bail pending his appeal before the Court of Military Commission Review - He submitted that he had the right to apply for bail under "laws of Canada" relating to habeas corpus where there was no statutory right to do so; i.e., that the right to habeas corpus was constitutionalized under s. 10(c) of the Charter - The respondents submitted that bail pending appeal was not a Charter right - The Alberta Court of Queen's Bench held that, assuming that s. 10 was inapplicable in an appeal context, the right to seek bail pending appeal was a principle of fundamental justice - When an applicant's liberty was at stake, as in this case, the right to seek bail pending appeal was guaranteed under s. 7 of the Charter - See paragraphs 7 to 28.

Civil Rights - Topic 3621

Detention and imprisonment - Bail and interim release - General - [See Civil Rights - Topic 3504 ].

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006 (MCA), and was serving his U.S. sentence in Canada, pursuant to the International Transfer of Offenders Act - He applied for bail pending his appeal before the Court of Military Commission Review - The application was brought by way of habeas corpus, or under s. 24 of the Charter - The Alberta Court of Queen's Bench granted bail - The right to seek bail pending appeal was guaranteed under s. 7 of the Charter - An appropriate test was found by adopting and applying s. 679(3) of the Criminal Code - (1) The appeal was not frivolous - The merits of the appeal related to the non-retroactivity of the MCA and the question of whether the subject offences constituted international war crimes at the time they were committed - The expert opinions, unchallenged in this application, were that Khadr's position on the appeal was "correct in law" - (2) Khadr undertook to surrender himself into custody in accordance with the terms of any order for release issued by the Court - (3) Khadr's detention was not necessary in the public interest - "This is a circumstance where balancing a strong appeal and the public confidence in the administration of justice favour the same result. ... [Khadr] has a strong basis for an appeal, and the risk to public safety is not such that it is in the public's best interest that he remain in pre-appeal detention in a manner that could render his appeal irrelevant. ... [T]hat last factor ' ... is not itself automatically decisive  ...' but ' ... is still a weighty factor counted on the whole.' That shifts the balance in favour of judicial interim release." - See paragraphs 85 to 101.

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006, and was serving his U.S. sentence in Canada, pursuant to the International Transfer of Offenders Act - He applied for bail pending his appeal before the Court of Military Commission Review - The application was brought by way of habeas corpus - The respondents argued that the Court should decline to exercise its jurisdiction in habeas corpus because granting bail pending appeal would constitute a breach of Canada's international treaty obligation to continue the enforcement of Khadr's sentence - The Alberta Court of Queen's Bench disagreed - "It is significant that the Treaty does not explicitly preclude a post-transfer appeal in the United States. If the parties had desired to do this, they could have used explicit language, like that found in Article V regarding proceedings in the Receiving State ... . Only the Receiving State is denied 'jurisdiction over any proceedings, regardless of their form' to set aside or vary conviction or sentence. This suggests that the Sending State retains a broad jurisdiction over any proceedings in any form brought for this purpose. ... The United States as Sending State retains jurisdiction over proceedings intended to challenge, set aside, or otherwise modify the Applicant's conviction and sentence, whether in the form of appeals or otherwise." - See paragraph 50.

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006, and was serving his U.S. sentence in Canada, pursuant to s. 13 of the International Transfer of Offenders Act (ITOA) - He applied for bail pending his appeal before the Court of Military Commission Review - The application was brought by way of habeas corpus - The respondents argued that the Court should decline to exercise its jurisdiction in habeas corpus because granting bail pending appeal was barred by the ITOA - The Alberta Court of Queen's Bench concluded that the Charter guaranteed the opportunity to seek bail pending appeal as a principle of fundamental justice, and that the ITOA was not clearly inconsistent with that right - "The ITOA permits two different and equally plausible interpretations: 1. that an application for bail pending appeal is not permitted in Canada because it is incidental to an appeal, which is not permitted; or 2. that an application for bail pending appeal relates to release which is an aspect of continued enforcement of a sentence and therefore subject to Canadian law. Given this ambiguity, the interpretation that accords with Charter principles is preferred. I conclude that the ITOA, so interpreted, does not prevent the Applicant from seeking bail pending appeal in this Court." - See paragraphs 72 and 73.

Treaties - Topic 2002

Construction - Particular treaties - Khadr pleaded guilty to offences under the U.S. Military Commissions Act of 2006, and was serving his U.S. sentence in Canada, pursuant to s. 13 of the International Transfer of Offenders Act (ITOA) - Khadr applied for bail pending his appeal before the Court of Military Commission Review - The respondents submitted that Canada's obligations under the Treaty Between Canada and the United States of America on the Execution of Penal Sentences barred the application - The Alberta Court of Queen's Bench interpreted the Treaty in a manner analogous to statutes - "In interpreting the Treaty, I have regard to the text and context of the Treaty, and the subsequent actions of American and Canadian authorities. The question of whether the Treaty precludes a post-transfer American appeal is not directly in issue in this application, but the question of whether it precludes a Canadian application for bail pending appeal is, and in my view, these questions are related. The American appeal provides the factual context for the Canadian application. Further, the Treaty's treatment of both the appeal and the application is similar: neither proceeding is specifically allowed; neither is specifically prohibited." - The Court was assisted by the impact of Charter values as an interpretative tool - In the result, the Court concluded that the ITOA did not prevent Khadr from seeking bail pending appeal - See paragraphs 43 to 45, 48 to 74.

Cases Noticed:

R. v. Hicks (1981), 129 D.L.R.(3d) 146; 63 C.C.C.(2d) 547 (Alta. C.A.), consd. [para. 9].

R. v. P.C. (2014), 325 O.A.C. 189; 121 O.R.(3d) 401; 2014 ONCA 577, refd to. [para. 13].

R. v. Hinds (1983), 147 D.L.R.(3d) 730; 4 C.C.C.(3d) 322 (B.C.S.C.), refd to. [para. 14].

R. v. Muise (1984), 16 C.C.C.(3d) 285; 13 W.C.B. 136 (Ont. H.C.), refd to. [para. 14].

Glowczeski v. Canada (Minister of National Defence) et al., [1989] 3 F.C. 281; 27 F.T.R. 112 (T.D.), refd to. [para. 14].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 109 D.L.R.(4th) 97; 86 C.C.C.(3d) 32 (C.A.), consd. [para. 14].

R. v. Phillion, [2003] O.J. No. 3422 (Sup. Ct.), refd to. [para. 14].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 17].

R. v. Gingras (1982), 4 C.A.C.M. 225; 70 C.C.C.(2d) 27 (Ct. Martial App. Ct.), refd to. [para. 19].

R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26; 63 D.L.R.(4th) 289 (C.A.), refd to. [para. 20].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81; 102 D.L.R.(4th) 456, refd to. [para. 20].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 23].

R. v. Anderson (F.), [2014] 2 S.C.R. 166; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 23].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81; 119 D.L.R.(4th) 253, refd to. [para. 43].

Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649; 401 N.R. 341; 482 A.R. 1; 490 W.A.C. 1; 2010 SCC 19, refd to. [para. 44].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 45].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 46].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 46].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 47].

R. v. Rodgers (D.) - see R. v. Jackpine (R.).

Divito v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 3 S.C.R. 157; 448 N.R. 71; 2013 SCC 47, refd to. [para. 52].

Khadr v. Edmonton Institution (Warden) et al. (2014), 577 A.R. 62; 613 W.A.C. 62; 2014 ABCA 225, refd to. [para. 64].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 75].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 76].

Hicks v. United States of America (2015), CMCR 13-004, refd to. [para. 79].

R. v. Richard (R.), [1996] 3 S.C.R. 525; 203 N.R. 8; 182 N.B.R.(2d) 161; 463 A.P.R. 161; 140 D.L.R.(4th) 248, refd to. [para. 81].

R. v. Gingras (J.G.) (2012), 330 B.C.A.C. 102; 562 W.A.C. 102; 2012 BCCA 467, appld. [para. 94].

R. v. Rhyason (B.P.) (2006), 384 A.R. 146; 367 W.A.C. 146; 2006 ABCA 120, refd to. [para. 95].

R. v. Rahman (A.) (2013), 334 N.S.R.(2d) 77; 1059 A.P.R. 77; 2013 NSCA 100, refd to. [para. 96].

R. v. Rahman (A.) (2013), 336 N.S.R.(2d) 91; 1063 A.P.R. 91; 2013 NSCA 93, refd to. [para. 96].

R. v. Will (J.B.E.) (2013), 405 Sask.R. 270; 563 W.A.C. 270; 2013 SKCA 4, refd to. [para. 96].

R. v. Hogg (J.L.) (2013), 335 Nfld. & P.E.I.R. 227; 1040 A.P.R. 227; 2013 PECA 4, refd to. [para. 96].

R. v. Alcantara (J.R.) et al. (2014), 577 A.R. 381; 613 W.A.C. 381; 2014 ABCA 255, refd to. [para. 96].

R. v. Knapczyk (A.P.) - see R. v. Alcantara (J.R.) et al.

R. v. Donszelmann (A.) (2014), 580 A.R. 153; 620 W.A.C. 153; 2014 ABCA 258, refd to. [para. 96].

R. v. K.D.L., [2014] A.R. Uned. 179; 2014 ABCA 248, refd to. [para. 96].

R. v. Siggelkow (E.M.) (2014), 588 A.R. 359; 626 W.A.C. 359; 2014 ABCA 450, refd to. [para. 97].

R. v. MacPherson (W.) (2012), 536 A.R. 85; 559 W.A.C. 85; 2012 ABCA 246, refd to. [para. 101].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(c) [para. 12], sect. 7 [para. 28].

Convention on the Law of Treaties, Can. T.S. 1980, No. 37, art. 31 [para. 43].

International Transfer of Offenders Act, S.C. 2004, c. 21, sect. 2 [para. 36]; sect. 3 [para. 35]; sect. 5(1) [para. 37]; sect. 13, sect. 29(1) [para. 38]; sect. 30(1) [para. 39].

Treaty Between Canada and the United States of America on the Execution of Penal Sentences, art. II(e) [para. 31]; art. IV(1), art. V [para. 34].

Vienna Convention - see Convention on the Law of Treaties.

Authors and Works Noticed:

Glazier, David W., A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr, Loyola Law School Legal Studies Paper No. 2010-37 (August 31, 2010), generally [para. 90].

Plachta, Michal, Transfer of Prisoners under International Instruments and Domestic Legislation: A Comparative Study (1993), pp. 423 [para. 53]; 426 to 427 [para. 54].

Solis, Gary D., The Law of Armed Conflict: International Humanitarian Law in War (2010), generally [para. 89].

United Nations, Office on Drugs and Crime, Handbook on the International Transfer of Sentenced Persons, p. 52 [para. 71].

Counsel:

Nathan J. Whitling and Dennis Edney, Q.C. (Beresh Aloneissi O'Neill Hurley O'Keeffe Millsap), for the applicant;

Bruce Hughson and Cameron Regehr, for the respondents.

This bail application was heard on March 24 and 25, 2015, before Ross, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Edmonton, Alberta, on April 24, 2015.