Khadr v. Edmonton Institution (Warden) et al., (2014) 577 A.R. 62

• Judge: Fraser, C.J.A., Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 30, 2014
• Citations: (2014), 577 A.R. 62;2014 ABCA 225

Khadr v. Edmonton Institution (2014), 577 A.R. 62; 613 W.A.C. 62 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.037

Omar Ahmed Khadr (appellant) v. Kelly Hartle, Warden of the Edmonton Institution, Her Majesty the Queen in Right of Alberta and the Attorney General of Canada (respondents)

(1303-0267-AC; 2014 ABCA 225)

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

Alberta Court of Appeal

Fraser, C.J.A., Watson and Bielby, JJ.A.

July 8, 2014.

Summary:

Khadr, the Canadian citizen found fighting in Afghanistan in 2002 at 15 years of age, was detained for eight years by the United States government before he pled guilty to five offences and was sentenced to eight years' imprisonment (global/unitary sentence). In 2012, the United States transferred Khadr, then 26 years old, to Canada to serve the remainder of his sentence under the International Transfer of Offenders Act (ITOA). After being placed in a federal penitentiary, Khadr applied for habeas corpus on the basis that s. 20(a)(ii) of the ITOA mandated his placement in a provincial correctional facility for adults.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 573 A.R. 16; 2013 ABQB 611, denied the application, finding that Khadr had been properly placed in a federal penitentiary under s. 20(b)(iii) of the ITOA. Khadr appealed.

The Alberta Court of Appeal allowed the appeal and granted the application for habeas corpus. The chambers judge erred in law in finding that the eight-year sentence should be construed as five separate eight-year sentences running concurrently. For the purpose of its continued enforcement under the ITOA, Khadr's sentence remained an eight-year unitary sentence. Section 18 of the ITOA did not apply to Khadr's sentence so as to deem him to be serving an adult sentence. Khadr's sentence could have been a valid youth sentence under the Youth Criminal Justice Act, but could not have been an adult one. The sentence to be enforced in Canada was, by operation of s. 20(a)(ii) of the ITOA, to be served in a provincial correctional facility for adults.

Criminal Law - Topic 8702.1

Young offenders - General principles - Interpretation of legislation - [See ninth Prisons - Topic 1026 ].

Habeas Corpus - Topic 1000

Grounds for issue of writ - Detention - Requirement of unlawful detention - Khadr, the Canadian citizen found fighting in Afghanistan in 2002 at 15 years of age, was detained for eight years by the United States government before he pled guilty to five offences - He was sentenced to eight years' imprisonment (a global/unitary sentence) - In 2012, the United States transferred Khadr to Canada to serve the remainder of his sentence under Canada's International Transfer of Offenders Act (ITOA) - After being placed in a federal penitentiary, Khadr applied for habeas corpus on the basis that s. 20(a)(ii) of the ITOA mandated his placement in a provincial correctional facility for adults - The chambers judge denied the application, finding that Khadr had been properly placed in a federal penitentiary under s. 20(b)(iii) - The Alberta Court of Appeal concluded that the chambers judge erred in law - The crucial point in dispute was whether the eight year sentence was enforceable in accordance with the laws of Canada - The issue involved the interpretation and interrelationship of several sections in the ITOA along with other statutory provisions in the Criminal Code and the Youth Criminal Justice Act - The Court concluded that "[i]n summary, the eight-year sentence imposed on Khadr in the United States could only have been available as a youth sentence under Canadian law, and not an adult one, had the offences been committed in Canada." - See paragraph 4.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Convening Authority imposed an eight-year unitary sentence on the offender, representing his total cumulative culpability for all five offences to which he pled guilty - The Alberta Court of Appeal stated that "[t]he courts in this country and the Canadian government must respect the substance of the sentence imposed in the foreign state, here the United States, along with its right to determine that sentence. ... Under the ITOA [International Transfer of Offenders Act], no one is entitled to second-guess that decision or the sentence, much less convert the eight-year inclusive sentence into something other than what it is." - See paragraph 5.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Alberta Court of Appeal discussed the statutory framework between Canada and the United States for the transfer of prisoners between them - That framework included the Treaty Between Canada and the United States of America on the Execution of Penal Sentences, Can. T.S. 1978 No. 12, and the Canadian legislation implementing the Treaty, namely, the 1978 Transfer of Offenders Act, replaced in 2004 with the International Transfer of Offenders Act - See paragraphs 24 to 38.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - This appeal raised issues linked to the interpretation of the Treaty Between Canada and the United States of America on the Execution of Penal Sentences, the International Transfer of Offenders Act (ITOA), the Criminal Code and the Youth Criminal Justice Act (YCJA) - The Alberta Court of Appeal stated that "all the relevant legislation in this case should be read as a harmonious whole with the central guide emanating from the ITOA. In particular, the ITOA provisions must be read together with the Treaty and the broader statutory scheme governing the transfer, sentencing, detention and parole of Canadian offenders established under the Criminal Code, the YCJA, the Corrections and Conditional Release Act ... and the Prisons and Reformatories Act ... There is no value in reading a statute with a counterintuitive judicial gloss." - See paragraph 48.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The United States imposed an eight-year unitary sentence on the offender, representing his total cumulative culpability for all five offences to which he pled guilty - In denying the offender's application for habeas corpus on transfer to Canada, the chambers judge premised the decision on the sentence being, under Canadian law, five concurrent sentences of eight years for each offence - The Alberta Court of Appeal held that the judge erred in law - Under the Treaty Between Canada and the United States of America on the Execution of Penal Sentences, and the International Transfer of Offenders Act (ITOA), the sentence imposed was to be enforced as if that sentence had been imposed by a Canadian court unless adaptation of that sentence was required by law - Therefore, the starting point was what sentence was actually imposed in the United States - The eight year sentence represented the offender's total culpability for all five offences - The ITOA mandated continued enforcement of a unitary sentence of a foreign state - "Therefore, what is to be enforced is the sentence imposed in the United States, not some imaginary sentence imposed by a Canadian court. This reflects Canada's decision to choose the continued enforcement method, not the conversion method, of recognizing sentences imposed by foreign states." - See paragraphs 54 to 62.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The United States imposed an eight-year unitary sentence on the offender, representing his total cumulative culpability for all five offences to which he pled guilty - In denying the offender's application for habeas corpus on transfer to Canada, the chambers judge premised the decision on the sentence being, under Canadian law, five concurrent sentences of eight years for each offence - The Alberta Court of Appeal held that judge erred in law and "compounded his error by asking whether the eight-year sentence would be applied in Canada as consecutive or concurrent sentences. ... This amounts to an assertion that a unitary sentence is incompatible, by its nature , with Canadian law. However, this is not correct. Not only is a unitary sentence not incompatible with the laws of Canada, but contrary to the position taken before the chambers judge, Canadian law does allow for the possibility of a sentencing judge legally imposing, for multiple offences, one sentence for young persons and adults." - A global or unitary sentence was not incompatible with the laws of Canada - See paragraphs 63 to 75.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The United States transferred Khadr to Canada to serve the remainder of his eight-year unitary sentence for five offences to which he pled guilty - He was placed in a federal penitentiary - Khadr's application for habeas corpus was denied - The chambers judge premised the decision on the sentence being, under Canadian law, five concurrent sentences of eight years for each of the offences - The Alberta Court of Appeal concluded that Canadian law did not mandate the adaptation of the eight-year unitary sentence to five eight-year concurrent sentences - "First, there is nothing in the ITOA [International Transfer of Offenders Act] or Treaty [Between Canada and the United States of America on the Execution of Penal Sentences] or elsewhere in Canadian law that mandates that a unitary foreign sentence for multiple offences be 'adapted' to concurrent sentences of the same length for each offence. ... Second, to equate Khadr's sentence to five 8-year concurrent sentences would contravene s. 5(1) of the ITOA. ... [W]hile adaptation of a foreign sentence can reduce that sentence, it cannot increase it. ... Third, there is no legal basis for the suggestion that s. 719 of the Criminal Code requires that the eight-year sentence imposed by the Convening Authority be construed as five 8-year concurrent sentences." - See paragraphs 76 to 89.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Alberta Court of Appeal stated that "even if an offender agreed to accept a transfer knowing in advance that the Minister had taken a position under the ITOA [International Transfer of Offenders Act] with which the offender did not agree, there is nothing in the law that precludes that offender's agreeing to the transfer and later challenging state action on return to Canada. Estoppel has no application in circumstances such as these. An offender is not required to choose between returning to Canada by consenting to a transfer and enforcing his or her rights under the Treaty [Between Canada and the United States of America on the Execution of Penal Sentences] and the ITOA. Consent to a transfer does not equal surrender of rights. ... Under the rule of law, all Canadians are entitled to challenge the state's alleged improper interpretation of Canadian law in the courts in this country." - See paragraph 92.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Alberta Court of Appeal stated that the International Transfer of Offenders Act (ITOA) "must be interpreted as a whole and in the context not only of the Treaty [Between Canada and the United States of America on the Execution of Penal Sentences] but also other legislation incorporated into the ITOA by its terms." - See paragraph 95.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Alberta Court of Appeal considered the historical context of the provisions in the International Transfer of Offenders Act (ITOA) dealing with young persons - As with the Youth Justice Criminal Act (YJCA) the ITOA distinguished between offenders who were 12 to 13 years old at the time of committing the offence and those 14 to 17 years old - The Court stated that "it is useful to situate the current legislation in its historical context and consider the provisions dealing with those in these age groups in the YCJA and its predecessor legislation, the Young Offenders Act ... . This historical context is relevant in interpreting s. 18 as well as other sections dealing with young persons in the ITOA, including ss. 19 and 20." - See paragraphs 97 to 104.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Alberta Court of Appeal determined the interpretive approach to s. 18 of the International Transfer of Offenders Act (ITOA), the adult sentence deeming provision - "Section 18 is to be narrowly construed. First, ... a young person is presumptively entitled to a youth sentence given the long-standing legal principle that young persons are presumed to have diminished moral culpability ... Second, a deeming provision ought to be narrowly construed where, as here, penal legislation is involved which directly impacts on the 'residual liberty' of an individual" - See paragraphs 105 to 110 - In the result, the Court determined that s. 18 did not apply to the eight-year sentence that the Convening Authority imposed on the appellant/offender so as to deem him to be serving an adult sentence - See paragraphs 111 to 119 - The Court concluded that under the Youth Criminal Justice Act, the eight-year sentence could have been a youth sentence but could not have been an adult one - Accordingly, s. 20(a) of the ITOA applied, rather than s. 20(b) - Since the offender was over 20 years old at the time of the transfer, he fell under s. 20(a)(ii) of the ITOA and therefore must be placed in a provincial correctional facility for adults - See paragraphs 120 to 123.

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - [See ninth Prisons - Topic 1026 ].

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See ninth Prisons - Topic 1026 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See third Prisons - Topic 1026 ].

Statutes - Topic 9403

Treaty, convention, and protocol implementation legislation - General principles - Interpretation - [See second Prisons - Topic 1026 ].

Treaties - Topic 2002

Construction - Particular treaties - [See second Prisons - Topic 1026 ].

Cases Noticed:

Hamdan v. Rumsfeld (2006), 126 S. Ct. 2749, refd to. [para. 8].

Boumediene v. Bush (2008), 128 S. Ct. 2229, refd to. [para. 9].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 10].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 10].

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. 27].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 45].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 45].

Laasch et al. v. Turenne (2012), 522 A.R. 168; 544 W.A.C. 168; 2012 ABCA 32, refd to. [para. 45].

Barlot (John) Architect Ltd. v. 413481 Alberta Ltd. (2010), 487 A.R. 105; 495 W.A.C. 105; 2010 ABCA 51, refd to. [para. 45].

Syncrude Canada Ltd. v. Human Rights and Citizenship Commission (Alta.) et al. (2008), 432 A.R. 333; 424 W.A.C. 333; 2008 ABCA 217, refd to. [para. 45].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 46].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 46].

R. v. Mabior (C.L.), [2012] 2 S.C.R. 584; 434 N.R. 341; 284 Man.R.(2d) 114; 555 W.A.C. 114; 2012 SCC 47, refd to. [para. 47].

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels-les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 48].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 48].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 50].

Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., [2012] 2 S.C.R. 345; 432 N.R. 134; 2012 SCC 37, refd to. [para. 51].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 51].

Richer et al. v. Canada (Attorney General) (2014), 438 Sask.R. 70; 608 W.A.C. 70; 2014 SKCA 51, refd to. [para. 51].

Sinobert v. Canada (Attorney General) - see Richer et al. v. Canada (Attorney General).

Hamdan v. United States of America (2012), 696 F. 3d 1238 (D.C. Cir.), refd to. [para. 61].

R. v. Munyaneza, 2014 QCCA 906, refd to. [para. 61, footnote 7].

Bahlul, Al v. United States of America (2013), 2013 WL 297726 (D.C. Cir.), refd to. [para. 61, footnote 7].

R. v. Abrosimo (B.E.) (2007), 245 B.C.A.C. 180; 405 W.A.C. 180; 225 C.C.C.(3d) 253; 2007 BCCA 406, refd to. [para. 65].

R. v. May (T.G.) (2012), 533 A.R. 182; 557 W.A.C. 182; 2012 ABCA 213, refd to. [para. 65].

R. v. Hanna (D.D.) (2013), 544 A.R. 135; 567 W.A.C. 135; 2013 ABCA 134, refd to. [para. 67].

R. v. T.A.P. (2014), 316 O.A.C. 296; 2014 ONCA 141, refd to. [para. 67].

R. v. A.G.E., 2012 CarswellOnt 15520; 2012 ONCJ 750, refd to. [para. 70].

R. v. J.F., [2012] B.C.T.C. Uned. 780; 2012 CarswellBC 1582; 2012 BCSC 780, refd to. [para. 70].

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. 106].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 107].

R. v. Verrette, [1978] 2 S.C.R. 838; 21 N.R. 571, refd to. [para. 107].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719 [para. 81].

International Transfer of Offenders Act, S.C. 2004, c. 21, sect. 3 [para. 26]; sect. 5(1) [para. 34]; sect. 13 [para. 32]; sect. 14 [para. 35]; sect. 18 [para. 105]; sect. 20(a)(ii), sect. 20(b)(iii) [para. 120]; sect. 29(1) [para. 98].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 42(15) [para. 69]; generally [para. 99].

Authors and Works Noticed:

Bala, Nicholas and Anand, Sanjeev, Youth Criminal Justice Law (3rd Ed. 2012), pp. 660 to 663, 673 [para. 106].

Côté, Pierre-Andre, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 415 to 429 [para. 46].

Harris, Peter J., and Bloomenfeld, Miriam, Youth Criminal Justice Act Manual (2014) (Looseleaf), p. 4-193 [para. 71].

Plachta, Michael, Human Rights Aspects of the Prisoner Transfer in a Comparative Perspective (1993), 53 La. L. Rev. 1043, pp. 1079 to 1081 [para. 33, footnote 1].

Ruby, Clayton C., Chan, Gerald, J., and Hasan, Nader R., Sentencing (8th. Ed. 2012), pp. 541, 542 [para. 39]; 780 [para. 106].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 87 [para. 108]; 256 to 297 [para. 46]; 412 to 414 [para. 47].

Counsel:

D. Edney, Q.C., and N.J. Whitling, for the appellant;

B.F. Hughson and K.G. Fernando, for the respondents, Kelly Hartle, Warden of the Edmonton Institution and Attorney General of Canada;

D.C. Mueller, for the respondent, Her Majesty the Queen in Right of Alberta.

This appeal was heard on April 30, 2014, before Fraser, C.J.A., Watson and Bielby, JJ.A., of the Alberta Court of Appeal. The Court delivered the following judgment and reasons for judgment, filed at Edmonton, Alberta, on July 8, 2014.