Omar Khadr has asked an Edmonton judge to consider his remaining three-and-a-half years of a U.S.-imposed sentence as complete, arguing he has already served the time in custody and on bail.
The eight-year sentence, imposed by an American military commission, would have ended in October 2018 if Khadr had remained in custody.
However, in May 2015, he was released on bail with conditions, pending an appeal of a military commission conviction for war crimes. That appeal process has been stalled multiple times by reviews, and currently has no end in sight.
Khadr’s lawyer, Nate Whitling, argued Tuesday that the Alberta youth court judge has the authority to modify the eight-year sentence.
Whitling said his client has spent more than eight years in custody and on bail, and that under the treaty that brought Khadr to Canada, issues such as early release are determined under the “law of the receiving state.”
“So why should he have to serve three years and five months on conditional release? It doesn't make any practical sense,” Whitling said.
“We think it should end now.”
Khadr was sentenced to eight years by a U.S. military commission for alleged acts he committed in Afghanistan when he was 15 years old. The Supreme Court of Canada ordered it be served as a youth sentence.
His lawyers must convince the judge that the Alberta court has jurisdiction under the treaty which saw Khadr transferred from Guantanamo Bay to Canada.
If the judge finds Alberta does not have that jurisdiction, Khadr’s application for release asks the judge to declare the condition unconstitutional.
Federal and provincial prosecutors opposed ending the sentence, suggesting it would amount to fundamentally changing a sentence handed down by a foreign court.
“Canada has an obligation to respect the sentencing jurisdiction,” federal prosecutor Bruce Hughson told the court.
Khadr spent years in U.S. detention at Guantanamo Bay after he was accused of tossing a grenade that killed special forces soldier Christopher Speer at a militant compound in Afghanistan in 2001.
U.S. lawyer Sam Morison said the Canadian court and government don’t want to confront Khadr’s team’s “very strong” arguments. When asked about U.S. pressure on Canada to maintain the sentence, Whitling said he thought the concern was blown out of proportion.
Since his release on bail, Khadr has lived in Edmonton and Red Deer without incident.
Whitling told the judge, “He’s been a model prisoner, when he was a prisoner. He’s been a model citizen since he was released.”
The prosecutors agreed they don’t see a need for Khadr to finish the sentence behind bars, and suggested the remaining time could be served under conditional supervision.
The court has eased some of his initial bail conditions, but several remain in place.
Those conditions include not having access to a Canadian passport, a ban on unsupervised communication with his sister who lives in Georgia, and a requirement to notify his bail supervisor before leaving Alberta.
A decision on Khadr’s request will be made in late March.
With files from CTV Edmonton’s Bill Fortier and The Canadian Press
