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Omar Khadr can move to provincial cell, court rules 0

Tony Blais

By Tony Blais, Edmonton Sun

A courtroom sketch shows defendant Omar Khadr, a native of Toronto, listening to testimony during his sentencing hearing at the Guantanamo Bay Naval Base in Cuba, in this sketch from October 26, 2010. (Janet Hamlin/Pool)

A courtroom sketch shows defendant Omar Khadr, a native of Toronto, listening to testimony during his sentencing hearing at the Guantanamo Bay Naval Base in Cuba, in this sketch from October 26, 2010. (Janet Hamlin/Pool)

EDMONTON — Alberta's highest court has ordered that former Guantanamo Bay detainee Omar Khadr be transferred from a federal penitentiary to a provincial jail.

In a decision issued Tuesday, the Court of Appeal of Alberta overruled a lower court judge who decided Khadr was rightly placed in a federal prison, and said he ought to have been put in a provincial facility for adults.

"In 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."

The three-judge panel also ruled the U.S. sentence was not incompatible with Canadian laws and should not have been adapted to conform to a punishment under Canadian law for an equivalent offence.

"Under the International Transfer of Offenders Act (ITOA), 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."

Edmonton defence lawyer Dennis Edney said he was "very pleased" with the ruling and expects his client — who is currently being held at the medium-security Bowden Institution — would also be.

"This is a long series of winning judgments against the hostile and intractable (Stephen) Harper government," said Edney.

"It is a government that would rather pander to its political base than apply the rule of law fairly to each and every Canadian citizen," said Edney, adding that Khadr's defence team will now be considering its next step.

Khadr, 27, appealed the Oct. 18 ruling by Judge John Rooke that he serve the rest of his sentence in a federal penitentiary.

During the April 30 appeal hearing, the panel grilled federal government lawyer Bruce Hughson as to how the Correctional Services of Canada determined that Khadr's sentence was an adult one versus the contention by Khadr's lawyers that it should be deemed a youth one.

Two of the appeal judges also took Hughson to task for Correctional Services deciding that the eight-year sentence Khadr was given for five offences, including murder, should be viewed as a concurrent sentence of eight years on each count as opposed to just one global eight-year term.

"What you are doing is completely distorting the U.S sentence," said Justice Jack Watson.

Steven Blaney, federal minister of public safety, said the federal government plans to appeal the ruling.

”We have vigorously defended against any attempt to lessen his punishment ... That is why the Government of Canada will appeal this decision and seek a stay to ensure that he stays in federal prison — where he belongs," Blaney said in a statement.

Khadr, originally from Toronto, pleaded guilty in the U.S. in 2010 to murder and four counts related to terrorism and spying.

The charges came from the role Khadr played in the 2002 killing of a U.S. special forces medic during a firefight in Afghanistan when he was 15.

He spent a decade at Guantanamo Bay before his trial.

- with files from Giuseppe Valiante

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