TORONTO — Former Guantanamo Bay prisoner Omar Khadr is asking Alberta youth court to order his release and declare his eight-year sentence — imposed by a widely maligned military commission in the United States — to have expired.
In a separate application before Federal Court, Khadr is attempting to force national parole authorities to grant him a hearing at which he would argue for release.
The overriding idea, Khadr's Edmonton-based lawyer said in an interview Tuesday, is to ensure an end point to the eight-year sentence the commission imposed on him in 2010.
Had Khadr remained in custody, his sentence would have expired this past October. However, the clock stopped ticking when an Alberta judge freed him on bail in May 2015 pending his appeal of his military commission conviction for war crimes — a years-long process that still has no end in sight.
"The bail order does interrupt the ticking of the clock but practically speaking, the guy has served his sentence now," lawyer Nate Whitling said from Edmonton. "The youth court judge does have the authority to just simply terminate the sentence and say, 'It's now over'."
The Supreme Court of Canada has ruled the punishment handed Khadr for alleged acts committed in Afghanistan when he was 15 years old to be a youth sentence. His application, to be heard this month, asks a youth judge to release him under supervision for a single day, then declare his sentence served.
One hurdle Khadr must overcome is proving the Alberta Court of Queen's Bench has jurisdiction because the international treaty under which he was transferred to Canada from Gitmo could be interpreted as precluding such a review. If that view prevails, his application asks the judge to declare that part of the treaty unconstitutional.
In a separate application, Khadr wants Federal Court to order the Parole Board of Canada to grant him a hearing — something the board has refused to do on the basis that it only has jurisdiction over inmates in custody.
"As with everything in Omar's case, there's no precedent," Whitling said. "(But) we're confident that if he were to be given a parole hearing, he'd be an extremely strong candidate for full parole with minimal conditions. He's been out all this time under these conditions and under close supervision."
A Justice Department lawyer did not immediately respond to a request for comment.
Since his release on bail in 2015, Khadr has lived in Edmonton and Red Deer, Alta., without incident. While the courts have eased some of his initial bail conditions, several remain in place despite his efforts — most recently in December — to have them lifted.
Those conditions include withholding access to a Canadian passport, a ban on unsupervised communication with his sister Zaynab who lives in Georgia, and a requirement to notify his bail supervisor before leaving Alberta.
"He's got these conditions on him and essentially right now, they're going to be there indefinitely," Whitling said. "We would like to get Omar's clock ticking again. We want this sentence to actually start ticking, so it will expire."
Kate Porter, a prominent American psychologist who has worked extensively with Khadr over the years, has written in support of his applications — pointing out that the bail restrictions and never-ending sentence are psychologically harmful and akin to the situation Khadr faced at the U.S. naval prison.
Under their rules, the Americans could have detained Khadr indefinitely — even if the commission had acquitted him. Khadr has said he pleaded guilty to the war-crimes charges only as a way out of Guantanamo.
Khadr was sent to the notorious U.S. military facility in Cuba just months after he was captured as a badly wounded 15 year old in Afghanistan in July 2002. The U.S. accused him of throwing a grenade that killed an American soldier.
In 2010, the Supreme Court ruled Canada violated his rights while he was a U.S. captive, leading the government to pay him $10.5 million in compensation in July 2017.
