Dave Glazier on Khadr’s Sentence

I have bumped Dave’s comment to the main page, because it’s worth a read — and not just because it supports my claim that Khadr will serve no more than two years in a Canadian prison…

I have now heard back from the Canadian attorney quoted by the New York Times and after working through all the applicable statutes in detail, we conclude that the basic rules applicable to Khadr are that he should be eligible for parole after serving 1/3 of his total sentence (32 months) or 20 months after repatriation, and even if not paroled, should be eligible for “statutory release” after 2/3 of his sentence (64 months) or 52 months after repatriation.

The only Canadian rule providing for credit for total time in custody is only applicable to life sentences and thus does not apply to Khadr.

There is one remote possibility — if Khadr’s conviction for “murder in violation of the law of war” was held to be the direct equivalent of Canada’s “first degree murder,” then the fact that Khadr only received an 8 year term for this offence would be treated as a “youth sentence” under Canadian law, and youthful offenders can be awarded an early release by a juvenile court on the recommendation of the appropriate provincial official.  But a killing in the flow of a battle seems extremely unlikely to qualify as first degree murder, and Canadian law provides that a sentence in excess of seven years for the equivalent of second degree murder is to be treated as an adult sentence, placing Khadr outside the reach of Canadian juvenile authorities.  The Canadian professor speculates that the government may thus have recommended the eight year sentence specifically to ensure this outcome (and it seems a bit of an odd term otherwise).

He also told me that the generic experience with parole in Canada is that most offenders receive parole after serving about 1/2 of their sentence, but his opinion was (good news for Kevin’s prediction) that Khadr would likely be promptly paroled.

Several commentors talk about the possibility of Canadian Supreme Court intervention.  I would just note that the plea agreement, like that of Hicks which was previously made public, specificly proscribes any direct or collateral challenge to the conviction, sentence, or treatment in U.S. custody, and the Canadian law on inmate transfers requires that the foreign judgment be final, barring any challenge after repatriation.  Granted Canadian judges might find some pretense to review this case given its unique nature and the particular abuses Khadr was subject to.  But the letter of the law, and concerns that doing so might hamper the ability of Canada to get citizens back from other repressive countries, both argue against doing so, particularly if it is anticipated that the National Parole Board will take favorable action on his first application.  (I should be clear that this final paragraph reflects only my personal opinion and has not been discussed with anyone else).