Erin Berney

2015-05-29 02:45:27 -0400

I happened to catch this program, and it only confirmed what I already thought — the CBC and The Toronto Star are entirely devoid of journalistic principles such that they no longer even bother pretending.

This fluff piece was so offensive, that I’m still sorting through my initial anger and can’t even prepare a logical response. I am still reeling over an Alberta Justice granting Khadr judicial interim release, pending his utterly frivolous appeal of the U.S. military court conviction premised upon his pleading guilty to war crimes. So, à la Gary Wood, I thought I’d do a little cutting and pasting of my own. The following is my comment to the May 7, 2015 Macleans article by John Geddes about Khadr’s judicial release:



“Bail isn’t mentioned anywhere in the [Canadian] International Transfer of Offenders Act or the Treaty Between Canada and the United States of America on the Execution of Penal Sentences. Article 4 of the Treaty provides that the “Receiving State shall have no jurisdiction over any proceedings, regardless of their form, intended to challenge, set aside, or otherwise modify convictions or sentences handed down in the Sending State.” The ITOA states that a transfer may not have the effect “of invalidating a guilty verdict rendered, or a sentence imposed, by a foreign entity. The verdict and the sentence, if any, are not subject to any appeal or other form of review in Canada.”

There is no constitutionally enshrined right to bail, only the right to a reasonable opportunity to seek bail pending appeal as an aspect of fundamental justice. Once convicted, however, there is no longer any presumption of innocence and the onus is on the offender to show cause for why he or she should be released.

With respect, Justices Ross and Bielby got it wrong. Their interpretation of both the Treaty and ITOA leads to illogical results inconsistent with the clear purposes behind their enactment and the intentions of the legislating bodies.

First, the U.S.-Canada agreement over Khadr’s transfer to Canada to serve out his criminal sentence was conditional upon there being no prospect of appeal, and on the mutual understanding that Canada has no jurisdiction over any proceedings intended to challenge, modify or in any way review his sentence. Yet the Justices’ consideration and evaluation of the competing factors in Khadr’s bail hearing necessarily involved a review of the original conviction expressly prohibited by the governing statute, especially on the third branch of the test for bail pending appeal.

An appeal does not deprive the original conviction and sentence of its legal effect. Simply determining that an appeal is not frivolous (the first branch, not a particularly onerous standard) does not necessarily lead to the conclusion that the appeal is more likely than not to succeed. This is the standard of proof an offender must meet in order to satisfy the third branch of the test, whether judicial interim release would bring the administration of justice into disrepute. Where the crimes are serious, for example involving murder, as in this case, the threshold is much higher.

As Justice Wakeling notes [in R v Jensen, 2014 ABCA 435, para 42]:

“Section 515(10) of the Criminal Code, the provision governing judicial interim release before trial, directs the court to consider the “apparent strength of the prosecutor’s case”. I see no reason why Parliament would consider this an important consideration only in a pre-trial bail application and not in a post-conviction bail application . No logical explanation for such disparate treatment is apparent to me. Given that the applicant no longer enjoys the benefit of the presumption of innocence and is presumed to be guilty, the merits of the appeal should be a consideration of greater significance post-conviction.”

In my view, judicial consideration of the “strength of the prosecutor’s case” and evaluation of the likelihood of success of the appeal is equivalent to a “review” of the conviction itself, which is itself expressly barred by clear and unambiguous provisions of the ITOA . Further, where, as in this case, the offender has pled guilty to the offences, even entertaining such a review brings the administration of justice into disrepute and undermines the fundamental principle of comity that informs the Canada-U.S. Treaty governing transfer of Canadian offenders.

The U.S. criminal justice system, and especially military courts, have essentially the same requirements for acceptance of guilty pleas as under section 606 of the Criminal Code of Canada. It’s called a “providency inquiry”. Khadr knew what he was doing when he pled guilty, but it obviously serves his interests (and the furthering of his $20,000,000 civil claim against the Canadian government) to now claim that he only did so under duress.

Finally, this is not a case where the governing law is antiquated and/or pre-dates the Charter-era, and the primary presumption of statutory interpretation is that the government does not make unconstitutional legislation. That ought to have been the starting point in this case.”



I urge people to actually read the law before weighing in with uninformed opinions. Having to keeping hearing the same kind of ignorant crap spewed by the pro-Khadr crowd, and knowing my own tax dollars have helped fund this latest insult to my intelligence, is even worse than listening to anti Bill C-51 “journalists” who likely haven’t even bothered to read the Bill before denouncing it.

Incidentally, for those who haven’t read it, Bill C-51 attempts to correct some of the problems with how sensitive information is shared between branches and divisions of the Canadian government and police organizations, as well as internationally, as a result of the Canadian inquiry into Maher Arar’s detention and rendition to Syria by the U.S. government.

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