E. B. Korcz Forrester said:
Unless I am mistaken, he was inside a compound that was his family's residence. I don't mean to sound condescending, and I figure you know this, but it's not unusual for an occupying military to encounter civilians in the occupied zone. I suggest to you that, for all we know (again, there is no accurate account that wasn't the product of coercion), the certain persons, which included family, in the same compound were unlawful enemy combatants staging an attack against the occupying military, but that Khadr was there because it is the family residence and he was caught in the "cross-fire," so to speak. If that was the case, that doesn't make Khadr an unlawful enemy-combatant.
Those statement of facts are from the U.S. military commission; in other words, they predicated on coerced confession and, thus, they are not a reliable account of the facts. That SCC said as much about the signed confession in its 2010 ruling.
As for not voiding the conviction, I have not looked into explanations for that; I have not pored over all of the proceedings and the documents from them. I am familiar with foreign judgment recognition for civil proceedings concluded abroad, but I have never heard of setting aside a conviction secured in a foreign court. Perhaps FJAG can enlighten me? I very much value his insight.
Okay but bear in mind I've been out of this business for eight years now.
There are laws in each Canadian jurisdiction for the reciprocal enforcement of civil (and to an extent Maritime) judgments. They details vary by province (and applies to many but not all US states) but essentially there are procedures whereby the foreign judgment can be brought before a local court where there are some limited rights to challenge the judgement. Once accepted by the local court the foreign judgement becomes the same as any local judgement for enforcement purposes.
There is also Hague convention that applies to family law cases as between a Canadian case and a foreign country case.
Criminal law is another matter.
We subscribe to various processes whereby extradition of a person charged with a crime to or from Canada can take place. Within Canada that is governed by the Extradition Act.
In addition the International Transfer of Offenders Act implements treaties that we have between various countries to allow convicted offenders to serve out their sentence in their home country. This would be how Khadr came here.
There are no laws that I'm aware of that allows any one country to alter a foreign courts findings. Each jurisdiction, be it a province or state or national court has it's own appeal processes which allow a higher level court to review a lower level trial or appeal courts finding based on the legal principles that apply (those processes and principles vary between jurisdictions).
To put it bluntly, Khadr was convicted before a Military Commission based on his guilty plea and an accompanying Stipulation of Fact which Khadr signed indicating that he knowingly and voluntarily admitted was true. The only way that can be altered is by the appropriate appeal processes within the United States (ultimately before the USSC)
What the Canadian courts could and did do was consider the fact that Khadr could and should serve a youth sentence because at the time he committed the offences he was a youth. The Military Commission did not have a mandate to make any distinction between a youth and an adult but the Alberta Court of Appeal (confirmed by the SCC) held that he was entitled to serve his imprisonment in a provincial jail where interim judicial release was easier to obtain. (In Canada a youthful offender is evaluated prior to trial as to whether he should be tried as a youth or as an adult.)
In 2015 Khadr brought an application for interim judicial release (ie bail) pending his appeal of his conviction before the US Court of Military Commission Review. The court granted his application and he was released on conditions:
Queen's bench decision here:
https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb261/2015abqb261.html?resultIndex=1
Alberta Court of Appeal decision here:
https://www.canlii.org/en/ab/abca/doc/2015/2015abca159/2015abca159.html?resultIndex=1
The Conservative government brought an appeal to the SCC to revoke bail but after the election the Liberal government pulled the appeal. I have no idea when the US CMCR will take place.
In summary, no Canadian court has the power to overturn the US MC decision and has not done so. At best they have evaluated that Khadr's appeal before the US CMCR is not frivolous. This is a low level test and in no way suggests that Khadr is innocent of the charges but merely says the court accepts that he has something arguable without evaluating how certain or uncertain the outcome will be.
Let me add a separate note here. You've been arguing forcefully that Khadr was a young child at the time without any will of his own and there is no proof that he did any of the things that he was found guilty of except by way of coerced evidence and that therefore he is deserving of both an apology and a large payout. To put it politely, most of the people on this thread differ completely with your opinion and are not about to have their minds changed by you.
While I'm not so naive as to think that there aren't some accused out there who plead guilty when they feel that they are not guilty (often because they think they have a technical defence and not because they are lily-white innocents) in order to make a deal with an overworked court system, I personally don't see that here. As I posted before, he "Knowingly and voluntarily" signed a Stipulation of Fact (see here:
http://media.miamiherald.com/smedia/2010/10/26/10/stip.source.prod_affiliate.56.pdf)when he had a herd of lawyers advising him and when he was no longer being subjected to any of the coercive treatment he received back in 2002-4. For me that seals the issue. To argue that he only admitted to these facts in order to get out of Gitmo and back to Canada is disingenuous at best.
:cheers:
