Although military commission prosecutors highlight the eight-year term specified in Omar Khadr’s plea agreement (now available online here), the agreement makes him eligible for transfer to Canadian custody after 1 year, at which point his actual release date will be determined by officials of that nation.

Inmate transfers to Canada from abroad are governed by a Canadian federal statute, the International Transfer of Offenders Act, which calls for treating foreign sentences exactly the same as those handed down by Canadian courts. That means an initial eligibility for “full parole” after serving one-third of the sentence. (A more limited part-time option, equivalent to U.S. work-release and called “day parole” in Canada, is possible six months before eligibility for full parole.) For Khadr one-third of eight years (96 months) is thirty-two months, or twenty months after his repatriation.

Several media accounts have suggested that Khadr could be given credit for the time he spent at Guantánamo before his trial, making him eligible for parole immediately upon repatriation, but these are mistaken. Canadian law is quite explicit that credit is only given for pre-trial confinement in the case of murder convictions resulting in life sentences.

When eligible for parole, Khadr will have to apply to the National Parole Board, an independent body set up specifically to decide applications from prisoners in federal custody. Another Canadian statute, the Corrections and Conditional Release Act sets forth the Board’s procedures and factors to be considered; while these do include the risk to the public, my sense from Canadian commentators is that the Board is unlikely to consider Khadr a serious threat. But, even in the event that he is denied parole (and he can reapply periodically), so long as he does not engage in serious misconduct while imprisoned, Canadian law provides for the “statutory release” of inmates after serving two-thirds of their sentence. So realistically, Khadr’s eight year term is no more than a 64 month sentence.

There is one remote additional 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. A noted Canadian legal scholar suggested to me that this latter rule may explain the eight-year term specified in the plea bargain; by awarding an “adult sentence” it would ensure that Khadr remained outside the authority of any Canadian juvenile authority.

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