Khadr v Edmonton Institution, 2013 ABQB 611

Court of Queen ’ s Bench of Alberta Citation: Khadr v Edmonton Institution, 2013 ABQB 611 Date: 20131018 Docket: 1303 11220 Registry: Edmonton Between: Omar Ahmed Khadr Applicant - and - Kelly Hartle, Warden of the Edmonton Institution and Her Majesty the Queen in Right of Alberta and the Attorney General of Canada Respondents _ ________________________________________ ______________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _________________________________________ ______________ I. Introduction [ 1 ] In reviewing these Reasons, it is important to understand what this Decision is about and what it is not about . [ 2 ] This Decision, simply and purely, is about statutory

interpretation. It is about the proper

interpretation of legislation to determine whether an offender, transferred from another country to Canada, will serve the remainder of the foreign sentence in a provincial correctional facility for adults or a federal penitentiary.

[ 3 ] This Decision is not about a number of matters. It is not about Mr. Khadr’s background, other than that he is a Canadian citizen. It is not about his age when the offences were committed or since, except only insofar as specifically relevant to the legislation being interpreted. It is not about any of the circumstances pre-dating his transfer to Canada to complete his sentence - specifically, it is not about the appropriateness of his pre-sentence detention or the sentence Mr. Khadr received in the United States.

It is not about any discretion exercised by Canada or the Correctional Services of Canada (CSC), post the decision to transfer – no discretion was exercised in any matter at that time, including placement, which was merely an application of the legislation. It is not about this Court exercising any discretion, as no discretion will be exercised; only statutory

interpretation will be provided. It is not about whether it would be better or worse for Mr. Khadr to serve his sentence in a provincial or federal institution. Indeed, it is not about any determination of the level of punishment, whether lessening or increasing it, that, post his transfer, has been or will be imposed on Mr. Khadr, such punishment merely flowing from his sentence and the legislation that determines his placement. In other words, placement does not involve increasing or decreasing the seriousness of punishment - the sentence is the punishment. [ 4 ] Thus, this Decision is simply and purely about statutory

interpretation as to his placement to serve his sentence. The Federal Court in Cooper v Canada (Attorney General), [2001] F.C.J. No. 1822, at para 22 , aff’d 2002 FCA 374 , at para. 8 , acknowledged (in respect of parole eligibility) that in these kinds of decisions “there is no place for discretion…; it is simply a matter of applying the law." II. Background Facts [ 5 ] Omar Ahmed Khadr, a Canadian citizen, applied for habeas corpus , alleging that his imprisonment in a federal institution is unlawful.

At issue is which penal system, federal or provincial, does Canadian legislation direct that he serve the remainder of his sentence. His application sought to have the Respondent, Ms. Hartle, Warden of the Edmonton Institution, release him immediately on the basis that he was unlawfully detained. [ 6 ] Mr.

Khadr, a former detainee at the US Naval Base, Guantanamo Bay, Cuba (GTMO), was sentenced to eight years confinement following his guilty plea under a Plea Agreement (filed with the materials) to five serious offences: murder, attempted murder, conspiracy, participation in the activities of a terrorist group, and spying for the enemy, all committed when he was 15 years old.

Under the Plea Agreement, he agreed to plead guilty and in return the United States Convening Authority for Military Commissions (the Convening Authority) agreed to approve no sentence greater than eight years and to take action to facilitate Mr. Khadr’s transfer to Canada, after one year, to serve the remainder of his sentence. [ 7 ] Mr. Khadr was transferred to Canada in accordance with the Treaty Between Canada and the United States of America on the Execution of Penal Sentences (the Treaty), and the related Canadian legislation, the International Transfer of Offenders Act, SC 2004, c 21 (ITOA).

Under s. 20 of the ITOA a Canadian who is now an adult, but who was between 12 and 17 at the time of the offence, and whose sentence, imposed by a foreign entity, could have been a youth sentence under the Youth Criminal Justice Act , SC 2002, c 1 (YCJA), if the offence had been committed in Canada, is to be detained in a provincial correctional facility for adults. It further provides that if the sentence could have been an adult sentence, then the offender is to be detained in a penitentiary.

Section 21 of the ITOA provides that if the sentence is greater than two years, the sentence is to be served in a penitentiary. III. Executive

Summary of Positions and Decision [ 8 ] Mr. Khadr argued that an adult sentence of eight years could not have been imposed in Canada for these serious offences, given the mandatory minimum sentences under the Criminal Code . Therefore, he argued, the only reasonable inference is that the eight year sentence could only be for a youth sentence and he should have been detained in a provincial institution. [ 9 ] The Respondent, Canada, representing itself and Ms. Hartle, agreed that Mr. Khadr is serving a youth sentence for murder, but also an adult sentence for the four other offences because s. 18 (

b) of the ITOA provides that a Canadian offender is deemed to be serving an adult sentence if their sentence is longer than the maximum youth sentence under the YCJA .

Further, Canada argued that under s. 743.5 of the Criminal Code , a person destined to serve both a sentence under the YCJA and the Criminal Code is deemed to be serving a sentence under the Criminal Code – in this case a penitentiary sentence. [ 10 ] Alberta, also named as a Respondent, took no position other than to file the affidavit of Leonard Goueffic, which set out how a transfer inmate would fit within the provincial correctional system, and what facilities and resources would be available to him.

I note in passing, as argued by Canada, that under s. 9 of the ITOA , if the transferee was transferred to a provincial institution, the transferring province’s consent to the transfer would have been required. [ 11 ] The application for habeas corpus is denied. The result will be that Mr. Khadr will remain in the Federal penitentiary system. If I had granted the application, I would have then, in accordance with the positions of Counsel, ordered Mr. Khadr transferred to a Provincial correctional facility for adults to complete his sentence. IV. Facts A.

Stipulated facts [ 12 ] Under the Plea Agreement, the parties entered into a Stipulation of Fact (filed with the materials). I provide the following brief

summary of those agreed facts for context and historical information, noting that these facts have limited relevance to the technical

interpretation of the legislation governing the appropriate placement of this transferred offender.

[ 13 ] Mr. Khadr admitted he was not a member of regular armed forces, including a militia or volunteer corps. He further stipulated to a number of facts about the al Queda organization generally and to the involvement of his family in al Queda . He stipulated to visiting al Queda training camps with his father and to receiving al Queda training. He further admitted to assisting an al Queda cell in planting IEDs and to spying on US forces in Afghanistan. [ 14 ] Mr.

Khadr also admitted to the charged murder and attempted murder counts that occurred during a battle at a compound in Ayub Kheil in June 2002, when he was 15. He was injured by shrapnel during bombing of the compound. Once US forces believed the firefight to be over, they began clearing out the compound. Mr. Khadr stipulated to the fact that he hid behind a crumbling wall and intentionally armed and threw a grenade at the soldiers. The grenade fatally injured one soldier and injured another. Another soldier responded and shot Mr. Khadr twice in the torso. B. The Next Ten Years [ 15 ] In October 2002, Mr.

Khadr was transferred to GTMO. In February 2007, he was charged with: a. murder in violation of the law of war; b. attempted murder in violation of the law of war; c. providing material support for terrorism; d. conspiracy; and e. spying. [ 16 ] Three and a half years later, on October 13, 2010, he agreed to plead guilty in exchange for assurances that the Convening Authority would not approve a sentence greater than eight years and that it would take all appropriate steps to facilitate his transfer to Canada after one year.

The terms of the Plea Agreement provided: As consideration for my offer to plead guilty set forth above: a. The Convening Authority will not approve a sentence of confinement of greater than eight (8) years. [ 17 ] On October 25, 2010, eight years after his initial detention, Mr. Khadr pleaded guilty to the charges before a Military Commission, composed of seven military officers and presided over by a Military Judge. Mr. Khadr's guilty plea was accepted and a sentencing hearing was held. While Mr.

Khadr was advised that no more than eight years confinement would be approved by the Convening Authority, the members of the Commission were not told of the Plea Agreement for an eight years maximum sentence. On October 31, 2010, the Commission sentenced Mr. Khadr to a global sentence of 40 years confinement, unallocated among the five charges, with no indication of concurrent or consecutive sentences among the charges. [ 18 ] On May 26, 2010 the Convening Authority accepted the guilty pleas and sentenced Mr. Khadr to a global sentence of eight years. [ 19 ] Gary D. Solis, an expert for Mr.

Khadr, swore in his affidavit in this matter that neither the American Uniform Code of Military Justice (UCMJ), nor Guantanamo’s Manual for Military Commissions , 2010 (Manual) employ concurrent or consecutive sentencing. I also note that the Manual prohibited granting any credit for pre-trial detention. [ 20 ] As noted, the Convening Authority accepted only eight of the 40 years of confinement. The “Action” of the Convening Authority reads: In the military commission of Omar Khadr, only so much of the sentence as provides for eight years confinement is approved, and will be executed.

The accused will be confined in such place as may be prescribed by the Commander, Joint Task Force Guantanamo Bay, Cuba, or superior authority. [ 21 ] Mr. Khadr was informed of the Minister’s decision by a letter dated September 28, 2012 from the Minister’s designate, Ms. Lee Redpath, Acting Director, Institutional Reintegration Operations Division, Offender Programs and Reintegration Branch, CSC. The letter set out how Mr. Khadr’s sentence would be administered under Canadian law and set out the Canadian equivalent offences.

It noted that he would be deemed to have been sentenced by a Canadian court to a “sentence of imprisonment of eight years commencing October 31, 2010 and ending October 30, 2018” and that his statutory release would be calculated in accordance with s. 26 of the ITOA . [ 22 ] The Canadian equivalent offences, as must be identified by s. 15 of the ITOA , were described in the September 28, 2012 letter as: - First Degree Murder, contrary to s. 231(6.01) of the Criminal Code ; - Attempted Murder, contrary to ss. 239 and 81(1) (

a) or (

b) of the Criminal Code; - Participation in Activities of a Terrorist Group, contrary to ss. 83.18 and 83.2 of the Criminal Code ; and - Spying for the enemy, contrary to s. 78 of the National Defence Act , RSC 1985, c N-5. [ 23 ] The September 28, 2012 letter went on to provide: Pursuant to the [ ITOA ] and the [CCRA], upon transfer to Canada, you will be deemed to have been sentenced by a court of competent

jurisdiction in Canada to a sentence of imprisonment of eight (8) years …(Emphasis added) Later it stated:

Section 29 of the [ ITOA ] specifies that subject to other provisions of the [ITOA], a Canadian offender transferred to Canada is subject to the [CCRA], the Prisons and Reformatories Act , [RSC 1985, c P-20] and the [ YCJA ] as if the offender had been convicted and the sentence imposed by a court in Canada. And still later: Under

Section 4 of the [ ITOA ], the finding of guilt and sentence imposed in the United States will, upon transfer be deemed to be a finding of guilt and sentence imposed by a court of competent jurisdiction in Canada. [ 24 ] Almost two years after the Convening Authority’s sentence, on September 29, 2012, Mr. Khadr was transferred to Canada under the ITOA to serve the remainder of his sentence.

According to the CSC reports, it is administering the sentence as an eight year sentence. [ 25 ] The documents evidencing the acceptance of his transfer are in a Memorandum of the Minister of Public Safety’s decision dated September 28, 2012 and two earlier Diplomatic Notes (one from each country) dated, October 23, 2010. [1] Canada, relying on the Memorandum of the Minister’s decision, noted in its argument, that the Minister’s decision to transfer considered public safety, and concluded that Mr.

Khadr’s sentence “could be appropriately administered in Canada by the CSC and the National Parole Board and agreed to approve his transfer”. The Diplomatic Notes, in identical language, each recognized that Mr. Khadr would be “subject to Canadian law pertaining to detention and in Mr. Khadr being able to apply to the National Parole Board (an independent tribunal operation autonomously from the Government of Canada) for parole following the completion of one-third of his sentence”.

However, none of this is relevant to the determining the appropriate placement. [ 26 ] On September 28, 2012, Canada agreed to accept Mr.

Khadr’s transfer, and preparatory to his transfer, the Canadian authorities (the Minister of Public Safety, by statute, but designated to the Director, Institutional Reintegration Operations, as permitted by s. 6(2) of the ITOA ), applied the ITOA by: 1. establishing dual criminality; 2. determining whether the sentence from the United States was enforceable without being adapted; and 3. determining placement. [ 27 ] Dual criminality means that the crime for which the offender was sentenced in another country must also be a crime in Canada.

Under s. 4 of the ITOA , the “Canadian offender’s conduct must constitute a criminal offence if it had occurred in Canada at the time the Minister of Public receives the request for transfer “, and, s. 4(2) of the ITOA further provides that, “it is not relevant whether the conduct … is named, defined or characterized by the foreign entity [making the transfer] in the same way as it is in Canada”. [ 28 ] In the result, Mr.

Khadr was transferred to Canada on September 29, 2012 and placed in federal penitentiary, first the Millhaven Institution and later (May 2013 and continuing now) the Edmonton Institution. [ 29 ] Mr. Khadr, through his lawyer, demanded that the Warden of the Edmonton Institution release him, relying on s. 20 of the ITOA . The demand was refused and in the result he sought habeas corpus to release him and an Order for placement in an adult provincial correctional facility. [ 30 ] Therefore, the issue in this case is whether Mr.

Khadr’s placement in the federal penitentiary system is consistent with the proper statutory

interpretation of the provisions of the applicable statutes. Such issues in the Court are questions of law for which the standard is correctness: Grant v Canada , at paras. 27 -8: Questions of statutory

interpretation … are generally considered questions of law, for which the Court will undertake its own analysis of the question, without showing deference to the decision maker’s reasoning process. V. The Legislation [ 31 ] Relevant provisions of the Criminal Code , the YCJA , and the ITOA are attached as an Appendix. [ 32 ]

Section 18 is a deeming provision defining when a sentence imposed on a youth offender by a foreign entity will be treated as an adult sentence. [ 33 ]

Section 20 is also a “deeming” type provision. It describes whether a transferred offender will serve their sentence in a federal or provincial institution, based on the theoretical nature of what the sentence could have been if the offender had been sentenced in Canada. Under s. 20(

a) an offender will be detained in a provincial correctional facility for adults if the sentence imposed by the foreign entity could have been a youth sentence under the YCJA .

Section 20(

b) provides, on the other hand, that an offender will be detained in a penitentiary if the sentence imposed by the foreign entity could have been an adult sentence and their sentence is at least two years . [ 34 ]

Section 21 of the ITOA provides that, subject to s. 20, an offender sentenced to imprisonment for two years or more will be detained in a penitentiary. Mr. Khadr’s sentence was more than two years; it was eight years. Therefore, unless s. 20 directs otherwise, Mr. Khadr is to be detained in a penitentiary

VI. Issues [35] The following issues of statutory

interpretation are raised: If sentenced in Canada, how would this sentence be applied: as consecutive or concurrent sentences? Are the sentences adult or youth sentences for the purposes of s. 20 of the ITOA? Should Mr. Khadr be placed in a federal penitentiary or in an adult provincial facility? VII.

Summary of Arguments Presented [36] Mr. Khadr argued that the sentence was a global sentence of eight years and there was no concurrent sentence for eachoffence. His Counsel pointed out that the Stipulation of Fact set out the offences to which Mr. Khadr pleaded guilty, and the ConveningAuthority determined that the fit and proper sentence was eight years. He argued that, given the seriousness of the murder charge, theconviction for murder must have been a youth sentence; otherwise, an adult would have received a mandatory life sentence. Mr.

Khadrfurther argued that none of the offences would have led to an eight year sentence for an adult, given the nature of the seriousness of theoffences under the Stipulation of Facts. [37] Canada acknowledged that there was a global sentence of eight years, but argued that, for the purposes of Canadian law, theproper determination was that there were five concurrent sentences – one of eight years for each of the five offences. Canada concededthat the sentence of eight years for murder, standing alone, must have been a youth sentence, but that the other four sentences are adultsentences.

Canada argued that since there is a presumption of concurrent sentences, when an offender has been sentenced to a globalsentence, without individual sentences being identified for each of the offences, it was appropriate to apply the global sentence to eachconviction concurrently. Canada argued that in doing so, it is “enforcing the sentence pursuant to the laws of Canada”. [38] Moreover, Canada argued (paras. 33 - 5 of the Canada Brief) that the effect of Mr. Khadr’s arguments was that he wantedCanada to re-sentence him (called “sentence conversion”), which Canada cannot do under s. 13 of the ITOA.

Further, there is no otherlegislative authority to do so. Canada argued that CSC cannot amend his sentence, but can only enforce it (it may adapt a sentence to themaximum sentence available under Canadian law if it the sentence imposed by the foreign entity exceeds the Canadian maximumsentence for the offence). VIII. Analysis A. If sentenced in Canada, how would this sentence be applied: as consecutive orconcurrent sentences? [39] It is clear that Mr. Khadr pleaded guilty to five offences and was sentenced to an eight- year global period of confinement. Hewas transferred to Canada to serve that sentence.

It is also true that neither the Convening Authority in the United States, nor the transferprocess, apportioned the eight year global sentence, nor, obviously, was there any indication whether the sentence was concurrent orconsecutive. [40] Canadian law provides that if sentences are not expressed to be consecutive (where that is available in law), they are deemed to be concurrent: s. 719(1) of the Criminal Code; C. Ruby, Sentencing, 3rd ed. (Canada: LexisNexis, 2012) p 541, para 14.2.

Thesentence for each conviction, unless specifically delayed for some lawful provision and purpose, commences on the date it/they areimposed: s. 719(1) of the Criminal Code – thus, in that sense alone, these sentences are concurrent.

Sentences should be concurrentwhere there is “one continuous criminal act” or a “single criminal enterprise” (R v Oldham, (NS CA), 11 NSR (2d)312 (NSCA) at para 13; R v McCrea, 2008 BCCA 227 at paras 6-8), but may be consecutive if there is a break in a continuous act ortransaction, or where there the timing or character of the offences are unrelated and disparate. [41] An eight-year global sentence, without recognition of specific periods, may be compared to the Canadian concept of“totality”.

Under the totality principle, sentences must be “just and appropriate” under the circumstances and our courts have ensuredthat the total of a consecutive sentence must be commensurate with the gravity of the offences and the moral blameworthiness of theoffender: R v Leasak, 2007 ABCA 38, at para 14. [42] The Convening Authority did not specify concurrent or consecutive because it did not sentence on each count.

In the absenceof any indication of a “totality” sentence, I conclude that this global sentence, if imposed in Canada, would have been five sentences to beserved concurrently, at least one of which was a sentence for eight years. B. Are the sentences adult or youth sentences for the purposes of the ITOA? [43] The next step is determining if the sentences are youth or adult sentences. Sections 18 of the ITOA deals with this question.

Iaccept that the eight-year sentence for murder, standing alone, must be a youth sentence, as in Canada there is a minimum sentence oflife for an adult convicted of murder (s. 235 of the Criminal Code). The maximum sentence for a youth convicted of murder is ten years(s. 42(2)(

q) of YCJA). On the other offences, however, a youth sentence greater than three years is not available. [44] The parties disagree with respect to these four less serious offences. Canada asserted that Mr. Khadr was sentenced to adult

sentences for the four lesser offences, while Mr. Khadr asserted that the global sentence was a youth sentence. [ 45 ] Under s. 18 of the ITOA an offender will be deemed to be serving an adult sentence if he was 14 to 17 years old at the time the offence was committed and his sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence. Mr. Khadr was 15 at the time the five offences were committed and 26 years at the time of transfer.

The maximum youth sentence is ten years for murder, three years for attempted murder and two years for the other offences. If each of the sentences is eight years, as argued by Canada, the latter four sentences exceed the youth sentence maximum, and therefore under s. 18 (

b) of the ITOA , eight years for each of the other four offences is more than the maximum for a youth sentence if committed in Canada and he would be deemed to be serving an adult sentence. [ 46 ] Mr. Khadr argued that the sentences must be youth sentences because the seriousness of the alleged charges and stipulated facts suggest that an adult sentence would have been much higher than eight years. [ 47 ] The reality is that both these assertions are a fiction, since the Convening Authority did not sentence on each count and did not, in fact, allocate any particular sentence to any particular offence.

I agree with Canada that Mr. Khadr’s argument essentially sought re-sentencing, but the same can be said of Canada’s argument, since the Convening Authority did not sentence Mr. Khadr to five eight-year concurrent sentences, but to a global sentence of eight years. [ 48 ] The result is that Mr. Khadr was not given adult or youth sentences for those offences, and the Court must, if possible, apply s. 18 to determine the characterization of the eight year global sentence.

Section 18 is a “deeming” provision. A “deeming provision” is akin to a legal fiction, adopted to avoid having to adduce evidence to prove a particular fact ( Townsend v Kroppmanns , 2004 SCC 10 at para 12 ; Dreco Energy Services Ltd. v Wenzel Downhole , 2006 ABCA 39 at para 24 ).

A deeming provision could solve the problem where there is no way to determine how the sentences were apportioned. [ 49 ] As at least one of the sentences, or the global sentence, is eight years, s. 18 can reasonably be applied to deem that this sentence was a youth sentence because the murder charge, standing alone, would have attracted a minimum life sentence as an adult sentence. Therefore, even though the Convening Authority did not actually impose a youth sentence, the Court can deem it to be a youth sentence. [ 50 ] But what about the other offences?

Canada, through the CSC determined that, in the absence of any specification of the sentence for the five individual offences and sentences transferred, they should all be treated as five concurrent sentences of eight years. [ 51 ] Each of these sentences is longer than the maximum youth sentence and therefore under s. 18 must be deemed to be adult sentences. C. Should Mr. Khadr be placed in a federal penitentiary or in an adult provincial facility? [ 52 ] Sections 20 and 21 of the ITOA set out placement. Under s. 20(

a) of the ITOA, an offender will be detained in a provincial correctional facility for adults if the sentence imposed by the foreign entity could have been a youth sentence under the YCJA , but s. 20(

b) also provides that an offender will be detained in a penitentiary if their sentence is at least two years and if the sentence imposed by the foreign entity could have been an adult sentence. Further, s. 21 provides that, subject to s. 20, a Canadian offender who was detained in a foreign entity and sentenced to imprisonment for two years or more will be detained in Canada in a penitentiary . [ 53 ] Mr. Khadr’s sentence could have been a single youth sentence and four adult sentences. However, Mr. Khadr obviously cannot be in both an adult provincial facility for adults and a penitentiary at the same time. Principles of statutory

interpretation provide that legislation should not be interpreted in a way that produces absurd results or results that are inconsistent with the purpose of the legislation: Alberta Union of Provincial Employees v Lethbridge Community College, 2004 SCC 28 at para 46 . Therefore the question is where is an offender sentenced to both youth and adult sentences to serve that sentence. [ 54 ] This analysis requires reading together the ITOA , ss. 92(4) and 76(1) (

c) of the YCJA and s. 743.5 of the Criminal Code . Under this analysis, Mr. Khadr was sentenced to one youth sentence under s. 42(2) (

q) of the YCJA for murder and four adult sentences of eight years for the other four offences. Under s. 743.5 where an offender is serving both youth and adult sentences, the disposition of the sentences are to be dealt with “as if it had been a sentence imposed under [the Criminal Code]”. Under ss. 76(1)(

c) and 92(4) of the YCJA, Mr. Khadr is to be placed in a federal penitentiary. [ 55 ] Thus, Mr. Khadr’s placement in a federal penitentiary is lawful and the habeas corpus application is denied. Once this determination is made, the sentences are then merged, pursuant to s. 139 of the CCRA into one sentence for future purposes of administering post sentencing administration. IX. Conclusion [ 56 ] As I have said throughout, by virtue of s. 13 of the ITOA this is the result that would follow, not only for any Canadian who offends outside Canada and is transferred to Canada, but also to those who are similarly sentenced within Canada. [ 57 ] The

interpretation by the CSC that Mr. Khadr should be placed in a penitentiary is the correct statutory

interpretation. Accordingly, the application for habeas corpus is dismissed. [ 58 ] The parties may speak to costs within 90 days, or any extension granted thereof prior to the 90 days.

Heard on the 23 rd day of September 2013. Dated at Edmonton, Alberta this 18 th day of October 2013. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Dennis Edney, QC and John Kingman Phillips for the Applicant Bruce Hughson and Kanchana Fernando for the Respondent, Kelly Hartle Doreen Mueller and Kim Palichuk for the Respondent, Her Majesty the Queen in Right of Alberta Appendix Criminal Code 743.1(1) Except where otherwise provided, a person who is sentenced to imprisonment for ... (

b) a term of two years or more, or (

c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more, shall be sentenced to imprisonment in a penitentiary. 743.5

(1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made ... the Young Offenders Act, ... or a youth sentence imposed under ... the Youth Criminal Justice Act , the remaining portion of the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.

(2) If a disposition is made under the Young Offenders Act, ... or a youth sentence is imposed on a person under ... the Youth Criminal Justice Act while the young person or adult is under sentence of imprisonment imposed under

an Act of Parliament other than the Youth Criminal Justice Act, the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.

( 3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of

section 139 of the Corrections and Conditional Release Act: (

a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and (

b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition. YCJA 76.

(1) Subject to subsections (2) and (9) [neither of which are relevant here] and sections 79 and 80 and despite anything else in this Act or any other Act of Parliament, when a young person who is subject to an adult sentence in respect of an offence is sentenced to a term of imprisonment for the offence, the youth justice court shall order that the young person serve any portion of the imprisonment in… … (

c) if the sentence is for two years or more, a penitentiary. 79. If a person who is serving all or a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) is sentenced to a term of imprisonment under

an Act of Parliament other than this Act, the remainder of the portion of the sentence being served in the youth custody facility shall be served in a … penitentiary, in accordance with

section 743.1 (rules respecting sentences of two or more years) of the Criminal Code . 80. If a person who has been serving a sentence of imprisonment under

an Act of Parliament other than this Act is sentenced to an adult sentence of imprisonment under this Act, the sentences shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with

section 743.1 (rules respecting sentences of two or more years) of the Criminal Code . 92(4) If a person is subject to more than one sentence, at least one of which is a youth sentence imposed under paragraph 42(2) (n), (o), (

q) or (

r) and at least one of which is a sentence referred to in either paragraph (

b) or (c), he or she shall serve, in a provincial correctional facility for adults or a penitentiary in accordance with

section 743.1 (rules respecting sentences of two or more years) of the Criminal Code , the following: (

a) the remainder of any youth sentence imposed under paragraph 42(2)(n), (o), (

q) or (r); (

b) an adult sentence to which an order under paragraph 76(1)(

b) or (c) (placement in adult facility) applies; and (

c) any sentence of imprisonment imposed otherwise than under this Act. ITOA 13. The enforcement of a Canadian offender's sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada. 18. A Canadian offender is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act if (

a) the Canadian offender was, at the time the offence was committed, from 14 to 17 years old; and (

b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence. 20. A Canadian offender who was from 12 to 17 years old at the time the offence was committed is to be detained (

a) if the sentence imposed in the foreign entity could, if the offence had been committed in Canada, have been a youth sentence within the meaning of the Youth Criminal Justice Act , (

i) in the case of an offender who was less than 20 years old at the time of their transfer, in a youth custody facility within the meaning of that Act, and (ii) in the case of an offender who was at least 20 years old at the time of their transfer, in a provincial correctional facility for adults; and (

b) if the sentence imposed in the foreign entity could, if the offence had been committed in Canada, have been an adult sentence within the meaning of that Act, (

i) in the case of an offender who was less than 18 years old at the time of their transfer, in a youth custody facility within the meaning of that Act, (ii) in the case of an offender who was at least 18 years old at the time of their transfer, in a provincial correctional facility for adults if

their sentence is less than two years, and (iii) in the case of an offender who was at least 18 years old at the time of their transfer, in a penitentiary if their sentence is at least two years. 21. Subject to

section 20, a Canadian offender who was detained in a foreign entity is to be detained in Canada in ... (

b) a penitentiary if they were sentenced to imprisonment for two years or more.