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Canada cannot bring home Abousfian Abdelrazik, a Canadian citizen stranded in Khartoum, because of his inclusion on a United Nations list of individuals with possible ties to al-Qaeda, a government lawyer told an Ottawa court Tuesday.

It was the government's first public explanation for its refusal to repatriate Mr. Abdelrazik, who has been charged with no crime.

The Canadian's lawyers have repeatedly claimed that Ottawa can repatriate Mr. Abdelrazik at any time, and that his detention in Sudan came at Ottawa's request. The UN list itself contains examples of individuals who were returned home even though they were never delisted.

Government lawyer Anne Turley's argument that Canada cannot bring Mr. Abdelrazik home seemed to rest on the premise that not only does inclusion on the UN watch list preclude Canada from transiting Mr. Abdelrazik through a third country on the way to Canada, but also from flying through a third country's airspace, a contention with which Mr. Abdelrazik's lawyers disagree.

Ms. Turley added that because the UN listing is not an action by the government of Canada, it is not amenable to Charter review.

The government lawyer made the argument during a court hearing in Ottawa on Tuesday. Mr. Abdelrazik's lawyers are trying to force the government to pay advanced costs for his representation, a rarely ordered provision that even Mr. Abdelrazik's lawyer, Paul Champ, admitted is reserved for exceptional cases. Mr. Abdelrazik has no access to assets with which to pay his Canadian legal team.

However, Mr. Champ told Madam Justice Anne Mactavish that Mr. Abdelrazik's case is so exceptional that it warrants the unusual step, and that the government, by its failure to act, will effectively condemn Mr. Abdelrazik to “de facto exile in a country where his health and safety are at risk.”

Ms. Turley countered that Mr. Abdelrazik's lawyers had not exhausted all other options before asking for something the Supreme Court has previously described as a last resort. Indeed, Ms. Turley said, Mr. Abdelrazik's lawyers had not tried to ask for an exemption under the UN regulations, something Canada did before it began providing Mr. Abdelrazik with a $100 monthly stipend.

“Even if there's a difference of opinion and they don't believe it's right, they should be applying for an exemption before they come to this court,” Ms. Turley said.

Although the Canadian government has given Mr. Abdelrazik “safe haven” in its Khartoum embassy, apparently accepting he is in some danger in Sudan, it claims it cannot repatriate him, unlike various convicted felons who have been flown home at taxpayer expense.

However, Tuesday's claim by government lawyers that the 1267 list – named for the UN Security Council resolution, originally co-sponsored by Canada, that created it – prevents anyone listed from flying over or transiting any country to return home is at odds with reality.

Several “listed” persons are known to have been transited to other countries to get home, sometimes at government expense. For instance, Abdelghani Mzoudi, a Moroccan first listed in 2003, was tried on terrorism-related charges in Hamburg. After his acquittal by a German court, he was deported and flown across several European countries to Morocco in June of 2005, according to the UN's current 1267 list. He remains on the 1267 list but is at home.

More than 400 people, some of them dead, remain on the list. They range from al-Qaeda fugitive leader Osama bin Laden, who faces multiple criminal charges in several countries, to relative unknowns who have been tried, to others, such as Mr. Abdelrazik, who have never been charged with anything. He is the only living Canadian on the list and was added only days before he was released from a Sudanese prison in 2006.

It is relatively easy to get on the list; all it takes is an allegation, not necessarily supported by any evidence, from one of the more than 180 UN member states.

“It can fairly be described as Kafkaesque,” Jameel Jaffer, director of the American Civil Liberties Union National Security Program, has said. “Once you are on one of these lists, it is virtually impossible to get yourself off.”

During Tuesday's hearing in Ottawa, Mr. Abdelrazik's lawyers sought to imply that the government, by not responding to an allegation that Mr. Abdelrazik had been imprisoned in Sudan at Canada's request, had effectively conceded that fact.

However, Ms. Turley said the government was doing no such thing. Ottawa did not offer an affidavit to the court disputing those allegations, she said, because the government did not have to; the onus in the case is on the applicant to prove why advance costs should be ordered.

Mr. Abdelrazik's lawyers also sought Tuesday to compel the government to allow solicitor-client faxes sent to the Canadian embassy in Sudan to be delivered to Mr. Abdelrazik.

The government is opposing the request, saying that embassy officials will be in an untenable position if they are forced to deliver legal documents to a person who is accusing them of mistreatment. There are other means by which lawyers in Canada can correspond with their client in Sudan, such as use of a bonded courier, government lawyers said.

It is not known when Justice Mactavish will issue her ruling. However, a decision is expected in the next few weeks.