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Canadian Omar Khadr is shown in a 2010 courtroom sketch at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba. (Janet Hamlin/The Canadian Press/Janet Hamlin/The Canadian Press)
Canadian Omar Khadr is shown in a 2010 courtroom sketch at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba. (Janet Hamlin/The Canadian Press/Janet Hamlin/The Canadian Press)

Appeal of Khadr ruling sets off another legal battle in long-running case Add to ...

The Harper government has filed another last-minute appeal in a bid to avoid being forced to ask the United States for the return of Omar Khadr from Guantanamo Bay.

Last week, Mr. Justice Russell Zinn of the Federal Court of Canada gave the government seven days to come up with a list of ways to help protect Mr. Khadr's rights. Instead, the government waited the full seven days before Justice Minister Rob Nicholson announced an appeal.

The appeal marks the latest in a series of legal battles that has gone up to the Supreme Court of Canada, then started over for a second round in the Federal Court of Canada.

The courts have ruled that Mr. Khadr's rights as a Canadian citizen are being violated, but the Supreme Court shied away from ordering the government to ask for him to be repatriated.

Finding that Ottawa has been ineffective in ensuring Mr. Khadr's rights, Judge Zinn hinted in his ruling last week that he was prepared to order the government to seek his return from the U.S. prison at Guantanamo Bay - unless it comes up with other ways to safeguard those rights.

It's not clear yet how long the appeal will take. Mr. Khadr's Canadian lawyer, Nathan Whitling, argued that the government has already failed to live up to its duty to reply to Judge Zinn's order. "And in the meantime, they're in contempt of court," Mr. Whitling said.

With Mr. Khadr's trial before a U.S. military tribunal slated to start on Aug. 10, there's little time left before the issue becomes academic.

Now 23, Mr. Khadr was captured in Afghanistan when he was 15, and is accused of throwing a grenade that killed a U.S. soldier in a firefight between Taliban and American forces.

Prime Minister Stephen Harper has refused to ask the United States to return Mr. Khadr, the last Westerner left in Guantanamo Bay.

Even if Ottawa were to ask the U.S. government to send Mr. Khadr home, it's not clear what effect it would have.

Toronto lawyer Lorne Waldman, who represented the Canadian Bar Association in a previous round of the case before the Supreme Court of Canada, said some believe the United States might be willing to accept a Canadian intervention so that it could get rid of a messy case.

"The analysis of those people who want the government to seek repatriation is that the Obama administration would be glad to repatriate Omar Khadr as a way out of dealing with this very problematic case where there's all these issues related to torture, et cetera, that they really don't want to deal with," Mr. Waldman said.

The Supreme Court ruled in January that the Canadian government had breached Mr. Khadr's rights by taking part in his interrogations at Guantanamo Bay - officials from CSIS and the Foreign Affairs Department questioned him in 2004, knowing that he had been subjected to sleep deprivation.

But the Supreme Court left it up to Mr. Harper's government to decide how it would fix the breach of Mr. Khadr's rights. Ottawa later sent a diplomatic note to the United States requesting that evidence gathered by Canadian interrogators not be used against Mr. Khadr, but it was ignored.

Mr. Khadr's lawyers went to court again, arguing that his rights were still being violated, and the government had to take steps to fix it. Judge Zinn agreed, and told the government to come up with a list of ways to do just that, either by asking for repatriation, or some other means.

In a statement yesterday, the Justice Minister suggested the Federal Court had intruded on the federal government's jurisdiction in the conduct of foreign policy. "This case raises important issues concerning the Crown prerogative over foreign affairs," Mr. Nicholson said.

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