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Canada's courts have effectively handed the Harper government a win in its fight against Omar Khadr by refusing to take up the case on an urgent basis, his lawyer said Tuesday.

The refusal to hear the case immediately comes just weeks before Mr. Khadr's war-crimes trial resumes in Guantanamo Bay.

"We are extremely disappointed that the Federal Court of Appeal was unable to hear and determine this appeal in a timely way," said Nate Whitling, Khadr's Edmonton-based lawyer.

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"Essentially, this delay means that the appeal has been won before it has been heard."

In January, the Supreme Court of Canada concluded the government had violated Mr. Khadr's constitutional rights and ordered it to make amends.

In July, Mr. Justice Russel Zinn of Federal Court found the government had flouted the high court ruling, and gave it a week to come up with ways to fix the situation.

Judge Zinn also signalled his displeasure with the government's foot-dragging.

Ottawa opted to fight the ruling and won a stay of Judge Zinn's decision.

Mr. Khadr had wanted the appeal settled by the Federal Court of Appeal before his military-commission trial.

The 24-year-old Canadian citizen is charged by the Americans with murder in violation of the rules of war for allegedly throwing a hand grenade that killed a U.S. soldier in Afghanistan in 2002.

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The trial, which was abruptly halted on its first day in August after his Pentagon-appointed lawyer collapsed in court, is due to resume Oct. 18.

In his decision, Mr. Justice David Stratas of the Federal Court of Appeal said he had no choice but to deny Mr. Khadr's request to have the matter heard on an urgent basis.

He said that was because the court had twice turned down a similar request from Mr. Khadr.

"I am bound by these earlier refusals unless Mr. Khadr can demonstrate, through evidence of a significant new development, that there has been a marked change in circumstances," Judge Stratas wrote.

"Mr. Khadr has not shown this."

The collapse of Mr. Khadr's lawyer, Lieutenant-Colonel Jon Jackson, last month and the adjournment of the case until October to allow him to recover did not amount to a "marked" change in circumstance, Judge Stratas said.

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Mr. Khadr is the lone remaining westerner held at Guantanamo Bay and the first person to face a contested trial by military commission, a proceeding condemned by legal and human rights groups around the world.

He was 15 years old at the time of his alleged offences. He faces a life sentence if convicted.

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