OTTAWA - The courts should not force Canada to ask the United States to return Omar Khadr from Guantanamo Bay, federal lawyers argued Tuesday.
The federal government has filed an appeal of a Federal Court ruling that it seek the return of Khadr, 22, from the U.S. military prison in Cuba.
Justice Department lawyer Doreen Mueller told three Federal Appeals court justices that Canada has gone out of its way to help Khadr.
She recounted several visits Canadian officials paid to Khadr in Guantanamo over the years, as well as diplomatic letters Canada sent the United States advocating on Khadr's behalf.
"If there is an obligation ... surely all this Canada has done since 2002 satisfies this obligation," she said.
In April, Judge James O'Reilly ruled that the Conservative government's refusal to demand repatriation of Khadr offends fundamental justice. The judge ruled that the government must ask the United States "as soon as practicable" to send Khadr home.
Opposition parties have demanded that Khadr be brought home and tried in Canada, if necessary, in light of the court decision.
But Prime Minister Stephen Harper told Fox News this month that Canada won't be taking any Guantanamo Bay detainees.
Harper told the U.S. network that he is "not offering Canada as a safe haven for anyone that the United States considers to be a terrorist."
Without mentioning Khadr by name, the prime minister said there is a Canadian at Guantanamo who's charged and his government is waiting to see what the administration of U.S. President Barack Obama does in that particular case.
The charges against Khadr are before an American military commission, but the hearings are on hold pending a review of his case.
Prisoners from other western countries, including Britain and Australia, were sent home long ago. Khadr is thought to be the last westerner at Guantanamo.
The Federal Court justices grilled Mueller over what the harm is in asking the Obama administration to send Khadr home.
"Canada doesn't want to ask for this because Canada doesn't want to get a `yes' answer," Justice Karen Sharlow suggested.
Mueller replied it would interfere with the U.S. court case and would be tantamount to the courts dictating Canada's foreign affairs.
She also called the prospect of the Americans abandoning their court case against Khadr and returning him to Canada "the most remote of all possibilities."
"That's one one-millionth of possible outcomes," she said.
Navy Lt.-Cmdr. William Kuebler -- who was recently fired and then reinstated as Khadr's U.S. military lawyer -- scoffed at the government lawyer's claim.
"Frankly, I think the Bush administration would have honoured a request from the Canadian government to have Omar repatriated to Canada," he said outside court.
"I think in light of the stated policy of the Obama administration to whittle down the population of Guantanamo Bay and repatriate as many detainees as possible, that it's just absurd to think that if a request from Canada came in tomorrow that the Obama administration would not leap to take advantage of that."
Khadr, who was born in Toronto, was 15 when he was captured by American soldiers in Afghanistan in 2002. He allegedly tossed a grenade that killed a military medic.
While Khadr's plight has won him some symphony, his family has been widely criticized and called the "first family of terrorism."
His father was an alleged al-Qaida militant and financier who was killed by Pakistani forces in 2003. A brother, Abdullah Khadr, is being held in Canada on a U.S. extradition warrant, accused of supplying weapons to al-Qaida.
Another brother, Karim, was wounded and left a paraplegic in the gunfight that killed his father. He returned to Canada in 2004 for medical treatment and lives in Toronto.
Government lawyers were in court appealing the Khadr ruling days after Ottawa reversed its position on another Canadian jailed abroad.
The government said last week it would follow the Federal Court's order to let Abousfian Abdelrazik, a Montreal man jailed in Sudan, return to Canada.
