OTTAWA - The courts have once again concluded that the Harper government has not done enough to protect the constitutional rights of Toronto-born terrorism suspect Omar Khadr.
The Federal Court of Canada ruled Monday that the government has seven days to come up with a list of remedies to its breach of Khadr's constitutional rights.
The Canadian citizen -- the last Western national held at the much-maligned U.S. military prison in Guantanamo Bay, Cuba -- is entitled to "procedural fairness and natural justice."
Justice Russel Zinn ruled that Ottawa did not meet the standard set by the Supreme Court of Canada this past January when it ordered the federal government to right the wrongs it had brought on the 23-year-old accused of killing a U.S. medic in 2002 in Afghanistan.
The Pentagon has charged that the then-15-year-old Khadr tossed a grenade which killed the medic during a firefight between Taliban supporters and U.S. forces.
The top court had declared in January that Khadr's rights had been violated and it demanded the Harper government come up with a remedy.
The government sent a diplomatic note to Washington one month later asking that information Canadian officials obtained from Khadr during a 2003 visit to Guantanamo not be used in the prosecution against him.
Khadr's lawyers said that wasn't good enough and asked the Federal Court to review the government's response. They also criticized the government for ignoring their requests for a meeting to discuss the Supreme Court ruling, which stopped short of ordering the government to ask that Khadr be brought back to Canada.
Zinn concluded Monday that the diplomatic simply note wasn't remedy enough.
"I do not share the view that Canada, in its actions taken to date, has remedied the breach or that there are no other potential curative remedies available," said the ruling.
"It is clear on the record before the Court that the breach has not been cured."
Moreover, Zinn found that Washington simply ignored the request Canada made in the diplomatic note.
"The U.S. merely responded that the prosecution of Mr. Khadr would be governed by the Military Commissions Act," Zinn wrote.
"Second, the record discloses that following the response by the U.S. government to Canada's request, the information was used by the U.S. in the prosecution of Mr. Khadr."
In April, when Khadr's military tribunal resumed, a U.S. witness said she used video recordings of the Canadian government interviews with Khadr to "refresh her memory," Monday's ruling stated.
The evidence that Canada failed to have excluded from Khadr's prosecution included seven hours of videotaped interrogations by a Canadian Security Intelligence Service officer that depicted the then teenaged inmate sobbing and moaning and asking for protection from his American captors.
Khadr's lawyer Nathan Whitling said Monday's ruling means the government has "once again been called upon by the courts to do the right thing."
Whitling said he hopes Prime Minister Stephen Harper and Foreign Affairs Minister Lawrence Cannon "take advantage of this opportunity" to finally request the repatriation of Khadr.
The government has consistently refused to request the repatriation of Khadr.
The only government response to Monday's ruling was a single sentence, e-mailed from Cannon's junior spokeswoman that said: "We will review the decision rendered by Justice Zinn of the Federal Court of Canada."
NDP human rights critic Wayne Marston said Khadr was a child soldier at the time of his alleged offences and should not be facing the U.S. military tribunal.
"This is the time to bring Omar Khadr home," he said.
Khadr's Guantanamo tribunal is to resume in August.
Zinn said the "explorative process" he outlined in his ruling "must be undertaken with some urgency."
And the justice signalled he is growing weary of delays and will take matters into his own hands, if necessary.
"I retain jurisdiction to impose a remedy if, after the process described herein, Canada has not implemented an effective remedy within a reasonably practicable period of time."
