NDP Jack Layton takes questions during an Ottawa news conference on Wednesday, Feb. 17, 2010.Pawel Dwulit
The Harper government showed bias and bad faith and acted in a "perverse" manner by not requesting the return of Omar Khadr from the U.S. military prison in Guantanamo Bay, his lawyers say in court documents filed Wednesday.
The emergency motion was filed in the Federal Court by Mr. Khadr's lawyers after Justice Minister Rob Nicholson asked the United States not to use evidence gathered from Mr. Khadr by Canadian officials in any American legal proceeding.
Mr. Nicholson's request was the government's response to a Supreme Court ruling last month that the Canadian government violated Mr. Khadr's constitutional rights by questioning him in U.S. custody. But the high court justices did not order the government to seek Mr. Khadr's repatriation, and the government has already said it will not do so.
In Thursday's court application, Mr. Khadr's lawyers renewed their constitutional objections and took the government to task for ignoring requests to consult them before sending Tuesday's diplomatic note to Washington.
"The Conservative government's policy and decisions with respect to the Applicant are patently unreasonable and perverse, and were formulated in bad faith," said the filing.
It added that Ottawa's "sudden and automatic decision without regard for the basic principles of fairness would raise a reasonable apprehension of bias in the mind of an informed and objective observer."
This latest legal manoeuvre in the Khadr saga came as opposition parties slammed the government Wednesday for asking the United States to withhold any Canadian-gathered evidence against him instead of seeking his return to Canada.
NDP Leader Jack Layton called the diplomatic note sent by Ottawa to Washington "a slap in the face" to the Supreme Court of Canada.
He also blasted the timing of the Conservative government's decision, which came in a news release Tuesday evening - minutes before the puck was to drop in the debut match of the Canadian Olympic men's hockey team.
Mr. Layton joined Liberal Leader Michael Ignatieff in criticizing the government for failing to tell Washington that Mr. Khadr was a child soldier at the time of his arrest in 2002 after a firefight in Afghanistan, in which a U.S. army medic was killed.
"It's a disgraceful slap in the face to the Supreme Court and to the concept the Canadian government should be defending human rights pursuant to our charter," Mr. Layton said.
"Our government has been the worst of all the various governments that had citizens in Guantanamo in terms of stepping forward and ensuring due justice is provided for an individual."
Mr. Khadr, born in Toronto and now 23, is the last Western national in the U.S. military prison at the tip of Cuba.
"This was the ultimate in cynicism," Mr. Layton said. "You've shut down Parliament, you put out a press release rather than actually facing the media to answer some of the tough questions and defend yourself.
"And you do it at a time when everybody's preoccupied with our national sport on the world stage at an Olympic games taking place in Canada."
Mr. Ignatieff said the diplomatic note Canada sent Tuesday should have specified that Mr. Khadr was a child soldier at his arrest.
The Liberal Leader acknowledged most Canadians do not sympathize with Mr. Khadr's plight, but said his citizenship rights should be protected by the government.
"They did the absolute minimum," Mr. Ignatieff said. "We think this is a test case in the indivisibility of Canadian citizenship.
"Many Canadians, including myself, take a very serious view of the accusations against Mr. Khadr. But he's a Canadian citizen. And you don't pick and choose here. You defend them all. Otherwise, no one's citizenship is worth very much. That's the key issue."
Mr. Khadr's legal team is to file a motion in Federal Court to quash the government's decision.
His lawyer said the Justice Department simply ignored a letter he sent last week requesting the right to make submissions about how to interpret the Supreme Court ruling.
The evidence Mr. Nicholson wants kept out of the trial includes seven hours of videotaped interrogations of the then-teenaged Mr. Khadr by a Canadian Security Intelligence Service agent.
The video shows Mr. Khadr sobbing, moaning and dropping his head into his palms. He asks for protection from his American captors.
The Justice Minister said in his Tuesday statement that Mr. Khadr was still receiving consular services.
The Khadr family has apparent long-standing ties to al-Qaida leader Osama bin Laden. Omar's late father, Ahmed Said Khadr, was a purported extremist and financier for Mr. bin Laden's terror network.