OTTAWA-The federal Conservative government cannot be forced to ask the United States to return Omar Khadr to Canada, even though the young Khadr’s Charter rights were violated in Guantanamo Bay, the Supreme Court of Canada declared today.

In a unanimous 24-page ruling by the country’s nine top judges, the court tried to craft a narrow judgment that would grant some relief to Khadr’s advocates.

It issued a “declaration” that stated clearly the actions of Canadian officials contributed to the continued detention of a young person who had no access to legal counsel, was subjected to “improper treatment” through sleep deprivation, likely aided his upcoming criminal prosecution, and violated principles of fundamental justice.

But in reality, the ruling comes as a disappointment to those who argued the federal government must ask U.S. President Barack Obama to repatriate the Toronto-born native.

That’s because the high court said that while the actions of the executive – the Harper government – are “not exempt from constitutional scrutiny,” it would not be “appropriate for the court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.”

The court essentially deferred to the prime minister and his cabinet’s political choices. Grounded in an attempt to be respectful of the separation of powers, the decision essentially allows the government to stick to its position.

Prime Minister Stephen Harper has consistently refused to request the Americans repatriate Khadr, and argues the U.S. military justice system must be allowed to take its course.

In a written statement, Justice Minister Rob Nicholson suggested the court vindicated the government’s view.

“The Government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests,” said Nicholson.

Nicholson said the judgment “overturned two previous lower court decisions and ruled that the Government is not required to ask for accused terrorist Omar Khadr’s return to Canada.”

He repeated the longstanding Harper government line: “Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying.”

But Nicholson added “the Government will carefully review the Supreme Court's ruling and determine what further action is required.”

“Naturally we’re disappointed but not surprised,” said lawyer Nathan Whitling, one of Khadr’s Canadian legal team. “It was always a long shot given that there had never been an order of this nature ever granted.”

Whitling said the fact that the court issued a declaration – despite the fact that it is a remedy nobody asked for – “should have” some moral, legal or political sway on the Harper government, but he was not holding out hope.

“We’re realists. Realistically I don’t think it’s going to have an effect on this government’s behaviour…practically speaking, I don’t think Prime Minister Stephen Harper is going to change his mind given the degree to which he has dug in on this issue.”

While Khadr may pick up some rumour of the decision in Guantanamo, he is completely cut off from the world and even his lawyers have to go through several hoops to arrange a phone call. That can take weeks to set up, Whitling said, so it is unlikely they will be able to brief Khadr on the court’s conclusions until the next time they travel there. In any event, they had already prepared him not to expect victory, Whitling said.

“You’d have to classify this as a decision in which they ducked their responsibility to interpret the Charter to protect a Canadian detained abroad,” said New Democrat critic Joe Comartin in an interview.

“It’s disappointing in a sense,” conceded Alex Neve, of Amnesty International, who said the court was “reluctant to go that final step” to grant Khadr the remedy of a repatriation order, even though it said it would address the rights breach.

But Neve said the court’s finding of a Charter violation is a powerful statement from the highest court in the land that the government cannot now ignore.

“Canada has been complicit in serious human rights violations of a Canadian citizen. It is not open to the Canadian government to just yawn and not take that seriously now. There has to be an effective response.”

Sukanya Pillay of the Canadian Civil Liberties Association said the ruling “was not a setback.”

“It’s a victory for human rights in the sense that the court has found that there is a clear breach of section 7 of the Charter, and that Canadian officials had violated their international human rights law obligations.”

“They’ve thrown the ball back into the government’s court but with clearer rules.”

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The ruling, which was not authored by a single judge and signed only by “The Court,” did not deal with the question of whether the government has a “duty to protect” a Canadian citizen detained abroad.

As for Khadr’s plight, the court noted the military commission system was found by the U.S. Supreme Court to be an “illegal regime” at one point during the seven years that it detained the young Khadr.

That regime has been revamped, but still allows evidence obtained through “oppressive circumstances.”

The Canadian high court concluded that Canadian officials contributed to depriving Khadr of fundamental justice when CSIS and Foreign Affairs agents interrogated him in Guantanamo in 2003 and 2004 and passed on information to his U.S. prosecutors.

“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects,” the court said.

Nevertheless, the high court found the lower courts went too far in ordering the government to request Khadr’s repatriation, saying it “gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and every-changing circumstances, taking into account Canada’s broader national interests.”

It also said it is “unclear” whether a proposed repatriation order would be accepted by the U.S.

And it said “the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the court.”

“We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr.”

Instead, the court said it would take “the prudent course” of merely declaring that Khadr’s constitutional rights have been violated, and leave it to the federal government to act.

Khadr, now 23, was just 15 when first captured in Afghanistan after a 2002 gunfight and is charged with tossing the grenade that killed a U.S. special forces soldier, Christopher Speer. His lawyers argue Khadr was a child soldier badly injured at the time, “tortured” since then, who cannot be held responsible.

He faces trial by military commission in July for murder and other charges.

His legal team wants Khadr returned to Canada where they say he should be released under a strict supervision and rehabilitation plan.

Khadr is a member of a notorious family whose father, Ahmed Said Khadr, was an Osama bin Laden supporter and later killed by Pakistani forces.

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