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Judge reserves on allowing Omar Khadr to widen $20M lawsuit against Ottawa

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Omar Khadr appears in an Edmonton courtroom, on Sept.23, 2013 in an artist's sketch. THE CANADIAN PRESS/Amanda McRoberts

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Omar Khadr appears in an Edmonton courtroom, on Sept.23, 2013 in an artist's sketch. THE CANADIAN PRESS/Amanda McRoberts

TORONTO - Potential embarrassment to the U.S. should not stop former Guantanamo Bay prisoner Omar Khadr from alleging in an expanded civil suit that Ottawa conspired with Washington to torture him and breach his rights, Federal Court heard Wednesday.

In fact, Khadr's lawyer John Phillips argued that doing so would allow a thorough airing of how the Americans treated him during years of detention.

"If this matter proceeds, I suspect the United States will be embarrassed by what comes out of the process," Phillips told Judge Richard Mosley.

"(And) Canada is potentially liable for the torture and other punishment that was visited on Omar in Guantanamo."

Khadr wants to expand his $20-million lawsuit against the Canadian government to include the allegation that Ottawa conspired with the U.S. to detain him indefinitely and otherwise abuse him at Guantanamo Bay.

For its part, federal lawyers argued international law does not allow Khadr to drag the U.S. into his civil action, first filed in 2004.

They also maintained that any abuses Khadr suffered at Guantanamo could be dealt with under his current statement of claim.

"He says he wants to affix Canada with U.S. acts alleged," said government lawyer Barney Brucker.

"(But alleging) conspiracy is not necessary."

Among other things, documents show Canadian agents went down to the infamous U.S. prison in 2003 and 2004 to interrogate the Toronto-born Khadr after first agreeing to share any intelligence with his American prosecutors.

Khadr's military captors then subjected him to sleep-deprivation — known as the "frequent flyer" program — to soften him up for interrogation by the Canadians, previously released documents show.

Mosley, who reserved his decision, seemed disinclined to stop Khadr from trying to prove conspiracy — if the lawsuit gets to trial.

"There was clearly an effort to investigate and build a case against the plaintiff," Mosley observed.

"That was something Canada took part in."

Last December, Mosley ruled the proposed amendments to the lawsuit needed to be rewritten before the claims could be heard on their merits at a trial.

Phillips noted Canada made no effort to repatriate its citizen or to help Khadr deal with a prosecution under a military-commission process the U.S. Supreme Court itself ruled illegal in 2006.

He also pointed out that the Supreme Court of Canada later found that Ottawa had violated Khadr's rights.

"I beg you to let this case proceed as pleaded," he said to Mosley.

"We can't have child soldiers treated the way they've been in Guantanamo by this government."

The U.S. government has denied torturing Khadr, 27, who pleaded guilty to five war crimes in October 2010 before an American military commission for incidents that occurred in Afghanistan when he was 15.

The Americans had arrested him in July 2002 following a brutal firefight in which he was terribly injured and an American special forces soldier was killed.

He was returned to Canada in September 2012 and is currently incarcerated in Alberta.

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