- Jurisprudence about the territorial limits of the Charter.

- The tenuous link between his interrogation by Canadian officials and his continued detention.

- Deference to the Government – Like it or not the conduct of foreign affairs has been largely unfettered by the courts up to now.

- The irrelevance of his citizenship – Khadr’s case has been made on the basis of s.7 which applies to EVERYONE not just citizens which makes the implications of a decision in his favour that much greater. Does the government have an obligation to seek the ‘repatriation’ of EVERYONE in Khadr’s circumstances?

I can’t predict litigation. No lawyer would do that. 20 years ago I would have said no way to the SCC upholding the decision, but given the disappointing tendency of the court in recent years to expand positive rights jurisprudence (see the Health Services case) it is that much harder to predict. But the governments case is anything but “weak”. If Khadr wins it will be because of the political or moral views of those on the court, not established constitutional principle.