October 7, 2010
Whatever Your Politics...
George Galloway is an alarming man. When he is interviewed on television, renowned and regularly resolute broadcasters succumb to trembling in trepidation. Although he possesses a cheeky grin and charming Scottish lilt, he is loud, blunt, and, on occasion, exceptionally rude.
Although some find the former Member of the British Parliament ("MP") to be distasteful or worse, others see him as a fervent and eloquent supported of the Palestinian people and a mainstay in the anti-war coalition. A great deal of the opprobrium directed towards Mr. Galloway revolves around this very point. There has been hearty criticism of his funding of Hamas, the terrorist organization and governing party in the Gaza Stip. Mr. Galloway, for his part, claims his donations are humanitarian aid to a democratically elected government, and that Hamas is the only organization currently capable of alleviating the hardships felt by Gaza residents.
Mr. Galloway was a British MP from 1987 to April 2010. In 2009, he scheduled a speaking tour in Canada and the United States where he planned to speak about the wars in Iraq and Afghanistan. While he was touring the United States, the Canadian Minister of Citizenship and Immigration, and the Minister of Public Safety and Emergency Preparedness decided pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] that Mr. Galloway was inadmissible to Canada. In response, Mr. Galloway and some supporters made an application for judicial review pursuant to s. 72 of the IRPA, a review that constitutes the substance of this post. The initial decision was reviewed here.
In Toronto Coalition to Stop the War v Canada (Public Safety and Emergency Preparedness), 2010 FC 957, Mosley J. of the Federal Court ruled that because Mr. Galloway never actually officially presented himself to the border officials, there was no decision to review – which is technically correct. Mr. Galloway, for his part, called what he perceived to be a ban from entering the country “an affront to Canada’s good name.” Those concerned with our country’s image can rest easy knowing that this whole debacle was characterized by a lot of loose talk, and not enough careful thought – especially on the part of a certain Ministerial aid who leaked the story to the press.
The (Unfortunate) Pre-Entry Entry Denial
Submissions to the judicial review process painted impressively different pictures of the governmental decision. The applicants, Mr. Galloway and his supporters, submitted that the decision to ban Mr. Galloway from Canada was based solely on the respondent’s political views, and that the decision was based on bad faith and an abuse of executive power. The respondents, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, submitted that Mr. Galloway’s inadmissibility was legitimately evaluated on the basis of his own actions and in accordance with the relevant legislation, and that his political views had no bearing on the original decision. They also submitted that a decision to exclude Mr. Galloway from the country, which would trigger the possibility of judicial review, was never actually made.
The reviewing Judge, Mosley J., concluded that, as a matter of law, the government’s position on reviewability was correct and that as such the application for judicial review must be dismissed. The basic reason for this determination is that Mr. Galloway was not physically denied entry from the country. Had he presented himself to border officers and been barred from entry, there would have been a judiciable issue.
The reasoning behind this is interesting, as the respondent’s political staff had requested the Canada Border Services Agency ("CBSA") prepare a preliminary assessment when Mr. Galloway announced his intention to enter the country. Interestingly, the CBSA began the report and then abandoned it when Mr. Galloway announce he was not going to try to risk detainment by trying to physically enter the country.
The judge based his decision on the lack of an actual entry attempt, but did note that this finding and decision should not be taken as an agreement with the respondent’s position that there were reasonable grounds to believe that Mr. Galloway is impermissible for Canadian entry pursuant to s. 34 of the IRPA.
The whole snafu began when the Minister of Citizenship and Immigration, Jason Kenney, received an open letter requesting Mr. Galloway be banned from Canada on account of his involvement with a recognized terrorist organization. This letter was forwarded to Mr. Kenney by a Mr. Alykhan Velshi, who self-describes as "Pro-Israel" and works as the Minister's Director of Communications.
Mr. Kenney and his staff (briefly) reviewed the case against Mr. Galloway, and decided the Department’s position matched the open letter. Mr. Kenney’s office then presented an alert to the Department of Public Safety and Emergency Preparedness ("PSEP") suggesting that Mr. Galloway might be astray of paragraphs 34(1)(c) and 34(1)(f) of the IRPA.
The relevant provisions of the IRPA read as follows:
s.34
(1) A permanent resident or a foreign national is inadmissible on security grounds for…
(c) engaging in terrorism;...
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
Before the Minister’s preliminary steps were communicated to Mr. Galloway, the very same Mr. Velshi who forwarded the letter to Mr. Kenney, was quoted in British papers stating (in frighteningly unequivocal terms) that “George Galloway is not getting the permit – end of story. He defends the very terrorists trying to kill Canadian forces in Afghanistan.”
While the Minister’s office was apparently operating in the place of the CBSA, Mr. Robert Orr, the highest-ranking Citizenship and Immigration Canada ("CIC") at the Canadian High Commission, was drafting a letter in a liaising role between the CIC and Mr. Galloway stating that the information in the newspapers came solely from Mr. Kenney’s advisors.
At this point, Minister Kenney’s actual letter reached Mr. Galloway. Part of the letter stated as follows:
“Further to my conversation with your parliamentary office, this letter confirms the preliminary assessment of the Canada Border Services Agency that you are inadmissible to Canada….
Hamas is a listed terrorist organization in Canada. There are reasonable grounds to believe you have provided financial support for Hamas. Specifically, we have information that indicates you organized a convoy worth over one million British pounds in aid and vehicles, and personally donated vehicles and financing to Hamas Prime Minister Ismail Haniya. Your financial support for this organization makes you inadmissible to Canada pursuant to paragraph 34(1)(c) and paragraph 34(1)(f) of IRPA.
In order to overcome this inadmissibility, you could submit an application for a Temporary Resident Permit. I have been asked to convey to you that it is unlikely that the application would be successful. However, a final determination with respect to a temporary permit will only be issued upon application.”
Mr. Galloway balked at the language and implications of the letter, and at this point made the decision not to try and enter the country. He broadcast his messages via video conferencing, which was relatively unsuccessful; attendance was less than expected, and many demanded a full refund.
Send Back the Red Carpet – Roll Out the Charter
Another important aspect of Galloway’s involvement in the Canadian Court system was the claim’s allegation that Mr. Galloway was denied the Charter protections of association and expression.
Mosley J. and Martineau J. on Appeal denied the claim first and foremost on the finding that Charter protections did not extend to Mr. Galloway. The analysis notes that Mr. Galloway is not a Canadian citizen, was outside of Canada at the time of the alleged Charter infringement, and concludes that Mr. Galloway lacks any “nexus” to Canada (Slahi v Canada (Minister of Justice), 2009 FC 160). Interestingly, the fact that the respondents did not actually apply Canadian law to Galloway helped the court come to the conclusion that there was no nexus. If there had been a reviewable decision, the court felt that such a nexus might well have been formed (para 82).
Similar situations have occurred in both the United States and Great Britain, and in both countries the speakers physically turned away at the border were successful in challenging their freedom of speech infringement. In the United States this was a successful First Amendment challenge, (Kleindienst v Mandel, 408 US 753 [1972]) while in the UK it was via the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, 223, Eur TS 5.
Section 2 of the Charter has been held to protect not only the rights of the person wanting to speak, but also the rights of those people that wish to listen (Irwin Toy ltd v Quebec (Attorney General), [1989] 1 SCR 927). Mosley J. agreed with the Canadian applicants that joined Mr. Galloway that the activity for which they sought s. 2(b) protection is a form of expression, and that the main reason for seeking to prevent Mr. Galloway’s entrance into Canada was in fact his political beliefs. However, he did not agree that these first two conclusions result in the applicant’s s. 2(b) right to hear Mr. Galloway was infringed. To support this ruling, the Justice quoted Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016 which stated that: “there is no requirement for the government to permit someone to enter Canada so that they may meet and speak with him, by providing the means (in this case, the forum), by which the applicants may exercise their right of freedom of expression.”
George Galloway, MP (and Terrorist?)
The judge decided it was necessary to review whatever assessment had been done by the CBSA, and found it was done in error. The judgment notes that the overall standard for inadmissibility with regards to paras. 34(1)(c) and (f) is reasonableness, and the standard of review must be tempered by a fair degree of deference to the fact finder. However, in deciding that the review was improper, the court notes that deference does not extend to turning a blind eye to “evident failings” in the assessment (para 96). The judge’s determination was that the assessment was not reasonable in that it over-reached in its interpretation of the facts, erred in its application of the governing law, and “fundamentally failed to take into account the purposes for which Galloway provided aid to the people of Gaza through the Hamas government” (para 98).
The definition of “terrorism” provided in s. 83.01 of the Criminal Code, RSC, 1985, c C-46 provides that the offence requires a mental element. The accuse must “accused both knowingly participated in or contributed to a terrorist group, but also knew that it was such a group and intended to aid or facilitate it's terrorist activity”: R v Khawaja, [2006] 214 CCC (3d) 399 (ONSC), para 38.
The real substance of the issue is whether Mr. Galloway’s particular interaction with Hamas constitutes “contributing … and intend[ing] to aid or facilitate [the group’s] terrorist activity.”
The CBSA’s determination regarding Mr. Galloway seemingly relies very heavily on the fact that Mr. Galloway openly and publically asserts his support for Hamas as a governmental organization, and that he has delivered them aid on several occasions. While Mr. Galloway made open donations to Hamas, no evidence was adduced to suggest that the funds were used for anything other than humanitarian purposes.
There was no evidence that Mr. Galloway was specifically supporting the terrorist elements of Hamas, or, put another way, that his goal was not humanitarian support. Mosley J. chastised the CBSA decision for characterizing Mr. Galloway’s financial aid as “providing a support function” or “financial backing” amounting to an agreement to participate in the affairs of a terrorist organization as an overreach on the appropriate interpretation of the law (para 112).
Although the factual record is unclear, surely people (and particularly sitting Members of Commonwealth Parliaments) deserve the benefit of the doubt when condemning evidence is unavailable. Mr. Galloway supported Hamas. Had Mr. Velshi been in charge of the CBSA decision and Mr. Gallway actually been denied simply for arguably distasteful views on the Iraq and Afghanistan wars, then the government’s action would be beyond condemnation. However, where the organization donated to is a democratically elected government, the support provided cannot be proven to be anything other than humanitarian aid to a ravaged and squalid part of the world. To characterize the donor as a terrorist or terrorist supporter is, as the court noted, unreasonable.
For the purposes of at least newsreel and commentary fodder, it is too bad Mr. Galloway did not present himself to the border. If he had done so, been denied, and drew Mosley J. for his review, there would have been a swift conclusion that there was a reasonable apprehension of bias in that decision (para 148). For an issue this compelling and important to Canadian policy, it is tragic that this case ended up turning on a fact scenario that could have, in retrospect, easily been avoided.
Galloway came – and left – Canada this week without much additional fanfare. After all, his opinions are widely available on the Internet (as are videos of choice moments during his bizarre stint on the UK reality TV show Celebrity Big Brother) and as Canada has learned in the past, it usually works out much better for everyone to let people speak their minds than to use the law to silence them.
Finally, Mosley J. noted that the statements made to the British press by the apparently over-sold and preposterously self-promoting Mr. Velshi as nothing more than “unfortunate expressions of opinion” (para 145). This case has some drama, some controversy, and a significant amount of nuance. Although there is no doubt that not all can agree on Mr. Galloway, hopefully we can rally sentiment that quotes such as “[he] is not getting the permit – end of story” by nothing more than a ministerial aid has nothing to do with the way this or any country should be governed nor in the way our celebrated democracy should be presenting itself internationally.
8 Comments
"Had Mr. Velshi been in charge of the CBCA decision and Mr. Gallway actually been denied simply for arguably distasteful views on the Iraq and Afghanistan wars, then the government’s action would be beyond reproach"
I think (hope) you mean, 'beyond contempt'.
Surely what frustrates Galloway's supporters, at root, is the Canadian government's bias in making determinations of what constitutes a terrorist group. The esteemed international lawyer Richard Goldstone-- who was chief prosecutor for war crimes in the former Yugoslavia and Rwanda-- investigated Israel's attacks on Gaza in January 2009, on behalf of the UNHRC. In his report he writes that Israel's attacks were ""a deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population." (Predictably, Goldstone faced accusations of anti-semitism.) The current Canadian government has shown itself incapable of applying the label 'terrorism' in a principled manner, meaning that the CBCA invariably targets what the government deems, for ideological reasons, 'distasteful views'.
This review of the Galloway decision is a workable first draft but it should not have been published as a final copy. It is disorganized, internally inconsistent, and incoherent. Most importantly, it mischaracterizes the facts of the case, the judicial process and the reasons of the Court.
Here are just a few examples of problems with this review:
-The author says, “the factual record was not and never will be clear”. This is not so. There was never an issue of clarity in the facts or the record. The record and the facts were clear and complete.
-The author acknowledges that Mr. Galloway’s contribution of aid was for humanitarian causes but then goes on to say, “put another way, that his goal was not humanitarian support”. The judge already found that he did not share a common purpose with any terrorists and that what he did was humanitarian and symbolic, not a breach of s.34 of IRPA.
-The author says “To claim that his denial of entry into Canada was solely because of his political leanings is ludicrous.” Yet the judge found and explicitly noted, the government tried to bar him because they did not like his political views. (The author acknowledges this finding by the Court elsewhere.)
-The author says Mr. Galloway made the decision not to en
ter Canada. That may be so but he so decided after he and the world press were told by the Minister's office that if he did try to enter Canada, he would be turned away. In fact, the Court found that the assessment was made in order to support a finding of inadmissibility by an officer at a port of entry, if he did try to enter.
-The author says The CBSA abandoned their preliminary assessment that Mr. Galloway was inadmissible to Canada. This is not so. The preliminary assessment was maintained until the Court said it was unreasonable. The Court specifically ruled that a final decision cannot be based on the assessment and alerts stemming from that assessment. The assessment of inadmissibility was made on conduct amounting to bad faith (had it led to a final decision) and it was not made on a proper interpretation of the law and the facts.
-The author says Mr. Galloway claimed that the Charter applied to him. That is not the case. There were other Canadian Applicants in this Application, along with Mr. Galloway, who had invited Mr. Galloway to speak to them and who argued that their Charter rights, as Canadians, to hear Mr. Galloway were violated. This was the case in the American jurisprudence also.
-The author says, “Justice Martineau on Appeal denied the claim”. Yet there has not been an appeal in this case. Justice Martineau decided the injunction motion and did not and could not rule on the merits of the case. On that motion, he did in fact find serious issues with the Minister’s conduct (the first branch of the injunction test), but found no irreparable harm (the second branch of the injunction test).
The above are just some examples of problems. The review is problematic in its entirety and it makes it impossible to understand what transpired in this case and what the decision stands for. However, this review is a good first try but it needs more work that is based on closer reading of the facts and the law.
Galloway was ruled inadmissible to Canada within 2 hours of Kenny receiving the "open letter requesting Mr. Galloway be banned from Canada." The letter came from Meir Weinstein, leader of the extremist Jewish Defence League of Canada. The FBI designates "the Jewish Defense League (JDL), a violent extremist Jewish organization."
Galloway learned of his ban from Canada not through official channels but through the British press.
Galloway has made it clear he does not support Hamas. Galloway does support democracy. Hamas won the 2006 Palestinian election in a landslide. The election was deemed fair and legitimate by respected international observers, including Canadians. Leslie Campbell, Senior Associate and Regional Director for Middle East and North Africa, National Democratic Institute - one of the Canadian delegation monitoring the election - said: "We characterize this election as very smooth and we certainly think it reflects the democratic will of Palestinians...There was a real sense of civic duty and excitment."
Galloway brought aid and money to the 1.5 million Palestinians locked in an outdoor prison which some compare to a concentration camp. Galloway, properly, gave that aid directly to the elected government of Palestine.
My points?
-We may not like Hamas but they were elected in a free and fair election.
-Is the democratic process acceptable only if we approve of those elected?
-The designation "terrorist" is often used as justification to gain public support for violent suppression of legitimate resistance. International law rules it legal for an occupied state to resist the occupier. Nelson Mandela remained on the U.S. list as a terrorist until he was 89 years of age.
On a different subject, I hope I'm reading this statement wrong: "it usually works out much better for everyone to let people speak their minds then to use the law to silence them." A disturbing statement. Who would want to speak their mind with the threat of the law silencing them? The powers this government has seized through the terrorism threat - real or imagined - are broad and open to arbitrary interpretation. A dangerous road to go down.
'it rather strains credulity to expect to receive any sort of objective financial statements from an organization somewhat preoccupied with using women and children as human shields and bombing bordering Israeli villages including Netiv HaAsarsa and Nahal Oz.'
is this a joke? does the fact that 1335 palestinian children have been killed 'as a result of Israeli military and settler presence in the Occupied Palestinian Territories' since 28 september 2000 [defence for children international], or the fact that, as reported by the bbc on 3 october 2010, two isreali soldiers were found guilty of 'reckless endangerment and conduct unbecoming for forcing [a] nine-year-old [palestinian] boy to check suspected booby-traps,' in any way prevent the isreali government from keeping impeccable financial records? or did the isreali operation 'cast lead' - in which as b'tselem reports,
'The magnitude of the harm to the local population was unprecedented: 1,390 Palestinians were killed, 759 of whom did not take part in the hostilities. Of these, 318 were minors under age 18. More than 5,300 Palestinians were wounded, 350 of them seriously.'
- in any conceivable way impair their bookkeeping abilities?
if the democratically elected hamas government indeed has trouble producing reliable financial records, the following sentences from the above report might shed some light on the possible cause of this phenomenon:
'Israel also caused enormous damage to residential dwellings, industrial buildings, agriculture and infrastructure for electricity, sanitation, water, and health, which was already on the verge of collapse prior to the operation. According to UN figures, Israel destroyed more than 3,500 residential dwellings and 20,000 people were left homeless. ... One and a half years after Operation Cast Lead, extensive areas in the Gaza Strip have yet to be rebuilt.'
this is a strikingly irrational outburst from someone whom i presume to be a lawyer.
About us: The Court is a site where scholars, practitioners and other interested citizens can discuss the recent work of the Supreme Court of Canada
The fact that this article was published should be the subject of discussion.
The comments above underscore something that should be obvious: trying to identify a commonground on a topic as politically charged as the Galloway debacle is a fool's errand. With that in mind, I think your best bet would have been a straight case comment that limited editorial comment to the veracity of Mosley J.'s reasoning.
That said, I think that the criticisms above are disproportionate.
While I appreciate all comments and criticisms on my piece, I in no way meant to offend anyone who came across this article. My only objective was to ignite conversation on a case I thought was particularly intriguing.
I never meant to cause offense, and have chosen to remove some of the more obviously inflammatory remarks.
To my critics: I believe everyone should have the right to speak without censorship. Truthfully, I was hoping for comments about the legal issues at play as opposed to remarks about my shortcomings as an author (who wouldn't?!).
That being said, I welcome further critiques.
Hello Katherine,
It is my understanding that the editorial staff have reviewed and approved your article and did not censor your comments and/or opinions before posting them on thecourt and therefore, it is my belief that their intention was also in support of your rights to free speech based on the legal issues in this case.
Did CSIS have any concerns with Mr. Galloway visiting Canada? According to my limited research the answer was no. Is this a fact which can be confirmed?
Why wouldn't the government consult the agency "responsible for collecting, analyzing, reporting and disseminating intelligence on threats to Canada's national security...." to ensure the fact-finding elements of the governments case were firmly in place for a possible judicial review?
The court has ruled that errors (palpable and overriding); "which is equivalent to review on a standard of unreasonableness" (Laskin, J.A.), were made based on factual or legal basis and that this behavior can't be endorsed, nor should it be. According to Laskin, J.A. there are two propositions that help judges determine a case. "The first proposition turns on how you present the facts; the second, on how you present the law".