George Galloway Decision Released

The Federal Court of Canada released the decision today in the George Galloway hearing, The Toronto Coalition to Stop the War et al. v. The Minister of Public Safety and Emergency Preparedness et al. I previously attended the hearing in Toronto and posted on it here, which was later picked up and expanded upon by The Court.

Mosley J. dismissed the request for judicial review, not because the case was without grounds, but because Galloway never actually tested the measures enacted against him,

[148] Had Galloway actually been found inadmissible by a visa officer relying on the preliminary assessment and the alerts sent to the border points, I would have had little difficulty in concluding that the officer’s discretion had been fettered by the process followed in this case and that the emails and statements to the press raised a reasonable apprehension of bias.

[149] In the absence of such evidence, I find that there was no legally reviewable decision to bar Mr. Galloway from Canada and that this application must be dismissed.

There was no final decision made about Galloway’s entry, and he could have made submissions to a border official upon his arrival in Canada. “Courtesy” or “informational” letters are not reviewable decisions, especially when made by a person who does not have the final decision in the matter and do not affect Galloway’s rights or have legal consequences,

[144] This Court has held that advance indications of a future ministerial position are not subject to judicial review: Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue), 148 F.T.R. 3, [1998] 2 C.T.C. 176 at para. 28. The Ministers’ position that no TRP [temporary resident permit] would be granted conveyed by Mr. Orr’s e-mails or Mr. Velshi’ statements to the press did not have the legal effect of settling the matter of Mr. Galloway’s entitlement to a TRP as he had not requested one.

There are other circumstances though where a letter could be reviewed if it was evidence that a decision had been made.

Although he did not cite Roncarelli v. Duplessis as submitted in the pleadings, Mosley J. did have some strong words for the actions of the Federal government,

[8] The record contains statements which counsel for the respondents fairly characterized in argument as “unwise”. Taken into consideration with the haste with which officials reached the conclusion that Mr. Galloway was inadmissible and took steps to have him barred before the assessment of his admissibility was completed, these statements could have supported findings of bias and bad faith against the respondents. It is clear that the efforts to keep Mr. Galloway out of the country had more to do with antipathy to his political views than with any real concern that he had engaged in terrorism or was a member of a terrorist organization. No consideration appears to have been given to the interests of those Canadians who wished to hear Mr. Galloway speak or the values of freedom of expression and association enshrined in the Canadian Charter of Rights and Freedoms.

[91] In the result, I agree with the applicants that the activity for which they seek s. 2 (b) protection is a form of expression. I also agree with the applicants that the main reason why the respondents sought to prevent Mr. Galloway from entering Canada was that they disagreed with his political views. If the respondents’ purpose was to restrict the content of the expression in order to control access by others to the meaning being conveyed, it limits freedom of expression: R. v. Ahmad, [2009] O.J. No. 6151 at para. 123, citing the concurring judgment of Justice Lamer in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123.
[emphasis added]

However, Mosley J. continued to state that he believed no s. 2(b) rights had been breached, as there is no duty for to government to facilitate the entrance of someone into Canada to speak. Citing Baier v. Alberta, he indicated that Galloway had still been able to speak via teleconferencing,

48 …diminished effectiveness in the conveyance of a message does not mean that s. 2(b) is violated. There must be substantial interference with the fundamental freedom…

But the issue before the court was more than just free speech, as significant allegations of terrorism were leveled against Galloway, who was a sitting MP of the U.K. Parliament,

[7] …It is clear from the record that CBSA’s [Canada Border Services Agency] preliminary assessment to that effect was hurriedly produced in response to instructions from the office of the Minister of Citizenship and Immigration and from departmental officials that assumed Galloway was inadmissible on scant evidence. The result, in my view, was a flawed and overreaching interpretation of the standards under Canadian law for labelling someone as engaging in terrorism or being a member of a terrorist organization. The Court is under no illusions about the character of the organization in question, Hamas. But the evidence considered by the respondents falls far short of providing reasonable grounds to believe that Mr. Galloway is a member of that organization.

[119] …From the evidence on the record, the question of Galloway’s admissibility was never an issue of national security. As indicated above, CSIS was consulted prior to the writing of the CBSA assessment and had no national security concerns about his visit. It is not clear whether the authors were aware that fact. It is not reflected in the assessment and only came to light on production of the e-mail record…

[120] The assessment cites the decision of the Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, in support of a statement that “membership in an organization implies the existence of an institutional link between the organization and an individual, accompanied by more than a nominal involvement in the activities of the organization”. There is no discussion of whether Galloway had an institutional link with Hamas nor is there evidence that he had more than nominal involvement in their activities. In Harb, the Court declined to clarify what it had meant by the phrase “membership in a group” in an earlier complicity decision as each case turns on its facts and the degree of participation in the group’s activities. In this case, there was no evidence of participation beyond the aid convoy.
[emphasis added]

The court stated that without evidence of involvement any crimes that a terrorist organization may commit, Galloway could not be held responsible for their actions. Donating financial or material support is just one factor that courts may consider in determining whether a person is a member of a terrorist organization, depending on the context and purpose for which the assistance is provided. Assisting a humanitarian convoy to break a blockade was not in this instance evidence of terrorist participation.

Mosley J. also rejected the applicant’s arguments relying on Khadr v. Canada (Prime Minister), because in that case the Prime Minister’s statements were judicially reviewable as they affected the right of a Canadian to enjoy the protection of their own country. Also, there was no evidence that a decision had been made at the highest levels of government.

Despite the application for judicial review being dismissed and the finding that no s. 2(b) rights were violated, the applicants will likely still consider this case as a success, as it does indicate that the statements made were politically motivated and not based on any real national security concerns.

Perhaps more significantly, it does send a strong signal to the Federal government against arbitrarily labeling public individuals with the highly contentious and pejorative term of “terrorist.”

Although I won’t be in attendance as I don’t necessarily share his views, we might even see George Galloway make another attempt to speak in person in Canada.

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Comments

  1. What is also noteworthy are the two questions certified under s. 74 of the IRPA:

    1. With respect to a visa-exempt, foreign national who indicates a
    future intention to visit Canada, is a “preliminary assessment” of
    inadmissibility a decision, order, act or proceeding properly subject
    to judicial review in the Federal Court pursuant to section 18.1 of
    the Federal Courts Act?

    2. Does a voluntary contribution of cash and goods to an organization
    listed as a “terrorist entity” pursuant to the Criminal Code, without
    other acts or indicia of membership, constitute reasonable grounds
    to believe that the donor has engaged in terrorist acts or is a member
    of a terrorist organization so as to make the donor inadmissible on
    security grounds under s. 34(1)(c) or (f) of IRPA?

    It will be interesting to see how the FCA address each.

  2. Certainly, I didn’t cover that for the sake of brevity and focused on the issues as identified in para. 62. As Mosley J. indicates in para. 157, those issues transcend the particular context of the application, meaning an appeal is possible. It will be interesting to see what happens next.

  3. I am happy with decision at this point but I was looking forward to a reference to Roncarelli v. Duplessis.

    It would have helped a great deal with other ongoing cases against the government and the dishonorable minister in question.