In a highly publicized case, the Federal Court has released its decision in Toronto Coalition to Stop the War v. Canada (Public Safety and Emergency Preparedness) 2010 FC 957. This was the much anticipated pronouncement on the legality of the “decision” (although, as will be seen, whether there was even a decision was hotly contested) to prohibit George Galloway from entering Canada for having been a member of a terrorist organization pursuant to s. 34(1) of the Immigration and Refugee Protection Act. The case involved allegations of bias, political interference, and an abuse of executive power.
George Galloway is a former British Member of Parliament. He is famous for his participation in various protest movements. He was investigated and temporarily suspended from Parliament for allegedly improperly benefiting from the United Nations Oil for Food Program, and was ultimately expelled from the U.K. Labour Party for allegedly inciting attacks against British troops in Iraq following the 2003 invasion (which he denies). As seen from the two clips below, he is extremely controversial (and also popular).
In 2009, Mr. Galloway was part of a convoy organized by a group called Viva Palestina, which delivered financial and material assistance to Gaza in an effort to break Israel’s now long standing blockade on the territory. The convoy consisted of 109 trucks loaded with medical supplies, toys, clothes, and vehicles. He also contributed $45,000. Most of the aid was allowed to enter Gaza. The cash donations were delivered in a highly publicized gesture.
Gaza, of course, is currently controlled by Hamas, an organization that is listed by the Canadian government as being a terrorist organization. Mr. Galloway maintained that the purpose of the Viva Palestina convoy was not to support Hamas, but rather the Palestinian people. He also acknowledged that he was aware that his actions could be construed as support for Hamas.
The Canadian Government
Mr. Galloway was scheduled to give numerous speeches in Canada from March 30 – April 2nd.
On March 16, 2009, the Director of Communications and Parliamentary Affairs for the Minister of Citizenship and Immigration, a political staffer, wrote to the Director General of the Communications Branch at Citizenship and Immigration about George Galloway. Over the course of several e-mails, he expressed the view that Mr. Galloway was inadmissible to Canada for national security reasons. He also notified the Civil Servant that the Minister would not grant a temporary resident permit to Mr. Galloway if he requested one.
Within approximately two hours of the initial e-mail, CBSA officials were exchanging e-mails with CIC personnel indicating that their preliminary checks were complete, and that the applicant was likely inadmissible. CBSA provided the following preliminary assessment:
Current information available suggests that the subject, Mr. George Galloway may be inadmissible to Canada pursuant to paragraph 34(1)(c) and 34(1)(f) of the [IRPA]. [Emphasis added]
The preliminary assessment also stated that should a Visa Officer decide to evoke s. 34(1), then there would be reasonable grounds to do so. It is important to note that CSIS advised CBSA that they had no concerns with Mr. Galloway’s visit from a security perspective.
Around this time, the media had picked up on the story, and the Minister’s office gave numerous interviews justifying the decision on national security grounds.
On the 20th, the Immigration Program Manager at the British High Commissioner wrote to Mr. Galloway, saying the following:
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.
It is our understanding that it is your intent to come to Canada on March 30, 2009. You are invited to make any submissions you deem necessary with respect to this preliminary assessment of inadmissibility in advance of this date. Any submissions you provide will be considered. Please forward these submissions to my attention at the above address.
If we do not receive any submissions on or before March 30, 2009, and you present yourself at the Port-of-Entry, the Canadian Border Services Agency officer will make a final determination of inadmissibility based on this preliminary assessment and any submissions you make at that time.
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.
While the Federal Court determined that it was clear that the reasons for prohibiting Mr. Galloway from arriving in Canada were motivated by politics rather than national security concerns, the Court provided an overview of whether Mr. Galloway was inadmissible to Canada.
Is George Galloway Inadmissible to Canada
Section 34(1) of the Immigration and Refugee Protection Act provides that an individual will be inadmissible to Canada if he/she was a member of a group that has engaged in acts of terrorism. It states:
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(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).
There is no question that Hamas is a group that has committed terrorist activities pursuant to s. 34(1) of the Act. However, the question is whether Mr. Galloway’s participation in the Viva Palestina convoy made him a member of Hamas.
The government argued that it is an offense to knowingly participate in or contribute to, directly, or indirectly, any activity of a terrorist group if its purpose was to enhance the ability of any terrorist group or to facilitate or carry out terrorist activity.
The Court noted that there was no analysis in the preliminary assessment regarding whether Mr. Galloway’s purpose in delivering the aid was to enhance the ability of Hamas to carry out terrorist activity. There was also no consideration regarding whether he was motivated by his opposition to the blockade rather than expressing support for Hamas.
The government also argued that funds provided to an organization for one purpose may be used by the organization for another. Specifically, even if Mr. Galloway intended that the cash be used for aid, it could nonetheless be used to purchase weapons. However, the Court found that there was no evidence that this occurred. Indeed, the government did not challenge evidence that the money was used for humanitarian purposes.
The Court found that to give rise to an inadmissibility, the purpose to which the funds are donated must be to enhance the ability of the organization to facilitate or carry out a terrorist activity. Absent such a purpose, the mere assertion that material support was provided to a terrorist organization is not sufficient. This seems logical. After all, to hold otherwise could ensnare innocent Canadians who make donations to organizations they believe, in good faith, to be engaged in humanitarian works.
Thus, to characterize the delivery of a convoy of humanitarian aid as “providing a support function” or “financial backing” amounting to an agreement to participate in the affairs of a terrorist organization is overreaching.
The government argued that complicity in respect to a terrorist activity can be considered to be an act of terrorism itself. Providing support funcitons, such as providing financial backing to the roganizaiton for the purpsoe of supporting the group can amount to complicity. The Court, however, found that the jurisprudence requires shared knowledge and purpose. Financial contributions are thus but one factor in determining membership.
Finally, the Court noted that while the definition of membership for the purpose of determining membership in a terrorist organization is to be given a broad interpretation, an unrestricted and broad definition is not a license to classify anyone who has had any dealing with a terrorist organization as m member of a group. Consideration has to be given to the specifics of each case.
Ultimately, however, the Court found that there was no decision for it to review. The Federal Court may review any decision that determines a party’s rights. Courtesy and informational letters, advanced indications of a future ministerial position, and statements to the press, do not meet this requirement.
Two Certified Questions
The Galloway saga is not finished. The Federal Court certified two questions:
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?
What do you think? Should a voluntary contribution of cash and goods to a terrorist organization be sufficient to render someone inadmissible to Canada?