galloway vs kenney: report on federal court hearing, part two

Part One here.

The government's lawyer opened with an anecdote and an analogy. On her way to court, she saw a copy of Maclean's with a picture of the recently famous Iceland volcano on the cover. She said that blaming the Canadian government for the ban of George Galloway is like blaming European air-traffic controllers for the grounded planes. The closures were because of the volcano, and the ban of George Galloway was caused solely by the actions of Galloway himself. Galloway donated money and goods to Hamas, and Galloway himself chose not to visit Canada.

After this embarrassing attempt at analogy, the CIC lawyer tackled the "no decision was made" argument, claiming the letter from CBSA to Galloway's office were merely informative. It did not deny him entry. Galloway himself chose not to attempt to cross the border.

The judge asked what other options were available. [Note: words in quotation marks are verbatim quotes. Everything else is a very close paraphrase.]

CIC Lawyer: He could have asked for a Temporary Resident Permit.

Judge: Those are given at the discretion of the Minister, who had already indicated that Mr Galloway wouldn't receive one.

CIC Lawyer: Yes, but he could have shown up at the border--

Judge: --and run the risk of indefinite detention. That's not much of an option, is it?

CIC Lawyer: I admit that these are not very palatable options, but--

Judge: --Short of showing up and being detained, what options did Mr Galloway have? Once receiving the CBSA letter, how did he have any option of a review or a challenge to this decision? "This is the aspect of this case that troubles me the most."

CIC Lawyer replied that any person who does not require a visa to enter Canada (which includes Galloway) can only seek admission at a port of entry. That's where admissibility or inadmissibility is determined. Because Galloway didn't show up at the border, there was no inadmissibility. It was his choice.

Judge: "So you're saying the counsel for George Galloway jumped the gun?" Despite receiving a letter warning them about inadmissability, they merely assumed inadmissibility?

CICL: The relevant section of the Immigration and Refugee Protection Act says that admissibility is determined at the border. There is no "advance opinion" of inadmissibility. The CIC and CBSA were merely giving Mr Galloway a heads-up that they had some concerns, so he wouldn't be surprised. They were acting in good faith--

Judge: "Was it in good faith? Or was it because the leader of the Canadian government was about to visit the UK and they were trying to save Canada some embarrassment? The British press would have had a field day."

CICL: They had a field day anyway, so you see, that didn't work.

CICL then tries to say that when George Galloway was leading the Viva Palestina convoy, he knew that this would make him inadmissible to Canada.

Judge: Do you really think that while Mr Galloway was taking 109 trucks from Europe to Gaza and giving money to Hamas, he was considering the reactions of the Canadian government?

We were all trying not to laugh out loud.

Earlier, lawyer Barbara Jackman had characterized the CIC as "taunting" George Galloway to come to the border and risk arrest under terrorism laws. Now CICL said: Earlier today we heard about taunting. Galloway traveled through eight European countries, taunted them to stop him--

Judge: And they didn't. All those countries have anti-terrorism laws and none of them took action against Mr Galloway.

CICL: Yes, and that's their decision, but under Canada's laws, Mr Galloway is inadmissible because he donated money through Hamas.

The Judge pointed out that Galloway only gave humanitarian aid.

CICL said it doesn't matter, because it went through Hamas.

Judge: "So you're saying that if anyone sends aid to Palestine they are inadmissible to Canada?"

CICL: No, not if the aid goes through the Red Crescent. Only if it goes through Hamas.

Judge: "So the moment you give one dollar to the widows and orphans in Gaza through Hamas, you are a member of a terrorist organization?"

Sitting next to me, NCF said, "I'm almost starting to feel sorry for her."

At this point, CICL said she would leave her current arguments to the written submissions and jump ahead to clarify the definition of a terrorist and "a member of a terrorist organization" under section 34 of the Immigration and Refugee Protection Act (IRPA).

First CICL sought to clarify the legal definition of the word "member". The words "devotes full-time or nearly full-time work" came first, and the judge again interrupted.

Judge: "I don't know or care what Mr Galloway does with his time, but he is a sitting member of the British Parliament, so presumably one could hardly say he meets this definition."

CICL backed down, and cited case law where someone who had given money to an organization deemed to be a terrorist group had been found to be a member of that group. The case involved the LTTE, the Tamil organization.

Judge: But Mr Galloway gave money for medical supplies, and evidence shows the money was used for medical supplies.

CICL: But Mr Galloway had no assurance that the money would be used that way. Once he handed the money over, he had no control over it. It was used for medical supplies, but it could have been used for militant purposes.

Judge: Mr Galloway says he is not a member of Hamas. He says he supports Fatah.

CICL: That is Mr Galloway's own statement. He can make that claim, but he can't dictate Canadian law.

This is when it got tricky.

The CIC lawyer cited case after case where a person donated money or time to an organization that Canada has deemed to be a terrorist group, and was found to be a member of that group, and so, inadmissible to Canada. None of these people were themselves involved in violence or the promotion of violence. They passed out pamphlets, campaigned for elections, or donated tiny sums of money. But the organizations in question are on the terror list, and each time, the person was declared inadmissible. (An aside: this should emphasize the danger to all of us in these arbitrary and biased characterizations of certain groups as terrorist organizations.)

There were a lot of these cases, and the judge stopped interrupting, and let her pile up her precedents.

[At this point I had to leave. I didn't hear our side's rebuttal or closing arguments. I'm waiting to get filled in and will update if necessary.]

So it's conceivable that under these elastic definitions of "member of a terrorist organization," George Galloway could be found inadmissible to Canada. But the people in the cited cases were all brown, with foreign-sounding last names and no status. I have trouble believing that a Canadian court will find a white, Scottish-born Member of the Parliament of the United Kingdom to be a member of a terrorist organization because he gave humanitarian aid to an elected government.

But of course none of us know what the outcome will be. I can only hope that Mr. Justice Mosley will find in favour of Charter rights, of free speech, of freedom of association and of sanity, and against the arbitrary imposition of Jason Kenney's personal opinions on the rest of us.

Update: I've just spoken to James Clark, a principal organizer of the Galloway tour, who was in court for the hearing. I have a summary of what I missed, as well as court documents that can now be made public. More soon!

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