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

Part One here.

Part Two here.

After I left, the government's counsel continued to hammer away on case law, intending to prove that there is a mountain of legal precedent for interpreting Section 34 of IRPA - the anti-terrorism section - so broadly that George Galloway's donation to Hamas renders him inadmissible to Canada.

She also elaborated on the argument that CIC Minister Jason Kenney and Communications Director Alykhan Velshi do not speak for the government. Government counsel characterized Kenney's and Velshi's comments as "ill-advised," "regrettable" and "unfortunate". They claimed that no matter how much rhetoric is thrown around, decisions of admissibility are rendered independently. Thus, because Galloway never arrived at the border, no decision was made.

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Next, lawyer Barbara Jackman deftly demolished the government's case.

Jackman herself had represented many of the people cited in the government's argument. She had argued their cases in federal court - and won many of them - so she knows these cases inside-out. She proceeded to demonstrate how the details of those earlier cases were not congruent with the facts of Galloway's case.

In each earlier case, donating money to a "listed organization" was only one of several criteria used to prove membership. People had recruited members, had been paid for work, and in general had engaged in several other activities that could be taken to demonstrate membership status. In each case, there were four or five criteria, which taken as a whole, were deemed to represent membership. Not one case for inadmissibility based on membership in a terrorist organization was proven solely on the basis of someone having donated funds. In other words, there is no way that Galloway's cash donation constituted "membership" in Hamas.

In addition, Jackman said it was absurd to claim that because Galloway did not have absolute certainty that his donation would be used for humanitarian aid, that therefore he might have been donating to terrorist activities. The Canadian government, said Jackman, gives foreign aid money to some governments who later use the funds for personal enrichment or other corruption. Can the government demand that individuals seeking entry to Canada have a higher level of oversight and control over their donations than our own government?

[An aside: A letter in today's Globe and Mail:
The government's lawyer complains that George Galloway had no way to track how Hamas authorities spent the £25,000 he gave them. Does this mean a higher standard of care is now expected when giving someone money than when giving them Afghan prisoners? - David Arthur, Cambridge, Ont.]

The lion's share of Galloway's donations were in goods: vehicles, medical supplies, toys, clothes, food, all given to Red Crescent for distribution. And the Red Crescent itself may channel supplies and donations through Hamas. Is it, too, a terrorist organization?

The Gazan Ministry of Health has confirmed how Galloway's cash donation was used: to purchase incubators and a pediatric dialysis machine, and to help build a pediatric health unit. The government's counsel acknowledged this. Jackman argued that it's absurd to claim that because, in theory, Hamas could have used Galloway's humanitarian aid for anything, that therefore he donated money to a terrorist organization, and is there a member of a terrorist organization.

Jackman also demonstrated that the claim that border guards make independent assessments of admissibility, separate from any direction or pronouncements from the Ministry, is utter nonsense. The guards are employees of the Ministry. They are not some quasi-judicial tribunal that issues their own determinations in a vacuum. The documents we were never meant to see make it exceedingly clear that the government did everything it could to ensure that Galloway wouldn't be "waved in" (as they put it) to Canada. They sent his file. They sent photos. They issued an advisory so that when Galloway's passport was swiped, it would trigger an alert. (Sounds familiar...) In short, they wanted a guarantee from the border guards that Galloway wouldn't be allowed in the country.

Jackman also pointed out how the government's reasons for banning Galloway changed over time. At first, the statements coming from the CIC were about "George Galloway said..." or "George Galloway has advocated...". Meaning, he is inadmissible to Canada because of his ideas and his speech.

As the media and public backlash grew over this blatant abuse of power and infringement of Charter rights, the government created two new excuses. One, no decision was made, the CBSA letter was merely a preliminary assessment. And two, Galloway was inadmissible to Canada under section 34 of IRPA, giving material support to a listed terrorist organization. The backpedaling and the after-the-fact excuses should tell us something.

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Now that the hearing is over, legal briefs can be released, so I'll soon have the Galloway team's factum and summary of their case. I'll read the documents this weekend, and if I find anything of particular interest, I will definitely let you know. I can also upload the documents so you can read them yourself.

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