george galloway vs jason kenney: report on federal court hearing, part one

This week, I attended the Federal Court hearing reviewing the Canadian government's decision to bar British MP George Galloway from entering the country. I wasn't able to stay til the end, but what I saw was very interesting and sometimes amusing. I've asked a few people about what I missed, so I'll update this later if necessary.

The Federal Court agreeing to review this case is itself a victory, and was accomplished through the tireless efforts of Canadian peace activists and defenders of free speech, and likely because the person deemed inadmissible is a Member of the British Parliament.

In my opinion, in order to find for the Government - that is, in order to uphold the ban against Galloway - the Federal Court will have to find that a British MP is a member of a terrorist organization. It's the only halfway cogent argument the government has, and I don't believe the court will be willing to do that. I may well be wrong - no one knows what will happen in any court case - but that's my assessment, based on what I heard. Here are some details.

* * * *

The government's case defending the decision to bar Galloway from Canada has four parts.

  • 1. No decision was actually made as to Galloway's inadmissibility. The information sent from the CIC to the CBSA was merely a recommendation, and the letter Galloway received was merely a heads-up that he might have trouble at the border. Only a border guard determines admissibility. Galloway himself decided not to arrive at the border. It was his decision.

  • 2. When Alykhan Velshi, director of communications for the CIC, declared Galloway inadmissible to Canada because he supposedly supports terrorism, Velshi wasn't speaking in any official capacity. Likewise, CIC Minister Jason Kenney's "unfortunate comments" (that's a quote, I swear), were not said in any official capacity.

  • 3. Galloway's supporters and the organizers of his tour have no standing to bring suit in this case. Their rights were not infringed. Only Galloway has standing to bring this suit.

    And finally, and most importantly,

  • 4. Because Galloway donated money for humanitarian aid through the Hamas government, he is a member of a terrorist organization, and therefore inadmissible to Canada.

    * * * *

    In the opening statements, we heard how this whole thing started: with a letter from the right-wing "Jewish Defense League" (I can't write their name without quotes!) to Jason Kenney, alerting him that Galloway was planning to come to Canada and asking Kenney to prevent that from happening.

    The next day, CIC flack Alykhan Velshi emailed the Canadian Border Services Agency: subject line, "Inadmissible". (You can see these emails here. We have access to them thanks to a government bureaucratic blunder and a positive court decision.) In the span of eight minutes, Galloway is found inadmissible to Canada. Over the next two hours, there are a series of emails between the CIC and the CBSA, discussing how to present this decision to the media and the public.

    A few days later, Velshi emailed the CBSA, asking them to update border security on Galloway's status, to ensure that a border guard doesn't just "wave him in" to the country. CBSA says they'll use all their resources to make sure Galloway is flagged. CBSA then sends a letter to Galloway's office informing Galloway that he is being deemed inadmissible to Canada.

    The judge asked, "This was a recommendation. Isn't it possible for the border guard or customs officer to make a different decision?"

    Lawyers for the Applicants: "It's theoretically possible, but it's very unlikely."

    Judge: "Couldn't the officer decide for him or herself, at his or her own discretion?"

    Lawyer: "Perhaps if the officer was retiring in two weeks."

    The judge nodded.

    Lawyers for our side quoted from the relevant statutes proving that at the port of entry to Canada, guards' decisions are subject to the direction of the Ministry. There was little doubt that despite what the government claims, a decision was made.

    In addition, they demonstrated very clearly that Galloway's "choice" was between arriving at the border and risking detention (potentially indefinite detention under current anti-terrorism laws), or staying away. That is, not really a choice at all.

    * * * *

    Next, lawyer Barbara Jackman showed that the organizers of Galloway's tour, as Canadian citizens, do have standing to bring this suit, because their Charter rights were clearly infringed.

    Jackman walked the court through Galloway's work on behalf of Palestinians, especially the people of Gaza during the siege of that territory - his "Viva Palestina" convoy of 109 trucks delivering food, clothes and medical supplies, as well as £25,000 he donated to buy medical equipment, incubators and other humanitarian aid. She mentioned that 30 British Members of Parliament joined dozens of NGOs and other international organizations in signing a letter urging the lifting of the Gaza blockade.

    On the other side, Jackman showed Jason Kenney's consistently anti-Palestinian point of view, including funding cuts to the Canadian Arab Federation and KAIROS for supposedly being terrorist and anti-Semitic, respectively, slamming CUPE for calling for a boycott of Israel, and a host of comments in the media and on the floor of the House of Commons.

    Lawyers for the government say that these "unfortunate comments" would not influence CIC staff, and are separate from any official decision making. (This reminds me of their laughable claims that war resisters can petition the Supreme Court for review of conscientious objector status.)

    Jackman demolished these arguments, showing how Kenney is himself the decision maker, that officers of his Ministry act on his behalf and under his direction, and that the decision to ban Galloway must be seen in context of this bias. Indeed, as the internal emails say: The good news is we can ban Galloway, the bad news is what are we going to tell the media.

    If Alykhan Velshi spoke out of turn or usurped authority in making this decision-that-was-not-a-decision, not once did Jason Kenney publicly disavow Velshi's statements. Not once did Kenney distance himself from his staff's remarks. Only now does he try to hide behind Velshi. But the Supreme Court of Canada has ruled more than once that Ministry officials do speak for the Ministry.

    Jackman even showed that CSIS itself had cleared Galloway for entry into Canada! CSIS had no problem with Galloway, nor did the US. But Jason Kenney had a problem with George Galloway.

    Many defenders of the government's decision to bar Galloway from Canada say, "He has no right to tell Canada it must admit him." That's true, and Jackman made it clear that she agrees. Galloway can't say "I have a right to enter Canada," but he has a right to expect the law to be applied fairly, and in this case, it was not.

    * * * *

    Jackman demonstrated at great length that Galloway's actions outside of Canada do not fall under any reasonable definition of terrorism.

    Galloway's convoy to Gaza was on a peaceful, humantarian mission. He entered Gaza the only way he could have gotten in, with the permission of Israeli authorities. He delivered food, medical aid, toys and other supplies, all of which were approved by Israel. He also delivered aid through the Red Crescent.

    What the government wants to call terrorism is this: Galloway donated some funds through Hamas, the elected government of the Palestinian Authority. The money was for humanitarian aid, and it was used as such. Many other countries, such as Norway, donated similar aid.

    Jackman mentioned the Gaza Freedom March, a convoy of 1300 people, including many Canadians (and a few wmtc readers!). Jackman specifically mentioned the support of Canadians Naomi Klein and Sasha Trudeau.

    And she mentioned that Galloway did what Canada's own government has done: "If George Galloway is a terrorist for giving aid to the Palestinian people, then so is the leader of Canada's own government." (Jackman later said she got "carried away". I'm not so sure.)

    Jackman makes a powerful argument that if Galloway's actions are deemed to constitute terrorism, we devalue the entire notion of terrorism. Canada's anti-terror laws were instituted to protect Canadians from violence, not meant to punish unpopular political views or curtail humanitarian aid.

    Jackman asks, what's the point of having anti-terrorism laws if they apply to peaceful people who are merely saying things the government doesn't like? "Even if we maintain a myth that an officer at a Port of Entry can make a decision different from the Ministry's recommendation," she said, we must not interpret the decision of terrorism so broadly as to forget what terorrism really is. "If we call Mr Galloway a terrorist," she said, "then the word terrorism has no meaning. An incubator is not a gun."

    Alykhan Velshi has claimed that Galloway "expressed support for Taliban murderers who want to kill Canadian troops". No one can find any record, anywhere, of George Galloway saying such a thing. Galloway has never expressed support for the Taliban, and anyone who is familiar with his ideas finds the idea of him doing so completely ridiculous. However, even if Galloway had said such a thing, his speech is still protected, and he cannot be denied admission to Canada on the basis of his speech.

    * * * *

    Both Jackman and a lawyer for the Canadian Civil Liberties Association demonstrated at length and incontrovertibly that when Galloway was barred from Canada, the Charter rights of Canadians and Permanent Residents were infringed. The freedoms of speech, expression and association of all of us were most certainly violated.

    The government claims Galloway was merely denied "a platform". After all, we were able to watch his speech through a video link. We can read his speeches and anything he writes.

    But the Supreme Court of Canada has ruled very clearly that expression is a two-way street. That our right of free speech is not only the right to speak, but the right to listen, the right to be exposed to ideas. That public meetings, pickets, protest and rallies are fundamental to these rights. That our rights to receive information and ideas, to engage in discussion and debate, are inherent in our rights of freedom of speech, association and assembly.

    Freedom of expression involves not just our right to speak and to publish, but our right to read, to know, to learn. It involves the "collective actions of individuals in pursuit of a common goals". Our freedom of expression is a process, and the Charter of Rights and Freedoms protects that process.

    The Supreme Courts of both Canada and the United States have ruled time and again that the existence of alternate technology to bring a person's ideas to listeners does not obviate the listener's right to meet a speaker in person, to hear, to shake hands - to freely associate with whom they choose. Jackman and the CCLA showed that the government cannot recharacterize their ban of Galloway as merely the denial of a "platform" and still claim that Canada has freedom of speech.

    Of course, there are limits on our freedoms, put in place to protect national security and protect against violence.

    But there was no threat to national security here. There were only Galloway's views, which are contrary to the views of the Canadian government - and worse, contrary to the views of some individuals in the Canadian government. There are limits to our Charter rights and freedoms, but those limits cannot be applied arbitrarily, and they must always be content-neutral. (Meaning if Ann Coulter is allowed in Canada, Galloway has to be allowed, too.) Declaring someone inadmissible to the country because of the content of a speech is a violation of basic freedoms. Canada has no provision for inadmissibility because of speech or politics, only for actions.

    Jason Kenney says Galloway was only denied a platform, nothing more. Jackman and the CCLA showed that the government cannot do that, period. According to the CCLA, when the government says, "all that is missing is seeing him in person," we must say, "That's our whole point. We are allowed to see him in person, and you can't deny us that right simply because you don't like his ideas."

    The CCLA was particularly strong on this point. The ban on Galloway violates the Charter rights of Canadian citizens and permanent residents. The "threat of exposing Canadians to ideas that are unpalatable to the government in power" is not what Parliament had in mind when it passed anti-terrorism laws.

    Part Two, the government's side, coming soon.
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