Toronto Coalition to Stop the War v. Canada (Public Safety and Emergency Preparedness)

Toronto Coalition to Stop the War v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2010-09-27
Neutral citation
2010 FC 957
File numbers
IMM-1474-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20100927
Docket: IMM-1474-09
Citation: 2010 FC 957
Ottawa, Ontario, September 27, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
THE TORONTO COALITION TO STOP THE WAR,
THE OTTAWA PEACE ASSEMBLY,
THE SOLIDARITY FOR PALESTINIAN HUMAN RIGHTS,
GEORGE GALLOWAY, JAMES CLARKE, YAVAR HAMEED,
HAMID OSMAN, KRISNA SARAVANAMUTTU,
CHARLOTTE IRELAND, SID LACOMBE, JUDITH DEUTSCH,
JOEL HARDEN, DENIS LEMELIN, and LORRAINE GUAY
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
and
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervenor
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] As framed by the applicants, this is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision made by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness that the applicant, George Galloway, was inadmissible to Canada. The decision, the applicants submit, was communicated by a letter dated March 20, 2009, to Mr. Galloway, from Robert J. Orr, Immigration Program Manager of the Canadian High Commission in London, United Kingdom.
[2] The other applicants are groups and individuals who were involved in bringing Mr. Galloway to Canada for a speaking tour. They wished to hear Mr. Galloway express his views in person at the several venues in Canada at which he was scheduled to speak in March and April, 2009. His topics related to the wars in Iraq and in Afghanistan and to the situation in the Palestinian territories.
[3] The applicants assert that Mr. Galloway was “barred from Canada” because of the respondents’ opposition to his political views. They contend that the decision to declare him inadmissible was biased, made in bad faith and constituted an abuse of executive power for purely political reasons.
[4] The respondents submit that whether they approve of Mr. Galloway’s political beliefs or not is legally irrelevant because his admissibility was legitimately evaluated on the basis of his own actions and in accordance with the relevant legislation. They say there is no evidence of bad faith, bias or a breach of fairness in the performance of their public duties. Moreover, they submit, no legally reviewable decision to exclude Mr. Galloway was in fact made.
[5] I agree with the respondents that as a matter of law this application must be dismissed. As a result of the respondents’ actions, Mr. Galloway may have been found to be inadmissible to Canada had he actually presented himself for examination to an officer at an airport or a border crossing. That did not happen. A preliminary assessment prepared by the Canada Border Services Agency (CBSA), at the request of the respondents’ political staff, concluded that Mr. Galloway was inadmissible. The steps taken by the respondents’ departments to implement that assessment were never completed. Mr. Galloway made the decision not to attempt to enter Canada because he might be detained. Thus, the respondents’ intentions and actions did not result in a reviewable decision to exclude him.
[6] Mr. Orr’s letter, conveying CBSA’s preliminary assessment to Mr. Galloway, had the desired effect of discouraging Mr. Galloway from testing the respondents’ resolve to deny him entry. However, that letter did not constitute a decision nor did it communicate a formal inadmissibility finding that had been made in accordance with the applicable legislation. Mr. Galloway chose not to present himself at the border for examination and did not seek the exercise of ministerial discretion in the form of an exemption or a temporary residence permit. As such, no final decision was made regarding his admissibility. There is, therefore, no decision which this Court can review.
[7] These findings should not be taken as agreement with the respondents’ position that there are reasonable grounds to believe that Mr. Galloway may be inadmissible pursuant to s. 34 of the Act. It is clear from the record that CBSA’s 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.
[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.
[9] The foregoing comments are not intended in any way to convey approval of Mr. Galloway’s political views or disapproval of the respondents’ opinions with respect to those views. In this application, the Court was asked to consider whether the actions taken to bar Mr. Galloway from expressing his views in Canada are judicially reviewable and if so, whether they meet the legal standard of reasonableness. On the basis of the evidence before me, I must conclude that the respondents’ efforts to bar Mr. Galloway did not result in a decision or action for which a remedy may be provided by this Court.
[10] If I have erred in this conclusion, I am satisfied that the evidence considered by the respondents was insufficient to support a finding that there are reasonable grounds to believe that Mr. Galloway is a member of a terrorist organization or has engaged in acts of terrorism. It was, therefore, unreasonable for the respondents to rely on those grounds to deem him inadmissible to Canada.
Background
George Galloway
[11] George Galloway is a British citizen and was, at the material times, a Member of the Parliament of the United Kingdom for the Respect Party. He has since been defeated in the most recent parliamentary elections. Galloway is notorious in Britain and abroad for the controversies which have arisen from his participation in various protest movements including a campaign against the sanctions imposed on Iraq following the Gulf War. He was investigated and temporarily suspended from Parliament for allegedly improperly benefiting from the United Nations Oil for Food Program. Galloway successfully sued a British paper for libel over similar allegations. He 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. In short, Galloway is a highly controversial figure who provokes strong reactions to his public statements and actions.
[12] Mr. Galloway’s sympathies for the Palestinians and their cause are well known and are described at length in the court record. He was vehemently opposed to the Israeli intervention in the Gaza Territory in December 2008 and in January 2009. He also opposed the ensuing blockade of goods to the territory. In early March 2009, 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 the blockade. As Mr. Galloway publicly declared, his participation in the convoy was intended as a political statement in opposition to the blockade as well as a means to provide humanitarian aid to the people of the territory. There is a considerable amount of evidence in the record about other opposition to the blockade and the donations of aid from many other sources, including western governments, through organizations such as the Red Crescent Society.
[13] The Viva Palestina convoy consisted of 109 trucks loaded with medical supplies, toys, clothes and vehicles including ambulances and a fire truck. Mr. Galloway also contributed GBP25,000 ($45,000) raised from donations by individuals wishing to support the relief effort. After some delay involving negotiations with the Israeli and Egyptian Governments, most of the aid was allowed to enter Gaza through an Egyptian border crossing. Non-medical aid was conveyed to Gaza through Israel security controls.
[14] Gaza is currently under the control of the Harakat Al-Muqawama Al-Islamiya ("Islamic Resistance Movement"), more commonly known by the acronym, Hamas. Following elections in 2006, Hamas gained a majority of the seats on the Palestinian Legislative Council for Gaza and took control of the local government. Hamas controls the security, health, education and social services in the territory.
[15] Hamas was listed as a terrorist entity under subsection 83.05(1) of the Criminal Code, R.S. C. 1985, c. C-46, by the Governor in Council in November 2002. The listing was reviewed and maintained in November 2008. Hamas is similarly proscribed by the United States and the European Union. The identification of Hamas as a terrorist organization for the purposes of paragraph 34(1)(f) of the IRPA, was not questioned in these proceedings.
[16] Mr. Galloway says he respects the democratic right of Palestinians to elect their own leaders and, in that regard, respects the decision of Gazans to elect Hamas in January 2006 to a majority in the Palestinian Legislative Council for the territory. However, Galloway denies being a member or a supporter of Hamas. To the contrary, he claims to support another Palestinian organization, Fatah, which has long been opposed in interest to Hamas.
[17] Galloway asserts that his purpose in delivering goods and cash to Gaza was to support the Palestinian people, not Hamas. He says he delivered humanitarian aid to the Government of Gaza, not to Hamas. However, it is also clear from the record that Mr. Galloway was aware that his actions might be construed as support for Hamas and was prepared to accept that risk. He also delivered the cash donations directly to the head of the Hamas government in a highly publicized gesture.
[18] The purpose and distribution of the aid delivered by the convoy is not disputed by the respondents. There is no evidence in the record that it was used by Hamas for any terrorist purpose. The unchallenged evidence in the record is that the cash delivered by Galloway was used to buy incubators and pediatric dialysis units for a Gaza hospital.
[19] Following these events, Galloway was invited to visit Canada for a speaking tour to discuss topics such as the conflict in Gaza and the war in Afghanistan. His visit was scheduled to run from March 30 to April 2, 2009 with appearances in Toronto, Mississauga, Ottawa and Montreal, after a similar tour in the United States. The organizers, including other applicants in this proceeding, expended a considerable amount of time, money and energy to make the arrangements.
[20] Galloway had previously entered Canada without difficulty and had spoken to Canadian audiences in September 2005 and in November 2006. On each of these occasions, Galloway’s visit attracted hundreds of people to public debates on Canada’s foreign policy, the wars in Iraq and in Afghanistan, and the political situation in the Middle East. There is no indication in the record that his prior appearances in Canada fomented public disorder, or created a security risk. Galloway was not on any watch list maintained by CBSA prior to these events, according to the evidence.
The impugned “decision”:
[21] The plan to have Mr. Galloway speak again in this country came to the attention of some Canadians opposed to his views on the Middle East. On March 15, 2009, they published an open letter to Jason Kenney, Minister of Citizenship and Immigration, asking him to bar Mr. Galloway from Canada.
[22] Early in the afternoon of March 16, 2009, Mr. Alykhan Velshi wrote an e-mail to Mr. Edison Stewart, Director General of the Communications Branch at Citizenship and Immigration Canada (CIC). In the email, Mr. Velshi reported to have received a “media call” asking him why Canada was going to admit Mr. Galloway as a visitor, given Mr. Galloway’s previous public statements and actions. Mr. Velshi was not a CIC officer but was a member of the Minister’s political staff. He served as Director of Communications and Parliamentary Affairs in the Minister’s office.
[23] In the email to Mr. Stewart and in several follow-up e-mails, Mr. Velshi expressed the view that Mr. Galloway was inadmissible. He shared the results of some personal, on-line research he had conducted. He also advised Mr. Stewart that the Minister would not grant a temporary resident permit (TRP) if one were to be requested by Mr. Galloway. A TRP may be issued under s. 24 of the Act to a person who is inadmissible to Canada at the discretion of an officer who is of the opinion that it is justified in the circumstances. In exercising that discretion the officer shall act in accordance with any instructions that the Minister may make. Mr. Stewart passed Mr. Velshi’s enquiry on to Stephane Larue, who was then the Director General of the Case Management Branch of CIC.
[24] As admissibility determinations fall within the scope of the responsibilities of the Department of Public Safety and Emergency Preparedness (PSEP), Mr. Larue referred the request to Ms. Connie Terreberry of CBSA. Ms. Terreberry agreed to do a quick admissibility assessment. She forwarded Mr. Velshi’s and Mr. Larue’s e-mails to colleagues with instructions “to do a quick check on this and let me know what we’ve got”. Within approximately two hours of Mr. Velshi’s initial message, CBSA officials were exchanging e-mails with CIC personnel indicating that their preliminary checks were complete and that “[w]ith the extensive info available in open source, the applicant is inadmissible 34(1)(f) and possibly 34(1)(c).”
[25] Early the next morning, Ms. Terreberry advised a CIC official that the research to confirm inadmissibility was done but that a formal assessment would take a little time and require consultation with their partner, the Canadian Security Intelligence Service (CSIS). Apart from the open sources cited by Mr. Velshi in his e-mails, it does not appear from the record what, if any, additional research was conducted. When consulted, CSIS advised CBSA that they had no concerns with Mr. Galloway’s visit from a security perspective. That does not appear to have influenced CBSA’s view of the matter.
[26] The written assessment, completed late on March 17, 2009, is more cautious regarding the question of Mr. Galloway’s admissibility than is the earlier string of e-mails. It states in the opening paragraph:
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]
[27] The concluding recommendation was that there were reasonable grounds to invoke the s. 34 grounds “…should a Visa Officer decide to do so after examining all of the facts of this case” (emphasis added). This preliminary assessment was then circulated within CBSA, CIC and other government offices while discussions ensued about what to do with Mr. Galloway should he show up at an airport or land crossing seeking entry into Canada.
[28] The record shows that e-mails concerning the matter were distributed widely within the government, including to the Prime Minister’s Office and to the Privy Council Office. The Canadian High Commissioner in London, Mr. James Wright, wrote to a broad distribution of senior personnel to urge that consideration be given to a number of factors, including the fact that neither the British nor the Americans had taken action against Mr. Galloway for his support to the Palestinians. His public statements, while widely criticized, would be defended as free speech in Great Britain. This was taking place in advance of a visit by the Prime Minister to London and Mr. Wright’s immediate concern was with the anticipated reaction of the British press.
[29] When it was noted by the High Commission press officer that Galloway was eligible for entry to the US, the response from Mr. Larue was that Canada’s laws were different and prescriptive, leaving not much discretion on determining admissibility. He noted that there was flexibility in the use of the TRP under s. 24 and the exemption for humanitarian and compassionate grounds under s. 25 of the Act but “our Minister has indicated that he does not wish to use those in this particular case.”
[30] Another of Mr. Kenney’s assistants, Kennedy Hong, wrote to Larue and others at 11:59 a.m. on March 18th to advise that Galloway may already be in the US and to inquire whether there was something “on the border security system already so he doesn’t get let in accidentally.”
[31] In an e-mail at 12:14 on the 18th , Mr. Velshi wrote to Mr. Larue:
Stephane, an old associate of mine says that he [Mr. Galloway] is currently speaking in New York. He may try to cross the land border. Can you confirm that if he tries to cross the Canada-US border, or tries to fly in via Pearson (either from the US or the UK) he will be turned back. The minister has said he will not issue a TRP and doesn’t want one issued. So I just need confirmation that, assuming he’s not already in the country, he will not be allowed in under any circumstances.
[32] A flurry of e-mails followed to assure political staff that border officials would be alert to the possible arrival of Mr. Galloway by land, sea or air. At 12:34 Hong wanted to know whether officials would enter Galloway’s name into their computer system: “how can CBSA ensure that he won’t just be waived into Canada? Can we provide them with a profile? A photo?” At 12:40, Velshi sought confirmation that:
[s]ince the Min won’t issue a TRP, there is no change [sic] he will be allowed entry though otherwise inadmissible? i.e., is there a chance that the border agent or NHQ will accidentally issue a TRP?
Larue offered assurances that Port of Entry officials did not have that authority. He undertook to ensure that the inadmissibility grounds were clearly indicated in the lookout (i.e., the alert sent to border officials).
[33] Also on March 18, 2010, Velshi told a press officer at the High Commission in London that Mr. Galloway would be informed the next day that he would not be allowed to enter Canada because the CBSA had deemed him inadmissible. He instructed that all press inquiries be directed to him.
[34] As Mr. Galloway was, presumably, unaware of these efforts to deny him entry, CIC officials had decided that it would be appropriate to give him advance notice. Mr. Robert Orr, Immigration Program Manager and highest-ranking CIC employee at the Canadian High Commission in London was enlisted in this effort. In his affidavit, Mr. Orr says that he merely functioned as the liaison between CIC National Headquarters and Mr. Galloway and made no decisions respecting Mr. Galloway’s admissibility. He says he was advised that Minister Kenney did not want Mr. Galloway allowed entry under any of the exemptions to inadmissibility.
[35] Mr. Orr initially tried, unsuccessfully, to contact Mr. Galloway by phone through his parliamentary office in London on March 19th. On March 20, 2009, Mr. Orr spoke to Mr. Galloway’s parliamentary assistant who expressed concern that the information had appeared in a British newspaper before they were informed. Disclosure of this personal information, Mr. Orr acknowledged on cross-examination, may have been a breach of the Privacy Act. He did not know how it had been disclosed other than it was not from the High Commission.
[36] Mr. Velshi had previously requested, and received from the High Commission, contact particulars for all of the major UK newspapers. Velshi is quoted in the story that appeared in the Sun newspaper on the morning of the 20th. When asked whether Galloway would receive a special permit from the Immigration Minister, he is quoted as saying:
George Galloway is not getting the permit-end of story. He defends the very terrorists trying to kill Canadian forces in Afghanistan.
[37] Mr. Velshi approached other media sources to convey the same message. In an interview with a U.K. television network on the same date, Mr. Velshi stated:
Mr. Galloway has um, is on the record bragging about providing financial support to Hamas, an organization which is a banned terrorist organization in Canada. He’s expressed sympathy for the, ah, Taliban murderers who are trying to kill Canadian and British soldiers in Afghanistan.
This is not someone who, we believe, we should be, ah, giving special treatment in terms of allowing him access to our country. Essentially, here’s someone who, as, Mr. Galloway, who said that, um, Mr. Galloway has said he wants to come to Canada to raise money for, ah, for these groups, um, that are out there killing Canadians. Its actually, its actually quite odious and I think it’s entirely appropriate for our security agencies to say, that if, ah, that if they have advance notice that Mr. Galloway is going to come to Canada to pee on our carpet, that we should deny him entry to the home.
…this has nothing to do with, with freedom of speech whatsoever. The decision on whether or not, um, individuals constitute a national security threat to Canada are made by our border security agencies by applying the criteria of our immigration laws. And they’ve made the determination that Mr. Galloway is inadmissible on national security grounds. And so, our position as the Government is that we’re not going to second guess, we’re not going to question, we’re not going to overturn the decision of our border security agencies to, ah, hold that Mr. Galloway is inadmissible.
Ah, you know, he’s perfectly free to, ah, to go onto his, um, you know, to go onto soap box and to say, ah, whatever he wants. But what he’s not free, ah, to do, is um, to, pose a threat to the safety and security of Canadians and that’s something that our security agencies are ultimately responsible for determining.
[38] In this and other communications to the press, Mr. Velshi states that the decision had been made to bar Mr. Galloway on national security grounds. As noted above, the evidence is that CSIS had no concerns with Mr. Galloway’s visit on such grounds. Nor is there any indication in the preliminary assessment that Mr. Galloway posed “a threat to the safety and security of Canadians”. Later comments by Minister Kenney attempted to distance his office from involvement in the process by describing it as an operational decision by CBSA officials.
[39] In two e-mails to the High Commissioner, Mr. Orr advised that a decision regarding Mr. Galloway had been made in Ottawa. On March 19th, he wrote that he had instructions from the Minister’s office to contact Galloway’s office to “convey the decision”. In an e-mail on March 20th, Mr. Orr wrote that in speaking to the parliamentary assistant he had “stated that Mr. Galloway has been deemed inadmissible by Canada’s immigration minister, Jason Kenney, and that he would be denied entry at a Canadian port of entry.” Mr. Orr was not questioned about this in his cross-examination but he described other comments in the string of e-mails between Ottawa and London that suggested that a decision had already been made as being poorly phrased (“sloppy drafting”). He said that officials were aware that such a decision depended upon the examination process that would follow any attempt by Mr. Galloway to enter Canada.
[40] Mr. Orr wrote to Mr. Galloway later on the 20th. His letter constitutes the reasons that were communicated to Mr. Galloway for why he was deemed inadmissible. With the deletion of the statutory references, the letter reads as follows:
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.
[41] On cross-examination, Mr. Orr indicated that the information in the letter was dictated to him by phone. He was adamant that he did not make a decision to find Mr. Galloway inadmissible but merely conveyed the CBSA’s preliminary assessment as it was described to him by telephone and e-mail. In his experience, this type of warning was rare but not unknown. He was not aware of any instances, such as this, where the issue arose because of a "media call" to a political staff member.
[42] Mr. Orr confirmed that had Mr. Galloway arrived at a Canadian Port of Entry there were several possible outcomes. He would be examined by an officer and an immediate decision could be made as to his admissibility. Alternatively, he could be directed back to the US for several weeks while an admissibility report was considered by an officer. He could also be detained as a suspected terrorist. The preliminary assessment would be relied upon by the deciding officer, as the memo was from a specialized unit, although it was open to the officer to do further research. He maintained that the officer would not be obliged to agree with the opinion expressed in the preliminary assessment while conceding that he had not seen this happen. He acknowledged that the border officer would be aware of what had transpired in Ottawa and that this would be a factor in the decision making. It was also open to Mr. Galloway to apply to the PSEP Minister for an exemption under s. 34 (2). This requires a determination that the applicant’s presence in Canada, notwithstanding the presence of the factors in s. 34 (1), would not be detrimental to the national interest.
[43] In a letter dated March 23, 2009, but received by Mr. Orr on March 25, 2009, Mr. Galloway’s counsel provided submissions to the High Commission regarding his admissibility. The applicant requested that the High Commission review his submissions and provide a response by March 24, 2009.
[44] Later that same day (March 25, 2009), Mr. Galloway’s counsel sent an e-mail to Mr. Orr at the High Commission indicating that the applicant could not wait for Mr. Orr’s reply and that he had already filed an application for leave and judicial review with the Federal Court, precluding any further action on Mr. Orr’s part, in his view.
The judicial review proceedings:
[45] On March 29, 2009, Mr. Galloway and his supporters sought an interim injunction before this Court to allow him to enter Canada for the purposes of the speaking tour. On March 30, 2009, Justice Luc Martineau dismissed the applicant’s motion. Justice Martineau determined that the applicant’s arguments raised a serious issue on the low threshold established by the case law and that his arguments were not frivolous or vexatious. However, the applicant had failed to meet another essential requirement for obtaining an interim injunction, that is that he would suffer irreparable harm if the injunction were not granted: Toronto Coalition to Stop the War v. Canada (Minister of Citizenship and Immigration), 2009 FC 326.
[46] On the afternoon of March 30, 2009, the applicant was in the United States. Depending on the outcome of the injunction application, he intended to present himself at the Lacolle, Québec border post. As Mr. Galloway explains in his affidavit evidence, he had no desire to be possibly detained by CBSA while the matter of his admissibility was being determined. Thus he chose not to appear at the border post. It also appears that no consideration was given to applying for an exemption under s. 34 (2) or a TRP.
[47] Mr. Galloway's speaking engagements in Canada were carried out, with considerable difficulty and with increased costs, by telephone and video conference facilities from New York. According to the affidavit evidence submitted by the applicants, participation was lower than expected, contributing to a significant loss of revenue, as many persons who had bought tickets in anticipation of hearing Galloway directly sought refunds. Since these events occurred, Galloway has returned to the United States on three occasions without difficulty for speaking engagements.
[48] At the outset of these proceedings, the respondents sought to have the applicants other than Mr. Galloway struck from the record as parties by way of a cross-motion to the applicants’ motion for an interim stay. The cross-motion was dismissed by the Court on March 27, 2009. It was dismissed without prejudice to it being brought on again by motion before a regular sitting of the Court.
[49] The respondents have contended from the outset that there was no decision made to refuse Mr. Galloway entry to Canada. In response to the request from the Registry under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 to provide a certified copy of the decision and any written reasons for the decision, the Canadian High Commission in London replied on May 21, 2009. They reported that they had no record of a decision made on March 20, 2009 pertaining to Mr. Galloway.
[50] A hearing of this matter was delayed by reason of a series of motions brought by the parties relating to the content of the certified record, ultimately produced by the High Commission in response to the Court’s order granting leave for the application to be heard. The certified record consists largely of copies of e-mail messages exchanged between government offices in Ottawa and the High Commission in London.
[51] The respondents were concerned that the certified tribunal record contained information of a sensitive nature that should not be disclosed. They brought a motion pursuant to section 87 of the Act for a protection order, which I granted, in part, in an Order issued in December, 2009. As a result, the time required to complete the remaining stages of the application was extended.
[52] The applicants moved for the disclosure of additional information that was not included in the tribunal record, alleging that the respondents had not disclosed all of the relevant communications between government offices relating to Mr. Galloway. The parties were urged to reach agreement on what constituted the record but were unable to do so. The respondents produced two witnesses who were cross-examined on their affidavits.
[53] The applicants then sought additional production and an order to compel the witnesses to answer certain questions which I declined to issue. In my view, the respondents had produced an adequate record of what had led to the impugned decision and the applicants were engaged in a “fishing expedition” to find additional evidence of bad faith and bias they could not demonstrate existed, such as further communications between government offices in Ottawa. Applying the proportionality principle, I considered that the discovery process had gone on long enough and had to be brought to a close.
[54] I note that on April 9, 2010, following the cross-examination of a CBSA witness, the respondents voluntarily disclosed a number of unredacted CBSA e-mails which had not been included in the certified record dated January 13, 2010. The applicants continue to maintain that the record is incomplete and that they should have been allowed to explore whether there was additional evidence of decisions made in other government offices that affected their interests.
[55] Notwithstanding these concerns, I am satisfied that the respondents produced what appears to be a complete record of the communications within CIC and CBSA that led to the March 20, 2009 letter to Mr. Galloway. Prior to the hearing, they waived the claim of public interest privilege on the content for which they had previously sought protection.
[56] The applicants served and filed a Notice of Constitutional Question on March 12, 2010 asserting that section 34 of the IRPA breaches their freedoms of expression and association, their equality rights and their liberty and security of the person rights under sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter).
[57] The Canadian Civil Liberties Association sought, and was granted, limited intervenor status to submit written and oral argument respecting the constitutionality and interpretation of section 34 of the IRPA.
Issues
[58] As noted, the applicants served and filed a Notice of Constitutional Question alleging that their rights to freedom of expression and association, security of the person and equality were breached by section 34 of the IRPA. They filed written representations on those issues but did not press them in oral argument. The intervenor, the Canadian Civil Liberties Association, did not question the validity of the section at the hearing but focused their submissions on the proper interpretation and application of the legislation, having regard to Charter values.
[59] The Court should generally avoid making any unnecessary constitutional pronouncement and is not bound to answer constitutional questions when it may dispose of the matter without doing so: Tremblay v. Daigle, [1989] 2 S.C.R. 530 at page 571; Smoke-Graham v. The Queen, [1985] 1 S.C.R. 106 at page 121.
[60] Accordingly, I do not consider it necessary to address the constitutional validity issue. Had I done so, I would have agreed with the respondents that based on the established jurisprudence, section 34 withstands constitutional scrutiny on a subsection 2 (b) or (d) Charter analysis so long as the discretion it affords is exercised in accordance with the statute: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (“Suresh”); Khalil v. Canada (Minister of Citizenship and Immigration), 2009 FCA 66.
[61] In the event that I have erred with respect to the conclusion that I have reached regarding the disposition of this matter, I think it necessary to address the merits of the preliminary assessment made by CBSA. In oral argument, the applicants asked me to comment on the assessment, even if I determined there was no reviewable decision to exclude Mr. Galloway, as there continues to be a live controversy between the parties on that issue. Galloway may wish to come to Canada again and the assessment, if unquestioned, may be used to inform any future decision by a visa officer as to his admissibility.
[62] The issues raised by the parties can therefore be narrowed to the following:
1. Do the applicants, other than Mr. Galloway, have standing in this application for judicial review? Were their Charter section 2 rights infringed?
2. Was CBSA’s preliminary assessment that Mr. Galloway may be inadmissible on security grounds reasonable?
3. Was there a “decision, order, act or proceeding” subject to judicial review pursuant to section 18.1 of the Federal Courts Act?
Analysis
Legislative Framework:
[63] Section 18.1 of the Federal Courts Act, R.S. 1985, c. F-7 sets out the authority of the Court to review and set aside decisions or actions of federal institutions. The relevant provisions are subsections 18.1 (1), (3) and (4) which read as follows:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
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(3) On an application for judicial review, the
Federal Court may
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
(a) order a federal board, commission or
other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
(b) declare invalid or unlawful, or quash, set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal
board, commission or other tribunal
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas:
(a) acted without jurisdiction, acted beyond
its jurisdiction or refused to exercise its jurisdiction;
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure
that it was required by law to observe;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;
(c) erred in law in making a decision or an order, whether or not the error appears on the
face of the record;
c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
(d) based its decision or order on an erroneous
finding of fact that it made in a perverse or capricious