National security claim rejected by judge in bid to redact Galloway emails

| April 20, 2010
British MP George Galloway speaking in Trafalgar Square, London. Photo: Charlie Thompson

The following is the second of two articles looking into the curious case of the banning of British socialist MP George Galloway from Canada in March 2009.

Last winter saw a mad scramble by the legal team representing the Government of Canada in the George Galloway banning case -- the lawyers were trying to regain control over something precious that had been accidently sent to their opponents.

Galloway and his supporters launched a court action against the government when he was barred from entering Canada in March 2009 after being invited to give four lectures in Toronto, Mississauga, Ottawa and Montreal. The aim was to overturn the ban.

To their surprise, a 66-page dossier of important internal government emails, memos, and letters relating to the case was mistakenly mailed to them in Nov. 2009.

These items were of particular importance to the Respondents -- Jason Kenney, Minister of Citizenship and Immigration, and Peter Van Loan, then Minister for Public Safety and Emergency Preparedness, who was responsible for the Canadian Border Services Agency.

The documents primarily covered a four-day period, from March 16 to March 20, 2009, when bureaucrats in Ottawa and London hurried to build the case against Galloway. Initially, the haste was due to a need to have an official decision in place before the proposed start date of his Canadian visit, March 30. But on March 20, the British tabloid The Sun splashed with the exclusive that Galloway was banned. This was prior to the man himself being informed, and the officials acted even more quickly as they attempted to limit the damage.

This was especially important to them as it seemed possible that since the publication of the story took place before Galloway himself was informed, Canada's Privacy laws might have been broken.

To have such information was, of course, a godsend to Galloway's legal team, providing an important outline of the inner workings of the bureaucratic machine that made the ban possible.

The dossier also showed that Minister Kenney's director of communications, Alykhan Velshi, had been the apparent initiator of the investigation into Galloway's visit to Canada, and was in direct contact with the bureaucrats responsible for Galloway's case in the run-up to the banning, placing pressure and praise on them where appropriate.

An attempt to redact the Galloway dossier

The Canadian government's legal team sought to redact these 66 pages, officially known as the Court Tribunal Record, by using Section 87 of the Immigration and Refugee Protection Act, which claims that documents should be redacted in order to protect national security. It was an attempt to cover up the information.

They demanded that Galloway's lawyers return the dossier unopened and unread in order for its contents to be redacted.

In a letter on April 6, 2010, the lawyers representing the Applicants -- Galloway's legal team -- recounted what happened:

"By letter dated November 20, 2009, counsel for Respondents notified the Court and the Applicants that the CTR [the 66-page Court Tribunal Record] ... was sent to the Court and to the Applicants by mistake. It was demanded in the same letter that said CTR be returned back to the Respondents unopened and unread. This is also because according to the Respondents the record needed to be redacted for national security concerns. No indication of the extent of intended redaction or the nature of national security concerns was provided by the Respondents."

By that time, however, the package had been opened and the documents had been viewed.

What followed was several weeks of motions and affidavits in which the government side sought to have the documents nevertheless declared in need of redaction, with Galloway's lawyers contesting this vigorously.

The judge, Justice Richard Mosley, declined this request on Jan. 4, 2010, with some minor exceptions. (See Page 1, Page 2 and Page 3 of the decision)

The main body of the dossier, dozens of pages of correspondences outlined in the first story of this two-part series, were shown to include the strategy for dealing with the Galloway problem, and provided an understanding of the responses and requests of some of the individuals involved, particularly that of Velshi, Minister Kenney's right-hand man.

One page, page 52 of the dossier, was blacked out. It was a report from a CIC agent in London, apparently informing her superior that she had located Galloway and officially told him of his being banned from Canada and noting his reaction. (This was gleaned by reading other the emails in the dossier, but cannot be fully confirmed, nor are the exact details known.)

Did this dossier contain information essential to preserving Canada's National Security? The judge, for the most part, didn't think so.

Were they, instead, merely pages that could potentially embarrass those who provided the information on the best way to ban Galloway quickly? Apparently.

What would certainly be potentially embarrassing to Kenney, and something he would not like to see made public, is his communications officer's references to him and assurances to officials that Kenney would not overrule their strenuous efforts to ban Galloway, which he had the right to do as minister, though not the inclination.

Covering up the perceived involvement of a minister in what is a legal process of banning an individual can smack of political interference. And the possibility, as shown in the emails, that Galloway's privacy rights had been contravened because of a newspaper article that was published before he was given official word of his being banned from Canada, is also not good.

And simply through the act of attempting to redact this information, the government, through its lawyers, seemed to be less than open and transparent.

If all this is the case, it is a frivolous use of the process of redaction, an important tool used by governments to keep the secrets of State to themselves -- particularly popular, it seems, in this age of Orwellian paranoia and conflict in which we find ourselves.

If it is simply used to obscure information that might affect careers or embarrass individuals, the trust of a nation can be damaged. What can be applied in the case of Galloway can also be applied, in other instances, to other people -- and a small army of civil servants will make it so.

The goings on contrasted with interviews Kenney gave at the same time, including this one with Campbell Clark of The Globe and Mail, where "he said he was not ‘personally' consulted by the CBSA, although his aides were aware of the case":

"'There was some discussion in my office, but I could not and cannot give direction to agents of the CBSA, who are not even in my ministry,' Mr. Kenney said."

"Could not and cannot" are emphatic words, which seems contradicted by Velshi's emails, which, thanks to their not being redacted, are available to readers so they can decide for themselves how much involvement the minister had in the efforts to ban Galloway.

Kenney addresses the Galloway ban in The Commons

In a Q & A interview with Maclean's magazine writer Kenneth Whyte a month after the banning of Galloway came into effect, and after the British MP had delivered his speeches via live video link from the U.S., Kenney gave a combative answer when pushed on his role in the affair:

"Q: Why is a self-described free speech hawk banning George Galloway from Canada?

A: ... I reject the premise of your question. Mr. Galloway received a preliminary notice of determination by the Canadian Border Services Agency that he might be inadmissible to Canada, I gather based in large part on his public admission that he provided funds to Hamas, a banned illegal terrorist organization, which would seem -- on the face of it -- to constitute grounds for inadmissibility under Section 34(1)f of the Immigration Refugee Protection Act."

To clarify, Section 34(1)f of the Immigration Refugee Protection Act [which can be seen in its entirety here] states the following:

34(1)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).

And to clarify this further, (a), (b) and (c) are:

(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.

Kenney confirms in his statement that the Canadian government felt they had proof that Galloway had broken one or more of these rules in his work with his charity Viva Palestina, which took £1 million in humanitarian aid to Gaza in early March 2009. The details of the high-profile event are described in the first article of this series.

The second part of his answer to Whyte's question takes Kenney into new territory:

"A: [Galloway] was invited to provide submissions to the CBSA to inform their consideration of his potential application to enter Canada. He never provided them with any such submissions and he never presented himself to a point of entry where he would have had, at that point, a final decision on his admissibility, and had he been determined to be inadmissible by an officer at a port of entry he would have been able to apply for an inadmissibility hearing. So there's a whole process that we have under our law to make determinations independently of politicians about admissibility. I simply said publicly that I would not use my extraordinary ministerial power to effectively overrule a decision of a CBSA officer on his admissibility. Why? Because I didn't see any compelling reason." [Emphasis mine.]

This interview, of course, took place long before the contents of the dossier were known to Galloway's lawyers. It should be pointed out that Kenney is not an immediate, named recipient or sender of any of the correspondences in the dossier. However, Velshi, his director of communications is, takes an intimate role in the proceedings, and describes the minister's position more than once, blurring the line of bureaucratic independence. And many of the civil servants are clearly eager to be helpful, as their own responses show.

Just four weeks ago, on March 23, 2010, at the height of the protests and arguments set off by the controversial speaking tour of American neo-conservative mouthpiece Ann Coulter, the following exchange took place in the House of Commons between NDP MP Olivia Chow and Kenney and was recorded in The Hansard:

"Ms. Olivia Chow (Trinity-Spadina, NDP):

Mr. Speaker, once again the government is showing its hypocrisy. A year after banning anti-war MP George Galloway from entering Canada, the minister of censorship has no problem with letting a pro-war conservative come and preach hate.

Ann Coulter said:

‘...the government should be spying on all Arabs, engaging in torture as a televised spectator sport, dropping daisy cutters wantonly throughout the Middle East...'

I am all for freedom of speech, but why the double standard?

Hon. Jason Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC):

Mr. Speaker, I am surprised the member does not understand Canadian immigration law. It is not politicians who decide who can come into the country, it is professional members of the public service.

In the case, for instance, of Mr. Galloway, Mr. Galloway received a preliminary inadmissibility determination by an officer of the Canada Border Services Agency, I presume based on the fact that he publicly and overtly handed tens of thousands of dollars to the leader of a banned anti-Semitic terrorist organization called Hamas. [Emphasis mine.]

If the hon. member has information on anyone who comes to Canada that she thinks would be the basis for an inadmissibility review, I invite her to furnish that to the president of the Canada Border Services Agency.

Ms. Olivia Chow (Trinity-Spadina, NDP):

Mr. Speaker, newly-filed court documents revealed that the minister was active in stopping Mr. Galloway from crossing the border. CBSA was told that Galloway could not be admitted under any circumstances.

For this government, a pro-peace British MP is a threat, but a pro-war conservative, who said that Jews needed to be perfected and called Muslims insane savages, is fine.

Will the minister admit he supports free speech only if he agrees with the speaker, or is this more Conservative hypocrisy?

Hon. Jason Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC):

Mr. Speaker, this government supports free speech within Canadian law. If the hon. member has any information that she thinks would render a visitor to Canada inadmissible, she should supply that information to the CBSA. It can take it into account.

It did take into account Mr. Galloway's admission of having financed the leadership of Hamas, which is a banned terrorist organization. I simply made it clear that I was not going to grant a ministerial permit to effectively override the inadmissibility determination of the CBSA because I actually happen to believe that we should enforce the law and not allow financiers of terrorist organizations to come to Canada." [Again, emphasis mine.]

It is, of course, unknown as to whether Kenney ever read the contents of the 66-page dossier prior to making this rebuttal to Chow's questions in The House of Commons. Presumably, he would have thought twice wording his response this way had he seen Velshi's emails and other comments, made as Velshi was in hot pursuit of the ban on an elected British MP.

The minister, as already stated, was mentioned by Velshi in the dossier on several occasions, and his emails implied that Kenney was involved in the ongoing process to ban Galloway.

Did Minister Kenney mislead the House of Commons? Ultimately, this is a question for his political peers to pursue should they decide that upon reviewing the evidence presented in the dossier and in these and other articles that he actually did so.

PMO/PCO involvement

There is no evidence that Prime Minister Stephen Harper has any involvement in this case, but his offices were certainly drawn in.

Harper was due to fly to England just after the Galloway controversy broke in the British media. In the email exchange on the afternoon/evening of March 19, 2009, the Privy Council Office and, through them, the PMO, were brought into the loop.

According to the times printed on the emails, they became involved after Velshi had given his interview to The Sun newspaper.

One email , from Canada's High Commissioner to Britain, Jim Wright , to London-based CIC representative Robert Orr, said he was waiting for guidance on whether to contact Galloway's office that evening before The Sun story came out.

He told Orr he awaited a response from Marie Lucie Morin, the national security advisor to the prime minister and associate secretary to the Cabinet, and Claude Carriere, the foreign and defence policy advisor. Both are from the Privy Council Office.

Carriere responded with:

"We spoke with PMO/O'connor. They are aware of implications you have identified as well as fact that Galloway is admissible to the U.S. and are comfortable with denying him entry."

It seems like the High Commissioner may have wanted someone who had expertise and authority regarding the whole "inadmissibility" issue in the PMO and/or PCO to give the banning its blessing -- given that national security was the rationale for the decision. It can't be a coincidence that it was Carriere and Morin who were contacted rather than someone else, such as a communications officer.

There is no correspondence from Morin in the dossier.


One thing in this whole saga is certain -- a large number of people at various levels in the Canadian government went to extreme lengths in order to keep Respect MP George Galloway out of Canada. But they made mistakes, which is why this story has come into the public domain and can be considered by journalists and the public.

Even now, Galloway may get his ban lifted, if the court proceedings go his way.

But no one has yet added up the cost to Canadian taxpayers. Whether Galloway wins or not, with the court case and various hearings spreading out over an extended period, this obsession in keeping him physically out of Canada will prove to be an expensive exercise for us all.

And the costs to Canada's freedom of speech traditions are also high, as this sad story shows.

The hearing to overturn the ban on Galloway

The two sides are due to meet for the first time in the Federal Court of Canada in Toronto on Monday, April 26. Lawyers representing Galloway and the organizers of last year's speaking tour will be in a final push to overturn Kenney's ban. The Canadian Civil Liberties Association will be joining them, having been granted leave to take part in the case.

The hearing is open to the public and is due to begin at 9:30 a.m., in the Federal Court Building on Queen Street West. There will be a rally preceding the hearing, starting at 8:30 a.m., and solidarity rallies at federal court buildings in Ottawa, Montreal, Vancouver, Winnipeg, Edmonton and elsewhere. Click here for more information.


Murray Dobbin,'s senior contributing editor, will look at the implications of Jason Kenney's political interference in the Galloway case -- for his own position as minister, for the censored documents in the Afghan detainee issue and for Canadian political discourse.

Cathryn Atkinson is's news and features editor.




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