Editor's update: Former British MP George Galloway will now arrive in Toronto on Saturday, Oct. 2, to resume his pan-Canada speaking tour after being prevented from entering the country in March 2009. A welcome rally will assemble at 5 p.m. at the Terminal 1 arrivals gate at Lester B. Pearson International Airport, where Galloway will hold a 15-minute press conference.
On Sunday, Oct. 3, at 3 p.m., Galloway will address a public meeting at Trinity-St. Paul's United Church, 427 Bloor Street, in downtown Toronto. This event is sponsored by rabble.ca, and will be livestreamed on rabbleTV.
Eighteen months ago, Minister of Citizenship and Immigration Jason Kenney blocked then-British MP George Galloway from Canada, labeling him a terror supporter and a national security risk. At the time, Galloway was scheduled to appear in four Canadian cities on a speaking tour called "Resisting War: from Gaza to Afghanistan."
Galloway and his supporters protested, saying the move was a crass political attempt to silence criticism of Canadian foreign policy on Afghanistan and Palestine. Weeks before the ban, Galloway had led a humanitarian aid convoy to Gaza as part of an international campaign to break Israel's illegal blockade.
This week, after Federal Court Justice Richard Mosley issued his 60-page decision on the matter, Galloway and his supporters were fully vindicated.
But you wouldn't know it from reading the mainstream media's response to the decision. Most headlines declared that Galloway "lost" his appeal because the judge dismissed the case. Justice Mosley ruled that, since Galloway had not been denied entry into Canada at the border, a final decision on his admissibility had not been made. This meant that Justice Mosley had no decision to overturn. Consequently, Justice Mosley dismissed the case, but not before agreeing with every other claim made by Galloway and his supporters. This is what most mainstream media seems to have missed.
The ruling is a victory for three reasons:
First, it exposes and documents the Conservatives' ham-fisted attacks on Canadians' free-speech rights. Galloway and his supporters argued that Kenney's decision was purely a political one that had nothing to do with national security. Justice Mosley agrees:
"[T]he evidence is that the government wished to prevent Mr. Galloway from expounding his views on Canadian soil. I agree with the applicants that based on the evidence of the e-mails and public statements in the record, the concern with Galloway's anticipated presence in Canada related solely to the content of the messages that the respondents [the government] expected him to deliver."
Justice Mosley also acknowledges that the "highest levels of government" tried to influence the outcome of a potential admissibility assessment by the Canadian Border Services Agency (CBSA) at a Canadian port of entry:
"It is also clear that the preliminary assessment was prepared with the intention that it be used to justify a CBSA officer's determination that Mr. Galloway was inadmissible should he appear at the border."
This vindicates Galloway's concerns that he would be deemed inadmissible at the border -- which is what he was told in a letter from the Canadian High Commission before he left the UK. Galloway was right to worry about the possibility of being detained indefinitely at the Canadian border or, worse, being returned to the United States (where he was conducting a speaking tour at the time) for being a "national security risk" in Canada -- an event that would have jeopardized his status on American soil.
Justice Mosley anticipates such a scenario in his ruling:
"Had Galloway actually been found inadmissible by a visa officer relying on the preliminary assessment and the alerts sent to the border points, I would have had little difficulty in concluding that the officer's discretion had been fettered by the process followed in this case and that the e-mails and statements to the press raised a reasonable apprehension of bias."
This leads to the second reason the ruling is a victory for Galloway: it paves the way for his return to Canada. Should Galloway turn up at a Canadian point of entry -- something that Galloway is expected to do very soon -- a CBSA officer will have to rule on his admissibility. In light of the decision, it will be impossible for an officer to deem Galloway inadmissible based on the politically compromised preliminary assessment. The ruling should be seen as a warning to the government to end its political interference to block Galloway's entry to Canada.
The third reason the ruling is a victory for Galloway is that it unequivocally dismisses the government's claims that Galloway is a national security threat or a supporter of terrorism. Justice Mosley writes:
"From the evidence on the record, the question of Galloway's admissibility was never an issue of national security. As indicated above, CSIS was consulted prior to the writing of the CBSA assessment and had no national security concerns about his visit."
During the Federal Court hearing, it became clear that Jason Kenney's Director of Communications -- Alykhan Velshi, the staffer who set the ban in motion -- did not include CSIS's findings in the preliminary assessment.
Justice Mosley also slams how the government made its assessment:
"The assessment is not reasonable, in my view, as it overreaches in its interpretation of the facts, errs in its application of the law and fundamentally fails to take into account the purposes for which Galloway provided aid to the people of Gaza through the Hamas government. I think it necessary to discuss my reasons for this conclusion in some detail to assist the parties should the question of Mr. Galloway's admissibility arise again."
This last sentence anticipates Galloway's likely return, a scenario in which the CBSA will have to make a ruling on Galloway's admissibility. The decision is so clear in its language that it should help ease Galloway's entry into Canada should he appear at the border.
In addition, Justice Mosley dismisses the government's familiar refrain that Galloway's humanitarian support for the people of Gaza is the same as support for terrorism. Justice Mosley writes:
"To suggest, however, that contributions to Hamas for such purposes makes the donor a party to any terrorist crimes committed by the organization goes beyond the parliamentary intent and the legislative language. The purpose to which the funds are donated must be to enhance the ability of the organization to facilitate or carry out a terrorist activity. Absent such a purpose, the mere assertion that material support was provided to such an organization is not sufficient. To hold otherwise could ensnare innocent Canadians who make donations to organizations they believe, in good faith, to be engaged in humanitarian works."
The last sentence is critical: it makes clear that similar initiatives by Canadians -- think of the Canadian Boat to Gaza -- cannot be labeled as support for terrorism. They are humanitarian in nature.
By these criteria, even though the application was ultimately dismissed, the ruling sides overwhelmingly with Galloway and his supporters. The government and its backers in the press may try to spin it as a defeat for Galloway, but they really have nothing to cheer about: the government's political interference has been exposed and condemned, the door is now open for Galloway to return to Canada this weekend, and the government's unfounded allegations against Galloway have been dismissed.
But the ruling also raises some very troubling questions.
The most alarming concern is the way in which the government continues to exploit Canada's so-called anti-terror legislation to stifle dissent. This is a long-standing criticism of Canada's post-9/11 restrictions on civil liberties. Legal experts have pointed to the vague and undefined language of anti-terror laws that allows for the broadest possible interpretations of "terrorism."
Justice Mosley makes a similar point:
"As there is no evidence of Galloway actually participating in a terrorist activity, complicity is the only basis upon which it can be asserted that he could fall within the scope of paragraph 34(1) (c) as ‘engaging in terrorism', assuming that this extension of the complicity principle is warranted. Again, I think that it is overreaching on the facts of this case and the law to suggest that Galloway is complicit in the terrorist activities of Hamas."
This is significant for civil liberties campaigners and legal experts who criticize Canada's anti-terror laws: the ruling raises questions about their constitutionality and opens the door to further legal challenges.
Justice Mosley seems to anticipate this by identifying the way in which the government's political interference undermined Canadians' free speech rights. He writes:
"In the result, I agree with the applicants that the activity for which they seek s. 2 (b) protection is a form of expression. I also agree with the applicants that the main reason why the respondents sought to prevent Mr. Galloway from entering Canada was that they disagreed with his political views. If the respondents' purpose was to restrict the content of the expression in order to control access by others to the meaning being conveyed, it limits freedom of expression..."
If the Galloway ban were an isolated incident, it would be serious enough on its own to raise concerns about the state of free speech in Canada. Sadly, it is part of a much wider pattern of government-led repression against critical voices in Canadian civil society. In the last few years, the Conservative government led by Stephen Harper has exercised its political power to attack and smear its political opponents.
The list of its targets is long:
• Canadian diplomat Richard Colvin who blew the whistle on the torture of Afghan detainees.
• MPs who requested access to secret files about the involvement of Canadian troops in the torture scandal.
• New Democratic leader Jack Layton, who was labeled "Taliban Jack" for suggesting a negotiated settlement to the war in Afghanistan.
• The Canadian Arab Federation, whose funding was cut following its criticism of Canada's support for Israel's war on Gaza.
• KAIROS, a human rights organization representing 11 of Canada's largest Christian churches, which was labeled "anti-Semitic" following its criticism of Israel's occupation.
• Rights and Democracy, government-supported human rights body whose leadership was stacked with conservative ideologues.
• The United Nations Relief and Works Agency (UNRWA), which was smeared as having "terrorist" links.
• Independent Palestinian MP, Dr. Mustafa Barghouti, whose speaking tour in Canada was delayed because the government held up his visa.
• Students involved in Israeli Apartheid Week (IAW) and other Palestine solidarity campaigns.
• Maternal health and women's organizations which were told to "shut the fuck up" on abortion to preserve their funding.
• And hundreds of G20 demonstrators and ordinary citizens swept up in the largest mass arrest in Canadian history.
The list goes on. These attacks have contributed to a McCarthy-like atmosphere in Canada where critics of government policy can expect state-led retribution for expressing their views. The significance of the Galloway ruling is that it exposes how the government organizes these attacks: the court record that documents the minute-by-minute chronology of the Galloway ban is instructive.
The Galloway ruling also contradicts Kenney's statements to the media and in the House of Commons in which he either denies involvement in the ban or avoids answering questions about it.
See Kenney's response to Olivia Chow, New Democratic Party critic for Citizenship and Immigration, who questions Kenney in Parliament about his government's double-standard in welcoming hate-monger Ann Coulter to Canada while blocking Galloway.
The sharp contrast between Kenney's public claims and the court records raises questions about the credibility of his comments in the House of Commons. This alone should justify Kenney's dismissal from cabinet.
But who will hold Kenney to account for his role in attempting to ban Galloway? What about Alykhan Velshi? Will Kenney stand by his statement that ministers must take responsibility for the actions of their staff?
In May 2010, Kenney stated on CTV's Power Play with Tom Clark:
"The principle is a very simple one: that ministers are accountable to Parliament for the conduct of their ministries and their offices... The political staff of ministers are there to serve the minister. The minister answers for their conduct, is responsible for their conduct to Parliament... They're not accountable to Parliament; their boss is. We're saying it's the bosses who should be answering for their conduct and that of their office. And that underscores the principle of parliamentary responsibility."
And what will opposition MPs say about the ruling? Will they demand that Kenney be censured or forced to step down as minister? How much more blatant does a government-led attack on civil liberties have to be to merit serious and sustained criticism from the Opposition? Aside from a few lone voices like those of Olivia Chow, very few MPs have made this an issue.
As a consequence, the responsibility to hold Kenney and the Conservative government to account falls largely to ordinary people and the social movements. Activists must mobilize in greater and greater numbers to defend any semblance of democracy and accountability in Canada, and to push their elected representatives to express the public's outrage.
In the coming days, Galloway is returning to Canada, to deliver the message he was prevented from delivering in person 18 months ago. His return will be a test of all of us who support free speech, free expression, and civil liberties.
It is up to us to hold Kenney to account for this most recent abuse of government power. Let's not miss this opportunity.
To download the full decision of the Federal Court, please click here.
To read highlights of the decision, please click here.
James Clark is a member of the Toronto Coalition to Stop the War and an applicant in the case brought by supporters of George Galloway against the Government of Canada.