Highlights of the 27-September-2010 Galloway Decision

To download the full decision, please go here.

Galloway was banned for political reasons:

“[86] In this case, the evidence is not that the government sought to restrict the right of the other applicants to receive the information. They could, through many other means, and in fact did, hear Galloway speak, albeit under strained conditions. Rather, the 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 expected him to deliver. But it is not clear that the actions taken prevented the transmission of those messages. Indeed, they arguably attracted more publicity both here and abroad to what Mr. Galloway had to say.”


Government interference threatens Canadians’ free speech rights:

“[91] 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: R. v. Ahmad, [2009] O.J. No. 6151 at para. 123, citing the concurring judgment of Justice Lamer in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123.”


Why government’s assessment of Galloway is flawed:

“[98] 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.”


Government cannot claim that Galloway supports Hamas:

“[107] The assertions that Galloway has publicly shown support for Hamas and delivered aid to them are repeated on several occasions in the assessment. They appear to be the basis for the conclusion that there may be reasonable grounds to believe Galloway has engaged in terrorism or is a member of a terrorist organization. However, there is no analysis in the document of Mr. Galloway’s purpose in delivering the aid or analysis of how his purpose would enhance the ability of Hamas to facilitate or carry out a terrorist activity. Nor is there any apparent consideration whether Galloway, in going to Gaza, was making a political statement in opposition to the blockade rather than expressing support for Hamas.”


Galloway’s aid to Gaza was used for humanitarian purposes:

“[108] The respondents argue, fairly, that funds provided to an organization for one purpose may be used by the organization for another purpose that falls within the Code definition of a terrorist activity. This may be the case, for example, where aid provided for an innocent purpose frees up resources that can be employed to carry out a terrorist attack. As stated by Chief Justice Roberts at page 10 in Holder, above, “designated foreign terrorist organizations do not maintain organizational firewalls between social, political, and terrorist operations, or financial firewalls between funds raised for humanitarian activities and those used to carry out terrorist attacks”.

“[109] While this is no doubt true in many instances, there is no evidence on the record that it happened in this case. The respondents do not challenge the applicants’ evidence that the money was used for humanitarian purposes.”

“[110] The Court is not so naïve as to believe that Hamas is above taking advantage of the goodwill of others who contribute funds to them for humanitarian reasons. 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.”


Government’s interpretation of anti-terror legislation is too broad:

“[114] 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.”


The government has no evidence to call Galloway a terrorist:

“[115] In Pushpanathan, above, before Justice Pierre Blais, as he then was, complicity was an issue because the Refugee Protection Division had found that the applicant was excluded from refugee protection because of his support for the terrorist activities of the Liberation Tigers of Tamil Eelam (LTTE). The applicant had raised funds for the LTTE through narcotics trafficking. Justice Blais specifically found, at paragraph 48, that the applicant’s criminal activities demonstrated that he had a “personal knowing participation” and “shared a common purpose” with the LTTE. The evidence in this case falls far short of painting Galloway with the same brush.”


Government may not interpret humanitarian aid to Gaza as support for terrorism:

“[118] The phrase “member of an organization” is not defined in the statute. The courts have not given it a precise and exhaustive definition. It is well-established in the jurisprudence that the term is to be given an unrestricted and broad definition: Poshteh above at para. 27; Canada (Minister of Citizenship and Immigration) v. Singh, (1998), 151 F.T.R. 101, 44 Imm. L.R. (2d) 309 at para. 52. But an unrestricted and broad definition is not a license to classify anyone who has had any dealings with a terrorist organization as a member of the group. Consideration has to be given to the facts of each case including any evidence pointing away from a finding of membership: Poshteh, at para. 38. I see no indication in the preliminary assessment that the authors gave any weight to factors other than the financial and other material which Galloway delivered to Hamas.”


Galloway was never a national security threat:

“[119] It is worth noting that Suresh and several of the other cases cited by the CBSA authors in support of their assessment were cases in which national security concerns were invoked. 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. It is not clear whether the authors were aware of that fact. It is not reflected in the assessment and only came to light on production of the e-mail record.”

“[122] Hajialikhani was another case of exclusion because of a long association with a terrorist organization. The quotation from the judgment is coupled in the assessment with the comment that: “Galloway’s open support for Hamas and its cause demonstrates that his support is more than nominal”. Apart from the lack of any connection to the point made in Hajialikhani, Hamas’ cause is not defined. It may be that the authors had in mind that Hamas’ cause was to defeat the blockade. They may have viewed Galloway’s opposition to the blockade as support for that cause. But that still does not make him complicit in any crimes Hamas has or will commit without evidence of support for that purpose.”


Highest levels of government attempted to ban Galloway, although no final decision was made:

“[142] The applicants’ submit that the letter is reflective of a decision that had already been taken at the highest levels of government to exclude Mr. Galloway. There is support in the record for that proposition, such as in Mr. Velshi’s statements to the press and Mr. Orr’s e-mails of March 19 and 20 to Mr. Wright. 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. Nonetheless, the decision was inchoate or incomplete until it was acted upon, which in this case did not occur. Nor was any action taken to confirm the statements that a TRP would not be granted as none was requested.”


If Galloway had been ruled inadmissible at the border, it would have been a biased decision because of government interference:

“[148] 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.”