Tuesday, September 28, 2010

The Galloway story: in which everybody wins and loses

George Galloway's case against the federal government for barring him from entry to Canada has been lost on a technicality. He was never actually barred, as it happens, simply told that he would be if he showed his face at the border. In the words of Mr. Justice Richard Mosely:

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.

The distinction in law is clear enough, although for most of us it's a distinction without a difference: how many of us would pay for a flight to China after being warned by the government that we would be refused entry upon landing?

Never mind. I wept few tears at the time, and I'm not about to start now. Besides, in this gaseous competition of world-class windbags, Galloway is well-matched, it seems, by Jason Kenney and his young ward Alykhan Velshi.

The full judgement may be read here. If you like to read clearly-written jurisprudence, grab a coffee and prepare to be entertained.

Justice Mosely, not to put too fine a point upon it, is less than impressed by the clownish performance of the government on this file, referring almost at the beginning of his judgement to its

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.

It only gets better from there.

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. [emphases added]

What say you, Speech-Warrior-in-Chief?

Velshi himself gets a finger-wagging:

While one might hope that a ministerial aide would exercise greater restraint in purporting to speak on behalf of the government, his comments to the press amount to little more than posturing.

Finally, had the matter proven to be judicially reviewable, Justice Mosely leaves no doubt as to the outcome:

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 emails and statements to the press raised a reasonable apprehension of bias. [emphasis added]

So who wins? The government successfully defended itself in a court of law. Galloway was raised from relative obscurity to the subject of a continuing national news story. His followers found themselves with a cause célèbre; his enemies fumed and exulted by turns, two of their chief pleasures in life.

And who loses? Well, Galloway lost his lawsuit. His supporters lost their chance to dance in the streets. His enemies are angry. And the Harper government, in the person this time of the virginal Jason Kenney and his infandous assistant, looks once again like the collection of horses' asses that it is.

Bravo. And I'm all out of popcorn.

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