Date: 20090330
Docket: IMM-1474-09
Citation: 2009
FC 326
Ottawa, Ontario, March 30, 2009
PRESENT: The Honourable Mr. Justice Martineau
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,
and DENIS LEMELIN,
LORRAINE GUAY
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER AND ORDER
[1]
This
urgent motion for the issuance of an interim order was heard yesterday.
[2]
George
Galloway, one of the applicants in the herein proceeding, is a British citizen
and member of the Parliament of the United Kingdom. He is due to speak tonight in Toronto at a public forum
entitled “Resisting War from Gaza to Kandahar”, hosted by the Toronto Coalition
to Stop the War, one of the other applicants in the herein proceeding. Other
engagements to speak in Mississauga, Montreal
and Ottawa are scheduled for March 31,
April 1 and April 2, 2009 respectively.
[3]
Mr.
Galloway has been in Canada before and has spoken to
Canadian audiences as well. He has no criminal record and has apparently never
had a problem entering any country. He is currently on a speaking tour in the United States and intends to present
himself at the Lacolle, Québec port-of-entry sometime this afternoon. However,
he has no desire to be detained in Canada on the grounds that he is
inadmissible to Canada.
[4]
The
applicants bring this motion seeking an order of this Court to permit Mr.
Galloway to enter Canada. To succeed in this motion,
the applicants must persuade me that: (a) there is a serious issue to be tried;
(b) the applicants would suffer irreparable harm if their motion does not
succeed; and (c) the balance of convenience favours the applicants. All three
parts of this test must be met. Before turning to the elements of the test for
granting the motion, I will set out some of the relevant background and facts.
[5]
As a
British citizen, Mr. Galloway does not require a temporary resident visa to
visit Canada: paragraph 190(1)(b)(i) of
the Immigration and Refugee Protection Regulations, SOR/2002-227, as
amended (the Regulations). Neither does he need to obtain a work permit as a
guest speaker: paragraph 186(j) of the Regulations. That said, every person
seeking to enter Canada must appear for an
examination to determine whether that person has a right to enter Canada or is
or may become authorized to enter and remain in Canada: subsection 18(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the Act).
Practically speaking, this examination would be conducted by an officer of
Canada Border Services Agency (the CBSA) at the time Mr. Galloway presents
himself at a port-of-entry: subsection 15(1) of the Act and paragraph 28(b) of
the Regulations.
[6]
A
permanent resident or foreign national is inadmissible on security grounds where
there are reasonable grounds to believe that the facts referred to in subsection
34(1) of the Act have occurred, are occurring or may occur: section 33 of the
Act. Engaging in terrorism or being a member of a terrorist organization are
grounds of inadmissibility: paragraphs 34(1)(c) and (f) of the Act. However,
the matters referred to in subsection 34(1) of the Act do not constitute
inadmissibility in respect of a permanent resident or a foreign national who
satisfies the Minister (in this case, the Minister of Public Safety and
Emergency Preparedness) that their presence in Canada would not be detrimental
to the national interest: subsection 4(2), 6(3) and 34(2) of the Act.
[7]
An officer
who is of the opinion that a permanent resident or a foreign national who is in
Canada is inadmissible may prepare a
report setting out the relevant facts, which report shall be transmitted to the
Minister. If the Minister is of the opinion that the report is well-founded,
subject to certain exceptions, the Minister may refer the report to the Immigration
Division of the Immigration and Refugee Board for an admissibility hearing. In
those cases, the Minister may make a removal order. See subsections 44(1) and
44(2) of the Act. In the meantime, a temporary resident permit may be delivered
to the foreign national who is inadmissible if an officer is of the opinion
that it is justified in the circumstances. However, the officer shall act in
accordance with any instruction that the Minister may give: see subsections
24(1) and (3) of the Act. That said, both the officer and the Immigration
Division are empowered to arrest and detain, or as the case may be to order or
maintain the detention of the permanent resident or foreign national, where
there are reasonable grounds to believe that the latter is inadmissible and is
a danger to the public, or is inadmissible on grounds of security. See sections
55 to 58 of the Act.
[8]
Mr. Galloway’s
personal views and open sympathies for the Palestinians and their cause have
become a matter of public record. Earlier this month, media reported that he
was part of a convoy organized by Viva Palestina which delivered financial and
material assistance to Gaza and that he would personally donate ₤25,000
($45,000) and a fleet of vehicles. This apparently prompted the Hamas government
in Gaza to deliver a Palestinian
passport to Mr. Galloway.
[9]
The
applicants, who include individuals and other interested organizations, now
fear that the applicant Galloway will not be allowed to enter the country, but
may even be detained if he seeks to enter at a port-of-entry. Mr. Orr, an
official of the High Commission of Canada, Immigration Section, by letter dated
March 20, 2009, has advised the applicant Galloway, apparently as a matter of
“courtesy”, that according to the “preliminary assessment” of the CBSA, he is
inadmissible to Canada on security grounds:
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 material support for this
organization makes you inadmissible to Canada …
[10]
Mr. Galloway
is invited by the letter above to make submissions and is further advised that
“[if] we do not receive any submissions on or before March 30, 2009, and you
present yourself at a Port of Entry, the CBSA officer will make a final
determination of inadmissibility based on this preliminary assessment and any
submissions you may make at the time”. Moreover, Mr. Galloway is informed that,
in the event an application for a temporary resident permit is submitted in
order to overcome this inadmissibility, it is unlikely that the application
would be successful. Written representations have been submitted by applicant Galloway’s counsels with respect to
the allegations or inferences mentioned by Mr. Orr in his letter dated March 20,
2009. No reply with respect to same has been made by the respondents or their
representatives.
[11]
Challenging
by way of an application for leave and judicial review the legality of the actions
made or announced in the letter dated March 20, 2009 (the impugned decision), the
applicants now seek an interim order enjoining the respondents and their
officials from denying Mr. Galloway entry to Canada, between March 30 and April
3, 2009, on the basis that he is a person described in subsection 34(1) of the Act.
[12]
Sections
18.2 and 44 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended,
as well as rules 372 and 373 of the Federal Courts Rules, SOR/98-106, as
amended, clearly empower a judge of the Court, upon motion, to grant interim
relief in the form of an interlocutory injunction especially when the right the
applicant seeks to enforce or protect can only be exercised immediately or not
at all. An interlocutory injunction is typically sought so as to preserve
matters as they are until a final determination of the issues. All elements of the
known tri-partite test mentioned at paragraph 4 of the present reasons must be
met.
[13]
First, on the
basis of the evidence and representations submitted by the parties, I am
satisfied that there are serious issues to be tried. Most issues, if not all,
raised by the applicants in their motion material meet the low threshold
established by the case law.
[14]
The applicants’
argument that the reasonableness of the impugned decision can be examined on
its merits by the Court is certainly not frivolous or vexatious. While Mr.
Orr’s letter of March 20, 2009 is characterized as merely “informational” by the
respondents’ learned counsel, its content seems to suggest otherwise, as it announces
to Mr. Galloway that some sort of “preliminary assessment” has already taken
place. Although the exception, interlocutory decisions of federal boards may be
reviewed by the Court, and at this early stage, I am not ready to affirm that
the present application for leave and judicial review is doomed to fail on the
ground that an interlocutory decision is not reviewable.
[15]
At the
hearing, respondents’ counsel also submitted that the applicants (other than Mr.
Galloway) lack standing to bring an application for leave and judicial review
based on their alleged Charter rights. While the standing of those applicants
may be questionable, I do not need to decide this debatable issue today.
[16]
It remains
that Mr. Galloway is directly affected by the actions purportedly taken by the
respondents and announced to him as a matter of “courtesy”. Mr. Galloway claims
that the allegations or inferences made in the impugned decision, which have
been publicized in the media, are unreasonable and/or defamatory. He alleges
that he has never engaged in terrorism and that he is not a member of a
terrorist organization. Therefore, Mr. Galloway may still have some interest to
set aside the impugned decision even if he chooses not to present himself this
afternoon at the port-of-entry in Lacolle, Québec.
[17]
Assuming
that the applicants are able at a later date to convince the Court to grant
leave and to examine the legality of the impugned decision, which remains
interlocutory, the Court may be asked on the merits to determine whether Mr. Galloway’s
participation in the convoy organized by Viva Palestina and/or personal
financial support at this occasion, can legally serve as a basis to make an
inadmissibility finding under paragraphs 34(1)(c) or (f) of the Act on the
grounds that Hamas is a listed terrorist organization in Canada. In this
respect, the applicants wish to argue that Mr. Galloway’s participation to
this convoy simply represents a symbolic gesture and political statement made
by pacifists through the provision of humanitarian aid to the Palestinian
people of Gaza. This is certainly a
debatable issue which is not frivolous or vexatious.
[18]
Some
remarks made in Mr. Orr’s letter of March 20, 2009, particularly the following:
“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”, may also give credence to
the applicants’ argument that the whole matter is being pre-judged,
particularly in light of certain other public comments made by the Minister of
Citizenship and Immigration’s spokesman, which comments have been reported
subsequently in the media. Moreover, some hearsay evidence upon which the
applicants intend to rely, may be invoked to support their claim of external
lobbying and political influence leading to the making of the impugned
decision, which is alleged to be one made in bad faith and politically
motivated. Again, it is not necessary that I express an opinion on the
admissibility or reliability of such hearsay evidence. Suffice it to say that
the arguments raised by the applicants are not frivolous or vexatious.
[19]
This now
brings me to the well-known irreparable harm and balance of convenience considerations.
[20]
“Irreparable”
refers to the nature of the harm suffered rather than its magnitude. In this
regard, I must ask myself whether a refusal to grant relief could so adversely
affect the applicants that the harm could not be remedied by the eventual
decision of the Court on the merits. Irreparable harm must constitute more than
a series of possibilities and cannot be simply based on assertions and
speculation.
[21]
Essentially,
Mr. Galloway claims that irreparable harm is established because individuals
who want to hear him speak in Canada will be deprived of this
opportunity. However, Mr. Galloway has been adamant in his statements
reported by the media that he will be heard in Canada by some other technical
means if he remains out of the country, in this case in the United States:
• “I’ll come to the
Canadian border and I will be heard in Canada one way or another. Whether it’s by
megaphone across the bridge or through the new technology that now exits. This
here-today-gone-tomorrow minister will not stop me being heard by those who
want to hear me in Canada.”
(The Toronto Star, March 21st, 2009)
• “I will one way or
another be heard in Canada – either in person or by some
other technical means.” (The Ottawa Sun, March 21st, 2009)
• “More than half a
century ago Paul Robeson, one of the greatest men who ever lived, was forbidden
to enter Canada not by Ottawa but by Washington, which had taken away his
passport. But he was still able to transfix a vast crowd of Vancouver’s mill hands and miners with
a 17-minute telephone concert, culminating in a rendition of the Ballad of Joe
Hill. Technology has moved on since then. And so from coast to coast, minister
Kenney notwithstanding, I will be heard – one way or another.”
(The Guardian, March 21st,
2009)
• I’ll be heard in Canada, either electronically or in
person. We’ve not given up hope; there’s an appeals process and we’ve
appealed.” (The Ottawa Citizen, March 24th, 2009)
• “One way or
another, the thousands of people who have bought tickets to hear me, in four
different places, will hear me. The technology exists through which I can still
get my message across. I suppose in a perverse way, Minister Kenney’s decision
has further increased the audience, one way or another.” (CTV.ca, March 25th,
2009)
[22]
Despite
the fact that the evidence of irreparable harm appears speculative, Mr.
Galloway seeks an interlocutory injunction to be permitted entry to Canada without any examination by an
officer of his admissibility. At one time, the Court was reluctant to grant
mandatory interlocutory injunctions but, over time, the Court has been somewhat
more willing to do so. Still, some greater level of caution arises when,
particularly at an interlocutory stage, the Court is asked to order somebody to
take a positive action that will change the status quo. It is only in
clear cases that mandatory injunction relief against the enforcement of a law
will likely be granted by the Court before a full hearing of the application
for judicial review. In such instances, public interest and the relative
strength of the parties’ arguments, are relevant factors to consider in the
assessment of balance of convenience.
[23]
While the applicants
in this case (other than Mr. Galloway), who are residents in Canada, invoke their
constitutionally guaranteed freedoms of expression and association, this has to
be balanced with the objectives of the Act which are to protect the health and
safety of Canadians, and to maintain the security of Canadian society. A
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter in Canada. The admission of a foreign
national to this country is a privilege determined by statute, regulation or
otherwise, and not a matter of right. In this respect, Parliament has expressly
given the CBSA officers legal authority to exclusively determine whether a
foreign national who seeks to enter this country is admissible (sections 15 and
18 of the Act). Yet, there has been no final determination made by an officer
with respect to the admission in Canada of Mr. Galloway.
[24]
The issues
raised by the applicants are both factually driven and highly complex from the
point of view of the applicable principles of law. If I were to grant the
mandatory interim relief sought today by the applicants, this would, by
necessity, imply that the applicants are likely to succeed on the merits. I
acknowledge that serious arguments are advanced against the impugned decision.
However, a proper factual record and the benefit of full legal argument, (notably
on the complex issue of whether or not the grounds of inadmissibility stated in
the impugned decision are founded), are lacking at the present time. Therefore,
I am not ready today to exempt Mr. Galloway from the application of the
provisions in the Act and Regulations respecting entry and examination, or to
order the respondents’ officials to allow the applicant Galloway to come to Canada between March 30 and April 2,
2009, without any final decision made on his admissibility.
[25]
In
conclusion, I am not satisfied that all three elements of the test for the
issuance of an interim order or interlocutory injunction, namely serious issue,
irreparable harm and balance of convenience in favour of the applicant, have conjunctively
been met by the applicants. Accordingly, the present motion must be dismissed.
ORDER
THIS COURT ORDERS that the motion for interim order or
interlocutory injunction presented by the applicants be dismissed.
“Luc
Martineau”
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