Carver On Galloway

Professor Klar has kindly extended me an invitation to write about the exclusion of British MP George Galloway from Canada, so denying him the opportunity to fulfill speaking engagements in Toronto. He did so on the basis that he did not have the background to allow him to comment on the case, and complimented me by saying that I probably did. This is because I teach Immigration Law at his law faculty.

On this basis, I feel obliged to make a few remarks about what I understand to be the legal context of the Galloway decision. However, in the end, I don’t think one’s views on this case should turn on legal niceties. Any of us who care about freedom of expression, as Professor Klar clearly does, have reason to be concerned about the federal government’s decision to keep Mr. Galloway out of Canada. We should be especially concerned that this has been done so casually, by invoking the authority of law and such grand concepts as national sovereignty and security.

Mr. Galloway is, of course, a highly controversial figure. He is a long-time and trenchant critic of Israeli government policies, and a supporter of Palestinian causes. He maintained connections with Saddam Hussein long after most of the rest of the world had declared him a pariah, and bitterly attacked the Blair government for joining in the invasion of Iraq. It is commonplace at this point to agree that he is a most offensive and distasteful person, and in supporting his ability to enter into and speak in Canada, one in no way endorses his views. Well I don’t agree with everything or even most of what I’ve heard Mr. Galloway say in the many public arenas in which we have come to know him—in many TV and radio interviews, in his lengthy testimony before the U.S. Senate—but I also have not heard him say anything on those occasions that is or should be outside the bounds of public discourse in this or any democratic society. Moreover, Mr. Galloway makes his points with verve and, often, humor. In other words, I don’t turn off the TV or radio when he comes on. And I don’t want my government turning him off on my behalf.

OK, now back to the law. The government has ruled Mr. Galloway inadmissible to Canada under s. 34(1) of the Immigration and Refugee Protection Act on the basis that there are “reasonable grounds to believe… a foreign national is inadmissible on security grounds for …engaging in terrorism, being a danger to the security of Canada or… being a member of an organization that there are reasonable grounds to believe engages in [these activities.]” Section 34(1) goes on to say that the above grounds do not constitute inadmissibility if the person satisfies the Minister of Immigration that their presence in Canada “would not be detrimental to the national interest.”

The strongest case that seems to be available with respect to George Galloway is that he may have or be intending to fundraise for Hamas, an organization that is listed by the Canadian government as a terrorist group. He denies even being a supporter of Hamas. True, Galloway led a caravan of aid supplies to Gaza in the weeks following the recent military action there, but it would seem a long stretch to say this is proscribed activity. Public Safety Canada’s own website on “listed entities” [http://www.publicsafety.gc.ca/prg/ns/le/index-eng.aspx] says the following:

“It is an offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group. This participation is only an offence if its purpose is to enhance the ability of any terrorist group to facilitate or carry out a terrorist activity.”

Well, if you take this and that scrap of information, and stretch the meaning of several words in the statute, and make every negative imputation about Galloway’s character and motives, maybe you can get to a technical basis for the government’s ruling. Does anyone sincerely believe these terms do or should apply to Mr. Galloway? I think you can only do so on the basis of saying “the government must know something that I don’t, and I’m happy to trust them on this.” For many reasons, I don’t think that is wise.

I’ve heard and read that this case is more about Canadian sovereignty and our ability to control who does and does not get to enter this country, than anything like freedom of expression. It’s true that immigration remains one area in our law in which ministerial discretion plays a great part. However, arbitrary exercises of state authority have become less and less acceptable in immigration, just as in most other areas of public law. Sovereignty does not and should not mean ‘the government gets to keep out anyone it does not like.’ The grounds set out in the statute have meaning, and if the Galloway goes to Court on judicial review, I expect that point will win out.

Another thing that has been said in defence of the government’s action is that no foreign national, including Mr. Galloway, has a “right” to enter Canada, let alone to speak here. In a constitutional sense, that’s true. However, to speak of rights in this way is not helpful. If any of us wished to have a relative visit us from the U.K. or another country, we would correctly feel that we and they had a “right” to the visit, unless there were very specific reasons and evidence for the state to block it.

Besides, the rights I’m most concerned with here are not Mr. Galloway’s. The main point is the right of Canadians to hear from those people they want to hear from. That’s whose freedom of expression is truly at stake. One of the peculiarities of the Cold War years was that in the name freedom, the U.S. barred many academics, authors and public figures from entering and speaking in the U.S. due to their left-wing views and associations. The U.S. still bars its own citizens from travelling to Cuba. It always seemed an advantage of the Canadian approach (something I know is close to Prof. Klar’s heart) that we avoided hiving ourselves off from opposing and disturbing views. Mr. Galloway is currently touring the U.S. quite peacefully. At the same time that much of the world is expressing sorrow that South Africa may well have betrayed its proud human rights heritage by denying entry to the Dalai Lama because of the controversy surrounding him, it is particularly painful to see Canada doing much the same thing.

Peter Carver is a law professor at the University of Alberta and teaches immigration,administrative and constitutional law.