The Ruling on Galloway Entrance to Canada

Federal Court
Cour fédérale
Date: 20100927
Docket: IMM-1474-09
Citation: 2010 FC 957
Ottawa, Ontario, September 27, 2010
PRESENT: The Honourable Mr. Justice Mosley

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, DENIS LEMELIN, and LORRAINE GUAY

Applicants

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondents and THE CANADIAN CIVIL LIBERTIES ASSOCIATION

Intervenor

REASONS FOR JUDGMENT AND JUDGMENT

Introduction

[1] As framed by the applicants, this is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision made by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness that the applicant, George Galloway, was inadmissible to Canada. The decision, the applicants submit, was communicated by a letter dated March 20, 2009, to Mr. Galloway, from Robert J. Orr, Immigration Program Manager of the Canadian High Commission in London, United Kingdom.



[2]The other applicants are groups and individuals who were involved in bringing Mr. Galloway to Canada for a speaking tour. They wished to hear Mr. Galloway express his views in person at the several venues in Canada at which he was scheduled to speak in March and April, 2009. His topics related to the wars in Iraq and in Afghanistan and to the situation in the Palestinian territories.

[3]The applicants assert that Mr. Galloway was “barred from Canada” because of the respondents’ opposition to his political views. They contend that the decision to declare him inadmissible was biased, made in bad faith and constituted an abuse of executive power for purely political reasons.

[4] The respondents submit that whether they approve of Mr. Galloway’s political beliefs or not is legally irrelevant because his admissibility was legitimately evaluated on the basis of his own actions and in accordance with the relevant legislation. They say there is no evidence of bad faith, bias or a breach of fairness in the performance of their public duties. Moreover, they submit, no legally reviewable decision to exclude Mr. Galloway was in fact made.

[5]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.

[6] Mr. Orr’s letter, conveying CBSA’s preliminary assessment to Mr. Galloway, had the desired effect of discouraging Mr. Galloway from testing the respondents’ resolve to deny him entry. However, that letter did not constitute a decision nor did it communicate a formal inadmissibility finding that had been made in accordance with the applicable legislation. Mr. Galloway chose not to present himself at the border for examination and did not seek the exercise of ministerial discretion in the form of an exemption or a temporary residence permit. As such, no final decision was made regarding his admissibility. There is, therefore, no decision which this Court can review.

[7]These findings should not be taken as agreement with the respondents’ position that there are reasonable grounds to believe that Mr. Galloway may be inadmissible pursuant to s. 34 of the Act. It is clear from the record that CBSA’s preliminary assessment to that effect was hurriedly produced in response to instructions from the office of the Minister of Citizenship and Immigration and from departmental officials that assumed Galloway was inadmissible on scant evidence. The result, in my view, was a 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.

[8] 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.

[9]The foregoing comments are not intended in any way to convey approval of Mr. Galloway’s political views or disapproval of the respondents’ opinions with respect to those views. In this application, the Court was asked to consider whether the actions taken to bar Mr. Galloway from expressing his views in Canada are judicially reviewable and if so, whether they meet the legal standard of reasonableness. On the basis of the evidence before me, I must conclude that the respondents’ efforts to bar Mr. Galloway did not result in a decision or action for which a remedy may be provided by this Court.

[10]If I have erred in this conclusion, I am satisfied that the evidence considered by the respondents was insufficient to support a finding that there are reasonable grounds to believe that Mr. Galloway is a member of a terrorist organization or has engaged in acts of terrorism. It was, therefore, unreasonable for the respondents to rely on those grounds to deem him inadmissible to Canada.

Background

George Galloway

[11] George Galloway is a British citizen and was, at the material times, a Member of the Parliament of the United Kingdom for the Respect Party. He has since been defeated in the most recent parliamentary elections. Galloway is notorious in Britain and abroad for the controversies which have arisen from his participation in various protest movements including a campaign against the sanctions imposed on Iraq following the Gulf War. He was investigated and temporarily suspended from Parliament for allegedly improperly benefiting from the United Nations Oil for Food Program. Galloway successfully sued a British paper for libel over similar allegations. He was ultimately expelled from the U.K. Labour Party for allegedly inciting attacks against British troops in Iraq following the 2003 invasion, which he denies. In short, Galloway is a highly controversial figure who provokes strong reactions to his public statements and actions.

[12]Mr. Galloway’s sympathies for the Palestinians and their cause are well known and are described at length in the court record. He was vehemently opposed to the Israeli intervention in the Gaza Territory in December 2008 and in January 2009. He also opposed the ensuing blockade of goods to the territory. In early March 2009, Galloway was part of a convoy organized by a group called Viva Palestina which delivered financial and material assistance to Gaza in an effort to break the blockade. As Mr. Galloway publicly declared, his participation in the convoy was intended as a political statement in opposition to the blockade as well as a means to provide humanitarian aid to the people of the territory. There is a considerable amount of evidence in the record about other opposition to the blockade and the donations of aid from many other sources, including western governments, through organizations such as the Red Crescent Society.

[13]The Viva Palestina convoy consisted of 109 trucks loaded with medical supplies, toys, clothes and vehicles including ambulances and a fire truck. Mr. Galloway also contributed GBP25,000 ($45,000) raised from donations by individuals wishing to support the relief effort. After some delay involving negotiations with the Israeli and Egyptian Governments, most of the aid was allowed to enter Gaza through an Egyptian border crossing. Non-medical aid was conveyed to Gaza through Israel security controls.

[14]Gaza is currently under the control of the Harakat Al-Muqawama Al-Islamiya ("Islamic Resistance Movement"), more commonly known by the acronym, Hamas. Following elections in 2006, Hamas gained a majority of the seats on the Palestinian Legislative Council for Gaza and took control of the local government. Hamas controls the security, health, education and social services in the territory.

[15] Hamas was listed as a terrorist entity under subsection 83.05(1) of the Criminal Code, R.S. C. 1985, c. C-46, by the Governor in Council in November 2002. The listing was reviewed and maintained in November 2008. Hamas is similarly proscribed by the United States and the European Union. The identification of Hamas as a terrorist organization for the purposes of paragraph 34(1)(f) of the IRPA, was not questioned in these proceedings.

[16]Mr. Galloway says he respects the democratic right of Palestinians to elect their own leaders and, in that regard, respects the decision of Gazans to elect Hamas in January 2006 to a majority in the Palestinian Legislative Council for the territory. However, Galloway denies being a member or a supporter of Hamas. To the contrary, he claims to support another Palestinian organization, Fatah, which has long been opposed in interest to Hamas.

[17]Galloway asserts that his purpose in delivering goods and cash to Gaza was to support the Palestinian people, not Hamas. He says he delivered humanitarian aid to the Government of Gaza, not to Hamas. However, it is also clear from the record that Mr. Galloway was aware that his actions might be construed as support for Hamas and was prepared to accept that risk. He also delivered the cash donations directly to the head of the Hamas government in a highly publicized gesture.

[18] The purpose and distribution of the aid delivered by the convoy is not disputed by the respondents. There is no evidence in the record that it was used by Hamas for any terrorist purpose. The unchallenged evidence in the record is that the cash delivered by Galloway was used to buy incubators and pediatric dialysis units for a Gaza hospital.

[19] Following these events, Galloway was invited to visit Canada for a speaking tour to discuss topics such as the conflict in Gaza and the war in Afghanistan. His visit was scheduled to run from March 30 to April 2, 2009 with appearances in Toronto, Mississauga, Ottawa and Montreal, after a similar tour in the United States. The organizers, including other applicants in this proceeding, expended a considerable amount of time, money and energy to make the arrangements.

[20] Galloway had previously entered Canada without difficulty and had spoken to Canadian audiences in September 2005 and in November 2006. On each of these occasions, Galloway’s visit attracted hundreds of people to public debates on Canada’s foreign policy, the wars in Iraq and in Afghanistan, and the political situation in the Middle East. There is no indication in the record that his prior appearances in Canada fomented public disorder, or created a security risk. Galloway was not on any watch list maintained by CBSA prior to these events, according to the evidence.

The impugned “decision”:



[21] The plan to have Mr. Galloway speak again in this country came to the attention of some Canadians opposed to his views on the Middle East. On March 15, 2009, they published an open letter to Jason Kenney, Minister of Citizenship and Immigration, asking him to bar Mr. Galloway from Canada.



[22] Early in the afternoon of March 16, 2009, Mr. Alykhan Velshi wrote an e-mail to Mr. Edison Stewart, Director General of the Communications Branch at Citizenship and Immigration Canada (CIC). In the email, Mr. Velshi reported to have received a “media call” asking him why Canada was going to admit Mr. Galloway as a visitor, given Mr. Galloway’s previous public statements and actions. Mr. Velshi was not a CIC officer but was a member of the Minister’s political staff. He served as Director of Communications and Parliamentary Affairs in the Minister’s office.



[23] In the email to Mr. Stewart and in several follow-up e-mails, Mr. Velshi expressed the view that Mr. Galloway was inadmissible. He shared the results of some personal, on-line research he had conducted. He also advised Mr. Stewart that the Minister would not grant a temporary resident permit (TRP) if one were to be requested by Mr. Galloway. A TRP may be issued under s. 24 of the Act to a person who is inadmissible to Canada at the discretion of an officer who is of the opinion that it is justified in the circumstances. In exercising that discretion the officer shall act in accordance with any instructions that the Minister may make. Mr. Stewart passed Mr. Velshi’s enquiry on to Stephane Larue, who was then the Director General of the Case Management Branch of CIC.



[24] As admissibility determinations fall within the scope of the responsibilities of the Department of Public Safety and Emergency Preparedness (PSEP), Mr. Larue referred the request to Ms. Connie Terreberry of CBSA. Ms. Terreberry agreed to do a quick admissibility assessment. She forwarded Mr. Velshi’s and Mr. Larue’s e-mails to colleagues with instructions “to do a quick check on this and let me know what we’ve got”. Within approximately two hours of Mr. Velshi’s initial message, CBSA officials were exchanging e-mails with CIC personnel indicating that their preliminary checks were complete and that “[w]ith the extensive info available in open source, the applicant is inadmissible 34(1)(f) and possibly 34(1)(c).”



[25] Early the next morning, Ms. Terreberry advised a CIC official that the research to confirm inadmissibility was done but that a formal assessment would take a little time and require consultation with their partner, the Canadian Security Intelligence Service (CSIS). Apart from the open sources cited by Mr. Velshi in his e-mails, it does not appear from the record what, if any, additional research was conducted. When consulted, CSIS advised CBSA that they had no concerns with Mr. Galloway’s visit from a security perspective. That does not appear to have influenced CBSA’s view of the matter.



[26] The written assessment, completed late on March 17, 2009, is more cautious regarding the question of Mr. Galloway’s admissibility than is the earlier string of e-mails. It states in the opening paragraph:

Current information available suggests that the subject, Mr. George Galloway may be inadmissible to Canada pursuant to paragraph 34(1)(c) and 34(1)(f) of the [IRPA]. [Emphasis added]



[27] The concluding recommendation was that there were reasonable grounds to invoke the s. 34 grounds “…should a Visa Officer decide to do so after examining all of the facts of this case” (emphasis added). This preliminary assessment was then circulated within CBSA, CIC and other government offices while discussions ensued about what to do with Mr. Galloway should he show up at an airport or land crossing seeking entry into Canada.



[28] The record shows that e-mails concerning the matter were distributed widely within the government, including to the Prime Minister’s Office and to the Privy Council Office. The Canadian High Commissioner in London, Mr. James Wright, wrote to a broad distribution of senior personnel to urge that consideration be given to a number of factors, including the fact that neither the British nor the Americans had taken action against Mr. Galloway for his support to the Palestinians. His public statements, while widely criticized, would be defended as free speech in Great Britain. This was taking place in advance of a visit by the Prime Minister to London and Mr. Wright’s immediate concern was with the anticipated reaction of the British press.



[29] When it was noted by the High Commission press officer that Galloway was eligible for entry to the US, the response from Mr. Larue was that Canada’s laws were different and prescriptive, leaving not much discretion on determining admissibility. He noted that there was flexibility in the use of the TRP under s. 24 and the exemption for humanitarian and compassionate grounds under s. 25 of the Act but “our Minister has indicated that he does not wish to use those in this particular case.”



[30] Another of Mr. Kenney’s assistants, Kennedy Hong, wrote to Larue and others at 11:59 a.m. on March 18th to advise that Galloway may already be in the US and to inquire whether there was something “on the border security system already so he doesn’t get let in accidentally.”



[31] In an e-mail at 12:14 on the 18th , Mr. Velshi wrote to Mr. Larue:

Stephane, an old associate of mine says that he [Mr. Galloway] is currently speaking in New York. He may try to cross the land border. Can you confirm that if he tries to cross the Canada-US border, or tries to fly in via Pearson (either from the US or the UK) he will be turned back. The minister has said he will not issue a TRP and doesn’t want one issued. So I just need confirmation that, assuming he’s not already in the country, he will not be allowed in under any circumstances.



[32] A flurry of e-mails followed to assure political staff that border officials would be alert to the possible arrival of Mr. Galloway by land, sea or air. At 12:34 Hong wanted to know whether officials would enter Galloway’s name into their computer system: “how can CBSA ensure that he won’t just be waived into Canada? Can we provide them with a profile? A photo?” At 12:40, Velshi sought confirmation that:

[s]ince the Min won’t issue a TRP, there is no change [sic] he will be allowed entry though otherwise inadmissible? i.e., is there a chance that the border agent or NHQ will accidentally issue a TRP?



Larue offered assurances that Port of Entry officials did not have that authority. He undertook to ensure that the inadmissibility grounds were clearly indicated in the lookout (i.e., the alert sent to border officials).



[33] Also on March 18, 2010, Velshi told a press officer at the High Commission in London that Mr. Galloway would be informed the next day that he would not be allowed to enter Canada because the CBSA had deemed him inadmissible. He instructed that all press inquiries be directed to him.



[34] As Mr. Galloway was, presumably, unaware of these efforts to deny him entry, CIC officials had decided that it would be appropriate to give him advance notice. Mr. Robert Orr, Immigration Program Manager and highest-ranking CIC employee at the Canadian High Commission in London was enlisted in this effort. In his affidavit, Mr. Orr says that he merely functioned as the liaison between CIC National Headquarters and Mr. Galloway and made no decisions respecting Mr. Galloway’s admissibility. He says he was advised that Minister Kenney did not want Mr. Galloway allowed entry under any of the exemptions to inadmissibility.



[35] Mr. Orr initially tried, unsuccessfully, to contact Mr. Galloway by phone through his parliamentary office in London on March 19th. On March 20, 2009, Mr. Orr spoke to Mr. Galloway’s parliamentary assistant who expressed concern that the information had appeared in a British newspaper before they were informed. Disclosure of this personal information, Mr. Orr acknowledged on cross-examination, may have been a breach of the Privacy Act. He did not know how it had been disclosed other than it was not from the High Commission.



[36] Mr. Velshi had previously requested, and received from the High Commission, contact particulars for all of the major UK newspapers. Velshi is quoted in the story that appeared in the Sun newspaper on the morning of the 20th. When asked whether Galloway would receive a special permit from the Immigration Minister, he is quoted as saying:

George Galloway is not getting the permit-end of story. He defends the very terrorists trying to kill Canadian forces in Afghanistan.





[37] Mr. Velshi approached other media sources to convey the same message. In an interview with a U.K. television network on the same date, Mr. Velshi stated:

Mr. Galloway has um, is on the record bragging about providing financial support to Hamas, an organization which is a banned terrorist organization in Canada. He’s expressed sympathy for the, ah, Taliban murderers who are trying to kill Canadian and British soldiers in Afghanistan.



This is not someone who, we believe, we should be, ah, giving special treatment in terms of allowing him access to our country. Essentially, here’s someone who, as, Mr. Galloway, who said that, um, Mr. Galloway has said he wants to come to Canada to raise money for, ah, for these groups, um, that are out there killing Canadians. Its actually, its actually quite odious and I think it’s entirely appropriate for our security agencies to say, that if, ah, that if they have advance notice that Mr. Galloway is going to come to Canada to pee on our carpet, that we should deny him entry to the home.



…this has nothing to do with, with freedom of speech whatsoever. The decision on whether or not, um, individuals constitute a national security threat to Canada are made by our border security agencies by applying the criteria of our immigration laws. And they’ve made the determination that Mr. Galloway is inadmissible on national security grounds. And so, our position as the Government is that we’re not going to second guess, we’re not going to question, we’re not going to overturn the decision of our border security agencies to, ah, hold that Mr. Galloway is inadmissible.



Ah, you know, he’s perfectly free to, ah, to go onto his, um, you know, to go onto soap box and to say, ah, whatever he wants. But what he’s not free, ah, to do, is um, to, pose a threat to the safety and security of Canadians and that’s something that our security agencies are ultimately responsible for determining.





[38] In this and other communications to the press, Mr. Velshi states that the decision had been made to bar Mr. Galloway on national security grounds. As noted above, the evidence is that CSIS had no concerns with Mr. Galloway’s visit on such grounds. Nor is there any indication in the preliminary assessment that Mr. Galloway posed “a threat to the safety and security of Canadians”. Later comments by Minister Kenney attempted to distance his office from involvement in the process by describing it as an operational decision by CBSA officials.



[39] In two e-mails to the High Commissioner, Mr. Orr advised that a decision regarding Mr. Galloway had been made in Ottawa. On March 19th, he wrote that he had instructions from the Minister’s office to contact Galloway’s office to “convey the decision”. In an e-mail on March 20th, Mr. Orr wrote that in speaking to the parliamentary assistant he had “stated that Mr. Galloway has been deemed inadmissible by Canada’s immigration minister, Jason Kenney, and that he would be denied entry at a Canadian port of entry.” Mr. Orr was not questioned about this in his cross-examination but he described other comments in the string of e-mails between Ottawa and London that suggested that a decision had already been made as being poorly phrased (“sloppy drafting”). He said that officials were aware that such a decision depended upon the examination process that would follow any attempt by Mr. Galloway to enter Canada.



[40] Mr. Orr wrote to Mr. Galloway later on the 20th. His letter constitutes the reasons that were communicated to Mr. Galloway for why he was deemed inadmissible. With the deletion of the statutory references, the letter reads as follows:



Further to my conversation with your parliamentary office, this letter confirms the preliminary assessment of the Canada Border Services Agency that you are inadmissible to Canada….



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 financial support for this organization makes you inadmissible to Canada pursuant to paragraph 34(1)(c) and paragraph 34(1)(f) of IRPA.



It is our understanding that it is your intent to come to Canada on March 30, 2009. You are invited to make any submissions you deem necessary with respect to this preliminary assessment of inadmissibility in advance of this date. Any submissions you provide will be considered. Please forward these submissions to my attention at the above address.

If we do not receive any submissions on or before March 30, 2009, and you present yourself at the Port-of-Entry, the Canadian Border Services Agency officer will make a final determination of inadmissibility based on this preliminary assessment and any submissions you make at that time.



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. However, a final determination with respect to a temporary permit will only be issued upon application.



[41] On cross-examination, Mr. Orr indicated that the information in the letter was dictated to him by phone. He was adamant that he did not make a decision to find Mr. Galloway inadmissible but merely conveyed the CBSA’s preliminary assessment as it was described to him by telephone and e-mail. In his experience, this type of warning was rare but not unknown. He was not aware of any instances, such as this, where the issue arose because of a "media call" to a political staff member.



[42] Mr. Orr confirmed that had Mr. Galloway arrived at a Canadian Port of Entry there were several possible outcomes. He would be examined by an officer and an immediate decision could be made as to his admissibility. Alternatively, he could be directed back to the US for several weeks while an admissibility report was considered by an officer. He could also be detained as a suspected terrorist. The preliminary assessment would be relied upon by the deciding officer, as the memo was from a specialized unit, although it was open to the officer to do further research. He maintained that the officer would not be obliged to agree with the opinion expressed in the preliminary assessment while conceding that he had not seen this happen. He acknowledged that the border officer would be aware of what had transpired in Ottawa and that this would be a factor in the decision making. It was also open to Mr. Galloway to apply to the PSEP Minister for an exemption under s. 34 (2). This requires a determination that the applicant’s presence in Canada, notwithstanding the presence of the factors in s. 34 (1), would not be detrimental to the national interest.



[43] In a letter dated March 23, 2009, but received by Mr. Orr on March 25, 2009, Mr. Galloway’s counsel provided submissions to the High Commission regarding his admissibility. The applicant requested that the High Commission review his submissions and provide a response by March 24, 2009.



[44] Later that same day (March 25, 2009), Mr. Galloway’s counsel sent an e-mail to Mr. Orr at the High Commission indicating that the applicant could not wait for Mr. Orr’s reply and that he had already filed an application for leave and judicial review with the Federal Court, precluding any further action on Mr. Orr’s part, in his view.



The judicial review proceedings:



[45] On March 29, 2009, Mr. Galloway and his supporters sought an interim injunction before this Court to allow him to enter Canada for the purposes of the speaking tour. On March 30, 2009, Justice Luc Martineau dismissed the applicant’s motion. Justice Martineau determined that the applicant’s arguments raised a serious issue on the low threshold established by the case law and that his arguments were not frivolous or vexatious. However, the applicant had failed to meet another essential requirement for obtaining an interim injunction, that is that he would suffer irreparable harm if the injunction were not granted: Toronto Coalition to Stop the War v. Canada (Minister of Citizenship and Immigration), 2009 FC 326.

[46] On the afternoon of March 30, 2009, the applicant was in the United States. Depending on the outcome of the injunction application, he intended to present himself at the Lacolle, Québec border post. As Mr. Galloway explains in his affidavit evidence, he had no desire to be possibly detained by CBSA while the matter of his admissibility was being determined. Thus he chose not to appear at the border post. It also appears that no consideration was given to applying for an exemption under s. 34 (2) or a TRP.



[47] Mr. Galloway's speaking engagements in Canada were carried out, with considerable difficulty and with increased costs, by telephone and video conference facilities from New York. According to the affidavit evidence submitted by the applicants, participation was lower than expected, contributing to a significant loss of revenue, as many persons who had bought tickets in anticipation of hearing Galloway directly sought refunds. Since these events occurred, Galloway has returned to the United States on three occasions without difficulty for speaking engagements.



[48] At the outset of these proceedings, the respondents sought to have the applicants other than Mr. Galloway struck from the record as parties by way of a cross-motion to the applicants’ motion for an interim stay. The cross-motion was dismissed by the Court on March 27, 2009. It was dismissed without prejudice to it being brought on again by motion before a regular sitting of the Court.



[49] The respondents have contended from the outset that there was no decision made to refuse Mr. Galloway entry to Canada. In response to the request from the Registry under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 to provide a certified copy of the decision and any written reasons for the decision, the Canadian High Commission in London replied on May 21, 2009. They reported that they had no record of a decision made on March 20, 2009 pertaining to Mr. Galloway.



[50] A hearing of this matter was delayed by reason of a series of motions brought by the parties relating to the content of the certified record, ultimately produced by the High Commission in response to the Court’s order granting leave for the application to be heard. The certified record consists largely of copies of e-mail messages exchanged between government offices in Ottawa and the High Commission in London.



[51] The respondents were concerned that the certified tribunal record contained information of a sensitive nature that should not be disclosed. They brought a motion pursuant to section 87 of the Act for a protection order, which I granted, in part, in an Order issued in December, 2009. As a result, the time required to complete the remaining stages of the application was extended.



[52] The applicants moved for the disclosure of additional information that was not included in the tribunal record, alleging that the respondents had not disclosed all of the relevant communications between government offices relating to Mr. Galloway. The parties were urged to reach agreement on what constituted the record but were unable to do so. The respondents produced two witnesses who were cross-examined on their affidavits.



[53] The applicants then sought additional production and an order to compel the witnesses to answer certain questions which I declined to issue. In my view, the respondents had produced an adequate record of what had led to the impugned decision and the applicants were engaged in a “fishing expedition” to find additional evidence of bad faith and bias they could not demonstrate existed, such as further communications between government offices in Ottawa. Applying the proportionality principle, I considered that the discovery process had gone on long enough and had to be brought to a close.



[54] I note that on April 9, 2009, following the cross-examination of a CBSA witness, the respondents voluntarily disclosed a number of unredacted CBSA e-mails which had not been included in the certified record dated January 13, 2010. The applicants continue to maintain that the record is incomplete and that they should have been allowed to explore whether there was additional evidence of decisions made in other government offices that affected their interests.



[55] Notwithstanding these concerns, I am satisfied that the respondents produced what appears to be a complete record of the communications within CIC and CBSA that led to the March 20, 2009 letter to Mr. Galloway. Prior to the hearing, they waived the claim of public interest privilege on the content for which they had previously sought protection.



[56] The applicants served and filed a Notice of Constitutional Question on March 12, 2010 asserting that section 34 of the IRPA breaches their freedoms of expression and association, their equality rights and their liberty and security of the person rights under sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter).



[57] The Canadian Civil Liberties Association sought, and was granted, limited intervenor status to submit written and oral argument respecting the constitutionality and interpretation of section 34 of the IRPA.





Issues



[58] As noted, the applicants served and filed a Notice of Constitutional Question alleging that their rights to freedom of expression and association, security of the person and equality were breached by section 34 of the IRPA. They filed written representations on those issues but did not press them in oral argument. The intervenor, the Canadian Civil Liberties Association, did not question the validity of the section at the hearing but focused their submissions on the proper interpretation and application of the legislation, having regard to Charter values.



[59] The Court should generally avoid making any unnecessary constitutional pronouncement and is not bound to answer constitutional questions when it may dispose of the matter without doing so: Tremblay v. Daigle, [1989] 2 S.C.R. 530 at page 571; Smoke-Graham v. The Queen, [1985] 1 S.C.R. 106 at page 121.



[60] Accordingly, I do not consider it necessary to address the constitutional validity issue. Had I done so, I would have agreed with the respondents that based on the established jurisprudence, section 34 withstands constitutional scrutiny on a subsection 2 (b) or (d) Charter analysis so long as the discretion it affords is exercised in accordance with the statute: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (“Suresh”); Khalil v. Canada (Minister of Citizenship and Immigration), 2009 FCA 66.



[61] In the event that I have erred with respect to the conclusion that I have reached regarding the disposition of this matter, I think it necessary to address the merits of the preliminary assessment made by CBSA. In oral argument, the applicants asked me to comment on the assessment, even if I determined there was no reviewable decision to exclude Mr. Galloway, as there continues to be a live controversy between the parties on that issue. Galloway may wish to come to Canada again and the assessment, if unquestioned, may be used to inform any future decision by a visa officer as to his admissibility.



[62] The issues raised by the parties can therefore be narrowed to the following:

1. Do the applicants, other than Mr. Galloway, have standing in this application for judicial review? Were their Charter section 2 rights infringed?



2. Was CBSA’s preliminary assessment that Mr. Galloway may be inadmissible on security grounds reasonable?



3. Was there a “decision, order, act or proceeding” subject to judicial review pursuant to section 18.1 of the Federal Courts Act?







Analysis



Legislative Framework:



[63] Section 18.1 of the Federal Courts Act, R.S. 1985, c. F-7 sets out the authority of the Court to review and set aside decisions or actions of federal institutions. The relevant provisions are subsections 18.1 (1), (3) and (4) which read as follows:



18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.




18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.

…


…



(3) On an application for judicial review, the

Federal Court may


(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :



(a) order a federal board, commission or

other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or




a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;

(b) declare invalid or unlawful, or quash, set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.


b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.



(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal

board, commission or other tribunal




(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas:



(a) acted without jurisdiction, acted beyond

its jurisdiction or refused to exercise its jurisdiction;




a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;



(b) failed to observe a principle of natural justice, procedural fairness or other procedure

that it was required by law to observe;




b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;



(c) erred in law in making a decision or an order, whether or not the error appears on the

face of the record;


c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;



(d) based its decision or order on an erroneous

finding of fact that it made in a perverse or capricious manner or without regard for the material before it;




d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;



(e) acted, or failed to act, by reason of fraud or perjured evidence; or




e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;



(f) acted in any other way that was contrary to law.




f) a agi de toute autre façon contraire à la loi.





[64] The relevant provisions of section 34 of IRPA are the following:



s.34

(1) A permanent resident or a foreign national is inadmissible on security grounds for

…




art.34

(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :

…

(c) engaging in terrorism;




c) se livrer au terrorisme;



(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).




f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.


(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national.



[65] Section 33 of the statute provides a guide to interpretation of s. 34 in these terms :

s.33

The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.




art.33

Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.





Standard of Review



[66] The “reasonable grounds to believe” standard in paragraph 34(1)(f) and the guide to interpretation in section 33 of the IRPA has been held to require more than mere suspicion, but less than the civil standard, or proof on a balance of probabilities. It is said to be a bona fide belief in a serious possibility based on credible evidence: Mohammad v. Canada (Minister of Citizenship and Immigration), 2010 FC 51 at para. 50; Almrei (Re), 2009 FC 1263 at para. 100. The application of this test or guide to the evidence is a mixed question of fact and law calling for the application of the reasonableness standard: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85 (“Poshteh”).



[67] The interpretation of the term "member" in paragraph 34(1)(f) is a question of law. Whether someone has “engaged in terrorism”, as set out in paragraph 34(1)(c), or is a “member of an organization” that has engaged in terrorism within the meaning of paragraph 34(1)(f) are mixed questions of fact and law and have been traditionally reviewed on the reasonableness standard: Poshteh, above, at paras. 16-23.



[68] The reasonableness standard reflects the factual element present in questions of membership and the expertise that officers possess when assessing applications against the inadmissibility criteria contained in subsection 34(1) of the Act: Ugbazghi v. Canada (Minister of Citizen and Immigration), 2008 FC 694, [2009] 1 F.C.R. 454; Saleh v. Canada (Minister of Citizenship and Immigration), 2010 FC 303.



[69] Under paragraph 18.1(4)(c) of the Federal Courts Act, questions of law are reviewable on a standard of correctness. A determination that an act was an act of terrorism must be legally correct: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 116.



[70] On questions of fact, the Federal Court can intervene under paragraph 18.1(4)(d) only if it considers that the decision maker “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”. The Supreme Court has made it clear that in enacting this ground of review, Parliament intended administrative fact finding to be given a high degree of deference: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 46 (“Khosa”).



[71] Overall, application of the reasonableness standard calls for a high degree of deference: Khosa, above, at para. 59.



Do the applicants, other than Mr. Galloway, have any standing in this application? Were their Charter s.2 rights infringed?



[72] As already mentioned, the respondents have taken the position from the outset of these proceedings that the applicants, other than Mr. Galloway, have no standing in this matter. The respondents’ pre-hearing motion to strike the other applicants from the record was dismissed without prejudice to their bringing the question back on before the judge hearing the application, which they have done.



[73] The test for standing in a judicial review application is that set out in subsection 18.1(1) of the Federal Courts Act. An application may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.



[74] The phrase “anyone directly affected” focuses attention on the rights as well as the interests of the applicant. It is not enough to have an interest in the outcome. This Court has held, for example, that sponsors and family members of a foreign national seeking an immigrant visa lack the required standing to bring a judicial review application because their rights are not directly affected: Carson v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 137, 55 A.C.W.S. (3d) 389 at para. 4 (“Carson”); Wu v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d), 183 F.T.R. 309 at para. 15 (“Wu”).



[75] The respondents argue that the steps taken by the respondent ministers in this matter did not directly affect the other applicants’ legal rights, impose any legal obligations upon them or prejudicially affect them so as to bring them within the scope of subsection 18.1(1). The applicants, other than Mr. Galloway, submit that this does not take into account their Charter right to freedom of expression which encompasses a right to receive information. They argue that Carson and Wu are distinguishable, as issues of that nature did not arise in those cases.



[76] The applicants rely on the decision of the New Brunswick Court of Appeal in Province of New Brunswick v. Morgentaler, 2009 NBCA 26 at paras. 34-35, for the proposition that a party has standing if they have a personal stake in the outcome of the controversy. But in that case, the applicant had a direct interest in the application of the policy in question. He would not be paid by the province for services performed if the policy were upheld. Moreover, he had sought public interest standing which raises different considerations as I discuss below.



[77] In Henry Global Immigration Services v. Canada (Citizenship and Immigration) (1998), 158 F.T.R. 110, 84 A.C.W.S. (3d) 756, also cited by the applicants, Justice Frederick Gibson of the Federal Court found that an immigration consultant had standing in the judicial review of a decision respecting failed applications for landing in Canada. In the particular circumstances of that case, the consultant was at risk of being put out of business if the decision in question was upheld. In Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229, the applicant’s members were farmers and fishermen. There was abundant evidence that they would be directly affected by the cancellation of the ferry service to Prince Edward Island. There is no evidence of similar economic interests in this case.



[78] It could be argued that the other applicants were directly affected by the decision not to allow Mr. Galloway entrance to Canada. As noted above, the reduced participation from individuals who originally signed up to attend the event contributed to a significant loss of revenue. It also resulted in the return of many tickets by those who wished to see Mr. Galloway speak directly. While I recognize that there is certain merit to this claim, I am not persuaded that it rises to the level of an interest that would meet the directly affected standard.



[79] I find, therefore, that the other applicants were not directly affected by the impugned and putative decision. However, that does not end the question of their standing. The wording of subsection 18.1 (1) has been held to be broad enough to encompass applicants who are not directly affected when they meet the test for public interest standing: Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) (2003), 227 F.T.R. 96, 120 A.C.W.S. (3d) 197, affirmed by 2003 FCA 484, leave to appeal to the Supreme Court of Canada refused, May 20, 2004, 331 N.R. 190; Canada (R.C.M.P.) v. Canada (Attorney General), 2005 FCA 213, [2006] 1 F.C.R. 53.



[80] The test for public interest standing was articulated by the Supreme Court in Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236, 16 Imm. L.R. (2d). The Court held that three aspects of the claim must be considered when public interest standing is sought. First, is there a serious issue raised? Second, has it been established that the plaintiff is directly affected or, if not, does the plaintiff have a genuine interest in the issue? Third, is there another reasonable and effective way to bring the issue before the Court? It is clear that serious issues have been raised in this application and that the other applicants have a genuine interest in those issues. That leaves the question of whether there is another reasonable and effective way to bring the issue before the Court.



[81] In the particular circumstances of this case, it is not apparent that there was another reasonable and effective way to bring the issue of the other applicants’ Charter interests before the Court. The rights and freedoms protected under section 2 of the Charter could not have been invoked on Mr. Galloway’s behalf as he is not a Canadian citizen, was outside of Canada at the time the impugned actions took place and lacks any “nexus” to Canada: Slahi v. Canada (Minister of Justice), 2009 FC 160 at para. 48, application for leave to appeal dismissed by the Federal Court of Appeal on September 9, 2009, 2009 FCA 259, 394 N.R. 352 and leave dismissed by the Supreme Court of Canada on February 18, 2010.



[82] The respondents deny that CIC or CBSA actually applied Canadian law to Galloway and made a reviewable decision. Had they done so, they concede, such a nexus might exist. I note that courts of the United Kingdom have held that the rights of freedom of expression and association under the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5, may be invoked by a non-citizen excluded in similar circumstances: R (on the application of Farrakhan) v. Secretary of State for the Home Department, [2002] EWCA Civ 606, [2002] 4 All E.R. 289; GW v. An Immigration Officer, [2009] UKAIT 00050. But in those cases, there was evidence of a formal decision having been made by a Minister or official having the appropriate statutory authority. An analogous situation may have arisen if Mr. Galloway had applied for a TRP from outside Canada and the application had been refused.



[83] The applicants and the intervenor have drawn my attention to several decisions of the American courts which have held that denying a visa to a foreign visitor who was invited to speak in the United States constitutes a denial of American First Amendment rights: Kleindienst et al. v. Mandel et al., 408 U.S. 753 (1972); De Allende, et al., v. Schultz, 605 F. Supp. 1220 (U.S. Dist. 1985); Kleindienst has been favourably cited by the Supreme Court of Canada: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 at para. 18 (“Harper”).



[84] I accept the applicants’ position that the effect of denying the other applicants standing would prevent the Court from considering the argument that their rights of association and freedom of expression under the Charter had been infringed by the exclusion of Mr. Galloway from Canada. The potential breach is that they were unable to meet him in person and hear his views directly. In these circumstances, therefore, I think it appropriate to grant the other applicants public interest standing.



[85] There is no dispute between the parties that the right to freedom of expression under section 2 (b) of the Charter also protects the listener in that it includes the "right to hear" and the right to receive information: Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927; Harper, above, at paras. 17-18.



[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.



[87] The applicants, supported by the intervenor, argue that I should reject the government’s position that they were not denied the right to hear Mr. Galloway speak, only the choice of platform on which he was to deliver, and they were to receive, his comments. They submit that the mere fact of attending one of the venues where he was scheduled to appear is a form of expression. This is so because it puts the participant in a camp of persons who are concerned about the issues he would address. In their view, the government’s interference with Galloway’s visit to Canada denied them the right of expression by association with him at those venues and denied them the right to directly receive his views.



[88] The applicants assert that they are not seeking to require the government to provide Mr. Galloway with a platform on which to express his views. They wish, instead, to quash a decision that interferes with his ability to come to Canada and which infringes on their rights to freedom of expression and association. The respondents say that wanting to meet with someone in Canada who is inadmissible under Canadian law is not a form of protected expression. While there may have been some interference with the other applicants’ rights, it was not a substantial interference to the extent that would constitute a breach of s. 2: Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 at para. 48.



[89] The intervenor agrees with the government that the goals of s. 34 of the IRPA – to protect the safety of Canadians and to ensure that national security concerns are met – are pressing and substantial. But, they argue, the administration of s. 34 requires a balancing of interests. In cases where a significant number of Canadian citizens and permanent residents wish to engage on a temporary basis with a foreign national whose admission is not a security threat, the balance should favour the free speech and associations of those citizens and permanent residents over the other interests involved. They rely on the decision of the Supreme Court of Canada in Suresh, above, at paragraph 32 for this proposition.



[90] Suresh dealt with the deportation of a refugee claimant by reason of a security certificate. In that decision, the Supreme Court made it clear that in reviewing government action against an individual in that context, the Court must determine whether the Minister has exercised his decision-making power within the constraints imposed by the Constitution. I don’t think the ruling goes as far as the intervenor suggests to require a balancing of the interests of the state and those of third parties not directly affected by the decision.



[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.



[92] However, I don’t agree that the implication which flows from such a conclusion is that the rights of the other applicants under s. 2 of the Charter were breached. To enjoy such rights, there is no requirement for the government to accommodate the applicants by permitting someone entrance to Canada to meet with and speak to them. Under the jurisprudence interpreting s.2, as I understand it, there is no obligation on the part of the government to provide the means, and in this case the forum, by which the applicants may exercise their rights of expression: Dunmore. v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Haig v. Canada, [1993] 2 S.C.R. 995.



[93] On all of the evidence, there was no substantial interference with the rights of the other applicants to hear Galloway’s views or to associate themselves with his understanding of world events by attending at the scheduled venues. Nor is it the purpose of the legislative scheme, under which the respondents sought to bar Galloway, to deny the applicants their freedoms of speech or association. Rather, the purpose of the legislation is to protect Canadians from the admission of persons who may have committed or may, in the future, commit terrorist acts or who are members of an organization that does.



[94] The other applicants were denied the physical presence of Mr. Galloway as opposed to his image and his voice transmitted by video and telephone. As stated in Baier, above at paragraph 27, claimants must seek more than a particular channel for exercising their fundamental freedoms. I appreciate that the conditions under which Mr. Galloway eventually spoke to his Canadian audience in April 2009 were not optimal and that, as a result, some who had bought tickets chose not to attend. But this does not amount to a Charter breach. There was no infringement of their right to receive the content of Galloway’s message.



Was CBSA’s preliminary assessment that Mr. Galloway may be inadmissible pursuant to paragraphs 34(1)(c) and 34(1)(f) of the IRPA reasonable?





[95] As discussed above, I think it necessary to address this issue in the event that my conclusion on the outcome of this application is found to be in error. Moreover, there continues to be a live controversy between the parties as to the validity of the assessment.



[96] The overall standard of review for an inadmissibility decision based on paragraphs 34(1)(c) and (f) and s. 33 is reasonableness. The Court must afford the fact-finder a high degree of deference. This is not a case in which there was any issue as to the character of the organization in question. The issues were whether the applicant Galloway had engaged in terrorism or was a member of the organization. Deference does not require that the Court turn a blind eye to evident failings in the assessment.



[97] Having said that, I think it only fair to acknowledge that the authors of the preliminary assessment in this case did not have the benefit of argument by counsel or several months to consider the matter. The situation was novel as they would not normally encounter questions of inadmissibility relating to a sitting Member of Parliament. Moreover, they were being asked to provide a rapid assessment in circumstances where Ministers’ offices were actively engaged and where political staff and senior officials had already staked out a position. From my reading of the evidence, the assessment was written after political staff and senior officials had prematurely reached the conclusion that Galloway was inadmissible. It is not surprising that the resulting assessment confirmed that position, albeit in more cautious language.



[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.



[99] Much of the assessment consists of background information concerning Galloway’s involvement in matters such as the UN sponsored Iraqi Oil for Food program obtained from open sources such as the Internet. It is impossible to determine from the document whether this information is accurate as the sources are not identified. The authors include some details in Mr. Galloway’s favour, such as a finding by an investigative body that he had not breached the UN sanctions and that he had won a libel action over such accusations. This background information would not support a finding that Galloway had engaged in terrorism or was a member of an organization that engages in terrorism as it provides no evidence in support of either proposition.



[100] The primary focus of the analysis is said to be “Galloway' s inadmissibility pursuant to paragraph 34(1)(c) and 34(1)(f) of IRPA” due to his support for Hamas. No evidence of such support is referred to other than the Viva Palestina aid convoy. The assessment states:

The terrorist activities of the Hamas are well documented. Furthermore it is considered a listed entity according to the Government of Canada. The Anti-terrorism Act provides measures for the Government of Canada to create a list of entities. Public Safety Canada states that it is an offense to knowingly participate in or contribute to, directly, or indirectly, any activity of a terrorist group. This participation is only an offense if its purpose is to enhance the ability of any terrorist group to facilitate or carry out terrorist activity. (Highlighting added)



Galloway has publicly shown his support for Hamas. Not only has Galloway organized a convoy worth over 1 million British pounds in aid and vehicles, he also personally donated three vehicles and $44,000 (CDN) to Hamas leader, Haniya.





[101] The highlighted reference in the first paragraph to a statement by Public Safety Canada is presumably derived from Part II.1 of the Criminal Code R.S.C. 1985, c. C-46 as amended. The offences set out in that part deal with, among other things, the provision of material support to an organization that engages in terrorist activity.

[102] In an administrative law case involving the interpretation of s.34 of the IRPA, it is appropriate to consider the Criminal Code definition of terrorism: Soe v. Canada (Minister of Citizenship and Immigration), 2007 FC 671. “Terrorist activity” is defined in section 83.01 of the Code as encompassing a range of offences contrary to the UN Anti-terrorism Conventions to which Canada is a party, and other specified crimes of violence and serious property damage committed for a political, religious or ideological purpose, objective or cause.



[103] That portion of the definition which requires a political, religious or ideological purpose was struck down in R. v. Khawaja, [2006] O.J. No. 4245, 214 C.C.C. (3d) 399. The issue is currently before the Ontario Court of Appeal on appeal from that decision. Nonetheless, there is no question that the crimes in Part II.1 of the Code require proof of a necessary mental element; that is “…that an accused both knowingly participated in or contributed to a terrorist group, but also knew that it was such a group and intended to aid or facilitate it's terrorist activity.”: Khawaja at para. 38.



[104] Section 83.18 of the Code defines the criminal offence of knowingly participating in or contributing to, directly or indirectly, the activity of a terrorist group. For the purpose of proving an 83.18 offence, it must be established that the accused’s purpose is to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. The necessity to establish knowledge, intent, purpose or wilfulness is also found in the offences defined in sections 83.02, 83.03 and 83.04 which focus on the collection, provision and use of property to carry out terrorist acts.



[105] Canadian law in this regard is similar to that in the United States but differs in a significant respect which should be kept in mind by officials administering Canada’s legislation. The US material support statute contains an offence similar to those in the Criminal Code which require proof of both knowledge and purpose: 18 U.S.C. § 2339A. However, under 18 U. S. C. s.2339B, the more commonly used offence, it is sufficient to establish that the person knowingly made a contribution to a group which has been designated a “foreign terrorist organization” whether or not it was for a terrorist purpose: Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010) (“Holder”).



[106] As noted by Chief Justice John Roberts for the majority in Holder; while other anti-terrorism provisions in US law require an intent to further terrorist activity, Congress did not import that requirement when it enacted 18 U. S. C. §2339B in 1996 or when it clarified the knowledge requirements in 2004. The Parliament of Canada did import a purpose requirement in enacting Part II.1.



[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.



[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.



[111] In discussing the question of membership in a terrorist organization, the assessment states the following:

A member of a terrorist or a subversive or criminal organization does not have to personally commit acts or be involved in the management of the organization: it is only required that (s)he has knowledge of the essential nature of the organization and that there is an objective manifestation of the agreement to participate in the conduct of the affairs of the organization. The applicant provided financial support to a group which the Canadian government deemed was engaging in acts of terrorism. He was aiding the cause of Hamas and his role can be legally interpreted as assisting and providing a support function, in this case by providing financial backing. (Highlighting added)





[112] There is no reference in the document to any evidence of an agreement on the part of Galloway to participate in the affairs of Hamas nor is there any evidence cited of an intent to aid the cause of Hamas other than in contributing to it as the government of Gaza for the relief of suffering by the civilian population. To characterize the delivery of a convoy of humanitarian aid as “providing a support function” or “financial backing” amounting to an agreement to participate in the affairs of a terrorist organization is overreaching on the interpretation of the law.



[113] Reference is made in the assessment to the Federal Court decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 867, 116 A.C.W.S. (3d) 570 (“Pushpanathan”), for the proposition that complicity in support of the activities of a terrorist organization is sufficient to constitute an act of terrorism or to establish membership in the organization. The assessment states:

It is also important to note that complicity in respect to a terrorist activity can be considered to be an act of terrorism itself. While the case law in respect to complicity has been developed in the context of war crimes and crimes against humanity, these principles would also apply to acts of terrorism. Providing support functions, such as providing financial backing to the organization for the purpose of supporting the group and its activities, can be interpreted as activity that amounts to complicity.



[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.



[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.



[116] The authors of the assessment note that in Suresh v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 247 at para. 22, rev’d in part on other grounds, 47 Imm. L.R. (2d) 1 (FCA), 229 N.R. 240, Justice Max Teitelbaum stated that, “membership cannot and should not be narrowly interpreted when it involves the issue of Canada's national security. Membership also does not only refer to persons who have engaged or who might engage in terrorist activities”.



[117] While this is an accurate reference to a portion of Justice Teitelbaum’s decision, it does not reflect the other factors which he took into account. Suresh had denied being a member of the LTTE because he had never taken an oath of commitment or loyalty towards Tamil Eelam. Justice Teitelbaum dismissed that claim as Suresh had been involved with the LTTE from an early age and had taken on increasingly greater responsibilities including raising funds, being part of the LTTE executive and heading a component part of the organization. There is no evidence of a comparable connection to the organization in this case.



[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.



[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.



[120] The assessment cites the decision of the Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, in support of a statement that “membership in an organization implies the existence of an institutional link between the organization and an individual, accompanied by more than a nominal involvement in the activities of the organization”. There is no discussion of whether Galloway had an institutional link with Hamas nor is there evidence that he had more than nominal involvement in their activities. In Harb, the Court declined to clarify what it had meant by the phrase “membership in a group” in an earlier complicity decision as each case turns on its facts and the degree of participation in the group’s activities. In this case, there was no evidence of participation beyond the aid convoy.



[121] The authors of the assessment take the following statement out of context from Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (“Hajialikhani”): “[t]here is no doubt that financing crimes makes one complicit therein”. Again, there is no evidence that Galloway was knowingly and purposefully financing crimes. The undisputed evidence is that he was donating humanitarian aid, albeit to make a political statement in addition to his altruistic purpose.



[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.



[123] In their written representations, the respondents take the position that:

This Court, the Federal Court of Appeal and the Supreme Court of Canada have all confirmed that a person becomes a member of a terrorist organization within the meaning of ss. 34(1)(f) of IRPA, by donating financial and material support to a terrorist organization.

[Respondents’ Further Memorandum of Argument, para. 32]





[124] That is, I believe, an overstatement of the effect of the jurisprudence on this question. Counsel for the respondents fairly conceded in oral argument that donating financial and material support is but one factor that may assist in arriving at a determination that there are reasonable grounds to believe that a person is a member of a terrorist organization. This is borne out by an examination of cases cited by the respondent in support of this proposition, including Suresh, as discussed above.



[125] In Ugbazghi v. Canada (Minister of Citizenship and Immigration), 2008 FC 694, [2009] 1 F.C.R. 454, for example, the applicant had admitted to being a member of a group which supported the aims of the organization and had engaged in a series of activities over time such as attending meetings, making donations, distributing materials which encouraged others to join the armed struggle and/or to give donations. Similar facts appear in other cases cited by the respondents where the Court has upheld determinations of membership in a terrorist organization: Sepid v. Canada (Minister of Citizenship and Immigration), 2008 FC 907; Qureshi v. Canada (Minister of Citizenship and Immigration), 2009 FC 7.



[126] In a post-hearing communication from the respondent, my attention was drawn to the recent decision of my colleague Madam Justice Ann Mactavish in Farkhondehfall v. Canada (Minister of Citizenship and Immigration), 2010 FC 471 (“Farkhondehfall”). Counsel submits that this decision also holds that contributing money to a terrorist organization (in that case, the Mujahedin-e-Khalq or “MEK”) brings a person within the meaning of paragraph 34(1)(f) of IRPA.



[127] In Farkhondehfall, Justice Mactavish found that there was considerable evidence in the record to support the officer’s finding that the applicant was a member of MEK, including his attendance at meetings, selling books and making financial contributions. He was a long-term member of a MEK fund raising front organization in Iran and India and continued activities in support of MEK following his arrival in Canada. Thus, the financial contributions were just one of several factors pointing to membership.



[128] Evidence of financial or other forms of material support may well be sufficient in a particular case to provide reasonable grounds to believe that an individual is a member of a terrorist organization depending on the context and purpose for which the support is provided. An individual who knowingly delivers cash or goods to a group to assist in the commission of terrorist acts cannot avoid the label of membership in that group simply because he has never formally joined or put himself under the direction and control of its leaders. Membership may be found from the evidence as a whole, as was done in the cases cited above, including statements and actions that provide a basis from which to infer that the purpose of the contribution was to facilitate or to enable the terrorist objects of the organization. Purpose may be inferred where the donor has failed to provide a reasonable explanation for a contribution that points away from an intent to further terrorism.



[129] The intervenor submits that it is not reasonable to apply s. 34(1)(f) so broadly as to capture an individual’s mere association with an organization without some evidence of the individual’s participation in or propensity or likelihood to engage in acts of violence; citing the Supreme Court’s decision in Suresh, above, at paragraph 110 in support of this proposition.



[130] The Supreme Court’s comments in paragraph 110 arose in the context of a discussion of s. 19(1) of the former Immigration Act, the predecessor of s. 34. As described by the Court at paragraph 103 of the decision, s. 19(1) had another use under the former legislation. It was also referenced in s. 53(1), the deportation section, to define the class of Convention refugees who could be deported as a danger to the security of Canada. Given the legislative changes brought into effect with IRPA, I do not believe that the Court’s comments in paragraph 110 of Suresh stand for the proposition that an inadmissibility determination requires evidence of participation in or propensity to engage in acts of violence. It is sufficient if it can be established that the applicant knowingly supports the commission of acts of terrorism by the organization and does some act in furtherance of those objects.



Whether the impugned Ministerial decision and letter from the Immigration Program Manager are subject to judicial review



[131] The applicants’ argument, essentially, is that a reviewable decision was taken by the respondent ministers to bar Mr. Galloway entry to Canada and the decision was then confirmed by Mr. Orr’s letter of March 20, 2009. In their conception of the events, it is not relevant that the decision was not administratively enforced because Mr. Galloway did not appear at a Port of Entry and present himself for examination.



[132] As referenced above, on an application for judicial review, the Federal Court may, under paragraph 18.1(3)(b), declare invalid “a decision, order, act or proceeding of a federal board, commission or other tribunal”. The traditional view of this authority was that to be reviewable, the decision must be the final determination of the substantive question before the decision-maker: Mahabir v. Canada (Minister of Employment & Immigration), [1992] 1 F.C. 133 (C.A.) at para 10; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (S.C.C.), [1993] 1 S.C.R. 554. Under that approach, the actions of the executive in this matter would not be reviewable as there was no final decision regarding Mr. Galloway’s admissibility. It remained open to him to make representations and to have a determination made by an officer at the border.



[133] More recently, it has been considered that the Court’s judicial review mandate extends to any decision that determines a party’s rights and to any matter for which a remedy might be available under section 18 or 18.1(3): Larny Holdings Ltd. v. Canada (Ministry of Health), [2003] 1 F.C. 541, 222 F.T.R. 29. The Court's jurisdiction extends beyond reviewing formal decisions and includes an act or proceeding that flows from a statutory power: Markevich v. Canada (T.D.), [1999] 3 F.C. 28 reversed on a unrelated issue, 2001 FCA 144 (“Markevich”); Nunavut Tunngavik Inc. v. Canada (Attorney General), 2004 FC 85.

[134] The applicants contend that it is clear on the evidence that direction had been given to border officials to find Mr. Galloway inadmissible and that the preliminary assessment had been prepared for that purpose. While border officials are theoretically decision makers, they are subject to Ministerial direction and would rely on the assessment prepared by specialists in carrying out their duties. Moreover, the officers are required under subsection 15(4) of the IRPA to conduct border examinations in accordance with any instructions that the Minister may give.



[135] The difficulty with the applicants’ position is that it is clear from the evidence that all of the efforts to keep Mr. Galloway out of Canada anticipated that the actual decision to bar him would have to be made by an immigration officer at a border post or airport. The meaning conveyed by Mr. Orr’s letter was that a decision regarding admissibility was yet to be made and would only be made in accordance with the statutory scheme if, and when, he presented himself for examination. This was Mr. Orr’s understanding of the legislative scheme and of the administrative process that would be followed. He held firm to that view under cross-examination.



[136] The Act requires, under Part 1, Division 1, that anyone seeking to enter Canada must first present himself or herself before an officer for examination. While Mr. Galloway, as a British citizen, did not require a visa to enter Canada, he remained subject to the examination requirements. In the normal course of events, that would have been satisfied by a brief exchange between Mr. Galloway and a CBSA officer at the border or an airport. Mr. Orr’s letter advised Mr. Galloway of the possibility that he might be found inadmissible if he presented himself for examination as required by the statute and if found inadmissible under s. 34 of the Act, the letter informed him that it was unlikely that ministerial discretion would be exercised in his favour to grant a TRP. As noted above, that message was also conveyed to the British press by Mr. Velshi.



[137] There is a body of jurisprudence in the Federal Courts that such “courtesy” or “informational” letters are not reviewable decisions, particularly when written by a person not authorized to make a decision: Demirtas v. Canada (Minister of Employment and Immigration) (C.A.), [1993] 1 F.C. 602, at para. 8; Nkumbi v. Canada (Minister of Citizenship and Immigration), 160 F.T.R. 194, 50 Imm. L.R. (2d) 155 at paras. 37-40 (“Nkumbi”); Carvajal v. Canada (Minister of Employment and Immigration), 82 F.T.R. 241, 48 A.C.W.S. (3d) 787 at para. 4 (“Carvajal”).



[138] In Nkumbi, for example, the applicant sought judicial review of an immigration counsellor’s letter explaining that she could not make a new claim for refugee status as a departure order had been made against her. Mr. Justice Blais, as he then was, held that this information letter was not reviewable as the officer had not made the departure order and was not empowered to deny the claim. In Carvajal, the immigration officer had written to the applicants to remind them that they were ineligible for permanent residency status because of an earlier determination for which they had not sought judicial review. Mr. Justice McKeown relied, in part, in dismissing the application on the fact that the officer communicating the information was not empowered under the legislation to make the decision which the applicants wished to challenge. Similarly, in this case, Mr. Orr was not in a position to examine Mr. Galloway for admissibility at a Canadian port of entry.



[139] There are undoubtedly circumstances in which a letter is evidence of a decision taken by a person or body authorized to make the decision. The decision will be judicially reviewable even if it flows from the actions of the individual and not from the actions of the deciding person or body. In Bouchard v. Canada (Minister of National Defence), 187 D.L.R. (4th) 314, 255 N.R. 183, for example, a letter advising the applicant that she could not be reinstated to her position after she had voluntarily resigned evidenced a reviewable decision.



[140] In Markevich, above, the applicant had been sent a letter by Revenue Canada advising him that he owed an amount in unpaid taxes that had previously been deemed uncollectable. The Court held that the letter constituted an administrative action by a person having statutory powers and who had determined to use them. It was, therefore, a reviewable “act or proceeding”. In the context of this case, the analogy would be that Mr. Orr’s letter constituted a reviewable act as it conveyed an intent to employ the statutory powers. The difficulty with the analogy is that the evidence is that Mr. Orr had no intention to exercise the relevant powers and was not in a position to do so as he would not be the examining officer.



[141] The information conveyed in Mr. Orr’s letter put Mr. Galloway on notice but did not affect his rights or carry legal consequences. Only a decision having those effects would be amenable to judicial review: Democracy Watch v. Canada (Conflict of Interest and Ethics Commissioner), 2009 FCA 15 at paras. 9-10; Pieters v. Canada (Attorney General), 2007 FC 556 at para. 60.



[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.



[143] While CBSA border officials had been alerted to Mr. Galloway's possible arrival at the land border with the United States, or by air to Pearson airport, and had been apprised of the preliminary assessment by NSCS officials, the occasion did not arise for any final determination to be made by a CBSA officer regarding Mr. Galloway's admissibility.



[144] This Court has held that advance indications of a future ministerial position are not subject to judicial review: Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue), 148 F.T.R. 3, [1998] 2 C.T.C. 176 at para. 28. The Ministers’ position that no TRP would be granted conveyed by Mr. Orr’s e-mails or Mr. Velshi’ statements to the press did not have the legal effect of settling the matter of Mr. Galloway’s entitlement to a TRP as he had not requested one.



[145] I agree with respondents’ counsel assessment that Mr. Velshi’s comments to the press were no more than “unfortunate expressions of opinion”. They were not made by a “federal board, commission or other tribunal” empowered to exercise statutory authority and must be read in the context provided by the legislative scheme. 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. As the Federal Court of Appeal has held, such remarks may be construed as nothing more than an excess of confidence in the strength of the case: Mohammad v. Canada (Minister of Employment and Immigration) (C.A.), [1989] 2 F.C. 363 at para. 31. Here, there appears also to have been an intent to gain some political advantage from publicly condemning Galloway. In any event, the remarks had no direct effect on the question of Galloway’s admissibility as he did not attempt to enter Canada.



[146] The applicants have suggested in post-hearing correspondence that the recent decision of my colleague, Mr. Justice Russel Zinn in Khadr v. Canada (Prime Minister), 2010 FC 715, may have a bearing on this case (“Khadr”). In Khadr, the applicant had relied on statements by a Minister and the Prime Minister’s communications assistant to the media on two occasions as evidence that a decision affecting his interests had been made. Mr. Justice Zinn held that the comments reflected the decision that had been taken by the executive regarding the remedy they would provide the applicant in response to a decision by the Supreme Court of Canada. Such decision was judicially reviewable as it affected the applicant’s established right as a citizen to enjoy the protection of his country.



[147] I agree with the respondents that Khadr is not helpful in the present matter. There was no evidence in that case to call into question the applicant’s claim that the public statements demonstrated that a decision had been made at the highest levels of the government, as it was obliged to do. In the present case, there is the evidence of Mr. Sauvé and Mr. Orr that a visa officer had not found Mr. Galloway inadmissible and the structure of the legislative scheme is incompatible with a finding to the contrary.



[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.



[149] In the absence of such evidence, I find that there was no legally reviewable decision to bar Mr. Galloway from Canada and that this application must be dismissed.



Proposed questions for certification



[150] The parties were given an opportunity to propose questions for certification. As set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts Immigration and Refugee Protection Rules, as amended, there can be no appeal of this decision if the Court does not certify a question.



[151] In Kunkel v. Canada (Minister of Citizenship and Immigration), 2009 FCA 347 at para. 9, the Federal Court of Appeal held that a certified question must lend itself to a generic approach leading to an answer of general application. That is, the question must transcend the particular context in which it arose.



[152] The respondents submitted the following proposed questions for consideration:

a. Can giving a voluntary and significant cash donation to an entity listed as “terrorist” pursuant to Canada’s Criminal Code, make the donor inadmissible on security grounds under s. 34(1)(f) of IRPA?



b. Do the fundamental freedoms of expression and association guaranteed to everyone in Canada pursuant to section 2 (b) and (d) of the Canadian Charter of Rights and Freedoms, require Canada to admit a person who is inadmissible under IRPA, if people in Canada wish to meet him?



c. With respect to a visa-exempt, foreign national who indicates a future intention to visit Canada, is a “preliminary assessment” of admissibility, a “decision or order” properly subject to judicial review in the Federal Court pursuant to section 18.1 of the Federal Courts Act?





[153] The applicants do not agree that the questions posed above by the respondents raise serious issues of general importance or are appropriate on the facts before the Court.



[154] The applicants submit the following alternative questions which they say are serious and are of general importance:

a. Can the concept of “member” in a terrorist organization, in s. 34(1)(f) of the IRPA, extend to a person who, on behalf of the other individuals, organizations and himself, in response to an egregious humanitarian crisis, provide humanitarian assistance to civilians through their democratically elected government, the governing party of which, is listed by Canada as a terrorist organization under the ATA?



b. When a person has engaged in expression and association outside of Canada, of a nature which would be recognized as protected if it had occurred in Canada, can the exercise of these freedoms form the basis for a finding of inadmissibility under Canadian law, in this case s. 34(1)(f) of IRPA?







[155] While the applicants maintain that a “decision” has effectively been made in respect of Mr. Galloway’s admissibility to Canada, in the alternative, should the Court conclude that the information imparted to Mr. Galloway and to the international press did not constitute a decision, the applicants would pose two further questions.



3. Does the Federal Court have jurisdiction to review a “matter”, as contemplated under s. 18.1(1) of the FCA or an “act” as contemplated under s. 18.1(3) of the FCA, where the ‘matter’ or ‘act’ impacts on the rights of Canadians in the same way as in Markevich v. Canada (T.D.) [1999] 3 F.C. 28, overturned on appeal on a different issue in Markevich v. Canada, 2001 FCA 144?



4. Does the Federal Court have jurisdiction under s. 18.1(1) of the FCA to review a predetermination by the Minister of CIC and CBSA of inadmissibility to Canada of a foreign national, in the form of a preliminary assessment which has been made and communicated to the foreign national (and publicly)?





[156] The intervenor took no position with respect to the appropriateness of either the respondents’ or the applicants’ proposed questions and requested consideration of the following questions:

a. Does the term “member of an organization” under section 34(1)(f) of IRPA encompass giving a donation to civilians for humanitarian purposes through a democratically-elected government, the governing party of which is listed by Canada as a terrorist group or organization?



b. When making decisions on inadmissibility and exercising discretion under section 34 of IRPA is the Government required to balance security interests with the interests of freedom of expression and association under sections 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms in circumstances where people in Canada wish to associate with or hear from a foreign national or permanent resident seeking admission to Canada.



[157] Having considered the questions proposed by the parties and the intervenor, I consider that the following questions transcend the particular context in which this application arose and are serious questions of general importance which would be dispositive of an appeal:

a. With respect to a visa-exempt foreign national who indicates a future intention to visit Canada, is a “preliminary assessment” of inadmissibility a decision, order, act or proceeding properly subject to judicial review in the Federal Court pursuant to section 18.1 of the Federal Courts Act?



b. Does a voluntary contribution of cash and goods to an organization listed as a “terrorist entity” pursuant to the Criminal Code, without other acts or indicia of membership, constitute reasonable grounds to believe that the donor has engaged in terrorist acts or is a member of a terrorist organization so as to make the donor inadmissible on security grounds under s. 34(1)(c) or (f) of IRPA?







JUDGMENT



IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. The following questions are certified:



1. With respect to a visa-exempt, foreign national who indicates a future intention to visit Canada, is a “preliminary assessment” of inadmissibility a decision, order, act or proceeding properly subject to judicial review in the Federal Court pursuant to section 18.1 of the Federal Courts Act?



2. Does a voluntary contribution of cash and goods to an organization listed as a “terrorist entity” pursuant to the Criminal Code, without other acts or indicia of membership, constitute reasonable grounds to believe that the donor has engaged in terrorist acts or is a member of a terrorist organization so as to make the donor inadmissible on security grounds under s. 34(1)(c) or (f) of IRPA?





“Richard G. Mosley”

Judge

FEDERAL COURT



SOLICITORS OF RECORD





DOCKET: IMM-1474-09



STYLE OF CAUSE: 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, DENIS LEMELIN, and LORRAINE GUAY



and



THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS



and



THE MINISTER OF CITIZENSHIP AND IMMIGRATION



And



THE CANADIAN CIVIL LIBERTIES ASSOCIATION



PLACE OF HEARING: Toronto, Ontario



DATE OF HEARING: April 26 to 28, 2010



REASONS FOR JUDGMENT

AND JUDGMENT: MOSLEY J.



DATED: September 27, 2010







APPEARANCES:



Barbara Jackman

Hadayt Nazami




FOR THE APPLICANTS

Marie-Louise Wcislo

Kristina Dragaitis

Hillary Stephenson

Neal Samson




FOR THE RESPONDENTS

Sonia Bjorkquist

Jason MacLean


FOR THE INTERVENOR

The Canadian Civil Liberties Association



SOLICITORS OF RECORD:



BARBARA JACKMAN

HADAYT NAZAMI

Jackman & Associates

Toronto, Ontario




FOR THE APPLICANTS

MYLES J. KIRVAN

Deputy Attorney General of Canada

Toronto, Ontario




FOR THE RESPONDENTS

SONIA BJORKQUIST

JASON MACLEAN

Osler, Hoskin & Harcourt LLP

Toronto, Ontario


FOR THE INTERVENOR

The Canadian Civil Liberties Association

Addameer's Ala Jaradat Tours North America

During the speaking tour our organization will be represented by Mr. Ala Jaradat, Programs Manager at Addameer. His stop in Vancouver is currently scheduled for 24th and 25th October. While in Vancouver, Mr. Jaradat is scheduled to meet with government representatives, hopefully a number of parliamentarians as well as the NGO / activist community. We are therefore very interested inr reaching out to your audience, which is why I am writing to you. I was wondering whether you would be willing to organize an interview for the radio station?

While the focus of Addameer's speaking tour in Canada is Israel's use of administrative detention and the heightened levels of criminalization against human rights defenders seeking to advance Palestinian rights in the OPT and Israel, Mr. Jaradat would also like to raise other issues such as the systematic forms of human rights abuses of Palestinian prisoners' rights and the failures of the Israeli military courts system. He would also be happy to expand on these issues in order to accommodate additional interests you might like to address.

ADDAMEER (Arabic for conscience) Prisoners Support and Human Rights Association is a Palestinian non-governmental, civil institution which focuses on human rights issues. Established in 1992 by a group of activists interested in human rights, the center's activities focus on offering support for Palestinian prisoners, advocating the rights of political prisoners, and working to end torture through monitoring, legal procedures and solidarity campaigns.

Addameer is a member of the Executive Committee of the Palestinian NGO Network, the Palestinian Council of Human Rights Organizations, and works closely with international human rights organizations such as Amnesty International, Human Rights Watch, OMCT and FIDH to provide regular information on the situation of Palestinian political detainees.

Addameer believes in the internationality of human rights based on the respect of human dignity as a priority, the totality of which is constructed upon international laws and conviction.

Addameer also believes in the importance of building a free and democratic Palestinian society based on justice, equality, rule of law and respect for human rights within the larger framework of the right to self-determination.

Addameer strives to:

* Oppose torture as well as other instances of brutality, inhumanity, and degrading inflicted upon Palestinian prisoners.
* Abolish the death penalty.
* Oppose arbitrary arrest and guarantee fair and just trials.
* Support and endorse prisoners of conscience through supporting the efforts of political prisoners and providing them with psychological, legal and media support.
* Support families of Palestinian detainees and the community at large in addressing issues of human rights violations.
* Contribute in lobbying towards the issuing of laws which guarantee human rights principles and basic freedom, as well as ensuring their implementation on the ground.
* Participate in raising awareness locally and internationally regarding the issues of human rights, democracy and the rule of law in order to promote greater community participation in securing human rights.

The Programs of Addameer

1. Legal Aid Program: Since its founding, the backbone of the organization's work has been legal aid for Palestinian detainees. The Legal Aid Program of Addameer has provided legal advice and representation to hundreds of Palestinian detainees by providing free legal services to prisoners, legal consultations for them and their families, and working on cases of precedent in the issue of torture and fair trials.
2. Regular Prison Visits and Social Counseling: Addameer conducts regular visits to Palestinian and Arab prisoners in order to ensure that basic living conditions and situations are adequate. It also offers legal counseling to detainees and their families in order to ensure that they understand their rights and are able to address violations.
3. Documentation of Palestinian Detainee Rights: Addameer documents statistics concerning the numbers of detainees, date and place of arrest, and any violations suffered by detainees.
4. Media Coverage and Outreach: Addameer regularly issues press releases and action alerts detailing the status of detainee rights and has activated its website, making accessible to the local and international community a wealth of information on the issue of detainees' rights and the conditions in which they live. In particular, at the beginning of October 2000, Addameer launched a three-month project called the September 2000 Clashes Information Center that was considered the primary source of information regarding the situation in the West Bank and Gaza Strip.
5. Advocacy: Through campaigning and advocacy work, Addameer works towards building local, Arab and international solidarity campaigns to oppose torture and arbitrary detention and to support and to defend Palestinian prisoners.

Addameer has been actively involved in the development of Palestinian civil society since its establishment. In particular, in its role as an executive member of PNGO, Addameer plays an important role in structuring the response of civil society to human rights violations, as well as directing strategies for increased community awareness. This has also placed the association in a unique position because of its strong commitment and relationship to the local community. Community involvement remains the backbone of the organization, in the form of volunteerism and support for all activities of the association and its campaigns.

The priority of Addameer is to ensure that the association is not merely a service oriented establishment, but rather a resource for the community to address human rights violations.

Birthday Best to John Lennon @ 70

"Power to the People"
The Lost John Lennon Interview

By TARIQ ALI
and ROBIN BLACKBURN

Editors' Note: It was twenty-five years ago today that John Lennon was murdered outside the Dakota building on Central Park West in New York City. We doubt many CounterPunchers have read the following 1971 interview with Lennon done by CounterPunchers Tariq Ali and Robin Blackburn. It's a lot more interesting that the interminable Q and A with Lennon done by Rolling Stone's Jann Wenner. Tariq and Robin allowed Lennon to talk and spurred him on when he showed signs of flagging. Lennon recounts about how he and George Harrison bucked their handlers and went on record against the Vietnam War, discusses class politics in an engaging manner, defends country and western music and the blues, suggests Dylan's best songs stem from revolutionary Irish and Scottish ballads and dissects his three versions of "Revolution". The interview ran in The Red Mole, a Trotskyist sheet put out by the British arm of the Fourth International. As you'll see, those were different days. The interview is included in Tariq Ali's Streetfighting Years, recently published by Verso. AC / JSC

Tariq Ali: Your latest record and your recent public statements, especially the interviews in Rolling Stone magazine, suggest that your views are becoming increasingly radical and political. When did this start to happen?

John Lennon: I've always been politically minded, you know, and against the status quo. It's pretty basic when you're brought up, like I was, to hate and fear the police as a natural enemy and to despise the army as something that takes everybody away and leaves them dead somewhere.

I mean, it's just a basic working class thing, though it begins to wear off when you get older, get a family and get swallowed up in the system.

In my case I've never not been political, though religion tended to overshadow it in my acid days; that would be around '65 or '66. And that religion was directly the result of all that superstar shit--religion was an outlet for my repression. I thought, 'Well, there's something else to life, isn't there? This isn't it, surely?'

But I was always political in a way, you know. In the two books I wrote, even though they were written in a sort of Joycean gobbledegook, there's many knocks at religion and there is a play about a worker and a capitalist. I've been satirising the system since my childhood. I used to write magazines in school and hand them around.

I was very conscious of class, they would say with a chip on my shoulder, because I knew what happened to me and I knew about the class repression coming down on us--it was a fucking fact but in the hurricane Beatle world it got left out, I got farther away from reality for a time.

TA: What did you think was the reason for the success of your sort of music?

JL: Well, at the time it was thought that the workers had broken through, but I realise in retrospect that it's the same phoney deal they gave the blacks, it was just like they allowed blacks to be runners or boxers or entertainers. That's the choice they allow you--now the outlet is being a pop star, which is really what I'm saying on the album in 'Working class hero'. As I told Rolling Stone, it's the same people who have the power, the class system didn't change one little bit.

Of course, there are a lot of people walking around with long hair now and some trendy middle class kids in pretty clothes. But nothing changed except that we all dressed up a bit, leaving the same bastards running everything.

Robin Blackburn: Of course, class is something the American rock groups haven't tackled yet.

JL: Because they're all middle class and bourgeois and they don't want to show it. They're scared of the workers, actually, because the workers seem mainly right-wing in America, clinging on to their goods. But if these middle class groups realise what's happening, and what the class system has done, it's up to them to repatriate the people and to get out of all that bourgeois shit.

TA: When did you start breaking out of the role imposed on you as a Beatle?

JL: Even during the Beatle heyday I tried to go against it, so did George. We went to America a few times and Epstein always tried to waffle on at us about saying nothing about Vietnam. So there came a time when George and I said 'Listen, when they ask next time, we're going to say we don't like that war and we think they should get right out.' That's what we did. At that time this was a pretty radical thing to do, especially for the 'Fab Four'. It was the first opportunity I personally took to wave the flag a bit.

But you've got to remember that I'd always felt repressed. We were all so pressurised that there was hardly any chance of expressing ourselves, especially working at that rate, touring continually and always kept in a cocoon of myths and dreams. It's pretty hard when you are Caesar and everyone is saying how wonderful you are and they are giving you all the goodies and the girls, it's pretty hard to break out of that, to say 'Well, I don't want to be king, I want to be real.' So in its way the second political thing I did was to say 'The Beatles are bigger than Jesus.' That really broke the scene, I nearly got shot in America for that. It was a big trauma for all the kids that were following us. Up to then there was this unspoken policy of not answering delicate questions, though I always read the papers, you know, the political bits.

The continual awareness of what was going on made me feel ashamed I wasn't saying anything. I burst out because I could no longer play that game any more, it was just too much for me. Of course, going to America increased the build up on me, especially as the war was going on there. In a way we'd turned out to be a Trojan horse. The 'Fab Four' moved right to the top and then sang about drugs and sex and then I got into more and more heavy stuff and that's when they started dropping us.

RB: Wasn't there a double charge to what you were doing right from the beginning?

Yoko Ono: You were always very direct.

JL: Yes, well, the first thing we did was to proclaim our Liverpoolness to the world, and say 'It's all right to come from Liverpool and talk like this'. Before, anybody from Liverpool who made it, like Ted Ray, Tommy Handley, Arthur Askey, had to lose their accent to get on the BBC. They were only comedians but that's what came out of Liverpool before us. We refused to play that game. After The Beatles came on the scene everyone started putting on a Liverpudlian accent.

TA: In a way you were even thinking about politics when you seemed to be knocking revolution?

JL: Ah, sure, 'Revolution' . There were two versions of that song but the underground left only picked up on the one that said 'count me out'. The original version which ends up on the LP said 'count me in' too; I put in both because I wasn't sure. There was a third version that was just abstract, musique concrete, kind of loops and that, people screaming. I thought I was painting in sound a picture of revolution--but I made a mistake, you know. The mistake was that it was anti-revolution.

On the version released as a single I said 'when you talk about destruction you can count me out'. I didn't want to get killed. I didn't really know that much about the Maoists, but I just knew that they seemed to be so few and yet they painted themselves green and stood in front of the police waiting to get picked off. I just thought it was unsubtle, you know. I thought the original Communist revolutionaries coordinated themselves a bit better and didn't go around shouting about it. That was how I felt--I was really asking a question. As someone from the working class I was always interested in Russia and China and everything that related to the working class, even though I was playing the capitalist game.

At one time I was so much involved in the religious bullshit that I used to go around calling myself a Christian Communist, but as Janov says, religion is legalised madness. It was therapy that stripped away all that and made me feel my own pain.

RB: This analyst you went to, what's his name. ..

JL: Janov ...

RB: His ideas seem to have something in common with Laing in that he doesn't want to reconcile people to their misery, to adjust them to the world but rather to make them face up to its causes?

JL: Well, his thing is to feel the pain that's accumulated inside you ever since your childhood. I had to do it to really kill off all the religious myths. In the therapy you really feel every painful moment of your life--it's excruciating, you are forced to realise that your pain, the kind that makes you wake up afraid with your heart pounding, is really yours and not the result of somebody up in the sky. It's the result of your parents and your environment.

As I realised this it all started to fall into place. This therapy forced me to have done with all the God shit. All of us growing up have come to terms with too much pain. Although we repress it, it's still there. The worst pain is that of not being wanted, of realising your parents do not need you in the way you need them.

When I was a child I experienced moments of not wanting to see the ugliness, not wanting to see not being wanted. This lack of love went into my eyes and into my mind. Janov doesn't just talk to you about this but makes you feel it--once you've allowed yourself to feel again, you do most of the work yourself.

When you wake up and your heart is going like the clappers or your back feels strained, or you develop some other hang-up, you should let your mind go to the pain and the pain itself will regurgitate the memory which originally caused you to suppress it in your body. In this way the pain goes to the right channel instead of being repressed again, as it is if you take a pill or a bath, saying 'Well, I'll get over it'. Most people channel their pain into God or masturbation or some dream of making it.

The therapy is like a very slow acid trip which happens naturally in your body. It is hard to talk about, you know, because--you feel 'I am pain' and it sounds sort of arbitrary, but pain to me now has a different meaning because of having physically felt all these extraordinary repressions. It was like taking gloves off, and feeling your own skin for the first time.

It's a bit of a drag to say so, but I don't think you can understand this unless you've gone through it--though I try to put some of it over on the album. But for me at any rate it was all part of dissolving the God trip or father-figure trip. Facing up to reality instead of always looking for some kind of heaven.

RB: Do you see the family in general as the source of these repressions?

JL: Mine is an extreme case, you know. My father and mother split and I never saw my father until I was 20, nor did I see much more of my mother. But Yoko had her parents there and it was the same....

YO: Perhaps one feels more pain when parents are there. It's like when you're hungry, you know, it's worse to get a symbol of a cheeseburger than no cheeseburger at all. It doesn't do you any good, you know. I often wish my mother had died so that at least I could get some people's sympathy. But there she was, a perfectly beautiful mother.

JL: And Yoko's family were middle-class Japanese but it's all the same repression. Though I think middle-class people have the biggest trauma if they have nice imagey parents, all smiling and dolled up. They are the ones who have the biggest struggle to say, 'Goodbye mummy, goodbye daddy'.

TA: What relation to your music has all this got?

JL: Art is only a way of expressing pain. I mean the reason Yoko does such far out stuff is that it's a far out kind of pain she went through.

RB: A lot of Beatle songs used to be about childhood...

JL: Yeah, that would mostly be me...

RB: Though they were very good there was always a missing element...

JL: That would be reality, that would be the missing element. Because I was never really wanted. The only reason I am a star is because of my repression. Nothing else would have driven me through all that if I was 'normal'...

YO: ... and happy ...

JL: The only reason I went for that goal is that I wanted to say: 'Now, mummy-daddy, will you love me?'

TA: But then you had success beyond most people's wildest dreams...

JL: Oh, Jesus Christ, it was a complete oppression. I mean we had to go through humiliation upon humiliation with the middle classes and showbiz and Lord Mayors and all that. They were so condescending and stupid. Everybody trying to use us. It was a special humiliation for me because I could never keep my mouth shut and I'd always have to be drunk or pilled to counteract this pressure. It was really hell ...

YO: It was depriving him of any real experience, you know...

JL: It was very miserable. I mean apart from the first flush of making it--the thrill of the first number one record, the first trip to America. At first we had some sort of objective like being as big as Elvis--moving forward was the great thing, but actually attaining it was the big let-down. I found I was having continually to please the sort of people I'd always hated when I was a child. This began to bring me back to reality.

I began to realise that we are all oppressed which is why I would like to do something about it, though I'm not sure where my place is.

RB: Well, in any case, politics and culture are linked, aren't they? I mean, workers are repressed by culture not guns at the moment ...

JL: ... they're doped ...

RB: And the culture that's doping them is one the artist can make or break...

JL: That's what I'm trying to do on my albums and in these interviews. What I'm trying to do is to influence all the people I can influence. All those who are still under the dream and just put a big question mark in their mind. The acid dream is over, that is what I'm trying to tell them.

RB: Even in the past, you know, people would use Beatle songs and give them new words. 'Yellow submarine' , for instance, had a number of versions. One that strikers used to sing began 'We all live on bread and margarine' ; at LSE we had a version that began 'We all live in a Red LSE'.

JL: I like that. And I enjoyed it when football crowds in the early days would sing 'All together now'--that was another one. I was also pleased when the movement in America took up 'Give peace a chance' because I had written it with that in mind really. I hoped that instead of singing 'We shall overcome' from 1800 or something, they would have something contemporary. I felt an obligation even then to write a song that people would sing in the pub or on a demonstration. That is why I would like to compose songs for the revolution now ...

RB: We only have a few revolutionary songs and they were composed in the 19th century. Do you find anything in our musical traditions which could be used for revolutionary songs?

JL: When I started, rock and roll itself was the basic revolution to people of my age and situation. We needed something loud and clear to break through all the unfeeling and repression that had been coming down on us kids. We were a bit conscious to begin with of being imitation Americans. But we delved into the music and found that it was half white country and western and half black rhythm and blues. Most of the songs came from Europe and Africa and now they were coming back to us. Many of Dylan's best songs came from Scotland, Ireland or England. It was a sort of cultural exchange.

Though I must say the more interesting songs to me were the black ones because they were more simple. They sort of saidshake your arse, or your prick, which was an innovation really. And then there were the field songs mainly expressing the pain they were in. They couldn't express themselves intellectually so they had to say in a very few words what was happening to them. And then there was the city blues and a lot of that was about sex and fighting.

A lot of this was self-expression but only in the last few years have they expressed themselves completely with Black Power, like Edwin Starr making war records. Before that many black singers were still labouring under that problem of God; it was often 'God will save us'. But right through the blacks were singing directly and immediately about their pain and also about sex, which is why I like it.

RB: You say country and western music derived from European folk songs. Aren't these folk songs sometimes pretty dreadful stuff, all about losing and being defeated?

JL: As kids we were all opposed to folk songs because they were so middle-class. It was all college students with big scarfs and a pint of beer in their hands singing folk songs in what we call la-di-da voices-'I worked in a mine in New-cast-le' and all that shit. There were very few real folk singers you know, though I liked Dominic Behan a bit and there was some good stuff to be heard in Liverpool. Just occasionally you hear very old records on the radio or TV of real workers in Ireland or somewhere singing these songs and the power of them is fantastic.

But mostly folk music is people with fruity voices trying to keep alive something old and dead. It's all a bit boring, like ballet: a minority thing kept going by a minority group. Today's folk song is rock and roll. Although it happened to emanate from America, that's not really important in the end because we wrote our own music and that changed everything.

RB: Your album, Yoko, seems to fuse avant-garde modern music with rock. I'd like to put an idea to you I got from listening to it. You integrate everyday sounds, like that of a train, into a musical pattern. This seems to demand an aesthetic measure of everyday life, to insist that art should not be imprisoned in the museums and galleries, doesn't it?

YO: Exactly. I want to incite people to loosen their oppression by giving them something to work with, to build on. They shouldn't be frightened of creating themselves--that's why I make things very open, with things for people to do, like in my book [Grapefruit].

Because basically there are two types of people in the world: people who are confident because they know they have the ability to create, and then people who have been demoralised, who have no confidence in themselves because they have been told they have no creative ability, but must just take orders. The Establishment likes people who take no responsibility and cannot respect themselves.

RB: I suppose workers' control is about that...

JL: Haven't they tried out something like that in Yugoslavia; they are free of the Russians. I'd like to go there and see how it works.

TA: Well, they have; they did try to break with the Stalinist pattern. But instead of allowing uninhibited workers' control, they added a strong dose of political bureaucracy. It tended to smother the initiative of the workers and they also regulated the whole system by a market mechanism which bred new inequalities between one region and another.

JL: It seems that all revolutions end up with a personality cult--even the Chinese seem to need a father-figure. I expect this happens in Cuba too, with Che and Fidel. In Western-style Communism we would have to create an almost imaginary workers' image of themselves as the father-figure.

RB: That's a pretty cool idea--the Working Class becomes its own Hero. As long as it was not a new comforting illusion, as long as there was a real workers' power. If a capitalist or bureaucrat is running your life then you need to compensate with illusions.

YO: The people have got to trust in themselves.

TA: That's the vital point. The working class must be instilled with a feeling of confidence in itself. This can't be done just by propaganda--the workers must move, take over their own factories and tell the capitalists to bugger off. This is what began to happen in May 1968 in France...the workers began to feel their own strength.

JL: But the Communist Party wasn't up to that, was it?

RB: No, they weren't. With 10 million workers on strike they could have led one of those huge demonstrations that occurred in the centre of Paris into a massive occupation of all government buildings and installations, replacing de Gaulle with a new institution of popular power like the Commune or the original Soviets--that would have begun a real revolution but the French C.P. was scared of it. They preferred to deal at the top instead of encouraging the workers to take the initiative themselves...

JL: Great, but there's a problem about that here you know. All the revolutions have happened when a Fidel or Marx or Lenin or whatever, who were intellectuals, were able to get through to the workers. They got a good pocket of people together and the workers seemed to understand that they were in a repressed state. They haven't woken up yet here, they still believe that cars and tellies are the answer. You should get these left-wing students out to talk with the workers, you should get the school-kids involved with The Red Mole.

TA: You're quite right, we have been trying to do that and we should do more. This new Industrial Relations Bill the Government is trying to introduce is making more and more workers realise what is happening...

JL: I don't think that Bill can work. I don't think they can enforce it. I don't think the workers will co-operate with it. I thought the Wilson Government was a big let-down but this Heath lot are worse. The underground is being harrassed, the black militants can't even live in their own homes now, and they're selling more arms to the South Africans. Like Richard Neville said, there may be only an inch of difference between Wilson and Heath but it's in that inch that we live....

TA: I don't know about that; Labour brought in racialist immigration policies, supported the Vietnam war and were hoping to bring in new legislation against the unions.

RB: It may be true that we live in the Inch of difference between Labour and Conservative but so long as we do we'll be impotent and unable to change anything. If Heath is forcing us out of that inch maybe he's doing us a good turn without meaning to...

JL: Yes, I've thought about that, too. This putting us in a corner so we have to find out what is coming down on other people. I keep on reading the Morning Star [the Communist newspaper] to see if there's any hope, but it seems to be in the 19th century; it seems to be written for dropped-out, middle-aged liberals.

We should be trying to reach the young workers because that's when you're most idealistic and have least fear.

Somehow the revolutionaries must approach the workers because the workers won't approach them. But it's difficult to know where to start; we've all got a finger in the dam. The problem for me is that as I have become more real, I've grown away from most working-class people--you know what they like is Engelbert Humperdinck. It's the students who are buying us now, and that's the problem. Now The Beatles are four separate people, we don't have the impact we had when we were together...

RB: Now you're trying to swim against the stream of bourgeois society, which is much more difficult.

JL: Yes, they own all the newspapers and they control all distribution and promotion. When we came along there was only Decca, Philips and EMI who could really produce a record for you. You had to go through the whole bureaucracy to get into the recording studio. You were in such a humble position, you didn't have more than 12 hours to make a whole album, which is what we did in the early days.

Even now it's the same; if you're an unknown artist you're lucky to get an hour in a studio--it's a hierarchy and if you don't have hits, you don't get recorded again. And they control distribution. We tried to change that with Apple but in the end we were defeated. They still control everything. EMI killed our album Two Virgins because they didn't like it. With the last record they've censored the words of the songs printed on the record sleeve. Fucking ridiculous and hypocritical--they have to let me sing it but they don't dare let you read it. Insanity.

RB: Though you reach fewer people now, perhaps the effect can be more concentrated.

JL: Yes, I think that could be true. To begin with, working class people reacted against our openness about sex. They are frightened of nudity, they're repressed in that way as well as others. Perhaps they thought 'Paul is a good lad, he doesn't make trouble'.

Also when Yoko and I got married, we got terrible racialist letters--you know, warning me that she would slit my throat. Those mainly came from Army people living in Aldershot. Officers.

Now workers are more friendly to us, so perhaps it's changing. It seems to me that the students are now half-awake enough to try and wake up their brother workers. If you don't pass on your own awareness then it closes down again. That is why the basic need is for the students to get in with the workers and convince them that they are not talking gobbledegook. And of course it's difficult to know what the workers are really thinking because the capitalist press always only quotes mouthpieces like Vic Feather* anyway. [Ed. Note: Vic Feather 1908-76 was General Secretary of the TUC from 1969-73.]

So the only thing is to talk to them directly, especially the young workers. We've got to start with them because they know they're up against it. That's why I talk about school on the album. I'd like to incite people to break the framework, to be disobedient in school, to stick their tongues out, to keep insulting authority.

YO: We are very lucky really, because we can create our own reality, John and me, but we know the important thing is to communicate with other people.

JL: The more reality we face, the more we realise that unreality is the main programme of the day. The more real we become, the more abuse we take, so it does radicalise us in a way, like being put in a corner. But it would be better if there were more of us.

YO: We mustn't be traditional in the way we communicate with people--especially with the Establishment. We should surprise people by saying new things in an entirely new way. Communication of that sort can have a fantastic power so long as you don't do only what they expect you to do.

RB: Communication is vital for building a movement, but in the end it's powerless unless you also develop popular force.

YO: I get very sad when I think about Vietnam where there seems to be no choice but violence. This violence goes on for centuries perpetuating itself. In the present age when communication is so rapid, we should create a different tradition, traditions are created everyday. Five years now is like 100 years before. We are living in a society that has no history. There's no precedent for this kind of society so we can break the old patterns.

TA: No ruling class in the whole of history has given up power voluntarily and I don't see that changing.

YO: But violence isn't just a conceptual thing, you know. I saw a programme about this kid who had come back from Vietnam--he'd lost his body from the waist down. He was just a lump of meat, and he said, 'Well, I guess it was a good experience.'

JL: He didn't want to face the truth, he didn't want to think it had all been a waste...

YO: But think of the violence, it could happen to your kids ...

RB: But Yoko, people who struggle against oppression find themselves attacked by those who have a vested interest in nothing changing, those who want to protect their power and wealth. Look at the people in Bogside and Falls Road in Northern Ireland; they were mercilessly attacked by the special police because they began demonstrating for their rights. On one night in August 1969, seven people were shot and thousands driven from their homes. Didn't they have a right to defend themselves?

YO: That's why one should try to tackle these problems before a situation like that happens.

JL: Yes, but what do you do when it does happen, what do you do?

RB: Popular violence against their oppressors is always justified. It cannot be avoided.

YO: But in a way the new music showed things could be transformed by new channels of communication.

JL: Yes, but as I said, nothing really changed.

YO: Well, something changed and it was for the better. All I'm saying is that perhaps we can make a revolution without violence.

JL: But you can't take power without a struggle...

TA: That's the crucial thing.

JL: Because, when it comes to the nitty-gritty, they won't let the people have any power; they'll give all the rights to perform and to dance for them, but no real power...

YO: The thing is, even after the revolution, if people don't have any trust in themselves, they'll get new problems.

JL: After the revolution you have the problem of keeping things going, of sorting out all the different views. It's quite natural that revolutionaries should have different solutions, that they should split into different groups and then reform, that's the dialectic, isn't it--but at the same time they need to be united against the enemy, to solidify a new order. I don't know what the answer is; obviously Mao is aware of this problem and keeps the ball moving.

RB: The danger is that once a revolutionary state has been created, a new conservative bureaucracy tends to form around it. This danger tends to increase if the revolution is isolated by imperialism and there is material scarcity.

JL: Once the new power has taken over they have to establish a new status quo just to keep the factories and trains running.

RB: Yes, but a repressive bureaucracy doesn't necessarily run the factories or trains any better than the workers could under a system of revolutionary democracy.

JL: Yes, but we all have bourgeois instincts within us, we all get tired and feel the need to relax a bit. How do you keep everything going and keep up revolutionary fervour after you've achieved what you set out to achieve? Of course Mao has kept them up to it in China, but what happens after Mao goes? Also he uses a personality cult. Perhaps that's necessary; like I said, everybody seems to need a father figure.

But I've been reading Khrushchev Remembers. I know he's a bit of a lad himself--but he seemed to think that making a religion out of an individual was bad; that doesn't seem to be part of the basic Communist idea. Still people are people, that's the difficulty.

If we took over Britain, then we'd have the job of cleaning up the bourgeoisie and keeping people in a revolutionary state of mind.

RB: ...In Britain unless we can create a new popular power-and here that would basically mean workers' power--really controlled by, and answerable to, the masses, then we couldn't make the revolution in the first place. Only a really deep-rooted workers' power could destroy the bourgeois state.

YO: That's why it will be different when the younger generation takes over.

JL: I think it wouldn't take much to get the youth here really going. You'd have to give them free rein to attack the local councils or to destroy the school authorities, like the students who break up the repression in the universities. It's already happening, though people have got to get together more.

And the women are very important too, we can't have a revolution that doesn't involve and liberate women. It's so subtle the way you're taught male superiority.

It took me quite a long time to realise that my maleness was cutting off certain areas for Yoko. She's a red hot liberationistand was quick to show me where I was going wrong, even though it seemed to me that I was just acting naturally. That's why I'm always interested to know how people who claim to be radical treat women.

RB: There's always been at least as much male chauvinism on the left as anywhere else--though the rise of women's liberation is helping to sort that out.

JL: It's ridiculous. How can you talk about power to the people unless you realise the people is both sexes.

YO: You can't love someone unless you are in an equal position with them. A lot of women have to cling to men out of fear or insecurity, and that's not love--basically that's why women hate men...

JL: ... and vice versa ...

YO: So if you have a slave around the house how can you expect to make a revolution outside it? The problem for women is that if we try to be free, then we naturally become lonely, because so many women are willing to become slaves, and men usually prefer that. So you always have to take the chance: 'Am I going to lose my man?' It's very sad.

JL: Of course, Yoko was well into liberation before I met her. She'd had to fight her way through a man's world--the art world is completely dominated by men--so she was full of revolutionary zeal when we met. There was never any question about it: we had to have a 50-50 relationship or there was no relationship, I was quick to learn. She did an article about women in Nova more than two years back in which she said, 'Woman is the nigger of the world' .

RB: Of course we all live in an imperialist country that is exploiting the Third World, and even our culture is involved in this. There was a time when Beatle music was plugged on Voice of America....

JL: The Russians put it out that we were capitalist robots, which we were I suppose...

RB: They were pretty stupid not to see it was something different.

YO: Let' s face it, Beatles was 20th-century folksong in the framework of capitalism; they couldn't do anything different if they wanted to communicate within that framework.

RB: I was working in Cuba when Sgt Pepper was released and that's when they first started playing rock music on the radio.

JL: Well hope they see that rock and roll is not the same as Coca-Cola. As we get beyond the dream this should be easier: that's why I'm putting out more heavy statements now and trying to shake off the teeny-bopper image.

I want to get through to the right people, and I want to make what I have to say very simple and direct.

RB: Your latest album sounds very simple to begin with, but the lyrics, tempo and melody build up into a complexity one only gradually becomes aware of. Like the track 'My mummy's dead' echoes the nursery song 'Three blind mice' and it's about a childhood trauma.

JL: The tune does; it was that sort of feeling, almost like a Haiku poem. I recently got into Haiku in Japan and I just think it's fantastic. Obviously, when you get rid of a whole section of illusion in your mind you're left with great precision.

Yoko was showing me some of these Haiku in the original. The difference between them and Long fellow is immense. Instead of a long flowery poem the Haiku would say 'Yellow flower in white bowl on wooden table' which gives you the whole picture, really....

TA: How do you think we can destroy the capitalist system here in Britain, John?

JL: I think only by making the workers aware of the really unhappy position they are in, breaking the dream they are surrounded by. They think they are in a wonderful, free-speaking country. They've got cars and tellies and they don't want to think there's anything more to life. They are prepared to let the bosses run them, to see their children fucked up in school. They're dreaming someone else's dream, it's not even their own. They should realise that the blacks and the Irish are being harassed and repressed and that they will be next.

As soon as they start being aware of all that, we can really begin to do something. The workers can start to take over. Like Marx said: 'To each according to his need'. I think that would work well here. But we'd also have to infiltrate the army too, because they are well trained to kill us all.

We've got to start all this from where we ourselves are oppressed. I think it's false, shallow, to be giving to others when your own need is great. The idea is not to comfort people, not to make them feel better but to make them feel worse, to constantly put before them the degradations and humiliations they go through to get what they call a living wage.

Tariq Ali is author of the recently released Street Fighting Years (new edition) and, with David Barsamian, Speaking of Empires & Resistance. He can be reached at: tariq.ali3@btinternet.com

Robin Blackburn, a frequent contributor to CounterPunch, is the former editor of The New Left Review and author of the excellent history of the slave trade, The Making of New World Slavery and the new book from Verso Banking on Death: the Future of Pensions.

Media Response to the Growing Influence of the 9/11 Truth Movement

The Media Response to the Growing Influence of the 9/11 Truth Movement.
Part II: A Survey of Attitude Change in 2009-2010


http://www.globalresearch.ca/index.php?aid=17624&context=va