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March 31, 2009


I've just read the Federal Court's decision in the Galloway case. It's as odd and interesting as the controversy itself. Here's why:

Media reports have suggested that Galloway was ruled inadmissible under Section 34(1) of the Immigration and Refugee Protection Act, which allows immigration officers to exclude a foreign national on security grounds if the foreign national, inter alia, engages in terrorism, poses a danger to national security, or is a member of a group that engages in terrorism or poses a threat to national security. While a foreign national who is declared inadmissible under Section 34(1) has no right of administrative appeal, see Section 64(1), he may still be admitted at the direction of the Minister if the Minister is satisfied "that [the foreign national's] presence in Canada would not be detrimental to the national interest." Section 34(2).

If the Minister does not intervene on behalf of the foreign national, the foreigner may seek judicial review of "any matter--a decision, determination or order made, a measure taken or a question raised--under [the] Act." Section 72. The foreign national can then (in certain circumstances) appeal the court's decision to the Federal Court. Section 74.

From the press accounts, you might think (as I did) that Galloway had sought admission to Canada, had been denied admission by a border officer under Section 34(1), and had failed to persuade the Minister to intervene under Section 34(2). Had that been the case, the next step would have been a judicial appeal under Section 72. But that's not what happened. Why? Justice Martineau explained:

[A]n official of the High Commission of Canada [in London], Immigration Section, by letter dated March 20, 2009, has advised [Galloway], apparently as a matter of 'courtesy,' that according to the 'preliminary assessment' of the [Border Security Agency], he is inadmissible to Canada on security grounds.
In other words, media reports to the contrary, Galloway has not been refused entry to Canada; instead, he's been told--by an official of the Department of Foreign Affairs, it seems--that he would be denied entry if he applied. This puts Galloway in an odd position: having not yet been denied entry, he doesn't have a right either to appeal the decision in the courts, or to seek a ministerial exception. So he (and his supporters) have done the next best thing: they've sued the government, seeking a preliminary injunction compelling the border officers to allow Galloway into the country when he does apply.

Now a preliminary injunction is an unusual device. An injunction allows a court to compel a party (backed by the threat of contempt sanctions, up to and including imprisonment) to do or refrain from doing a certain thing. A preliminary injunction is especially unusual because it is granted before the court has had a chance to rule on the merits. With it, a court essentially says: "We don't yet know who should win this dispute; but unless the defendant does X (or stops doing X), the plaintiff's victory will be hollow--so defendant must do X (or stop doing X) until we can work out whether plaintiff should win."

But because a preliminary injunction compels behavior before the court has addressed the merits of the dispute, a party seeking such an injunction has to meet a high standard: he has to show (1) that he has a real claim; (2) that there is a substantial likelihood he'll win on the merits of the claim; (3) that if the injunction isn't granted, he'll suffer a permanent injury; and (4) that if the injunction is granted, the defendant won't suffer a significant injury.

That's what Galloway was seeking here: a preliminary injunction ordering the border agency to admit Galloway unless and until he was actually found to be inadmissible. Justice Martineau declined to issue the requested injunction:
If I were to grant the mandatory interim relief sought today by the applicants, this would, by necessity, imply that the applicants are likely to succeed on the merits. I acknowledge that serious arguments are advanced against the impugned decision. However, a proper factual record and the benefit of full legal argument, (notably on the complex issue of whether or not the grounds of inadmissibility stated in the impugned decision are founded), are lacking at the present time. Therefore, I am not ready today to exempt Mr. Galloway from the application of the provisions in the Act and Regulations respecting entry and examination, or to order the respondents’ officials to allow the applicant Galloway to come to Canada between March 30 and April 2, 2009, without any final decision made on his admissibility.
In other words, the judge found that Galloway couldn't establish a substantial likelihood that he'd win on the merits, because there hadn't yet been any merits adjudication--only a letter from the High Commission suggesting that he wouldn't be allowed in. In essence, the judge said that the letter was without force unless and until Galloway was actually refused entry to Canada.

What makes the decision odd, to my mind, is that Justice Martineau seems to go back and forth regarding the power of the letter. On the one hand, he finds that
[w]hile [the] letter of March 20, 2009, is characterized as merely 'informational' by the [government], its content seems to suggest otherwise, as it announces to Mr. Galloway that some sort of 'preliminary assessment' has already taken place.
And because the letter appeared to announce some sort of 'preliminary assessment,' the judge decided that there was a real issue--what the American courts would call a "case or controversy"--that could be decided. In other words, the letter raised enough of an issue that the Federal Court could exercise its jurisdiction over Galloway's lawsuit seeking (in essence) to overturn the letter's impact.

On the other hand, Justice Martineau concluded--as quoted above--that "a proper factual record and the benefit of full legal argument . . . are lacking at the present time." But if the letter constitutes a legal decision of any force, it should provide a basis not only for jurisdiction but for the issuance of an injunction--that is, it should be reviewable on its merits.

Why the mixed-up ruling? Because Galloway is trying to use a preliminary injunction to do an end run around the normal immigration appeals process--but that's because someone (Kenney? DFAIT? PSEP?) seems to be trying to do an end run around the normal immigration adjudication process. Had Galloway been denied entry, he could have appealed, and the courts would have had both jurisdiction and a sufficiently concrete record on which to decide the merits of the case. The letter throws everything into disarray. (In fact, I wonder if a better course would have been for the Federal Court to decline to exercise its jurisdiction on the ground that the letter was without force of law. Galloway could have attempted entry, and if he was denied, he could have appealed through the normal channels, at which point the letter would have been admissible as evidence of... well, of something.)

One other interesting point, buried in the decision: as mentioned, an alien who has been denied entry to Canada can appeal to the Minister for an exception. Which Minister? Says Justice Martineau: "In this case, the Minister of Public Safety and Emergency Preparedness." That's Peter Van Loan to you and me. So how did Kenney get mixed up in all of this? And what prompted that immigration official in London to send Galloway the controversial letter? And are my two questions really the same question, with the same answer?

Posted by David Mader at 11:43 AM | (0) | Back to Main

March 28, 2009

On Subsidizing the Press

Apropos my previous post, I note that David Akin is highlighting the Conservative Government's decision to subsidize a politically conservative regional news magazine. Says Akin:

This, of course, was the day after CBC announced about 800 layoffs because of a budget shortfall it hoped Canada's government, on behalf of all taxpayers, might cover. For better or worse, CBC is not "Western Canada's Conservative Voice."
For the record, I oppose all bailouts as a matter of principle; to paraphrase that Swedish minister, the Canadian government should not be prepared to own car factories--or news rooms.

But given that bailouts are de rigeur at the moment, I don't think Akin means to suggest that the newsmagazine should be categorically ineligible for a bailout; rather, his point is that there's something incongruous, and politically troubling, about a Conservative government subsidizing a conservative newsmagazine while the CBC--widely perceived to be politically liberal--is shedding jobs. My question is: is this a fair point?

After all, the newsmagazine in question--and, presumably, most private media enterprises in Canada--confront this economic crisis from a very different starting place than does the national public broadcaster. In boom times, private enterprises receive (ideally) no public dollars, while in boom times, the public broadcaster receives hundreds and hundreds of millions of dollars.

When the boom times go bust, many private enterprises face the prospect of total economic failure. Government bailouts are justified on the theory that subsidized survival is better than failure. As noted, I generally dispute this premise--but it's the prevailing one. But does a downturn affect the public broadcaster the same way? Unlike a private enterprise, the public broadcaster never turns a profit--even in boom times. (If it did, it wouldn't need to be a public broadcaster; after all, the core justification for a public broadcaster is to ensure a medium for the dissemination of voices that would not otherwise be disseminated; and if those voices could be disseminated privately, the state would not need to fund and operate its own mechanism for dissemination.) So when boom times go bust, the public broadcaster doesn't face the prospect of failure--unless the state itself threatens to fail. But if government revenues fall during a downturn, it seems natural that expenditures on the public broadcaster would fall in rough proportion, with corrections for the relative importance of a public broadcaster versus other government expenditures during a recession or depression.

To cut to the point: if a government bailout places a subsidized private media enterprise in the position it would have been in had there been no downturn, then it would be fair for the CBC to demand continued funding at pre-downturn levels. But if bailouts are designed only to prevent the absolute failure of private enterprises, and those enterprises must consolidate operations notwithstanding their bailouts, then it becomes hard to make the case that the CBC should be entitled to continue to operate as though there were no economic downturn.

So which is the case?

Posted by David Mader at 12:43 AM | (0) | Back to Main

March 27, 2009


Warren Kinsella, Aug. 3, 2008:

THE NOTIONAL PEST, JUNK BOND MAKER: [I] will continue to remain amused that a newspaper that loses nearly a million bucks a month continues to give the rest of us lectures about fiscal restraint and probity and conservative principles.
Warren Kinsella, Feb. 20, 2009:
CANWEST TURMOIL CONTINUES: Advice to former journalist colleagues there: get the Hell out. The end is nigh.
Warren Kinsella, Feb. 21, 2009:
THE NOTIONAL PEST'S DEEP THINKERS RESPOND: Warren is wondering why the National Post just doesn't die, already.
Warren Kinsella, Feb. 25, 2009:
YOUR MORNING BITS AND PIECES: I’ve been told by a couple people that a full-page display ad can be purchased in the Post for $7,000. If that is true, for advertisers, it’s a bargain; for a daily newspaper – with all the costs associated with being a daily newspaper – that’s a death sentence.
Warren Kinsella, March 2, 2009:
CANWEST HITS 29 CENTS: I very much hope the families of those journalists and editors aren't forgotten in the rush to the exits.
Warren Kinsella, March 7, 2009:
CANWEST HIT 27 CENTS: ...before the market mercifully closed, yesterday.
Warren Kinsella, March 19, 2009:
AN OPEN MEMO TO DAVID: [I] have periodically chronicled the fact that CanWest has been reduced to junk-bond status by mismanagement, thereby putting the livelihoods of hundreds of talented Canadian journalists at risk[.] . . . [T]he CBC (which wins news awards all the time) is getting run into the boards by the Harper Conservatives – while the company that owns the National Post (which never wins news awards) is likely to get a bailout. . . . The NNA nominations came out today. Not one for the National Post. NOT ONE. So, by all means, let's rewrite tax laws for them, and give them big, fat AIG-style handouts!
Warren Kinsella, March 27, 2009:
MEDIA CUTS AND CUTS AND CUTS...: You know, in the future, some bloggers will think it's swell that people are getting political commentary from them, but this is one web log writer who won't.
Rather, he's apparently one web log writer who only celebrates the failure of Canadian businesses whose politics are contrary to his own. Charming.

Posted by David Mader at 03:24 PM | (0) | Back to Main

Dear Ottawa

Wake up:

MOSCOW (AP) - Russia is planning to create a dedicated military force to help protect its interests in the disputed Arctic region.

The presidential Security Council has released a document outlining goverment policy for the Arctic that includes creating a special group of military forces. The report was released this week and reported by Russian media on Friday.

Posted by David Mader at 10:53 AM | (0) | Back to Main

March 17, 2009

Who Are These Interlopers?

Paul Wells and Adam Radwanski have the temerity to be eminently reasonable in their reactions to the Gary Goodyear thing. Wells:

Gary Goodyear can believe what he wants, as long as there are systems in place that ensure an Andrew Hendry can get a Steacie Fellowship. And apparently there are. If the junior minister for science (whose influence on science policy in a Harper government, incidentally, should be reckoned as comparable to the intergovernmental affairs minister’s influence on federalism, or the health minister’s influence on anything measurable) wants to pray to the Tooth Fairy or Salma Hayek every night, then godspeed.

And as long as science can rise in this country, then I would really rather stay out of the business of interrogating ministers to see whether they’re planning to stay in line with somebody’s idea of acceptable thought.

And Radwanski:

[W]e've got half the Liberal blogs in the country making Flinstones jokes about a guy who tried - extremely clumsily, but still - to explain his efforts to balance his scientific views with his faith. . . . [I]f the leader of your opposition party is already vulnerable to accusations of elitism, you'll want to be careful about inadvertently offending voters who may themselves struggle with the conflict between science and religion."
I spend a lot of time on this blog knocking the commentariat, so it's only right that I give praise where praise is due. Indeed, Wells and Radwanski are fairer to Goodyear than I was initially inclined to be.

(That being said, I'd be interested to know the basis for Wells's aside regarding "Goodyear and Harper['s] claptrap." I take it Wells is referring to Goodyear's assumed creationist beliefs as "claptrap." Assuming Goodyear (a) is in fact a creationist and (b) seeks to have creationism taught in schools, is there any evidence that Harper shares those two characteristics?)

Posted by David Mader at 03:11 PM | (0) | Back to Main

March 12, 2009

Anyone Else Find This As Creepy As I Do?

Creepy, dude. I don't care if you're about to nominate her for a Nobel-fargin'-Prize. Just c-r-e-e-p-y.

Look, I have no dog in this pissing match. But the participants - all the participants - would do well to pause and try to consider how they look to those not intimately involved in Ottawa baseball. And - from my perch here in New York - this just looks creepy.

Posted by David Mader at 11:53 PM | (0) | Back to Main