Mader Blog

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?