I believe I have the mystery solved for you. Both mysteries, actually.

The issue of a proper statutory authority to provide a preliminary determination about his admissibility does not arise here, because the High Commission letter to Galloway does not purport to contain anything more than it contained, which was “a preliminary assessment” that Galloway would be found inadmissible if he presented himself at a Canadian border, plus some polite advice on how to get around the fact that he’d likely be found inadmissible.

The thing to keep your eye on here is that the letter was a follow-up to a conversation between the consular officer and Galloway’s staff – a conversation which Galloway’s staff may have inititied. This is hinted at when Galloway’s lawyers say Galloway may well have been advising consular staff about his travel plans not because he is required to (no visas or anything like visas are necessary for travel between the UK and Canada), but as a “courtesy.”

Also, in the injunction application, the federal court judge notes that the follow-up letter to Galloway from the High Commmission was written “apparently as a matter of ‘courtesy’.”

I don’t believe a High Commission official would require the authority of a specific statute to be courteous, especially to an MP of a Commonweath country. And the letter does not purport to contain any specific legal import, and indeed the letter makes plain that it should not be taken that way.

Finally, you are quite right, this is all very “unusual.” I would suggest that this is simply because the facts and circumstances that led to these correspondences and the court application and so on are in and of themselves extremely unusual, probably wholly unprecedented in every respect.

It is not every day that a British MP declares an intention to visit Canada, but in order to come to Canada he would require exemption from a Canadian law that bars entry to fundraisers for proscribed terrorist organizations, so his staff engages a senior Canadian consular official in London in a conversation about his dilemma, and seeks advice, and gets it, in the form of a most polite and courteous letter.

Very unusual indeed.

But the Vienna Convention does not govern the standard, or the process, for adjudicating admission applications. That’s governed by the Immigration Act. Pre-application adjudications simply aren’t contemplated by the Immigration Act.

You say Galloway could have flown to Canada to appeal the preliminary determination. But my whole point is that he tried, and the appeal was rejected—on the ground that there had not yet been a proper determination of his admissibility. Certainly there’s no dispute that he could have flown to Canada, applied for admission, and then used the IRPA appeals process if/when he was denied entry. But that simply reinforces the conclusion that the ‘preliminary determination’ had no force of law as to his application for admission.

This is important for two (related) reasons. First, by issuing a ‘preliminary determination,’ the government managed to avoid meaningful judicial review—based in part on the Federal Court’s ruling that the preliminary determination created a legal controversy but did not constitute a reviewable admission determination. (Yes, Galloway could have created an avenue for review by actually applying for admission; but given the Federal Court’s ruling that the preliminary determination had some force of law, I think he was entitled to conclude, rightly or wrongly, that an actual application would be meaningless.)

Second, by avoiding judicial review, the government has precluded an important test of the scope of the government’s power under the IRPA. Like you, I believe this power to be broad. But its breadth is at least in part a legal question, and the courts do have a role to play in exploring that question. (Incidentally, there is no political question doctrine in Canada, as the Federal Court recently demonstrated, which is why citations to American cases are unhelpful in discussions of Canadian law.)

I know I’m exasperating some folks here. But my touchstone, in all things, is the need for intellectual clarity as a means of facilitating honest debate. At this point this is all yesterday’s news, and (pretty much) everyone (myself included) agrees that nobody acted improperly, whether or not Galloway ought to have been excluded as a matter of policy. The only reason I keep harping on it is because I’m still not satisfied as to the method by which Galloway was told to keep away. Again—and I’m not sure how many times I can say this—I don’t think the method used was illegal, I just think it was unusual. And ‘unusual’ matters, here, because it may prevent meaningful review. And that matters, to me at least, because while I think the government should have a broad power to exclude people, I’m not sure that power is unlimited.

The Vienna Convention PROVIDES the authority (as well as obligations) to sovereign powers to do the things they do in other countries. In fact, while there was a basis in customary international law for diplomatic missions, I think the opposite is more likely for consular services. There is NO inherent sovereign power to provide consular services; that comes from the VCCR.

Now, I don’t do Canadian cites, but I have Googled and confirmed Canada’s unreserved ratification of the treaty (this is even more than the U.S. has done). As such, the letter was a valid, legal document sent from the Canadian consul to Galloway, under authority of Canadian Federal Law. That is why there’s no controversy other than on this blog.

Finally, assuming there even is an ambiguous conflict between the VCCR and the IRPA, this would be dodged under the Political Question doctrine. The courts would have no business getting involved in an intra-cabinet fight. Goldwater v. Carter, 444 U.S. 996 (1979).

Recap: Kenney made a preliminary determination, sent the letter as provided by VCCR Art 5. I don’t think anyone’s disputed that Galloway could have still gotten on the plane and used the appeals process provided for by the IRPA.

The reason an American cite isn’t helpful here is that consular services are explicitly assigned to the executive in the American constitutional order. That being the case, Congress’s ability to restrict the exercise of that consular authority is necessarily limited. But in a system of Parliamentary supremacy, parliament would (it seems to me) have the ability to cabin executive exercise of the consular power, even if some part of the Constitution Acts assigned that power to the executive. The Immigration Act appears to be such a cabining, insofar as it delineates the manner in which the executive may exercise at least some specific parts of the consular function. If the Vienna Convention were to be read the way you suggest, it would effectively read out of existence the appropriate provisions of the Immigration Act.

Let me be clear, lest I overstate my case: I’m not denying that there is an executive consular power, and I’m not denying that sending letters to prospective entry applicants is a legitimate exercise of that consular power. My point is that the Immigration Act defines the manner in which rulings on admissibility are to be made, and nothing in the Act provides for, or even contemplates, a legally binding determination prior to an application for entry.

So again, while I don’t think anyone did anything wrong here, I’m still not satisfied that the letter sent to Mr. Galloway was a legally significant document. That’s important, of course, because if it was not a legally significant document, it raises the question why it was sent at all, and (secondarily) who directed that it be sent. On the other hand, if it was a legally significant document, then there’s no controversy.

I was going to suggest that we’re talking past each other insofar as I’m focusing on a narrow legal question while you’re addressing a broader legal, policy, or even political question; but the whole Galloway mess is interesting precisely because it exists at the margin of the legal and the political. If it turns out that the decision to send Galloway the ‘preliminary determination letter’ was a political one, then we can have a political debate about whether it was appropriate–and I would be among those who say “yes.” If it turns out the decision was a routine bureaucratic one, then we needn’t get to the political question, as it will not have been implicated. From my first post on this topic, my core claim has been simply that we don’t know one way or another. And citations to the Vienna Convention don’t change that.

VCCR Art 5(d): issuing … travel documents to … or appropriate documents to persons wishing to travel to the sending State.

and the catch all -

VCCR Art 5(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

Now it may be that the Minister of Immigration has plenary consular authority; indeed, I’m inclined to think that he does. But the Immigration Act delineates certain definite procedures for the determination of eligibility, and those procedures don’t include preliminary (that is, pre-application) determinations. So wherever the authority comes from, it doesn’t seem to come from the Immigration Act (or its enabling regulations).

Again, I’m playing a bit of a devil’s advocate here, since I don’t think Kenney or anyone else did anything wrong. I’d be perfectly satisfied to learn that consular officials routinely issue these sorts of preliminary determinations. But I haven’t been able to find any mention, yet, of any other instance in which such a letter issued.