Mr. Galloway received a preliminary notice of determination by the Canadian Border Services Agency that he might be inadmissible to Canada, I gather based in large part on his public admission that he provided funds to Hamas, a banned illegal terrorist organization, which would seem–on the face of it–to constitute grounds for inadmissibility under Section 34(1)f of the Immigration Refugee Protection Act.

Okay. Here’s my question: what is a preliminary notice of determination by the Canadian Border Security Agency? The Canada Immigration and Refugee Protection Act doesn’t mention preliminary notices. Neither do the regulations promulgated under the act. In fact the phrase “preliminary notice of determination” doesn’t appear on the Immigration Canada website.

So when Minister Kenney says, matter-of-factly, that Galloway “received a preliminary notice of determination by the Canadian Border Services Agency that he might be inadmissible to Canada,” I have to ask: what the heck is that? Neither the statutes nor the regulations provide for a pre-application determination of admissibility. Does the ministry regularly evaluate potential applicants? If so, under what circumstances? Terry Glavin has suggested that Galloway’s parliamentary staff contacted the Canadian High Commission regarding his speaking tour, and that the “preliminary notice” was written in response. That may be so; but is there any other documented instance of a potential applicant receiving a “preliminary notice of determination” in response to such an inquiry?

I should mention again that I don’t think Kenney did anything wrong here; indeed, I think that’s true even if the “preliminary notice” was sent on his instruction. But if that turns out to have been the case, it raises interesting and important questions about a minister’s ability to keep aliens out of Canada. As I argued last month, use of the “preliminary notice” effectively forecloses judicial review of that interesting and important question. In light of the judiciary’s over-reaching in other areas, I can understand why that may be politically desirable. But at the very least it’s worth noting.

Finally, notwithstanding my curiosity, at the end of the day I agree with Kenney on the fundamental point: Galloway was never refused entry to Canada, because he never sought it. Had he sought it, he could have pursued an appeal in the courts. I think the Federal Court erred in allowing his preliminary injunction suit to proceed; but the fact that Galloway didn’t actually seek entry demonstrates, to me, that for Galloway the goal was never access. It was publicity.