Toronto Coalition to Stop the War et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al., (2010) 374 F.T.R. 177 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: September 27, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 374 F.T.R. 177 (FC);2010 FC 957

Toronto Coalition to Stop the War v. Can. (2010), 374 F.T.R. 177 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. SE.037

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) v. The Minister of Public Safety and Emergency Preparedness and The Minister of Citizenship and Immigration (respondents) and The Canadian Civil Liberties Association (intervenor)

(IMM-1474-09; 2010 FC 957)

Indexed As: Toronto Coalition to Stop the War et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Federal Court

Mosley, J.

September 27, 2010.

Summary:

Galloway, a controversial political figure from the United Kingdom, was invited to speak in Canada by the applicants. At the request of a member of the political staff of the Minister of Citizenship and Immigration, a preliminary assessment of admissibility was carried out. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness determined that he was inadmissible. Canada Border Services (CBSA) was alerted in case he presented himself at a Port of Entry. Galloway was advised in a letter from the Immigration Program Manager in London that he might be found inadmissible if he tried to enter Canada. Galloway did not try to enter Canada. His remarks were heard by those interested by way of telephone and video conference. The applicants, including Galloway, applied for judicial review.

The Federal Court dismissed the application, holding that no reviewable decision had been made, either by the Ministers or by way of the letter, that could be the subject of judicial review. The court also dealt with a standing issue and, in case it was wrong on the reviewable decision issue, considered whether the decision that Galloway was admissible was reasonable. The court certified related questions for consideration on appeal.

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - [See Courts - Topic 4021.1 ].

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Courts - Topic 4021.1 ].

Aliens - Topic 1701

Exclusion and expulsion - Immigration - Exclusion - General - [See Civil Rights - Topic 1854.1 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - [See Aliens - Topic 1756 ].

Aliens - Topic 1756

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons engaging in terrorism - Galloway, a controversial political figure from the United Kingdom, was invited to speak in Canada by the applicants - A preliminary assessment by immigration authorities determined that Galloway was inadmissible on the grounds of national security (i.e., s. 34(1)(c) engaging in terrorism or s. 34(1)(f) membership in a terrorist organization) - Galloway did not attempt to enter Canada - Galloway and the other applicants (groups and individuals involved in bringing him to Canada to speak) applied for judicial review - The Federal Court dismissed the application because there was no reviewable decision - The court opined, however, that if it was wrong in its conclusion, it would have found that the preliminary assessment was unreasonable - The assessment overreached in its interpretation of the facts, erred in its application of the law and fundamentally failed to take into account the purposes for which Galloway provided aid to the people of Gaza through the Hamas government - See paragraphs 95 to 130.

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - [See Courts - Topic 4021.1 ].

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See Civil Rights - Topic 8380 ].

Civil Rights - Topic 1854.1

Freedom of speech or expression - Limitations on - Membership in terrorist organizations and other risks to national security - Section 34 of the Immigration and Refugee Protection Act listed activities which rendered a permanent resident or a foreign national inadmissible to Canada on security grounds - Interested parties claimed that their Charter rights were breached by s. 34 - The Federal Court of Canada held that it was not necessary to determine the constitutional issue in this case - However, the court, per Mosley, J., opined that "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) [freedom of speech or expression] or (d) [freedom of association] Charter analysis so long as the discretion it affords is exercised in accordance with the statute ..." - See paragraphs 58 to 60.

Civil Rights - Topic 2159.1

Freedom of association - Limitations on - Associations with terrorist organizations and other associations that risk national security - [See Civil Rights - Topic 1854.1 ].

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - Galloway, a controversial political figure from the United Kingdom was invited to speak in Canada by the applicants - A preliminary assessment by immigration authorities determined that Galloway was inadmissible - Galloway did not attempt to enter Canada - However, his speaking engagements were made available in Canada by telephone and video conference facilities from New York - Galloway and the other applicants (groups and individuals involved in bringing him to Canada to speak) alleged breaches of their s. 2 Charter rights - An issue arose respecting standing for the applicants (other than Galloway) - The Federal Court opined that while the other applicants were not directly affected by the impugned and putative decision, they should be granted public interest standing - The court agreed that activity for which the applicants sought s. 2(b) protection was a form of expression, however, there was no infringement of their right to receive the content of Galloway's message - See paragraphs 72 to 94.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Civil Rights - Topic 8380 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of Federal boards, commissions or tribunals - Galloway, a controversial political figure from the United Kingdom, was invited to speak in Canada by the applicants - The federal Ministers responsible for immigration/border matters determined that he was inadmissible - Canada Border Services (CBSA) was alerted in case he presented himself at a Port of Entry - Galloway was advised in a letter from the Immigration Program Manager in London that he might be found inadmissible if he tried to enter Canada - Galloway did not try to enter Canada - The applicants, including Galloway, applied for judicial review - The applicants argued that a reviewable decision was taken by the ministers to bar Galloway entry to Canada and the decision was then confirmed by the Program Manager's letter - The applicants claimed that it was not relevant that the decision was not administratively enforced at a Port of Entry - The Federal Court dismissed the application holding that there was no reviewable decision - While the letter put Galloway on notice, it did not affect his rights or carry legal consequences, and was thus not amenable to review - Although the CBSA had been put on notice of Galloway's possible arrival, no final determination of rights could be made until Galloway presented himself to a CBSA officer at a port of entry - The court noted that advance indications of future ministerial position were not subject to judicial review - See paragraphs 1 to 62 and 131 to 149.

Cases Noticed:

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81, refd to. [para. 59].

R. v. Hafey et al., [1985] 1 S.C.R. 106; 57 N.R. 321; 67 N.S.R.(2d) 181; 155 A.P.R. 181, refd to. [para. 59].

Skoke-Graham v. R. - see R. v. Hafey et al.

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 60].

Haj Khalil et al. v. Canada (2009), 389 N.R. 48; 2009 FCA 66, refd to. [para. 60].

Mohammad v. Canada (Minister of Citizenship and Immigration) (2010), 361 F.T.R. 184; 2010 FC 51, refd to. [para. 66].

Almrei, Re (2009), 355 F.T.R. 222; 2009 FC 1263, refd to. [para. 66].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 66].

Ugbazghi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 493; [2009] 1 F.C.R. 454; 2008 FC 694, refd to. [para. 68].

Saleh v. Canada (Minister of Citizenship and Immigration) (2010), 363 F.T.R. 204; 2010 FC 303, refd to. [para. 68].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 69].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 70].

Carson v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 137; 55 A.C.W.S.(3d) 389 (T.D.), refd to. [para. 74].

Wu et al. v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 309; 4 Imm. L.R.(3d) 145 (T.D.), refd to. [para. 74].

Morgentaler v. New Brunswick (2009), 344 N.B.R.(2d) 39; 884 A.P.R. 39; 2009 NBCA 26, refd to. [para. 76].

Henry Global Immigration Services v. Canada (Minister of Citizenship and Immigration) (1998), 158 F.T.R. 110; 84 A.C.W.S.(3d) 756 (T.D.), refd to. [para. 77].

Friends of the Island Inc. v. Canada (Minister of Public Works) et al., [1993] 2 F.C. 229; 61 F.T.R. 4 (T.D.), refd to. [para. 77].

Kwicksutaineuk-Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) et al. (2003), 227 F.T.R. 96; 120 A.C.W.S.(3d) 197 (T.D.), affd. (2003), 313 N.R. 394; 2003 FCA 484, leave to appeal refused (2004), 331 N.R. 190 (S.C.C.), refd to. [para. 79].

Royal Canadian Mounted Police Public Complaints Commission v. Canada (Attorney General), [2006] 1 F.C.R. 53; 336 N.R. 101; 2005 FCA 213, refd to. [para. 79].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 16 Imm. L.R.(2d) 161, refd to. [para. 80].

Slahi v. Canada (Minister of Justice) et al. (2009), 340 F.T.R. 236; 2009 FC 160, affd. (2009), 394 N.R. 352; 2009 FCA 259, leave to appeal dismissed (2010), 405 N.R. 390 (S.C.C.), refd to. [para. 81].

R. v. Secretary of State for the Home Department; Ex parte Farrakhan, [2002] EWCA Civ. 606; [2002] 4 All E.R. 289, refd to. [para. 82].

G.W. v. Immigration Officer, [2009] UKAIT 00050, refd to. [para. 82].

Kleindienst et al. v. Mandel et al. (1972), 408 U.S. 753, refd to. [para. 83].

De Allende et al. v. Schultz (1985), 605 F. Supp. 1220 (U.S. Dist.), refd to. [para. 83].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 83].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 85].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 88].

Ahmad, Re, [2009] O.J. No. 6151 (Sup. Ct.), refd to. [para. 91].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 91].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 92].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 92].

Soe v. Canada (Minister of Citizenship and Immigration) et al. (2007), 313 F.T.R. 265; 2007 FC 671, refd to. [para. 102].

R. v. Khawaja (M.M.), [2006] O.T.C. 1004; 214 C.C.C.(3d) 399 (Sup. Ct.), refd to. [para. 103].

Holder v. Humanitarian Law Project (2010), 130 S. Ct. 2705, refd to. [para. 105].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 607; 116 A.C.W.S.(3d) 570; 2002 FCT 867, refd to. [para. 113].

Suresh v. Canada (Minister of Citizenship and Immigration) et al. (1997), 140 F.T.R. 88; 40 Imm. L.R.(2d) 247 (T.D.), revd. in part (1998), 229 N.R. 240; 47 Imm. L.R.(2d) 1 (F.C.A.), refd to. [para. 116].

Canada (Minister of Citizenship and Immigration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101; 44 Imm. L.R.(2d) 309 (T.D.), refd to. [para. 118].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178; 2003 FCA 39, refd to. [para. 120].

Canada (Minister of Citizenship and Immigration) v. Hajialkihani, [1999] 1 F.C. 181; 156 F.T.R. 248 (T.D.), refd to. [para. 121].

Sepid v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 672; 2008 FC 907, refd to. [para. 125].

Qureshi v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 4; 2009 FC 7, refd to. [para. 125].

Farkhondehfall v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 509; 2010 FC 471, refd to. [para. 126].

Mahabir v. Minister of Employment and Immigration, [1992] 1 F.C. 133; 137 N.R. 377 (F.C.A.), refd to. [para. 132].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 1993 CanLII 164, refd to. [para. 132].

Larny Holdings Ltd. v. Canada (Minister of Health), [2003] 1 F.C. 541; 222 F.T.R. 29 (T.D.), refd to. [para. 133].

Markevich v. Minister of National Revenue, [1999] 3 F.C. 28; 163 F.T.R. 209 (T.D.), revd. (2001), 270 N.R. 275; 2001 FCA 144, refd to. [para. 133].

Nunavut Tunngavik Inc. v. Canada (Attorney General) (2004), 245 F.T.R. 42; 2004 FC 85, refd to. [para. 133].

Demirtas v. Minister of Employment and Immigration et al., [1993] 1 F.C. 602; 149 N.R. 375 (F.C.A.), refd to. [para. 137].

Nkumbi v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1998), 160 F.T.R. 194; 50 Imm. L.R.(2d) 155 (T.D.), refd to. [para. 137].

Carvajal v. Minister of Employment and Immigration (1994), 82 F.T.R. 241; 48 A.C.W.S.(3d) 787 (T.D.), refd to. [para. 137].

Bouchard v. Canada (Ministre de la Défense nationale) et al. (1999), 255 N.R. 183; 187 D.L.R.(4th) 314 (F.C.A.), refd to. [para. 139].

Democracy Watch v. Conflict of Interest and Ethics Commissioner et al. (2009), 387 N.R. 365; 2009 FCA 15, refd to. [para. 141].

Pieters v. Canada (Attorney General) (2007), 313 F.T.R. 231; 2007 FC 556, refd to. [para. 141].

Rothmans, Benson & Hedges Inc. v. Minister of National Revenue, [1998] 2 C.T.C. 176; 148 F.T.R. 3 (T.D.), refd to. [para. 144].

Mohammad v. Minister of Employment and Immigration, [1989] 2 F.C. 363; 91 N.R. 121 (F.C.A.), refd to. [para. 145].

Khadr v. Prime Minister (Can.) et al. (2010), 369 F.T.R. 276; 2010 FC 715, refd to. [para. 146].

Kunkel v. Canada (Minister of Citizenship and Immigration) (2009), 398 N.R. 271; 2009 FCA 347, refd to. [para. 151].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.1.1, sect. 18.1(3), sect. 18.1(4) [para. 63].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33 [para. 65]; sect. 34 [para. 64].

Counsel:

Barbara Jackman and Hadayt Nazami, for the applicants;

Marie-Louise Wcislo, Kristina Dragaitis, Hillary Stephenson and Neal Samson, for the respondents;

Sonia Bjorkquist and Jason MacLean, for the intervenor, the Canadian Civil Liberties Association.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondents;

Osler, Hoskin & Harcourt LLP, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This application was heard at Toronto, Ontario, on April 26-28, 2010, by Mosley, J., of the Federal Court, who delivered the following reasons for judgment on September 27, 2010.