Is Roncarelli v. Duplessis a 1959 Precedent for George Galloway?

Over the past few weeks, the George Galloway debacle has received extensive coverage in the news. In this post I would like to draw an analogy between Mr. Galloway’s plight and the Supreme Court’s landmark decision on rule of law, Roncarelli v. Duplessis, [1959] S.C.R. 121. This comparison was raised by our colleague Mr. Omar Ha-Redeye reporting on the Galloway hearing for

Barbara Jackman, counsel for Mr. Galloway, noted that in her 30 years of immigration practice she had never seen a case that so closely conforms to the Supreme Court decision in Roncarelli.

The Galloway Story
Galloway was scheduled to deliver a series of public speeches in several cities across Canada after he completed a US tour. On March 20, 2009, shortly before he was scheduled to speak in Canada, Mr. Galloway received a letter from Robert J. Orr, Immigration Programme Manager at the High Commission of Canada in London. The letter states Mr. Galloway had been found inadmissible to Canada under s. 34(1)(c) and s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA). Unusually, Mr. Galloway received this letter before he applied to come to Canada. The leader read:

Among other possible grounds of inadmissibility under section 34 of IRPA, Hamas is a listed terrorist organization in Canada. There are reasonable grounds to believe you have provided financial support for Hamas. Specifically we have information that indicates you organized a convoy worth over one million British pounds in aid and vehicles, personally donated vehicles and financing to Hams Prime Minister Ismail Haniya. Your material support for this organization makes you inadmissible to Canada pursuant to paragraph 34(1)(c) and paragraph 34(1)(f) of IRPA.

In her March 29, 2009 letter to the Canadian High Commission in London Galloway’s counsel Ms. Barbara Jackman expressed her shock the Canadian Government would regard Galloway as a terrorist. Ms. Jackman petitioned the High Commission to admit Galloway noting he is an elected British Member of or Parliament from the Respect Party and not a member of Hamas. Ms. Jackman admitted in her letter that Galloway was involved in the Viva Palestina aid convey but contended “[i]t is clear that this convoy was what it purported to be: a symbolic gesture by a number of individuals and organizations to support the Palestinians isolated and blockaded in Gaza.” Galloway sought an injuction from the Federal Court allowing him entry to Canada for four days pending judicial review.

On March 30, 2009 Justice Luc Martineau ruled the Canada Border Service Agency did not err in its decision to bar Galloway entry to Canada:

The admission of a foreign national to this country is a privilege determined by statute, regulation or otherwise, and not a matter of right. In this respect Parliament has expressly given the [Canada Border Service Agency] officers legal authority to exclusively determine whether a foreign national who seeks to enter this country is admissible.

The implication of the chain of events culminating in Martineau J.’s decision was that Mr. Galloway delivered his four-city speaking tour via video link from the US.

Roncarelli v Duplessis?
In the 1959 SCC decision Roncarelli v Duplessis Maurice Duplessis, the premier of Quebec, was found to have gone beyond his authority in revoking a liquor license to a restaurant run by Frank Roncarelli, a Jehovah’s Witness. At the time there were tensions between the Roman Catholic community and Jehovah’s Witness community in Montreal centered around the selling of Jehovah’s Witness magazines without proper permits. Roncarelli provided bail for close to 400 Jehova’s Witness members who were arrested for selling magazines.

Premier Duplessis contended that by using the proceeds from a liquor license Roncarelli was illegitimately using a privilege granted to him by the province. Justice Rand cited the unwritten “rule of law” in finding no public official including Premier Duplessis was above the law. Roncarelli then, stands for the principle that there is no such thing as unfettered discretion, even amongst the top echelon of the executive. Furthermore Rand J. held that discretion must be exercised in accordance with the purposes of governing statute and rules.

Is Galloway on all fours with Roncarelli?
There a a few significant similarities between Galloway and Roncarelli. First both cases involve an unfavourable decision against an individual with views contrary to the government of the day. Second public statements by both Premier Duplessis in Roncarelli and Immigration Minister Jason Kenney suggest a bias against the individual denied a benefit. Third, both cases involve an exercise of discretion of a public officials within a statutory framework.

An important distinction is that Galloway’s case is occurring nearly 50 years after Roncarelli. This is significant because review of discretionary decisions in administrative law has been modified by subsequent decisions, notable examples of which are Baker v. Canada, [1999] 2 S.C.R. 817 and Suresh v. Canada, 2002 SCC 1. Furthermore, Mr. Galloway’s case is inseparable from the backdrop of the “war on terrorism” and some commentators have noted Canada’s vaguely worded anti-terrorism laws (see for example s. 34(1)(c) of IRPA) are able to catch a broad sweep of the general public.

Whatever the case, the following question is inescapable: if Galloway is in fact a threat to our national security why was he allowed to speak freely in the US?

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