As the old cliché goes: “one person’s terrorist is another person’s freedom fighter.” This implies that certain values are ultimately subjective, which is a lesson that is often overlooked or even ignored in Canadian politics when it comes to deeply partisan issues. Case in point: the recent arrival of former British Member of Parliament, George Galloway.
Much commentary has been made regarding Galloway’s recent arrival in Canada. The bottom line, however, is that all of the commotion is really much ado about nothing — Galloway’s anti-war message was nothing new or thought-provoking. The real issue however lies in the partisan nature of how this story is reported, and more importantly, how Canadians’ views of the freedom of expression are inherently coloured by their own bias, preconceptions and political leanings. Separating one from the other — the true legal issues involved with freedom of expression from the partisan bickering that overrides that very legal issue — is what I would like to address.
On Oct. 2, 2010, Galloway landed in Toronto to give a speech. No big deal, unless you take into account what nearly happened the last time Galloway tried to travel to Canada. About a year and a half ago, Galloway was scheduled to give a speech in Toronto to an anti-war group, until it became clear that he would not be allowed entry into this country on “security grounds.” The Canadian Border Services Agency cited section 34 of the Immigration and Refugee Protection Act as justification to prevent Galloway coming to Canada. Galloway vowed to sue for his right to speak by seeking judicial review of that decision.
Critics decried the decision to bar Galloway from Canada as a violation of the freedom of expression and association. Galloway, after all, was not found guilty of a crime by any court of law. When made aware that Citizenship and Immigration Canada would not allow Galloway into our country on quasi-legal grounds, critics were even more enraged when the minister responsible, Jason Kenney, refused to exercise his ministerial discretion to override that decision. Censorship at its worst, the critics alleged.
Many, however, applauded the decision to ban Galloway from speaking in Canada. Galloway’s opponents argued that he was a security threat, as his support for Hamas (a defined “terrorist organization” under Canadian law) and his views condemning the NATO-led war in Afghanistan were strong reasons why he should not have been allowed into Canada.
In a written decision on Galloway’s case, Federal Court Justice Richard Mosley last week dismissed Galloway’s claim, but only on an irksome legal technicality. Since Galloway did not attempt to enter Canada, there was technically no government action for the court to review, which is ultimately why the Crown won the case. Nonetheless, Justice Mosley proceeded to write a very lengthy decision about his opinions on how the government’s interpretation of section 34 of the Immigration and Refugee Protection Act, as well as the application of section 83.18 of the Criminal Code, were “flawed” and “overreaching.” In Mosley’s words: “It is clear that the efforts to keep Mr. Galloway out of the country had more to do with antipathy to his political views than with any real concern that he had engaged in terrorism or was a member of a terrorist organization.”
Following the court’s decision, Galloway arrived happily in Canada to give his speech, and is likely only days away from suing the federal government for breach of privacy and defamation. Just to make sure people knew he was here, Galloway even challenged Minister Kenney “to go five rounds” with him in a public debate. Without much fanfare, Galloway has now come and gone.
Thus we are back at square one: a battle over the freedom of speech has been waged, but what has been gained? Are Galloway’s views really that hateful and is he truly a threat to national security? Or are Galloway’s opinions so important that free speech activists will defend Galloway to the ends of the earth?
What this saga demonstrates (besides poor legal analysis by both the Crown and Galloway’s lawyers) is how ideology affects both politics and legal analysis. Those who wanted Galloway to speak argued so based on the justification of freedom of expression. Those who wanted Galloway kept out argued so based on issues of national security. What both arguments had in common was the alleged support of the law.
But the simple fact of the matter that commentators ignore is that had Galloway been allowed to talk without any fuss in the first place, no one would have cared what he had to say! But by denying him a pulpit, Galloway’s rights became the issue, and not the content of his message, as it should have properly been.
This proves once again that when it comes to analyzing the Galloway saga under the legal lens of free speech, whether he is a terrorist supporter or an advocate of freedom fighters depends more on the spectator’s political leanings than on any other factor. Like beauty, being labeled a terrorist or a freedom fighter is simply in the eye of the beholder.
Michael Silicz is a graduate of the University of Manitoba.
University of Toronto’s Dr. Wayne Sumner and Winnipeg lawyers David Matas and Sarah Lugtig will speak on the freedom of expression and its limits at the upcoming Robson Hall Distinguished Visitors lecture series, at noon on Thursday, Oct. 21, 2010 at the moot court room at Robson Hall. All are invited to attend this free event.
