GallowayWatch: Is that a petard that I see before me?

Oh, probably not. I’ll say it right now — I’ll be somewhat gobsmacked if the court grants the requested injunction, although I wouldn’t be surprised if his ruling includes some rather pointed commentary about the way the government has handled the file.

But the following media accounts from today’s hearing suggests that even if the outcome is all but a foregone conclusion, it wasn’t quite the open and shut case that some were predicting.

From CanWest:

Stephen Gold, a federal lawyer, told the judge that, notwithstanding the government’s letter, no one has barred Galloway from Canada yet, and therefore, the court cannot over-rule a determination that has not yet been made. Only after a border guard refused Galloway entry could he seek remedy from the court, Gold said.

“The designated power resides in the (Canada Border Services Agency) officer, notwithstanding that there was a preliminary assessment done,” Gold said.

Martineau said the government’s case in keeping Galloway out is weakened because, “I am relying on pure hearsay evidence” that Galloway in fact brought aid to Gaza. “I have no firsthand affidavit evidence on the allegations that have been levelled,” he said.

“Has there been any evidence or ruling or determination of the nature . . . which make it a concluding finding of fact that the applicant has been engaged in terrorism?” he asked Gold. “All the evidence that I have, including yours, is mostly hearsay.”

“It cannot be said that a serious issue arises when the decision hasn’t been made,” Gold replied.

… and from Canadian Press:

The central issue for both Jackman and government lawyers in court Sunday was whether the letter constituted a decision on Galloway’s admissibility into Canada.

Department of Justice lawyer Stephen Gold said the letter was a matter of courtesy to Galloway, so that the five-time MP didn’t show up at a border crossing and run the risk of being detained.

“It was a courtesy letter, an information letter, although it may have been unusual,” said Gold, who at one point had to ask the judge to silence the sometimes raucous reactions from Galloway supporters in the overcrowded courtroom.

The letter did not constitute a final decision because Galloway had not yet gone to a point of entry and therefore not submitted to an examination by border officials, so there is nothing for the court to rule on, Gold said.

Immigration Minister Jason Kenney has said he did not ask the Canada Border Services Agency to rule on Galloway’s admissibility, but would not use his ministerial power to overturn their decision.

Jackman said the letter was in effect a final decision because border officers take into account any information from the minister, and the letter would therefore greatly bias their decision.

Gold said the decision to allow or disallow entry to a person at a point of entry lies with the border officers, and if the court decides to let Galloway in it would usurp the officer’s authority.

“May have been unusual”. May? Or was?

Regardless of how one feels about the not-actually-a decision that, we’re now asked to believe, was actually just a predictor of possible future events that was sent to Galloway as a “courtesy” — and, by as yet unknown parties, reportedly passed along to the British media as well — it’s probably worth asking just how unusual it was. The answer, ITQ suspects, could go a long way towards figuring out whether this was, as Kenney’s spokesperson originally put it, simply an “operational decision”  by CBSA.

Remember that poor Customs officer I was preemptively pitying last week? Well, I’m beginning to feel almost as sorry for the government lawyer who had to show up in court today to argue that actually, that “decision” — preliminary or otherwise — that was so rousingly touted last week Jason Kenney’s ministerial spokesman wasn’t actually a decision at all.

At this point, it looks like the government’s best hope for victory — or at least something other than a rather embarrassing defeat — is for the judge to overlook the claims made against Galloway — some by that same minister, even — and conclude that, actually, despite almost instantaneously popping up in the centre ring of the ensuing media circus, Kenney really didn’t have anything to do with the putative ban at all. Which is, in itself, rather embarrassing, although not as embarrassing as it will be if the government ends up one of those regimes willing to roll out that red carpet for Galloway after all.

However it turns out, though, it all seems like a rather unpreposing start to a future leadership bid – unless, of course, the potential future leadership candidate in question is operating on the theory that no publicity is bad publicity. As far as his immediate future is concerned, however, he’d better hope the current leader has the same opinion.

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