Espionage, Secret Evidence, and Immigrating to Canada

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737, is a gold-mine of information regarding IRPA 34 inadmissibility.  The decision involves claims of cold war espionage, secret evidence, and abuse of authority.

The applicant was a citizen of the Ukraine. He applied for permanent resident status in July, 2000. During his interview, he explained that he had completed compulsory military service in the Soviet Army from 1985 to 1987. He said that he was responsible for telecommunications and intercepts, and denied any affiliation to the Russian or Ukrainian intelligence services. According to a CSIS brief, he was also responsible for listening to English language communications coming from US bases in West Germany, debriefing various frequencies and telegraph codes, and receiving training in NATO telegraphic code.

On April 14, 2008, the Immigration Officer informed the applicant that he might be inadmissible under sections 34(1)(a) and (f) of the Immigration and Refugee Protection Act. These sections provide that:

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

On June 13, 2008, the applicant made extensive submissions denying that he was encompassed by this section. He also requested that, in the alternative, he be granted ministerial relief pursuant to s. 34(2) of IRPA, which states that:

Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

On July 15, 2008, the Immigration Officer said that if the applicant wished to make a s. 34(2) application, then he must do so within 60 days of receipt of her letter, and that if the applicant failed to do so, then it would be concluded that no submission was forthcoming.

On August 19, 2008, the applicant made more submissions on the issue of the s. 34(1) breach. He also stated that he was reserving the right to make a s. 34(2) submission, and that it would be premature to make those submissions until the 34(1) issue was resolved.

On October 2, 2008, the Officer found the applicant inadmissible under s. 34(1) of the Act. In her decision, she stated that:

Specifically, during your military service with the Soviet Army from 1985 to 1987, you were a member of the 82nd Special Communications Brigade, 11th Company, 1st Platoon.  You were trained in radio intelligence that consisted of propaganda, physical training, interception, grammar, spelling, audition, and special NATO telegraphic codes.  Your duties during your assignment in Torgau, East Germany entailed listening to English language communications coming from US bases in West Germany and identifying and debriefing various frequencies and telegraph codes.  I have reached this conclusion because you made these admissions during your background investigation interviews.

On November 12, 2008, the Officer indicated that she would not consider a s. 34(2) submission because the timeline that she had required has passed.

The applicant filed for Judicial Review. An issue arose concerning information contained in the CSIS brief that was censored.  The applicant sought disclosure or to have a special advocate appointed to review the information pursuant to s. 87.1 of IRPA, which provides that:

If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.

So given all this, what did Justice Montigny rule?

On the Issue of Disclosure or Appointing a Special Advocate

Justice Montigny held that it was not appropriate to disclose the concealed information in this case. He noted that while the good administration of justice and public confidence in the judicial system generally dictate openness and access, there are exceptional circumstances where national security considerations trump those basic principles. He found that this was one of this cases given that disclosure of the confidential information would be injurious to national security and endanger the safety of some persons.

Regarding the issue disclosure, Justice Montigny noted that the appointment of a special advocate is not mandatory, and that a special advocate should only be appointed where the fairness and national justice requires it to protect the interests of an applicant. This was not the case here because the applicant had no right to enter Canada, and as such the duty of fairness owed to visa applicants is minimal. Section 7 of the Charter did not apply because the applicant applied for a visa outside of Canada. As such, the application did not affect his life, liberty, or security of the person since he did not face being removed to a country where he could suffer mistreatment, nor was he in detention. As well, he found that the portions of the certified record that were blocked out were not substantial and did not prevent the applicant from availing himmself of all means against the negative decision being challenged.

On Whether The Applicant was a Spy

Justice Montigny found the determination of inadmissibility pursuant to s. 34(1)(a) and (f) of IRPA to be problematic. First, he noted that it was not entirely clear what the applicant did. This was furthered by the Officer’s failure to discuss the discrepancy between the CSIS brief and the applicant’s version of what he did, the fact that there was no documentary evidence supporting what he did, and because the Officer selected parts of the applicant’s version and not others, without providing an explanation for why she found certain parts of his testimony more credible than others.

Furthermore, Justice Montigny found that the Officer erred in finding that the applicant had engaged in espionage without offering a definition for the term. Jurisprudence seems to indicate that espionage would essentially mean to “spy”, and it was not shown whether what the applicant did constituted spying.

On Arguments Made by the Respondent

In a passage that will likely be cited by legal counsel in the future, Justice Montigny commented on the efforts of the Minister’s counsel to explain some of the deficiencies through suggestions of what she was likely thinking. The Court ruled that ex post facto justification cannot cure the deficiencies of the reasons provided by the decision maker.

On Whether a S. 34(2) Application Could be Made

The Federal Court was extremely critical of the timeline imposed on the applicant if he wanted to file a s. 34(2).  He found that an Officer cannot unilaterally decide not to forward an applicant’s request to the Minister, as the IRPA clearly states that it is a decision to be made by the Minister, not a visa officer.

OP 18/ENF2 provides that the role of an officer outside Canada during an inadmissibility analysis is to:

  1. Provide verification of the information provided by the applicant;
  2. Obtain any other information that made be required;
  3. Provide comments on the submission to the applicant’
  4. Provide to the applicant any documents not in the applicant’s possession that will be considered by the Minister of PSEP and provide the applicant an opportunity to respond.
  5. Forward the submission to the appropriate section of the National Security Division of CBSA, NHQ, with a recommendation.

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