Espionage and Immigrating to Canada

On July 19, 2010, the Federal Court in Peer v. Canada (Citizenship and Immigration), 2010 FC 752 certified the following question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

On March 9, 2011, the Federal Court of Appeal answered.  The answer is yes.


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?

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