Espionage and Immigrating to Canada

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, and that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly went on to note that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), the Federal Court had to answer the following certified 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?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.

….

What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”



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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