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,
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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.
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