Part 2B – An Annotated Review of Li and the Unforeseen and Unsettled Legal Consequences of Expanding the Definition of Espionage
Welcome back folks!
I had a bit of a busy several weeks since my last post – as I am taking an accountable computer systems course, learning about encryption, block chain, TOR and all the cool things I wish I knew earlier!
I have not forgotten about the Li decision. I will admit I have lost sleep over it, been confused over it, and had numerous client consultations over it. The recent development of the Named Research Organizations list, although in a much different context, have started to shed light on what institutions may be targetted and flagged. I presume many of these institutions (if not all) are risk indicators in the Integrity Trends Analysis Tool and may trigger the automation of the Security Screening Automation process.
Also, I should be on a podcast with Steven Meurrens and Deanna Okun-Nachoff talking about this decision shortly. I think it will be a fascinating conversation. Will share link!
For the purposes of this blog, however, let us jump back into the Federal Court’s decision in Li v. Canada (MCI) 2023 FC 1753 to get to the heart of the Chief Justice’s analysis.
Let’s start now with VI. Issues at paragraph 24. I do not yet have the benefit of the parties submissions to determination how the issues were framed in factums. Based on what the Chief Justice writes later in his VIII. Analysis at para 29, it seems like this question was framed by the Applicant.
Nevertheless, I think there might be some tension in the framing of the issues and then the setting out of the standard of review in VII. Standard of Review where the Chief Justice re-iterates that the Court’s limited role within the judicial context, the introduction the case itself, and the eventual function of attempting to carve out a definition for espionage.
I will note that this is not rare, however. We have seen it in many contexts, and indeed the Chief Justice has also engaged in a similar discussion of the role of a comparative approach in the s.25 H&C test in Huang v. Canada (MCI), 2019 FC 265.
Finally, for the purposes of this blog to keep it shorter I will focus only on paragraphs 29 to 50 and leave for the next blog the “Application to the Decision” section.
Moving to the Analysis in Section VIII.
The first issue is whether the Officer erred in applying an overly broad term ‘espionage’ under s.34(1)(a) IRPA (see para 29). The Chief Justice notes that there is no definition of the term “espionage” in IRPA, or it appears, in any Act of Parliament. This is crucial because I think it highlights a clear legislative/policy gap that IRCC will need to look to fill.
There are some legislation that engage in for example a definition of economic espionage in the Security of Information Act, but the context of the act and who it has been used to prosecute does make it very different and difficult to translate to the immigration setting. I see this omission as an emerging gap for legislators to step in.
There are two key paragraphs in Li involving the definition of espionage, that frame the decision. The Chief Justice writes at paragraph 31 and 32:
[31] However, Mr. Li submits that the term “espionage” has the following five characteristics:
(1) There is an aspect of secrecy, clandestineness, surreptitiousness, or covertness in the way the information in question is gathered.
(2) The information is collected without the other parties’ knowledge and consent.
(3) The collector, by the time they are actively engaging in information gathering, does so under the control and direction of a foreign entity.
(4) The information is regarded as secretive, as opposed to simply private.
(5) The act is against Canada or contrary to Canada’s interests.
[32] I disagree. In my view, the jurisprudence supports a broader definition of “espionage.” At its most basic level, the concept of “espionage” contemplates the secret, clandestine, surreptitious or covert gathering or reporting of information to a foreign state or other foreign entity or person. When such activity is against Canada or is contrary to Canada’s interests, it falls within the purview of paragraph 34(1)(a).
There are several complications created by the definition generating process: (1) what constitues reporting? (2) what constitutes information? (3) what constitutes a foreign entity? (think of foreign-controlled companies operating in Canada for example) (4) who is a foreign person? (is it entirely immigration-status related or more than that?) (5) We also return back again to what are Canadian interests and are the relevant times of when actions occured and interests considered material?
Also, by way of the way it is gramatically structured does the reporting of information to a foreign entity/person have any modifier. It appears in the Chief Justice’s decision it can be public information, but surely the gathering or reporting of any public information to a foreign person would be an overbroad definition.
The Chief Justice summarizes at paragraph 47:
[47] In summary, and having regard to the foregoing, I consider that the term
“espionage”contemplates (i) the secret, clandestine, surreptitious or covert gathering of information on behalf of a foreign government or other foreign entity or person, or (ii) the reporting or communication of information, whether surreptitiously or publicly gathered, to such a recipient. I further consider it reasonable to include within the definition of“espionage”the unauthorized reporting or communication of such information to a third party acting as an intermediary for the transmission of the information to such a recipient. When such activity is against Canada or is contrary to Canada’s interests, it falls within the purview of paragraph 34(1)(a). This is so even if the information in question was gathered in public.
This is interesting as it then adds a modification of unauthorized, but is it a necessary condition. How does one seek authorization? Does it have to be in writing or could it be oral? If knowledge and consent is provided, is this information not authorized for disclosure?
It seems like the words on behalf of have significant play but does it apply to only foreign governments or as well entities or persons.
I think we will also eventually need to get some clarity as to what ‘such a recipient‘ means.
For example, if a permanent resident or international student goes home from a day of work to discuss a public university research project/grant with their foreign national spouse they are working on would that constitute espionage if the information transmitted potentially contrary to Canada’s interests? For example, if the spouse asks how much money the project is worth financially and how much they will get paid, could that constitute espionage under a specific fact patter?
What if the information being collected or gathered is on behalf of themselves but at risk of disclosure in the future (either intentionally or not) to a foreign entity or person that may benefit that entity or indiviudal. What if it is written in a resume or spoken of in a job interview with a potential foreign employer?
If a journalist is a foreign investigative correspondent paid by a foreign entity is looking into the Canadian Government’s international policy through publicly accessible ATIP information would that constitute espionage?
The only thing linking it all would be the act being Contrary to Canada’s interest and requiring some sort of intent to actually gather the information.
As the Chief Justice writes at paragraph 48.
It will suffice if that information, even if publicly available, was communicated or reported upon to a foreign state or other foreign entity or person, without any authorization.
This suggests that a lack of authorization is a key part of an espionage test, and that the other modifiers of secrecy, clandestineness, surreptitiousness, or covertness are not needed, that neither is control or direction of a foreign entity or person, nor the lack of knowledge or consent (para 48).
I will summize that I am not certain what constitutes espionage after reading this section of the case. For one, I think commas, subsections, and a list are needed for want of misinterpretation or incorrect reading.
I also wonder – had I been a permanent resident or foreign national (and not a Canadian citizen), whether my own advice to my foreign national clients, based on the information I have gathered from my investigative research of Canadian immigration practice and policy (publicly available information), might constitute espionage. I received releases from ATIP which were releasable to me, but certainly not giving me a broad authorization to share online and have it read potentially by foreign entities or persons. I use this information in the interests of access to justice and to critique the system I work in and hopefully transform it for public good. It is, however, arguably contrary to Canada’s interests to have knowledge of things such as Chinook and triage made public?
What about my colleagues who practice in immigration who are permanent residents? Are they committing espionage by advising their clients utilizing information they have gathered through ATIP and information requests?
By writing blogs and sharing them on online platforms am I communicating and reporting? What about posting a video on TikTok or WeChat or another foreign state-owned entity – is this considered communicating and reporting? What if one of my clients were a foreign entity or individual in a country deemed hostile by Canada?
Perhaps I am confused and missing the boat but I feel like I cannot competently advise a client right now – for example – on whether or not to try and seek entry into Canada at this time in the event any past, current, or future action they may take could be deemed espionage.
Did it matter that Li came to study? What if he came to work at McDonalds? What if he came to see a loved one in Canada for two weeks? Is he still at risk to gather information and pass it on to a foreign entity just by his very presence in Canada?
While I will save the heart of my analysis on the reasonable grounds to believe standard to the next blog part where the Chief Justice looks at the application of the law to the facts […]
