Part 2A – An Annotated Review of Li and the Unforeseen and Unsettled Legal Consequences of Expanding the Definition of Espionage

Introduction

As promised, it is time for part II of my blog part series on the Federal Court decision of Li v. Canada (Citizenship and Immigration) 2023 FC 1753.

I will write this blog over several days. Today represents Part 2A which covers Sections I-V of Chief Justice Crampton’s decision.  Sections VI to VIII, which includes the issues and analysis, will form Part 2B. To keep this more accessible to a more general audience and given the broad implications of this decision, I will try my best to keep this as plain language as possible.

Today, I set the scene a bit with a lot of interesting preliminary discussions and factual/legal framing, in the next I engage the core of the legal analysis with a review of the issues, standard of review, and analysis sections of the decision (aforementioned Part 2B) and if you stay until third part (Part 2C) I will highlight some of the unforeseen and unsettled legal consequences created by the decision. This decision is simply a gamechanger for Canadian immigration law as we head to uncertain times.

I want to be clear at the outset that what I will also focus more on the substantive nature of the security regime and inadmissibility, rather than to try and analyze the judgment from a purely administrative law lens of fairness and reasonableness. As such, my concerns too are going to be centered and focused on the uncertainties created by an inadmissibility regime that punishes individuals not necessarily for what they have done, but for what they may do – and my call for a greater personalized and individualized assessment needed for such a finding to be made, given the severe consequences of being labelled as an individual inadmissible for espionage.

As a further prelude, I will say that what I have noticed from the Chief Justice’s last two major decision, Li and his decision in Sidhu, involving the horrible Humboldt Broncos tragedy, shows a willingness to engage in the broader societal impacts of immigration’s administrative law consequences. I am aware that the triage system for selecting cases involves the Chief Justice choosing the assignment of certain cases among the judges. It is not surprising in my mind that he chose these two cases to take on, rendered in close succession, that have generated significant outside attention.

I suspect administrative law will receive more of this “public” attention moving forward, and will be asked to interrogate larger societal questions – involving issues such as racism, bias, technological developments, inadmissibility, Indigenous sovereignty, among other hot button issues. As the Federal Court becomes more accessible and even more relied upon, folks will pay more attention. Decisions that are more responsive, written for losing parties, and aware of the potential consequences of either trying to establish or avoid establishing precedent/precedential value will be very crucial.

Now without further ado, let’s get into Li.

The Li Decision

I. Overview

Similarly to Sidhu, the Chief Justice starts the decision off in paragraph 1 with quite a bold statement. After I read it the first time, I both knew this decision would be impactful but also had a gut sense before even reading the facts that this probably was a decision favouring the Government.

[1] As hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad, contrary to Canada’s interests, the Court’s appreciation of what constitutes espionage must evolve.

A couple things to note in this first paragraph.

First, the word hostile definitely raises flags. One asks what countries are currently hostile? What is the timeframe considered for the hostility. One also thinks of about Canada’s interests. A few years ago Canada’s interests were apparently economic trade-driven with certain countries. Those interests could change depending on window. In the criminality and equivalency context, Tran advised us about retroactivity/retrospectivity and ensuring alignment of individuals knowing the consequences at the time they commit an action. I think the national security context arguably skews this context signficantly, but here we have now seen individuals who are punished (in a non-criminal sense) for associations they may have had in the past and tying these to possibly forseeable future events that may occur in the future, without even having committed any action per se. We have seen cases like Geng, from last year, where individuals who were once permanent residents of Canada having cleared security checks from years prior are being re-engaged by the systems as the investigative goalposts and geo-politics have shifted.

A reminder and as a framing point, this idea of “Canada’s interests” is from the legislation itself in s.34(1)(a) of IRPA.

Security

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

  • (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

Second, it is quite telling that the Chief Justice utilized the wording “Court’s appreciation.” To me it represents, and quite correctly so, at least a stated intention to not cross over to stepping into the role of the legislature or to re-litigate the case. He wants to portray this is a case about judicial intepretation. We can assess later how well the decision reflects this, in situ.

The following three paragraphs complete the overview, including summarizing the Applicant’s arguments – namely that the Officer adopted an overly broad definition of the word “espionage” and that evidence was misapprehended and ignored, and stating his decision to reject the application (paras 4-5).

II. Background

Starting at paragraph 6 we start to learn more aobut Mr. Li. He is a PRC citizen. He attempted to apply to the University of Waterloo for a PhD Program in Mechanical and Mechatronics Engineering. There were delays in background checks (a common issue I have recently commented about). The Applicant was given a last extension to obtain a study permit for a PhD project (para 7). This last extension nature may have eventually become a double-edged sword when it came to the matter covering into a JR of the final decision, but also in the parsing of a non-need to certify a question (as we will discuss in the next blog). We learn through the judgment as well that the decision was started by way of what was likely mandamus (para 8).

We learn also that the Minister applied for non-disclosure of certain information in the Certified Tribunal Record (“CTR”) under s.87 of the IRPA. Let us pause here to take a look at that provision.

Application for non-disclosure — judicial review and appeal

87 The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.

For those interested in another s.87 redaction case where the matter got a bit more complex with the applicant having actually succeeded in removing the redactions, check out Kiss v. Canada (Citizenship and Immigration), 2023 FC 1147 (CanLII), <https://canlii.ca/t/jzwtx> at paras 21-34.

We learn that Mr. Li learns from this redacted certified tribunal record (“CTR”) that the Center for Immigration National Security Screening recommended that there are reasonable grounds to believe he is inadmissible under s.34(1)(a) of IRPA.

Another pause. What is the Center for Immigration National Security Screening? I will not go into too much detail here (a whole other blog topic) but for some light background reading I would suggest looking at the “Evaluation of the Immigration National Security Screening Program” posted by the CBSA.

I also have knowledge that they are utilizing technological automation in these cases through the Security Screening Automation (“SSA”) project, per the unreleased draft Algorithmic Impact Assessment (“AIA”).

What we likely think happened, and we know of several other institutions that have been tagged with risk indicators (using tools such as the Integrity Trends Analysis Tool).

Paragraphs 11 and 13 of the decision then provide some interesting context. We learn that the Respondent represented that it would not rely on redacted information for the purposes for the purpose of responding to the application for judicial review, but also that the Officer did not rely on any redacted information in making the Decision.

I am still awaiting a copy of the file record from the Federal Court, but I do question, especially getting the information we did about the risk indicators in Kiss through this preliminary decision on the Minister’s s.87 motion how it could not have been relied on in some way. Presumably, the redacted information was indicator information, showing how the particular institution was flagged that led to the investigation. How the school (Beihang, we learn in paragraph 15) was flagged, what information was provided to the flaggers, and the technology utilized is something I forsee will be a point of legal conflict moving forward.

The other point to take from this section is the mandamus application, it appears triggered the steps taken and in this case the Chief Justice actually ordered a decision to be made within three weeks (see para 12).

While I have had mandamus claims trigger negative action (a concern that is often, in my opinion, under-discussed as a possibility), I have not yet to date had the Federal Court judge direct a decision to judgement within one of my proceedings. What we learn is that this led to a procedural fairness interview four days before the deadline, and it appears a refusal shortly thereafter.

I question whether there was an opportunity (beyond an interview) for the Applicant to put in evidence, such as expert affidavits, to counter the Government’s position. However, I will note – based on my own experience as counsel – that attempting to gather evidence to counter Five Eyes intelligence is very difficult, especially given the perceived lack of crediiblity and the closed-circuit nature of information in the impugned countries. Having to put this together in a matter of days would be near impossible from my perspective

III. The Decision

We learn in this section more of the specific facts that led to this case, although this decision reads very much like peeling an onion, with the core coming later in the decision.

We learn the Applicant was refused based on his education, field of study, and research in Canada – through open-source information reporting on the PRC’s reliance on non-traditional information collection, including from science and technology students, for the purposes of advancing China’s military and other interests (para 13).

We learn in the next paragraph that the combination of Mr. Li having had his Bachelor’s degree in mechanical engineering from Beihang, his Masters degree from the University of Colorado Boulder (which we learn later in paragraph 69 he was unable to attend to in person – being caught by Trump’s policy). We learn the area of specific concern was the Applicant’s interest in microfluidics, a branch of micro/nanoscale science and technology.

Taking another pause here, the first Google search that comes up with Beihang University and military is actually about an EU-backed project called MICRO-FLOTEC ,where apparently the EU funded and endorsed the project as part of ‘de-risking’ China relations.  Beihang is listed as one of the Sevens Sons of National Defence and was spoken to by the CSIS chief, David Vigneault, in a conference in October 2023. The full Seven Sons list can be found in this article. The decision later also seems to cite to some of this documentation (see para 620.

IV. Preliminary Issue

I do not want to harp on this section too much, only to say that if I were faced with a decision like this (and if it were not for the absolutely last deadline issue and the Chief Justice’s position), there might have been some benefit in re-filing an AFLJR to take this outside of the mandamus context. It is very difficult to switch gears all of a sudden, and with the two week period it looks like from decision-rendered date to hearing, one wonders if there was enough time to launch the kind of attack necessary. This decision gives off the impression that perhaps the process caught some folks off-guard.

To me, it is another reminder that faster is not always better. We have a well-established practice of asking for extension requests prior to submitting responses to procedural fairness letters (“PFLs”) and often will tell clients we need to take the full 30 days to prepare an Applicant’s Record, which includes often drafting a client affidavit that may include evidence to highlight procedural fairness defects or provide background for the Court (among other things). One feels here that perhaps some of these arguments may necessarily have been precluded by choice of process.

V. Relevant Legislation

Let us finish on this point. My non-lengthy blog has already itself ballooned into 2000+ words at a link of an eye. Earlier, I already set out the act and highlighted by concerns with respect to defining “Canadian interest.” I have also written recently in a paper available on SSRN predicting this issue would continue to be one continuing to make waves. It took just a few days of 2024 for this to come to fruition.

In my paper I suggested a higher standard of proof may be needed given the manner in which automation of risk flags and open-source data might work to already provide, prima facie, that low bar. I see the Li decision as already validating this concern. I also engaged in a discussion in paper, which I am grateful a Government counsel reminded me that my interpretation might not be fully on point and needing further analysis, on the need for some more clarity on how s. 33 interacts with s.34(1)(a) of the  IRPA. 

I personally would have liked a more fulsome approach taken in this decision, but note also that this is where the legislative gaps are shining quite clearly through. As we will discuss in the next blog, I found the attempts of parties to define espionage during the hearing, somewhat problematic. For an excellent analysis of this from the lens of Vavilov, Mark Mancini in his excellent newsletter from January 7th delved into it very well.

To summarize, I think we need to interrogate why the legislators indicated in s.34(1)(a)’s language, the term ‘engaging in an act of espionage.’ The precedessor provision as the Chief Justice analyzes in paragraph 43,  of subparagraph 19(1)(f)(i) of the Immigration Act, RSC 1985, c I-2, states as follows:

The word ‘engaging’ as an active verb, to me spells out that actions have to have some past or present continuum) to fit this provision, but to me falls short of stating will engage.

It is also confusing to read s.34(1)(a) in tandem with s.34(1)(f) IPRA which states:

• (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), (b.1) or (c). (emphasis added).

In this provision it is clear, it captures past, present, or future. Whereas s.34(1)(a) only seems to give off the idea of an active, ongoing process.

I wonder why different tenses are used in each provision and whether either by legislative amendment or some other tool, some clarity is added to this question.

I also think s.33 IRPA’s interpretation throws major wrenches into the mix.

Rules of interpretation

33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

I personally think we need to separate the analysis of the serious possibility that a fact may occur with the facts themselves establishing the inadmissibility based on the provision.

We’ve gotten to a point I think where we have essentially read in that the potential of an individual to possibly commit espionage into s.34(1)(a), which I respectfully do not think matches with the wording of the provision itself.

I would like to see first a set of facts for which there are reasonable grounds to believe may occur, and then some tying of those facts to the meeting of the legislative test.

But, I might be getting ahead of myself. We will discuss more about this in part 2B!

Ttfn.