Introduction
As promised, it’s time for half II of my weblog half sequence on the Federal Court docket determination of Li v. Canada (Citizenship and Immigration) 2023 FC 1753.
I’ll write this weblog over a number of days. Right now represents Half 2A which covers Sections I-V of Chief Justice Crampton’s determination. Sections VI to VIII, which incorporates the problems and evaluation, will type Half 2B. To maintain this extra accessible to a extra basic viewers and given the broad implications of this determination, I’ll attempt my finest to maintain this as plain language as potential.
Right now, I set the scene a bit with a number of fascinating preliminary discussions and factual/authorized framing, within the subsequent I interact the core of the authorized evaluation with a evaluation of the problems, normal of evaluation, and evaluation sections of the choice (aforementioned Half 2B) and if you happen to keep till third half (Half 2C) I’ll spotlight among the unexpected and unsettled authorized penalties created by the choice. This determination is just a gamechanger for Canadian immigration regulation as we head to unsure occasions.
I wish to be clear on the outset that what I may even focus extra on the substantive nature of the safety regime and inadmissibility, relatively than to try to analyze the judgment from a purely administrative regulation lens of equity and reasonableness. As such, my issues too are going to be centered and centered on the uncertainties created by an inadmissibility regime that punishes people not essentially for what they’ve executed, however for what they might do – and my name for a better personalised and individualized evaluation wanted for such a discovering to be made, given the extreme penalties of being labelled as a person inadmissible for espionage.
As an extra prelude, I’ll say that what I’ve seen from the Chief Justice’s final two main determination, Li and his determination in Sidhu, involving the horrible Humboldt Broncos tragedy, exhibits a willingness to have interaction within the broader societal impacts of immigration’s administrative regulation penalties. I’m conscious that the triage system for choosing instances entails the Chief Justice selecting the project of sure instances among the many judges. It’s not stunning in my thoughts that he selected these two instances to tackle, rendered in shut succession, which have generated important outdoors consideration.
I think administrative regulation will obtain extra of this “public” consideration shifting ahead, and might be requested to interrogate bigger societal questions – involving points resembling racism, bias, technological developments, inadmissibility, Indigenous sovereignty, amongst different sizzling button points. Because the Federal Court docket turns into extra accessible and much more relied upon, of us can pay extra consideration. Choices which can be extra responsive, written for dropping events, and conscious of the potential penalties of both making an attempt to determine or keep away from establishing precedent/precedential worth might be very essential.
Now with out additional ado, let’s get into Li.
The Li Choice
I. Overview
Equally to Sidhu, the Chief Justice begins the choice off in paragraph 1 with fairly a daring assertion. After I learn it the primary time, I each knew this determination could be impactful but additionally had a intestine sense earlier than even studying the details that this most likely was a call favouring the Authorities.
[1] As hostile state actors more and more make use of non-traditional strategies to acquire delicate info in Canada or overseas, opposite to Canada’s pursuits, the Court docket’s appreciation of what constitutes
espionageshould evolve.
A pair issues to notice on this first paragraph.
First, the phrase hostile undoubtedly raises flags. One asks what international locations are at the moment hostile? What’s the timeframe thought-about for the hostility. One additionally thinks of about Canada’s pursuits. Just a few years in the past Canada’s pursuits have been apparently financial trade-driven with sure international locations. These pursuits might change relying on window. Within the criminality and equivalency context, Tran suggested us about retroactivity/retrospectivity and guaranteeing alignment of people realizing the results on the time they commit an motion. I believe the nationwide safety context arguably skews this context signficantly, however right here we’ve now seen people who’re punished (in a non-criminal sense) for associations they might have had previously and tying these to presumably forseeable future occasions that will happen sooner or later, with out even having dedicated any motion per se. We now have seen instances like Geng, from final 12 months, the place people who have been as soon as everlasting residents of Canada having cleared safety checks from years prior are being re-engaged by the programs because the investigative goalposts and geo-politics have shifted.
A reminder and as a framing level, this concept of “Canada’s pursuits” is from the laws itself in s.34(1)(a) of IRPA.
Safety
Second, it’s fairly telling that the Chief Justice utilized the wording “Court docket’s appreciation.” To me it represents, and fairly appropriately so, at the very least a said intention to not cross over to moving into the function of the legislature or to re-litigate the case. He needs to painting it is a case about judicial intepretation. We will assess later how nicely the choice displays this, in situ.
The next three paragraphs full the overview, together with summarizing the Applicant’s arguments – particularly that the Officer adopted a very broad definition of the phrase “espionage” and that proof was misapprehended and ignored, and stating his determination to reject the appliance (paras 4-5).
II. Background
Beginning at paragraph 6 we begin to be taught extra aobut Mr. Li. He’s a PRC citizen. He tried to use to the College of Waterloo for a PhD Program in Mechanical and Mechatronics Engineering. There have been delays in background checks (a standard difficulty I’ve just lately commented about). The Applicant was given a final extension to acquire a examine allow for a PhD undertaking (para 7). This final extension nature could have finally develop into a double-edged sword when it got here to the matter protecting right into a JR of the ultimate determination, but additionally within the parsing of a non-need to certify a query (as we’ll focus on within the subsequent weblog). We be taught by way of the judgment as nicely that the choice was began by the use of what was doubtless mandamus (para 8).
We be taught additionally that the Minister utilized for non-disclosure of sure info within the Licensed Tribunal Report (“CTR”) beneath s.87 of the IRPA. Allow us to pause right here to check out that provision.
Utility for non-disclosure — judicial evaluation and attraction
87 The Minister could, throughout a judicial evaluation, apply for the non-disclosure of knowledge or different proof. Part 83 — apart from the obligations to nominate a particular advocate and to supply a abstract — applies in respect of the continuing and in respect of any attraction of a call made within the continuing, with any mandatory modifications.
2001, c. 27, s. 87
2008, c. 3, s. 4
2015, c. 20, s. 60
For these concerned with one other s.87 redaction case the place the matter received a bit extra advanced with the applicant having truly succeeded in eradicating the redactions, try Kiss v. Canada (Citizenship and Immigration), 2023 FC 1147 (CanLII), <https://canlii.ca/t/jzwtx> at paras 21-34.
We be taught that Mr. Li learns from this redacted licensed tribunal report (“CTR”) that the Heart for Immigration Nationwide Safety Screening advisable that there are affordable grounds to imagine he’s inadmissible beneath s.34(1)(a) of IRPA.
One other pause. What’s the Heart for Immigration Nationwide Safety Screening? I cannot go into an excessive amount of element right here (an entire different weblog subject) however for some gentle background studying I’d counsel trying on the “Analysis of the Immigration Nationwide Safety Screening Program” posted by the CBSA.
I even have information that they’re using technological automation in these instances by way of the Safety Screening Automation (“SSA”) undertaking, per the unreleased draft Algorithmic Affect Evaluation (“AIA”).
What we doubtless assume occurred, and we all know of a number of different establishments which were tagged with danger indicators (utilizing instruments such because the Integrity Traits Evaluation Device).
Paragraphs 11 and 13 of the choice then present some fascinating context. We be taught that the Respondent represented that it might not depend on redacted info for the needs for the aim of responding to the appliance for judicial evaluation, but additionally that the Officer didn’t depend on any redacted info in making the Choice.
I’m nonetheless awaiting a replica of the file report from the Federal Court docket, however I do query, particularly getting the data we did in regards to the danger indicators in Kiss by way of this preliminary determination on the Minister’s s.87 movement the way it couldn’t have been relied on indirectly. Presumably, the redacted info was indicator info, exhibiting how the actual establishment was flagged that led to the investigation. How the varsity (Beihang, we be taught in paragraph 15) was flagged, what info was supplied to the flaggers, and the expertise utilized is one thing I forsee might be a degree of authorized battle shifting ahead.
The opposite level to take from this part is the mandamus software, it seems triggered the steps taken and on this case the Chief Justice truly ordered a call to be made inside three weeks (see para 12).
Whereas I’ve had mandamus claims set off adverse motion (a priority that’s typically, for my part, under-discussed as a risk), I’ve not but up to now had the Federal Court docket choose direct a call to judgement inside one in all my proceedings. What we be taught is that this led to a procedural equity interview 4 days earlier than the deadline, and it seems a refusal shortly thereafter.
I query whether or not there was a possibility (past an interview) for the Applicant to place in proof, resembling knowledgeable affidavits, to counter the Authorities’s place. Nevertheless, I’ll word – based mostly by myself expertise as counsel – that making an attempt to collect proof to counter 5 Eyes intelligence could be very tough, particularly given the perceived lack of crediiblity and the closed-circuit nature of knowledge within the impugned international locations. Having to place this collectively in a matter of days could be close to not possible from my perspective
III. The Choice
We be taught on this part extra of the precise details that led to this case, though this determination reads very very similar to peeling an onion, with the core coming later within the determination.
We be taught the Applicant was refused based mostly on his schooling, area of examine, and analysis in Canada – by way of open-source info reporting on the PRC’s reliance on non-traditional info assortment, together with from science and expertise college students, for the needs of advancing China’s navy and different pursuits (para 13).
We be taught within the subsequent paragraph that the mix of Mr. Li having had his Bachelor’s diploma in mechanical engineering from Beihang, his Masters diploma from the College of Colorado Boulder (which we be taught later in paragraph 69 he was unable to take care of in individual – being caught by Trump’s coverage). We be taught the realm of particular concern was the Applicant’s curiosity in microfluidics, a department of micro/nanoscale science and expertise.
Taking one other pause right here, the primary Google search that comes up with Beihang College and navy is definitely about an EU-backed undertaking referred to as MICRO-FLOTEC ,the place apparently the EU funded and endorsed the undertaking as a part of ‘de-risking’ China relations. Beihang is listed as one of many Sevens Sons of Nationwide Defence and was spoken to by the CSIS chief, David Vigneault, in a convention in October 2023. The total Seven Sons record could be discovered on this article. The choice later additionally appears to quote to a few of this documentation (see para 620.
IV. Preliminary Difficulty
I don’t wish to harp on this part an excessive amount of, solely to say that if I have been confronted with a call like this (and if it weren’t for the completely final deadline difficulty and the Chief Justice’s place), there might need been some profit in re-filing an AFLJR to take this outdoors of the mandamus context. It is rather tough to modify gears impulsively, and with the 2 week interval it appears like from decision-rendered date to listening to, one wonders if there was sufficient time to launch the form of assault mandatory. This determination offers off the impression that maybe the method caught some of us off-guard.
To me, it’s one other reminder that sooner isn’t at all times higher. We now have a well-established apply of asking for extension requests previous to submitting responses to procedural equity letters (“PFLs”) and sometimes will inform purchasers we have to take the total 30 days to organize an Applicant’s Report, which incorporates typically drafting a consumer affidavit that will embrace proof to spotlight procedural equity defects or present background for the Court docket (amongst different issues). One feels right here that maybe a few of these arguments could essentially have been precluded by selection of course of.
V. Related Laws
Allow us to end on this level. My non-lengthy weblog has already itself ballooned into 2000+ phrases at a hyperlink of an eye fixed. Earlier, I already set out the act and highlighted by issues with respect to defining “Canadian curiosity.” I’ve additionally written just lately in a paper out there on SSRN predicting this difficulty would proceed to be one persevering with to make waves. It took just some days of 2024 for this to return to fruition.
In my paper I prompt a better normal of proof could also be wanted given the style during which automation of danger flags and open-source knowledge may work to already present, prima facie, that low bar. I see the Li determination as already validating this concern. I additionally engaged in a dialogue in paper, which I’m grateful a Authorities counsel jogged my memory that my interpretation won’t be absolutely on level and needing additional evaluation, on the necessity for some extra readability on how s. 33 interacts with s.34(1)(a) of the IRPA.
I personally would have preferred a extra fulsome strategy taken on this determination, however word additionally that that is the place the legislative gaps are shining fairly clearly by way of. As we’ll focus on within the subsequent weblog, I discovered the makes an attempt of events to outline espionage through the listening to, considerably problematic. For a wonderful evaluation of this from the lens of Vavilov, Mark Mancini in his wonderful publication from January seventh delved into it very nicely.
To summarize, I believe we have to interrogate why the legislators indicated in s.34(1)(a)’s language, the time period ‘partaking in an act of espionage.’ The precedessor provision because 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:
| 19. (1) No individual shall be granted admission who’s a member of any of the next lessons:
[…] f) individuals who there are affordable grounds to imagine: (i) have engaged in acts of espionage or subversion towards democratic authorities, establishments or processes, as they’re understood in Canada, […] besides individuals who’ve happy the Minister that their admission wouldn’t be detrimental to the nationwide curiosity; |
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
[…] f) celles dont il y a des motifs raisonnables de croire qu’elles: (i) soit se sont livrées à des actes d’espionnage ou de subversion contre des establishments démocratiques, au sens où cette expression s’entend au Canada, […] Le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt nationwide; |
The phrase ‘partaking’ as an lively verb, to me spells out that actions should have some previous or current continuum) to suit this provision, however to me falls in need of stating will interact.
It’s also complicated to learn s.34(1)(a) in tandem with s.34(1)(f) IPRA which states:
-
(f) being a member of a company that there are affordable grounds to imagine engages, has engaged or will interact in acts referred to in paragraph (a), (b), (b.1) or (c). (emphasis added).
On this provision it’s clear, it captures previous, current, or future. Whereas s.34(1)(a) solely appears to present off the concept of an lively, ongoing course of.
I ponder why completely different tenses are utilized in every provision and whether or not both by legislative modification or another device, some readability is added to this query.
I additionally assume s.33 IRPA’s interpretation throws main wrenches into the combination.
Guidelines of interpretation
33 The details that represent inadmissibility beneath sections 34 to 37 embrace details arising from omissions and, until in any other case supplied, embrace details for which there are affordable grounds to imagine that they’ve occurred, are occurring or could happen.
I personally assume we have to separate the evaluation of the intense risk {that a} reality could happen with the details themselves establishing the inadmissibility based mostly on the availability.
We’ve gotten to some extent I believe the place we’ve basically learn in that the potential of a person to presumably commit espionage into s.34(1)(a), which I respectfully don’t assume matches with the wording of the availability itself.
I want to see first a set of details for which there are affordable grounds to imagine could happen, after which some tying of these details to the assembly of the legislative check.
However, I may be getting forward of myself. We are going to focus on extra about this partially 2B!
Ttfn.