Welcome again people!
I had a little bit of a busy a number of weeks since my final put up – as I’m taking an accountable pc techniques course, studying about encryption, block chain, TOR and all of the cool issues I want I knew earlier!
I’ve not forgotten concerning the Li resolution. I’ll admit I’ve misplaced sleep over it, been confused over it, and had quite a few consumer consultations over it. The latest improvement of the Named Analysis Organizations checklist, though in a a lot completely different context, have began to make clear what establishments could also be targetted and flagged. I presume many of those establishments (if not all) are danger indicators within the Integrity Tendencies Evaluation Instrument and will set off the automation of the Safety Screening Automation course of.
Additionally, I needs to be on a podcast with Steven Meurrens and Deanna Okun-Nachoff speaking about this resolution shortly. I feel it will likely be an enchanting dialog. Will share hyperlink!
For the needs of this weblog, nevertheless, allow us to bounce again into the Federal Court docket’s resolution in Li v. Canada (MCI) 2023 FC 1753 to get to the center of the Chief Justice’s evaluation.
Let’s begin now with VI. Points at paragraph 24. I don’t but take pleasure in the events submissions to willpower how the problems have been framed in factums. Based mostly on what the Chief Justice writes later in his VIII. Evaluation at para 29, it looks like this query was framed by the Applicant.
However, I feel there is perhaps some pressure within the framing of the problems after which the setting out of the usual of overview in VII. Normal of Overview the place the Chief Justice re-iterates that the Court docket’s restricted function throughout the judicial context, the introduction the case itself, and the eventual operate of making an attempt to carve out a definition for espionage.
I’ll be aware that this isn’t uncommon, nevertheless. We have now seen it in lots of contexts, and certainly the Chief Justice has additionally engaged in an identical dialogue of the function of a comparative method within the s.25 H&C take a look at in Huang v. Canada (MCI), 2019 FC 265.
Lastly, for the needs of this weblog to maintain it shorter I’ll focus solely on paragraphs 29 to 50 and go away for the subsequent weblog the “Software to the Choice” part.
Transferring to the Evaluation in Part VIII.
The primary challenge is whether or not the Officer erred in making use of an excessively broad time period ‘espionage’ below s.34(1)(a) IRPA (see para 29). The Chief Justice notes that there isn’t a definition of the time period “espionage” in IRPA, or it seems, in any Act of Parliament. That is essential as a result of I feel it highlights a transparent legislative/coverage hole that IRCC might want to look to fill.
There are some laws that have interaction in for instance a definition of financial espionage within the Safety of Info Act, however the context of the act and who it has been used to prosecute does make it very completely different and troublesome to translate to the immigration setting. I see this omission as an rising hole for legislators to step in.
There are two key paragraphs in Li involving the definition of espionage, that body the choice. The Chief Justice writes at paragraph 31 and 32:
[31] Nonetheless, Mr. Li submits that the time period “espionage” has the next 5 traits:
(1) There’s a facet of secrecy, clandestineness, surreptitiousness, or covertness in the best way the knowledge in query is gathered.
(2) The data is collected with out the opposite events’ data and consent.
(3) The collector, by the point they’re actively partaking in data gathering, does so below the management and path of a international entity.
(4) The data is considered secretive, versus merely non-public.
(5) The act is in opposition to Canada or opposite to Canada’s pursuits.
[32] I disagree. For my part, the jurisprudence helps a broader definition of “espionage.” At its most simple degree, the idea of “espionage” contemplates the key, clandestine, surreptitious or covert gathering or reporting of data to a international state or different international entity or particular person. When such exercise is in opposition to Canada or is opposite to Canada’s pursuits, it falls throughout the purview of paragraph 34(1)(a).
There are a number of problems created by the definition producing course of: (1) what constitues reporting? (2) what constitutes data? (3) what constitutes a international entity? (consider foreign-controlled corporations working in Canada for instance) (4) who’s a international particular person? (is it totally immigration-status associated or greater than that?) (5) We additionally return again once more to what are Canadian pursuits and are the related instances of when actions occured and pursuits thought of materials?
Additionally, by the use of the best way it’s gramatically structured does the reporting of data to a international entity/particular person have any modifier. It seems within the Chief Justice’s resolution it may be public data, however absolutely the gathering or reporting of any public data to a international particular person can be an overbroad definition.
The Chief Justice summarizes at paragraph 47:
[47] In abstract, and having regard to the foregoing, I think about that the time period
“espionage”contemplates (i) the key, clandestine, surreptitious or covert gathering of data on behalf of a international authorities or different international entity or particular person, or (ii) the reporting or communication of data, whether or not surreptitiously or publicly gathered, to such a recipient. I additional think about it cheap to incorporate throughout the definition of“espionage”the unauthorized reporting or communication of such data to a 3rd get together performing as an middleman for the transmission of the knowledge to such a recipient. When such exercise is in opposition to Canada or is opposite to Canada’s pursuits, it falls throughout the purview of paragraph 34(1)(a). That is so even when the knowledge in query was gathered in public.
That is attention-grabbing because it then provides a modification of unauthorized, however is it a needed situation. How does one search authorization? Does it must be in writing or may or not it’s oral? If data and consent is offered, is that this data not approved for disclosure?
It looks like the phrases on behalf of have important play however does it apply to solely international governments or as nicely entities or individuals.
I feel we can even finally must get some readability as to what ‘such a recipient‘ means.
For instance, if a everlasting resident or worldwide pupil goes residence from a day of labor to debate a public college analysis mission/grant with their international nationwide partner they’re engaged on would that represent espionage if the knowledge transmitted probably opposite to Canada’s pursuits? For instance, if the partner asks how a lot cash the mission is price financially and the way a lot they may receives a commission, may that represent espionage below a selected reality patter?
What if the knowledge being collected or gathered is on behalf of themselves however susceptible to disclosure sooner or later (both deliberately or not) to a international entity or particular person that will profit that entity or indiviudal. What whether it is written in a resume or spoken of in a job interview with a possible international employer?
If a journalist is a international investigative correspondent paid by a international entity is trying into the Canadian Authorities’s worldwide coverage by publicly accessible ATIP data would that represent espionage?
The one factor linking all of it can be the act being Opposite to Canada’s curiosity and requiring some kind of intent to truly collect the knowledge.
Because the Chief Justice writes at paragraph 48.
It’s going to suffice if that data, even when publicly obtainable, was communicated or reported upon to a international state or different international entity or particular person, with none authorization.
This means {that a} lack of authorization is a key a part of an espionage take a look at, and that the opposite modifiers of secrecy, clandestineness, surreptitiousness, or covertness will not be wanted, that neither is management or path of a international entity or particular person, nor the lack of expertise or consent (para 48).
I’ll summize that I’m not sure what constitutes espionage after studying this part of the case. For one, I feel commas, subsections, and an inventory are wanted for need of misinterpretation or incorrect studying.
I additionally surprise – had I been a everlasting resident or international nationwide (and never a Canadian citizen), whether or not my very own recommendation to my international nationwide purchasers, primarily based on the knowledge I’ve gathered from my investigative analysis of Canadian immigration follow and coverage (publicly obtainable data), would possibly represent espionage. I acquired releases from ATIP which have been releasable to me, however definitely not giving me a broad authorization to share on-line and have it learn probably by international entities or individuals. I exploit this data within the pursuits of entry to justice and to critique the system I work in and hopefully rework it for public good. It’s, nevertheless, arguably opposite to Canada’s pursuits to have data of issues similar to Chinook and triage made public?
What about my colleagues who follow in immigration who’re everlasting residents? Are they committing espionage by advising their purchasers using data they’ve gathered by ATIP and data requests?
By writing blogs and sharing them on on-line platforms am I speaking and reporting? What about posting a video on TikTok or WeChat or one other international state-owned entity – is that this thought of speaking and reporting? What if one in all my purchasers have been a international entity or particular person in a rustic deemed hostile by Canada?
Maybe I’m confused and lacking the boat however I really feel like I can’t competently advise a consumer proper now – for instance – on whether or not or to not attempt to search entry into Canada presently within the occasion any previous, present, or future motion they might take might be deemed espionage.
Did it matter that Li got here to check? What if he got here to work at McDonalds? What if he got here to see a cherished one in Canada for 2 weeks? Is he nonetheless in danger to assemble data and move it on to a international entity simply by his very presence in Canada?
Whereas I’ll save the center of my evaluation on the cheap grounds to imagine commonplace to the subsequent weblog half the place the Chief Justice appears to be like on the software of the legislation to the info and endorses the Officer’s reasoning, I do be aware that the circumstances relied on as precedents on this part of the evaluation do at first look seem very completely different.
Crenna concerned a person who was an interpreter/translator after which the romantic companion of a senior Canadian bureaucrat who was truly approached by a Russian intelligence agent searching for data however was instructed to cooperate with the international agent (see para 18-34). The Federal Court docket granted the JR of the IAD’s resolution, discovering it non-rational and non-coherent with respect to it’s conclusion (para 114).
Qu concerned a citizen of China lively within the Chinese language College students and Students Affiliation at Concordia College who was discovered to have a sample of reporting to the Embassy in Ottawa and offered intelligence (para 6).
Peer concerned a person from Pakistan who was conducting home intelligence-gathering actions for the Pakistan Navy together with counter-intelligence that targetted governments of different international locations, together with Canada.
When making an attempt to give you a authorized take a look at for espionage, it appears that evidently at a naked minimal, some kind of personalised factual “occasion” ought to have occured to at the very least give a cheap grounds to imagine concern that this particular person might have interaction in espionage. If not, I’d counsel that the membership route (which Justice Mosley acknowledged within the latest resolution of Geng was potential over-expansive) would result in all circumstances pursued below s.34(1)(a) fairly than (e) of IRPA.
One would possibly counter my place by stating that this might not forestall the act of espionage however I’d counsel that that the person motion taken should have an intent component itself main or causally related to an act of espionage.
In all of the above circumstances, people did intentional actions (working in areas or participated in) the gathering of data and the unauthorized disclose of that data. I additionally imagine there have to be some kind of non-public or secretive component, or else this definition of espionage falls aside.
If passing on publicly obtainable data turns into espionage then it’s troublesome to outline what shouldn’t be.On this, I feel I disagree with the Chief Justice that it may be publicly obtainable data. This might make the definition far too overbroad.
Subsequently a person doing precise work in an intelligence-related discipline or performing in a approach resembling an intelligence agent might be differentiated from a pupil who merely attended a faculty.
If that pupil attended a faculty the place there are cheap grounds to imagine they have been taught espionage strategies (for instance a program coaching spies or intelligence officers – positive), but when they have been merely finding out as an everyday undergraduate pupil and unaware (as citizen in these international locations with adversarial pursuits to Canada are sometimes will not be made conscious of intelligence actions or techniques inside international locations the place entry to data is rather more restricted). I’d counsel extra individualized proof can be wanted that they’ve taken steps to present rise to behave sof epsionage.
I imagine there additionally must be some cheap grounds to imagine that this particular person was instructed to assemble delicate/non-public data by a international entity or particular person or have by some means gained/profited after the actual fact. The truth that public data they gathered, which can or is probably not associated to their research and readings and even issues hear on a taxi-ride to the lodge from the airport, can’t be sufficient to floor espionage, particularly in the event that they haven’t both been instructed nor truly profitted off the knowledge communicated.
In any case, that’s my two cents for now. Subsequent weblog (gained’t be as lengthy of a niche between this and hte subsequent one) will have a look at how the Chief Justice utilized the legislation to the info of the case and thought of the Officer’s evaluation. We are going to delve extra into the precise proof proferred.
I sit up for it!