Here is a very unusual case reported by the National Post. Obviously, the legislation requires amendment to deal with cases such as this in a clear fashion.
Indian spy faces deportation reprieve
Indian spy faces deportation reprieve
Stewart Bell, National Post
Canada has been trying to deport an Indian man for espionage since he arrived at Vancouver International Airport last December under a false identity, according to a newly unsealed document.
The man has admitted to Canadian officials that, in 2006 and 2007, he took part in a spy operation involving a militant group and a mystery man offering money for sensitive information about Pakistan.
But the effort to deport him has so far failed because Canadian immigration law only permits the government to deport foreigners who have spied against governments or institutions considered democratic.
Although the man has acknowledged he was a middleman in the espionage scheme, the Immigration and Refugee Board recently threw out the government's case on the grounds that the country he had spied on, Pakistan, was not a democracy at the time.
A brief summary of the decision was posted on the IRB's website this month. The National Post has since obtained a full copy of the 14-page ruling, but the IRB first removed the man's name from the document.
The identity of the figure who paid for the information was also removed from the document. During its investigation, the Canada Border Services Agency interviewed an associate of the man who had worked for the CIA, but there is no indication the agency was involved in the scheme.
The unusual case has highlighted a feature of Canada's Immigration and Refugee Protection Act, which says that non-Canadians can be declared inadmissible to Canada for espionage only if they spied on "a democratic government, institution or process as they are understood in Canada."
Because of that, at closed hearings before the IRB in Vancouver earlier this year, representatives of the Minister of Public Safety and the Indian man's lawyer, Peter Edelmann, were forced to argue over whether Pakistan was a democracy.
The IRB found it wasn't.
"After considering all of the evidence on that point, I conclude that Pakistan was not a democracy as the term is understood in Canada from 1999 when President Musharraf seized power in a coup until February 18, 2008 when free elections were finally held and he lost power," IRB Member Michael McPhalen wrote.
"The evidence shows that from 1999 to the end of 2007, whenever his hold on power was threatened, President Musharraf took actions such as declaring a state of emergency, amending or suspending the constitution or taking power away from the judiciary. This is not how a democracy operates."
Martin Rudner, a professor at Carleton University, said the law could cause complications for Canadian diplomacy because Ottawa's allies are not always democracies.
"Canada could find itself giving sanctuary to espionage agents who operate against friendly countries with shared interests in volatile and important regions of the world, like the Middle East, Africa, Central Asia, or Latin America," he said.
"In such circumstances Canadian immigration and refugees practices could serve in effect to undermine Canadian foreign policy goals in vital areas of international affairs."
A related section of the law says that non-Canadians are also inadmissible for "engaging in terrorism" but in that case it does not specify that the terrorists' targets must be democratic governments or institutions.
The man Canada accuses of espionage grew up in the Indian-administered section of Kashmir, a mountain kingdom claimed by both India and Pakistan. There has been longstanding violence in the region between Indian forces and Islamist militant groups backed by Pakistan.
He said he started spying after he was approached by a man who wanted a list of illicit weapons factories in Pakistan, the sources of their raw materials and a copy of the National Database and Registration Authority, which issues national identity cards to Pakistanis.
He approached a friend, a member of the militant group Hizbul Mujahideen, and paid him 40,000 rupees (about $500 Canadian) for the information about weapons factories, which he passed on to the mystery man. He was not able to get a copy of the database.
During the IRB hearings, he said he knew militants who crossed from India to Pakistan but said he opposes violence and took part in the espionage scheme to obtain information that would be used against militant groups, as well as to make money.
Canadian officials told the IRB the man was a danger to Canada because he "admitted that when he was younger he dreamed of being a terrorist," "he is friends with or associated with terrorists and freedom fighters," and "has an interest in guns and violence and has had weapons training."
In addition, the person whose passport he used to come to Canada "has been photographed holding an assault rifle and making a gang sign," the government said, but the man argued he could offer innocent explanations.
He said he underwent weapons training during high school and was a supporter of Kashmiri militant groups in his youth.
He said while Indian authorities suspected he was a terrorist, and arrested and tortured him, he was released each time, once after his father paid a bribe, and had never been a member of a militant group.
He said he distanced himself from militants after becoming disillusioned with Muslim leaders whom he said used religion to recruit youths to fight the Indian forces.
The IRB agreed he was not a security threat.
"The ability to use a weapon only tends to establish that a person is a danger to the security of Canada if it is combined with other factors such as the inclination to use a weapon for terrorist purposes, associating with extremists and identifying with their goals or a previous history of violence," Mr. McPhalen wrote. "None of those factors are present here."
Neither the CBSA nor the Pakistani High Commission in Ottawa responded to questions yesterday, but Mr. Edelmann said the law only applies to those who commit espionage against democracies.
In 2007, the government of Prime Minister Stephen Harper was "one of the more outspoken voices calling for Pakistan to be suspended from the Commonwealth due to the lack of democracy under Musharraf's regime," he said.
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