Ruling in ex-spy’s asylum case draws praise of security experts

Federal officials failed to show man’s past work was against ‘Canada’s interests,’ judge says

Foreign spies who seek asylum in this country cannot simply be rejected out of hand, suggests a new court ruling that’s being hailed by immigration experts as a wake-up call for “overzealous” border agents and government tribunals.

In a recently published judgment, Federal Court Justice John Norris rebuked Canadian officials for an “expansive interpretation” of what constitutes this country’s national interests, and narrowed the definition and application of the law. And he cited remarks by Alberta Premier Jason Kenney — in his former role as federal immigration minister — in making his judgment.

The ruling stems from the case of former Ethiopian intelligence agent Medhanie Aregawi Weldemariam. The 34year-old arrived in Toronto in February 2017 seeking asylum, claiming he faced persecution by Ethiopian security forces. He was deemed inadmissible by the public safety minister because he had worked as a software developer for the Information Network Security Agency (INSA), an Ethiopian state cybersecurity and intelligence agency, between 2009 and 2014.

He was then referred to a hearing before the federal immigration division tribunal, which concluded Weldemariam was inadmissible because of his membership with the Ethiopian intelligence agency. INSA, said the tribunal, engaged in cyberespionage involving Canadian allies and targeted people living within those countries, specifically journalists of the Ethiopian Satellite Television & Radio, a media outlet critical of the Ethiopian government.

In May 2019, Weldemariam was issued a deportation order. He subsequently appealed to the Federal Court.

In quashing the tribunal decision, the court criticized the adjudicator for equating Canada’s interests with “things that Canada is interested in” without considering that “there must be some actual nexus to Canada.”

While freedoms of expressions and the press are values that Canada and Canadians champion, the judge said, no explanation was provided as to how the surveillance of nonCanadians outside of Canada was relevant to the country’s national security interests.

“Without at least some explanation of how those activities were affected, if at all, by INSA’s targeting of individuals in other countries, this is too tenuous a basis to reasonably support a finding that INSA’s actions were contrary to Canada’s interests,” Norris said in his ruling.

Norris also cited the parliamentary transcript of a speech by former immigration minister Kenney in 2012, when he introduced the current inadmissibility provision to narrow its scope from a catch-all.

The law used to include any act of espionage or subversion “against a democratic government, institution or process as they are understood in Canada.” Today, it only covers espionage “directed against Canada or contrary to Canada’s interests.” “The actions of INSA may very well be contrary to Canada’s values, but this alone does not entail that they are also contrary to Canada’s interests,” Norris said.

Legal and security experts hailed the ruling.

“For years now, decision-makers have used this inadmissibility provision with a very broad brush, in an overzealous manner that it makes it difficult to challenge those decisions,” said

Queen’s University law professor Sharry Aiken.

“The judge is saying the law must be interpreted as intended and cannot be used to justify shoddy decisions on the front line to boot people out of the country.”

University of Ottawa professor Wesley Wark, one of Canada’s leading experts on national security and intelligence, also praised the court for underlining the “misunderstanding and overreach” by the Canada Border Services Agency and the immigration tribunal in their interpretation of the law.

“It sends a strong message to CBSA and the Immigration and Refugee Board (which oversees the tribunal), saying to them, ‘Get to work on understanding the reality of the legislation that governs your work and stop wasting money on cases that pose no threats to Canada’s national security,’ ” Wark said.

Paul VanderVennen, a lawyer for Weldemariam, said his client welcomed the court decision because the security inadmissibility provision has been applied very strictly and harshly to make many people inadmissible.

“This is one decision that’s taking a different approach and saying, ‘No, we can’t interpret these things so broadly. We’ve got to look at the purpose of the law,’ ” said VanderVennen.

“There have got to be real connections with the national security interests of Canada in order to exclude somebody for simply being a member of an organization.”

The court ordered a new admissibility hearing for Weldemariam.

“The judge is saying the law must be interpreted as intended.”

SHARRY AIKEN QUEEN’S UNIVERSITY LAW PROFESSOR