Ultra Vires


Intimidated, Coerced, Silenced

The growing threat of transnational repression in Canada

The Canadian government has revealed very little so far about its intelligence on the role of the Indian government in the killing of Hardeep Singh Nijjar, a prominent Canadian Sikh leader who was murdered in June by masked gunmen outside of a temple in Surrey, B.C.. Nijjar had been designated a terrorist in New Delhi for his leadership of a separatist movement in India. 

However, if there is indeed credible evidence behind this allegation, India has not just committed an egregious wrong against Canada, but threatened the very concept of a rules-based international system. And while today’s geopolitical realities are likely to moderate the way in which Canada and its allies respond to this incident, there can surely be no room for our government to compromise when it comes to keeping Canadians safe within our own borders. 

This is, after all, far from the first high-profile instance of foreign attacks on Canadian citizens. We learned earlier this year that MP Michael Chong and his family were among those targeted in intimidation operations by the Chinese government in 2021, following a parliamentary motion which condemned Beijing’s oppressive activities in Xinjiang as a genocide. When Mr. Chong appeared before U.S. Congress last month to provide testimony on the growing threat of Chinese foreign interference, he aptly laid out just how much is at stake for Canadians:

 These various tactics are a serious and concerted effort to interfere with democratic activity in Canada, and leave millions of Canadians at risk of being intimidated, coerced, silenced and unable to enjoy the basic democratic rights and freedoms guaranteed in the Charter of Rights and Freedoms. These tactics cannot be tolerated in a free and sovereign country.

The tactics he was speaking of fit into a larger trend of transnational repression, which is the subject of a new report written by international human rights lawyers Sarah Teich, David Matas and Hannah Taylor for Rights Action Group. This report coincides with Canada’s public inquiry into “foreign interference by China, Russia and other foreign state or non-state actors,” with an interim report to be released in February 2024. Much of the Rights Action Group report looks at international and domestic legal frameworks and mechanisms which would allow Canada to better respond to occurrences of transnational repression. We will cover these matters at length in a subsequent article. For now, we will focus on the report’s key findings as to the nature of the threat—who is affected, how, and by whom?

The report is meticulously researched, and we would urge everyone to read it in full and draw their own conclusions. In our view, however, there is little doubt as to what the main takeaway is: China’s efforts to interfere in our domestic affairs, specifically in diaspora communities, are incredibly alarming in their scale and brazenness. There are a handful of other countries which appear in the report (Russia and Iran chief among them), but for the purposes of this article, we will restrict our focus to what is, according to the Canadian Security Intelligence Service (CSIS), the “greatest strategic threat to national security” in Canada—that of Chinese interference. According to the report, the gravity of the threat arises from three particular features of the Chinese Communist Party (CCP): 

First, [the CCP’s] campaign targets many groups, including ethnic and religious minorities, political dissidents, human rights activists, journalists, and former insiders accused of corruption. […] Second, their campaign spans the full spectrum of tactics, including espionage, renditions, physical assaults, cyber threats, and coercion-by-proxy. Third, the sheer breadth and global scale of their campaign is unparalleled.

The pervasiveness of these threats, both in the nature of the repressive acts and the various spheres in which they operate, has functioned to create an environment of fear within affected communities. Individuals have been targeted even when performing ordinary tasks outside the public or activist realm, facing attacks for the mere practice of their religion, or for their political and social associations. One of the victims interviewed for the report was Rachel, a member of the Falun Gong spiritual movement which has been banned in China. She relayed several incidents of alleged interference, which included being filmed outside the CN Tower by a man who said he was from the Chinese Consulate in Toronto, having nails hammered into the tires of a vehicle in which she had been travelling with other Falun Gong practitioners, and having suspected CCP spies attempt to join her group.  

Victims of transnational repression experience the threat in various ways. Harassment, threats, and intimidation take place in-person, by phone, or through elaborate cyber espionage schemes. For instance, many Uyghurs have reported receiving robocalls with instructions to immediately present themselves at the Chinese Embassy to pick up documents, which serve to remind them that “even in Canada, the Chinese state is keeping an eye on them and expecting them to remain silent.” Those who refuse may face devastating consequences. Earlier this year, Mehmet Tohti, the Executive Director of the Uyghur Rights Advocacy Project, helped to push forward legislation allowing 10,000 Uyghur and other Turkic Muslim refugees to enter Canada. According to the report, shortly before it passed, he received a phone call from Chinese police telling him that “his mother and two sisters were dead, his three brothers were disappeared, and all their children and spouses have disappeared as well. They said they took his uncle and cousin hostage. They told him that if he continues with his activism, they will suffer a terrible fate.”  

Such long-distance threats, including coercion-by-proxy, are a common tactic of the CCP. Through surveillance, harassment, and direct confrontation of family or friends residing in China, the CCP seeks to stifle public advocacy and further its involuntary returns campaign. As part of this broader campaign, China often refuses to issue passport renewals or travel visas to Uyghurs out of its embassies or consulates, providing one-way travel documents with the aim of luring these individuals back inside China’s borders.   

The scale and nature of these activities alone give sufficient cause for concern. But why is this of particular legal worry? 

Actions such as these represent clear violations of firmly set international legal principles such as non-refoulement. The report quotes Safeguard Defenders, who note that China establishing its own alternative policing and judicial system in Canada and other countries allows them to circumvent conventional bilateral mechanisms of policy and judicial cooperation to extralegally target Chinese residents abroad.

The CCP’s creation of the National Supervision Commission in 2018 comprises a major setback for the rule of law. As a state organ with investigatory powers over the police, prosecutors’ offices, and courts, the Commission has been at the forefront of China’s growing overseas reach. China also employs a “network of proxy entities” in undertaking its transnational repression activities, including cultural associations, diaspora groups, student groups, and scholarly bodies. The report points to the pressing nature of such threats: “As diaspora communities grow, so does the CCP’s desire to control them.”

According to the report, Freedom House has warned that China’s use of transnational repression poses a long-term threat to rule of law systems, as Beijing’s actions permeate beyond just individual violations. As China has sought to expand its overseas reach, it has simultaneously tried to legitimize its actions by reshaping legal systems and international norms in line with its national interests.

It is obvious that every Canadian should be deeply concerned by what we have laid out in this piece. All the more appalling is how little the Canadian government has done to combat these growing threats, despite its repeated assurances that it “will never tolerate foreign actors threatening Canada’s national security or the safety of our citizens and residents.” As one victim shared in the report: “We are kind of powerless in fighting transnational repression in our country [Canada]. We have to fight ourselves, but our resources and means are limited.”  

Fortunately, there is legal recourse available. One need only have a look at this report to find a host of potential solutions to better protect targets of transnational repression under Canadian and international law. We will have much more to say on this point in the next edition of Rights Review.

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