Canada is a highly desirable country for emigration. It is also a popular destination for shorter-term purposes, whether to pursue an education, work, travel, or for business. However, entry to Canada may be denied for several reasons, such as convictions in countries of origin for criminal matters that would also be deemed offences here under an Act of Parliament.
A recent decision of the Immigration and Refugee Board (Immigration Division) provides insight into the legal considerations and procedures that are engaged when a foreign national with a criminal conviction tries to enter Canada. The case is that of Chelsea Manning, a notorious traitor in some circles, a courageous whistle blower in others, for her role in sharing about 250,000 classified U.S. military documents with Wikileaks.
Some background to refresh memory may be in order. Chelsea Manning is perhaps better known as a former U.S. Army Private named Bradley Manning, who worked as an Army Intelligence Analyst. Bradley Manning had joined the U.S. army in 2007, then after completing basic training, enrolled in the army’s Intelligence programme and received top secret clearance in 2008. He was assigned to a forward operating base in Iraq in late 2009 where he had access to top-secret documents.
During the first few months of 2010, Wikileaks published a flood of classified documents, including a video showing a US military gunship shooting and killing a group of Iraqis that included two employees of the Reuters news agency. During this time, Pvt. Manning’s job performance became erratic. The army was in the process of discharging him when he contacted a hacker and divulged that he had downloaded about 250.000 classified documents and had forwarded these to Wikileaks.
The hacker shared this information with the army. Within days, Manning was arrested, charged with over two dozen offences, and incarcerated in a U.S. Marine Corps brig pending a court-martial. In February of 2013, Manning pled guilty to 10 lesser charges, then was convicted at a court-martial in July of several other more serious charges including theft and espionage. He was sentenced to 35 years in prison in August of 2013. The day after the sentence was announced, Manning declared he was female and from then on wished to be identified as Chelsea Manning.
The next three years were eventful. Manning tried without success to get the U.S. military to treat her for gender dysphoria. The American Civil Liberties Union filed a lawsuit on her behalf in 2014. In 2016, Manning went on a hunger strike and, after 10 days, military officials agreed to allow her to pursue treatment that included gender re-assignment surgery. In January of 2017, in one of his last acts in office, President Obama commuted Manning’s sentence and she was released from prison on May 17, 2017.
After her release from prison, Manning became a hot booking on the speakers’ circuit. She was on her way to a speaking engagement in Montreal on September 22, 2017, when she was denied entry at a border crossing in Lacolle, Quebec. Thus began a lengthy legal process that culminated in an admissibility hearing before an Immigration and Refugee Board of Canada tribunal (the tribunal) in early October of 2021 at which Manning participated via videoconference from her home in the United States.
The case against Manning was straightforward: she was not admissible because of convictions for offences outside Canada that, if committed in Canada, would constitute offences under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. The offences for which Manning was convicted in the U.S. would constitute here in Canada the following:
- Communicating safeguarded information, an indictable offence that carries a life sentence;  and
- Unauthorized use of a computer, an indictable offence that carries a sentence up to 10 years in prison.
In her defence, Manning conceded that she had pled guilty to some U.S. charges and had been convicted of others. However, she argued there was no equivalency in Canadian law. Furthermore, even if there were equivalent Canadian offences, then the defence of necessity applied to excuse Manning’s actions.
The equivalency analysis involved comparing the wording of the relevant provisions of the American and Canadian pieces of legislation. The first provisions to examine were the Gathering, transmitting or losing defense information, 18 US CODE section 793(e) and Communicating safeguarded information at section 16(2) of the Security Information Act of Canada. The tribunal found that although the wording of the provisions was generally comparable, there was one significant difference. Although both statutes refer to unlawfully communicating protected information, the U.S. statute refers to willfully communicating, delivering, or transmitting the information to any person not entitled to receive it, while the Canadian provision says the communication must be made to aforeign entity or terrorist group. The Canadian legislation was specific and clear as compared to the U.S. counterpart, leading the tribunal to conclude that disclosing the documents to Wikileaks would not be an offence in Canada.
The other major difference in the statutes concerns the harm caused by the communication of the information. The American statute states that the holder of the information must have reason to believe that it could be used to harm the United States or to the advantage of any foreign nation. In contrast, the Canadian statute requires that actual harm be done to Canadian interests. Since Manning’s convictions under US CODE section 793(e) failed to meet the equivalency test in Canada, Canada’s immigration authorities could not deny Manning admission based on these provisions.
Next to undergo the equivalency analysis were the fraud-related provisions; the American was 18 US CODE Section 1030(a)(1) and the Canadian was Unauthorized use of computer, section 342.1(1) of the Criminal Code. Although the provisions are similar in that they involve accessing a computer (U.S. law) or obtaining a computer service (Canadian law), the American offence requires access to protected information and this information be disclosed to a person not entitled to receive it. In contrast, the Canadian offence lacks these elements.
The tribunal applied the evidence to the elements of the actus reus (the action itself); knowingly and voluntarily obtained a computer service and the mens rea (guilty mind) of Criminal Code section 342.1(1). Manning conceded that she had done the actus reus in that she knowingly and voluntarily obtained a computer service, and she had the requisite mens rea in that she was aware the act was prohibited by the U.S. military’s computer usage policy. However, Manning argued that a reasonable person in her circumstances would not have concluded that her use of the computer service was dishonest. In order for conduct to be considered objectively dishonest, it must be established that a reasonable person in similar circumstances would have agreed that obtaining the computer service constituted dishonest activity.
The evidence from the U.S. court-martial established that Manning had not personally read all 250,000 cables but rather, as she admitted, sorted them according to their assigned level of classification and decided that the ones acceptable for widest distribution were the ones she would then download for circulation to Wikileaks. The tribunal decided this activity could be qualified as an unauthorized use for a prohibited purpose. In conclusion, the tribunal held that a reasonable soldier in similar circumstances with a respect for international law and human rights and fully informed of his/her duty regarding the information they had access to, would conclude that such use of a computer was dishonest. So, there was an equivalency of offences.
Finally, Manning’s lawyers argued that even if there was an equivalency of offences, the defence of necessity applied as an excuse for Manning’s actions. Canadian jurisprudence has established that the defence of necessity requires proof that:
- There exists a clear and imminent peril.
- There is no reasonable legal alternative available to disobeying the law; and
- There is proportionality between the harm inflicted and the harm sought to be avoided.
Regarding the first element – a clear and imminent peril – the tribunal noted that Manning’s comments about the diplomatic cables reveal a motivation to expose how the American State Department treated other nations and how the American government had sold its “war on terror.” In other words, Manning was motivated to break the law by her disagreement with U.S. State Department policies rather than a clear and imminent peril. Then, the tribunal turned to the third element – proportionality between the harm inflicted and the harm sought to be avoided. The tribunal pointed to the fact that many of the leaked cables had no relation to the harm Manning believed was being caused by the ”war on terror.” Therefore, Manning’s actions exceeded what she viewed as necessary in the circumstances.
Having considered whether the first and third element of the defence of necessity applied and finding both lacking, the tribunal decided there was no need to consider a reasonable alternative to breaking the law. The tribunal ruled the defence of necessity was inapplicable as a rationalization for Manning’s actions. Manning’s lawyers also tried to argue, without success, that that if section 342.1 of Canada’s Criminal Code was deemed to apply to Manning’s actions, then that would be contrary to the principles of fundamental justice and thus would engage section 7 of Canada’s Charter of Rights and Freedoms.
Under subsection 7(2) of the Immigration Division Rules, a person who holds a permanent resident visa, is a permanent resident, or is a protected person has a right to appeal tribunal decisions to the Immigration Appeal Division. Manning held none of these statuses, thus did not have a right to appeal. However, under section 72 of the Immigration and Refugee Protection Act, a person can make an application to the Federal Court of Canada for a judicial review. In a statement following the tribunal’s decision, Manning’s lawyers indicated they would be pursuing such an application. So, there may be a second act to the Chelsea Manning story.
 Section 36(1)(b), Immigration and Refugee Protection Act
 Section 16(3), Security of Information Act of Canada
 Section 342.1(1), Criminal Code of Canada