1. Introduction
It is tempting to conceive of domestic law and foreign policy as separate domains. Members of the Canadian public may believe, for example, that Global Affairs Canada enjoys almost exclusive control over the direction and operation of Canadian diplomacy. Yet the line between the foreign and the domestic has always been a thin one. Domestic policies and priorities inevitably shape Canadian diplomacy. Parliament can place constraints, through the enactment of legislation or the passage of non-binding motions, on the executive branch’s international policies. Various provinces are also active on the world stage and thus act in parallel to the federal executive in the domain of foreign affairs.Footnote 1 And diaspora groups may succeed in forcing the federal executive to consider and reflect their views in forging foreign policy.Footnote 2 The reverse is equally true: foreign policy can shape domestic policy. Most obviously, domestic jurisdictions may need to enact enabling legislation in response to the executive’s adoption of an international instrument. A sub-jurisdiction’s willingness or refusal to implement enabling jurisdiction affects the national state’s compliance with international law. To take another example, international events can force the contraction or expansion of civil liberties at home: the Second World War drove a subset of the white Canadian population to villainize discrete minorities, while the Cold War inspired reflection upon the limits of existing civil liberties protections.
This reminder — of the need to understand the foreign and the domestic as two sides of the same coin — applies with full force to one of Canada’s most complex foreign policy challenges today: how to approach the People’s Republic of China (PRC). In past years, Canadians have realized that China is economically powerful and unafraid to mould aspects of the international system to suit its own interests. In the past ten years alone, Canadians have watched the PRC intern over a million Uyghurs and other Turkic Muslims,Footnote 3 remove Hong Kong’s political autonomy by enacting a brazen national security law,Footnote 4 and lay claim to a vast area of the South China Sea in contravention of international law.Footnote 5 Sino-Canadian relations have plunged to new depths. Canada’s arrest of Huawei Chief Financial Officer Meng Wanzhou in connection with an American extradition request led the PRC to arbitrarily detain two Canadian citizens, Michael Kovrig and Michael Spavor.Footnote 6 Revelations that two scientists working at the Winnipeg-based National Microbiology Laboratory impermissibly shared scientific information with PRC authorities have further shocked Canadians.Footnote 7 Over the past years, partially in response to China’s newfound assertiveness on the global stage, the Liberal government has adopted an increasingly hardline posture towards China.Footnote 8 The Canadian government has proven willing to criticize Chinese behaviour at international fora and to work with close allies to preserve the rules-based international order against China’s assaults.Footnote 9
In the context of modern Sino-Canadian relations, how does Canada’s foreign policy affect the formulation of domestic law and vice versa? Canadian policy-makers and legislators have on multiple occasions argued that an effective China strategy starts at home. In countering Chinese aggression on the international stage, Ottawa has sought to both protect and collaborate more closely with Chinese Canadian communities. Thus, the House of Commons’ Special Committee on the Canada-People’s Republic of China Relationship has noted the importance of funding diaspora media organizations in response to PRC-backed mis- and dis-information efforts.Footnote 10 Similarly, Canada’s Indo-Pacific Strategy, which in part articulates the federal executive’s foreign policy priorities with regard to the Sino-Canadian relationship, identifies the need to foster “greater inclusion of Canadian diaspora communities of Indo-Pacific heritage” and to “fight against anti-Asian racism in Canada.”Footnote 11
Yet while various state authorities have alluded to the close relationship between Canada’s China strategy and the domestic legal framework, no scholar or authority has yet conducted a “cross-cutting” analysis of the consequent transformation of Canadian law.Footnote 12 Multiple American scholars—most notably, Mark Jia—have discussed the transformation of US law in the context of the Sino-American relationship, and I draw upon their theoretical contributions.Footnote 13 My hope is that this article inspires a similarly rich conversation among Canadian foreign policy thinkers and legal scholars. I examine two entwined questions. How has the modern Sino-Canadian relationship shaped the structure of Canadian law? How has the structure of Canadian law shaped the modern Sino-Canadian relationship? In answering these questions, I pay special attention to the domestic treatment of Chinese Canadians. Historically, the Canadian state has often employed law to discriminate against discrete minorities, such as Chinese immigrants and Indigenous nations. It is true that the Canadian Charter of Rights and Freedoms places sharp constraints on governmental discrimination.Footnote 14 Yet one of the central risks of a more hard-line China strategy is that certain Canadians may begin to otherize or even demonize Chinese Canadians or Chinese nationals who spend time in Canada. In turn, the poor treatment of Chinese Canadians will complicate the federal executive’s efforts to forge a consultative, community-based foreign policy. In other words, ensuring that governmental policies do not lead to racism matters both for normative and instrumental reasons.
In the first section of this article, I unpack the concept of securitization and discuss three insights from the literature on securitization that structure my study of Sino-Canadian relations. Next, I lay out the ways in which domestic law has evolved in response to Sino-Canadian relations and the ways in which domestic law shapes the bilateral relationship, with an eye to the racial implications of this dynamic. I discuss the “securitization” of immigration law, rules on academic collaboration, investment law, and property law, whereby legislators and governmental officials have increasingly emphasized the national security implications of legal concepts, decisions, and regimes.Footnote 15 I suggest that, while this securitization does not disclose racial animus on the part of Canadian legislators and administrative officials, it does create certain risks — such as an increased likelihood of being subjected to arbitrary decision-making by the administrative state — for Chinese Canadians. Finally, I conclude by identifying reforms that the Canadian state can adopt as it seeks to simultaneously protect Canada’s national interests in its dealings with a resurgent PRC and ensure the well-being of Chinese Canadians.
2. Insights from the securitization debate
Academics and practitioners have not coalesced around a single, overarching definition of securitization. One starting point is to define securitization as the “act of re-characterizing an issue as a matter of national security.”Footnote 16 Organizing the definition of securitization around national security is not entirely helpful; as J. Benton Heath has observed, security “is a deeply indeterminate concept, whose power derives not only from its association with particular issues or threats, but from the way that it combines fundamental ambiguity with a sense of heightened urgency.”Footnote 17 Daniel Drezner has similarly noted that the “American definition of national security has fluctuated over time.”Footnote 18 Traditional understandings of national security foreground military and armed threats to a polity or the citizens of a polity; yet, in recent years, policy-makers have applied the term to issues as disparate as climate change, ransomware, personal protective equipment, critical minerals, and artificial intelligence.Footnote 19 Even though academics do not share a composite definition of securitization, they have engaged in plenty of debates regarding the rhetorical usefulness, actual operation, and risks of securitization. I discuss some of these debates and extract three insights that prove useful in approaching my case study of Sino-Canadian relations.
First, securitization need not be a negative phenomenon. Academics who argue that securitization is an inherently negative concept often implicitly draw upon the political theory of Carl Schmitt.Footnote 20 Schmitt contended that the essence of a given political community lay in a friend/enemy distinction.Footnote 21 Moreover, he argued that, in the case of an emergency, it was insufficient to maintain normal legal procedures; instead, these situations demanded “state action inconsonant with the rule of law.”Footnote 22 Those who view securitization as inherently negative stress that securitization destroys democratic openness and accountability, leads to the implementation of exceptional measures that are not subject to normal legislative security, and inhibits long-term strategic thinking.Footnote 23 There is no doubt that securitization often does lead to these various problems. Thus, Robert Malley and Jon Finer have argued that the global war on terror has warped US foreign policy by, for example, leading to segmented and opaque decision-making processes at the very heart of the US government.Footnote 24 In the immigration context, the 9/11 attacks immediately led the United States to implement “harsher immigration restrictions supposedly designed to strengthen security”; Congress granted the executive sweeping powers, and jurisdictions around the world also moved to consolidate “the policy linkage between immigration and security.”Footnote 25
Yet multiple scholars have convincingly argued that the securitization of an issue need not lead to negative effects. On the process front, Paul Roe has argued that “the extent to which securitization necessitates a lack of openness and deliberation has been overexaggerated.”Footnote 26 Heath similarly argues that securitization does not necessitate the circumvention of the rule of law and even suggests that an alternative vision of securitization aims “to domesticate security in the service of expertise and rational problem-solving.”Footnote 27 I would add two criticisms of the view that securitization is an inherent ill. First, this view ignores almost entirely the concept of human agency; decision-makers can make choices on such interrelated issues as the extent to which the legislature should participate in policy formation, the speed of decision-making within a securitization framework, and whether to provide transparent, public reasons for decisions. Second, as the concept of national security expands to cover unconventional topics such as climate change, there is reason to hope that governments will create new mechanisms and reform existing ones to meet new challenges. Just as the concept of national security is fluid, so too is the concept of securitization. Policy-makers in liberal democratic states can securitize an issue while simultaneously respecting the rule of law, promoting accountability and transparency, and avoiding the slide into the emergency state. If securitization is not necessarily negative, then it is useful to think through ways to ensure that the state abides by democratic values when responding to a national security threat.
The second insight is that securitization is not solely a top-down process but, instead, involves a multitude of interrelationships and interactions. Proponents of the Copenhagen School argue that the “enunciation of security itself creates a new social order wherein ‘normal politics’ is bracketed.”Footnote 28 Critics of the Copenhagen School hold, however, that “audience, political agency, and context are crucial, if overlooked aspects of securitization.”Footnote 29 In some senses, academics on both sides of the debate are correct. The articulation of a national security threat by the state can lead to a mobilizing effect, at least where the population’s trust in the state is high. Yet it is also important to “analyse how issues appear, are removed, are prevented from appearing or are prioritized in the security agenda.”Footnote 30 Various groups within a polity can impact the securitization process. Thus, the executive branch must consider the likely response of the electorate and of certain interest groups to an anticipated policy. In liberal democratic states, the legislature is not entirely powerless to contest the executive branch if it feels that the latter has overstepped its authority. Finally, the executive branch’s ability to characterize a certain issue as a national security issue will depend on public opinion and prevailing modes of understanding. Securitization implies a complex, evolving set of interrelationships, and it can be erroneous to focus solely on executive branch decisions without considering the broader context for those decisions.
Third, the concepts of race and securitization are deeply interlinked. Matiangai Sirleaf has pointed out that theorists of national security rarely address racial issues and, when they do, treat race as a segmented concern rather than as a foundational concept that structures every aspect of national security.Footnote 31 No doubt, there are plenty of scholars who have interrogated the relationship between national security and race.Footnote 32 Sirleaf is correct, however, to observe that many national security experts avoid discussion of “how race manifests in national security domestically, transnationally, and globally.”Footnote 33 In discussions of China, the “colour line” is an unavoidable concept: it is tempting to otherize people who hail from a “foreign” culture and geographical context.Footnote 34 Given the ease with which pundits and policy-makers have essentialized Chinese individuals over the past several years,Footnote 35 it is integral to treat discourses of securitization and race as inextricably intertwined.
These three insights — that securitization is not an inherently negative concept, that securitization involves a dynamic set of stakeholders and interrelationships, and that discourses of securitization are inseparable from discourses of race — structure the remainder of this article and my discussion of policy and legal solutions. I argue, for example, that the state can avoid the worst excesses of securitization by providing transparent, intelligible reasons for its decisions and that securitization involves a host of organizations and actors within the state, some of whom already prioritize dialogue with the Chinese Canadian community. Finally, I treat race as a cross-cutting factor and draw out the racial implications of recent changes in different domains of Canadian law.
3. The transformation of Canadian law
Recent empirical investigations demonstrate that anti-Chinese racism has spiked in Canada in recent years. Following the COVID-19 outbreak, which originated in the Chinese city of Wuhan, an unprecedented number of Chinese Canadians began to report acts of discrimination and anti-Chinese racial violence. To take one alarming statistic, the Vancouver Police Department reported an increase from “12 cases of anti-Asian hate crimes in 2019 to 98 cases in 2020,” an increase of 717 per cent.”Footnote 36 Anti-Asian discrimination has not entirely dissipated in the wake of the pandemic, in part due to tense relations between China and Canada. According to the Angus Reid Institute, some 48 percent of “Chinese and other East Asian Canadians … say they have experienced negative reactions from those around them due to political events [in the 2022–2023 period] involving Canada and China.”Footnote 37
Given the documented rise of anti-Chinese racism in Canada, it is integral that policy-makers and lawyers continually monitor the extent to which Ottawa’s China strategy is affecting Chinese Canadians. In addition, to understand how bilateral relations impact domestic race relations, policy-makers must take a comprehensive view of the ways in which the Canadian state has implemented the national China strategy. In responding to the China challenge, Canadian legislators have introduced major reforms to various domestic domains of law, and it is thus appropriate to evaluate the racial ramifications of those reforms. In this section of the article, I catalogue the ways in which various domains of domestic law have evolved in recent years in connection with Sino-Canadian tensions; I discuss how such changes affect, or are affected by, Sino-Canadian relations and suggest how those changes may shape domestic race relations. I focus on the securitization of immigration law, the legal rules surrounding international research partnerships, investment law, and property law. I conclude that, while there is no evidence that legislators have introduced legal reforms due to racial animus towards individuals of Chinese ethnicity, some of these changes increase the risk of anti-Chinese discrimination.
A. Immigration law
One major concern with Chinese foreign policy is how the PRC engages in “diaspora statecraft,” a policy whereby the PRC seeks “to enlist overseas Chinese communities to support its national strategies.”Footnote 38 In the eyes of the PRC, individuals of Chinese ethnicity who live in other countries may, with the right incentives, decide to support the PRC’s foreign policy objectives. The risks of such a strategy for individuals of Chinese ethnicity are manifold. Most critically, a deliberate strategy of recruiting overseas Chinese individuals for service to the PRC naturally gives rise to fears on the part of foreign governments that Chinese individuals are potential fifth columnists. This is the case especially since Western observers and pundits tend to overestimate the PRC’s power and abilities. As Margaret Lewis astutely notes, the PRC’s leadership has not in fact succeeded in melding the government, the Communist party apparatus, the commercial sector, and academia into a monolithic entity.Footnote 39 While the PRC may attempt diaspora statecraft, it has not necessarily enjoyed success in recruiting a critical mass of overseas Chinese individuals. Yet the Western perception of the PRC as a superpower may lead intelligence agencies to overestimate the risk of fifth columnist activities.Footnote 40
In structuring immigration law, then, the Canadian state must strike the right balance. The state must articulate and implement rules that prevent Chinese individuals with malign intentions and who might pose an espionage risk from entering Canada and taking advantage of its open, democratic system. At the same time, to treat all Chinese applicants as potential threats would be an overreaction and would flow from an inaccurate, sensationalist framing of the PRC’s power. How has the Canadian state dealt with Chinese immigration in past years? I suggest that Canadian administrative officials are increasingly approaching Chinese immigration applications through a securitization lens. The risk of this securitization trend is that Canadian immigration officials will place too much emphasis upon national security arguments rather than take a full view of each individual file. To the extent that this risk becomes a reality, the effect will be the unfair treatment of potential Chinese immigrants and a concomitant rise in suspicion towards Chinese Canadians. The news is not all negative, however, and there are some signs that judicial review will prevent a slip towards over-securitization.
Canadian immigration officials have long been aware that Chinese citizens may in certain situations take advantage of Canada’s democratic openness to further the aims of the PRC. The 2001 Federal Court of Appeal case, Qu v Canada (Minister of Citizenship and Immigration), dealt with the immigration implications of one such factual scenario.Footnote 41 Qu Yong Jie, a master’s student at Concordia, was a Chinese citizen who applied for Canadian permanent residency. The visa officer denied Qu’s application in part because Qu had reported on the activities of Concordia’s Chinese Students and Scholars Association to officials at the Chinese embassy in Ottawa. The visa officer concluded that Qu had thereby engaged in “acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada,” in contravention of section 19(1)(f) of the Immigration Act. Footnote 42 The application judge sided with Qu by reading the term “democratic government, institutions or processes” in a narrow way; a student organization at a university did not constitute a democratic institution.Footnote 43 The Federal Court of Appeal reversed the judgment, defining “democratic institutions” as consisting of a “structured group of individuals established in accordance with democratic principles with preset goals and objectives who are engaged in lawful activities in Canada of a political, religious, social or economic nature.”Footnote 44 Accordingly, the court allowed the appeal and remitted the matter to a visa officer for redetermination.
Qu is significant for at least two reasons. First, the case demonstrates that immigration officials have long been attuned to the specific risks and operation of Chinese-organized espionage. Although observers have in recent months raised questions “about how effectively Ottawa is screening those who have served foreign governments hostile to Canada,” Qu demonstrates that Canadian immigration and intelligence officials have long kept China on the radar and have at least sometimes displayed a sophisticated understanding of how the PRC recruits Chinese nationals to further regime objectives.Footnote 45 Second, the Federal Court of Appeal’s treatment of the appeal demonstrates that the Canadian judiciary is unlikely to resort to ends-oriented reasoning and to be swept up in the larger mood of anti-PRC sentiment. The court delivered its conclusions in neutral terms and focused its analysis on the meaning of the phrase “democratic government, institutions, or processes.”Footnote 46 To the extent, then, that Chinese Canadians have fears about administrative decision-makers improperly exercising their discretion to over- and mis-target Chinese immigrants, the possibility of judicial review serves as some protection against such worries.
Although the federal courts have not published detailed statistics on the question, it seems that immigration cases involving allegations of potential Chinese-backed espionage activities have increased in recent years. Will Tao, an immigration law practitioner, writes of an uptick between 2022 and 2023 in “inadmissibility allegations relating to proxy membership — specifically, based on association with universities that have allegedly trained spies who go on to work in Chinese government intelligence organizations.”Footnote 47 Tao further notes that over half of all mandamus judicial reviews that applicants have filed in the immigration context involve a factual nexus to the countries of India, the PRC, Iran, and Pakistan, and he suggests that disputes over security checks are likely driving these applications.Footnote 48 Tao’s empirical observations are consistent with the hypothesis that Canadian immigration and intelligence officials are more closely scrutinizing immigration applications from Chinese nationals in the wake of unprecedented Sino-Canadian tensions. An alternative hypothesis is that more Chinese nationals who bear connections to the PRC’s security and intelligence apparatus are applying for immigration status in Canada.
The emergence of three major judicial cases in recent years indicates the securitization of Canadian immigration law. In Geng v Canada (Citizenship and Immigration), an immigration officer held that Geng Liping, a university professor who “may have taught English to prospective spies” at the Luoyang Foreign Languages Institute, was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration and Refugee Protection Act. Footnote 49 Based upon Geng’s record as an English professor at the Luoyang Foreign Languages Institute, the officer held that Geng had been a “member of an organization that there are reasonable grounds to believe engages, has engaged, or will engage in acts of espionage against Canada or that is contrary to Canada’s interests.”Footnote 50 Geng had previously held Canadian citizenship, received his Master’s and Ph.D. degrees from the University of Toronto, and taught English literature at the University of Toronto and Memorial University.Footnote 51 The Federal Court granted Geng’s application for judicial review on the basis that the officer’s decision was unreasonable.
Several months later, in Li v Canada (Citizenship and Immigration), the Federal Court rejected an application for judicial review that shared some high-level similarities to the Geng case.Footnote 52 Li Yuekang had applied in 2022 for a study permit to pursue a doctoral degree in mechanical and mechatronics engineering at the University of Waterloo. The visa officer denied Li’s application since he had obtained his undergraduate degree from Beihang University, an institution with a “strong relationship with the defence industry in China.”Footnote 53 Given Li’s undergraduate career, the PRC’s strategic interest in improving national capabilities in the microfluidics industry, and the PRC’s reliance on “non-traditional espionage techniques,” the visa officer concluded that there were reasonable grounds to believe that Li would engage in espionage if he obtained a study permit and commenced studies at Waterloo.Footnote 54 The Federal Court sided with the visa officer, holding that the officer’s conclusion was reasonable, and articulated a broad definition of espionage. Chief Justice Paul Crampton interpreted the term “espionage” in paragraph 34(1)(a) of the Immigration and Refugee Protection Act to contemplate the “covert gathering of information on behalf of a foreign government or other foreign entity or person” or the “reporting or communication of information, whether surreptitiously or publicly gathered to such a recipient.”Footnote 55
Finally, in Canada (Minister of Citizenship and Immigration) v Xu, the minister sought judicial review of an Immigration Appeal Division (IAD) decision, in which the panel found that there were no reasonable grounds to believe that Xu Huajie was inadmissible to Canada on security grounds.Footnote 56 The Federal Court granted the application and held the IAD’s decision to be unreasonable. Xu had served as a member of the People’s Liberation Army (PLA) for twenty years and lectured at the PLA’s Information Engineering University for sixteen years.Footnote 57 Xu taught basic military tactics and strategy at the university, which came under the control of a PLA department responsible for signals intelligence and cyber espionage. The Immigration Division found no reasonable grounds to bar Xu from Canada, and the IAD affirmed the Immigration Division’s decision. The IAD held that the PLA Information Engineering University was a university with a “broad mandate” and that it was inaccurate to say that all members of the university were actively involved in signals intelligence and cyber espionage.Footnote 58 There was no evidence to suggest that Xu had himself partaken in activities related to signals intelligence and cyber espionage.Footnote 59 The Federal Court found the IAD’s decision to be unreasonable because the IAD had failed, among other issues, to fully address the minister’s objections and had placed too much weight on the expert testimony of Professor Sida Liu, a China studies scholar whom the court noted was not an expert on the Chinese military.Footnote 60
The caveat is that three cases do not a comprehensive data set make. My reflections are preliminary in nature, and the picture may well shift as time goes on and Chinese nationals continue to file applications for judicial review. Yet the three cases furnish a useful starting point. Two lessons on the racial implications of Canada’s hardened China strategy emerge from a close reading of Li, Geng, and Xu. The first lesson is that there is strong evidence of the securitization of Canada’s immigration processes. The fact that the federal court system has dealt with at least three applications of judicial review involving allegations of Chinese espionage over the last two years indicates that security-based review has become more common and contested in the wake of increased Sino-Canadian tensions.
A mere uptick in espionage-related cases is not necessarily problematic. What is problematic is the risk that administrative decision-makers will adopt an overly broad conception of national security and thus make negative findings against individuals who are not in fact acting or likely to act in the employ of Chinese security organs. For example, in Geng, the Federal Court criticized the administrative decision-makers’ “overzealous” efforts to demonstrate that Geng was involved in the PLA’s signals intelligence efforts.Footnote 61 Geng had disclosed his affiliation with the Luoyang Foreign Languages Institute to Canadian officials in the 1990s. Administrative decision-makers had evidently not found that affiliation to be problematic for they continued to issue visas to him. The court concluded that the administrative decision-makers had adopted an “overreaching” definition of “facilitation … in the context of espionage.”Footnote 62 Geng demonstrates that at least certain administrative decision-makers have adopted capacious understandings of national security.
Li demonstrates similar risks. In Li, the Federal Court sided with the visa officer and proffered a broad definition of espionage. It was reasonable, the court held, for the officer to deem Li inadmissible on the basis that Li might share information from his microfluidics research with Chinese officials in the future. Yet Dr. Carolyn Ren, Li’s proposed supervisor, had stated in a letter that the field of microfluidics did not easily lend itself to military applications.Footnote 63 There is at least a prima facie case that the officer in Li’s case was overzealous in his determination. Not every graduate of Beihang University engages in espionage. Were the national security risks in this case so significant that the visa officer was correct, as a policy matter, to deem Li inadmissible? I would suggest no, even if I find little to quibble with in Crampton CJ’s legal determination that the visa officer’s conclusion was reasonable under Canada (Minister of Citizenship and Immigration) v Vavilov. Footnote 64
There is no evidence in the record of these three cases that administrative decision-makers acted due to racial animus. Indeed, the decision-makers — even in the Geng case — sourced their findings in reliable evidence.Footnote 65 Yet an over-emphasis on national security arguments can lead to problematic foreign policy and racial consequences. First, the securitization of Canadian immigration law may lead decision-makers to turn away Chinese students who would not have advanced the PRC’s objectives and who would instead have made major contributions to Canadian research and development. This may not represent a legal harm; after all, the Supreme Court of Canada has declared that the “most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country.”Footnote 66 Yet, given that Canada has historically benefited from the contributions of some of the world’s brightest researchers and innovators, the loss of a large number of innocent Chinese students and professionals will inhibit Canadian competitiveness. Second, the over-targeting of potential Chinese immigrants based on spurious national security grounds could well lead to increased suspicion of Chinese Canadians. Chinese Canadians who have close family and professional ties to the PRC may face questions as to where their true loyalties lie. In some cases, such accusations may be well founded. But in most cases, these accusations will be alarmist and misplaced and may lead some Chinese Canadians to avoid close contact with the Canadian state, thereby imperilling the prospects of a consultative and community-based Canadian foreign policy.Footnote 67
The second lesson is that the bench may offer some protection against the worst excesses of securitization. Geng is a fine example of a court guarding against over-emphasis on spurious national security considerations. The court’s description of the administrative decision-maker’s denial of admission as “particularly harsh,” and its robust scrutiny of the decision-maker’s reasons indicate that Canadians should not be hasty in castigating the entire state apparatus as racist.Footnote 68 It is true that in Li and Xu, the court sided against Chinese nationals; in the latter case, the court even overturned the finding of the IAD, which closely resembled the Immigration Division’s conclusion that Xu was admissible to Canada.Footnote 69 Yet a focus on results alone is unhelpful at this early stage. The federal courts have already exhibited their capacity to serve as a check on immigration securitization, and there is no reason to suspect that they will depart from the expectations of fair judging in future applications for judicial review. In sum, while there is proof of the securitization of Canadian immigration law, there are strong indications that the bench will reject at least some manifestations of that trend.
B. Rules on research partnerships
Just as the Canadian government has increasingly become worried about the risk that Chinese immigrants to Canada will engage in espionage, so too has it increasingly focused on the risk that researchers based at, or working with, Canadian institutions will impermissibly transfer technology, data, or innovations to PRC institutions. Such fears are reasonable. Under the Thousand Talents Plan, the PRC has “offered salaries, funds, and labs to encourage researchers to transmit knowledge to China.”Footnote 70 For example, Charles Lieber, a former chair of Harvard University’s Department of Chemistry and Chemical Biology, signed a three-year contract with the Wuhan University of Technology in 2012;Footnote 71 under the contract, Lieber earned US $50,000 a month from the school and, in return, published articles, organized international conferences, and applied for patents on behalf of the school.Footnote 72 A federal jury convicted him in 2021 for lying to federal investigators about his ties to the Thousand Talents Plan, among other offences.
Nor are such incidents confined to the United States. The Canadian Security Intelligence Service discovered that two Canadian citizens of Chinese ethnicity — Qiu Xiangguo and Cheng Keding — who worked at the National Microbiology Laboratory in Winnipeg, had flagrantly breached security and research protocols. The service discovered that Qiu was involved with several PRC-run “talents programs.”Footnote 73 Both Qiu and Cheng breached security protocols by allowing unvetted scholars from China into the Winnipeg laboratory; some of these scholars “attempted to improperly remove materials from the lab.”Footnote 74 The service’s revelations caused a national scandal: the Liberal government and the Public Health Agency of Canada refused “to release documents related to the firing” of the two scientists, leading then Speaker of the House of Commons Anthony Rota to take the government to court.Footnote 75 In the light of the Winnipeg scandal, it is obvious that Canada is a soft target for Chinese agents who would like to steal Canadian research insights.
In recommending that laboratories around the country adopt stricter protocols and in introducing new restrictions on the funding of projects, the Canadian government must take care not to deter research partnerships that pose no security risk and are of net benefit to Canada. As with the domain of immigration law, the Canadian government has increasingly securitized its rules on research partnerships. In July 2021, the Canadian government announced that researchers applying for funding from the Natural Sciences and Engineering Research Council for projects that involved “foreign researchers or private-sector organizations” would have to complete a risk assessment form.Footnote 76 Under the assessment process, “Canadian security agencies and a team of scientists” would review “higher-risk” projects and, if the risk was too high, prevent the funding of the project.Footnote 77
Then, in February 2023, the government announced its new Policy on Sensitive Technology Research and Affiliations of Concern. Under this policy, which applied beginning in 2024, a research funding application “to the federal granting councils and the Canada Foundation for Innovation that advances a sensitive technology research area will not be funded” if any of the researchers are “affiliated with, or in receipt of in-kind support” from entities that threaten Canada’s national security. The government has listed eleven “sensitive technology research areas,” which include research domains such as “robotics and autonomous systems” and “aerospace, space and satellite technology.”Footnote 78 The government has also published a list of named research organizations, which include institutions with an obvious military nexus, such as the Academy of Military Medical Sciences, as well as large multidisciplinary institutions, such as Sichuan University.Footnote 79
In short, the government has transitioned from a multifactorial assessment process to a bright-line one. Under the 2021 regime, researchers would submit a risk assessment form and self-evaluate the national security risks associated with the project in question; security officials and scientists would then review the application. In contrast, the new regime offers a clear formula: if a researcher is working on a listed topic, they cannot themselves share connections with, or partner up with, an individual who shares connections with a listed institution. The major advantage of the bright-line approach is its clarity:Footnote 80 a researcher only needs to check the two lists to determine whether their project can receive funding. The disadvantage is that the bright-line approach removes a measure of nuance from the assessment process. Is it truly necessary from a national security perspective to prevent Sichuan University researchers who work on 4D printing from cooperating with Canadian researchers? If the answer is in some cases but not in all cases, then the bright-line approach will have foreclosed instances of innocuous research collaboration.
Researchers have warned that the gradual hardening and securitization of rules surrounding research collaboration may lead to discrimination against researchers of Chinese heritage. Christopher Parsons, evaluating the July 2021 framework, warned that researchers who held Chinese citizenship would likely “be regarded as inherently riskier than colleagues who pursue similar topics, but who hold Canadian, American or European citizenship.”Footnote 81 The security assessment process would “certainly reify biases against some Canadian researchers on the basis of their nationality.”Footnote 82 Similarly, Creso Sá has heavily criticized the recent dual list approach.Footnote 83 Sá notes that the policy will do little to discourage inappropriate research relationships since Chinese institutions can easily fund willing research partners through covert means. Instead, the dual list approach will inhibit Canadian research and development. Sá further warns that immigration officials may begin to rely on the dual list approach in evaluating the files of Chinese immigrants, thereby entrenching an “expansive definition on whom [sic] might be a potential spy.”Footnote 84 The securitization of grant making certainly has the potential to increase anti-Chinese discrimination. Security officials may begin to see all Chinese Canadian researchers in the hard sciences as potential threats. Chinese Canadian researchers may proactively choose to pursue their work in other countries or to switch their fields to avoid increased scrutiny. The Canadian research ecosystem has always benefited from ties to researchers and institutions around the world; an approach that disincentivizes hard science collaboration with China may incur more costs than benefits.
Again, this is not to say that all research collaboration with Chinese institutions benefits Canada’s national interests. The Winnipeg scandal demonstrates that Chinese agents have in the past targeted the fruits of Canadian innovation. Yet the cure cannot be worse than the disease. The government’s recent dual list approach is overinclusive and removes the room for nuance that the 2021 security assessment process theoretically provided. Parsons helpfully suggests, with respect to the 2021 guidelines, that the Natural Sciences and Engineering Research Council publish annual reports explaining “rationales for assessments and the outcomes.”Footnote 85 A move back to a multifactorial assessment, combined with a requirement that funding bodies provide written reasons for funding denials, will force decision-makers to focus their thinking and articulate logical and defensible conclusions. While funding bodies may be unable to go into full detail for each file, given national security and research confidentiality concerns, even brief reasons would offer more in the way of due process to researchers than does the current regime.
C. Investment law
A third domain of domestic law that has evolved in response to Sino-Canadian tensions is investment law. The Canadian government has worried about investments by Chinese private firms and state-owned enterprises in strategic areas of the Canadian economy for well over a decade now. For example, in 2012, the Investment Review Division of Innovation, Science and Economic Development Canada informed NavInfo, a Chinese digital map services company, that the latter’s proposed acquisition of PCI, a Canadian digital mapping firm, “would not be approved on the basis of national security.”Footnote 86 Two years later, a Canadian subsidiary of the Beida Jade Bird Group Company, a “China-based investment holding company principally engaged in the manufacture and sales of electronic fire equipment,”Footnote 87 announced its plans to build a major manufacturing plant where it would produce “fire-alarm systems for the Chinese market” in Saint-Bruno-de-Montarville, Quebec.Footnote 88 The Globe and Mail reported that the government “conducted a national security review and … rejected the location of the factory as too close to the headquarters of the Canadian Space Agency.”Footnote 89
When the Liberal Party formed government in 2015, it seemed initially that the Liberals would take a more permissive approach towards Chinese investment. In a controversial decision, the government approved the takeover by O-Net Communications Group, a company that supplies optical communication devices, of ITF Technologies, a Montreal-based firm that specializes in fibre-laser technology.Footnote 90 The previous Conservative government had, “acting on advice from national-security agencies, rejected the transaction,” but the new government agreed to a fresh national security review. In March 2017, the government announced that, based on this second review, the takeover could proceed. Tony Clement, the Tory public safety critic, slammed the government for “ignoring national-security concerns that were valid two years ago and are valid now.”Footnote 91 Similarly, the government did not conduct a formal security review of Hytera Communication’s proposed acquisition of Norsat International, a “company with military customers including the Pentagon.”Footnote 92
Yet despite the O-Net and Hytera examples, the Liberal government has taken a more scrutinizing approach towards national security review in recent years. Two high-profile cases demonstrate the Liberals’ hardened posture towards national security review. In 2018, the government blocked the takeover of Aecon by the “overseas investment and financing arm” of a Chinese state-owned enterprise.Footnote 93 At the time, Aecon, a construction and engineering firm, offered “construction and refurbishment support to clients in the nuclear industry.”Footnote 94 In late 2020, the government also blocked a Chinese state-owned mining company’s proposed takeover of TMAC Resources, which owned and operated a gold mine in Hope Bay, Nunavut. Although the ministry spokesperson did not disclose the reason for the denial, a senior government official indicated to the Globe and Mail that “the rejection was motivated by national-security concerns.”Footnote 95
The government has introduced in parallel reforms aimed at increasing both the robustness and the transparency of the investment review regime. First, as Brian Facey and Kevin MacDonald note, the Ministry of Industry issued and has subsequently updated Guidelines on the National Security Review of Investments, which clearly outline procedures for the “administration of the national security review process under Part IV.1 of the Investment Canada Act” and set out the factors that the government considers when “assessing the national security risk.”Footnote 96 The government also indicated its concern in these guidelines that investments by state-owned enterprises “may be motivated by non-commercial imperatives that could harm Canada’s national security.”Footnote 97 The promulgation of the guidelines demonstrates an increased emphasis on national security review and suspicion of state-owned enterprises, particularly those affiliated with hostile states such as the PRC.
Second, the government published a policy regarding state-owned enterprises’ investment in the critical minerals sector in late 2022. The policy bluntly states that “applications for acquisitions of control of a Canadian business involving Critical Minerals by a foreign SOE will only be approved on an exceptional basis.”Footnote 98 The policy characterizes critical minerals as “strategic assets that contribute to Canada’s national security as vital inputs to defence and high technology.”Footnote 99 China produces the majority of the world’s critical minerals, and American policy-makers have long advocated for the need to diversify critical mineral supply chains.Footnote 100 The Canadian government’s new stance on investment into the critical minerals sector is yet another example of the “trend towards increased scrutiny of foreign investment by Chinese investors” and of close cooperation with allied jurisdictions.Footnote 101
Third, Parliament enacted an Act to Amend the Investment Canada Act in March 2024.Footnote 102 Perhaps the biggest change is that non-Canadian entities must now engage in a pre-closing notification if they propose to acquire a Canadian business that engages in a “prescribed business activity” and would gain access because of the acquisition to “non-public technical information” or the “power to appoint or nominate any person who has the capacity to direct the business and affairs of the entity.”Footnote 103 Not all of the Act’s reforms aim at closer scrutiny of Chinese investments and, indeed, some provide the minister with increased flexibility. Among other measures, the Act empowers the minister to “negotiate binding undertakings with the investor” rather than forcing the minister to rely on Cabinet to approve binding undertakings.Footnote 104 As legal observers have noted, this concentration of powers in the minister allows for the imposition of “more tailored remedies overall.”Footnote 105 A minister’s ability to deploy more tailored remedies would in theory abet, rather than hinder, Chinese investment into the Canadian economy.
There is little doubt, however, that Parliament and the executive branch have sharpened the national security review of investments and made it more difficult for Chinese companies to invest in Canada. This increased scrutiny likely flows from domestic criticism of the Liberal government’s handling of the O-Net and Hytera transactions, pressure from the United States to strengthen the national security review process,Footnote 106 and a growing awareness by the Liberal government of the risks of unrestricted Chinese investment into strategic sectors of the Canadian economy. Might a hardened investment review regime lead to increased anti-Chinese discrimination? While it is impossible to dismiss the risk entirely, the investment review reforms arguably pose less of a threat to harmonious race relations than the recent securitization of immigration law and the rules on research collaborations. The distinguishing factor is that investment review targets foreign entities rather than foreign individuals. It seems less problematic to deny a proposed acquisition by a Chinese state-owned enterprise with close ties to the Chinese military than to deny a study permit for a Chinese citizen who has studied at a university with ties to the Chinese military; in the latter case, an individual faces up to the powerful apparatus of the state, whereas, in the former case, the state issues a denial to a well-funded business organization. Still, to the extent that hardened security review leads Canadians to perceive China as a problematic or evil actor, it could lead to increased discrimination against Chinese Canadians.
One way to guard against sensationalism is to offer increased transparency. Unlike in the domain of immigration law, the courts are unlikely to play much of an oversight role; a foreign entity can apply for judicial review of the government’s national security decision, but such a challenge would have to focus on “alleged procedural unfairness or bias rather than the substantive grounds for the decision.”Footnote 107 Transparency must come from the minister then. Obviously, the minister cannot offer “radical transparency”Footnote 108 by making public the full reasons for an order directing a non-Canadian “not to implement [an] investment” or requiring a non-Canadian to “divest themselves of control of the Canadian business or their investment in the entity.”Footnote 109 On the other hand, the minister of industry’s recent statement that “he will begin to announce the outcomes of [such] orders” is good news but places the bar too low.Footnote 110 In November 2024, for example, the government of Canada announced that it had ordered the wind up of the “Canadian business carried on by TikTok Technology Canada, Inc.”; this was a momentous decision, but the government did not provide much reasoning in support of the stated outcome.Footnote 111 To the extent that the minister can include some details on the reasons for an approval or denial, such transparency will provide increased clarity for investors — thereby redounding to Canada’s economic benefit — and may reduce the risks of the wholesale demonization of the PRC and all those who bear a nexus to the PRC.
D. Property law
The first three domains that I have discussed — immigration law, rules on research partnerships, and investment law — are all domains that have evolved in response to Sino-Canadian relations. The fourth domain upon which I focus — property law — features something of a reverse trend, though it also clearly exhibits signs of increased securitization. In this sub-section, I first discuss the extent to which the Canadian government has increasingly approached property law through a national security lens. I then discuss how increased restrictions on the acquisition of property by foreigners have obviated the need for laws that specifically target Chinese citizens’ ability to buy and lease property. Finally, I contend that, while these restrictions may not violate the Canadian Constitution, they could well lead to an increase in discrimination against Chinese Canadians and, in the longer term, imperil Global Affairs Canada’s hopes for a more consultative China strategy.
In recent years, Canadian government officials have become increasingly worried that Chinese individuals and investors may be purchasing property for nefarious purposes. The Canadian government has been able to deal with such concerns partially through the framework of the Investment Canada Act. Footnote 112 Investment law and property law are, after all, closely related domains of law.Footnote 113 Thus, the Canadian government’s decision to block Beida Jade Bird Group from establishing a fire-alarm manufacturing plant near the headquarters of the Canadian Space Agency is an example of the securitization of both investment law and property law.Footnote 114 The Investment Canada Act is an imperfect tool, however; it does not allow the Canadian government to crack down on all instances of PRC-backed property acquisitions that threaten Canadian national security interests. Take, for example, recent revelations that the PRC regime operates undeclared “police service stations” in Canada.Footnote 115 Human rights groups have warned that the PRC has set up these stations so that Chinese agents can “harass, threaten, intimidate, and force targets to return to China for persecution.”Footnote 116 These undeclared centres of repression no doubt violate the bedrock principle of international law: a nation-state’s sovereignty.Footnote 117 They also invoke concerns about Canadian property law and raise the question of whether jurisdictions should introduce restrictions to prevent the future establishment of extraterritorial police stations. Yet it is unclear that the establishment of these stations violates the Investment Canada Act.
Why then have Canadian legislators not followed the example of American jurisdictions that have introduced legislation that specifically targets Chinese citizens’ acquisition of property?Footnote 118 One hypothesis is that parallel changes in Canadian property law have obviated the need for more specific legislation that explicitly targets Chinese nationals. Here, I am thinking of increased restrictions on foreign citizens’ ability to purchase residential real estate in Canada. Canada faces a “housing affordability crisis as a rapidly increasing immigrant population has far outpaced the number of available homes.”Footnote 119 This housing crisis has manifested in different ways across the country. Housing prices in the Lower Mainland of British Columbia are particularly high. In terms of housing affordability, Vancouver is the “third least-affordable city in the world after Hong Kong and Sydney.”Footnote 120 Concerns about the Canadian housing market long precede the recent deterioration in Sino-Canadian ties.Footnote 121 As the affordability crisis has metastasized in recent years, Canadian jurisdictions have attempted to cool the market by placing restrictions on the foreign acquisition of property.
There is an ongoing debate as to the extent to which foreign purchasers have in fact contributed to the housing crisis. Industry specialists and economists have indicated that foreign purchasers are not a major cause of high property prices.Footnote 122 Thus, the BC Real Estate Association’s chief economist has noted that “there is evidence of significant sums of foreign money in Vancouver real estate,” but that these sums are concentrated in the “high-end market”; high-end houses constitute a “small fraction” of total housing stock in Vancouver.Footnote 123 The statistics do not paint foreign purchasers as the central cause of housing unaffordability either. In Ontario, non-residents own only 3 percent of residential homes, and, in British Columbia, non-residents own only 4.1 percent of residential homes.Footnote 124 Indeed, observers have warned that Canadian legislative authorities have been keen to scapegoat Chinese buyers “for Canada’s housing woes, when the real solution lies in increasing supply.”Footnote 125
The trouble from a politician’s point of view is that increasing the housing supply is not a short-term solution. In contrast, a legislature can institute a crackdown on foreign involvement in the housing market and give off the impression of decisiveness and leadership. Thus, in August 2016, British Columbia imposed a foreign buyer’s tax, which imposed an “additional 15% transfer tax on a purchaser of residential property in the Greater Vancouver Regional District who was not a Canadian citizen or permanent resident.”Footnote 126 The province subsequently bumped that tax up to 20 percent and expanded the number of districts to which the tax applied.Footnote 127 Then, in 2023, the federal Prohibition on the Purchase of Residential Property by Non-Canadians Act came into force. The act prohibits non-Canadians from purchasing, “directly or indirectly, any residential property.”Footnote 128 It was supposed to apply for an initial period of two years, but, in 2024, the federal government announced the extension of the ban until 1 January 2027.Footnote 129 The ban does not apply to Canadian permanent residents.Footnote 130 Critics have argued that the ban has done little to solve the national housing crisis and have painted the measure as a “political manoeuvre.”Footnote 131
I am not primarily concerned here with the economic efficacy of the ban and am instead concerned with its effects on the domestic treatment of Chinese Canadians and on Sino-Canadian relations. I examine three questions related to these recent property law measures. First, are these measures overtly racist? Second, do they violate the Constitution? Third, do they create indirect racial harms? The answer to the first question is no. British Columbia’s tax on foreign buyers and the federal ban on foreign ownership do not target specific nationalities. The Canadian measures do not single out Chinese buyers as a threat to the property market and instead speak in broad terms. Certain observers might argue that the differential treatment of citizens and non-citizens is itself problematic.Footnote 132 But such differential treatment flows from the very concept of the nation-state. In my view, Canada’s differential treatment of citizens and non-citizens is far less problematic than the United States’ singling out of Chinese citizens.Footnote 133 Current Canadian property law measures do not target Chinese citizens on account of their culture or ethnicity but instead treat Chinese citizens the same as other foreign citizens, none of whom enjoys a right to own property in Canada. Thus, although the Canadian measures may in many cases lead to the same effects as legislative bills in Florida and Louisiana that prevent Chinese citizens from purchasing residential property near sensitive locations, the neutral framing of the Canadian measures goes a long way in reducing negative racial implications.
Notwithstanding the neutral framing of these laws, do the property law restrictions violate the Canadian Constitution? The Canadian judicial system has already offered a partial answer to that question: the BC foreign buyers’ tax is constitutional. In Li v British Columbia, the BC Court of Appeal had to assess the constitutionality of the province’s foreign buyers’ tax.Footnote 134 The court held that the tax properly fell within the province’s legislative competence since the law is primarily in relation to “property and civil rights under s. 92(13) of the Constitution Act” of 1867.Footnote 135 Furthermore, the court held that the tax did not violate section 15(1) of the Charter, which provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”Footnote 136 The appellant failed to demonstrate that the foreign buyers’ tax created a distinction based on citizenship or national origin.Footnote 137 Non-citizens fell on both sides of the supposed demarcation; some non-citizens had to pay the tax, but some non-citizens did not have to pay the tax due to the provision’s exceptions for individuals with “present or imminent resident status.”Footnote 138 Thus, the law did not create a distinction based on an enumerated or analogous ground and did not violate section 15 of the Charter. Some of the same reasoning would likely apply to a constitutional challenge to the federal government’s ban on the foreign purchase of Canadian residential property. Recent Canadian measures that target foreign buyers as a class likely do not constitute a cognizable harm under the Constitution.
Yet such measures create indirect implications for domestic racial relations and Canada’s China strategy. Even if these measures do not create a cognizable legal harm, they do play into the narrative that Chinese nationals are pilfering Canadian resources. In an atmosphere of increased anti-Chinese hostility, certain Canadians may view Chinese Canadians, not all of whom are the monied relations of corrupt Chinese Communist Party officials, as a suspect class. To take an individual example, Joanna Chiu, a Canadian reporter who has covered Sino-Canadian relations for multiple years and criticized certain of the PRC’s policies, has written of the racism she encountered in her efforts to purchase a condominium unit.Footnote 139 Chiu puts it well: “If you chat with any Asian person in Vancouver, they’re likely to say that they’ve noticed an uptick in racism, of people who voice their assumptions that they are recent migrants with bucketloads of cash and are driving up the real estate prices for ‘locals’ and ‘real Canadians.’”Footnote 140 In combination with statistics that disclose an uptick in anti-Asian hate in Vancouver,Footnote 141 Chiu’s reporting makes clear that many Chinese Canadians encounter racism in navigating the housing market. While legislators have not framed the tax and ban on the foreign purchase of residential properties in a racist way, these measures have done little to counter heightened suspicion of Asian Canadians who engage in property transactions.
In turn, the rising tide of anti-Asian and anti-Chinese racism, at least in certain parts of the country, may imperil Global Affairs Canada’s efforts to draw upon the experiences and expertise of Chinese Canadians. If Chinese Canadians believe that the government is doing little to tamp down upon anti-Chinese hate, they may consequently be unwilling to advance the government’s foreign policy objectives. Chinese Canadians may be less likely to think of Canadian governments as allies and may instead refuse engagement with the government and politics. In sum, these neutrally framed measures may deepen anti-Chinese racism and compromise the ability of the Canadian government to pursue a more consultative foreign policy.
If the Canadian government insists on maintaining a ban on foreign property ownership, it must do much more to demonstrate that such a ban is evidence based and is in fact alleviating Canada’s housing crisis. If the empirical evidence is insufficient, then the Canadian government should lift the ban and prioritize measures that tackle the central problem with the Canadian housing market: the lack of supply. And, in either situation, the Canadian government must be cognizant of how the targeting of foreign buyers can lead to discrimination at home.
4. Towards a race-conscious China strategy
Canada is fast waking to the reality that the world has become much more dangerous in recent years. Gone are the days of American unipolarity when Canada enjoyed security on a dime and punched above its weight. Today’s world is marked by a great power conflict — between the United States and China — as well as by the resurgence of inter-state armed conflict and the unravelling of the liberal international order. The Canadian executive branch is rising to meet the challenge: Global Affairs Canada has published its rousing Indo-Pacific Strategy and has established a Centre for China Policy Research and Coherence to “strengthen national policy coordination and China-related research and analysis.”Footnote 142 These foreign policy decisions are steps in the right decision. Yet, as this article has argued, an isolated focus on the diplomatic and foreign policy elements of Canada’s China strategy can only lead to failure.
Domestic law and foreign policy are interconnected. Canadian authorities have responded to Sino-Canadian tensions by reforming key aspects of Canadian immigration law, rules on research partnerships, investment law, and property law. Moreover, parallel legal reforms — most notably, with respect to property law — affect Canada’s ability to prosecute a successful China strategy. All these legal or operational reforms threaten to indirectly increase, to varying degrees, anti-Chinese discrimination in Canada and to complicate Ottawa’s efforts to enlist Chinese Canadians in its foreign policy efforts. While I have suggested domain-specific reforms for Canadian policy-makers to consider, I close with several cross-cutting solutions that will go a long way in reducing the negative racial implications of Canada’s China strategy, understood as comprising both traditional foreign policy elements and domestic legal tools.
First, Canadian governments need to institutionalize consultation with China experts. China is a difficult country to understand. In forging policies that bear a China nexus, the federal and provincial governments would do well to consult experts who speak Mandarin and possess an intimate understanding of Chinese history, culture, and policy. There are signs that various components of the Canadian state have already recognized the need to consult China expertise. Thus, in the Xu case, the Federal Court mentioned how the Immigration Appeal Division had drawn extensively on the evidence of Sida Liu, a “socio-legal researcher” and formerly a professor of Chinese law and society at the University of Toronto Faculty of Law.Footnote 143 All branches of the state should make a habit of consulting China expertise when relevant.
Furthermore, as Matthew Erie has recommended that, in the context of the United States, “China knowledge needs to be baked into decision-making at all levels, so not just the federal government but also state and local governments, too.”Footnote 144 It does not make economic sense for all of Canada’s provincial, territorial, and municipal governments to establish their own centres of China research, but perhaps these jurisdictions should be able to draw upon an expanded Global Affairs Canada Centre for China Policy Research and Coherence. As a final note, increased consultation of China expertise represents a two-way street. Martin Regg Cohn, speaking at a recent gathering of Canada’s top China scholars, concluded that academics “must continue their research in China, but also redouble their outreach in Canada.”Footnote 145 Canadian experts on China have an ability — and perhaps a duty too — to shape and improve Canada’s multifaceted strategy towards China.
Second, I have noted how Canadian policy-makers have securitized various domains of domestic law in recent years. There is no doubt that the PRC poses threats to Canada’s national security. But, in meeting that national security threat, Canadian policy-makers must be careful not to introduce a cure that is worse than the sickness. The erection of an opaque national security state, wherein all Chinese Canadians are suspected of being fifth columnists, would threaten the civil liberties of all Canadians. The antidote to the national security state is institutionalized transparency. If intelligence agencies and scholarship review boards must block a given research partnership that threatens Canadian interests, they should have to provide brief reasons why a denial is appropriate. Administrative decision-makers should have to publish reasons that indicate the outcome of national security decisions, even if these reasons are partially redacted. All national security decisions by administrative decision-makers should be subject to judicial review, and judges must take care not to over-defer to the administrative state’s national security arguments.
Finally, the Canadian executive branch must match rhetoric with action in building out a consultative China strategy. Canadian policy-makers should not be beholden to the opinions of diaspora members; after all, Global Affairs Canada must execute a China strategy not in the interests only of Uyghur Canadians, Tibetan Canadians, or Chinese Canadians but also on behalf of the entire country. An over-emphasis on diaspora opinion can lead to the capture of state policy by community groups. Yet, at the same time, Canadian policy-makers must regularly ensure that their policies are not having an overly negative impact on diaspora communities. Thus, the Centre for China Policy Research and Coherence should regularly consult with community groups to ensure that it is considering the racial implications of its policies, even if such consultation is unlikely to lead to a uniform response on the part of affected communities. Such consultations offer procedural justice by granting community members an opportunity to voice their concerns and may in turn lead to a more substantively just China strategy.
