Introduction

The House of Commons Special Committee on Canada–China Relations (the “Special Committee”) is studying Canada’s foreign and domestic policies in relation to China. It is doing so in the context of significant geopolitical shifts that are emerging and that, concurrently, are affecting Canada’s national interests.

In recent months, the Special Committee has studied the situation in Hong Kong, hearing the perspectives of academics, human rights defenders, legal experts, representatives of non‑governmental organizations, concerned individuals, Canada’s Minister of Immigration, Refugees and Citizenship and its Minister of Foreign Affairs, as well as Canadian government officials. Three factors sustained that focus. First, the deep and long-standing ties between Canada and Hong Kong make events there of direct concern to Canadians and the Government of Canada. Second, there is a need to respond to the disruption to Hong Kong’s way of life that occurred when the People’s Republic of China (PRC) decided to impose a national security law on Hong Kong. Third, the PRC government’s actions in relation to Hong Kong represent a challenge to the rules-based international order and are contrary to the international treaty that established the post‑1997 parameters for Hong Kong’s governance. This has had a chilling effect on Hong Kong’s public and political life.

The Special Committee’s study was conducted, and this interim report was prepared, with a sense of urgency given the risks to Canadians and Hong Kong people that were highlighted. Consequently, this interim report does not exhaustively examine all issues of concern to Hong Kong’s people or Canada’s relationship with Hong Kong. In a certain respect, issues arising from the events of 2020 and early 2021 have overtaken many of the debates that have dominated Hong Kong’s politics since the 1997 handover. While demands that emerged through years of civic activism were aspirational in nature, including the desire to see genuine universal suffrage in Hong Kong, the concern now is defensive: pursuing measures that can prevent the complete erosion of Hong Kong’s high degree of autonomy and distinct character. Instead of advancing democratic reform, the struggle – for now – is to hold ground and regain as much as possible of what has been lost in Hong Kong or is at risk of becoming so.

As the observations and recommendations in this interim report make clear, the Special Committee believes that Canada should play a leading role as part of a long-term multilateral effort to support the freedoms that were supposed to have been guaranteed in Hong Kong. At the same time, there is a clear and immediate need to help the people who have taken great risks for the sake of their liberties and their desire to live under the rule of law, not under the arbitrary application or interpretation of laws – sometimes known as rule by law.

One Country, Two Systems

Hong Kong became a Special Administrative Region (SAR) of the PRC on 1 July 1997 following a handover that occurred after more than 150 years of British rule. Hong Kong’s importance as a financial, academic and journalistic hub has been a function of its autonomy from mainland China concerning political and legal systems, as well as economic principles. For several years, however, concerns have existed about fulfillment of the obligations undertaken by China’s central government in relation to Hong Kong and about its encroachment on Hong Kong’s affairs.

The Joint Declaration

To establish parameters for Hong Kong’s future governance, in 1984, the governments of Great Britain and the PRC negotiated the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (the “Joint Declaration”). It stipulates that Hong Kong “will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government.”[1]

The Joint Declaration provides for Hong Kong to be “vested with executive, legislative and independent judicial power, including that of final adjudication,”[2] and specifies that the “current social and economic systems in Hong Kong will remain unchanged, and so will the life‑style.”[3] That includes freedoms of the person, speech, the press, assembly, association, travel and movement, among other personal freedoms, alongside protections in relation to private property, ownership of enterprises, inheritance and foreign investment.[4] The Joint Declaration also gives Hong Kong’s government responsibility for maintaining public order.[5] Under the Joint Declaration, Hong Kong’s autonomy is to endure for 50 years (i.e., until 2047).[6] The two governments registered the Joint Declaration as a treaty with the United Nations (UN) on 12 June 1985.

Hong Kong is governed by its Basic Law, which enshrines the “one country, two systems” framework. It was adopted by the National People’s Congress in 1990 and entered into force on 1 July 1997. The Basic Law outlines the relationship between China’s central government and the Hong Kong SAR, the fundamental rights and duties of Hong Kong’s residents, and the SAR’s political structure, economy, and services in relation to education and culture.[7] In addition to codifying freedoms outlined in the Joint Declaration, the Basic Law stipulates that the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong “shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”[8]

The Basic Law establishes Hong Kong’s “high degree of autonomy.” However, while Hong Kong’s courts are empowered to interpret provisions of the Basic Law that are within the limits of the SAR’s autonomy, the Standing Committee of the National People’s Congress has the ultimate power of interpretation. Moreover, the power of amendment is vested in the National People’s Congress.[9]

A High Degree of Autonomy

Concerns about the integrity of Hong Kong’s high degree of autonomy have manifested at different points in time. Those concerns have been generated by interpretations and decisions that were perceived as undermining Hong Kong’s distinct institutions, as well as the provisions – and spirit – of the Joint Declaration and Basic Law.[10]

Protests in 2003 led Hong Kong’s government to withdraw a national security bill – intended to implement Article 23 of the Basic Law – that would have prohibited various forms of subversion against the PRC government. The protests reflected concerns about the bill’s over-broad nature and its potential curtailment of civil liberties.[11] In 2012, youth, parents and teachers protested proposed guidelines for Hong Kong’s school curriculum that would have introduced greater “Moral and National Education.”[12] Those proposed guidelines were eventually “shelved.”[13] Nevertheless, concerns about the insertion of national education in Hong Kong’s educational system exist today,[14] which seems to demonstrate a desire on the part of the PRC government to impose what is known as “patriotic education” uniformly throughout its territory.[15]

In 2014, the 79-day Umbrella Movement – which converged with the Occupy Central Movement initiated the year before – emerged in response to dissatisfaction with the pace and extent of democratization in Hong Kong. The movement was galvanized by proposed changes to Hong Kong’s electoral system issued by the Standing Committee of the National People’s Congress. Those changes would have allowed Hong Kong people to vote for their chief executive, a reform that many in Hong Kong argue was promised by the Joint Declaration and the Basic Law.[16] However, the choice was to have been made from among a small group of candidates vetted by a pro-PRC nominating committee. The changes were therefore rejected by the pan-democrats in Hong Kong’s Legislative Council.[17] Because elections by universal suffrage for all members of Hong Kong’s Legislative Council were to follow after the method for electing the chief executive had been resolved, elections for the Legislative Council are also unchanged.[18]

In 2019, citizen‑led protests involving a significant proportion of Hong Kong’s population emerged in response to the Hong Kong government’s introduction of a bill that would have allowed people in Hong Kong charged with certain crimes to be extradited for trial in mainland China. Although the bill was suspended in mid-June 2019 and formally withdrawn in October 2019,[19] protests – characterized by China’s central government and Hong Kong’s government as “riots” influenced by “foreign forces”[20] – continued for months. Demands centred on calls for police and government accountability, but also a broader desire to see Hong Kong’s way of life preserved and democratic reforms advanced. Protesters encapsulated their movement with the slogan “Five demands, not one less!”[21] Only one of those demands – withdrawal of the extradition bill – has been met.[22]

While acts of violence did occur during some of the 2019 protests in the face of an intensifying police response,[23] numerous reports suggest that the protests were large‑scale and sustained in nature and that they reflected a broad social movement.[24] Davin Wong, Director, Youth Engagement and Policy Initiatives, Alliance Canada Hong Kong, told the Special Committee that “a lot of protesters in Hong Kong are of different ages, different genders, from all walks of life.”[25] Among the diverse people who have participated are students, but also – according to Sharon Hom, Executive Director, Human Rights in China – “social workers, civil servants, journalists, [and] medical workers.”[26] Akram Keram, Program Officer for China, National Endowment for Democracy, described how Hong Kong had “captured the attention of the world as millions of ordinary Hong Kongers took to the streets to protest a controversial extradition bill, which, over time, became a protest movement about the basic rights and freedoms of the Hong Kong people.” He also summarized the Hong Kong government’s lack of responsiveness to this movement in commenting that “the just and legal demands of Hong Kongers have been met with local officials’ indifference, suppression, arrests and breathtaking police brutality, all directly backed by the central government in Beijing.”[27]

According to the Hong Kong Police Force, since 9 June 2019, more than 8,300 people – many under 30 years of age[28] – have been arrested in connection with the protests.[29] Hong Kong Watch, a United Kingdom-based non-governmental organization, provides a higher and more recent estimate of more than 10,000 people having been arrested since that date, more than 2,300 of whom have been charged.[30] Many have been charged with “rioting” and “unlawful assembly.”[31]

Davin Wong is among those who participated in the protest movement. He spoke about his experience fleeing Hong Kong for Canada on 30 August 2019 after being “followed, beaten up and wounded by a man in a white T-shirt, which is a dress code known for pro-Beijing thugs.” Mr. Wong commented that 1 in 10 of his friends had “been arrested on bogus charges.” Rather than seeing the Hong Kong Police Force as a source of protection, he described a climate of fear, noted “their abuse of power and human rights violations,” and said that, “As an activist, the police see me as an enemy.”[32]

Elections for Hong Kong’s district councils were held on 24 November 2019. Commenting on what transpired, Akram Keram noted that Hong Kong citizens had “not simply or quietly given up their rights” and that the elections were held with a “record turnout.”[33] Unlike other elections in Hong Kong, these elections are conducted according to universal suffrage. Pro‑democracy candidates won 392 of the 452 seats, securing 17 of Hong Kong’s 18 local districts.[34]

In April 2020, 15 prominent political figures in Hong Kong were arrested, and then subsequently released on bail, for having participated in “unlawful assemblies” in 2019.[35] Elections for Hong Kong’s Legislative Council were scheduled for 6 September 2020.[36] In the lead-up, authorities disqualified 12 pro-democracy candidates – including four incumbent legislators – from running.[37] Invoking a colonial‑era Emergency Regulations Ordinance, on 31 July 2020, Chief Executive Carrie Lam announced that the elections would be postponed until 5 September 2021 due to concerns about the COVID‑19 pandemic.[38]

The National Security Law

In May 2020, it was revealed that the PRC was developing a new national security framework for Hong Kong. Without public consultation or the involvement of Hong Kong’s Legislative Council,[39] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the “National Security Law”) came into force on 30 June 2020, one hour before midnight and the anniversary of Hong Kong’s handover.[40]

Over-Broad and All-Pervasive

Witnesses generally agreed about the problematic aspects of the National Security Law. To summarize, they noted that the law:

• has a broad scope, covering vaguely defined activities of secession, subversion, terrorism and foreign collusion;
• curtails peaceful assembly and free expression;
• enables overreach, including through allowing people to be targeted for possessing flags, stickers and banners, and for wearing t-shirts with certain slogans and singing songs associated with the 2019 protest movement;
• contains maximum penalties of life imprisonment;
• applies to actions committed not only in Hong Kong but – potentially – anywhere else;
• provides the authorities with extensive powers, including to intercept communications without a court order, and to restrict or prohibit travel;
• weakens the oversight provided by, and the independence of, Hong Kong’s court system; and
• allows security agents from the PRC to operate freely in Hong Kong.

Witnesses highlighted specific concerns in relation to two institutions that the National Security Law created. One is the Committee for Safeguarding National Security of the Hong Kong SAR. It is chaired by Hong Kong’s chief executive, and is supervised by – and accountable to – China’s central government, which is responsible for designating a national security adviser to sit on the committee.[41] Now, there are also special units focused on national security within the Hong Kong Police Force and the prosecutorial service.[42] Michael C. Davis, Professor, Weatherhead East Asia Institute, Columbia University, and Global Fellow, Woodrow Wilson International Center, noted that the committee “has already issued regulations on how the police can behave, which enables searches without warrants, for one thing.”[43]

The second institution is the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong SAR. It is a PRC government agency tasked with guiding, overseeing and coordinating with the Hong Kong SAR authorities in relation to national security matters, and with gathering intelligence and handling cases that are determined to be a danger to national security.[44] With approval from China’s central government, upon receiving a request from the Hong Kong SAR government or on its own initiative, the office will exercise jurisdiction over cases that are deemed to be: “complex due to the involvement of a foreign country or external elements”; “serious”; or “a major and imminent threat” to national security.[45] In such cases, the office will initiate an investigation, the Supreme People’s Procuratorate will identify a prosecuting body, and the Supreme People’s Court will designate a court to adjudicate the matter.[46] The PRC’s Criminal Procedure Law, and “other related national laws,” will apply to procedural matters.[47]

The Office for Safeguarding National Security in Hong Kong is staffed by mainland national security authorities. While the National Security Law specifies that these staff must comply with the laws of the Hong Kong SAR,[48] they are also granted special privileges because the National Security Law does not subject them to the scrutiny of local authorities. For example, while performing their duties, the staff and their vehicles “shall not be subject to inspection, search or detention” by the Hong Kong SAR’s law enforcement officials.[49]

According to Professor Davis, the National Security Law “expressly says” that neither the Committee for Safeguarding National Security of the Hong Kong SAR nor the Office for Safeguarding National Security in Hong Kong are subject to judicial review by Hong Kong’s courts. In his assessment, “Hong Kong’s rule of law pretty much goes out the window here.” Professor Davis also observed that staff from mainland China “may not even be subject to any law, in a way, because under Hong Kong’s Basic Law, only laws in Annex III of the Basic Law apply in Hong Kong.”[50] Consequently, he suggested that, because local authorities have no jurisdiction over the office and PRC laws generally do not apply in Hong Kong, a “kind of secret police” has been created.[51]

Jerome A. Cohen, Professor and Faculty Director Emeritus, U.S.‑Asia Law Institute, New York University School of Law, remarked that the National Security Law “has brought extradition to Hong Kong,” as well as “a whole administration of criminal justice from the mainland to Hong Kong.” In Professor Cohen’s view, that is the law’s “principal accomplishment.”[52]

Professor Cohen also observed that “the vaunted independent legal system in Hong Kong has been truncated by the new law.” He noted that trials in Hong Kong for national security offences will be conducted by “special judges and without a jury,” although the risk of being transferred to mainland China also exists. According to Professor Cohen, that would involve the prospect of “long incommunicado detention, potential torture, denial of access to counsel, inability to meet with family or friends and then a trial before a Communist-dominated court.”[53]

Because appointments to the list of judges who can hear national security cases in Hong Kong are for a one-year term,[54] witnesses also raised concerns about judicial independence. Professor Davis explained that, if a judge on the list “acts or makes statements in any way that violate national security, then that judge will be dismissed from hearing such cases.” In his opinion, the separation of Hong Kong’s institutions from the mainland’s system – a necessary aspect of the “one country, two systems” framework – “has been totally collapsed.”[55]

The Special Committee heard that the National Security Law’s enforcement appears to have been made almost deliberately unpredictable. According to Alvin Y. H. Cheung, non‑resident Affiliated Scholar, US‑Asia Law Institute, New York University School of Law, “there can be no meaningful certainty as to what will or will not be treated as [a National Security Law] violation.” That is because the authorities have been given broad enforcement discretion. In his view, whether a case qualifies as a matter of national security, thus becoming subject to the “parallel legal system” described above, will depend “on the whim of the state.” Mr. Cheung emphasized that a situation in which “very little” has been said about how “discretion will be exercised or regulated” is “antithetical to the rule of law.”[56]

Extraterritorial Application

The National Security Law applies to offences committed: in Hong Kong by any person,[57] outside of Hong Kong by Hong Kong permanent residents or by an incorporated or unincorporated body set up in the Hong Kong SAR,[58] and against the Hong Kong SAR “from outside the Region by a person who is not a permanent resident of the Region.”[59] There is no requirement that the activity in question be criminal in the jurisdiction – e.g., Canada, the United States (U.S.), etc. – where it takes place. During a meeting of the Special Committee, Professor Davis pointed out that, “if we actually advocate sanctions at this moment, we could be charged under that law, regardless of the fact that we are exercising our freedom of expression.”[60]

Six pro‑democracy activists who are currently outside of Hong Kong are reportedly being sought through an arrest warrant issued by the Hong Kong Police Force.[61] Samuel M. Chu, Founding and Managing Director, Hong Kong Democracy Council, who has been a U.S. citizen for 25 years, is one of the six. According to him, “the charges are for incitement of secession and collusion with foreign powers.” Mr. Chu observed that his experience shows that “you don’t have to be in Hong Kong to be in trouble with the Chinese regime and the Hong Kong government.” He noted that advocating sanctions and engaging with the legislative process in democracies – as Mr. Chu’s organization, which is headquartered in the U.S., has done – “appears to be one of the trigger points.”[62]

Avvy Yao-Yao Go, Barrister and Solicitor, Board Member, Toronto Association for Democracy in China and Clinic Director, Chinese and Southeast Asian Legal Clinic, told the Special Committee that, while she felt secure as a Canadian citizen, “at least for now,” she “will never go to Hong Kong.” As well, she will “not go to Thailand or any other country that may have an extradition treaty with China.”[63] As Samuel Chu noted, caution must also extend to “countries that have friendly relations with China.”[64] Alvin Cheung suggested that “Canadian citizens with ties to Hong Kong must now consider whether what they say in Canada will be used against them in the event they so much as set foot on a Hong Kong-registered airliner.”[65] Gloria Fung, President and Coordinator, Canada–Hong Kong Link, emphasized that, in such situations, “Canadian citizenship offers no protection.” In her view, the cases of Michael Kovrig and Michael Spavor were evidence of that reality as “their 20^th month of arbitrary detention under conditions amounting to torture” was being marked.[66]

The Special Committee was also reminded of the heightened risks that Canadians with dual citizenship could face. Because the PRC does not recognize this status, such individuals could be denied consular access if detained. Mr. Cheung referred to evidence suggesting that “the PRC has coerced individuals into renouncing foreign citizenship or claims to consular assistance.” He and other witnesses drew attention to the case of Sun Qian, a Canadian citizen who was sentenced to eight years in prison for being a Falun Gong practitioner. Mr. Cheung noted that Sun Qian’s purported renouncement of Canadian citizenship was “likely due to coercion by Chinese authorities.”[67]

The Special Committee is aware of other cases that bear mentioning in light of the extraterritorial reach of the National Security Law that was imposed on Hong Kong and in consideration of the concerns that have been raised about China’s record with respect to arbitrary detention and consular access. Having fled China in the late 1990s, Canadian citizen and Uyghur human rights activist Huseyin Celil was arrested while visiting family members in a third country – Uzbekistan – in 2006 and was surrendered to PRC authorities. He was sentenced to life in prison and nothing is currently known about his wellbeing, whereabouts or the conditions of his detention.[68] Global Affairs Canada informed the Special Committee that, despite continued efforts to secure consular access to Mr. Celil, such access has not been provided.[69]

Another case is Gui Minhai, a Swedish citizen and one of five Hong Kong booksellers who were apprehended by PRC authorities. Mr. Gui was staying at his holiday home in Thailand in 2015 when he disappeared and reappeared months later in Chinese custody. He was apparently released in 2017, but his daughter – Angela Gui – told the Special Committee that Mr. Gui was “under a type of residential surveillance in which he was allowed to communicate with [Ms. Gui] but was heavily monitored and not allowed to leave China.” Mr. Gui was “kidnapped again in January 2018, this time while travelling on a train with Swedish diplomats.” After being “held incommunicado,” in February 2020, Mr. Gui was “sentenced in secret to 10 years in prison for illegally providing intelligence overseas.”[70]

Ms. Gui recounted how, during this ordeal, her father had been “kidnapped by Chinese government agents three times,” “held incommunicado with no access to legal assistance,” “forced to refuse contact with Swedish consular officials, effectively bypassing the Vienna Convention on Consular Relations,” and “forced to confess to crimes on Chinese television.” Ms. Gui said that, in the limited conversations she has been permitted to have with her father, the last of which occurred in 2018, “it also became clear that he had been subjected to torture.” Regarding the 10‑year sentence, she said that the alleged activities have not been explained. Furthermore, Ms. Gui commented that, because the PRC authorities have claimed that Mr. Gui renounced his Swedish citizenship and applied to have his Chinese citizenship reinstated, “the Swedish Ministry for Foreign Affairs has been refused information even on his health status.”[71]

In Ms. Gui’s view, the National Security Law “is the Chinese government's way of ensuring that what happened to [her] father can now legally be done to anyone in Hong Kong.” She observed that the PRC “now claims the authority to unilaterally change foreign citizens’ nationality, completely undermining the protection that foreign citizenship used to provide.”[72]

Following enactment of the National Security Law, the Government of Canada suspended its extradition treaty with Hong Kong.[73] Jeff Nankivell, Consul General of Canada in Hong Kong and Macao, noted that Canada was “the first of nine countries” to do so.[74] Moreover, Canada’s travel advisory for Hong Kong was updated to warn that, because activities considered to be violations under the law are broadly and vaguely defined and “could include activities that are not considered illegal in Canada and that occurred outside of Hong Kong,” Canadian travellers “risk being arbitrarily detained on national security grounds, even while … transiting through Hong Kong.” The advisory also acknowledges that Canadians “could be subject to transfer to mainland China for prosecution.”[75]

Regarding the estimated 300,000 Canadians who reside in Hong Kong, Mr. Nankivell stated that the consulate has “detailed plans in place, and [it has] resources available and identified to cover a range of situations up to and including a situation where the urgent departure of a large number of Canadians would be necessary.” That said, he conveyed that “the likelihood of that kind of extreme scenario appears right now to be very low.”[76]

The Special Committee is troubled by the testimony it received regarding the National Security Law’s extraterritorial reach and is aware that, even though several countries have taken steps to suspend their extradition agreements with Hong Kong, the PRC may have such agreements with as many as 39 countries.[77]

Recommendation 1

That the Government of Canada communicate publicly that it will not act upon or support any arrest warrants or requests for legal assistance that are connected to the enforcement of the National Security Law imposed on Hong Kong.

Recommendation 2

That the Government of Canada review all travel advisories to ensure that, when needed, they reflect the risks that Canadians travelling abroad may face as a result of the National Security Law imposed on Hong Kong. This review should include advisories concerning countries that have extradition agreements with Hong Kong and/or the People’s Republic of China, as well as countries that have a known history of arbitrarily detaining or surrendering human rights defenders, activists, dissidents and other political figures to China’s security agencies. Further, the Special Committee recommends that the Government of Canada also specifically seek to proactively warn people who are travelling to Hong Kong about the new situation, including via – but not limited to – updated travel advisories.

The Chilling Effect

Adam Nelson, Senior Advisor for Asia-Pacific, National Democratic Institute (NDI), told the Special Committee that, in the wake of the National Security Law’s enactment, “We have seen pro-democracy champions arrested and charged, young people grabbed off Hong Kong streets, legislators harassed and independent media attacked.” Furthermore, according to him, some Hong Kong people “have found the operating environment so fearful that they have fled the city to the U.K., Europe, Taiwan, the U.S. and, of course, Canada.” In more personal terms, Mr. Nelson said: “It’s quite scary. I myself, given the work I’m doing—even the fact of joining this meeting, which is illegal under the national security law and, I believe, prosecutable—do not feel safe going back to the city.” He added: “I would fear what Beijing might do to target me.”[78]

Witnesses emphasized that arrests, surveillance and uncertainty about whether one is being targeted for possible arrest influence behaviour. Mr. Nelson reported that the NDI “is seeing a rising fear among [its] historic partners,” some of whom “fear the national security law enough to curtail their relationship with NDI, thereby having the intended impact: a chilling effect on democratic discussion.”[79] Gloria Fung characterized the fear that has taken hold in Hong Kong as “very overwhelming,” and stated that many people are already exercising “self‑censorship.”[80] Annie Boyajian, Director of Advocacy, Freedom House, provided examples, noting that “[p]olitical groups and advocacy coalitions have disbanded, removing reports and materials from the web, deleting social media accounts and changing phone numbers and email addresses.”[81]

Alex Neve, then Secretary General, Amnesty International Canada, raised similar concerns in relation to four people aged 16 to 21 years who were arrested in Hong Kong for social media posts that purportedly expressed opinions “inciting secession.”[82] He noted that, while the case itself is important, of equal concern is “the chill that it unleashes.” Mr. Neve commented that, beyond the four individuals facing possible punishment, there are “thousands and thousands of others who will self‑censor, who won’t share their views on social media and who won’t display public banners because they’ve heard about what happened to those four, and they’re just very, very fearful.” In his view, self-censorship is the “overarching intention” of a law like the National Security Law.[83]

Legislation pertaining to national security is not unique to China. Sophie Richardson, China Director, Human Rights Watch, emphasized that “states under international law have an obligation to provide public security, but laws like national security legislation are meant to be necessary, narrow and proportionate.” She noted that such laws “also cannot undercut key human rights commitments or target an entire population.”[84] Akram Keram cited the treatment of Uyghurs and other Turkic Muslims in Xinjiang (East Turkestan) since 2009 as an example of a situation that has demonstrated such problematic characteristics. In that context, he said that China has been “using national security and domestic stability as an excuse to suppress people and oppress people.”[85] Similarly, Ms. Richardson underscored that the National Security Law imposed on Hong Kong “has nothing to do with security,” but rather is “a road map for repression.”[86]

Nathan Law, a Hong Kong activist and former legislator, likewise believes that the “sole purpose of the [National Security Law] is to quash our freedom of expression, any desires for political change and the right to protest.” He said that the law “created widespread psychological terror and fear across the city.” In his view, it is a “legal weapon for the Beijing government.”[87] As of 1 February 2021, it was reported that 97 people had been arrested under the National Security Law.[88]

According to Mr. Keram, the broader objective of legislation like the National Security Law is to protect the leadership of the Chinese Communist Party (CCP).[89] Its imposition can be interpreted as the assertive behaviour of an emerging superpower that has become less concerned with international opinion or is willing to absorb such criticism when sensitive issues – including Hong Kong’s stability – are at stake. Alternatively, some testimony suggested that the National Security Law – developed in secrecy and introduced in a heavy‑handed manner[90] – can be understood as a possible sign of insecurity. Steve Tsang, Director, SOAS China Institute, University of London, deliberately referred to the National Security Law as a “state security law,” suggesting that what was introduced “is not really a national security law.” As Professor Tsang elaborated, “Hong Kong does not face a national security problem. Hong Kong faces a regime security issue.” He also commented that Xi Jinping’s leadership has made the CCP – in the short term – “much stronger, much more powerful, much harder,” but also “much more brittle.” Professor Tsang said that the CCP is “constantly worried about regime security. If they are so worried about it, there is usually a reason.”[91] 

Malte Philipp Kaeding, Assistant Professor in International Politics, University of Surrey, emphasized that “the regime in Beijing rules by fear, but it is also ruled by fear itself—fear of cracks in its ruling elite, fear of economic downturns and fear of growing dissatisfaction in its own population.” In his view, for example, fear drove the decision to go beyond disqualifying pro-democracy candidates in Hong Kong’s Legislative Council elections to postponing those elections altogether. He suggested that China’s central government “was afraid that it would be unable to bus thousands of pro-Beijing supporters from the mainland who are still registered voters in Hong Kong.” According to Professor Kaeding, without them, the outcome of “complete control” could not be guaranteed in Hong Kong; nor, therefore, could that outcome be communicated to people in mainland China. For him, recognizing that this underlying fear exists allows us to “see that the Chinese regime is not almighty and there are many potential cracks in the ruling coalition.”[92]

The Warning Signs

Throughout the study, it became apparent to the Special Committee that – in many ways – the current stance of China’s central government toward Hong Kong should not be surprising even if it is concerning. The situation today can be understood as a reflection of warning signs that may have been missed, downplayed or ignored internationally, as well as a potential harbinger of challenges to come.

Dr. Lobsang Sangay, Sikyong‑President, Central Tibetan Administration, compared the current situation in Hong Kong to the PRC’s historical conduct in Tibet. The 17‑point agreement between the PRC and Tibetan authorities from 1951 promised, for example, that “the authority and status of the Dalai Lama would remain the same.” He also noted that, pursuant to the agreement, “[a]ny reform would happen only after consulting and seeking the consent of the Tibetan people.” Nevertheless, according to Dr. Sangay, “from 1951 to 1959, the Chinese government violated, essentially, all of the provisions of that agreement.”[93] That occurred even though the PRC had imposed the agreement on the Tibetan authorities. Sharon Hom told the Special Committee that the tactics that have been used in Tibet “signalled clearly the writing on the wall for Hong Kong, if there were the political will to read it.”[94] Dr. Sangay also drew connections between the unity laws that now govern Tibet and the National Security Law imposed on Hong Kong, purportedly – according to the Hong Kong SAR government and China’s central government – while still respecting the “one country, two systems” framework. Concerning both Tibet and Hong Kong, Dr. Sangay stressed that, when security and autonomy conflict, “security will prevail.”[95] 

Professor Cohen argued that there has been a “progressive narrowing of freedoms in Hong Kong” since 1997 alongside the “increasing control of the Hong Kong government as the instrument … of the People’s Republic in Beijing rather than the representative of the people of Hong Kong.”[96] Alvin Cheung identified key events since 1997 as including “the abuse of the power to interpret the [Basic Law] that was vested in the Standing Committee of the National People’s Congress.”[97] Cherie Wong, Executive Director, Alliance Canada Hong Kong, holds the view that, rather than being “something new,” the deterioration of the “one country, two systems” framework has been “something slow.” She cited the “violent crackdown” on the 2014 Umbrella Movement and the “tightening of political freedoms” ever since.[98] These perspectives are generally supported by Annie Boyajian’s organization, Freedom House, which has “tracked a decline in democracy and human rights conditions in Hong Kong over the last decade, alongside increasing interference by the Chinese government.”[99]

It would seem, therefore, that warning signs have been emanating from Hong Kong – and elsewhere in the PRC – for years. Witnesses suggested that, while concern within Hong Kong about the gradual but steady erosion of the region’s high degree of autonomy has been pronounced, the international community’s reaction to that trend – as it has developed – has not reflected a commensurate level of urgency or resolve.

Gloria Fung, for example, described seeing “very little effort” by the Government of Canada over the last 20 years “to sustain the one country, two systems concept and all the core values, such as rule of law, freedoms, human rights and even democracy being promised to the Hong Kong people.” She suggested that the aspiration long held within Hong Kong to see elections conducted according to genuine universal suffrage has been “postponed forever, and now there’s absolutely no hope, because even the Legislative Council that was scheduled to be conducted this fall [2020] has been postponed for one year.” Ms. Fung considers that “the lack of response and the lack of exemplifying responsibility to hold China accountable for what it promises in its international treaty [the Joint Declaration] have led to the present situation in Hong Kong.”[100]

Alvin Cheung highlighted the repeated public declarations that PRC and Hong Kong officials have made since 2014 characterizing the Joint Declaration as “a dead letter, even though it remains in force until 2047.” He believes that “[t]he failure of the international community, Canada included, to condemn these repudiations has contributed to the climate of impunity under which the PRC now operates in Hong Kong.”[101]

The Special Committee heard that recent events in Hong Kong should also be considered alongside China’s possible assessments of developments elsewhere, including in relation to Taiwan. Evan S. Medeiros, Penner Family Chair in Asian Studies, Georgetown University, expressed his concern that “Beijing could draw the wrong conclusions about the international community’s response to Hong Kong, which, over time, could lead it to extend such an approach to Taiwan.” He said that the “U.S., Canada and other governments should work in coordination to take actions that disabuse Beijing of the belief that it could extend its coercion to Taiwan.”[102]

David Mulroney, Canada’s Ambassador to the PRC from 2009–2012, suggested that “one of the lessons we should take from Hong Kong is that Hong Kong is where it is now because, for two decades, Hong Kong’s elite sold it out, and the countries that should have supported it didn’t support it sufficiently.” In Mr. Mulroney’s view, Canada was “one of those countries.” In his opinion, “The next focus will be Taiwan.” He also emphasized the need for a careful approach in relation to Taiwan that is supportive without being provocative.[103]

The Response

Hong Kong is of concern to Canada because at least 300,000 Canadians live there,[104] and some 200 Canadian companies operate there.[105] Moreover, during the Second World War, Canadian soldiers died and were wounded defending Hong Kong against invading forces from Japan and, later, as prisoners of war.[106]

There are also ripple effects beyond Hong Kong to consider. According to Annie Boyajian, “CCP repression in Hong Kong is directly impacting what people are able to do in their daily lives, even in Canada.” According to her, that extends to international corporations, “which have come under pressure to censor their own communications and products.”[107] Another example is educational institutions, where there are concerns about freedom of expression and academic autonomy regarding the study of China and related issues. Nathan Law noted “signs of academics and students in western academic institutions engaging in self-censorship, either for fear of danger when they visit Hong Kong or China, or due to strong funding ties to CCP‑linked donors.”[108]

Witnesses emphasized that Hong Kong should – and does – concern the international community. Professor Davis of the Wilson Center and Columbia University underlined that Hong Kong’s treatment is “not purely an internal affair.” As he explained, countries – including Canada – were asked to rely upon the commitments enshrined in the Joint Declaration, which created “a kind of partnership over how Hong Kong would be treated, and the partnership is being violated.” He commented that, based on the Joint Declaration and the Basic Law it mandated, countries were asked to treat Hong Kong in a manner distinct from mainland China. Professor Davis observed that this special status “has worked very much to China’s advantage.” To illustrate this point, he noted that “Two‑thirds of the companies on the Hong Kong stock exchange are mainland companies,” which has allowed the mainland “to gain international investments and [provided] a way to make them.”[109]

Professor Davis also dispelled any ambiguity regarding the Joint Declaration’s standing, stating that there is “no question” that both China and Great Britain “treated it as a treaty.” As well, he noted that the Joint Declaration “expressly says that both parties are obliged to carry out all of its terms until the 50 years have ended.”[110] Professor Tsang said that, if China’s government is not held “to their international treaty obligation of keeping Hong Kong as it was for 50 years,” their government “will get the sense that they are not required to honour their treaty obligations.” He remarked: “That will not be good for anybody, including Canada.”[111]

Some witnesses framed the need to respond to the situation in Hong Kong – and to China’s growing authoritarianism more generally – from the perspective of democratic values, which Nathan Law hopes “democratic communities around the world can stand together” to protect.[112] There was a sense from the testimony that, if a line needs to be drawn in defence of the values that Canada seeks to uphold, a compelling case can be made for Hong Kong. As Gloria Fung remarked, Hong Kong is “the largest Canadian city outside of Canada.”[113] Aileen Calverley, Co‑founder and Trustee, Hong Kong Watch, stressed that, “If Canada, with its long history of defending human rights, is not willing to stand with like-minded partners in defence of Hong Kong’s freedoms, then the values we believe in will be degraded, along with Canada’s standing in the world.”[114]

The Government of Canada has expressed its serious concern about the National Security Law, characterizing it as a “violation of international obligations.” Consequently, Canada is no longer distinguishing between Hong Kong and the PRC concerning the exportation of sensitive goods and will not permit sensitive military items to be exported to Hong Kong.[115]

Australia is allowing Hong Kong students and temporary skilled workers to apply for extended visas, with a pathway to permanent residency.[116] The United Kingdom has created a tailored immigration route to which the approximately 2.9 million Hong Kong people who qualify as British National (Overseas) citizens – and as many as 2.3 million of their dependants – have been eligible to apply from 31 January 2021.[117] The British government notes that the “cost of the visa has been set lower than many other visas routes to the UK.”[118]

The United States has adopted legislation[119] and an executive order[120] that has seen sanctions applied against 35 PRC and Hong Kong officials for their role in undermining Hong Kong’s freedoms and autonomy.[121] Among those sanctioned are Chief Executive Carrie Lam, as well as the Directors of the Hong Kong and Macao Affairs Office of the PRC’s State Council and the Central Government Liaison Office in Hong Kong. The U.S. has also included Hong Kong under the list of populations of “special humanitarian concern” for its 2021 refugee admissions ceiling.[122]

Some witnesses emphasized the urgency and seriousness of the situation in Hong Kong, suggesting that Canada must act while there is still time to shape the decision making of key actors and to help people who are at risk. For example, Aileen Calverley stressed that “Time is running out.”[123] Cherie Wong said that there is “a short window to act before the CCP completely shuts down the freedom of movement in Hong Kong.”[124]

Other witnesses suggested that, if the ultimate goal is to preserve Hong Kong’s vitality and way of life, a careful response must be devised to avoid unintended consequences. Lynette H. Ong, Professor of Political Science and Global Affairs, University of Toronto, explained the situation using metaphors. She described Hong Kong as a “double-edged sword for the CCP leadership.” In her view, while the National Security Law was presumably developed as a means of bringing to an end the protests that the leadership saw as negatively affecting economic interests, the law also invites sanctions that “will erode Hong Kong’s attractiveness as an international capital centre and a regional business hub.” In terms of calibrating Canada’s response, the metaphors that Professor Ong used to describe Hong Kong were those of “the goose that lays the golden eggs, as well as a rebellious child who needs to be disciplined.” She said that, “If we impose measures that further erode the function of the goose, Hong Kong’s value will diminish to that of a rebellious entity … and the consequences of that are obvious.”[125]

Diplomacy

Several witnesses advised multilateral cooperation – to the greatest extent possible – in response to the situation in Hong Kong. The Government of Canada has issued joint statements through the Group of Seven[126] and in conjunction with the governments of Australia, New Zealand, the United Kingdom and the United States.[127] Evan Medeiros suggested that the task now is determining “how you go bigger and broader in terms of participation.”[128] Alex Neve remarked that, “If anything is going to start to build pressure on China, it is for the chorus of international concern to be not only the same countries time after time but a broader group and a larger group.”[129]

In a possible sign of progress, Germany submitted a statement in October 2020 to a committee of the UN General Assembly on behalf of 38 other countries, including Canada. The statement reiterated concerns expressed by UN experts that “a number of provisions in the Hong Kong National Security Law do not conform to China’s international legal obligations.”[130] However, on behalf of 54 other countries, Pakistan made a statement that reportedly opposed interference in China’s internal affairs and supported the legitimacy of the National Security Law.[131] The next week, China was elected to the UN Human Rights Council for a three‑year term.[132]

Nonetheless, recent months have shown that diplomatic initiative does not depend exclusively on traditional multilateral structures. Coalitions and groupings can also be formed in creative ways and for specific purposes. Benedict Rogers, Co‑founder and Chair, Hong Kong Watch, urged the creation of an “international contact group” that could coordinate a global response to the situation in Hong Kong. In his view, “more could be done to solidify coordination among democratic nations to ensure that the response to this crisis is not simply rhetorical, nor piecemeal, but robust, rapid, unified, and as coordinated as possible.”[133]

Professor Tsang said that, given the size of the Canadian community in Hong Kong, there is “no reason why Canada should not take a lead” in these matters. He suggested that the purpose would be “to co-ordinate with the other democracies and other countries that have significant number of citizens in Hong Kong, to make it very clear that if something happens to them, then the governments will act collectively to help them.” Professor Tsang remarked that, if you take “the Canadian and BNO passport holders and the American, Australian and New Zealander passport holders together, you are talking about the bulk of Hong Kong's economic lifeline.” He observed that, “If they all left Hong Kong because of what China’s government policy is, then they would have to think hard about that.”[134] Professor Tsang added in writing that, while Canada is “in a good moral position to lead,” doing so “will have a cost, as the detention of the two Canadians by the Chinese authorities following the extradition case of [Meng Wanzhou] shows.” In his opinion, that is all the more reason for Canada to focus on taking “the lead in forging an alliance with the other leading democracies.” He wrote that, while China can “pick on” Canada individually, “it cannot take on all the vibrant democracies at the same time.”[135]

Some witnesses also highlighted calls for the establishment of a special mechanism on Hong Kong at the UN. In support of that proposal, Benedict Rogers expressed his view that “Shining the spotlight on Hong Kong through a monitoring and reporting mechanism at the UN would be very important in ensuring that human rights violations are not perpetrated with impunity.”[136]

The Special Committee agrees that Canadian leadership on Hong Kong is important. As well, multilateral action can help to sustain international attention – and action – in relation to Hong Kong, and promote impartial and independent scrutiny of the human rights situation there. Even if China can block scrutiny of its human rights record at the UN, the Special Committee believes that there is value in drawing attention to the many reports and testimonials that compel such scrutiny to take place.

Recommendation 3

That the Government of Canada play a lead role in working with as broad a coalition of democratic nations as possible with a view to promoting a coordinated, coherent and sustained response to the People’s Republic of China’s government’s erosion of Hong Kong’s freedoms and democracy.

Recommendation 4

That the Government of Canada support the creation of a United Nations special envoy and/or special rapporteur focused on the human rights situation in Hong Kong.

Sanctions

Many witnesses[137] called for Canada to pursue targeted sanctions against Hong Kong and PRC officials who are responsible for repression, intrusive surveillance and human rights violations. Their rationale generally focused on ensuring that there are costs associated with behaviour that contravenes international norms and obligations. Aileen Calverley, for example, emphasized the need to ensure that “continued violations of human rights are met with a steep personal price that includes the restriction of travel and financial penalties.”[138] Some also believe that the application of sanctions would communicate a strong message of disapproval within the diplomatic sphere and to the international business community. As noted by Samuel Chu, sanctions can also in effect “force institutions like banks and financial institutions not to become explicit, proactive agents for the Chinese regime to enforce and support these kinds of policies.”[139] Some witnesses also noted the greater efficacy of multilaterally coordinated joint sanctions.

While there appeared to be general agreement on the symbolic efficacy – or signalling value – of targeted sanctions, the views of some witnesses were more nuanced regarding the likelihood that sanctions would necessarily induce behavioural change that would make a meaningful difference in Hong Kong. Professor Cohen noted that, while sanctions “do symbolize our detestation for what is taking place,” they can also “backfire, and they’re not very effective because we know who runs China,” and it is not, according to him, “Carrie Lam and other people that these [U.S.] sanctions have been placed against.”[140] Professor Ong indicated that sanctions “could have implications that go both ways,” and that they could, for example, “be spun by the regime to shore up nationalism.”[141] However, it was also emphasized by Alvin Cheung, and subsequently agreed on by Professor Ong, that sanctions more narrowly targeted at those particularly responsible for human rights violations in Hong Kong would stand the best chance of not affecting the general Hong Kong population.[142]

Canada has legislation that could be used to respond to the situation in Hong Kong. The Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) allows sanctions – asset freezes and dealings prohibitions – to be applied against foreign nationals when the Governor in Council has determined that a foreign national is responsible for, or is complicit in, gross violations of human rights and/or is responsible for, or is complicit in, acts of significant corruption. Persons, other than permanent residents of Canada, who are subject to such orders and regulations are rendered inadmissible to Canada under the Immigration and Refugee Protection Act.[143]

The Special Committee is aware that any designation of PRC nationals under Canada’s sanctions legislation would have an impact on Canada–China relations. As Alex Neve observed, “if there’s one word that very often characterizes China’s response, it is ‘retaliation’.”[144]

The Special Committee was informed that the Joint Declaration does not contain an enforcement mechanism. Professor Davis explained that “there is no provision for resolving disputes”; consequently, “the only form of response can be diplomatic.”[145] There does not appear to be any question on the part of the Government of Canada that the Joint Declaration is being contravened. Mr. Nankivell underscored Canada’s position that the National Security Law “contravenes Hong Kong’s Basic Law, China’s treaty obligations under the Sino‑British Joint Declaration and Hong Kong’s commitments under the International Covenant on Civil and Political Rights.” He also noted that Canada has worked “closely with like-minded countries in Hong Kong, in Beijing, across capitals and at the United Nations,” and has – “every month from April through August, and again in October” – issued “statements on Hong Kong, at the level of minister or higher.”[146]

That said, it is not clear to the Special Committee that such statements have caused China’s government to change course in Hong Kong in any meaningful way. On 11 November 2020, the pan-democrats in Hong Kong’s Legislative Council announced that they had been left with no choice but to resign as a group in response to a decision of the Standing Committee of the National People’s Congress that empowered Hong Kong’s government to disqualify candidates and elected office-holders on grounds that include soliciting “intervention by foreign or external forces in the [Hong Kong SAR’s] affairs, or [carrying] out other activities endangering national security.”[147] Four legislators were immediately disqualified. Canada’s then Minister of Foreign Affairs, François-Philippe Champagne, expressed Canada’s deep disappointment with the disqualifications, characterizing the decision as “a further assault on Hong Kong’s high degree of freedoms under the Sino-British Joint Declaration.”[148] Along with the foreign ministers of Australia, New Zealand, the United Kingdom and the United States, Minister Champagne declared China’s action to be “a clear breach of its international obligations” under the Joint Declaration.[149]

On 6 January 2021, Hong Kong police arrested 55 politicians and activists who allegedly took part in unofficial primary elections in July 2020. The elections had been organized by the pro-democracy movement to select candidates for the Legislative Council elections of September 2020, which were subsequently postponed by the Hong Kong government.[150] The organizers and candidates are being accused of subversion under the National Security Law.[151] In response to the arrests, the foreign ministers of Canada, Australia, the United Kingdom and the United States again declared the National Security Law to be “a clear breach of the Sino-British Joint Declaration,” while calling on “the Hong Kong and Chinese central authorities to respect the legally guaranteed rights and freedoms of the people of Hong Kong without fear of arrest and detention.”[152]

Recommendation 5

That the Government of Canada, in light of the recent removal of democratically elected legislators in Hong Kong, reiterate its support for the right of the people of Hong Kong to elect Legislative Council representatives via genuinely free, fair and credible elections, and also publicly express its support for the aim of universal suffrage for the people of Hong Kong, as contained in the Basic Law of the Hong Kong Special Administrative Region.

The Special Committee believes that disregard for obligations contained in a UN‑registered treaty should not go unanswered. Failure to respond could embolden, rather than forestall, similar behaviour in the future. On this point, the Special Committee recalls the words of caution expressed by Stéphane Chatigny, a Canadian lawyer who lived in Hong Kong from 2008 to 2017. From his perspective, “Every time we do not speak up or do nothing, each time we compromise our values, standards and interests, the [CCP] regime becomes more comfortable with using intimidation.”[153]

In considering the issue of sanctions, the Special Committee is also reminded of Angela Gui’s observation that “condemnations have not been effective in the past,”[154] and of Benedict Rogers’s belief that the only effective approach with the PRC is “pressure.”[155] Furthermore, the Special Committee is cognizant of Sophie Richardson’s statement that, “It is not only imperative to call out Beijing’s violations, but also critically and urgently important to put an end to the extraordinary sense of impunity Beijing continues to enjoy for state-sponsored human rights violations.”[156]

The Special Committee’s resolve that a more consequence-based approach is needed reflects its view that the National Security Law is arbitrary, sweeping and harsh. Related to that are the risks of arrest, detention and intimidation that Canadians are facing because of the law. Moreover, the Special Committee is mindful that the situation in Hong Kong – while influenced, and even restrained, by a unique historical context – is not an aberration. For years, serious concerns have been raised about China’s human rights record, including in relation to Tibet and Xinjiang, and about its practices with respect to arbitrary detention.

Recommendation 6

That the Government of Canada apply targeted sanctions toward the People’s Republic of China in co-ordination with like-minded states, including considering sanctions under the Justice for Victims of Corrupt Foreign Officials Act (Magnitsky Act) against those responsible for or complicit in gross violations of human rights, freedoms and the rule of law in Hong Kong, as enshrined in the 1984 Sino-British Joint Declaration, an international treaty registered in the United Nations, which Canada and many other countries endorsed, as well as Hong Kong’s Basic Law and the International Covenant on Civil and Political Rights.

Safe Haven

Several witnesses highlighted the importance of access to sanctuary abroad for those facing political persecution in Hong Kong. Benedict Rogers urged the creation of a coordinated “lifeboat rescue package” as a measure of “last resort.”[157] Others advocated action while Hong Kong pro‑democracy activists still have limited freedom of movement. According to Cherie Wong, “the window is closing fast.”[158] In underlining the gravity of the situation, Mabel Tung, Chair, Vancouver Society in Support of Democratic Movement, said that many Hong Kong people who participated in the pro-democracy movement “fear they will face the same fate the student protesters in Tiananmen Square did 31 years ago.” She indicated that they are looking “to western democracies for protection and safe harbour.”[159]

There is no certainty about how many Hong Kong people may seek to leave. Sophie Richardson observed that “people are forced to make some very difficult calculations about how the law is going to affect their lives, whether leaving might draw unwanted attention to family members who remain behind, whether they have the means to emigrate and what they would do in some other country.”[160] According to Mabel Tung, 46 people from Hong Kong are already seeking asylum in Canada, “citing harassment and brutality at the hands of police, and fear of unjust prosecution.” It is her organization’s expectation that the number will “increase once our border is open to foreign visitors.”[161]

Witnesses proposed initiatives under Canada’s immigration programs that could be pursued for Hong Kong people. These initiatives included:

• expanding the number of temporary resident permits and work permits;
• increasing the number of student permits;
• ensuring continued visa-free admission to Canada; and
• expediting family sponsorship applications by Canadians for their family members in Hong Kong and expanding the family class program to facilitate reunification of Canadians with extended family members in Hong Kong.[162]

Within the educational sector, scholarships for students from Hong Kong is an option.[163]

Concerning refugee pathways to Canada, Avvy Yao‑Yao Go spoke in favour of “a special program to grant permanent resident status to the Hong Kong activists involved in the pro‑democracy movement who are already in Canada[.]”[164] Like a proposal made by Mabel Tung,[165] a document submitted to the Special Committee by Alliance Canada Hong Kong urged Canada to prioritize asylum applications from Hong Kong residents. Alliance Canada Hong Kong has also called for the exploration of solutions within the private refugee sponsorship program. Furthermore, the organization suggested that arrests, charges and convictions related to individuals’ participation in pro-democracy protests should not be barriers for asylum to Canada given that they “stem from political suppression.”[166]

Discussions of safe harbour measures also addressed challenges and barriers specific to Hong Kong, including its location and travel restrictions placed on potential asylum seekers by Hong Kong authorities. Alex Neve noted that the “geography of Hong Kong is such that, unlike many refugee situations around the world, [claimants] clearly cannot escape across the most immediate border, that being China.”[167] Moreover, Davin Wong explained that exit controls are a barrier to asylum for pro‑democracy activists who have had their passports confiscated either as a bail condition or due to being investigated under the National Security Law.[168] Finally, witnesses identified travel restrictions due to the COVID‑19 pandemic and the financial burden of resettlement to Canada as additional barriers to asylum claims.

Gloria Fung believes that there is a need to consider “some kind of emergency measures to help Hong Kongers who are under a very high risk of political persecution to get out of Hong Kong.” She emphasized that, for activists who have had their passports confiscated by the authorities, there will be no way for them to leave “unless there is collaboration among like‑minded allies to provide a special tunnel to Hong Kong for them to get out, just like what happened right after the Tiananmen massacre in 1989.”[169] Avvy Yao‑Yao Go suggested that barriers to leaving could be partly addressed by requiring the Consulate General of Canada in Hong Kong to issue temporary resident permits and travel documents to activists who have been arrested or are in imminent danger of arrest.[170]

Mr. Nankivell noted that, “Up to now, we have not seen any case of a Hong Konger, or anyone in Hong Kong, being prevented from exiting, except for people who are already under a legal constraint.”[171] In remarking that no individuals have yet attempted to claim asylum at the Canadian consulate in Hong Kong, he emphasized that avenues for asylum claims to Canada involve making a claim from within Canada or from a third country.[172] According to Mr. Nankivell, the consulate is “not in a position to welcome [asylum seekers] inside or to accept a claim from them, as they are in their own territory.”[173]

On 12 November 2020, Immigration, Refugees and Citizenship Canada announced the following measures to “support Hong Kong residents, including youth, to come to Canada:”[174]

• expediting the processing of permits for young people from Hong Kong who are eligible and want to come to Canada to work or study;
• establishing a new three-year work permit category for Hong Kong youth with eligibility based on post‑secondary education in Canada or abroad completed within the last five years;[175]
• making it possible for two groups to apply for permanent residence: former Hong Kong residents who have at least one year of work experience in Canada and who meet other criteria related to education and language skills; and Hong Kong people who have graduated from a Canadian post-secondary institution;[176]
• providing assurance that no one will be disqualified from making an asylum claim or availing themselves of immigration routes to Canada because they have been charged under the National Security Law;[177] and
• removing the 12-month bar concerning pre-removal risk assessments (PRRAs) for individuals from Hong Kong who have had their refugee claim rejected and allowing individuals from Hong Kong who have had a negative PRRA decision between 13 November 2019 and 12 November 2020 to have the risk of their removal reassessed.[178]

The Special Committee believes that it is possible to have a dual-track approach, whereby people who choose to – or have no choice but to – remain in Hong Kong would continue to receive Canadian attention and support, while those seeking to leave would also be helped through various pathways. The rationale for action was articulated by Professor Ong, who stressed that “Canada is a country that protects and preserves the liberal order.” Consequently, in her view, Canada “should be helping to sustain the movement and the battle against a very huge authoritarian regime.” She said that “Opening our door to activists, to people who have suffered and fought in the battle, and to talent from Hong Kong … will go a long way toward helping in this fight in the medium to long run.”[179]

The Special Committee agrees, and it reiterates the sense of urgency expressed by witnesses. While welcoming the measures that were announced, and subsequently explained to it by Minister of Immigration, Refugees and Citizenship Marco Mendicino, the Special Committee believes that additional actions are needed to fill gaps that may exist in the announced measures and to address the reality that many of the people who those measures seek to help may not be able to leave Hong Kong without special assistance. Recognizing that relatively few people have been formally charged under the National Security Law itself, the Special Committee also wants to remove any possible uncertainty about admissibility in situations where people have been charged with “rioting” or “unlawful assembly” in association with the pro-democracy movement.

Recommendation 7

That the Government of Canada expand the family class program to facilitate reunification of Canadians with extended family members in Hong Kong.

Recommendation 8

That the Government of Canada consider how to best expedite asylum claims made by Hong Kong people involved in the pro-democracy movement.

Recommendation 9

That the Government of Canada ensure that no one will be disqualified from making an asylum claim or availing themselves of immigration routes to Canada because they have been charged with offences associated with the pro-democracy movement in Hong Kong. This exemption should also apply to charges resulting from the exercise of freedom of expression and freedom of assembly, as embodied in the International Covenant on Civil and Political Rights.

Recommendation 10

That the Government of Canada consider issuing travel documents to facilitate the safe and immediate exit from Hong Kong of pro-democracy activists.

Protecting Rights and Freedoms at Home

In addition to their remarks on the situation in Hong Kong, several witnesses commented on the threats and intimidation that they and others have experienced in Canada as a result of their personal connections and work related to China.

Cherie Wong described receiving “death and rape threats, with implications to harm [her] family.” During the week in which her organization – Alliance Canada Hong Kong – was launched, she “received an ominous phone call” to her hotel room indicating that someone was “coming to collect” her. On 1 October 2019, Ms. Wong’s organization and Ottawans Stand with Hong Kong co-led a protest on Parliament Hill. After receiving “online threats” in the lead-up to the protest, the participants were then “verbally and physically assaulted, threatened and harassed.” Ms. Wong described being “surrounded” and “kettled” by more than 100 pro‑China supporters. Afterwards, many participants had their “private information maliciously published.” She said that Canadians are “forced to hide their identity or be targeted by pro‑Beijing forces.” However, from her perspective, the aspect of China’s interference campaigns that is “even more worrying” is that they are “emboldened by Chinese diplomats in Canada.”[180]

Cheuk Kwan, immediate past chair, Toronto Association for Democracy in China, provided examples of the “united-front strategy that Chinese consulates and their proxies have carried out” in Canada. As one example related to events in Hong Kong, he spoke about Chinese international students who were “compelled” to “demonstrate against pro‑Hong Kong rallies” after threats had been made “to withhold their government scholarships or harm their families back home if they [did not] comply.”[181] Some people have told Mabel Tung that they cannot come to the next rally of her organization, the Vancouver Society in Support of Democratic Movement. They will say: “‘This is my last time, because I have family in Hong Kong and a grandmother in China and I don’t want them to be intimidated by the police or anybody in China’.”[182]

While discussing how the CCP’s united front strategy is being implemented through Chinese-language media, Victor Ho, retired Editor‑in‑Chief, Sing Tao Daily, British Columbia edition, also highlighted the role of China’s missions in Canada. He provided the example of a half-hour “radio speech” by China’s Consul General in Vancouver on 23 July 2020. According to Mr. Ho, during the speech, which was “programmed in newscast airtime,” the Consul General asked Chinese Canadians to support the National Security Law while also suggesting that there were “very few people in Canada trying to slander” the law and “attempting to cause trouble overseas as well.” In Mr. Ho’s view, the Consul General “treats Chinese Canadians as Chinese nationals, when of course they are not.”[183]

Gloria Fung drew attention to the CCP’s “covert operations to suppress our right to freedom of expression, using commercial blacklisting, threatening phone calls or emails, cyber‑hacking and even physical confrontation.” She told the Special Committee that she has “personally experienced all of these forms of intimidation,” and described other incidents, including one from August 2019 when “Chinese international students and pro‑Beijing United Front organizations were mobilized to block and intimidate peaceful demonstrations in Toronto, Montreal, Calgary, Vancouver and many other cities around the world at the same time.”[184]

Alex Neve commented on reports issued by the Canadian Coalition on Human Rights in China, which “document a disturbing and intensifying pattern of intimidation, interference and threats against human rights defenders who are based [in Canada] and are involved in campaigning with respect to human rights concerns in China.” He noted that “individuals responsible for these abuses are linked to, or at least encouraged and lauded by, Chinese government officials.” Mr. Neve said that the 2020 report describes how “individuals supportive of the movement for democracy and human rights in Hong Kong in particular have been targeted relentlessly, including at demonstrations and through social media.”[185]

According to Mr. Neve, reports by the Canadian Coalition on Human Rights in China have received “little response” to date. He conveyed that individuals who experience the activities documented in the reports “are largely left without effective recourse, often unsure where to turn and what to expect.”[186] After recounting his own interactions with the Royal Canadian Mounted Police and the Canadian Security Intelligence Service, Bill Chu, Founder, Canadians for Reconciliation, expressed his view that “all the ministries at this point are operating without a good understanding of the national security risks to which Canada is exposed.”[187] Mr. Neve said that, despite these types of issues having been raised for years, Canadian authorities “have not taken some of the simplest steps to try to do something about this, even to just improve coordination amongst departments and agencies.” In his view, that is “unconscionable.”[188]

The Special Committee was deeply troubled by these reports of intimidation and harassment. While there are significant challenges in trying to change the Chinese government’s approach to human rights issues within China, the Government of Canada can – and must – safeguard the rights and freedoms of all Canadians, including those whose commitment to defending human rights draws the notice of a foreign power. The ability to protest, to advocate, to document, to participate and to organize – peacefully and free from fear – is core to Canada’s open society.

Recommendation 11

That the Government of Canada convey, to the Ambassador of the People’s Republic of China to Canada, that any interference with the rights and freedoms of people in Canada is unacceptable, will not be tolerated, and will result in serious consequences for those responsible.

Recommendation 12

That, in light of the allegations of threats and intimidation against people in Canada supporting human rights and democracy in Hong Kong, the Government of Canada carefully review accredited diplomatic personnel in the People’s Republic of China’s diplomatic missions to Canada.

Conclusion

In her testimony to the Special Committee about the situation in Hong Kong, Sharon Hom cautioned against “repeating or highlighting this partial narrative of hopelessness, especially one that is prematurely declaring a future not yet written.” She emphasized that, “although the right to peaceful assembly has been almost gutted in Hong Kong, Hong Kongers are not silent and have not given up hope.”[189] The Special Committee agrees that it is premature to proclaim the “end” of Hong Kong. There are some 7.5 million people in Hong Kong, many of whom continue to strive to realize their aspirations, even if the ways in which they can express their political demands and opposition have been forced to adapt.

The people who choose to stay in Hong Kong or who are unable to leave – for whatever reason – cannot be forgotten. They need solidarity and support so that they can realize their vision for Hong Kong’s future. That resilience was in evidence on 1 October 2020, China’s National Day, when groups of people in Hong Kong reportedly engaged in creative acts of protest through chants. Some conspicuously read copies of Apple Daily, the newspaper founded by one of the people – Jimmy Lai – who have been arrested under the National Security Law. They did so despite the presence on the streets of thousands of police officers and in full knowledge of the risks.[190]

Finally, the Special Committee is mindful of Mr. Medeiros’ observation about the Chinese leadership’s ultimate intentions for Hong Kong. According to him, the strategy “is to use the national security law to separate politics from business in Hong Kong.” In his view, the envisioned result would see Hong Kong “remain capitalist … but not liberal in its politics and, therefore, beholden to the Chinese Community Party for political governance.”[191] To the Special Committee, that would seem to be a long game dependent on the assumptions that apathy will eventually set in among Hong Kong people and that international attention will wane. The Special Committee believes that implementation of the recommendations in this interim report would strengthen Canada’s response to China’s overreach in Hong Kong, thereby helping to ensure that the attempted transformation of Hong Kong’s distinct system and way of life – its high degree of autonomy – does not proceed with impunity.