Canadian lawyers aloof to foreign ‘lawfare’: U.S. law prof

Foreign adversaries are utilizing Western legal systems, including in Canada, in a phenomenon described as “lawfare,” according to an expert panel presentation at the Vancouver International Security Summit on Tuesday.

“Domestic legal systems [are] being weaponized against us” and “we are not preparing lawyers for this reality,” said Cynthia Alkon, law professor and director of the Texas A&M University Criminal Law, Justice & Policy Program.

“A lot of lawyers don’t know they are in a case of lawfare,” said Alkon, who describes the primary form of lawfare as “a state acting through corporations and lawyers to file injunctions and lawsuits against investigative reporters, researchers, and security consultants warning against various forms of contentious action covertly taken by that state against others.”

Lawfare is part of the burgeoning field of “hybrid warfare” analysis, which also includes the use of cyberattacks and misinformation campaigns by foreign adversaries to disrupt democratic societies, Alkon claims.

And, said Alkon at the summit, “it doesn’t sit in one sector, it doesn’t sit in one area of law; it isn’t just a civil law issue or a criminal law issue, it is both.”

Panellist Scott McGregor, a former military and RCMP intelligence official turned consultant for Close Hold Intelligence Consulting Ltd., cited his work as an author that led to a defamation claim against him by a group alleged to be associated with the Chinese Communist Party (CCP).

“In lawfare, there is an intention to suppress what you’re saying, to deter,” said McGregor, noting despite B.C.’s new law to prevent Strategic Litigation Against Public Participation (SLAPP), the lawsuit, which was ultimately dismissed against his co-author Ina Mitchell, “takes time and immense stress on all of us.”

And, said McGregor, “some of these Chinese companies are hiring the best law firms in the country.”

Lawyer Tom Jarmyn said physical presence is no longer needed to commit crimes, which poses new challenges for police and courts.

“For foreign state entities, they can pick up local actors through intimidation …they can seduce them,” said Jarmyn.

And, “criminal laws cannot deter this activity,” he said.

As such, Jarmyn is in favour of robust transparency laws on foreign activity in Canada.

He is also in favour of expanding administrative and statutory authorities “as far as we can.”

By this, he means granting the Canadian Security Intelligence Service greater power to share information with other entities and loosening disclosure requirements, which have made “prosecution unwieldy.”

Brent Arnold, a partner at Gowling WLG international law firm, said the Chinese government is active in lawfare and another aspect can be how China has imposed privacy and disclosure laws on multinational corporations operating in its jurisdiction.

“When you’re trying to comply with this law …there is a good chance you’ll find yourself offside in Western privacy laws …so it’s a problem if you want to operate in both hemispheres,” said Arnold.

Canadian laws, said Arnold, are not set up to deal with threats posed by the potential for social media apps to be used as a hybrid warfare weapon, citing TikTok.

“TikTok is effectively under the control of the CCP as it collects data on Canadian civilians,” said Arnold.

Arnold, Jarmyn and Alkon warn that law societies in Canada must reinvent policies to have lawyers better recognize their clients.

Arnold also warned that a “slippery slope” exists when it comes to weighing individual rights versus policies in the national interest and when these two blur “you start to get the regimes we’re worried about.”

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