Russia’s Rule of Law(lessness) Threatens Advocates Worldwide: A Canadian Case Study

Russia’s persecution of thousands of independent journalists, human rights defenders, anti-war dissenters, and opposition politicians in Russia is well known, especially the arbitrary detention and death of Alexei Navalny. Less well known are Russia’s threats and judicial harassment of people living in other countries – including Canada – for sharing views that dissent from official Russian narratives.

For a seven-month period during 2023 and 2024, a permanent resident of Canada, Maria Kartasheva, found herself in fear of lengthy imprisonment in Russia. A Russian court tried and sentenced her in absentia for her peaceful online advocacy exposing Russia’s war crimes in Ukraine. Ms. Kartasheva was charged under Russia’s notorious “fake news” law – one of the laws used in trumped up charges against Alexei Navalny’s political allies, including those living in exile outside Russia.

So far, Ms. Kartasheva’s nerve-wracking experience has had a happy ending. Yet, her story raises questions about Canada’s current capacity for practical, timely implementation of its international obligations and policies, particularly its obligation to ensure that residents of Canada are not unduly placed in fear of potential removal to countries where they would be unlawfully persecuted on political grounds.

The report below was prepared with assistance and documentation provided to the authors by Maria Kartasheva and a human rights advocate Svetlana Dubinkina, a lawyer with the Association for European Integration and Human Rights. Co-author Julia Tchezganova, a lawyer in British Columbia, is of Russian ancestry and is familiar with Russian law.

Maria Kartasheva: Tried in absentia in Russia for anti-war advocacy conducted in Canada

Maria Kartasheva is a Director and Co-Founder of the Russian-Canadian Democratic Alliance (RCDA). Born in Ukraine (Crimea) and raised in Russia, she moved to Canada in 2019. From her Ottawa residence, she used a Telegram social media channel to share news with her family and friends about her new life in Canada. After Russia’s unlawful invasion of Ukraine in 2022, she began to share information on Telegram – in Russian – about well-documented atrocity crimes in Bucha and elsewhere in Ukraine. At that time, her channel had a few hundred followers.

CBC had also shared images of the 4 April 2022 attacks in Bucha. Canada’s Foreign Minister, Ms. Melanie Joly, made a statement that the “abhorrent and senseless attack on innocent civilians in Bucha… won’t go unpunished,” adding that “these acts of terror…are clearly war crimes.” A May 2022 report by Amnesty International documented numerous unlawful killings in Bucha by Russian forces.

Russian authorities became aware of Ms. Kartasheva’s anti-war advocacy. She was charged with disseminating “false information” about Russian armed forces’ and their “purported killing of civilians in Ukraine” under Article 207.3 of Russia’s Criminal Code, which carries a potential prison sentence of three years. This so-called “fake news” law was one of several laws created in March 2022, just after the invasion of Ukraine, to suppress anti-war expression. In April 2023, the charge against her was modified to add a charge of hate speech “against a social group.” This charge carries a potential prison sentence of five to ten years imprisonment.

After Ms. Kartasheva became aware of this charge in May 2023, she contacted Immigration, Refugees and Citizenship Canada (IRCC). She explained that the charges related to her “public posts on social media about bombings of the cities of Kharkiv and Mariupol, and about the massacre in Bucha, including the photos and fact checks by AFP…, the Guardian… Deutsche Welle…, and CBC…” She provided the IRCC with evidence and a summary of Russian authorities’ use of criminal law to silence truthful information.

Her letter to IRCC pointed out that Russia’s “fake news” Article 207.3 has been used to prosecute and sentence many people. She provided several examples of lengthy prison sentences for those who publicized Russia’s atrocity crimes, including an opposition politician, a British opposition activist, and a Russian journalist who was sentenced in absentia.

Blocked from taking the oath of Canadian citizenship: Growing fear of potential deportation

Days later, Ms. Kartasheva felt reassured when she received an invitation to a June 2023 citizenship hearing. To her surprise, moments before the hearing began, she found herself blocked from taking her citizenship oath because of the charges in Russia.

She became increasingly concerned after receiving no response to her several communications to Canadian officials seeking information about her citizenship application and offering further information. In a letter dated 30 August 2023, she stated:

“I tried to provide as many documents as I could, but it’s not clear to me if I need to send anything else as I never got any response. I can’t find any information anywhere about what to expect further and if it’s even safe for me to stay in Canada. At the very least I would like to have some clarity on what the process is for my application right now. Can you please provide me with any details?”

This letter was passed to IRCC who responded on 10 November 2023 with a form letter assuring her that they understood how important the process was to her, that her application was “in process,” that “[a]ll the required documents and information have been received by the responsible office,” and that they would inform her “once a decision is reached or if additional information is needed.”

On 7 December 2023, Ms. Kartasheva received a letter from the IRCC immigration officer advising of their determination that Article 207.3 of the Criminal Code of Russia, if committed in Canada, was equivalent to the offence of False Information under subsection 372(1) of the Criminal Code of Canada (CCC). The IRCC letter (a “procedural fairness letter”) advised that the information Ms. Kartasheva had provided about the Russian charges had triggered section 22 of the Citizenship Act, which does not allow a person to become a Canadian citizen or take the oath if they are charged with a foreign criminal offence that would constitute an indictable offence in Canada.

The IRCC letter did not disclose reasons for the determination that the Russian and Canadian laws were equivalent. The letter advised Ms. Kartasheva that she had 30 days to explain her circumstances or face potential refusal of her application for citizenship, but there was no invitation to refute the IRCC determination that the Russian “fake news” law was equivalent to Canada’s CCC subsection 372(1).

Meanwhile, Ms. Kartasheva had received word from her lawyer in Russia that the Russian court had convicted her and sentenced her to eight years imprisonment. While the Russian court decision against her was dated 24 November 2023, the text of the judgement was not made available until 12 December 2023. She became alarmed that the Canadian government’s determination might put in motion a revocation of her permanent residency or even deportation to a Russian penal colony.

Ms. Kartasheva urgently gathered a 94-page submission which she sent to IRCC on 29 December 2023. The submission included a detailed international and domestic legal analysis by a Canadian lawyer demonstrating that the Russian offence for Ms. Kartasheva had been convicted “would not constitute an indictable offence under any Act of Parliament if committed in Canada.” The submission also included a letter from a respected Russian human rights organization (now working in exile) pointing out “that the harsh sentence for a peaceful publication, under a strictly political criminal article, pose[s] an imminent threat to Maria Kartasheva[’s] safety if she returns to the Russian Federation.”

After these submissions, together with media attention and intervention from a Canadian Member of Parliament (MP), it was announced by IRCC on 9 January 2024 that Ms. Kartasheva would be granted Canadian citizenship. The Minister of IRCC affirmed that “Canada’s citizenship eligibility rules are designed to catch criminals, not to suppress or punish legitimate political dissent.”

Russia’s legal crackdown against dissent: International outcry

On 4 March 2022, Russia started to enact laws to punish and silence voices opposed to the war in Ukraine. These include administrative laws, including Article 20.3.3, which target anti-war protests and anti-war speech. It prohibits “public actions directed at discrediting the use of the Armed Forces of the Russian Federation.”

Over 8,690 people have been charged with this offence for anti-war expressions such as social media posts, solo demonstrations with peace signs or flowers, or wearing the blue and yellow colours of the Ukrainian flag. Domestic and international human rights groups and scholars challenged the validity of Article 20.3.3 under international human rights law and Russia’s constitution. In September 2023, the UN Special Rapporteur on human rights in Russia described Article 20.3.3 as a violation of Russia’s obligation to ensure freedom of peaceful assembly and expression.

Those convicted of repeating this administrative offence may be criminally charged and jailed under Russia’s Criminal Code article 280.3. Among those criminally charged and now imprisoned for peaceful anti-war protests is Russia’s renowned human rights defender, Oleg Orlov, co-chair of Memorial, the human rights organization that received the 2022 Nobel Peace Prize.

Criminal laws were adopted at the same time as Article 20.3.3, including Article 207.3 of Russia’s Criminal Code, the “fake news” law under which Ms. Kartasheva was charged. Article 207.3 criminalizes public dissemination of “knowingly false information containing data on the use of the Armed Forces of the Russian Federation in order to protect the interests of the Russian Federation and its citizens, and to maintain international peace and security…” The offence carries a sentence of up to three years imprisonment. So far, more than 260 people have been charged under this law. Ms. Kartasheva was charged with an aggravated form of this offence, which provides that the “same act committed… on motives of political, ideological, racial, national or religious hatred or enmity, or on motives of hatred or enmity against a social group” is punishable with up to five to ten years imprisonment.

On 11 March 2022, three UN experts criticized the new legislation saying “the law places Russia under a total information blackout on the war and in so doing gives an official seal of approval to disinformation and misinformation.” Human Rights Watch denounced the law as “part of Russia’s ruthless effort to suppress all dissent and make sure the population does not have access to any information that contradicts the Kremlin’s narrative about the invasion of Ukraine.”

By April 2022, media reports of Russian journalists and others fleeing Russia’s “fake news” law were published around the world, including in Canada. Canada’s Public Safety Minister, then Marco Mendicino, denounced Russia’s untruths, expressing confidence that Canada was on top of the problem. Canada has continued its official denunciations of Russian disinformation.

In December 2022, the UN Human Rights Committee urged Russia to repeal the law, expressing deep concern that Article 207.3 violates freedom of expression protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to which Russia is a State Party.

In early December 2023, Canada issued a statement about how Russia has been “eradicating media freedom through blocking internet content, imprisoning journalists, and adopting ‘fake news’ and defamation laws.”

On 31 January 2024, Russia’s government adopted a law to seize property belonging to those convicted under the above-noted articles. This means that if Canada were to deny people protection against these illegitimate laws and convictions in Russia, they could not only be deported back to prison, but all of their property and assets could be taken away at the same time.

Fair trial rights in doubt in Russia

The UN Human Rights Committee has also expressed concern about lack of independence of Russia’s courts. This raises questions about the fair trial rights of Ms. Kartasheva. Her trial was held in absentia. While she had a Russian criminal defense lawyer who communicated with her and prepared responses, no defense materials or information were discussed in the court’s reasons for judgement. The evidence consisted of witness testimony from Ms. Kartasheva’s mother and her parents-in-law, and the contents of her Telegram posts, which the judgement suggests was used as the basis of a determination of an intention to share false information “which would lead to an unreasonable increase in social tension and harm to the interests of the Russian Federation,” that “… the only way to protect the Russian Federation from Ms. Kartasheva was to put her in prison for over eight years, because she shared information about Bucha that the Russian Minister of Defense announced to be false, and that “no killings of the civilian population of Ukraine, including at the city of Bucha, were committed by [the Russian] military personnel.”

Russia’s “fake news” law has no Canadian equivalent

Does this Russian law equate to the Canadian Criminal Code offence of False Information? The short answer is no, it does not.

It is not known what research IRCC undertook, what internal legal advice it obtained, or what reasoning it applied before it made a determination that CCC subsection 372(1) was equivalent to Russia’s Criminal Code Article 207.3. A cursory examination of Canada’s subsection 372(1) shows no meaningful similarity to Russia’s “army discreditation” laws. Canada has no laws against discrediting the army or “fake news.”

The CCC subsection 372(1) states that, “Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.” This hybrid offence carries a maximum prison term of two years. A search of case law shows that subsection 372(1) is rarely used and has been mainly applied to false 9-1-1 calls. Canadian government guidelines for police and prosecutors envision its use to prosecute stalking or other forms of criminal harassment.

Conclusion: Create practical measures to protect human rights defenders from persecution

For a seven-month period, Canada’s IRCC contributed to the persecution of a permanent resident of Canada by incorrectly equating an internationally notorious and illegitimate Russian law to a Canadian Criminal Code hybrid offence aimed at curtailing criminal harassment and stalking.

The Russian government’s harsh persecution of critics is notorious. The Canadian government has spoken out against the persecution of Russia’s opposition politicians, journalists, and others, and has even applied sanctions against the Basmanny District Court of Moscow that convicted both Mr. Navalny and Ms. Kartasheva.

A superficial examination of Russia’s Criminal Code Article 207.3 itself, together with readily available commentary by human rights organizations, UN experts, and Canadian government officials shows that this law violates the right to freedom of expression guaranteed by Article 19 of the ICCPR, to which both Canada and Russia are States Parties. Russia has a well-known track record of charging people outside Russia with administrative and criminal cases, including at least one other resident of Canada. A reading of the text of the Basmanny court’s judgement against Ms. Kartasheva should have raised IRCC’s apprehension about the compliance of this law with international human rights law and standards.

At all relevant times, Ms. Kartasheva was a lawful, permanent resident of Canada. All branches of the Canadian government owe a duty to ensure protection of her rights under the ICCPR. Canada also owes duties under the UN Declaration on Human Rights Defenders, which gives Canada the responsibility to ensure – in practice – the protection of the rights of those who uphold human rights. Ms. Kartasheva is also arguably one of the people for whom Canada’s “Voices at Risk” Guidelines on Supporting Human Rights Defenders was designed.

If Ms. Kartasheva had not been able to persuade the IRCC to reverse its decision, her permanent residency could have been threatened. Such a result could have emboldened the Russian government to continue its threats and prosecutions of human rights defenders and political opponents in Canada or elsewhere.

Happily, the case of Maria Kartasheva was resolved in her favour. Media reports of her plight in early January 2024 led Canadian MP Anita Vandenbeld to step in to assist. The Minister of IRCC, now Marc Miller, publicly confirmed that Ms. Kartasheva had been invited to become a citizen, and that Canada’s citizenship eligibility rules are not intended to be used against legitimate political dissenters. She was able to take her oath of citizenship on 9 January 2024.

Since then, Maria Kartasheva has advocated to prevent others from experiencing IRCC issues of the type that befell her. With MP Anita Vandenbeld’s support, Ms. Kartasheva launched an e-petition to Parliament pointing out that the

“… current process for evaluating immigration and citizenship applications unfairly places the burden on those facing political persecution to prove that foreign laws they’re accused of violating aren’t crimes in Canada, and this places undue stress to those who have suffered under autocratic regimes.”

Her e-petition recommends that Canada “establish a pre-approved list of laws used for political persecution that don’t have an equivalent in Canada, for the purpose of fast-tracking the evaluation of immigration and citizenship applications…” This e-petition is open for signatures by Canadians until 17 March 2024.

IRCC would also do well to review its procedures and timelines and to ensure adequate training of all its officials in international human rights law and Canada’s policies to protect human rights defenders. This is particularly important in matters involving the potential of removal of human rights defenders to places where they are likely to be persecuted. Canada should ensure that all government departments are well equipped to ensure that all persons charged under internationally illegitimate laws or with trumped up offences in Russia or elsewhere are guaranteed full protection of all their rights provided by international human rights law.