The federal government is fighting a court order to turn over details about a spying operation on the Chinese embassy in Ottawa, arguing that such a release would jeopardize national security and international relations.
The government’s appeal, which comes amid heightening tensions between China and Canada, was filed in September after Federal Court Justice Richard Mosley ordered Canadian Security Intelligence Service documents be handed over to the defence in the criminal proceeding against Qing Quentin Huang.
Mr. Huang, a one-time employee of a military contractor in Burlington, Ont., was arrested after allegedly calling the embassy to try to pass along Canadian naval secrets to the Chinese. He was charged in 2013 with violating the Security of Information Act after CSIS, which had been bugging the embassy as part of an unrelated intelligence investigation, recorded his conversations and passed the tapes to RCMP investigators.
Over the past six years, the case has bounced among four levels of courts over fears it would expose intelligence secrets. That’s because information about CSIS wiretaps is normally classified and dealt with in closed courtrooms. But because this is a criminal matter, the accused has the right to seek to learn how the wiretap evidence was gathered against him and what it contains – then challenge it.
On Aug. 30, Justice Mosley ruled that portions of the CSIS warrant and some supporting documents could be turned over to the defence. The ruling also said some blocked portions of the CSIS warrant materials could be released, but only if prosecutors first brokered an agreement with Mr. Huang’s lawyer. The materials would only be released “upon obtaining an undertaking from counsel for Mr. Huang that he will not disclose the information to Mr. Huang.”
In his partly redacted ruling, Justice Mosley wrote that CSIS inevitably assumes a degree of risk related to exposing its documents when it passes material to the police.
In deciding to release or withhold the wiretap materials, he said “the bulk of this information is not relevant to the merits of the trial proper, as it [passage redacted] did not involve Mr. Huang. He was not a target of the warrant. The collection of his telephone calls was incidental to the authorized interception of the [People’s Republic of China] Embassy telephone [passage redacted]. And it was entirely fortuitous that the [Canadian Security Intelligence] Service stumbled across the evidence passed on to the RCMP.”
Justice Mosley stressed that he has always tried to balance security issues around the CSIS wiretap warrant carefully. “If I considered the information to be non-injurious, I ordered that it be disclosed.”
Before any disclosure could take place, government lawyers once again appealed. On Sept. 9, they argued the judge had erred in “concluding that disclosure of some of the information in question would not be injurious to national security and international relations.”
Since the case first revealed that CSIS was spying on the embassy in 2017, Canadian-Chinese relations have soured. Last December, police in Vancouver arrested Meng Wanzhou, the daughter of the founder of Chinese telecom giant Huawei on a U.S. extradition warrant. Days later, China arrested two Canadians in apparent retaliation, and the men remain in custody as Beijing puts pressure on Ottawa for Ms. Meng’s release.
Nothing in the publicly released filings of the Huang case states why CSIS took an interest in China’s sprawling H-shaped complex overlooking the Rideau River and swore a wiretap warrant affidavit in 2013. The filings do state that a Global Affairs Canada official and a CSIS counterintelligence chief have testified about the impact of potential disclosures in closed hearings in recent months. (Their names have been withheld from public rulings.)
Security agencies around the world often target foreign diplomats to root out potential spy rings or influence campaigns. Surveillance of embassies can be commonplace, but it is rare for any state to admit this or disclose documents about it.
When the case against Mr. Huang began in 2013, prosecutors disclosed redacted versions of the CSIS wiretap warrant materials.
But the defence later argued it would need to see unredacted versions of those documents to mount a challenge to the wiretap evidence. Justice Mosley first ordered some CSIS material be disclosed to the defence two years ago, a ruling that was unsuccessfully appealed by the government.
When the Supreme Court refused to hear a further appeal in March, the government launched two new motions to block disclosures. These are what prompted Justice Mosley’s follow-up ruling in August, as well as the government’s latest challenge.
Matters are now before the Federal Court of Appeal. Should the secrecy issues be resolved, Mr. Huang’s challenge of the CSIS wiretap evidence will be routed back to a criminal courtroom for a hearing that will be closed to the media and the public.
After that, a criminal trial could finally be held in open court – but no one knows when that could be.
“The prolonged period over which this has all played out … demonstrates the problems of the bifurcated system we have for adjudicating disclosure,” said Leah West, a former Justice Department lawyer who now lectures at Carleton University.
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