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Qing Quentin Huang leaves a Toronto court house on April 27, 2015.

Chris Young/The Globe and Mail

Federal prosecutors have stayed two of four criminal charges against an engineer accused of offering secrets about the Royal Canadian Navy to China.

Qing Quentin Huang worked for a military contractor that was designing Canadian Forces vessels at the time of his Nov. 30, 2013, arrest in Burlington, Ont.

He was initially charged with four counts of violating the Security of Information Act for attempting and preparing "to communicate to a foreign entity information that the Government of Canada was taking measures to safeguard.”

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Mr. Huang still faces trial on two criminal counts relating to conversations he allegedly had with undercover RCMP officers in a sting operation. But prosecutors this month stayed the other two, which arose from a Canadian Security Intelligence Service wiretapping campaign against the Chinese embassy in Ottawa.

Ottawa challenges court order to turn over details of spy operation on Chinese embassy

Attorney-General David Lametti invokes power to block judge-ordered disclosures

Information about the wiretapping of any foreign embassy is a subject of enormous sensitivity for any government.

Judges at various courts have spent years weighing government arguments for state secrecy against Mr. Huang’s right to see evidence against him. He has been fighting for access to documents so he can challenge the wiretaps. Last year, Attorney-General David Lametti made an unprecedented legal intervention to block disclosures to Mr. Huang.

Observers say it is not surprising that the Crown has now decided to cut back its case. “It was fairly clear that proceeding with the charges stemming directly from the wiretap were going to be extremely challenging,” said Leah West, a former Justice Department lawyer who lectures on national security law at Carleton University.

On Nov. 25, 2013, Mr. Huang was alleged to have made two phone calls to the Chinese embassy in Ottawa "during which he told the embassy staff that he was willing to disclose confidential military information to the Chinese government,” according to a past judicial order in the case.

Prosecutors stayed the charges on Sept. 9. “I can indicate that the concern is with the effect on the overall prosecution of the additional time required to deal with issues particular to these counts,” Crown lawyer Howard Piafsky said in an e-mail to The Globe.

He added that “the Crown is ready to proceed with the other two counts on the indictment and would like to set dates for trial.”

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Frank Addario, the lawyer acting for Mr. Huang, had no comment.

Intelligence agencies such as CSIS routinely spy on foreign embassies but details of these operations are almost always shielded for fear of jeopardizing intelligence methods or damaging international relations.

Like police, CSIS officers have to go to a judge to seek prior approval for wiretapping. But unlike police, CSIS warrant applications are undertaken with the expectation that judges will keep such bids for surveillance secret.

These calculations change, however, when CSIS intelligence is passed to police who use such material to support charges. Criminal trials must always proceed in open court, where an accused has a right to see and challenge evidence.

Last year, Federal Court Justice Richard Mosley ordered that Mr. Huang and his counsel be given access to portions of a CSIS wiretapping warrant application from 2013. In these materials, federal intelligence officers justified to a judge their need to eavesdrop on the Chinese embassy.

In response to that disclosure ruling, Mr. Lametti invoked a never-before-used national-security power. The Attorney-General issued a ministerial certificate overriding Judge Mosley, to prevent the disclosure of six paragraphs of a 166-paragraph CSIS wiretap-warrant affidavit.

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Rachel Rappaport, a spokeswoman for Mr. Lametti, said the minister was not involved in the prosecutors' decision to stay two of four charges. “All decisions relating to the prosecution were taken independently by the PPSC [Public Prosecution Service of Canada].”

These charges are stayed and not dropped. That means they can be revived within a year if the Crown chooses.

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