CITATION: R. v. Huang, 2017 ONSC 2589
COURT FILE NO.: CR-15-90000283-0000
DATE: 20170602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
QING QUENTIN HUANG
Applicant
Howard Piafsky and Bradley Reitz, for the Crown
Frank Addario and Samara Secter, for the Applicant
HEARD: March 30, 2017
RULING IN REGARD TO THE CONSTITUTIONALITY OF s. 22(1)(c) OF THE SECURITY OF INFORMATION ACT
B. P. O’Marra j.
OVERVIEW
[1] The applicant was employed at a maritime classification and certification society (“the society”) that provides services to the Government of Canada and The Royal Canadian Navy. He is alleged to have made two phone calls to the Chinese embassy in Ottawa on November 25, 2013 during which he told the embassy staff that he was willing to disclose confidential military information to the Chinese government.
[2] A subsequent police investigation involved an undercover officer posing as a representative of the Chinese embassy. He approached the applicant who confirmed that he had called the embassy, worked at the society and was willing to assist the Chinese.
[3] The applicant accepted a cell phone from the undercover officer and a USB to download and store documents from the society.
[4] The applicant was arrested on November 30, 2013 and was charged with two counts of attempting to communicate safeguarded information contrary to s. 16(1) of the Security of Information Act, R.S.C. 1985 c. O-5 (SOIA). He was later charged with two additional counts of preparatory acts contrary to s. 22(1)(c) of the SOIA. The text of those sections is as follows:
Communications with Foreign Entities or Terrorist Groups
Communicating safeguarded information
16 (1) Every person commits an offence who, without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if
(a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and
(b) the person intends, by communicating the information, to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests or is reckless as to whether the communication of the information is likely to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests.
Communicating safeguarded information
(2) Every person commits an offence who, intentionally and without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if
(a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and
(b) harm to Canadian interests results.
Punishment
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.
Preparatory Acts
22 (1) Every person commits an offence who, for the purpose of committing an offence under subsection 16(1) or (2), 17(1), 19(1) or 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including
(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity;
(b) obtaining, retaining or gaining access to any information;
(c) knowingly communicating to a foreign entity, a terrorist group or a foreign economic entity the person’s willingness to commit the offence;
(d) at the direction of, for the benefit of or in association with a foreign entity, a terrorist group or a foreign economic entity, asking a person to commit the offence; and
(e) possessing any device, apparatus or software useful for concealing the content of information or for surreptitiously communicating, obtaining or retaining information.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.
THE APPLICATION
[5] The applicant’s constitutional challenge to s. 22(1)(c) of the SOIA is set out in paragraphs 4 and 5 of his factum:
- The Applicant submits that s.22(1)(c) violates s. 7 of the Charter of Rights and Freedoms unless it is construed to include the following elements:
a. The accused knowingly communicates his willingness to commit the underlying offence;
b. He intends to commit that offence; and,
c. He believes that there is a reasonable possibility of committing the offence and that possibility is objectively reasonable.
These elements follow from the statutory requirements that the accused’s actions be “for the purpose of committing an offence” and be “specifically directed towards or specifically done in preparation of the commission of the offence”.
- The Applicant submits that a broader interpretation of s. 22(1) not including these three elements would make the provision unconstitutionally overbroad in relation to its purpose, and that the resulting violation of s. 7 of the Charter could not be justified under s.1. While the Applicant's primary submission is that a constitutional breach can be avoided by reading the provision narrowly, his alternative submission is that if s.22(1) cannot be interpreted in the manner proposed, it violates s. 7 of the Charter and should be declared of no force or effect under s. 52 of the Constitution Act, 1982.
[6] The Crown agrees that the applicant’s liberty interests are engaged by s. 22 of the SOIA. The Crown also agrees that the accused under that section must intend that his actions will result in the completed offence. The contentious issue is whether the possibility of committing the further offence must be objectively reasonable.
ANALYSIS
[7] In R. v. Alicandro, 2009 ONCA 133, the accused had been convicted of luring a child for sexual purposes by means of a computer system contrary to s. 172.1(1)(c) of the Criminal Code. The charge specified that he did so for the purpose of facilitating the commission of an offence under s. 173(2) of the Criminal Code. That section relates to the exposure of his genital organs to a child for a sexual purpose. Unbeknownst to the accused, he was in fact communicating with a police officer who posed as a young girl. The appellant submitted that he could not be found guilty of the offence charged because the person he communicated with was a police officer and not a child. On that basis his belief that he was exposing himself to a thirteen-year-old child would not be enough to fix him with liability (at para. 17).
[8] In dismissing the appeal, the Court, at paras. 20, 21, 24-27, 33-35, addressed issues including the following apposite to the issues before me:
• The criminalizing of conduct that is preparatory to the commission of designated offences; and
• The impossibility of committing the completed offences.
[20] By criminalizing conduct that is preparatory to the commission of the designated offences, Parliament has sought to protect the potential child victims of those designated crimes by [page179] allowing the criminal law to intervene before the actual harm caused by the commission, or even the attempted commission, of one of the designated offences occurs. Section 172.1 creates what Professor Ashworth refers to as essentially inchoate crimes, described in substantive offence terms: Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006), at pp. 468-70. [See Note 3 below]
[21] The offences created by s. 172.1, like the inchoate crimes of conspiracy, attempt and counselling, are prophylactic in that they seek to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes. Also like the inchoate offences, justification for criminalizing the conduct described in s. 172.1 is found in the required mens rea. It is the intention to facilitate the commission of one or more of the designated offences that makes the accused’s otherwise lawful conduct sufficiently harmful and potentially dangerous to warrant the imposition of criminal sanction. The words of McIntyre J. in R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, [1984] S.C.J. No. 12, at pp. 247-48 S.C.R., although addressing the crime of attempt, apply to the crimes created by s. 172.1:
[T]he intent to commit the desired offence is a basic element of the offence of attempt. Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent. (Emphasis added)
[24] The majority in the Supreme Court of Canada acknowledged the long-standing academic debate over whether the impossibility of committing the completed crime could ever provide a defence to a charge of attempting to commit that crime or conspiracy to commit that crime. [See Note 4 below] The majority concluded that impossibility of completion should not provide a defence to attempt or conspiracy. It determined that on a charge of attempt or conspiracy, the accused’s mens rea had to be determined based on the material circumstances as the accused believed them to be. Consequently, in Dynar, what mattered for the purposes of the attempt and conspiracy charges was whether the accused believed the money to be the proceeds of crime and not whether the money was in fact the proceeds of crime. The majority justified this holding as consistent with both the preventative rationale underlying inchoate liability and the generally accepted subjective nature of mens rea in criminal matters. [page181]
[25] The majority squarely addressed the appropriateness of criminalizing inchoate offences where the full crime could not be committed in addressing the conspiracy charge, at para. 91:
Does it make any difference to the potential liability of the conspirators that they could not have committed the substantive offence even if they had done everything they set out to do? Put another way, should conspirators escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful? Such a result would defy logic and could not be justified. (Emphasis added)
[26] After Dynar, it can safely be said that liability for inchoate offences turns on what the accused believed the material facts to be and not what those facts actually were. [See Note 5 below] Indeed, in response to a question from my colleague, Rosenberg J.A., counsel for the appellant acknowledged that the appellant could have been convicted of attempting to expose himself contrary to s. 173(2) had he been so charged.
[27] Given the nature of the offences created by s. 172.1 and the principles set down in Dynar, the accused's inability to complete the offence he sought to facilitate should provide no defence to the charge. It is, of course, always open to Parliament to provide a defence that would not be available under generally applicable criminal law principles. I turn now to the language of s. 172.1(1)(c) to determine whether Parliament has done so in respect of this offence.
[33] While I agree that on the wording of the section, the criminal purpose must be in respect of the person with whom [page183] the accused is communicating, there is no language supporting the contention that the criminal purpose is culpable only if the accused is actually able to bring that purpose to fruition and commit the designated offence with the person to whom the communication is made. This element of the offence created by s. 172.1(1)(c) focuses on the accused’s purpose in making the communication. Purpose is a state of mind. The appellant believed he was communicating with a child under 14 years of age. It is that belief, not the actual age of the person with whom he was communicating, that is relevant to the accused’s purpose in engaging in the communication.
[34] In considering the appellant’s interpretation of s. 172.1(1)(c), I must, of course, examine the entire provision. I agree with the Crown's submission that the appellant's interpretation renders a significant part of s. 172.1(1)(c) meaningless. The section specifically targets for protection either a person who is under 14 years of age or a person who the accused “believes is under the age of fourteen years”. If the appellant’s submission is correct, communication with a person who is not under 14 but who the accused believes to be under 14 years of age could never result in the commission of the offence created by s. 172.1(1)(c). The appellant’s interpretation reads the phrase “the accused believes is under the age of fourteen years” out of the section and would defeat Parliament's clear intention to capture communications with that class of persons.
[35] The section read as a whole and the specific language of s. 172.1(1)(c) lead me to reject the appellant's contention that the section is applicable only where the person with whom the accused communicates is in fact under 14 years of age. A consideration of the language in the context of the clear object of the provision fortifies this conclusion.
[9] In R. v. Legare, 2009 SCC 56, the accused was arrested and charged with, inter alia, one count of “child luring” contrary to s. 172.1(1)(c) of the Criminal Code. He was acquitted but on appeal a new trial was ordered. A further appeal to the Supreme Court of Canada was dismissed. The Court held that the trial judge’s interpretation of s. 172.1(1)(c) was unduly restrictive and misapprehended the essential elements of the offence (at para. 6). The section criminalized communication by computer with underage children for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs (at para. 28). The Crown was required to prove that the communication was with the specific intent of facilitating the commission of one of the designated offences (at para. 32). It is “neither necessary nor necessarily sufficient for the impugned acts of the accused to be objectively capable of facilitating the commission of the specified secondary offence with respect to the underage person concerned” (at para. 42). What mattered was whether the evidence as a whole established beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence with respect to that victim.
[10] In R. v. Khawaja, 2012 SCC 69, the accused was convicted of five terrorism offences. In terms of the actus reus, the Supreme Court of Canada confined s. 83.18 of the Criminal Code to “conduct that creates a risk of harm that arises beyond a de minimis threshold” (at para. 51). The Court referred to the deference owed to Parliament in enacting such provisions that are “not grossly disproportionate nor overboard in relation to the objective of prosecuting and, in particular, of preventing terrorism” (at para. 63).
[11] The SOIA was enacted in 2001 in response to the events of September 11, 2001. One of the goals of that legislation was to address the potential harm related to the sharing of protected information with a foreign entity or a terrorist group. Where there is evidence of a genuine intention to carry out such acts, it is a valid legislative goal to deal with it at the preparation stage.
[12] The applicant submits that s. 22 of the SOIA requires more than the de minimis threshold set out in Khawaja. In support of that position, he submits the following hypothetical scenario that would criminalize certain preparatory conduct and intention in an unconstitutional way:
A teenage boy in Canada somehow contacts the Kremlin and states he is willing to provide state secrets to harm Canadian interests. He in fact has no access to such information and there is no objectively reasonable risk of him providing any such information to the Kremlin.
The applicant submits that unless the section is interpreted to require proof that the possibility of committing the offence is objectively reasonable, there is a risk that expressions of criminal thoughts, without more, will be captured.
[13] I do not accept that s. 22(1)(c) of the SOIA casts an unconstitutionally wide net. Section 24 of the SOIA requires the consent of the Attorney General of Canada to commence a prosecution for an offence contrary to that statute. It is hard to conceive that the Minister would authorize a prosecution based on an allegation based on mere criminal ideation with no basis in reality. If such a prosecution were commenced, the de minimis threshold in Khawaja would insulate the accused from a finding of guilt.
[14] RESULT: The application is dismissed.
B. P. O’Marra J.
Released: June 2, 2017
CITATION: R. v. Huang, 2017 ONSC 2589
COURT FILE NO.: CR-15-90000283-0000
DATE: 20170602
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
QING QUENTIN HUANG
Applicant
ruling in regard to THE CONSTITUTIONALITY OF s. 22(1)(c) OF THE SECURITY OF INFORMATION ACT
B. P. O’Marra J.
Released: June 2, 2017