COURT FILE NO.: CR17-90000077-0000
DATE: 20210111
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
QING (QUENTIN) HUANG
Respondent
- and -
THE GLOBE AND MAIL INC.
Howard Piafsky and Brendan Gluckman, for the Public Prosecution Service of Canada
Frank Addario and James Foy, for Huang
Andrew W. MacDonald, for the Globe and Mail Inc.
Anil Kapoor, Amicus curiae
HEARD: December 17, 2020
M. DAMBROT J.:
[1] The Crown brings this application for an order
a) to seal a part of the record filed in support of an application relating to charges under the Security of Information Act, R.S.C. 1985, c. C-5 ("SOIA"),
b) to hold part of the proceedings in camera, and
c) to seal the transcriptions and recordings of the in camera portion of the proceedings.
BACKGROUND
[2] Qing (Quentin) Huang stands charged in an indictment before this Court with two counts of preparing to communicate safeguarded information to a foreign entity pursuant to s. 22(1)(c) of the SOIA. He was initially charged with two counts of attempting to communicate to a foreign entity information that the Government of Canada was taking measures to safeguard under s. 16 of the SOIA, but the Crown added the present two counts to the indictment in December 2016 and withdrew the original two counts on September 9, 2020.
[3] All of the charges stem from the interception of telephone calls the accused allegedly made on November 23, 2013, to the Embassy of the People's Republic of China ("China" or "PRC") in Ottawa by the Canadian Security Intelligence Service ("CSIS") under the authority of a warrant issued by the Federal Court. CSIS provided transcripts and recordings of the intercepts to the Royal Canadian Mounted Police ("RCMP") pursuant to s. 19 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 ("CSIS Act"). A subsequent RCMP investigation, including a brief undercover operation, resulted in the accused's arrest and prosecution. In December 2014, as a part of the Crown's pre-trial disclosure to Mr. Huang, the Crown provided to him heavily redacted versions of the CSIS warrant and the affidavit relied upon to support the issuance of the warrant. The redactions were made pursuant to s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA").
[4] The trial of the original four counts in the indictment was scheduled to proceed on November 14, 2016, but the accused discharged his counsel on October 18, 2016, and the trial was adjourned. Unlike Mr. Huang's previous counsel, his new counsel elected to challenge the lawfulness of the warrant and the admissibility of the intercepted calls. In addition, on February 27, 2017, the accused brought an application in Federal Court pursuant to s. 38.04(2)(c) of the CEA seeking disclosure of the redacted content of the affidavit and warrant, arguing that it was necessary for the purpose of a Garofoli application he intended to bring in the criminal proceeding. A Garofoli application is an application to exclude the recordings of intercepted communications from evidence, pursuant to s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms and in accordance with the principles and procedures established by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
[5] The redactions in the version of the CSIS affidavit and warrant disclosed to the accused have been the subject of lengthy litigation in the Federal Court. The litigation was finally resolved on August 20, 2019, when Mosley J. upheld most of the Crown's redactions but ordered some material that had been redacted to be disclosed to Huang. On November 14, 2019, the Attorney General issued a certificate under s. 38.13 of the CEA, prohibiting the disclosure of some of the information that had been ordered disclosed by Mosley J. This was done for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity and for the purpose of protecting national security or national defence as provided under s. 38.13(1) of the CEA. Crown counsel then provided the accused with a new version of the CSIS affidavit, which contained the disclosure ordered by Mosley J. except for the disclosure prohibited by the Attorney General's certificate.
[6] In 2017, in the course of the Federal Court proceedings, Mr. Huang brought a further disclosure application in this court, seeking information regarding the implementation of the CSIS warrant. He filed an application record in support of that application that included the redacted versions of the CSIS warrant and affidavit that had been disclosed to him by the Crown at that point in time. Global Affairs Canada advised the Crown that the parts of the warrant and affidavit that were not redacted contained information that could damage Canada's international relations and would be seriously injurious to Canada's ability to conduct its foreign policy objectives if they were publicly disseminated. As a result, on August 11, 2017, the application materials were ordered temporarily sealed by O'Marra J. pending the hearing of the application.
[7] The disclosure application came on for hearing before me in December 2017. Immediately prior to the commencement of the disclosure application, Crown counsel brought an application pursuant to s. 486 of the Criminal Code to hold the hearing of both the disclosure application and the accused's Garofoli application in camera and to permanently seal the court file. The order was granted, subject to being set aside by the court (see R. v. Huang, 2018 ONSC 888, at para. 9). For ease of reference, in the remainder of these reasons, I will refer to this and similar applications or orders as s. 486 applications or orders, although the relief sought is clearly broader than simply the relief available under s. 486 and extends to the sealing of exhibits and transcriptions.
[8] On December 9, 2019, following the final resolution of the Federal Court litigation, the respondent filed an application in this court pursuant to s. 38.14 of the CEA, seeking a stay of his criminal trial due to non-disclosure of relevant information, namely portions of the affidavit used to obtain the CSIS warrant. On March 3, 2020, the respondent filed a factum and application record. As part of the application record, the respondent again filed a copy of the redacted CSIS warrant and affidavit, as further revised after the final decision of Mosley J.. The application was set to be heard on March 30, 2020.
[9] The redacted warrant and affidavit have never been publicly disclosed, and the versions filed in the 2017 disclosure application in fact have remained sealed in accordance with my earlier s. 486 order. In response to a concern raised by Crown counsel about potential public disclosure of the newly filed redacted affidavit and warrant, counsel for the accused took the position that the earlier s. 486 order did not relate to the stay application and did not prohibit disclosure of the warrant and affidavit in that application. In this he is technically correct.
[10] In any event, in a pre-trial hearing before McMahon J. on March 5, 2020, as a result of the understandable concerns raised by the Crown, March 20, 2020 was fixed as a date to hear a fresh s. 486 application in relation to the s. 38.14 stay application, and the redacted information and warrant remained unavailable to the public in the interim. The media were given notice of the application, and the Globe and Mail notified the parties of their intention to participate in the s. 486 hearing.
[11] The March 20, 2020 s. 486 application was adjourned because of the COVID-19 pandemic. The application record, with the agreement of counsel, has remained in a sealed file pending determination of the s. 486 application. The Crown did not seek to reschedule the s. 486 application or to seek an order to seal any portions of the respondent's application record for some time. On November 17, 2020, however, the Crown brought a "Cody" application: an application to summarily dismiss the respondent's s. 38.14 stay application in accordance with the principles and procedure outlined in the decisions of the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, and the Ontario Court of Appeal in R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277. In Cody, the Court emphasized the importance of the screening function performed by the trial judge when confronted with an application. Where that application discloses no reasonable prospect of success, it should not be permitted to proceed but should be dismissed outright. The Cody application is scheduled to be heard by me on January 18, 2021.
[12] On December 3, 2020, the Crown brought this application for s. 486 orders relating, respectively, to: (1) the conduct of the hearing of the Crown's application for summary dismissal of the respondent's stay application (the Cody application); and (2) the conduct of the hearing of the s. 486 application itself. More specifically, the Crown seeks the following orders:
With respect to the Cody application:
That any part of the respondent's record containing the CSIS affidavit and warrant be sealed and kept in the custody of the court in a place to which the public has no access, pending determination of the Crown's application for summary dismissal;
That the public be excluded from the court room during any part of the proceeding where the respondent intends to reference the content of the CSIS affidavit and warrant in argument; and
That any transcriptions and recordings of the above in camera portion of the proceeding be sealed.
With respect to the s. 486 application:
That the top-secret affidavit of Weldon Epp be sealed and kept in a place suitable for the storage of top-secret material to which the public has no access, permanently;
That the public and the respondent be excluded from the courtroom during the testimony of the affiant and that Weldon Epp give evidence and be cross-examined by amicus curiae ex parte and in camera; and
That any transcriptions and recordings of the above in camera portion of the proceeding be sealed permanently.
[13] The basis for this application is that the public dissemination of the information at issue would have an injurious impact on Canada's international relations.
THE EVIDENCE HEARD ON THIS APPLICATION
[14] For the most part, the history of this matter insofar as it needs to be understood for the purpose of this application is contained in the various public judicial decisions made to date. In addition, in order to establish that the public dissemination of the information at issue would have an injurious impact on Canada's international relations, the Crown relied on the affidavit of Weldon Epp, Director General, North Asia and Oceania, at Global Affairs Canada. His affidavit has been classified top-secret. The concerns described in his affidavit are set out in general terms in an unclassified portion of the affidavit that has been filed in the public record, which may be summarized as follows:
Maintaining effective relations with the People's Republic of China (PRC) is important to Canadian interests. Following the December 2018 arrest of Meng Wanzhou pursuant to a U.S. extradition request, the relationship has deteriorated significantly.
As Canada and other states have experienced in managing bilateral relations with the PRC, everything from consular cases to exports, tourism to the procurement of personal protective equipment (PPE) may be linked and impacted by Chinese diplomatic strategies. During the past decade Canada has on multiple occasions seen domestic judicial processes, in which the PRC takes an active interest, lead to arbitrary decisions by the PRC government that impact Canadian interests.
During this time of heightened tensions with the PRC it is in Canada's interest to ensure that the management of our necessary but complex engagement with the PRC is not negatively affected further by the public disclosure of sensitive information. Any additional public release of the CSIS affidavit and warrant would have a significant negative impact on the ability to conduct foreign relations with the PRC.
[15] Needless to say, this description of the significant interests at stake and the injurious impact on Canada's international relations that would be occasioned by the public disclosure of the information in the wiretap materials is generic and open to debate. However, the significant interests at stake and the risks raised by public dissemination of the information in question were amplified in Mr. Epp's top-secret affidavit. In addition, Mr. Epp testified about the content of his affidavit before me in camera and ex parte, but in the presence of Mr. Anil Kapoor, who was appointed as amicus curiae on December 2, 2020, by McMahon J. to assist the court with factual and legal issues and to help ensure the proper administration of justice. Mr. Kapoor cross-examined Mr. Epp and made submissions. Mr. Kapoor played a similar role in the first application I heard in this matter. As I have come to expect, Mr. Kapoor's assistance was invaluable.
[16] I cannot elaborate on the evidence in the affidavit or that I heard in camera. I can say that it was specific as to the interests at stake, their importance to Canada, and the injurious impact that would likely be occasioned by dissemination. It included specific examples of both the injurious impact of the dissemination of sensitive information in the past, and the likely significant injurious impact of dissemination of the information in issue now. The evidence was compelling.
ANALYSIS
[17] The information with respect to which the Attorney General asks me to prohibit dissemination has twice been judicially determined to be worthy of protection, once by me, and once by the Federal Court. The history of these determinations is a bit convoluted, but I will describe it as briefly as possible.
[18] In Huang v. Canada, 2017 FC 6662, Mosley J. considered an application brought by Huang pursuant to s. 38.04(2)(c) of the CEA for an order disclosing the redacted content of the CSIS affidavit and warrant that had been disclosed to him by the Crown. Huang asserted that he needed this additional information to make full answer and defence to the charges alleged against him in this court, specifically to challenge the lawfulness of the interception of his private communications.
[19] There is no reason to examine the details of the decision of Mosley J. or his conclusions in these reasons. I note, however, that in his reasons, dated July 7, 2017, he found that some of the redacted information would not be relevant in the criminal proceeding, and, at para. 68, he indicated that he generally accepted the evidence presented to him that disclosure of much of the redacted content of the affidavit and warrant would cause injury to Canada's international relations. He reached this conclusion despite acknowledging that in choosing to permit public disclosure of the interceptions in this case, Canada, through CSIS was prepared to accept some risk of injury in order to prosecute Mr. Huang. However, in respect of some of the redacted information, he concluded that the Attorney General had not met its burden to establish that injury would result from the disclosure of relevant information to the accused and ordered such disclosure. He was not asked to address, nor did he address whether or not injury would result from the disclosure of this specific information to the public.
[20] On appeal by the Crown and cross-appeal by Huang to the Federal Court of Appeal, the court dismissed the cross-appeal (Canada v. Huang, 2018 FCA 109, 362 C.C.C. (3d) 87) but allowed the Crown's appeal in part in private reasons that are not before me, and remitted the matter back to Mosley J. for reconsideration in part.
[21] In November and December 2017, after the first ruling made by Mosley J., I heard the Crown's first application to this court concerning public dissemination of the affidavit and warrant. I delivered my ruling on March 16, 2018, after the decision of the Federal Court of Appeal directing a reconsideration of the decision of Mosley J., but prior to his reconsideration of it (2018 ONSC 888).
[22] In my ruling of March 16, 2018, I excluded the public from the hearing of Mr. Huang's disclosure application in relation to the implementation of the CSIS warrant, I excluded the public from Mr. Huang's application to exclude evidence of intercepted private communications seized pursuant to the CSIS warrant at his trial, and I ordered the permanent sealing of the court files in relation to those applications, including any application materials and exhibits, as well as any recording of the proceedings, unless my order is set aside, upon notice to the PPSC and the Attorney General of Canada, by me, by the judge of this court who hears the application to exclude evidence, by the trial judge or by any other judge of this court at the conclusion of the proceedings on the indictment. This order necessarily included a prohibition on the dissemination of the CSIS affidavit and warrant, whether redacted or not.
[23] I reached the conclusion that this order was necessary because revealing information about the warrant would be injurious to Canada's international relations. My conclusion was based on the top-secret affidavit of David Hartman, who was then the Director General, South Asia, at Global Affairs Canada, and had been Executive Director, Greater China Division, for a period of time ending on July 28, 2017. In my reasons for making the order, I stated the following at para. 8:
In this case, having regard to the injury that would be caused to Canada's international relations, the fact that the accused is not opposed to the order, the fact that the media could not publish information about either the disclosure motion or the exclusion motion until the jury retires to consider its verdict by virtue of ss. 648(1) and 645(5) of the Criminal Code in any event, and the fact that the media have expressed no interest in the matter, I was satisfied that the order should be made, and did in fact make it.
[24] In the public judgment and reasons of Mosley J. dated August 30, 2019 (2019 FC 1122), he addressed the reconsideration ordered by the Federal Court of Appeal. Considering the significant redactions in that decision, it is difficult to understand all the parameters of the order he made. What is clear, however, is that he permitted the Crown to make disclosure of certain redacted information to the accused and to this court in accordance with my order of March 19, 2018, that is, for the purpose of a closed hearing and without public dissemination.
[25] In the result, as I said, the information with respect to which the Attorney General asks me to prohibit dissemination has twice been judicially determined to be worthy of protection. Although I undoubtedly have the jurisdiction to consider the matter afresh, the prior consideration would ordinarily be a sufficient basis for me to simply extend my order to the stay application. Certain circumstances, however, have changed.
[26] First, in my initial order, although I was satisfied that dissemination of the information would cause injury to Canada's international relations, I also took into account the fact that the accused was not opposed to the order, the fact that the media could not publish information about either the disclosure motion or the exclusion motion until the jury retires to consider its verdict by virtue of ss. 648(1) and 645(5) of the Criminal Code in any event, and the fact that the media have expressed no interest in the matter. What has changed is that the Globe and Mail has now taken an interest in the matter and was present at the hearing to oppose the application.
[27] The second change in circumstance favours non-disclosure. Relations between Canada and China have deteriorated significantly since I made my first order, and there are very real risks at play now that were not so apparently at play then.
[28] Third, the Crown seeks a much more focussed prohibition now than it did previously.
[29] As a result, although I will have regard for my previous decision, I will embark on a fresh analysis.
[30] The approach I must take to this question begins with a recognition of the fundamental importance of the open court principle, a hallmark of a democratic society that applies to all judicial proceedings and is integral to the public's understanding of the administration of justice and its confidence in the justice system. I am also keenly aware of the value of the media in giving effect to the principle of openness. Absent good reason to do otherwise, members of the public must be permitted, most commonly through the reporting of court proceedings by the media, to evaluate for themselves the workings of the administration of justice.
[31] With these important principles in mind, I turn to the test for limiting the open court principle: the Dagenais/Mentuck test. The contours of this test flow from the decisions of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. The test mandates that a sealing order or ban on publication should only be made where: (1) the order is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and (2) the salutary effects of the order outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of an accused to a fair and public trial, and the efficacy of the administration of justice. This analytical approach also applies to requests for access to exhibits, which is a part of the open court principle (see Canadian Broadcasting Corporation v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65 at para. 12). The test must be applied in a flexible and contextual manner rather than mechanically.
[32] Section 486 of the Criminal Code specifically addresses the exclusion of the public in criminal proceedings. Section 486(1) permits the exclusion of the public for all or part of a trial in a number of circumstances, including when it is necessary to prevent injury to international relations, the ground advanced here.
[33] In Dagenais, the Supreme Court provided the framework to be followed in determining whether the public should be excluded from a part of a trial pursuant to s. 486(1):
(a) the judge must consider the available options and consider whether there are any other reasonable and effective alternatives available;
(b) the judge must consider whether the order is limited as much as possible; and,
(c) the judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate.
[34] With respect to access to court exhibits, while the open court principle generally requires that such access be unhindered and includes the right to be provided with copies, limits can be justified (see Canadian Broadcasting Corporation v. The Queen, at para. 12). The trial judge retains the discretion to decide how exhibits should be managed to ensure an orderly trial. Any restriction on the right to access court exhibits and make copies must meet the Dagenais/Mentuck test.
[35] In this case, in my view, the Dagenais/Mentuck test is met with respect to both the limited closing of the court requested by the Crown and the limited denial of access to exhibits. In essence, the entirety of the application comes down to one issue: whether denying access to and disclosure of the redacted affidavit and warrant is justified. The only other limitation sought by the Crown is on the evidence of Mr. Epp. It was obviously necessary to hear that evidence in camera in order to assess the argument concerning the information and warrant and to seal the recording of it, and no one opposed either order.
[36] I have weighed the importance of the objectives of the particular order sought and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate. I conclude that the order is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk. I further conclude that the salutary effects of the order outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of an accused to a fair and public trial, and the efficacy of the administration of justice.
[37] I note that it appeared to me during Mr. Kapoor's cross-examination of Mr. Epp that there might be some very limited additional information in the affidavit of Mr. Epp that is not in the public portion of his affidavit and that could be summarized and disclosed to the public without risk of injury to international relations. In keeping with my obligation to consider whether the order is limited as much as possible, I asked Mr. Piafsky and Mr. Kapoor to prepare such a summary and they have done so. Upon reviewing their summary, for which I am grateful, I concluded that the additional disclosure would be so generic and lacking in substance that it would not in any meaningful way foster democratic discourse, truth finding and self-fulfilment. On the contrary, releasing it would risk trivializing the right to freedom of expression and the open court principle. I decline to release it.
[38] In reaching the conclusion that the Dagenais/Mentuck test is met in this case and that the orders sought should be granted, I bear in mind several considerations.
[39] First, I bear in mind that the affidavit and warrant are associated with judicially authorized national security wiretaps that were contained in a sealed packet and are presumed to be confidential. They are subject to public disclosure solely because they are being used in a judicial proceeding.
[40] Second, I further bear in mind that the evidence of Mr. Epp, which, as I have said, was specific as to the interests at stake and the injurious impact that would likely be occasioned by dissemination, was compelling. It included a cogent explanation of the importance to Canadian interests of maintaining effective relations with China, particularly in the present climate, details about the experiences of other states in managing bilateral relations with China, specific examples of the injurious impact of the dissemination of sensitive information in the past, and the likely specific and significant injurious impact of dissemination of the information in issue before me. Mr. Epp's evidence satisfies me that the orders requested are necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk.
[41] Third, I bear in mind the calibrated scope of the orders requested and the modesty of the protective measures proposed by the Crown. Public exclusion from the trial is sought only if necessary and only for a limited and defined purpose, and the denial of access to proposed exhibits is also very limited and for a defined purpose. The public already has access to a summary of the nature of the evidence of Mr. Epp, knows something about the intercepting of Mr. Huang's communications and will know much more if the trial proceeds. This application itself was largely held in public, and the Cody application, the stay application if it proceeds, and the trial itself, if there is one, will all largely be held in public. Moreover, the information in issue is inherently confidential in nature and has nothing to do with the accused or the allegations he will face at trial, but instead is implicated solely in relation to the determination of the admissibility of evidence.
[42] Accordingly, the orders requested are granted, with two small alterations. I have altered the requested orders so that anything that is sealed may still be ordered unsealed by court order upon appropriate notice, and that my exclusion of the public may also be ordered to be altered upon appropriate notice.
DISPOSITION
[43] With respect to the Cody application, I order:
That any part of the respondent's record containing the CSIS affidavit and warrant be sealed and kept in the custody of the court in a place to which the public has no access, pending determination of the Crown's application for summary dismissal, unless this order is set aside, upon notice to the Public Prosecution Service of Canada and the Attorney General of Canada, by me, by the judge of this court who hears the Cody application, the stay application or any other application to exclude evidence, by any other judge of this court at the conclusion of the proceedings or by the Court of Appeal;
That the public be excluded from the court room during any part of the proceeding where the respondent intends to reference the content of the CSIS affidavit and warrant in argument, subject to any alteration of this order, upon notice to the Public Prosecution Service of Canada and the Attorney General of Canada, by the judge conducting that part of the proceeding; and
That any transcriptions and recordings of the above in camera portion of the proceeding be sealed, unless this order is set aside, upon notice to the Public Prosecution Service of Canada and the Attorney General of Canada, by me, by the judge of this court who hears the Cody application, the stay application or any further application to exclude evidence, by any other judge of this court at the conclusion of the proceedings or by the Court of Appeal.
[44] With respect to the s. 486 application, I order:
That the top-secret affidavit of Weldon Epp be sealed and kept in a place suitable for the storage of top-secret material to which the public has no access, permanently, unless this order is set aside, upon notice to the Public Prosecution Service of Canada and the Attorney General of Canada, by me or by the Court of Appeal;
That the public and the respondent be excluded from the courtroom during the testimony of the affiant and that Weldon Epp give evidence and be cross-examined by amicus curiae ex parte and in camera; and
That any transcriptions and recordings of the above in camera portion of the proceeding be sealed permanently, unless this order is set aside, upon notice to the Public Prosecution Service of Canada and the Attorney General of Canada, by me or by the Court of Appeal.
M. DAMBROT J.
RELEASED: January 11, 2021
COURT FILE NO.: CR17-90000077-0000
DATE: 20210111
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
QING (QUENTIN) HUANG
REASONS FOR ORDER
M. DAMBROT J.
RELEASED: January 11, 2021