R. v. Huang, 2021 ONSC 2654

COURT FILE NO.: CR17-90000077-0000

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

QING (QUENTIN) HUANG

Applicant

Howard Piafsky and Brendan Gluckman, for the Public Prosecution Service of Canada

Frank Addario and Samara Secter, for Qing Huang

HEARD: February 18, 2021

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. DAMBROT J.:

[1] The applicant, Qing Huang, stands charged in this Court with two counts of preparing to communicate safeguarded information to a foreign entity contrary to s. 22(1)(c) of the Security of Information Act, R.S.C. 1985, c. O-5 (“SOIA”). The charges are being prosecuted by the Director of Public Prosecutions (“DPP”). They stem from telephone calls made by the applicant to the Embassy of the People’s Republic of China (“PRC”) in Ottawa that were intercepted by the Canadian Security Intelligence Service (“CSIS”).

[2] The applicant brings this application for an order staying these proceedings pursuant to s. 38.14 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”). This provision permits a person presiding at a criminal proceeding to make any order that they consider appropriate to protect the right of the accused to a fair trial where information, the disclosure of which would be injurious to international relations or national defence or national security, has been withheld from that accused. One such order that may be made is an order effecting a stay of proceedings.

[3] The basis of this application is that relevant information that would allow the applicant to challenge the lawfulness of the seizure of his private communications and the admissibility of evidence derived from that seizure has been withheld from him. The information in question was withheld on the basis that it is of a type that, if disclosed to the public, could injure international relations, national defence, or national security within the meaning of s. 38 of the CEA. This holding back is the result of a Federal Court order made pursuant to s. 38.04(2)(c) of the CEA and an Attorney General’s certificate issued pursuant to s. 38.13 of the CEA. The applicant says that withholding this information deprives him of “a critical component of the right to make full answer and defence” and will result in an unfair trial.

BACKGROUND

[4] As I have said, the applicant stands charged with two counts of preparing to communicate safeguarded information to a foreign entity contrary to s. 22(1)(c) of the SOIA. He was initially charged under s. 16 of the SOIA with two counts of attempting to communicate to a foreign entity information that the Government of Canada was taking measures to safeguard, but the Crown added the present counts to the indictment in December 2016 and withdrew the original counts on September 9, 2020.

[5] All of the charges stem from telephone calls the applicant allegedly made on November 23, 2013 to the Embassy of the PRC in Ottawa that were intercepted by CSIS under the authority of a warrant (“the warrant” or “the CSIS warrant”). The warrant was issued by the Federal Court pursuant to the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (“CSIS Act”). CSIS provided transcripts and recordings of the intercepts to the Royal Canadian Mounted Police (“RCMP”) in accordance with s. 19 of the CSIS Act. A subsequent RCMP investigation, including a brief undercover operation, resulted in the applicant’s arrest and prosecution. In December 2014, as part of the Crown’s pre-trial disclosure to Mr. Huang of all information in its possession relating to the matter being prosecuted, as required by R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Crown provided heavily redacted versions of the CSIS warrant and the affidavit relied upon to support the issuance of the warrant (“the affidavit”). The redactions were made pursuant to s. 38 of the CEA.

[6] The applicant’s trial was scheduled to proceed on November 14, 2016, but he 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 applicant commenced 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. He argued 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 ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. It is governed by the principles and procedures established by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[7] The application in Federal Court was heard by Moseley J. (“the Designated Judge”) in May and June 2017, in part in public and in part in private. The Designated Judge gave judgment on July 7, 2017, with both public reasons (Huang v. Canada (Attorney General), 2017 FC 662 (“Huang #1”)) and private reasons.

[8] In his public reasons, the Designated Judge noted that Mr. Huang’s Garofoli application would be for an order that the warrant was invalid, that the interceptions were not authorized by law and infringed s. 8 of the Charter, and that, as a result, the evidence of the communications must be excluded under s. 24(2) of the Charter. He acknowledged that the warrant and supporting affidavit as a whole are relevant for the purposes of the Garofoli application. He also noted that the applicant claimed that those documents are so heavily redacted that he cannot test the sufficiency of the warrant or make full answer and defence to the charges against him. In particular, the applicant argued that he cannot investigate or challenge the lawfulness of the interception of private communications that form the basis of his criminal charges without the redacted information that is being withheld from him. With this as background, the Designated Judge stated, at para. 29 of Huang #1, “The sole issue in these proceedings is whether the decision to prohibit disclosure of the information subject to CEA section 38 claims by the Respondent, the Attorney General of Canada, should be upheld by the Court.”

[9] The Designated Judge proceeded to explain the test that must be applied on an application made pursuant to s. 38.04(2)(c) of the CEA. He began by noting, at para. 42, that:

A section 38 application is not a judicial review of the Attorney General’s decision not to authorize disclosure. Instead, the designated judge must make a determination as to whether the statutory ban on releasing the information sought to be protected, as outlined in subsection 38.02(1), ought to be confirmed or not. In coming to that decision, the judge must assess the information in three steps.

[10] At paras. 43-46, the Designated Judge elaborated on the three steps. He said that the judge must:

1. Determine if the information sought to be protected is relevant to the underlying proceeding, applying the Stinchcombe test for disclosure

2. If the information is relevant, determine if it is injurious to a protected interest

3. If it is injurious, determine whether the public interest in disclosure outweighs the public interest in non-disclosure

[11] I note that when the Designated Judge used the word “relevant”, he did not use in its usual sense. Ordinarily, an item of evidence is relevant if it renders a fact it seeks to establish slightly more or less probable than the fact would be without the evidence: see R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. Instead, he meant relevant in the sense that it is used in disclosure cases. That is, information, whether inculpatory or exculpatory, that may reasonably be useful to the defence: see Stinchcombe, at p. 339; R. v. Chaplin, [1995] 1 S.C.R. 727, at p. 740; and Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129, at para. 17.

[12] In the end, the Designated Judge concluded, at paras. 80-81, that much of the information in issue was either not relevant or the risk of injury had been established by the Attorney General and the public interest in non-disclosure outweighed that of disclosure. But in some instances, the risk of injury from the disclosure of relevant information had not been established. As a result, the Designated Judge confirmed the prohibition on disclosure in relation to the first category of information and ordered the disclosure of the latter category of information.

[13] It is helpful on this application to have a better understanding of the Designated Judge’s conclusions in respect of relevance. He recognized, at para. 54, that Mr. Huang sought the redacted information to assess whether he should challenge the admissibility of the intercept evidence in a Garofoli application, and that the prosecution conceded that the redacted information is at least presumptively relevant for that purpose. However, he stated, “at this stage, it is not clear that the Applicant will be able to show a reasonable likelihood that the records sought will be of probative value to the issues on a Garofoli application: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 SCR 207 at para. 132 [Wallace].”

[14] He concluded, at para. 59:

I am satisfied that information in the 2013 Affidavit and Warrant pertaining to [XXX] would not be reasonably useful to the defence in the underlying criminal proceeding, in the Stinchcombe sense of relevance. While I understand that the affidavit as a whole would normally be considered on a Garofoli application, subject to excisions, it is not clear that redacted information unrelated to the interception of Mr. Huang's telephone calls would be relevant to a challenge to the authorization in the 2013 Warrant.

[15] He explained, at para. 60:

In Wallace, above, at paragraphs 120-122, the Supreme Court discussed the two grounds for challenging an authorization: (1) either the record before the authorizing judge was insufficient to make out the statutory preconditions or, (2) the record did not accurately reflect what the affiant knew or ought to have known, and if it had, the authorization would not have issued. It seems to me that much of the redacted information in the 2013 Affidavit and Warrant is not relevant to either ground. The 2013 Affidavit thoroughly addresses each of the statutory preconditions to issuance of a warrant and there is nothing before me to suggest that the content of the affidavit is not accurate. While the determination of the admissibility of the evidence is not for this court to make, there is nothing in the redacted content of the documents that would, in my view, provide a basis for concluding that the warrant should not have issued.

[16] As I understand this paragraph, when the Designated Judge said that much of the redacted information would not be relevant to the first listed ground for challenging the warrant, he meant that there was nothing in much of the redacted information that might reasonably be useful to the defence in attempting to show that the record before the authorizing judge was insufficient to make out the statutory preconditions for its issuance. And when the Designated Judge said that much of the redacted information would not be relevant to the second listed ground for challenging the warrant, he meant that there was nothing in much of the redacted information that might reasonably be useful to the defence in attempting to show that the record did not accurately reflect what the affiant knew or ought to have known. As will be seen, the Designated Judge resiled from this position about the second listed ground in his 2019 decision.

[17] In his private reasons, the Designated Judge accepted most of the Attorney General’s claims for the protection of the redacted information as reasonable. However, in his view, some of the claims overreached. For that reason, he ordered disclosure of some of the information from the affidavit. He also ordered disclosure of some information in the form of summaries.

[18] Huang #1 was appealed to the Federal Court of Appeal by the Attorney General and cross-appealed by the applicant. In the appeal, the Attorney General argued that the Designated Judge erred in making his disclosure order. In the cross-appeal, the applicant argued that the Designated Judge erred by refusing to order disclosure of some of the redacted information. The appeal, which was heard in camera and ex parte, was allowed in respect of one issue only in private reasons. The cross-appeal was heard in a public hearing and dismissed in public reasons: see Canada (Attorney General) v. Huang, 2018 FCA 109, 362 C.C.C. (3d) 87. In the cross-appeal, the Court concluded that the Designated Judge aptly summarized the test to determine whether the statutory prohibitions on disclosure ought to be lifted. However, the Court referenced the passage in para. 54 of the Designated Judge’s reasons that I have quoted above. The Court stated, at para. 25:

It may have been unfortunate for the Designated Judge to comment on what will happen at the Garofoli stage, and to question whether the respondent will be able to show “a reasonable likelihood that the records sought will be of probative value to the issues on a Garofoli application” (at para. 54 of his Public Reasons). This is clearly the test Mr. Huang will have to meet before the Ontario Superior Court of Justice to obtain third party production in the Garofoli context.

[19] Despite this reference, the Federal Court of Appeal endorsed the Designated Judge’s determination of relevance. The Court stated, at para. 30:

Furthermore, the Designated Judge made no error of law when he concluded that the redacted information in the Warrant and the Affidavit pertaining to the interception of Mr. Huang’s telephone calls would not be reasonably useful or relevant to his defence in the underlying criminal proceeding. First of all, it is obvious that nothing in the Warrant or the Affidavit could be of use to the respondent in his endeavour to demonstrate that the means used to intercept the telephone calls runs afoul of the duty to minimize the impact of these intercepts on the privacy interests of potential targets. As noted by counsel for the Attorney General, the Warrant and the Affidavit necessarily pre-date the interceptions themselves; none of the information contained in these documents can be of relevance with respect to how the communications were actually intercepted.

[20] The Court went on to explain that the unredacted information in the affidavit would permit the applicant to make an argument that the minimization measures in the warrant relating to phone lines were insufficient or inadequately tailored to meet the requirements of the right to privacy.

[21] Finally, with respect to relevance, the Court concluded, at para. 34:

Bearing these considerations in mind, I find that the Designated Judge did not err in his analysis of the relevance test to be applied at the first stage of the Ribic analysis. He correctly assessed the relevance threshold to be low, yet properly concluded that redacted information unrelated to Mr. Huang’s intercepted calls would not be relevant to a challenge of the Warrant. If anything, the limited redacted information related to the interception of telephone calls to and from the Embassy could have been more useful to the appellant than to the respondent. Still, the appellant renounced that potential benefit for national security reasons.

[22] The Attorney General applied for leave to appeal the decision of the Designated Judge on the appeal. The application was dismissed on March 14, 2019.

[23] The matter then came back to the Designated Judge for reconsideration of the single issue upon which the appeal from his first decision had been allowed. In addition, the Attorney General brought a fresh application to protect information previously ordered disclosed and a second fresh application to vary the disclosures ordered in the private judgment because of matters that arose subsequently. The Designated Judge issued a single decision in relation to all three matters. He dismissed the application based on matters that arose subsequently and allowed the other applications in part.

[24] In his public decision, Huang v. Canada (Attorney General), 2019 FC 1122 (“Huang #2”), dated August 30, 2019, the Designated Judge made it clear that he was alive to the issues that the applicant can raise in a Garofoli application. He stated, at para. 11:

Generally speaking, there are two ways to challenge an electronic interception authorization. On a facial challenge, the applicant contends that the record before the authorizing judge was insufficient to satisfy the statutory preconditions; on a subfacial challenge, the applicant argues that the record did not accurately reflect what the affiant knew or ought to have known, and that if it had, the authorization could not have issued: World Bank Group v Wallace, 2016 SCC 15 at paras 120-121. In either case, the challenges are predicated upon the disclosure of the affidavit and supporting materials placed before the issuing justice, with the redaction of sensitive information such as the identities of informants: R v Bennett, 2017 ONCA 780 at para 31. This is to enable the accused to make full answer and defence to the charges against him: Garofoli, above at 1443. The use of the disclosed information is limited to that purpose and can be made subject to conditions, including that the information be returned to the Crown: R v Kim, 2004 ABQB 157 at para 17.

[25] The Designated Judge then proceeded to consider and dispose of the three matters before him.

[26] First, he dismissed the application to vary the disclosures ordered in the private judgment because of matters that arose subsequently; nothing more need be said about that.

[27] Second, he considered together the single issue upon which the appeal from his first decision had been allowed and the Attorney General’s fresh application to protect information previously ordered disclosed. It is difficult to understand precisely what was in issue in this part of the judgment in light of the many redactions. However, the sense of it can be gleaned.

[28] At para. 93, the Designated Judge summarized the position of the Attorney General as follows:

This is an attempt by the Attorney General of Canada to withhold disclosure [XXX] from a person accused of serious criminal offences in a prosecution undertaken by the DPP, a statutory delegate of the Attorney General. I am instructed by the Federal Court of Appeal to consider whether this is the hopefully rare case in which it may be necessary to apply CEA section 38 to protect such information on the ground that disclosure would injure national security, national defence or international relations. The evidence of that is as described above – the classified affidavits and testimony of [XXX] The Attorney General argues that, in those circumstances, the balance of public interests now weighs in favour of non-disclosure.

[29] He further explained, at para. 94:

In response to the concern that withholding the information will deny Mr. Huang the right to make full answer and defence to the charges against him, the Attorney General’s answer is that it remains open to the trial judge to craft a remedy for Mr. Huang under CEA section 38.14.

[30] The Designated Judge then explained, also at para. 94, the consequence of the Attorney General’s position for the applicant at his trial:

That is correct so long as it is possible for the trial judge to ascertain how the accused has been denied a fair trial. In this instance, the position taken by the Attorney General would not permit Mr. Huang to argue that he has been denied the right to effectively challenge the 2013 Warrant under which the principal evidence against him was obtained because he is unable to question whether the information provided to the authorizing judge was accurate, as contemplated under Garofoli. This is not to suggest that he would be successful in such an argument but that it would be foreclosed from the outset.

[31] And at para. 95, he continued:

It is trite to observe that the right to disclosure is not absolute but in this instance, if I accept the Attorney General's position, Mr. Huang and his counsel would receive no information about most of the content of the 2013 Affidavit [XXX]

[32] After reiterating his view, expressed in his 2017 public and private reasons, that the bulk of the information the Attorney General now sought to have redacted had no bearing on the trial, he stated, at para. 98:

But, as both counsel for Mr. Huang and the amicus argued, the information in the 2013 Affidavit is relevant to the Charter section 8 challenge to the 2013 Warrant that Mr. Huang is entitled to bring in an effort to exclude the primary evidence against him. It is relevant to the sub-facial challenge to the warrant that the amicus, an experienced criminal defence attorney, considers to be Mr. Huang's best and perhaps only chance at having the evidence excluded.

[33] And still again, at para. 112:

I recognize that most of the content of the 2013 Affidavit has nothing to do with the charges against Mr. Huang. [XXX] the information submitted to the Court or [XXX] the PRC Embassy. His connection to the 2013 Affidavit and Warrant was pure happenstance. Nonetheless, the impact of the position put forward by the Attorney General on Mr. Huang is very real. He would be left in the dark with respect to the true nature of much of the 2013 Affidavit and deprived of an opportunity to make a sub-facial challenge to the admissibility of the intercept evidence against him. [XXX]

[34] In the end, the Designated Judge accepted that some of the information in the affidavit that he had refused to redact on the basis that it would not cause injury would, in fact, do so, and that the public interest favours non-disclosure. He then considered whether the public interest in non-disclosure outweighs the interest in disclosure in order that Mr. Huang may make full answer and defence to the charges against him. The Designated Judge concluded, at para. 117:

The public interest in protecting Canada's national interests [XXX] is very strong. There is also a compelling public interest in protecting Mr. Huang's fair trial rights. The potential negative effects of disclosure advanced by the Attorney General's evidence are speculative. [XXX] It is beyond conjecture that the administration of criminal justice in Mr. Huang's case will be dependent in part on the outcome of the exclusion motion before the ONSC. On all of the evidence, in the circumstances of this case I am not satisfied that the public interest in non-disclosure outweighs that of assuring Mr. Huang a fair trial.

[35] The Designated Judge noted that s. 38.06(2) of the CEA permits disclosure subject to conditions to limit the injury where a judge concludes that information is injurious but the public interest in disclosure outweighs the public interest in non-disclosure. He then ordered that the information in question be released to the DPP. In turn, the Designated Judge authorized the DPP to release it to the judge of this Court who hears the application for the exclusion of evidence obtained by the warrant, and to counsel for Mr. Huang upon obtaining an undertaking from counsel that he would not disclose the information to Mr. Huang.

[36] On November 14, 2019, following the release of the judgment “ordering the disclosure of sensitive or potentially injurious information to Mr. Huang”, the Attorney General personally issued a certificate pursuant to s. 38.13(1) of the CEA. That section provides as follows:

The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.

[37] The certificate recites that the Attorney General recognizes the importance of safeguarding the national security of Canada and Canadians and the right of Mr. Huang to a fair trial. He further recognizes that he had agreed to disclose “most of the information at issue” to Mr. Huang, but, for the purpose of safeguarding national security, some of the information should be prohibited from disclosure.

[38] The certificate goes on to prohibit the disclosure of certain information found in six of the 166 paragraphs in the CSIS affidavit that were ordered released by the Designated Judge in his 2019 public decision. However, the certificate provides me with no insight into the extent of the redactions.

[39] I have in hand a copy of the redacted affidavit. The redacted material is blacked out. While this enabled me to ascertain the location and extent of the total redactions, I could not identify which of the redactions resulted from the Attorney General’s certificate. As a result, I asked Crown counsel to provide me with a list that would enable me to identify the parts of the affidavit that were redacted as a result of the decisions of the Designated Judge, and the parts were redacted as a result of the Attorney General’s certificate. They have done so, and, at my request, amicus, who was given access to the unredacted affidavit by CSIS, confirmed that the list was accurate.

[40] I see no need to engage in a mathematical exercise. It is sufficient to say that the redactions that resulted from the Attorney General’s certificate form only a very tiny proportion of the affidavit. That said, I am still unable to say what those redactions are, and what their significance might be.

[41] The applicant characterizes the three categories of relevant information that has been redacted as follows:

1. Relevant information that the Designated Judge determined could not be disclosed because it may cause injury to national interests. The applicant does not have access to this information;

2. Relevant information that the Designated Judge determined could be disclosed to the applicant’s counsel on an undertaking not to distribute that information to the applicant. The Public Prosecution Service of Canada (“PPSC”) orally offered Mr. Huang’s counsel this information on Monday February 24, 2020 …;

3. Relevant information that the Designated Judge determined should be disclosed. The Attorney General overrode that decision and blocked disclosure with his November 14, 2019 certificate. The applicant does not have access to this information. The Attorney General’s decision is unreviewable.

[42] Counsel for the respondent has not challenged this description and I accept it as accurate. I will make two final points about disclosure in this case.

[43] First of all, in the applicant’s factum he makes a compelling argument that an order for disclosure to his counsel but not to him creates a serious practical and ethical problem for the defence and an unworkable solicitor-client relationship. He says that this is not meaningful access for him, and that his counsel cannot accept disclosure on this basis: see R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 44-46; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at para. 49. I accept this position.

[44] Second, I note that 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. In reasons released on March 16, 2018, I ruled that most of the information sought was not logically probative of a material issue in the case. However, I ruled that the following information was likely relevant: (1) the specific steps taken to minimize the interception of phone calls on the line or lines used by the applicant to contact the PRC Embassy from the time that the order came into effect to the end of 2013; (2) whether the line or lines used by the applicant to contact the PRC Embassy were live-monitored by CSIS from the time that the order came into effect to the end of 2013; and (3) where and for what period of time the two intercepted communications of the applicant were stored.

[45] On December 9, 2019, following the final resolution of the Federal Court litigation, Mr. Huang filed this application 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 November 17, 2020, however, the Crown brought a Cody application to summarily dismiss the s. 38.14 stay application in accordance with the principles and procedure outlined by 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), 7 O.R. (3d) 277 (C.A.). I heard that application on January 18, 2021 and dismissed it that day with brief oral reasons.

ANALYSIS

[46] I begin by repeating that Mr. Huang brings this application for an order staying these proceedings pursuant to s. 38.14 of the CEA to protect his right to a fair trial where information has been withheld from him, the disclosure of which would be injurious to international relations or national defence or national security.

[47] Section 38.14 provides:

(1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

[48] As can be seen, the scope of my inquiry is narrow, but my remedial power is broad. While the applicant asks for the ultimate remedy, I may impose a less Draconian remedy if it is sufficient to preserve the applicant’s right to a fair trial. My task, then, as I see it, is first to determine if the non-disclosure impacts on the applicant’s fair trial rights and, if so, determine the remedy. I begin with the first part of my task.

Does the withholding of information impact Mr. Huang’s right to a fair trial?

[49] In determining this issue, I must consider how the withheld information could be useful to the applicant, whether it would be useful, and the potential consequences of it being withheld.

[50] The essence of the applicant’s position on this issue is this. He proposes to bring an application pursuant to s. 24(2) of the Charter to exclude the fruits of the RCMP investigation of his activities – essentially, the words he spoke to an undercover RCMP officer posing as a PRC operative – on the basis that it was obtained in a manner that violated s. 8 of the Charter, his right to be secure from unreasonable search and seizure. The alleged violation of s. 8 is that his private communications were intercepted pursuant to a warrant that was either unlawfully made or unreasonably implemented. He will argue that the fruits of the RCMP investigation were derived from those interceptions. However, on his s. 24(2) application, as a result of the redactions, he will be unable to show that the warrant was unlawfully obtained or unreasonably implemented, and he will be unable to examine the seriousness of the breach of the Charter.

[51] The essence of the Crown’s response is this. Since the Crown has elected not to tender the intercepted private communications in evidence and has stayed the counts based on them, any review of state conduct should be focused on the conduct of the RCMP, who gathered the evidence that will be relied on by the prosecution at Mr. Huang’s trial. As Crown counsel put it in their factum, at para. 16, “The s. 24(2) lens was not meant to be directed at CSIS operations in cases like this, where an intelligence operation accidentally uncovers discrete evidence of criminal conduct, which is then conveyed to the police to initiate a distinct criminal investigation.”

[52] The Crown further argues that the redacted information could only be relevant to show misconduct or bad faith on the part of CSIS that the RCMP either knew or ought to have known of. The Crown says that there is no air of reality to this contention. And even if the focus of a s. 24(2) analysis should be on the probity of the CSIS conduct alone, the applicant has still failed to demonstrate a reasonable likelihood that the information will assist him.

[53] In this case, the withheld information could not be useful to the applicant in his substantive defence to the charges. It could only interfere with his right to a fair trial if it is useful to him in his application to exclude evidence pursuant to s. 24(2) of the Charter. The Crown says it would not be useful for that purpose because any s. 24(2) application in this case must focus on the conduct of the police, not of CSIS. Having regard to this argument, I will begin my analysis with what is really a threshold issue: what would be the “proper” focus of a s. 24(2) application in this case?

What is the “proper” focus of a s. 24(2) application in this case?

[54] As I said, the Crown argues that Mr. Huang’s application to exclude evidence of his communications with an undercover RCMP officer pursuant to s. 24(2) of the Charter must focus on the police undercover operation, the reasonableness of the undercover officer’s actions, and whether the RCMP officers involved in the investigation reasonably believed and relied on the information they received from CSIS. The application should not focus on whether the information that spurred police actions was validly obtained by CSIS. Crown counsel analogized this case to R. v. Williams, 2014 ONSC 3005.

[55] In that case, Mr. Williams was charged with firearms offences arising from his arrest on March 15, 2011. Acting on information that Mr. Williams had been involved in two crack cocaine transactions with an undercover officer, officers from a different division of the Toronto Police Service arrested him while he walked down the street. A handgun and ammunition were found in his possession.

[56] After this arrest but before the trial, Mr. Williams was tried for the drug offences. He admitted the Crown’s case but argued that the transactions were the product of entrapment. The trial judge agreed and entered a stay of proceedings. Then, at his trial for the firearm offences and based on the earlier conduct, Mr. Williams asked for the same remedy. In the alternative, he sought the exclusion of the evidence of the firearms offences under s. 24(2) of the Charter as a result of the earlier breach of s. 7 of the Charter. He argued that entrapment is an aspect of abuse of process, which has been subsumed in s. 7 of the Charter. Based upon the earlier breach of s. 7, the evidence gathered on March 15, 2011 was “obtained in a manner” that infringed Mr. Williams’ rights and ought to be excluded under s. 24(2). He made additional arguments relating to ss. 8 and 9 of the Charter.

[57] The trial judge dismissed all these applications. Only the s. 7 argument is relevant here. The trial judge began by noting that the charges arising from Mr. Williams’ arrest on March 15, 2011 were not the product of entrapment. He then reasoned as follows, at para. 10:

This argument is really just another way of saying that Mr. Williams’ conduct on March 15, 2011 was the product of entrapment, an argument that I reject. Moreover, this argument runs afoul of persuasive dicta in Imoro. For the conceptual reasons identified in R. v. Mack (1988), 44 C.C.C. (3d) 513 (S.C.C.) (discussed below), entrapment is remedied by the imposition of a stay of proceedings, and not through the exclusion of evidence.

[58] For completeness, I note that the trial judge dismissed the ss. 8 and 9 arguments for similar reasons.

[59] In my view, Williams does not assist the Crown. It is quite a different case. It involves an effort to exclude evidence for a second, unrelated set of offences as a result of a stay of proceedings in an earlier case. The only connection between the two cases was that the latter offences arose when police officers, unconnected to the first set of charges, arrested the accused on those earlier charges. The connection was procedural, not substantive. That is different from this case. Here, the connection was substantive. RCMP officers were investigating the applicant in relation to the content of a recording of his private communications obtained by CSIS as a result of an alleged breach of s. 8 of the Charter and in relation to the very same criminal conduct said to have been committed by the applicant in that private communication. The CSIS conduct is intimately connected to the RCMP conduct, despite the fact that the RCMP officers could not have known whether or not the CSIS interception was lawful. It is quite properly subject to review on a s. 24(2) application.

[60] I am also of the view that the Crown’s position that the trial judge can dictate that the focus of the application should be on the police conduct, not on the CSIS conduct, is unsustainable. After all, this is Mr. Huang’s application. He is seeking a remedy on the basis that CSIS, not the RCMP, violated his s. 8 Charter rights. Admittedly, the RCMP could not have been aware of the alleged breach. But it is the breach itself, and the connection of the impugned evidence to that breach, that must be the focus of this application. That does not mean it will succeed. The trial judge will have to determine whether there is a sufficient connection between the breach, if there is one, and the applicant’s entitlement to a remedy. I am not determining the s. 24(2) issue in this judgment. But in determining the application for a stay that is before me, I must consider whether the applicant has an arguable position that the RCMP evidence was “obtained in a manner” that violated s. 8 of the Charter.

[61] In R. v. Riley, 2018 ONCA 998, 370 C.C.C. (3d) 496, at para. 21:

It is well established that evidence will have been “obtained in a manner” that infringes a Charter right if, “on a review of the entire course of events, the [impugned Charter] breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct”: R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45. Justice Doherty further described it as:

The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 107 C.C.C. (3d) 481 (S.C.C.) at 492-97.

[62] It may be helpful to remember the entire content of para. 45 of Plaha. Doherty J.A. stated:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.).

[63] In this case, the existence of a causal relationship between the alleged breach and the impugned evidence is arguable. And indeed, although the decision is not mine to make, at least at present, such a finding seems inevitable. The connection is far from tenuous; it appears to me to be both contextual and causal. CSIS shared the information about the applicant’s call to the PRC Embassy with the RCMP for the very purpose of permitting the RCMP to investigate what the call disclosed. On a review of the entire course of events, the alleged breach and the obtaining of the evidence can properly be said to be part of the same course of conduct.

[64] As a result, I am of the view that the applicant is perfectly entitled to make the CSIS interception of his private communications the focus of a s. 24(2) application. This brings me to the second issue: does the non-disclosure impair the applicant’s ability to pursue the s. 24(2) application and give rise to an unfair trial?

Does the withholding of information impair Mr. Huang’s ability to pursue the s. 24(2) Charter application and give rise to an unfair trial?

[65] As I have noted, the applicant argues that as a result of the redactions, he will be unable to show on his s. 24(2) application that the warrant was unlawfully obtained or unreasonably implemented, and he will be unable to examine, in particular, the seriousness of the Charter-infringing state conduct. Accordingly, his trial will be unfair. For its part, the Crown argues, at para. 18 of its factum, that the applicant has still failed to demonstrate a reasonable likelihood that the redacted information will assist him on his s. 24(2) application, and, at para. 17, that the applicant has failed to demonstrate that the redacted information is “likely relevant” to a material issue still to be determined at his trial. As a result, the Crown says the applicant has not established that the withholding of information impairs his ability to pursue his s. 24(2) application and gives rise to an unfair trial.

[66] I begin by saying that, once again, I have some difficulty with the Crown’s approach. It would be an impossible task for the applicant to show a reasonable likelihood that information he cannot see, and in relation to which he can be provided no substantive summary, will assist him on his s. 24(2) application, or that the redacted information is likely relevant to a material issue. As Crown counsel note at para. 17 of their factum, they adopt the test of “likely relevant” from the line of cases where an accused seeks production of third-party records.

[67] In Stinchcombe, at pp. 336-338, the Supreme Court explained that while the prosecutor has a broad duty to disclose all information in its possession relating to the matter being prosecuted to allow the accused to make full answer or defence, the prosecutor retains a degree of discretion, subject to review, not to disclose information that is clearly irrelevant or privileged. The accused has no obligation to demonstrate the relevance of information in the hands of the prosecutor as a prerequisite to entitlement.

[68] In R. v. O’Connor, [1995] 4 S.C.R. 411, the Supreme Court established a separate disclosure regime for records in the hands of “third parties” that are “likely relevant” to an issue at trial. Under O’Connor, an application is made to the court and the judge determines if production should be ordered in accordance with a two-stage test. At the first stage, the accused has an onus to establish the likely relevance of the record. At the second stage, the judge examines the record and determines whether it should be disclosed.

[69] I am surprised that Crown counsel takes this “third party records” approach to information redacted from the affidavit, since the issue has already been dealt with in accordance with Stinchcombe by the Designated Judge. I will deal with the issue only briefly.

[70] In this case, the warrant and affidavit were provided to the Crown in redacted form and disclosed to the applicant in compliance with the Crown’s duty under Stinchcombe. This was acknowledged and affirmed by the Designated Judge in Huang #2, at para. 7. He stated:

For the proceedings before the ONSC, the Public Prosecution Service of Canada (PPSC) disclosed evidence to Mr. Huang in accordance with its obligations under the standard set by R v Stinchcombe, [1991] 3 SCR 326 at 336-338, 130 NR 277 [Stinchcombe]. Those obligations are to disclose all information, inculpatory or exculpatory, except evidence that is clearly irrelevant, beyond the control of the Crown or privileged. As part of this disclosure, PPSC produced redacted copies of an affidavit sworn by a CSIS officer on March 4, 2013 (the 2013 Affidavit) and a warrant issued by the Federal Court on March 7, 2013 (the 2013 Warrant). PPSC also produced the transcripts of the telephone calls provided to the RCMP.

[71] It makes very little sense to me to treat disclosure of the redacted affidavit as Stinchcombe disclosure but to treat the redacted information as an O’Connor record, as the Crown would have it. But in fact, disclosure of the redacted information was also treated as Stinchcombe disclosure. The Designated Judge made it clear that he proceeded on the assumption, in Huang #1 and Huang #2, that the PPSC was bound by the principles established by the Supreme Court of Canada in Stinchcombe, and he applied the Stinchcombe test in his determination of issues relating to redactions from the affidavit. He stated, at para. 46 of Huang #2:

As indicated at paragraphs 53-60 of my Public Reasons, I took into account the potential relevance of the content of the 2013 Affidavit and Warrant to the criminal proceedings. I concluded that much of the redacted information in the two documents would not be relevant to Mr. Huang's defence. With regard to that information, the application for disclosure failed on the first branch of the Ribic test: Canada (Attorney General) v Ribic, 2003 FCA 246. However, I concluded, some of the information would be relevant to Mr. Huang’s challenge to the validity of the 2013 Warrant. [Emphasis added.]

[72] He further explained, at para. 47:

I then proceeded to consider whether disclosure of information I found to be relevant would be injurious to the three protected national interests – international relations, national defence and national security – under the second branch of Ribic. If I considered the information to be non-injurious, I ordered that it be disclosed. If injurious, I considered whether it should be protected on the ground that the public interest in preventing the injury would outweigh the public interest in disclosure, including Mr. Huang’s Stinchcombe disclosure rights, as required by the third stage of Ribic. The result of this analysis was set out in my Private Judgment including the attached Schedule “A”.

[73] I realize that in my determination of Mr. Huang’s application for answers to six very broad questions about the manner in which CSIS implemented the warrant in general, I treated the request as a third-party application: see R. v. Huang, 2018 ONSC 831. But I see nothing inconsistent in treating the request for answers to questions that are completely unknown to the RCMP and the prosecutors as a third-party request, while treating the redactions from an affidavit provided to the applicant by the prosecutor as first-party information.

[74] All of this is a very long way of saying that I agree with the applicant that he does not have to establish the likely relevance of the redacted information before he can succeed with an argument that withholding this information deprives him of “a critical component of the right to make full answer and defence” and will result in an unfair trial.

[75] In deciding whether the applicant’s fair trial rights have been compromised, I will first outline the procedure mandated by the jurisprudence for judicially supervising the editing of a wiretap affidavit. I will then determine the extent to which the procedure followed in this case fell short of that standard, and finally determine what the impact of this will be on the fair trial rights of the applicant.

What is the procedure for editing a wiretap affidavit mandated by the jurisprudence?

[76] It was established in Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, even before the landmark decision in Stinchcombe, that where the investigation included wiretapping, the right to make full answer and defence requires disclosure to the accused of the affidavit relied on to obtain judicial authorization to intercept private communications. Without this information, the accused may not be able to establish that the interception was unlawfully made and thus inadmissible, or unreasonably made and thus in contravention of s. 8 of the Charter. Furthermore, full disclosure of the affidavit should be the rule, subject only to certain exceptions based upon overriding public interests which may justify non-disclosure.

[77] The courts have also recognized that in some cases the public interest will require the affidavit to be edited before being disclosed. This is most commonly done to protect the identity of a confidential informant, to avoid compromising an ongoing law enforcement investigation, or to keep a particular intelligence-gathering technique from being revealed. However, affidavits should only be edited to the extent necessary to protect those overriding public interests: see R. v. Durette, [1994] 1 S.C.R. 469.

[78] The duty to disclose the authorization and affidavit applies whether or not the Crown chooses to tender the interceptions in evidence, since the accused has the right to seek the exclusion of derivative evidence – evidence obtained as a result of the intercepted private communications. As noted in Durette, at para. 60, if any of the wiretap evidence is inadmissible, an unknown portion of other evidence against an accused may also be rendered inadmissible as derivative evidence.

[79] The fact that relevant information is redacted from an affidavit does not automatically compromise the accused’s right to a fair trial, infringe the accused’s right to make full answer and defence, or entitle the accused to a remedy. Editing an affidavit relied on to obtain a conventional authorization to intercept private communications is commonplace, for the reasons I noted. In Garofoli, the Supreme Court outlined the procedure for judicially supervising the editing of an affidavit and subsequently conducting a hearing to determine whether the authorization complies with s. 8 of the Charter for the purposes of an application to exclude wiretap or derivative evidence under s. 24(2) of the Charter.

[80] The procedure, which is neither exclusive nor exhaustive, consists of the following six steps, set out at para. 79 of Garofoli:

1. [I]f the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4. After the determination has been made in (3), the packet material should be provided to the accused.

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[81] I will consider next whether the procedure for editing the wiretap affidavit followed in this case fell short of the procedure mandated by the jurisprudence.

Did the procedure for editing a wiretap affidavit followed in this case fall short of the Dersch/Garofoli procedure?

[82] In this discussion, I will first evaluate the manner in which the editing was done and the redactions that were made in this case, other than as a consequence of the Attorney General’s certificate, and then consider the effect of that certificate.

[83] In the context of a CSIS warrant containing information of a type that could injure international relations or national defence or national security if it were disclosed to the public, the Garofoli process has been altered by the statutory scheme in the CEA. I will outline some of the alterations to the six steps in Garofoli and discuss their significance.

[84] First, in respect of step one, if Crown counsel believes that some of the information in a warrant or affidavit that they would otherwise be required to disclose to the court and the accused would result in the divulgence of “sensitive information” or “potentially injurious information” as defined in s. 38 of the CEA, notice must be given to the Attorney General of Canada pursuant to s. 38.01(1) of the CEA. Disclosure is then prohibited in connection with the criminal proceeding by virtue of s. 38.02(1) of the CEA unless, pursuant to s. 38.02(2), the Attorney General authorizes the disclosure in writing under s. 38.03, or a judge of the Federal Court designated by the Chief Justice to conduct hearings under s. 38.04 (a designated judge), “authorizes the disclosure under subsection 38.06(1) or (2)”.

[85] In this case, the prosecutor did not give notice to the Attorney General until February 27, 2017. The applicant had no intention to challenge the warrant until some time after he changed counsel in the fall of 2016. As a result, the prosecutor had no reason to believe there was a possibility of disclosure of the redacted information and no basis to give notice.

[86] Next, with respect to step two, once notice is given under s. 38.01, the trial judge cannot edit the affidavit as contemplated in Garofoli. If the accused wishes to cause disclosure but it is not authorized by the Attorney General pursuant to s. 38.03, the accused may apply to the Federal Court for an order with respect to disclosure of the information pursuant to s. 38.04(2)(c).

[87] In this case, the applicant gave notice of an application for an order for disclosure under s. 38.04(2)(c) the same day the prosecutor gave notice to the Attorney General pursuant to s. 38.03.

[88] With respect to steps three and four, a designated judge of the Federal Court, rather than a judge of the trial court, must make the final determination as to redactions, subject to appeal to the Federal Court of Appeal. The accused may explain the basis for the application in the notice of application.

[89] In Huang #1, the applicant explained the basis for his application in his notice of application. He claimed that the warrant and affidavit were so heavily redacted that he could not test the sufficiency of the warrant or make full answer and defence to the charges against him. In particular, he could not investigate or challenge the lawfulness of the interception of private communications that form the basis of his criminal charges without the redacted information that is being withheld from him.

[90] The procedure that must be followed on an application under s. 38.04 is detailed in ss. 38.04(5) and 38.11(1). I will not describe it in detail. It is sufficient to say it requires the judge to hear the submissions of the Attorney General and permits the judge to decide the matter in public or private, hold a hearing, appoint amicus curiae to assist the court in carrying out its obligations, and, if the judge considers it appropriate in the circumstances, give any person the opportunity to make ex parte representations.

[91] In Huang #1, the Attorney General and the applicant filed records on the application and the Designated Judge appointed amicus, who was permitted to see and make submissions about the unredacted affidavit. The Designated Judge held a hearing in private and heard the evidence of witnesses from CSIS and Global Affairs Canada. These witnesses were examined by counsel for the Attorney General, cross-examined by amicus, and questioned by the Court. After the hearing, the Designated Judge heard the oral submissions of the Attorney General and amicus on two occasions.

[92] It is also worth noting that in a case management teleconference before the hearing, counsel for the applicant was reminded that s. 38.11(2) of the CEA permits the court to allow any person an opportunity to make ex parte representations in private. In addition, counsel was advised that a public hearing could also be scheduled, on request, for oral representations to be received. No request was received for either.

[93] The Designated Judge conducted the proceedings in a similar manner in Huang #2. Once again, amicus was appointed and given broad authority to represent the interests of justice and make arguments on the applicant’s behalf. On this occasion, Mr. Huang’s counsel availed himself of the opportunity to make oral representations at an in camera and ex parte hearing. Counsel provided information to the Designated Judge relating to the proceedings before this Court and made representations on both the motion to vary and the fresh CEA s. 38 application. However, Mr. Huang’s counsel did not have access to the Federal Court’s private judgment in Huang #1, the Federal Court of Appeal’s private judgment, or the classified material filed in Huang #2. As a result, the Designated Judge stated in his public decision in Huang #2 that the representations of Mr. Huang’s counsel, while helpful in instructing the Court about matters relating to the defence, were necessarily limited in scope and not informed by knowledge of the redacted information at issue. Finally, in his judgment, the Designated Judge ordered that summaries attached to his private judgment in Huang #1 were to be disclosed to the applicant.

[94] Next, the requirement of step four was complied with. The redacted affidavit was provided to the applicant.

[95] Step five provides that if the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed. That aspect of the process has yet to take place. Whether it ever does will depend on the outcome of this application.

[96] Step six can never take place, since the prosecutor will not be able to place all the redacted material before me to support the authorization. In any event, the trial judge will be unable to ensure that the applicant is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.

[97] I turn next to the Attorney General’s certificate. Since the decision is unappealable, no judge will have the authority to supervise or overrule the editing of the affidavit effected by the redactions made by the Crown, as would ordinarily take place in steps two and three of Garofoli. In fact, prior to the certificate being issued, the Designated Judge had considered the very same proposed redactions. He was not satisfied that the public interest in non-disclosure of the information redacted by the Attorney General outweighed that of assuring Mr. Huang a fair trial.

What impact did the procedure for editing a wiretap affidavit followed in this case have on the fair trial rights of Mr. Huang?

[98] As I have said, redacting information from a wiretap affidavit is an accepted part of the Garofoli procedure and does not of itself violate the fair trial rights of an accused. Those rights are preserved by step five of Garofoli, which deprives the Crown of the use of redacted portions of an affidavit when arguing for the lawfulness of an authorization or warrant and its compliance with s. 8 of the Charter. Subject to step six, the Crown must attempt to support the authorization on the basis of the material as edited. The implication of this requirement is that on some occasions, authorizations and warrants that were lawfully obtained will be found to be unlawful. In this way, a balance is achieved between the legitimate interests of the accused and the state.

[99] In this case, the applicant did not have the benefit of the editing process mandated in Garofoli. The question is, was the process that replaced it a sufficient substitute to ensure his fair trial rights. In answering this question, I bear in mind the often-quoted description of a fair trial in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[100] Four essential components of the Garofoli process are missing in the process undertaken here, namely:

• The editing was not done by the trial judge. Instead, the process was bifurcated, and a judge of the Federal Court was effectively intruded into a Superior Court trial.

• The applicant was not present during the editing process.

• The applicant could not appreciate the nature of the deletions from the submissions and was not given a judicial summary of the general nature of the deletions.

• The applicant was not permitted to make submissions about the proposed edits before the judge made a decision.

[101] I turn to the question I posed: was the process that replaced the missing components of the Garofoli process a sufficient substitute to ensure the applicant’s right to a fair trial?

[102] I begin by addressing the simple concern that the process is bifurcated. The short answer to this difference from the Garofoli process is in Ahmad. After discussing some criticisms of bifurcation, the Supreme Court concluded that s. 38 of the CEA, as the Court interpreted it, passed constitutional muster. If there is unfairness, then, it must arise from the remaining differences from the Garofoli process. In my view, those differences must be examined together.

[103] First, I note that Moseley J. is one of a limited number of judges of the Federal Court who deal with issues of national security. While these judges do not preside over criminal cases, they are the designated judges who hear applications for CSIS warrants: see CSIS Act, ss. 2 and 21. These designated judges frequently meet to discuss national security issues, new developments in the jurisprudence, and best practices. And, in conjunction with judges from other jurisdictions and scholars, they have developed relevant programs concerning privacy, human rights, and national security: see Ahmad, at para. 70. In short, they have an expertise in national security issues and CSIS warrants that would not generally be found in judges of the Superior Court.

[104] Next, I note that the Designated Judge embarked on a lengthy, structured, and detailed process that fully complied with the guidance provided by the Federal Court of Appeal in Ribic. At para. 13 of Ribic, the Court noted that, “The Federal Court – Trial Division has been tasked with the difficult duty of balancing the competing public interests which … involve the protection of sensitive information and the protection of an accused’s constitutional rights to a full answer and defence.” There can be no doubt that the Designated Judge here, as in Ribic, “understood well and performed with great care and full awareness of the issues at stake.”

[105] The Court in Ribic discussed the steps to be followed on an application when the judge decides to hold a hearing:

1. Examine the information sought to be disclosed and determine whether it is relevant within the meaning of Stinchcombe; specifically, if it may reasonably be useful to the defence. The onus is on the accused, but the threshold is low.

2. If satisfied that the information is relevant, determine whether its disclosure would be injurious to international relations, national defence, or national security. The judge will examine the information and hear supporting evidence and submissions. He must also hear the submissions of the parties and their supporting evidence.

3. If satisfied that disclosure of the information would result in injury, the judge then determines whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. This includes considerations not just of relevance, but also of the relative importance of the information in defending against the charges. Factors to be considered may include whether the disclosure sought amounts to general discovery or a fishing expedition and whether the information will probably establish a fact crucial to the defence. While this may effectively oblige the accused to reveal his defence to the Designated Judge, if he does so it is under the seal of absolute confidentiality in a judicial forum where the matter will be decided in private. Disclosure is not made to the prosecution.

[106] Here, the Designated Judge received written submissions from the applicant in both the 2017 and 2019 applications. In respect of the 2017 hearing, counsel for the applicant was reminded that he could make ex parte representations in private if he wished and that a public hearing could also be scheduled, on request, for oral representations to be received. No request was received for either. However, in 2019, Mr. Huang’s counsel did make oral representations at an in camera and ex parte hearing. I acknowledge that the Designated Judge said that the representations of Mr. Huang’s counsel were helpful in informing the Court about matters relating to his defence but were necessarily limited in scope and not informed by knowledge of the redacted information at issue. Of course, precisely the same comment would apply in a Stinchcombe hearing. While it is not the role of the judge to substitute his opinion for that of the executive, bearing in mind the potential cost of error, the judge must be satisfied that executive opinions as to potential injury have a factual basis, which has been established by evidence and is reasonable.

[107] The Designated Judge faithfully followed the process approved in Ribic. Indeed, he went further. Both in 2017 and again in 2019, he appointed amicus curiae to assist the Court in carrying out its obligations. Amicus was given broad authority to represent the interests of justice and to make arguments on the applicant’s behalf. In both 2017 and 2019, amicus was permitted to see and make submissions about the unredacted affidavit, cross-examine witnesses from CSIS and Global Affairs Canada who testified on the hearing, and make closing submissions. The appointment of amicus is unavailable in a Stinchcombe application. In this case at least, it significantly enhanced the ability of the Court to protect the applicant’s right to a fair trial. Amicus, unlike counsel for the accused in a Stinchcombe application, sees the redacted information, cross-examines the witnesses who testify in support of the privilege, and makes arguments on the accused’s behalf with this knowledge in hand. It is of course true that the role of amicus is to assist the court, and amicus is not briefed by the accused. But in my view, on balance, amicus is better positioned than counsel for the accused in a Stinchcombe hearing to argue against specific redactions.

[108] In the end, comparing the procedure to deal with editing of the affidavit followed here to the Stinchcombe procedure, and remembering that the applicant is entitled to a fair trial and not a perfect trial, I am satisfied that the process is a sufficient substitute to ensure the applicant’s right to a fair trial.

[109] If the process was fair, as I conclude it was, then, subject to consideration of the Attorney General’s certificate, the applicant is left in the same position as any accused facing a judicially edited affidavit. In accordance with step five of Garofoli, if the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed. If it cannot, the authorization is not confirmed. As I have noted, step six is unavailable to the Crown in the circumstances here.

[110] The task of the reviewing judge on step five is clear. The reviewing judge does not substitute their view for that of the authorizing judge. If, based on the record that was before the authorizing judge as edited, the reviewing judge concludes that the authorizing judge could have granted the authorization, then they should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant. However, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge: see Garofoli, at para. 56.

[111] The applicant resists this view of the matter and shelters in the Supreme Court’s decision in Durette. The Crown applied to tender intercepted private communications in evidence at Durette’s trial, which took place before the decision of the Supreme Court in Garofoli was released. The trial judge received the wiretap affidavit from the Crown and edited it in a manner inconsistent with Garofoli. He proceeded by first editing the affidavit on his own; his editing was extensive. He then received submissions from the Crown and made additional edits. The edited affidavit was then provided to the accused. While the trial judge provided summaries of some redacted portions of the affidavit, they were very brief and uninformative, and were only provided after the redactions were made. The application to exclude the wiretap evidence proceeded on the basis of that affidavit. The trial judge’s editing was extensive and, it transpired, he kept a substantial body of material information from the accused that they were entitled to have.

[112] Notwithstanding the significant editing, the affidavit still contained sufficient evidence to justify the issuance of the authorization. The accused were convicted, and their convictions were upheld in the Court of Appeal. Their appeal to the Supreme Court was allowed. With respect to the overediting, the Crown argued that regardless of whether the trial judge erred in editing the affidavits, it is a complete answer that the affidavit, as edited by the trial judge, disclosed sufficient grounds to sustain the authorization.

[113] The Court did not agree. Sopinka J., for the majority, stated at para. 56:

However, this submission ignores the fact that the material contained in the excised material may be used to impugn the contents of the portions of the affidavit which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the appellants were entitled to have the opportunity to use the deleted material in this fashion. As Doherty J.A. put it at p. 478, “[i]t may be that the appellants, armed with the deleted information taken in combination with additional information which they may have had, could have demonstrated the inaccuracy of allegations made in the affidavits, or fraud, or culpable non-disclosure”. [Emphasis added.]

[114] The applicant argues that, as in Durette, he was unfairly denied portions of the affidavit and, as a result, is prevented from making a meaningful challenge to the admissibility of the evidence the Crown intends to use against him on constitutional grounds.

[115] In my view, this passage from Durette has no application here and the argument the applicant extrapolates from it must fail. In Durette, there were no overriding policy concerns justifying the refusal to disclose extensive portions of the affidavit to the defence. But here, the Designated Judge determined that there were, and I have concluded that the process he followed in reaching that conclusion was a fair one. Mr. Huang is in the same position as any accused when faced with a properly edited affidavit.

[116] An important final note on this issue. On this application, I am not the reviewing judge. I have read the edited affidavit and observed that what is left of it is sparse and highly conclusionary, but it is not my task to determine whether, based on what is left, the issuing judge could have issued the warrant. I will say only that the applicant may have been more helped than harmed by the editing.

[117] This brings me to the Attorney General’s certificate. The certificate prohibits disclosure of certain information found in six paragraphs of the CSIS affidavit that were ordered released by the Designated Judge in his 2019 public decision. The Attorney General had applied to the Designated Judge to redact those paragraphs, along with certain other information that the Designated Judge had ordered disclosed in 2017, on the basis of additional evidence. The information redacted from the six paragraphs was considered a second time by the Designated Judge, who again declined to redact them. He concluded that the information in them was relevant, that the disclosure of that information would cause injury to national interests, and that the public interest favoured non-disclosure of it, but he was not satisfied that the public interest in non-disclosure outweighed the compelling public interest in protecting Mr. Huang’s fair trial rights. The Attorney General then overrode that determination by issuing his certificate, as he was entitled to do. But in reaching his conclusion, he afforded the applicant none of the safeguards that he had the benefit of before the Designated Judge: no hearing, no written material, no representations, no amicus. I do not suggest that the Attorney General was obliged to provide any of that; I simply point out that he did not.

[118] I acknowledged that in his certificate, the Attorney General recognized Mr. Huang’s right to a fair trial and noted that he had agreed to disclose “most of the information at issue”, which I take to mean most of what the Designated Judge had ordered disclosed in his 2019 decision. But viewed in a wider context, it should be remembered that very little of the lengthy CSIS affidavit was actually disclosed to Mr. Huang.

[119] In the end, despite his restraint, it cannot be denied that the Attorney General’s redactions are quite different than the Designated Judge’s redactions, in terms of both process and consequence.

[120] I have taken pains to explain why I have concluded that the process outlined in Ribic is a sufficient substitute for the Garofoli process to ensure the applicant’s right to a fair trial, particularly as executed by the Designated Judge and especially because of the appointment and scope of participation he afforded to amicus. I cannot say the same for the Attorney General’s certificate. I do not for a second underestimate the seriousness of the Attorney General’s responsibilities in the area of national security, or doubt that he was justified in proceeding in the manner he did. But even with the restraint he exercised in determining the scope of his certificate, there is nothing in the record capable of satisfying me that his process adequately took into account the fair trial rights of the applicant. It may well have, but I cannot presume that it did.

[121] As for consequence, I have reached the conclusion that the certificate leaves the applicant in a position similar to the accused in Durette. Unlike the Supreme Court of Canada in Durette, I do not know what was contained in the redactions from the six paragraphs. What I do know is that the Designated Judge determined that the information redacted from the six paragraphs is relevant. He said that it formed part of a body of evidence without which the applicant “would be left in the dark with respect to the true nature of much of the 2013 Affidavit and deprived of an opportunity to make a subfacial challenge to the admissibility of the intercept evidence against him”: Huang #2, at para. 112. I am compelled to say, however, that there is one important difference between Durette and this case. In Durette, the Court described the editing of the affidavit as “improper”: at para. 14. That was an apt characterization there, but not here. There was nothing improper about the Attorney General’s certificate. My concern is about the effect of the certificate, not its propriety.

[122] In Durette, the Court concluded that because the trial judge excised a substantial amount of material the continued confidentiality of which could not be justified, and because the Crown was unable to satisfy the Court that no prejudice occurred, the appellants had established that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the wiretap authorizations: see para. 55.

[123] I reach the same conclusion here.

Remedy

[124] As I said at the outset of these reasons, the applicant brings this application for an order staying these proceedings pursuant to s. 38.14 of the CEA. Section 38.14 permits me to make any order that I consider appropriate to protect the right of an accused to a fair trial in circumstances where information, the disclosure of which would be injurious to international relations or national defence or national security, has been withheld from that accused. The orders I may make include, but are not limited to, an order dismissing one or more counts in the indictment, an order permitting the prosecution to proceed only on a lesser and included offence, or an order effecting a stay of proceedings.

[125] Crown and defence spent some time in their factums mooting the proper characterization of the remedy of a stay of proceedings, entirely based on selective snippets of Ahmad. At para. 58 of the applicant’s factum, counsel said, “Unlike the stays granted for abuse of process, the stay under s. 38.14 is not an extraordinary remedy. The Applicant does not have to show his is the ‘clearest of cases.’” In response, the Crown relied on para. 29 of Ahmad, to state that the legislation did not contemplate “that trial judges would determine the impact of non-disclosure on trial fairness in a manner that would result in granting unwarranted stays.” At para. 22 of the applicant’s reply factum, counsel noted that after the Supreme Court warned against unwarranted stays, it went on to also warn against not granting appropriate remedies.

[126] This war of quotations from Ahmad is not terribly helpful. Nevertheless, at the risk of being accused of joining the war, I will simply say that the role of the trial judge on an application pursuant to s. 38.14 of the CEA is best and most comprehensively described in para. 52 of Ahmad. After observing that stays of proceedings are expressly contemplated under s. 38.14 to protect the fair trial rights of the accused from the adverse impact of non-disclosure, the Court said:

[T]he Charter requires, and the legislation acknowledges, that where the government is withholding information and the trial judge is unable to satisfy himself or herself that non-disclosure has not adversely affected trial fairness, and no lesser step or remedy can assure it, a stay of proceedings under s. 38 must issue. Doubt, in this respect, should be resolved in favour of protecting the fair trial rights of the accused, including the right of full answer and defence. [Emphasis added.]

[127] This quote adds something important to what was relied on by the parties. While judges should not shy away from staying proceedings where a stay is warranted, they have the power under s. 38.14 to make any order they consider appropriate to protect the right of the accused to a fair trial in the circumstances. A stay is the ultimate remedy. It is only warranted where no lesser remedy can assure a fair trial. Bearing in mind that the non-disclosure of relevant information here relates exclusively to the admissibility of evidence and does not in any way relate to the substance of the allegations made against Mr. Huang or impair his ability to answer the charges themselves, I am satisfied that a lesser remedy can protect his right to make full answer and defence.

[128] As the applicant puts it at para. 8 of his reply factum, “Because the warrant and affidavit were heavily redacted, the Applicant sought Stinchcombe disclosure to investigate and prosecute his s.8 challenge.” He described his s. 8 Charter challenge at para. 2 of his original factum as follows:

The Applicant is a defendant in a criminal proceeding under the Security of Information Act (SIA). The main evidence against him is intercepted telephone conversations. The conversations are the fruits of a broad Federal Court warrant authorizing the Canadian Security Intelligence Service (CSIS) to intercept telecommunications of any person at the Chinese Embassy in Ottawa. These telephone conversations led to an undercover operation involving the Applicant. The Applicant intends to bring a s. 8 Charter challenge to the issuance of the warrant and the admissibility of the telephone conversations and evidence from the undercover operation.

[129] Counsel for the applicant appeared before the Designated Judge in the course of the 2019 application for an in camera and ex parte hearing. Counsel provided information to the Designated Judge about Mr. Huang’s defence to assist with his assessment of the relevance of the information the Attorney General asked him to redact in the reconsideration application and fresh application. Counsel also stressed the importance of the information. After hearing all the submissions, the Designated Judge affirmed much of his 2017 order.

[130] Most importantly, the Designated Judge found that the redactions sought by the Attorney General in his 2019 applications would leave the applicant in the dark with respect to the true nature of much of the affidavit and deprive him of an opportunity to make a subfacial challenge to the admissibility of the evidence against him: see Huang #2, at para. 112. The Designated Judge ordered the release of some of this information, but the redactions from the six paragraphs were not released as a result of the Attorney General’s certificate. Without access to the information redacted by the certificate, I have no way of assessing the significance of that part of the information. I note that the Designated Judge was clear that he was not suggesting that a subfacial challenge would be successful, only that the applicant was entitled to make the argument, that the redacted evidence was relevant to it, and that the redactions foreclosed it: Huang #2, at paras. 94, 98, and 112.

[131] To be clear, in Huang #1, at para. 60, the Designated Judge was unequivocal that the affidavit thoroughly addresses each of the statutory preconditions to the issuance of the warrant, that there was nothing before him to suggest that the content of the affidavit is not accurate, and, as a result, there is nothing in the redacted content of the affidavit that might reasonably be useful to the defence in attempting to provide a basis for concluding that the warrant should not have issued. In Huang #2, after hearing submissions from the applicant about the nature of his defence, he did not resile from his view that there was nothing in the redacted information that might reasonably be useful in attempting to show that the statutory preconditions to the issuance of the warrant had been met. But the Designated Judge did resile from his view that there was nothing before him that might reasonably be useful in attempting to show that the content of the affidavit is not accurate, at least to the extent that there was information in the proposed redactions that would be relevant on a subfacial challenge, and he noted that the applicant was entitled to bring such a challenge. He also noted that amicus, an experienced defence attorney, considered a subfacial challenge to be the applicant’s “best, and perhaps only chance at having the evidence excluded”: at para. 98.

Conclusion on trial fairness

[132] Having regard to the foregoing, I am of the view that the non-disclosure of relevant evidence in the affidavit will adversely affect trial fairness for the applicant and, unless I can fashion a lesser remedy that assures him of a fair trial, a stay of proceedings under s. 38 must issue. In order to determine if such a lesser remedy can be fashioned, it is necessary for me to identify why non-disclosure will adversely affect trial fairness.

[133] In broad terms, non-disclosure adversely affects trial fairness in this case because it precludes Mr. Huang from effectively seeking to exclude evidence directly or indirectly obtained as a result of the issuance of the warrant pursuant to s. 24(2) of the Charter. But it is necessary to be more specific. The applicant intends to argue that the evidence should be excluded as a result of a breach of s. 8 of the Charter in the issuance of the warrant. Two possible challenges to the issuance of the warrant can arise out of the affidavit: a facial challenge, in which the applicant contends that the record before the authorizing judge was insufficient to satisfy the statutory preconditions; and a subfacial challenge, in which the applicant argues that the record did not accurately reflect what the affiant knew or ought to have known and that if it had, the authorization could not have issued.

[134] In my view, the non-disclosure does not adversely affect the applicant’s ability to bring a facial challenge for several reasons.

[135] First, as I see it, the redactions enure to the benefit of the applicant on this ground of the challenge. Beyond language that is essentially conclusory, there is little remaining in the affidavit that the prosecutor could rely on to satisfy the statutory preconditions for a warrant. I do not propose to prejudge the issue except to say that the prosecution would have an uphill battle. In an ordinary case, the Crown could invite me to apply step six of Stinchcombe and, after providing the applicant with judicial summaries, determine if the unredacted affidavit was sufficient. But here, as I have explained, step six is unavailable. I cannot look behind the redactions approved by the Designated Judge because I cannot provide the applicant with adequate summaries. And I cannot look behind the redactions that result from the Attorney General’s certificate because the certificate bars me from seeing what was redacted.

[136] Second, I am satisfied that I can rely on the Designated Judge’s determination, upon his review of the entirety of the unredacted affidavit, that there is nothing in the redacted content of the affidavit that might reasonably provide a basis for concluding that the warrant should not have issued.

[137] And third, when asked in oral argument whether he would attempt to defend the warrant on an application under s. 24(2) of the Charter, the prosecutor advised me that he does not resile from his position that the reviewing judge should not review the affidavit at all, but if I disagree and the applicant embarks on a s. 24(2) application, he will concede that s. 8 was breached and invite the reviewing judge to proceed directly to s. 24(2). Even if this consideration stood alone, it would be determinative of this issue.

[138] I come to a different conclusion about a subfacial challenge, but before I explain why, I will take a moment to discuss what a subfacial challenge is.

[139] In Wallace, at para. 120, the Supreme Court described a subfacial challenge as a challenge “that the record did not accurately reflect what the affiant knew or ought to have known, and that if it had, the authorization could not have issued.” The Court continued, at para. 121:

In view of the fact that a subfacial challenge hinges on what the affiant knew or ought to have known at the time the affidavit was sworn, the accuracy of the affidavit is tested against the affiant's reasonable belief at that time. In discussing a subfacial challenge to an information to obtain a search warrant, Smart J. of the British Columbia Supreme Court put the matter succinctly as follows:

During this review, if the applicant establishes that the affiant knew or should have known that evidence was false, inaccurate or misleading, that evidence should be excised from the [information to obtain] when determining whether the warrant was lawfully issued. Similarly, if the defence establishes that there was additional evidence the affiant knew or should have known and included in the [information to obtain] in order to make full, fair and frank disclosure, that evidence may be added when determining whether the warrant was lawfully issued.

(R. v. Sipes, 2009 BCSC 612, (B.C. S.C.) at para. 41)

[140] The Court cautioned in Wallace that the affidavit is not to be tested against the ultimate truth, but only against the affiant’s reasonable belief. A Garofoli hearing must not be turned into a trial of every allegation in the affidavit, something the Supreme Court has long sought to prevent. As a result, the accused is not entitled to cross-examine the affiant on a Garofoli hearing as of right. The Court stated, at para. 126:

On a Garofoli application, an accused may only cross-examine the affiant with leave of the trial judge. Leave will only be granted if the accused shows “a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge” (R. v. Pires, [2005] 3 S.C.R. 343, at para. 3; see also Garofoli, at p. 1465). Simply put, the accused must show that the cross-examination is reasonably likely to be useful on the application.

[141] Returning to this case, the applicant is deprived of a fair hearing in relation to a subfacial challenge to the warrant in the following manner. The Designated Judge said that although there was nothing before him to suggest that the content of the affidavit is not accurate, nevertheless there was information in the redacted material that was relevant on a subfacial challenge, and the applicant was entitled to bring such a challenge. I cannot go behind this finding. As a result, if the applicant had access to the redacted material, he could explore the possibility of a subfacial challenge to the affidavit. On a subfacial challenge, he would bear the onus of establishing that the affiant knew or should have known evidence in the affidavit was false, inaccurate, or misleading. This is ordinarily accomplished by cross-examining the affiant. To be entitled to cross-examine the affiant, the applicant must show “a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge”: R. v. Pires, [2005] 3 S.C.R. 343, at para. 3; Wallace, at para. 126. If the applicant were successful in establishing that the affiant knew or should have known that evidence was false, inaccurate, or misleading, that evidence would be excised from the affidavit, but the applicant would then face the challenge of showing that what remained in the affidavit could not support the issuance of the warrant. If he succeeded at that, he would have to show that the evidence derived from the interceptions should be excluded under s. 24(2) of the Charter.

[142] Small wonder that the Designated Judge noted that he was not suggesting that a subfacial challenge would be successful, only that the applicant was entitled to make one. It is obvious that a subfacial challenge to a CSIS warrant authorizing interception of private communications to investigate threats to the security of Canada posed by a foreign government’s activities is a long shot for Mr. Huang. The applicant faces a very steep uphill battle. But as the Supreme Court cautioned in Durette, at para. 56, I cannot ignore that the information contained in the redacted material might be used to impugn the portions of the affidavit which have been disclosed, or that the applicant, armed with the redacted information in combination with any additional information he may have, could demonstrate the inaccuracy of allegations made in the affidavits, or fraud or culpable non-disclosure.

[143] This opportunity, long shot or not, is what the redactions have deprived the applicant of. I am far from certain I would conclude that this would adversely affect trial fairness if only the redactions upheld by the Designated Judge were in issue, since he ordered disclosure of material that he considered relevant for a subfacial challenge in his 2019 decision. But I do conclude that the redaction effected by the Attorney General’s certificate of information the Designated Judge had determined to be relevant to a subfacial challenge adversely affects trial fairness.

[144] A question arises: why is the prosecutor’s concession of a s. 8 Charter breach and invitation to the Garofoli judge to proceed directly to s. 24(2) of the Charter, which I considered to be of importance with respect to a facial challenge, not of similar importance with respect to a subfacial challenge? My answer is simply this. While both challenges, if successful, result in a finding of a breach of s. 8 of the Charter, they have a different significance when it comes to s. 24(2) of the Charter.

[145] Section 24(2) of the Charter provides that where evidence was obtained in a manner that violated a right guaranteed by the Charter, the judge who made that determination must exclude the evidence if, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute. In R. v. Grant, [2009] 2 S.C.R. 353, the Supreme Court directed that on a s. 24(2) application, courts must consider and balance the following three factors: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

[146] A warrant may be set aside on a facial challenge if the record before the authorizing judge was insufficient to satisfy the statutory preconditions for authorization. A facial challenge is a review of the authorizing judge’s decision based on the record that was before them. The reviewing judge does not substitute their view for that of the authorizing judge. If, based on the record that was before them, the authorizing judge could have granted the warrant, the reviewing judge should not interfere. If there have been redactions from the affidavit, the reviewing judge does not consider the redacted information on a facial challenge, subject to Garofoli step six. If the warrant falls, the seriousness of the Charter-infringing state conduct will ordinarily flow from the nature of the invasion of privacy when the reviewing judge considers whether the evidence should be excluded. The content of the redactions will be of no moment. As a result, the fact that the applicant in this case does not know what was redacted from the affidavit has no significance on the s. 24(2) application.

[147] A subfacial challenge is different. Here, a warrant may be set aside if the record did not accurately reflect what the affiant knew or ought to have known and the authorization could not have issued if it had. It is not a review of the decision of the authorizing judge. It is a review of the conduct of the affiant and the effect of that conduct on the availability of a warrant. As a result, a successful subfacial challenge will make the Charter-infringing state conduct more serious, because the state actor, and not the judge, will be solely responsible for the breach.

[148] As a result, for the purpose of his s. 24(2) application, Mr. Huang should know more than simply that the prosecutor concedes a breach of s. 8 of the Charter. He should also know whether the breach flows from a facial deficiency, a subfacial deficiency, or both. This affects his ability to fashion an argument in support of exclusion under s. 24(2) and, in that limited sense, adversely affects trial fairness for the applicant.

[149] That brings me back to the direction in para. 52 of Ahmad, which I reproduced earlier: “[W]here the government is withholding information and the trial judge is unable to satisfy himself or herself that the non-disclosure has not adversely affected trial fairness, and no lesser step or remedy can assure it, a stay of proceedings under s. 38 must issue.” Understandably, neither party undermined their position by asking me to consider the alternative of a lesser remedy. Mr. Huang wants nothing short of a stay. The Crown opposes this. But the Charter, the CEA, and the Supreme Court all require me to consider whether a lesser remedy could ensure a fair trial for the applicant before resorting to a stay of proceedings. One immediately comes to mind. This will not ensure a perfect trial for the applicant, or the most advantageous trial possible from his point of view. However, I consider the following remedy to be appropriate in the circumstances to protect the right of the applicant to a fair trial, one that will satisfy the public interest in getting at the truth while preserving basic procedural fairness.

DISPOSITION

[150] I make the following order pursuant to s. 38.14 of the CEA:

1. It is declared, solely for the purpose of this prosecution, that as a result of non-disclosure of information redacted from the affidavit sworn in support of the CSIS warrant as a result of the prohibition in the Attorney General’s certificate made pursuant to s 38.13 of the CEA, the issuance of the warrant and interception of Mr. Huang’s private communications pursuant to the warrant will be viewed by the Court as having violated s. 8 of the Charter; and

2. It is further declared, solely for the purpose of this prosecution, that in considering the admissibility of evidence obtained in a manner that violated s. 8 of the Charter, the Court will assume that the affidavit sworn in support of the CSIS warrant contained information that the affiant knew or ought to have known was false, inaccurate, or misleading, and that if that information had been excised, the authorization could not have issued.

M. DAMBROT J.

RELEASED: April 14, 2021

COURT FILE NO.: CR17-90000077-0000

DATE: 20210414

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: April 14, 2021