COURT FILE NO.: CR17-90000077-0000
DATE: 20210729
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: June 8, 2021
By virtue of s. 648(1) and s. 645(5) of the Criminal Code, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.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 one count of attempting to communicate to a foreign entity information that the Government of Canada was taking measures to safeguard, contrary to s. 16(1) of the Security of Information Act, R.S.C. 1985, c. O-5 (“SOIA”), and one count of preparing to communicate safeguarded information to a foreign entity, contrary to s. 22(1)(c) of SOIA.[^1] Both offences are alleged to have occurred on November 30, 2013. The charges are being prosecuted by counsel for the Public Prosecution Service of Canada (“PPSC”), whom I will refer to as Crown counsel, on behalf of the Director of Public Prosecutions.
[2] The charges 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”) under the authority of a warrant (“warrant” or “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 interceptions 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.
[3] The applicant was originally charged with having committed the same two offences on November 25, 2013. Crown counsel added the present counts to the indictment in December 2016 and withdrew the original counts on September 9, 2020. In February 2017, counsel for the applicant advised Crown counsel that they were considering bringing an application to exclude his intercepted communications on the basis of an allegation that the interceptions were obtained in a manner that violated his right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. The Crown does not intend to adduce the applicant’s intercepted private communications in evidence at his trial and has not had that intention at least since the original two counts in the indictment were withdrawn. The applicant, however, brings this application seeking exclusion of the undercover officer’s evidence pursuant to s. 24(2) of the Charter on the basis that it was also obtained in a manner that infringed the applicant’s rights under s. 8 of the Charter.
The stay application
[4] This application was brought following a decision I made on April 14, 2021 (R. v. Huang, 2021 ONSC 2654) in response to an application by the applicant for an order staying these proceedings pursuant to s. 38.14 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”).
[5] The basis of that application was 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, in part, of an order of a Designated Judge of the Federal Court made pursuant to s. 38.04(2)(c) of the CEA and also, in part, of an Attorney General’s certificate issued pursuant to s. 38.13 of the CEA.
[6] To be clear, the former category consists of relevant information that the Designated Judge determined could not be disclosed to the applicant (although he was prepared to permit some of it to be disclosed to counsel for the applicant) because disclosure might cause injury to national interests. The latter category consists of relevant information that the Designated Judge determined could be disclosed to the applicant, disclosure of which was then blocked by the Attorney General’s certificate.
[7] I determined that the applicant had no cause for complaint about the former category, since the process followed by the Designated Judge in determining that disclosure could not be made to the applicant was a sufficient substitute for the process mandated by the Supreme Court of Canada in cases involving Criminal Code, R.S.C. 1985, c. C-46, authorizations to intercept private communications to ensure his right to a fair trial. In this respect, the applicant is left in the same position as any accused facing a judicially edited affidavit, and no basis exists for a remedy under s. 38 of the CEA.
[8] However, with respect to the latter category, the Attorney General excised material, the continued confidentiality of which the Designated Judge had determined could not be justified. The Crown was unable to satisfy me that this caused no prejudice to the applicant. As a result, I concluded that the applicant had established that his ability to make full answer and defence was prejudiced in that he was denied an opportunity to make a sub-facial challenge to the validity of the CSIS warrant. This, in turn, deprived him of the ability to establish that his rights under s. 8 of the Charter were violated.
[9] To be clear, I concluded that the non-disclosure does not adversely affect the applicant’s ability to bring a facial challenge to the validity of the warrant for reasons that I explained in detail. The non-disclosure only adversely affects his ability to bring a sub-facial challenge to the validity of the warrant.
[10] I specifically noted that the Designated Judge said that although there was nothing before him to suggest that the content of the affidavit was not accurate, nevertheless there was information in the redacted material that was relevant on a sub-facial challenge, and the applicant was entitled to bring such a challenge. The Designated Judge was not suggesting that a sub-facial challenge would be successful, only that the applicant was entitled to make one. It is obvious that a sub-facial challenge to a CSIS warrant authorizing interception of private communications to investigate threats to Canada’s national security posed by a foreign government’s activities is a longshot for Mr. Huang. The applicant faces a steep uphill battle. But as the Supreme Court cautioned in R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469, at p. 498, 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, fraud, or culpable non-disclosure. I described the applicant’s likelihood of success on a sub-facial challenge if he had the redacted information as remote. But this lost opportunity, longshot or not, is what the redactions have deprived the applicant of.
The Remedy
[11] Given the nature of the trial unfairness occasioned by the Attorney General’s certificate, I refused to grant a stay of the proceedings as a remedy. Instead, I made the following order pursuant to s. 38.14 of the CEA:
I 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
I 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.
ANALYSIS
[12] Section 24(2) of the Charter provides that where it is determined that 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 SCC 32, [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 that 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.
The Evidence Was Obtained in a Manner that Violated a Charter Right
[13] I begin with the threshold issue: was the evidence of the undercover officer obtained in a manner that violated a right guaranteed by the Charter? On the stay application, Crown counsel took the position that any application to exclude evidence of Mr. Huang’s communications with an undercover RCMP officer pursuant to s. 24(2) of the Charter must focus on the police undercover operation, and not on whether the information that led to the police actions was validly obtained by CSIS. I rejected this argument.
[14] I concluded that the applicant is entitled to seek a remedy on the basis that CSIS, not the RCMP, violated his s. 8 Charter rights. If CSIS violated his Charter rights, then it is the breach itself, and the connection of the impugned evidence to that breach, that must be the focus of a s. 24(2) application. I went on to say that the trial judge would have to determine whether there is a sufficient connection between the breach and the RCMP evidence to meet the threshold requirement of s. 24(2), but that the applicant’s position was arguable.
[15] Further, I said that although the decision was not mine to make on the stay application, such a finding seemed inevitable. The connection is far from tenuous; it is 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.
[16] As the judge hearing the s. 24(2) application, the decision is now mine to make. I have not changed my mind. The Crown concedes that CSIS violated s. 8 of the Charter and, as a result, I conclude that the RCMP evidence was obtained in a manner that violated s. 8. I turn now to the Grant factors.
The Seriousness of the Charter-Infringing State Conduct
[17] The applicant submits that the breach in this case “falls at the serious end of the scale of culpability” for three reasons: (1) the affiant failed in his duty to make full, fair, and frank disclosure and he misled the issuing justice; (2) CSIS has a pattern of misleading the court and disrespecting the public’s privacy rights – this case is not an outlier; and (3) the state’s misconduct affected countless innocent third parties’ Charter rights.
[18] The Crown does not say that the breach is not serious, but it argues that its seriousness is attenuated for several reasons, which I have taken the liberty to organize somewhat differently than did Crown counsel: (1) the interceptions by CSIS at the PRC Embassy were not designed to conduct an investigation or gather evidence of criminal activity of specific individuals, but instead were designed to collect information and intelligence for the purpose of advising the Government of Canada about threats to the security of Canada; (2) while I made what the Crown calls a “constructive” finding of bad faith against the CSIS affiant, no such finding can be made against the RCMP officer who obtained the evidence that the applicant seeks to exclude; (3) the RCMP undercover operation did not trench on the applicant’s reasonable expectation of privacy or constitute a search within the meaning of s. 8 of the Charter; and (4) although the Attorney General’s certificate negatively impacted on the fair trial rights of the applicant and resulted in the remedy I imposed, I did not 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, except that the record did not permit me to be satisfied that the process he undertook adequately took into account the fair trial rights of the applicant.
[19] I begin my analysis with a reminder of the actual Charter breach that gives rise to this application. For the purpose of this prosecution, I have assumed 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 warrant could not have issued. As a result, I view the interception of Mr. Huang’s private communications pursuant to that warrant as violating s. 8 of the Charter.
[20] Having the nature of the breach in mind, I will state the obvious: when CSIS intercepted the private communications of the applicant pursuant to a warrant that should not have issued, it was a serious breach of the Charter. Counsel for the applicant quite rightly reminds me of what was said by Fish J. in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 102:
Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead….
[21] Failing in this duty is serious. As counsel for the applicant put it in their factum, “The full, fair, and frank disclosure requirement exists for a reason. Warrants, if granted, give investigators an extraordinary ability to intrude into the private lives of citizens. Prior authorization is one of the hallmarks of Canadian rights protection; but the requirement only works if the state takes its duty of candour seriously.”
[22] That said, I resist the applicant’s argument that the breach in this case, significant though it is, falls at the serious end of the scale of culpability for several reasons.
[23] The first of these reasons involves a misconception of my ruling on the application for a stay. The applicant treats it as an assumption that the affiant “knew that the information presented to the issuing justice was misleading or false” and deliberately misled the issuing judge. I did not go so far. To repeat, I said 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” (emphasis added). These words were chosen deliberately. Had I intended to limit this assumption to subjective knowledge, I would not have included the words “ought to have known”, which convey an objective standard. Leaving open the possibility that the affiant did not know but ought to have known that the affidavit contained false, inaccurate, or misleading information does not place it at the most serious end of the scale of culpability. As Fish J. stated in Morelli, at para. 103:
We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.
[24] My second reason relates to the Crown’s argument that while I made a “constructive” finding of bad faith against the CSIS affiant, no such finding can be made against the RCMP officer who obtained the evidence that the applicant seeks to exclude. I do not think that anything turns on the Crown’s labelling my finding of bad faith as constructive. Constructive or not, it must be accepted as true. However, the Crown’s argument finds some support in Morelli. Fish J. stated, at para. 99:
First, the Charter-infringing state conduct in this case was the search of the accused’s home and the seizure of his personal computer, his wife’s laptop computer, several videotapes, and other items. The search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed they were acting under lawful authority. The executing officers did not wilfully or even negligently breach the Charter. These considerations favour admission of the evidence. To that extent, the search and seizure cannot be characterized as particularly egregious.
[25] There is no evidence here that the individuals who executed the warrant and intercepted the applicant’s private communications had any reason to believe that they were not operating under lawful authority; and it is a certainty that the RCMP officers who obtained the evidence now sought to be excluded had no reason to believe the tip they received from CSIS was in any way tainted. While far from decisive, this consideration moves the Charter breach away from the most serious end of the scale of culpability.
[26] Third, it is not insignificant that the RCMP undercover operation that yielded the evidence did not involve a search or otherwise trench on the applicant’s reasonable expectation of privacy within the meaning of s. 8 of the Charter. Admittedly, the RCMP would never have acquired this evidence without the CSIS tip, which flowed from an interception that violated s. 8. But the fact that the RCMP did not further invade the privacy of the applicant – they merely gave him the opportunity to commit an offence, an opportunity he allegedly voluntarily took up – positions the breach in this case farther from the serious end of the scale of culpability.
[27] Fourth, and perhaps most importantly, I agree with Crown counsel that the seriousness of the breach is attenuated, having regard to the underlying basis for my supposing that it took place. I assumed 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 because the applicant is foreclosed from inquiring into that issue as a result of the Attorney General’s certificate. This, I concluded, negatively impacted on the fair trial rights of the applicant. But as I have stated, I do not 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. I cannot know whether or not, in deciding to issue the certificate, he adequately took into account the fair trial rights of the applicant. But the fact that the breach of s. 8 that I assume took place resulted from a bona fide concern about national security attenuates the seriousness of that breach. I am not saying that I do not give full effect to this seriousness because it is, in the words of Crown counsel, a constructive breach. I simply say that I am not blind to what brought about the assumption.
[28] Before leaving my consideration of the seriousness of the breach, I will address the second and third reasons advanced by the applicant to argue that the breach falls at the serious end of the scale of culpability. That is, that CSIS has a pattern of misleading the court and disrespecting the public’s privacy rights – in other words, that this case is not an outlier – and that the state’s misconduct affected countless innocent third parties’ Charter rights.
[29] I begin with the argument that this case fits into a pattern of misleading the court and disrespecting the public’s privacy rights. The remedy I granted under s. 38.14 was that: (1) the issuance of the warrant and interception of Mr. Huang’s private communications pursuant to the warrant will be viewed by the court considering the s. 24(2) application as having violated s. 8 of the Charter; and (2) the affidavit sworn in support of the CSIS warrant will be viewed as containing 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. But I was careful to say, in each case, that I granted the remedy “solely for the purpose of this prosecution”.
[30] Attempting to place this assumed breach into a broader pattern of alleged CSIS misconduct, as the applicant does, may not breach the letter of my remedy but, in my view, it breaches its spirit. It is one thing to give full force and effect to an assumed breach of the Charter for the purpose of permitting an accused person the opportunity to advance their rights. It is quite another to stitch assumed misconduct in this case into a pattern of abuse in other matters on different evidentiary records. If I were to make the finding counsel seek, it would inevitably be exported to other cases or uses, contrary to my stated intention.
[31] In any event, even if placing the assumed breach into a broader pattern of alleged CSIS misconduct were appropriate, despite the terms of my remedy, I am not satisfied that the applicant has established a “pattern of misleading the Court and disrespecting the public’s privacy rights”. The applicant points to: (1) the decision of Mosley J. in Re X, 2013 FC 1275, [2015] 1 F.C.R. 635, at paras. 117-8, aff’d 2014 FCA 249, 249 A.C.W.S. (3d) 333, at para. 66, in which he identified a breach of the duty of candour by CSIS to the court; (2) a similar decision of Noel J. in Re X, 2016 FC 1105, [2017] 2 F.C.R. 396; (3) a Review of CSIS Warrant Practice, Report of Murray D. Segal, December 2016 (“Segal Report”), which identifies a series of instances involving candour breaches, including the circumstances addressed by Mosley J. and Noel J.; and (3) the decision of the Federal Court in Re Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23, 2020 FC 616, 389 C.C.C. (3d) 466, in which the court concluded that CSIS breached the duty of candour to the court in two cases by failing to proactively identify and disclose that it had used information that was likely derived from illegal activities in support of its warrant applications.
[32] I note that in 2016, after breaches had been identified, CSIS made efforts to improve its ability to comply with the duty of candour. In addition to commissioning the Segal Report, CSIS implemented enhanced reporting to the court, improved individual training in respect of candour obligations, and issued a joint policy with the Department of Justice addressing the duty of candour: see Policy of the Department of Justice Canada and the Canadian Security Intelligence Service on the Duty of Candour in ex parte Proceedings, February 23, 2017.
[33] I further note that in Re Sections 12 and 21, the court recommended initiation of a comprehensive external review to fully identify systemic, governance, and cultural shortcomings and failures that resulted in CSIS engaging in operational activity it conceded was illegal and the resultant breach of candour. The court went on to detail nine areas of inquiry that should be included in the review. The court also ordered, pending the development of a new templated recital for warrants, that CSIS ensure that designated judges are notified that the court’s inherent authority allows them to address non-compliance with the duty of candour subsequently brought to their attention, and that this includes authority to make orders in respect of the use or retention of information collected under a subsequently invalidated warrant; and ensure that designated judges are presented with recitals reflecting the court’s inherent authority to make further orders relating to information collected pursuant to the warrant.
[34] I have not been advised whether the external review recommended in the 2020 decision has been initiated or completed, nor, if it has, what has resulted from it.
[35] It seems to me that I am in no position to say how this case relates to the 2013 case and other pre-2016 cases, or the 2020 case, or whether any pattern of misconduct exists within CSIS. But even if the assumed lack of candour in this case is part of a pattern, I am doubtful that it should have an impact on my decision. Counsel for the applicant submit, on the authority of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, that a pattern of state misconduct exacerbates the seriousness of a breach. But it is helpful to understand why the Supreme Court said this. In Grant, at para. 75, McLachlin C.J. stated:
Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[36] As can be seen, the particular need for the court to distance itself from a Charter breach that is part of a pattern of abuse flows from the reality that many other breaches may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. Courts that regularly issue Criminal Code warrants and orders and adjudicate criminal cases involving the exercise of police powers are well-positioned to identify and evaluate patterns of abuse by police. But unlike Criminal Code warrants, CSIS warrants are not intended to turn up evidence of criminal activity and infrequently lead to criminal charges. This case is a rare exception. As a result, when it comes to CSIS warrants, the criminal courts simply are not a meaningful forum to identify patterns of abuse or assess their significance.
[37] On the other hand, designated judges of the Federal Court do have the knowledge, experience, and authority to review CSIS abuse in the warrant process and have undertaken that task in a vigorous and proactive way, as can be seen from the Federal Court decisions I have referred to. They have examined the history of CSIS warrant applications, reviewed the internal processes that result in applications for warrants, assessed whether failings are institutional or individual, and asserted the authority to review previously issued warrants where issues of candour come to the court’s attention and ensure that CSIS is not insulated from the consequences of its actions: see Re Sections 12 and 21, at para. 206.
[38] Any effort by me to identify and define a pattern of abuse in applications for CSIS warrants, and then determine whether and how the breach in this case fits into that pattern, would be inexpert, unnecessary, and unhelpful. Nor is there need for me to redress any pattern of abuse. That task is being fulfilled by the Federal Court and, I assume, the National Security and Intelligence Review Agency (and its predecessor, the now defunct Security Intelligence Review Committee).
[39] In R. v. Huang, 2018 ONSC 831, an earlier decision in this case concerning disclosure, I stated, at para. 43:
Parliament has given CSIS extraordinary powers to intrude on the privacy of individuals. It is of vital importance that these powers are used legally and appropriately. For this reason Parliament created the Security Intelligence Review Committee (the “SIRC”) and gave it the duty to broadly review the activities of CSIS to ensure that the extraordinary powers granted to it are used legally and appropriately in order to protect Canadians’ rights and freedoms. Undoubtedly a Garofoli judge also has a role to play in holding CSIS to account. But the judge’s focus must remain on the effect of the use of these extraordinary powers on the rights of the applicant. It is not the judge’s role to undertake the broad review that the applicant seeks and that Parliament gave to the SIRC.
[40] I remain of this view.
[41] I turn finally to the argument that the state’s misconduct affected countless innocent third parties’ Charter rights. The argument of the applicant on this issue runs as follows.
[42] In his factum, the applicant says that the surveillance was overbroad, exacerbating the seriousness of the breach. He goes on to say that in addition to listening to the telephone communications of the applicant, CSIS listened to private communications between third parties and consular employees pursuant to a warrant obtained in violation of s. 8 of the Charter. CSIS is unable to quantify the number of third parties affected but, according to the applicant, one would expect that a large number of people called the PRC Embassy each day. This constitutes a massive invasion into their privacy and contributes to the seriousness of the breach.
[43] I agree with the applicant that the fact that private communications of persons other than him were intercepted pursuant to the warrant that I have found should not have issued contributes to the seriousness of the breach, but I do not adopt much of the remainder of his argument on this point.
[44] I begin by saying that it makes little sense to me to argue that a warrant that should not have issued at all is also overbroad. An overbroad wiretap order ordinarily is one that permits the interception of the communications of more targets than can be justified: see, for example, R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225 (Ont. C.A.). No such argument was made here, and no such conclusion is available on the record before me. What counsel for the applicant actually appear to mean when they speak of overbreadth is that CSIS ought to have live-monitored the interceptions at the Embassy to ensure that no communications of “innocent” persons were caught. They say the following in their factum:
It is not known how many of the communications involved intimate conversations between Embassy employees and their families. It is equally not known if any of the calls violated solicitor and client privilege, involving Embassy staff and counsel. CSIS’ self-proclaimed lack of knowledge regarding whether or not its own Service live monitored calls at the Chinese Embassy for a year, contributes to the public perception that the Service is not interested in its constitutional obligations, minimizing the intrusion on innocent third parties, or in maintaining records for proper judicial review. This failure to record keep should lead to negative inferences against CSIS and a conclusion that the Service has a disregard for minimizing invasions of privacy.
[45] I do not join in this indictment of CSIS. I find it highly unlikely that PRC Embassy employees had either intimate conversations with their families or privileged solicitor-client communications on Embassy telephone lines. But assuming that they did, that sort of private information would never be quantified, nor could it ever be disclosed to the applicant or me in this case. In addition, in the case of privileged solicitor-client communications, the warrant required that they be destroyed unless the Deputy Director of Operations of CSIS or his designate had reasonable grounds to believe that they related to a threat to Canada in relation to which a warrant was in place, in which case an application to the court for directions had to be brought.
[46] But more importantly, as I stated in my disclosure decision, at para. 51:
[T]he decision of whether or not there is a need to minimize in particular circumstances is not left to the discretion of the police or, here, CSIS. It is the obligation of the authorizing judge to turn his or her mind to the issue, to impose minimization terms where appropriate, and to select a form of minimization that is sufficient and workable in the circumstances.
[47] I further stated, at para. 53, that “it is the authorizing judge who establishes the requirement to minimize. It is not left to the discretion of the police or CSIS”. At para. 54, I stated that “the authorizing judge was obviously satisfied that the interception of the communications of some innocent persons at the Embassy was a justifiable cost in the investigation of this threat to national security.” I stand by what I said in these paragraphs but, in hindsight, I should not have used the word “innocent” in referring to unnamed persons whose communications could be intercepted under the warrant. Use of that word conflates the purpose of a CSIS warrant with the purpose of a Criminal Code wiretap authorization.
[48] A Criminal Code wiretap authorization is a tool that may sometimes be used in the investigation of crimes. Judges usually impose live-monitoring requirements where interception is permitted at public premises, such as pay telephones, to avoid invading the privacy of “innocent persons”, meaning persons who are not implicated in the offences under investigation and whose private communications will not assist in the investigation of those offences.
[49] No concept of innocence attaches to communications that fall within a CSIS warrant. CSIS warrants are not used to investigate crime. They are intelligence-gathering tools, designed, as Crown counsel put it, “to collect information and intelligence for the purpose of advising the Government of Canada about threats to the security of Canada.” Such information and intelligence may often be gleaned from “innocent” persons, and the significance of this information may only be known after it is analyzed in the context of other information. It is for this reason, as I understand it, that instead of imposing minimization requirements like those in Criminal Code authorizations, CSIS warrants, including this one, provide for after-the-fact minimization through conditions pertaining to the retention and destruction of intercepted communications and records. I have no authority and see no basis to second guess the Designated Judge’s approach to minimization. I have no criticism of it and do not view the broad sweep of the warrant to be a consideration that adds to the seriousness of the breach in this case, beyond the simple fact that the communications of persons in addition to the applicant were intercepted.
[50] In the end, with respect to this line of inquiry, I conclude that the breach is not trivial but, for the reasons I have outlined, I do not place it at the serious end of the scale of culpability. The seriousness of the breach pulls towards exclusion, but the pull is very far from overwhelming.
The Impact of the Breach on the Charter-Protected Interests of the Applicant
[51] Under the second prong of the Grant analysis, the court is called upon to evaluate the extent to which the breach actually undermined the interests protected by the infringed Charter right. To determine the seriousness of the infringement from this perspective, I must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests: see Grant, at paras. 76-77.
[52] State interception of private communications is a highly intrusive invasion of a person’s privacy. When it is done in breach of the Charter, it can only be seen as having a serious impact on the Charter-protected rights of the applicant.
[53] Counsel for the applicant argue that the seriousness of the breach is increased because the applicant had a high expectation of privacy in his communications with individuals who were physically located within the PRC Embassy. Counsel note that embassies are accorded strict protection at international law, and that Canadian law, and the importance of comity, also support the inviolability of the Embassy. Article 22 of the Vienna Convention on Diplomatic Relations (“VCDR”), which provides that “the premises of the mission shall be inviolable”, and Article 27, which, among other things, provides that “the official correspondence of the mission shall be inviolable”, have the force of law in Canada in respect of all foreign states by operation of s. 3(1) of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41.
[54] I am unable to see how Articles 22 and 27 of the VCDR affect the applicant’s reasonable expectation of privacy. Everyone in Canada, including foreign embassy employees, has a reasonable expectation that their private communications will not be intercepted by Canadian state agents absent judicial authorization, no matter where they are in Canada or who they speak to. The expectation of privacy in a telephone call to an embassy would only be heightened if Canadian state agents could never intercept private communications by electronic means at an embassy, with or without a warrant. That would be the case if Articles 22 and 27 of the VCDR preclude granting a CSIS warrant that permits such interception. Whether or not they do is a sensitive matter in respect of which I have not had the benefit of submissions. Before such argument could be made, I would insist that notice of it be given to the Attorney General of Canada. As a result, I come to no such conclusion.
[55] On the other hand, there are considerations in this case that diminish the extent to which the breach undermined the Charter-protected interests of the applicant.
[56] First, the Crown does not propose to rely on the unlawfully intercepted communication of the applicant.
[57] Second, the applicant was not targeted by CSIS. His private communications were intercepted entirely by happenstance.
[58] Third, the interception of the applicant’s communications was of brief duration.
[59] Fourth, this is not a case where CSIS proceeded without a warrant. While this counts for little in respect of the actions of CSIS, since the warrant was obtained on the basis of false, inaccurate, or misleading information, it is significant because the RCMP officers who undertook the undercover operation and obtained the evidence that the Crown will rely on at trial did so in good faith, without any reason to suppose that the warrant that yielded the tip they received was tainted.
[60] Fifth, had it not been for the apparently criminal nature of the applicant’s communications, the warrant required that they be destroyed within a period of one year following the interception. There would not have been a permanent record of them.
[61] In the end, with respect to this line of inquiry, I conclude that the breach had a serious impact on the Charter-protected interests of the applicant, but that this is significantly diminished by the considerations I have outlined. The impact of the breach on the Charter-protected interests of the applicant pulls towards exclusion, but the pull, once again, is very far from overwhelming.
Society’s Interest in the Adjudication of the Case on its Merits
[62] As was stated in Grant, at para. 79, this line of inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. It recognizes that society generally expects that a criminal allegation will be adjudicated on its merits and asks whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. Amongst the factors considered in this line of inquiry are the seriousness of the alleged offence, the importance of the evidence to the Crown’s case, and the reliability of the evidence.
[63] I begin with the seriousness of the offence. It was noted in Grant, at para. 84, that this consideration “cuts both ways”. While the public has a heightened interest in seeing a determination on the merits where the charge is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. However, in my view, this case stands apart. The applicant concedes that there is no question that the charges in this case are serious. But there is more to it than that.
[64] Here, the issue is really more about the nature of the offence charged than the seriousness of the particular conduct alleged. This case is not simply about punishing crime. It is also about Canada’s ability to deter conduct that puts our national security at risk. I do not for a second overlook the importance of the long-term repute of the justice system and the effect that condoning state misconduct may have on it. But the misconduct I have assumed in this case reflects the great difficulty the Crown has in prosecuting cases of this nature – the difficulty of balancing the fair trial rights of the applicant and the need to protect sensitive information from exploitation. As a result, I consider the nature of the offence to strongly favour adjudication on the merits.
[65] As for the importance of the evidence to the Crown’s case, the question is easily answered. The evidence sought to be excluded is the whole of the Crown’s case. This consideration also strongly favours adjudication on the merits.
[66] Last, the reliability of the evidence. This is not real evidence. It depends on the credibility of the Crown’s witnesses. Counsel for the applicant notes that it is officer testimony about an event that took place almost eight years ago and that could have been recorded. I assume, however, that the officers made contemporaneous notes. I view this consideration as neutral.
[67] Overall, I conclude that society’s interest in the adjudication of this case on its merits is exceptionally high.
Would the Admission of the Evidence Bring the Administration of Justice Into Disrepute?
[68] In the end, my task is to balance the assessments under each of these three lines of inquiry, which encapsulate all the circumstances of the case, consider them as a whole, and determine whether admission of the evidence in question would bring the administration of justice into disrepute: see Grant, at paras. 71 and 85.
[69] In weighing these considerations, no overarching rule governs how the balance is to be struck. However, in R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at paras. 62-63, Doherty J.A. provided the following guidance:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones(2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 81-89; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140.
[70] In this case, I have said:
That the breach is serious but, for the reasons I have outlined, I do not place it at the serious end of the scale of culpability. The seriousness of the breach pulls towards exclusion, but the pull is very far from overwhelming.
That the breach had a serious impact on the Charter-protected interests of the applicant but the impact is significantly diminished by several considerations. The impact of the breach on the Charter-protected interests of the applicant pulls towards exclusion but the pull, once again, is not overwhelming.
That society’s interest in the adjudication of this case on its merits is exceptionally high.
[71] Doherty J.A. stated in McGuffie that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Here, the first and second inquiries make a case for exclusion, but I would describe the case as a moderate one, while the third line of inquiry makes an exceptionally strong case for inclusion. Undoubtedly, this is a close case, one where there is room for principled disagreement. But in the end, having done my best to balance my assessments under each of these three lines of inquiry and consider them as a whole, I make the determination that the admission of the evidence in question would not bring the administration of justice into disrepute.
DISPOSITION
[72] The motion is dismissed.
M. DAMBROT J.
RELEASED: July 29, 2021
COURT FILE NO.: CR17-90000077-0000
DATE: 20210729
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: July 29, 2021
[^1]: I acknowledge that in earlier rulings in respect of this matter I mistakenly said that the applicant stands charged with two counts contrary to s. 22(1)(c) of SOIA, but nothing turns on this error.