I cna probably shed some light on how and why this went the way it did. I've read through the various past decisions on this one and have been following it, not super closely of late, but I was keeping an eye because it's a very interesting case. This was only, to the best of my knowledge, the second criminal case that went to trial under the Security of Information Act - the first being Jeffrey Delisle.
Hmmm, wonder if it's justified to consider charging the Federal Prosecutors with dereliction of duty or something similar.
No, far from it. The system wasn't set up to succeed on this, for reasons I'll explain.
I'm surprised the government hasn't slapped a security classification on it and made the whole thing secret from everyone. Like they have with most other ChiCom breeches of our security.
Principle of open courts. Once something is going through prosecution, though there are limited provisions for publication bans, most info has to be public, with some exceptions that I'll explain.
As someone in the comments section proposed, maybe it's time to form a special section of the court that can deal with security sensitive evidence.
There's a system and process for this. It ain't pretty.
In a nutshell, what has happened here is that the Jordan
Supreme Court decision has crashed into S.38 of the Canada Evidence Act. Jordan
was the decision that established time limits beyond which a delay is presumptively unreasonable. A trial in provincial court has 18 months from when charges are laid to be concluded in court. A prosecution in provincial superior court has 30 months. There are allowances for delays caused by defense, for exigent circumstances - but the underlying principle is that there must be justice without unreasonable delay.
The Canada Evidence Act
is the law that governs how evidence works in judicial proceedings. It includes sections that allow for certain privileges to be maintained- section 37, for instance, allows for certain sensitive police techniques, undercover operations, etc. Section 39 establishes cabinet confidence. Section 38 deals with information that is privileged for reasons of national security or international relations, such as domestic intelligence information, intelligence information shared by foreign partner agencies, etc.
There is a presumption of open courts in Canada, and of all evidence being public unless it's exempted such as under the grounds listed above. Those exemptions aren't automatic- crown has to assert the privileges, and various mechanisms exist to test that in a secure manner that preserves the right to a fair trial.
I have no 'inside' knowledge on the Huang case, this is from reading through all of the decisions on CanLII some time back. The Huang case originated out of a CSIS wiretap of the Chinese embassy. While they were listening to the embassy for other reasons we don't get to know about. Huang calls the embassy up and offers up information on the shipbuilding program (at the 'Secret' level if I remember right).
CSIS is, quite reasonably, concerned about this. They sent an advisory letter to the RCMP - the Mounties carry the national security mandate. CSIS advisory letters will contain minimal information, but will point the police to what CSIS believes is a security threat that could warrant criminal investigation and prosecution.
The Mounties investigated, and Mr. Huang ended up charged under the Security of Information Act. Eventually, through the disclosure process, CSIS reluctantly coughed up a heavily
redacted version of the affidavit they had submitted to get their original wiretap on the Chinese embassy. In criminal investigations that rely on wiretap info, it's very normal for defence to challenge the legality of the warrant permitting the interception of private communication, and to challenge the legal admissibility into evidence of the intercepted communications themselves. So, defence went after the CSIS warrant, and applied to have the rest of it unsealed.
The CSIS warrant had been redacted under S.38 of the Canada Evidence Act
- national security and international relations (in this case, I believe, both). When Crown asserts a S.38 privilege, there's a process established for testing that privilege and whether the vetting will be uncovered. This process happens in federal
court, and the trial judge in provincial
court is blind to it. They only get what comes out the other end. That process is basically this:
1. Crown asserts a privilege. The security cleared federal court judge reviews the material (generally with the assistance of a neutral lawyer, security cleared, who functions as amicus curiae
). The judge has to determine whether there is in fact potential harm to national security or international relations.
2. If the judge is satisfied, defence then needs to argue - without necessarily knowing what the redacted content is, mind you - that the material could be relevant to the defence. This is a very low threshold, and there must be deference to the defence in this.
3. If the judge determines that yes there is risk to those interests, and that also yes the material is relevant, how then can the public interest in security be balanced with the accused' right to a fair trial? The federal court judge has super broad discretion here- they can order just about anything appropriate.
In the Ribic
case, the material in question was testimony from a could CAF Intelligence Operators- Ribic was a Serb-Canadian who went home to Serbia, and took several peacekeepers hostage including a Canadian, andused them as human shields at, I believe a munitions site. In this case, the judge allowed the evidence of the CAF members to be entered as testimony transcript only, with their names redacted. The jduge could also do things like order the the lawyer but not the accused be able to view certain material, they could order material fully disclosed, they could order it fully redacted- whatever they think is appropriate.
The last step after that is the Attorney General can exercise ministerial discretion to overrule the federal court judge and order some evidence remain undisclosed. It's presumed that the Attorney General has more fulsome knowledge of the national security imperatives than the judge.
Once all of this is done, the evidence, in its resultant form (maybe just as redacted, maybe some or all redactions lifted) gets admitted for the trial. The trial court judge can then exercise their
discretion as to whether they think the accused can still get a fair trial- again, the trial judge never gets to peek under the black boxes.
, this process dragged out for years. Ultimately, the court ruled that more of the CSIS warrant would be uncovered. Global Affairs protested, saying this would harm international relations - I infer from this that the CSIS warrant relied on foreign intelligence that, if aired in open court, would hurt our intelligence sharing with a foreign partner. The Attorney general 'Noped' this, and exercised ministerial authority to keep the black boxes on the CSIS warrant.
Further legal wrangling ensued at the trial court level, but ultimately Huang's lawyers brought a successful Jordan
application, and the case was stayed due to unreasonable delay. The case had been moving through the system for eight years.
So, in the end, we have a criminal justice system that struggles to deal with the timely adjudication of privilege claims over highly sensitive national security information. CSIS warrants don't normally cross over into the criminal realm, and police investigators, from what I've been told, try to steer clear of any information from the intelligence side so as to avoid these pitfalls.
The 'Intelligence to Evidence' dilemma is the focus of some interesting niche study in Canadian legal and national security circles. Leah West, Craig Forcese, and Stephanie Carvin are among some of the names doing a lot of work in that field if anyone is interested in reading further on it. Other countries do this stuff better, and there are learned voices trying to help Canada chart a path forward. So far I've not seen any indication that the federal government has set its sails.
SOIA prosecutions are rare, it may be some time before we next see this tested again. It may be that in the post Jordan
Canadian legal environment, some legislative input is needed to help keep certain national security prosecutions viable.