Colin Freeze, writing in the Globe and Mail, says that “For the first time in Canada, the federal attorney-general has overridden a judge’s order to release documents that the government considers to be national-security secrets … [specifically] … Attorney-General David Lametti signed a secrecy certificate to prevent details about a Canadian Security Intelligence Service surveillance operation on the Chinese embassy in Ottawa from being disclosed in the case of a man accused of trying to leak secrets to China … [Attorney General Lametti wrote, on 14 Nov 19, that] … “This certificate, issued personally by me, prohibits the disclosure of some of the information disclosed by a designated judge”” and the document was filed in the Federal Court of Appeal.
The Attorney General’s order “says the information in question will be sealed for a decade. And, because the certificate can be renewed, it could be sealed permanently.“
The facts of the matters, according to the Globe and Mail, are that:
- The issue involves a continuing criminal case of Qing Quentin Huang who was a one-time employee of a military contractor in Burlington, ON, who was arrested after allegedly calling the Chinese embassy to try to pass along Canadian naval secrets. He was charged in 2013 with violating the Security of Information Act;
- CSIS had been bugging the Chinese embassy as part of an unrelated matter and the agency recorded his conversations and passed the tapes to the RCMP;
- For six years the case has been stuck in pretrial proceedings bouncing back and forth among different courts, as the government has tried to refute Mr Huang’s arguments that he needs to see the CSIS documents in order to mount a full defence; and, the Globe and Mail says
- “Like police, intelligence officers have to swear wiretap-warrant applications in closed hearings before judges grant them access to surveillance powers. But unlike police, CSIS’s bids are designed to never see the light of day – details of these operations are typically forever hidden away in classified documents and closed courtrooms.“
I have argued in the past the governments have legitimate secrets that need to be protected. I have also argued that judges ought to ensure that the governments must meet a heavy burden of proof before it deprives anyone, no matter how evidently guilty, of his or her liberty. Sometimes those two principles collide; this appears to be one of those times.
The powers to restrict information, even when a judge decides it needs to be released were worrisome to many when they were introduced in the Anti-Terrorism Act 2001. I agree that those powers are necessary, but must be used sparingly, only when there is no practical alternative.
What about Qing Quentin Huang?
It seems to me that Federal Court Judge Richard Mosely must now determine if the information that was released, all but six paragraphs of a 166 paragraph document used to secure the original wiretap of the Chinese embassy, is sufficient for Mr Huang’s lawyers to mount a proper defence. If it is then he should go to trial. But, if the judge decides it is not then he should, immediately, dismiss the charges and Attorney General Lametti should accept that ruling then explain to Canadians that sometimes the legitimate need for some secrecy collides with the right of every Canadian to a fair trial and that in this case, the government accepts that a person who is clearly believed to be guilty of a serious crime against Canada must be allowed to go free because the requirements of national security could not allow him to have a fair trial.