" This is the first time the federal government has ever issued a security certificate, a legal mechanism that allows the attorney general to block the disclosure of information if disclosure would harm Canada’s national security interests.
THE CASE INVOLVES A CANADIAN SELLING SECRETS TO CHINA
"Federal authorities arrested Huang in late 2013 and charged him with “conspiracy to provide Canadian military secrets” to the Chinese government. Huang previously worked as an engineer for Lloyd’s Register Canada Ltd., a subcontractor to Irving Shipbuilding, which builds vessels for the Royal Canadian Navy."
By Preston Lim
Tuesday, December 17, 2019,
Canadian Attorney General David Lametti (Source: Flickr/Sebastiaan ter Burg)
Last month, Canadian Attorney General David Lametti issued a security certificate in the ongoing case of R. v. Qing (Quentin) Huang. This is the first time the federal government has ever issued a security certificate, a legal mechanism that allows the attorney general to block the disclosure of information if disclosure would harm Canada’s national security interests. Federal authorities arrested Huang in late 2013 and charged him with “conspiracy to provide Canadian military secrets” to the Chinese government. Huang previously worked as an engineer for Lloyd’s Register Canada Ltd., a subcontractor to Irving Shipbuilding, which builds vessels for the Royal Canadian Navy.
Court documents have since provided a fuller picture of Huang’s activities and the government’s pursuit of Huang. In March 2013, the Canadian Security Intelligence Service (CSIS)—Canada’s national intelligence service—obtained authorization from the Federal Court—Canada’s national trial court—to intercept “telephone calls to and from a CSIS target at the PRC [Chinese] Embassy in Ottawa.” CSIS operators were not targeting Huang at the time but “incidentally intercepted” a conversation between Huang and the Chinese Embassy in May 2013. CSIS then provided the transcripts and recordings of the intercepted conversation to the Royal Canadian Mounted Police (RCMP)—Canada’s federal police service—which arrested Huang in December 2013, charging him under the Security of Information Act.
Parliament created the Security of Information Act “as a set of amendments to the Official Secrets Act in the immediate aftermath of 9/11.” Huang isn’t the first person to be charged under the act. Jeffrey Delisle, a sub-lieutenant in the Royal Canadian Navy, was convicted under the act in 2013 for communicating and attempting to communicate safeguarded information to the Russian military. This past September, the RCMP arrested Cameron Ortis, formerly director-general of the service’s National Intelligence Coordination Center, and charged him under the Security of Information Act for offering to sell classified RCMP information to Vincent Ramos. Ramos was the CEO of Phantom Secure, a company that sold encrypted phones to criminal organizations.
Federal authorities charged Huang under sections 16(1) and 22(1) of the act. Section 16(1) establishes communication to a “foreign entity or to a terrorist group [of] information that the Government of Canada or of a province is taking measures to safeguard” as a criminal offence. The accused must believe or be “reckless as to whether … the information is information that the Government of Canada or of a province is taking measures to safeguard.” The accused must also intend “to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests” or be “reckless as to whether … communication of the information” would increase the capacity of a foreign entity or terrorist group to “harm Canadian interests.” Section 22(1) covers preparatory acts, that is, “anything that is specifically directed towards or specifically done in preparation of the commission of the offence.” In other words, even if Huang did not provide intelligence to the Chinese, his alleged preparations to hand over information could still land him in jail.
Since CSIS found out about Huang’s activities, many of the court proceedings since 2013 have focused on the appropriate scope of disclosure of CSIS documents. Several weeks ago, a judge on the Federal Court ordered the disclosure to Huang of a CSIS affidavit. The attorney general deemed disclosure of that information to be “sensitive or potentially injurious.” Under Section 38.13 of the Canada Evidence Act, the attorney general 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 … or for the purpose of protecting national defence or national security.” On Nov. 14, the attorney general did just that, allowing the release of most of the CSIS affidavit, but blocking the disclosure of six paragraphs he deemed to be too sensitive to national security for release. How Lametti’s actions will affect Huang’s trial remains to be seen, though one legal commentator has noted that “it may be hard for the trial judge … to conclude that Mr. Huang’s fair-trial rights can be adequately protected without the disclosure of the withheld information.” Huang’s case is clearly an historic one. Since this is the first time the Canadian government has issued a security certificate, all eyes will be on the court as it sets precedent on key national security questions.
Preston Lim is a first-year student at Yale Law School. He holds a Bachelor’s degree in Near Eastern Studies from Princeton and a Master’s in Global Affairs from Tsinghua University, where he studied as a Schwarzman Scholar.
Tuesday, December 17, 2019,
Canadian Attorney General David Lametti (Source: Flickr/Sebastiaan ter Burg)
Last month, Canadian Attorney General David Lametti issued a security certificate in the ongoing case of R. v. Qing (Quentin) Huang. This is the first time the federal government has ever issued a security certificate, a legal mechanism that allows the attorney general to block the disclosure of information if disclosure would harm Canada’s national security interests. Federal authorities arrested Huang in late 2013 and charged him with “conspiracy to provide Canadian military secrets” to the Chinese government. Huang previously worked as an engineer for Lloyd’s Register Canada Ltd., a subcontractor to Irving Shipbuilding, which builds vessels for the Royal Canadian Navy.
Court documents have since provided a fuller picture of Huang’s activities and the government’s pursuit of Huang. In March 2013, the Canadian Security Intelligence Service (CSIS)—Canada’s national intelligence service—obtained authorization from the Federal Court—Canada’s national trial court—to intercept “telephone calls to and from a CSIS target at the PRC [Chinese] Embassy in Ottawa.” CSIS operators were not targeting Huang at the time but “incidentally intercepted” a conversation between Huang and the Chinese Embassy in May 2013. CSIS then provided the transcripts and recordings of the intercepted conversation to the Royal Canadian Mounted Police (RCMP)—Canada’s federal police service—which arrested Huang in December 2013, charging him under the Security of Information Act.
Parliament created the Security of Information Act “as a set of amendments to the Official Secrets Act in the immediate aftermath of 9/11.” Huang isn’t the first person to be charged under the act. Jeffrey Delisle, a sub-lieutenant in the Royal Canadian Navy, was convicted under the act in 2013 for communicating and attempting to communicate safeguarded information to the Russian military. This past September, the RCMP arrested Cameron Ortis, formerly director-general of the service’s National Intelligence Coordination Center, and charged him under the Security of Information Act for offering to sell classified RCMP information to Vincent Ramos. Ramos was the CEO of Phantom Secure, a company that sold encrypted phones to criminal organizations.
Federal authorities charged Huang under sections 16(1) and 22(1) of the act. Section 16(1) establishes communication to a “foreign entity or to a terrorist group [of] information that the Government of Canada or of a province is taking measures to safeguard” as a criminal offence. The accused must believe or be “reckless as to whether … the information is information that the Government of Canada or of a province is taking measures to safeguard.” The accused must also intend “to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests” or be “reckless as to whether … communication of the information” would increase the capacity of a foreign entity or terrorist group to “harm Canadian interests.” Section 22(1) covers preparatory acts, that is, “anything that is specifically directed towards or specifically done in preparation of the commission of the offence.” In other words, even if Huang did not provide intelligence to the Chinese, his alleged preparations to hand over information could still land him in jail.
Since CSIS found out about Huang’s activities, many of the court proceedings since 2013 have focused on the appropriate scope of disclosure of CSIS documents. Several weeks ago, a judge on the Federal Court ordered the disclosure to Huang of a CSIS affidavit. The attorney general deemed disclosure of that information to be “sensitive or potentially injurious.” Under Section 38.13 of the Canada Evidence Act, the attorney general 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 … or for the purpose of protecting national defence or national security.” On Nov. 14, the attorney general did just that, allowing the release of most of the CSIS affidavit, but blocking the disclosure of six paragraphs he deemed to be too sensitive to national security for release. How Lametti’s actions will affect Huang’s trial remains to be seen, though one legal commentator has noted that “it may be hard for the trial judge … to conclude that Mr. Huang’s fair-trial rights can be adequately protected without the disclosure of the withheld information.” Huang’s case is clearly an historic one. Since this is the first time the Canadian government has issued a security certificate, all eyes will be on the court as it sets precedent on key national security questions.
Preston Lim is a first-year student at Yale Law School. He holds a Bachelor’s degree in Near Eastern Studies from Princeton and a Master’s in Global Affairs from Tsinghua University, where he studied as a Schwarzman Scholar.
No comments:
Post a Comment