Blindfolded: The Hidden Evidence Dilemma in Canada v Meng

Abby Stein

Introduction

Public interest immunity occupies a special status in the realm of Canadian evidence law. One of the examples is section 38 of the Canada Evidence Act (“CEA”), pertaining to the disclosure of information that could potentially impact international relations, national defence, or national security.[1] A discussion of this particular part of the evidence statute will follow in the context of Canada (Attorney General) v Meng, 2020 FC 844, which is one out of a series of legal proceedings within a high-profile extradition case fought between the US and Huawei’s CFO, Meng Wanzhou.

Background

Huawei is a multinational technology company headquartered in China.[2] Its primary business involves the manufacturing and sales of consumer electronics.[3] As the US-China trade war intensified during Trump’s administration, the company has faced significant controversies due to its dubious affiliation with the Chinese government, which has sparked espionage concerns.[4] The extradition of Meng was kickstarted with a request for her arrest in Canada from the US government, who later announced a series of financial fraud charges against her.[5] In response to the request, in November 2018, the BC Supreme Court granted a provisional warrant for Meng’s arrest under the Extradition Act.[6] Later that year, during her trip to Mexico from Hong Kong, Meng made a brief stopover in Vancouver and was arrested there.[7]

In the fight against Meng’s extradition, Meng’s lawyers undertook to exhaust all possible strategies and arguments that could assist her case. One of the strategies was an application to stay the extradition proceedings on the basis that they were an abuse of process.[8] To support this allegation with evidence, Meng successfully obtained an order from the BC Supreme Court for the disclosure of certain information related to her arrest. In granting that order, the BC court held that the information Meng asked for was relevant to her abuse of process allegation.[9] At the time, such information was variously kept in the possession of the RCMP, the CBSA, and the DOJ.[10] To comply with the order, the Attorney General of Canada (“AGC”) disclosed the relevant information to Meng. Shortly after, the AGC also disclosed 6 additional redacted documents from CSIS.[11] Meng subsequently objected to the redactions.[12] Ultimately, the dispute resulted in the AGC applying to the Federal Court under section 38.04 of the CEA for an order confirming the non-disclosure of the redacted information in those 6 documents.[13]

Federal Court Ruling and Analysis

To determine whether to confirm non-disclosure, the Federal Court in Meng applied the three-part test established in Canada (Attorney General) v Ribic at the Federal Court of Appeal. In the first step, a determination should be made as to whether the information sought is relevant to the proceedings in which it is intended to be used. The party seeking disclosure has the burden of satisfying this relevance requirement.[14] Next, the court should determine whether the disclosure would be injurious to international relations, national defence, or national security, and the onus rests on the AGC to prove injury.[15] Lastly, if it is determined that injury would occur, the court should determine whether the public interest in disclosure would outweigh the public interest in non-disclosure.[16] The onus shifts back to the party seeking disclosure at this ultimate stage.[17]

On the issue of relevance, Meng argued that since a BC court had already held the information she requested was relevant to her abuse of process allegation, by disclosing the 6 redacted CSIS documents, the AGC effectively conceded to the relevance of those documents.[18] The Federal Court distinguished the 6 redacted documents at issue from other documents that were disclosed in response to the BC court order. It indicated that the relevance determination of the BC court did not extend to the 6 redacted documents at issue, and in providing these documents to Meng, the AGC was simply complying with the disclosure principle of Stinchcombe by taking a broad view of potential relevance, instead of conceding on relevance.[19] The Federal Court then examined the 6 redacted documents in an ex parte hearing with the AGC and an appointed amicus and eventually found no relevance of the information in those documents in relation to Meng’s abuse of process claim.[20] The Federal Court further indicated that even if relevance had been established, injuries to international relations would result from the disclosure and the weight of public interest militated towards non-disclosure.[21] The Federal Court, however, did not elaborate on its analysis leading to this latter part of the finding, likely due to the sensitivity of the information involved. Eventually, Meng was not able to have the redactions lifted.[22]

A Controversial Regime…

Section 38 of the CEA has no doubt been a target of criticism on many fronts. One of its major criticisms has been that the regime operates as an antithesis to the principle of full disclosure and the right to make full answer and defence.[23] It has been properly argued by critics that non-disclosure of information—especially exculpatory information—goes against the very foundation of the adversarial process.[24] In Meng’s case, the non-disclosure of the information had a real risk of denying her the right to fully defend herself against extradition to the US to face criminal charges. Moreover, section 38’s impact on the adversarial process in this case was also reflected by Meng having to make blindfolded submissions at the Federal Court when arguing for the disclosure of the information. After all, it is simply counterintuitive to require a party to argue for the release of certain information without knowing what the information is. Even the Federal Court has recognized the difficulties and noted that a respondent is at a disadvantage in similar proceedings.[25] But the court was also bound by the existing Ribic test, including its allocation of the burden of proof. As a result, despite the importance for Meng to make cogent submissions on the elements of the test, the process under the CEA has effectively made it impossible to advance precise arguments, necessitating— necessitat the appointment of an amicus. Nonetheless, although an amicus is authorized to examine the information withheld from the respondent and make submissions to the court, he/she is not the respondent’s advocate but, instead, a “friend of the court” whose job is strictly to assist in the administration of justice.[26] Therefore, despite a second set of eyes being directed at the withheld information, it does not necessarily result in the interest of the respondent being further represented in what’s ultimately an adversarial proceeding.

…But Used Properly

Despite the criticisms of the CEA’s section 38 regime, important considerations still exist to justify its continued existence in the statute. Arguably, cases like Meng are perfect examples of where such a controversial regime can be put to the right use and produce universally satisfactory results. In particular, Meng’s case involves the international relations among Canada, China, and the US. As the top two superpowers of the world, China and the US have increasingly found themselves at war with each other, both politically and economically. With the extradition of Meng—a Chinese citizen with alleged ties to the Chinese Communist Party—being requested by the US, Canada is essentially caught between the crossfire of its long-term ally and one of its most important trading partners. To further complicate the matter, China simply did not see any issues in unlawfully arresting and detaining two Canadians as part of a “hostage diplomacy” tactic to pressure Canada for Meng’s release.[27] With such extreme geopolitical tensions at play, any piece of classified information that’s inappropriately released could turn what’s already a delicate situation into total chaos—even potentially war—where much more globalized interests outside of the courtroom would be painfully at stake. As foreign policy decisions tend to have extensive ramifications beyond not just the courtroom but also international borders, the unelected judiciary is neither properly equipped nor in a legitimate position to navigate the issues. Even the judiciary agrees that such decisions are better left to the executive branch under the separation of power due to this very reason.[28] The interest of the accused, although principally important, would have to be weighed against the much more universal and globalized interests at stake in cases like Meng. The section 38 regime of the CEA no doubt serves to make sure that the more universal and globalized interests are protected, and that’s what it has rightfully done in Meng.

Concluding Thoughts

In conclusion, the section 38 regime of the CEA is a daunting obstacle for litigants seeking disclosure of information when national interests are at stake. Although the interest of the accused remains important, the reality is that the delicate nature of certain high-profile cases can sometimes urge the judiciary to distance itself from the underlying international politics and show deference to the executive branch. In passing the wheel to the executive branch, however, one could argue that courts are effectively making decisions of a political nature. Nevertheless, however disappointing it may sound, there is ultimately no divorcing the law from politics.[29] Under exceptional circumstances, it may still be appropriate for courts to take political considerations into account.

[1] Canada Evidence Act, RSC 1985, c C-5, s 38-38.17.

[2] Huawei, “About Huawei”, online: Huawei <huawei.com/en/corporate-information> [perma.cc/P5MM-TKM9].

[3] Ibid.

[4] Tom Simonite, “US Lawyers Don’t Buy Huawei’s Argument on Chinese Hacking”, Wired (4 March 2019), online: <wired.com/story/us-lawyers-dont-buy-huaweis-argument-chinese-hacking/> [perma.cc/3AJ3-QNRM].

[5] Reuters Staff, “US unseals indictments against China’s Huawei and CFO Meng Wanzhou”, Reuters (28 January 2019), online: <reuters.com/article/us-usa-china-huawei-tech-charges/u-s-unseals-indictments-against-chinas-huawei-and-cfo-meng-wanzhou-idUSKCN1PM2H5> [perma.cc/7UFP-CHEZ].

[6] United States of America v Meng, 2019 BCSC 2137 at paras 8-9.

[7] Ibid at paras 10, 16.

[8] Ibid at para 2.

[9] Ibid at para 60.

[10] Ibid at para 59; CBSA stands for Canada Border Services Agency.

[11] CSIS stands for Canadian Security Intelligence Service.

[12] Canada (Attorney General) v Meng, 2020 FC 844 at para 3 [Meng].

[13] Ibid at para 1. Under the section 38 regime of the Canada Evidence Act, the Attorney General of Canada may withhold litigation-related disclosures that are potentially injurious to international relations, national defence, or national security. Such non-disclosure is eventually required to be approved by an order of the Federal Court.

[14] Meng, supra note 12 at para 38.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid at para 47.

[19] Ibid at paras 73-74.

[20] Ibid at para 90.

[21] Ibid at para 91.

[22] Ibid at para 92.

[23] Jeremy Patrick-Justice, “Section 38 and the Open Courts Principle” (2005) 54 UNBLJ 218 at 222-223.

[24] Ibid.

[25] Ibid at para 76.

[26] Tran v Durham Condominium Corp, 2021 ONSC 2166 at para 12.

[27] Peter Xavier Rossetti, “The Detention of the Two Michaels: A Story on China’s Human Rights Abuses”, CANDLELIGHT Amnesty International at the University of Toronto (5 January 2022), online: <amnesty.sa.utoronto.ca/2022/01/05/the-detention-of-the-two-michaels-a-story-on-chinas-human-rights-abuses> [perma.cc/FC5Q-YK8C].

[28] Secretary of State for the Home Department v Rehman, [2001] UKHL 47 at para 62; United States v Burns, 2001 SCC 7 at para 36.

[29] Brandon Trask, Constitutional Law Lecture, class discussion (Faculty of Law, University of Manitoba, 2023).