China Mobile pleads for Gov. evidence in fight against order to vacate Canada

China Mobile Communications Group Co., Ltd. is arguing before the Federal Court that the government should turn over the evidence it used to make an assessment of the national security risks that ultimately led to the governor-in-council issuing an order compelling the Chinese state-owned telecom company to pack up and leave Canada. In a Wednesday federal court hearing Erica Baron, arguing on behalf of China Mobile, told the court that the Investment Canada Act –which governs national security reviews and orders from the governor-in-council to vacate the country – "explicitly subjects decisions of both the minister and the governor-in-council to judicial review." In failing to disclose a number of documents, Baron continued, the Government is attempting to "effectively immunize those decisions from meaningful judicial review through the use of a claim of privilege and an assertion that a clear decision under a statute is not subject to judicial review." The clerk of the privy council has deemed a range of material about the Government's assessment of the company to be confidential, a move which China Mobile argued violates the principle of judicial review. In September, a China Mobile application for judicial review revealed the existence of an Aug. 6 order from the governor-in-council directing the company to either sell off its Canadian operation, or leave the country altogether. The order from the governor-in-council revealed that Innovation Minister François-Philippe Champagne, after consultation with former minister of public safety and emergency preparedness Bill Blair, "considered that could be used by China Mobile for non-commercial purposes, such as the compromise of critical infrastructure and espionage, to the detriment of Canada's national security" and further "would be injurious to national security." But according to China Mobile in Wednesday's court hearing, section 25.6 of the Investment Canada Act provides a check on the governor-in-council's orders, namely a judicial review under the Federal Courts Act. Rules 317 and 318 of the Federal Courts Act, Baron argued, compel the release of the material held by the governor-in-council and the innovation minister related to the order. Under the Investment Canada Act the innovation minister can conduct an early assessment of a foreign investment before deciding to refer a given investment to the governor-in-council for a national security review. In its motion heard Wednesday, China Mobile also argues that both the innovation minister and the governor-in-council should be compelled to disclose evidence used in its finding because the minister's finding to refer China Mobile to the governor-in-council for a national security review was an essential step for the order to be issued. "If the minister unreasonably decided to initiate the process, instead what would happen is: you never get to an order requiring a review; you never get to a referral, a point of the minister making a decision to refer; you never get to the point of an order," Baron told the court. "Each of the steps along the way are necessary, but not necessarily sufficient. But if any of them fails, the order falls." In its initial September challenge to the order, China Mobile argued that its Markham, Ontario-based Canadian business "primarily provides non-telecommunications-related services, such as data and business support services.” The company has similar arrangements in many other countries around the world, including in the United Kingdom and the European Union, “where no national security concerns have been raised in relation to the above-described services,” China Mobile wrote. The company has partnered with Telus Corp., and “simply distributes to its customers, primarily customers with a connection to both China and Canada, as Telus’ representative, services and products already offered by Telus,” China Mobile argued in the September filing. Back in November, China Mobile asked the federal court for a stay on the order to vacate, arguing that the national security review provisions of the Investment Canada Act have never before been judicially reviewed, therefore, the stakes of the case were high enough to merit a stay. In December, the court rejected the request. The “public harms associated with the opportunity to use its indirect control over to facilitate espionage and foreign interference activities in Canada are significantly greater than the harm that the applicants have established they will suffer if the stay they seek is not granted,” Federal Court of Appeal Justice Paul Crampton wrote in a December decision. Government lawyer Sean Gaudet argued that even if the court found that the evidence for the decision provided on the record was insufficient, then rather than ordering the disclosure of the information, the court should refer the decision back to the clerk that issued the decision. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

China Mobile pleads for Gov. evidence in fight against order to vacate Canada

News | January 20, 2022

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China Mobile pleads for Gov. evidence in fight against order to vacate Canada

News | January 20, 2022

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