Feds win fight to keep evidence secret in decision to ban China Mobile

A federal court judge has rejected a China Mobile Communications Group Co., Ltd. request to order the office of Innovation Minister François-Philippe Champagne and the governor-in-council (GIC) to hand over the evidence both offices used to decide to order China Mobile to pack up shop and leave Canada. China Mobile made the request in a Jan. 20 hearing before the court under Rules 317 and 318 of the Federal Courts Rules, arguing that national security reviews and orders to vacate the country from the GIC are subject to judicial review, and that the government's claim of cabinet confidence is an attempt to "effectively immunize those decisions from meaningful judicial review." China Mobile had requested both evidence that was before the Innovation Minister when he decided to refer the company for a national security review, as well as evidence that was before the GIC when it ordered China Mobile to leave Canada under the authority of the Investment Canada Act (ICA). In a Wednesday court order, case management judge Trent Horne dismissed the company's request for the minister's materials, and wrote that the investigative files requested "plainly go beyond" the requirements of Rule 317. The judge wrote that because China Mobile's application for judicial review expressly challenged the order from the GIC, it was not also entitled to materials involved in a previous decision – the ministerial decision to initiate a national security review of the company. "The Minister and the Investment Review Division are not tribunals whose order is the subject of this application (as set out above, the notice of application only challenges the Order)," Horne wrote. China Mobile had previously argued that its challenge of the GIC order necessarily also implicated the minister's decision to review the company. “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,” China Mobile lawyer Erica Baron told the court last month. "If the applicants wanted to challenge any decision of the Minister that preceded the Order, it should have been done directly. Such a challenge cannot be advanced indirectly," Horne wrote. When it comes to the evidence before the GIC requested by China Mobile, Horne noted that China Mobile objected to the claim of cabinet confidence almost immediately after the government made the claim, but it wasn't until nearly two months later that the government produced a certificate signed by the clerk of the Privy Council attesting to the claim as required under section 39 of the Canada Evidence Act. Horne went on to set aside the section 39 certificate, but wrote that he would allow for the government to produce a new certificate. and adding that the setting aside of the certificate does not compel the government to release any materials to China Mobile. Horne did acknowledge, however, that China Mobile is essentially left in the position of arguing a judicial review of an administrative decision-maker without any on the evidentiary record. "The applicants, and the Court, may have nothing to refer to in the assessment of the reasonableness of the Order, other than the Order itself," Horne wrote. Nevertheless, Horne declined to compel the GIC to produce the materials it used to make the decision. The "absence of a record on the judicial review (at least at this stage) arises from the nature of the proceedings, the process under ICA, and the fact that the notice of application only challenges the Order, not an effort to thwart public inquiry, or an improper litigation tactic by the respondents to gain advantage," Horne wrote. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Feds win fight to keep evidence secret in decision to ban China Mobile

News | February 4, 2022

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Feds win fight to keep evidence secret in decision to ban China Mobile

News | February 4, 2022

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