China Mobile still seeking evidence from Gov. banning order

China Mobile Communications Group Co., Ltd. is seeking to challenge a court decision allowing the federal government to keep secret certain materials it used in ordering the Chinese state-backed telecom company to vacate the country. In an application for judicial review filed with the Federal Court of Appeal on Tuesday, China Mobile asked the court for an order setting aside both the Federal Court's initial decision to keep secret the evidence used by both the office of Innovation Minister François-Philippe Champagne and the governor-in-council (GIC), as well as a decision from last week that upheld the GIC's claim of cabinet confidentiality. China Mobile is arguing that the Federal Court erred in law by dismissing China Mobile's appeal for the documents, in which the lower court both declared that China Mobile did not properly judicially review the innovation minister's decision to refer China Mobile to the GIC and found the claim of cabinet confidentiality valid. The Chinese telecom 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.” A February decision in the Federal Court distinguished between the minister's decision to refer the company to the GIC for a national security review, and the GIC's decision to exclude China Mobile from the country. The Federal Court judge at the time declared 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. In its appeal from this week, China Mobile argues that the two decisions are both subject to review under the Investment Canada Act. "Though they are distinct milestones in the review, they are subsumed into one such that the review process results in a continuing course of conduct and are both prerequisites to any order being issued," China Mobile wrote. When it comes to the government's claim of cabinet confidentiality, China Mobile argued that the Supreme Court of Canada has been explicit about requiring a certain level of detail required for the claim, which the government made under Section 39 of the Canada Evidence Act. Under section 39, the Minister of the Clerk of the Privy Council can issue a certificate asserting that certain information is protected under cabinet confidence. However, China Mobile argued in its application for judicial review this week that the certificate must be explicit about what it is claiming confidence over. "Owing to the substantial, near-absolute power, provided by section 39, the Supreme Court of Canada has emphasized the need for strict compliance with the statute," China Mobile wrote, pointing to a 2002 Supreme Court decision in the case Babcock v. Canada. China Mobile quoted the decision in its application: "The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue," the Supreme Court wrote. "There is good reason to demand that degree of particularity because it is only the certificate that can be reviewed in the context of a challenge and not the documents themselves," China Mobile argued. "Without such particularity, the near absolute power would be, in fact, absolute," the company continued, adding that the Babcock decision is the judicial litmus test for a valid certificate. The government failed to enumerate the information required by Babcock in its certificate, according to the telecom. The cabinet quietly ordered the company to pack up and leave Canada in August, 2021, a move which was only revealed when China Mobile challenged the decision in court a month later. The decision was also a prelude to a much higher profile move the following spring: to ban Huawei Technologies Co. Ltd. and ZTE Corp. from Canada's 5G telecommunications networks. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

China Mobile still seeking evidence from Gov. banning order

News | 08/03/2022 5:24 pm EDT

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