By Ahmad Hathout
The Federal Court on Tuesday denied China Mobile’s request to temporarily suspend the federal government’s ban on its operations until the case has run its course.
The Mobile Virtual Network Operator, which resold Telus wireless plans, was ordered to cease operating in Canada this summer on national security grounds. The federal government is concerned the company’s ties to the Chinese Communist party will undermine the security of Canadians. China Mobile asked the court to review the decision and, in the meantime, filed a motion to pause the ban until the case can be fully tried.
The company lost its motion on just one aspect of a three-part legal test. While China Mobile was found to have met the low bar for a serious issue to be tried and showed that it would suffer some irreparable harm if its motion was not granted, it failed to argue its loss would be greater than that of the national security risks it allegedly poses, thus losing the motion on a “balance of convenience.”
The judge greenlit China Mobile’s serious issue argument because the federal government said in its ban decision the company may, not would, be subject to foreign government influence, leaving open the possibility the feds could find further evidence that would make such interference an inevitability. It also gave the company another nod to its argument that it would suffer irreparable harm because it would lose all of its partnerships, licenses, customers and would have to fork over termination costs.
The decision follows a hearing on the matter last month, in which counsel for the company partly argued the ban makes no sense because China Mobile does not own or operate telecommunications networks to influence. It was also argued the rift between Canada and China – during which two Canadian citizens were held by the Communist government – injected political bias in the decision. Lawyers for the government said this is just speculation and without merit.
Tuesday’s decision agreed with government lawyers that the bias assertion is without merit.
“The Respondents have provided some evidence to justify their concerns regarding [China Mobile’s] facilitation of espionage and foreign interference activities in Canada by the People’s Republic of China,” the decision said.
The government submitted, as supporting evidence, a number of documents by its security agencies showing interference and espionage capabilities of foreign governments like China.
The judge found the supporting documents “provide reliable, objective support for the public interest harms” posed by an entity like China Mobile.
“The public harms associated with the [Chinese government’s] opportunity to use its indirect control over [China Mobile] 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,” Tuesday’s decision said.
As this case moves to its next stage, the federal government is facing pressure to announce its decision on what to do with Huawei, which it said it will make soon. The national security review also comes with a study on the security of 5G networks.
