Canada (Attorney General) v. Majcher

Canada (Attorney General) v. Majcher Court (s) Database Federal Court Decisions Date 2025-11-04 Neutral citation 2025 FC 1777 File numbers DES-17-24 Decision Content Date: 20251104 Docket: DES-17-24 Citation: 2025 FC 1777 Ottawa, Ontario, November 4, 2025 PRESENT: Mr. Justice Norris BETWEEN:

THE ATTORNEY GENERAL OF CANADA Applicant and

WILLIAM ROBERT MAJCHER and THE DIRECTOR OF PUBLIC PROSECUTIONS Respondents

JUDGMENT AND REASONS I. OVERVIEW [1] William Robert Majcher is charged with an offence under subsection 22(1) of the Security of Information Act, RSC 1985, c O-5 (SOIA, now entitled the Foreign Interference and Security of Information Act). The Public Prosecution Service of Canada (PPSC), under the direction of the Director of Public Prosecutions (DPP), has carriage of the prosecution on behalf of the Crown. [2] Subsection 22(1) of the SOIA makes it an offence to, for the purpose of committing an offence under the SOIA, do anything that is directed towards or done in preparation of the commission of that offence. The Crown alleges that Mr. Majcher engaged in preparatory acts for the commission of an offence under subsection 20(1) of the SOIA. Under that provision, it is an offence to, “at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group,” induce or attempt to induce, by intimidation, threat or violence, “any person to do anything or to cause anything to be done.” [3] The Crown alleges that Mr. Majcher, a former member of the Royal Canadian Mounted Police (RCMP), together with some associates, documented the assets of targets of the People’s Republic of China (PRC), tracked those individuals, and planned to confront them, all in order to advance the PRC’s clandestine extraterritorial policing operations. The charge against Mr.

Majcher alleges that he did these preparatory acts with respect to one particular target of the PRC between May 1, 2017, and June 15, 2017. At the time, this individual was a resident of British Columbia. [4] The criminal investigation of Mr. Majcher was led by an RCMP team based in Quebec. Mr. Majcher was originally charged in that province in July 2023. After Mr. Majcher successfully challenged the territorial jurisdiction of the Quebec court to try the matter, new charges were laid against him in British Columbia. Subsequently, in January 2025, the Attorney General of Canada (AGC) gave consent to prefer a direct indictment under section 577 of the Criminal Code before the Supreme Court of British Columbia. The indictment alleges a single offence under subsection 22(1) of the SOIA, as set out above. [5] Crown disclosure provided to Mr. Majcher has been redacted to protect certain information the release of which, it is alleged, would be injurious to international relations, national defence or national security. Initially, 54 documents in Crown disclosure contained such redactions. [6] The AGC has applied under section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 (CEA), for an order confirming the claims for the prohibition of disclosure of the withheld information. For the sake of simplicity, I will refer to this application broadly as a section 38 application and to

sections 38.01 to 38.17 of the CEA collectively as the section 38 scheme. [7] Mr. Majcher and the DPP are respondents on the section 38 application. [8] At an early stage of this proceeding, Mr. Jon Doody was appointed as amicus curiae to assist the Court in the discharge of its responsibilities. Mr. Doody had also been appointed as amicus curiae in an earlier section 38 application in relation to the criminal prosecution of Mr. Majcher (DES-5-24). That application, which has been discontinued, was superseded by the present one. [9] As this application progressed, the AGC revised its position regarding some of the non-disclosure claims and agreed to lift certain redactions originally applied to documents in Crown disclosure, thereby making that information available to Mr. Majcher. Consequently, it is no longer necessary for the Court to adjudicate these claims. [10] As well, counsel for Mr. Majcher gave notice to the AGC under subsection 38.01(1) of the CEA in relation to a written summary of Mr. Majcher’s anticipated evidence at trial (in the event that he were to testify in his own defence). The AGC has not made any claims for non-disclosure in relation to that summary. [11] Neither Mr. Majcher nor the DPP requested the opportunity to make submissions on this application. The DPP did file a detailed Synopsis of Crown Case (dated March 3, 2025). This document summarizes the

Crown’s allegations against Mr. Majcher and the evidence the Crown intends to lead at trial. For his part, Mr. Majcher’s position regarding the Crown’s allegations is set out in the summary of his anticipated evidence mentioned in the preceding paragraph. [12] The test for determining whether to confirm a prohibition on disclosure under the section 38 scheme or, instead, to order some form of disclosure (e.g. by lifting redactions or summarizing withheld information) is set out in Canada (Attorney General) v Ribic, 2003 FCA 246. As explained in greater detail below, under this test, I must determine whether the withheld information is relevant to an issue in Mr. Majcher’s trial on the SOIA charge; if it is relevant, whether its disclosure would be injurious to international relations, national defence or national security; and, if disclosure would be injurious, whether the public interest in disclosure outweighs the public interest in non-disclosure. [13] For the reasons that follow, I have concluded that the public interest in protecting the withheld information outweighs the public interest in its disclosure. Accordingly, pursuant to subsection 38.06(3) of the CEA, I will confirm the prohibition of disclosure of the withheld information. II. PRELIMINARY ISSUE: PUBLICATION BAN [14] As mentioned above, the charge against Mr. Majcher is currently before the Supreme Court of

British Columbia. That Court has imposed a statutory ban on publication of proceedings relating to Mr. Majcher’s judicial interim release. It has also exercised its inherent jurisdiction to impose an interim publication ban on all material filed and matters discussed during case management conferences and pre-trial applications. [15] At a public case management conference on August 7, 2025, the Court raised with the parties whether they wished to seek a ban on publication in relation to the present proceeding. Counsel for the PPSC and for Mr. Majcher jointly requested such an order. [16] I am satisfied that it is appropriate to place a time-limited ban on publication of these reasons so that the adjudication of the section 38 application does not interfere with the fairness of Mr. Majcher’s trial or the effectiveness of the publication bans imposed by the trial court. (For a discussion of the authority to impose such a ban in relation to a proceeding under section 38 of the CEA and the test to be applied, see Canada (Attorney General) v Ortis, 2021 FC 737.) This ban on publication will remain in effect until Mr. Majcher’s trial has ended or until otherwise ordered by the Court. For greater certainty, it does not preclude either the PPSC or Mr. Majcher from filing these reasons with the trial court, if so advised. III. BACKGROUND [17] Law enforcement and national security

agencies have alleged that, over many years, the PRC (in particular, its Ministry of Public Safety (MPS)) has targeted Chinese nationals living abroad by accusing them of corruption or financial crimes and then using various means to pressure them to return to China or to comply with other demands. Two such operations have been identified in public reports: Operation Fox Hunt and Operation Sky Net. These operations are often conducted clandestinely with the assistance of private investigators and former members of western law enforcement or security agencies retained by the PRC or the MPS either directly or through proxy organizations. Such clandestine activities can be pursued in parallel with overt actions targeting individuals of interest to the PRC such as by issuing INTERPOL Red Notices seeking the target’s arrest and extradition to China, communications between law enforcement agencies, and other state-to-state communications. [18] As a result of the RCMP investigation into Mr. Majcher’s activities, the Crown alleges that Mr. Majcher used his network of contacts and his policing expertise to benefit the PRC and the MPS by investigating and preparing to contact targets of their extraterritorial operations. More particularly, the Crown alleges that Mr. Majcher engaged in preparatory acts in relation to the targeting by the PRC of K.S., a national of China and a permanent

resident of Canada. The PRC alleged that K.S. had defrauded a Chinese bank and, as a result, was the subject of a Chinese criminal investigation. The Crown alleges that Mr. Majcher and one or more associates gathered information about K.S., transmitted this information to the PRC, and then followed the direction of the PRC as to how to proceed. The Crown further alleges that Mr. Majcher arranged a meeting with an associate of K.S.’s with a view to securing K.S.’s cooperation with the MPS. [19] The Crown intends to lead evidence from an associate of Mr. Majcher’s (another former member of the RCMP) who provided him with information regarding K.S. The Crown also intends to lead evidence of emails between Mr. Majcher and other associates in which he described his plans to pressure K.S. to comply with the demands of the MPS. The Crown synopsis also describes other conduct by Mr. Majcher in 2017 and 2018 that, while not the subject of charges, could constitute similar fact evidence against him. As well, Mr. Majcher gave a statement to police after he was arrested. According to the Crown synopsis, the statement demonstrates that Mr. Majcher was knowingly involved in business relationships with the PRC, that he had some knowledge of Operation Fox Hunt, that he knew generally about the allegations against K.S., and that he knew that one of his associates had been investigating

K.S. [20] The Crown’s case at trial is expected to include viva voce evidence from police officers who participated in the investigation, arrest, or interview of Mr. Majcher; viva voce evidence from former RCMP officers who interacted with Mr. Majcher; email communications in which Mr. Majcher discussed his preparation for and intention to advance the PRC’s extraterritorial operations; expert evidence concerning Operations Fox Hunt and Sky Net; and documents and emails seized during the execution of search warrants. [21] The Crown synopsis identifies several issues that may need to be resolved through pre-trial rulings: the admissibility of the Crown’s proposed expert witness (concerning Operations Fox Hunt and Sky Net); the admissibility of similar fact evidence; the admissibility of seized email communications; and the voluntariness of Mr. Majcher’s statements to police. [22] Finally, I have been informed that, while the summary of Mr. Majcher’s anticipated testimony was shared with the AGC pursuant subsection 38.01(1) of the CEA, this was done on the understanding that it would not be shared with the PPSC. The present reasons were written with this in mind. As already mentioned, apart from this summary, the defence has not provided any evidence or submissions in relation to the application of the Ribic test to the withheld information in the Crown brief. IV. ANALYSIS A. THE

TEST FOR NON-DISCLOSURE UNDER SECTION 38 OF THE CEA [23] The Supreme Court of Canada observed in R v Ahmad, 2011 SCC 6, that, in certain criminal prosecutions, there is a potential conflict between two fundamental obligations of the state: on the one hand, “to protect society by preventing the disclosure of information that could pose a threat to international relations, national defence, or national security” and, on the other hand, “to prosecute individuals accused of offences against our laws” (at para 1). The Court goes on to observe that, by enacting the section 38 scheme, “Parliament has recognized that on occasion it may become necessary to choose between these objectives, but has laid out an elaborate framework to attempt, where possible, to reconcile them” (ibid.). This scheme serves “to balance the public interest in secrecy against the public interest in the effective administration of a fair system of justice” (Ahmad, at para 41). [24] In Ribic, where the underlying proceeding was a criminal prosecution, the Federal Court of Appeal stated that, under the section 38 scheme, the designated judge “has been tasked with the difficult duty of balancing the competing public interests which, in this case, involve the protection of sensitive information and the protection of an accused’s constitutional rights to a full answer and defence and to a fair trial” (at para 13). To

guide this balancing of public interests, the Court established a three-step test for determining under section 38.06 of the CEA whether to confirm a prohibition on disclosure of sensitive or potentially injurious information or, alternatively, whether some form of disclosure should be ordered. Since then, this test has been applied consistently in section 38 applications relating to both criminal and civil proceedings. While it has not commented specifically on the Ribic test, the Supreme Court of Canada has noted both the flexibility of the section 38 scheme and the “considerable discretion” it confers on designated judges: see Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 77; and Ahmad, at para 44. [25] In determining whether to confirm a prohibition on disclosure or, instead, to order some form of disclosure, the designated judge “may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base a decision on that evidence” (CEA, subsection 38.26(5)). [26] At the first step of the Ribic test, the burden is on the party seeking disclosure to establish that the information “is in all likelihood relevant evidence” (Ribic, at para 17). In Ribic itself (where, as already noted, the underlying proceeding was a criminal prosecution), the Court held that

relevance should be determined under the “usual and common sense” meaning given to this term in R v Stinchcombe, [1991] 3 SCR 326 (Ribic, at para 17). Stinchcombe established that, in a criminal prosecution, the Crown has a duty to disclose all relevant information – that is, all information, whether inculpatory or exculpatory, that may reasonably be useful to the defence – apart from information that is privileged or the disclosure of which is otherwise governed by law (Stinchcombe, at 338-340; see also R v McNeil, 2009 SCC 3 at paras 17-18). [27] When the underlying proceeding is a criminal prosecution and the information at issue is in the Crown disclosure brief, since that brief was presumably prepared in accordance with the requirements of Stinchcombe, it may generally be presumed that the information at issue will meet the first step of the Ribic test. [28] If the designated judge is not satisfied that the withheld information is relevant, this is sufficient to confirm the prohibition on disclosure. If, on the other hand, the designated judge is satisfied that the withheld information is relevant, it is necessary to proceed to the second step of the test. [29] At the second step, the designated judge must determine whether disclosure of the relevant information would be injurious to international relations, national defence or national security. At this stage, the burden

rests on the AGC to establish that injury would result from disclosure. While the usual rules concerning what a court may receive into evidence are relaxed by subsection 38.26(5) of the CEA (quoted above), it remains the case that the designated judge must be satisfied that the alleged injury “has a factual basis which has been established by evidence” (Ribic, at para 18). Just as was stated with respect to section 87 of the Immigration and Refugee Protection Act, SC 2001, c 27, the designated judge “must be vigilant to ensure that the application for non-disclosure is based on solid evidence and a realistic prospect of harm and not over-claiming by the state” (Karahroudi v Canada (Citizenship and Immigration), 2016 FC 522 at para 27). This requires demonstrating a probability of injury, not merely its possibility (Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials), 2007 FC 766 at para 49). [30] If there is a reasonable basis for the AGC’s position concerning injury, the designated judge should accept it and turn to the third step of the test (Ribic, at para 19; Canada (Attorney General) v Huang, 2018 FCA 109 at para 13). If, on the other hand, the designated judge is not satisfied that there is a reasonable basis for concluding that the alleged injury would result from disclosure, he or she may authorize the disclosure of the

withheld information: see CEA, subsection 38.06(1). [31] At the third step, the burden shifts back to the party seeking disclosure. The designated judge must determine whether the public interest in disclosure of the withheld information outweighs in importance the public interest in non-disclosure. On the one hand, there is a public interest in ensuring that justice is done in the underlying proceeding, whether this is a matter of making full answer and defence to a criminal charge or having meaningful access to a legal remedy in a civil proceeding. On the other hand, there is also a public interest in avoiding the injury that would be caused by the disclosure of the information, as determined at the second step of the test. The designated judge must weigh and balance, among other things, the importance of avoiding the injury that would be caused by disclosure, the interests at stake in the underlying proceeding, and the importance of the withheld information to the party seeking disclosure (Ribic, at paras 21-22). [32] When the underlying proceeding is a criminal prosecution, the importance of the information must be assessed in light of the charges, the Crown’s case, and any legal or factual issues that could reasonably arise at trial. Purely speculative possibilities regarding the potential usefulness of the information will not justify the disclosure of injurious

information (Ader v Canada (Attorney General), 2018 FCA 105 at para 30). Since an accused will almost always have little or no idea what has been withheld, they may need to make assumptions about the nature of the information and they cannot be expected to demonstrate exactly how the information is important for their defence (see Canada (Attorney General) v Ortis, 2022 FC 142 (Ortis 2022) at para 60; see also Canada (Attorney General) v Meng, 2020 FC 844 at para 77). Nevertheless, the accused does have access to the non-redacted parts of the Crown brief. The accused is also privy to the defence theory of the case. If this is not otherwise apparent, the accused can support the case for disclosure by identifying the likely issues at trial from their perspective, including any pre-trial applications. [33] In order to avoid premature disclosure of the defence case, the designated judge may hear from the accused ex parte the prosecuting Crown and in private under subsections 38.11(2) and (3) of the CEA. (An example of how this works in practice may be found in Ortis 2022, especially at para 40.) As well, pursuant to the usual order for the appointment of an amicus curiae, the accused may share the defence case with the amicus confidentially and without waiving solicitor-client or litigation privilege. Accordingly, it would also be open to the designated judge to hear from the

amicus ex parte the prosecuting Crown and in private, if so requested. [34] The designated judge must also consider whether there are ways to limit the injury that would be caused by disclosure while still making information available for use in the underlying proceeding – for example, by approving a summary of the information: see CEA, subsection 38.06(2). [35] If the designated judge does not authorize disclosure in any form, he or she shall confirm the prohibition of disclosure: see CEA, subsection 38.06(3). B. THE TEST APPLIED [36] Ribic confirmed that, at the first step of the test, the test of relevance is “undoubtedly a low threshold” (Ribic, at para 17). In the present case, the withheld information is found in notes, correspondence, reports, and other materials prepared or obtained by the police in their investigation of Mr. Majcher. In short, the information is part of the “fruits of the investigation.” As such, the police were required to provide it to the Crown and, subject to any claims of privilege or other legal limitations on disclosure, the Crown was required to disclose it to Mr. Majcher in accordance with Stinchcombe. It may be assumed that material in the possession of the prosecuting Crown is relevant to the accused’s case; otherwise, the Crown would not have obtained possession of it (McNeil, at para 20). For this reason, I am satisfied that the withheld

information is relevant in the sense required to satisfy the first step of the Ribic test. [37] I am also satisfied on the basis of the evidence presented in the ex parte, in camera part of this proceeding that disclosure of the withheld information would be injurious under the second part of the test. Indeed, this was not contested by the amicus curiae in the closed part of this proceeding. [38] The determinative consideration is the balancing of public interests at the third step of the test. This balancing “requires the application of a more stringent test than the usual relevancy rule” that grounds the Crown’s duty to disclose (Ribic, at para 22). The question at this stage “is not to be viewed in the narrow sense of whether [the withheld information] is relevant to an issue pleaded, but rather to its relative importance in proving the claim or in defending it” (ibid.). Since the Stinchcombe threshold for disclosure is set quite low, the scope of the Crown’s obligation is very broad (R v Dixon, [1998] 1 SCR 244 at para 21). It “includes material which may have only marginal value to the ultimate issues at trial” (Dixon, at para 23). In contrast, at this stage of the Ribic test, to warrant disclosure under the section 38 scheme, the withheld information must be sufficiently important to the ability of the accused to make full answer and defence to justify the injury its

disclosure would cause. [39] In the hands of the defence, information can be valuable for making full answer and defence to a criminal charge in many ways, including: suggesting areas for pre-trial investigation; supporting pre-trial requests for disclosure or production of additional information; supporting applications for legal remedies such as the exclusion of evidence or a stay of proceedings; suggesting lines of inquiry to pursue with witnesses at trial that weaken the Crown’s case or support the defence case; providing an evidentiary basis for affirmative defences; and informing other decisions affecting the conduct of the defence such as whether to call evidence. [40] Having considered the charge against Mr. Majcher, the evidence the Crown intends to lead at trial, the defence synopsis, and the reasonably foreseeable legal and factual issues at trial, I am unable to discern any potential utility to the withheld information for Mr. Majcher. The withheld information has no real bearing on the Crown’s case as set out in the Crown synopsis. Furthermore, Mr. Majcher’s limited participation in the present application has left me with little insight into the defence theory of the case or its trial strategy. While the withheld information is part of the fruits of the police investigation, and while it therefore fell within the scope of the Stinchcombe disclosure obligation

(and, as such, also met the first step of the Ribic test), the information has very little, if anything, to do with the charge set out in the indictment, with the Crown’s case as described in the Crown synopsis, or with the position of the defence as set out in the summary of Mr. Majcher’s anticipated evidence. As a result, given the injury that would be caused by the disclosure of this information, the balance clearly favours the protection of that information. [41] I have therefore concluded at the third step of the Ribic test that the public interest in non-disclosure outweighs the public interest in disclosure of the withheld information. V. CONCLUSION [42] For these reasons, the prohibition on disclosure of the remaining information withheld under section 38 of the CEA will be confirmed. JUDGMENT IN DES-17-24 THIS COURT’S JUDGMENT is that The prohibition on disclosure of the information withheld under section 38 of the Canada Evidence Act is confirmed pursuant to subsection 38.06(3) of that Act. Unless otherwise ordered, these reasons shall not be published in any document, or broadcast or transmitted in any way before the criminal trial of William Robert Majcher in the British Columbia Supreme Court has ended. For greater certainty, the foregoing term does not preclude the filing of these reasons or any part thereof at the British Columbia Supreme Court. “John Norris” Judge

FEDERAL COURT

SOLICITORS OF RECORD DOCKET: DES-17-24 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v WILLIAM ROBERT MAJCHER ET AL PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: APril 9, 2025 JUDGMENT AND REASONS: NORRIS J. DATED: November 4, 2025 APPEARANCES: Andre Seguin Natalie Scott For The Applicant Jon Doody amicus curiae SOLICITORS OF RECORD: Attorney General of Canada Ottawa, Ontario For The Applicant Ian Donaldson, K.C. Vancouver, British Columbia For The Respondent, WILLIAM ROBERT MAJCHER Louis Belleau Avocat (S.A.) Montreal, Quebec For The Respondent, WILLIAM ROBERT MAJCHER Attorney General of Canada Vancouver, British Columbia For The Respondent, THE DIRECTOR OF PUBLIC PROSECUTIONS Bayne Sellar Ertel Macrae Ottawa, Ontario amicus curiae