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Evidence - Canada Evidence Act - Open Court [s.38]. British Columbia Civil Liberties Association v. Canada (Attorney General)
In British Columbia Civil Liberties Association v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here involving whether a "certified tribunal record (CTR) for a judicial review application of an administrative decision contains sensitive information whose disclosure could injure national security, can it order disclosure of the unredacted CTR to the Federal Court judge seized with the application while withholding it from the applicant?".
Here the court considered a CEA s.38.04 ('International Relations and National Defence and National Security: Application to Federal Court — Attorney General of Canada') and 38.06 ('Disclosure order') issue:[14] It applied the threefold test from Canada (Attorney General) v. Ribic, 2003 FCA 246, [2005] 1 F.C.R. 33 [Ribic], which requires the Court to decide: (1) whether the information in question is relevant to an issue in the underlying proceeding; (2) if the information is relevant, whether its disclosure would be injurious to international relations, national defence or national security; and, (3) if disclosure would be injurious, whether the public interest in disclosure outweighs the public interest in non-disclosure. Based on these factors, it determined that most of the proposed redacted information could remain redacted. I have excluded many of the details of this analysis as they are not at issue in this appeal.
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[21] Finally, following Canada (Attorney General) v. Telbani, 2014 FC 1050 at paras. 103-114 [Telbani], the Federal Court held that it had the power, under subsection 38.06(2) of the CEA, to authorize disclosure of the unredacted classified CTR to the applications judge, making it part of the record in the application. It issued an order to that effect. It held that the only question before it was whether it should disclose the classified CTR to the applications judge, giving that judge the option of considering it; whether it was necessary or appropriate for the applications judge to make use of the classified CTR or to conduct part of that proceeding in camera and ex parte, perhaps with the assistance of an amicus curiae, was a question properly answered in the course of the judicial review application.
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A. Standard of Review
[31] The appellate standards of review apply on this appeal from the Federal Court’s decision under section 38.06(2) of the CEA. Questions of law are reviewable on a correctness standard and questions of fact and of mixed fact and law are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The scope of the Federal Court’s power to disclose classified information to the applications judge is a question of law reviewable on the correctness standard.
B. Legislative Scheme
[32] The primary legislative provisions at issue in this appeal are subsections 38.06(1) and (2) of the CEA:"Disclosure order"
"Ordonnance de divulgation"
"38.06 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.02(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts."
"38.06 (1)"" Le juge peut rendre une ordonnance autorisant la divulgation des renseignements ou des faits visés au paragraphe 38.02(1), sauf s’il conclut qu’elle porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales."
"Disclosure — conditions"
"Divulgation avec conditions"
"(2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information."
"(2) ""Si le juge conclut"" que la divulgation des renseignements ou des faits porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d’intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu’il estime indiquées, la divulgation de tout ou partie des renseignements ou des faits, d’un résumé des renseignements ou d’un aveu écrit des faits qui y sont liés."
"[Underlining added]."
"[Mes soulignements]." [33] The text of subsection 38.06(2) indicates that this provision confers on the designated judges of the Federal Court a broad discretion to devise conditions under which the judges may disclose protected information where the public interest in such disclosure outweighs the public interest in non-disclosure. This view finds support in the Supreme Court of Canada’s interpretation of this discretion in Ahmad, a decision to which I now turn.
C. The scope of the Federal Court’s discretion under subsection 38.06(2) of the CEA
[34] In Ahmad, the Supreme Court provided guidance on the interpretation and application of section 38 of the CEA. The case involved a challenge to the constitutionality of this provision in the context of criminal prosecutions for terrorism offences. It was argued that by conferring on the Federal Court the authority to decide whether protected information should be disclosed, and by preventing superior court judges presiding at criminal trials from reviewing any withheld information, section 38 prevented those judges from fashioning a just and appropriate remedy under section 38.14 of the CEA or subsection 24(1) of the Charter to enforce an accused’s section 7 Charter right to disclosure and to full answer and defence. Section 38.14 grants trial judges the discretion to make any order they consider appropriate in the circumstances to protect the accused’s right to a fair trial (as long as it complies with the Federal Court’s order regarding disclosure of the protected information), including a stay of criminal proceedings, an order dismissing specific counts of an indictment or information or an order permitting that indictment or information to proceed only in respect of a lesser or included offence.
[35] The purpose of the CEA played a key role in the Supreme Court’s interpretation of the scope of the powers conferred under section 38:The broad discretion conferred by s. 38 must be interpreted in accordance with the purpose of the legislation, which is to balance the public interest in secrecy against the public interest in the effective administration of a fair system of justice. This purpose requires that trial judges have the information required to discharge their duties under the CEA and the Charter in an informed and judicial manner.
(Ahmad at para. 41, underlining added) [36] The Supreme Court recognized that the scheme created by section 38 is designed to operate flexibly, and that section 38.06 in particular gives the Federal Court discretion to order the disclosure of protected information so as to ensure that trial judges know enough about the withheld information to discharge their duties under the CEA in a way that achieves the statute’s purpose:... Section 38.06(1) affirmatively requires the Federal Court judge to consider the public interest in making disclosure along with what conditions are “most likely to limit any injury to international relations or national defence or national security” (s. 38.06(2)). In making this determination, the Federal Court judge may authorize partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purposes of the criminal proceeding. (…)
... [A] Federal Court judge exercising the discretion conferred by s. 38.06(2) might find that the only condition required in order to authorize disclosure to the criminal court judge without risking injury to national security is that he or she not reveal the information to the accused, or a condition that the information be reviewed in a designated secure facility. Disclosure of the information to the trial judge alone, as is the norm in other jurisdictions, and for the sole purpose of determining the impact of non-disclosure on the fairness of the trial, will often be the most appropriate option. This is particularly true in light of the minimal risk of providing such access to a trial judge, who is entrusted with the powers and responsibilities of high public office.
(Ahmad at paras. 44-45, underlining added) [37] The Supreme Court held that this flexible application of the CEA is able to ensure that trial judges almost always receive enough information to decide whether or not trial fairness is materially affected by non-disclosure, whether a remedy short of a stay of proceedings can assure trial fairness, or whether no remedy is necessary (Ahmad at paras. 51-52). With respect to this latter scenario, the Court noted that there would be instances where non-disclosure of protected information "“will have no bearing at all on trial fairness”" or where alternatives to full disclosure, such as the provision of summaries, "“may provide assurances that trial fairness has not been compromised by the absence of full disclosure”" (Ahmad at para. 30).
[38] The Supreme Court also noted that trial judges could enlist security-cleared counsel, opposed in interest to the prosecution and to whom the Attorney General authorized disclosure of all or part of the protected information under section 38.03 of the CEA, to assist them in attempting to determine the effect of section 38 non-disclosure on the accused’s right to a fair trial (Ahmad at para. 47).
[39] In Telbani, the Federal Court decided that the Supreme Court’s teachings in Ahmad with regard to the interpretation of section 38 were not restricted to the context of criminal trials, and that section 38.06 of the CEA authorized it to disclose protected information to a designated judge of the Federal Court seized of an underlying application for judicial review.
[40] Mr. Al Telbani had challenged the decision of the Department of Transport, Infrastructure and Communities to add his name to the Specified Persons List (SPL) as part of the Passenger Protect Program on the basis that he posed an immediate threat to aviation security. He had also challenged the decision to maintain his name on the list following his request for reconsideration. Mr. Al Telbani argued, among other things, that the various instruments under which the decision was made infringed his rights under sections 6, 7 and 15 of the Charter. The Attorney General, having received notification that protected information could be disclosed in the judicial review application, applied for non-disclosure under subsection 38.04(1) of the CEA.
[41] The Federal Court rejected the claim that it could not, under section 38.06, order disclosure of protected information to the applications judge because the options provided to trial judges to reduce the impact of non-disclosure recognized by the Supreme Court in Ahmad were not available in non-criminal trials, since section 38.14 applied only to criminal trials. It stated:This restricted reading of section 38 does not seem justified to me. It is true that Ahmad applied to a criminal context and determined whether it was constitutional for Parliament to remove from judges hearing criminal trials the power to determine whether information tied to national security concerns should be disclosed and confer this power on Federal Court judges. However, a careful reading of this decision reveals that the Court did not intend to restrict its statements on the flexibility of the scheme to just the criminal context… It is quite true that section 38.14 only applies to criminal matters. However, the presence of this section can be explained by Parliament’s need to explicitly provide that the established scheme would not in any way infringe on the right to a fair trial guaranteed under paragraph 11(d) of the Charter.
(Telbani at para. 110) [42] Accordingly, the Federal Court decided that subsection 38.06(2) granted it the authority to provide the applications judge with the information for which it had ordered non-disclosure:[113] ... Even though Mr. Al Telbani is not facing criminal charges, the repercussions of his name remaining on the SPL are not any less serious. It is even possible that the judge who will hear the application for judicial review may find that his constitutional rights have been infringed. In this context, it is essential that the application for judicial review be decided based on all the information that was before the original decision-maker. Administrative decisions cannot be sheltered from review by superior courts, and the legality and constitutionality of decisions that can have a considerable impact on individuals must be assessed in consideration of all the relevant information as is possible. This is not just in the interest of the person before the court but also in the public interest. In the same way that we cannot allow a person to be subject to an illegal administrative decision, or worse a decision that infringes fundamental rights and freedoms, it would be just as damaging for our institutions if the legitimate exercise of a delegated authority were overturned because the reviewing judge did not have all the information that the decision-maker had access to.
[114] In short, I believe that the option of appointing a designated judge to hear an application for judicial review when that application involves a federal administrative decision increases the options under subsection 38.06(2) when the conditions for disclosure most likely to limit the injury to national security are being considered. If it is possible to consider disclosing sensitive information to a provincial court judge, it must a fortiori be desirable to provide such information to a designated judge under the appropriate context. In doing so, this ensures that the application for judicial review will be heard on its merits and will not be dismissed or allowed for lack of information. It would also be damaging for the administration of justice and the rule of law for a decision to be deemed reasonable or unreasonable solely on the fact that a judge did not have all the information that the decision-maker had. [43] Applying the Ribic criteria to the information sought to be protected by the Attorney General, the Federal Court decided that most of this information was relevant to Mr. Al Telbani’s application for judicial review, that its disclosure would be injurious to national security and that the public interest in non-disclosure outweighed the public interest in disclosure. It ordered that the information be disclosed to the applications judge:[I]t seems crucial to me in this case that the judge hearing the judicial review be able to see the redacted information in order to be able to assess the legality of the impugned decisions, or at least determine whether it is possible to rule on this issue despite Mr. Al Telbani’s ignorance of certain facts. The applications for judicial review should thus be heard by a designated judge. It will be up to that judge to decide whether ex parte and in camera hearings should be held and whether an amicus curiae or a special advocate should be appointed to help him or her in this task.
(Telbani at para. 116, underlining added) [44] I agree with the Federal Court’s view, in Telbani, that the Supreme Court’s guidance with regards to interpreting and applying section 38 is not restricted to the criminal context.
[45] First, the purpose that animates the CEA, including the discretion conferred on the Federal Court by subsection 38.06(2), which is to balance the public interest in secrecy against the public interest in the effective administration of a fair system of justice, is not limited to criminal trials. It extends to civil proceedings, including applications for judicial review of administrative decisions.
[46] Second, the Supreme Court concluded in Ahmad that Parliament had intended the Federal Court to exercise its broad discretion under subsection 38.06(2) to disclose protected information in such a manner as to provide trial judges with a record sufficiently complete to allow the judges to properly assess whether non-disclosure could impair trial fairness. In doing so, the Supreme Court relied on the presumption that Parliament intends to enact Charter-compliant legislation. This presumption of constitutionality was simply "“reinforced”" by the existence of section 38.14, which expressly indicated that, in the criminal context, the fair trial rights of the accused had to be protected – not sacrificed – in applying the other provisions of the scheme (Ahmad at para. 32).
[47] I note that this Court applied Ahmad’s teachings on the disclosure of protected information under section 38 of the CEA to civil proceedings in Sakab Saudi Holding Company v. Canada (Attorney General), 2024 FCA 92 [Sakab]. In that decision, this Court upheld a designated Federal Court judge’s decision to conduct a section 38.04 review on a lawyer’s brief, prepared by the defendant in a civil action before the Ontario courts, which contained the information relevant to its defence that potentially engaged section 38 and was likely to be disclosed at trial. Such a review avoided the delay and disruption that would result from the filing of multiple section 38 applications as the litigation progressed. This was consistent with the flexible operation of the CEA scheme described in Ahmad to encourage and enable early-stage disclosure proceedings. While recognizing that Ahmad involved the disclosure of information in the context of a criminal prosecution, the Court saw "“no reason why the same reasoning would not apply in the context of civil proceedings”" (Sakab at para. 35).
[48] Following the Supreme Court’s approach in Ahmad, it stands to reason, in the context of civil proceedings including applications for judicial review, that absent clear and unambiguous statutory language to the contrary, and consistent with the CEA’s purpose, it should be presumed that Parliament intended to protect, rather than sacrifice, the rights of individuals to procedural fairness and natural justice. An applications judge is no less duty-bound to protect the parties’ right to a fair hearing than a judge presiding over a criminal trial.
[49] Accordingly, I agree with the Federal Court’s assessment, in Telbani, that the authority of the Federal Court under subsection 38.06(2) extends at least to disclosing to a designated judge of the Federal Court seized of a judicial review application the unredacted classified CTR in order to allow them to determine whether they can rule on the lawfulness of the impugned decision despite the applicant’s ignorance of certain facts.
[50] As noted by the Supreme Court in Ahmad, lack of disclosure will not necessarily result in unfair proceedings, and alternatives to full disclosure may provide assurances that fairness has not been compromised (Ahmad at para. 30). In this respect, it is noteworthy that while the Federal Court accepted all but six of the Attorney General’s redactions in the Report, it approved, as did the Amicus, summaries of paragraphs of the Report that remained redacted which go "“as far as the ""CEA section 38 scheme permits in informing BCCLA about information in this document that must continue to be withheld”" (Decision at para. 78). Moreover, it approved the Attorney General’s global summary of the contested redacted information in the Books of Documents, in addition to individual summaries for six specific documents.
[51] Consistent with Ahmad, and as noted by the Federal Court in Telbani, it should also be open to the applications judge to enlist a security-cleared amicus curiae to assist them in deciding whether proceeding with the judicial review on the basis of the unredacted CTR, while withholding the redacted information from the BCCLA, would infringe BCCLA’s right to a procedurally fair hearing. At paras 52-60 the court continues, applying this law to arguments of the parties.
. Sakab Saudi Holding Company v. Canada (Attorney General)
In Sakab Saudi Holding Company v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed appeals from two open-court-related interlocutory orders to "protect sensitive or potentially injurious information from disclosure in a proceeding commenced in the Ontario Superior Court of Justice (OSCJ)" under s.38.04 of the Canada Evidence Act [International Relations and National Defence and National Security - Application to Federal Court: Attorney General of Canada].
Here the court usefully canvasses CEA s.38:[20] Section 38 of the CEA sets out a mandatory statutory process governing the use and protection of sensitive or potentially injurious information in connection with, or in the course of a proceeding before a court, person, or body with jurisdiction to compel the production of information. It defines "“sensitive information”" as "“information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard”". It also defines "“potentially injurious information”" as "“information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.”"
[21] When, in connection with a proceeding, a participant is required to disclose, or expects to disclose or cause the disclosure of sensitive or potentially injurious information, they must give notice to the AGC in writing as soon as possible of the possibility of the disclosure, and of the nature, date and place of the proceeding (subsection 38.01(1)). The broad notice requirements extend to all participants to a proceeding (subsection 38.01(2)) and to non-participating officials (subsections 38.01(3)-(4)). The immediate effect of the notice is to prohibit disclosure of the sensitive or potentially injurious information, including the fact that notice was provided (section 38.02).
[22] Upon review of the information, the AGC may authorize the disclosure of all or part of the information (section 38.03). Where the AGC does not authorize the disclosure of the information or enter into an agreement to permit disclosure of some of the facts or information subject to conditions (section 38.031), the AGC may bring an application to the Federal Court for an order confirming the prohibition on disclosure (subsection 38.04(1)).
[23] The Court must then determine, pursuant to section 38.06, whether to confirm the prohibition on disclosure or to authorize disclosure of all or part of the information and under what conditions (subsections 38.06(1)-(3)). In doing so, the Court applies a three-part test established by this Court in Canada (Attorney General) v. Ribic, 2003 FCA 246 and restated in Canada (Attorney General) v. Khawaja, 2007 FCA 388 at paragraph 8, leave to appeal dismissed, 32397 (3 April 2008).
[24] On the first part of the test, the party seeking disclosure of the information (usually the respondent) must establish that the redacted information is relevant (Ribic at para. 17). On the second part of the test, the onus shifts to the AGC to demonstrate that the disclosure of the information would be injurious to international relations, national defence or national security (Ribic at para. 18). If both relevance and injury are established, the party seeking disclosure of the information then bears the burden of demonstrating that the public interest in disclosure outweighs the public interest in the non-disclosure (Ribic at para. 21).
[25] Where the Court concludes that the public interest favours disclosure, the Court may authorize, by order, disclosure in the form and under the conditions that are most likely to limit any injury resulting from disclosure (subsection 38.06(2)).
[26] As noted above, the obligation to give notice arises when there is a possibility that sensitive or potentially injurious information will or may be disclosed in connection with a proceeding. While section 38 defines when notice must be provided, it does not prescribe the form in which the information must exist. Although the sensitive or potentially injurious information will usually be contained in a document, the obligation to give notice can also apply to oral testimony as well as audio and video recordings (Ribic at paras. 4-7; Lopes v. Canada (Attorney General), 2006 FC 347 at paras. 17, 23, upheld on appeal in Lopez v. Canada (Attorney General), 2007 FCA 109). There is also no requirement that the information pre-exist in the format sought to be used in the section 38 process. As the Designated Judge properly noted, the AGC is required to review the information regardless of the format in which it is provided (Sakab #1 at para. 177). The scope of section 38 extends to all information that is anticipated to be disclosed over the course of the underlying proceeding.
[27] The Designated Judge accepted that Al Jabri had prepared the proffer to provide the AGC all the information that was likely to be otherwise disclosed in the underlying civil action, in order to prevent a series of section 38 notices and applications as the litigation unfolded and to avoid the uncertainty about what information could be disclosed. She found that multiple section 38 applications as the litigation progressed could be more detrimental than resolving the section 38 claims at the outset. She added that, while the Court did not encourage the creation of new documents for a section 38 application, the circumstances in this case warranted such an approach (Sakab #1 at paras. 178-180; Sakab #2 at paras. 89, 92).
[28] The Designated Judge’s finding that it would be more efficient to deal with as much information as possible in one application to avoid further delays in the underlying action was an appropriate exercise of discretion regarding the section 38 process, in the circumstances.
[29] In fact, in 2021, Al Jabri had provided to the AGC a first notice under section 38.01 which referred to sensitive information in a confidential appendix to an affidavit filed by Al Jabri on a stay motion in the OSCJ. Believing that Al Jabri might disclose sensitive or potentially injurious information in a supplementary affidavit and motion materials to be filed on a renewed stay motion in the OSCJ, an official from the Canadian Security Intelligence Service gave notice under subsection 38.01(3) of the CEA to the AGC in 2022 (the second notice). Instead of providing the AGC with a copy of his affidavit and stay materials, Al Jabri and his counsel prepared the proffer with the supporting documents and submitted them to the AGC for review. The justification for this approach was to ensure that all the information relevant to Al Jabri’s defence, and potentially engaging section 38 of the CEA, would be provided for review by the AGC. Al Jabri then delivered a third notice to the AGC, which referred to the proffer and 17 supporting documents. As Al Jabri’s counsel explained during a case management conference, the purpose behind the proffer was to know, once it was redacted, what information could be adduced in the underlying litigation (Appeal Book at 2330, transcript of case conference held on September 27, 2022, at 2335-2340). The first and second notices are not at issue in this appeal.
[30] Given the number of notices already provided to the AGC and the nature of the operations in which the Sakab Parties and Al Jabri are alleged to have engaged in (counterterrorism), it was reasonably foreseeable that further section 38 notices would be required as the proceedings in the OSCJ evolved. I am satisfied that the Designated Judge properly exercised her discretion in finding that the circumstances warranted this approach.
[31] The Designated Judge’s finding is also consistent with the jurisprudence of the Supreme Court of Canada, this Court and the Federal Court.
[32] In Canada (Attorney General) v. Nuttall, 2016 FC 850, the Federal Court cautioned against a "“continuing cycle of disclosure orders”", especially in light of the delay inherent in the bifurcated section 38 process (Nuttall at paras. 78-79).
[33] In Ribic, this Court expressed concern over an approach that would lead to disclosure in multiple stages:[51] The two witnesses asserted that they are incapable of separating sensitive from non-sensitive information ... If they were to testify in the criminal trial, the trial would have to be suspended every time a question would be put to the witnesses in order to determine whether the question would lead to the disclosure of sensitive information and, if so, whether that sensitive information should be revealed. For this last determination, it involves coming back to the Federal Court. ... [34] In R v. Ahmad, 2011 SCC 6, the Supreme Court of Canada noted that "“[s]ection 38 of the CEA places an obligation on all participants to a legal proceeding, as well as non-participating officials, to notify the Attorney General of the possibility that sensitive or potentially injurious information will be disclosed”" (Ahmad at para. 17, my emphasis). It further held that the scheme under section 38 of the CEA was "“designed to operate flexibly”" (Ahmad at para. 44). In discussing the issue of potential delays caused by the bifurcation of proceedings, the Supreme Court stated as follows:An important step the parties can take is attempting to identify potential national security issues during pre-trial proceedings. This would allow the disclosure arguments to take place at an early date. Section 38 encourages early-stage disclosure proceedings … Due diligence in this respect will work to minimize the risk of mistrials. Disclosure by the Crown in a series of stages over a period of time, each new stage of disclosure triggering additional s. 38 proceedings, will heighten the risk of resort by the trial judge to s. 38 remedies.
(Ahmad at para. 77) [35] While Ahmad involved the disclosure of information in the context of a criminal prosecution, I see no reason why the same reasoning would not apply in the context of civil proceedings, as the Federal Court held in Canada (Attorney General) v. Telbani, 2014 FC 1050 at paragraph 110.
[36] The Sakab Parties submit "“this Court has declined to review information under s. 38 that is not yet at an imminent risk of disclosure.”" To support their preferred approach, they rely on Ottawa Citizen Group Inc. v. Canada (Attorney General), 2004 FC 1052 (Appellant’s Memorandum of Fact and Law at para. 79, footnote 81).
[37] In my view, their reliance on this decision is misguided.
[38] Ottawa Citizen is a decision of the Federal Court. In that case, the applicants had filed an application before a judge of the Ontario Court of Justice to terminate or vary a sealing order she had previously made in respect of seven search warrants. Counsel for the AGC was notified that the documents in issue contained sensitive or potentially injurious information as defined in section 38 of the CEA. The applicants initiated a section 38 application in the Federal Court and sought an order authorizing the disclosure of the information in issue. The Designated Judge adjourned the section 38 proceeding as a matter of judicial economy, pending the determination of the motion to vary the sealing order in the Ontario Court of Justice. The Designated Judge found that, if the judge of the Ontario Court of Justice refused to vary her sealing order, it was likely that there would be no reason to continue the section 38 application. He also noted that, if she agreed to further vary her sealing order and the AGC no longer objected to making the information public, then again, the proceeding would likely not be necessary (at paras. 20-21, 25).
[39] In my view, Ottawa Citizen does not stand for the proposition that section 38 proceedings are limited to information at imminent risk of disclosure. On the contrary, it confirms the flexibility designated judges enjoy in determining section 38 applications.
[40] Like the Designated Judge, I agree that the creation of new documents for a section 38 application should not be encouraged. However, the situation is not unprecedented. In Canada (Attorney General) v. Ortis, 2022 FC 142, Mr. Ortis was a civilian employee of the Royal Canadian Mounted Police who, in connection with his employment, had access to classified information from a variety of sources, including international partners (Ortis at paras. 2-3). He was charged with a number of offences under the Security of Information Act, R.S.C. 1985, c. O-5 and the Criminal Code, R.S.C. 1985, c. C-46. Crown disclosure provided to Mr. Ortis was redacted and the AGC applied under section 38.04 for an order confirming the claims for the prohibition of disclosure.
[41] Since Mr. Ortis had been privy to the classified documents, he was able to recall some of their redacted content. It was recognized that Mr. Ortis needed to be able to discuss the classified information with his defence counsel in order to prepare for trial. Arrangements were made for Mr. Ortis to consult with and instruct his counsel in a secure fashion. To assist the Court, Mr. Ortis’ counsel, who was security cleared, provided a summary of the evidence that Mr. Ortis wished to provide at his trial in his own defence. This information was not sworn or affirmed. The AGC reviewed the information and redacted portions of the defence summary on section 38 grounds. The summary of Mr. Ortis’ anticipated evidence was made available to the AGC and the amici curiae, but was withheld from counsel with the Public Prosecution Service of Canada (PPSC), who had carriage of the prosecution on behalf of the Crown. Mr. Ortis eventually agreed to share with the PPSC parts of the defence summary that related to specific counts, but did so in part to facilitate the Crown’s consideration of whether those charges should be stayed on the grounds that he could not have a fair trial (Ortis at paras. 17-24).
[42] The Designated Judge in Ortis noted that the defence summary "“was in effect an advance vetting of Mr. Ortis’s anticipated trial evidence for objections to disclosure under the section 38 scheme”" (Ortis at para. 7). He further observed at paragraph 39:While this complicated the work of the AGC and the Court somewhat, proceeding in this fashion ultimately enhanced the efficiency and consistency of the Court’s determinations under subsection 38.06(2) of the CEA. Dealing at this stage with objections to the disclosure of certain information Mr. Ortis wishes to provide at trial should also go a long way in minimizing any disruption to the trial because of section 38 concerns. [43] As in Ortis, the Designated Judge here accepted that Al Jabri was seeking to vet in advance his potential defence to the fraud action. Furthermore, similarly to Mr. Ortis, who relied on his right to silence vis-à-vis the Crown, Al Jabri is placing restrictions on who may access his anticipated defence by invoking litigation privilege.
[44] The Sakab Parties’ reliance on paragraph 38.01(6)(a) of the CEA is equally misplaced. While section 38.01 of the CEA imposes notice requirements regarding the disclosure of sensitive or potentially injurious information, subsection 38.01(6) sets out certain exceptions. One such exception is when a person discloses the information to their solicitor in connection with a proceeding if the information is relevant to that proceeding (para. 38.01(6)(a)). In such a situation, the person is not required to give notice to the AGC.
[45] However, this exception does not preclude the requirement to give notice under section 38.01 of the CEA where there is a possibility that the sensitive or potentially injurious information will or may be disclosed in a proceeding. In this case, as previously noted, the Designated Judge accepted that Al Jabri had prepared the proffer to provide all the information that was likely to be disclosed in the course of the underlying civil proceeding to the AGC for review. He was thus required to give notice to the AGC and the section 38 process was triggered.
[46] As I stated above, the Designated Judge’s conclusion that the proffer was appropriate in the circumstances of this section 38 application is a proper exercise of discretion, which warrants this Court’s deference on appeal.
[47] The Sakab Parties have failed to convince me that the Designated Judge either erred in law or committed a palpable and overriding error in concluding that the proffer could be the subject of proceedings under section 38 of the CEA.
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[62] Not only does the Designated Judge have a general power to control the Court’s process, subsection 38.04(5) of the CEA provides them with discretion over various aspects of the section 38 process. For example, the Designated Judge decides whether it is necessary to hold a hearing (para. 38.04(5)(b)) and, if the judge "“considers it appropriate in the circumstances, may give any person the opportunity to make representations”" (para. 38.04(5)(d)).
[63] In the circumstances of this application, I find that the section 38 process is sufficiently flexible to allow the Designated Judge to make a fair determination of the nature of the information at issue. The Sakab Parties have had the opportunity to make representations on the relevancy prong of the Ribic test. To do so, they have had access to a comprehensive record in the underlying proceeding from which they could discern Al Jabri’s defence. Furthermore, the Sakab Parties would have received written submissions from Al Jabri on the redacted information’s relevance to the underlying proceeding.
[64] Moreover, by the time the second prong of the Ribic test will be completed, they will likely have examined Al Jabri for discovery and have elicited some of the facts they allege are contained in the proffer. If they acquire information they feel should be shared with the Designated Judge, they can request a further public hearing or request an ex parte hearing to advance their position in the absence of the other parties. The amicus curiae will also have access to the proffer and can assist the Designated Judge in reaching a fair decision.
[65] In addition, I accept the Designated Judge’s conclusion that, given the extensive record filed and submissions received from the Sakab Parties and Al Jabri, she should have a sufficient grasp of the key issues in the underlying litigation to determine the relevance and public interest prongs of the Ribic test. One must keep in mind that designated judges regularly determine section 38 applications where one of the parties does not have all the information. If the Designated Judge finds that she requires more context to assist in her determination, she may order the production of additional information (Nuttall at paras. 77-78). In the event the Sakab Parties are unsatisfied with the Designated Judge’s findings on relevance in the context of the section 38 application, they are not precluded from making arguments about the relevance of the evidence to the trier of fact in the civil proceedings.
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