Canada (Attorney General) v. Almalki et al., 2010 FC 1106

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: Tuesday April 06, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 1106;(2010), 377 F.T.R. 186 (FC)

Can. (A.G.) v. Almalki (2010), 377 F.T.R. 186 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. NO.002

The Attorney General of Canada (applicant) v. Abdullah Almalki, Khuzaimah Kalifah, Abdulrahman Almalki, by his litigation guardian Khuzaimah Kalifah, Sajeda Almalki by her litigation guardian Khuzaimah Kalifah, Muaz Almalki, by his litigation guardian Khuzaimah Kalifah, Zakariyy A Almalki, by his litigation guardian Khuzaimah Kalifah, Nadim Almalki, Fatima Almalki, Ahmad Abou-Elmaati Badr Abou-Elmaati, Samira Al-Shallash, Rasha Abou-Elmaati, Muayyed Nureddin, Abdul Jabbar Nureddin, Fadila Siddiqu, Mofak Nureddin, Aydin Nureddin, Yashar Nureddin, Ahmed Nureddin, Sarab Nureddin and Byda Nureddin (respondents)

(DES-1-10; 2010 FC 1106)

Indexed As: Canada (Attorney General) v. Almalki et al.

Federal Court

Mosley, J.

November 8, 2010.

Summary:

In actions filed in the Ontario Superior Court of Justice, Almalki, Abou-Elmaati and Nureddin, joined by members of their families (the respondents herein) sought compensatory damages from the Canadian government for, among other things, alleged complicity in their detention and torture in Syria (and Egypt, in the case of Elmaati), and breach of their Charter rights. The Attorney General was the representative defendant. The Attorney General brought an application in the Federal Court under s. 38.04 of the Canada Evidence Act for an order with respect to the disclosure of information that was the subject of discovery proceedings. The information was being withheld pursuant to a statutory prohibition on disclosure set out in s. 38.02(1)(a) of the Canada Evidence Act, namely, injury to protected national interests.

The Federal Court set out the specific findings it made regarding the information, in a private order. The order authorized the disclosure of certain of the withheld information, either in full text or summary form, and confirmed the non-disclosure of the remainder. In reviewing the information, the court considered whether: (a) the information was relevant to the underlying proceedings; (b) the Attorney General had met his onus of demonstrating that disclosure of the information would cause injury with factual evidence and on a reasonableness standard; and (c) where the court found that injury had been established, that the respondents had met their onus of showing the public interest in disclosure outweighed the public interest in non-disclosure.

Courts - Topic 4056

Federal Court of Canada - Jurisdiction - Federal Court - National security - [See second Evidence - Topic 4143].

Courts - Topic 4806

Common law - General - Hearings - Open court - [See first Evidence - Topic 4143].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court stated that the limitations on the disclosure of information set out in s. 38 of the Canada Evidence Act were, on their face, inconsistent with the open court principle - "In any case in which information is sought by the parties in support of their position in litigation, application of the s. 38 restrictions can only be justified if necessary to protect the identified national interests of security, defence and international relations ... In assessing whether to make an order pursuant to section 38.06 of the Act, the Court must engage in a three step process ... In considering the information at issue, the Court must determine: (1) its relevance to the underlying proceeding; (2) whether its disclosure would be injurious to national security, international relations or national defence; and (3) whether the public interest in disclosure is outweighed by the public interest in non-disclosure" - See paragraphs 39 to 43.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents against the government - The information was being withheld from the respondents pursuant to a statutory prohibition on disclosure set out in s. 38.02(1)(a) of the Canada Evidence Act - The respondents wished to have the issues related to the disclosure of information determined by the court that would hear and decide their actions - The Federal Court stated that the respondents' preference was "legally irrelevant ... given Parliament's deliberate choice to assign that jurisdiction exclusively to this court and absent a binding decision that the legislation is constitutionally invalid ... Concerns about expertise, uniformity, and security of information continue to underlie section 38's grant of exclusive jurisdiction to the Federal Court" - See paragraphs 46 to 51.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court stated that "[t]he amendments enacted by Parliament in 2001, (Anti-terrorism Act, S.C. 2001 c. 41) and the subsequent jurisprudence of the Federal Court reflect a continuing evolution of the s. 38 process towards greater disclosure of sensitive information under judicial supervision. The Court now closely examines the content of the information which the Attorney General seeks to protect, unlike in the past, and makes an independent and impartial assessment of the claims. The legislation explicitly provides for a balancing of the public interests involved and, even where injury has been established, authorizes release of the information or a suitable alternative where the judge finds that the public interest in disclosure outweighs the interests in security, defence or international relations" - See paragraph 58.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order with respect to the disclosure of information that was the subject of discovery proceedings in civil actions filed by the respondents against the government - The information was being withheld from the respondents pursuant to a statutory prohibition on disclosure set out in s. 38.02(1)(a) of the Canada Evidence Act - The Federal Court began by finding that the information was relevant to the underlying actions - The court applied the standard of relevance as it related to the discovery process in civil litigation - "In the Federal Court, information is relevant for discovery purposes if it may reasonably be useful to the party seeking production to advance its case or undermine that of the opposing party or may fairly lead to a 'train of inquiry' that may have either of these two consequences ... [T]he respondents should also have the opportunity to refute any suggestions of wrongdoing that may be found in the redacted content of the impugned documents ... Thus information will also be relevant if it may be used by the government to support its defence of the actions" - See paragraphs to 66.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court, in considering whether disclosure of the information at issue would result in injury to the protected national interests listed in s. 38.06 of the Canada Evidence Act, stated that "[f]or this purpose the Judge may receive into evidence anything that, in the opinion of the judge is reliable and appropriate ('digne de foi et utile') even if it would not otherwise be admissible under Canadian law: s. 38.06 (3.1) of the Act. The judge presiding over a s. 38 review must give considerable weight to the Attorney General's submissions on the injury that would be caused by disclosure given the access that office has to special information and expertise. Mere assertions of injury are insufficient ... The judge must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence ... The burden of persuasion rests with the Attorney General and probable injury is assessed on a reasonableness standard ... While the authority to order disclosure is expressed in the statute in discretionary terms, the Federal Court of Appeal has held that an authorization to disclose will issue if no injury would result to the protected interests" - See paragraphs 68 to 70.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court, in considering whether disclosure of the information at issue in these proceedings would result in injury to the protected national interests listed in s. 38.06 of the Canada Evidence Act, took into account that the information was dated - No charges had been laid or other action taken against the respondents for almost a decade notwithstanding that the security agencies had resort to extraordinary investigative techniques with the cooperation of foreign agencies - "The need to protect information may lose its significance with the passage of time and changed circumstances" - See paragraph 71.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act for an order with respect to the disclosure of information that was the subject of discovery proceedings in actions filed by the respondents - The respondents asserted that the international community required a state to bear the onus of showing that the "information at issue poses a serious threat to a legitimate national security interest" in order to limit public access to government information - The Federal Court stated that the assertion overstated the burden - To insist on direct proof of a specific threat to Canada set the bar too high - "The threat must be serious in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. Parliament's reference to both security and defence as national interests to be protected must be taken to mean that they are not synonymous" - National security included a wider range of interests than territorial integrity or the capacity to respond to the use or threat of force - See paragraphs 72 to 78.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents - The respondents submitted that several documents produced in redacted form stated that the information they contained was provided by, among others, the Canadian Security Intelligence Service, to the courts or to other government agencies on the basis that it was anticipated that the information might be used in judicial proceedings and that this was a waiver of any public interest privilege; and that the statements of defence in the underlying actions relied on some of the withheld information - The Federal Court agreed with the respondents that those were relevant considerations in determining whether the risk of injury claims (to Canada's national security, national defence or international relations) could be sustained - See paragraph 83.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents - The respondents submitted that the applicant's public affidavit evidence was insufficient to uphold the risk of injury claims - They relied on the fact that the three affiants had no personal involvement in or knowledge of the matters at issue - The Federal Court stated that, in the context of s. 38 applications, it was apparent that the applicant was unable to put forward public affiants for cross-examination who might have first hand knowledge of the facts or events at issue or the redacted content of the documents in question - The practice of the court was to treat those affiants as representative witnesses to give evidence as to the nature, in general, of the grounds for which the claims of privilege were - In that sense, their evidence was helpful to the court, but did not carry a great deal of weight with respect to the specific privilege claims - See paragraphs 90 to 93.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The respondents submitted that there were flaws in the process used by the Attorney General of Canada to determine and submit his claims to withhold information from disclosure, and that those flaws should reduce, or entirely eliminate, any deference that otherwise applied to the assessment of risk - The Federal Court stated that, the fact that the assessment of probable injury was not carried out personally by the Attorney General but rather by a departmental official had no bearing on the question of whether deference was due that assessment - "Ministers take advice from their officials on questions such as this and the access to special information and expertise ... is institutional rather than personal. Ministers and Deputy Ministers come and go ... They have to rely on the officials who do this work on a day to day basis, and who gain an appreciation for what will or will not result in the flow of valuable intelligence from foreign partners being cut off, or is otherwise problematic from a security or international relations perspective" - See paragraphs 96 to 103.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court stated that the provisions of s. 38.01 "are deliberately broad to permit notice to be given that sensitive information or potentially injurious information may be disclosed in connection with a proceeding by either a 'participant' or an 'official'. The respondents assume that 'official' in the context of s. 38.01 refers solely to an employee of one of the departments or agencies who are legal services clients of the Department of Justice. That is incorrect ... A member of the litigation team is a 'participant' who may give notice but that does not preclude notice being given by an official who is not a participant in the litigation but is, otherwise, an employee of the Department of Justice" - In this case, there was nothing improper in having members of the litigation team organize the process under which the documents would be reviewed by departmental officials - It was also proper for them to make the initial identification of documents in which there might be sensitive or potentially injurious information - The ultimate responsibility to make those claims rested with the Attorney General, as delegated to his officials - See paragraphs 104 to 107.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court accepted, in general, the proposition that disclosure of information that countries had provided in confidence would have an adverse effect on diplomatic relations and intelligence sharing arrangements with those countries - It was a factor to be taken into consideration in balancing the public interests - "The Court cannot simply disregard that factor in considering whether injury would result from disclosure and, if so, whether the public interest favours disclosure and in what form" - See paragraphs 129 to 148.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents - The respondents argued that it was important to consider the effect on Canada's international relations of court-sanctioned withholding of evidence of a violation of the Convention Against Torture, including evidence of engagement in or complicity in torture - The Federal Court agreed with that proposition - "It is consistent with Canada's obligations under the Convention Against Torture. Recognizing the importance of those obligations does not exclude consideration by the Court of whether there may be alternative means to disclose information in a form, such as a summary, that would minimize any injury that would otherwise result" - The court also noted that all countries and agencies were not equally important to Canada in terms of intelligence sharing - See paragraphs 149 and 150.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents - The Attorney General's evidence and submissions cited the "third party rule" or "control principle" - The Federal Court observed that one approach to the disclosure of third party information was to minimize the risk and scope of injury - As described in Charkoui, Re (2009) (F. C.), the information "can be neutralized by purging the parts that could be sensitive to the originating country" - As far as possible, the court adopted that approach in deciding whether injury would result or whether the public interest favoured disclosure in some form - See paragraph 151.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions filed by the respondents - Section 18(1)(b) of the Canadian Security Intelligence Service Act prohibited the disclosure of the identity of service employees who had been or were engaged in covert activities - The Federal Court stated that s. 18(1)(b) did not, in itself, preclude the identification of an employee who could in the future be asked to take on a covert role - "But the Court must be cognizant of the fact that CSIS employees may be called upon to perform a covert role whether they have done so in the past or not ... If the evidence is capable of supporting a claim that the person concerned has committed a civil wrong or a Charter violation against the respondents ... I agree with the respondents that the Court must also consider their rights to name the employees as individual defendants and to seek discovery from them" - See paragraphs 155 to 157.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - As a general proposition, the Federal Court accepted that the identity of covert human sources and information provided by such sources that would tend to identify them was subject to a public interest privilege, and that the court should be conscious of the effect that a decision to order disclosure of such information might have on the recruitment of human sources - The ability of the Canadian Security Intelligence Service (CSIS) to recruit and develop human sources was a public interest of considerable importance - However, the Court did not accept that the privilege should apply in every instance to persons who provided information to CSIS - The CSIS approach of routinely redacting the names of such persons and related identifying information was "overbroad" - "[T]he public interest in nondisclosure of the information will not in every case outweigh the public interest in disclosure. That assessment has to be made in the third and final stage of the inquiry" - See paragraphs 163 to 170.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court discussed the third part of the analysis under s. 38.06 of the Canada Evidence Act, namely, whether the public interest in disclosure outweighed in importance the public interest in non-disclosure - The party seeking disclosure bore the burden at this stage of proving that the public interest scale was tipped in its favour - The Act did not specify the standard to be employed in determining whether the balance favoured disclosure - As the respondents were not facing criminal charges and were not involved in an immigration proceeding in which their liberty and security of the person interests were engaged, the court considered that the standard for determining whether the balance favoured disclosure was whether the information sought would establish a fact crucial to the case of the party seeking it, including a fact that would undermine an opposing party's case - The court also thought it necessary to take into account that the information might provide the missing pieces of the overall mosaic of the case necessary for a full adjudication of the issues between the parties - See paragraphs to 171 to 173.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court set out the factors identified in the jurisprudence that the court might take into account in weighing the competing interests under s. 38.06 of the Canada Evidence Act, namely, whether the public interest in disclosure outweighed in importance the public interest in non-disclosure - See paragraphs 174 and 175.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied for an order under s. 38.04 of the Canada Evidence Act with respect to the disclosure of information that was the subject of discovery proceedings in underlying actions brought by the respondents against the Government of Canada for alleged complicity in their detention and torture and breach of their Charter rights - The respondents argued that s. 24(1) of the Charter provided the court with a broad jurisdiction, apart from s. 38 - The Federal Court, in the balancing exercise under s. 38.06, stated that [t]he primary public interest in disclosure is to ensure that the trial court has the fullest possible access to all relevant material. But that is not, in itself, an overriding consideration that will compel a decision to disclose when national security interests are at stake" - The public interest in holding government accountable for the alleged actions and omissions of its servants was an important consideration - The court also considered that the respondents' present liberty interests did not depend on the outcome of their civil actions - While maintaining access to the courts to achieve redress for civil wrongs was an important public interest, the court must be cognizant of the risk of damage to Canada's national interests if injurious information was ordered to be disclosed - The court was not in a position to make findings of fact sufficient to craft a s. 24(1) Charter remedy, nor could it rely on the findings in the Iacobucci Report establishing that the respondents' Charter rights were likely breached by Canadian officials - See paragraphs 177 to 185.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The respondents submitted that the bar to disclosure in s. 38.02(1) following the giving of notice to the Attorney General did not apply to a report prepared by the Canadian Security Intelligence Service (document 171) that had already been inadvertently disclosed with no redactions to the respondents - The error was recognized within a month of the document's production; the respondents did not return the document - The Attorney General subsequently authorized disclosure of a redacted version - The Federal Court found that the disclosure was not deliberate and the circumstances of its release did not constitute a waiver of the claimed privilege - The information in question in document 171 was, therefore, subject to the same three-step analysis as the other information at issue - In the end result, the court was not persuaded that the disclosure of certain of the redacted parts would result in injury - With regard to other portions, the respondents had demonstrated that the public interest favoured disclosure - See paragraphs 186 to 192.

National Security - Topic 1008

Canadian Security Intelligence Service - General - Disclosure of information - [See fifteenth and sixteenth Evidence - Topic 4143].

Words and Phrases

Official - The Federal Court discussed the meaning of the word "official" in the context of s. 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraphs 104 to 107.

Cases Noticed:

Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar et al., [2008] 3 F.C.R. 248; 316 F.T.R. 279; 2007 FC 766, refd to. [para. 10].

Toronto Star Newspapers Ltd. et al. v. Canada, [2007] 4 F.C.R. 434; 308 F.T.R. 196; 2007 FC 128, appld. [para. 21].

Abou-Elmaati et al. v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 2055; 318 D.L.R.(4th) 459; 2010 ONSC 2055, refd to. [para. 23].

Canada (Attorney General) v. Almalki et al. (2010), 372 F.T.R. 309; 2010 FC 733, refd to. [para. 31].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 39].

Charkaoui, Re, [2009] 1 F.C.R. 507; 316 F.T.R. 236; 2008 FC 61, refd to. [para. 39].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [para. 39].

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2004), 255 F.T.R. 173; 2004 FC 1052, refd to. [para. 40].

Ribic v. Canada (Attorney General) et al. (2003), 250 F.T.R. 161; 2003 FCT 10, affd. [2005] 1 F.C.R. 33; 320 N.R. 275; 2003 FCA 246, appld. [para. 42].

Canada (Attorney General) v. Khawaja, [2008] 1 F.C.R. 547; 312 F.T.R. 217; 2007 FC 490, revd. in part (2007), 370 N.R. 128; 228 C.C.C.(3d) 1; 2007 FCA 342, consd. [para. 139]; refd to. [para. 43].

Khadr v. Canada (Attorney General) (2008), 331 F.T.R. 1; 2008 FC 807, refd to. [para. 43].

Khadr v. Canada (Attorney General) (2008), 329 F.T.R. 80; 2008 FC 549, refd to. [para. 43].

R. v. F.A. et al., [2009] O.T.C. Uned. X61; 2009 CanLII 84788 (Sup. Ct.), refd to. [para. 50].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81; 35 D.L.R.(4th) 161, refd to. [para. 52].

Conway v. Rimmer, [1968] A.C. 910; [1968] UKHL 2, refd to. [para. 53].

Al Rawi et al. v. Security Service et al., [2010] EWCA Civ. 482; [2010] 3 W.L.R. 1069, refd to. [para. 54].

Al-Sweady et al. v. United Kingdom (Secretary of State for Defence), [2009] EWHC 1687 (Admin.), refd to. [para. 54].

Mohamed v. Secretary of State for Foreign and Commonwealth Affairs, [2010] EWCA Civ. 65; [2010] 4 All E.R. 91, refd to. [para. 54].

Arar v. Ashcroft (2009), 585 F.3d 559 (2nd Cir.), certiorari denied (2010), 130 S. Ct. 3409, refd to. [para. 55].

Mohamed et al. v. Jeppesen Dataplan Inc. (2010), 614 F.3d 1070 (9th Cir.), refd to. [para. 55].

Goguen and Albert v. Gibson, [1983] 2 F.C. 463; 50 N.R. 286; 10 C.C.C.(3d) 492 (F.C.A.), refd to. [para. 57].

R. v. Kevork, [1984] 2 F.C. 753; 17 C.C.C.(3d) 426 (T.D.), refd to. [para. 57].

Henrie v. Security Intelligence Review Committee et al., [1989] 2 F.C. 229; 24 F.T.R. 24; 53 D.L.R.(4th) 568 (T.D.), refd to. [para. 57].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 60].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 60].

Apotex Inc. v. Canada et al. (2005), 337 N.R. 225; 2005 FCA 217, refd to. [para. 61].

Benatta v. Canada (Attorney General) et al., [2009] O.T.C. Uned. U65 (Sup. Ct. Master), refd to. [para. 61].

Noble v. York University Foundation et al., [2010] O.T.C. Uned. 399; 2010 ONSC 399, refd to. [para. 62].

United Kingdom (Secretary of State for the Home Department) v. Rehman, [2001] 3 W.L.R. 877; 281 N.R. 125; 2001 UKHL 47, refd to. [para. 70].

Charkaoui, Re (2009), 353 F.T.R. 165; 2009 FC 342, refd to. [para. 75].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 76].

Babcock et al. v. Canada (Attorney General) et al. [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 81].

Harkat, Re (2005), 261 F.T.R. 52; 2005 FC 393, refd to. [para. 87].

Ethier v. Royal Canadian Mounted Police, [1993] 2 F.C. 659; 151 N.R. 374 (C.A.), refd to. [para. 92].

Lumonics Research Ltd. v. Gould, Refac International Ltd. and Patlex Corp., [1983] 2 F.C. 360; 46 N.R. 483 (F.C.A.), refd to. [para. 92].

Carltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), refd to. [para. 100].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 100].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 100].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 127].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 130].

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2006), 306 F.T.R. 222; 2006 FC 1552, refd to. [para. 132].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), revd. in part [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, consd. [para. 138].

Charkaoui, Re (2009), 368 F.T.R. 156; 179 A.C.W.S.(3d) 301; 2009 FC 476, consd. [para. 141].

Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar et al., [2010] F.T.R. Uned. 895; 2009 FC 1317, refd to. [para. 143].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162; 143 D.L.R.(4th) 38, refd to. [para. 164].

Harkat, Re, [2009] 4 F.C.R. 370; 339 F.T.R. 65; 2009 FC 204, consd. [para. 166].

Globe and Mail v. Canada (Attorney General) - see CTVglobemedia Publishing Inc. v. Canda (Attorney General) et al.

CTVglobemedia Publishing Inc. v. Canada (Attorney General) et al. (2010), 407 N.R. 202; 2010 SCC 41, refd to. [para. 166].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 172].

Jose Pereira E Hijos S.A. v. Canada (Attorney General) (2002), 299 N.R. 154; 2002 FCA 470, appld. [para. 173].

R. v. Khan (M.N.) et al., [1996] 2 F.C. 316; 110 F.T.R. 81 (T.D.), refd to. [para. 174].

Canada (Attorney General) v. Kempo (2004), 294 F.T.R. 1; 2004 FC 1678, refd to. [para. 174].

Parkin v. O'Sullivan, [2009] F.C.A. 1096; 260 A.L.R. 503 (Aust. F.C.), refd to. [para. 178].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 180].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 181].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 181].

Abdelrazik v. Canada (Minister of Foreign Affairs) et al., [2010] 1 F.C.R. 267; 346 F.T.R. 186; 2009 FC 580, refd to. [para. 181].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 183].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38, sect. 38.01(1), sect. 38.02(1)(a), sect. 38.04, sect. 38.06 [para. 41].

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 18(1)(b) [para. 156].

United Nations, Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987, No. 36, generally [para. 147].

Authors and Works Noticed:

Aldrich, Richard, J., Allied code-breakers Co-operate - but not always, The Guardian (June 24, 2010), generally [para. 136].

Aldrich, Richard, J., The Uncensored Story of Britain's Most Secret Intelligence Agency (2010), generally [para. 136].

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Security and Information: First Report (McDonald Commission Report) (1979), generally [para. 51].

Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (Major Commission Report), vol. III, pp. 156 to 165 [para. 48]; 175, 176 [para. 117].

Canada, House of Commons, Standing Committee on Public Safety and National Security, Review of the Findings and Recommendations Arising from the Iacobucci and O'Connor Inquiries (2009), generally [para. 114].

Forcese, Craig, Canada's National Security "Complex": Assessing the Secrecy Rules (2009), 15:1 IRPP Choices 1, p. 7 [para. 78].

Forcese, Craig, National Security Law (2008), pp. 419, 420 [para. 115].

Major Commission Report - see Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182.

McDonald Commission Report - see Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Security and Information: First Report.

United Nations, Johannesburg Principles: National Security, Freedom of Expression and Access to Information (1996), U.N. Doc. E/CN.4/1996/39, generally [para. 73]; Principle 2(b) [para. 74].

Counsel:

Linda Wall and Catherine Lawrence, for the applicant;

Aaron Dantowitz, M. Philip Tunley and Owen Rees, for the respondents, Abdullah Almalki, Khuzaimah Kalifah, Abdulrahman Almalki, by his litigation guardian Khuzaimah Kalifah; Sajeda Almalki, by her litigation guardian Khuzaimah Kalifah; Muaz Almalki, by his litigation guardian Khuzaimah Kalifah, Zakariyya Almalki, by his litigation guardian Khuzaimah Kalifah; Nadim Almalki and Fatima Almalki;

Aaron Dantowitz, M. Philip Tunley, Owen Rees and Barbara Jackman, for the respondents, Ahmad Abou-Elmaati, Badr Abou-Elmaati, Samira Al-Shallash and Rasha Abou-Elmaati;

Aaron Dantowitz, M. Philip Tunley, Owen Rees, Barbara Jackman and Hadayt Nazami, for the respondents, Muayyed Nureddin, Abdul Jabbar Nureddin, Fadila Siddiqu, Mofak Nureddin, Aydin Nureddin, Yashar Nureddin, Ahmed Nureddin, Sarab Nureddin and Byda Nureddin;

François Dadour and Bernard Grenier, amici curiae.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Stockwoods, LLP, Barristers, Toronto, Ontario, and Jackman and Associates, LLP, Toronto, Ontario, for the respondents;

Poupart, Dadour et associés, Montreal, Quebec, and Schurman, Longo, Grenier, Montreal, Quebec, amici curiae.

This application was heard before Mosley, J., of the Federal Court. Public hearings were held at Toronto, Ontario, on April 6, 2010, and at Ottawa, Ontario, on June 23, 2010. In camera hearings were held on April 19 and 21, 2010, May 3-5 and 11, 2010, and on June 24, 2010. On November 8, 2010, Mosley, J., delivered the following reasons for judgment and judgment.