Federal Court Decision on “National Security” Privilege Claims Breaks New Ground

Stockwoods lawyers, Phil Tunley and Owen Rees have received a significant judgment from the Federal Court of Canada regarding the release of information for which the Attorney General of Canada has claimed privilege on the grounds of “national security, national defence and international relations” under s. 38 of the Canada Evidence Act. The recent decision of Mr. Justice Mosley of the Federal Court of Canada in A.G. Canada v. Almalki et al. can be read here.

The Court’s decision, based upon a public and in camera review of some 278 documents, arose in the context of civil claims against the Government of Canada and named officials for damages resulting from alleged complicity in the detention and torture of the plaintiffs in Syria and Egypt following 9/11, and resulting breaches of their rights under international law and s. 7 of the Charter as well as at common law. It breaks new ground in this area of the law in several respects. The Court rejected the A.G. Canada’s suggestion that a claim for civil damages be given less weight in the balance against important national security concerns than a criminal case, finding that the claims for breach of the Charter and the convention Against Torture are viable, and serious. The decision is the first to sanction the release of names of individual CSIS agents “if the evidence is capable of supporting a claim that the person concerned has committed a civil wrong or Charter violation against the respondents”. The Court also accepts that Canada’s international obligations under the Convention Against Torture are consistent with court-sanctioned release of evidence of complicity in torture by Canadian officials. The Court is critical of the A.G. Canada’s “unnecessarily broad claims” of privilege in several respects. As the decision is currently on appeal by the A.G. Canada to the Federal Court of Appeal, the respondents will not know the full implications and effect of the decision until that appeal has been resolved.