Superior Court Confirms Its Jurisdiction to Review “National Security” Privilege Claims

Stockwoods lawyers, Phil Tunley and Andrea Gonsalves were successful in confirming the jurisdiction of the Superior Court of Justice in a civil trial to review documents claimed by the Government of Canada to be privileged on the grounds of “national security, national defence and international relations” under s. 38 of the Canada Evidence Act. The issue arose on a preliminary motion brought by Stockwoods on behalf of Ahmad Elmaati, Abdullah Almalki, and Muayyed Nureddin, who have brought civil claims against the Canadian Government under the Charter for complicity in their detention and torture by Syrian and Egyptian authorities in the aftermath of 9/11. The Plaintiffs alleged that the Government is misusing s. 38 to conceal evidence of its breach of their Charter rights, and sought an order requiring full disclosure or, in the alternative, striking out the Government’s Statement of Defence. The Government objected to the Superior Court’s jurisdiction to grant the orders sought, on the ground that s. 38 gives the Federal Court exclusive jurisdiction to review such claims of privilege. In response, Stockwoods challenged the validity or applicability of s. 38, to the extent that it purports to remove the “core” jurisdiction of the superior courts to ensure a fair trial of the Plaintiffs’ Charter claims. Justice Paul Perell agreed with the Plaintiffs, and declared s. 38 inoperative to the extent that it interfered with the superior courts’ jurisdiction at trail. However, he declined to grant the immediate relief sought during the pre-trial discovery stages, based on the historical unavailability of discovery in claims against the Crown. The ruling can be read here, and extends a recent decision by Justice Fletcher Dawson in the context of a criminal trial, which is currently on appeal before the Supreme Court of Canada.