Eroding Federal Court exclusive jurisdiction in national security matters under the Canada Evidence Act

NSL, Ch. 10, p.405 et seq.

The Ontario Superior Court has nibbled away at the exclusive jurisdiction of the Federal Court in adjudicating whether the government can resist disclosure of information in a legal proceedings by invoking national security concerns.  The decision -- issued April 8 but not yet reported -- comes in the civil law suits brought by Ahmad Abou-Elmaati, Abdullah Almalki, and Muayyed Nureddin seeking compensation for the actions of Canadian officials in relation to their detention and torture by foreign officials in Egypt and Syria.  These Canadian actions were the subject of the Iacobucci inquiry.

In an interlocutory ruling in the Elmaati proceeding, the Ontario Superior Court concluded that Canada Evidence Act, section 38 -- giving the Federal Court exclusive jurisdiction to adjudicate whether the government can refuse to disclose information, the disclosure of which is said to pose a risk to national security, defence or international relations -- was constitutional in the civil discovery stage of proceedings.  However, the Court also held that where the civil claim is intended to enforce a constitutional norm, the Canada Evidence Act does not stop a provincial superior court judge from reviewing at the trial itself the claim of Crown privilege on national security, defence or international relations grounds.