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 -- 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 (Abou-Elmaati v. Canada (Attorney General), 2010 ONSC 2055), 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.