Executive Summary: Key Legal and Evidentiary Issues

• The Federal Court of Appeal held that a designated judge of the Federal Court may, under subsection 38.06(2) of the Canada Evidence Act, authorize disclosure of the unredacted classified certified tribunal record (CTR) to the Federal Court judge hearing the judicial review, while withholding it from the BCCLA.

• The Court relied on the text and purpose of section 38 of the Canada Evidence Act, and on authorities including R. v. Ahmad, Canada (Attorney General) v. Telbani, Sakab Saudi Holding Company v. Canada (Attorney General), Brar v. Canada (Minister of Public Safety and Emergency Preparedness), and Ruby v. Canada (Solicitor General), to confirm the breadth and flexibility of the subsection 38.06(2) discretion.

• The Court accepted the Federal Court’s approach that SIRC’s report is of “the utmost importance” to the judicial review and that summaries and limited lifting of redactions, combined with continued protection of other sensitive information, strike a balance between national security and the BCCLA’s ability to challenge the SIRC decision.

• The BCCLA’s reliance on U.K. jurisprudence (Al Rawi and Bank Mellat) for the proposition that an express statutory basis is required for any “closed material” procedure was rejected in light of Canadian authorities recognizing limited exceptions to full disclosure where national security is engaged.

• The Court emphasized that it is for the applications judge to determine, in the judicial review, whether and how to consider the unredacted CTR in light of procedural fairness, including the potential use of an amicus curiae and existing summaries and redacted materials.

• The appeal was dismissed, and because the Attorney General of Canada did not seek costs, no costs were awarded in the Federal Court of Appeal judgment; no monetary amounts are specified or ordered in favour of any party.

Factual background and complaint

The British Columbia Civil Liberties Association (BCCLA) filed a complaint in 2014 to the Security Intelligence Review Committee (SIRC) under section 41 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, which has since been repealed.
The complaint alleged that the Canadian Security Intelligence Service (CSIS) had investigated individuals and groups (the “named groups”) engaged in expressive activities against the Northern Gateway Pipeline Project. It further alleged that the information obtained was shared with the National Energy Board and non-governmental actors in the petroleum industry.
The BCCLA argued before SIRC that investigating and collecting information about the named groups fell outside CSIS’s authority under the CSIS Act. It claimed that targeting groups lawfully engaging with issues of public interest and importance produced a “chilling effect” and unjustifiably infringed freedom of thought, belief, opinion, expression, and association under section 2 of the Canadian Charter of Rights and Freedoms.

SIRC’s investigation and report

SIRC investigated the complaint, with the Honourable Yves Fortier, P.C., C.C., O.Q., Q.C. leading the investigation. The committee held in camera hearings in which the BCCLA participated, and ex parte hearings from which the BCCLA was excluded. In the ex parte hearings, SIRC heard testimony from CSIS witnesses and received several volumes of Books of Documents.
On May 30, 2017, SIRC issued a Top Secret report dismissing the complaint, concluding that the BCCLA’s allegations were not supported by the evidence. The ex parte evidence showed that CSIS had collected information on the named groups in an ancillary manner in the course of other lawful investigations, for which appropriate targeting authorizations were in place. SIRC found that this collection was within CSIS’s mandate and that CSIS had not investigated lawful advocacy, protest, or dissent.
The report also recorded that CSIS had participated in meetings with Natural Resources Canada and petroleum industry representatives, but found that these meetings concerned national security matters and that CSIS had not shared information about the named groups. SIRC concluded there was no direct link between CSIS’s conduct and the “chilling effect” alleged by the BCCLA and that this “chilling effect” could not ground a Charter violation.
The BCCLA initially received a redacted version of the report. During the litigation, the Attorney General of Canada provided a less-redacted version, which still contained many redactions said to relate to national security.

Judicial review application and the certified tribunal record

The BCCLA brought an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. It argued that SIRC had erred in interpreting sections 12 and 19 of the CSIS Act, particularly regarding the “chilling effects” of CSIS activities and the threshold for Charter engagement, and that the non-disclosure of evidence on which SIRC relied breached procedural fairness.
The BCCLA requested that SIRC disclose all materials in its possession relevant to the judicial review. The resulting certified tribunal record (CTR) included the report, the classified Books of Documents, transcripts of SIRC proceedings, and related procedural documents. SIRC objected to disclosing portions of the CTR on the ground that they contained unredacted classified information and gave notice to the Attorney General under section 38.01 of the Canada Evidence Act (CEA) regarding possible disclosure of sensitive or potentially injurious information.
The Attorney General reviewed the CTR, identified information whose disclosure it opposed on national security grounds, and brought an application under section 38.04 CEA for an order prohibiting disclosure. The BCCLA, as respondent in the section 38.04 application, received an unclassified version of the CTR in which the disputed information was redacted.

Section 38 proceedings and the Federal Court’s decision

The Federal Court heard the section 38.04 application in public hearings and in camera and ex parte sessions. It appointed an amicus curiae, Ian Carter, to assist the court. The Attorney General presented classified evidence in support of non-disclosure, and the amicus made written and oral submissions on disclosure.
Applying the three-part test from Canada (Attorney General) v. Ribic, the Federal Court examined: (1) whether the information was relevant to issues in the judicial review; (2) whether its disclosure would be injurious to international relations, national defence, or national security; and (3) whether, if injurious, the public interest in disclosure outweighed the public interest in non-disclosure.
The court held that SIRC’s report was “of the utmost importance” to the BCCLA’s judicial review, which challenged the reasonableness of SIRC’s conclusions about CSIS’s mandate, the existence of a “chilling effect” and Charter engagement, and CSIS’s authority to share information. It found that redactions in the report would hamper the applications judge’s ability to conduct a “reasons first” review and the BCCLA’s ability to argue that SIRC’s decision failed to show adequate justification, intelligibility, and transparency. The court also observed that the importance of the redacted information depended on its nature and materiality to the judicial review issues.
The Federal Court concluded that disclosing information that revealed CSIS’s investigative interests or lack of interest in specific subjects, or the nature, scope or intensity of any investigations, engaged the “never confirm or deny” or “investigative” principle and would be injurious to national security.
With assistance from the amicus, documents were categorized as “non-contentious” and “contentious.” The court confirmed non-disclosure of the protected information in documents the amicus considered non-contentious.
All redacted information in the report was treated as contentious. The Attorney General agreed to lift certain redactions and proposed summaries for each redacted paragraph, indicating that information could be captured in non-injurious summaries or, where injury remained, that the public interest nevertheless favoured disclosure of the summary. The Federal Court accepted the Attorney General’s redactions in the report except for six paragraphs, where it lifted redactions. It held that the contents of those paragraphs, along with other disclosed information in the report, were critical to the BCCLA’s ability to argue that SIRC misunderstood CSIS’s authority to collect and retain information, and it found that the public interest in disclosure outweighed the public interest in non-disclosure for those paragraphs.
For the remaining contentious information outside the report, the Federal Court found that further lifting of redactions was not justified. It approved one overarching summary and six specific summaries linked to particular documents.
The court ordered the Attorney General to prepare a new copy of the report, redacted in line with its reasons and incorporating the approved summaries. It authorized disclosure of that redacted and summarized report to the BCCLA, on condition that it be kept confidential, without prejudice to the BCCLA’s right to seek public access to it.

Order to disclose the unredacted CTR to the judicial review judge

The Attorney General also sought an order under subsection 38.06(2) CEA authorizing disclosure of the unredacted classified CTR to the Federal Court judge hearing the judicial review (the applications judge), so that it would form part of the record in that application. The BCCLA opposed this request.
Relying on Canada (Attorney General) v. Telbani, the Federal Court held that subsection 38.06(2) empowered it to authorize disclosure of the unredacted CTR to the applications judge. It stated that the only question before it was whether to disclose the classified CTR to the applications judge, giving that judge the option to consider it. The Federal Court emphasized that questions about whether it was necessary or appropriate for the applications judge to rely on the classified CTR, or to conduct parts of the judicial review in camera and ex parte with potential assistance from an amicus curiae, were matters for the applications judge to determine in the course of the judicial review proceeding.

Issue before the Federal Court of Appeal

On appeal, the sole issue was whether the Federal Court erred in concluding that it had authority under subsection 38.06(2) of the Canada Evidence Act to authorize disclosure of the unredacted classified CTR to the applications judge while withholding it from the BCCLA.
The Court of Appeal applied the usual appellate standards: questions of law are reviewed for correctness, and questions of fact or mixed fact and law are reviewed for palpable and overriding error. It characterized the scope of the Federal Court’s power to disclose the classified CTR to the applications judge as a pure question of law, reviewable for correctness.

Positions of the parties on appeal

The BCCLA argued that the Federal Court lacked authority to disclose the classified CTR to the applications judge while excluding the applicant. It submitted that allowing the applications judge to receive and potentially consider the classified CTR in in camera and ex parte hearings violated a fundamental right in Canada’s adversarial system: that parties be informed of the case against them. It relied on U.K. authorities, including Al Rawi and Bank Mellat, to argue that departures from this principle can only be made by Parliament through explicit statutory language, which it said was not present in subsection 38.06(2).
The BCCLA further argued that Telbani was wrongly decided because it did not give sufficient weight to the adversarial system and natural justice. It pointed out that where Parliament has intended to authorize ex parte hearings and reliance on undisclosed information, it has done so expressly and with detailed procedures, citing as an example the Countering Foreign Interference Act, S.C. 2024, c. 16, which provides for “secure administrative review proceedings,” including express provision for special counsel and for decisions based on withheld information even when no summary has been provided to the non-governmental party.
The Attorney General argued that the broad wording of subsection 38.06(2) CEA grants designated Federal Court judges discretion to authorize disclosure of protected information where the public interest in disclosure outweighs the public interest in non-disclosure, including disclosure to the applications judge to provide a complete record of what was before the administrative decision-maker. It relied on the Supreme Court’s decision in R. v. Ahmad and on Telbani to support a broad and flexible understanding of subsection 38.06(2). It also submitted that U.K. case law was neither binding nor persuasive in the face of existing Canadian authority.
The Attorney General contended that procedural fairness is enhanced when an applications judge has the complete record considered by the administrative decision-maker. It argued that full disclosure to a party is not invariably required by procedural fairness and cited Canada (Citizenship and Immigration) v. Harkat as recognizing the legitimate need to protect information critical to national security. It further emphasized that the Federal Court had not compelled the applications judge to use the classified CTR and that the BCCLA could raise procedural fairness concerns in the judicial review proceeding. In addition, the Attorney General noted that the BCCLA had participated in the section 38.04 proceedings and received summaries of withheld evidence, and that the applications judge could, if necessary, broaden the amicus curiae’s role.
Finally, the Attorney General argued that the new provisions in the CEA establishing “secure administrative review proceedings” codify previously existing powers of judges under subsection 38.06(2) to authorize disclosure of protected information to a judge in an underlying proceeding.

Court’s analysis of subsection 38.06(2) and related authorities

The Federal Court of Appeal examined subsections 38.06(1) and (2) of the Canada Evidence Act and concluded that subsection 38.06(2) confers a broad discretion on designated Federal Court judges to determine the form and conditions of disclosure when they find that the public interest in disclosure outweighs the public interest in non-disclosure.
Relying on R. v. Ahmad, the Court noted that section 38 is intended to balance the public interest in secrecy against the public interest in the effective administration of a fair system of justice, and that this purpose requires that trial judges have sufficient information to discharge their duties under the CEA and the Charter. It cited passages from Ahmad emphasizing that section 38.06(2) allows the Federal Court to authorize partial or conditional disclosure, including disclosure to the trial judge alone, in ways that minimize injury to national security.
The Court agreed with the Federal Court in Telbani that Ahmad’s interpretation of section 38 is not limited to criminal proceedings. It observed that the balancing purpose of the CEA, including the discretion in subsection 38.06(2), applies in civil proceedings, such as applications for judicial review of administrative decisions. It stated that, absent clear and unambiguous statutory language to the contrary, and consistent with that purpose, Parliament should be presumed to have intended to protect procedural fairness and natural justice in civil as well as criminal contexts.
The Court referred to its own decision in Sakab Saudi Holding Company v. Canada (Attorney General), where it applied Ahmad’s reasoning to civil proceedings by upholding an early section 38.04 review of potentially sensitive information in a civil defence lawyer’s brief. It also cited its judgment in Brar v. Canada (Minister of Public Safety and Emergency Preparedness), which held that it is not constitutionally mandatory for Parliament to require the use of an amicus curiae in every case under the Secure Travel Act and that judges may fashion appropriate procedures, including appointing an amicus curiae where necessary.
The Court further discussed Ruby v. Canada (Solicitor General), in which the Supreme Court upheld ex parte and in camera submissions under the Privacy Act where national security and foreign confidences were at issue, noting that the scheme included safeguards such as a duty of utmost good faith and full, fair, and candid disclosure to the court, as well as dual-level scrutiny by the Privacy Commissioner and the Federal Court.
The Federal Court of Appeal then addressed the BCCLA’s reliance on Al Rawi and Bank Mellat. It summarized the U.K. Supreme Court’s position that “closed material” procedures—where one party is denied access to evidence and reasons—offend natural justice in the absence of statutory authorization. However, the Court held that, in the Canadian context, limited exceptions to full disclosure in national-security-related proceedings have been recognized where adequate procedural safeguards exist, and that subsection 38.06(2), read in light of Canadian authorities, provides a statutory basis for such exceptions.
The Court also noted evidence before a parliamentary committee in which a Department of Justice witness described the then-existing section 38 regime as generally protecting sensitive information from disclosure but “generally” not allowing courts to consider that information when deciding the matter, except in some stand-alone regimes. It observed that the new “secure administrative review” provisions establish a universal process for using information in administrative proceedings. The Court did not accept the BCCLA’s argument that these amendments implied that subsection 38.06(2) previously lacked the scope to authorize disclosure of protected information to a judge in an underlying proceeding.

Procedural fairness and the role of the applications judge

The Court emphasized that it is for the applications judge to decide whether proceeding by considering the unredacted classified CTR without disclosing it to the BCCLA would meet the requirements of procedural fairness. In doing so, the applications judge must consider the statutory context (here, the CSIS Act), the interests at stake, including the state’s interest in national security and the applicant’s interests, and the availability of alternative safeguards.
These safeguards include the summaries of redacted information already approved by the Federal Court, the revised report with some redactions lifted, and the possibility of appointing or expanding the role of an amicus curiae to act in a security-cleared, adversarial capacity in any in camera and ex parte portion of the judicial review.
The Court noted, consistently with its statement in Brar, that if the applications judge fails to devise and implement the necessary protective procedures to safeguard the BCCLA’s right to procedural fairness, the Federal Court of Appeal can intervene and quash the decision.

Outcome of the appeal

The Federal Court of Appeal concluded that the Federal Court had authority under subsection 38.06(2) of the Canada Evidence Act to authorize disclosure of the unredacted classified CTR to the applications judge while withholding it from the BCCLA. It found this conclusion consistent with the text and purpose of section 38 and with the Supreme Court’s guidance in Ahmad, as applied in Telbani, Sakab, Brar, and Ruby.
The Court therefore dismissed the appeal. Because the Attorney General of Canada did not seek costs, no costs were awarded in the Federal Court of Appeal. The judgment does not specify or order any monetary sum in favour of any party.