Executive Summary: Key Legal and Evidentiary Issues

• Scope of section 38 CEA: whether “potentially injurious information” and “sensitive information” can include national-security-related information created and held by a private individual (Dr. Saad Khalid Al Jabri), rather than information supplied by foreign states or already in the Government of Canada’s possession.

• Standard for injury and deference: how the Court should scrutinize and yet give “considerable weight” to the Attorney General’s and CSIS’s assessment that disclosure would probably injure national security or international relations, including Canada’s relationships with foreign intelligence partners.

• Application of the Ribic three-part test: relevance, proof of injury, and the public-interest balancing under section 38.06, applied document-by-document and sometimes line-by-line to Confidential Appendix A, the Proffer, and the Confidential Brief of Documents.

• Disagreement over relevance and materiality: conflict between Sakab’s position that only authorization for the “impugned payments” matters in the fraud action and Dr. Al Jabri’s position that broader contextual evidence about covert projects, “off book” payments, and political motivation is also relevant.

• Extent and form of disclosure: whether redactions should be confirmed, lifted, or replaced with non-injurious summaries and general descriptions, and when information may be given only to the trial judge on terms and conditions.

• Procedural and fairness issues: challenges to the use of section 38 for the privileged Proffer, timing and conduct of the application, and the distinct roles of the Attorney General, the Federal Court, and the security-cleared amici in protecting national-security information while permitting the underlying Ontario fraud action to proceed.

Factual background and the underlying proceeding

The underlying proceeding is an action in the Ontario Superior Court of Justice brought in January 2021 by Sakab Saudi Holding Company and several related corporate respondents against Saad Khalid Al Jabri. The action alleges fraud and seeks damages of over $5 billion from Dr. Al Jabri.
Dr. Al Jabri describes himself as a former Minister of State, Major General, and Senior Security Official and Advisor to the Minister of the Interior of the Kingdom of Saudi Arabia. He states that he was responsible, to a great extent, for the establishment, development and oversight of the Sakab companies, and that he continued to support the Saudi government and former Crown Prince Mohammed bin Nayef in an informal capacity after he was relieved of his duties in 2015. He relocated to Canada in 2017.
Sakab alleges that Dr. Al Jabri orchestrated a massive international fraud by misappropriating funds from Sakab and the other corporate respondents. According to Sakab, these funds were set up to pursue counterterrorism activities, but Dr. Al Jabri accumulated large, unauthorized sums that far exceeded his salary. Sakab relies on indicators such as transactions without supporting records, property purchases in several countries, offshore companies, the appointment of family members as shareholders, gifts to his children, and other activities, as well as a Deloitte forensic accounting report prepared in January 2021 that traces payments and attempts to connect them to authority, records and use of funds.
Sakab acknowledges that Dr. Al Jabri was engaged in high-risk, sensitive counterterrorism projects, but says he was not authorized to receive the impugned payments. It points to Saudi law that, it submits, does not permit bonuses, profit sharing or extraordinary payments of the type he claims, and alleges that most of the misappropriation occurred after his formal dismissal in 2015.
Dr. Al Jabri disputes any fraud. He maintains that the large funds and properties were compensation, profit shares or bonuses for his services, the risks he took and the success of his endeavours on behalf of Saudi Arabia. He relies, among other things, on a 2007 Royal Instruction and a “Compensation Letter” as the source of authorization for payments said to have been approved by Mohammed bin Nayef acting on the King’s delegated authority. He further alleges that the fraud action is politically motivated because of his alignment with Mohammed bin Nayef and his possession of information the current Saudi authorities do not want disclosed.

Documents that gave rise to the section 38 application

The documents at issue in the section 38 application were generated or provided by Dr. Al Jabri for use in the Ontario proceeding. They include:

• Confidential Appendix A (AGC 0001), an 11-page appendix to his 100-page Public Affidavit filed in June 2021, elaborating on projects he orchestrated or participated in with foreign partners, with parts of six pages redacted.

• Exhibit 1 to Confidential Appendix A (AGC 0004), consisting of three short documents such as telegrams and an acknowledgment of receipt related to tasks and expenditures.

• The Proffer (AGC 0005), a document described by Dr. Al Jabri’s counsel as intended to “cover the waterfront”, similar to a “will say”, setting out his role, relationships with Saudi leaders, involvement in projects, financial compensation, profit sharing and bonuses. It was provided to allow the Attorney General of Canada to identify potentially injurious information. Dr. Al Jabri asserts litigation privilege over the Proffer.

• A Confidential Brief of Documents (AGC 0006–AGC 0023), which includes a cover page and index along with payment instructions, wire transfer instructions, reports seeking approval for expenditures and other short messages.

Notices were given to the Attorney General under section 38.01 of the Canada Evidence Act in respect of these materials. A first notice in June 2021 related to Confidential Appendix A and its Exhibit. A second notice, originating from a Canadian Security Intelligence Service (CSIS) official in May 2022, concerned potentially injurious information in Dr. Al Jabri’s notice of motion and supporting affidavit filed in the Ontario court in connection with a renewed stay motion. A third notice in November 2022 covered the same information as the second notice but in the different format of the Proffer.

Nature of the section 38 application and appointment of amici

On June 2, 2022, the Attorney General of Canada filed an application under section 38.04(1) of the Canada Evidence Act seeking an order confirming the statutory prohibition on disclosure of potentially injurious information contained in the identified documents. The Attorney General took the position that disclosure of the redacted information in the Ontario fraud action would be injurious to Canada’s national security. A further amended notice of application was later filed to add the Proffer expressly.
On August 15, 2022, the Federal Court appointed a security-cleared lawyer, Mr. Colin Baxter, as amicus curiae to assist the Court in performing its statutory obligations. The order provided that he would have access to the confidential information, could communicate with the respondents until he saw that information, and would then be bound not to communicate further with them while maintaining solicitor-client or litigation privilege. He was authorized to participate in public hearings and required to participate in in camera, ex parte hearings, including by cross-examining witnesses and making submissions. On March 12, 2025, Ms. Siobhan Morris was appointed to assist him on the same terms.

Procedural history and interlocutory motions

The Court managed the application through numerous case-management conferences, public hearings and ex parte hearings. Among other steps, it heard two motions brought by Sakab:

• In its first motion (Sakab #1), filed October 19, 2022, Sakab challenged whether the Proffer—described at different points as a “solicitor’s brief” and later as the “Proffer”—could be the subject of a section 38 application, and whether Sakab should receive a redacted version to argue relevance despite Dr. Al Jabri’s claim of litigation privilege and the fact that the Proffer had not been filed in the Ontario proceeding. The motion sought, in the alternative, dismissal or a stay of the section 38 application as it related to the Proffer. The Federal Court dismissed this motion on January 10, 2023, holding that the Proffer was covered by the section 38 notices and that the Court was seized of the application regarding that information.

• In its second motion (Sakab #2), filed January 4, 2023, Sakab sought a declaration that the Proffer was not protected by privilege or that any privilege had been waived, together with an order directing the Attorney General or Dr. Al Jabri to produce a redacted copy to Sakab. The Court heard the motion on August 17, 2023 and dismissed it on October 6, 2023, finding that it could not rule on litigation privilege in a document prepared for the Ontario proceeding and that production there was governed by the Ontario Rules of Civil Procedure.

Sakab appealed both rulings. On May 9, 2024, the Federal Court of Appeal dismissed the appeal in Sakab Saudi Holding Company v Canada (Attorney General), 2024 FCA 92. The Court of Appeal held that the Federal Court did not err in concluding that the Proffer could be the subject of a section 38 application; it did not address whether the Federal Court erred in declining to determine privilege or order production, in light of the Federal Court’s approach to fairness and abuse-of-process concerns.
During this period, examinations for discovery in the Ontario fraud action proceeded. In February 2024, Dr. Al Jabri refused to answer several questions on the basis that he was prohibited from providing the information pending the outcome of the section 38 application.

General section 38 principles and the Ribic test

The decision reviews the structure of sections 38 to 38.15 of the Canada Evidence Act. Those provisions establish that where a participant in a proceeding believes that information to be disclosed relates to international relations, national defence or national security, and is therefore “sensitive” or “potentially injurious” as defined, that person must give notice to the Attorney General. If the Attorney General does not authorize disclosure or reach an agreement permitting conditional disclosure, the Attorney General may apply to the Federal Court for an order confirming a prohibition on disclosure.
The Court applied the three-part test from Canada (Attorney General) v Ribic, as reiterated in subsequent cases. First, the party seeking disclosure must show that the redacted information is relevant to the underlying proceeding; this threshold is low, and all parties eventually accepted that it was met. Second, the Attorney General must establish that disclosure would be injurious to international relations, national defence or national security, on a reasonableness standard and with evidence showing probable, not merely possible, injury. Third, if both relevance and injury are established, the party seeking disclosure must show that the public interest in disclosure outweighs the public interest in non-disclosure. In this balancing exercise, the Court considers factors such as the seriousness of the injury, the importance or probative value of the information, whether it is already public, and the open-court principle. Section 38.06(2) expressly allows the Court to authorize disclosure of all or part of the information, a summary, or admissions of fact, subject to conditions designed to limit injury.

Positions of the parties on relevance and injury

The Attorney General argued that disclosure of most of the information in Confidential Appendix A and the Proffer would be significantly injurious to national security and would also harm relationships with foreign intelligence agencies on which Canada depends as a “net importer” of intelligence. The Attorney General contended that, in balancing interests, much of the information is not relevant, probative or material to whether Dr. Al Jabri was authorized to receive the impugned payments, so the prohibition on disclosure of injurious but non-essential information should be confirmed.
Dr. Al Jabri took the position that the redacted information is highly relevant to his defence and that without it he cannot properly defend himself. In his public and ex parte submissions, he linked the redacted content to issues raised in the pleadings, including his responsibilities, the risks he took, the financing of projects, the common practice of obfuscating payments, his relationships with foreign partners, his continuing role after 2015, and his assertion that others received similar funds without proper accounting.
Sakab, in both public and ex parte submissions, maintained that it does not dispute Dr. Al Jabri’s role in many successful projects and that details of those operations are not relevant to the issues framed by the pleadings. It submitted that the only relevant issue is whether he was authorized to receive the bonuses, profit shares and other extraordinary payments instead of just his salary, and emphasized its view of Saudi law on this point. Sakab argued that nothing prevents him from showing authorization if he has such evidence, but that explaining project details is unnecessary. At the same time, Sakab asked the Court to provide summaries of all redacted information, even where the information was injurious and not relevant.
The amicus advanced two main sets of submissions. First, as a preliminary matter, he argued that sections 38.01–38.04 should not be interpreted to apply to information of the type at issue—information created and held by a private individual, not originating from Canada or foreign governments—which, he said, raised concerns about freedom of expression and foreign influence over Canadian decisions about national security. Second, in the alternative, he questioned whether the Attorney General had proven injury to national security, argued that sophisticated foreign partners would understand Canada’s legal system and not curtail information sharing, and contended that, if injury were found, the public interest in disclosure of relevant material would outweigh it in many instances, particularly where similar information was already public.

Court’s ruling on the preliminary statutory-interpretation issue

Justice Kane rejected the amicus’ contention that section 38 does not apply to the documents at issue. She held that the statutory definitions of “potentially injurious information” and “sensitive information” are broad and that only “sensitive information” is expressly confined to information in the possession of the Government of Canada. “Potentially injurious information” is defined as information “of a type” that, if disclosed to the public, could injure international relations, national defence or national security, without a limitation based on the origin or current possessor of the information.
The Court found that interpreting “international relations”, “national defence” and “national security” as including Canada’s dependence on and cooperation with foreign states is consistent with the text, context and purpose of the Canada Evidence Act. It noted that foreign partners do not control the process: a section 38 application requires a proceeding, potential disclosure of information in that proceeding, and a decision by the Attorney General to seek Court intervention. The Court also considered the legislative history and prior jurisprudence and concluded that Parliament did not intend to restrict section 38 to information provided by foreign allies or already covered by other secrecy obligations.
The Court declined to rely on Charter values to narrow the scope of section 38, observing that the relevant provisions are not ambiguous in the sense required for that approach, and that any impact on expression must be assessed within the statutory balancing process itself. It also concluded that section 38.13, which allows the Attorney General personally to issue a certificate in specific circumstances after a disclosure order, was not a preferable alternative and, in any event, could not be invoked until the Court had decided the section 38 application.

Evidence of injury to national security and relationships with partners

The Attorney General called a CSIS affiant whose oral and documentary evidence described his background and experience related to counterterrorism and the Middle East, the documents under review, and the basis for his belief that disclosure would cause injury. He identified two main types of harm. First, he testified that some redacted information would reveal matters directly related to Canada’s national security. Second, he stated that disclosure of information relating to the national-security interests of foreign governments and intelligence agencies would injure Canada’s national security by damaging relationships with those partners and leading to reduced sharing of intelligence, on which Canada relies as a net importer.
The affiant acknowledged that the information at issue had been provided by Dr. Al Jabri and not by foreign agencies, and that the “third-party rule” did not technically apply, but he drew an analogy to that rule in describing the consequences for trust and future information sharing. He also accepted, under cross-examination by the amicus, that some redacted information resembled material already in public documents or media reports, and that there were inconsistencies in redactions. Following consultations with foreign partners, the Attorney General later advised that some redactions had been lifted and that many of the Confidential Brief documents and Exhibit 1 to Confidential Appendix A could be disclosed to the parties and trial judge, though not publicly.
Justice Kane concluded that, while the Attorney General’s evidence had weaknesses and did not provide “absolute proof”, it met the required standard of probable injury assessed on a reasonableness basis. She emphasized that the Attorney General’s assessment of injury is owed deference but must still rest on a factual foundation, and that presuming there can be no injury from information already in the public domain is inconsistent with existing case law, which recognizes circumstances where public information can still be injurious in context.

Balancing and treatment of the different document groups

The Court then applied the third step of the Ribic test, weighing the public interest in disclosure against the public interest in non-disclosure for each group of documents and, within some documents, for specific paragraphs or lines.
For Exhibit 1 to Confidential Appendix A (AGC 0004), the Attorney General ultimately advised that the minimally redacted information could be disclosed and used by both respondents, though not publicly; the Attorney General may seek a confidentiality or sealing order in the Ontario court. The Court accepted that, since the Attorney General no longer asserted injury, the information need not be prohibited from disclosure to the parties.
For the Confidential Brief of Documents (AGC 0006–AGC 0023), the Attorney General likewise confirmed that, with the exception of document AGC 0018 and item 11 in the index (AGC 0007), the documents could be disclosed unredacted and used by both respondents, subject again to potential protective orders in the Ontario court. The remaining redactions in AGC 0018 and item 11 were described as personal information that was injurious and not relevant to Dr. Al Jabri’s defence; the Court found that the public interest in non-disclosure of that information prevailed and that no summaries were warranted.
The most detailed analysis concerned Confidential Appendix A (AGC 0001) and the Proffer (AGC 0005). The Court accepted that the pleadings and prior rulings in the Ontario fraud action indicated that issues extend beyond mere authority to pay or receive the impugned payments, and include broad allegations of fraud, the source and attribution of funds, Dr. Al Jabri’s relationship with Mohammed bin Nayef before and after 2015, his political-persecution defence, and the alleged widespread use of “off book” payments and flow-through arrangements. Accordingly, the Court took a broader view of relevance than that advanced by Sakab and the amicus at the balancing stage.
With respect to Confidential Appendix A, the Court found that some redacted information—such as material extensively redacted in one paragraph that directly related to Canada’s national security—was both highly injurious and of no relevance to authorization of payments or other issues raised by the fraud pleadings. For those passages, the public interest in non-disclosure prevailed and no non-injurious summaries were provided. In other paragraphs where the redacted information was injurious but relevant to Dr. Al Jabri’s roles, relationships with foreign partners, compensation and the way funds flowed through accounts, the Court concluded that the public interest in disclosure outweighed the interest in non-disclosure, provided the injury could be mitigated through non-injurious summaries. The Court directed that such summaries replace certain redacted text. It also noted that some limited redactions—such as to a few words—were injurious and not relevant, and therefore should remain without summaries.
Regarding the Proffer, the Court found that much of the redacted information was injurious. Where that information was also relevant and the public interest favoured disclosure, the Court identified non-injurious summaries that could be used instead of the original text. In some parts of the Proffer, however, the information was so sensitive that the public interest in non-disclosure prevailed and no summaries were feasible. The detailed determinations for each redaction in both Confidential Appendix A and the Proffer are contained in Classified Annex A, which forms part of the Court’s order but is accessible only to the Attorney General and the amici unless otherwise authorized.

Privilege, guidance to the Ontario trial judge, and next steps

Justice Kane emphasized that the Court’s determinations under section 38 do not resolve whether and how the Proffer can ultimately be used in the Ontario proceeding, because litigation privilege is governed by Ontario law and remains asserted by Dr. Al Jabri. The section 38 ruling only authorizes or confirms prohibitions on disclosure; it does not compel disclosure.
The Court declined the Attorney General’s suggestion that it should redraft the Proffer itself to guide what Dr. Al Jabri can say, and also declined the amicus’ and Sakab’s request to prepare a detailed confidential memorandum for the trial judge explaining every redaction and summary. Instead, the Court proposed that the Ontario trial judge may receive, on strict terms and conditions, an unredacted copy (to the extent possible) of the Order and Reasons and a version of the documents showing redactions and summaries. Because the Proffer is litigation-privileged, it can only be provided to the trial judge if and when Dr. Al Jabri agrees or its status is resolved in the Ontario court.
The Court ordered that the Attorney General provide replacement pages for the affected documents in accordance with its determinations, that general descriptions of Dr. Al Jabri’s role in several projects be drafted jointly by the Attorney General and the amicus for the Court’s approval, and that proposed redactions to the published Order and Reasons be submitted within specified timelines. It also directed that information ordered disclosed would be provided to Dr. Al Jabri after the expiry of the applicable appeal periods under the Canada Evidence Act.

Overall outcome and successful party

In its formal order, the Federal Court states that the “Application is granted in part.” It confirms that some redactions must remain, authorizes the lifting of others, and approves non-injurious summaries for certain injurious yet relevant passages, as detailed in Confidential Annex A. Exhibit 1 and most of the Confidential Brief may be disclosed to the parties and the Ontario trial judge, subject to potential non-public treatment in that court; specific personal information remains protected. In this section 38 proceeding, the Attorney General of Canada is therefore successful to the extent that the Court accepts the application in part and confirms prohibitions on disclosure of certain information, while requiring partial disclosure and summaries in other areas. The decision does not award any monetary damages or specify any quantified costs in favour of any party, and the total amount ordered in favour of the successful party cannot be determined from this judgment.