Canada (Attorney General) v. Almalki

Canada (Attorney General) v. Almalki

The Federal Court exercised its statutory s.38 jurisdiction, applied the Ribic three-step test, found most redacted material relevant, conducted in camera factual assessment and independent balancing: it confirmed non-disclosure for portions where probable injury to national security, national defence or international relations was established and ordered disclosure (full text or summaries) where the Attorney General failed to establish injury or where public interest in disclosure outweighed non-disclosure; inadvertent disclosure of document 171 was held not to constitute waiver and remained subject to s.38 analysis; delegated decision-making by officials is permissible though...

Citation
2010 FC 1106
Parties
Applicant/defendant (representative Crown): Attorney General of Canada; Respondent/plaintiff: Abdullah Almalki; Respondent/plaintiff (litigation Guardian): Khuzaimah Kalifah; Respondent/plaintiff: Abdulrahman Almalki (by his litigation guardian Khuzaimah Kalifah); Respondent/plaintiff: Sajeda Almalki (by her litigation guardian Khuzaimah Kalifah); Respondent/plaintiff: Muaz Almalki (by his litigation guardian Khuzaimah Kalifah); Respondent/plaintiff: Zakariyy A Almalki (by his litigation guardian Khuzaimah Kalifah); Respondent/plaintiff: Nadim Almalki; Respondent/plaintiff: Fatima Almalki; Respondent/plaintiff: Ahmad Abou-Elmaati; Respondent/plaintiff: Badr Abou-Elmaati; Respondent/plaintiff: Samira Al-Shallash; Respondent/plaintiff: Rasha Abou-Elmaati; Respondent/plaintiff: Muayyed Nureddin; Respondent/plaintiff: Abdul Jabbar Nureddin; Respondent/plaintiff: Fadila Siddiqu; Respondent/plaintiff: Mofak Nureddin; Respondent/plaintiff: Aydin Nureddin; Respondent/plaintiff: Yashar Nureddin; Respondent/plaintiff: Ahmed Nureddin; Respondent/plaintiff: Sarab Nureddin; Respondent/plaintiff: Byda Nureddin
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 November 2010
Procedural Posture
Application Under S.38 Canada Evidence Act Concerning Disclosure in Underlying Civil Actions Seeking Damages and Charter Remedies / Interlocutory Federal Court S.38 Application With in Camera and Public Phases; Pre Trial Disclosure Determination
Outcome
Mixed outcome: court confirmed prohibition of disclosure for specified portions that would injure national security/defence/international relations; ordered disclosure (full text or sanitized summaries) for portions where injury not shown or where public interest favored disclosure; document 171 treated as...
Legal Topics
Public Interest Privilege, Canada Evidence Act S.38 Procedure, Disclosure and Discovery, Third Party Information/consent, Mosaic Effect, In Camera/ex Parte Procedure, Charter Remedies
Source Language
English
Public Law National Security Evidence Law Civil Litigation Constitutional Law International Law Administrative Law Public Interest Privilege +6 more

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Parties

Attorney General of Canada

Applicant/defendant (representative Crown)

Abdullah Almalki

Respondent/plaintiff

Khuzaimah Kalifah

Respondent/plaintiff (litigation Guardian)

Abdulrahman Almalki (by his litigation guardian Khuzaimah Kalifah)

Respondent/plaintiff

Sajeda Almalki (by her litigation guardian Khuzaimah Kalifah)

Respondent/plaintiff

Muaz Almalki (by his litigation guardian Khuzaimah Kalifah)

Respondent/plaintiff

Zakariyy A Almalki (by his litigation guardian Khuzaimah Kalifah)

Respondent/plaintiff

Nadim Almalki

Respondent/plaintiff

Fatima Almalki

Respondent/plaintiff

Ahmad Abou-Elmaati

Respondent/plaintiff

Badr Abou-Elmaati

Respondent/plaintiff

Samira Al-Shallash

Respondent/plaintiff

Rasha Abou-Elmaati

Respondent/plaintiff

Muayyed Nureddin

Respondent/plaintiff

Abdul Jabbar Nureddin

Respondent/plaintiff

Fadila Siddiqu

Respondent/plaintiff

Mofak Nureddin

Respondent/plaintiff

Aydin Nureddin

Respondent/plaintiff

Yashar Nureddin

Respondent/plaintiff

Ahmed Nureddin

Respondent/plaintiff

Sarab Nureddin

Respondent/plaintiff

Byda Nureddin

Respondent/plaintiff

Procedural Posture

Application Under S.38 Canada Evidence Act Concerning Disclosure in Underlying Civil Actions Seeking Damages and Charter Remedies / Interlocutory Federal Court S.38 Application With in Camera and Public Phases; Pre Trial Disclosure Determination

Legal Issues

  1. 1 Whether the Federal Court should defer to the Ontario Superior Court on s.38 claims
  2. 2 Application of the three-step Ribic test (relevance; probable injury; public interest balancing)
  3. 3 Whether disclosure of specific redacted content would injure national security, national defence or international relations

Ratio Decidendi

The Federal Court exercised its statutory s.38 jurisdiction, applied the Ribic three-step test, found most redacted material relevant, conducted in camera factual assessment and independent balancing: it confirmed non-disclosure for portions where probable injury to national security, national defence or international relations was established and ordered disclosure (full text or summaries) where the Attorney General failed to establish injury or where public interest in disclosure outweighed non-disclosure; inadvertent disclosure of document 171 was held not to constitute waiver and remained subject to s.38 analysis; delegated decision-making by officials is permissible though...

Court Disposition

Mixed outcome: court confirmed prohibition of disclosure for specified portions that would injure national security/defence/international relations; ordered disclosure (full text or sanitized summaries) for portions where injury not shown or where public interest favored disclosure; document 171 treated as...

Orders

  • Confirm prohibition of disclosure for parts of documents found injurious under s.38.06(3)
  • Authorize disclosure (full text, part or summary) of specific redacted content where injury not established or public interest favoured disclosure under s.38.06(2) subject to conditions minimizing injury