Federal Court Upholds Non-Disclosure of Classified Information Due to National Security Concerns

Date: 20260210 Dockets: DES-3-17 DES-1-18 Citation: 2026 FC 187 Ottawa, Ontario, February 10, 2026 PRESENT: The Honourable Mr. Justice Fothergill BETWEEN: [NAME] Applicant and THE ATTORNEY GENERAL OF CANADA Respondent

JUDGMENT AND

REASONS Overview [ 1 ] This ruling addresses disclosure of the Classified Judgment and Reasons completed by Justice Richard Mosley on June 6, 2024 [2024 Judgment]. The 2024 Judgment was issued to the Attorney General of Canada [[NAME]] at the time of its completion, but it has yet to be issued to [NAME] or published. On September 25, 2024, this Court authorized the transmission of a redacted version of the 2024 Judgment to [NAME], together with a separate redacted Order. [ 2 ] The [NAME] has appealed the 2024 Judgment and related Order to the Federal Court of Appeal. The appeal is under reserve. [ 3 ] The 2024 Judgment concerned disclosure of “a group of eight priority documents” for the purposes of [NAME]’s civil action before the Ontario Superior Court of Justice . These documents included Justice Mosley’s 2009 Classified Judgment and Reasons, a public version of which was issued and published as [NAME] (Re) , 2009 FC 1263. [ 4 ] The background to these proceedings was summarized by Justice Mosley in the 2024 Judgment as follows (at paras 2-3): The essence of [NAME]’s claim in the underlying action is that he was wrongfully detained and incarcerated for more than eight years, by agencies and officials of the government of Canada pursuant to security certificates, in which they wrongly named him as a terrorist associated with [NAME] and Al Qaeda, and as a threat to the security of Canada. He claims damages under section 24 of the Canadian Charter of Rights and Freedoms , Part 1 of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”) and for related torts allegedly committed by the defendants which gave rise to his lengthy incarceration. [NAME] has brought applications under paragraph 38.04 (2)(c) of the Canada Evidence Act R.S.C., 1985, c. C-5 (“CEA s 38”) in Court Docket DES-3-17, filed on April 13, 2017, and under paragraph 18.1 (4) (a) of the Canadian Security Intelligence Service Act , RSC, 1985, c. C-23 (“CSIS Act s 18.1”) in Court Docket DES-1-18, filed on April 9, 2018, for the disclosure of information subject to discovery in the underlying action and redacted under both statutes on national security and human source protection grounds. Where the claims overlap, the [NAME] has relied on both heads of privilege in respect of the same information. [ 5 ] During an ex parte , in camera case management conference convened on January 8, 2026, counsel for the [NAME] and two [NAME] [ [NAME] ] appointed to assist the Court made a joint recommendation respecting disclosure of the 2024 Judgment. The joint recommendation of the [NAME] and [NAME] takes into account the withdrawal of a number of redactions applied to the version of the 2024 Judgment that was provided to [NAME] in September 2024. The withdrawal of these redactions has been authorized by the [NAME] with no involvement of the Court. [ 6 ] The [NAME] and [NAME] agree that the remaining redactions should be maintained. In some instances, the [NAME] and [NAME] have proposed that summaries of the withheld information be approved by this Court for disclosure to [NAME] and the public. [ 7 ] Having carefully reviewed the remaining redactions applied by the [NAME] to the 2024 Judgment, I am satisfied that they protect information from which the identity of human sources could be inferred, contrary to s 18.1 of the CSIS Act, or information whose disclosure would be injurious to national security within the meaning of s 38 of the CEA. I see no reason to depart from the joint recommendation of the [NAME] and [NAME] to confirm the non-disclosure of this information, subject to the disclosure of the summaries proposed. [ 8 ] The 2024 Judgment will be issued to [NAME] and published accordingly. Analysis [ 9 ] Notwithstanding the joint recommendation of the [NAME] and the [NAME] , the Court must determine, in accordance with the applicable statutory provisions and governing jurisprudence, whether the prohibition of disclosure of the remaining redactions applied to the 2024 Judgment should be confirmed ( Canada (Attorney General) v [NAME] , 2020 FC 844 at para 71). [ 10 ] There is a tripartite test to determine whether the Court should maintain the confidentiality of information the disclosure of which is alleged to be injurious to international relations, national defence or national security ( Canada (Attorney General) v [NAME] , 2003 FCA 246 [ [NAME] ]), namely: (a) whether the information the [NAME] seeks to protect is relevant to the underlying proceeding; (b) if so, whether disclosure of the information would be injurious to international relations, national defence or national security; and (c) if so, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. A. Relevance [ 11 ] The relevance of the 2024 Judgment to the underlying civil action may be inferred from its disclosure to [NAME] in the course of litigation. It should be noted that the threshold requirement for disclosure in the context of a civil action and the threshold applied at the first step of the [NAME] test are both quite low ( Canada (Attorney General) v [NAME], 2023 FC 1100 [ [NAME] ] at para 81). B. Injury [ 12 ] C ourts should accord deference to decisions of the executive in matters of international relations, national defence or national security, as the executive is considered to have greater knowledge and expertise in such matters. Nevertheless, the [NAME] has the burden to prove that disclosure would be injurious to international relations, national defence or national security ( Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to [NAME]) , 2007 FC 766 at paras 46-48). The anticipated injury must be probable, not merely possible or speculative, and is assessed against the standard of reasonableness ( [NAME] at para 18). [ 13 ] The information the [NAME] seeks to protect falls within the categories identified by Justice Mosley in the 2024 Judgment at paragraph 79: ● Information that would identify, or tend to identify persons who agreed to cooperate with CSIS and provide information. ● Information that would disclose information received in confidence from foreign security and intelligence agencies by CSIS. ● Information that would identity, or tend to identify CSIS’s interest in individuals, groups or issues, including the existence or absence of past or present files or investigations. ● Information that would identify, or tend to identify, investigative techniques and methods of operation used by CSIS. ● Information that would identify, or tend to identify, CSIS employees, telecommunication systems or administrative methodologies. ● Information that would identify or tend to identify human sources as protected by s 18.1 of the CSIS Act. [ 14 ] Pursuant to the Federal Court of Appeal’s ruling in Canada (Attorney General) v [NAME] , 2022 FCA 206 [ [NAME] ], s 18.1 of the CSIS Act creates an absolute class privilege for CSIS human sources. A designated judge seized of an application under this provision can either (i) prohibit the disclosure of the privileged information, or (ii) order the disclosure of the information, if it is not subject to privilege. In the context of a criminal prosecution, the information remains subject to privilege but can be disclosed, with conditions, in order to establish the innocence of the accused ( [NAME] at para 27). Section 18.1 of the CSIS Act does not permit the issuance of summaries, including non-identifying ones, in the context of civil proceedings. [ 15 ] The information that would tend to reveal the identity of CSIS human sources is clear and unambiguous.

Accordingly, this Court has no choice but to prohibit the disclosure of the privileged information, and cannot authorize the disclosure of even a non-identifying summary of the information. [ 16 ] The [NAME]’s objection to the disclosure of the other redacted information is reasonable. This information falls within one or more of the categories identified by Justice Mosley in the 2024 Judgment at paragraph 79. C. Competing Public Interests [ 17 ] In carrying out the third part of the analysis under s 38.06 of the CEA, the Court must determine whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The party seeking disclosure bears the burden at this stage of establishing that the scale is tipped in its favour (2024 Judgment at para 147, citing [NAME] at para 21). [ 18 ] Justice Mosley’s articulation of the public importance of disclosing information for the purposes of [NAME]’s civil action bears repeating here (2024 Judgment at para 150): In this case, the Applicant alleges that his constitutional rights were breached and that he was the victim of a negligent investigation which resulted in his detention for nearly nine years. [ADDRESS] found in 2009 that the basis on which [NAME] was arrested and detained did not survive close scrutiny and the second certificate was quashed on the reasonableness standard. He is now seeking redress for the alleged breach of his rights and the defendant, if its servants were negligent, should be held to be accountable. While the underlying action does not directly concern his liberty or risk of removal to an oppressive regime, he will be contending that his Charter s 7 rights are at issue because of his lengthy detention during much of which he was in administrative segregation or solitary confinement. The engagement of a party’s Charter rights is a factor which “weighs heavily” in the balancing of public interests even where injury may result from disclosure: [NAME] v Canada (Attorney General) 2008 FC 807 at para 57. The government’s nondisclosure should not be used as a shield to protect it from scrutiny where wrongdoing is alleged: [NAME] , (1986) 2 S.C.R. 637 at para 65. [ 19 ] As Justice Mosley found in the 2024 Judgment, while the national security interest is undoubtedly important, so is the public interest in giving a litigant in civil proceedings a fair chance to make his case (at para 173). [ 20 ] The open court principle also weighs in favour of public disclosure. Court files and proceedings are presumptively open to the public. The general rule is that justice should be carried out in the open and not in secret ( Canada (Attorney General) v British Columbia Civil Liberties Association , 2024 FC 853 at para 47, citing Sherman Estate v [NAME] , 2021 SCC 25 at paras 30 and 37-39); see also Reference re Canada Evidence Act , 2022 FC 1392 at para 11). [ 21 ] [ADDRESS] may consider the fact that the information in issue can be summarized as one of the factors in balancing the competing public interests. Depending on the circumstances, it may be beneficial to examine what the parties are actually seeking to disclose when weighing the public interests. The fact that the injury may be limited by disclosing some of the redacted information in the form of a summary weighs in favour of the public interest in disclosure. The summaries, when they are possible, avoid revealing particularly sensitive or injurious information ( [NAME] at paras 68, 164). [ 22 ] If the Court is satisfied that the public interest favours disclosure, ss 38.06(2) of the CEA permits authorization of the disclosure of information or facts in the form and under the conditions that are most likely to limit any injury to the protected national interests (2024 Judgment at para 177, citing [NAME] at para 21; Canada (Attorney General) v [NAME] , 2011 FCA 199 at para 13). [ADDRESS] may authorize disclosure of all or part of the information or facts, a summary of the information, or a written admission of facts relating to the information. [ 23 ] I agree with the [NAME] and [NAME] that disclosure of some of the redacted information in the form of summaries outweighs in importance the public interest in maintaining its confidentiality. [ 24 ] The summaries proposed by the [NAME] and [NAME] explain the general nature of some of the information that has been redacted, e.g ., “concerns about [NAME]’s suitability as a source” ; “[d]iscussion of the arrangements associated with the termination of the [NAME]” ; “issues discussed in these reasons” . Other summaries are intended to prevent readers from misunderstanding the nature of the redactions. [ 25 ] A concern expressed by Justice Mosley in the 2024 Judgment was that “[o]ne effect of the redactions is to obscure that certain paragraphs apply to the same human source which is, in itself, misleading even if some of the text is unredacted” (at para 71). A potentially misleading redaction may elevate the public interest in disclosing information or a summary to prevent misapprehension of what the information signifies. [ 26 ] Justice Mosley noted that he had received copies of the documents that were the subject of his ruling with read-through colour highlights of the redacted information. He then explained the categories of information to which the different colours pertained (2024 Judgment at paras 78-79). The [NAME] asks to withhold the colour coding used to identify the different categories of protected information. [ 27 ] The [NAME]’s account of the injury that will result from disclosure of the full colour coding scheme is complicated and cannot be adequately summarized in public reasons. Essentially, the [NAME]’s concern arises from the oft-cited “mosaic effect” , whereby “apparently innocuous items of information can be assembled by an informed and hostile reader and used to cause injury” ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 536 at para 58, citing [NAME] v Canada (Citizenship and Immigration) , 2018 FC 114; see also Canada (Attorney General) v [NAME] , 2010 FC 1106 at paras 115–119). [ 28 ] The bald assertion that information could be of value to an informed reader is not enough. There must be a reasonably articulated evidentiary basis for the claim that makes sense to the judge ( Ibid ). I accept the assessment of the [NAME] and [NAME] that disclosure of the full colour coding scheme would be injurious to national security, but disclosure of a summary confirming that some of the categories are identified by the same or different colours ( i.e ., “Colour A” , “Colour B” ) would not be. [ 29 ] In sum, I am satisfied that disclosure of the summaries of information redacted in the 2024 Judgment jointly proposed by the [NAME] and the [NAME] will cause minimal, if any, injury to national security, and will provide meaningful disclosure to [NAME] and the public. Conclusion [ 30 ] The [NAME]’s request to prohibit the disclosure of information withheld from Justice Mosley’s 2024 Judgment will be granted, and the prohibition of disclosure will be confirmed pursuant to s 38.06(3) of the CEA. This is subject to the Court’s approval of the summaries of information proposed by the [NAME] and [NAME] pursuant to s 38.06(2) of the CEA. [ 31 ] The 2024 Judgment will be issued to [NAME] and published with the redactions provided by counsel for the [NAME] to this Court on January 22, 2026.

JUDGMENT THIS COURT’S

JUDGMENT is that : The [NAME]’s request to prohibit the disclosure of information withheld from Justice Mosley’s 2024 Judgment is granted and, subject to paragraph 2, the prohibition of disclosure is confirmed pursuant to s 38.06(3) of the CEA. The summaries of information proposed by the [NAME] and [NAME] are approved pursuant to s 38.06(2) of the CEA. The 2024 Judgment shall be issued to [NAME] and published with the redactions provided by counsel for the [NAME] to this Court on January 22, 2026. “Simon Fothergill” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: DES-3-17 DES-1-18 STYLE OF CAUSE: [NAME] v THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: ottawa, ontario DATE OF CASE MANAGEMENT CONFERENCE: January 8, 2026

JUDGMENT AND

REASONS: FOTHERGILL J. DATED: February 10, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent [NAME] SOLICITORS OF RECORD : [COMPANY] and Solicitors Toronto, [NAME], Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent [NAME], Ontario amicus curiae [COMPANY], Ontario amicus curiae