Human Source Privilege and Civil Proceedings: Federal Court of Appeal Clarifies

Date: 20260529 Docket: A-205-24 Citation: 2026 FCA 124 CORAM: [NAME] J.A. [NAME] J.A. [NAME] J.A. BETWEEN: [NAME] OF CANADA Appellant and [NAME] Respondent Heard at Ottawa, Ontario , on June 3, 2025 . Judgment delivered at Ottawa, Ontario , on May 29, 2026 .

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME] J.A. [NAME] J.A. Date: 20260529 Docket: A-205-24 Citation: 2026 FCA 124 CORAM: [NAME] J.A. [NAME] J.A. [NAME] J.A. BETWEEN: [NAME] OF CANADA Appellant and [NAME] Respondent PUBLIC

REASONS FOR

JUDGMENT This is a public version of classified reasons. The two are identical, there being no classified information disclosed in the classified reasons. [NAME] J.A.

I. Introduction [ 1 ] In Canada ([NAME]) v. [NAME] , 2022 FCA 206 ( [NAME] 2022 FCA ), this Court held that section 18.1 of the [NAME] Act , R.S.C. 1985, c. C-23 ([NAME] Act) does not authorize a [NAME] judge of the Federal Court to issue summaries of information protected by human source privilege, including non-identifying ones, in the context of civil proceedings. At issue in this appeal is whether the [NAME] judge could rely on the Federal Court’s plenary powers to make certain findings and disclosure orders in relation to information protected by section 18.1 of the [NAME] Act in order to remedy an alleged abuse of process. [ 2 ] The [NAME] of Canada submits that section 18.1 of the [NAME] Act is a complete statutory code and, subject to two exceptions that do not arise in this matter, it does not allow a [NAME] judge to make findings of fact and law based on information protected by section 18.1, or to make disclosure orders in respect of those findings. The [NAME] , on the other hand, contend that section 18.1 does not prevent the Federal Court from exercising its plenary powers to redress a miscarriage of justice resulting from an abuse of process. [ 3 ] For the reasons set out below, I would allow the appeal.

II. Background [ 4 ] It is not necessary for the purposes of these reasons to provide a full account of the facts and procedural history that have led to this appeal. Much of it is set out in [NAME] (Re) , 2009 FC 1263 ( [NAME] 2009 FC ) and [NAME] 2022 FCA . [ 5 ] Suffice it to say that, in 2001, [NAME] was named in a security certificate as a person inadmissible to Canada on national security grounds. The security certificate was found by the Federal Court to be reasonable. Following the decision of the Supreme Court of Canada in [NAME] v. Canada (Citizenship and Immigration) , 2007 SCC 9 striking down the statutory provisions for judicial confirmation of security certificates, a second security certificate was issued in 2008. It was determined to be unreasonable and was quashed on December 14, 2009 by the [NAME] judge who rendered the decisions currently under appeal. [ 6 ] In his 2009 reasons, the [NAME] judge expressed his concern about the reliability of some of the information provided by several human sources employed by the [NAME] (Service) and the Service’s reliance on that information ( [NAME] 2009 FC at paras. 154-164). In particular, the [NAME] judge found that the Service had breached its duty of candour to the Court by withholding and misrepresenting pertinent information about the sources in question ( [NAME] 2009 FC at para. 503). He then proceeded to quash the certificate on the basis that the classified information and other evidence tendered in support of the certificate did not establish reasonable grounds to believe [NAME] was a danger to the security of Canada ( [NAME] 2009 FC at para. 504). [ 7 ] In 2010, [NAME] commenced a civil action against the government of Canada, as represented by the [NAME] of Canada, before the Ontario Superior Court of Justice (ONSC) in file no. CIV-10-402443 (the underlying civil action). In that action, [NAME] alleges that he was wrongfully detained and incarcerated for more than eight years by agencies and officials of the government of Canada as a result of the two security certificates that wrongly identified him as a threat to the security of Canada. He seeks redress for the alleged breaches of his rights under 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. [ 8 ] In the course of the discovery process in the underlying civil action, the [NAME] of Canada provided partially redacted documents to [NAME]. The redactions were based on claims of national security and human source privilege. [NAME] sought the disclosure of the redacted information by commencing two applications in the Federal Court. The first was filed pursuant to paragraph 38.04(2)(c) of the Canada Evidence Act , R.S.C. 1985, c. C-5 (CEA) in file no. DES-3-17, and the second pursuant to paragraph 18.1(4)(a) of the [NAME] Act in file no. DES-1-18. The [NAME] judge appointed [NAME] to assist in the process. [ 9 ] In the course of adjudicating a small subset of the national security and human source privilege claims, the [NAME] judge revisited an issue that he had found troubling during his 2009 review of the security certificate issued against [NAME]. The [NAME] judge requested and received evidence on this particular issue, which resulted in him making findings of fact and law. [ 10 ] The [NAME] judge’s findings of fact and law on this issue – which he deemed relevant to the underlying civil action – were based on information that was redacted in the documentation produced in the underlying civil action. In light of this, the [NAME] judge issued, in addition to a classified judgment and reasons for judgment (2024 FC 854), a separate standalone order on June 6, 2024. The standalone order seeks to communicate the concerns of the [NAME] judge and their possible effect on the underlying civil action to public counsel for [NAME], to the ONSC Case Management Judge and, if that judge considers it appropriate, to the judge presiding over the trial in the underlying civil action. [ 11 ] At the same time, in his judgment, the [NAME] judge ordered that counsel for the [NAME] of Canada advise the [NAME] of Canada of his findings on this particular issue and of the risk of a miscarriage of justice occurring in the underlying civil action should the information in question be withheld from the ONSC. The [NAME] judge further ordered that counsel for the [NAME] of Canada confirm with the [NAME] proceedings registry that the order had been carried out within 30 days of receipt of the judgment. [ 12 ] On appeal to this Court, the [NAME] of Canada submits that the [NAME] judge exceeded his statutory jurisdiction under section 18.1 of the [NAME] Act by making and disclosing findings of fact and law based on privileged human source information. The [NAME] of Canada argues that given the complete statutory code in section 18.1 and the stated purpose of the provision, the [NAME] judge was not authorized to assess the evidentiary value of the information he deemed relevant to the underlying civil action or to make findings of fact or law that could bear upon it. The authority to do so must be rooted in the [NAME] Act and, in the context of civil proceedings, there is no jurisdiction to make any determination other than those explicitly authorized in paragraph 18.1(4)(a) of the [NAME] Act. The [NAME] of Canada is no longer pursuing the grounds raised in the notice of appeal that relate to the application of section 38 of the CEA. [ 13 ] In response, the [NAME] do not dispute that section 18.1 of the [NAME] Act sets out the orders a [NAME] judge can make when seized of an application pursuant to subsection 18.1(4) and that the [NAME] judge’s findings are based on information protected by human source privilege. Their disagreement with the [NAME] of Canada relates to the source of the [NAME] judge’s authority to make the disputed orders. They submit that in requiring evidence and submissions on the issue of concern and in making findings of fact and law in relation to that issue, the [NAME] judge was not exercising jurisdiction under section 18.1 of the [NAME] Act. Rather, they submit, the [NAME] judge was exercising the Federal Court’s plenary powers to investigate and attempt to remedy what he considered to be abuses of the court’s process given the [NAME] of Canada’s continued reliance on orders stemming from that information in defending the underlying civil action. They argue that section 18.1 of the [NAME] Act does not oust the Federal Court’s plenary powers.

III. Analysis A. Standard of review [ 14 ] There is no dispute that the appellate standard of review set out in [NAME] v. [NAME] , 2002 SCC 33 applies to this appeal. The question of whether the [NAME] judge acted without jurisdiction is a question of law reviewable on the standard of correctness. B. Section 18.1 of the [NAME] Act does not allow the issuance of summaries based on information protected by human source privilege [ 15 ] [ADDRESS] was categorical in [NAME] 2022 FCA : section 18.1 of the [NAME] Act does not allow, in the context of civil proceedings, the issuance of summaries of privileged information, including non-identifying ones ( [NAME] 2022 FCA at para. 49). [ 16 ] As the Court noted, the purpose of the class privilege created by section 18.1 of the [NAME] Act is to ensure that the identity of human sources is kept confidential to protect their life and security and to encourage individuals to provide information to the Service ( [NAME] 2022 FCA at paras. 24, 27; see also subsection 18.1(1) of the [NAME] Act). [ 17 ] To achieve this purpose, subsection 18.1(2) of the [NAME] Act prohibits the disclosure, in a proceeding before a court, person or body with jurisdiction to compel the production of information, of the identity of a human source or of information from which the identity of the human source could be inferred. [ 18 ] There are only two exceptions to the prohibition on disclosure. The first is where the human source and the Director of the Service both consent to the disclosure of the information (subsection 18.1(3) of the [NAME] Act). The second is where, in the prosecution of an alleged offence, the disclosure is necessary to establish the innocence of an accused (subsection 18.1(8) and paragraph 18.1(4)(b) of the [NAME] Act). [ 19 ] Where a party to a proceeding referred to above wishes to challenge the Service’s assertions of privilege, they may bring an application to a judge of the Federal Court under subsection 18.1(4) of the [NAME] Act. Where the underlying proceeding is civil in nature, the only remedy available is that which is set out in paragraph 18.1(4)(a) of the [NAME] Act. The [NAME] judge may make an order declaring that an individual is not a human source or that the information is not information from which the identity of a human source could be inferred (my emphasis). The innocence at stake exception to disclosure set out in paragraph 18.1(4)(b) does not arise in the context of civil proceedings ( [NAME] 2022 FCA at paras. 44-45, 49). [ 20 ] In determining the application, the [NAME] judge is required to ensure not only the confidentiality of the identity of any human source and of the information from which the identity of the human source could be inferred, but also the confidentiality of the information and other evidence provided in respect of the application if, in the judge’s opinion, the disclosure of that information and other evidence would be injurious to national security or endanger the safety of any person (subsection 18.1(10) of the [NAME] Act). A similar obligation arises on appeal (subsection 18.1(11) of the [NAME] Act). [ 21 ] It is only where the innocence of the accused is at stake, an issue that does not arise here, that the [NAME] judge has the discretion to order the disclosure they consider appropriate subject to any conditions specified by the [NAME] judge (subsection 18.1(8) of the [NAME] Act). [ 22 ] Applying these provisions to this appeal, I note at the outset that the [NAME] judge recognized in his reasons that his concerns primarily arose from information protected by section 18.1 of the [NAME] Act (2024 FC 854 at para. 172). The [NAME] acknowledge, as noted above, that a [NAME] judge is not empowered to violate section 18.1 of the [NAME] Act. Indeed, any disclosure, public or otherwise to the ONSC, of information from which the identity of a human source could be inferred is prohibited by subsections 18.1(2) and 18.1(10) of the [NAME] Act. The [NAME] also accept that portions of the last paragraph on page 6 of the standalone order should be set aside since the information contained therein is based on information protected by section 18.1 of the [NAME] Act. [ 23 ] I agree. The [NAME] judge did not have the statutory authority to summarize and include for disclosure the information found in the last paragraph of page 6 of the standalone order. It is based on information protected by section 18.1 of the [NAME] Act and does not fall within one of the recognized exceptions to the prohibition on disclosure. Therefore, the portions in the last paragraph of page 6 of the standalone order that summarize and disclose information that is derived from information protected by section 18.1 of the [NAME] Act should be set aside. [ 24 ] I would also add that the [NAME] judge erred when he ordered, in the standalone order, that the [NAME] of Canada provide a copy of the order to the case management judge in the underlying civil action pursuant to section 38.07 of the CEA. Under this provision, the [NAME] judge may order the [NAME] of Canada to give notice of an order made under any of subsections 38.06(1) to (3) of the CEA to any person who, in the opinion of the judge, should be notified. Subsection 38.06(2) of the CEA gives the [NAME] judge the authority to permit the disclosure of injurious information, in a form and under conditions that are most likely to limit any injury to international relations, national defence or national security resulting from the disclosure, if the judge finds that the public interest in disclosure outweighs in importance the public interest in non-disclosure. One of the options available to the [NAME] judge is the provision of a non-injurious summary of the information. Another could include providing the information at issue only to the judge presiding over the underlying proceeding. [ 25 ] [ADDRESS] has previously determined that section 18.1 of the [NAME] Act was intended to be more restrictive than section 38 of the CEA and precludes the [NAME] judge from assessing human source information within the framework of section 38 of the CEA ( [NAME] 2022 FCA at para. 28; Section 18.1 of the [NAME] Act, R.S.C. 1985, c. C-23, as Amended (Re) , 2018 FCA 161 at paras. 37-38 ( Re [NAME] Act , 2018 FCA 161); Canada ([NAME]) v. [NAME] , 2016 FCA 195 at paras. 37, 39, 60). [ 26 ] These decisions clearly support the view that section 38.07 of the CEA has no application to information protected by section 18.1 of the [NAME] Act. The [NAME] judge could not rely on section 38.07 of the CEA to order the [NAME] of Canada to provide a copy of the standalone order to the case management judge in the underlying civil action. There is simply no statutory jurisdiction for a [NAME] judge to order any form of disclosure of section 18.1 information beyond that found in the [NAME] Act. I would also add that the [NAME] judge inappropriately commingled the statutory schemes. In considering the possible effect of depriving the ONSC of the information he deemed relevant to the underlying proceeding (e.g., standalone order at pages 4 and 7; reasons for judgment at para. 186), the [NAME] judge essentially engaged in and imported the balancing exercise contemplated by section 38 of the CEA into section 18.1 of the [NAME] Act, contrary to this Court’s finding in [NAME] 2022 FCA at paragraph 35. C. Exercise of the Federal Court’s plenary powers to inquire into and remedy an abuse of process [ 27 ] In addition to submitting that the [NAME] judge lacked the jurisdiction to order any form of disclosure of information protected by section 18.1 of the [NAME] Act, the [NAME] of Canada further contends that the [NAME] judge did not have the authority under section 18.1 to assess the evidentiary value of the privileged information to the underlying proceeding or to make findings of fact and law based on that information. In its view, the [NAME] judge’s findings run afoul of the clear wording of section 18.1 of the [NAME] Act and Parliament’s intent and purpose in enacting the provision. In the absence of jurisdiction to make these findings, the [NAME] judge therefore erred when ordering that counsel for the [NAME] of Canada advise the [NAME] of Canada of those findings. [ 28 ] In response, the [NAME] argue that the [NAME] of Canada has incorrectly identified the source of the [NAME] judge’s authority. They submit that the [NAME] judge was not exercising jurisdiction under section 18.1 of the [NAME] Act, but was instead exercising the Federal Court’s plenary powers to investigate and attempt to remedy abuses of process. In their view, these powers exist independently of any statute and can be used to redress an abuse of process where: (1) the abuse was of the court’s own processes, (2) the order does not contravene any statute, and (3) the order respects the constitutional division of powers. [ 29 ] Despite their acknowledgement that portions of the standalone order should be set aside, the [NAME] submit that the plenary powers of the Federal Court give the [NAME] judge the authority to make a communication to another court or a public judgment if the [NAME] judge concludes that it is appropriate to do so in order to redress an abuse of the court’s process, providing it can be framed in a manner that does not violate section 18.1 of the [NAME] Act. They also defend the orders set out in paragraphs 4 and 5 of the judgment, arguing that the order to advise the [NAME] of Canada does not violate section 18.1 of the [NAME] Act. In particular, they argue that the communication to the [NAME] of Canada can be confidential and would thus not be a disclosure within the meaning of the [NAME] Act. [ 30 ] The [NAME] of Canada accepts that the Federal Court possesses plenary powers analogous to the inherent powers of a superior court of record to effectively manage and decide cases before it. However, the [NAME] of Canada submits that there was no abuse of the Federal Court’s process in this case and the court’s plenary powers do not extend to questions before another court, such as questions to be determined by the ONSC in the underlying proceedings. [ 31 ] After carefully considering the submissions of the [NAME] of Canada and the [NAME] , I find that the Federal Court’s plenary powers do not form a valid basis for the [NAME] judge’s communication to the ONSC in the standalone order, public or otherwise, or for the issuance of the orders in paragraphs 4 and 5 of the judgment. [ 32 ] While the [NAME] invite this Court to clarify the source of the Federal Courts’ plenary powers, it is not necessary to do so for the purposes of determining this appeal. The result would be the same regardless of whether the plenary powers of the Federal Courts arise by virtue of their status as courts of law or pursuant to the doctrine of jurisdiction by necessary implication. [ 33 ] I accept that the [NAME] judge, as a member of the Federal Court, possesses plenary powers that are analogous to the inherent powers of a provincial superior court of record, and that absent explicit statutory jurisdiction, the Federal Court’s plenary powers can be used to redress abuses of its own process or to control the integrity of its own processes ( 744185 [COMPANY]. v. Canada , 2020 FCA 1 at para. 28, citing Canada (Human Rights Commission) v. Canadian Liberty Net , [1998] 1 S.C.R. 626 at paras. 35-38 and Canada (National Revenue) v. [COMPANY] , 2013 FCA 50 at paras. 34-36; see also Canada ([NAME]) v. [NAME] , 2023 FCA 45 at para. 16; [NAME] v. Canada (Correctional Service) , 2017 FCA 228 at paras. 7-8, 12; [NAME] Act (CA)(Re) , 2020 FC 616 at paras. 205-206 ( Re [NAME] Act , 2020 FC 616) (appeal allowed in part in 2021 FCA 92). [ 34 ] That said, the Federal Court’s plenary powers cannot be relied upon to disregard the statutory scheme chosen by Parliament. Where the information before the [NAME] judge is captured by section 18.1 of the [NAME] Act, the plenary powers of the [NAME] judge are displaced and the information must be dealt with in accordance with the scheme established under that provision. [ 35 ] The need for caution in resorting to the exercise of plenary powers was highlighted by the Supreme Court of Canada in [NAME] v. [NAME] , 2016 SCC 42. There, the Court stated that “given the broad and loosely defined nature of [the inherent powers of superior courts], they should be ‘exercised sparingly and with caution’… [and that it] follows that courts should first determine the scope of express grants of statutory powers before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction” (at para. 24). [ 36 ] The decision of this Court in Re [NAME] Act , 2018 FCA 161 is of particular interest in determining whether the court’s plenary powers are displaced by section 18.1 of the [NAME] Act. In that appeal, this Court was called upon to decide whether the [NAME] judge had jurisdiction, in the absence of an application under subsection 18.1(4) challenging the privilege claim, to issue an order requiring the [NAME] of Canada to file affidavit evidence justifying the section 18.1 privilege claims. As in this appeal, the [NAME] of Canada argued “that section 18.1 of the [NAME] Act is a complete statutory code which is intended to provide a comprehensive regulation of the [NAME] human source privilege to the exclusion of any other law” (at para. 20). [ 37 ] As the statute did not provide an explicit answer to the question posed in the appeal, this Court held that the question was to be answered, “first and foremost” , by applying the principles of statutory interpretation (at paras. 20, 23). It noted that, with the exception of the challenge mechanism under subsection 18.1(4), there was nothing in the text of section 18.1 of the [NAME] Act that either explicitly conferred jurisdiction on the [NAME] judge to inquire further into the privilege claims or ousted their authority to require an evidentiary basis for the claim of privilege (at paras. 24-25, 28). [ADDRESS] agreed with the amicus curiae that the absence of prohibitive language as that found in sections 38.13 and 39 of the CEA weighed in favour of a finding that a [NAME] judge had jurisdiction to inquire into the section 18.1 privilege claim notwithstanding the silence of the statute on the matter. [ 38 ] [ADDRESS] then went on to explain that while a comparison of the provisions was helpful, it was necessary to consider the circumstances in which section 18.1 was enacted to better ascertain Parliament’s intention (at para. 34). [ADDRESS] agreed with the [NAME] of Canada that the [NAME] judge’s jurisdiction to inquire further into the basis of the privilege claims had to be rooted in the [NAME] Act. After considering the historical context of the provision and noting that the enactment of section 18.1 had the effect of precluding the Federal Court from assessing human source privileged information within the framework of section 38 of the CEA (at para. 37), the Court concluded that subsection 18.1(4) of the [NAME] Act restricted the [NAME] judge’s ability to require evidence in support of a section 18.1 privilege claim where no application was brought (at para. 39). [ADDRESS] added that this conclusion was consistent with Parliament’s intention to impose stricter safeguards on human source information than that provided in the CEA, amongst other statutes. [ 39 ] Although not necessary to dispose of the appeal, the Court nevertheless went on to provide further comment. It accepted that Parliament could not have intended to provide [NAME] judges with information over which privilege under section 18.1 of the [NAME] Act is claimed, only to leave them powerless to inquire further if the basis for those privilege claims is not apparent on the face of the record (at para. 43). [ADDRESS] wrote that in the case before it, the appropriate course of action would have been for the [NAME] judge to appoint an amicus curiae or a special advocate to provide a different perspective than that of the [NAME] of Canada on the issue of the privilege claims (at para. 44). [ADDRESS] found that such an appointment would strike “the best balance between the need to give effect to the statutory scheme as it is written, and the need for [NAME] judges to maintain control over their own processes” (at para. 47). [ADDRESS] stated that it could not accept the view that Parliament intended that [NAME] judges overlook overreaching privilege claims simply because the underlying party did not challenge them. [ 40 ] Importantly, it reiterated that the recourse had to be rooted in the statute (at para. 51). It also specified that if the amicus curiae or special advocate viewed the privileged material and concluded that it was properly the subject of the section 18.1 privilege and declined to bring an application pursuant to subsection 18.1(4) of the [NAME] Act, then the “[NAME] judge [would] not have jurisdiction to require further evidence of the basis for the privilege, notwithstanding that he or she may still believe it is ill-founded” (at para. 54). [ 41 ] Before concluding, the Court also commented briefly on the issue of the [NAME] judge’s implied jurisdiction and plenary powers. The [NAME] of Canada had argued that the fact that the [NAME] judge thought it desirable to test the basis of the section 18.1 privilege claims was insufficient to found jurisdiction. For his part, the amicus curiae had argued that overly broad claims constitute an abuse of process, which can be addressed by way of the [NAME] judge’s plenary powers. [ADDRESS] acknowledged the arguments of the parties, but found that they would not cause the Court to reach a different conclusion (at para. 65). [ADDRESS] allowed the appeal and held that the [NAME] judge’s order was made in excess of jurisdiction. [ 42 ] In my view, this decision stands for the following propositions. First, the [NAME] judge’s jurisdiction must be rooted in the [NAME] Act and be consistent with the context and purpose of the statutory scheme. Second, if a [NAME] judge is concerned that the basis of a privilege claim does not, at least on a prima facie basis, appear well-founded, they have the power to appoint an amicus curiae . The amicus curiae would then have the responsibility to determine whether a challenge under paragraph 18.1(4)(a) should be brought. Third, it is only where a challenge to the privilege claim has been instituted by the amicus curiae that the [NAME] judge may test the basis of the claims by calling for evidence justifying them. Finally, the exercise of the [NAME] judge’s supervisory powers must be consistent with and relate to the determination to be made under paragraph 18.1(4)(a) of the [NAME] Act. [ 43 ] Returning to the issue before this Court, I have already found that the statutory scheme of section 18.1 of the [NAME] Act does not in any way support the issuance or disclosure of summaries of privileged information where the underlying proceeding is civil in nature. I am not persuaded either, for the reasons set out by this Court in Re [NAME] Act , 2018 FCA 161, that the statutory scheme can be construed in such a manner that, because not explicitly prohibited, the [NAME] judge has the jurisdiction to make a communication to another court or to issue a public judgment, the aim of which is to prevent or redress an abuse of another court’s process, even if framed in a manner that would not violate section 18.1 of the [NAME] Act. [ 44 ] In support of their position, the [NAME] argue that [NAME] judges have frequently exercised their plenary powers to investigate and redress abuses of the court’s process, particularly where they had concerns about whether the Service had breached its duty of candour to the Court. They rely in particular on the decisions in X (Re) , 2013 FC 1275, aff’d, X (Re) , 2014 FCA 249 and Re [NAME] Act , 2020 FC 616. [ 45 ] X(Re) concerned the issuance of a warrant to intercept foreign telecommunications pursuant to section 21 of the [NAME] Act on the express representation that the acts the Federal Court was being asked to authorize would all take place in Canada. [ADDRESS] later learned through the publication of the 2012-2013 Annual Report of the Commissioner of the [NAME] that the assistance provided by the [NAME] ([NAME]) to the Service in support of the warrants might include requests to its partners within the Five Eyes alliance (United States, United Kingdom, Australia and New Zealand) to intercept the communications of the Canadian warrant targets and also involve the sharing of their identity information with those partners ( X (Re) , 2014 FCA 249 at para. 6-7). [ 46 ] Upon learning of this information, the [NAME] judge who had issued the warrant made an order requiring counsel for [NAME] and the Service to appear before the Court to speak to the matter. The [NAME] judge was concerned that the Service had failed to disclose its intention to make such requests, despite having done so in a prior warrant application wherein a [NAME] judge had dismissed the application to authorize investigative activities in countries other than Canada. On their own motion, the [NAME] judge considered whether the Service had respected its duty of full disclosure owed to the Court and concluded that it had not. [ 47 ] In order to redress this abuse, the [NAME] judge provided specific directions to the Service about information that should be provided to the Court in future warrant applications and limiting language that should be added to any future warrant. The [NAME] judge also directed the Service, [NAME] and their legal advisors to refrain from suggesting that the use of allied foreign agencies’ telecommunication collection systems was conducted under the authority of a warrant issued by the Federal Court under section 21 of the [NAME] Act. Finally, the [NAME] judge ordered that a copy of its reasons be provided to the Chair of the Security Intelligence Review Committee. [ 48 ] Likewise, in Re [NAME] Act , 2020 FC 616, the Federal Court concluded that the Service had breached the duty of candour owed to the Court in the context of an ex parte warrant application. [ADDRESS] came to this conclusion after finding that the Service had failed to disclose that some of the information on which it relied in support of certain warrant applications had been obtained using methods that the Service knew likely violated the terrorist financing provisions of the Criminal Code , R.S.C. 1985, c. C-46. [ADDRESS] determined that it had the inherent authority to review an ex parte warrant where new facts came to light after its issuance that could have impacted its exercise of judicial discretion (at para. 311). [ADDRESS] went on to make several orders relating to the use or retention of information collected pursuant to a subsequently invalidated warrant, including recommending that a comprehensive external review be initiated to fully identify the systemic, governance and cultural shortcomings and failures that had resulted in the Service engaging in illegal operational activity and the resultant breach of the duty of candour. [ADDRESS] also ordered that the Service and the Department of Justice Canada advise the Court within a specified number of days as to how they intended to proceed with the Court’s recommendations. [ 49 ] On appeal, the Federal Court of Appeal set aside the Federal Court’s conclusion that the Service had breached the duty of candour it owed to the Federal Court after finding that it was not supported by the evidence in that application. However, it did not disturb the recommendation regarding the initiation of a comprehensive external review ( [NAME] Act (CA)(Re) , 2021 FCA 92). [ 50 ] In my view, these decisions are of no assistance in this appeal. They are distinguishable on two key grounds. [ 51 ] First, these decisions were issued in a different statutory context, namely that of warrant applications, and are consistent with the discretionary nature of warrants issued pursuant to section 21 of the [NAME] Act. Subsection 21(3) of the [NAME] Act stipulates that a judge “may” issue a warrant if satisfied of the matters enumerated in paragraphs 21(2)(a) and (b) of the [NAME] Act. [ 52 ] Where a warrant has been issued in the absence of full disclosure or where new facts come to light after its issuance that could have impacted on the decision to issue the warrant, the Federal Court retains the jurisdiction to address and consider the validity of an ongoing or previously issued warrant. In such a case, the court’s supervisory powers allow it to address any potential abuse of its process and to make remedial orders in a manner consistent with the discretionary nature of the scheme set out in section 21 of the [NAME] Act ( Re [NAME] Act , 2020 FC 616 at paras. 199, 202, 206, 229, 233). This includes the statutory power to impose “such terms and conditions as the judge considers advisable in the public interest” when issuing the warrant as set out in paragraph 21(4)(f) of the [NAME] Act. [ 53 ] I acknowledge that a connection exists between warrants and the information of concern in this case, as [NAME] relied upon that information to obtain a series of Federal Court orders, including the issuance of warrants under the [NAME] Act. [ 54 ] That said, an exercise of the court’s warrant-related supervisory powers in this case would be inconsistent with the statutory scheme set out in section 18.1 of the [NAME] Act. When reviewing a privilege claim in the context of an application under paragraph 18.1(4)(a) of the [NAME] Act, the [NAME] judge determines if the privilege is properly claimed. If so, the [NAME] judge will prohibit the disclosure of the privileged information. If the [NAME] judge concludes that the individual is not a human source or that the information is not information from which the identity of a human source could be inferred, they would order the disclosure of the information unless it was otherwise protected ( [NAME] 2022 at para. 27). Unlike the scheme relating to warrant powers, the exercise of jurisdiction is not discretionary. [ 55 ] Further, I note that the information of concern was considered by the [NAME] judge in his 2009 classified reasons. The Federal Court could have exercised its supervisory powers in 2009 to make findings on whether there was an abuse of its process in relation to the manner in which the Service had obtained the warrants that preceded the issuance of the security certificates. Instead, however, the [NAME] judge determined, after finding that the Service and the ministers were in breach of their duty of candour to the Court, that the most appropriate course of action at that stage of the proceedings was to determine the reasonableness of the certificate based on the Court’s assessment of all the information and evidence presented in the case ( [NAME] 2009 FC at para. 503). The [NAME] judge ultimately found that the security certificate was not reasonable and must be quashed. To some degree, one could find that any abuse of the Federal Court’s process was remedied by the certificate being quashed. [ 56 ] The second reason for finding that the cases relied upon by the [NAME] are distinguishable is that the supervisory powers upon which the Federal Court relied involved an alleged abuse of the Federal Court’s own process, and not that of another court. Here, the alleged abuse of process and risk of miscarriage of justice would be in the ONSC, not in the Federal Court. [ 57 ] The [NAME] suggest that the Federal Court’s authority extends to the ONSC’s process in this case since the [NAME] of Canada is “perpetuating” an abuse of the Federal Court’s process by relying, in its statement of defence before the ONSC, on Federal Court orders obtained through an abuse of its process. [ 58 ] Even if an alleged abuse of process at the Federal Court could result in a subsequent abuse of process at the ONSC, I am not persuaded that the Federal Court has the authority, statutory or otherwise, to investigate and remedy an abuse that will occur before another court, which is what the [NAME] judge sought to do in this case. [ 59 ] In my view, the interpretation proposed by the [NAME] would expand the Federal Court’s plenary powers in a way not supported by the existing jurisprudence. [ 60 ] As this Court noted in [NAME] , “[plenary] powers are meant to assist the Court in managing its own proceedings, such as to summarily dismiss, of its own motion, proceedings that are doomed to fail or are an abuse of the process of the Court” , but “were never intended to provide a party before the Court with a remedy that is not legally available” (at para. 16). [ 61 ] That said, I agree only in part with the [NAME] of Canada’s submission that the [NAME] judge lacked the authority to make any findings of fact and law in respect of the information of concern because it was based on privileged information. [ 62 ] I fail to see why a [NAME] judge could not, in their reasons for judgment, make findings of fact and law that arise from the evidence adduced in the proceedings in the course of determining a section 18.1 application. However, the [NAME] judge’s authority would not extend to investigating an issue of concern or requiring additional evidence on that issue if the issue does not relate to the determination to be made pursuant to paragraph 18.1(4)(a) of the [NAME] Act. In this regard, the [NAME] judge erred in requiring evidence – and in making findings of fact and law on the basis of that evidence – on the issue referred to at paragraph 9 of these reasons, as the requested evidence and subsequent findings did not relate to the determination of the section 18.1 application, namely an order declaring that an individual is not a human source or that the information is not information from which the identity of a human source could be inferred. [ 63 ] Finally, the [NAME] argue that the order requiring that the [NAME] of Canada be advised of the [NAME] judge’s findings does not violate section 18.1 of the [NAME] Act since the communication to the [NAME] of Canada can be kept confidential and thus is not a disclosure under the [NAME] Act. [ 64 ] Given my finding above that the [NAME] judge did not have the authority to require evidence on the issue of concern or to make findings of fact and law on the basis of that evidence, he accordingly did not have the authority to order counsel for the [NAME] of Canada to advise the [NAME] of Canada of those findings. Therefore, paragraphs 4 and 5 of the judgment should be set aside. [ 65 ] Although my conclusion is sufficient to dispose of the issue, the following additional observations are warranted. [ 66 ] I accept that the protection under section 18.1 of the [NAME] Act arises in the context of a “proceeding before a court, person or body with jurisdiction to compel the production of information” (subsection 18.1(2) of the [NAME] Act). This implies that the information would otherwise be made public in a proceeding. Even if the [NAME] were correct in their interpretation, I have difficulty with the [NAME] judge’s order in that it does not specify the scope of the term “[NAME] of Canada” . Indeed, as currently worded, it is unclear whether the order is to be provided only to senior government officials, or whether the order extends to the various counsel representing the [NAME] of Canada in the underlying civil action, some of whom may not possess the required security clearance. I find that the order is overly broad and could thus violate section 18.1 of the [NAME] Act. [ 67 ] This is all the more important given the scope of the disclosure envisaged in paragraph 4 of the judgment. Subsection 18.1(10) of the [NAME] Act provides that the [NAME] judge shall ensure not only the confidentiality of the identity of any human source and any information from which the identity of a human source could be inferred, but also the confidentiality of information and other evidence provided in respect of the application if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person. The order for disclosure in paragraph 4 of the judgment could certainly be construed as being in contravention of this provision, especially considering that the order calls for broader, more explicit disclosure than the standalone order.

IV. Conclusion [ 68 ] For these reasons, I would allow the appeal and set aside paragraphs 4 and 5 of the judgment as well as the portions in the last paragraph on page 6 of the standalone order that summarize and disclose information derived from information protected by section 18.1 of the [NAME] Act. "[NAME]" J.A. “I agree. [NAME].” “I agree. [NAME].” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-205-24 STYLE OF CAUSE: [NAME] OF CANADA v. [NAME] OF HEARING: Ottawa, Ontario DATE OF HEARING: JUNE 3, 2025 PUBLIC

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME] J.A. [NAME] J.A. DATED: MAY 29, 2026 APPEARANCES : [NAME] For The Appellant [NAME] SOLICITORS OF RECORD : [NAME] of Canada For The Appellant