The plaintiffs brought a motion seeking a declaration that the defendant waived litigation privilege over a 'Proffer' document provided to the Attorney General of Canada for national security vetting under s. 38 of the Canada Evidence Act.
The court held that while the document was created for the dominant purpose of litigation, the defendant's stated intention of using it to promote trial efficiency constituted a waiver of privilege vis-à-vis the trial judge.
The court ordered the unredacted Proffer to be provided to the judge and established a comprehensive trial protocol, including the appointment of amicus curiae and advance vetting of sensitive evidence, to balance national security concerns with trial fairness.
