Sakab Saudi Holding Company v. Al Jabri, 2026 ONSC 2893

Court File and Parties

Court File No.: CV-21-00655418 Date: 2026-05-19 Superior Court of Justice – Ontario (Commercial List)

Re: SAKAB SAUDI HOLDING COMPANY, ALPHA STAR AVIATION SERVICES COMPANY, ENMA AL ARED REAL ESTATE INVESTMENT AND DEVELOPMENT COMPANY, KAFA’AT BUSINESS SOLUTIONS COMPANY, SECURITY CONTROL COMPANY, ARMOUR SECURITY INDUSTRIAL MANUFACTURING COMPANY, SAUDI TECHNOLOGY & SECURITY COMPREHENSIVE CONTROL COMPANY, TECHNOLOGY CONTROL COMPANY, and NEW DAWN CONTRACTING COMPANY and SKY PRIME INVESTMENT COMPANY

Plaintiffs

And

SAAD KHALID S AL JABRI, DREAMS INTERNATIONAL ADVISORY SERVICES LTD., 1147848 B.C. LTD., NEW EAST (US) INC., NEW EAST 804 805 LLC, NEW EAST BACK BAY LLC, NEW EAST DC LLC, JAALIK CONTRACTING LTD., NADYAH SULAIMAN A AL JABBARI, personally and as litigation guardian for SULAIMAN SAAD KHALID AL JABRI, KHALID SAAD KHALID AL JABRI, MOHAMMED SAAD KH AL JABRI, NAIF SAAD KH AL JABRI, HISSAH SAAD KH AL JABRI, SALEH SAAD KHALID AL JABRI, CANADIAN GROWTH INVESTMENTS LIMITED, GRYPHON SECURE INC., INFOSEC GLOBAL INC., QFIVE GLOBAL INVESTMENT INC., GOLDEN VALLEY MANAGEMENT LTD, NEW SOUTH EAST PTE LTD., TEN LEAVES MANAGEMENT LTD., 2767143 ONTARIO INC., NAGY MOUSTAFA, HSBC TRUSTEE (C.I.) LIMITED, in its capacity as Trustee of the Black Stallion Trust, HSBC PRIVATE BANKING NOMINEE 3 (JERSEY) LIMITED, in its capacity as a Nominee Shareholder of Black Stallion Investments Limited, BLACK STALLION INVESTMENTS LIMITED, NEW EAST FAMILY FOUNDATION, NEW EAST INTERNATIONAL LIMITED, NEW SOUTH EAST ESTABLISHMENT, NCOM INC. and 2701644 ONTARIO INC.

Defendants

Before: W.D. Black J.

Counsel: Jonathan Bell, Munaf Mohamed, Doug Fenton, for the Plaintiffs Greta Hoaken, Jeff Larry, Pooja Patel, Hailey Bruckner, for Mohammed Saad KH Al Jabri John Adair, Sean Pierce, Rob Trenker, for Saad Khalid S Al Jabri, 1147838 B.C. Ltd., Nadyah Sulaiman et al Christopher Ezrin, Marina Stefanovic, Elija Lo Re, Stephanie Morin, Andre Seguin, for the Attorney General of Canada Gavin MacKenzie, Andrew Matheson, Solomon McKenzie, for McCarthy Tetrault, HSBC Corporate Services, the sole director of Dreams International Advisory Services Ltd. Liam Kelley, for Black Stallion Investments Limited Mitch Vininsky, David Sieradzki, for the Court Appointed Receiver, KSV Advisory

Heard: April 14-16, 2026

Endorsement

Overview

1This was a three-day hearing, convened for three main purposes.

2First, the parties wished to provide me with their perspectives on important background information that they say I will need to have in order to adjudicate the trial in this matter (now expected to proceed in the fall of 2027).

3Second, in conjunction and with the benefit of that background information, the plaintiffs argued a motion seeking a declaration that the defendant Dr. Aljabri has waived any litigation privilege that may have existed in the Proffer (in this endorsement I will continue to use this and other terms as defined in the parties’ materials and in my previous endorsements). The plaintiffs also seek related relief relative to and following from that declaration.

4Third, on the last day of the hearing, representatives of the Attorney General of Canada (“AGC”) were in attendance to discuss a protocol for the trial and suggestions as to how certain evidentiary issues likely to arise at trial can and should be handled.

5On that final day of the hearing, it was also agreed that the parties (and the AGC, if it chose to do so), would make additional submissions, in writing, supplementing the submissions I heard on a number of issues, including in particular relative to the protocol for trial. In this endorsement, I am also taking into account those additional submissions.

6In this endorsement, I will not review exhaustive details of the parties’ respective submissions as to the relevant backdrop for me to take into account, but will include aspects of the background to the extent that they inform and feature in my determination of the plaintiffs’ motion with respect to the Proffer, and/or relative to the trial protocol and trial management issues.

7Moreover, while the parties in their materials and in their oral submissions put various “spins” on components of the background facts, to the extent that I recite below aspects of that backdrop, I endeavor to do so in a neutral way (and/or expressly quoting or paraphrasing the parties’ descriptions of aspects of the background facts). I appreciate that I will be called upon, at trial, to make definitive findings on various contested features of the evidence, but I need not do so for present purposes, and indeed it would not be appropriate to pre-judge such factual disputes at this time.

Current Status of Matter and Trial Date

8As matters currently stand, the defendants’ appeal of the decision of Kane J. in Canada (Attorney General) v. Al Jabri, 2025 FC 1940 – relative to the application of s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”), to information that Dr. Aljabri says he needs to defend himself at trial – led to an adjournment of the trial in this court, which was scheduled to proceed before me for 12 weeks commencing on April 6, 2026. The plaintiffs have cross-appealed Kane J.’s decision. Notwithstanding that the trial is therefore delayed until next fall, the parties and I agree that the time between now and the trial next fall should be used to deal with the issues before me in this motion, and other issues, so that any further potential delay can be avoided.

High Level Summary of Parties’ Positions in the Action

9Stepping back for a moment to survey the landscape, this litigation engages complex and significant competing considerations. By way of an admittedly simplistic overview, the essence of the claim is that the defendants, led by Dr. Aljabri, misappropriated billions of dollars from the Kingdom of Saudi Arabia (“KSA”), without legal entitlement or authorization to do so, roughly contemporaneous with and driven by a regime change in the KSA. The defence depends, it is alleged, on being able to show that the amounts at issue, which the defendants do not deny receiving, were in fact legitimate and appropriate compensation for highly sensitive and confidential international counterterrorism efforts undertaken by the defendants at the behest of the KSA government. However, the defendants assert, they are prevented, by virtue of concerns expressed by the AGC, which have now been translated into orders of the Federal Court under s. 38 of the CEA, from presenting details of their counterterrorism campaign that would demonstrate their entitlement to the money at issue. As can be seen, an adjudication of this matter necessarily entails a careful balance of these competing concerns.

Plaintiffs’ Narrative of Important Aspects of Background

10The plaintiffs’ starting point for their motion is to identify and confirm various facts that they say are not really in dispute.

11First, they note that it is not contested that, in relation to and as alleged compensation for various counterterrorism activities that he undertook over a period of a number of years on behalf of the KSA, various companies in which Dr. Aljabri and/or his relatives and associates had an interest received payments totaling upwards of $7.5 billion from the KSA (this and other figures cited in this endorsement are in USD unless expressly stated otherwise).

12Of those amounts, it is also conceded that Dr. Aljabri himself received over $500,000,000.

13It is also not contested that the plaintiffs were established for and were involved in supporting counterterrorism activities through and under cover of their regular commercial activities (in strategic sectors such as data mining, aviation and military manufacturing), and that Dr. Aljabri was himself involved in security operations (including in particular international security operations) in his role at the KSA Ministry of the Interior, at least up to the time of his termination from that role by Royal Order in September 2015.

14The essence of the dispute between the parties relates to the entitlement, or not, and the authorization, or not, for Dr. Aljabri – and his relatives and associates and the companies in which he and/or they have an interest – to receive the amounts that he and they undeniably did.

15These amounts substantially exceed the salary that Dr. Aljabri received for his work at the KSA Ministry of the Interior, and exceed the amounts (also contested) purportedly earned by Dr. Aljabri and his relatives and associates pursuant to the disputed Compensation Letter. This letter ostensibly entitles them to percentage payments relative to earnings or valuations of the various commercial entities through which the counterterrorism activities were undertaken.

16Dr. Aljabri explains these substantial payments as exceptional compensation tied to and arising from the extraordinary and internationally sensitive nature of the counterterrorism work he performed, and the gratitude, in particular, of Prince Mohammed bin Nayef for the success of the initiatives that Dr. Aljabri undertook. Prince Mohammed bin Nayef allegedly authorized and to an extent oversaw Dr. Aljabri’s efforts.

The Royal Instruction and the Allocation

17In 2006, King Abdullah Abdulaziz issued the 2006 Royal Instruction establishing a pool of funding – the Allocation – to be directed towards counterterrorism efforts.

18The Allocation was administered by Mohammed bin Nayef in his capacity at that time as Assistant Minister of the Interior. During that same timeframe, Dr. Aljabri was an official with the Ministry of the Interior and a close personal aide to Mohammed bin Nayef (who became Crown Prince, a high‑ranking royal in line for the KSA throne”.)

19On December 27, 2007, King Abdullah Abdulaziz signed the 2007 Royal Instruction, expanding the pool of funding available under the Allocation and modifying the scope of permissible activities potentially to be pursued using the Allocation funding.

20The King authorized Mohammed bin Nayef to use the Allocation “to establish and fund appropriate investment vehicles in the private sector in accordance with what [Mohammed bin Nayef] sees as serving the public interest.”

21It is again not in dispute that the Allocation was used to fund the plaintiffs, and that some of the money originating from the Allocation was used to pay for both their overt commercial activities and their covert counterterrorism initiatives as directed by the terms of the Royal Instruction(s).

22The plaintiffs allege, however, that the payments actually made were neither authorized nor legal under Saudi law, and that significant funds from the Allocation were misappropriated from the plaintiffs and used to enrich Dr. Aljabri, Mohammed bin Nayef, and their alleged co-conspirators. The alleged misappropriation is the subject of the action.

23Again, Dr. Aljabri does not deny that he and other parties (including the other defendants) received the sums at issue; rather, he contends that all funds flowing from the plaintiffs were legitimate payments for his counterterrorism work and were authorized by Mohammed bin Nayef under the authority conferred to him by the 2007 Royal Instruction.

The Procedural History Leading to the Creation of the Proffer

24The primary issue before me in this motion concerns the Proffer, whether or not it can be disclosed to the plaintiffs and the court, and what use can be made of the Proffer at trial.

25As part of their argument for disclosure of the Proffer, the plaintiffs review aspects of the relevant procedural history, and the circumstances in which and stated purpose for which the Proffer was created.

Justice Gilmore’s Mareva Order in January of 2021

26They note that this action was commenced on January 22, 2021, and that on that same day, Gilmore J. granted an ex-parte Mareva injunction in favour of the plaintiffs, freezing all of Dr. Aljabri’s worldwide assets. Justice Gilmore found, in granting the Mareva order, that a strong prima facie case has been established that, based on Deloitte’s expert legal report and affidavits and exhibits filed, that “[Dr. Aljabri] used fraudulent means to divert funds that rightfully belonged to the Plaintiffs, and that the Plaintiffs suffered a loss from that conduct”: (at para. 24). Her Honour also found that the documents established “on their face that [Dr. Aljabri] was in a position of trust and confidence in relation to the Plaintiffs. He breached his duties to the Plaintiffs by preferring his own interests and those of his family, friends, and co‑conspirators over those of the Plaintiffs”: (at para. 25).

27At that same time, Gilmore J. appointed a Receiver over nine luxury properties in the Boston area, on the basis that Dr. Aljabri had purchased those properties with misappropriated funds.

Unsuccessful “Set-Aside” Motion in February of 2021

28The defendants brought a motion before Gilmore J. on February 19, 2021 (decision released March 11, 2021, in Sakab Saudi Holding Company v. Al Jabri, 2021 ONSC 1772 (the “Set Aside Motion”)), seeking to set aside the Mareva order and the receivership order.

29On the set aside motion, as detailed in Gilmore J.’s decision denying that motion, Dr. Aljabri’s core argument was that this action is not a legitimate commercial dispute, but rather a political attack by the current Crown Prince of the KSA, Mohammed bin Salman, who had become Crown Prince of the KSA as a result of a “palace coup” in June 2017, in which Mohammed bin Nayef was deposed as Crown Prince: (Set Aside Motion, at paras. 14, 32-33). As a result of the coup and the ascension of Mohammed bin Salman, as Gilmore J. chillingly recorded, “[Mohammed bin Nayef] was placed under house arrest and texted [Dr. Aljabri] shortly thereafter warning him not to return to the KSA. [Mohammed bin Nayef] was arrested about a year ago on charges of treason and has not been seen since”: (Set Aside Motion, at para. 14).

30For purposes of the Set Aside Motion, Dr. Aljabri did not swear an affidavit, but instead relied on an affidavit sworn by his son Khalid Aljabri, also a defendant, to assert that the plaintiffs had failed to make appropriate and full disclosure on the ex parte motions. Khalid Aljabri’s affidavit also characterizes the action, as set out above, as emanating from the Crown Prince Mohammed bin Salman’s perception that Dr. Aljabri was and is a political opponent because of Dr. Aljabri’s close relationship with the deposed former Crown Prince Mohammed bin Nayef, and because of sensitive information that Dr. Aljabri claims to possess about the current Crown Prince Mohammed bin Salman.

31In that regard, Khalid Aljabri’s affidavit alleges that the current Crown Prince perceives Dr. Aljabri to threaten the “consolidation of political support in the United States for his ascension to the throne in Saudi Arabia because of the highly sensitive information possessed by [Dr. Aljabri] regarding [the Crown Prince and Dr. Aljabri’s] deep relationship with the United States Intelligence Community.”

32Dr. Aljabri also argued that the plaintiffs had obscured the primary purpose for which they had been created – to facilitate counterterrorism operations in the KSA and beyond – and that “substantially all of [his] involvement was not in the [Plaintiffs’] commercial activities, but rather the covert operations funded through [the Plaintiffs].”

33It is fair to observe that Gilmore J. framed the action, or at least the substance of the motions before her, as not being about whether or not the plaintiffs and the defendants were engaged in counterterrorism activities, which was and is acknowledged by all parties, but, instead, about the defendants’ entitlement or otherwise to the amounts they received (or according to the plaintiffs, took). The defendants say that these questions are closely intertwined and must be addressed together.

Related Proceedings in Massachusetts

34After this action was commenced, and in relation to the receivership order granted by Gilmore J. (in conjunction with the Mareva order, and relative in particular to the luxury real estate properties in Boston) the plaintiffs commenced an action in the State Court in Massachusetts (because under applicable state law, an action is required in order to register and enforce foreign orders).

35On March 29, 2021, the plaintiffs brought an application to attach the properties frozen by the Receivership Order and to stay the Massachusetts action. The plaintiffs’ intention was to give effect to Gilmore J.’s orders and to “focus” the litigation in Ontario.

36In response, counsel for Dr. Aljabri (and for Khalid Aljabri) filed a “Notice of Removal” to have the case in relation to the Boston properties remanded to the U.S. Federal Court. In that context, Dr. Aljabri’s counsel advised that they would be litigating the merits of the action in Massachusetts, and that doing so would require Dr. Aljabri to divulge sensitive U.S. state secrets.

37During the same timeframe, on April 21, 2021, Dr. Aljabri’s counsel (not his current counsel) moved to stay this Action as an abuse of process on the stated basis that:

(a) the issues raised in the action are non‑justiciable;

(b) witnesses and documents necessary to the proceedings are not available to the parties due to state secrecy laws and are “top secret”; and,

(c) the claim is barred by state immunity.

38Just before Dr. Aljabri’s evidence was due in that First Stay Motion, Canadian counsel to the U.S. Department of Justice wrote to assert the position that it would be “prudent to postpone all filings by the Defendants before the Ontario Superior Court of Justice in order to allow the United States to complete its inter-agency decision-making process.”

Dr. Aljabri’s Initial Stay Motion and his Evidence Therein

39On the basis of this letter from the U.S. Department of Justice, Dr. Aljabri then sought a stay of proceedings at a case conference convened before Gilmore J.

40Justice Gilmore rejected the request for a stay of proceedings, saying that if the U.S. Department of Justice “wants to participate, it should seek status and bring the appropriate motion.” The U.S. Department of Justice did not do so.

41However, at the same time, Dr. Aljabri provided notice to the AGC under s. 38 of the CEA that he would be required, in order to defend himself, to disclose sensitive and/or potentially injurious information in the action. The materials Dr. Aljabri provided in connection with this initial s. 38 notice included a “Confidential Appendix” and “Exhibit” to an affidavit filed by Dr. Aljabri in the stay request motion before Gilmore J.

42The plaintiffs emphasize that, in the circumstances described above, Dr. Aljabri took the position, for the first time, that this Action against him would need to be stayed or dismissed because, without being able to provide evidence about aspects of the work he did owing to its global sensitivity, he would be unable to fully and effectively defend himself.

43I pause to note that the plaintiffs’ position is that, while purportedly seeking permission to lead this allegedly sensitive information at trial, Dr. Aljabri’s initial stay motion, and his subsequent stay motions, including the stay motion that Dr. Aljabri proposes to bring at the time of trial, are in truth premised on him not being allowed to do so, and on the alleged unfairness that he says results from being precluded from eliciting this evidence. In other words, and bluntly, the plaintiffs say that Dr. Aljabri is in fact better off if he is prevented from leading the sensitive evidence, since that prohibition potentially leads to Dr. Aljabri not having to go to trial at all.

44The plaintiffs thus characterize Dr. Aljabri’s shelter under the spectre of internationally sensitive information as tactical. They allege that the sensitive aspects of Dr. Aljabri’s version of events have little or nothing to do with the question of the defendants’ entitlement to the amounts they received. They also argue that Dr. Aljabri’s resort to that spectre of sensitive information, and ultimately to s. 38 of the CEA, is intended to avoid the plaintiffs confronting Dr. Aljabri at trial with the lack of evidence and authority to justify what the plaintiffs portray as exorbitant and unearned amounts misappropriated by Dr. Aljabri and his co‑defendants.

45On July 5, 2021, Dr. Aljabri swore and filed a detailed 100-page affidavit within the stay motion, outlining his defence to the action and providing a reasonably comprehensive explanation of the payments that the plaintiffs traced to him (and which, again, he did not deny receiving). This 100‑page affidavit was and remains in the public record for these proceedings.

46Attached to Dr. Aljabri’s 100-page affidavit was a fully redacted “Confidential Appendix” and related Exhibit comprising 22 pages, setting out the material that was subject to the First Canada Evidence Act Notice.

47In the 100-page affidavit, Dr. Aljabri acknowledges receiving impugned payments from the plaintiffs in the order of hundreds of millions of dollars, but, again, maintains that these payments were legitimate compensation authorized by Mohammed bin Nayef for Dr. Aljabri’s involvement in counterterrorism operations.

48Dr. Aljabri deposes that, conversely, he had little or no involvement in the plaintiffs’ legitimate commercial activities, nor knowledge of their finances. He also confirms that he had no signing authority nor control over the plaintiffs’ bank accounts, and no role in the financial administration of the Allowance.

49In that regard, Dr. Aljabri’s evidence included a statement that “I was by far the least financially sophisticated member of the team” and confirmation that Dr. Aljabri “was not involved in calculating the amounts of the impugned payments” and “had no control over the timing of the payments.”

50The plaintiffs maintain, based on these admissions, that Dr. Aljabri’s own conception of his defence does not depend on the nature or details of any counterterrorism activities undertaken through the plaintiffs, but instead depends on the question of whether the payments were properly authorized by Mohammed bin Nayef as compensation for Dr. Aljabri’s services.

51Dr. Aljabri’s 100-page affidavit also describes in considerable detail the genesis and evolution of the Allocation, the nature of his work in the counterterrorism sphere, and his interactions in that context with various Western intelligence agencies. For example, in excerpts from his affidavit cited by the plaintiffs:

(a) Dr. Aljabri says that, post 9/11, he “became a key point of contact between the [KSA Ministry of Interior] and Western intelligence agencies including the CIA in the U.S., MI6 in the UK, and CSIS in Canada”;

(b) Dr. Aljabri provides evidence regarding the “top secret, not for circulation” 2007 Royal Instruction issued by King Abdullah regarding funding to the plaintiff companies from the Ministry of Interior;

(c) Dr. Aljabri deposes that he investigated suspected terrorists, took action against terrorist plots, provided financial support to families of terrorists, modernized the KSA security and intelligence agencies, and worked closely with Western intelligence agencies and successfully prevented attacks on Western targets being organized in the KSA and its regional neighbors;

(d) Dr. Aljabri describes attempts to assassinate Mohammed bin Nayef, including one attempt in 2009 that seriously injured him;

(e) Dr. Aljabri describes the nature of the work that he says he carried out for Mohammed bin Nayef following Dr. Aljabri’s removal from his KSA government position in 2015;

(f) Dr. Aljabri describes an attempt by Al-Qaeda to assassinate him;

(g) Dr. Aljabri describes Al-Qaeda’s presence in Yemen, and other events leading to the KSA’s war in Yemen; and,

(h) Dr. Aljabri describes Al Amariyya Farm, a property initially owned by Dr. Aljabri but which was sold to Anma Al Ared at an allegedly massively inflated valuation.

52The plaintiffs emphasize that Dr. Aljabri was prepared to publicly describe these various matters touching on ostensibly significant security and diplomatic concerns without engaging the CEA s. 38 process at that time.

53The plaintiffs also note, to similar effect, that elsewhere in his 100-page affidavit, Dr. Aljabri describes events said to give rise to tensions between Mohammed bin Nayef and the subsequent (and current) Crown Prince Mohammed bin Salman, including such matters as their disagreement over the KSA’s invasion of Yemen, and internal Royal politics.

54The plaintiffs maintain that it is inconsistent for Dr. Aljabri to have divulged these apparently sensitive details in the 100-page affidavit, on one hand, and to resist disclosure of other, presumably similar information, citing s. 38, on the other. The plaintiffs also assert that the kind of information described above has tangential relevance to the Action, at best, and has no factual or legal relevance as to whether Dr. Aljabri was properly authorized at law to receive significant amounts of money from the plaintiffs.

55With respect to the Confidential Appendix attached to the 100-page affidavit, the plaintiffs have received, over the last four years, increasingly unredacted versions.

56The plaintiffs note that the Confidential Appendix includes such content as:

(a) A description of the origins of the Allowance and the KSA’s war in Yemen;

(b) Allegations that the Crown Prince asked Dr. Aljabri to assist in kidnapping Prince Saud, and that Dr. Aljabri’s refusal to do so “infuriated” Crown Prince Mohammed bin Salman; and

(c) Descriptions of various counterterrorism operations, at a high level, including operations undertaken in Syria, trips to visit Canada and other allies, and a data-mining project.

57Again, the plaintiffs maintain that the Confidential Appendix appears to contain no meaningful evidence as to whether or not Dr. Aljabri was legally entitled to the funds from the plaintiffs.

58Moreover, the plaintiffs point out that Dr. Aljabri appears to have disclosed in other forums significant portions of the information included in the Confidential Appendix and, presumably, the plaintiffs say, in the Proffer.

Other Public Disclosures by Dr. Aljabri of Ostensibly Sensitive Information

59In that vein, the plaintiffs note that in August 2020, well before this action was commenced, Dr. Aljabri sued the Crown Prince and other Saudi nationals in the U.S. Federal District Court of the District of Columbia under the Torture Victim Prevention Act. In this D.C. Litigation, Dr. Aljabri’s central premise was that he is a political opponent of the Crown Prince, and that the Crown Prince has pursued him through judicial and extra-judicial means, including by attempting to assassinate him.

60In this context, Dr. Aljabri has made a number of public statements, which remain in the public domain, about his counterterrorism work and his relationships with Mohammed bin Nayef and Crown Prince Mohammed bin Salman. These statements include the following:

(a) Dr. Aljabri has stated (in his Amended Complaint in the D.C. Litigation) that he led a team that interrupted a terrorist plot to targe synagogues in Chicago, and provided considerable detail about that operation;

(b) Also in his Amended Complaint, Dr. Aljabri alleges he was removed from his government position in the KSA in 2015 after he took two unauthorized meetings with the former director of the CIA, John Brennan. Dr. Aljabri disclosed details of his discussions with Mr. Brennan, including about Russian intervention in Syria and the KSA’s ongoing war in Yemen;

(c) Dr. Aljabri, in the same document, alleges that in 2017, despite having been dismissed from his official positions, he travelled to Washington to negotiate a lobbying contract on behalf of Mohammed bin Nayef with a U.S. public relations firm. Dr. Aljabri alleges that this angered Crown Prince Mohammed bin Salman, who believed that Dr. Aljabri was working to favour Mohammed bin Nayef over Crown Prince Mohammed bin Salman in the line of succession to be King;

(d) Dr. Aljabri also alleges that President Trump provided political cover to the Crown Prince Mohammed bin Salman to “depose” Mohammed bin Nayef as Crown Prince; and,

(e) Dr. Aljabri alleges, based on discussions with members of the U.S. intelligence community, that Crown Prince Mohammed bin Salman believes that Dr. Aljabri is responsible for the CIA’s conclusion that Crown Prince Mohammed bin Salman ordered the assassination of Saudi journalist Jamal Khashoggi.

61The plaintiffs also point to evidence that Dr. Aljabri has expanded on these allegations, all of which expansions the plaintiffs speculate must be included in the Proffer and suppressed in this Action by s. 38 of the CEA, in various interviews with journalists and documentary film makers. Examples of this additional disclosure cited by the plaintiffs include:

(a) In July of 2022, Dr. Aljabri was interviewed on the popular American television news program “60 Minutes”. In that wide-ranging interview, Dr. Aljabri spoke at length about his counterterrorism work and his relationships with Mohammed bin Nayef and Crown Prince Mohammed bin Salman. Among other revelations, Dr. Aljabri claimed that the Crown Prince plotted in 2014 to kill his father and the ruling monarch, King Abdullah, with a poisoned ring obtained from Russia. Dr. Aljabri told the interviewer that a meeting at which the Crown Prince had described this plot was recorded on video, to which Dr. Aljabri had access to copies, and that Dr. Aljabri had recorded a “death video” revealing more secrets of the Saudi Royal family (part of which “death video” he showed to 60 Minutes to demonstrate the type of information that would be released upon his death). The plaintiffs underline that, during discoveries, Dr. Aljabri agreed that nothing on the “death video” was relevant to this litigation;

(b) In August of 2024, BBC News published an article entitled “Power, oil and a $450m painting – insiders on the rise of Saudi’s Crown Prince.” The article described a two‑part documentary (running for nearly two hours) prominently featuring interviews with Dr. Aljabri, his son Khalid Aljabri and other close associates. Based on information from Dr. Aljabri, the article describes detailed aspects of Dr. Aljabri’s counterterrorism work and details about the inner workings of the KSA government, such as:

i. Dr. Aljabri describes in detail a late-night meeting with Crown Prince Mohammed bin Salman in which the Crown Prince described his ambitions for the KSA, which Dr. Aljabri characterized as an effort by the Crown Prince to win Dr. Aljabri’s support;

ii. Dr. Aljabri reiterated his claim that Crown Prince Mohammed bin Salman plotted to kill his father with a poisoned ring obtained from Russia. King Abdullah eventually died of natural causes, which allowed King Salman – Crown Prince Mohammed bin Salman’s father – to assume the throne;

iii. Dr. Aljabri repeated his allegation that the Crown Prince was responsible for the KSA’s decision to invade Yemen, going as far as to allege that the Crown Prince forged King Abdullah’s signature on the royal decree committing ground troops to the conflict. In this context, Dr. Aljabri also recounted his conversations with various U.S. officials, including the then National Security Advisor, Susan Rice, regarding the conflict in Yemen.

Dr. Aljabri’s Second Stay Motion

62The specific origins of the Proffer trace to Dr. Aljabri’s efforts to schedule his Second Stay Motion in early 2022, shortly after Judge Gorton of the U.S. District Court of Massachusetts dismissed the Massachusetts Action on the basis that Dr. Aljabri could not defend the recognition and enforcement proceedings in the U.S. without being able to disclose information covered by the invocation by American officials of state secrets privilege under American law.

63Following the release of this U.S. Decision, in seeking to schedule his Second Stay Motion, Dr. Aljabri added a request to stay the Action based on the U.S. Decision, notwithstanding that the s. 38 process was ongoing in Canada.

64There were deadlines in place for Dr. Aljabri’s delivery of materials for the Second Stay Motion, in May and then in July of 2022, but Dr. Aljabri did not meet either deadline.

65Instead, in mid-May 2022, apparently unbeknownst to the plaintiffs at that time, Dr. Aljabri’s counsel contacted Canadian counsel for the U.S. government and warned that Dr. Aljabri intended to file materials in the Second Stay Motion containing potentially injurious or sensitive information. Counsel for the U.S. government cautioned Dr. Aljabri’s counsel that Dr. Aljabri could not file potentially sensitive or injurious evidence and was required to provide notice under s. 38 of the CEA (which Dr. Aljabri had previously done). In addition, counsel for the U.S. government ensured that the AGC was alerted to Dr. Aljabri’s stated intention of (potentially) breaching the CEA.

66The AGC, in turn, (repeatedly) advised Dr. Aljabri’s counsel of Dr. Aljabri’s obligation to provide notice under s. 38 of the CEA and insisted that Dr. Aljabri could not file such materials in the Action until the existing s. 38 process was complete.

67Dr. Aljabri’s counsel responded that Dr. Aljabri did “not accept that s. 38 of the Canada Evidence Act applies in these circumstances,” and, in late May of 2022, threatened that Dr. Aljabri would file supplementary motion materials (for the Second Stay Motion), by June 6, 2022, to include material subject to the outstanding CEA Notice and other sensitive or potentially injurious information, unless prevented from doing so by “an intervening court order.”

68In response to this stated intention, which was repeated by Dr. Aljabri’s counsel on June 1, 2022, an official from the Canadian Security Intelligence Service (“CSIS”) provided notice, under s. 38 of the CEA, that the CSIS official believed that Dr. Aljabri may be disclosing sensitive or potentially injurious information in his supplementary affidavit to be filed on the Second Stay Motion.

69The AGC, in these circumstances, advised of its intention to seek an injunction to prevent Dr. Aljabri from filing those materials. Instead, however, before the AGC had scheduled a hearing of its proposed injunction, Dr. Aljabri consented to an order precluding him from serving or filing any materials on the Second Stay Motion that may contain sensitive information, pending a review of this evidence by the AGC.

70In that context, the AGC commenced an application to the Federal Court seeking to uphold its prohibition against Dr. Aljabri disclosing certain information subject to s. 38 of the CEA.

71The plaintiffs speculate that by the time of the AGC’s notice of its CEA application, which was given in June 2022, six days before the final court-ordered deadline for Dr. Aljabri to file his materials on the Second Stay Motion, those motion materials must have been near completion.

72Based on that assumption, and the related assumption that Dr. Aljabri would provide the AGC with his supplementary motion materials for the AGC’s review relative to s. 38 of the CEA, the plaintiffs followed up with Dr. Aljabri over the ensuing months, raising questions and concerns about the apparent delay in Dr. Aljabri providing those materials to the AGC.

Plaintiffs First Advised about Proffer in September of 2022

73At a case conference on September 27, 2022, the plaintiffs say that Dr. Aljabri’s counsel divulged, for the first time, that rather than providing the AGC with a copy of his proposed affidavit materials for the Second Stay Motion, Dr. Aljabri had instead provided the AGC with an unsworn “solicitors’ brief”– the Proffer.

74The Proffer was described as being comprised of information from Dr. Aljabri’s “head” reduced to writing (and accompanied by a number of relevant contemporaneous documents in Dr. Aljabri’s possession – which was later confirmed to total 17 such documents).

75In a statement repeatedly referenced by the plaintiffs, Dr. Aljabri (or his counsel) advised that he had followed this approach – creating the Proffer – rather than simply providing his existing motion materials, in order to ensure that the “full waterfront” of information relevant to his defence, and potentially engaging s. 38 of the CEA, was provided to the AGC and the Federal Court for review.

76The stated premise of Dr. Aljabri’s approach in preparing the Proffer, supported by the AGC, was that by providing the full universe of relevant information in the Proffer, it would obviate the need for recurrent applications to the Federal Court throughout the discovery and trial process.

77In addition, each of Dr. Aljabri and the AGC have suggested that using the Proffer is consistent with that approach taken in ongoing criminal proceedings in R. v. Ortis, 2023 ONSC 6631; Canada (Attorney General) v. Ortis, 2022 FC 142 (“Ortis s. 38 Decision”), which Dr. Aljabri’s counsel has described as a “criminal analogue” to this Action.

78In that case, Mr. Ortis, a former RCMP officer, who was charged with offences under the Security of Information Act, R.S.C. 1985, c. O-5, was, like Dr. Aljabri, privy to information said to be sensitive or potentially injurious to national security.

79Also like Dr. Aljabri, Mr. Ortis maintained that he needed to lead some of that sensitive information in support of his defence. In the circumstances, Mr. Ortis prepared a summary of his anticipated evidence (to be given in his criminal trial), and that summary was used to pre‑clear his testimony through the s. 38 process in a manner that sought to preserve his right to silence, and his right to make full answer and defence: see Ortis s. 38 Decision, at paras. 20-24.

80The plaintiffs point out and emphasize that in Ortis, the trial judge was provided with the summary of Mr. Ortis’ anticipated evidence on the basis that this was necessary in order for the judge to fairly adjudicate Mr. Ortis’ stay motion and various other evidentiary issues at trial.

81In this Action, however, Dr. Aljabri has taken the position from the outset that the entirety of the Proffer – initially including all facts therein – is subject to litigation privilege, and would remain privileged vis‑à‑vis the plaintiffs, even after the document had been redacted by the AGC, filed with the Federal Court, and relied upon in argument. Skipping ahead, I note that Dr. Aljabri, as discussed below, has maintained that position vis-à-vis the plaintiffs, and asserts the same position vis-à-vis me, as trial judge.

82The motion before me is not the first time the plaintiffs have challenged Dr. Aljabri’s claim of litigation privilege over the Proffer and sought its production.

83The plaintiffs acknowledge the inescapable fact that in their previous such motions, before Kane J.’s recent s. 38 decision, this court and the Federal Court have declined to undercut Dr. Aljabri’s privilege claim or to order disclosure of the Proffer. The plaintiffs point out, however, that in responding to these past motions, Dr. Aljabri emphasized the function and utility of the Proffer as an efficient means of pre‑vetting the evidence comprising his defence, obviating the need for the AGC to attend at discoveries or trial to raise objections and potentially having to bring recurrent applications to the Federal Court.

84Turning from its recitation of important background facts to the application of those facts in its motion for production of the Proffer, after reviewing certain salient aspects of the process mandated by s. 38 of the CEA, and the three-part test from Canada (Attorney General) v. Ribic (F.C.A.), 2003 FCA 246 (“Ribic”), typically invoked to guide specific determinations thereunder, the plaintiffs emphasize again what they characterize as the paradox within Dr. Aljabri’s position. Dr. Aljabri’s “incentives,” they say:

…have always been misaligned with the s. 38 regime: [Dr. Aljabri] nominally asks the Federal Court to authorize the release of any sensitive or potentially injurious information, but he is best served if the Federal Court prohibits disclosure of information and there is uncertainty as to what [Dr. Aljabri] can and cannot say in aid of his defence, which in turn provides him with a stronger basis to move to stay this Action (as he intends to do).

85The plaintiffs note that the AGC and the Federal Court have now reviewed and rendered decisions about four sets of materials.

86In addition to the Proffer, those materials include the Confidential Appendix to the affidavit sworn by Dr. Aljabri in June 2021, in support of the First Stay Motion. As noted above, the plaintiffs have received and reviewed, since the Confidential Appendix was first submitted to the AGC for review, increasingly unredacted versions of the document, including as released by the Federal Court (with a non‑injurious summary imbedded in the document).

87The materials also include, secondly, the Exhibit to the Confidential Appendix (being a 2013 Report to the King on expenditures made pursuant to the Allocation). The Federal Court has confirmed that a redacted copy of the Exhibit, returned to Dr. Aljabri and produced to the plaintiffs in June 2023, may be used by the parties to the litigation so long as it is not produced publicly.

88Finally, apart from the Proffer, the reviewed materials include a brief of 17 contemporaneous documents included with the Proffer, said by Dr. Aljabri to be the only documents raising s. 38 issues. Redacted copies of the 17 documents were returned to Dr. Aljabri and produced to the plaintiffs, also in June 2023. The plaintiffs note that apart from two documents, the remaining 15 documents contain only minimal redactions. The Federal Court has confirmed that there is no restriction on the parties’ use of these documents, again provided that they are not disclosed publicly. The plaintiffs say that, notwithstanding Dr. Aljabri’s earlier suggestion that these 17 documents were the only ones raising s. 38 issues, it is evident that there are additional documents under review by the AGC.

The Nature and Stated Purpose of the Proffer

89With respect to the Proffer itself, repeating some of the propositions set out in their background brief, the plaintiffs emphasize:

(a) The Proffer has been described by Dr. Aljabri’s counsel as an unsworn “solicitors’ brief” akin to a “lawyer’s memo to file” assembled from information taken from Dr. Aljabri’s “head” and reduced to writing (and, as noted, accompanied by a limited number of contemporaneous documents in Dr. Aljabri’s possession);

(b) The Proffer was prepared specifically to convey information to the AGC and for no other purpose. Dr. Aljabri’s stated justification for this approach was to ensure that the “full waterfront” of information relevant to his defence and potentially engaging s. 38 of the CEA would be provided to the AGC for review in a single document;

(c) Dr. Aljabri knew that the Proffer would be widely disseminated, both to the AGC and to third‑party security partners. The plaintiffs assert that there is no direct evidence that Dr. Aljabri took the position that the Proffer was privileged when it was provided to the AGC, or otherwise sought to limit or control the AGC’s use of the Proffer on the basis that it was subject to litigation privilege;

(d) Dr. Aljabri has previously insisted, in his submissions on the relevance of the information contained in the Proffer, that the Proffer does not contain extraneous information;

(e) Dr. Aljabri’s counsel now concedes that there can be no privilege in the factual information contained in the Proffer (or the contemporaneous documents), which would be disclosed in this Action (subject to the limitations imposed under s. 38 of the CEA). The plaintiffs quote directly from Dr. Aljabri’s factum filed in the Federal Court, saying: “[Dr. Aljabri] does not claim litigation privilege over the facts contained in the Proffer. Those facts, which are the subject of the [AGC’s] review and this Court’s adjudication, will likely come out in the Fraud Action;”

(f) Dr. Aljabri’s counsel has also represented that the Proffer was drafted in a manner such that it would “not be complicated to segregate out…the facts” from the other portions of the Proffer. In fact, Dr. Aljabri’s counsel suggested that once redacted, it would be appropriate to consider whether the plaintiffs should receive a copy of the Proffer; and,

(g) Dr. Aljabri has given an undertaking to the Court that any non-injurious summaries prepared by the Federal Court on the redacted information in the Proffer will be given to the plaintiffs.

90The plaintiffs emphasize, repeatedly, that Dr. Aljabri justified his creation and use of the Proffer on the basis that, as set out above, it was the most efficient way to put the full universe or “waterfront” of relevant information before the AGC and the Federal Court, thereby avoiding multiple applications to the Federal Court throughout the discovery and trial process for rulings as to s. 38-based restrictions on information sought to be adduced.

91In that regard, the plaintiffs also point repeatedly to an exchange at the first case conference before Kane J. in the Federal Court, after Dr. Aljabri first disclosed that he had created the Proffer, in which counsel for Dr. Aljabri (being a counsel added to Dr. Aljabri’s legal team at that time because of his extensive experience in s. 38 proceedings) interacted with Kane J. as follows:

MR. KAPOOR

[Dr. Aljabri’s counsel]: So this is why the content that’s been filed or provided [in the Proffer]…to the Attorney General is comprehensive and is essentially the solicitor’s brief. And when we get to your ruling, it will cover the waterfront in terms of content. So when we go to a discovery, let’s say, or Mr. Adair does, and a question gets asked, it will activate portions of your ruling and the answer will be, ‘I cannot answer it for national security reasons.’ If there’s an affidavit that’s filed, it will respect your ruling and not contain content that is improper. Our expectation is that the government and your ladyship will no longer be involved after the ruling because the content that you’ve been given, you haven’t seen it yet but [counsel for the AGC] has, is comprehensive and covers the whole defence. So that is why the information has been prepared in the way that it has been. It is the full defence that would be advanced in this case. So that when we come out of this, the remnant is all that this defendant will be able to advance and will respect your order along those lines. So we don’t expect to have a situation where you might see in a crime case – recently I know in Ottawa there was where issues arose and section 38 claims were made that were unforeseen. From this perspective, we expect there to be very little that’s unforeseen, at least from the defendant’s perspective. And when you see the document, you will see that it is comprehensive and covers the full scope of his defence.

JUSTICE KANE: Okay. So it is fair to say that, as would be my assumption, after the Court determines the section 38, the Court is functus, barring any appeal or whatever, and any issues that arise about the appropriateness of certain questions that are raised on cross‑examination would be subject to either refusals or objections in the ordinary course of that process?

MR. KAPOOR: Correct.

92The plaintiffs point out that Dr. Aljabri reiterated this same justification for the creation and proposed use of the Proffer – to promote efficiency at discoveries and trial and to avoid having to resort repeatedly to the AGC and/or the Federal Court for rulings – at regular intervals over the course of the three plus years of proceedings (which remain ongoing) following the above-quoted exchange in September of 2022.

Justice Kane’s Confirmation of the Purpose of the Proffer

93Moreover, as again the plaintiffs submit, both the AGC and the Federal Court have endorsed the efficiency-based rationale for the Proffer – as opposed to affidavit evidence per se – functioning as the touchstone for the Court’s creation of a roadmap at the outset to avoid evidentiary pitfalls necessitating repeated recourse to the AGC and the Court. In terms of the Federal Court’s confirmation of that rationale, Kane J. wrote in Canada (Attorney General) v. Al Jabri, 2023 FC 40, in the first motion before the Federal Court, referred to by Sakab in the proceeding as the “jurisdiction motion”:

[178] As Al Jabri explained, the proffer was drafted to provide all the information that was likely to be otherwise disclosed in the course of the fraud action to the AGC for review and to avoid a series of notices and section 38 applications as the litigation unfolds and to avoid the uncertainty about what information can be disclosed.

[179] The AGC may bring a section 38 application at any time, as necessary, even as a trial is in progress or a witness is about to give evidence. This would halt the underlying proceeding while the section 38 application is determined. In the present case, the AGC could be required to bring one or more section 38 applications as the litigation in the Ontario Superior Court of Justice progresses if and when further notices are given that sensitive or injurious information is about to be disclosed. The AGC may even need to be present to guard against disclosure in the absence of a notice. This ad hoc approach would impact the litigation in ways that may be more detrimental than resolving the section 38 claims at the outset, to the extent possible.

[180] Although Sakab views the creation of the proffer and the assertion of litigation privilege with suspicion, it may be more efficient to deal with as much information as possible in one application to avoid further delays in the underlying litigation. Although the Court does not encourage the creation of new documents for a section 38 application, the present circumstances may warrant this approach.

94As can be seen, and as the plaintiffs fairly submit, it was clearly part of the Federal Court’s assessment and ultimate approval of the Proffer that, being a comprehensive encapsulation of the evidence that Dr. Aljabri would or might rely upon in his defence, this would allow the AGC and ultimately the Federal Court largely to delineate, in a single all-encompassing exercise before the discoveries in this Action and the trial in this court, what information within that comprehensive universe of information would have to be redacted in the interest of sensitive national security concerns.

95I suspect the notion that, as a result of the s. 38 determinations based on the Proffer, the AGC could more or less stay on the sidelines throughout the Superior Court proceedings, and that the Federal Court might be entirely functus, is likely somewhat utopian and unattainable. It is nonetheless clear and unequivocal that the Federal Court’s acceptance of the Proffer for these purposes, rather than insisting on proposed sworn evidence, was in large part premised, explicitly, on reducing, if not eliminating, ongoing recourse to the s. 38 apparatus.

Conclusions Flowing from the Purpose of the Proffer

96In my view, a couple of important conclusions flow from this construction.

97First, as I expressed to counsel during the hearing of the motion, I am hard-pressed to see how, as trial judge, separate and apart from routine objections and evidentiary issues unrelated to the Proffer and s. 38, I can adjudicate evidentiary disputes in relation to the Proffer and s. 38 of the CEA without access and resort to the unredacted Proffer itself.

98I accept and appreciate that, notwithstanding the stated purpose of the Proffer to obviate the need for such resort, there may well be issues that arise during the course of trial that genuinely necessitate the intervention and involvement of the AGC, amicus, and potentially the Federal Court.

99Nonetheless, in my view, it will substantially promote trial efficiency if, when an objection is made relative to proposed evidence (during cross-examination or otherwise) based on s. 38 concerns, I can understand, by reviewing the evidence described in the Proffer, the context, and implications for the objection at issue.

100Informing this concern is the proposition, to which all parties agree, that the conception of relevance is different, and broader, for the purposes of the Federal Court’s analysis under s. 38 of the CEA than it is for purposes of the trial before me. To discern the relevance of proposed evidence at trial, I expect I will need to know how relevance has been framed in the Federal Court relative to evidence described in the Proffer, which will in turn necessitate my access to the Proffer (and the Federal Court’s s. 38 decision(s) on and regarding redactions of specific components thereof) in order to make an informed assessment, alive to national security concerns, on a given evidentiary issue.

101That is not to say that I wish to be making determinations, from my vantage point as trial judge, on the admissibility of sensitive and/or potentially injurious information in the Proffer about which the Federal Court has yet to rule. I have neither the jurisdiction nor the inclination to make such conclusions. Part of the advantage of my access to the unredacted Proffer would be to allow me to identify such issues as having not yet been adjudicated and appear to fall under the s. 38 regime.

102In addition, in keeping with the notion of trial efficiency, in part explicitly animating the Federal Court’s reliance on the Proffer, access to the Proffer will also allow me to identify information that the Federal Court has squarely opined upon, in which instances I will necessarily respect and defer to such determinations.

103The plaintiffs argue that, unless I, as trial judge, have access to the unredacted Proffer, it in effect leaves the “gatekeeping” function relative to the contents of the Proffer in the hands of counsel for Dr. Aljabri. Dr. Aljabri’s counsel denies any wish to occupy that role, and points out that, on an objection‑by‑objection basis, the AGC, and potentially amicus, who will have the benefit of unfettered access to the unredacted Proffer, may intervene and guide this court, with an option to engage the Federal Court for definitive rulings, as issues emerge.

104While I accept that engaging this structure may prove necessary on occasion, where genuinely unanticipated issues arise, I would respectfully observe that to rely on that apparatus as the first recourse to assess and determine issues as and when they arise is to invite the very inefficiency that Dr. Aljabri’s representations to the Federal Court, and the Federal Court’s explicit acceptance of and reliance on those representations was expressly intended to avoid.

The Litigation Privilege Claim and Justice Cavanagh’s 2024 Decision

105These practical considerations do not obviate the need to engage with Dr. Aljabri’s reliance, apart from the s. 38 concerns, on litigation privilege as a bulwark to protect the contents of the Proffer.

106Not only is a claim for litigation privilege not to be circumvented without careful consideration, but I am mindful, on this issue, of the 2024 decision of Cavanagh J. in this Action in 2024 ONSC 6659 (the “Cavanagh Privilege Decision”), dealing – in the context of a motion for production of the Proffer because of Dr. Aljabri’s refusals during discovery – with some of the same questions before me, including in particular Dr. Aljabri’s assertion of litigation privilege relative to the Proffer.

107At the time of the motion before him, Cavanagh J. confirmed that, although Dr. Aljabri had refused to produce the Proffer, Dr. Aljabri had undertaken to provide a detailed summary of all material facts that had not been redacted from the Proffer by the AGC for s. 38 concerns.

108I understand that Dr. Aljabri has since provided that detailed summary. The plaintiffs say, however, that they were also expecting non‑injurious summaries of any redacted information prepared and provided by the Federal Court. Further, they say that the summary of unredacted facts that Dr. Aljabri delivered largely replicated the contents of the 100-page affidavit sworn by Dr. Aljabri in June 2021 and did not provide much in the way of relevant information that the plaintiffs did not already possess.

109In addressing the issue before him as to whether or not the Proffer was protected by litigation privilege, Cavanagh J., after reviewing the statutory scheme of s. 38 of the CEA, discussed the legal principles guiding the determination of whether or not a litigation privilege is established, focusing in particular on the Supreme Court of Canada’s leading decision in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319.

110Among other aspects of the Blank decision, Cavanagh J. noted the Supreme Court’s confirmation that the object of litigation privilege is to ensure the efficacy of the adversarial process, and the importance to that goal of parties being left to prepare their contending positions “in private, without adversarial interference and without fear of premature disclosure”: Cavanagh Privilege Decision, at para. 31.

111Justice Cavanagh confirmed the onus, on the party asserting the privilege, to establish, with respect to each document at issue, that the dominant purpose for its creation was existing or contemplated litigation. His Honour found that Dr. Aljabri had satisfied the onus of establishing that the Proffer was created for the dominant purpose of preparing for this Action: Cavanagh Privilege Decision, at para. 45.

112The plaintiffs argued before Cavanagh J., as they did before me, that any privilege that could have existed in the Proffer has been waived as a consequence of Dr. Aljabri’s litigation conduct. Indeed, it appears that the plaintiffs asserted the same specific instances of waiver – disclosure of the Proffer to the AGC outside of a protected relationship and resulting disclosure by the AGC to third parties, disclosure of the Proffer to the AGC in the absence of a clear statutory mandate to do so, and on the basis of Dr. Aljabri’s intention to ask the court to dismiss this Action in light of the refusal of the AGC to authorize disclosure of the redacted information leading to Dr. Aljabri’s inability to mount an adequate defence – all of which were considered and rejected by Cavanagh J. at the time: see Cavanagh Privilege Decision, at paras. 52, 64-79.

113The one potential avenue that Cavanagh J.’s decision appears to have left open to the plaintiffs’ waiver argument is in the context of a further stay motion to be brought by Dr. Aljabri, depending on the specific use by Dr. Aljabri of the Proffer in that setting. In that regard, Cavanagh J. noted that there was “no pending motion by Dr. Aljabri to stay the action,” such that it would be premature for His Honour to rule on whether a stay motion, if brought, “will involve the use of the Proffer in such a way as to result in a waiver of privilege”: Cavanagh Privilege Decision, at para. 74

114While Dr. Aljabri has confirmed his intention to renew his stay motion at the time of trial, I do not think, given that the trial is over a year away, that the stay motion is actively “pending” at this time, and it remains speculative to guess at what precise use Dr. Aljabri will seek to make of the Proffer for purposes of that motion. Accordingly, a finding of waiver of the privilege based on the probable or expected use of the Proffer in the context of a stay motion remains, in my view, uncertain and premature. I can revisit this issue when the stay motion actually proceeds, with the benefit of knowing what use Dr. Aljabri makes of the Proffer in that context.

Consideration of Plaintiffs’ Additional Arguments re Waiver of Litigation Privilege

115The plaintiffs have added, beyond their submissions before Cavanagh J., some trial‑related arguments as to why the privilege in the Proffer has been or inevitably will be lost.

116In that vein, the plaintiffs argue that litigation privilege is lost when a witness is required to testify with reference to a nominally litigation-privileged document, including where the witness has made a prior statement under oath or where the document will be used to refresh the witness’ memory. To similar effect, the plaintiffs say, it is clear that an individual called as an expert witness must disclose the “foundational” information, including documents, that inform their testimony, even if those documents would otherwise be covered by litigation privilege.

117The plaintiffs argue that Dr. Aljabri has already selectively relied on the directions and advice set out in the Proffer (and Redacted Proffer) to justify his litigation positions in the Action. Dr. Aljabri’s counsel has repeatedly confirmed that in determining whether or not Dr. Aljabri can answer questions (to this point on discovery), counsel necessarily consulted the AGC’s redactions to the Proffer. The plaintiffs predict, fairly I think, that this same ongoing reference to the redacted Proffer is likely to continue at trial.

118The plaintiffs argue, first, that having relied upon the Proffer (as redacted) to assert that he has acted in good faith and complied with his discovery obligations, Dr. Aljabri cannot shield the Proffer and Redacted Proffer from disclosure. The plaintiffs rely, for that proposition, on the decision of the Court of Appeal of Alberta in CNOOC Petroleum North America ULC v. ITP SA, 2024 ABCA 139, 495 D.L.R. (4th) 639. The court said in that case that a privilege may be lost “when a party relies on a privileged record…and argues it acted in good faith based on the contents of the privileged record”: at para. 48.

119In that case, the issues about waiver arose in circumstances in which a party experienced a pipeline failure and provided copies of reports, which were originally prepared in anticipation of litigation, to two different regulators. In addition, the party referred at a press conference, not to the reports themselves, but to certain of the investigations and remedial steps discussed in the reports. In effect, the court held that, because it was known to the company that the regulators to whom the reports were provided would further disclose them in the context of regulatory steps and proceedings, disclosure of the reports to those regulators was inconsistent with an intention to maintain the privilege: CNOOC, at paras. 63-67. Referring to the investigations (and not the reports per se) at a press conference, on the other hand, was not found to undermine an intention to maintain the privilege: CNOOC, at para. 78.

120In my view, the case does not particularly assist the plaintiffs’ argument that there has been a waiver of privilege in the Action at hand. In this Action, Dr. Aljabri provided the Proffer to the AGC in the face of a statutory compulsion to alert the government of information sought to be adduced that would be sensitive and potentially injurious. Even if Dr. Aljabri knew that the AGC would or may disclose the Proffer to the Federal Court and to amicus, this did not change the fact that Dr. Aljabri had no choice but to provide the information in question, as held by Cavanagh J. in the Cavanagh Privilege Decision, at para. 72. I agree with Cavanagh J. that choosing to create the Proffer, rather than the expected affidavit material, does not alter the analysis or obviate the privilege in the circumstances: at para. 75.

121I find that Dr. Aljabri’s reference to and reliance on the Redacted Proffer (and comparing it to the unredacted Proffer) to guide his answers bespeaks, or at least is consistent with, an ongoing effort to maintain compliance with Dr. Aljabri’s statutory obligations, rather than an intended or even unintended waiver of the privilege. That is, Dr. Aljabri, in light of the redactions to the Proffer, felt unable to disclose information subject to those redactions; to explain that determination during discovery does not constitute a waiver of the privilege.

122The plaintiffs’ arguments about Dr. Aljabri’s expected use of the Proffer and the s. 38 redactions, at trial, were not squarely addressed by Cavanagh J. in his 2024 decision (His Honour was necessarily primarily focusing at that stage on issues arising in the context of examinations for discovery).

123As set out above, I believe that my own access to the Proffer will be critical to my ability to preside over and ensure a reasonably efficient trial. I appreciate in making that observation that litigation privilege, if established and not waived, protects the subject of the privilege not only from other parties but from the court.

124However, given the explicitly stated purpose of the Proffer to promote trial efficiency – a notion promulgated by Dr. Aljabri and endorsed by the Federal Court – I find that maintaining the privilege vis‑à‑vis the court will in fact undermine Dr. Aljabri’s own stated intention for the Proffer. The very purpose for which the Proffer was said to be created connotes a willingness – and in my view an imperative – for the court to have access to the Proffer to allow for an efficient trial. I find that this explicit intention for the Proffer waives any claim for privilege vis-à-vis the court.

125Relative to the plaintiffs, the suggested waiver for which the plaintiffs argue is not so clear‑cut.

126The plaintiffs are entitled, as confirmed by Kane J. in her s. 38 decision, to all non-privileged facts from the Proffer, and to the non‑injurious summaries of potentially injurious matters. I believe that the plaintiffs may have received this information, but if not, it should be provided forthwith.

127It may also prove to be the case that, to ensure fairness at trial and to balance the competing considerations at play, the plaintiffs will have to be privy to information currently in (or which may be in) the redacted category, or to information arising at trial for which no determination has yet been made. In those circumstances, as discussed in relation to trial protocol issues, below, additional measures will or may have to be put in place to continue to protect sensitive information from unwanted public exposure.

128In my view, on balance, it remains premature to make a definitive prospective ruling at this stage as to what additional access beyond that, if any, the plaintiffs should have to information in the Proffer.

The Need for a Trial Protocol to Ensure Fairness

129However, to balance competing considerations, I do propose, in addressing the protocol for the trial, to institute mechanisms with a view to ensuring trial fairness for all concerned.

130In that regard, for purposes of the third day of the hearing before me, both the plaintiffs and the AGC provided reasonably extensive proposals for a protocol to manage Proffer-related evidentiary issues as they arise at trial.

131Dr. Aljabri provided limited written and oral submissions on the protocol for trial, but as noted at the outset of this endorsement, was given additional time to file supplementary written submissions, to which the plaintiffs and the AGC were given an opportunity to respond.

The AGC’s Suggested Trial Protocol

132Starting with the protocol suggested by the AGC, the AGC’s submissions referenced Kane J.’s decision applying s. 38 of the CEA, and also referenced Kimmel J.’s March 13, 2026 endorsement, in which Her Honour made it clear that, notwithstanding Kane J.’s comprehensive determination about what Dr. Aljabri can and cannot disclose in the Action, practical questions on the conduct of the trial remain.

133The AGC begins its submissions with a reminder that the Federal Court retains exclusive jurisdiction under s. 38 of the CEA to rule on national security privilege claims. As noted, I have no quarrel with that proposition.

134Against that backdrop, the AGC suggests the following options (which I have to some extent summarized and paraphrased), to ensure that sensitive and potentially injurious information does not find its way inappropriately into the public domain. The AGC advises that its suggested protocol borrows to an extent from a protocol developed and deployed in a recent Federal Court proceeding, Abousfian Abdelrazik v. His Majesty the King in Right of Canada and Lawrence Cannon (November 1, 2024), Ottawa, T-1580-09 (F.C.):

(a) AGC counsel with knowledge of the Proffer and the s. 38 decision could be present during the trial (and seek standing as necessary) to raise s. 38 objections if the need arises. The AGC clarifies that it would only need to be present “during the part of the trial where s. 38 information could arise.” The AGC posits that, because Dr. Aljabri will know the information about which he cannot testify, any objections “would primarily be to cross‑examination.” With due respect to the AGC, I would suggest that this presupposition as to the limited circumstances in which s. 38 objections might arise may well understate the array of circumstances in which such concerns may arise. For example, it may be that Dr. Aljabri’s co-defendants who may testify may themselves have information trenching on protected areas. In my view the potential for s. 38/Proffer issues to arise at virtually any stage within the evidence underlines the need for me, as the trial judge, to have an appreciation and specific information to recognize and address such issues as may arise (at any point in the trial). That is not to say that I would purport to rule on issues in which undetermined s. 38 implications may surface; rather, it would allow me to rule on those issues on which I properly can, and to recognize those issues for which additional steps may be required, including ensuring the participation of the AGC as required for issues that arise in the AGC’s absence;

(b) In terms of those additional steps, the AGC suggests that where a s. 38-based objection is made to a question (and, I would add, presuming that the s. 38 issue is not squarely addressed by the decision of Kane J. (or of the Federal Court of Appeal, as the case may be)) then the question at issue would not be answered and would be “tabled”. At the end of the questioning, or the end of the area of questioning in which the objected-to question was asked, the questioning party would have the option of withdrawing the question (if, for example, the ostensible importance of the question has been overtaken by other evidence adduced during the balance of the examination);

(c) The AGC suggests, if the parties still require an answer, that I would then undertake a relevance analysis. If I determine that the question is not relevant (and again, here, I confirm the importance in making that determination, of having access to the Proffer and the redactions), then it need not be answered. If it is relevant, then the AGC suggests that it, perhaps with the assistance of an amicus curiae, if one is appointed, could consider the matter further, referencing the Federal Court s. 38 decision, and assess whether or not the issue is prohibited from disclosure. The AGC says (subject to my determination of the litigation privilege claim) that I may have knowledge of the prohibited information and “can concur” with the AGC’s position;

(d) Where the information that is the subject of an objection is not clearly within the Federal Court’s order or is in “the gray zone,” then the AGC suggests that the provisions of s. 38 must be followed and a s. 38 notice issued. In that circumstance, the AGC says that it would make the initial determination of whether disclosure of the information is prohibited, which in turn may require that the potential evidence be provided to the AGC confidentially so that a determination be made on whether the information can be disclosed. The AGC maintains that its decision would have the force of law, although the Federal Court may, on application, confirm in whole or in part, or reject, the AGC’s decision. The AGC acknowledges that the s. 38 process through the AGC and the Federal Court “takes time.” It adds that the AGC, in order to reach a determination about a given s. 38 issue, may have to consult with “subject matter experts from the relevant government agency,” and may also “need to consult with foreign partners, even before turning to the Federal Court”. The AGC says that, given this factor, I may wish to consider “staggering the evidence of witnesses or breaking the trial into fixed intervals;”

(e) As a means of avoiding the kinds of potentially time-consuming entanglements envisioned above, the AGC suggests that, in order to obtain a “pre-vetting” of evidence, the parties could provide questions or areas of evidence in advance to the AGC for review for s. 38 issues. The AGC says this information could be subject to a s. 38 notice, AGC determination, and Federal Court decision, but that this could be done far in advance of trial (in order to avoid the kinds of delays otherwise potentially arising);

(f) Appreciating, as I do, that issues may well arise that are not contemplated and addressed within the four corners of Kane J.’s s. 38 decision, I also observe that the “pre-vetting” function postulated by the AGC is essentially what, according to Dr. Aljabri’s submissions to her and Kane J.’s adoption of those representations in her decision, the s. 38 proceedings were already intended to accomplish. So, while continuing to understand the need to account for issues that may arise that no-one has yet contemplated, I also trust and expect that any such unaccounted for issues should be few in number, and that in every instance the first point of reference should be an expansive but scrupulous review of Kane J.’s decision, and the redactions, to determine if the issue is already encompassed therein;

(g) With respect to certain Canadian government officials whom Dr. Aljabri seeks to call to testify in his defence, the AGC notes that their evidence may be highly sensitive such that, again, s. 38 notices may have to issue in respect of their anticipated testimony. This includes names of officials whose identities are expressly protected under the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. The AGC suggests, if the evidence of these witnesses is relevant to the trial, but cannot be disclosed in a courtroom (owing to security sensitivity), then one option may be to conduct their examinations in writing, requiring both direct examination questions and cross-examination questions to be submitted in advance to the AGC in writing. As an alternative, the AGC proposes that it could itself conduct the examination of these witnesses and provide a transcript and/or a recording of the evidence. The AGC notes that this process was followed by the Federal Court in Ribic, in which the s. 38 application judge ordered a federal Department of Justice lawyer to examine two defence witnesses and provide an expurgated transcript to the trial court. The Federal Court of Appeal, at para. 61, found that this procedure was not unfair, and was appropriate in the circumstances;

(h) The AGC also observes that, while mindful of the open-court principle, the court might consider, where there is a known risk that a witness may refer to s. 38 information, that guarding against injury to national security may warrant closing the courtroom to the public and sealing exhibits. The AGC acknowledges that this may require a motion on notice to the media, and says it is prepared to undertake such motion if and as necessary;

(i) The AGC points out that in Abdelrazik, a protocol was established to protect the identity of certain witnesses, including establishing a secure way of entering the courtroom and security screens, which the AGC says may prove necessary in this case;

(j) The AGC reminds the court that, in Kane J.’s decision, she referenced certain information that was under a s. 38 notice but which the AGC agreed could be disclosed to the parties for use at trial. The AGC proposes that in respect of such Protected Information, the AGC would seek an appropriate order (presumably by way of sealing and perhaps related steps).

135Finally, the AGC says that, to the extent that I determine that it is necessary and helpful to appoint an amicus to assist the court in conducting the trial in respect of sensitive national security matters, the AGC endorses the selection of the amici from the Federal Court proceedings, Colin Baxter and Siobhan Morris, both of whom, the AGC relays, have confirmed their willingness to assist the court, if necessary. I note that the plaintiffs support the appointment of amicus and specifically endorse the AGC’s proposal that Mr. Baxter and Ms. Morris should play that role. Dr. Aljabri does not oppose the appointment of an amicus but takes issue with the choice of Mr. Baxter and Ms. Morris, whom he labels – as I understand it, particularly in the case of Mr. Baxter – as biased, and thus unsuitable for the assignment. I will address the issues about amicus below.

The Plaintiffs’ Suggested Trial Protocol

136With respect to the other aspects of the AGC’s proposed protocol, the plaintiffs support many aspects of the AGC’s proposed approach, in some cases with suggested modifications, and reject other aspects of that plan.

137With respect to Dr. Aljabri’s evidence, the plaintiffs favour the idea of Dr. Aljabri’s counsel providing an affidavit setting out Dr. Aljabri’s entire examination-in-chief. Although in their initial written submission, the plaintiffs suggested that this affidavit be delivered by the end of May 2026, during oral submissions, as confirmed in their responding written submissions, the plaintiffs have softened that stance and request, instead, that, while Dr. Aljabri’s evidence should be provided to others to allow the vetting process to commence relatively soon, Dr. Aljabri’s affidavit of his evidence-in-chief need only be delivered to them at a reasonable juncture shortly in advance of Dr. Aljabri’s testimony at trial.

138The plaintiffs suggest, consonant with this portion of the AGC’s suggested protocol, that Dr. Aljabri’s counsel would submit the affidavit to me (assuming I have access to the Proffer, which as set out above I am ordering), and I would apply Kane J.’s decision and the redactions in the Proffer, with assistance from the amicus, if helpful. The resulting redacted document would serve as Dr. Aljabri’s examination-in-chief.

139As an alternative, the plaintiffs suggested that Dr. Aljabri provide in advance, still by way of affidavit, those portions of his evidence that he believes could raise s. 38 issues, and then follow the same process (my review and redactions leading to a final version of this portion of the evidence, with the assistance of amicus as required).

140Dr. Aljabri does not support any approach requiring him to provide his evidence, or a portion of his evidence, in advance. However, I note that during the oral submissions on the third day of the hearing, while maintaining his “going-in” position that none of the proposals are acceptable to Dr. Aljabri, counsel for Dr. Aljabri expressed the preference, even if I were to direct that some or all of Dr. Aljabri’s evidence-in-chief be reduced to writing, that counsel be allowed to conduct as fulsome an examination-in-chief, viva voce at trial, as possible. Counsel anticipates that Dr. Aljabri’s oral evidence will be impactful, and wishes to ensure trial fairness by facilitating Dr. Aljabri’s “day in court.”

141With respect to the cross-examination of Dr. Aljabri at trial, the plaintiffs propose that, when the plaintiffs cross-examine Dr. Aljabri in the ordinary course, the AGC and amicus should be in attendance. The AGC and amicus would raise any objections over questions asked by the plaintiffs that trigger s. 38 concerns. In keeping with the AGC’s suggestion, a question to which an objection is raised would be tabled and not answered by Dr. Aljabri at the time. Again, as proposed by the AGC, the plaintiffs agree that they should be asked, at an appropriate juncture (once the evidence or the relevant portion of it is complete), whether or not they are insisting that the tabled question(s) be answered. If the plaintiffs insist that the question(s) be answered, and if I agree that the question(s) is/are relevant, then the amicus could ask the questions in a sealed courtroom to produce a transcript of the disputed questions and answers. The plaintiffs propose that I would then apply Kane J.’s decision and the redactions from the Proffer to determine if and to what extent the questions and answers can be admitted. The resulting redacted transcript would then form part of Dr. Aljabri’s cross‑examination evidence and would be provided to the parties. Dr. Aljabri’s counsel would of course have an opportunity to ask re-examination questions.

142With respect to the Canadian Intelligence Witnesses, the plaintiffs propose that Dr. Aljabri would prepare and submit the examinations-in-chief of these witnesses in writing and deliver them to the AGC. Those same questions would be given to the witnesses who would prepare answers in writing, which would then be redacted by the AGC lawyers in consultation with the amicus. The resulting redacted questions and answers would then be provided to the parties and would constitute these witnesses’ evidence‑in‑chief at trial.

143Similarly, with respect to the cross-examination of these witnesses, the plaintiffs would prepare their cross‑examination questions in writing based upon the redacted evidence-in-chief and would provide those questions to the AGC.

144Cross-examination questions provided to the AGC would then be provided to the witnesses who would prepare their answers in writing, which would then be redacted by the AGC lawyers in consultation with amicus. The resulting redacted questions and answers would constitute these witnesses’ evidence in cross‑examination.

145As an alternative approach to the evidence of these witnesses, the plaintiffs suggest that both Dr. Aljabri and the plaintiffs would prepare their questions (in examination-in-chief and cross‑examination, respectively), and then these questions would be provided to the AGC and amicus, who would examine the security witnesses, asking Dr. Aljabri’s and the plaintiffs’ questions, and then the transcript of the examination would be redacted by the AGC in consultation with amicus.

146I should note that for each of these exercises, the plaintiffs allow for the possibility that Dr. Aljabri might take issue with proposed redactions, and if so, the plaintiffs allow for the possibility for an expedited review by the Federal Court for a final determination.

147If there are U.S. Intelligence Witnesses who will testify, the plaintiffs note that a U.S. court may be involved in setting the terms for these examinations, and proposes deferring this issue until the parties have heard as to the plans/proposal in that regard, but suggest that the assumption be that those witnesses, too, would be examined by way of written questions and answers.

148I should note that the plaintiffs propose, for each of the potential steps set out above and within their suggested options for the trial protocol, deadlines for each such step.

Dr. Aljabri’s Position re Trial Protocol(s)

149Dr. Aljabri’s fundamental position with respect to a potential trial protocol is that there is no “workable” process for “managing” the s. 38 issues at trial. He maintains that the national‑security evidence is so central to litigating the issues in this case that it is impossible to conduct the trial.

150In effect, Dr. Aljabri argues that because, in light of the constraints on his evidence by virtue of s. 38, “He will not be able to do much more than state his name on the record.”

151To the extent that his evidence can proceed in some fashion, Dr. Aljabri contends that the AGC must be present throughout the trial in order to make s. 38 objections, and that, in addition, I should request that the Federal Court make a judge available to rule on objections as required.

152In his supplementary written submissions, provided as contemplated after I gave him additional time, as he requested, to provide further input with respect to a trial protocol, Dr. Aljabri reiterates his bottom-line submission that no protocol will cure the “extraordinary harm wrought upon Dr. Aljabri by s. 38, which guts his defence by precluding him from introducing evidence that is at the heart of his case.”

Responses of Plaintiffs and AGC to Dr. Aljabri’s Position

153With that premise in place – of which I have not lost sight in considering the balance of Dr. Aljabri’s submissions – he goes on to confirm, as I set out above based on his counsel’s submissions on day three of the hearing, that he is adamantly opposed to any process of reducing his evidence, or any part of it, to writing. Dr. Aljabri maintains that his credibility is paramount in this Action, and that it is critical for me to have the opportunity to assess his credibility based on in-person viva voce testimony.

154He is also opposed to my performing the process of reviewing and redacting any such proposed evidence-in-writing (as the plaintiffs propose, in part) and that, to the extent that any written evidence is required from Dr. Aljabri (appreciating that he opposes the entire notion of written evidence on his behalf), the AGC must be the one to undertake any review and redaction required, with the proviso that it may also be necessary to involve the Federal Court in that process.

155In keeping with the observations set out above, Dr. Aljabri proposes in his supplementary submissions (detailed in a schedule to those submissions, but easily briefly summarized) that he must engage immediately with the AGC, with timely reporting to the court, to ensure that questions that cannot be properly answered by Dr. Aljabri for s. 38 reasons are identified well in advance of trial. He further submits that, at trial, s. 38 objections are to be addressed by the AGC and amicus, largely following the precedent established in Abdelrazik.

156Dr. Aljabri emphasizes that his proposal applies only to his own evidence. It does not address either the Canadian Intelligence witnesses whom Dr. Aljabri has summonsed, nor the American Intelligence witnesses who are the subject of the Rule 36 Orders made by Cavanagh J. in these proceedings.

157Dr. Aljabri maintains that no protocol for these witnesses can be determined until after the AGC has taken a position on the evidence to be forthcoming from these witnesses, noting that the AGC has recently issued s. 38 notices in relation to this evidence.

158In keeping with the timetable established on the third day of the hearing, both the plaintiffs and the AGC had an opportunity to reply to the supplementary submissions for which Dr. Aljabri sought and was given time to deliver.

159The plaintiffs, in effect, express their disappointment that Dr. Aljabri, having asked for and having been granted additional time to deliver supplementary submissions about an appropriate trial protocol and process, did nothing much more than double down on his original position that no trial process is workable that is fair to Dr. Aljabri.

160The plaintiffs characterize the limited protocol suggested by Dr. Aljabri – under his protest that no process is workable – as a proposal to restart the s. 38 proceedings.

161The effect of Dr. Aljabri’s proposal, the plaintiffs assert, is to substitute the AGC for the trial judge, and to put in place a mechanism for ongoing and interminable review, in turn resulting in endless delay, which they say is Dr. Aljabri’s intention, and plays into his hands.

162The plaintiffs point out that trials implicating s. 38 issues are not impossible, and that this court has all the tools necessary to direct a protocol “that is practical, efficient and fair to the parties.” They say that no party is entitled to a “perfect” process (if such an outcome were even possible), but that all parties are entitled to a process that will allow the court to decide fairly on the merits of the case.

163For Dr. Aljabri’s evidence-in-chief at trial, the plaintiffs essentially repeat their two-option proposal as set out and discussed above, allowing specifically in this proposal for Dr. Aljabri to supplement his affidavit evidence with “appropriate viva voce evidence at trial”, and confirming that the plaintiffs would not expect to receive the written materials comprising Dr. Aljabri’s evidence-in-chief (as supplemented by viva voce testimony) until a certain specified number of days following the close of the plaintiffs’ case in chief.

164In the absence of any substantive proposal from Dr. Aljabri with respect to the evidence of the Intelligence representatives, the plaintiffs reiterate their original proposal with respect to those witnesses as well.

165The AGC, for its part, again emphasizes in its response to Dr. Aljabri’s supplementary submissions that the AGC and the Federal Court retain a statutory role, and jurisdiction, in any proceedings engaging s. 38 of the CEA.

166In terms of the limited scope and substance of Dr. Aljabri’s supplementary submissions as to the appropriate protocol, the AGC expresses its agreement with Dr. Aljabri’s proposed protocol, as set out in the schedule (Schedule B) to Dr. Aljabri’s supplementary submissions, that Dr. Aljabri should provide the AGC with focused information regarding the potential trial questions (anticipated in Dr. Aljabri’s examination-in-chief), and to provide a timely report to the court regarding the outcome of s. 38 consultations.

167The AGC also provides some helpful additional suggestions, and details about specific requirements based on the AGC’s past experience, for example in terms of what is required for a “secure room.”

168With respect to Canadian intelligence officials who have been summoned by Dr. Aljabri, the AGC confirms that it is still considering its decision under s. 38.03, regarding the proposed evidence of these current and former government officials. The AGC notes that in order to address national security concerns, it may be necessary to develop a different protocol for these witnesses (but the AGC does not, at this stage – understandably – provide proposed details of a protocol for this evidence).

My Directions re Trial Protocol and Related Items

169Having considered the parties’ respective submissions about the protocol for trial, I have decided and direct as follows:

(a) Amicus is to be appointed within seven days of the date of release of this decision. For the reasons set out below, I find that Mr. Baxter and Ms. Morris, assuming their willingness to do so, should again function in that role for the purposes of pre-trial steps and for trial;

(b) As mentioned, and for the reasons discussed, I am directing Dr. Aljabri’s counsel to provide me an unredacted copy of the Proffer, without which I do not expect I could preside over a fair and efficient trial. Given the additional steps that will follow the delivery of the Proffer, I direct Dr. Aljabri’s counsel to send it to me (which can be to my direct court email address so as to reduce any risk of the Proffer falling into the wrong hands) within 10 days of the date of the release of this decision;

(c) As noted above, Dr. Aljabri, if he has not already done so, is to provide the non‑privileged facts from the Proffer and the non-injurious summaries to plaintiffs’ counsel, also within 10 days of the release of this decision;

(d) Dr. Aljabri is to provide an affidavit deposing as to the aspects of his expected trial evidence that he anticipates will raise s. 38 issues, beyond the proposed evidence set out in his Proffer that has already been the subject of Kane J.’s s. 38 review. This affidavit of “new” sensitive evidence is to be provided to AGC and amicus by September 15, 2026. AGC and amicus are to suggest proposed redactions, if any, to the “new” evidence within a month of receiving the affidavit. They are then to provide both the unredacted affidavit and the proposed redactions to me. I will (or may) provide input as to the proposed redactions. If the redactions are agreed, then the redacted version of the affidavit will be provided to plaintiffs’ counsel at the conclusion of the plaintiffs’ case at trial, with an interval, if appropriate, to allow plaintiffs’ counsel to prepare for cross-examination of Dr. Aljabri;

(e) If the redactions are not agreed, and cannot be agreed owing to issues related to sensitive national or international security issues, then it may be necessary to enlist the assistance of the Federal Court – hopefully, Kane J. – for a determination about necessary redactions;

(f) With respect to cross-examination, the plaintiffs are to provide a preliminary set of cross‑examination questions to AGC and amicus by October 15, 2026. The same exercise and sequence of steps will be undertaken with respect to the proposed cross-examination, except that the cross-examination will not, of course, be provided to Dr. Aljabri. As noted, there will be an appropriate interval between the end of the plaintiffs’ evidence and the beginning of the defendants’ evidence to allow for the plaintiffs, who will receive at that point a redacted copy of the sensitive aspects of Dr. Aljabri’s evidence-in-chief, an appropriate opportunity for additional preparation for cross-examination;

(g) My hope and expectation is that during Dr. Aljabri’s testimony at trial, with the sensitive aspects of his evidence having been, by that time, twice-vetted, it should be possible, between the input of AGC and amicus, and my own access to the unredacted Proffer and to Dr. Aljabri’s affidavit concerning sensitive aspects of his evidence-in-chief, and to the specific redactions to those two documents, to manage the evidence without resort to the Federal Court (and the delays necessarily resulting from that consultation), but, again, to the extent that something unexpected and unmanageable arises, such resort may be required;

(h) Apart from the redacted portions of his proposed evidence, I do not propose to place any impediment on either Dr. Aljabri’s viva voce evidence-in-chief, or on the plaintiffs’ cross‑examination of him (other than as required by the usual rules of evidence);

(i) With respect to the Canadian Intelligence witnesses, I agree (and it does not appear to be particularly controversial) that each of Dr. Aljabri and the plaintiffs should prepare their proposed examinations (in the case of Dr. Aljabri, his examinations-in-chief and in the case of the plaintiffs, their cross-examinations) to the AGC and amicus well in advance of the trial, and I direct that this be done by November 15, 2026. Again, AGC and amicus shall determine the appropriate redactions to be applied, and then send the redacted examinations and cross‑examinations to me for my input;

(j) I propose to leave it to those Canadian Security witnesses to decide whether they prefer to answer the questions in writing, or instead to be asked the questions, viva voce, by the AGC (in which case a transcript would be generated of a given witness’ evidence to serve as the trial evidence of that witness);

(k) In the case of the Canadian Intelligence witnesses, I will receive, and expect to rely on advice from, the AGC in terms of any additional security measures recommended in the case of these witnesses, such as sealing the courtroom or the like (balancing the national and international security concerns against the open-court principle);

(l) In the case of any American Intelligence witnesses, I agree that it is appropriate to defer specific determinations as to what approach and measures should be in place with respect to any such evidence, with the proviso that the approach taken with respect to Canadian Security witnesses may serve as a “template,” in whole or in part, for the American Security witnesses, subject to input from U.S. authorities.

Discussion and Conclusion re Amicus

170All parties, in their recent round of submissions, addressed the question of whether or not the court should have amicus, and then the question of whether or not the amicus should be the same counsel who occupied that role within the Federal Court proceedings.

171As noted, all parties support the notion of engaging amicus, and indeed to varying degrees all parties’ suggested protocols envisioned specific roles for amicus.

172The only issue for determination is whether or not Mr. Baxter and Ms. Morris should serve as amicus in the circumstances.

173As previewed above, the plaintiffs support the idea of Mr. Baxter and Ms. Morris playing that role, and Dr. Aljabri vehemently opposes Mr. Baxter, in particular, but also Ms. Morris, serving in that capacity. The AGC takes no position as to the alleged biases of Mr. Baxter and Ms. Morris, but says that “from a trial efficiency perspective, Ms. Morris and Mr. Baxter are the logical choice.”

174On the trial efficiency point, in my view, that logic is compelling and unassailable. Ms. Morris and Mr. Baxter have clearly spent untold hours on this case, in particular working on the s. 38 issues, such that there can be no doubting their expertise on the specific issues that will or may arise, and such that there is no required “learning curve” for them to get up to speed.

175So, the only question is the allegation of bias that Dr. Aljabri levels against Mr. Baxter.

176In support of that allegation, Dr. Aljabri points out that, in the context of the most recent s. 38 proceedings before Kane J., Mr. Baxter is reported to have made submissions that Dr. Aljabri was utilizing s. 38 in bad faith in that none of the s. 38 information is likely to be relevant to the determination of whether or not the payments received by Dr. Aljabri and others were legitimate and authorized.

177Dr. Aljabri asserts that, having offered those submissions, Mr. Baxter is rendered “unable to serve this court neutrally.”

178The plaintiffs respond that Dr. Aljabri’s argument fundamentally misunderstands the role of amicus. They say that “the defining feature of amicus is that he or she owes a duty of loyalty to the Court alone, not to the parties” and that, “to be useful to the Court, the amicus must take positions with reference to the evidence and law,” which “must be formed independently and free from the influence of the parties”: see e.g. R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3.

179I agree. It is simply not the case that amicus is or should be precluded, in its effort to assist the court, from expressing its views on how certain issues should be handled, or that amicus is precluded from disagreeing with one party or another’s position(s) on those issues.

180With respect, I also believe that Dr. Aljabri’s position underestimates and ignores my ability as trial judge to consider the submissions of amicus just as I consider and weigh the submissions of the parties. That is, I determine what reliance to place on any such submissions and make my own determination as to the end result.

181Moreover, as alluded to above, Mr. Baxter and Ms. Morris have been immersed in this case and its unique evidentiary challenges for some time, and it will not be an easy matter simply to substitute in another amicus at this stage, without that particular experience.

182Further, all parties acknowledge the credentials and prowess of Mr. Baxter and Ms. Morris, and their extensive experience as amicus in other cases.

183I should note, as I advised the parties, that Mr. Baxter and I were once colleagues. For a few years, I believe over two decades ago now, I was in the Toronto office of a national firm while Mr. Baxter was in the Ottawa office of the firm. Mr. Baxter then left the Ottawa office, which closed, and set up a new firm with his partner Mr. Conway.

184While I hold Mr. Baxter in high regard based on my knowledge of his abilities and his impeccable reputation, he is not someone whom I knew particularly well or with whom I socialized when we were colleagues, and I have not kept in touch with him in the decades since.

185I am confident that our previous affiliation (as described above), will in no way detract from my ability to consider any submissions from him objectively and neutrally, and, again, I am satisfied that he is otherwise well-qualified and appropriately immersed in this matter such that he and Ms. Morris are the best choice to be, and should serve, as amicus.

Further Case Conference(s) as Required

186If, as may be the case, the parties require any clarification of this decision, and/or believe that it will be helpful to discuss the logistics and mechanics of implementing it, any party may convene a case conference through the Commercial List office.