Law360 Canada (May 19, 2026, 12:57 PM EDT) --

John L. Hill

Criminal defence counsel frequently find redactions in disclosure material. Sometimes large passages are obscured or “highlighted in black,” as I used to say. In November 2025, the Federal Court gave us some insight as to why and when such deletions are appropriate. That decision was Canada (Attorney General) v. Majcher, 2025 FC 1777.

The case concerned William Robert Majcher, a former RCMP officer charged under subsection 22(1) of the Security of Information Act for allegedly engaging in preparatory acts to assist the People’s Republic of China in conducting clandestine “extraterritorial policing” operations in Canada. The Crown alleged that in 2017, Majcher and associates gathered intelligence on a Chinese national living in British Columbia, tracked the individual, documented assets and planned confrontational tactics to pressure the target into cooperating with Chinese authorities. The alleged activities were linked to China’s so-called Operation Fox Hunt and Operation Sky Net programs.

The prosecution alleges that Majcher used his policing expertise and a network of former law enforcement contacts to benefit China’s Ministry of Public Security. Evidence expected at trial included emails, testimony from former RCMP officers, expert evidence on Chinese overseas operations, seized communications and statements Majcher made to police after his arrest. The Crown also alleged that Majcher attempted to persuade an associate of the target, identified as K.S., to cooperate with Chinese authorities.

Originally charged in Quebec in 2023, Majcher successfully challenged the province’s territorial jurisdiction. The case was then refiled in British Columbia, where the Attorney General of Canada authorized a direct indictment in 2025.

A major issue before the Federal Court concerned secret or redacted evidence. The Attorney General applied under s. 38 of the Canada Evidence Act to prevent the disclosure of information that, if released, was said to threaten international relations, national defence or national security. Although some redactions were later lifted, the court ultimately concluded that the public interest in protecting the withheld information outweighed the public interest in disclosure. Accordingly, the court confirmed the prohibition on the release of the remaining classified information.

The court applied the test set out in Canada (Attorney General) v. Ribic, 2003 FCA 246, which requires determining:


It was determined that secrecy prevailed in this case.

The court also imposed a temporary publication ban on its reasons to avoid interfering with Majcher’s pending criminal trial and with the existing publication bans ordered by the British Columbia trial court.

This judgment explains how Canadian courts apply s. 38 of the Canada Evidence Act when sensitive national security information is withheld in criminal or civil proceedings. The court focuses on balancing two competing public interests: protecting national security and ensuring a fair justice process.

The decision relies heavily on the framework established in R. v. Ahmad, 2011 SCC 6 and Ribic. The Supreme Court in Ahmad recognized that the government may sometimes face a conflict between protecting secret information related to national security and prosecuting criminal offences fairly. Parliament created the s. 38 process to reconcile these competing objectives whenever possible.

The court explained that under the Ribic framework, judges apply a three-step test when deciding whether sensitive information should remain secret or be disclosed.

At the first step, the party seeking disclosure must show that the information is likely relevant. In criminal cases, the threshold for relevance is low. It follows the principles from R. v. Stinchcombe, [1991] 3 S.C.R. 326, which requires the Crown to disclose all information that may reasonably assist the defence. Because the withheld material in the Majcher case formed part of the police investigation file and Crown disclosure brief, the judge accepted that it was relevant.

At the second step, the Attorney General of Canada must prove that disclosure would injure international relations, national defence or national security. The court stressed that claims of harm must rest on solid evidence and a realistic prospect of injury, not speculation. After reviewing confidential evidence in private, the judge concluded that disclosure would indeed cause injury to national security interests.

At the third and most important step, the judge balances the public interest in disclosure against the public interest in secrecy. The court examines how important the withheld information truly is to the accused’s ability to make a full answer and defence. While disclosure obligations under Stinchcombe are broad, s. 38 requires a stricter assessment of whether the information is genuinely significant to the defence case.

Federal Court Justice John Norris noted that information can assist an accused in many ways, including supporting investigations, legal applications, cross-examination and affirmative defences. However, after reviewing the Crown’s case, the anticipated evidence and the limited defence theory provided by Majcher, the court found that the withheld information had little or no practical value to his defence. Although the information technically met the relevance threshold, it had almost no connection to the charge, the Crown’s evidence or the defence strategy.

Because disclosure would cause significant injury to national security interests while offering little assistance to the defence, the judge concluded that the public interest in secrecy outweighed the public interest in disclosure. The court therefore confirmed the prohibition on releasing the remaining withheld information under s. 38 of the Canada Evidence Act.
 
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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