Members of Sikhs for Justice gathered at the Indian Consulate in Vancouver in March to call on the federal government to press charges in connection with the assassination of Hardeep Singh Nijjar.Jennifer Gauthier/The Globe and Mail
A Federal Court justice has appointed a pair of outside legal observers to help determine what sensitive intelligence should be kept secret from next year’s murder trial over the slaying of B.C. Sikh activist Hardeep Singh Nijjar.
The move is part of a continuing federal court proceeding, started in December, to review confidential information connected to the coming trial. Lawyers for the Attorney General of Canada have warned that the information may harm international relations and national security if it was to be revealed at trial, filings show.
The proceeding is called a Section 38 motion, a reference to the part of the Canada Evidence Act that deals with sensitive information. Such motions are routinely used when the Federal Court’s specialized jurisdiction is needed to assess national-security implications.
Withholding sensitive intelligence could affect the rights of the accused. A judge overseeing the motion will have to weigh that possibility against the potential harm of releasing such information. It’s an issue that is particularly complicated at a time when Canada and India are trying to repair relations that were fractured after Ottawa accused New Delhi of involvement in the Nijjar killing.
Mr. Nijjar, a prominent advocate for the creation of an independent Sikh state in Northwest India called Khalistan, was assassinated in the parking lot of a gurdwara in Surrey, B.C. in 2023. India considers Khalistan activism a national-security threat. After Mr. Nijjar’s death, then-prime minister Justin Trudeau told Parliament that the killing was linked to agents of India, setting off a diplomatic row between the two countries.
The murder trial over the slaying of B.C. Sikh activist Hardeep Singh Nijjar is slated to begin next year.Jennifer Gauthier/The Globe and Mail
Four Indian citizens were arrested in the spring of 2024 and charged with first-degree murder and conspiracy to commit murder in Mr. Nijjar’s shooting. Their trial is expected to start as early as next summer in B.C. Supreme Court. The parallel Federal Court process will determine if any information must be withheld from that trial.
Earlier this month, lawyers for the Attorney General of Canada asked the Federal Court to appoint amici curiae – or “friends of the court” – to evaluate potential evidence connected to the Nijjar case that has been deemed sensitive.
Court records filed Friday show that Federal Court Justice Simon Fothergill has appointed Erin Dann, commission counsel at the public inquiry into foreign interference that concluded in early 2025, and Gib van Ert, who practises public law and civil litigation in Ottawa and Vancouver, as the amici curiae.
Both lawyers are designated as having “top secret” security clearance. Neither responded to a request for comment from The Globe and Mail.
Defence lawyers representing Karan Brar and Karanpreet Singh – two of the men who have been charged in Mr. Nijjar’s killing – have filed motions stating that they intend to oppose the Section 38 motion.
Counsel for Kamalpreet Singh, the third accused, has said that his client will attend the hearings and the Ontario-based lawyer for Amandeep Singh has not yet responded, according to the filings. None of the lead counsel for the co-accused responded to requests from The Globe for comment.
Marie-France Major, an Ottawa lawyer who frequently appears before the Supreme Court of Canada in cases involving an amicus curiae, said the tension in any Section 38 case lies between national security and the accused’s right to a fair trial.
“It’s a balancing exercise and neither side automatically wins. The court weighs the injury to national security or international relations against the accused’s right to make full answer [to the charges] and defence,” Ms. Major explained.
In Section 38 cases, these court-appointed legal experts must pore over potential evidence, interview government witnesses, consider affidavits from intelligence agencies and how that information was obtained – such as RCMP interviews, or covert wiretaps – all while acting as a counterbalance to the government’s lawyers.
The entire process is, by its nature, secret, and even the location of the hearing is kept under wraps. An amicus is typically a lawyer with top-secret security clearance who makes arguments on behalf of the interests of the accused, who are excluded from these proceedings.
Under the Section 38 motion, a federal judge will then have to decide whether a ban on some of that information could impinge on the rights of the defendants to a fair trial.
In a criminal matter like the slaying of Mr. Nijjar, where classified intelligence has allegedly pointed to agents of the government of India, it’s an especially challenging balancing act.
New Delhi has denied any involvement in Mr. Nijjar’s killing. The Globe recently reported that in the months after his death, Canadian national-security officials were presented with intelligence showing that Indian consular staff operating in Vancouver supplied information to assist in Mr Nijjar’s assassination.
One of the Indian officials working as a visa officer in the consulate, Kanwaljit Singh, was suspected by the officials of being a covert intelligence officer with India’s intelligence agency, the Research and Analysis Wing, or RAW. Mr. Singh was expelled along with five other Indian officials in October, 2024, The Globe reported, although Ottawa has never revealed his identity.
Legal and national-security experts say Section 38 applications can’t be used to help improve diplomatic relations but are designed to protect information whose disclosure could damage international relations, national defence or national security. Because these motions can limit an accused’s right to full disclosure under the Charter of Rights and Freedoms, they’re only allowed in tightly controlled circumstances.
While it’s not known what sensitive information may be part of the Nijjar evidence, experts speculate that Canada appears to be trying to keep hidden the ways in which its intelligence agencies, such as CSIS, spied on Indian consulates and the High Commission. That information, they say, would have been used by the RCMP with the understanding that it could never be revealed in court.
Leah West, an associate professor at Carleton University and a former Justice Department lawyer on national-security matters, said it’s not in Canada’s interest to broadcast to the world how it monitors foreign diplomats and their communications. While holding that information back from the Nijjar trial may benefit India, that’s not the point of the federal court motion, she said.
“A criminal law case isn’t normally where you get to lay out the role of the nation state that’s involved. That’s not the forum. This is about the guilt of the person charged with the offence. It’s not the forum for revealing or discussing or having a national debate or embarrassing the Government of India,” she said.
Wesley Wark, a national-security expert and senior fellow at the Centre for International Governance Innovation, said anyone hoping that the Nijjar trial will expose the full extent of India’s alleged role in the 2023 assassination plot will likely be disappointed.
“I think it’s appropriate to keep expectations low about any sensational reveals during the trial with regard to direct Indian government involvement,” he said.
Mr. Wark, who served on the National Security Advisory Council and was an expert witness at the inquiry into the 1985 bombing of Air India Flight 182, adds that because there are allegations India may have used a proxy – the Lawrence Bishnoi gang, a transnational criminal group – he suspects the accused gunmen had limited knowledge of who allegedly ordered the hit.
“Were there specific Indian intelligence agents involved? How do we know that on the Canadian side?” Mr. Wark said. “I would expect that we would see a pretty heavy blanket imposed on all of that.”
As Canada tries to mend ties with New Delhi after the diplomatic fallout from his killing, some Sikh-Canadian activists see any effort to withhold potential evidence from the coming trial as a denial of justice.
Moninder Singh, who had been a close friend of Mr. Nijjar, wrote to Prime Minister Mark Carney in February, calling on Ottawa to disclose as much information as possible related to Indian foreign interference in Canada.
Mr. Singh made the request after police officers warned him for the fourth time that he was being targeted for assassination. This, he says, is proof that agents of India are still trying to suppress pro-Khalistan activists here.
“Ongoing secrecy risks compounding harm to communities already facing intimidation, extortion, and violence linked to transnational repression,” he wrote in a letter co-signed by a handful of Sikh groups from across the country.
“If the government chooses to withhold important information about the assassination, it will be repeating the mistakes of successive Canadian governments by choosing to protect Indian officials rather than the Canadian communities that are being targeted.”
The Indian High Commission in Ottawa did not respond to a request to comment for this story.