Part I (continued)
Specified Public Interest
Marginal note:Objection to disclosure of information
37 (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
Marginal note:Obligation of court, person or body
(1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.
Marginal note:Objection made to superior court
(2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.
Marginal note:Objection not made to superior court
(3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by
(a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or
(b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.
Marginal note:Limitation period
(4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the court having jurisdiction to hear the application considers appropriate in the circumstances.
Marginal note:Disclosure order
(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.
Marginal note:Disclosure order
(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
Marginal note:Prohibition order
(6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information.
(6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.
Marginal note:When determination takes effect
(7) An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal court that confirms the order has expired and no further appeal from a judgment that confirms the order is available.
Marginal note:Introduction into evidence
(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5), but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information, may request from the court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (5).
Marginal note:Relevant factors
(9) For the purpose of subsection (8), the court having jurisdiction under subsection (2) or (3) shall consider all the factors that would be relevant for a determination of admissibility before the court, person or body.
- R.S., 1985, c. C-5, s. 37
- 2001, c. 41, ss. 43, 140
- 2002, c. 8, s. 183
- 2013, c. 9, s. 17(E)
Marginal note:Appeal to court of appeal
Marginal note:Limitation period for appeal
(2) An appeal under subsection (1) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.
- 2001, c. 41, ss. 43, 141
Marginal note:Limitation periods for appeals to Supreme Court of Canada
37.2 Notwithstanding any other Act of Parliament,
(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and
- 2001, c. 41, s. 43
37.21 [Repealed, 2004, c. 12, s. 18]
Marginal note:Protection of right to a fair trial
37.3 (1) A judge presiding at a criminal trial or other criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.
Marginal note:Potential orders
(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:
(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;
(b) an order effecting a stay of the proceedings; and
(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
- 2001, c. 41, s. 43
- 2015, c. 3, s. 14(F)
International Relations and National Defence and National Security
38 The following definitions apply in this section and in sections 38.01 to 38.15.
judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04. (juge)
participant means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. (participant)
- potentially injurious information
potentially injurious information means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. (renseignements potentiellement préjudiciables)
proceeding means a proceeding before a court, person or body with jurisdiction to compel the production of information. (instance)
prosecutor means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding. (poursuivant)
- sensitive information
sensitive information means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. (renseignements sensibles)
- R.S., 1985, c. C-5, s. 38
- 2001, c. 41, ss. 43, 141
- 2013, c. 9, s. 18(F)
- Date modified: