Part I (continued)
International Relations and National Defence and National Security (continued)
Marginal note:Application for review of certificate
38.131 (1) A party to the proceeding referred to in section 38.13 may apply to the Federal Court of Appeal for an order varying or cancelling a certificate issued under that section on the grounds referred to in subsection (8) or (9), as the case may be.
Marginal note:Notice to Attorney General of Canada
(2) The applicant shall give notice of the application to the Attorney General of Canada.
Marginal note:Military proceedings
(3) In the case of proceedings under Part III of the National Defence Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.
Marginal note:Single judge
(4) Notwithstanding section 16 of the Federal Court Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.
Marginal note:Admissible information
(5) In considering the application, the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base a determination made under any of subsections (8) to (10) on that evidence.
Marginal note:Special rules and protective order
(6) Sections 38.11 and 38.12 apply, with any necessary modifications, to an application made under subsection (1).
Marginal note:Expedited consideration
(7) The judge shall consider the application as soon as reasonably possible, but not later than 10 days after the application is made under subsection (1).
Marginal note:Varying the certificate
(8) If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or national security, the judge shall make an order varying the certificate accordingly.
Marginal note:Cancelling the certificate
(9) If the judge determines that none of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or national security, the judge shall make an order cancelling the certificate.
Marginal note:Confirming the certificate
(10) If the judge determines that all of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or national security, the judge shall make an order confirming the certificate.
Marginal note:Determination is final
(11) Notwithstanding any other Act of Parliament, a determination of a judge under any of subsections (8) to (10) is final and is not subject to review or appeal by any court.
(12) If a certificate is varied or cancelled under this section, the Attorney General of Canada shall, as soon as possible after the decision of the judge and in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette
(a) the certificate as varied under subsection (8); or
(b) a notice of the cancellation of the certificate under subsection (9).
- 2001, c. 41, s. 43
- 2004, c. 12, s. 19(E)
Marginal note:Protection of right to a fair trial
38.14 (1) The person presiding at a 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 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.
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
38.15 (1) If sensitive information or potentially injurious information may be disclosed in connection with a prosecution that is not instituted by the Attorney General of Canada or on his or her behalf, the Attorney General of Canada may issue a fiat and serve the fiat on the prosecutor.
Marginal note:Effect of fiat
(2) When a fiat is served on a prosecutor, the fiat establishes the exclusive authority of the Attorney General of Canada with respect to the conduct of the prosecution described in the fiat or any related process.
Marginal note:Fiat filed in court
(3) If a prosecution described in the fiat or any related process is conducted by or on behalf of the Attorney General of Canada, the fiat or a copy of the fiat shall be filed with the court in which the prosecution or process is conducted.
Marginal note:Fiat constitutes conclusive proof
(4) The fiat or a copy of the fiat
(a) is conclusive proof that the prosecution described in the fiat or any related process may be conducted by or on behalf of the Attorney General of Canada; and
(b) is admissible in evidence without proof of the signature or official character of the Attorney General of Canada.
Marginal note:Military proceedings
(5) This section does not apply to a proceeding under Part III of the National Defence Act.
- 2001, c. 41, s. 43
38.16 The Governor in Council may make any regulations that the Governor in Council considers necessary to carry into effect the purposes and provisions of sections 38 to 38.15, including regulations respecting the notices, certificates and the fiat.
- 2001, c. 41, s. 43
Marginal note:Annual report
38.17 Each year the Attorney General of Canada shall prepare and cause to be laid before each House of Parliament a report for the previous year on the operation of sections 38.13 and 38.15 that includes the number of certificates and fiats issued under sections 38.13 and 38.15, respectively.
- 2013, c. 9, s. 24
Confidences of the Queen’s Privy Council for Canada
Marginal note:Objection relating to a confidence of the Queen’s Privy Council
39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
(2) For the purpose of subsection (1), a confidence of the Queen’s Privy Council for Canada includes, without restricting the generality thereof, information contained in
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
Definition of Council
(3) For the purposes of subsection (2), Council means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
- R.S., 1985, c. C-5, s. 39
- 1992, c.1, s. 144(F)
39.1 (1) The following definitions apply in this section.
document has the same meaning as in section 487.011 of the Criminal Code. (document)
journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person. (journaliste)
- journalistic source
journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source. (source journalistique)
(2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source.
Marginal note:Former journalist
(3) For the purposes of subsections (2) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.
Marginal note:Power of court, person or body
(4) The court, person or body may raise the application of subsection (2) on their own initiative.
Marginal note:Objection of court, person or body
(5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section.
(6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.
(7) The court, person or body may authorize the disclosure of information or a document only if they consider that
(a) the information or document cannot be produced in evidence by any other reasonable means; and
(b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,
(i) the importance of the information or document to a central issue in the proceeding,
(ii) freedom of the press, and
(iii) the impact of disclosure on the journalistic source and the journalist.
(8) An authorization under subsection (7) may contain any conditions that the court, person or body considers appropriate to protect the identity of the journalistic source.
Marginal note:Burden of proof
(9) A person who requests the disclosure has the burden of proving that the conditions set out in subsection (7) are fulfilled.
(10) An appeal lies from a determination under subsection (7)
(a) to the Federal Court of Appeal from a determination of the Federal Court;
(b) to the court of appeal of a province from a determination of a superior court of the province;
(c) to the Federal Court from a determination of a court, person or body vested with power to compel production by or under an Act of Parliament if the court, person or body is not established under a law of a province; or
(d) to 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 for appeal
(11) An appeal under subsection (10) 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.
Marginal note:Hearing in summary way
(12) An appeal under subsection (10) shall be heard and determined without delay and in a summary way.
- 2017, c. 22, s. 2
Provincial Laws of Evidence
Marginal note:How applicable
40 In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.
- R.S., c. E-10, s. 37
Marginal note:Solemn declaration
41 Any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the declaration before him, in the following form, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing:
I, , solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.
Declared before me at this day of 19
- R.S., 1985, c. C-5, s. 41
- R.S., 1985, c. 27 (1st Supp.), s. 203
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