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Canada Evidence Act

Version of section 38.04 from 2022-06-20 to 2023-01-11:


Marginal note:Application to Federal Court — Attorney General of Canada

  •  (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).

  • Marginal note:Application to Federal Court — general

    (2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, does not authorize the disclosure of the information or authorizes the disclosure of only part of the information or authorizes the disclosure subject to any conditions,

    • (a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness;

    • (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and

    • (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information.

  • Marginal note:Notice to Attorney General of Canada

    (3) A person who applies to the Federal Court under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.

  • Marginal note:Court records

    (4) Subject to paragraph (5)(a.1), an application under this section is confidential. During the period when an application is confidential, the Chief Administrator of the Courts Administration Service may, subject to section 38.12, take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.

  • Marginal note:Procedure

    (5) As soon as the Federal Court is seized of an application under this section, the judge

    • (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, with respect to making the application public;

    • (a.1) shall, if he or she decides that the application should be made public, make an order to that effect;

    • (a.2) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, other than a summary hearing as defined in subsection 2(1) of that Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter;

    • (b) shall decide whether it is necessary to hold any hearing of the matter;

    • (c) if he or she decides that a hearing should be held, shall

      • (i) determine who should be given notice of the hearing,

      • (ii) order the Attorney General of Canada to notify those persons, and

      • (iii) determine the content and form of the notice; and

    • (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations.

  • Marginal note:Disclosure agreement

    (6) After the Federal Court is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of,

    • (a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of the information or disclosure of the facts or information subject to conditions; and

    • (b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated.

  • Marginal note:Termination of Court consideration, hearing, review or appeal

    (7) Subject to subsection (6), after the Federal Court is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3), before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.

  • 2001, c. 41, ss. 43, 141
  • 2013, c. 9, s. 19
  • 2019, c. 15, s. 50
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