Canada Evidence Act (R.S.C., 1985, c. C-5)

Marginal note:Protective order

• 38.12 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of any information to which the hearing, appeal or review relates.

• Marginal note:Court records

  (2) The court records relating to a hearing that is held, or an appeal or review that is heard, in private or to any ex parte representations are confidential. The judge or the court may order that the court records, or any part of them, relating to a private or public hearing, appeal or review be sealed and kept in a location to which the public has no access.

Marginal note:Certificate of Attorney General of Canada

• 38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Foreign Interference and Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.

• Marginal note:Military proceedings

  (2) 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 Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.

• Marginal note:Service of certificate

  (3) The Attorney General of Canada shall cause a copy of the certificate to be served on

  • (a) the person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside;

  • (b) every party to the proceeding;

  • (c) every person who gives notice under section 38.01 in connection with the proceeding;

  • (d) every person who, in connection with the proceeding, may disclose, is required to disclose or may cause the disclosure of the information about which the Attorney General of Canada has received notice under section 38.01;

  • (e) every party to a hearing under subsection 38.04(5) or to an appeal of an order made under any of subsections 38.06(1) to (3) in relation to the information;

  • (f) the judge who conducts a hearing under subsection 38.04(5) and any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3) in relation to the information; and

  • (g) any other person who, in the opinion of the Attorney General of Canada, should be served.

• Marginal note:Filing of certificate

  (4) The Attorney General of Canada shall cause a copy of the certificate to be filed

  • (a) with the person responsible for the records of the proceeding to which the information relates; and

  • (b) in the Registry of the Federal Court and the registry of any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3).

• Marginal note:Effect of certificate

  (5) If the Attorney General of Canada issues a certificate, then, notwithstanding any other provision of this Act, disclosure of the information shall be prohibited in accordance with the terms of the certificate.

• Marginal note:Statutory Instruments Act does not apply

  (6) The Statutory Instruments Act does not apply to a certificate issued under subsection (1).

• Marginal note:Publication

  (7) The Attorney General of Canada shall, without delay after a certificate is issued, cause the certificate to be published in the Canada Gazette.

• Marginal note:Restriction

  (8) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with section 38.131.

• Marginal note:Expiry

  (9) The certificate expires 10 years after the day on which it is issued and may be reissued.

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, other than a summary hearing as defined in subsection 2(1) of that 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) Despite section 16 of the Federal Courts 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 Foreign Interference and 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 Foreign Interference and 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 Foreign Interference and 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.

• Marginal note:Publication

  (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).

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.

Marginal note:Fiat

• 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.

Marginal note:Regulations

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.

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.

Secure Administrative Review Proceedings

Marginal note:Definitions

38.2 The following definitions apply in this section and in sections 38.21 to 38.45.

federal proceeding

federal proceeding means

• (a) an application for judicial review or an appeal in the Federal Court of a decision of a federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act;

• (b) an appeal in the Federal Court of Appeal from a decision of the Federal Court in a proceeding referred to in paragraph (a);

• (c) an application for judicial review or an appeal in the Federal Court of Appeal of a decision of a federal board, commission or other tribunal referred to in paragraph (a); or

• (d) a proceeding referred to in section 6 or 11 of the Charities Registration (Security Information) Act.

It does not include any proceeding in the Federal Court or the Federal Court of Appeal that is in respect of a matter under the Immigration and Refugee Protection Act and does not include a proceeding in which information may be disclosed to either of those courts for a purpose listed in the schedule. (instance fédérale)

judge

judge means

• (a) in relation to a federal proceeding in the Federal Court of Appeal, not fewer than three judges of that court, each of whom is either the Chief Justice or a judge designated by the Chief Justice to conduct hearings under section 38.25, sitting together in an uneven number; and

• (b) in relation to a federal proceeding in the Federal Court, the Chief Justice of that court or a judge designated by the Chief Justice to conduct hearings under section 38.25. (juge)

non-governmental party

non-governmental party means a party to a federal proceeding who is neither the Attorney General of Canada nor represented by the Attorney General of Canada. (partie non gouvernementale)

participant

participant means a person who, in connection with a federal proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. (participant)

potentially injurious information

potentially injurious information has the same meaning as in section 38. (renseignements potentiellement préjudiciables)

sensitive information

sensitive information has the same meaning as in section 38. (renseignements sensibles)

special counsel

special counsel means a person appointed as a special counsel under section 38.34. (conseiller juridique spécial)