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

Marginal note:Notice to Attorney General of Canada

• 38.21 (1) Every participant who, in connection with a federal proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information must, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the federal proceeding.

• Marginal note:During federal proceeding

  (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a federal proceeding must raise the matter with the person presiding at the federal proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the federal proceeding must ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Notice of disclosure from official

  (3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a federal proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the federal proceeding.

• Marginal note:During federal proceeding

  (4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a federal proceeding may raise the matter with the person presiding at the federal proceeding. If the official raises the matter, they must notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the federal proceeding must ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Exception

  (5) This section does not apply when

  • (a) the information is disclosed by a person to their lawyer in connection with a federal proceeding, if the information is relevant to that proceeding;

  • (b) the information is disclosed to enable the Attorney General of Canada, special counsel, a judge, or a court hearing an appeal from an order of the judge, to exercise their powers and perform their duties and functions under this section and sections 38.22 to 38.41 and 38.43; or

  • (c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received.

• Marginal note:Exception

  (6) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (5)(c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter under subsection (2) with the person presiding at the federal proceeding.

Marginal note:Disclosure prohibited

• 38.22 (1) Subject to subsection 38.21(5), it is prohibited for a person to disclose in connection with a federal proceeding

  • (a) information about which notice is given under any of subsections 38.21(1) to (4);

  • (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.21(1) to (4);

  • (c) the fact that a motion is made under section 38.25 or that an appeal of an order made under any of subsections 38.26(1) to (3) in connection with the motion is instituted; or

  • (d) the fact that an agreement is entered into under section 38.24 or subsection 38.25(6).

• Marginal note:Exceptions

  (2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if

  • (a) the Attorney General of Canada authorizes the disclosure in writing under section 38.23 or by agreement under section 38.24 or subsection 38.25(6); or

  • (b) a judge authorizes the disclosure under subsection 38.26(1) or (2) or a court hearing an appeal from the order of the judge authorizes the disclosure, and either the time provided to appeal the order or the appeal court’s judgment has expired or no further appeal is available.

Marginal note:Authorization by Attorney General of Canada

• 38.23 (1) The Attorney General of Canada may, at any time and subject to any conditions that they consider appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.22(1).

• Marginal note:Notice

  (2) The Attorney General of Canada must, within 30 days after the day on which they first receive a notice about information under any of subsections 38.21(1) to (4), notify in writing every person who provided notice under those subsections about that information of their decision with respect to disclosure of the information.

Marginal note:Disclosure agreement

• 38.24 (1) The Attorney General of Canada and a person who has given notice under subsection 38.21(1) or (2) and is not required to disclose information but wishes, in connection with a federal proceeding, to disclose any facts referred to in paragraphs 38.22(1)(b) to (d) or information about which the person gave the notice, or to cause that disclosure, may, before the person brings a motion under paragraph 38.25(2)(c), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions.

• Marginal note:No motion

  (2) If an agreement is entered into under subsection (1), the person may not bring a motion under paragraph 38.25(2)(c) with respect to the information about which they gave notice to the Attorney General of Canada under subsection 38.21(1) or (2).

Marginal note:Motion — Attorney General of Canada

• 38.25 (1) The Attorney General of Canada may, at any time and under any circumstances during a federal proceeding, bring a motion to a judge for an order with respect to the disclosure of information about which notice was given under any of subsections 38.21(1) to (4).

• Marginal note:Motion — general

  (2) If, with respect to information about which notice was given under any of subsections 38.21(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.23(2) or, other than by an agreement under section 38.24, 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 must bring a motion to a judge for an order with respect to disclosure of the information if a person who gave notice under subsection 38.21(1) or (2) is a witness;

  • (b) a person, other than a witness, who is required to disclose information in connection with a federal proceeding must bring a motion to a judge 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 federal proceeding but who wishes to disclose it or to cause its disclosure may bring a motion to a judge for an order with respect to disclosure of the information.

• Marginal note:Notice to Attorney General of Canada

  (3) A person who makes a motion under paragraph (2)(b) or (c) must provide notice of the motion to the Attorney General of Canada.

• Marginal note:Court records

  (4) Subject to paragraph (5)(b), a motion under this section is confidential. During the period when a motion is confidential, the Chief Administrator of the Courts Administration Service may, subject to section 38.31, take any measure that they consider appropriate to protect the confidentiality of the motion and the information to which it relates.

• Marginal note:Procedure

  (5) As soon as they are seized of a motion under this section, the judge

  • (a) must hear the representations of the Attorney General of Canada with respect to making the motion public;

  • (b) must, if they decide that the motion should be made public, make an order to that effect;

  • (c) must hear the representations of the Attorney General of Canada 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;

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

  • (e) if they decide that a hearing should be held, must

    • (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

  • (f) may, if they consider it appropriate in the circumstances, give any person the opportunity to make representations.

• Marginal note:Disclosure agreement

  (6) After the judge is seized of a motion made under paragraph (2)(c) or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3) in connection with that motion, before the appeal is disposed of,

  • (a) the Attorney General of Canada and the person who made the motion may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.22(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 judge’s consideration of the motion or any hearing or appeal must be terminated.

• Marginal note:Termination

  (7) Subject to subsection (6), after the judge is seized of a motion made under this section — or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3), before the appeal is disposed of — and 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 judge’s consideration of the motion or any hearing or appeal must be terminated in relation to that information, to the extent of the authorization or the withdrawal.

Marginal note:Disclosure order

• 38.26 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.22(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts.

• Marginal note:Disclosure — conditions

  (2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge 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 injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.

• Marginal note:Order confirming prohibition

  (3) If the judge does not authorize disclosure under subsection (1) or (2), the judge must, by order, confirm the prohibition of disclosure.

• Marginal note:When determination takes effect

  (4) An order of the judge 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:Evidence

  (5) 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 their decision on that evidence.

Marginal note:Notice of order

38.27 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.26(1) to (3) to any person who, in the opinion of the judge, should be notified.

Marginal note:Appeal to Federal Court of Appeal

• 38.28 (1) An order made by a judge of the Federal Court under any of subsections 38.26(1) to (3) may be appealed to the Federal Court of Appeal.

• Marginal note:Limitation period for appeal

  (2) An appeal must be brought within 15 days after the day on which the order is made or within any further time that the Federal Court of Appeal considers appropriate in the circumstances.

Marginal note:Limitation periods for appeals to Supreme Court of Canada

38.29 Despite any other Act of Parliament,

• (a) an application for leave to appeal to the Supreme Court of Canada from an order made under any of subsections 38.26(1) to (3) by the Federal Court of Appeal, or from a judgment of the Federal Court of Appeal in an appeal of such an order made by the Federal Court, must be made within 15 days after the day on which the order or judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and

• (b) if leave to appeal is granted, the appeal must be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the Supreme Court of Canada.

Marginal note:Special rules — hearing in private

• 38.3 (1) The judge conducting a hearing under subsection 38.25(5) or the court hearing an appeal of an order made under any of subsections 38.26(1) to (3) may make an order that the hearing be held, or the appeal be heard, in private.

• Marginal note:Special rules — hearing in National Capital Region

  (2) A hearing under subsection 38.25(5) or an appeal of an order made under any of subsections 38.26(1) to (3) must, at the request of the Attorney General of Canada, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (3) The judge conducting a hearing under subsection 38.25(5) or the court hearing an appeal of an order made under any of subsections 38.26(1) to (3) may give any person who makes representations under paragraph 38.25(5)(f), and must give the Attorney General of Canada, the opportunity to make representations ex parte.

• Marginal note:Ex parte representations — public hearing

  (4) If a hearing under subsection 38.25(5) is held, or an appeal of an order made under any of subsections 38.26(1) to (3) is heard, in public, any ex parte representations made in that hearing or appeal must be made in private.