Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

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

Full Document:  

Act current to 2020-10-21 and last amended on 2019-07-12. Previous Versions

Part I (continued)

International Relations and National Defence and National Security (continued)

Marginal note:Report relating to proceedings

 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a 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 may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge.

  • 2001, c. 41, s. 43

Marginal note:Disclosure order

  •  (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.02(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 shall, by order, confirm the prohibition of disclosure.

  • Marginal note:When determination takes effect

    (3.01) 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

    (3.1) 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 his or her decision on that evidence.

  • Marginal note:Introduction into evidence

    (4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).

  • Marginal note:Relevant factors

    (5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding.

  • 2001, c. 41, s. 43
  • 2013, c. 9, s. 20

Marginal note:Notice of order

 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified.

  • 2001, c. 41, s. 43

Marginal note:Automatic review

 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review.

  • 2001, c. 41, s. 43

Marginal note:Appeal to Federal Court of Appeal

  •  (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.

  • Marginal note:Limitation period for appeal

    (2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances.

  • 2001, c. 41, s. 43

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

 Notwithstanding any other Act of Parliament,

  • (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the 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 shall 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.

  • 2001, c. 41, s. 43

Marginal note:Special rules — hearing in private

  •  (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 an order that the hearing be held, or the appeal or review be heard, in private.

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

    (1.1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, 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

    (2) 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 give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.

  • Marginal note:Ex parte representations — public hearing

    (3) If a hearing under subsection 38.04(5) is held, or an appeal or review of an order made under any of subsections 38.06(1) to (3) is heard, in public, any ex parte representations made in that hearing, appeal or review shall be made in private.

  • 2001, c. 41, s. 43
  • 2013, c. 9, s. 21

Marginal note:Protective order

  •  (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.

  • 2001, c. 41, s. 43
  • 2013, c. 9, s. 22

Marginal note:Certificate of Attorney General of Canada

  •  (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 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, 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.

  • 2001, c. 41, s. 43
  • 2013, c. 9, s. 23
 
Date modified: