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
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
- 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
Marginal note:Military proceedings
- 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)
- R.S., 1985, c. C-5, s. 39;
- 1992, c.1, s. 144(F).
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