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

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 )

• (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 )

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 )

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 )

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

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

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

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.

During federal proceeding

Notice of disclosure from official

During federal proceeding

Exception

• (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.

Exception

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).

  Exceptions

  • (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.

  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).

  Notice

  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.

  No motion

  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).

  Motion — general

  • (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.

  Notice to Attorney General of Canada

  Court records

  Procedure

  • (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

    Disclosure agreement

    • (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.

    Termination

    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.

    Disclosure — conditions

    Order confirming prohibition

    When determination takes effect

    Evidence

    Notice of order

    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.

    Limitation period for appeal

    Limitation periods for appeals to Supreme Court of Canada

    • (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.

    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.

    Special rules — hearing in National Capital Region

    Ex parte representations

    Ex parte representations — public hearing

    Protective order

    38.31 (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 any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of any information to which the hearing or appeal relates.

    Court records

    Judge seized

    Undisclosed information — federal proceeding

    38.33 (1) In considering the merits of the federal proceeding, the judge may receive into evidence, and may base their decision on, any information the disclosure of which is prohibited as a result of the application of sections 38.21 to 38.26.

    Representations and private hearing

    • (a) receive ex parte representations; and
    • (b) conduct a hearing in private and in the absence of the non-governmental party and their counsel.

    Procedure

    • (a) deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
    • (b) without disclosing the information referred to in subsection (1), ensure that the non-governmental party to the federal proceeding is provided with a summary of the information that enables that party to be reasonably informed of the case; and
    • (c) at the request of the Attorney General of Canada, hold the hearing in the National Capital Region, as described in the schedule to the National Capital Act .

    Decision

    Special counsel

    • 38.34 (1) The judge, in consideration of the principles of fairness and natural justice, may appoint a special counsel for the purposes of
      • (a) a motion made under section 38.25 and the federal proceeding as a whole; and
      • (b) any appeal of the motion or of the federal proceeding.

      List

      Special counsel’s role

      38.35 (1) A special counsel’s role is to protect the interests of the non-governmental party when information and other evidence is presented, or representations are made in private and in the absence of the non-governmental party and their counsel.

      Responsibilities

      • (a) make oral and written representations with respect to the information or other evidence that has been filed with the court but has not been disclosed to the non-governmental party and their counsel;
      • (b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in private and in the absence of the non-governmental party and their counsel; and
      • (c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the non-governmental party.

      For greater certainty

      Protection of communications with special counsel

      Immunity

      Obligation to provide information

      Restrictions on communications — special counsel

      38.38 (1) After the information or other evidence is received by the special counsel, the special counsel may, during the remainder of the federal proceeding and any appeal in respect of it, communicate with another person about the federal proceeding or the appeal only with the judge’s or appeal court’s authorization and subject to any conditions that the judge or appeal court considers appropriate.

      Restrictions on communications — other persons

      Disclosure and communication prohibited

      • (a) disclose information or other evidence that is disclosed to them under section 38.37 or 38.38 and that is treated as confidential by the judge; or
      • (b) communicate with another person about the content of any part of a federal proceeding, or an appeal in respect of it, that is heard in private and in the absence of the non-governmental party and their counsel.

      Fairness

      38.4 (1) The judge may, if they are of the opinion that they are unable to conduct a fair hearing because the non-governmental party is not reasonably informed of the case, make an order granting an appropriate remedy to the non-governmental party.

      Potential orders

      • (a) an order allowing or dismissing the federal proceeding; and
      • (b) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

      For greater certainty

      Certificate of Attorney General of Canada

      38.41 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a federal proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a 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.

      Service of certificate

      • (a) the person presiding or designated to preside at the federal 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 federal proceeding;
      • (c) every person who gives notice under section 38.21 in connection with the federal proceeding;
      • (d) every person who, in connection with the federal 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 38.21;
      • (e) every party to a hearing under subsection 38.25(5) or to an appeal of an order made under any of subsections 38.26(1) to (3) in relation to the information;
      • (f) any court that hears an appeal from an order made under any of subsections 38.26(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.

      Filing of certificate

      Effect of certificate

      Statutory Instruments Act does not apply

      Publication

      Restriction

      Expiry

      Application for review of certificate

      38.42 (1) A party to the federal proceeding referred to in section 38.41 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 (7) or (8), as the case may be.