The Anti-terrorism Act

E. THE CANADA EVIDENCE ACT (RECOMMENDATIONS 35 - 43)

The ATA amended sections 37 and 38 of the Canada Evidence Act (CEA) to address the judicial balancing of interests when the disclosure of information in proceedings would encroach on a specified public interest and, in particular, would be injurious to international relations, national defence or national security. The reforms were designed to accomplish several objectives. They introduce greater flexibility into the system and offer the opportunity to resolve evidentiary issues early on in the proceedings. They also allow for use of information relating to international relations, national defence and national security in proceedings in a manner that is consistent with the right of an accused to a fair hearing, while at the same time preserving the federal government's ability to protect information, the disclosure of which would be injurious to these interests.

The purpose of the Attorney General certificate is to provide, where necessary, a bar to the disclosure of information in connection with a legal proceeding. A certificate may be issued either to protect information that has been obtained in confidence from or in relation to a foreign entity, or to protect national defence or national security. Such information is often provided on the express condition that it not be disclosed. Canada is only in a position to provide the necessary guarantees to another state that information will not be disclosed if the ultimate decision is vested in the Attorney General of Canada and not the courts. In recent litigation concerning section 38 of the CEA, the federal Crown made the following argument: ⁵ 

The consequences of a breach of the third party rule would be significant to Canada, given that it is generally a net importer of sensitive information. While other states may still be willing to share information with Canada, their calculations of risk and benefit might well be different in many cases if they considered as potentially unreliable Canada's ability to guarantee the protection of information that was given to it in confidence. This would, in turn, impair Canada's ability to combat terrorism.

The Attorney General also has the power to issue a fiat to take over and conduct any prosecution where sensitive or potentially injurious information is involved.

The Government believes that the current fifteen-year lifespan of an Attorney General certificate is not excessive, given the nature of the information at issue. However, the Government is prepared to accept the Subcommittee's recommendation that a certificate should expire after ten years, unless it is re-issued by the Attorney General of Canada pursuant to section 38.13(9). Many safeguards already apply to any use of the Attorney General certificate. For example, the certificate, and any variance or cancellation of the certificate, must be published without delay in the Canada Gazette. However, in the interests of enhancing transparency, the Government accepts the Subcommittee's recommendation that the CEA be amended to require the Attorney General of Canada to table an annual report in Parliament setting out the usage of the section 38.13 certificates and section 38.15 fiats. It is worth noting that although neither section has been invoked to date, both remain essential tools.

Currently, every party to a proceeding may apply to the Federal Court of Appeal for an order varying or cancelling the section 38.13 certificate and the judge who reviews the certificate may confirm, vary or cancel the certificate. The Government considers the existing judicial review mechanism to be adequate.

One of the new features introduced to section 38 of the CEA by the ATA was the requirement of certain persons to give notice to the Attorney General of Canada in circumstances where they expect to disclose or cause the disclosure of sensitive or potentially-injurious information. However, in respect of certain functions they perform, some entities (including Federal Court judges, the Information and Privacy Commissioners, and certain Commissions of Inquiry) were listed on the schedule to the CEA and, pursuant to paragraph 38.01(6)(d), are relieved of the need to give notice, except when they make a decision or order that would result in the release of such information.

These entities were added to the schedule because they have processes in place to protect sensitive information and potentially injurious information. As a result, the Government is not convinced that such entities are in need of written guidelines or need to establish review mechanisms to assist them in fulfilling their duty to prevent the disclosure of sensitive or potentially injurious information and to notify the Attorney General of Canada under subsection 38.02(1.1) of the CEA. Such guidelines might also be inappropriate in certain cases, such as in circumstances where judicial independence issues may be raised. That said, however, the Government would be pleased to respond to any requests to provide guidance on a case-by-case basis to the designated entities.

Following the giving of notice, under certain circumstances, applications may be made to the Federal Court under section 38.04 of the CEA. At present, the Attorney General of Canada bears the responsibility under the CEA of applying to the Federal Court on behalf of a witness who gives notice and the Subcommittee recommended that the Government bear the cost of the application. In such cases, the witness may be implicated in the proceeding, but would likely not have commenced it, and, as a matter of policy, should not have to bear the financial burden of commencing an application before the Federal Court. In the case of other persons, including those who seek the disclosure of the information, however, the Government believes that they should continue to bear the burden of commencing an application, notwithstanding the recommendation of the Subcommittee to require the Attorney General to apply to the Federal Court for an order with respect to disclosure of the information in every case where, except by agreement with the party, the Attorney General does not permit full disclosure without conditions.

Having received notice, the Attorney General may be in a position to consent to the disclosure of such information. The person seeking disclosure has the right to make an application to the Federal Court ten days after having given notice if disclosure has been denied, in whole or in part, or if the Attorney General has not responded within the ten-day limit. Ten days is frequently not much time for the Attorney General to complete a review of the documentation, given the volumes of material that may be involved, as well as the necessity for internal consultations. If the person were willing to wait a little longer before making an application, there would be a greater opportunity of exploring the possibility of entering into a disclosure agreement with the Attorney General. Moreover, the Attorney General must also weigh the public interest in disclosure as well as the public interest in non-disclosure before pronouncing upon the issue. Consideration should also be given to the resource implications for the Federal Court if this change were to be made. For these reasons, the Government is not considering any alterations to the status quo.

Concerning the recommendation of the Subcommittee that section 37.21 of the CEA, which was repealed in 2004, be re-enacted, the Government notes that, in Toronto Star Newspapers et al. v. R., the Federal Court held, inter alia, that subsection 38.11(1) of the CEA, which is the equivalent of section 37.21, violated the principle of judicial openness protected under paragraph 2(b) of the Charter. The Court took the remedial action of reading down the section so that it only applies to the ex parte requirements of the section 38 CEA regime. The Government did not appeal the decision.

The Supreme Court of Canada has also shown a strong support for the open court principle, even in light of national security considerations, in such cases as Ruby v. Canada (Solicitor General)⁶ and Reference re s. 83.28 of the Criminal Code ⁷, dealing with the investigative hearing provision of the ATA. As a result, the Government does not share the view of the Subcommittee that the former section 37.21 of the CEA should be re-enacted. Section 37.21 was repealed in 2004 as a corrective measure.

Finally, the Government appreciates the recommendations from the Subcommittee concerning the need to improve the wording of subsection 37(7) of the CEA and to enact a provision akin to that subsection with respect to disclosure orders made under section 38.06. The Government agrees, in principle, with these recommendations.

Previous Page | Table of Contents | Next Page

Updated to April 1, 2008.