The Anti-terrorism Act

AMENDMENTS TO THE CANADA EVIDENCE ACT

Introduction

The Anti-terrorism Act (ATA) made changes to 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.

Section 37 of the CEA

A Minister of the Crown or an official (as defined in section 36.1 of the CEA) may object to the disclosure of information on the grounds of a specified public interest before a court, person or body with jurisdiction to compel the production of information. Once an objection is made, the court, person or body shall ensure that the information is not disclosed other than in accordance with the CEA. The Federal Court and the superior court, as the case may be, will determine the objection.

Subsections 37(4.1) to (9) set out in some detail how the determination by the court is to take place, providing for a full disclosure order unless the disclosure of the information would encroach upon a specified public interest. A disclosure order, or a partial disclosure order, can be made where the court concludes that the disclosure of the information would encroach upon a specified public interest, but that the public interest in disclosure in the particular case outweighs in importance the specified public interest. In the latter case, the court may order disclosure, subject to any conditions the judge considers to be appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information that are most likely to limit any encroachment upon the public interest resulting from disclosure.  

In cases where the Federal Court or the superior court orders disclosure in a form, or subject to conditions, such that the information in that form or under those conditions would not satisfy the rules of admissibility that apply before the court, person or body where the objection is made, the Federal Court or superior court may make an order permitting the introduction into evidence of the material in a form, or subject to conditions fixed by the court, after considering all the factors that would be relevant for a determination of admissibility before the court, person or body before which the objection was taken. Appeals from the determination of the Federal Court or the superior court may be made to the Federal Court of Appeal or to the provincial court of appeal, respectively.

Section 37.21, dealing with in private proceedings, was repealed by S.C. 2004, c. 12 as a corrective measure. This provision was not regarded as necessary, given the inherent jurisdiction of the court to provide for such a proceeding.

Section 38 of the CEA

The ATA substantially reformed section 38 of the CEA, setting out a mini-code of procedure, establishing pre-trial, trial and appellate procedures to assist all parties and persons involved in proceedings in which there is a possibility that information injurious to international relations or national defence or national security would be disclosed. Special rules apply in a proceeding under Part III of the National Defence Act.

Elements that the Act added to the section 38 regime included:

• the requirement to provide notice to the Attorney General of Canada in circumstances where it is foreseeable that the disclosure of information in the course of, or in connection with, proceedings could be injurious to international relations or national defence or national security;
• expressly contemplating various options for judges to promote the public interests in disclosures and in protecting such information;
• providing for the possibility of the Attorney General of Canada personally issuing a certificate to prohibit the disclosure, but only after an order or decision that would result in the disclosure of information; and
• the power of the Attorney General of Canada to establish exclusive authority in the Attorney General of Canada with respect to the conduct of a prosecution.

The reforms were built on the former CEA scheme. The information at issue and the interests to be protected remained the same. These matters continue to be heard by the Chief Justice of the Federal Court or by a judge of that Court designated by the Chief Justice for that purpose. For the most part, the same appellate processes continue to apply.

The amendments to section 38 of the CEA were intended to improve the scheme relating to the use and protection of information under section 38. They were designed to introduce greater flexibility into the system, offer the opportunity for evidentiary issues to be resolved early on in the proceedings, and improve the federal government's ability to protect from disclosure, and for parties to use, information relating to international relations or national defence or national security in proceedings, in a manner that is consistent with the fair trial rights of parties.

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