Thank you.
I'm pleased to appear before you today to provide an overview of sections 37 and 38 of the Canada Evidence Act. These sections address the judicial balancing of interests when the disclosure of information in proceedings would encroach on a specified public interest or be injurious to international relations, national defence, or national security.
Under section 37 of the act, a minister of the crown or an official 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 Canada Evidence Act. The Federal Court and the Superior Court, as the case may be, will determine the objection. The section sets out in some detail how the determination by the court is to take place and for the judicial balancing of interest.
Section 37 can be used to protect such matters as the identity of police informers, police methodologies, ongoing investigations, and confidential relationships with foreign law enforcement agencies.
I will turn to section 38 of the Canada Evidence Act. The need to protect national security information has long been understood and recognized as the common law. Canada codified the crown privilege in the Federal Courts Act in 1970. In 1982 the precursor to the current section 38 was enacted, and in 2001 further amendments were made.
Section 38 sets out a code of procedure to assist all parties and persons involved in proceedings in which there's a possibility that information injurious to international relations or national defence or national security would be disclosed.
New elements were added in 2001 and they 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. Various options for judges that could be employed to promote the public interest in disclosing and protecting such information were also added as an element.
Another element was providing for the possibility of the Attorney General of Canada personally to issue a certificate to prohibit the disclosure of information, but only after an order or decision that would result in its disclosure.
Finally, another element was the power of the Attorney General of Canada to assume the carriage of a prosecution in connection with which sensitive or potentially injurious information may be disclosed.
While new elements were added, the reforms were built on the former Canada Evidence Act 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. The judicial balancing test of the public interests and disclosure versus non-disclosure was unaltered.
The amendments to section 38 of the Canada Evidence Act 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, national defence, or national security in proceedings.
The Canada Evidence Act provides that any participant in connection with or in the course of a proceeding is required to notify in writing, as soon as possible, the Attorney General of Canada of the possibility of the disclosure of information that the participant believes is sensitive or potentially injurious information. Disclosure of the information, which is the subject of a notice, is prohibited unless such disclosure has been authorized in writing by the Attorney General of Canada.
The Attorney General of Canada may, subject to any conditions he or she considers appropriate, authorize the disclosure of all or part of the information. In making that determination, the Attorney General of Canada applies the same test as the Federal Court, namely, the Attorney General determines whether the disclosure of the information would be injurious to international relations, national defence, or national security, and if so, the Attorney General then considers whether the public interest in disclosure outweighs in importance the public interests in non-disclosure.
If the Attorney General has not authorized the disclosure of all the information about which notice was given, authorized its disclosure, subject to conditions, or not made a decision, then the Federal Court may be seized of the matter.
The Attorney General of Canada may, and at times must, also apply to the Federal Court for an order with respect to the disclosure of sensitive or potentially injurious information, and the participant or person who seeks disclosure may make a similar application. But the onus rests with the Attorney General of Canada to prove the probable injury to international relations, national defence, or national security.
Upon a finding that disclosure of the information would result in injury, the court must then determine whether the public interest in disclosing the information is greater than the public interest in not disclosing it. This is the same test that had applied before the 2001 amendments.
If the balance favours disclosure, the court may order disclosure, but it must do it in the manner most likely to limit injury to international relations, national defence, or national security, subject to any appropriate conditions. For instance, the judge could order the disclosure of a summary of the information or a written admission of facts relating to the information. This option is not open to the Attorney General of Canada when making his or her decision.
The intention here is to be able to have this information available for use in proceedings in ways that would serve, as far as possible, both the public interest in disclosure and the public interest in non-disclosure. If the balance favours the public interest in not disclosing the information, the court will confirm the prohibition of disclosure.
An appeal of the Federal Court order may be made to the Federal Court of Appeal and an application for leave to appeal may thereafter be made to the Supreme Court of Canada.
In closing, let me give you some examples of the kinds of information that the court has determined to be injurious under section 38. These include information that reveals or tends to reveal the identity of the human source, the targets of security investigations, the operating methods and techniques of security investigations, the identity of employees involved in covert intelligence activities, information provided in confidence by foreign agencies, the existence of a confidential relationship with a foreign agency, confidential diplomatic exchanges, military operations, military techniques, and information received in confidence from allies.
That's an overview of sections 37 and 38.
Thank you.