SECURITY OF INFORMATION ACT

• 91. 

  Subsection 4(1) — wrongful communication, etc., of information
• 92. 

  Subsection 4(2) — communication of sketch, plan, model, etc.
• 93. 

  Subsection 4(3) — receiving code word, sketch, etc.
• 94. 

  Subsection 4(4) — retaining or allowing possession of document, etc.
• 95. 

  Subsection 5(1) — unauthorized use of uniforms, falsification of reports, forgery, personation and false documents
• 96. 

  Subsection 5(2) — unlawful dealing with dies, seals, etc.
• 97. 

  Section 6 — approaching, entering, etc., a prohibited place
• 98. 

  Section 7 — interference
• 99. 

  Subsection 13(1) — purported communication
• 100. 

  Subsection 14(1) — unauthorized communication of special operational information
• 101. 

  Subsection 16(1) — communicating safeguarded information
• 102. 

  Subsection 16(2) — communicating safeguarded information
• 103. 

  Subsection 17(1) — communicating special operational information
• 104. 

  Subsection 18(1) — breach of trust in respect of safeguarded information
• 105. 

  Subsection 19(1) — use of trade secret for the benefit of foreign economic entity
• 106. 

  Subsection 20(1) — threats or violence
• 107. 

  Subsection 21(1) — harbouring or concealing
• 108. 

  Subsection 22(1) — preparatory acts
• 109. 

  Section 23 — conspiracy, attempt, etc.

• (b.1) an offence against section 126.1 or 126.2 or subsection 233(1) or 240(1) of the Excise Act, section 153, 159, 163.1 or 163.2 of the Customs Act, subsection 52.1(9) of the Competition Act or subsection 4(1), (2), (3) or (4), section 6, subsection 13(1), 14(1), 16(1) or (2), 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1) or section 23 of the Security of Information Act, or

Marginal note:Exclusion of public in certain cases

• 486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice, or that it is necessary to prevent injury to international relations or national defence or national security, to exclude all or any members of the public from the court room for all or part of the proceedings, he or she may so order.

• (ii) an offence under the Security of Information Act;

• Marginal note:Person making assignment and person having knowledge thereof

  (6) Any person who has made an assignment to the Minister of National Defence under this section, in respect of any covenants and agreements contained in such assignment for keeping the invention secret and otherwise in respect of all matters relating to that invention, and any other person who has knowledge of such assignment and of such covenants and agreements, shall be, for the purposes of the Security of Information Act, deemed to be persons having in their possession or control information respecting those matters that has been entrusted to them in confidence by any person holding office under Her Majesty, and the communication of any of that information by the first mentioned persons to any person other than one to whom they are authorized to communicate with, by or on behalf of the Minister of National Defence, is an offence under section 4 of the Security of Information Act.

Marginal note:Security of Information Act applicable

20. Subject to section 21, the Security of Information Act applies and shall be construed as applying in respect of a designated state as though

Marginal note:Exception

21. Section 26 of the Security of Information Act does not apply in respect of a designated state.

3. For the purposes of paragraph 18(3)(b) of the Privacy Act, the laws concerned, in relation to those files that are contained in the exempt bank referred to in section 2 that consist predominantly of personal information described in subparagraph 22(1)(a)(ii) of that Act, are the Criminal Code, the Security of Information Act, the Security Offences Act, the Royal Canadian Mounted Police Act and the Canadian Security Intelligence Service Act.

Offences under Security of Information Act

24. When a person is charged under section 130 of the National Defence Act with having committed an offence under section 6 of the Security of Information Act, the prosecutor may adduce evidence of that person’s character.

Interpretation

Definition of “official”

36.1 In sections 37 to 38.16, “official” has the same meaning as in section 118 of the Criminal Code.

Specified Public Interest

Marginal note:Objection to disclosure of information

• 37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

• Marginal note:Obligation of court, person or body

  (1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Objection made to superior court

  (2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.

• Marginal note:Objection not made to superior court

  (3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by

  • (a) the Federal Court — Trial Division, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or

  • (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

• Marginal note:Limitation period

  (4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the court having jurisdiction to hear the application considers appropriate in the circumstances.

• Marginal note:Disclosure order

  (4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.

• Marginal note:Disclosure order

  (5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.

• Marginal note:Prohibition order

  (6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information.

• Marginal note:Evidence

  (6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.

• Marginal note:When determination takes effect

  (7) An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order, or a judgment of an appeal court that confirms the order, has expired, or no further appeal from a judgment that confirms the order is available.

• Marginal note:Introduction into evidence

  (8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5), but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information, may request from the court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (5).

• Marginal note:Relevant factors

  (9) For the purpose of subsection (8), the court having jurisdiction under subsection (2) or (3) shall consider all the factors that would be relevant for a determination of admissibility before the court, person or body.

Marginal note:Appeal to court of appeal

• 37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6)

  • (a) to the Federal Court of Appeal from a determination of the Federal Court — Trial Division; or

  • (b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.

• Marginal note:Limitation period for appeal

  (2) An appeal under subsection (1) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

Marginal note:Limitation periods for appeals to Supreme Court of Canada

37.2 Notwithstanding any other Act of Parliament,

• (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and

• (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the court that grants leave.

Marginal note:Special rules

• 37.21 (1) A hearing under subsection 37(2) or (3) or an appeal of an order made under any of subsections 37(4.1) to (6) shall be heard in private.

• Marginal note:Representations

  (2) The court conducting a hearing under subsection 37(2) or (3) or the court hearing an appeal of an order made under any of subsections 37(4.1) to (6) may give

  • (a) any person an opportunity to make representations; and

  • (b) any person who makes representations under paragraph (a) the opportunity to make representations ex parte.

Marginal note:Protection of right to a fair trial

• 37.3 (1) A judge presiding at a criminal trial or other 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 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.

• 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.

International Relations and National Defence and National Security

Marginal note:Definitions

38. The following definitions apply in this section and in sections 38.01 to 38.15.

“judge”

« juge »

“judge” means the Chief Justice of the Federal Court or a judge of the Federal Court — Trial Division designated by the Chief Justice to conduct hearings under section 38.04.

“participant”

« participant »

“participant” means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information.

“potentially injurious information”

« renseignements potentiellement préjudiciables »

“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.

“proceeding”

« instance »

“proceeding” means a proceeding before a court, person or body with jurisdiction to compel the production of information.

“prosecutor”

« poursuivant »

“prosecutor” means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding.

“sensitive information”

« renseignements sensibles »

“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

Marginal note:Notice to Attorney General of Canada

• 38.01 (1) Every participant who, in connection with a 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 shall, 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 proceeding.

• Marginal note:During a proceeding

  (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Notice of disclosure from official

  (3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.

• Marginal note:During a proceeding

  (4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Military proceedings

  (5) In the case of a proceeding under Part III of the National Defence Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.

• Marginal note:Exception

  (6) This section does not apply when

  • (a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding;

  • (b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under section 38, this section and sections 38.02 to 38.13, 38.15 and 38.16;

  • (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; or

  • (d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule.

• Marginal note:Exception

  (7) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (6)(c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter with the person presiding under subsection (2).

• Marginal note:Schedule

  (8) The Governor in Council may, by order, add to or delete from the schedule a reference to any entity or purpose, or amend such a reference.

Marginal note:Disclosure prohibited

• 38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding

  • (a) information about which notice is given under any of subsections 38.01(1) to (4);

  • (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5);

  • (c) the fact that an application is made to the Federal Court — Trial Division under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or

  • (d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6).

• Marginal note:Entities

  (1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given.

• Marginal note:Exceptions

  (2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if

  • (a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or

  • (b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available.

Marginal note:Authorization by Attorney General of Canada

• 38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1).

• Marginal note:Military proceedings

  (2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.

• Marginal note:Notice

  (3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information.

Marginal note:Disclosure agreement

• 38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court — Trial Division under paragraph 38.04(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.

• Marginal note:No application to Federal Court

  (2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court — Trial Division under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2).

Marginal note:Application to Federal Court — Attorney General of Canada

• 38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court — Trial Division for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).

• Marginal note:Application to Federal Court — general

  (2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions,

  • (a) the Attorney General of Canada shall apply to the Federal Court — Trial Division for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness;

  • (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court — Trial Division 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 proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court — Trial Division for an order with respect to disclosure of the information.

• Marginal note:Notice to Attorney General of Canada

  (3) A person who applies to the Federal Court — Trial Division under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.

• Marginal note:Court records

  (4) An application under this section is confidential. Subject to section 38.12, the Administrator of the Federal Court may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.

• Marginal note:Procedure

  (5) As soon as the Federal Court — Trial Division is seized of an application under this section, the judge

  • (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, 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;

  • (b) shall decide whether it is necessary to hold any hearing of the matter;

  • (c) if he or she decides that a hearing should be held, shall

    • (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

  • (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations.

• Marginal note:Disclosure agreement

  (6) After the Federal Court — Trial Division is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of,

  • (a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(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 Court’s consideration of the application or any hearing, review or appeal shall be terminated.

• Marginal note:Termination of Court consideration, hearing, review or appeal

  (7) Subject to subsection (6), after the Federal Court — Trial Division is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.

Marginal note:Report relating to proceedings

38.05 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge.

Marginal note:Disclosure order

• 38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information.

• Marginal note:Disclosure order

  (2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.

• Marginal note:Order confirming prohibition

  (3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure.

• Marginal note:Evidence

  (3.1) 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 his or her decision on that evidence.

• Marginal note:Introduction into evidence

  (4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).

• Marginal note:Relevant factors

  (5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding.

Marginal note:Notice of order

38.07 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified.

Marginal note:Automatic review

38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review.

Marginal note:Appeal to Federal Court of Appeal

• 38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.

• Marginal note:Limitation period for appeal

  (2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances.

Marginal note:Limitation periods for appeals to Supreme Court of Canada

38.1 Notwithstanding any other Act of Parliament,

• (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the 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 shall 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.

Marginal note:Special rules

• 38.11 (1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall be heard in private and, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, shall be heard in the National Capital Region, as described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.

Marginal note:Protective order

• 38.12 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of the information to which the hearing, appeal or review relates.

• Marginal note:Court records

  (2) The court records relating to the hearing, appeal or review are confidential. The judge or the court may order that the records be sealed and kept in a location to which the public has no access.

Marginal note:Certificate of Attorney General of Canada

• 38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting 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 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.

• Marginal note:Military proceedings

  (2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.

• Marginal note:Service of certificate

  (3) The Attorney General of Canada shall cause a copy of the certificate to be served on

  • (a) the person presiding or designated to preside at the 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 proceeding;

  • (c) every person who gives notice under section 38.01 in connection with the proceeding;

  • (d) every person who, in connection with the 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 38.01;

  • (e) every party to a hearing under subsection 38.04(5) or to an appeal of an order made under any of subsections 38.06(1) to (3) in relation to the information;

  • (f) the judge who conducts a hearing under subsection 38.04(5) and any court that hears an appeal from, or review of, an order made under any of subsections 38.06(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.

• Marginal note:Filing of certificate

  (4) The Attorney General of Canada shall cause a copy of the certificate to be filed

  • (a) with the person responsible for the records of the proceeding to which the information relates; and

  • (b) in the Registry of the Federal Court and the registry of any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3).

• Marginal note:Effect of certificate

  (5) If the Attorney General of Canada issues a certificate, then, notwithstanding any other provision of this Act, disclosure of the information shall be prohibited in accordance with the terms of the certificate.

• Marginal note:Statutory Instruments Act does not apply

  (6) The Statutory Instruments Act does not apply to a certificate issued under subsection (1).

• Marginal note:Publication

  (7) The Attorney General of Canada shall, without delay after a certificate is issued, cause the certificate to be published in the Canada Gazette.

• Marginal note:Restriction

  (8) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with section 38.131.

• Marginal note:Expiration

  (9) The certificate expires 15 years after the day on which it is issued and may be reissued.

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

  (3) In the case of proceedings under Part III of the National Defence Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.

• 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 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 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 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.

• Marginal note:Publication

  (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

  • (a) the certificate as varied under subsection (8); or

  • (b) a notice of the cancellation of the certificate under subsection (9).

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.

Marginal note:Fiat

• 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

  • (a) is conclusive proof that the prosecution described in the fiat or any related process may be conducted by or on behalf of the Attorney General of Canada; and

  • (b) is admissible in evidence without proof of the signature or official character of the Attorney General of Canada.

• Marginal note:Military proceedings

  (5) This section does not apply to a proceeding under Part III of the National Defence Act.

Marginal note:Regulations

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.

Confidences of the Queen’s Privy Council for Canada