Définitions et interprétation

Marginal note:Forms

2.1 If this Act requires that a form be used, the form may incorporate any variations that the circumstances require.

Marginal note:Oaths

10 The Director and every employee shall, before commencing the duties of office, take an oath of allegiance and the oaths set out in Schedule 1.

Datasets

Canadian

Canadian in respect of a person, means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated or continued under the laws of Canada or a province. (Canadien)

dataset

dataset means a collection of information that

• (a) is characterized by a common subject matter;

• (b) is stored as an electronic record;

• (c) contains personal information, as defined in section 3 of the Privacy Act; and

• (d) is relevant to the performance of the Service’s duties and functions under any of sections 12 to 16 but cannot be collected or retained under any of those sections. (ensemble de données)

exploitation

exploitation means a computational analysis or series of computational analyses that is performed on one or more collections of information for the purpose of obtaining intelligence that would not otherwise be apparent. (exploitation)

query

query means a specific search or series of specific searches, with respect to a person or entity, that is performed on one or more collections of information for the purpose of obtaining intelligence. (interrogation)

Marginal note:Classes — Canadian datasets

• 11.03 (1) The Minister shall, by order, determine classes of Canadian datasets for which collection is authorized.

• Marginal note:Criteria

  (2) The Minister may determine that a class of Canadian datasets is authorized to be collected if the Minister concludes that the querying or exploitation of datasets in the class could lead to results that are relevant to the performance of the Service’s duties and functions under section 12, 12.1, 15 or 16.

• Marginal note:Maximum period

  (2.1) An order under subsection (1) is valid for a period of not more than two years.

Marginal note:Collection of datasets

11.05 The Service may collect a dataset only if it reasonably believes that the dataset

• (a) is a publicly available dataset;

• (b) belongs to an approved class; or

• (c) predominantly relates to non-Canadians who are outside Canada.

Marginal note:Collection under section 12, 15 or 16

11.051 If the Service concludes that information that was collected under section 12, 15 or 16 constitutes a dataset or could be used to constitute a dataset, that information is deemed to have been collected as a dataset under section 11.05 on the day on which the Service reached that conclusion.

Marginal note:Collection outside Canada

• 11.052 (1) As soon as feasible after collecting a dataset under section 11.05 outside Canada, the Service shall either destroy the dataset or provide it to a designated employee for the purposes of section 11.07.

• Marginal note:Deemed collection date

  (2) A dataset that is provided to a designated employee under subsection (1) is, for the purposes of section 11.07, deemed to have been collected on the day on which it is provided to the designated employee.

Marginal note:Collection in execution of warrant or production order

• 11.053 (1) If the Service concludes that information that was incidentally collected in the execution of a warrant issued under section 21 or 22.21 or a production order issued under section 20.4 constitutes a dataset or could be used to constitute a dataset, that information is deemed to have been collected as a dataset under section 11.05 on the day on which the Service reached that conclusion.

• Marginal note:Terms and conditions

  (2) The terms and conditions of the warrant or production order continue to apply to the dataset.

Marginal note:Deemed collection date

11.054 If a dataset is deemed to have been collected on more than one day under section 11.051, 11.052 or 11.053 or subsection 11.1(3), the dataset is deemed, for the purposes of section 11.07, to have been collected on the latest of those days.

• Marginal note:Disclosure

  (3) The Service may disclose a publicly available dataset and, if it does so, section 19 does not apply to the disclosure.

• (a) the approved class to which the Canadian dataset belongs or to which it belonged on the day on which it was collected; and

• Marginal note:Disclosure of dataset

  (1.1) The judicial authorization shall also establish any terms and conditions that the judge considers necessary respecting the disclosure of the dataset by the Service.

• Marginal note:Non-application

  (1.2) Section 19 does not apply to the disclosure of the dataset.

• Marginal note:Maximum period

  (2) The judicial authorization is valid for a period of not more than five years.

• Marginal note:Destruction — absence of new application

  (3) If the Service does not request the Minister’s approval under section 11.12 to make a new application for a judicial authorization to retain a Canadian dataset before the period of the judicial authorization given in respect of that dataset expires, the Service shall destroy the dataset within 30 days after the expiry of that period.

• Marginal note:New application — approval not obtained

  (3.1) If the Service requests but does not obtain the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service shall destroy the dataset within 30 days after the later of the day on which the request was rejected by the Minister and the day on which the period of the judicial authorization expires.

• Marginal note:New application — approval obtained

  (4) If the Service requests and obtains the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service may, subject to subsection (5), retain the dataset until a decision is made in respect of the new application.

• Marginal note:Limit

  (5) If the period of a judicial authorization expires, in the circumstances under subsection (3.1) or (4), the Service shall neither query nor exploit the dataset until and unless a new authorization has been issued for the dataset.

• Marginal note:Dataset subject to judicial authorization — section 12, 12.1 or 15

  (2) A designated employee may, to the extent that it is strictly necessary, query or exploit a Canadian dataset that is subject to a judicial authorization issued under section 11.13 to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.

• Marginal note:Dataset subject to approved authorization — section 12, 12.1 or 15

  (3) A designated employee may, to the extent that it is strictly necessary, query or exploit a foreign dataset that is the subject of an authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.

• (b) the retention is strictly necessary to assist the Service in the performance of its duties and functions under section 12.1 or 15; or

• (b) limit access to those datasets to designated employees and take reasonable measures to ensure that any information that they obtained, or to which they had access, is only communicated for the purpose of performing the Service’s duties and functions under this Act;

• (c) establish record keeping requirements for those datasets with respect to the rationale for their collection and retention, the details of each query and exploitation, the results of those queries and exploitations, and if the results were retained for the purpose of performing the Service’s duties and functions under section 12, 12.1, 15 or 16; and

• (c) in the case of a query or exploitation performed on the basis of exigent circumstances under section 11.22, give the Review Agency a copy of the Director’s authorization under that section and indicate the results of the query or exploitation and any actions taken after obtaining those results.

Threats to the Security of Canada

Security Assessments and Advice

Assistance and Cooperation

• Marginal note:Information or intelligence outside Canada

  (1.1) The assistance provided under subsection (1) may include the collection, from within Canada, of information or intelligence that is located outside Canada if the assistance is directed at a person or thing in Canada or at an individual who was in Canada and is temporarily outside Canada.

Identity of Employees and Human Sources

Disclosure of Information

Protection of Employees and Justification

• (b) the employee would be justified in committing or directing another person to commit an act or omission that would otherwise constitute an offence.

Marginal note:Preservation order

• 20.3 (1) The Director or any employee who is designated by the Director for the purpose may make an application to a judge for a preservation order under this section.

• Marginal note:Making of order

  (2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to preserve any information, record or document — regardless of medium or form — or thing that is in their possession or control when they receive the order, if the judge is satisfied by information on oath in Form 1 of Schedule 2 that

  • (a) there are reasonable grounds to suspect that the information, record, document or thing is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16;

  • (b) the order is necessary to prevent the loss or destruction or ensure the preservation of the information, record, document or thing; and

  • (c) the Director or an employee who is designated by the Director for the purpose intends to apply or has applied for a production order under section 20.4 or a warrant under section 21 or 22.21 to obtain the information, record, document or thing or, under section 23, to remove a thing.

• Marginal note:Form 2

  (3) The order is to be made in Form 2 of Schedule 2.

• Marginal note:Preservation outside Canada

  (4) The order may be made in respect of information, records, documents or things located outside Canada, with any modifications that the circumstances require.

• Marginal note:Measures

  (5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.

• Marginal note:Expiry of order

  (6) The order expires 90 days after the day on which it is made.

• Marginal note:Notification of Minister

  (7) The Director shall notify the Minister that an application for an order has been made under this section as soon as feasible after the application is made.

Marginal note:Production order

• 20.4 (1) The Director or an employee who is designated by the Minister for the purpose may, after having obtained the Minister’s approval, make an application to a judge for a production order under this section.

• Marginal note:Making of order

  (2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to produce any information, record or document — regardless of medium or form — that is in their possession or control when they receive the order if the judge is satisfied by information on oath in Form 3 of Schedule 2 that there are reasonable grounds to believe that the information, record or document is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16.

• Marginal note:Form 4

  (3) The order is to be made in Form 4 of Schedule 2.

• Marginal note:Production outside Canada

  (4) The order may be made in respect of information, records or documents located outside Canada, with any modifications that the circumstances require.

• Marginal note:Measures

  (5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.

Marginal note:Revocation or variation of production order

• 20.5 (1) Before they produce any information, record or document that they are required to produce under an order made under section 20.4, a person or entity may apply in writing to a judge to revoke or vary the order.

• Marginal note:Notice required

  (2) The person or entity may make the application only if they give notice of their intention to do so to a judge and to an employee in Form 5 of Schedule 2 within 14 days after the day on which the order is served.

• Marginal note:No obligation to produce

  (3) The person or entity is not required to produce the information, record or document until a final decision is made with respect to the application.

• Marginal note:Revocation or variation of order

  (4) The judge may revoke or vary the order if satisfied that

  • (a) it is unreasonable in the circumstances to require the applicant to produce the information, record or document; or

  • (b) production of the information, record or document would disclose information that is privileged or otherwise protected from disclosure by law.

Marginal note:Clarification — voluntary preservation or production

• 20.6 (1) For greater certainty, the Service may request that a person or entity voluntarily preserve any information, record, document or thing, or voluntarily produce any information, record or document to the Service, without needing to obtain a preservation or production order so long as the person or entity is not prohibited by law from preserving or producing the information, record, document or thing, as the case may be, and the Service may collect it under section 12 or 16.

• Marginal note:Clarification — other collection authorities

  (2) For greater certainty, the fact that a preservation order or production order may be made under section 20.3 or 20.4 does not affect the Service’s authority to collect any information, record, document or thing under any other provision of this Act.

Marginal note:No civil or criminal liability

20.7 No criminal or civil proceedings lie against a person who voluntarily preserves any information, record, document or thing, or voluntarily produces any information, record or document, following a request from the Service in the circumstances described in subsection 20.6(1), or against a person acting on behalf of an entity that receives such a request.

Marginal note:Destruction of preserved elements — preservation order

• 20.8 (1) A person or entity that is subject to a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section as soon as feasible after the order expires, unless they are subject to a new preservation order, a production order made under section 20.4 or a warrant issued under section 21, 22.21 or 23 with respect to the information, record, document or thing, as the case may be.

• Marginal note:Destruction of preserved elements — production order

  (2) A person or entity that is subject to a production order made under section 20.4 with respect to any information, record or document that they preserved under a preservation order made under section 20.3 shall destroy the information, record or document that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record or document under that section as soon as feasible after the earlier of

  • (a) the day on which the production order is revoked; and

  • (b) the day on which the information, record or document, or document prepared for the purpose of preserving the information, record or document, is produced under the production order.

• Marginal note:Destruction of preserved elements — warrant

  (3) Despite subsections (1) and (2), a person or entity that preserved any information, record, document or thing under a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section when the information, record, document or thing, or document prepared for the purpose of preserving the information, record, document or thing, is obtained under a warrant issued under section 21 or 22.21 or when a thing is removed in accordance with a warrant issued under section 23.

Marginal note:Application for warrant to obtain information, record, document or thing

• 22.21 (1) If the Director or any employee who is designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to obtain any information, record or document — regardless of medium or form — or thing that will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16, the Director or employee may, after having obtained the Minister’s approval, make an application in accordance with subsection (2) to a judge for a warrant under this section.

• Marginal note:Matters to be specified in application for warrant

  (2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters:

  • (a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to obtain any information, record or document — regardless of medium or form — or thing that will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16;

  • (b) the type of information, record, document or thing proposed to be obtained;

  • (c) the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised;

  • (d) the identity of the person, if known, who has possession of the information, record, document or thing proposed to be obtained;

  • (e) the persons or classes of persons to whom the warrant is proposed to be directed;

  • (f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

  • (g) the period, not exceeding 120 days, for which the warrant is requested to be in force; and

  • (h) any previous application made under subsection (1) or 21(1) in relation to a person who is identified in the affidavit in accordance with paragraph (d), the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.

• Marginal note:Issuance of warrant

  (3) Despite any other law but subject to the Statistics Act, if the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraph (2)(a) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to obtain, through a single attempt, any information, record or document — regardless of medium or form — or thing and, for that purpose,

  • (a) to enter any place or open or obtain access to any thing;

  • (b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing; or

  • (c) to install, maintain or remove any thing.

• Marginal note:Activities outside Canada

  (4) Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada.

• Marginal note:Obtaining information, records or documents from within Canada

  (5) Without regard to any other law, including that of any foreign state, and to assist the Service in the performance of its duties and functions under section 16, a judge may, in a warrant issued under subsection (3), authorize the Service to obtain, from within Canada, any information, record or document — regardless of medium or form — that is located outside Canada.

• Marginal note:Matters to be specified in warrant

  (6) There shall be specified in a warrant issued under subsection (3)

  • (a) the type of information, record, document or thing authorized to be obtained and the powers referred to in paragraphs (3)(a) to (c) authorized to be exercised for that purpose;

  • (b) the identity of the person, if known, who has possession of the information, record, document or thing to be obtained;

  • (c) the persons or classes of persons to whom the warrant is directed;

  • (d) a general description of the place where the warrant may be executed, if a general description of that place can be given;

  • (e) the period for which the warrant is in force in accordance with subsection (7); and

  • (f) any terms and conditions that the judge considers advisable in the public interest.

• Marginal note:Duration of warrant

  (7) A warrant issued under subsection (3) ceases to have effect on the earlier of the end of a period of up to 120 days that begins on the day on which the warrant is issued and the day on which the information, record, document or thing is obtained.

• Marginal note:Clarification — other warrants

  (8) For greater certainty, the fact that a warrant may be issued under this section does not affect a judge’s authority to issue a warrant under section 21 nor the validity of such a warrant.

Marginal note:Assistance order

• 22.3 (1) A judge may order any person to provide assistance if the person’s assistance may reasonably be considered to be required to give effect to a warrant issued under section 21, 21.1, 22.21 or 23.

Marginal note:Warrant authorizing removal

• 23 (1) If the Director or any employee who is designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to remove any thing from any place where it was installed in the performance of the Service’s duties and functions under section 12 or 16 or in accordance with a warrant issued under section 21, 21.1 or 22.21, the Director or employee may make an application in accordance with subsection (2) to a judge for a warrant under this section.

• Marginal note:Matters to be specified in application for warrant

  (2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters:

  • (a) a general description of the thing to be removed;

  • (b) the facts relied on to justify the belief, on reasonable grounds, that the thing is in the place;

  • (c) the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised;

  • (d) the identity of the person, if known, who possesses the thing;

  • (e) the persons or classes of persons to whom the warrant is proposed to be directed;

  • (f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given; and

  • (g) the period for which the warrant is requested to be in force.

• Marginal note:Issuance of warrant

  (3) Despite any other law but subject to the Statistics Act, if the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraph (2)(b) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to remove any thing from any place where it was installed and, for that purpose,

  • (a) to enter any place or open or obtain access to any other thing;

  • (b) to search for the thing; or

  • (c) to install, maintain, remove, return or examine any other thing.

• Marginal note:Matters to be specified in warrant

  (4) There shall be specified in a warrant issued under subsection (3)

  • (a) a general description of the thing authorized to be removed and the powers referred to in paragraphs (3)(a) to (c) authorized to be exercised for that purpose;

  • (b) the identify of the person, if known, who possesses the thing;

  • (c) the persons or classes of persons to whom the warrant is directed;

  • (d) a general description of the place where the warrant may be executed, if a general description of that place can be given;

  • (e) the period for which the warrant is in force; and

  • (f) the terms and conditions that the judge considers advisable in the public interest.

Marginal note:Making and hearing of applications

• 27 (1) An application for a judicial authorization under section 11.13, an application under section 20.3 for a preservation order, an application under section 20.4 for a production order, an application under section 21, 21.1, 22.21 or 23 for a warrant, an application under section 22 or 22.1 for the renewal of a warrant or an application for an order under section 22.3 shall be made ex parte and heard in private in accordance with regulations made under section 28.

• Marginal note:Hearing of applications — section 20.5

  (2) An application under section 20.5 for the revocation or variation of a production order may be heard in private in accordance with regulations made under section 28.

PART IIIParliamentary Review

Marginal note:Five-year review

29 As soon as feasible after the fifth anniversary of the day on which this section comes into force and after each subsequent fifth anniversary, a review of this Act and of its administration and operation is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.

Marginal note:Query or exploitation of dataset in exigent circumstances

18 The Commissioner must review whether the conclusions — made under subsection 11.22(1) of the Canadian Security Intelligence Service Act and on the basis of which a query or exploitation of a dataset in exigent circumstances was authorized — are reasonable.

Alternative Title

Marginal note:Alternative title

1 This Act may be cited as the Foreign Interference and Security of Information Act.

Marginal note:Amending Schedule 1

9 The Governor in Council may, by order, amend Schedule 1 by adding or deleting the name of any current or former department, division, branch or office of the federal public administration, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to security and intelligence matters, or by modifying any name set out in the schedule.

Marginal note:Amending Schedule 2

9.1 The Governor in Council may, by order, amend Schedule 2 by adding, deleting or modifying

• (a) the name of any current or former Canadian Forces unit or other element, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to matters of security and intelligence or of national defence; or

• (b) a reference to any current or former position in the Canadian Forces, the powers, duties and functions of which are or were, in the opinion of the Governor in Council, primarily related to matters of security and intelligence or of national defence.

Foreign-influenced or Terrorist-influenced Intimidation, Threats or Violence

Marginal note:Intimidation, threats or violence

• 20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person to do anything or to cause anything to be done.

• Marginal note:Extraterritorial application

  (2) Despite subsection 26(1), a person who commits an act referred to in subsection (1) while outside Canada is deemed to have committed it in Canada if

  • (a) the victim is in Canada; or

  • (b) the victim is outside Canada and

    • (i) the person or the victim or both are

      • (A) a Canadian citizen,

      • (B) a person who is ordinarily resident in Canada,

      • (C) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,

      • (D) a person who owes allegiance to His Majesty in right of Canada, or

      • (E) a person who is locally engaged and who performs their functions in a Canadian mission outside Canada, or

    • (ii) is a person described in any of clauses (i)(A) to (E), the intimidation, threat or violence is in relation to the victim’s child, relative or intimate partner, as defined in section 2 of the Criminal Code, and the child, relative or partner is in or outside Canada.

• Marginal note:Punishment

  (3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

• Marginal note:Sentences to be served consecutively

  (4) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  • (a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

  • (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

• Marginal note:Application — subsections 26(2) to (4)

  (5) If a person is deemed under this section to have committed an act referred to in subsection (1) in Canada, subsections 26(2) to (4) apply, with any adaptations that may be necessary, to any proceedings in respect of an offence under subsection (1).

• Marginal note:Definition of victim

  (6) For greater certainty, in this section, victim means the person who the person who commits, or is alleged to have committed, the offence under subsection (1) induces or attempts to induce, or is alleged to have induced or attempted to induce, to do anything or to cause anything to be done.

Marginal note:Intimidation, threats or violence outside Canada

• 20.1 (1) Every person commits an offence who, while outside Canada, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person outside Canada to do anything or to cause anything to be done

  • (a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or

  • (b) that is reasonably likely to harm Canadian interests.

• Marginal note:Application

  (2) If any of the facts referred to in paragraph 20(2)(b) apply to either the person who is alleged to have committed an act referred to in subsection (1) or the victim, the person who is alleged to have committed the act is to be prosecuted under subsection 20(1).

• Marginal note:Punishment

  (3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

• Marginal note:Sentences to be served consecutively

  (4) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  • (a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

  • (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

• Marginal note:Application — subsections 26(2) to (4)

  (5) Subsections 26(2) to (4) apply, with any adaptations that may be necessary, to any proceedings in respect of an offence under subsection (1).

• Marginal note:Definition of victim

  (6) For greater certainty, in this section, victim means the person who the person who commits, or is alleged to have committed, the offence under subsection (1) induces or attempts to induce, or is alleged to have induced or attempted to induce, to do anything or to cause anything to be done.

Indictable Offence Committed for a Foreign Entity

Marginal note:Committing indictable offence for foreign entity

• 20.2 (1) Every person who commits an indictable offence under this or any other Act of Parliament at the direction of, for the benefit of or in association with, a foreign entity is guilty of an indictable offence and is liable to imprisonment for life.

• Marginal note:Sentences to be served consecutively

  (2) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  • (a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

  • (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Conduct or Omission for a Foreign Entity

Marginal note:Engaging in surreptitious or deceptive conduct

• 20.3 (1) Every person commits an indictable offence who, at the direction of, for the benefit of or in association with, a foreign entity, knowingly engages in surreptitious or deceptive conduct or omits, surreptitiously or with the intent to deceive, to do anything if the person’s conduct or omission is for a purpose prejudicial to the safety or interests of the State or the person is reckless as to whether their conduct or omission is likely to harm Canadian interests.

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1) is liable to imprisonment for life.

• Marginal note:Sentences to be served consecutively

  (3) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  • (a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

  • (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Political Interference for a Foreign Entity

Marginal note:Influencing political or governmental process

• 20.4 (1) Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty in relation to such a process or such governance or the exercise of a democratic right in Canada.

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1) is liable to imprisonment for life.

• Marginal note:Sentences to be served consecutively

  (3) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  • (a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

  • (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

• Marginal note:Definitions

  (4) The following definitions apply in this section.

  educational governance

  educational governance means the governance of a school board or primary or secondary school, college, university or other institution of higher learning or training institution in Canada. (gouvernance scolaire)

  political or governmental process

  political or governmental process includes

  • (a) any proceeding of a legislative body;

  • (b) the development of a legislative proposal;

  • (c) the development or amendment of any policy or program;

  • (d) the making of a decision by a public office holder or government body, including the awarding of a contract;

  • (e) the holding of an election or referendum; and

  • (f) the nomination of a candidate or the development of an electoral platform by a political party. (processus politique ou gouvernemental)

  public office holder

  public office holder means any of the following individuals:

  • (a) any officer or employee of His Majesty in right of Canada and includes

    • (i) a member of the Senate or the House of Commons and any person on the staff of such a member,

    • (ii) a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,

    • (iii) an officer, director or employee of any federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act,

    • (iv) a member of the Canadian Forces, and

    • (v) a member of the Royal Canadian Mounted Police;

  • (b) members of the legislature of a province or persons on the staff of such members;

  • (c) employees of the government of a province;

  • (d) members of a council or other statutory body charged with the administration of the civil or municipal affairs of a city, town, municipality or district, persons on the staff of such members or officers or employees of a city, town, municipality or district;

  • (e) members of the council of a band, as defined in subsection 2(1) of the Indian Act, or of the council of an Indian band established by an Act of Parliament, persons on their staff or employees of such a council;

  • (f) members of an aboriginal government or institution that exercises jurisdiction or authority under a self-government agreement, or under self-government provisions contained in a land claims agreement, given effect by or under an Act of Parliament, persons on the staff of those members or employees of that government or institution;

  • (g) an officer or employee of an entity that represents the interests of First Nations, the Inuit or the Métis. (titulaire d’une charge publique)

• Marginal note:Application

  (5) This section applies to any of the following political or governmental processes in Canada:

  • (a) federal political or governmental processes;

  • (b) provincial or territorial political or governmental processes;

  • (c) municipal political or governmental processes;

  • (d) the political or governmental processes of

    • (i) a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982, or

    • (ii) any other entity that represents the interests of First Nations, the Inuit or the Métis.

• (c) an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act;

• (d) Schedule 1 to the Foreign Interference and Security of Information Act;

Marginal note:Sabotage — essential infrastructure

• 52.1 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who interferes with access to an essential infrastructure or causes an essential infrastructure to be lost, inoperable, unsafe or unfit for use with the intent to

  • (a) endanger the safety, security or defence of Canada;

  • (b) endanger the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada; or

  • (c) cause a serious risk to the health or safety of the public or any segment of the public.

• Marginal note:Definition of essential infrastructure

  (2) In this section, essential infrastructure means a facility or system, whether public or private, completed or under construction, that provides or distributes — or is intended to provide or distribute — services that are essential to the health, safety, security or economic well-being of persons in Canada, including the following:

  • (a) transportation infrastructure;

  • (b) information and communication technology infrastructure;

  • (c) water and wastewater management infrastructure;

  • (d) energy and utilities infrastructure;

  • (e) health services infrastructure;

  • (f) food supply and food services infrastructure;

  • (g) government operations infrastructure;

  • (h) financial infrastructure; and

  • (i) any other infrastructure prescribed by regulations.

• Marginal note:Saving — stop work

  (3) No person commits an offence under subsection (1) by reason only that

  • (a) they stop work as a result of the failure of their employer and themselves to agree on any matter relating to their employment;

  • (b) they stop work as a result of the failure of their employer and a bargaining agent acting on their behalf to agree on any matter relating to their employment; or

  • (c) they stop work as a result of their taking part in a combination of workers or employees for their own reasonable protection as workers or employees.

• Marginal note:Saving — obtaining or communicating information

  (4) No person commits an offence under subsection (1) by reason only that they attend at or near or approach a dwelling-house or place for the purpose only of obtaining or communicating information.

• Marginal note:For greater certainty

  (5) For greater certainty, no person commits an offence under subsection (1) if they interfere with access to an essential infrastructure or cause an essential infrastructure to be lost, inoperable, unsafe or unfit for use while participating in advocacy, protest or dissent but they do not intend to cause any of the harms referred to in paragraphs (1)(a) to (c).

• Marginal note:Regulations

  (6) The Governor in Council may make regulations prescribing any infrastructure for the purpose of paragraph (i) of the definition essential infrastructure in subsection (2).

Marginal note:Sabotage — device

• 52.2 (1) Every person commits an offence who makes, possesses, sells or distributes a device intending that it be used or knowing that it will be used, in whole or in part, to carry out an offence under subsection 52(1) or 52.1(1).

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

  • (b) is guilty of an offence punishable on summary conviction.

• Marginal note:Definition of device

  (3) For the purposes of this section, device includes a computer program as defined in subsection 342.1(2).

Marginal note:Attorney General’s consent

52.3 No proceeding for an offence under subsection 52(1), 52.1(1) or 52.2(1) shall be instituted without the Attorney General’s consent.

• (iii.01) section 52.1 (sabotage — essential infrastructure),

• (iii.02) section 52.2 (sabotage — device),

• (a) an offence under section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13,

• (c) an offence against section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13, or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

• (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act; or

• (e) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of that Act,

Marginal note:Definition of official

36.1 In sections 37 to 38.43, official has the same meaning as in section 118 of the Criminal Code.

Provisions of General Application

proceeding

proceeding means a proceeding before a court, person or body with jurisdiction to compel the production of information, but does not include a federal proceeding, as defined in section 38.2. (instance)

• Marginal note:Notice

  (3) The Attorney General of Canada shall, within 30 days after the day on which they first receive 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 their decision with respect to disclosure of the information.

Marginal note:Appeal to Federal Court of Appeal

• 38.09 (1) Subject to subsection (1.1), an order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.

• Marginal note:Limitation — person charged with offence

  (1.1) A person who is charged with an offence may appeal an order referred to in subsection (1) that is made in relation to a criminal trial or other criminal proceeding only if they are convicted of the offence.

• Marginal note:Limitation period for appeal

  (2) An appeal under this section shall be brought

  • (a) in the case of an appeal permitted under subsection (1.1), after conviction and within the same period in which the accused may appeal from their conviction or any further time that the Court considers appropriate in the circumstances; or

  • (b) in any other case, within 15 days after the day on which the order is made or any further time that the Court considers appropriate in the circumstances.

• Marginal note:Exceptional circumstances

  (3) Despite subsection (1.1) and paragraph (2)(a), the Court may, on application by the person charged with the offence, permit the appeal to be brought before conviction if the Court is satisfied that there are exceptional circumstances that justify doing so.

• (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 15 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

• Marginal note:Single judge

  (4) Despite section 16 of the Federal Courts Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.

Secure Administrative Review Proceedings

Marginal note:Definitions

38.2 The following definitions apply in this section and in sections 38.21 to 38.45.

federal proceeding

federal proceeding means

• (a) an application for judicial review or an appeal in the Federal Court of a decision of a federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act;

• (b) an appeal in the Federal Court of Appeal from a decision of the Federal Court in a proceeding referred to in paragraph (a);

• (c) an application for judicial review or an appeal in the Federal Court of Appeal of a decision of a federal board, commission or other tribunal referred to in paragraph (a); or

• (d) a proceeding referred to in section 6 or 11 of the Charities Registration (Security Information) Act.

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)

judge

judge means

• (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)

non-governmental party

non-governmental party 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)

participant

participant 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)

potentially injurious information

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

sensitive information

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

special counsel

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

Marginal note: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.

• Marginal note:During federal 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 federal proceeding must raise the matter with the person presiding at the federal 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 federal proceeding must 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 federal 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 federal proceeding.

• Marginal note:During federal 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 federal proceeding may raise the matter with the person presiding at the federal proceeding. If the official raises the matter, they must 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 federal proceeding must ensure that the information is not disclosed other than in accordance with this Act.

• Marginal note:Exception

  (5) This section does not apply when

  • (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.

• Marginal note:Exception

  (6) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (5)(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 under subsection (2) with the person presiding at the federal proceeding.

Marginal note: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).

• 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 38.23 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.

Marginal note: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).

• Marginal note:Notice

  (2) The Attorney General of Canada must, within 30 days after the day on which they first receive a notice about information under any of subsections 38.21(1) to (4), notify in writing every person who provided notice under those subsections about that information of their decision with respect to disclosure of the information.

Marginal note: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.

• Marginal note:No motion

  (2) If an agreement is entered into under subsection (1), the person may not bring a motion under paragraph 38.25(2)(c) with respect to the information about which they gave notice to the Attorney General of Canada under subsection 38.21(1) or (2).

Marginal note: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).

• Marginal note:Motion — general

  (2) If, with respect to information about which notice was given under any of subsections 38.21(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.23(2) or, other than by an agreement under section 38.24, does not authorize the disclosure of the information or authorizes the disclosure of only part of the information or authorizes the disclosure subject to any conditions,

  • (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.

• Marginal note:Notice to Attorney General of Canada

  (3) A person who makes a motion under paragraph (2)(b) or (c) must provide notice of the motion to the Attorney General of Canada.

• Marginal note:Court records

  (4) Subject to paragraph (5)(b), a motion under this section is confidential. During the period when a motion is confidential, the Chief Administrator of the Courts Administration Service may, subject to section 38.31, take any measure that they consider appropriate to protect the confidentiality of the motion and the information to which it relates.

• Marginal note:Procedure

  (5) As soon as they are seized of a motion under this section, the judge

  • (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

  • (f) may, if they consider it appropriate in the circumstances, give any person the opportunity to make representations.

• Marginal note:Disclosure agreement

  (6) After the judge is seized of a motion made under paragraph (2)(c) or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3) in connection with that motion, before the appeal is disposed of,

  • (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.

• Marginal note:Termination

  (7) Subject to subsection (6), after the judge is seized of a motion made under this section — or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3), before the appeal is disposed of — and 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 judge’s consideration of the motion or any hearing or appeal must be terminated in relation to that information, to the extent of the authorization or the withdrawal.

Marginal note: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.

• Marginal note:Disclosure — conditions

  (2) If the judge concludes that the disclosure of the information or facts 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 or part of the information or facts, a 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 must, by order, confirm the prohibition of disclosure.

• Marginal note:When determination takes effect

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

• Marginal note:Evidence

  (5) 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 their decision on that evidence.

Marginal note:Notice of order

38.27 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.26(1) to (3) to any person who, in the opinion of the judge, should be notified.

Marginal note: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.

• Marginal note:Limitation period for appeal

  (2) An appeal must be brought within 15 days after the day on which the order is made or within any further time that the Federal Court of Appeal considers appropriate in the circumstances.

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

38.29 Despite any other Act of Parliament,

• (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.

Marginal note: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.

• Marginal note:Special rules — hearing in National Capital Region

  (2) A hearing under subsection 38.25(5) or an appeal of an order made under any of subsections 38.26(1) to (3) must, at the request of the Attorney General of Canada, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (3) 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 give any person who makes representations under paragraph 38.25(5)(f), and must give the Attorney General of Canada, the opportunity to make representations ex parte.

• Marginal note:Ex parte representations — public hearing

  (4) If a hearing under subsection 38.25(5) is held, or an appeal of an order made under any of subsections 38.26(1) to (3) is heard, in public, any ex parte representations made in that hearing or appeal must be made in private.

Marginal note: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.

• Marginal note:Court records

  (2) The court records relating to a hearing that is held, or an appeal that is heard, in private or to any ex parte representations are confidential. The judge or the court may order that the court records, or any part of them, relating to a private or public hearing or appeal be sealed and kept in a location to which the public has no access.

Marginal note:Judge seized

38.32 The judge who hears the motion brought under subsection 38.25(1) or (2) becomes seized of all matters in the federal proceeding.

Marginal note: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.

• Marginal note:Representations and private hearing

  (2) For the purposes of subsection (1), the judge may — or, if the Attorney General of Canada so requests, the judge must —

  • (a) receive ex parte representations; and

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

• Marginal note:Procedure

  (3) In conducting a hearing under paragraph (2)(b), the judge must

  • (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.

• Marginal note:Decision

  (4) The judge may base any decision on the information referred to in subsection (1) even if a summary of that information has not been provided to the non-governmental party.

Marginal note: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.

• Marginal note:List

  (2) The special counsel may be appointed from the list of persons referred to in subsection 85(1) of the Immigration and Refugee Protection Act.

Marginal note: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.

• Marginal note:Responsibilities

  (2) A special counsel may

  • (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.

• Marginal note:For greater certainty

  (3) For greater certainty, the special counsel is not a party to the federal proceeding and the relationship between the special counsel and the non-governmental party is not that of lawyer and client.

• Marginal note:Protection of communications with special counsel

  (4) However, a communication between the non-governmental party or their counsel and the special counsel that, if the relationship were one of lawyer and client, would be subject to solicitor-client privilege or the professional secrecy of advocates is deemed to be subject to that privilege or professional secrecy. For greater certainty, in respect of that communication, the special counsel is not a compellable witness in any proceeding.

Marginal note:Immunity

38.36 A special counsel is not personally liable for anything they do or omit to do in good faith under this Act.

Marginal note:Obligation to provide information

38.37 The Attorney General of Canada must, within a period set by the judge, provide the special counsel with a copy of the information or other evidence that has been filed with the court in relation to the federal proceeding, including any information or other evidence that is not disclosed to the non-governmental party and their counsel.

Marginal note: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.

• Marginal note:Restrictions on communications — other persons

  (2) If the special counsel is authorized to communicate with a person, the judge or appeal court may prohibit that person from communicating with anyone else about the federal proceeding or appeal during its remainder or may impose conditions with respect to such a communication during that period.

Marginal note:Disclosure and communication prohibited

38.39 With the exception of communications authorized by a judge or disclosures permitted under section 38.22, it is prohibited for a person to

• (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.

Marginal note: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.

• Marginal note:Potential orders

  (2) The orders that may be made under subsection (1) include, but are not limited to, the following:

  • (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.

• Marginal note:For greater certainty

  (3) For greater certainty, a remedy referred to in subsection (1) must not include the disclosure of information ordered not to be disclosed under subsection 38.26(3) or 38.41(4).

Marginal note: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 foreign entity 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.

• Marginal note:Service of certificate

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

  • (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.

• Marginal note:Filing of certificate

  (3) The Attorney General of Canada must cause a copy of the certificate to be filed in the registry of the Federal Court of Appeal or the Federal Court, as the case may be, and the registry of any court that hears an appeal from an order made under any of subsections 38.26(1) to (3).

• Marginal note:Effect of certificate

  (4) If the Attorney General of Canada issues a certificate, then, despite any other provision of this Act, disclosure of the information is prohibited in accordance with the terms of the certificate.

• Marginal note:Statutory Instruments Act does not apply

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

• Marginal note:Publication

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

• Marginal note:Restriction

  (7) 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 38.42.

• Marginal note:Expiry

  (8) The certificate expires 10 years after the day on which it is issued and may be reissued.

Marginal note: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.

• Marginal note:Notice to Attorney General of Canada

  (2) The applicant must give notice of the application to the Attorney General of Canada.

• Marginal note:Single judge

  (3) Despite paragraph (a) of the definition judge in section 38.2 and section 16 of the Federal Courts Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.

• Marginal note:Admissible information

  (4) 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 (7) to (9) on that evidence.

• Marginal note:Special rules and protective order

  (5) Sections 38.3 and 38.31 apply, with any necessary modifications, to an application made under subsection (1).

• Marginal note:Expedited consideration

  (6) The judge must 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 certificate

  (7) 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, or to national defence or national security, the judge must make an order varying the certificate accordingly.

• Marginal note:Cancelling certificate

  (8) 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, or to national defence or national security, the judge must make an order cancelling the certificate.

• Marginal note:Confirming certificate

  (9) 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, or to national defence or national security, the judge must make an order confirming the certificate.

• Marginal note:Determination is final

  (10) Despite any other Act of Parliament, a determination of a judge under any of subsections (7) to (9) is final and is not subject to review or appeal by any court.

• Marginal note:Publication

  (11) If a certificate is varied or cancelled under this section, the Attorney General of Canada must, 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 (7); or

  • (b) a notice of the cancellation of the certificate under subsection (8).

• Marginal note:Definition of foreign entity

  (12) In this section, foreign entity has the same meaning as in subsection 2(1) of the Foreign Interference and Security of Information Act.

Marginal note:Regulations

38.43 The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of sections 38.2 to 38.42, including regulations respecting the notices and certificates.

Marginal note:Annual report

38.44 The report referred to in section 38.17 must also set out the operation of section 38.41 for the previous year and include the number of certificates issued under that section.

Marginal note:Rules

• 38.45 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special counsel in federal proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

• Marginal note:Composition of committees

  (2) Each committee established is to be composed of the appropriate Chief Justice, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to federal proceedings. Each Chief Justice may also designate additional members of their committee.

• Marginal note:Chief Justice to preside

  (3) Each Chief Justice, or a member designated by them, is to preside over their committee.

Marginal note:Return of information

• 83.06 (1) For the purposes of subsection 83.05(6), any information that is obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states and that is provided to the judge by the Minister of Public Safety and Emergency Preparedness shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 83.05(6)(d), if

  • (a) the judge determines that the information is not relevant;

  • (b) the judge determines that the information is relevant but should be summarized in a statement to be provided to the applicant; or

  • (c) the Minister withdraws the information.

• Marginal note:For greater certainty

  (2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to an application made under subsection 83.05(5).

• (c) at any time, an objection to the disclosure is made, or a certificate is issued, in accordance with sections 38 to 38.13 or 38.2 to 38.41 of that Act.

Marginal note:Judicial consideration

• 6 (1) The following provisions govern the determination:

  • (a) any information or evidence the disclosure of which would be injurious to national security shall be returned to the Ministers and shall not be considered by the judge in determining whether the certificate is reasonable if either

    • (i) the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of a summary of the information or evidence provided to the applicant or the registered charity, or

    • (ii) the matter is withdrawn;

  • (b) the judge shall provide the applicant or registered charity with an opportunity to be heard; and

  • (c) the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

• Marginal note:For greater certainty

  (2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to the determination.

• 2.3 (1) For the purposes of section 2.2, any information that is obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states and that is provided to the judge by the Minister shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 2.2(2)(d), if

  • (a) the judge determines that the information is not relevant;

  • (b) the judge determines that the information is relevant but should be summarized in a statement to be provided to the applicant; or

  • (c) the Minister withdraws the information.

• (2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to an application made under section 2.2.

• (iii.1) be injurious to international relations, national defence or national security, or

• Marginal note:Filing of evidence and summary

  (2) When the certificate is referred, the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based, as well as a summary of information and other evidence that enables the person named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed.

Marginal note:Appeal by Minister

• 79.1 (1) Despite section 79, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

Marginal note:Appeal by Minister

• 82.31 (1) Despite section 82.3, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to international relations, national defence or national security or endanger the safety of any person; and

Marginal note:Judicial review

• 86.1 (1) The Minister may, at any stage of the proceeding, apply for judicial review of any decision made in a proceeding referred to in section 86 requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person. The application may be made without an application for leave.

Marginal note:Appeal by Minister

• 87.01 (1) The Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, to the Federal Court of Appeal any decision made in a judicial review requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Foreign Influence Transparency Commissioner

  Commissaire à la transparence en matière d’influence étrangère