Canada Evidence Act (R.S.C., 1985, c. C-5)

Marginal note:Order signed by Secretary of State

• 32 (1) An order signed by the Secretary of State of Canada and purporting to be written by command of the Governor General shall be admitted in evidence as the order of the Governor General.

• Marginal note:Copies published in Canada Gazette

  (2) All copies of official and other notices, advertisements and documents published in the Canada Gazette are admissible in evidence as proof, in the absence of evidence to the contrary, of the originals and of their contents.

Marginal note:Proof of handwriting of person certifying

• 33 (1) No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, regulation, appointment, book or other document.

• Marginal note:Printed or written

  (2) Any copy or extract referred to in subsection (1) may be in print or in writing, or partly in print and partly in writing.

Marginal note:Attesting witness

• 34 (1) It is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite.

• Marginal note:Instrument, how proved

  (2) Any instrument referred to in subsection (1) may be proved by admission or otherwise as if there had been no attesting witness thereto.

Marginal note:Impounding of forged instrument

35 Where any instrument that has been forged or fraudulently altered is admitted in evidence, the court or the judge or person who admits the instrument may, at the request of any person against whom it is admitted in evidence, direct that the instrument shall be impounded and be kept in the custody of an officer of the court or other proper person for such period and subject to such conditions as to the court, judge or person admitting the instrument seem meet.

Marginal note:Construction

36 This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act or existing at law.

Interpretation

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.

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, 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 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: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) Subject to subsection (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; 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 — person charged with offence

  (1.1) A person who is charged with an offence may appeal a determination 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 referred to in subsection (1) considers appropriate in the circumstances; or

  • (b) in any other case, within 15 days after the day on which the determination appealed from is made or any further time that the court referred to in subsection (1) considers appropriate in the circumstances.

• Marginal note:Exceptional circumstances

  (3) Despite subsection (1.1) and paragraph (2)(a), the court referred to in subsection (1) 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.

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.

37.21 [Repealed, 2004, c. 12, s. 18]

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

Provisions of General Application

Marginal note:Definitions

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

judge

judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04. (juge)

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. (participant)

potentially injurious information

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. (renseignements potentiellement préjudiciables)

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)

prosecutor

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. (poursuivant)

sensitive information

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. (renseignements sensibles)

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, other than a summary hearing as defined in subsection 2(1) of that 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.