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

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.

Confidences of the Queen’s Privy Council for Canada

Marginal note:Objection relating to a confidence of the Queen’s Privy Council

• 39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

• Marginal note:Definition

  (2) For the purpose of subsection (1), a confidence of the Queen’s Privy Council for Canada includes, without restricting the generality thereof, information contained in

  • (a) a memorandum the purpose of which is to present proposals or recommendations to Council;

  • (b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

  • (c) an agendum of Council or a record recording deliberations or decisions of Council;

  • (d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

  • (e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and

  • (f) draft legislation.

• Definition of Council

  (3) For the purposes of subsection (2), Council means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.

• Marginal note:Exception

  (4) Subsection (1) does not apply in respect of

  • (a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or

  • (b) a discussion paper described in paragraph (2)(b)

    • (i) if the decisions to which the discussion paper relates have been made public, or

    • (ii) where the decisions have not been made public, if four years have passed since the decisions were made.