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STER Committee Report

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CHAPTER SIX:
CANADA EVIDENCE ACT

BACKGROUND

Section 43 of the Anti-terrorism Act replaced sections 37 and 38 of the Canada Evidence Act by sections 36.1 to 38.16 and section 44 added a schedule to the Act, set out at Schedule 2 to the Anti-terrorism Act itself.

Sections 37 to 37.3 of the Canada Evidence Act allow for the Government of Canada to certify orally or in writing its objection to the disclosure of information (related to a specified public interest) to a court, person or body with jurisdiction to compel its production. The superior court hearing the objection to the production of information or, in other cases, the Federal Court determines whether the objection should be upheld in whole, in part or not at all. These provisions set out rights of appeal to the provincial court of appeal or the Federal Court of Appeal, and to the Supreme Court of Canada.

Sections 38 to 38.12 of the Act require any participant in a proceeding, who is required, or expects to be required, to disclose sensitive information related to international relations, national defence, or national security, to advise the Attorney General of Canada of the possibility of such a disclosure. The Attorney General of Canada may at any time authorize the release of some or all of this information. The Attorney General of Canada may at any time apply to the Federal Court with respect to the disclosure of information about which notice has been given. The Federal Court judge hearing the application may authorize disclosure of the information unless it is concluded that to do so would be injurious to international relations, national defence, or national security. Provision is made for appeals to the Federal Court of Appeal and the Supreme Court of Canada.

The Attorney General of Canada’s power to issue a certificate in relation to sensitive information is dealt with in sections 38.13 to 38.131 of the Canada Evidence Act. Where a decision or order has been made that may result in the disclosure of sensitive or potentially injurious information related to international relations, national defence, or national security, the Attorney General of Canada may issue a certificate prohibiting such disclosure. The certificate is to be published in the Canada Gazette, to be in force for fifteen years (unless it is re-issued), and may be reviewed by a judge of the Federal Court of Appeal on application by a party to the proceedings in relation to which it was issued. The judge can confirm, vary, or cancel the certificate. There is no appeal from this decision. No such certificates have, to the Subcommittee’s knowledge, been issued.

The Attorney General of Canada may, under section 38.15 of the Act, serve a fiat on a prosecutor in a prosecution conducted by a provincial attorney general where sensitive or potentially injurious information may be disclosed. The effect of serving the fiat is to establish the full authority of the Attorney General of Canada with respect to the conduct of the prosecution or related process. There is no provision with respect to judicial review or publication of such a fiat. As well, there has, to the Subcommittee’s knowledge, been no use of this provision.

ISSUES OF CONCERN

Duration of an Attorney General Certificate

The provisions of the Canada Evidence Act set out at sections 38.13 and 38.131 dealing with the issuance of a certificate by the Attorney General of Canada have been of particular concern to some of those whose briefs have been considered by the Subcommittee. Although many of the other amendments to the Canada Evidence Act contained in the Anti-terrorism Act had precedents in this and other legislation, the allowance of the issuance of certificates appears to have been unprecedented and a new departure in Canadian law. Attorney General of Canada certificates appear to give the government a pre-emptive trump card that can be exercised if it is not satisfied with the outcome of judicial or adjudicative procedures, or even in the absence of, or prior to, such procedures. A particularly striking possible use of such certificates was drawn to the Subcommittee’s attention in the submissions of the Privacy Commissioner and the Information Commissioner with respect to investigations of complaints carried out by their offices.

The Subcommittee accepts that in exceptional circumstances, resort to the certificate process may be necessary to protect truly sensitive information, the disclosure of which would be more harmful than its not being released. Although the Attorney General of Canada’s certificate process appears to be unprecedented in Canada, its not having been used since it was put into place clearly demonstrates that there will be restraint exercised in any recourse to it. This does not mean, however, that the Subcommittee is fully satisfied with the process as it now exists. The level of transparency and accountability with respect to these certificates can and must be improved upon.

As mentioned earlier in this chapter, section 38.13(9) of the Canada Evidence Act provides that a certificate expires fifteen years after it has been issued, and it can be re-issued. Both the Privacy Commissioner in her brief, and Alan Leadbeater of the Information Commissioner’s office during his testimony before the predecessor to the Subcommittee, expressed their views on this issue. Both of them proposed that such a certificate should expire five years after being issued.

The Subcommittee agrees with these submissions that fifteen years is too long a time to allow such a certificate to be in force. It should be noted, however, that the first reading version of the Anti-terrorism Act had no limit for the period of time for which such certificates would be in force after their issuance. Although the Subcommittee believes fifteen years is too long for such certificates to be in force, it also thinks that a five-year period would be too short. The sensitive or potentially injurious information to which such certificates are to be applied is likely of such a type as to require protection from disclosure for a longer, rather than a shorter, period of time. With this factor in mind, the Subcommittee has concluded that ten years is a more appropriate time frame after the issuance of a certificate for it to be in force.

RECOMMENDATION 35

The Subcommittee recommends that section 38.13(9) of the Canada Evidence Act be amended so that a certificate expires ten years after it has been issued.

Right to Apply for Leave to Appeal

Section 38.131 of the Canada Evidence Act allows a party to a proceeding with respect to which a certificate has been issued to apply to the Federal Court of Appeal for an order that the certificate be varied or cancelled. A single judge of the Federal Court of Appeal is to hear the proceeding. Section 38.131(11) provides that the finding of the judge of the Federal Court of Appeal is final and not subject to review and appeal by any court. It should be noted that the original version of the Anti-terrorism Act did not contain even this limited review of a certificate issued by the Attorney General of Canada.

This issue, among others, was raised by the Privacy Commissioner in her brief. She recommended that consideration be given to allowing an appeal from the judicial review of these certificates so as to encourage further checks and balances in this process. As an alternative, she suggested that the judicial review itself could be carried out by a three-member panel of Federal Court of Appeal judges. The Subcommittee prefers the first of these recommendations, that is, the allowance of an appeal from the initial judicial review.

The Subcommittee believes that because of the extraordinary impact of the issuance of a certificate, it is essential that the initial judicial review process be carried out expeditiously and efficiently. Although it is unusual for a single judge of the Federal Court of Appeal to preside over proceedings of this type (usually this is done by a Federal Court judge sitting alone), the Subcommittee does not believe this is where a change to add more scrutiny of the certificate process is required. Rather, provision should be made for an appeal to the Supreme Court of Canada of the finding of the Federal Court of Appeal judge. Provision should be made for a party to the judicial review of a certificate who is not satisfied by the outcome to have a right to apply for leave to appeal to the Supreme Court of Canada on the merits of the initial decision. Because it is essential that the appeal of such an initial decision be dealt with expeditiously, the Subcommittee believes that such an appeal from a Federal Court of Appeal judge’s decision should be heard by a reduced panel of three members of the Supreme Court of Canada. The Court already has experience with three-member panels who consider applications for leave to appeal lower court decisions.

RECOMMENDATION 36

The Subcommittee recommends that section 38.131(11) of the Canada Evidence Act be repealed and that there be established a right to apply to the Supreme Court of Canada for leave to appeal the decision of a Federal Court of Appeal judge who has conducted a judicial review of a certificate issued by the Attorney General of Canada. Such an appeal should be considered by a reduced panel of three members of the Supreme Court.

Annual Reports on the Use of Certificates and Fiats

Section 38.13(7) of the Canada Evidence Act requires the Attorney General of Canada to cause a certificate to be published in the Canada Gazette without delay after it has been issued. This provision was not found in the original first reading version of the Anti-terrorism Act. There is no similar publication requirement with respect to fiats under section 38.15. It is likely the framers of the legislation, having inserted this provision into it while it was in committee in the House of Commons, envisioned publication in the Canada Gazette as a means of making the certificate process visible to those not directly involved in it. The reality is, however, that only a small fraction of Canadians are regular readers of the Canada Gazette.

There is a better way of making the certificate process visible to Canadians. The Privacy Commissioner recommended in her brief that the certificate process be subject to the same reporting and sunset provisions as those applicable to investigative hearings and recognizance with conditions found in that part of the Criminal Code dealing with terrorist activity.

The Subcommittee does not agree with her with respect to that part of her recommendation proposing that the certificate process be sunsetted, in other words subject to expiry after a period of time. It does agree with her, however, that the Attorney General of Canada should be required to table an annual report in Parliament providing an account of use of both the certificate process and the resort to fiats with respect to prosecutions where there is concern sensitive or potentially injurious information may be disclosed. Such annual reports are already tabled in Parliament with respect to investigative hearings, recognizances with conditions (also known as preventive arrests), section 25.1 Criminal Code justifications of acts or omissions, and the law enforcement use of electronic surveillance.

RECOMMENDATION 37

The Subcommittee recommends that the Canada Evidence Act be amended to require the Attorney General of Canada to table in Parliament an annual report setting out the usage of section 38.13 certificates and section 38.15 fiats.

There are two provisions within the Canada Evidence Act which allow for proceedings to be held in private, and at which the involved parties are to make ex parte submissions in the absence of the opposite parties. This can occur under sections 38.11 and 38.131(6) of the Act with respect to hearings and appeals or reviews. A similar procedure is in place within the context of the terrorist entity listing process in the Criminal Code, the charities de-registration process, and security certificates under the Immigration and Refugee Protection Act. Each of these processes is discussed separately elsewhere in our report.

A number of briefs considered by the Subcommittee have proposed that a special advocate or amicus curiae scheme be put in place in relation to each of these processes. Rather than addressing this issue within each of these contexts, the Subcommittee deals comprehensively with this subject in a separate chapter later in the report.

OTHER RECOMMENDED AMENDMENTS

Applications to the Federal Court

Under the Canada Evidence Act, as discussed earlier, every participant in a proceeding, who believes that sensitive or potentially injurious information is about to be disclosed, must give notice to the Attorney General of Canada and not disclose the information unless authorized. If the Attorney General does not give notice of a decision, or permits disclosure of only part of the information or disclosure with conditions, other than by agreement with the party, section 38.04(2) provides for an application to the Federal Court to determine whether the information may be disclosed. However, whether an application is mandatory or optional, and who has the responsibility of initiating it, depends on one of three situations.

If the person who gave the original notice is a witness in a proceeding, the Attorney General must bring the application if he or she does not authorize full disclosure. If the person who gave notice is not a witness, and was required to disclose the information during a proceeding, that person must bring the application. If the person who gave notice was not required to disclose the information, but only wishes to disclose it, he or she has the option of applying to the Federal Court if the Attorney General does not permit full disclosure. When a person other than the Attorney General makes an application, he or she must give notice to the Attorney General under section 38.04(3).

The Subcommittee questions why the Federal Court is not automatically involved in all cases where the Attorney General allows, other than by agreement with the party, none or only some of the information to be disclosed following notice from a party to a proceeding. We believe that whenever the Attorney General refuses to permit full unconditional disclosure except by agreement, proceedings should be initiated in Federal Court. We further believe that the responsibility of initiating the proceedings should always rest with the Attorney General, as it is his or her decision that sets the process in motion, and it is burdensome to require an ordinary citizen, government employee or other participant in proceedings to bring the application. Accordingly, in addition to amending subsection 38.04(2) so that the Attorney General must bring the application with respect to disclosure in all cases, subsection (3), which refers to notice on an application by someone else, should be repealed.

RECOMMENDATION 38

The Subcommittee recommends that section 38.04 of the Canada Evidence Act be amended to require the Attorney General of Canada, with respect to information about which notice was given from a party to proceedings under any of subsection 38.01(1) to (4), to apply to the Federal Court for an order with respect to disclosure of the information in every case where, except by agreement with the party, the Attorney General does not permit full disclosure without conditions.

Duty of Entities to Notify the Attorney General

Section 38.02(1.1) of the Canada Evidence Act requires designated entities, who make a decision or order that would result in the disclosure of sensitive or potentially injurious information, to notify the Attorney General of Canada. They must then not cause the information to be disclosed for ten days, to give the Attorney General an opportunity to consider prohibiting disclosure. While the duty applies only in the context of certain purposes or matters, the designated entities include judges of the Federal Court, members of the Immigration and Refugee Board, a service tribunal or military judge under the National Defence Act, the Public Service Labour Relations Board, the Information Commissioner, the Privacy Commissioner, the Security Intelligence Review Committee, and certain boards and commissions of inquiry.

The Subcommittee has concerns about the capacity of designated entities to know whether or not information is sensitive or potentially injurious. Particularly where the entity is not routinely involved in matters of national security, it may be difficult to judge the nature of a specific piece of information and the consequences of permitting its disclosure. The statutory definitions of “potentially injurious” and “sensitive” information are not, in and of themselves, very helpful. The Subcommittee therefore suggests that there be written guidelines to assist judges, administrative adjudicators and government officials in fulfilling their responsibility under section 38.02(1.1). Where warranted, depending on the underlying expertise of the person making the decision or order to disclose, there should also be appropriate review mechanisms within the entities to ensure that notice is or is not given to the Attorney General, as appropriate. For example, members of the Immigration and Refugee Board or Public Service Labour Relations Board should have access to someone who is able to confirm whether the information is indeed sensitive or potentially injurious, and that disclosure should not be made pending notice to the Attorney General.

RECOMMENDATION 39

The Subcommittee recommends that the government prepare written guidelines, and implement appropriate review mechanisms, to assist designated entities in fulfilling their duty to prevent the disclosure of sensitive or potentially injurious information and to notify the Attorney General of Canada under section 38.02(1.1) of the Canada Evidence Act.

Removal of Judicial Discretion

There are particular provisions of the Canada Evidence Act that, depending on the conclusions of the court, give it discretion to authorize the disclosure of information withheld by the government. However, the Subcommittee believes that if the specified conclusions are or are not made, as the case may be, the court should be required to authorize disclosure. The first such provision is subsection 37(4.1), which states that the court “may” authorize disclosure unless it concludes that disclosure would encroach upon a specified public interest. The Subcommittee believes that the word “may” should be replaced by “shall” so that the court must authorize disclosure if it does not find that disclosure would encroach upon a specified public interest. To allow the information to continue to be withheld, despite the conclusion that it does not encroach upon a specified public interest as claimed by the government, would defeat the purpose of the court application for disclosure.

If the court concludes that disclosure would encroach upon a specified public interest, subsection 37(5) of the Canada Evidence Act requires it to proceed to a second step of considering the public interest in disclosure. If the court concludes that the public interest in disclosure outweighs in importance the specified public interest, subsection (5) states that the court “may,” after considering other factors such as the form of disclosure and conditions attached to it, authorize disclosure in one of various forms. Again, the Subcommittee believes that the court should be required to authorize disclosure once it concludes that it would be in the public interest.

The other provisions where, depending on certain conclusions, disclosure should be mandatory rather than merely permitted, are subsections 38.06(1) and (2) of the Canada Evidence Act. These subsections are analogous to the two just discussed, except that they deal with information withheld in the interest of national defence, national security or international relations, rather than a specified public interest. First, unless the judge concludes that the disclosure of the information would be injurious to international relations, national defence or national security, the Subcommittee believes that he or she should be required to make a disclosure order under subsection 38.06(1). Second, if the judge concludes that disclosure of the information would be injurious, but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the Subcommittee believes that he or she should be required to authorize disclosure in one of the indicated forms under subsection 38.06(2).

RECOMMENDATION 40

The Subcommittee recommends that the word “may” be replaced by the word “shall” in subsections 37(4.1), 37(5), 38.06(1) and 38.06(2) of the Canada Evidence Act.

When a Disclosure Order Takes Effect

To allow an opportunity to appeal, subsection 37(7) of the Canada Evidence Act sets out when an order authorizing the disclosure of information that had been withheld by the government due to a specified interest takes effect. It states: “An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order, or a judgment of an appeal court that confirms the order, has expired, or no further appeal from a judgment that confirms the order is available.” The Subcommittee believes that this subsection is awkwardly worded, is somewhat difficult to understand, and should therefore be redrafted for clarity.

RECOMMENDATION 41

The Subcommittee recommends that subsection 37(7) of the Canada Evidence Act be replaced by the following:

“An order of the court that authorizes disclosure does not take effect until

(a) the time provided or granted to appeal the order has expired, or

(b) a judgment of an appeal court has confirmed the order and the time provided or granted to appeal the judgment has expired, or no further appeal is available.”

Although a disclosure order in relation to information withheld on the basis of a specified interest does not take effect until the time provided for under subsection 37(7) of the Act, there is no comparable provision to prevent disclosure pending a possible appeal of an order, under section 38.06, authorizing disclosure of information that had been withheld on the basis of international relations, national defence or national security. As it is perhaps even more important that such information not be disclosed until all appeals have been exhausted, the Subcommittee believes that a provision akin to subsection 37(7) should be enacted with respect to disclosure orders made under section 38.06.

RECOMMENDATION 42

The Subcommittee recommends that the Canada Evidence Act be amended so that an order authorizing disclosure under subsections 38.06(1) or (2) does not take effect until (a) the time provided or granted to appeal the order has expired, or (b) a judgment of an appeal court has confirmed the order and the time provided or granted to appeal the judgment has expired, or no further appeal is available.

Private Hearings

Under section 38.11 of the Canada Evidence Act, a hearing to address information withheld by the government for reasons based on national defence, national security or international relations, and an appeal or review of a court order authorizing disclosure or confirming the prohibition of disclosure, must be held in private. When the Anti-terrorism Act was enacted, a comparable provision was included in section 37.21 with respect to hearings and appeals in relation to information withheld on the grounds of a specified public interest. However, section 37.21 was repealed in 2004. It was regarded as unnecessary, given the inherent jurisdiction of the court to provide for a private proceeding.

The Subcommittee finds it inconsistent that section 37.21 was repealed but section 38.11 was not. While we recognize that the sections deal with information withheld for different reasons, Parliament should either require private hearings in both types of cases, or defer to the inherent jurisdiction of the court. Given the sensitivity of matters affecting national defence, national security, international relations, and specified public interests, the Subcommittee prefers that private hearings be legislatively mandated in all cases.

RECOMMENDATION 43

The Subcommittee recommends that section 37.21 of the Canada Evidence Act, which was repealed in 2004, be re-enacted.