Canada Evidence Act (R.S.C., 1985, c. C-5)
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Act current to 2024-07-23 and last amended on 2023-10-06. Previous Versions
AMENDMENTS NOT IN FORCE
— 2024, c. 16, par. 57(1)(a)
Replacement of “Security of Information Act” — Acts
57 (1) Every reference to the “Security of Information Act” is replaced by a reference to the “Foreign Interference and Security of Information Act” in the following provisions:
(a) in the Canada Evidence Act,
(i) subsection 38.13(1), and
(ii) subsections 38.131(8) to (10);
— 2024, c. 16, s. 76
76 Section 36.1 of the Canada Evidence Act is replaced by the following:
Definition of official
36.1 In sections 37 to 38.43, official has the same meaning as in section 118 of the Criminal Code.
— 2024, c. 16, s. 77
77 (1) The portion of subsection 37.1(1) of the Act before paragraph (a) is replaced by the following:
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)
(2) Subsection 37.1(2) of the Act is replaced by the following:
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.
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.
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.
— 2024, c. 16, s. 78
78 The Act is amended by adding the following before section 38:
Provisions of General Application
— 2024, c. 16, s. 79
79 The definition proceeding in section 38 of the Act is replaced by the following:
- 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)
— 2024, c. 16, s. 80
80 Subsection 38.03(3) of the Act is replaced by the following:
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.
— 2024, c. 16, s. 81
81 Section 38.09 of the Act is replaced by the following:
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.
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.
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.
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.
— 2024, c. 16, s. 82
82 Paragraph 38.1(a) of the Act is replaced by the following:
(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
— 2024, c. 16, s. 83
83 Subsection 38.131(4) of the Act is replaced by the following:
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.
— 2024, c. 16, s. 84
84 The Act is amended by adding the following after section 38.17:
Secure Administrative Review Proceedings
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)
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Immunity
38.36 A special counsel is not personally liable for anything they do or omit to do in good faith under this Act.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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).
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.
Statutory Instruments Act does not apply
(5) The Statutory Instruments Act does not apply to a certificate issued under subsection (1).
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.
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.
Expiry
(8) The certificate expires 10 years after the day on which it is issued and may be reissued.
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.
Notice to Attorney General of Canada
(2) The applicant must give notice of the application to the Attorney General of Canada.
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.
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.
Special rules and protective order
(5) Sections 38.3 and 38.31 apply, with any necessary modifications, to an application made under subsection (1).
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).
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
Chief Justice to preside
(3) Each Chief Justice, or a member designated by them, is to preside over their committee.
— 2024, c. 16, s. 85
85 The schedule to the Act is amended by replacing the references after the heading “SCHEDULE” with the following:
(Paragraph 38.01(6)(d), subsections 38.01(8) and 38.02(1.1) and section 38.2)
— 2024, c. 16, s. 86
86 Items 2, 4 and 21 of the schedule to the Act are repealed.
— 2024, c. 16, s. 108
Previously commenced proceedings
108 (1) Subject to subsections (2) and (3), any proceeding commenced before the day on which this section comes into force and in respect of which any of the provisions amended or repealed by this Part apply is to be continued in accordance with those provisions as they read immediately before that day.
Section 37.1 — Canada Evidence Act
(2) Section 37.1 of the Canada Evidence Act, as that section read immediately before the day on which this section comes into force, continues to apply in respect of a determination made under any of subsections 37(4.1) to (6) of that Act in relation to a criminal trial or other criminal proceeding if the charge at issue in the trial or other proceeding is laid before that day.
Section 38.09 — Canada Evidence Act
(3) Section 38.09 of the Canada Evidence Act, as that section read immediately before the day on which this section comes into force, continues to apply in respect of an order made under any of subsections 38.06(1) to (3) of that Act in relation to a criminal trial or other criminal proceeding if the charge at issue in the trial or other proceeding is laid before that day.
— 2024, c. 16, ss. 110(1), (3), (7)
Bill C-26
110 (1) Subsections (2) to (9) apply if Bill C-26, introduced in the 1st session of the 44th Parliament and entitled An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts (in this section referred to as the “other Act”), receives royal assent.
(3) If section 12 of the other Act comes into force before section 84 of this Act, then, on the day on which that section 84 comes into force, item 5 of the schedule to the Canada Evidence Act is repealed.
(7) If section 14 of the other Act comes into force before section 84 of this Act, then, on the day on which that section 84 comes into force, item 6 of the schedule to the Canada Evidence Act is repealed.
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