- 37.1 INTRODUCTION
- 37.2 STATUTORY FRAMEWORK
- 37.3 STATEMENT OF POLICY
- 37.4 GUIDELINES FOR APPLICATION OF THIS POLICY
- 37.4.1 Objections under section 37 involving a public interest other than international relations, national defence or security
- 37.4.2 Objections under section 37 regarding information the disclosure of which would harm international relations, national defence or security
- 37.4.3 Objections under section 39
37 PROTECTING CONFIDENTIAL INFORMATION UNDER THE CANADA EVIDENCE ACT
37.1 Introduction
The Supreme Court of Canada has observed that “ all government must maintain some degree of security and confidentiality in order to function ” Footnote 1 . This need for confidentiality can arise in many different ways, and can involve information coming to or prepared by government. For example, national security agencies sometimes receive information from foreign governments about terrorist groups in Canada. In some instances, the information may come from within the terrorist group itself. Similarly, law enforcement agencies receive information on criminal activity. It is in the public interest to protect this information and its sources. In addition, within government Ministers regularly receive recommendations on various issues, then seek related legal advice. It is also in the public interest that those seeking legal advice be able to do so in confidence.
In criminal cases, Crown counsel can expect an accused or defence counsel to seek disclosure of this type of confidential information. Sections 37, 38 and 39 of the Canada Evidence Act can sometimes be used to support an objection to disclosure. This chapter sets out the policy and procedures for objections raised under these sections during a federal prosecution. These objections are most commonly raised in the following situations:
- where federal Crown counsel is prosecuting and a federal official objects to the disclosure;
- where federal Crown counsel is prosecuting and a provincial or municipal official objects to the disclosure; or
- where federal Crown counsel is prosecuting and objects to the introduction of evidence sought to be adduced by defence counsel.
37.2 Statutory Framework
Section 37 of the Canada Evidence Act (the C.E.A. ) sets out when objections can be made to the disclosure of certain information. Section 37 states:
37. (1) A Minister of the Crown in right of Canada or other person interested 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.
(2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.
(3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by
a. The Federal Court -Trial Division, in the case of a person or body vested with power to compel production by or pursuant to 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.
Subsections (4) to (7) set out the time limits for making such applications and define appeal rights.
Section 38 sets out the procedure for objecting to disclosure under section 37 on the grounds that the disclosure would be injurious to international relations, or national defence or security. The Federal Court is the forum for determining such objections. Section 39 sets out the right to object to the disclosure of confidences of the Queen's Privy Council for Canada.
37.3 Statement of Policy
Reliance on sections 37, 38 and 39 of the C.E.A. should be the exception, not the rule. If disclosure of the information can be prevented on some other basis, such as relevance or a common law objection Footnote 2 , that approach should be tried first. Alternatively, steps may be taken to adduce the evidence without endangering the interest at risk. The C.E.A. is therefore an avenue of last resort.
Where Crown counsel expects that an issue of this nature may arise, it is important to confer with investigators and interested departments or agencies before the proceedings begin. A plan can then be developed that takes into account the following issues, among others:
- the nature of the public interest to be protected;
- what other objections have been or may be raised;
- the competing public interests in disclosure and non-disclosure;
- whether non-disclosure would compromise the prosecution;
- the effect the objection may have on the proceedings (for example, will the objection be determined by a court other than the trial court?);
- whether the claim of privilege grounding the objection is justified in the circumstances and not overreaching Footnote 3 ; and
- who should advance the objection Footnote 4 .
37.4 Guidelines for Application of this Policy
37.4.1 Objections under section 37 involving a public interest other than international relations, national defence or security
Objections under section 37 may be made orally Footnote 5 or in writing by certifying Footnote 6 that information should not be disclosed on the grounds of a “ specified public interest ”. Public interest objections under section 37 are “ content-based ”, not “ class-based ” Footnote 7 ; Crown counsel therefore cannot maintain the privilege grounding the objection by arguing that the information is of a class which, by definition, merits non-disclosure. It will always be necessary to identify the actual injury or harm that will result from disclosure. Accordingly, a certificate filed under this section cannot make a blanket claim for non-disclosure. Instead, it should offer a convincing rationale, explaining how the information came into existence, why non-disclosure is important, and the nature and gravity of the injury or harm that will occur if it is disclosed.
The criteria needed to establish a specified public interest are not set out in the C.E.A. However, Crown counsel may wish to assess the validity of the claim of privilege grounding the objection by measuring it against, among other criteria, those established by Wigmore Footnote 8 :
- the communications must originate in a confidence that they will not be disclosed;
- this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- the relation must be one which in the opinion of the community ought to be sedulously fostered;
- the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Objections under section 37 of the C.E.A. will usually be made by a senior public official who has some responsibility in relation to the specified public interest. For example, the official may be a senior police officer concerned about the possible disclosure of police techniques and methods of investigation Footnote 9 , such as the location of observation sites Footnote 10 or the identity of police informers Footnote 11 . Another concern may be the provision of legal advice by Crown counsel to the police Footnote 12 . The official may also be a federal or provincial government official.
Where an interested person raises the objection, Crown counsel should consider whether it would be in the person's best interests to instruct another lawyer to advance the objection. This will sometimes be preferable because Crown counsel conducting the trial may have a conflict of interest regarding such an objection. For example, the disclosure of the information may benefit the Crown's case, or failure to disclose may result in a judicial stay of proceedings. As well, Crown counsel may occasionally be compelled to oppose an objection to disclosure Footnote 13 .
37.4.2 Objections under section 37 regarding information the disclosure of which would harm international relations, national defence or security
The procedure for objections under section 37 regarding information which would be harmful to international relations or national defence or security if disclosed are set out in section 38 of the C.E.A. An objection under this section is determined, on application, by the Federal Court.
Many of the guidelines set out in the preceding section apply to these types of objections as well. However, Crown counsel must be particularly sensitive to the need to protect such information from disclosure. Therefore, any prosecution which involves the possible disclosure of this type of information requires a special consultative process. For example, in practice, Crown counsel does not disclose information emanating from a CSIS investigation without the consent of CSIS . This approval is sought through the General Counsel of the CSIS Legal Services Unit. The General Counsel can obtain the proper clearance and any additional instructions from the executive level of the CSIS .
Where an objection is proposed to be made under section 37 about information which would be injurious to international relations or national defence or security if disclosed, Crown counsel shall advise the Prosecution Group Head and Regional Director or Senior Regional Director, who in turn shall notify the Assistant Deputy Attorney General (Criminal Law). The latter will consult with the appropriate responsibility centres within the Government of Canada, including the Assistant Secretary to the Cabinet (Security and Intelligence), where appropriate.
Where it is proposed to object to disclosure on these grounds, it will sometimes be preferable for the objection to be advanced by counsel other than Crown counsel conducting the trial. Crown counsel may have a conflict of interest (as outlined in the preceding section) or the information involved may be so specialized that a lawyer more familiar with it should handle the objection.
37.4.3 Objections under section 39 Footnote 14
Only a Minister of the Crown or the Clerk of the Privy Council can raise an objection under section 39 of the C.E.A. If an accused wants disclosure of information which may be a confidence of the Queen's Privy Council, Footnote 15 Crown counsel shall notify the Prosecution Group Head and Regional Director or Senior Regional Director who shall bring the matter to the attention of the Assistant Deputy Attorney General (Criminal Law). The latter will consult with the Assistant Secretary to the Cabinet (Legislation and House Planning) to allow the Minister or the Clerk of the Privy Council to consider raising an objection under section 39 or obtaining an Order in Council releasing the information Footnote 16 .
Objections under section 39 must be made in writing, certifying that the information constitutes a confidence of the Queen's Privy Council for Canada. Although the court is not entitled to go behind a proper certificate filed under this section, the court can review the certificate to determine if, on its face, it complies with section 39 Footnote 17 .
37.5 Where the Court Orders Disclosure
Despite objections under section 37 or 38, courts may order disclosure Footnote 18 . When this occurs, Crown counsel should again consult with the interested parties and determine which of the following options is most appropriate:
- comply with the court's ruling. Before doing so, counsel should consult the client department or investigating agency to determine the extent of the harm that will occur on disclosure and assess whether the harm can be minimized in a way that is still consistent with the court's ruling;
- appeal the court's ruling, where possible. This decision should be made in consultation with the Prosecution Group Head, Regional Director and client department or investigating agency; Footnote 19 or
- stay the proceedings. This option may be used when there is no other way to protect the information and the importance of keeping it in confidence outweighs the public interest in pursuing the charges Footnote 20 .
Footnotes
Footnote 1R. v. Thomson, [1992] 1 S.C.R. 385. See also Minister of Employment and Immigration v. Chiarelli, [1992] 1 S.C.R. 711 regarding the need for confidentiality in national security cases.
For example, the common law rules preventing disclosure, such as solicitor/client privilege, or the secrecy rule regarding the identity of police informers. A claim of privilege does not preclude resort to s. 37: Canada ( A.G. ) v. Sander (1994), 90 C.C.C. (3d) 41 ( B.C.C.A. ); R. v. Richards (1997), 115 C.C.C. (3d) 377 ( Ont.C.A. ).
If unfounded or overly broad claims of privilege are made, courts may over time begin to accord less weight to certificates filed under section 37 when balancing the competing interests in disclosure and non-disclosure.
In many cases involving an interested party that is a federal department or agency, lawyers from the Civil Litigation Section advance the objection on behalf of that party. Counsel should also consider who should prepare the certificate as discussed in s. 37.4.1, and see R. v. Lines (1986), 27 C.C.C. (3d) 377 ( N.W.T.C.A. ).
R. v. Meuckon (1990), 57 C.C.C. (3d) 193 ( B.C.C.A. ). When the objection is made orally, care should be taken not to unduly restrict the grounds of the objection or to preclude the right to file a certificate.
A certificate, not an affidavit, is called for by the C.E.A. There is generally no right to cross-examine on the certificate, except in exceptional circumstances: Re Kevork and The Queen (1984), 17 C.C.C. (3d) 426 at 437-40 ( F.C.T.D. ); Mohammad v. Canada (1988), 12 A.C.W.S. (3d) 424 ( F.C.T.D. ).
A class based objection is one grounded on a privilege recognized at common law and for which there is a prima facie presumption of inadmissibility: Gruenke v. R. (1991), 67 C.C.C. (3d) 289 at 303 ( S.C.C. ).
Wigmore, Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at 527; approved by the Supreme Court of Canada in Slavutych v. Baker (1975), 38 C.R.N.S. 306 at 311-12 and Gruenke v. R. , supra, note 7.
R. v. Meuckon (1990), 57 C.C.C. (3d) 193 ( B.C.C.A. ); Mickle v. R. (1987), 19 B.C.L.R. (2d) 266 ( B.C.S.C. ); and see generally R. v. Durette (1994), 88 C.C.C. (3d) 1 ( S.C.C. ); and R. v. Playford (1987), 40 C.C.C. (3d) 142 ( Ont.C.A. ).
R. v. Richards (1997), 115 C.C.C. (3d) 377 ( Ont. C.A. ); R. v. Johnson, [1989] 1 All E.R. 121 ( C.A. ); R. v. Rankine, [1986] 2 All E.R. 566 ( C.A. ); R. v. Thomas (1998), 124 C.C.C. (3d) 178 ( Ont. Ct. ( Gen. Div. )).
Re Regina and Jensen (1984), 15 C.C.C. (3d) 532 ( Nfld. S.C. ); R. v. Archer (1989), 47 C.C.C. (3d) 567 ( Alta. C.A. ); and see generally R. v. Leipert (1997), 112 C.C.C. (3d) 385) ( S.C.C. ) and Part VII, Chapter 37, “ The ‘ Police Informer ’ Privilege ”.
R. v. Gray (1993), 79 C.C.C. (3d) 332 ( B.C.C.A. ); Canada ( A.G. ) v. Sander, supra, note 2. And see generally R. v. Shirose (1999), 133 C.C.C. (3d) 257 ( S.C.C. ).
Every effort should be made to avoid this where a federal government department or agency is advancing the objection. In general, consultation between affected parts of the Government of Canada (see Part IX, Chapter 45, “ Consultation with Responsibility Centres ”) will avoid this prospect.
Because this situation arises rarely in prosecution matters, counsel dealing with such matters may be assisted by the more expansive discussion of this subject in the Civil Litigation Deskbook in the chapter on “ Privilege ”.
See subsection 39(2) of the C.E.A. for the definition of “ confidence of the Queen's Privy Council ”, which includes, for example, documents submitted for the consideration of Cabinet, or minutes of Cabinet committee meetings.
Where, for the purposes of a prosecution, Crown counsel seeks to disclose information which may be a confidence of the Privy Council, permission to do so may be obtained in this manner as well. In respect of an Order in Council releasing such information, it should be noted that there is a precedent for such a release only in cases where a Minister of the Crown has been charged and that Minister had a conventional right of access as a Minister to the information at issue in the prosecution.
See A. G. Canada v. Central Cartage Company, [1990] 2 F.C. 641 ( C.A. ); Smith, Kline and French Laboratories Ltd v. Attorney General of Canada, [1983] 1 F.C. 917 (T.D.).
Where a certificate is filed under section 39 certifying that the information constitutes a confidence of the Queen's Privy Council, a court must refuse disclosure of that information without examination or hearing of the information: see s. 39(1) C.E.A.
In accordance with Part V, Chapter 22, “ The Decision to Appeal ”.
In rare and compelling circumstances, it may be appropriate to stay proceedings and then re-commence them in accordance with subsection 579(2) of the Criminal Code. See for instance: R. v. Scott (1990), 61 C.C.C. (3d) 300 ( S.C.C. ). Before taking this extraordinary approach, however, the matter should be discussed with counsel's supervisors, and ultimately with the Assistant Deputy Attorney General (Criminal Law).
Date modified: 2008-12-24
