| Appeal to
Federal Court
of Appeal
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38.09 (1) An order made under any of
subsections 38.06(1) to (3) may be appealed to
the Federal Court of Appeal.
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| Limitation
period for
appeal
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(2) An appeal shall be brought within 10
days after the day on which the order is made
or within any further time that the Court
considers appropriate in the circumstances.
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| Limitation
periods for
appeals to
Supreme
Court of
Canada
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38.1 Notwithstanding any other Act of
Parliament,
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(a) an application for leave to appeal to the
Supreme Court of Canada from a judgment
made on appeal shall be made within 10
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
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(b) if leave to appeal is granted, the appeal
shall be brought in the manner set out in
subsection 60(1) of the Supreme Court Act
but within the time specified by the
Supreme Court of Canada.
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| Special rules
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38.11 (1) A hearing under subsection
38.04(5) or an appeal or review of an order
made under any of subsections 38.06(1) to (3)
shall be heard in private and, at the request of
either the Attorney General of Canada or, in
the case of a proceeding under Part III of the
National Defence Act, the Minister of
National Defence, shall be heard in the
National Capital Region, as described in the
schedule to the National Capital Act.
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| Ex parte
representation
s
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(2) The judge conducting a hearing under
subsection 38.04(5) or the court hearing an
appeal or review of an order made under any
of subsections 38.06(1) to (3) may give any
person who makes representations under
paragraph 38.04(5)(d), and shall give the
Attorney General of Canada and, in the case of
a proceeding under Part III of the National
Defence Act, the Minister of National
Defence, the opportunity to make
representations ex parte.
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| Protective
order
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38.12 (1) The judge conducting a hearing
under subsection 38.04(5) or the court hearing
an appeal or review of an order made under
any of subsections 38.06(1) to (3) may make
any order that the judge or the court considers
appropriate in the circumstances to protect the
confidentiality of the information to which the
hearing, appeal or review relates.
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| Court records
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(2) The court records relating to the hearing,
appeal or review are confidential. The judge
or the court may order that the records be
sealed and kept in a location to which the
public has no access.
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| Prohibition
certificate
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38.13 (1) The Attorney General of Canada
may personally issue a certificate that
prohibits the disclosure of information in
connection with a 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
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.
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| Military
proceedings
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(2) In the case of a proceeding under Part III
of the National Defence Act, the Attorney
General of Canada may issue the certificate
only with the agreement, given personally, of
the Minister of National Defence.
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| Service of
certificate
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(3) The Attorney General of Canada shall
cause a copy of the certificate to be served on
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(a) the person presiding or designated to
preside at the proceeding to which the
information relates or, if no person is
designated, the person who has the
authority to designate a person to preside;
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(b) every party to the proceeding;
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(c) every person who gives notice under
section 38.01 in connection with the
proceeding;
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(d) every person who, in connection with
the 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 38.01;
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(e) every party to a hearing under
subsection 38.04(5) or to an appeal of an
order made under any of subsections
38.06(1) to (3) in relation to the
information;
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(f) the judge who conducts a hearing under
subsection 38.04(5) and any court that hears
an appeal from, or review of, an order made
under any of subsections 38.06(1) to (3) in
relation to the information; and
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(g) any other person who, in the opinion of
the Attorney General of Canada, should be
served.
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| Filing of
certificate
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(4) The Attorney General of Canada shall
cause a copy of the certificate to be filed
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(a) with the person responsible for the
records of the proceeding to which the
information relates; and
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(b) in the Registry of the Federal Court and
the registry of any court that hears an appeal
from, or review of, an order made under any
of subsections 38.06(1) to (3).
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| Effect of
certificate
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(5) If the Attorney General of Canada issues
a certificate, then, notwithstanding any other
provision of this Act, disclosure of the
information shall be prohibited in accordance
with the terms of the certificate.
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| Statutory
Instruments
Act does not
apply
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(6) The Statutory Instruments Act does not
apply to a certificate issued under subsection
(1).
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| Publication
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(7) The Attorney General of Canada shall,
without delay after a certificate is issued,
cause the certificate to be published in the
Canada Gazette.
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| Restriction
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(8) 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 38.131.
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| Expiration
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(9) The certificate expires 15 years after the
day on which it is issued and may be reissued.
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| Application
for review of
certificate
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38.131 (1) A party to the proceeding
referred to in section 38.13 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 (8) or (9), as the case may be.
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| Notice to
Attorney
General of
Canada
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(2) The applicant shall give notice of the
application to the Attorney General of
Canada.
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| Military
proceedings
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(3) In the case of proceedings under Part III
of the National Defence Act, notice under
subsection (2) shall be given to both the
Attorney General of Canada and the Minister
of National Defence.
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| Single judge
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(4) Notwithstanding section 16 of the
Federal Court Act, for the purposes of the
application, the Federal Court of Appeal
consists of a single judge of that Court.
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| Admissible
information
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(5) 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 (8) to (10) on that evidence.
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| Special rules
and protective
order
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(6) Sections 38.11 and 38.12 apply, with any
necessary modifications, to an application
made under subsection (1).
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| Expedited
consideration
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(7) The judge shall consider the application
as soon as reasonably possible, but not later
than 10 days after the application is made
under subsection (1).
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| Varying the
certificate
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(8) 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 as defined in subsection 2(1) of the
Security of Information Act, or to national
defence or security, the judge shall make an
order varying the certificate accordingly.
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| Cancelling the
certificate
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(9) 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 as defined in
subsection 2(1) of the Security of Information
Act, or to national defence or security, the
judge shall make an order cancelling the
certificate.
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| Confirming
the certificate
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(10) 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 as defined in
subsection 2(1) of the Security of Information
Act, or to national defence or security, the
judge shall make an order confirming the
certificate.
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| Determination
is final
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(11) Notwithstanding any other Act of
Parliament, a determination of a judge under
any of subsections (8) to (10) is final and is not
subject to review or appeal by any court.
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| Publication
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(12) If a certificate is varied or cancelled
under this section, the Attorney General of
Canada shall, 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
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(a) the certificate as varied under
subsection (8); or
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(b) a notice of the cancellation of the
certificate under subsection (9).
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| Protection of
right to a fair
trial
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38.14 (1) The person presiding at a criminal
proceeding may make any order that he or she
considers appropriate in the circumstances to
protect the right of the accused to a fair trial,
as long as that order complies with the terms
of any order made under any of subsections
38.06(1) to (3) in relation to that proceeding,
any judgment made on appeal from, or review
of, the order, or any certificate issued under
section 38.13.
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| Potential
orders
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(2) The orders that may be made under
subsection (1) include, but are not limited to,
the following orders:
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(a) an order dismissing specified counts of
the indictment or information, or permitting
the indictment or information to proceed
only in respect of a lesser or included
offence;
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(b) an order effecting a stay of the
proceedings; and
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(c) an order finding against any party on any
issue relating to information the disclosure
of which is prohibited.
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| Fiat
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38.15 (1) If sensitive information or
potentially injurious information may be
disclosed in connection with a prosecution
that is not instituted by the Attorney General
of Canada or on his or her behalf, the Attorney
General of Canada may issue a fiat and serve
the fiat on the prosecutor.
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| Effect of fiat
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(2) When a fiat is served on a prosecutor, the
fiat establishes the exclusive authority of the
Attorney General of Canada with respect to
the conduct of the prosecution described in the
fiat or any related process.
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| Fiat filed in
court
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(3) If a prosecution described in the fiat or
any related process is conducted by or on
behalf of the Attorney General of Canada, the
fiat or a copy of the fiat shall be filed with the
court in which the prosecution or process is
conducted.
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| Fiat
constitutes
conclusive
proof
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(4) The fiat or a copy of the fiat
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(a) is conclusive proof that the prosecution
described in the fiat or any related process
may be conducted by or on behalf of the
Attorney General of Canada; and
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(b) is admissible in evidence without proof
of the signature or official character of the
Attorney General of Canada.
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| Military
proceedings
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(5) This section does not apply to a
proceeding under Part III of the National
Defence Act.
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| Regulations
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38.16 The Governor in Council may make
any regulations that the Governor in Council
considers necessary to carry into effect the
purposes and provisions of sections 38 to
38.15, including regulations respecting the
notices, certificates and the fiat.
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44. The Act is amended by adding, after
section 54, the schedule set out in Schedule
2 to this Act.
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| R.S., c. H-6
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Canadian Human Rights Act
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| 1998, c. 9,
s. 30
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45. Section 58 of the Canadian Human
Rights Act is replaced by the following:
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| Application
respecting
disclosure of
information
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58. (1) Subject to subsection (2), if an
investigator or a member or panel of the
Tribunal requires the disclosure of any
information and a minister of the Crown or
any other interested person objects to its
disclosure, the Commission may apply to the
Federal Court for a determination of the
matter and the Court may take any action that
it considers appropriate.
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| Canada
Evidence Act
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(2) An objection to disclosure shall be
determined in accordance with the Canada
Evidence Act if
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(a) under subsection (1), a minister of the
Crown or other official objects to the
disclosure in accordance with sections 37 to
37.3 or section 39 of that Act;
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(b) within 90 days after the day on which the
Commission applies to the Federal Court, a
minister of the Crown or other official
objects to the disclosure in accordance with
sections 37 to 37.3 or section 39 of that Act;
or
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(c) at any time, an objection to the
disclosure is made, or a certificate is issued,
in accordance with sections 38 to 38.13 of
that Act.
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| R.S., c. I-2
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Immigration Act
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| R.S., c. 29
(4th Supp.),
s. 12(1)
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46. Subsection 103.1(8) of the
Immigration Act is replaced by the
following:
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| Application to
have order
quashed
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(8) Any person excluded by an order under
subsection (7) from all or any part of the
review under subsection (2) or (3) may apply
to the Chief Justice of the Federal Court or to
a judge of that Court designated by the Chief
Justice for the purposes of this subsection to
have the order quashed, and sections 37 to
38.16 of the Canada Evidence Act apply, with
any modifications that the circumstances
require, to such applications.
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