Bill C-36

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Application to Federal Court - gene ral	(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions,
	(a) the Attorney General of Canada shall apply to the Federal Court-Trial Division for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness;
	(b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court-Trial Division 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 proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court-Trial Division for an order with respect to disclosure of the information.
Notice to Attorney General of Canada	(3) A person who applies to the Federal Court-Trial Division under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.
Court records	(4) An application under this section is confidential. Subject to section 38.12, the Administrator of the Federal Court may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.
Procedure	(5) As soon as the Federal Court-Trial Division is seized of an application under this section, the judge
	(a) shall hear the representations of 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, 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;
	(b) shall decide whether it is necessary to hold any hearing of the matter;
	(c) if he or she decides that a hearing should be held, shall
	(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
	(d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations.
Disclosure agreement	(6) After the Federal Court-Trial Division is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of,
	(a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(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 Court's consideration of the application or any hearing, review or appeal shall be terminated.
Termination of Court consideration, hearing, review or appeal	(7) Subject to subsection (6), after the Federal Court-Trial Division is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) before the appeal or review is disposed of, 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 Court's consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.
Report relating to proceedings	38.05 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a 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 may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge.
Disclosure order	38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or security, the judge may, by order, authorize the disclosure of the information.
Disclosure order	(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or 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 security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or 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 shall, by order, confirm the prohibition of disclosure.
Introduction into evidence	(4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).
Relevant factors	(5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding.
Notice of order	38.07 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified.
Automatic review	38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review.
Appeal to Federal Court of Appeal	38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.
Limitation period for appeal	(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.
Limitation periods for appeals to Supreme Court of Canada	38.1 Notwithstanding any other Act of Parliament,
	(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
	(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.
Special rules	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.
Ex parte representation s	(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.
Protective order	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.
Court records	(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.
Prohibition certificate	38.13 (1) The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting international relations or national defence or security.
Military proceedings	(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.
Service of certificate	(3) The Attorney General of Canada shall cause a copy of the certificate to be served on
	(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;
	(b) every party to the proceeding;
	(c) every person who gives notice under section 38.01 in connection with the proceeding;
	(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;
	(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;
	(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
	(g) any other person who, in the opinion of the Attorney General of Canada, should be served.
Filing of certificate	(4) The Attorney General of Canada shall cause a copy of the certificate to be filed
	(a) with the person responsible for the records of the proceeding to which the information relates; and
	(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).
Effect of certificate	(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.
Statutory Instruments Act does not apply	(6) The Statutory Instruments Act does not apply to a certificate made under subsection (1).
Protection of right to a fair trial	38.14 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.
Fiat	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.
Effect of fiat	(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.
Fiat filed in court	(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.
Fiat constitutes conclusive proof	(4) The fiat or a copy of the fiat
	(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
	(b) is admissible in evidence without proof of the signature or official character of the Attorney General of Canada.
Military proceedings	(5) This section does not apply to a proceeding under Part III of the National Defence Act.
Regulations	38.16 The Governor in Council may make any regulations that it 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.
	Confidences of the Queen's Privy Council for Canada
	44. The Act is amended by adding, after section 54, the schedule set out in Schedule 2 to this Act.
	Consequential Amendments
R.S., c. H-6	Canadian Human Rights Act
1998, c. 9, s. 30	*45. Section 58 of the Canadian Human Rights Act* is replaced by the following:**
Application respecting disclosure of information	58. (1) Subject to sections 37 to 39 of the Canada Evidence Act , if an investigator or a member or panel of the Tribunal requires the disclosure of any information and any interested person objects to its disclosure, the Commission may apply to the Federal Court for a determination of the matter.
Time limit for objection under Canada Evidence Act	(2) If the Commission applies to the Federal Court under subsection (1) and a minister of the Crown or other official does not within 90 days object to the disclosure in accordance with sections 37 to 37.3 or section 39 of the Canada Evidence Act, the Court may take any action that it deems appropriate.
R.S., c. I-2	Immigration Act
R.S., c. 29 (4th Supp.), s. 12(1); 1992, c. 1, s. 144(1) (Sch. VII, s. 34(1))(F)	*46. Subsection 103.1(8) of the Immigration Act* is replaced by the following:**
Application to have order quashed	(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.

Bill C-36

Confidences of the Queen's Privy Council for Canada

Consequential Amendments