Ottawa Citizen Group Inc. v. Canada (Attorney General)

Ottawa Citizen Group Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2004-07-30
Neutral citation
2004 FC 1052
File numbers
DES-1-04
Notes
Digest
Decision Content
Date: 20040730
Docket: DES-1-04
Citation: 2004 FC 1052
BETWEEN:
THE OTTAWA CITIZEN GROUP INC.
and KATE JAIMET
and
CANADIAN BROADCASTING CORPORATION
Applicants
and
THE ATTORNEY GENERAL OF CANADA and
THE ATTORNEY GENERAL OF ONTARIO
and
ABDULLAH ALMALKI
Respondents
REASONS FOR ORDER
LUTFY C.J.
[1] In November 2003, The Ottawa Citizen Group Inc., one of its journalists Ms. Kate Jaimet and the Canadian Broadcasting Corporation ("the applicants") filed an application before the Honourable Célynne Dorval of the Ontario Court of Justice to terminate or vary her sealing order of January 21, 2002 in respect of the documents concerning seven search warrants ("the documents in issue"). The sealing order and the application to terminate or vary its terms were made pursuant to section 487.3 of the Criminal Code, R.S.C. 1985, c. C-46. Section 487.3 is set out in Schedule A to these reasons.
[2] Later in November, counsel for the Attorney General of Canada was notified that the documents in issue contained "potentially injurious information" or "sensitive information" ("secret information") as defined in section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Secret information, in general terms, is information relating to international relations, national defence or national security. Schedule B to these reasons contains sections 38 to 38.16 (sometimes referred to collectively as "section 38") of the Act.
[3] In January 2004, while the section 487.3 application was still under consideration by the Ontario Court of Justice, this section 38 proceeding was initiated by the applicants for an order authorizing the disclosure of the documents in issue. Early in this proceeding, the parties agreed to case management.
[4] In March 2004, the time periods for the procedural steps were confirmed. The scheduling order also provided that notice of the hearing be given to Justice Dorval. No report was received under section 38.05. Neither the respondent Attorney General of Ontario nor the respondent Abdullah Almalki filed application material or participated in the hearing.
[5] The hearing commenced on June 10, 2004. After further considering the documents in issue and the parties' memoranda of fact and law, the Court questioned the advisability of continuing the section 38 hearing with the parallel proceeding in the Ontario Court of Justice not yet concluded. In the absence of the applicants and their counsel, the Court questioned representatives of the Attorney General of Canada, including his counsel, concerning the government's secret and other affidavit material. This examination was done more to allow the Court to understand better the issues before the Federal Court and the Ontario Court of Justice than to determine whether disclosure of the secret information would be injurious to national security. Counsel for all participating parties urged that the Federal Court hearing continue.
[6] In my view, the application before the Federal Court was launched prematurely. Judicial economy and the scheme envisaged in section 38 support the view that the Criminal Code proceeding should be completed before further pursuing this application. Accordingly, an order will issue adjourning the hearing of this application sine die for the reasons that follow.
Judicial economy
[7] "Proceeding", as defined in section 38, means a "proceeding before a court, person or body with jurisdiction to compel the production of information". None of the parties put in issue that the application to terminate or vary the sealing order is a proceeding within the meaning of section 38.
[8] Usually, the court, person or body from which the section 38 application emanates does not have possession of the secret information. From this perspective, this case is somewhat unique. (Other cases where the originating tribunal had possession of the records in issue include: Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), affirmed (1992), 140 N.R. 315 (C.A.); Moumdjian v. Canada (Security Intelligence Review Committee) (1995), 95 F.T.R. 35 (T.D.), affirmed (1997), 221 N.R. 188 (C.A.); and K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs) (1996), 106 F.T.R. 210 (T.D.).
[9] Here, the documents in issue in both the Ontario Court of Justice and the Federal Court are the same. More significantly, the same documents in issue have been filed in their unedited version in both Courts.
[10] A portion of the documents in issue was first filed with the Ontario Court of Justice by an official of the Royal Canadian Mounted Police in support of the application for the seven search warrants issued by Justice Dorval. These documents and others either created by the Ontario Court of Justice or filed by the RCMP after the execution of the search warrants were ordered sealed by Justice Dorval. These are the documents in issue in the application to terminate or vary the sealing order and in this section 38 application. This means, of course, that both the Ontario Court of Justice and the Federal Court have full access to the secret information.
[11] In the Ontario Court of Justice, the documents in issue are under seal ("the sealed documents"). In the Federal Court, the same documents in issue are said to contain "secret information", as defined earlier in these reasons.
[12] There is a second similarity in both proceedings.
[13] As I understand his position before the Ontario Court of Justice, the Attorney General of Canada will oppose the application to terminate or vary the sealing order on one or more of the grounds in subsections 487.3(1) and (2) of the Criminal Code. In particular, the Attorney General of Canada will argue that disclosure of the sealed documents will compromise the nature and extent of an ongoing investigation.
[14] In the Federal Court, the Attorney General of Canada will assert that disclosure of the secret information would be injurious to national security and, in particular, to the ongoing investigation into offences involving Canada's national security and other investigations.
[15] In each forum, the judge will be asked to assess whether disclosure of the same documents in issue, referred to as the sealed documents in the Ontario Court of Justice and the secret information in this Court, would compromise or cause injury to the very same investigation.
[16] The investigation referred to in both proceedings is a criminal investigation. Because the criminal investigation is allegedly related to international terrorism, it may also be viewed from the perspective of national security.
[17] National security interests are the subject matter of a section 38 application. The national security aspect of this criminal investigation, however, ought not to deter the judge of the Ontario Court of Justice from adjudicating the application to terminate or vary the sealing order.
[18] To repeat, the Ontario Court of Justice has all the information with no deletions. When counsel first raised the spectre of section 38, Justice Dorval was not informed specifically that the national security ground relied upon for the non-disclosure of all the secret information was the risk to one or more ongoing investigations. This was unfortunate. Also, she was not advised that a second national security ground is raised for only some of the secret information, an aspect disclosed to the applicants in this proceeding. The invocation of section 38 may have unduly sidetracked the section 487.3 hearing.
[19] Whether this section 38 proceeding need continue will depend on the result in the Ontario Court of Justice.
[20] If Justice Dorval refuses to vary further her sealing order, it is likely that there will be no reason to continue this section 38 application.
[21] If Justice Dorval agrees to vary further her sealing order and the Attorney General of Canada no longer objects to making public the information about to be disclosed, it is again likely that this proceeding would not be necessary.
[22] If Justice Dorval decides to vary further her sealing order and the Attorney General of Canada continues to object to making public the information about to be disclosed, the parties would then return to the Federal Court for the completion of this hearing.
[23] Consideration of section 38 will be timely when the determination under section 487.3 has been completed. The reasons for decision would indicate which portions, if any, of the documents in issue the judge of the Ontario Court of Justice was prepared to have disclosed. The parties could then consider their positions and, if necessary, pursue their rights under section 38 before the information was made public.
[24] On this analysis alone, I am satisfied that the Federal Court should defer to the Ontario Court of Justice. It is the application to terminate or vary the sealing order which triggered this litigation. On the basis of the evidence to date in the section 38 proceeding, a principal aspect of the national security interest relied upon by the Attorney General of Canada coincides substantially with a principal ground he will raise to object to disclosure under section 487.3 of the Criminal Code, namely causing injury to or compromising the same investigation.
[25] In the circumstances of this particular case, it would be preferable for the Ontario Court of Justice to complete its section 487.3 criminal law proceeding prior to the Federal Court considering the objections to disclosure in a national security context. The legislative scheme set out in section 38, as I understand it, also supports this view.
The scheme of section 38
[26] Section 38 was substantially amended in the Anti-terrorism Act, S.C. 2001, c. 41. The same legislation also amended and added to the provisions of the Criminal Code but no change was made to section 487.3.
[27] The judge of the Federal Court, pursuant to subsection 38.06(1) may authorize disclosure of the information if the judge concludes that such disclosure would not be injurious to national security.
[28] According to subsection 38.06(2), if the Federal Court concludes that the disclosure of the secret information would be injurious to national security, a determination must then be made whether the public interest in disclosure outweighs in importance the public interest in non-disclosure.
[29] In arguing for disclosure, the applicants will be relying on their fundamental freedom of expression and freedom of the press entrenched in section 2(b) of the Canadian Charter of Rights and Freedoms. In particular, they will rely on the public interest in open court proceedings and in the general oversight concerning the conduct of police and other government officials. In this case, the termination or variation of the sealing order may be a relevant factor in weighing the compelling interests under subsection 38.06(2). I am satisfied that the interests of all parties will best be served if the balancing test takes place after the decision of the Ontario Court of Justice in the section 487.3 proceeding.
[30] Also, if the disclosure of part or all of the secret information wereauthorized by the Federal Court under either of subsections 38.06(1) or (2), that information could not properly be disclosed to the applicants prior to Justice Dorval having completed her analysis under subsection 487.3. It appears to me to be incongruous that the Federal Court continue a proceeding to authorize the disclosure of information now under seal in the Ontario Court of Justice.
[31] Furthermore, the secret information was not "about to be disclosed" ("sur le point d'être divulgués") within the meaning of subsections 38.01(2) or (4) until Justice Dorval had reached a conclusion concerning the application to terminate or vary her sealing order. If she had dismissed the application to terminate or vary her sealing order, no information would have been "about to be disclosed". It would have been preferable for counsel, in my respectful analysis, to alert the Ontario Court of Justice to the possibility of a section 38 issue and to continue with the subsection 487.3(4) proceeding until such time as Justice Dorval indicated, if that were her decision, that she was prepared to terminate or vary her sealing order.
[32] Finally, pursuant to the last sentence of subsection 38.13(1), the Attorney General of Canada may issue a certificate prohibiting the making public of information only "... after an order or decision that would result in the disclosure of information ..." ("... après la prise d'une ordonnance ou d'une décision qui entraînerait la divulgation des renseignements") has been made under section 38 or, in this case, the Criminal Code. Without being dispositive of the issue, this provision appears to be consistent with the view that the section 487.3 proceeding should be the first step in this process.
[33] The parties' recourse to section 38 prior to allowing Justice Dorval to proceed with her analysis under section 487.3 was premature. The notification under section 38.01, the Attorney General of Canada's authorization or notification under subsections 38.03(1) or (3) respectively and any application to this Court under section 38.04 could have followed the decision of Justice Dorval. Proceeding in this fashion would have been consistent with the process in Canada (Attorney General) v. Ribic, 2002 FCT 839:
3. ... On the basis of [Captain Doucette's] evidence and the submissions of counsel, the presiding judge in the criminal proceeding ordered that the five documents be fully disclosed under the Stinchcombe test ...
4. The order that the secret information be disclosed triggered the notification provisions in subsections 38.01(2) and 38.03(3) of the Canada Evidence Act. The Attorney General of Canada then commenced this application.
Post scriptum: too much secrecy???
[34] For some twenty years now, Federal Court hearings under section 38 have been in private: S.C. 1980-81-82, c. 111, s. 4, (Schedule III). The amendments enacted in the anti-terrorism legislation have added to the secrecy shrouding a section 38 proceeding. This application raises some examples of the difficulties presented by the secrecy requirements.
[35] Under the current law, no one is to disclose that a notice of application under section 38 has been filed with the Federal Court: paragraph 38.02(1)(c). Put simply, not even the Court can acknowledge publicly that it is seized of a section 38 proceeding. This can lead to unintended, even absurd, consequences.
[36] In this case, statements were made in open sessions of the Ontario Court of Justice in late November and December 2003 acknowledging that the section 487.3 proceeding would be suspended to permit the making of this section 38 application. I know of no impediment prohibiting the publication of this information by the media. I choose not to comment on other public statements which may have been inconsistent with subsection 38.02(1).
[37] This section 38 application was filed on January 5, 2004. From the outset, this Court could not acknowledge whether the application had been made, not even to a person who would have reasonably known this to be so from the public information in the Ontario Court of Justice.
[38] There may be an exceptional case where the secrecy envisaged in section 38.02 may be warranted. In the more usual situation, however, where secret information is in issue, the necessity of a section 38 proceeding is made known publicly before the person presiding over the tribunal or court hearing. The Federal Court is required by section 38 to keep secret a fact which has been referred to publicly in the court or tribunal from which the proceeding emanates. It is unlikely that Parliament could have intended that the drafting of section 38 would result in such a consequence.
[39] Subsequently, on February 9, 2004, the Attorney General of Canada consented to the applicants making public the fact that the Federal Court had been asked to make an order with respect to disclosure of the secret information. On April 1, 2004, the Attorney General of Canada authorized the applicants to publish the notice of application in this proceeding, should they wish to do so.
[40] In authorizing the disclosure of the existence of this proceeding and the contents of the notice of application, the Attorney General of Canada was doing so in the sole exercise of his discretion. His authorization, in my respectful view, simply recognized the obvious. Anyone attending the proceedings before Justice Dorval in the Ontario Court of Justice would understand that the matter had been referred to this Court. There was no secret information in the notice of application. This same reality applies to most other section 38 proceedings. The Attorney General of Canada is likely to participate in all section 38 proceedings: section 38.04. It is unusual that a party to the litigation should be the sole arbiter to authorize the disclosure of information which is or should be public. A court should be seen as having reasonable control over its proceedings in the situation I have just described.
[41] In the same vein, once the applicants had been authorized to make public the existence of this proceeding and the notice of application, the Federal Court was placed in the invidious position of maintaining confidentiality with respect to its records where one of them, the notice of application, could be in the public domain. This is because subsection 38.12(2) requires that the court records relating to the hearing be confidential. It is the breadth of the provision that appears to cause this difficulty.
[42] The Attorney General of Canada and his counsel understood a further problem presented by section 38 in another proceeding. To their credit, they sought an order from the Federal Court of Appeal which authorized the disclosure of its decision in Canada (Attorney General) v. Ribic, 2003 FCA 246, to counsel for the parties and to the judge hearing other section 38 proceedings while the application for leave to appeal was before the Supreme Court of Canada (order dated September 4, 2003 in Court of Appeal docket nos. DESA-1-03 and DESA-2-03). It is incongruous that there should be uncertainty concerning the circulation of section 38 decisions under appeal, even among the judges of this Court designated to conduct such proceedings. Clarification of the statutory provisions could make the administrative solution reached in Ribic unnecessary.
[43] Similarly, in this proceeding, I twice raised with counsel the necessity of the case management conferences having to be conducted with no access to the public. The hearings on the merits of this case have also been in private. Again, it is subsection 38.11(1) which requires that section 38 hearings shall be conducted in private. Even where the representatives of the Attorney General of Canada, the parties seeking access to the secret information and their counsel were all present, the hearings were secret. During these sessions, no secret information was disclosed. The need to exclude the public from those sessions was not obvious. The need for privacy during all sessions of a proceeding involving secret information has been successfully challenged in the context of the Privacy Act, R.S.C. 1985, c. P-21: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 at paragraphs 52-60. In this proceeding, there was no constitutional challenge with respect to subsection 38.11(1).
[44] The Supreme Court of Canada, in its recent consideration of another provision of the Anti-terrorism Act, has reiterated the importance of the public's access to court proceedings. The open court principle is a cornerstone of our democracy and "... is not lightly to be interfered with": Vancouver Sun (Re), 2004 SCC 43 at paragraphs 23-27. Section 38 is the antithesis to this fundamental principle.
[45] These post scriptum comments concerning the Court's experience in this and other section 38 proceedings may be relevant to those involved in the review of the anti-terrorism legislation. They may wish to consider whether certain provisions in section 38 unnecessarily fetter the open court principle.
"Allan Lutfy"
Chief Justice
Ottawa, Ontario
July 30, 2004
SCHEDULE A
Criminal Code
487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant or authorization on the ground that
(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.
Reasons
(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure
(a) if disclosure of the information would
(i) compromise the identity of a confidential informant,
(ii) compromise the nature and extent of an ongoing investigation,
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
(iv) prejudice the interests of an innocent person; and
(b) for any other sufficient reason.
Procedure
(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
Application for variance of order
(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant was obtained may be held.
Le Code criminel
487.3 (1) Le juge ou le juge de paix peut, sur demande présentée lors de la délivrance du mandat, en vertu de la présente loi ou d'une autre loi fédérale, ou lors de la délivrance de l'autorisation prévue aux articles 529 ou 529.4, ou par la suite, interdire, par ordonnance, l'accès à l'information relative au mandat ou à l'autorisation et la communication de celle-ci pour le motif que, à la fois :
a) la communication, pour les raisons mentionnées au paragraphe (2), serait préjudiciable aux fins de la justice ou l'information pourrait être utilisée à des fins illégitimes;
b) la raison visée à l'alinéa a) l'emporte sur l'importance de l'accès à l'information.
Raisons
(2) L'ordonnance interdisant la communication au motif que celle-ci serait préjudiciable aux fins de la justice peut être fondée sur les raisons suivantes :
a) la communication, selon le cas :
(i) compromettrait la confidentialité de l'identité d'un informateur,
(ii) compromettrait la nature et l'étendue des enquêtes en cours,
(iii) mettrait en danger ceux qui pratiquent des techniques secrètes d'obtention de renseignements et compromettrait ainsi la tenue d'enquêtes ultérieures au cours desquelles de telles techniques seraient utilisées,
(iv) causerait un préjudice à un innocent;
b) toute autre raison suffisante.
Procédure
(3) Tous les documents relatifs à une demande faite en application du paragraphe (1) sont, sous réserve des modalités que le juge de paix ou le juge estime indiquées dans les circonstances, notamment quant à la durée de l'interdiction, la communication partielle de tout document, la suppression de certains passages ou la survenance d'une condition, placés dans un paquet scellé par le juge de paix ou le juge auquel la demande est faite dès qu'une décision est prise au sujet de cette demande; ce paquet est gardé par le tribunal, en un lieu auquel le public n'a pas accès ou en tout autre lieu que le juge de paix ou le juge peut autoriser et il ne peut en être disposé que conformément aux modalités fixées par le juge de paix ou le juge dans l'ordonnance ou dans l'ordonnance modifiée conformément au paragraphe (4).
Modification
(4) La demande visant à mettre fin à l'ordonnance ou à en modifier les modalités peut être présentée au juge de paix ou au juge qui l'a rendue ou à un juge du tribunal pouvant être saisi de la poursuite découlant de l'enquête dans le cadre de laquelle le mandat a été délivré.
SCHEDULE B
38. The following definitions apply in this section and in sections 38.01 to 38.15.
"judge" « juge »
"judge" means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04.
"participant" « participant »
"participant" means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information.
"potentially injurious information" « renseignements potentiellement préjudiciables »
"potentially injurious information" means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
"proceeding" « instance »
"proceeding" means a proceeding before a court, person or body with jurisdiction to compel the production of information.
"prosecutor" « poursuivant »
"prosecutor" means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding.
"sensitive information" « renseignements sensibles »
"sensitive information" means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
R.S., 1985, c. C-5, s. 38; 2001, c. 41, ss. 43, 141.
Notice to Attorney General of Canada
38.01 (1) Every participant who, in connection with a 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 shall, 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 proceeding.
During a 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 proceeding shall raise the matter with the person presiding at the 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 proceeding shall 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 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 proceeding.
During a 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 proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall 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 proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
Military proceedings
(5) In the case of a proceeding under Part III of the National Defence Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.
Exception
(6) This section does not apply when
(a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding;
(b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under section 38, this section and sections 38.02 to 38.13, 38.15 and 38.16;
(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; or
(d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule.
Exception
(7) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (6)(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 with the person presiding under subsection (2).
Schedule
(8) The Governor in Council may, by order, add to or delete from the schedule a reference to any entity or purpose, or amend such a reference.
2001, c. 41, s. 43.
Disclosure prohibited
38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding
(a) information about which notice is given under any of subsections 38.01(1) to (4);
(b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5);
(c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or
(d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6).
Entities
(1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given.
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 38.03 or by agreement under section 38.031 or subsection 38.04(6); or
(b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available.
2001, c. 41, ss. 43, 141.
Authorization by Attorney General of Canada
38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1).
Military proceedings
(2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.
Notice
(3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives 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 his or her decision with respect to disclosure of the information.
2001, c. 41, s. 43.
Disclosure agreement
38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(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 application to Federal Court
(2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2).
2001, c. 41, ss. 43, 141.
Application to Federal Court -- Attorney General of Canada
38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).
Application to Federal Court -- general
(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 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 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 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 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 Chief Administrator of the Courts Administration Service 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 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 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 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.
2001, c. 41, ss. 43, 141.
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.
2001, c. 41, s. 43.
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 national 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 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 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 au