4.2 Protecting Confidential Information under Section 38 of the Canada Evidence Act

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Overview
• 3. Application
• 4. Timing
• 5. Relationship with Section 37 of the Canada Evidence Act
• 6. Jurisdiction
• 7. Procedure in PPSC Prosecutions – Documents in the Investigative File
• 8. Test for Potentially Injurious or Sensitive Information
• 9. Application to the Federal Court under Section 38.04 of the Canada Evidence Act for a Disclosure Order under Section 38.06 of the Canada Evidence Act
• 10. Impact of Confirmation of Prohibition or Prohibition Certificate

1. Introduction

Section 38 of the Canada Evidence Act^{Footnote 1} (CEA) sets out a regime which prevents the disclosure of information or documents that contain what is defined as “sensitive” or “potentially injurious” information in a criminal proceeding without the consent of the Attorney General of Canada (Attorney General), or a court order.

2. Overview

Section 38.01 requires every participant in a proceeding to advise the Attorney General, as opposed to the Director of Public Prosecutions (DPP), in writing where there is a possibility of disclosure of sensitive or potentially injurious information. The disclosure of this information is prohibited unless authorized by the Attorney General or by a Federal Court judge. References in this directive to the Attorney General relate to the Department of Justice and not to the Office of the DPP.

Upon receipt of the written notice, the Attorney General has ten days to provide written notice of his or her decision with respect to disclosure of the information.

If disclosure is not authorized within 10 days, disclosure of the information remains prohibited, pending a decision of the Federal Court.

3. Application

Section 38 applies to all criminal proceedings,^{Footnote 2} and whether the Public Prosecution Service of Canada (PPSC), a provincial Attorney General or even a private prosecutor has carriage of the prosecution.

4. Timing

The obligation to notify the Attorney General arises both where disclosure is required to be made and where it may not be required but is nevertheless expected. Under the CEA, the obligation rests with the participant who expects to disclose. However, PPSC counsel must also ensure that the provisions are respected whether or not the Office of the DPP is the custodian of the information. Thus, counsel should raise the issue:

• with opposing counsel where PPSC is a party to the proceedings and it becomes apparent that the defence proposes to call or commences calling evidence that may engage s. 38;
• with the provincial Crown where it comes to counsel’s attention that the Crown has disclosure materials in a provincial prosecution that may engage s. 38; and
• with the provincial Crown where it comes to counsel’s attention that either the Crown or the defence in a provincial prosecution plan to call a witness or tender evidence that may engage s. 38.

Unless PPSC counsel is satisfied that provincial Crown counsel and/or opposing counsel, as appropriate, have provided notice to the Attorney General of Canada, PPSC counsel should consider appearing in court to raise the matter with the presiding justice.

Although likely to be a rare event in a criminal trial, counsel should also be aware that certain witnesses, who meet the definition of an “official” under s. 36.1 CEA,^{Footnote 3} may also raise the matter with the court where the witness believes that information covered by the provision are at risk of being disclosed.^{Footnote 4}

5. Relationship with Section 37 of the Canada Evidence Act

Where Crown counsel determine that both s. 38 and s. 37 may apply, s. 38 takes primacy and Crown counsel should resort first to s. 38.

6. Jurisdiction

Where PPSC does not have carriage of the prosecution, s. 38.15 CEA allows for the serving of a fiat on the prosecution establishing the exclusive jurisdiction of the Attorney General of Canada to conduct the prosecution. In the alternative, the Attorney General of Canada may choose not to issue a fiat but instead come to an agreement with the provincial prosecutor respecting the manner and substance of disclosure of sensitive information.

Therefore, any counsel who becomes aware of the existence of any non-federal prosecution or potential prosecution, or any other court proceeding that may engage s. 38, must advise their Chief Federal Prosecutor (CFP), as well as the Regional Terrorism Prosecutions Co-ordinator, of the matter.

The Regional Terrorism Prosecutions Co-ordinator in turn will advise the National Terrorism Prosecutions Co-ordinator so he or she may confirm that the Attorney General has been advised of the possibility of disclosure and determine whether a fiat should be issued.

7. Procedure in PPSC Prosecutions – Documents in the Investigative File

As a practical matter, s. 38 claims are most likely to arise in the context of national security prosecutions. Files that may be reasonably expected to contain documents engaging national security privilege include:

• terrorism offences,^{Footnote 5} including public bombings under s. 431.2 of the Criminal Code;
• offences relating to internationally protected persons under s. 424 and s. 431 of the Criminal Code or against a member of the United Nations or associated personnel;
• war crimes;
• human smuggling;
• Security of Information Act^{Footnote 6} offences;
• passport or citizenship forgery offences under s. 57 and 58 of the Criminal Code;
• files with classified information (generally Secret or above) or documents from CSIS, CSE or RCMP National Security Intelligence; and
• files with information from foreign law enforcement partners.

In many of these cases, the PPSC may be involved in providing legal advice prior to charges being laid.

The first stage in assessing a s. 38 claim is to identify whether or not the information is relevant under R v Stinchcombe.^{Footnote 7} Information that is not relevant is not subject to disclosure and there is no need to advise the Attorney General of Canada unless there is a risk of disclosure. If information would otherwise be subject to disclosure under Stinchcombe, but is properly the subject of a s. 38 claim, then the prosecutor should inform the National Security Group, and promptly prepare a Notice under s. 38.01 in accordance with this directive.

In complex prosecutions, PPSC counsel may seek and receive input from the investigative agency about both the likely relevance of the information as well as whether or not the information may cause harm to national security, national defence or international relations if disclosed.

Prior to sending a Notice, PPSC counsel shall notify the CFP and the National and Regional Terrorism Prosecutions Co-ordinators. Pursuant to s. 38.02(1)(b), the fact that Notice has been given shall not be disclosed.

8. Test for Potentially Injurious or Sensitive Information

“Potentially injurious information” is defined in s. 38 as information that could injure international relations, national defence or national security. It should be noted that:

• the information need not be in possession of the Crown nor generated by the Crown;
• the focus is on the potential for harm rather than on any particular subject matter;
• the information need not be in a document, but may also include information known to a witness; and
• the reliability of the information is not relevant to the determination of its sensitivity.

“Sensitive information” is information in the possession of the Government of Canada of a type that Canada is taking measures to safeguard, and relates to international relations, national defence or national security. The information must:

• be in the possession of the Government of Canada; and
• relate to one of the three enumerated interests.

It may not be apparent to counsel whether or not the Government of Canada is taking means to protect the information. Crown counsel should err on the side of caution. When in doubt, the National Security Group (NSG) of the Department of Justice must be consulted for advice.

The NSG’s guide to s. 38 entitled “An Introduction to Section 38 of the Canada Evidence Act” has a non-exhaustive list of some practical examples of sensitive or potentially injurious information, such as:

• confidential diplomatic exchanges or other information about Canada’s relationships with foreign states;
• strategies of the government in foreign affairs;
• information received from third parties such as foreign intelligence services with a caveat against further disclosure;^{Footnote 8}
• capabilities and functions of Canadian forces, details of military operations
• intelligence operation, organizations and sources;
• telecommunications and cipher systems or cryptology, military equipment; and
• the identity of covert employees, confidential sources, or the targets of an ongoing or past investigation that have not been made public.

In assessing whether s. 38 applies, PPSC counsel may have recourse to the following resources:

• the NSG’s Guide is available from the Regional Terrorism Prosecution Co-ordinator through the Terrorism Toolkit;
• the regional Terrorism Prosecution Co-ordinator or the National Terrorism Prosecution Co-ordinator; and
• the NSG.

Where the information may fall within s. 38, counsel shall prepare a Notice, required by s. 38.01(1) to (4) and send it to:

Director of the National Security Group
The National Security Group
Criminal Litigation Division
Litigation Branch
284 Wellington Street
Ottawa, Ontario
K1A 0H8

The Notice must contain:

• the name, address and phone number of PPSC counsel acting as the notifier;
• the nature, date and place of the proceeding in which the disclosure may occur;
• a brief procedural history and synopsis of the case;
• an assessment of the relevance of the information;
• a description of the information and, if possible, the information itself; and
• a brief description of the possible injury that disclosure should cause, i.e. the basis upon which it is believed that s. 38 may apply.

Counsel may contact NSG to obtain assistance with respect to the content of the Notice.

The NSG will formulate the Attorney General of Canada’s position as to whether a privilege under s. 38 applies and whether to authorize disclosure of the information under s. 38.03 or enter into a disclosure agreement under s. 38.031 CEA.

Note also that the CEA prohibits disclosure of the fact that Notice has been given until authorized by the Attorney General. Counsel should confirm with NSG that permission to disclose the fact of the notice has been granted by the Director of the NSG.

9. Application to the Federal Court under Section 38.04 of the Canada Evidence Act for a Disclosure Order under Section 38.06 of the Canada Evidence Act

The disclosure issue may be taken before the Federal Court on the initiative of the Attorney General, the Crown, the accused (if he or she has been made aware of it), or any other person who seeks the disclosure of the protected information (s. 38.04).

Applications before the Federal Court are conducted by Department of Justice counsel acting on behalf of the Attorney General and not by PPSC counsel. However, the trial judge in a criminal trial is to be given notice of the hearing, as are the accused and his or her counsel, and PPSC counsel should be vigilant in verifying that this has in fact taken place unless the Federal Court has declined to so order.

PPSC counsel with carriage of the prosecution should also seek to be served with Notice of a Hearing under s. 38.04(i) or 38.04(5)(c)(i) CEA, and should ask counsel for the Attorney General to seek this order on the DPP’s behalf. PPSC counsel must consider whether it is necessary to apply to make representations on the application.

The test for a disclosure order under s. 38.06 requires a Federal Court justice to assess whether or not the disclosure of the information would be injurious to international relations, national defence or national security. If this threshold is met, the justice then must consider whether the public interest in disclosure outweighs the public interest in non-disclosure.

Before undertaking this balancing test, the federal court judge must determine whether the information sought to be disclosed is relevant, with the onus on the party seeking disclosure.^{Footnote 9} In arguing this aspect of the test, Department of Justice counsel may well benefit from the input of PPSC counsel respecting the relevance of the information to an issue at trial.

The Federal Court justice has the option of crafting conditions on the form of disclosure as well as to order a summary of the information, a part or summary of the information or a written admission of facts relating to the information.

10. Impact of Confirmation of Prohibition or Prohibition Certificate

Section 38.14 CEA authorizes the trial judge to make any order considered appropriate to protect the right of the accused to a fair trial, including staying the proceedings, dismissing specified counts or an order finding against the Crown on the issue relating to disclosure that has been prohibited.

Lack of disclosure in this context cannot necessarily be equated with the denial of the right to make full answer and defence resulting in an unfair trial. There will be many instances in which non-disclosure of protected information will have no bearing at all on trial fairness or where alternatives to full disclosure may provide assurances that trial fairness has not been compromised by the absence of full disclosure. However, the remedies have been defined very broadly and, according to the Supreme Court of Canada, “Parliament expected trial judges to be provided with a sufficient basis of relevant information on which to exercise their remedial powers judicially”.^{Footnote 10}

Of particular note, a stay of proceedings can be granted even where the “clearest of cases” threshold ordinarily required for a stay has not been met. The Supreme Court held in Ahmad,^{Footnote 11} that “…the legislative compromise made in s. 38 will require a stay in such circumstances if the trial judge is simply unable to conclude affirmatively that the right to a fair trial, including the right of the accused to a full and fair defence, has not been compromised.”

The Supreme Court has suggested a number of possible “arrangements” to satisfy the trial judge that non-disclosure has not materially affected trial fairness, including:

• “partial or conditional disclosure” to the trial judge alone;
• provision of a summary of the information to the trial judge alone, the trial judge and prosecutor, or all the parties;
• adapting certain facts sought to be established by an accused as proven and true for the purposes of the criminal proceeding;
• where the relevance of the withheld material is in issue, the appointment of a special advocate may be appropriate; and
• allowing defence counsel to access the withheld material on an undertaking not to disclose it to the accused. However, the Supreme Court of Canada urged caution in resorting to this practice.^{Footnote 12}

These arrangements require either the consent of the Attorney General, or a Federal Court Order.

If, under the arrangements that are made, there is simply not enough information to decide whether or not trial fairness has been materially affected, the trial judge must presume that the non-disclosure order has adversely affected the fairness of the trial, including the right of the accused to make full answer and defence.

However, in such a case, rather than proceed directly to issuance of a stay, the Supreme Court placed an obligation on the trial judge to give the Crown “fair warning”. PPSC counsel will then have an opportunity to make further and better disclosure to address the trial judge’s concerns. This is an opportunity for PPSC counsel to approach the NSG to determine if there are any conditions that may be devised whereby the Attorney General may consent to release any additional information. If no (or inadequate) additional information can be provided to the trial judge, a stay of proceedings will be the presumptively appropriate remedy.^{Footnote 13}

For this reason, PPSC counsel should explore any and all options, in consultation with counsel for the Attorney General, for providing as much material as possible (a) to all parties and (b) failing that, to the trial judge with counsel for the Attorney General acting on the s. 38 hearing.

Outside agencies from which the information originates may seek the prosecutor’s views as to the impact that non-disclosure may have on the fairness of the trial. PPSC counsel may provide these views but must remain mindful of the fact that these agencies are not the investigative agency on the file and are third parties for the purposes of the prosecution with their own legal counsel.

If it becomes obvious to Crown counsel that non-disclosure under s. 38 will significantly and irreparably impact trial fairness, then Crown counsel itself ought normally to enter a stay of proceedings.^{Footnote 14} In assessing both the reasonable prospect of conviction and the public interest in a prosecution PPSC counsel will be assisted by the earliest possible identification of material which, the Attorney General is not prepared to disclose. This is another reason for advisory counsel to send early notifications to the NSG where sensitive or potentially injurious information is identified.