7. Questions and Answers – Part 3

• Table of Contents

Qs & As – Bill C-70, An Act Respecting Countering Foreign Interference

Contents

• What is SARP?
• What would SARP do concretely?
• Is the SARP a secret trial?
• Don’t we need more judges to do this work?
• What did stakeholders say about the SARP?
• What are the kinds of cases it could apply to?
• How is the SARP related to Foreign Interference?
• Who pays the special counsel?
• Can the special counsel talk to the other lawyers on the case?
• What if the special counsel discloses something they shouldn’t?
• Is the special counsel a good enough substitute for a proceeding that will include in camera and ex parte portions?
• What is the difference between a special counsel and a special advocate?
• What information is made public during the SARP?
• What is the difference between 38.33(3)(b) and 38.33(4) and do they contradict each other?
• Why don’t you list the circumstances under which an in camera ex parte hearing can be heard?
• What did you hear in the consultations about the SARP – was anyone opposed?
• How do our allies deal with sensitive information in administrative proceedings?
• Why are the Charter implications lesser in the administrative law context than the criminal context?
• What are the procedural fairness measures with this new SARP proceeding?
• Are there elements in SARP that are not present in the existing stand-alone regimes?
• Why wouldn’t it be mandatory for a judge to appoint a special counsel in all cases?
• What would be the criteria for appointing a special counsel?
• What would the role of the special counsel be?
• Would the special counsel be a lawyer?
• What is sensitive information or potentially injurious information?
• Do the provinces and territories support the SARP?
• Why are you not adding “endangering the safety of a person” to the SARP as a ground for prohibiting disclosure, when it is one of the grounds in the existing stand-alone regimes?
• What is a Canada Evidence Act certificate?
• Is there any appeal recourse of a certificate?
• What are the safeguards applicable to certificates?
• Why does the AGC have the right to issue a certificate?
• Will IRPA Division 9 be repealed by the SARP?
• What are the proposed changes to the Immigration and Refugee Protection Act (IRPA)?
• Why remove interlocutory appeals?
• How much delay is caused by interlocutory appeals?
• Is it fair, in criminal proceedings, to allow for interlocutory appeals for the Crown only?
• Has the SCC addressed the issue of interlocutory appeals?
• Would sealed information ever become public under sealing orders?
• Who gets to see the sealed information when a warrant is sought?
• If information is sealed, who gets to challenge its truth when a warrant is sought?
• Has the SCC addressed the issue of “in camera/ex parte” proceedings in the context of s. 38 of the Canada Evidence Act?
• Why add a specific national security consideration for sealing orders for warrants?
• What are the I&E legislative reforms that you consulted on that are not put forward at this time?
• Why are you not putting forward the Third Party and Garofoli proposals?
• When is the coming into force?

What is SARP?

• SARP stands for Secure Administrative Review Proceedings. A SARP process would allow the Federal Court or the Federal Court of Appeal to determine whether sensitive information that was before an administrative decision-maker when they made a decision should remain confidential or be made public when the decision is challenged in one of those two courts.
• The SARP process would apply to a broad range of administrative decisions challenged in these federal courts, from those involving goods and services, charitable status, investments, and contracts through to more individual issues such as security screenings, passports and air travel (“no-fly lists”).
• The SARP process would improve and standardize the legal procedures and protections for these Federal Courts’ review of governmental decisions involving sensitive intelligence and evidence including where the decisions are made in furtherance of protecting Canada against Foreign Interference.
• The SARP would apply to any decision of a federal board, commission or other tribunal where “sensitive information” or “potentially injurious information” as defined under the Canada Evidence Act (CEA) was used in the initial decision-making and is part of the record.

What would SARP do concretely?

• Under the SARP, if the Government moves to protect the sensitive or potentially injurious information in a judicial review application or an appeal, a designated judge of the Federal Courts would be able to decide both the information protection proceedings and the merits, or any other aspects, of the judicial review or statutory appeal.
• As a result, even where the judge confirms the non-disclosure of the sensitive or potentially injurious information under section 38 CEA, the judge will be aware of the information and able to rely on it for the purposes of assessing the merits of the judicial review or statutory appeal.
• This would allow the judge to consider the entirety of the decision-making record at issue, even if some of the information in the record cannot be disclosed to the non-government party, while at the same time providing a mechanism that allows the affected individual to participate meaningfully in the judicial review or statutory appeal.
• The mechanism would also authorize the judge, if the judge is of the opinion that considerations of fairness and natural justice so require, to appoint a special counsel, who could be appointed from the list of special advocates, to both participate on behalf of the affected individual during the section 38 CEA hearing, as well as a special counsel during the open and closed portions of the judicial review or appeal.

Is the SARP a secret trial?

• The SARP is not a secret trial. It is not a trial at all. It is a hearing that is concerned exclusively with what parts of the record can be made public in an administrative proceeding in the Federal Court or the Federal Court of Appeal.
• The open court principle is a fundamental principle of our legal system. There are situations where, for reasons of national security, a court may need to hear evidence or information in a closed hearing, without the affected party or the public present. The courts have recognized that the Government has a responsibility to protect national security and that in some circumstances, that will mean closed hearings.
• The SARP is exclusive to reviews and appeals of federal administrative decision-making. It would not apply in criminal proceedings.
• Portions of SARP proceedings would be closed to the public and the affected party, but only where it’s necessary to allow the judge to review sensitive information and evidence, and to hear submissions/representations on such sensitive information.
• For the closed portions of the proceedings, the judge would have the authority to appoint a special counsel to represent the interests of the affected party and to provide a summary of the sensitive information.

Don’t we need more judges to do this work?

• The SARP would not create more work for the Federal Court or the Federal Court of Appeal. The goal is to streamline and standardize the processes in a judicial review or an appeal of a federal administrative decision where there is sensitive information in the certified tribunal record or in any other record that was before the decision-maker.
• In other words, the SARP would not create additional “files” or “cases” because we are not creating new areas of federal administrative decision-making. The existing authorities for ministerial decisions, as well as those of tribunals, commissions and boards are unchanged but disputes over what parts of the record can be made public would be processed in a standardized manner when there is sensitive information in the file.

What did stakeholders say about the SARP?

• There was overall support for the proposed SARP regime. Commenters highlighted how this process could strike the right balance between addressing national security concerns and ensuring fair and informed legal proceedings. There was also support for consolidating stand-alone administrative regimes into one universally available process, which would bring greater consistency and efficiency in how national security information is considered in judicial reviews and statutory appeals to the Federal Court and the Federal Court of Appeal, and avoid delays in judicial proceedings.

What are the kinds of cases it could apply to?

• Charities Registration (Security of Information) Act, (2001) ss. 6, 11(2) – a process in the Federal Court for reviewing a Ministerial decision regarding the denial or revocation of charitable status for national security grounds.
• Criminal Code, (2001) ss. 83.05(6), 83.06 – judicial review in Federal Court of a Ministerial decision on a de-listing application.
• Criminal Code – ss. 83.039(1)-(4) – judicial review in Federal Court for refusals to grant an authorization to carry out activities in a specified geographic area controlled by a terrorist group (former Bill C-41 (Humanitarian Aid)).
• Prevention of Terrorist Travel Act, (2015) ss. 4(4), 6(2) – judicial review in Federal Court for the cancellation of a passport on national security grounds.
• Secure Air Travel Act, (2015) ss. 16(6), 17 – appeals in the Federal Court of Ministerial directions concerning orders, no fly lists, denied boarding and screening.
• Closed proceedings in the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (2001).
• Investment Canada Act (former Bill C-34) – judicial reviews of investments injurious to national security by non-Canadians.

If the following Bill becomes law, it is expected that it will also be captured by the SARP:

• Bill C-26 (An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts).

Other regimes could be captured by SARP in the future, as these regimes do not have a stand-alone scheme in their acts. These are, for example:

• National Security and Intelligence Review Agency decisions on complaints in relation to activity of CSIS and CSE;
• Investment Canada Act decisions under the national security provisions concerning foreign involvement;
• CBSA enforcement activities under the Customs Act and Proceeds of Crime (Money Laundering) and Terrorist Financing Act with respect to seizures of goods or currency at the border;
• Customs Act decisions regarding refusal or revocation of membership in certain trusted traveller and trusted trader programs;
• Canadian International Trade Tribunal Act decisions;
• Aeronautics Act decisions under the Transportation Security Program relating to security clearances;
• Marine Transportation Security Act decisions relating also to security clearances;
• Export and Import Permits Act decisions on the status of goods and issuance of import or export permits;

How is the SARP related to Foreign Interference?

• Sensitive information may be relevant in a range of federal administrative statutory decision-making processes, including in foreign interference matters. Administrative decisions relating to foreign interference could come up in any number of situations – from federal decisions involving companies, investments, licences to security clearances.

Who pays the special counsel?

• The Government of Canada will pay for the special counsel.
• We intend to use the same system that is in place for the State Funded Defence Counsel program. There would be cost recovery from the implicated department or agency.

Can the special counsel talk to the other lawyers on the case?

• The special counsel can talk to the counsel representing the affected party until they are granted access to the sensitive information. Once they have access to the sensitive information they can no longer talk to the other counsel. In their order appointing the special counsel, it is likely that the judge will set a specific date after which the special counsel can no longer communicate with the affected party and their counsel, if the are represented, without judicial authorization (SARP, s. 38.38 CEA). This rule is to ensure that there are no inadvertent disclosures of sensitive information.
• Throughout the proceeding, however, the special counsel will be able to communicate with the amicus/amici and the AGC counsel.

What if the special counsel discloses something they shouldn’t?

• A special counsel is not personally liable for anything they do or omit to do in good faith under the Canada Evidence Act (SARP, s. 38.36 CEA). However, under s. 127 of the Criminal Code, if the special counsel disobeys a lawful order made by a court of justice, such as an order prohibiting the disclosure of sensitive information without lawful excuse, the special counsel would be liable.

Is the special counsel a good enough substitute for a proceeding that will include in camera and ex parte portions?

• We believe that it is, given that the dedicated role of the special counsel will be to represent the interests of an affected party.
• Justice Noël of the Federal Court summarized, in 2020 and in the context of two proceedings under SATA, the following SCC decisions in relation to the balancing of the open court principle and national security interests:

  • “In Charkaoui I, the Supreme Court of Canada was clear that the designated judge is “not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring” (para 64). For this reason, the Supreme Court of Canada noted that the appointment of third-party counsel in ex parte and in camera proceedings could serve as a substantial substitute for full disclosure and full participation (paras 70–84). In Harkat (2014), the Supreme Court of Canada found that such a third party, in the form of a special advocates scheme created as a response to Charkaoui I, combined with the “gatekeeper” role assigned to the designated judge, provided for a fair judicial process that did not violate the named person’s right to know and meet the case against them, or the right to have a decision made on the facts and the law (Harkat (2014), at paras 45–47 and 110–112).” Brar v. Canada (Public Safety and Emergency Preparedness) – Federal Court (fct-cf.gc.ca)

What is the difference between a special counsel and a special advocate?

• The role of a special counsel is the same as a special advocate, however, their roles occur in different contexts: the special advocate acts solely in the context of immigration proceedings and the special counsel acts solely in the context of federal administrative proceedings (excluding immigration proceedings).
• Specifically, a special advocate’s role is to protect the interests of a permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 of the Immigration and Refugee Protection Act when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
• A special counsel’s role is to protect the interests of the non-governmental party when information and other evidence is presented, or representations are made, in private and in absence of the non-governmental party and their counsel.

What information is made public during the SARP?

• The only information that will be made public is information that is not subject to a non-disclosure order, i.e. either information that the AGC did not seek to protect or information that the Court determines does not meet the legal test for protection.

What is the difference between 38.33(3)(b) and 38.33(4) and do they contradict each other?

• Paragraph 38.33(3)(b) states that, in conducting a hearing in private and in the absence of the non-governmental party and their counsel, without disclosing the sensitive information, the judge must ensure that the non-governmental party is provided with a summary of the sensitive information that enables them to be reasonably informed of the case.
• Subsection 38.33(4) states that the judge may base any decision on the sensitive information even if a summary of that information has not been provided to the non-governmental party.
• It is important to highlight that there is both an obligation to do summaries AND the ability for a judge to be able to base a decision on the sensitive information, even if a summary was not given to the non-governmental party.
• This flexibility is meant to cover situations where something is not specifically addressed in a summary but still is going to be used in the decision making.

Why don’t you list the circumstances under which an in camera ex parte hearing can be heard?

• We don’t want to “codify” a list of circumstances in which it is appropriate for a hearing to be held in private because it is fact dependent and there will be variations from one case to another.
• As a rule, a hearing would be in camera ex parte when sensitive information is being discussed, reviewed, etc. between the judge, the amicus/amici, the AGC counsel and the client departments.
• The AGC will be able to make submissions based on both the “open” evidence as well as the “protected” evidence. Therefore, an ex parte hearing would also be needed for arguments/representations that touch on the sensitive information.
• Flexibility is important as the decision to have an ex parte hearing will depend on the facts of each case, and the extent to which the classified information is relevant to the decision.
• The non-governmental party may also want to make ex parte representations to the judge, without the AGC present, if they wish to address issues with the judge that they do not wish to discuss with the Crown. This occurs in the s. 38 CEA context where the party wants to explain their theory of the case to the judge so that the judge can take this into consideration when balancing the public interest and ordering disclosure.

What did you hear in the consultations about the SARP – was anyone opposed?

• There was general support for the creation of the SARP, which is, in fact, simply standardizing regimes that already exists in certain statutes. The addition of the special counsel to this regime was a welcomed improvement to these types of proceedings and will result in increased fairness.

How do our allies deal with sensitive information in administrative proceedings?

• Our other Five Eyes partners are different from Canada in the sense that they do not have one court of unique jurisdiction, like our Federal Court, to deal with sensitive information in administrative proceedings.
• However, they all have similar approaches regarding the use and protection of sensitive information.

Why are the Charter implications lesser in the administrative law context than the criminal context?

• What the Charter and procedural fairness require varies based on the context, including the rights and interests at stake in the proceeding. The interests of the affected party in an administrative proceeding are different than those in a criminal context, including because the result of a criminal conviction is an impact on liberty.
• The SARP presents an approach that is balanced, reasonable, and Charter consistent, because it:
  • preserves judicial discretion to ensure effective and fair proceedings and the ability of the judge to order any remedy she feels is appropriate in the circumstances. This could be an overturning of the underlying decision or sending it back for reconsideration.
  • incorporates existing measures from s. 38 CEA that have been upheld as consistent with the constitution in R v Ahmad (SCC, 2011).
  • adopts procedures based closely on existing Division 9 of IRPA upheld in Harkat (SCC, 2014).
  • Incorporates safeguards that are specifically designed to be sufficient, even for proceedings where the highest Charter-protected fairness interests are at stake – including the provision of special counsel to represent the interests of the non-government party where the judge determines fairness requires a special counsel. These special counsel would be appointed on terms an conditions similar to those used for special advocates in the IRPA context.

What are the procedural fairness measures with this new SARP proceeding?

• The key pieces proposed on fairness are:
  • the inclusion of special counsel;
  • the ability to have both open and closed portions of proceedings and rulings;
  • a requirement for sufficient disclosure to be made to the affected person, potentially including providing summaries to the affected party that do not reveal the sensitive information itself; and
  • the same judge would hear section 38 CEA arguments as well as the judicial review or statutory appeal, which would give that judge a better sense of overall fairness.
• The judge may also, if unable to conduct a fair hearing because the affected party (the non-governmental party) is not reasonably informed of the case, make an order granting the party who is not reasonably informed with an appropriate remedy. In other words, it would be in the judge’s discretion to make any ruling necessary to ensure fairness.

Are there elements in SARP that are not present in the existing stand-alone regimes?

Yes. These include:

• A formal role for the Attorney General of Canada – the AG receives notice and brings the application for non-disclosure (not the client Minister).
• Additional grounds for non-disclosure – injury to national security, national defence, international relations, as opposed to just national security in stand-alone regimes.
• A new test for non-disclosure – a three-part test based on relevance, injury, public interest balancing, as opposed to just injury in stand-alone regimes.
• The Attorney General of Canada will have the authority to issue a certificate (not withdrawal on instructions by client officials as in stand-alone regimes).
• A special counsel can be appointed if the judge determines that fairness so requires (extending IRPA approach, not in stand-alone regimes).
• Express authority for a judge to order disclosure or take steps to ensure a fair process.

Why wouldn’t it be mandatory for a judge to appoint a special counsel in all cases?

• Judges are given flexibility to decide when to appoint a special counsel because not all cases involve the same rights and interests. Where, for example, the matter is purely commercial, procedural fairness may not require that the interests of the affected corporation be represented by a special counsel. On the other hand, where the administrative decision at issue has an impact on the rights and freedoms of an individual, the judge may conclude that a special counsel is needed to ensure fairness.
• A judge can appoint a special counsel if they are of the opinion that the considerations of fairness and natural justice require it. The appointment would be for all parts of the proceeding, i.e. both for the motion for non-disclosure and the federal proceeding as a whole, as well as all appeals.

What would be the criteria for appointing a special counsel?

• There are no proposed criteria for appointing a special counsel in a SARP proceeding, but it is likely that designated judges would look at the established principles and criteria in the jurisprudence for appointing special advocates in security certificate proceedings. Al Yamani v. Canada (Public Safety and Emergency Preparedness) – Federal Court (fct-cf.gc.ca).
• In A.B. v Canada (Citizenship and Immigration), 2012 FC 1140, Mr. Justice Simon Noël listed a number of considerations to be taken into account in determining if a special advocate ought to be appointed:

  • …in order to properly exercise his or her discretion to appoint or not a special advocate…the presiding judge ought to (i) examine the redactions, (ii) keep in mind the whole record, (iii) preside, if required, over an ex parte, in camera hearing, (iv) ask for justification for the redactions, (v) question the relevancy as presented, (vi) suggest and, if necessary, order the unveiling of the information if it is not justified in law and fact and (vii) read the decision subject to the judicial review proceeding. It is only then, according to Justice Noël, that the standards of fairness and natural justice will, in light of the knowledge gained from such approach, be better understood and applied to the case at bar (A.B., at para 9).

What would the role of the special counsel be?

• The role of the special counsel would be to protect the interests of the affected party when evidence is heard in private and ex parte of the affected party and their counsel, if they are represented.
• The special counsel would have the authority to make oral and written representations with respect to the evidence that has been filed with the court but has not been disclosed to the affected party and their counsel.
• The special counsel would also have the authority to participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in private and ex parte.
• With the judge’s authorization, the special counsel would be able to exercise any other powers that are necessary to protect the interests of the affected party and ensure a fair hearing.

Would the special counsel be a lawyer?

• Yes. Only lawyers may act as special counsel. The court may select them from the existing list of Special Advocates all of whom are already vetted, security cleared, and designated permanently bound to secrecy, but the judge retains the authority to appoint someone who is not on that list if there were other considerations such as availability, linguistic profile, etc.
• The relationship between the special counsel and the affected party would not be that of a solicitor and client. However, all communications between the affected party and/or their counsel and the special counsel would be subject to solicitor-client privilege.

What is sensitive information or potentially injurious information?

• 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.
• 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.

Do the provinces and territories support the SARP?

• While the creation of the SARP does not impact the jurisdiction of the PTs, the PTs were in favour of any regime that would standardize processes and bring legal certainty. The regular section 38 CEA process continues to apply to JRs of provincial or territorial decisions if there is sensitive information in records.

Why are you not adding “endangering the safety of a person” to the SARP as a ground for prohibiting disclosure, when it is one of the grounds in the existing stand-alone regimes?

• The concept of prohibiting disclosure because it would “endanger the safety of a person” was imported in SATA and other statutes from the Immigration and Refugee Protection Act where it is provided for in the context of security certificates.
• The ground of “endangering the safety of a person” would be caught by one of the three grounds under s. 38 of the Canada Evidence Act.

What is a Canada Evidence Act certificate?

• Pursuant to section 38.13 of the CEA, and now section 38.41 of the CEA, the Attorney General of Canada can personally issue a certificate prohibiting the disclosure of information 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 can only be issued after an order or a decision that would result in the disclosure of the information has been made.
• Disclosure of the information is then prohibited in accordance with the terms of the certificate, notwithstanding any other provision of the CEA.
• The purpose of these certificates is to provide, where necessary, a bar to the disclosure of certain highly sensitive information. For example, the Government of Canada may receive information from other countries on the condition that it should not be disclosed to a third party without that country’s consent. Where the consent for disclosure is not given, the government continues to have an obligation to protect that information.
• The Attorney General’s certificate can serve to offer this assurance to other countries that the Government of Canada is able to protect their information from disclosure in connection with proceedings.

Is there any appeal recourse of a certificate?

• Yes. The Federal Court of Appeal can review the certificate to determine whether the information to which it applies relates to the categories described above. The judge could confirm, cancel or vary the certificate. The decision of that judge is final and not subject to review or appeal.

What are the safeguards applicable to certificates?

• A number of safeguards apply to the use of an Attorney General certificate. These include the following:
  • the certificate can only be personally issued by the Attorney General of Canada;
  • the certificate may only be issued after an order or decision that would result in the disclosure of the information has been made under the CEA or any other Act of Parliament;
  • the certificate may only be issued 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 is to be published in the Canada Gazette without delay;
  • any party to a proceeding may apply to the Federal Court of Appeal for an order varying or cancelling the certificate;
  • the life of the certificate is ten years, unless it is re-issued by the Attorney General of Canada.

Why does the AGC have the right to issue a certificate?

• If the Federal Court orders the disclosure of information that the AGC has determined would be injurious to international relations or national security or national defence because the court has determined that the public interest in disclosure trumps the public interest in non-disclosure the CEA permits the Attorney General of Canada to personally issue a certificate prohibiting the disclosure of information.
• The purpose of these certificates is to provide, where necessary, a bar to the disclosure of certain highly sensitive information. For example, the Government of Canada may receive information from other countries on the condition that it should not be disclosed to a third party without that country’s consent. Where the consent for disclosure is not given, the government continues to have an obligation to protect that information.

Will IRPA Division 9 be repealed by the SARP?

• Though it will seek to repeal existing closed proceedings in a number of federal acts (such as the Secure Air Travel Act, and the Prevention of Terrorist Travel Act) and consolidate the scheme under the Canada Evidence Act, the proposed amendments and the secure administrative review proceeding (SARP) proposal will not seek to repeal the IRPA Division 9 regime principally as that scheme is well established both in terms of its administration and the judicial interpretation of those rules, and has been found by the Supreme Court to be constitutional.
• Division 9 of IRPA provides the statutory authority that allows for the use and protection of classified or otherwise non-disclosable information in certain immigration proceedings, when the disclosure of such information may be injurious to national security or endanger the safety of an individual. It does so, in part, on the basis of a closed proceeding.
• The IRPA also provides the framework for enforcement and risk management of security certificate cases. The use of Division 9 is rare, though there have been cases that have gone up to the Supreme Court of Canada (Charkaoui, 2007; Harkat, 2014).

What are the proposed changes to the Immigration and Refugee Protection Act (IRPA)?

• The proposal is to add to the IRPA grounds under which the Minister can seek to protect information from disclosure if injurious to: 1) international relations and 2) national defence. This change would make IRPA more consistent with the national security privilege test in the Canada Evidence Act which addresses claims relating to national security, international relations and national defence.
• Currently, Division 9 of the IRPA allows the Minister of Public Safety to apply for non-disclosure of information in certain immigration proceedings before the Immigration & Refugee Board (IRB) and the Federal Court on the grounds that disclosure of the information would be injurious to national security or endanger the safety of any person.
• Where the IRB or Federal Court are satisfied the information cannot be disclosed to the non-government party, Division 9 expressly permits them to rely on that undisclosed information to make their decisions. The SCC upheld the constitutional validity of this legislative regime in Harkat, 2014 SCC 37. Whether its application in any specific case complies with the Charter or duty of procedural fairness depends on whether the subject of the proceedings was provided sufficient information to allow them to participate meaningfully in the proceedings.
• The legal principles and process for Division 9 cases is now well-settled, especially when used in the context of Federal Court applications for judicial review of IRPA decisions. For this reason, the SARP amendments do not propose to repeal IRPA, Division 9.
• At present, Division 9 is only available to address concerns that disclosure of information would be injurious to national security or endanger the safety of any person. Where the concern is that disclosure of specific information would be injurious to international relations or national defence, the government would have to rely on s. 38 of the Canada Evidence Act to protect that information from disclosure. As a result, depending on the nature of the information in issue, judicial review of an IRPA decision may result in bifurcated proceedings under Division 9 of the IRPA (for injurious to national security or endanger the safety of any person) and s. 38 of the Canada Evidence Act (for injurious to international relations or national security). These bifurcated proceedings are inefficient, and legally complicated because of some subtle differences between the IRPA, Division 9 and s. 38 CEA regimes.
• To avoid this problem, the Bill includes consequential amendments that expand the grounds for non-disclosure under IRPA, Division 9 to include information injurious to international relations or national defence. While this kind of information is only rarely at issue in IRPA judicial review proceedings, there have been some cases over the years involving information that is injurious to international relations (including the Syrian mother mandamus cases recently before the Federal Court). These proposed changes will eliminate the possibility of bifurcated IRPA, Division 9 and Canada Evidence Act / SARP applications for non-disclosure with respect to a single IRPA judicial review proceeding.

Why remove interlocutory appeals?

• Removing interlocutory appeals would increase the efficiency of criminal trials by having defence appeals of any decision not to disclose specified public interest (s. 37 CEA) or national security information (s. 38 CEA) only reviewable after the conclusion of the trial and only in the event of a conviction. The AGC would retain the ability to appeal these decisions on an interlocutory basis.

How much delay is caused by interlocutory appeals?

• While the issue of trial delay has not yet resulted in a stay of proceedings for a national security prosecution under either section 11(b) of the Charter or section 38.14 of the CEA, the delay resulting from the resolution of disclosure involving matters of national security has drawn judicial criticism.
• A recent example of the procedural issue was dealt with in the terrorism-related kidnapping trial, R. v. Ader⁠^{Footnote 1}, before the Ontario Superior Court of Justice.
• The defendant sought an adjournment to allow the completion of an appeal of the FC judge’s decision refusing further disclosure on national security grounds under section 38 of the CEA.
• At the time of the application for adjournment, the criminal proceeding had been ongoing for 27 months and it was foreseen that the granting of the adjournment would cause a further lengthy delay of the trial beyond the 30-month numerical ceiling set in Jordan.
• In deciding not to grant the adjournment, the Court found that any speculation that the FC decision might be found to be wrong was outweighed by the negative effect of a lengthy delay if the trial were to be further adjourned and, having regard to the public interest in having the trial proceed on the merits, the seriousness of the charge, and the fact that the FC judge had already conducted a careful review of the contested information, the Court found that any material not disclosed would have no material effect on the accused’s defence.^{Footnote 2}

Is it fair, in criminal proceedings, to allow for interlocutory appeals for the Crown only?

• Given that the damage caused by any disclosure of the information is irreparable, the Crown would continue to be able to appeal an order to disclose information on an interlocutory basis. The amendments would impact of s. 37 and s. 38 of the CEA and would contribute to streamlining processes, help avoid delays and protect national security when required.
• In fairness to the accused, the Crown is also unable to use and rely on the protected information in a s. 37 or s. 38 CEA application. In other words, the protected information cannot be used against the accused and remains protected from public disclosure at all times.

Has the SCC addressed the issue of interlocutory appeals?

• No, but in R. v Ahmad, the SCC said “We recognize that the legislative division of responsibilities does have the potential to cause delays and to pose serious challenges to the fair and expeditious trial of an accused, especially when the trial is by jury. While we do not find that this potential invalidates the legislative scheme, situations may well arise in which the division of responsibilities between courts will give rise to unreasonable trial delays, undue disruption to jurors and risk of juror contamination.” (Para. 76)
• Our proposal aims to assist with the challenges outlined by the SCC.

Would sealed information ever become public under sealing orders?

• An order sealing warrants is indefinite, unless an application is made to terminate the order or to vary any of its terms.
• Where an order is made to seal warrants, all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, 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).
• 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 or production order was obtained may be held.

Who gets to see the sealed information when a warrant is sought?

• When a warrant is sought, only the judge or justice and the applicant get to see the sealed information.

If information is sealed, who gets to challenge its truth when a warrant is sought?

• The information is unsealed once charges are laid and the Crown disclosure obligations are triggered.
• However, if there is sensitive information in the warrant, a participant to the proceeding must give Notice to the Attorney General of Canada (AGC).
• Then, the AGC will need to make a decision on whether or not the sensitive information should be disclosed publicly.
• If the information is not disclosed, a participant can bring a s. 38 CEA application in the Federal Court.

Has the SCC addressed the issue of “in camera/ex parte” proceedings in the context of s. 38 of the Canada Evidence Act?

• In R. v. Ahmad, the SCC commented favorably on the significant discretion afforded to Federal Court judges in administering the s. 38 CEA measures, stating:Section 38 creates a scheme that is designed to operate flexibly. It permits conditional, partial and restricted disclosure in various sections.

Why add a specific national security consideration for sealing orders for warrants?

• While paragraph 487.3(2) (b) provides for the prohibition of unsealing of the information “for any other sufficient reason”, this proposed addition would make it unequivocal that the protection of national security information would be expressly considered in the list of reasons for issuing a sealing order.
• Section 487.3 of the Criminal Code deals with orders denying access to information and prohibits, on application at the time the warrant is sought, access to search warrant-related documentation, such as sealing warrants and information to obtain (ITOs), to which the public would otherwise have a right of access. The order prohibits access on the ground that the ends of justice could be shown to be subverted by their disclosure. In particular, access is prohibited where it is shown that disclosure of the information would:
  1. Compromise the identity of a confidential informant,
  2. Compromise the nature and extent of an ongoing investigation,
  3. Endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
  4. Prejudice the interests of an innocent person.

What are the I&E legislative reforms that you consulted on that are not put forward at this time?

• We consulted on three potential reforms that are not recommended:
  • Ending bifurcation of s.38 privilege claims between the Federal Court and the trial courts;
  • Codifying the common law test for third party records (O’Connor);
  • Codifying the process for Garofoli hearings.
• Ending bifurcation would mean amending the Canada Evidence Act (CEA) to allow trial judges across the country to hear applications relating to the protection of national security information – work that is presently done by a designated group of twelve Federal Court judges in secure facilities in Ottawa.
• Codifying the common law test for disclosure applications brought by the defence for records in the hands of a third-party – usually held by CSIS – in national security prosecutions.
• Codifying Garofoli would mean creating special procedures for a trial court to review and assess sensitive national security information when an accused challenges a Criminal Code warrant that was issued on the basis of that sensitive information – usually involving CSIS.

Why are you not putting forward the Third Party and Garofoli proposals?

• There is flexibility in the common law as it currently stands – the current process usual occurs with the consent of both parties;
• Legislating in the area of disclosure will invite more and prolonged litigation at trial;
• The current law is clear, and attempts to codify when there are constitutional considerations can have unintended consequences.

When is the coming into force?

• The coming into force provision proposes that all amendments come into force 60 days after Royal Assent.
• For the SARP, the proposed amendments would apply only to judicial reviews or statutory appeals commenced in the Federal Court or Federal Court of Appeal after the amendments come into force.
• Further, any provisions in other Acts that establish a closed material proceeding for judicial reviews or statutory appeals in the Federal Court or the Federal Court of Appeal relating to any decision of a federal board, commission or other tribunal which are repealed would continue to apply to any proceedings commenced in the Federal Court or the Federal Court of Appeal before the repeals come into force.

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