Public Interest Privilege

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General Principles

Any information sought be be disclosed may be prohibited under s. 37 of the Evidence Act on "grounds of specified public interest". This can consist of a separate ground to prohibit the disclosure of informer or source information. However, most times it is dealt with by way of the common law.

Public Interest

Objection to disclosure of information

37 (1) Subject to sections 38 to 38.16 , a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

Obligation of court, person or body

(1.1) If an objection is made under subsection (1) , the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.

Objection made to superior court

(2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.

Objection not made to superior court

(3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by

(a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or

(b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

Limitation period

(4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the court having jurisdiction to hear the application considers appropriate in the circumstances.

Disclosure order

(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.

Disclosure order

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court 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 encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.

Prohibition order

(6) If the court does not authorize disclosure under subsection (4.1) or (5) , the court shall, by order, prohibit disclosure of the information.

Evidence

(6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.

When determination takes effect

(7) An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal court that confirms the order has expired and no further appeal from a judgment that confirms the order is available.

Introduction into evidence

(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5) , but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information, may request from the court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (5) .

Relevant factors

(9) For the purpose of subsection (8) , the court having jurisdiction under subsection (2) or (3) shall consider all the factors that would be relevant for a determination of admissibility before the court, person or body.
R.S., 1985, c. C-5, s. 37; 2001, c. 41, ss. 43, 140; 2002, c. 8, s. 183; 2013, c. 9, s. 17(E).

– CEA

37.1 Sections 37.1 and 37.2 permit a party to appeal any privilege prohibition orders made under s. 37.

Section 37.3 permits the accused to apply for a stay of proceedings or dismissal of the charges where the prohibition orders under s. 37 affect the right to a fair trial:

Protection of right to a fair trial

37.3 (1) A judge presiding at a criminal trial or other criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

2001, c. 41, s. 43; 2015, c. 3, s. 14(F).

– CEA

"Would Encroach Upon"

The phrase "would encroach upon" refers to "circumstances where ...privilege is overridden".

The standard applied should be no different than that applied when considering a common law privilege.

Procedure

The Crown may invoke s. 37 privilege verbally in court to prevent disclosure of protected information. However, when raised the Crown must specify the public interest grounds.

Where s. 37 protection is raised by the Crown the judge must do the following:

1. decide "whether the information might possibly affect the outcome of the trial".
2. If no affect is possible, the trial must continue;
3. If affect is possible, then they "must consider whether the upholding of the claim of privilege would" affect the right to full answer and defence;
4. If so, the Crown must be given the option to consider the alternatives of withdrawing the claim or entering a stay of proceedings;
5. If the Crown does not do either, the judge "may permit the introduction of the evidence though the trial judge may impose whatever safeguards seem appropriate."

The process should consider whether the "public interest in allowing the accused to make full answer and defence to a criminal charge can be overridden by the interest asserted by the Crown."

Accused Participation

A s. 37 hearing is entirely separate from the criminal trial proceedings that may relate to it. Accordingly, the accused and his counsel have no standing to participate in the hearing. A judge may take some measures to permit defence counsel to make submissions regarding what is occurring in their absence or may permit the appointment of a amicus curae.

It is only where the judge, upon review, found the evidence not to be privileged, is input from the defence necessary.

Investigative Techniques Privilege

The following have been recognized as privileged as an investigative technique:

• simulated ingestion of controlled substances
• location of a surveillance or observation post
• the location of tracking devices
• the location and methods of examining of secondary VINs
• Mobile Device Identifier or Cell Site Simulators

The privilege covers information that:

1. is used by the police in their law enforcement functions;
2. is not publically known;
3. if disclosed, may assist offenders to interfere with or defeat police investigative function.

Purpose

Investigative privilege reflects the state's interest in preserving confidentiality of its investigations and techniques. It intends to protect against the risk of disclosing investigative techniques that might cause criminal offenders to "modify their activities in order to avoid detection".

Burden of Proof

The Crown holds the burden of proving that investigative privilege applies to evidence they seek to withhold.

Determination of Interest

A major consideration on whether to protect certain information about investigative techniques depends on "the extent of public knowledge about the investigative technique".

Information Affecting National Security

This privilege in the context of ministerial documents is sometimes called "Cabinet Privilege" or "Ministerial Privilege".

Section 38.01 of the Canada Evidence Act imposes obligations on participants in proceedings to notify the Attorney General of Canada of any potential disclosure of information believed to be "sensitive" or "potentially injurious". Section 38.02 then imposes an obligation not to disclose the information. It is then for the Attorney General to decide what to disclose. Parties seeking disclosure can apply to the Federal Court for an order of disclosure.

Parliamentary, Ministerial, and Cabinet Privilege

Section 39 protects information that is a "confidence of the Queen's Privy Council of Canada". This includes memos, discussion papers, agenda, deliberations, materials used to form decisions and policy (s. 39(2)) that is held by cabinet and parliamentary committees.(s. 39(3))

The onus is upon the government to establish a claim of cabinet privilege.

Appeals

• See Appeals Other Than Verdicts or Sentences

See Also

• Informer Privilege