Criminal Law Notebook

Public Interest Privilege

This page was last substantively updated or reviewed December 2022. (Rev. # 95928)

General Principles

Any information sought to be disclosed may be prohibited under s. 37 of the Evidence Act on "grounds of specified public interest."[1] 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.[2]

Public Interest
Objection to disclosure of information

37 (1) Subject to sections 38 to 38.16 [national security privilege], 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) [objection to disclosure of information], 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) [objection not made to superior court] 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.
[omitted (4.1), (5), (6), (6.1), (7), (8) and (9)]

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 (CanLII), (DOJ)

Note up: 37(1), (1.1), (2), (3), (4), and (7)

Appeal of a Prohibition Order

Sections 37.1 and 37.2 permit a party to appeal any privilege prohibition orders made under s. 37.[3]

"Would Encroach Upon"

The phrase "would encroach upon" refers to "circumstances where ...privilege is overridden."[4] To establish encroachment, it is not necessary to show that "endagerment" will result, only that it "might."[5]

The standard applied should be no different than that applied when considering a common law privilege.[6]

  1. ↑ see s. 37 Canada Evidence Act
  2. ↑ R v Basi, 2009 SCC 52 (CanLII), [2009] 3 SCR 389, per Fish J, at para 23
  3. ↑ see Appeals Other Than Verdicts or Sentences#Public Interest Privilege
  4. ↑ R v Amer, 2017 ABQB 651 (CanLII), AJ No 1134, per Poelman J, at para 39
  5. ↑ MC, supra at para 45 ("To establish the encroachment of a specified interest, it is not necessary that disclosure will necessarily endanger the specified interest, only that it might")
    Amer, supra, at para 60
  6. ↑ Amer, ibid., at para 60

Evidence

37
[omitted (1), (1.1), (2), (3), (4), (4.1), (5) and (6)]

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.

[omitted (7)]

Introduction into evidence

(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5) [disclosure order], 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) [objection not made to superior court] 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) [disclosure order].

Relevant factors

(9) For the purpose of subsection (8) [introduction into evidence], the court having jurisdiction under subsection (2) or (3) [objection not made to superior court] 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 (CanLII), (DOJ)

Note up: 37(6.1), (8) and (9)

Disclosure Order

37
[omitted (1), (1.1), (2), (3) and (4)]

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) [objection to disclosure of information] 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) [objection to disclosure of information] 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) [disclosure order], the court shall, by order, prohibit disclosure of the information.
[omitted (6.1)]

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.

[omitted (8) and (9)]

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 (CanLII), (DOJ)

Note up: 37(4.1), (5), (6), and (7)


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 grounds for public interest.[1]

There is no fixed process courts must follow upon the raising of a s. 37 issue. It is in their discretion to determine the proper process.[2]

Where s. 37 protection is raised by the Crown the judge should do the following:[3]

  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."

Another recommended process was stated as:[4]

  1. "The Court must determine whether the Crown has established the specified public interest as claimed;"
  2. "If that determination cannot be made based on the [record] alone, further submissions such as a secret affidavit and un-redacted documents must be filed in support of the privilege claimed, which will be dealt with in an ex parte manner;"
  3. "The Court must determine whether the Respondent has established an “apparent case” for disclosure of the redacted information"
  4. "Once an apparent case for disclosure has been established, the Court must consider reviewing the redacted information
  5. "I the Court finds that the disclosure of the redacted information would encroach on the specified public interest, it must conduct a balancing of interests. The interests to be balanced are the public interest in disclosure and the specified public interest advanced by the Applicant. The Court may review the original form of the Redacted Information at this stage"
  6. "Determine whether the redacted information should be disclosed."

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."[5]

An application under s. 37 is not a judicial review or appeal from a decision.[6]

Accused Participation

A s. 37 hearing is entirely separate from the criminal trial proceedings that may relate to it.[7] Accordingly, the accused and his counsel have no standing to participate in the hearing.[8] 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 an amicus curae.[9]

It is only where the judge, upon review, found the evidence not to be privileged, is input from the defence necessary.[10]

Disposition

If the court does not order disclosure of the record under s. 37(4.1) or (5), the court must prohibit disclosure under s. 37(6).[11]

  1. ↑ R v Meuckon, 1990 CanLII 10991 (BC CA), 57 CCC (3d) 193, per Lambert JA ("In my opinion, Crown counsel can object to the disclosure of information under s. 37 by certifying orally that the information should not be disclosed on the ground of a public interest, which he must specify, in relation to police practices.")
  2. ↑ R v MC, 2022 ONSC 6299 (CanLII), per Skarica J
  3. ↑ Meuckon, supra
  4. ↑ Attorney General of Canada v S. Robert Chad, 2018 FC 319 (CanLII) per Noël JA, at para 10
  5. ↑ Meuckon, supra
  6. ↑ R v MC, 2022 ONSC 6299 (CanLII) at para 34 (An application under s. 37 of the Canada Evidence Act is not a judicial review or an appeal of a decision")
    R v Basi, 2009 SCC 52 (CanLII), [2009] 3 SCR 389, per Fish J, at para 50
    Attorney General of Canada v S. Robert Chad, 2018 FC 319 (CanLII) per Noël JA, at para 26
  7. ↑ R v Amer, 2017 ABQB 651 (CanLII), AJ No 1134, per Poelman J, at para 5
    R v Pilotte, 2002 CanLII 34599 (ON CA), 163 CCC (3d) 225, at para 46 ("Given the separate nature of a s. 37 inquiry, the Crown is correct in its contention that the proceeding did not form part of the trial.")
  8. ↑ Amer, ibid., at para 5
  9. ↑ Amer, ibid., at para 5
  10. ↑ Pilotte, supra, at para 63
  11. ↑ MC, supra, at para 39
    Wang v. Canada (Public Safety and Emergency Preparedness), 2016 FC 493 (CanLII) per Mactavish J, at para 38

Stay of Proceedings

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) [disclosure-related provisions] 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) [Protection of right to a fair trial] 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 (CanLII), (DOJ)

Note up: 37.3(1) and (2)

Investigative Techniques Privilege

Investigative privilege flows from both the common law and s. 37 of the CEA.[1]

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

  • simulated ingestion of controlled substances[2]
  • location of a surveillance or observation post (sometimes called "observation point privilege")[3]
  • the location of tracking devices[4]
  • the location and methods of examining of secondary VINs [5]
  • Mobile Device Identifier or Cell Site Simulators[6]

The privilege covers information that:[7]

  1. is used by the police in their law enforcement functions;
  2. is not publicly known;
  3. if disclosed, it 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.[8] 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."[9]

Burden of Proof

The Crown holds the burden of proving that investigative privilege applies to evidence they seek to withhold.[10]

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."[11]

  1. ↑ R v Fayaz, 2021 ABPC 75 (CanLII), per Van Harten J, at para 28
  2. ↑ R v Meuckon, 1990 CanLII 1766 , per Lambert JA
  3. ↑ R v Lam, 2000 BCCA 545 (CanLII), 148 CCC (3d) 379, per Esson J
    R v Richards, 1997 CanLII 3364 (ON CA), 115 CCC (3d) 377, per curiam
    R v Hernandez, 2010 BCCA 514 (CanLII), 264 CCC (3d) 498, per Hinkson JA
    R v Carvery, 2011 NSSC 500 (CanLII), 313 NSR (2d) 16, per Robertson J
    R v Barry, 2000 BCSC 725 (CanLII), [2000] BCTC 299, per Blair J
  4. ↑ R v Guilbride, 2003 BCPC 176 (CanLII), [2003] BCJ No.1245 (Prov.Ct.), per Arnold J
  5. ↑ R v Boomer, 2000 CanLII 4176 (NS SC), 182 NSR (2d) 49 (S.C.), per Goodfellow J
    R v Smith, 2009 ABPC 88 (CanLII), 247 CCC (3d) 533, per Rosborough J
  6. ↑ R v Truax, 2018 ABQB 113 (CanLII), AJ No 208, per Wilson J
    cf. R v Mirarchi, 2015 QCCS 6628 (CanLII), per Stober J
  7. ↑ R v Amer, 2017 ABQB 651 (CanLII), AJ No 1134, per Poelman J, at para 37
  8. ↑ Amer, ibid., at para 35
    R v Durette, 1994 CanLII 123 (SCC), [1994] 1 SCR 469, 88 CCC (3d) 1, per Sopinka J at 53
  9. ↑ Amer, supra, at para 35
    R v Trang, 2002 ABQB 19 (CanLII), 168 CCC (3d) 145, per Binder J, at para 50
  10. ↑ Amer, supra, at para 33
  11. ↑ Amer, supra, at para 36

Information Affecting National Security

This privilege in the context of ministerial documents is sometimes called "Cabinet Privilege" or "Ministerial Privilege."[1]

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.[2] Parties seeking disclosure can apply to the Federal Court for an order of disclosure.[3]

  1. ↑ see R v Clarke, 2015 NSSC 26 (CanLII), per Coady J, at para 28
    Nova Scotia (Attorney General) v Royal & Sun Alliance Insurance Co. of Canada, 2000 CanLII 1080 (NS SC), [2000] NSJ No 404, per Wright J, at para 14
  2. ↑ see s. 38.3 and 38.031
  3. ↑ see s. 38.04 to 38.09 and 38.1 to 38.14

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, and materials used to form decisions and policy (s. 39(2)) that are held by cabinet and parliamentary committees.(s. 39(3))

The onus is upon the government to establish a claim of cabinet privilege.[1]

  1. ↑ Nova Scotia (Attorney General) v Royal & Sun Alliance Insurance Co. of Canada, 2000 CanLII 1080 (NS SC), [2000] NSJ No 404, per Wright J, at para 15

Appeals

See Also

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