4.1 Protecting Confidential Information under Section 37 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

The public interest may require that sensitive or confidential information in the possession of government agencies be protected from disclosure, including disclosure in the litigation process. The need for confidentiality can arise in many ways and can involve information received or generated by government.Footnote 1 Public interest privilege protects certain confidential information from disclosure where such disclosure would be contrary to the public interest.Footnote 2 Public interest privilege can be invoked both under the common law and under certain statutory schemes. It typically involves a weighing of the competing public and private interests.

In criminal cases, an accused may seek disclosure of information that the government wishes to keep confidential.Footnote 3 Sections 37, 38 and 39 of the Canada Evidence Act (the CEA) establish a regime for objecting to the disclosure of information. This directive sets out the policy and procedures for objections raised under s. 37 during a prosecution.Footnote 4 Separate directives exist in respect of s. 38 and s. 39 of the CEA.Footnote 5

These objections are most commonly raised in situations where Crown counsel objects to an application for further disclosure from defence counsel, where a court might otherwise compel its production. Similarly, such objections may arise where defence counsel attempts to elicit confidential information while cross-examining a Crown witness. It is also possible that a federal official (e.g. RCMP, CSIS a government department) or a provincial or municipal official (e.g. a provincial Attorney General, municipal police force) may object to disclosure of confidential information.

2. Statement of Policy

Section 37 of the CEA sets out when objections can be made to the disclosure of information on the basis of a specified public interest. Reliance on s. 37 to assert claims of privilege should be the exception, not the rule.Footnote 6 The CEA therefore should be a mechanism of last resort to protect evidence from disclosure. If disclosure of the information can be prevented on some other basis, such as lack of relevance or by asserting a common law privilege, those methods should be pursued first. For example, the common law rules preventing disclosure on grounds such as solicitor/client privilege, investigative privilege technique, location of surveillance post, or police informer privilegeFootnote 7 first should be invoked rather than s. 37. Alternatively, steps may be taken to adduce the evidence without endangering the interest at risk (for example, vetted disclosure, delayed disclosure).

However, the assertion of a claim of privilege under the common law does not preclude subsequent resort to s. 37.Footnote 8 Where a trial judge rejects a common law claim of privilege and orders disclosure of confidential information over objections of the party claiming the privilege, the claimant may then invoke the broader s. 37 public interest privilege.

3. Consultation

Where Crown counsel expects that an issue of this nature may arise, it is important to confer with investigators and interested departments or agencies before the proceedings begin. A plan must then be developed that takes into account the following matters, among others:

4. Who Makes the Objection

Objections under s. 37 of the CEA involving a public interest will usually be made by a senior public official from the relevant investigating body or government department or agency which has responsibility in relation to the specified public interest. For example, the official may be a senior police officer concerned about the possible disclosure of police techniques and methods of investigation, such as the location of observation sites or the identity of police informers. The official may be either a federal or provincial government official.

5. Procedure for Making the Objection

Objections under s. 37 may be made orally or in writing by certifying that information should not be disclosed on the grounds of a “specified public interest”.Footnote 13 Under s. 37(5) of the CEA, the court is required to weigh the public interest in disclosure against the specified public interest. Crown counsel must identify the actual injury or harm that will result from disclosure. Crown counsel will have to offer a convincing rationale, explaining how the information came into existence, why non-disclosure is important, and the nature and gravity of the injury or harm that will occur if it is disclosed. However, when the “specified public interest” at stake is informer privilege, no balancing is required. Crown counsel can simply argue that the information is of a class which, by definition, merits non-disclosure. Informer privilege is not amenable to the public interest balancing contemplated in s. 37(5).Footnote 14

The CEA does not define the nature of the public interest which may be protected. Where the public interest claim must be assessed on a case-by-case basis, Crown counsel should assess the validity of the claim of privilege by measuring it against, among other criteria, those established by Wigmore:Footnote 15

  1. the communications must originate in a confidence that they will not be disclosed;
  2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
  3. the relation must be one which in the opinion of the community ought to be sedulously fostered;
  4. the injury that would ensure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

6. Forum for the Objection

A s. 37 application constitutes a proceeding separate from the trial proper and from pre-trial proceedings.Footnote 16 Crown counsel may invoke common law privilege and make a claim under s. 37 of the CEA both in provincial and superior courts. However, whereas claims of common law privilege may be determined by both provincial and superior court judges, only superior court judges and the Federal Court have jurisdiction to determine s. 37 claims. By resorting first to the common law privilege in provincial courts, Crown counsel may avoid unnecessary fragmentation of, and delay in, the proceedings. Where the Crown invokes s. 37, the application must be heard before the Superior Court of the same province or territory.Footnote 17

7. Where the Court Orders Disclosure

On an objection under s. 37, courts must determine that the public interest in disclosure outweighs the importance of the specified public interest.Footnote 18 When the court decides in favour of disclosure, Crown counsel should again consult with the interested parties and determine which of the following options is most appropriate:

  1. Simply comply with the court's ruling. Before doing so, counsel should ascertain from the client department or investigating agency the extent of the harm that will occur on disclosure and assess whether the harm can be minimized in a way that is still consistent with the court's ruling;
  2. Appeal the court's ruling. This decision should be made in consultation with the Chief Federal Prosecutor and investigating agency;Footnote 19 or
  3. Stay the proceedings. This option is to be used when there is no other way to protect the information and the importance of keeping it in confidence outweighs the public interest in pursuing the charges.Footnote 20
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