ARCHIVED — Vol. 146, No. 22 — October 24, 2012

Registration

SOR/2012-220 October 5, 2012

CANADA EVIDENCE ACT

Order Amending the Schedule to the Canada Evidence Act

P.C. 2012-1332 October 4, 2012

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 38.01(8) (see footnote a) of the Canada Evidence Act (see footnote b), makes the annexed Order Amending the Schedule to the Canada Evidence Act.

ORDER AMENDING THE SCHEDULE TO THE CANADA EVIDENCE ACT

AMENDMENT

1. Items 19 to 21 of the schedule to the Canada Evidence Act (see footnote 1) are replaced by the following:

19. The Public Sector Integrity Commissioner, for the purposes of sections 26 to 35 of the Public Servants Disclosure Protection Act

20. The Commissioner of the Communications Security Establishment, except where the hearing or proceeding is open to the public

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

1. Background

Section 38.01 of the Canada Evidence Act (the Act) sets out the instances when an official or a participant to a proceeding, as defined in the Act, is required to notify the Attorney General of Canada (AGC) in writing when he or she foresees the disclosure of sensitive or potentially injurious information in the course of that proceeding. This type of information is defined as that which could be injurious to international relations or national defence or national security. These notice provisions were designed to make the government aware of such matters and permit the government to take pro-active steps in the appropriate circumstances. For example, the government may want to protect the information or authorize its disclosure in whole or in part.

Paragraph 38.01(6)(d) of the Act states that the notice requirements do not apply to entities listed in the Schedule to the Act. In other words, entities listed in the Schedule are exempt from providing notice to the AGC. The present amendments to the Schedule add the Commissioner of the Communications Security Establishment (Commissioner of the CSE) and remove three Commissions of Inquiry that have concluded their work.

2. Issue

This Schedule needs to be updated to reflect the nature of the work of the Commissioner of the CSE, as well as the conclusion of the work of past Commissions of Inquiry.

3. Objectives

These amendments ensure that the Commissioner of the CSE can exercise his duties in an expeditious manner and that the Schedule is kept current with existing entities.

4. Description

The Order amending the Schedule to the Act adds the Commissioner of the CSE and also removes the following three Commissions of Inquiry, which have concluded:

  1. The Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Arar Inquiry);
  2. The Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (Air India Inquiry); and
  3. The Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Iacobucci Inquiry).

5. Consultation

Given the nature of the amendments, no public consultations were undertaken.

6. Rationale

The Communications Security Establishment (CSE) is Canada’s national cryptologic agency. It provides services to the government regarding foreign signals intelligence in support of defence and foreign policy, and on the protection of electronic information and networks used by other government departments and agencies. The Commissioner of the CSE provides an independent review of the CSE’s activities to ensure that they are in compliance with the law. In response to complaints, the Commissioner of the CSE may undertake any investigation considered necessary. In carrying out his duties, the Commissioner has all the powers of a commissioner under Part Ⅱ of the Inquiries Act, which includes the power to compel the production of information.

Given the nature of the duties of the Commissioner of the CSE, many of which involve examining sensitive and potentially injurious information, and given the context in which those duties are executed, notice to the AGC need not be given. No injury to international relations or national defence or national security would be expected to arise from such information being provided in any proceeding before the Commissioner of the CSE because of the protections put in place to safeguard such information.

The protective measures that are in place that justify exempting the provision of notice include the fact that the Commissioner of the CSE’s proceedings are closed; they are not conducted in public. Moreover, the Commissioner of the CSE and his or her staff hold appropriate security clearances for access to the information in question. Also, following a review by the Commissioner of the CSE, reports to the Minister of National Defence containing sensitive and potentially injurious information are classified and appropriately handled. Finally, the Commissioner of the CSE’s public annual report does not contain sensitive or potentially injurious information.

However, as a scheduled entity, if the Commissioner of the CSE were to decide to make an order that would result in the disclosure of sensitive or potentially injurious information, he or she would be required not to disclose the information or cause it to be disclosed until notice of that intention is given to the AGC pursuant to subsection 38.02(1.1) of the Act.

7. Contact

Douglas Breithaupt
Director and General Counsel
Criminal Law Policy Section
Department of Justice
East Memorial Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-4743
Fax: 613-941-9310

Footnote a
S.C. 2001, c. 41, s. 43

Footnote b
R.S., c. C-5

Footnote 1
R.S., c. C-5