Chapter 2: Canada’s Legal Framework for Lawful Access
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations

Other Relevant Legislation

42. Certain provisions of the Canada Evidence Act and Canada’s privacy legislation, which includes the Privacy Act, are also relevant when considering Canada’s legal framework for lawful access.

43. Canada Evidence Act: Sections 37 and 38 of the Canada Evidence Act establish a regime for the government to object to the disclosure of sensitive or injurious information in a legal proceeding. Under Section 37, the government can seek to prevent the disclosure of information relating to a sensitive law enforcement investigative tool or technique, including lawful access techniques. Section 38 permits the government to withhold access to information that is sensitive or injurious to Canada’s international relations, national defence or national security, which can also apply to tools and techniques developed and used by security and intelligence organizations. When an agency invokes a privilege, the question of whether the public interest in preventing injury (i.e., by maintaining secrecy) outweigh the interests of the party seeking disclosure is considered by the applicable court. ^{Footnote 78} In criminal trials, courts can order disclosure where they determine that the balance falls in favour of the accused. The Crown will then have to decide whether to disclose the information to the defence, refrain from using the information, or stay the charges.

44. Privacy Legislation: The Privacy Act sets out the law as it relates to the informationhandling practices of personal information by federal government departments and agencies, including how it can be collected, used, or shared. ^{Footnote 79} The Personal Information Protection and Electronic Documents Act governs the collection, use, and disclosure of personal information by private-sector organizations in Canada. ^{Footnote 80}