Privy Council Review of intercept as evidence: report - Official ...

159. Although over 90% of offences investigated using wiretap as an
evidence gathering technique resulted in convictions, the proportion was far
lower in those cases where intercepted material was adduced in evidence;
between 20% and 46% from 2001-2003 17 . Although part of the difference in
these figures may be attributable to differences in statistical gathering
techniques by the agencies involved, it also appears to indicate that a
significant part of the benefit of the use of intercept in Canada is from its use
as an investigative tool, as already used in the UK.
160. However, the Royal Canadian Mounted Police (RCMP) have told us
they are convinced of the value of intercept for law enforcement purposes. ***
We understand that it is often critical to trials.
161. The Canada Evidence Act (CEA) 1985 provides in section 37 for the
protection of police techniques, intelligence and informants in the public
interest. Once a court is notified of an objection to disclosing information on
section 37 grounds, the court will determine whether the public interest in
disclosure outweighs the public interest in non-disclosure.
162. In addition, section 38 provides stronger protection for sensitive
national security, national defence or international relations information.
Those involved in proceedings where such information may be disclosed must
notify the Attorney General. Once this notice is sent, there is a statutory
prohibition on the disclosure of the information. The Attorney General must
make a determination whether to authorise disclosure or not, after balancing
public interests in disclosure or non-disclosure. His decision may be
appealed to the Federal Court of Canada.
163. Section 38 of the CEA is an important protection to allow the Canadian
intelligence agencies 18 to provide information to law enforcement. Because of
the intelligence agencies’ own mandate and the increasingly transnational
nature of criminal activity, it is felt to be in the national interest that they
provide such support. However, it is recognised that there is an increased
risk of disclosure arising from their interaction with law enforcement, due to an
accused’s broad constitutionally protected right of disclosure from the Crown.
The intelligence agencies generally rely on RCMP to notify them if any
information they have provided may be relevant to a criminal proceeding.
They are then able to determine whether to notify the Attorney General that
disclosure of the information could injure international relations, national
defence of national security, in accordance with section 38.
164. Where the intelligence agencies have been involved in section 38 CEA
proceedings, they has been required to provide evidence in support of the
claim that disclosure of the information would be injurious. Evidence is
provided to the Federal Court by way of an ex parte affidavit (i.e. a copy of the
affidavit is not provided to counsel for the accused), and oral testimony is
heard in closed session, with only the cleared counsel for the Attorney
17 Annual Report on the use of Electronic Surveillance, 2005
18 The Communications Security Establishment (CSE), the Canadian equivalent to GCHQ,
and the Canadian Secret Intelligence Service (CSIS).
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