section 83.06(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the Minister of Public Safety to apply for the admission of confidential information regarding national security without the presence of the applicant or their counsel.

SECTION WORDING

83.06 (1) For the purposes of subsection 83.05(6), in private and in the absence of the applicant or any counsel representing it, (a) the Minister of Public Safety and Emergency Preparedness may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and (b) the judge shall examine the information and provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure would injure national security or endanger the safety of any person.

EXPLANATION

Section 83.06(1) of the Criminal Code of Canada outlines the procedure for the admission of confidential information obtained from foreign sources for use in terrorism proceedings. The section allows the Minister of Public Safety and Emergency Preparedness to make an application to the judge for the admission of such information in private and in the absence of the applicant or their counsel. The judge is then required to examine the information and provide counsel representing the Minister with the opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or their counsel due to national security concerns or the risk of endangerment to any person. This provision is particularly relevant in cases where the disclosure of information obtained from international sources could compromise national security or endanger individuals. It allows the Canadian government to rely on confidential information obtained from foreign governments, agencies, or international organizations without compromising the source of the information. The section also ensures that the admission of such information is subject to judicial scrutiny, by requiring the judge to provide an opportunity for counsel representing the Minister to argue against its disclosure if necessary. Overall, section 83.06(1) enables the Canadian government to effectively combat terrorism while protecting national security and individual rights. It ensures that confidential information from foreign sources can be used in terrorism proceedings without compromising the source or putting individuals at risk. At the same time, the provision maintains a fair and transparent process by requiring judicial oversight and allowing for representation of opposing views.

COMMENTARY

Section 83.06(1) of the Criminal Code of Canada provides for an exception to the rule against hearsay evidence and allows the Minister of Public Safety and Emergency Preparedness to apply to the judge for the admission of information obtained in confidence from foreign governments, international organizations or their agencies, and institutions. This section is particularly relevant in the context of national security proceedings, where the disclosure of information may pose a risk to national security or endanger the safety of a person. The purpose of subsection 83.05(6) is to prevent the disclosure of information that may harm national security or endanger an individual's safety. In the absence of the applicant or any counsel representing them, section 83.06(1) allows the Minister of Public Safety and Emergency Preparedness to apply to the judge for the admission of confidential information obtained from foreign governments, international organizations, or their agencies and institutions. This provision is designed to balance the interests of national security and the rights of the applicant. The judge has the responsibility of examining the information and determining whether it is relevant and should be disclosed to the applicant or their counsel. The judge is also required to provide the Minister's counsel with an opportunity to be heard as to whether the information should not be disclosed because it would injure national security or endanger the safety of any person. The judge is expected to weigh the competing interests of national security and the right to a fair hearing and make a decision accordingly. In practice, this provision has significant implications for individuals, especially those who are facing national security proceedings. The admission of confidential information obtained from foreign governments, international organizations, or their agencies and institutions can significantly impact the outcome of a case. For example, if the information obtained is key evidence that supports the case against the defendant, then the judge may allow it to be admitted as evidence, even if it cannot be tested through cross-examination. However, this provision may also raise concerns about the fairness of proceedings. The fact that the applicant or their counsel is excluded from the hearing where the information is being considered could be seen as a violation of the right to a fair hearing. The provision also gives the Minister of Public Safety and Emergency Preparedness significant power to determine what information is considered relevant and whether it should be disclosed. This may result in the exclusion of highly relevant pieces of information that could have a significant impact on the applicant's case. In conclusion, section 83.06(1) of the Criminal Code of Canada provides a mechanism for the admission of confidential information obtained from foreign governments, international organizations, or their agencies and institutions. While this provision is designed to balance the interests of national security and the rights of the applicant, it may also raise concerns about the fairness of proceedings. The judge has a significant responsibility in determining whether the information should be admitted and must weigh the competing interests accordingly.

STRATEGY

Section 83.06(1) of the Criminal Code of Canada provides the Minister of Public Safety and Emergency Preparedness with a powerful tool to protect national security and prevent harm to individuals. This section allows the Minister to make an application to a judge for the admission of information obtained in confidence from foreign governments, international organizations, or institutions that is relevant to a hearing under section 83.05(6), which deals with the refusal or revocation of a passport on the grounds of national security. However, the information cannot be disclosed to the applicant or their lawyers if its disclosure would injure national security or endanger the safety of any person. One strategic consideration when dealing with this section is the need to balance the protection of national security with the preservation of procedural fairness and the rights of the applicant. The use of confidential information from foreign sources can be justifiable in certain circumstances, but it also poses a risk of bias and unfairness if the applicant and their lawyers are not given an opportunity to challenge the evidence or make submissions on its relevance. In order to address these concerns, it is important to ensure that the judge overseeing the application is impartial and has the expertise to assess the reliability and credibility of the information. Additionally, the judge should provide the Minister's counsel with clear guidance on what information can and cannot be disclosed to the applicant or their lawyers, and establish procedures that allow for the protection of sensitive information without depriving the applicant of a fair hearing. Another strategic consideration is the need to maintain good relations with foreign governments and international organizations that may be the source of confidential information. The use of such information can have diplomatic implications and may jeopardize cooperation on other matters if it is mishandled or perceived as a breach of trust. Strategies for addressing these concerns may include establishing formal agreements or protocols with foreign governments and organizations that outline the criteria for requesting and sharing information, as well as the safeguards that will be put in place to protect sensitive information. Trusted intermediaries or liaison officers could also be appointed to facilitate communication with foreign partners and ensure that their concerns are taken into account. In terms of specific strategies that could be employed when dealing with Section 83.06(1), one approach could be to seek the assistance of intelligence or security agencies that have expertise in handling classified information. These agencies could provide assessments of the reliability and significance of the information obtained from foreign sources, as well as recommendations on how best to protect sensitive information without compromising the rights of the applicant. Another strategy could be to involve independent experts or advocates who can provide an objective assessment of the relevance and reliability of the information and advocate for procedural fairness on behalf of the applicant. This could include legal and human rights organizations, as well as academic experts in relevant fields such as international law, national security, and human rights. In conclusion, the use of confidential information obtained from foreign sources under Section 83.06(1) of the Criminal Code of Canada requires careful consideration of the balance between national security and procedural fairness. Strategic approaches to addressing this challenge could include ensuring impartial and expert oversight of the application, establishing formal agreements and communication protocols with foreign partners, involving independent experts or advocates, and seeking the assistance of intelligence or security agencies. By taking these strategic considerations into account, it is possible to use confidential information from foreign sources in a manner that protects national security while also upholding the principles of fairness and due process.

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