Public Interest Immunity after Bill C-36
Criminal Law Quarterly, Vol. 47, p. 249, 2003
16 Pages Posted: 22 Aug 2010
Date Written: 2003
Bill C-36, the omnibus anti-terrorism legislation enacted in response to the events of September 11, 2001, came into force in December 2001. The sections of the bill that attracted the greatest public attention were the new terrorism offenses and the new investigative procedures the bill created. But the bill also amended the Canada Evidence Act to alter the regime for determining claims of public interest immunity that fall under federal jurisdiction. In this article, I briefly describe these amendments, and then I raise several questions about them: what is the effect of the new regime on practice issues such as the Crown’s disclosure obligations? How does the new regime interact with the duties of fairness owed by members of the executive to persons affected by executive decisions? Is the new regime consistent with the rule of law values that are mentioned in the preamble to the Charter and are, according to the Secession Reference, part of the unwritten Constitution?
Keywords: Canada Evidence Act, public interest immunity, rule of law
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