Protection of information

(1)The following provisions apply to proceedings under any of sections 78 and 82 to 82.2: (a)the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (b)the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national; (c)at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to international relations, national defence or national security or endanger the safety of any person; (c.1)on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information under paragraph 85.4(1)(b) if the judge is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the case made by the Minister; (c.2)for the purpose of deciding whether to grant an exemption under paragraph (c.1), the judge may ask the special advocate to make submissions and may communicate with the special advocate to the extent required to enable the special advocate to make the submissions, if the judge is of the opinion that considerations of fairness and natural justice require it; (d)the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person; (e)throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed; (f)the judge shall ensure the confidentiality of all information or other evidence that is withdrawn by the Minister; (g)the judge shall provide the permanent resident or foreign national and the Minister with an opportunity to be heard; (h)the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence; (i)the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national; (j)the judge shall not base a decision on information or other evidence provided by the Minister, and shall return it to the Minister, if the judge determines that it is not relevant or if the Minister withdraws it; and (k)the judge shall not base a decision on information that the Minister is exempted from providing to the special advocate, shall ensure the confidentiality of that information and shall return it to the Minister.

(1.1)For the purposes of paragraph (1)(h), reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.

(1.2)If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that (a)the appointment would result in the proceeding being unreasonably delayed; (b)the appointment would place the person in a conflict of interest; or (c)the person has knowledge of information or other evidence whose disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.

(2)For greater certainty, the judge’s power to appoint a person to act as a special advocate in a proceeding includes the power to terminate the appointment and to appoint another person.