STATE SECRETS IN CANADA
AbstractThe right of a government to refuse production of information on the ground that it constitutes a state secret is almost invariably regarded as part of the law of evidence under the topic of Crown Privilege or Executive Immunity. In a federal system where the applicable law of evidence depends upon the nature of the proceedings, such a classification leads to absurd results. If, however, such a right is regarded as a matter of substantive law, while there may be problems in selecting the proper law to apply, the results are much more acceptable. Under such a solution, federal law would govern all matters of federal state secrets regardless of which law of evidence governed the proceedings. The applicable provincial law would govern provincial state secrets whether the proceedings are governed by federal evidentiary law or provincial evidentiary law, though there may be difficulties where the province governing the proceedings is different from the province controlling the secret. Assuming the applicable proper law has been chosen, the article then discusses the substantive rules that should govern the refusal to produce a state secret.
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