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Report No. 88

10.26. Legislative reactions in Canada-Federal Court Act.-

However, there is one specific statutory provision-section 41 of the Federal Court Act, 1970 (an Act dealing primarily with the structure, jurisdiction and procedure of the new Federal Court of Canada)-which adopts a somewhat, different line of approach. The section reads as under1:-

"41. (1) Subject to the provisions of any other Act and to sub-section (2) when a Minister of the Crown certifies to any court by affidavit that a document belongs to a class or contains information which on grounds of a public interest specified in the affidavit should be withheld from production and discovery, the court may examine the document and order its production and discovery to the parties, subject to such restrictions or conditions as it deems appropriate if it concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest specified in the affidavit.

(2) When a Minister of the Crown certifies to any court by affidavit that the production of discovery of a document or its contents would be injurious to international relations, national defence or security, or to federal-provincial relations, or that it would disclose a confidence of the Queen's Privy Council for Canada, discovery and production shall be refused without any examination of the document by the court."

1. Section 41, Federal Court Act, 1970 (Canada).



Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back




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