Reforming the bifurcated process under section 38 of the Canada Evidence Act

Objections to the disclosure of information under section 38 of the Canada Evidence Act must be adjudicated in the first instance by the Federal Court even when they arise in proceedings before other courts or tribunals. This bifurcated process has come under serious criticism as inefficient and ineffective, especially in relation to criminal proceedings. This article examines the principal concerns that have been raised about the bifurcated process and argues that radical reforms to the current process are not warranted. Rather, with effective coordination between the Federal Court and the underlying proceeding, a bifurcated process in which the Federal Court adjudicates most if not all privilege claims under section 38 of the Canada Evidence Act is the optimal approach and should be preserved.