BACKGROUND

Sections 24 to 30 of the Anti-terrorism Act extensively revised and renamed the then sixty-two year old and rarely used Official Secrets Act. It is now known as the Security of Information Act. Section 27 of the Anti-terrorism Act replaced section 3 of the former Official Secrets Act’s definition of a spying offence by an extensive definition of actions inside and outside of Canada that are prejudicial to the safety or interests of the State.

Section 29 of the Anti-terrorism Act replaced sections 6 to 15 of the former Official Secrets Act. Section 6 of the new Act makes it an offence to approach or enter a prohibited place for purposes prejudicial to the safety of the State. Section 7 makes it an offence to interfere with a peace officer or a member of the Canadian Forces on guard or patrol duty in the vicinity of a prohibited place.

Section 10 of the new Act permits the deputy head of a government institution to designate as a person permanently bound to secrecy anyone who by reason of office, position, duties, contract, or arrangement has, has had, or will have access to special operational information, if it is in the interest of national security to so designate that person. Sections 13 and 14 make it offences for designated persons to intentionally without authority communicate or confirm special operational information. Section 15 provides for a public interest defence to any person charged with such offences, and sets out factors to be considered by a judge or court hearing such a case.

Sections 16 to 18 of the new Act set out a number of offences related to the communication to terrorist groups or foreign entities of information that the federal or provincial governments take measures to safeguard, or special operational information. Sections 19 to 23 created the offences of economic espionage, foreign-influenced or terrorist-influenced threats or violence, harbouring or concealing persons committing offences under the Act, preparatory acts intended to assist the perpetration of offences set out in the Act, and conspiracies and attempts to commit offences set out in the Act. Section 24 requires the consent of the Attorney General of Canada for any prosecution under the Act.

On January 21, 2004, the RCMP executed search warrants under section 4 (unauthorized use or possession of classified information) of the Security of Information Act at the home and office of an Ottawa Citizen journalist. The media outlet challenged the constitutionality of section 4 and requested that the court quash the search warrants. Section 4 of the Security of Information Act was previously found in the Official Secrets Act, and was not amended by the Anti-terrorism Act, although sections 26 and 27 of the Anti-terrorism Act amended the definition of several words and expressions found in section 4. Although section 4 was not found in or amended by the Anti-terrorism Act, both this Subcommittee and its predecessor examined the issues which arose from it because they were inseparable from the more general review itself. More will be said about this in the next part of this chapter.

ISSUES OF CONCERN

Section 4 of the Security of Information Act

When the RCMP executed the search warrants at the home and office of the Ottawa Citizen journalist in January 2004, they were looking for evidence related to the November 8, 2003 publication in that newspaper of an article by the journalist entitled “Canada’s Dossier on Maher Arar”. The article purported to be based on information contained in classified law enforcement or intelligence documents whose release had not been authorized. The search warrant indicated that the search was being carried out as part of an investigation of possible offences under subsections 4(1)(a), (3), and (4)(b) of the Security of Information Act.

Following this search of the home and office of the journalist, there was an outcry from the media, commentators, civil libertarians, and others about the adverse impact all of this was having on the constitutionally protected freedom of expression and the press. More particularly, section 4 of the Act was the subject of much criticism for its breadth, vagueness, and the chilling effect it was having on journalists and others.

Shortly after the search warrants were executed, the Ottawa Citizen and its journalist instituted court proceedings to quash them and to challenge the constitutionality of section 4 of the Act, arguing that it is in violation of the Canadian Charter of Rights and Freedoms because it infringes the freedom to gather and disseminate information of public interest and public concern.

This part of the chapter will deal with the issues related to section 4 of the Security of Information Act. First, it is important to understand this provision in some detail. The most obvious characteristics of this legislative provision are its complexity, breadth, vagueness, and antiquated terminology. Section 4 contains hundreds of possible criminal offences related to unauthorized information disclosure or “leakage”.

Subsection 4(1) of the Act deals with the wrongful communication of “secret”, “official” code words, passwords, sketches, plans, models, articles, notes, documents, information, etc. The words “secret” and “official” are not defined in the Security of Information Act. It applies to information entrusted to anyone holding office under Her Majesty. Paragraph (a) of the subsection deals with the unauthorized communication of these documents to someone not authorized to receive them. Paragraph (b) deals with the use of this information for the benefit of a foreign power or in any other manner prejudicial to the interests of the State. Paragraph (c) deals with the retention of this information when the person has no right to retain it or the person fails to follow lawful instructions with regard to the return or disposal of the information. Paragraph (d) of the subsection deals with a failure to take reasonable care of the information or endangering the safety of it.

Subsection 4(2) of the Act makes it an offence to communicate any of the described information to a foreign power or in any way prejudicial to the interests of the State. This provision is not limited to information entrusted to anyone holding office under Her Majesty.

Subsection 4(3) deals with the receipt of secret, official information by a person who knows or has reasonable grounds to believe that the information was given to him or her in contravention of the legislation. This does not apply if the person proves that the communication was contrary to his or her “desire”.

Subsection 4(4) deals with the retention of information by a person who has no right to retain it, or the failure by that person to follow instructions to return or dispose of it, and allowing another person to have access to such information.

Anyone convicted of an offence under section 4 of the Security of Information Act is subject to a sentence of imprisonment for no more than fourteen years if prosecuted by way of indictment or to imprisonment for no more than twelve months and/or a fine of no more than $2,000 if prosecuted by way of summary conviction.

There has been only one actual prosecution of a media outlet and journalist under section 4 of either the former Official Secrets Act or current Security of Information Act. The recent case involving the Ottawa Citizen and its journalist had not reached the actual prosecution stage when the constitutionality of section 4 was addressed by the Ontario Superior Court, as discussed in more detail below. In R. v. Toronto Sun Publishing et al.,¹ the media outlet was prosecuted under subsections 4(1)(a) and (3) of the Official Secrets Act. After a preliminary inquiry, Waisberg, Prov. Ct. J.(Ont.), dismissed the charges. He did so because the documents the journalist and the media outlet were alleged to have were also apparently in the possession of a member of the House of Commons and a television outlet. Because the document was so widely publicly available, it had lost its secret description. The case did not proceed to trial.

Legislative History and Previous Calls for Reform

Section 4 of the Security of Information Act has to also be understood within the context of the development and review of official secrets legislation in Canada. The United Kingdom enacted its first official secrecy legislation in 1889. Legislation virtually identical to this British law was enacted by Parliament in 1890. Canada’s first Criminal Code in 1892 included the 1890 legislation adopted by Parliament. The first British official secrets legislation was repealed in 1911 and replaced by an Official Secrets Act. This British Act extended its coverage to include Canada.

In 1920, the United Kingdom Parliament adopted a new Official Secrets Act whose coverage was not extended to Canada. This caused the anomaly of 1911 British legislation, no longer applicable there, continuing to be in force in Canada.

The Canadian Parliament in 1939 adopted an Official Secrets Act in terms virtually identical to the British legislation. The Canadian legislation has only rarely been amended by Parliament since its initial adoption. In June, 1969, the Royal Commission on Security, known as the Mackenzie Commission, recommended that consideration be given to a complete revision of the Official Secrets Act.

When Parliament in 1973 adopted amendments to the Criminal Code allowing for wiretaps and other forms of judicially approved electronic surveillance, the Official Secrets Act was amended by adding a provision allowing for the approval of electronic surveillance by the Solicitor General of Canada. The McDonald Commission in its 1980 First Report, entitled Security and Information, made a number of recommendations for the amendment of section 4 of the Official Secrets Act to address what it called “leakage”.

In 1984, Parliament adopted the Canadian Security Intelligence Service Act establishing CSIS and doing some other things. It repealed the provision of the Official Secrets Act allowing for the Solicitor General to approve wiretaps or other forms of electronic surveillance. This was replaced by a requirement that any such intrusive investigative technique be approved by a Federal Court judge.

The former Law Reform Commission of Canada, in a 1986 Working Paper entitled Crimes Against the State, recommended that section 4 of the Official Secrets Act be re-cast as a criminal offence dealing with the leakage of government information. In 1990, the Special House of Commons Committee that carried out the statutorily-mandated review of the Canadian Security Intelligence Service Act recommended that the House establish a national security subcommittee and that it undertake a review of the Official Secrets Act as part of its agenda. Such a subcommittee was established, but it did not carry out the recommended review of the Official Secrets Act. After that report and its recommendation, the Official Secrets Act was under active review within government during the 1990’s. Parliament made no further changes to Canada’s official secrets legislation until the adoption of the Anti-terrorism Act in 2001.

To return to the court challenge launched by the Ottawa Citizen and its journalist, Ontario Superior Court Justice Ratushny released her reasons for judgment in this case on October 19, 2006.² She ruled that sections 4(1)(a), 4(3), and 4(4)(b) of the Security of Information Act were of no force and effect because they were in violation of sections 2(b) (freedom of expression and the press) and 7 (principles of fundamental justice) of the Canadian Charter of Rights and Freedoms, and could not be saved by section 1 as a reasonable limit imposed by law in a free and democratic society. She came to this conclusion because these provisions of the Act were overbroad and vague, without limitation as to their application, imposing possible criminal liability on those who could inadvertently violate them. She also found that some of the language used in these provisions was arcane and undefined, reflecting the legislative reality of another era. Finally, Justice Ratushny ruled that her finding that these provisions are of no force and effect was to be applied immediately, and not at a later date as requested by the Crown to allow Parliament to fill the legislative void.

There are several points to be made about section 4 of the Security of Information Act and the court ruling on it. As stated earlier, section 4 itself is not part of the Anti-terrorism Act and is essentially unchanged since Canada adopted the now-repealed Official Secrets Act in 1939. Thus, Justice Ratushny’s judgment did not strike down part of the Anti-terrorism Act since section 4 was not directly affected by its enactment. As well, those elements of section 4 that were not declared by Justice Ratushny to be of no force and effect are still in effect.

Then-Attorney General and Minister of Justice of Canada Vic Toews announced on November 3, 2006 that in the public interest there would be no appeal from the judgment rendered by Justice Ratushny. He went on to say that the government would consider its legislative options in relation to section 4 of the Act within the context of the reports to result from the parliamentary reviews of the Anti-terrorism Act.

Guidance on How Section 4 Might Be Amended

The Subcommittee was not surprised by the outcome of the court challenge launched by the Ottawa Citizen to the constitutionality of section 4. A mere reading of this convoluted, arcane provision in light of the Canadian Charter of Rights and Freedoms and the case law to which it has given rise could lead to no other conclusion. What is surprising to the Subcommittee is that those who drafted the Anti-terrorism Act did not re-draft section 4 when they were re-casting the Official Secrets Act as the new Security of Information Act. The problems with section 4 were obvious then and there had been authoritative recommendations as to how to address them.

While the Subcommittee does not make any specific recommendation as to how section 4 of Security of Information Act should be amended, we note that if the government decides that it wants to re-cast section 4, ideas for doing so can be drawn from several of the submissions on this issue considered by the Subcommittee.

The Canadian Civil Liberties Association in its brief recommended that for purposes of national security, the Act should be amended so that: further dissemination of leaked information not be prohibited unless its disclosure could reasonably be expected to cause serious harm to the physical safety and defence of Canada; such further dissemination of information should not be prohibited unless it contains markings indicating its classified nature, and unless there is a systematic way to challenge the validity of the marking; the mere receipt of leaked information by itself should no longer be an offence; and in the absence of an intent to harm Canada or a reckless disregard for Canada’s interests, the penalty for merely disclosing such information should be significantly less than it is now.

Craig Forcese, law professor at the University of Ottawa, said in his brief that section 4 of the Act should be repealed and replaced by a new provision defining carefully and narrowly the sorts of secrets covered by these criminal offences and require that there be proof of actual harm by such un-authorized disclosure of information. As well, a disclosure-in-the-public-interest defence should be included in any such replacement for section 4.

The Canadian Newspaper Association in its brief urged that section 4 be repealed, and that any replacement provision should be narrowly drawn and reduce the scope of secrecy to what is strictly necessary, erring on the side of openness. As well, it recommended that the act of receiving secret information should not be a criminal offence, and that journalists, publishers, and all journalistic activity should be exempt from sanction, at least where publication has not proven to have harmed national security.

OTHER RECOMMENDED AMENDMENTS

Removal of a Heading

Before the Anti-terrorism Act was enacted, section 3 of the Official Secrets Act set out certain offences. However, section 3 of what is now the Security of Information Act no longer sets out any offences. The heading entitled “Offences” before section 3 should therefore be removed.

RECOMMENDATION 48

The Subcommittee recommends that the heading “Offences”, preceding section 3 of Security of Information Act, be removed.

Purposes Prejudicial to the Safety or Interests of the State

Section 3 of the Security of Information Act now sets out what constitutes a purpose prejudicial to the safety or interests of the State. However, it is not clear, from the wording of the section itself, whether the list of conduct is exhaustive or non-exhaustive. The Subcommittee does not believe that the 14 paragraphs are an exhaustive (closed) list, as it is not possible to envisage every act that would be prejudicial to Canada, and the former Official Secrets Act operated without a similar provision. Instead, we believe that section 3 lists conduct that, for certainty, is deemed to be prejudicial, and that it leaves open the possibility of other conduct that a court might find to be prejudicial.

This interpretation is reinforced in that other sections of the Security of Information Act mention prejudicial conduct that is not already included in section 3. Sections 4(1)(b), 4(2) and 5(1) each name a specific act or acts followed by the words “or in any other manner prejudicial to the safety or interests of Canada.” The first-mentioned conduct (for example, using information for the benefit of any foreign power, communicating information to any foreign power, and gaining admission to a prohibited place) are therefore implied to be prejudicial to Canada, although they are not listed in section 3. The Subcommittee accordingly believes that section 3 of the Act should use the word “includes” or be amended in some other way so that, for clarity, the list of conduct prejudicial to the safety and interest of the State is understood to be non-exhaustive.

RECOMMENDATION 49

The Subcommittee recommends that section 3 of the Security of Information Act be amended, for example through use of the word “includes,” so that the list of what constitutes a purpose prejudicial to the safety or interests of the State is clearly non-exhaustive.

Harbouring or Concealing

In addition to creating the offence of harbouring or concealing a person who has carried out or is likely to carry out a terrorist activity under section 83.23 of the Criminal Code, which is discussed in an earlier chapter of our report, the Anti-terrorism Act created a comparable offence under section 21 of the Security of Information Act. Subsection 21(1) states: “Every person commits an offence who, for the purpose of enabling or facilitating an offence under this Act, knowingly harbours or conceals a person whom he or she knows to be a person who has committed or is likely to commit an offence under this Act.” For the same reasons discussed earlier in the context of section 83.23 of the Code, the Subcommittee believes that the “purpose” clause should apply only if the accused is harbouring or concealing a person who is likely to commit a future offence, not a past one. The French version should also use the word “recèle” rather than “héberge.”

Further, to avoid confusion between the person harbouring or concealing and the person being harboured or concealed, the Subcommittee believes that section 21 of the Security of Information Act should begin with “Every one.” Finally, the purpose clause should be redrafted so that it is the person being harboured or concealed who might be facilitating an offence. As currently worded, section 21 contemplates the harbourer to be enabling or facilitating an offence, whereas section 83.23 of the Criminal Code contemplates the harbourer to be enabling the other person to facilitate something. The Subcommittee believes that there should be consistency.

RECOMMENDATION 50

The Subcommittee recommends that subsection 21(1) of the Security of Information be replaced by the following:

“Every one commits an offence who knowingly harbours or conceals a person whom he or she knows to be a person who

(i)                   has committed an offence under this Act, or

(ii)                 is likely to commit an offence under this Act, for the purpose of enabling the person to facilitate or commit an offence under this Act.”

Further, the word “héberge” should be replaced by the word “recèle” in the French version of the section.