The <em>Anti-terrorism Act</em>

THE ATA IN PERSPECTIVE

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IV. Security of Information Act

Part 2 of the ATA substantially amended the Official Secrets Act, which became the Security of Information Act (SOIA).

The SOIA focuses on conduct harmful to, or likely to harm, Canada, like espionage. The concept of "harm to Canadian interests" (also known as a purpose "prejudicial to the safety or interests of the State") was defined to address a wide array of potential harms, including terrorist activity, interference with critical infrastructure, and the development of weapons of mass destruction in contravention of international law.      

The SOIA also takes into account not only governments of traditional states, but also new actors such as governments-in-waiting, governments in exile and other foreign entities, as well as terrorist groups.

Further, it recognizes that the security and intelligence community has certain operational requirements, including the need to reassure those from whom information is received that their information can be protected from disclosure. Unauthorized disclosure offences were created, namely:

• purportedly communicating special operational information, by a person permanently bound to secrecy; and
• communicating or confirming special operational information, by a person permanently bound to secrecy.

"Special operational information" is defined in the SOIA. It is a narrow band of information that is believed to be essential to protect Canada's fundamental interests and its capacity to function as a sovereign state. It includes, for example, plans for military operations; the identity of confidential sources, covert agents and targets of the security and intelligence services; and the means the Government of Canada uses to protect information, including encryption and any vulnerabilities.²

"Persons permanently bound to secrecy" are those persons who have privileged access to this most vital information. They are either current or former members or employees of particular departments or agencies set out in a schedule to the SOIA (e.g. employees of CSIS) or they are persons who have been personally identified through a notice system set out in the SOIA (and, potentially, regulations). The designation of a person as permanently bound to secrecy can generally only be authorized by a Deputy Head. The whole purpose is to limit those who have to be designated. The fact that this is done by a very senior official illustrates the importance of the provision. An Operational Standard for the Security of Information Act has been added to the Government Security Policy to assist in the implementation of this regime.

For a person permanently bound to secrecy to be convicted of these offences, harm from the communication, or purported communication, or confirmation of, special operational information need not be proven or even alleged. Given the operationally-sensitive nature of the special operational information, and given that those communicating or confirming this information would be insiders who would purport to speak from personal knowledge, damage would be caused by the communication or confirmation, whether the information is true or false.

A qualified public interest defence was made available in respect of these offences. To be able to rely on this defence, absent exigent circumstances, the person must:

• have acted in order to disclose an offence the person reasonably believes has been;
• is being or is about to be committed by another person purportedly acting on behalf of the Government of Canada;
• have brought his or her concerns to his or her Deputy Head or to the Deputy Attorney General; and
• if not having received a response within a reasonable time; have brought his or her concerns to either the Security Intelligence Review Committee or the Communications Security Establishment Commissioner, as appropriate.

The spying offences were updated and replaced to include offences of:

• communicating safeguarded information to a foreign entity or a terrorist group;
• communicating special operational information to a foreign entity or a terrorist group; and
• breach of trust concerning safeguarded information with respect to a foreign entity or a terrorist group, by a person with a security clearance.

An economic espionage offence was created, relating to the use of a trade secret for the benefit of a foreign economic entity. This offence was designed to address economic espionage by foreign states, including through their intelligence services, as well as by foreign state-owned and foreign state-controlled corporations.

An offence of foreign-influenced and terrorist-influenced threats or violence was also added. It was intended to deter the manipulation and control of ethno-cultural communities in Canada, in direct violation of Canadian sovereignty, in ways that harm, or are likely to harm, Canadian interests.

In addition, the amendments featured an offence of harbouring or concealing for the purpose of enabling or facilitating an offence under the SOIA, which is similar in nature to the Criminal Code offence of the same name.

The preparatory acts offence relates to doing anything in preparation of the commission of certain named offences of the SOIA. This offence provides the state with the ability to investigate, and where appropriate, prosecute a foreign agent or terrorist before the agent or terrorist has caused, or actually attempted to cause, any harm to Canada. This offence was designed to address the issue of sleeper agents. Two former Official Secrets Act offences, dealing with prohibited places, were also modernized.

The prosecution of these offences requires the consent of the Attorney General of Canada. The police may use wiretap and other electronic surveillance measures to collect evidence in the investigation of these offences, and may collect and store DNA samples from persons convicted of some of these offences.

Section 4 of the SOIA deals with the wrongful communication, use, reception, retention and failure to take reasonable care of certain government information.  The present version of section 4 (originally enacted in the 1939 version of the Official Secrets Act) was largely untouched by the 2001 amendments to the Official Secrets Act.  The Anti-terrorism Act specifically focused on terrorist and foreign threats to Canadian security, and on provisions designed to meet those threats, not the general offence of unauthorized disclosure of government information in section 4.

Subsections 4(1)(a), 4(3) and 4(4)(b) of the SOIA were declared unconstitutional by the Ontario Superior Court of Justice on October 19, 2006.   After careful consideration, the Attorney General of Canada decided not to appeal the decision.

The Senate Special Committee and the House of Commons Subcommittee on the review of the Anti-terrorism Act also examined section 4 of the SOIA, reviewed witnesses’ suggestions for amendment and made recommendations relating to it in their reports of February 22, 2007 and March 27, 2007, respectively.

The Government will determine the appropriate legislative course of action in light of these reports and relevant jurisprudence.

^[1] O’Neil v. Canada (Attorney General), [2006] O.J. No. 4189 (QL),

^[2] This definition was amended by S.C. 2004, c. 12.

Updated to April 1, 2008.

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