Public servants face criminal charges under secrets law
Critics fear new legislation will have chilling effect
Reprinted with permission from The National Post
Wednesday, April 3, 2002
officials could face criminal charges for violating a strict new official
secrets law, part of the federal government's anti-terrorism bill, according to
the Canadian Security Intelligence Service.
legislation has received little public attention, but a new background paper on
the law distributed by CSIS outlines how spies, former spies and other
government officials could face "criminal liability" by disclosing
the archaic Official Secrets Act, the legislation expands the definition of a
secret, creates new offences with penalties of up to 14 years in jail and allows
a narrow "public-interest" defence for people charged with leaking
fear the proposed law could be used to muzzle legitimate debate about
intelligence issues or to prosecute public servants who go public with stories
about government abuses or misdeeds.
think it's a bit overreaching and I personally think there's no doubt that it
will have a chilling effect," said David Yazbeck, an Ottawa lawyer who has
represented several whistle blowers.
somebody comes into my office tomorrow morning and says: 'Mr. Yazbeck, I've got
this information, I'm thinking of disclosing it, what do you think?' I have to
tell the person, there are all these little hoops you have to go through. If you
miss one small point, you're going to be subject to a criminal offence that in
some cases could be punishable by up to 14 years."
many people are going to take that chance? Not many."
of CSIS could not be reached for comment on the legislation or the background
the government has said the new law, called the Security of Information Act, is
a long-overdue replacement for the Official Secrets Act, hastily introduced at
the start of the Second World War.
experts consider the old law too vaguely worded and unwieldly and have called
for it to be reformed over the years.
news report suggested that the government decided not to prosecute a Canadian
suspected of spying for the Czech government during the Cold War because of
fears the act would be struck down as unconstitutional.
government has argued that the new law should also help protect Canada from
potentially damaging leaks of information during the war on terrorism. And
proponents say it has been thoroughly vetted to ensure it does not contravene
the Charter of Rights and Freedoms.
most controversial parts of it deal not with divulging information to a foreign
state or organization, but with leaking secrets to the public.
old act covered what was officially rated as "classified" information.
new law encompasses any security-related information that the government or a
province takes measures to safeguard, even if only by ordering someone not to
particularly sensitive facts, called special operational information, carries a
penalty of up to 14 years in prison for former or current intelligence officers.
legislation sets out a "public-interest" defence for divulging
secrets, but only when the leak helps disclose a crime that is being committed,
and if the leaker has contacted superiors first and got no satisfaction.
new legislation may have been designed to clarify what is and is not legal, but
one former CSIS operative said it appears to have created more uncertainty for
people like him.
is vital that what is fired across the bow [at leakers] is reasonably specific
... Otherwise you run the risk of wide-ranging censorship," said David
Harris, a former strategic planning director at CSIS who now heads Insignis, a
security and counter-intelligence consulting firm.
going to be a concern until the courts have settled on interpretation, because
it does cut a fairly wide swath, potentially, through civil liberties. It
certainly arrests one's attention."
Harris said he worried that the law could fall victim to a Charter challenge
just when it is needed in the war on terrorism.