Public servants face criminal charges under secrets law

Critics fear new legislation will have chilling effect

Reprinted with permission from The National Post

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Wednesday, April 3, 2002

Tom Blackwell

The National Post

Government 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.

The 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 sensitive information.

Replacing 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 secrets.

Critics 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.

"I 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.

"If 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."

"How many people are going to take that chance? Not many."

Representatives of CSIS could not be reached for comment on the legislation or the background paper yesterday.

But 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.

Many experts consider the old law too vaguely worded and unwieldly and have called for it to be reformed over the years.

One 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.

The 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.

The most controversial parts of it deal not with divulging information to a foreign state or organization, but with leaking secrets to the public.

The old act covered what was officially rated as "classified" information.

The 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 divulge it.

Leaking particularly sensitive facts, called special operational information, carries a penalty of up to 14 years in prison for former or current intelligence officers.

The 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.

The 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.

"It 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.

"It's 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."

Mr. Harris said he worried that the law could fall victim to a Charter challenge just when it is needed in the war on terrorism.

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