Wikileaks, Classified Cables and The Canadian Security of Information Act

I just read a tweet posted via the Twitter @Wikileaks account advising that Wikileaks intends to release classified Canadian cables shortly:

I have written about Julian Assange and Wikileaks before , including the U.S. Department of Justice’s threat to subpoena the Twitter accounts of Wikileaks  supporters.  I support Wikileaks’ mission to “open governments” and expose breaches of national and international law by governments and state officials. I also oppose the shameful treatment of Army Pfc. Bradley Manning, suspected of providing classified documents to WikiLeaks, who remains in maximum custody  of United States government.

A number of people, including me, have already republished or distributed the Wikileaks unclassified cables.

However, I must draw the line when the documents are “classified” and potentially expose Canadians to criminal prosecution and imprisonment under Canadian federal criminal and national security legislation.

In particular,  Canadians who follow @Wikileaks on Twitter or read the Wikileaks mirror site should take heed of the  Security of Information Act, R.S.C., 1985, c. O-5 (the Act”) which imposes criminal liability for communicating or receiving classified information. Although the Act is primarily concerned with government employees, it also applies to all individuals if they act” in any other manner prejudicial to the safety or interests of the State.” It creates a “true crime” hybrid offence, meaning that the punishment may be either imprisonment for a term of not more than 14 years; or an offence punishable on summary conviction and liable to imprisonment for a term of not more than 12 months or to a fine of not more than $2,000, or to both. (s. 29)

The following definitions under section 2 the Act also apply:

“communicate”« communiquer »“communicate” includes to make available;“document”« document »“document” includes part of a document;

“offence under this Act”« infraction à la présente loi »“offence under this Act” includes any act, omission or other thing that is punishable under this Act;…

Communicating or receiving(3) In this Act,(a) expressions referring to communicating or receiving include any communicating or receiving, whether in whole or in part, and whether the sketch, plan, model, article, note, document or information itself or the substance, effect or description thereof only is communicated or received;(b) expressions referring to obtaining or retaining any sketch, plan, model, article, note or document include the copying of, or causing to be copied, the whole or any part of any sketch, plan, model, article, note or document; and(c) expressions referring to the communication of any sketch, plan, model, article, note or document include the transfer or transmission of the sketch, plan, model, article, note or document.

Canadian readers should also note that section 3 of the Act provides a broad purposive definition of “Prejudice to the safety or interest of the State”, including:

3. (1) For the purposes of this Act, a purpose is prejudicial to the safety or interests of the State if a person

(c) causes or aggravates an urgent and critical situation in Canada that

(i) endangers the lives, health or safety of Canadians, or

(ii) threatens the ability of the Government of Canada to preserve the sovereignty, security or territorial integrity of Canada;

(d) interferes with a service, facility, system or computer program, whether public or private, or its operation, in a manner that has significant adverse impact on the health, safety, security or economic or financial well-being of the people of Canada or the functioning of any government in Canada;

(e) endangers, outside Canada, any person by reason of that person’s relationship with Canada or a province or the fact that the person is doing business with or on behalf of the Government of Canada or of a province;

(g) impairs or threatens the military capability of the Canadian Forces, or any part of the Canadian Forces;

(i) impairs or threatens the capabilities of the Government of Canada in relation to security and intelligence;

(j) adversely affects the stability of the Canadian economy, the financial system or any financial market in Canada without reasonable economic or financial justification;

(k) impairs or threatens the capability of a government in Canada, or of the Bank of Canada, to protect against, or respond to, economic or financial threats or instability;

(l) impairs or threatens the capability of the Government of Canada to conduct diplomatic or consular relations, or conduct and manage international negotiations;

(n) does or omits to do anything that is directed towards or in preparation of the undertaking of an activity mentioned in any of paragraphs (a) to (m).

Quaere: whether retweeting or blogging about leaked classified information released from the Wikileaks mirror site or its Twitter account falls under the wording of ss. 3 (l) of the Act which bears repeating:

3. (l) impairs or threatens the capability of the Government of Canada to conduct diplomatic or consular relations, or conduct and manage international negotiations;”

Section 4 of The Act further contains wide-sweeping Miscellaneous Offences relating to “wrongful communication of information”, including “Retaining or allowing possession of document”. (s.4(4))

The Act includes a “whistleblower” provision which allows “persons bound to secrecy” (as designated by the deputy head under section 10 and as subject to sections 13 and 14)  to raise a  a “public interest” defence under section 15 as follows:

15. (1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.

Acting in the public interest

(2) Subject to subsection (4), a person acts in the public interest if

(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and

(b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Paragraph (2)(a) to be considered first

(3) In determining whether a person acts in the public interest, a judge or court shall determine whether the condition in paragraph (2)(a) is satisfied before considering paragraph (2)(b).

Factors to be considered

(4) In deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure, a judge or court must consider

(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;

(b) the seriousness of the alleged offence;

(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;

(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;

(e) the public interest intended to be served by the disclosure;

(f) the extent of the harm or risk of harm created by the disclosure; and

(g) the existence of exigent circumstances justifying the disclosure.

Given that the purpose of the Act is to protect national security and official secrets, it is unlikely that the public interest defence will be interpreted broadly by a federal court judge. Any Charter rights challenge under s.2(b) based upon the exercise of freedom of expression would be subject to the “reasonable limits clause” orlimitations clause” under section 1 of the Charter: see, R. v. Oakes [1986] 1 S.C.R. 103  (S.C.C.) and R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.).

Cf.  O’Neill v. Canada (Attorney General), (2006), 82 O.R. (3d) 241, 272 D.L.R. (4th) 193, 213 C.C.C. (3d) 389 (Ont. S.C.J.) which held that subsections 4(1)(a), 4(3) and 4(4)(b) of the Act were found to breach sections 7 and 2 (b) of the Charter, with the result that these sections were declared to be of no force and effect and, under s. 24(1) of the Charter, the things seized in the execution of two search warrants were ordered returned.

(See also, the Department of Justice news release: Section 4 of the Security of Information Act (SOIA) (November 2006) and Department of Justice news release: ATTORNEY GENERAL OF CANADA NOT APPEALING ONTARIO SUPERIOR COURT DECISION (November 3, 2006). )

Although the O’Neill v. Canada (Attorney General) decision was not appealed the A-G of Canada, the federal government has not bothered to delete ss. 4(1)(a), 4(3) and 4(4)(b) from the online version of the Act. Also, it remains unclear whether Twitterers and bloggers benefit from the scope of journalist-source confidentiality and journalistic privilege discussed in the  Supreme Court of Canada’s decision in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 (S.C.C.).

The Act also targets “communicating special operational information” to foreign entities and terrorist groups under section 17 which reads:

17. (1) Every person commits an offence who, intentionally and without lawful authority, communicates special operational information to a foreign entity or to a terrorist group if the person believes, or is reckless as to whether, the information is special operational information.

The punishment for contravention of this section is particularly severe as any who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life. (ss.17(2)).

Finally, pursuant to section 23 of the Act, anyone “who conspires or attempts to commit, is an accessory after the fact in relation to or counsels in relation to an offence” under the Act and is “liable to the same punishment and to be proceeded against in the same manner as if he or she had committed the offence.”

Caveat Scriptor

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