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SOR/2014-35 February 28, 2014

SECURITY OF INFORMATION ACT

Order Amending the Schedule to the Security of Information Act

P.C. 2014-165 February 28, 2014

Whereas the Governor in Council is of the opinion that the departments, divisions, branches or offices of the federal public administration, or any of their parts, that are set out in sections 2 to 4 of the annexed Order have or had a mandate that is primarily related to security and intelligence matters;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 9 (see footnote a) of the Security of Information Act (see footnote b), makes the annexed Order Amending the Schedule to the Security of Information Act.

ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT

AMENDMENTS

1. The schedule to the Security of Information Act (see footnote 1) is amended by deleting the following:

Protective Operations Program of the R.C.M.P.

Programme des missions de protection de la GRC

2. The reference to

Communications Branch of the National Research Council

Direction des télécommunications du Conseil national de recherches

in the schedule to the Act is replaced by the following:

Communications Branch of the National Research Council (as that Branch existed before April 1, 1975, when control and supervision of the Branch was transferred to the Department of National Defence)

Direction des télécommunications du Conseil national de recherches (telle que la direction existait avant le 1er avril 1975, date du transfert de ses responsabilités au ministère de la Défense nationale)

3. The reference to

Technical Operations Program of the R.C.M.P.

Programme des opérations techniques de la GRC

in the schedule to the Act is replaced by the following:

Technical Operations Program of the R.C.M.P., excluding the Air Services Branch

Programme des opérations techniques de la GRC, à l’exclusion de la Sous-direction du service de l’air

4. The schedule to the Act is amended by adding the following in alphabetical order:

  • Canadian Security Intelligence Service Legal Services Unit of the Department of Justice
  • Unité des services juridiques du Service canadien du renseignement de sécurité du ministère de la Justice
  • Communications Security Establishment Legal Services Unit of the Department of Justice
  • Unité des services juridiques du Centre de la sécurité des télécommunications du ministère de la Justice
  • Foreign and Defence Policy Secretariat of the Privy Council Office
  • Secrétariat de la politique étrangère et de la défense du Bureau du Conseil privé
  • Intelligence Assessment Secretariat of the Privy Council Office
  • Secrétariat de l’évaluation du renseignement du Bureau du Conseil privé
  • International Assessment Staff of the Privy Council Office
  • Bureau de l’évaluation internationale du Bureau du Conseil privé
  • National Security Group of the Department of Justice
  • Groupe sur la sécurité nationale du ministère de la Justice
  • National Security Litigation and Advisory Group of the Department of Justice
  • Groupe litiges et conseils en sécurité nationale du ministère de la Justice
  • National Security Program of the R.C.M.P.
  • Programme de sécurité nationale de la GRC
  • Office of the Inspector General of the Canadian Security Intelligence Service
  • Bureau de l’inspecteur général du Service canadien du renseignement de sécurité
  • Office of the National Security Advisor to the Prime Minister
  • Bureau du conseiller en matière de sécurité nationale auprès du premier ministre
  • Office of the Security and Intelligence Coordinator of the Privy Council Office
  • Bureau du coordonnateur de la sécurité et du renseignement du Bureau du Conseil privé
  • Security and Intelligence Secretariat of the Privy Council Office
  • Secrétariat de la sécurité et du renseignement du Bureau du Conseil privé

COMING INTO FORCE

5. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Amendments to the Schedule of the Security of Information Act (see footnote 2) (the Act) are necessary to protect Canada’s national security interests and the Government’s most operationally sensitive information. The amendments provide additional assurances to Canada’s international partners and allies that special operational information shared with Canada will be protected.

Background

Part 2 of the Anti-terrorism Act, which came into force on December 24, 2001, amended the Official Secrets Act and changed its title to the Security of Information Act.

Parliament set out a regime in sections 8 to 15 of the Act to protect “special operational information,” defined in subsection 8(1) of the Act, from unauthorized disclosure. This information is the Government’s most highly sensitive information concerning Canada’s core national security interests. Consequently, only a limited number of people have access to such information. They are, essentially, certain current or former members or employees of the security and intelligence community. To fall under the Act’s regime, these individuals must be specifically designated as “persons permanently bound to secrecy,” as only the persons included in that definition may be charged with offences under sections 13 and 14 of the Act.

Section 13 of the Act makes it a criminal offence for a person permanently bound to secrecy to intentionally and without authority communicate or confirm information that, if it were true, would be special operational information, while section 14 makes it a criminal offence for such a person to intentionally and without authority communicate or confirm special operational information.

Persons permanently bound to secrecy who commit offences under sections 13 and 14 of the Act may be sentenced to a maximum term of imprisonment of 5 years less a day or 14 years, respectively. However, under section 15, there is a public interest defence providing that 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.

The Act provides two methods to permanently bind individuals to secrecy. First, section 10 permits the designation of each person by a notice in writing that is signed by the applicable Deputy Head of an organization and personally served on the individual. Second, section 9 allows for the designation in the Schedule to the Act of a current or former department, division, branch or office of the federal public administration, or any of its parts, that has or had a mandate primarily related to security and intelligence matters. Any person who works or has worked for an organization listed in the Schedule is deemed to be permanently bound to secrecy.

From time to time, the Schedule needs updating. For example, in 2006, the Schedule was amended by order in council to add three commissions of inquiry: the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.

In 2002, one year after the Act was adopted, there were consultations across the security and intelligence community to ensure that the Schedule was current and contained only those entities whose mandate required such measures. This led to the prepublication in Part I of the Canada Gazette of the Order Amending the Schedule to the Security of Information Act (see footnote 3) on March 12, 2005 (2005 Order). This Order recommended adding 14 entities to the Schedule.

Objectives

The Order supports the Government’s commitment in the Speech from the Throne of March 3, 2010, to “take steps to safeguard Canada’s national security [. . .] (and to) modernize the judicial tools employed to fight terrorism.” This commitment was reiterated in the Speech from the Throne of June 3, 2011: “The Government of Canada has no more fundamental duty than to protect the personal safety of our citizens and defend against threats to our national security.” Finally, the October 16, 2013, Speech from the Throne stated that “Government has no higher obligation than the protection of national sovereignty and the security of citizens.”

Description

The Order modifies the scope of two current entities and deletes one other entity from the Schedule. The amendments also add to the Schedule the following 12 entities that have (or had) a mandate primarily related to security and intelligence matters:

  • Canadian Security Intelligence Service Legal Services Unit (Department of Justice)
  • Communications Security Establishment Legal Services Unit (Department of Justice)
  • Foreign and Defence Policy Secretariat of the Privy Council Office
  • Intelligence Assessment Secretariat of the Privy Council Office
  • International Assessment Staff of the Privy Council Office
  • National Security Group of the Department of Justice
  • National Security Litigation and Advisory Group of the Department of Justice
  • National Security Program of the R.C.M.P.
  • Office of the Inspector General of the Canadian Security Intelligence Service
  • Office of the National Security Advisor to the Prime Minister
  • Office of the Security and Intelligence Coordinator of the Privy Council Office
  • Security and Intelligence Secretariat of the Privy Council Office

Seven of these 12 entities are currently in existence, while five are now dissolved:

  • Canadian Security Intelligence Service Legal Services Unit (Department of Justice)
  • International Assessment Staff of the Privy Council Office
  • National Security Program of the R.C.M.P.
  • Office of the Inspector General of the Canadian Security Intelligence Service
  • Office of the Security and Intelligence Coordinator of the Privy Council Office

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as this Schedule does not relate to business.

Small business lens

The small business lens does not apply to this proposal, as the Schedule being amended does not relate to small business.

Consultation

Consultations and changes to the Order following prepublication in 2005

The 2005 Order was followed by a 30-day period for public comments. One association representing the press provided comments expressing concerns about the proposed Order and concluded by encouraging the Department of Justice to delay the adoption of the proposed Order until more extensive public discussions were held.

The association raised the following six concerns:

  1. The measure is draconian.
  2. The term of the secrecy obligation is too extreme.
  3. Consideration should be given to a public interest override, to provisions for exceptions or to a process of third-party arbitration to determine permissible exceptions.
  4. There is a risk of impediment to the public complaints or public inquiry process, and this matter should be fully examined.
  5. The proposed measures should be the subject of wider public consultations.
  6. The obligations tied to secrecy violate the Canadian Charter of Rights and Freedoms and the onus is on the Government to present evidence to justify these measures.

While these concerns were taken very seriously, no response was provided to the association in light of the extensive review of the Anti-terrorism Act (the provisions creating the Security of Information Act were part of the Anti-terrorism Act) by committees of the House of Commons and of the Senate, which began in December 2004 and concluded in 2007. Each parliamentary committee held extensive hearings and heard from many witnesses. No recommendations were made by either parliamentary committee based on the views expressed by the association. It is also notable that the three commissions of inquiry that were added to the Schedule in 2006 were able to perform their work effectively.

Between 2009 and 2013, extensive consultations were conducted within all departments and agencies affected by the proposed amendments to the Schedule to the Act, which resulted in the following proposals:

1. Four new entities were added to the initial 14 entities listed in the 2005 Order:

  • International Assessment Staff of the Privy Council Office
  • National Security Litigation and Advisory Group of the Department of Justice
  • National Security Program of the R.C.M.P.
  • Office of the Inspector General of the Canadian Security Intelligence Service

2. Five entities of the Canadian Forces that had been included in the 2005 Order were removed because the Canadian Forces are not a part of the federal public administration. Thus, they do not fall under the scope of section 9 of the Act.

3. The National Security Directorate (NSD) of the Department of the Solicitor General was also removed because the Department of Public Safety wished to proceed by way of individual designations.

Consultations and changes to the Order following prepublication in 2013

The Order was published in the Canada Gazette, Part I, on June 8, 2013, which was followed by a 30-day period for public comments. Four individuals and one association provided comments. The key comments were as follows:

  1. No government information requires permanent secrecy.
  2. Permanent secrecy runs counter to a free and open society and could deprive Canadians of an historical perspective of actions and efforts taken to protect them.
  3. Concerns were also raised about the chilling effect on information being provided to members of the media from any person subject to the Order and about whether these measures could be used to conceal illegality.

All the comments were carefully reviewed and considered. While it is true that the obligation for secrecy set out in the regime of sections 8 to 15 of the Act is valid perpetually, this is not true of the status of “special operational information” as defined by section 8 of the Act. This qualification disappears when, for example, the federal government stops taking protective measures regarding the information in question. In addition, it stands to reason that the perpetual secrecy obligation does not apply when the communication of special operational information has been authorized and is made accordingly.

The regime that applies to persons permanently bound to secrecy provides for a limited public interest defence in section 15 of the Act by which, in some circumstances, a person is not guilty of an offence if the person acted for the purpose of disclosing an offence under an Act of Parliament, if the public interest in the disclosure outweighs the public interest in non-disclosure and if the person reasonably believes that the offence has been, is being or is about to be committed by another person in the performance, or purported performance, of that person’s duties and functions for, or on behalf of, the Government of Canada. The conditions for the application of this defence are set out in subsections 15(2) to (6) of the Act.

After the publication of the Order in Part I of the Canada Gazette, the National Security Litigation and Advisory Group of the Department of Justice, a new entity, which also has a mandate primarily related to security and intelligence matters, was added to the list of entities.

Rationale

The 12 entities that the Order adds to the Schedule to the Act were carefully selected.

In addition, the Order clarifies the scope of the reference to the “Communications Branch of the National Research Council” by adding the words “(before April 1, 1975, when control and supervision of the Branch was transferred to the Department of National Defence).” The Communications Branch of the National Research Council was the forerunner of the Communications Security Establishment, which was transferred to the Department of National Defence in 1975. This amendment prevents any possible confusion between the former Communications Branch of the National Research Council and the current Communications and Corporate Relations group within the National Research Council.

Further, the Order replaces “Technical Operations Program of the R.C.M.P.” in the Schedule by “Technical Operations Program of the R.C.M.P., excluding the Air Services Branch.” This precision is necessary in order to exclude from the application of the special regime of sections 8 to 15 of the Act current or former members or employees of the Air Services Branch within the Technical Operations Program of the RCMP, as that Branch does not have a mandate that is primarily related to security and intelligence matters.

Finally, the Order deletes the “Protective Operations Program of the R.C.M.P.” from the Schedule. This deletion complies with the policy consideration to designate only those individuals who have privileged access to special operational information. Where it is determined to be necessary, the RCMP will individually designate those members or employees who require designation pursuant to section 10 of the Act.

Personal service of notices

There is only one alternative that would theoretically make it possible to achieve the objectives of the Order, and that is to serve a personal notice on each current or former member or employee of the 12 entities to designate them as a “person permanently bound to secrecy.”

The personal service of such a notice would, however, require considerable resources and would involve substantial costs and delays. In addition, identifying and locating each former member or employee to serve them a personal notice may prove to be an almost impossible task because there is no reason for the Government to have the current contact information of the former members or employees. The Order is an effective and reliable method of permanently binding to secrecy the current or former members or employees of 12 entities of the federal public administration or any of its parts that are or were part of the security and intelligence community in Canada.

International partners

The security and intelligence community has certain operational requirements that need to be respected. These operational requirements include an ability to ensure secrecy and project to others that they have the ability to protect the information entrusted to them.

The Order enables the Government of Canada to provide additional assurances to its international partners and allies that special operational information shared with Canada will be protected.

Protection of privacy

The designation does not involve personal information and, therefore, will not encroach on the privacy interests of the affected individuals. The Order also will not create a conflict with the Public Servants Disclosure Protection Act (PSDPA), (see footnote 4) which provides a procedure for the disclosure of wrongdoing in the public sector, including the protection of persons who disclose the wrongdoings. Section 17 of the PSDPA excludes special operational information from the disclosure regime under the Act.

Employees

It is generally understood by employees who work in the security and intelligence community that special operational information is not to be communicated or confirmed without authority. This obligation predates the Schedule and applies to a very limited category of information as defined in the Act. The Act also provides a qualified public interest defence under section 15, in relation to the offences under sections 13 and 14 of the Act.

Press

There would be minimal impact on the press, which should not have access to special operational information without authorization. Special operational information is a very limited category of information as defined in the Act.

Implementation, enforcement and service standards

In addition to the domestic provisions in sections 13 and 14, section 26 prescribes certain situations where an offence against the Act committed outside Canada may be tried in Canada. It should be noted that no prosecution shall be commenced for an offence against the Act without the consent of the Attorney General of Canada, in accordance with section 24 of the Act.

Finally, the Operational Standard for the Security of Information Act (see footnote 5) provides administrative guidelines to departments and agencies both for the listing of entities in the Schedule to the Act and for the individual designation by written notice to persons permanently bound to secrecy.

Contact

Dorette Pollard
Counsel
Criminal Law Policy Section
Department of Justice
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-948-3478
Fax: 613-957-3738

  • Footnote a
    S.C. 2003, c. 22, par. 224(z.76)
  • Footnote b
    R.S., c. O-5; S.C. 2001, c. 41, s. 25
  • Footnote 1
    R.S., c. O-5; S.C. 2001, c. 41, s. 25
  • Footnote 2
    R.S.C., 1985, c. O-5
  • Footnote 3
    Canada Gazette, Vol. 139, No. 11, March 12, 2005, Order Amending the Schedule to the Security of Information Act, online: http://publications.gc.ca/gazette/archives/p1/2005/2005-03-12/pdf/g1-13911.pdf.
  • Footnote 4
    S.C. 2005, c. 46
  • Footnote 5
    Operational Standard for the Security of Information Act, online: www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12323&section=text.