The Anti-terrorism Act

G. THE SECURITY OF INFORMATION ACT (RECOMMENDATIONS 48 - 50)

Part 2 of the ATA enacted the Security of Information Act (SOIA), replacing the Official Secrets Act. Section 4 of the older Act was included in the SOIA, essentially without amendment. The SOIA focuses on conduct related to information security, such as espionage, that is or is likely to be harmful to Canada. It takes into account not only governments of traditional states, but also new actors such as governments-in-waiting, governments in exile and other foreign powers, as well as terrorist groups. Section 4 deals with the wrongful communication, use, reception, retention and failure to take reasonable care of certain government information. 

In October 2006, sections 4(1)(a), 4(3) and 4(4)(b) of the SOIA were declared unconstitutional by the Ontario Superior Court of Justice in Juliet O'Neill and The Ottawa Citizen v. the Attorney General of Canada.⁸ After careful consideration, the Attorney General of Canada decided not to appeal the decision.

The Government has previously indicated that it will consider legislative options to reform section 4; in that process it will bear in mind the comments of the Subcommittee and the recommendations made by witnesses who appeared before it.

The CSIS Public Report (2004-2005) demonstrates the continued necessity of the SOIA. For example, in considering the current threat environment, CSIS observes that terrorism is the most serious security threat. Various threats to Canada are cited, including the continued intimidation and exploitation by foreign entities and terrorist groups of Canada's immigrant and expatriate communities; the threat of cyber-attacks against private-sector and government targets; attempts by foreign entities and terrorist groups to acquire more lethal weapons, including chemical, biological, radiological and nuclear devices; spying and economic espionage. Offences in the Act address these concerns, as does the definition of “harms to Canadian interests” (also known as a purpose “prejudicial to the safety or interests of the State”) in section 3 of the SOIA.

Regarding section 3 of the Act, the Government believes that moving the section under the “Interpretation” heading would improve the organization of the Act. Concerning the question of whether the list of purposes prejudicial to the safety or interests of the State in section 3 should be read as an indicative list or an exhaustive definition, the Government points out that section 3 is intended to be an exhaustive definition. The definitional nature of the present list operates as a safeguard. It allows persons to know what specific types of activities will be caught by the Act, thereby increasing Charter conformity. The Government does not believe that the provision should be expanded or made open-ended. Section 3 was designed to clearly identify harms from which Canada merits protection under the Act, including terrorist activity, interference with critical infrastructure, and the development of weapons of mass destruction in contravention of international law. In this way, the definition improved upon the former Official Secrets Act by providing greater clarity. The Government takes note of the Subcommittee's observation about the reference to “...any other purpose prejudicial to the safety or interests of the State...” in section 5, and will examine whether this wording is still necessary.⁹

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Updated to April 1, 2008.