SECRETS?

[Edward Campbell]

Should we, all Canadians, be concerned about this court decision?

This story is reproduced under the Fair Dealings provisions of the Copyright Act from today’s (19 Oct 06) Globe and Mail:

http://www.theglobeandmail.com/servlet/story/RTGAM.20061019.wwarrants1019/BNStory/National/home

Ontario court strikes down parts of secrecy law

Canadian Press

Ottawa — An Ontario court has struck down sections of Canada's secrecy law in throwing out RCMP warrants used to search a reporter's home.

David Paciocco, a lawyer for Ottawa Citizen reporter Juliet O'Neill, says today's ruling by the Ontario Superior Court is a tremendous affirmation of press freedom.

Squads of Mounties combed through Ms. O'Neill's home and office on a cold January morning in 2004 in an attempt to find the source of information about the Maher Arar affair.

Mr. Arar, an Ottawa telecommunications engineer, was detained at a New York airport in 2002.

He spent months behind bars in Damascus after being deported to his Syrian birthplace by U.S. authorities.

The RCMP launched a criminal probe in the weeks following publication of a Nov. 8, 2003, story by Ms. O'Neill.

The story cited a “security source” and a leaked document offering details of what Mr. Arar allegedly told his Syrian captors.

The Mounties believe Ms. O'Neill published her article “based on the receipt of secret classified information.”

Search warrants were executed under the so-called anti-leakage provisions of the Security of Information Act, legislation passed as part of the omnibus anti-terrorism law three months after the Sept. 11, 2001, attacks on the United States.

The story doesn’t tell me much but, I think:

• There are SECRETS which the government and all of its servants (civil and armed) and, indeed, all citizens have a duty to protect;

• The government needs laws which allow it to plug leaks and find and punish leakers;

• Citizens who lack security clearances or, even if they have them have no ‘need to know’ ought not to be allowed to possess classified information – that means any citizen, including a journalist, and any bit of classified information; and

• The laws, all laws, need to be obeyed by all of us: politicians, police, journalists, soldiers and ordinary Canadians like me.  Equally the laws need to be enforced equally – for the governed and governors alike.

Has this court ruling made us safer?

 

[Cloud Cover]

Lets wait until the written decision is released before piling on.

Cheers

 

[niner domestic]

So far, all the ruling did was nullify the warrant for search and seizure of the reporter's home and files.  I haven't seen any indication that the Act has been read down, in or voided for vagueness or struck down in its entirety (just the warrants - which means any evidence stemming from such warrants are inadmissible). 

 

[Edward Campbell]

I understand I’m jumping the gun but here is that the CP said:

Three provisions struck down

Canadian Press

Published: Thursday, October 19, 2006

OTTAWA - The three provisions of the Security of Information Act struck down Thursday by the Ontario Superior Court:

4. (1) Every person is guilty of an offence under this Act who, having in his possession or control any secret official code word, password, sketch, plan, model, article, note, document or information that relates to or is used in a prohibited place or anything in a prohibited place, or that has been made or obtained in contravention of this Act, or that has been entrusted in confidence to him by any person holding office under Her Majesty, or that he has obtained or to which he has had access while subject to the Code of Service Discipline within the meaning of the National Defence Act or owing to his position as a person who holds or has held office under Her Majesty, or as a person who holds or has held a contract made on behalf of Her Majesty, or a contract the performance of which in whole or in part is carried out in a prohibited place, or as a person who is or has been employed under a person who holds or has held such an office or contract,

(a) communicates the code word, password, sketch, plan, model, article, note, document or information to any person, other than a person to whom he is authorized to communicate with, or a person to whom it is in the interest of the State his duty to communicate it …

4. (3) Every person who receives any secret official code word, password, sketch, plan, model, article, note, document or information, knowing, or having reasonable ground to believe, at the time he receives it, that the code word, password, sketch, plan, model, article, note, document or information is communicated to him in contravention of this Act, is guilty of an offence under this Act, unless he proves that the communication to him of the code word, password, sketch, plan, model, article, note, document or information was contrary to his desire.

4. (4) (b) Every person is guilty of an offence under this Act who: allows any other person to have possession of any official document issued for his use alone, or communicates any secret official code word or password so issued, or, without lawful authority or excuse, has in his possession any official document or secret official code word or password issued for the use of a person other than himself, or on obtaining possession of any official document by finding or otherwise, neglects or fails to restore it to the person or authority by whom or for whose use it was issued, or to a police constable.

© Canadian Press 2006​

I simply cannot imagine how anyone with the brains the gods gave a green pepper could find anything wrong with 4. (1) (a), 4. (3) or 4. (4) (b).

It says, as I understand English that: ” Every person is guilty of an offence under this Act who, having in his possession or control any secret (with a whole laundry list of conditions) communicates the (secret) to any (unauthorized) person”, and ” Every person who receives any secret … knowing, or having reasonable ground to believe, at the time he receives it, that the information is communicated to him in contravention of this Act, is guilty of an offence,” and “Every person is guilty of an offence under this Act who: allows any other (unauthorized) person to have possession of any secret.”

What on earth could be wrong with that?  Who, other than the government’s own experts, can or should be allowed to decide on what is and what is not a secret and who, other than the government’s own experts, can or should decide on who needs access to secrets?

Finally, cannot parliament decide on what is and what is not a offence?

I think this judgement endangers the state; I think it directly threatens my security and safety and yours, too.

I impatiently await the learned judge’s written ruling and detailed legal interpretation of it.

Until then I continue to believe that Ms. O’Neil should have been locked up until she spilled the beans and the person who leaked the information should have been arrested and tried – in secret – and then imprisoned, also in secret, for 14 years.

 

[George Wallace]

The ramifications of this being overturned by the Courts are astronomical.  Just think of what would happen in a wide range of other cases,  all of lesser importance than National Security and Defence.  People involved in Identity Theft, Security and Bank Fraud, could challenge the rights of people to keep their personal particulars secret, or for Banks and Financial Institutions to keep personal information secret.  Computer Hackers would basically become legalized.  A precedence would have been set.

 

[niner domestic]

Edward: Perhaps I've been a jaded lawyer too long to consider anything I read in the press to be accurate if it travels outside of which NHL team won the previous night's game especially when it comes to specialized areas of knowledge and more so when it involves issues that surround "freedoms of the press".  Their use of the word "struck down" is concerning me as being slightly, if not entirely incorrect usage.  The courts are pretty clear on how they deal with sections and entire legislation that runs contrary to or violates a paramount legislative act.  Unless it's found to be a completely absurd piece of legislation the courts are reluctant to "strike" it down as that action tends to leave a big black hole in the law (as did the court's striking down the prostitution laws and abortion laws were seen to do - the SCC is wary of doing that and prefers to send it back to the legislators).  The courts normally send the offending piece of legislation/section back to the legislators for revisions and or repeals.  I don't see this particular court doing anything different than that.  

What I can see by the decision s that the particular sections of the act could not be saved under a section 1 Charter analysis pertaining to rationality and proportionalty (aka Oakes test) therefore the warrants are in question and evidence stemming from those warrants is inadmissible.  It's not quite baby out with the bath water yet just the evidence gleaned from a search (we see 100s of pieces of evidence thrown out and deemed inadmissible because of a flaws in the face of the warrant or procedure and the country has yet to fall competely apart).  

What the Court is signalling to the legislators is tighten up your wording as the section is too vague and overreaching.  (the precedent for this is R. v. Nova Scotia Pharmaceuticals Society, [1992] 2 S.C.R. 606 )

Please don't misunderstand that I in any way are in agreement with this decision but I do understand where the judge had difficulties especially if it failed a section 1 test.  

 

[LeonTheNeon]

George, repsectfully, I don't think so.  The Criminal Code of Canada has those crimes well covered under other sections.  Parts IX & X would cover all aspects of fraud and identity theft.

http://laws.justice.gc.ca/en/C-46/index.html

 

[Edward Campbell]

...
What the Court is signalling to the legislators is tighten up your wording as the section is too vague and overreaching.  (the precedent for this is R. v. Nova Scotia Pharmaceuticals Society, [1992] 2 S.C.R. 606 )

Please don't misunderstand that I in any way are in agreement with this decision but I do understand where the judge had difficulties especially if it failed a section 1 test.  

Maybe I'm just dense but I cannot see what, in those three bits, is - or ought to be - objectionable.  I plead guilty to not understanding.  If one of you lawyers can explain in simple soldiers' English I, amongst others, would be grateful.

New subject: I agree with LeonTheNeon; I think George Wallace is reading too much into it.

I think the decision is dangerous because it appears to me to restrict the government in its duty to protect its secrets.  I believe the Official Secrets Act should be carefully and very, very clearly written, placed beyond Charter challenge, and then enforced vigorously, even harshly, consistently and secretly.

 

[KevinB]

Well I am reserving judgment on judicial stupidity until the 30 day appeal period is over.

 

[George Wallace]

Although what I have said may be at the very extreme, we have to be carefull and ensure that The Official Secrets Act is very well and clearly written and beyond any Charter Challenge, as Edwards says.  Although certain acts are well defined in the Criminal Code of Canada, once those Laws have been challenged successfully, they have been changed.  How many big name Left-leaning Lawyers do we have in this country who do nothing but challenge the Laws of the Land, sometimes successfully?  

 

[niner domestic]

Ok Edward, I'd be happy to explain it all to you.  Let me get a copy of the whole decision and then I can see where the Judge had issues and where it failed the analysis.  The data bases should have it up loaded by tomorrow (I hope).  Remember it is not always the wording that gets a piece of legislation into trouble it's also the manner in which it exercises it's authority and discretions, if it slams up against an intrinsic Charter right, the subordinate law gets suspended, voided or struck down.  

In the meantime, if you can stand it read the following cases to get an idea of what the judge had to do.  
R v Oakes [1986] 1 SCR 103, R. v. Chaulk [1990] 3 S.C.R. 1303

This is one of the better articles explaining vagueness and overbreath: http://canlii.org/ca/com/chart/s-1.html (Chapter 9)

 

[niner domestic]

George: You may not be aware of this but as lawyers we are, irrespective of our political leanings and associations officers of the court first and foremost and as such are sworn and held to the standard that it is the law we uphold, not the cause/individual.  If by chance the law is a poorly written one or tromps on an individuals rights we as officers of the court, are bound to defend or prosecute it to the nth degree (not just to our best ability but until there isn't a legal stone left unturned).  If my job for the day as that officer of the court is to save a piece of legislation or whether it is to strike down by my presenting to the court all legal arguments then so be it - that is my job.  So for every "left leaning lawyer" there's a bucket full of right and centre sitting judiciary so in the end it all balances out as there is little room in the court for grandstanding a political preference if the law says it isn't going to happen. 

 

[couchcommander]

I AM NOT a laywer but am relying on outside analysis, but the coments that seems to be swirling around are that these provisions were poorly written and were far too vague (as niner domestic pointed out). The court, it seems, is not saying "these provisions are unacceptable", rather its saying "you need to do a better job of writing this legislation so it more specifically outlines what you are trying to protect".

 

[Edward Campbell]

Ok Edward, I'd be happy to explain it all to you.  Let me get a copy of the whole decision and then I can see where the Judge had issues and where it failed the analysis.  The data bases should have it up loaded by tomorrow (I hope).  Remember it is not always the wording that gets a piece of legislation into trouble it's also the manner in which it exercises it's authority and discretions, if it slams up against an intrinsic Charter right, the subordinate law gets suspended, voided or struck down.  

In the meantime, if you can stand it read the following cases to get an idea of what the judge had to do.  
R v Oakes [1986] 1 SCR 103, R. v. Chaulk [1990] 3 S.C.R. 1303

This is one of the better articles explaining vagueness and overbreath: http://canlii.org/ca/com/chart/s-1.html (Chapter 9)

One can see why lawyers enjoy the intellectual challenge of balancing cause, effect and ‘collateral damage.’

I wonder if the judge did not give sufficient attention to: ‘…both the majority and minority agreed that an approach involving a "formalistic 'test' uniformly applicable in all circumstances" must be eschewed.  Rather, the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs.  In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement.  This involves a close attention to context.  In my reasons in RJR-MacDonald I stated that the "core" values of freedom of expression include "the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process".  This Court has subjected state action limiting such values to "a searching degree of scrutiny" ‘

It seems to me that, even though the RCMP, may have abused the process – and should not reap any ‘rewards’ for that, the ‘community needs’ in this care are overwhelming and the judge has erred, grievously, in deciding that O’Neil’s ‘rights’ as a journalist are, in any way, even remotely, to be compared with the safety of the state.  That’s arrant nonsense.

Perhaps this is that rare case that proves that Sterling Lyon was right when he insisted on a notwithstanding clause.  Maybe some laws cannot be ‘squared’ with the Charter but, yet, despite that, need to be on the books.  Maybe Official Secrets, which, I think has always annoyed a lot of people, needs to be ‘protected’ from the Charter.  No one is conscripted in the civil or armed services, except in war, so everyone who joins should be willing to accept that some Charter protections are not available to them.

There is no rational, acceptable reason why anyone, including any journalist, should ever have any classified information.  All unauthorized people, including all journalists, found in possession of such classified information should be tried summarily and locked away, for 14 years, period.

I’m glad I’m not a lawyer!  ;D

 

[Edward Campbell]

I just listened to O’Neil’s lawyer (CBC radio) saying, roughly: “Parliament needs to revise this law so that it goes after the ‘leaker’ not the reporter.”

I think he's wrong.  'We' (our agents, anyway) need to go after, to find, try, convict and then punish both.

I think parliament must protect the secrets from all unauthorized people – including foreign agents, terrorists and journalists.

If the secret matters then Juliet O’Neil should be in jail, even though the RCMP abused the legal process.  Since she is not it appears to me to mean that Judge Ratushny has decided that the information was not classified or the information was classified but the abuse of process is a greater threat to our national security than the leaking of information to a civilian with no right to have it.  With all respect I contend that the judge has no duty, much less the knowledge to make that judgement.

O’Neil’s lawyer explained that the current Act is a direct, largely unchanged lift from the old (circa 1940) Official Secrets Act  which, in his ill-informed opinion, is not valid in the 21st century.  More rubbish.  Official Secrets matter in war – they did in World War II and they do, again, in this World War.  Nothing substantial has changed so the Act need not change either - in my ill-informed opinion.  But I understand D9's admonition that we must re-read our laws in light of the Charter and the SCC's interpretation of it.

I respect the judge’s right to send a message to parliament saying: "rethink this law, it doesn’t pass my smell test."  Maybe (probably certainly) the Act can be ‘tightened’ but in doing so parliament must ignore O’Neil’s lawyer’s advice.  They must protect the secret, not unauthorized rumour mongers.

If parliament believes the law as written is correct then it needs to signal back: “F__k off, judge; rude message follows!”  There are two ways to do this:

• Appeal this decision; and

• If necessary, use the notwithstanding clause.

And yes, I appreciate that no one- especially not anyone qualified in these matters – has read the decision, yet.  I’m just venting because I’m bloody annoyed and I believe that secrets are waaaay more important than journalistic ‘freedom.’

I accept that the RCMP abused the process – their chiefs, uniformed and political (that’s you, Stockwell Day!) need to answer for that – not just to O’Neil for bending the law to her disadvantage but to all Canadians for not doing their job right, the first time.

 

[Cloud Cover]

Notwithstanding clause won't be used, so forget that.

The Oakes test is a load of justice crapola, unless you're the accused. One really has to question the ethics of our judiciary when they let the legal test developed as a method to get a 2 bit pot smoker from London, Ontario out of jail also be used to defend weakening the security of the state. The test is supposed to take into account policy considerations and less intrusive means. As far as I know we don't officially hang traitors anymore so the threat of a jail sentence is the only less intrusive method left to keep things secret. Maybe we should resort to unofficial remedies. There is no honour system in the land that can replace that threat.

 

[armyvern]

I think that the secrecy law is fine as it is.

I think that anyone who leaks classified documents etc needs to be punished to the fullest extent of the law.

I also believe that any journalist who obtains "their story" from classified documents that they have been provided with also needs to be punished to the fullest extent of the law. After all, they are further perpetuating the release of the classified information to those who have no "need to know."

I especially believe this to be the case when the journalist writes their story and freely admits in it that the information comes from classified or secret sources.

Now, when there has been an abuse of the statutes by law enforcement etc, I also believe that they should be punished for that to fullest extent of the law.

 

[George Wallace]

I think that the secrecy law is fine as it is.

I think that anyone who leaks classified documents etc needs to be punished to the fullest extent of the law.

I also believe that any journalist who obtains "their story" from classified documents that they have been provided with also needs to be punished to the fullest extent of the law. After all, they are further perpetuating the release of the classified information to those who have no "need to know."

I especially believe this to be the case when the journalist writes their story and freely admits in it that the information comes from classified or secret sources.

Now, when there has been an abuse of the statutes by law enforcement etc, I also believe that they should be punished for that to fullest extent of the law.

Well, if we equate it to the same thing as 'stolen property', then the Journalist is just as guilty as the person who stole it.  Knowingly being in possession of stolen property is still a crime, is it not?

 

[armyvern]

Well, if we equate it to the same thing as 'stolen property', then the Journalist is just as guilty as the person who stole it.  Knowingly being in possession of stolen property is still a crime, is it not?

One would most certainly hope so.

 

[Cloud Cover]

Yeah, George and Armyvern- so if someone intentionally or inadvertently posts classified material on this website, knowing that it will be exposed for a few minutes before the information gets yanked by a Mod and deleted to archive or placed in hidden storage - is that a leak and then knowingly in possession by army.ca? Yeesh.

I think there is a duty to refrain from using or further disclosing the information and to not retain any copies in tangible or accessible format but only when there is actual knowledge or at least a reaonable suspicion as to what it is. This is the line the reporter crossed, and she needs her ass severely kicked for it. She knew exactly what she had, and now she's a frickin' hero to the press.

Whiskey601