I’m (quite clearly!) not a lawyer so I deal with
opinions rather than legalities.
Here, reproduced under the Fair Dealings provisions of the Copyright Act, is the
opinion of the
Globe and Mail’s editorial board, from today’s (20 Oct 06) editorial page:
http://www.theglobeandmail.com/servlet/story/LAC.20061020.EPRESS20/TPStory/Opinion/editorials
The RCMP's press raid was an indefensible act
You can't do that kind of thing in Canada. Two winters ago, the RCMP raided the home of Ottawa Citizen reporter Juliet O'Neill, looking for secret documents. Yesterday, a judge said the RCMP had been trying to intimidate Ms. O'Neill into giving out the source of a government leak of classified information. This attempt at intimidation -- which failed -- was an abuse of RCMP powers, offended "the public's sense of decency and fairness" and undermined "the integrity of the judicial process," Madam Justice Lynn Ratushny of Ontario Superior Court concluded yesterday.
It was a red-letter day for press freedom, a freedom inseparable from the right to know held by every Canadian. "Given the importance of the freedom of expression and the press in our democracy, this is conduct that has caused great prejudice to those freedoms," Judge Ratushny wrote. She also struck down three sections of Ottawa's government-secrets law because they offended the constitutional right to free speech. And she affirmed the media's right to seek, obtain and possess some government secrets.
The RCMP, in defending its conduct, and the federal government, in defending its secrecy law, did not have a leg to stand on. Then-prime-minister Paul Martin suggested as much at the time of the raid, when he felt moved to say Canada is "not a police state." It only appeared that way.
The government did not claim that the secrecy law was meant solely to protect national security. Its purpose was to protect the government's right to hold on to whatever information it deemed to be none of the public's business. While the law was passed after Sept. 11, 2001, to keep terrorists from getting hold of information they might use to plan attacks, its offending provisions had roots dating to 1889, and made it a crime -- punishable by up to 14 years in jail -- to possess or report on information the government deemed "official," "secret official" or not "authorized." The potential chill on reporting the news is obvious.
But wait, said the Canadian government. Reporters could use the access-to-information law to obtain documents that they were otherwise denied.
That sounds more like Zimbabwe or Iran than Canada. Unless reporters proceed through the right channels, wait months and accept large no-go areas, they might find themselves in jail for 14 years. As the judge pointed out, the government position was oblivious to how Canadian democracy works. "It is accepted that it is an everyday occurrence for government information to be informally communicated, whether characterized as 'leaks' or not, by government officials to members of the public and particularly to the press."
It's a nice coda to the Arar affair. Canadian Maher Arar was deported by the United States to Syria, where he was detained for a year and tortured. The government leak to Ms. O'Neill was intended to discredit Mr. Arar. The RCMP raid on her home backfired spectacularly; it created so much political pressure that Mr. Martin called a judicial inquiry into Canada's role in the deportation. Mr. Arar was ultimately exonerated, the RCMP were shown to have acted foolishly, and now press freedom has been strengthened.
Thank goodness, in retrospect, for the raid. It allowed Canada to demonstrate that it is not a police state, after all.
Not surprisingly, I have
some issues with the
Good Grey Globe’s opinion.
First, however: I am in broad agreement with the need to have a ‘free’ press – one unfettered by government oversight and censorship. I, like most Canadians, have neither the time nor the resources to attend parliament and the legislature and city hall and the UN Security Council every day and night and find out what politicians and officials are doing to me and for me. I depend upon journalists to tell me what is happening in the world, my country, my province and my community.
Second: I have no doubt that Judge Ratushny’s finding that the Royal Canadian Mounted Police acted in an improper, indeed reprehensible manner is well founded. The leadership of the RCMP and that of the government-of-
that-day must be held to account – publicly. Canadians need, we are entitled to have trust in the judicious conduct of the politician in charge of the RCMP (Solicitor General, later Minister of Public Safety) and of the forces, including the RCMP, that politician controls on our behalf. If, as
I believe Judge Ratushny correctly concludes, the RCMP’s actions were injudicious and improper then both that force and its political master or mistress,
at the time and now, must be held to account.
But: the
Globe and Mail says the Judge Ratushny
”… affirmed the media's right to seek, obtain and possess some government secrets.” If that is true then Judge Ratushny’s decision must be overturned, by whatever means necessary, because no person – not even a journalist, has any ‘right’ to possess any government secrets, unless properly authorized by the government.
Journalists are not, by and large, authorized to possess secret information. Those who, without such authorization, do possess such information must be found, arrested, tried, convicted and punished.
This brings up an important point.
I believe,
based on my personal observations (many years old, now) that governments do over-classify information; political
operators managed, some years ago, to classify embarrassing information which,
in my professional opinion, had no reason to be classified or even
protected except that it might expose a minister or a political
operator to ridicule, or worse, for their silly and, perhaps, even improper actions or inactions.
I believe the same thing still goes on.
There is,
I think, a pressing need to reform the way material is classified or protected. Specifically
official secrets – described in the
current Act (just struck down) as
“any secret official code word, password, sketch, plan, model, article, note, document or information” need to be redefined. DND used to have a definition related to why information was to be classified as CONFIDENTIAL, SECRET and so on which I think gave good guidance as to what information must be classified and, equally, therefore, what
must not be classified.
There is a separate problem for which information is
protected and why (cabinet confidentiality, commercial confidence, personal privacy etc).
In my opinion, the two ought not to be mixed, even though both may end up being
official secrets.
In the (necessary) redrafting of the Security of Information Act the government must preserve the essentials:
• It is an offence for
any unauthorized person to possess
any classified or protected information;
• It is,
ipso facto an offence for an authorized person to
communicate any classified or protected information to any unauthorized person; and
• It is an offence – a very, very serious offence – for
any person, even one with a very high security clearance, to possess any information which (s)he is nor specifically authorized to possess. Just because you have a TOP SECRET clearance does not mean that you can look at
any TOP SECRET information. There is a
need to know principle which needs to be enforced by regulation and law.
There is also a need to find ways to prevent people from abusing the classification/protection system to hide information which can be made public, even if it embarrasses the minister or political aids. This will be hard to accomplish but politicians owe it to citizens to manage.
