Canada Gazette, Part I, Volume 147, Number 23: Order Amending the Schedule to the Security of Information Act

June 8, 2013

Statutory authority

Security of Information Act

Sponsoring department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

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 (see footnote 1) (the 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 such individuals to secrecy. First, section 10 permits the naming 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 naming 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 pre-publication in Part Ⅰ of the CanadaGazette of an Order Amending the Schedule to the Security of Information Act (see footnote 2) on March 12, 2005 (2005 Order).

The proposed 2005 Order recommended adding the following 14 entities to the Schedule:

• Canadian Forces Crypto Support Unit of the Department of National Defence
• Canadian Forces Information Operations Group of the Department of National Defence, excluding the Canadian Forces Information Operations Group — Headquarters Electronic Warfare Detachment, the Canadian Forces Network Operations Centre, the Canadian Forces Station Alert and the National Call Attendant Service
• Canadian Security Intelligence Service Legal Services Unit (Department of Justice)
• Communications Security Establishment Legal Services Unit (Department of Justice)
• Deputy Commander, North American Aerospace Defence Command
• Directorate of Information Management Security of the Department of National Defence
• Foreign and Defence Policy Secretariat, Privy Council Office
• Intelligence Assessment Secretariat of the Privy Council Office
• J2 Director General of Intelligence of the Department of National Defence
• National Security Directorate of the Department of the Solicitor General
• National Security Group of the Department of Justice
• 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

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; and
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.

Issues and objectives

Amendments to the Schedule are necessary to protect Canada's national security interests and the Government's most operationally sensitive information. Furthermore, the proposed Order would provide additional assurances to Canada's international partners and allies that special operational information shared with Canada will be protected.

The proposed 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.”

Description

The proposed Order would modify the scope of two current entities and delete one other entity from the Schedule. The proposed amendments would also add to the Schedule the following 11 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 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

Nine of these 11 entities are currently in existence, while 2 are now dissolved:

• Office of the Inspector General of the Canadian Security Intelligence Service
• Office of the Security and Intelligence Coordinator of the Privy Council Office

It is still necessary to include these entities on the Schedule in order to permanently bind to secrecy the employees who worked in these entities in the past since they had a privileged access to special operational information.

Consultation

Consultations and changes to the Order following prepublication in 2005

Between 2009 and 2012, extensive consultations were conducted within all departments and agencies affected by the proposed amendments to the Schedule to the Act, resulting in the following modifications to the 2005 Order:

1. Three new entities have been added to the initial 14 entities listed in the 2005 Order:

   • 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

2. Six entities that had been included in the 2005 Order have been removed:

   • Canadian Forces Crypto Support Unit of the Department of National Defence
   • Canadian Forces Information Operations Group of the Department of National Defence, excluding the Canadian Forces Information Operations Group — Headquarters Electronic Warfare Detachment, the Canadian Forces Network Operations Centre, the Canadian Forces Station Alert and the National Call Attendant Service
   • Deputy Commander of the North American Aerospace Defence Command
   • Directorate of Information Management Security of the Department of National Defence
   • J2 Director General of Intelligence of the Department of National Defence
   • National Security Directorate (NSD) of the Department of the Solicitor General

The NSD is no longer included in the proposed Order because the Department of Public Safety wishes to proceed by way of individual designations. The five entities that belong to the Canadian Forces have been removed because the Canadian Forces are not a part of the federal public administration. Therefore, Canadian Forces entities cannot be added to the Schedule pursuant to section 9 of the Act.

Rationale

The 11 entities that the proposed Order would add to the Schedule to the Act were carefully selected. National security interests require that the current or former members or employees of those 11 entities be permanently bound to secrecy in order to increase the protection of vital information pertaining to Canada's security, strengthen the security and intelligence community's ability to ensure secrecy and protect information entrusted to them, and to improve the administration of the regime under the Act.

In addition, the Order would clarify 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 to the Communications Security Establishment, which was transferred to the Department of National Defence in 1975. This amendment would prevent 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 would replace “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 amendment 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 would delete 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 proposed Order, and that is to serve a personal notice to each current or former member or employee of the 11 entities to designate them as a “person permanently bound to secrecy.”

The personal service of such a notice would, however, require very 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 contact information of the former members or employees. The proposed Order is an effective and reliable method of permanently binding to secrecy the current or former members or employees of 11 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 proposed Order would enable 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 proposed designation does not involve personal information and, therefore, would not encroach on the privacy interests of the affected individuals. The Order also would not create a conflict with the Public Servants Disclosure Protection Act (PSDPA), (see footnote 3) 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 4) 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

Douglas Breithaupt
Director and General Counsel
Criminal Law Policy Section
Department of Justice
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-4743
Fax: 613-957-3738

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 9 (see footnote a) of the Security of Information Act (see footnote b), proposes to make the annexed Order Amending the Schedule to the Security of Information Act.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8 (tel.: 613-957-4743; fax: 613-957-3738).

Ottawa, May 30, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT

AMENDMENTS

1. The schedule to the Security of Information Act (see footnote 5) 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 1^er 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 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.

[23-1-o]