Section 4 of Canada's Security and Information Act was impermissibly overbroad, says Stuart Svonkin in The Globe and Mail

October 20, 2006

In a landmark ruling yesterday, Judge Lynn Ratushny of the Ontario Superior Court struck down section 4 of Canada's Security and Information Act, which is part of the Anti-Terrorism Act, passed after the September 11 terror attacks.

The Court determined that the so-called anti-leakage provisions in the Act are unacceptably broad, vague and open to abuse by authorities who could use the law to chill diligent journalism. In this instance, the court found that the RCMP had tried to use the provision to pressure an Ottawa journalist into revealing who had leaked her material related to the Maher Arar affair. Under the Act, offenders faced a prison sentence of up to 14 years for providing, receiving or retaining secret information.

Stuart Svonkin, who intervened in the case on behalf of the Canadian Civil Liberties Association, commented on the decision and the constitutional infirmities of the anti-leakage provisions: "If somebody slides a brown paper envelope under your door, you are liable even if you didn't ask for it and didn't do anything with it."

The RCMP relied on section 4 of the Act in 2004 to seize documents from the home and office of Ottawa Citizen reporter Juliet O'Neill after she wrote an article in the newspaper that caused the RCMP to suspect that she had received leaked material.

Judge Ratushny ordered that the documents be returned. Judge Ratushny said that while she could hardly blame the RCMP for using provisions that were available, the warrants amounted to an abuse of process that resulted in an undermining of the integrity of the judicial process. She held that the legislation fails to define in any way the scope of the information that is protected as “secret” and/or “official,” and that it uses the most extreme form of government control to criminalize the conduct of those who communicate and receive government information that falls within its unlimited scope.

Judge Ratushny refused a Crown request to suspend the effect of her ruling for a year, saying that the standard secrecy provisions that civil servants are required to follow ought to be sufficient to protect government information.

RCMP and Justice Department officials did not say yesterday whether they will appeal the ruling.

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