Security of Information Act (And the Clarity of Legislative Information)

Given the recent news about the arrest of Sub-Lieutenant Jeffrey Paul Delisle, Slaw readers may want to visit the Security of Information Act (SOIA) under which he has been charged, according to reports. Government officials and the RCMP have refused to identify the section of the legislation involved, however.

I say “visit” the Act in part because it is a nearly indigestible tangle, a true failure, perhaps, of the draftsperson’s art. This lack of clarity, which could be seen as a sympathetic reflection of the espionage world I suppose, has been the subject of judicial criticism. Readers may recall O’Neill v. Canada, the 2006 case of the Ottawa reporter who had documents pertaining to Maher Arar removed from her home pursuant to search warrants obtained on the basis of s.4 of SOIA, an older section in this much-updated “palimpsest” of a statute, in part dating back it seems to 1889. O’Neill challenged the validity of the warrants and, in so doing, the validity under the Charter of section 4(1)(a), 4(3) and 4(4)(b). Justice Ratushny of the Ontario Superior Court found these “inelegant” sections did in fact violate sections 7 and 2(b) of the Charter, being both overbroad and vague; neither was saved by s.1.

Though the heart of s.4 has been found unconstitutional, it remains in the legislation; I suspect however that Delisle will be charged under another section.

I’ll reproduce s.4(1)(a) and (b) here, so you can see the sort of drafting I’m talking about:

    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;

    (b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety or interests of the State;

The more modern sections, introduced in 2001 after the attack on the World Trade Center, are better written, I’m glad to say. Though their number and the breadth of the definitions of some critical terms — “Prejudice to the safety or interest of the State” in s.3, for example — make for difficult analysis.

I don’t know about you, but when I’m confronted with a new chunk of complicated legislation and need to get some understanding of it, I begin to chart it out, typically re-doing the order in which modern drafting practice dictates things be laid out. I wonder whether it wouldn’t be possible and desirable to have each act accompanied by one or more flow charts as a guide from the framers and possessing the same lack of authority as the helpful side notes now used in legislation. I suppose that in this day and age I should be asking for a computer program that could do this charting automatically; but I’d settle for a graphic layout of what the draftspeople had in mind.

(This may not be such a wacky idea. More than a decade ago a graphic designer, David Berman, proposed to a Justice Canada pilot project that Canada move “Toward a New Format for Canadian Legislation: Using graphic design principles and methods to improve public access to the law” [PDF]. Our ability to manipulate information has come a long way since 2000; it may be time for a later version of this proposal.)

Comments

  1. David Collier-Brown

    This one is an argument for Stanford’s (possibly tongue-in-cheek) conversion of statutes to computer programs, discussed here at
    http://www.slaw.ca/2011/04/18/law-might-be-code/

    I fear that the compiler would say “does not compute”, though.

    –dave

  2. Simon’s note says this: “Though the heart of s.4 has been found unconstitutional, it remains in the legislation.” It remains because a court ruling that a provision is unconstitutional does not amend the legislation, and the statute books, printed or online, state the legislation as it is. They do not function as a ‘statute citator’ that give the case law interpreting it. Commercial services are available for that purpose (and very useful they can be, too.)

    The government gets letters from time to time asking why an ‘invalid’ provision is still on the books, and that’s the answer. In due course the statute should be amended to conform with the ruling, but there are lots of reasons that drive a legislative agenda, and clearing out debris is only one of them.

    But yes, the people who lay charges should be keeping track for their own purposes, and charges laid under a provision that has been invalidated will not have a long life, unless there is an intention to appeal through to a higher court than the one that proclaime the invalidity before.