Today, an extremely important media freedom case. Reporter Juliet O’Neill of the Ottawa Citizen has won her case against the RCMP in connection with its investigation into leaks involving the Arar case. In the process, Justice Lynn Ratushny also struck down the Security of Information Act that was used to justify RCMP raids on a journalist they suspected of having received leaked material in the Maher Arar affair.
Judge Ratushny said the police used “the spectre” of criminal charges to try to uncover her confidential sources and cast a chill over the entire media. In doing so, it effectively treated Ms. O’Neill as “one of its investigative arms,” and undermined the integrity of the judicial process. “The RCMP was entitled to enforce the Security of Information Act against O’Neill, but when it did, its purpose was an abuse. Given the importance of freedom of expression and the press in our democracy, this is conduct that has caused great prejudice to those freedoms.”
Judge Ratushny ordered that material seized from Ms. O’Neill be returned.
So-called anti-leakage provisions in the Security of Information Act are extremely vague, too broad and wide open to flagrant misuse. She said that they “endanger the life, liberty and security of the person” in direct violation of Section 7 of the Charter of Rights. Parliament rushed through the legislation used to provide the search warrants after the 9/11 hijackings as part of the omnibus anti-terrorism law.
“In their present state, the impugned sections give the state the ability to arbitrarily protect whatever information it chooses to classify as ‘secret official’ or ‘official’ or unauthorized for disclosure – and to punish by way of a criminal offence those ‘speakers,’ ‘receivers’ and ‘listeners’ who come within that protected sphere.
“This is legislation that fails to define in any way the scope of what it protects and then, using the most extreme form of government control, criminalizes the conduct of those who communicate and receive government information that falls within its unlimited scope including the conduct of government officials and members of the public and of the press.” “They have not been well-tailored to suit their purpose . . . they arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression, including freedom of the press,”
Judge Ratushny said that she was satisfied that the search warrants and accusations of criminality against Ms. O’Neill “were used to gain access to O’Neill for the purpose of intimidating her into compromising her constitutional right of freedom of the press – namely, to reveal her confidential source or sources of the prohibited information. The clear purpose of the investigation was to uncover the source of the unauthorized leak or leaks.”
The three provisions of the Security of Information Act struck down 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.