Findin Holes in Canada's 'Anti-Terror' Law

Public interest defence way around anti-terror law provisions for media, lawyer argues

Don Butler
CanWest News Service


Friday, August 25, 2006


OTTAWA - A federal lawyer presented a ''modest proposal'' Thursday that he said ensures a contentious section of the federal anti-terrorism law remains well within constitutional bounds, arguing that a public interest defence would limit the scope of the section.

Section 4 of the Security of Information Act makes it a criminal offence, punishable by up to 14 years in prison, to give, receive or possess a wide range of ''official secret'' government information and documents.

But Justice Department lawyer Robert Frater proposed that the section's scope is effectively limited by two things - the federal Access to Information Act, and a public interest defence that he argued is available in common law.

The RCMP used Section 4 to obtain search warrants authorizing raids on the home and office of Ottawa Citizen journalist Juliet O'Neill in January 2004 after she wrote a story about Maher Arar based in part on leaked government documents.

Lawyers for the paper and others have argued this week in Ontario Superior Court that the section is so vague and broad that it should be struck down for violating Charter of Rights guarantees of freedom of expression.

He told Judge Lynn Ratushny that the 1983 access act, which provides a right of public access to government documents unless they are specifically exempted, ''fundamentally improved our understanding of what could be given out and what could be withheld.''

It affects the Security of Information Act, he argued, ''because it is a relevant indicator of what secret official information is. Does the access act help me know if I'm entering a zone of risk? I say, of course it does.''

Frater also said Thursday that those who release or distribute secret official information can escape criminal conviction if they can convince a court they were acting in the public interest.

Section 4 is silent on public interest as a defence, but Frater said both Parliament and the Supreme Court have accepted public interest defences in other criminal laws.

Ratushny, he suggested, could reasonably read a public interest defence into Section 4.

''There's nothing illegitimate in considering, as a matter of principle, whether that defence exists.''

The media's main concern, he said, is that government officials might unreasonably withhold authorization to release information of pressing public interest.

''To the extent that we need a safeguard in this statute, it's against that possibility - that authorization will be unreasonably withheld. If you have a public interest defence, it alleviates that concern.''

Such a defence, along with the option of seeking judicial review, he argued, ''ensures a check on government power that is responsive to free speech concerns.''

Though Section 4 forms part of the federal anti-terrorism law, Frater said its main purpose is to deter "the unauthorized release of secret official government information.

''It's about the breach of trust essential to the relationship between the government and its employees.''

In a factum filed with the court, Frater said deterrence of leaking underlies Section 4's criminalization of receipt and retention of secret information.

As well, he said, criminalizing receipt and retention ''is consistent with general criminal law practice that focuses on transactions Parliament wishes to deter. Thus the thief and the fence, the drug trafficker and the possessor, the prostitute and the john, are all liable to prosecution to attempt to stop the conduct in question.''

In the event Ratushny strikes down all or part of Section 4, Frater asked the declaration of invalidity be suspended for one year to permit Parliament to amend the section. A parliamentary committee is currently studying the section, and is expected to report in late December.

If the search warrants authorizing the raids on O'Neill are quashed, Frater also asked Ratushny to hold property seized during the raids for 30 days to allow the government to apply for a new search warrant under different authority.

That, declared Ottawa Citizen lawyer David Paciocco, ''is the most audacious submission I've ever heard.''

Ottawa Citizen

© CanWest News Service 2006