Section 4 Security of Information Act (SOIA)

Background

In December 2001, the Anti-terrorism Act (ATA) substantially amended the Official Secrets Act, and created the Security of Information Act (SOIA). The amendments introduced by the SOIA focused on information-related conduct harmful to, or likely to harm, Canada.

Section 4 of the SOIA was essentially unchanged by the ATA, which specifically focused on terrorist and foreign threats to Canadian security, and on provisions to meet those threats. The ATA did not address the unauthorized disclosure of government information in general, as contained in the original section 4 of the Official Secrets Act.

Section 4 deals with the wrongful communication, use, reception, retention and failure to take reasonable care of sensitive government information. It applies to persons in Canada, including public servants and government contractors, whether present or former, as well as to other individuals.

In February 2005, the House Subcommittee on Public Safety and National Security adopted a motion to expand the mandate of the Committee to include a study of section 4 of the SOIA.

Following the January 2006 general election, the House of Commons Subcommittee on the Review of the Anti-terrorism Act was set up to continue the ongoing review of the ATA. An examination of section 4 of the SOIA again forms part of the mandate of the House of Commons Subcommittee, which is expected to report by December 22, 2006. The Special Senate Committee on the Anti-terrorism Act is also conducting a review of the ATA and related issues. It, too, is expected to report by December 22, 2006.

On October 19, 2006 the Ontario Superior Court of Justice ruled that sections 4(1)(a), 4(3) and 4(4)(b) of the SOIA were unconstitutional as they violated sections 7 and 2(b) of the Canadian Charter of Rights and Freedoms. Section 4(1)(a) makes it an offence to communicate, unlawfully, secret or official information to persons not authorized to receive the information. The companion sections 4(3) and 4(4) (b) create offences for unlawfully receiving secret information and for transmitting secret information to someone not authorized to receive it.

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Department of Justice
November, 2006