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Order Amending the Schedule to the Security of Information ActStatutory authority Security Information Act Sponsoring department Department of Justice REGULATORY IMPACT (This statement is not part of the Order.) Description Purpose The Order Amending the Schedule to the Security of Information Act (the "Order") is in relation to persons permanently bound to secrecy. The Order proposes to add 14 entities of the Canadian security and intelligence community to the Schedule to the Security of Information Act, and amend one current listing on the Schedule. Background Part 2 of the Anti-terrorism Act, which came into force on December 24, 2001, amended the Official Secrets Act and changed its title to the Security of Information Act (the "Act"). Sections 8 to 15 of the Act created a special regime for those persons who have a privileged access to "special operational information." Defined by subsection 8(1) of the Act and amended by S.C. 2004, c. C-12, special operational information is a narrow band of information going to the essence of Canada's national security interests. It is the Government's most operationally-sensitive information. The Security of Information Act contains the offences of communicating and purportedly communicating special operational information that would apply only to persons permanently bound to secrecy, who would be, essentially, certain members or former members of the security and intelligence community. The issue When the Act was adopted in December 2001, Parliament included in the Schedule the key entities of the security and intelligence community. Subsequent consultations led by the Treasury Board of Canada Secretariat within the federal government have identified the utility and the appropriateness of adding other entities to the Schedule to the Act, given their privileged access to special operational information and the fact that their mandate is or was primarily related to security and intelligence matters. In addition, the recent restructuring of the federal government led to the creation of a new entity called upon to operate in security and intelligence matters, the Office of the National Security Advisor to the Prime Minister. Further, it has also been noted that one current listing should be amended to reduce its ambit. There have been no amendments to the Schedule to the Act since its adoption in 2001. The Order The Order adds to the Schedule to the Act 14 definable entities that have a mandate that is primarily related to security and intelligence matters: — Canadian Forces Crypto Support Unit of the Department of National Defence — Canadian Forces Information Operations Group of the Department of National Defence, excluding the Canadian Forces Information Operations Group — Headquarters Electronic Warfare Detachment, the Canadian Forces Network Operations Centre, the Canadian Forces Station Alert and the National Call Attendant Service — Canadian Security Intelligence Service Legal Services Unit (Department of Justice) — Communications Security Establishment Legal Services Unit (Department of Justice) — Deputy Commander, North American Aerospace Defence Command — Directorate of Information Management Security of the Department of National Defence — Foreign and Defence Policy Secretariat, Privy Council Office — Intelligence Assessment Secretariat of the Privy Council Office — J2 Director General of Intelligence of the Department of National Defence — National Security Directorate of the Department of the Solicitor General — National Security Group of the Department of Justice — Office of the National Security Advisor to the Prime Minister — Office of the Security and Intelligence Coordinator of the Privy Council Office — Security and Intelligence Secretariat of the Privy Council Office All of these entities should be added to the Schedule to improve the administration of the regime of sections 8 to 15 of the Act. Twelve of these 14 entities are currently in existence, while two are now dissolved: the Office of the Security and Intelligence Coordinator of the Privy Council Office and the National Security Directorate of the Department of the Solicitor General. It is still necessary to add these entities to the Schedule in order to permanently bind to secrecy the employees that worked there in the past since they had a privileged access to special operational information. In addition, the Order replaces "Technical Operations Program of the RCMP" in the Schedule to the Act by "Technical Operations Program of the RCMP, excluding the Air Services Branch." This amendment is necessary in order to exclude from the application of the special regime of sections 8 to 15 of the Act members and employees—former and current—of the Air Services Branch within the Technical Operations Program of the RCMP, as that Branch does not have a mandate that is primarily related to security and intelligence matters. Alternatives Status quo Maintaining the status quo is not desirable in this case. The 14 entities that the Order adds to the Schedule to the Act were carefully selected and great care has been taken to ensure that they have or had a mandate that is primarily related to security or intelligence matters. National security interests require that the former or current members or employees of those 14 entities are permanently bound to secrecy in order to strengthen the security and intelligence community's ability to ensure secrecy and protect information entrusted to them, and to improve the administration of the regime under the Act. Personal service of notices There is only one alternative that would make it possible to partially achieve the objectives of the Order. That alternative is set out in paragraph (b) of the definition of "person permanently bound to secrecy" in subsection 8(1) as well as in section 10 of the Act, which state 8. (1) "person permanently bound to secrecy" means (b) a person who has been personally served with a notice issued under subsection 10(1) in respect of the person or who has been informed, in accordance with regulations made under subsection 11(2), of the issuance of such a notice in respect of the person. 10. (1) The deputy head in respect of a person may, by notice in writing, designate the person to be a person permanently bound to secrecy if the deputy head is of the opinion that, by reason of the person's office, position, duties, contract or arrangement, (a) the person had, has or will have authorized access to special operational information; and (b) it is in the interest of national security to designate the person. ... Section 11 of the Act provides that a person in respect of whom a notice is issued under subsection 10(1) is permanently bound to secrecy as of the moment the person is personally served with the notice or is informed of the notice in accordance with the regulations (although no regulations have as yet been developed). Sections 8 to 11 of the Act ensure, in theory, that it is possible to bind permanently to secrecy the persons referred to in the Order by personally serving each of them with a written notice issued by their deputy head. The personal service of a notice designating a person to be bound permanently to secrecy for each of the former or current members or employees of those 14 entities would, however, require very considerable resources and would involve substantial costs. In addition, identifying, locating, and serving each former member and employee may prove to be an almost impossible task. Including an entity on the Schedule to the Act, therefore, facilitates the development of a more effective regime, offering more complete coverage, by ensuring that persons who had, have or will have authorized access to special operational information and who are former and current members of these identified entities will be bound permanently to secrecy. This measure is used in only with respect to entities whose mandates are or were primarily related to security and intelligence matters and whose members overwhelmingly merit this designation. Where only a limited and easily identifiable number of former or current members and employees work in the intelligence and national security fields, the departments and agencies proceed by individual designations. Benefits and Costs Benefits The Order is an effective and reliable method of permanently binding to secrecy the former or current members and employees of 14 entities of the public service of Canada (see footnote 1) that are clearly part of the intelligence and security community in Canada. The security and intelligence community has certain operational requirements that need to be fostered. These operational requirements include an ability to ensure secrecy and project to others that they have the ability to protect the information entrusted to them. The additions suggested in the Schedule to the Act increase the protection of vital information pertaining to Canada's safety whose communication would or could be harmful to our country. These additions would also improve the administration of the regime under the Act. The proposed measure only has an impact on a minute part of Canadian society, namely, the former or current members and employees of the 14 entities in question. Furthermore, the proposed measure complements the general scheme to which those members and employees are already subject under sections 4 to 7 of the Act. The proposed measures, while providing increased protection with respect to special operational information, do not drastically change the obligations to which the former or current employees and members in question are already subject. Also, replacing the reference "Technical Operations Program of the RCMP" in the Schedule to the Act by "Technical Operations Program of the RCMP, excluding the Air Services Branch," will remove the Air Services Branch from the Schedule, since it is not necessary or appropriate to include the current or former members of this Branch as persons permanently bound to secrecy. The addition of those 14 entities to the Schedule to the Act, and the exclusion of the Air Services Branch within the Technical Operations Program of the RCMP, do not entail special costs. Consultation Given the specificity of the proposed measure, consultations were held with the departments and agencies of the public service of Canada that have a mandate likely to be primarily related to security and intelligence matters. In early 2002, the Department of National Defence was the first to indicate a need to have some of its members and employees designated as persons permanently bound to secrecy. The Information and Security Policy Division of the Government Operations Sector of the Treasury Board Secretariat (the "Division") undertook to verify whether there was similar concern in other departments and agencies. Between February 2002 and March 2003, the Division held consultations with the following agencies of the public service of Canada: — Canada Customs and Revenue Agency; — Canadian Nuclear Safety Commission; — Citizenship and Immigration Canada; — Department of Foreign Affairs and International Trade; — Department of Justice; — Department of National Defence; — Department of the Solicitor General; — Financial Transactions and Reports Analysis Centre of Canada; — Industry Canada; — Natural Resources Canada; — Office of Critical Infrastructure Protection and Emergency Preparedness; — Privy Council Office; — Public Works and Government Services Canada; — Royal Canadian Mounted Police; — Safety, Emergency and Security Management Division of Health Canada; and — Transport Canada. The draft amendments to the Schedule to the Act were discussed in numerous meetings and bilateral consultations with representatives from the agencies and departments listed above. A number of other consultations also took place up to August 2004 between the Department of Justice and the various departments and agencies involved in this Order. The consultation held and the decisions made were based on the desire to add an entity to the Schedule to the Act only if it was strictly necessary. Where possible, the service of individual notices to the members and employees was preferred for permanently binding those persons to secrecy. All the organizations that this measure proposes to add to the Schedule to the Act are aware of the consequences of that addition and agree that it is the most appropriate way to protect the interests of national security. Although the creation of the Department of Public Safety and Emergency Preparedness has led to a reorganization of some of the agencies referred to above, previous consultations in which these former agencies participated have established the need, which persists to this day, to ensure that employees of these former agencies are bound permanently to secrecy. It should also be noted that the creation of the new department may reveal the need to add new entities to the Schedule to the Act at some point in the future. Any such addition will require a subsequent Order. Compliance and enforcement The new offences prescribed in section 13 et seq. of the Act create a specific accountability scheme with respect to persons permanently bound to secrecy. For example, section 13 prescribes an offence—punishable by imprisonment for a term of not more than five years—for every such person who, "intentionally and without authority, communicates or confirms information that, if it were true, would be special operational information." That offence therefore creates a "purported communication" offence for which it does not matter whether the information communicated is true or not. Under section 14, the unauthorized communication of special operational information by a person permanently bound to secrecy is punishable by imprisonment for a term of not more than 14 years. Section 26 prescribes certain situations where an offence against the Act committed outside Canada may be tried in Canada. Finally, it should be noted that no prosecution shall be commenced for an offence against the Act without the consent of the Attorney General of Canada, in accordance with section 24. That requirement will allow the Attorney General of Canada to ensure that there is sufficient evidence and determine the advisability of laying charges under the Act before such charges are laid. Anouk Desaulniers, Counsel, Criminal Law Policy Section, Department of Justice, East Memorial Building, 284 Wellington Street, Ottawa, Ontario, (613) 954-1658 (telephone), (613) 941-9310 (facsimile). Notice is hereby given that the Governor in Council, pursuant to section 9(see footnote a) of the Security of Information Act(see footnote b), proposes to make the annexed Order Amending the Schedule to the Security of Information Act. Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication, and be addressed to Anouk Desaulniers, Counsel, Justice Canada, Criminal Law Policy Section, 284 Wellington Street, Ottawa, Ontario K1A 0H8 telephone: (613) 954-1658, fax: (613) 954-9310. Ottawa, March 7, 2005 EILEEN BOYD ORDER AMENDING THE SCHEDULE TO THE SECURITY OF INFORMATION ACT AMENDMENTS 1. The reference to "Technical Operations Program of the R.C.M.P/Programme des opérations techniques de la GRC" in the schedule to the Security of Information Act (see footnote 2) is replaced by the following: Technical Operations Program of the R.C.M.P., excluding the Air Services Branch
2. The schedule to the Act is amended by adding the following in alphabetical order: Canadian Forces Crypto Support Unit of the Department of National Defence
Canadian Forces Information Operations Group of the Department of National
Defence, excluding the Canadian Forces Information Operations Group -
Headquarters Electronic Warfare Detachment, the Canadian Forces Network
Operations Centre, the Canadian Forces Station Alert and the National
Call Attendant Service Canadian Security Intelligence Service Legal Services Unit (Department of
Justice) Communications Security Establishment Legal Services Unit (Department of Justice)
Deputy Commander, North American Aerospace Defence Command Directorate of Information Management Security of the Department of National
Defence Foreign and Defence Policy Secretariat of the Privy Council Office Intelligence Assessment Secretariat of the Privy Council Office J2 Director General of Intelligence of the Department of National Defence
National Security Directorate of the Department of the Solicitor General National Security Group of the Department of Justice Office of the National Security Advisor to the Prime Minister Office of the Security and Intelligence Coordinator of the Privy Council Office
Security and Intelligence Secretariat of the Privy Council Office COMING INTO FORCE 3. This Order comes into force on the day on which it is registered. [11-1-o] Proposed amendments to the SOIA would replace the expression "public service of Canada" with the expression "federal public administration" in the following provisions: the definition "department" in subsection 8(1), paragraph (a) of the definition "person permanently bound to secrecy" in subsection 8(1) and sec-tion 9 of the Security Information Act. Please see http://laws.justice.gc.ca/en/O-5/notinforce.html. S.C. 2001, c. 41, s. 29 S.C. 2001, c. 41, s. 25 R.S., c. 0-5; S.C. 2001, c. 41, s. 25 |
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