Interjurisdictional information sharing and national security: a constitutional and legislative analysis.

• Author: Shore, Jacques J.M.

This article analyzes whether there are constitutional arguments that help or hinder the flow of information between the different levels of government in Canada. The duty to share information is acutely important to the protection of Canadian citizens and the maintenance of public order, responsibilities that often overlap the federal and provincial competencies. This article concludes that the Canadian constitution and its unwritten principles, such as cooperative federalism, demonstrate support for interjurisdictional information sharing. The true weakness in information sharing can largely be found in institutional and cultural impediments. It is critical for federal and provincial government agencies to work past these impediments to share information, thus fulfilling their obligations to protect the public and maintain order.

Cet article examine les arguments constitutionals qui viennent en aide ou font obstacle aux echanges d'information entre les differents niveaux du gouvernement canadien. L'obligation de partage d'information est cruciale pour assurer la protection des citoyens canadiens et le maintien de l'ordre public, responsabilites qui chevauchent souvent les competences federales et provinciales. Cet article conclut que la constitution canadienne et ses principes non-ecrits, tel que le federalisme cooperatif, se montrent en faveur du partage d'information. La veritable faiblesse de ce partage d'information se trouve en grande partie au sein d'obstacles institutionnels et cultureis. II est primordial pour les agences gouvernementales federales et provinciales de travailler a combattre ces obstacles au partage d'information, pour ainsi remplir leurs obligations de protection des citoyens et de maintien de l'ordre.

Introduction I. The Constitutional Framework A. The Division of Powers B. Co-operative Federalism C. Conclusions on die Constitutional Framework II. Potential Impediments to Information Sharing A. Legislation 1. Federal Statutes Explicitly Encouraging Information Sharing 2. Federal Privacy Legislation and Information Sharing 3. The CSIS Act 4. Provincial Privacy and Policing Legislation B. Extra-Legal Impediments: Institutional and Cultural Barriers 1. The Air India Inquiry 2. Impediments Flowing from Overlapping Mandates 3. The Need-to-Know Principle 4. Lessons from Air India III. Information Sharing: A Moral Imperative? A. The Mosaic Effect and Preventing Harm B. The Moral Imperative Conclusions and Recommendations Introduction

A government's obligation to protect its citizens is one of its fundamental responsibilities and a source of its political legitimacy. (1) In order for this general duty to be discharged meaningfully in today's "increasingly complex and dangerous threat environment," (2) it is essential that government agencies share relevant information in a timely manner. Failure to do so brings disastrous consequences--this was the lesson of 9/11. (3) As the Auditor General notes, the importance of timely and accurate security intelligence "cannot be overstated". (4)

Canada's national security policy recognizes the importance of the best possible intelligence for the design, maintenance, and operation of security programs:

Intelligence is the foundation of our ability to take effective measures to provide for the security of Canada and Canadians. To manage risk effectively, we need the best possible information about threats we face and about the intentions, capabilities and activities of those who would do us harm. (5) The government also recognizes the need for co-operation and collaboration across jurisdictional boundaries. Indeed, following 9/11, the federal government was aware of information "stovepipes" among federal agencies and other levels of government that could prevent timely recognition of threats and hinder the effectiveness of responses. (6) As early as (2004), the Office of the Auditor General recognized that "co-operation and integration are important tools," and that government appeared to be "moving in the right direction" by making "efforts to more closely co-ordinate the collection of intelligence information and to encourage the exchange of information among analysts." (7) Unfortunately, there exist deficiencies and redundancies in how intelligence is managed across the government, attributable in large part to a lack of intergovernmental coordination. (8) Indeed, government actors from various jurisdictions continue to report that the inadequate dissemination of relevant information hinders their ability to appreciate and respond to security threats. Recent events, such as the 22 October 2014 shooting on Parliament Hill, have further highlighted the importance of information sharing among provincial and federal governments generally. (9)

This article examines the constitutional, statutory, and practical constraints that influence the flow of security information in Canada. Four key findings flow from our analysis. First, despite the ostensibly sharp division of powers set out in the Constitution Act, 1867, (10) the judicial interpretation of these powers and the accompanying constitutional principles are compatible with the fulsome and timely sharing of security information across jurisdictions. Second, contrary to a popular sentiment held by state agencies, (11) there are no significant legislative boundaries or privacy concerns impeding such exchanges. In fact, many pieces of legislation, including the federal Privacy Act, (12) support the practice. The true impediments to information sharing lie in a set of nebulous institutional cultural barriers between agencies which, ultimately, share the same goals. Accordingly, we argue that government has a fundamental moral obligation to share security information across jurisdictions.

1. The Constitutional Framework

   Canada does not have the advantage of being a unitary government, in which one agency (or a set of agencies) is responsible for all aspects of maintaining the country's security. This fundamental responsibility is shared between the federal and provincial legislatures. This Part considers the constitutional framework within which government agencies share information relevant to security threats, paying particular attention to the relevant heads of power and the principle of co-operative federalism. Ultimately, we conclude that the federal framework supports, rather than hinders, interjurisdictional information sharing.

   1. The Division of Powers

      The "rules of federalism" that allocate legislative powers between the federal and provincial governments are established in sections 91 and 92 of the Constitution Act, 1867. (13) The principle of federalism, in turn, recognizes the autonomy of the provinces, while providing the central government with exclusive jurisdiction over matters in which the provinces have a common interest. (14)

      It is well established that "national security" is predominantly a federal responsibility, flowing from either the residual "Peace, Order, and good Government" power under section 91 or the defence power under subsection 91(7). (15) Also relevant is Parliament's plenary jurisdiction to pass laws in relation to criminal law and criminal procedure under subsection 91(27).

      Pursuant to these powers, the federal government has established a security intelligence agency under the Canadian Security Intelligence Service Act, (16) and crafted a national security policy, Securing an Open Society, which identifies and addresses a number of "core national security interests." (17) Under the Security Offences Act, the Royal Canadian Mounted Police (RCMP) has the primary responsibility to investigate, prevent, and prosecute criminal activities relating to national security. (18)

      The term "national security", describes the sphere of activity in which the federal government has an overarching interest. The term has proven, however, to be somewhat nebulous, particularly because descriptions of "national security" in legislation and policy provide little direction as to its content. One commentator writes, "[T]he descriptions do little to define exactly when threats of the sort listed in the definitions constitute national security concerns. For example, when is a threat to the physical safety of Canadians a legitimate 'national security' concern rather than a regular policing matter?" (19)

      The corresponding provincial head of power is subsection 92(14), which assigns authority over "[t]he Administration of Justice in the Province." (20) The scope of subsection 92(14) has been interpreted very broadly, encompassing a variety of responsibilities relevant to public order and security. The most relevant provincial responsibility is the power to police, investigate, and prosecute offences under the Criminal Code. (21)

      Justice Dickson, concurring with the majority in Di Iorio v. Warden of the Montreal Jail (22Di Iorio), explained provincial responsibilities as follows:

      Since Confederation, the provincial departments of the Attorney General have in practice "administered justice" in the broadest sense, at great expense to the taxpayers, and irrespective of whether the laws being administered fell legislatively within the purview of provincial legislatures or the federal Parliament. This is reflected in the provision of police services and other enforcement agencies responsible to the provincial Attorneys General for the investigation, detection and control of crime within the respective provinces and in the maintenance of staffs for the prosecution of all types of infractions whether within the purview of provincial legislatures or the federal Parliament. (23) Justice Beetz, also writing in Di lorio, explained the historical basis for provincial authority:

      Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. It was contemplated by s. 91(27) of the British North America Act, 1867, that criminal law, substantive and...