Principled Secrets in an Age of Terror: International Obligations and the Canadian Experience with the Principle of Presumed Access

• Author: David M. Paciocco
• Pages: 261-326

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Principled Secrets in an Age of Terror:

International Obligations and the

Canadian Experience with the Principle

of Presumed Access

David M. Paciocco

A. INTRODUCTION

It is hackneyed to describe “information as power” only because that

observation is true enough to bear so much repetition. It is true in life

generally and it is true in matters of government. If governors have

unlimited control over information, they have power to abuse public

trust, to err, and to be left unaccountable to those who are governed.

Still, as important as access to information is, there will be times when

governments have to refuse to release information on national security

grounds. It is common to say it is all a matter of balance. Yet standing

alone that observation is empty. It takes on meaning only if principles

are identif‌ied for determining how that balancing is to be done. This

paper is about the fortunes of the key principle in attaining an appropri-

ate balance between access to information and its suppression—what

I will call the “principle of presumed access.” The principle of presumed

access is the simple but critical notion that, even in matters of national

security, governments are obliged to demonstrate that the suppression

they seek is truly necessary.

The case in favour of placing the burden on states to prove neces-

sity before suppressing information is an imposing one, built on the f‌irm

foundation of experience and history. It rests on the public ownership

david m. paciocco262

of government information, on the role that access plays in securing re-

sponsible government, and on the consequences that occur when access

to information is denied. It is also built around a long legacy of nations

abusing national security suppression. Even so, the case for imposing

the burden on the state depends on a realistic conception of what dem-

onstrated necessity entails. This requires an appreciation that national

security only exists if serious threats do not become consequences; its

stock in trade, therefore, is risk management. When we speak of “neces-

sity” in the national security context we are in the business of prediction

rather than certainty. “Necessity” cannot require foregone conclusions.

It can be built on real and reasoned risks that outweigh the benef‌its of

access or disclosure. Bearing this in mind, an examination of the con-

siderations that normally affect the assignment of burdens of proof gives

f‌irm support to the wisdom of putting the burden on those who would

suppress information rather than on those who seek it.

I am going to make the case in favour of this principle of presumed

access that I have described, even though readers can be forgiven for

thinking that it is a trite and obvious principle. I need to make that case

because, notwithstanding that the principle is a central tenet of the in-

f‌luential Johannesburg Principles on National Security, Freedom of Expres-

sion and Access to Information,1 its stature in international law is not as

secure as it deserves to be. In fact, even in my own country, Canada,

while the principle has received impressive protection in the courts, it is

not assured. While it has been adopted in our Access to Information Act,2

the prevailing view of those few courts that have addressed the issue is

that the principle of presumed access is not constitutionally required.

As a result, Canadian practice respecting the control of government

1 Commission on Human Rights, Johannesburg Principles on National Security, Free-

dom of Expression and Access to Information, UN ESCOR, 52d Sess., Item 8, Annex,

UN Doc. E/CN.4/1996/39 (1996) 28 [Johannesburg Principles]. These principles,

adopted by international experts at a conference in Johannesburg, South Africa,

have been endorsed by the UN Special Rapporteur on freedom of expression and

opinion, relied upon by the UN Commission on Human Rights, and cited by the

House of Lords in Secretary of State for the Home Department v. Rehman, [2003] 1

A.C. 153 at 181, Slynn L.J.: Craig Forcese, “Clouding Accountability: Canada’s Gov-

ernment Secrecy and National Security Law ‘Complex’” (2005) 36 Ottawa L. Rev.

49 at 65–66.

2 R.S.C. 1985, c. A-1.

principled secrets in an age of terror 263

information is uneven, a condition I will describe below. While there

have been many important victories, the principled foundation needed

to fully respect access to information has yet to be set.

The situation in Canada is unfortunate not only because it jeopard-

izes the proper balance between access to information and national se-

curity in my own country, but also because of the example Canada’s

practices provide internationally. Canada has the potential to be a f‌itting

role model for access practices. It is a stable democracy committed to

the rule of law that has made constitutional commitments to liberty and

democracy in an instrument, our Canadian Charter of Rights and Free-

doms,3 which allows for the responsible protection of competing public

interests. Moreover, while we in C anada have not been scarred directly

by post-9/11 acts of terrorism, our closest allies have been and we have

been threatened directly. More importantly, we have endured more dis-

tant terrorist acts, both during the FLQ crisis4 and most signif‌icantly

with the Air India bombings.5 These experiences have made national

security a higher priority here than it is in many other states6 without,

at the same time, tincturing our judgment with the close emotion that

3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

1982, c. 11 [Charter].

4 Known in Canada as the “October Crisis,” the Front de Libération du Québec

(FLQ), a domestic organization seeking independence for the Province of Quebec,

kidnapped a British diplomat, James Richard Cross, and a minister in the Quebec

provincial government, Pierre Laporte in 1970. Mr. Laporte was murdered. The FLQ

was linked to a number of bombings.

5 In June of 1985 bombs were loaded onto two Air India f‌lights in Vancouver by

Sikh extremists. CP Air 003 landed safely at Japan’s Narita Airport but a bomb in

a suitcase set for transfer to an Air India f‌light exploded shortly afterwards, killing

two baggage handlers and injuring four more. Air India Flight 182 was downed by

the other bomb on June 23, killing all three hundred and twenty-nine persons on

board. A judicial inquiry, being conducted by retired Supreme Court of Canada

Justice John Major, relating to the investigation and ultimate acquittal of two of

the primary suspects, is underway in Canada.

6 It has been observed, for example, that Latin American and Caribbean countries

have been less active in limiting access to information based on security con-

cerns post-9/11 than the United States, Canada, and many European countries:

Kati Suominen, “Access to Information in Latin America and the Caribbean: An

Overview” in Access to Information in the Americas (Washington: Inter-American

Dialogue, 2002) 18 at 19–20, online: http://thedialogue.org/PublicationFiles/

Access%20Report.pdf.