Secrecy

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 377-433

CHAPTER 10

SECRECY

Few credible observers would deny that there are secrets states must

keep in safeguarding the security of their cit izens. However, as Ch apter

1 demonstrates, national security is an imprecise concept. As a conse-

quence, it has been used in the past in many different states “to suppress

prec isely t he kind s of speec h that p rovide pr otection a gainst governm ent

abuse,” includi ng damage to the envi ronment, corruption, wa sting of

public assets and other forms of wrongdoing by government off‌icials.1

National security should not be used to cloak governments from

criticism or accountability. As David Paciocco has argued:

while nat ional se curity typically prese nts its elf as a justif‌ication for

secrecy, there is an increas ed need for openness when a govern ment

is attempt ing to deal with a security th reat. … [R]esponding to se-

curity threats incre ases the risk of abuse. … This is particul arly so

where states choose to us e the criminal law to achieve securit y. The

power of the state is being used against indiv iduals, and court s are

called upon to make profoundly political decisions about t he reach

of government power.2

1 Sandra Coliver, “Comment ary on The Johannesburg Principle s on National Secur-

ity, Freedom of Expression and A ccess to Information,” in Sandra Coliver et al.,

eds., Secrecy and Liber ty: National Security, Freedom of Expressi on and Access to

Informat ion (The Hague: Mar tinus Nijhoff Publishers, 1999) at 12–13.

2 David Paciocco, “When O pen Courts Meet Closed Gover nment” (2005) 29 Sup.

Ct. L. Rev. (2d) 385 at 396–97.

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NATIONAL SECUR ITY LAW378

There is merit, in other words, in opennes s, even on nat ional security

matters.

Indeed, some observers have even argued that transpa rency enhan-

ces, rather than prejudices, national security by increasing a f‌low of

information essential in the coordination of national sec urity efforts.

Alasdai r Roberts has urged that

an informed public can help policym akers to formulate better policy,

monitor the re adiness of nationa l secur ity bureaucrac ies and act in-

dependently to preserve secu rity. An information-rich envi ronment

is one in which citizens and frontl ine government employees are bet-

ter able to make sense of unfolding events and resp ond appropriately

to them. … In the ja rgon of the American militar y, a policy of trans-

parency ca n be a powerful “force multiplier,” which helps to bui ld a

state that is re silient as well as re spectful of citizen right s.3

From this perspective, national security matters should not be ex-

cluded, prima facie, f rom transparency laws. Instead, boundaries need

to be drawn between information whose disclosure truly prejudices

national security, and other, less problematic information. Deciding

where to draw this line i s tremendously diff‌icult.

In Can ada, how government b alances disclosure with secrecy is ul-

timately a legal issue. Several federal statutes limit citizen access to gov-

ernment information on national security grounds. The most notable of

these are the Access to Information Act,4 the Canada Evidence Act5 and the

Security of Information Act.6 However, a number of other, le ss info rmati on-

specialized statutes also include controls on government inform ation.

Speaking generally, Canadian secrecy laws can be divided into

three categories: laws limiting open government rules otherwise ap-

plicable to the executive branch; laws t hat constrain the open court

concept and disclosure rules ty pically applied by Canada’s courts; and,

statutes that criminalize the w rongful disclosure of particularly sensi-

tive information. This chapter ex amines each of these areas.

3 Alasda ir Roberts, “National Se curity and Open Govern ment” (Spring 2004) 9:2

Geo. Pub. Pol’y Rev. 69 at 82.

4 R.S.C. 1985, c. A-1 [Access Act].

5 R.S.C. 1985, c. C-5, s. 38 [CEA].

6 R.S.C. 1985, c. O-5 [SOIA].

Secrecy 379

PART I: OPEN GOVERNMENT

A. CONCEPT OF OPEN GOVERNMENT

Access to information is an essential attribute of democracy. As one

of the founders of t he United States, James Madi son noted, “a popular

government without popular information or the mean s of acquiring it

is but a prologue to a farce or a tragedy, or perhaps both. Knowledge

will forever govern ignorance; And the people who mean to be their

own Governors, must arm t hemselves with the power which know-

ledge gives.”7

Madison’s sentiment s were echoed repe atedly in disc ussions of what

would become t he United States Freedom of Information Act (FOIA),8

introduced in 1966. There, it was argued that “free people are, of neces-

sity, in formed; uninformed people can never be free.”9 In signing the

FOIA, President Johnson noted that “this legislation springs from one of

our most essential principles: A democracy works best when the people

have all the information that the security of the Nation permits. No one

should be able to pull curtains of secrecy around decisions which c an

be revealed without injury to the public interest.”10 In a 1978 decision

under the FOIA, the U.S. Supreme Court echoed this comment, noting

that “the basic purpose of FOIA is to ensure an informed citizenry, vital

to the f unctioning of a democratic society, needed to check against cor-

ruption and to hold the governors accountable to the governed.”11

Similar views were expre ssed in Canada dur ing discussions of fed-

eral in formation access laws. Pri me min ister Pier re Trudeau noted in

1975 that “democratic progress requires the ready availability of tr ue

7 Letter from Jame s Madison to W.T. Barry (4 August 1822) in S. Padover, ed., The

Complete Madison (New York: Har per, 1953) at 337, cited i n T. Mur ray Rankin,

Freedom of Information in Ca nada: Will the Doors Stay Shut? (Ottawa: Can adian

Bar Assoc iation, 1979) at 1 [Ran kin, Freedom of Information in Cana da].

8 Freedom of Information Ac t of 4 July 1966, Pub. L. No. 89-487, 80 Stat. 250 (5

U.S.C. § 552).

9 Freedom of Informat ion: Hearings on S. 1666 and S. 1663. Before the Subcom m.

on Admin. Pra ctice and Procedure of the Sen ate Comm. on the Judiciary, 88th

Cong. 3 (1964) (statement of Sen. Edward Long), cited i n Charles J. Wichmann

III, “Ridding FOIA of t hose ‘Unanticipated Con sequences’: Repaving a Neces-

sary Road to Fr eedom” (1998) 47 Duke L.J. 1213 at 1217.

10 Statement by the P resident Upon Signing Bill Re vising Public Inform ation Pro-

visions of t he Administrative Procedure Act, Weekly Comp. Pres. Doc. 895 (4 July

1966).

11 NLRB v. Robbin s Tire and Rubber Company, 437 U.S. 214 at 242, 57 L. Ed. 2 d 159

at 178 (1978).