Ontario Superior Court Strikes Down Security of Information Act Provisions

Justice Lynn Ratushny issued a landmark decision for free press rights on October 19, 2006. In O'Neill v. Canada (Attorney General), she declared certain provisions of Canada's Security of Information Act (SOIA) unconstitutional and quashed search warrants executed at the home and office of Ottawa Citizen reporter Juliet O'Neill.

The search warrants, which were executed by RCMP on January 21, 2004, allege that Ms. O'Neill committed a criminal offence under section 4 of the Security of Information Act by receiving and retaining “secret official” information published in an Ottawa Citizen article on November 8, 2003. Ms. O'Neill's article concerned Maher Arar, a Syrian-born Canadian citizen whom American authorities had arrested and deported to Syria in September 2002. The article reported information from a document leaked by security officials that recounted what Mr. Arar allegedly told Syrian officials about his connection to terrorist organizations while incarcerated in Syria.

The Ottawa Citizen and Ms. O'Neill brought an application to quash the warrants and for the return of the materials seized by the police, which were sealed by the court pending the determination of the validity of the warrants. The grounds for the application were that the communication, receipt and retention offences in section 4 of the SOIA are unconstitutionally vague and overbroad and infringe section 2(b) of the Charter; that the warrants were an abuse of process contrary to sections 7 and 2(b) of the Charter; and that there were no reasonable and probable grounds for their issuance contrary to section 8 of the Charter.

Justice Ratushny held that the impugned provisions of section 4 of the Security of Information Act are overbroad in achieving their purpose, which is to criminalize, and therefore deter and protect against the unauthorized release of government information that, if released, would harm the national interest. She concluded that there is no definition of the terms “secret official,” “official,” “lawful authority” or “authorized” in the impugned sections and no legal basis for construing these terms. As a result, the impugned sections give the State “the unfettered ability to arbitrarily protect whatever information it chooses to classify as “secret official” or “official” or “unauthorized for disclosure.”

Justice Ratushny also found the sections unconstitutionally vague because individuals cannot make a considered evaluation of whether their conduct is criminal or not, and law enforcement officials do not have adequate guidance in the exercise of their powers. She held that the sections contravene section 2(b) of the Charter and are not saved by section 1. The sections are not rationally connected to their purpose because they “arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression including freedom of the press,” and are not minimally impairing because they have the potential to criminalize a wide variety of conduct that should not be caught and therefore chill free expression. She declared the sections immediately of no force and effect and ordered the return of the seized items.

Justice Ratushy held that the warrants were an abuse of process because the allegations of criminality against Ms. O'Neill were used by the RCMP to gain access to Ms. O'Neill for the purpose of “intimidating her into compromising her constitutional right of freedom of the press, namely to reveal her confidential source or sources of the prohibited information.”

She found that “the spectre of law enforcement officials being able, by virtue of the leakage provisions of the SOIA, to threaten criminal charges so as to uncover a reporter's confidential source and thereby effect a “chill,” even unintended, on the right of freedom of expression and of the press…undermines the integrity of the judicial process.” She concluded that the abuse of process justified quashing the warrants, a return of the things seized, and an order as to costs.

Justice Ratushny rejected the applicants' argument that the issuing justice did not have reasonable and probable grounds to issue the search warrants. She distinguished Ms. O'Neill's case from other media searches on the basis that warrant documents implicated Ms. O'Neill as having committed the receipt and retention offences under section 4 of the SOIA.

She held that the issuing justice was entitled to give privacy interests and freedom of the press interests substantially less weight on the balance scale because the evidence before him was that the press was the target with respect to alleged crimes committed by them, as opposed to an innocent third party. She noted that “[t]his brings into focus the harm caused by the decision of the RCMP to allege criminal offences against O'Neill as discussed above regarding the constitutional dangers of the impugned sections and the abuse of process that occurred.”

The ruling will not be appealed.

The Ottawa Citizen was represented by Richard Dearden and Wendy Wagner of Gowling Lafleur Henderson LLP and David Paciocco, of counsel at Edelson & Associates. The intervenor CCLA was represented by Stuart Svonkin of Torys LLP. The intervenor CBC was represented by Edith Cody-Rice. The Attorney General of Canada was represented by Rob Frayter, Marian Bryant and Steve White.