Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

Security of Information Act (R.S.C., 1985, c. O-5)

Act current to 2020-06-17 and last amended on 2019-07-12. Previous Versions

Offences (continued)

Special Operational Information and Persons Permanently Bound to Secrecy (continued)

Marginal note:Amending schedule

 The Governor in Council may, by order, amend the schedule by adding or deleting the name of any current or former department, division, branch or office of the federal public administration, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to security and intelligence matters, or by modifying any name set out in the schedule.

  • R.S., 1985, c. O-5, s. 9
  • 2001, c. 41, s. 29
  • 2003, c. 22, s. 224(E)

Marginal note:Designation — persons permanently bound to secrecy

  •  (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.

  • Marginal note:Contents

    (2) The notice must

    • (a) specify the name of the person in respect of whom it is issued;

    • (b) specify the office held, position occupied or duties performed by the person or the contract or arrangement in respect of which the person is a government contractor, as the case may be, that led to the designation; and

    • (c) state that the person named in the notice is a person permanently bound to secrecy for the purposes of sections 13 and 14.

  • Marginal note:Exceptions

    (3) The following persons may not be designated as persons permanently bound to secrecy, but they continue as such if they were persons permanently bound to secrecy before becoming persons referred to in this subsection:

    • (a) the Governor General;

    • (b) the lieutenant governor of a province;

    • (c) a judge receiving a salary under the Judges Act; and

    • (d) a military judge within the meaning of subsection 2(1) of the National Defence Act.

  • R.S., 1985, c. O-5, s. 10
  • 2001, c. 41, s. 29

Marginal note:Service

  •  (1) Subject to subsection (2), a person in respect of whom a notice is issued under subsection 10(1) is a person permanently bound to secrecy as of the moment the person is personally served with the notice or informed of the notice in accordance with the regulations.

  • Marginal note:Regulations

    (2) The Governor in Council may make regulations respecting the personal service of notices issued under subsection 10(1) and regulations respecting personal notification of the issuance of a notice under that subsection when personal service is not practical.

  • R.S., 1985, c. O-5, s. 11
  • 2001, c. 41, s. 29

Marginal note:Certificate

  •  (1) Subject to subsection (2), a certificate purporting to have been issued by or under the authority of a Minister of the Crown in right of Canada stating that a person is a person permanently bound to secrecy shall be received and is admissible in evidence in any proceedings for an offence under section 13 or 14, without proof of the signature or authority of the Minister appearing to have signed it, and, in the absence of evidence to the contrary, is proof of the fact so stated.

  • Marginal note:Disclosure of certificate

    (2) The certificate may be received in evidence only if the party intending to produce it has, before the trial, served on the party against whom it is intended to be produced reasonable notice of that intention, together with a duplicate of the certificate.

  • R.S., 1985, c. O-5, s. 12
  • 2001, c. 41, s. 29

Marginal note:Purported communication

  •  (1) Every person permanently bound to secrecy commits an offence who, intentionally and without authority, communicates or confirms information that, if it were true, would be special operational information.

  • Marginal note:Truthfulness of information

    (2) For the purpose of subsection (1), it is not relevant whether the information to which the offence relates is true.

  • Marginal note:Punishment

    (3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years less a day.

  • R.S., 1985, c. O-5, s. 13
  • 2001, c. 41, s. 29

Marginal note:Unauthorized communication of special operational information

  •  (1) Every person permanently bound to secrecy commits an offence who, intentionally and without authority, communicates or confirms special operational information.

  • Marginal note:Punishment

    (2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years.

  • R.S., 1985, c. O-5, s. 14
  • 2001, c. 41, s. 29

Marginal note:Public interest defence

  •  (1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.

  • Marginal note:Acting in the public interest

    (2) Subject to subsection (4), a person acts in the public interest if

    • (a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and

    • (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

  • Marginal note:Paragraph (2)(a) to be considered first

    (3) In determining whether a person acts in the public interest, a judge or court shall determine whether the condition in paragraph (2)(a) is satisfied before considering paragraph (2)(b).

  • Marginal note:Factors to be considered

    (4) In deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure, a judge or court must consider

    • (a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;

    • (b) the seriousness of the alleged offence;

    • (c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;

    • (d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;

    • (e) the public interest intended to be served by the disclosure;

    • (f) the extent of the harm or risk of harm created by the disclosure; and

    • (g) the existence of exigent circumstances justifying the disclosure.

  • Marginal note:Prior disclosure to authorities necessary

    (5) A judge or court may decide whether the public interest in the disclosure outweighs the public interest in non-disclosure only if the person has complied with the following:

    • (a) the person has, before communicating or confirming the information, brought his or her concern to, and provided all relevant information in his or her possession to, his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada; and

    • (b) the person has, if he or she has not received a response from the deputy head or the Deputy Attorney General of Canada, as the case may be, within a reasonable time, brought his or her concern to and provided all relevant information in the person’s possession to the National Security and Intelligence Review Agency, if the person’s concern relates to an alleged offence that has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions of service for, or on behalf of, the Government of Canada and he or she has not received a response from that Agency within a reasonable time.

  • Marginal note:Exigent circumstances

    (6) Subsection (5) does not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.

  • R.S., 1985, c. O-5, s. 15
  • 1992, c. 47, s. 80
  • 2001, c. 41, s. 29
  • 2019, c. 13, s. 36
 
Date modified: