What kind of disclosure is protected?
The Act provides a “public interest defense” for persons permanently bound to secrecy under this Act who would be sued for having disclosed special operational information, or information that, if there were, would be special operation information s. 15(1) for the purpose of disclosing an offence under an Act of Parliament that they 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 s. 15(2)(a).
To assess this public interest s. 15(4), the Act requires to consider:
- 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;
- the seriousness of the alleged offence;
- 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;
- whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
- the public interest intended to be served by the disclosure;
- the extent of the harm or risk of harm created by the disclosure; and
- the existence of exigent circumstances justifying the disclosure.
Under the Act, a person permanently bound to secrecy s. 8(1) includes current and former members or employee of a department, division, branch or office of the federal public administration, or any of its parts, set out in the schedule of the Act, of the National Security and Intelligence Review Agency, and of the National Security and Intelligence Committee of Parliamentarians, as well as individuals who have been personally served with a notice issued under s. 10(1) of the Act.
Under the Act, a special operational information s. 8(1) means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred,
- the identity of a person, agency, group, body or entity that was, is or is intended to be, has been approached to be, or has offered or agreed to be, a confidential source of information, intelligence or assistance to the Government of Canada;
- the nature or content of plans of the Government of Canada for military operations in respect of a potential, imminent or present armed conflict;
- the means that the Government of Canada used, uses or intends to use, or is capable of using, to covertly collect or obtain, or to decipher, assess, analyse, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means;
- whether a place, person, agency, group, body or entity was, is or is intended to be the object of a covert investigation, or a covert collection of information or intelligence, by the Government of Canada;
- the identity of any person who is, has been or is intended to be covertly engaged in an information- or intelligence-collection activity or program of the Government of Canada that is covert in nature;
- the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to above, including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or
- information or intelligence similar in nature to information or intelligence referred to in any of paragraphs above that is in relation to, or received from, a foreign entity or terrorist group
Who is eligible for protection?
To be protected, prior to any disclosure, the person must, before communicating or confirming the information, bring their concern to, and provide all relevant information in their possession to, his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada.
Should they not receive a response within a reasonable time, the person must bring his or her concern to and provided all relevant information in their 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.
Exception: Direct disclosure to the public
It is not necessary to first disclose to authorities, if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.