Miscellaneous Offences

1992, c. 47, s. 80

29. Sections 6 to 15 of the Act are replaced by the following:

Approaching, entering, etc., a prohibited place

6. Every person commits an offence who, for any purpose prejudicial to the safety or interests of the State, approaches, inspects, passes over, is in the neighbourhood of or enters a prohibited place.

Interference

7. Every person commits an offence who, in the vicinity of a prohibited place, obstructs, knowingly misleads or otherwise interferes with or impedes a peace officer or a member of Her Majesty's forces engaged on guard, sentry, patrol or other similar duty in relation to the prohibited place.

Special Operational Information and Persons Permanently Bound to Secrecy

Definitions

8. (1) The following definitions apply in this section and sections 9 to 15.

``government contractor''
« adjudicatair e de marché public »

``government contractor'' means a person who has entered into a contract or arrangement with Her Majesty in right of Canada, a department, board or agency of the Government of Canada or a Crown corporation as defined in subsection 83(1) of the Financial Administration Act, and includes an employee of the person, a subcontractor of the person and an employee of the subcontractor.

``person permanently bound to secrecy''
« personne astreinte au secret à perpétuité »

``person permanently bound to secrecy'' means

      (a) a current or former member or employee of a security or intelligence agency; or

      (b) a person who has been personally served with a notice issued under subsection 10(1) in respect of the person or who has been informed, in accordance with regulations made under subsection 11(2), of the issuance of such a notice in respect of the person.

``security or intelligence agency''
« organisme de sécurité ou de renseignement »

``security or intelligence agency'' means any division, branch or office, or any of its parts, set out in the schedule.

``special operational information''
« renseigneme nts opérationnels spéciaux »

``special operational information'' means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred,

      (a) the identity of a person, agency, group, body or entity that 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;

      (b) the nature or content of plans of the Government of Canada for military operations in respect of a potential, imminent or present armed conflict;

      (c) 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, analyze, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means;

      (d) 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;

      (e) 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;

      (f) 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 in any of paragraphs (a) to (e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or

      (g) information or intelligence similar in nature to information or intelligence referred to in any of paragraphs (a) to (f) that is in relation to, or received from, a foreign entity or terrorist group.

Deputy head

(2) For the purposes of subsections 10(1) and 15(5), the deputy head in respect of a person is

    (a) for an individual employed in a department named in Schedule I to the Financial Administration Act, the deputy head of the department;

    (b) for a member of the Canadian Armed Forces, the Chief of the Defence Staff;

    (c) for a member of the Royal Canadian Mounted Police, the Commissioner of the Royal Canadian Mounted Police;

    (d) for a member of the political staff of a Minister responsible for a department named in Schedule I to the Financial Administration Act, the deputy head of the department;

    (e) for a government contractor, the deputy head of the Department of Public Works and Government Services or any other deputy head appointed for the purpose by the Minister of Public Works and Government Services; and

    (f) for any other person, the Clerk of the Privy Council, or the lawful deputy of the Clerk of the Privy Council.

Amending schedule

9. The Governor in Council may, by order, amend the schedule by adding or deleting the name of any current or former department, board, agency or office, 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.

Designation - persons permanently bound to secrecy

10. (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 access to special operational information; and

    (b) it is in the interest of national security to designate the person.

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.

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;

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

    (e) a person appointed by the Governor in Council who performs any quasi-judicial powers or functions.

Service

11. (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.

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.

Certificate

12. (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.

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.

Purported communicatio n

13. (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.

Truthfulness of information

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

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.

Unauthorized communicatio n of special operational information

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

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.

Public interest defence

15. (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.

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.

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).

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.

Prior disclosure to authorities necessary

(5) If a person knows or has reasonable grounds to believe that the communication or confirmation of information will result in the disclosure of information that, if true, would be special operational information, the disclosure may be considered to be reasonably necessary for the purpose of paragraph (4)(a) only if

    (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,

      (i) the Security Intelligence Review Committee, 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, other than a person who is a member of the Communications Security Establishment, and he or she has not received a response from the Security Intelligence Review Committee within a reasonable time, or

      (ii) the Communications Security Establishment Commissioner, if the person's concern relates to an alleged offence that has been, is being or is about to be committed by a member of the Communications Security Establishment, in the purported performance of that person's duties and functions of service for, or on behalf of, the Communications Security Establishment, and he or she has not received a response from the Communications Security Establishment Commissioner within a reasonable time.

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.