COMMENTS
COMMENTAIRES
Freedom of the Press and National Security
The Official Secrets Act’ and, to a lesser extent, the Criminal
Code provide serious penalties for persons who release confidential
information without authority. What is not generally appreciated is
that a journalist who publishes information that comes into his
hands is also subject to prosecution. The maximum sentence for
any breach of the Official Secrets Act is fourteen years,8 and although
the legislation has fallen into disuse in Canada (except in cases of
espionage), its application to the press needs to be discussed and
the alternatives examined.
While it is possible for the government to ignore the leakage of
documents in most cases, since the quantity of truly sensitive in-
formation is small in relation to the mass of classified material, a
confrontation between the press and government over a matter of
national security is bound to take place
In the United Kingdom a
parliamentary inquiry into the subject under the chairmanship of
Lord Franks (Franks Committee) was completed in 19731 and the
question has also been much debated in the United StatesY
The Criminal Code
While the Criminal Code includes the ancient “offences against
treason (s.46), sabotage (s.52), inciting to mutiny
public order” –
1R.S.C. 1970, c.O-3.
2 R.S.C. 1970, c.C-34, sA6(1) (e).
3 Supra, f.n.1, s.15(1).
4 Robertson, Official Responsibility, Private Conscience and Public Infor-
mation (Proceedings of the Royal Society of Canada, June 6, 1972).
5 Departmental Committee on Section 2 of the Official Secrets Act, 1911
(1972) HMSO Cmnd. 5104. The report was tabled in the House of Commons
on June 29, 1973; see also Royal Commission on Security (1969) (Canada).
6 D. Dunn, Transmitting Information to the Press: Differences Among
Officials (1968) 28 Pub.Admin.Rev. 445; PJ. Buser, Newsmen’s Privilege:
Protection of Confidential Sources of Information Against Government Sub.
poena (1970) 15 St. Louis U. LJ. 181; Note, The Right of the Press to Gather
Information (1971) 71 Colum.L.Rev. 838; M.M. Shapiro, The Pentagon Papers
(U.S. Sup.
and the Courts (1972); N.Y. Times Co. v. U.S. 29 L.Ed. 2d 822 (1971)
Ct.).
19751
COMMENTS – COMMENTAIRES
(s.53) and sedition (ss.60-62) –
the mere communication of confi-
dential information to unauthorized persons is not an offence, except
under sections 46(e) (treason) and 103 (breach of trust).
Section 46(e), which makes it an offence to communicate military
or scientific information to a foreign state, was enacted by the 1953-
54 revision of the Code. Since it covers the same ground as the
Official Secrets Act, its presence is hard to explain. However, the
penalty for a conviction under section 46(e) when a state of war
exists may be death or life imprisonment, while the maximum
sentence under the Official Secrets Act is fourteen years.
Section 103 makes it an offence for any official to commit fraud
or a breach of trust in connection with his office. However, one must
be an “official”, which is undefined. In one reported case, R. v.
Pruss,7 a helicopter pilot on contract to the Geological Survey of
Canada was charged with breach of trust for giving information
about mineral discoveries to a third party. He was acquitted in
Yukon Magistrates Court on the ground that he was not an official.
It should also be noted that a charge can be laid either for
conspiracy to commit treason (s.46(b)), or for conspiracy to commit
an indictable offence under the Official Secrets Act pursuant to the
general conspiracy section of the Criminal Code (s.408).
The Official Secrets Act
The Canadian Official Secrets Act, 19398 is a carbon copy of the
British statute of 1911. 9 It has been amended three times –
once
in 195010 to increase the penalties to a maximum of 14 years, again
in 196711 to dovetail with the language of the Canadian Forces Re-
organization Act’ 2 and again in the Protection of Privacy Act 2a –
but its language remains that of the British Parliamentary drafts-
man on the eve of World War I.
7 [1966] 3 C.C.C. 315.
8 S.C. 1939, c.49.
9 The Official Secrets Act, 1911, 1 & 2 Geo. 5, c28 (U.K.).
10 R.S.C. 1952, c.198, s.15.
31 S.C. 1966-67, c.96, Schedule B.
12 S.C. 1966-67, c.96.
32a S.C. 1973-74, c.50, s.6. The effect of this change amends the Official
Secrets Act by adding s.16, which in effect provides that the wiretapping
sections of the Criminal Code, Part IV.1, do not apply to interceptions made
necessary for the prevention of subversive activities which are authorized
by warrant by the Solicitor-General.
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[Vol. 21
The British Official Secrets Act came into being as a result of a
series of scandals that occurred in the 1870’s and 1880’s. The most
notorious of these involved Charles Marvin, a temporary clerk at
the Foreign Office, who gave details of a secret Anglo-Russian treaty
to the press in 1878. Marvin was charged with theft (of the paper on
which he had copied the document!) under the Larceny Act of 1861,
and the Attorney-General was unable to secure a conviction. In 1887
the press published the text of certain instructions of the Intelligence
Department of the Royal Navy and the same year a dockyard drafts-
man obtained and sold confidential tracings of warships. 13 Following
these incidents, the Official Secrets Act was enacted in 1889.’
A stronger version of the statute passed the Commons in 1911 in
one day at a time when Parliament was preoccupied with the Agadir
crisis. It contained a section (s.2 of the British Act, s.4 of the
Canadian Act) which made it an offence for any person to commu-
nicate or receive official information without authority. The section,
which clearly applied to the press, received no public attention in
1911.15
The Canadian Official Secrets Act prohibits the communication
of information to a foreign power (s.3) or to unauthorized persons
(s.4). The marginal notes describe section 3 as “spying” and section 4
as “wrongful communication of information”.
Section 3 prohibits the copying or communicating of information
which might be useful to a foreign power “for any purpose pre-
judicial to the safety or interests of the State”. This section is directed
against passing information to agents of a foreign power, and it is
difficult to see how a journalist who is not engaged in espionage
could be prosecuted under its provisions. The section also prohibits
the “approaching, inspection, entering or being in the neighbour-
hood of a prohibited place” and it was pursuant to the equivalent
provision in the British Act that the members of the “Committee of
100” were successfully prosecuted for staging a “sit-in” at Wethers-
field Airfield on December 9, 1961. In this case, Chandler v. DPP,’0
section 3 was held to include all acts of sabotage, notwithstanding
13 This account is based on the history of the Act which appears in Appendix
II of the Franks Committee, supra, f.n.5. An excellent history and study of the
whole question is Williams, Not in the Public Interest (1965), 15-115.
14 52-53 Victoria, c.52 (U.K.).
15 Franks Committee, supra, f~n.15, 122-3. An earlier bill introduced in 1908
had contained a clause prohibiting publication of unauthorized information,
but this was not proceeded upon due to criticism. In 1911 the press was
preoccupied with other concerns and apparently did not appreciate what had
happened.
16 [1964) A.C. 763,
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COMMENTS – COMMENTAIRES
that the purpose of such acts was to cause interference with the
operation of defence installations for a moral purpose. Lord Devlin
stated, however, that the purpose “prejudicial to the State” was
a matter for the jury to determine, not a question to be concluded
by the opinion of the Crown.’1
Of far greater significance to the journalist and the errant civil
servant is section 4(1), which makes it an offence to communicate to
any person “any secret official code word, or pass word, or any
sketch, plan, model, article, note, document, or information” that
(1) relates to, or is used in, a “prohibited place”;
(2) has been obtained in contravention of the Official Secrets
Act;
(3) “has been entrusted in confidence to him by any person
holding office under Her Majesty”;
(4) has been obtained by a person, while subject to the Code
of Service Discipline within the meaning of the National
Defence Act;
(5) has been obtained by a person owing to his position as a
person who holds or has held office under Her Majesty;
(6) has been obtained by a person who holds a contract on
behalf of Her Majesty, or a contract the performance of
which is carried on in a prohibited place or is or has been
employed by such person.
Having regard to the fact that the phrase “secret official code
word” is a special term of art, one can conclude that all official
information, whether classified or not, is covered by the section.
Although it has been suggested that the Crown might have to prove
that the information in question was secret, this interpretation seems
scarcely arguable and is not supported by the British cases. For
example, in Rex v. Crisp and Homewood’8 a War Office clerk was con-
victed of passing information about contracts for the procurement of
officers’ uniforms to a firm of tailors. On appeal, Avory J. rejected
a submission that this kind of official information was not intended
to be covered by the Act. Police records, cabinet memoranda, probate
records (prior to the issuance of letters probate) and even state-
ments made by a convicted murderer to his warden have fallen under
the umbrella of the British Official Secrets Act.’9
171 Ibid., 806.
18 (1919) 83 J.P. 121 (Avory I.).
19See Franks Committee, supra, fmn.5, 116, for a review of the British
prosecutions; a more colourful account appears in Street, Freedom, Th,-
Individual and The Law 3d ed. (1972), 214-217.
McGILL LAW JOURNAL
[Vol. 21
The Act applies not only to persons who have received documents
in the course of their duties (such as public servants, military per-
sonnel and government contractors), but to all persons who have
possession of documents “made or obtained in contravention of the
Act” (s.4(1)), including third parties. The following uses, by anyone
improperly in possession of such official information, are offences:
(a) unauthorized communication to any person (4(1) (a));
(b) use for the benefit of a foreign power or in any other
manner prejudicial to the safety or interest of the State
(4(1)(b));
(c) retention, when it is contrary to his duty to retain it or
after being ordered to return it (4(1) (c));
(d) failure to take reasonable care of the article or information
(4(1)(d));
(e) receiving official information, knowing or having reasonable
grounds to believe that such information was obtained in
contravention of the Act (4(2)).
In spite of the extraordinarily broad language of section 4 there
have been few prosecutions. Thus, the statute does not appear to have
been used in Canada against the press or any third party who was
not directly involved in the theft or abstraction of the information.
In Britain, however, the Act has been used on several occasions
against the press. The most recent instance was a charge laid in
1971 against the editor of the Sunday Telegraph and other journalists
who had received, at third or fourth hand, and published a con-
fidential assessment of the Nigerian war written by an officer of
the British High Commission in Lagos.20 After a charge to the jury
which was sympathetic to the press, the journalists were acquitted –
an indication that the public, at any rate, was not inclined to put
journalists in jail for publishing official secrets.
It is unclear in the present state of the law whether it is necessary
to show mens rea, or a guilty mind, in the case of the offence of
“unauthorized publication” under section 4 . O Mens rea, however,
is unlikely to play much of a role since, unless there has been a
series of government-inspired leaks or trial balloons, an editor will
surely be deemed to appreciate that an official document which has
reached his desk has either been stolen or leaked.
2oUnreported, cited in the Franks Committee, supra, f.n.5, 15-16.
20a Mr Justice Caulfield in the Sunday Telegraph case thought it was, while
other justices have referred to the section as constituting an absolute offence:
iid,
19751
COMMENTS – COMMENTAIRES
The British Official Secrets Act, enacted in the atmosphere of
European instability in 1911 and 1939, provides little guidance to
the press, to civil servants or, indeed, to the Attorney-General. While
it has largely been ignored in Canada, the possibility of its applica-
tion to the press is always present, as is the threat of its use, which
could become an instrument of oppression. The Royal Commission
on Security2l reached the conclusion that the Act should be com-
pletely revised, an opinion shared by most academic critics. 22
The most effective comment on the provisions of section 4 (s.2
of the British Act) was made by the Franks Committee in its report
to Parliament:
We found section 2 a mess. Its scope is enormously wide. Any law which
impinges on the freedom of information in a democracy should be much
more tightly drawn. A catch-all provision is saved from absurdity in
operation only by the sparing exercise of the Attorney General’s discre-
tion to prosecute. Yet the very width of this discretion and the inevitably
selective way in which it is exercised, gave rise to considerable unease.
The drafting and interpretation of the section are obscure. People are
not sure what it means, or how it operates in practice, or what kinds of
action involve real risk of prosecution under it.p
Informal Sanctions
In security matters, where prevention is of the greatest im-
portance, one might expect that informal machinery would have been
established to give notice to third parties as to which matters are
considered by the government to be particularly sensitive. Some-
what surprisingly, informal peacetime machinery for consultation
between the press and departments of government
(e.g., those
concerned with defence and international relations) does not appear
to exist in Canada..
On the other hand, although Britain has traditionally enjoyed
the benefits of an aggressive sensational press, informal mechanisms
of consultation have been developed. Thus, the Press Council has re-
viewed complaints on breaches of confidence, although usually these
have been breaches of administrative secrets involving proceedings of
(Canada).
2 1 Royal Commission on Security (1969)
22 For the academic literature, see “The Right of Access and Government
Information Systems”, Vol. II, Report of the Task Force on Government
Information (1969), 25; Rowat, The Problem of Administrative Secrecy (1966)
Int’l. Rev. Ad. Sci. 99; Knight, Administrative Secrecy and Ministerial Re-
sponsibility (1966) 32 CanJ.Econ. & Pol. Sci. 77; Premont, Publicitd de Docu-
ments Officiels (1968) 11 Can. Pub. Ad. 449. The Task Force report makes
no recommendation on the subject.
23 Supra, f.n.5, 37.
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[Vol. 21
county councils, or of security by local officials and minor civil
servants. Press Councils exist in Ontario, Quebec, Alberta and
Saskatchewan, but there is no comparable organization at the
federal level in Canada.
Of greater interest is the existence in England since 1912 of the
Services, Press and Broadcasting Committee composed of eleven
representatives of the press and broadcasting, and representatives of
the Admiralty, the War Office, the Air Ministry, the Ministry of
Defence, and the Ministry of Aviation. The Committee, which has
no legal basis, is responsible for the promulgation of “D” notices
(initiated by a minister but approved by the Committee) which
inform the press of subjects regarded by the government to be of a
highly sensitive nature. A newspaper has the right to ignore a “D”
notice but on the whole they appear to be respected and provide a
useful method- of communication to avoid breaches of security.
From the briefs submitted to the Franks Committee it would
appear that the British press is generally satisfied with the liaison
engendered by the “D” notice system. In areas not covered by “D”
notices, doubt can be resolved by the Secretary of the Committee, to
whom news items can readily be referred and a speedy reaction
obtained. The Secretary is a senior government official who is
expected to be familiar with the background of each “D” notice.
It may be suggested that it is this informal consultation, rather than
the few formal “D” notices, that is of the greatest value. It should
be noted that in most cases “D” notices are confined to matters of
military and diplomatic security rather than administrative secrecy.
Conclusion
There is general agreement that insofar as third parties are
concerned, the Official Secrets Act is bad law. At worst, it is a
weapon in the hands of the executive with which to harass and
intimidate; at best, it is confusing and arbitrary.
Even the espionage provisions of section 3 are awkward and in
need of revision, as pointed out by the Royal Commission on Security.
In fact, Mr Justice Wells, in reporting on the case of George Victor
Spencer, who gave the Soviet Embassy mostly unclassified informa-
tion, expressed the view that Spencer could not be charged under
either section 46(e) of the Code or under the Official Secrets Act.24
24 Report of the Commission of Inquiry into the Complaints made by
George Victor Spencer (Hon. Mr Justice Dalton Wells, Commissioner, July
1966).
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COMMENTS – COMMENTAIRES
The Franks Committee came to the conclusion that section 2 of
the Official Secrets Act (our section 4) should be replaced by a new
statute which would apply to the communication or disclosure of
official information by civil servants. It would also apply to com-
munication of information by third parties, including the press, but
only in cases of mens rea or guilty knowledge. It was also recom-
mended that the offence of receiving official information be eliminat-
ed. These recommendations appear to be sensible and could be
applied in Canada. However, to continue to apply criminal sanctions
to the press for the publication of any “official information” would
hardly be a forward step in the present situation. What could be
done would be to restrict the criminal sanction to the communication
or publication of information which might affect national security.
It is of equal importance for government to indicate to the press
those subjects which it regards as affecting national security.
Whether this be done by a statement of general guidelines or by
informal consultation on specific questions, as in Britain, it is im-
portant that the government make clear to all concerned the cate-
gories of diplomatic and military information that must not be
disclosed.
Any attempt to restrict an editor’s freedom to publish documents
which do not affect the national security would meet resistance.
There is a public interest in keeping certain types of administrative
secrets confidential, but whether this extends to muzzling the press
once the information has been leaked is a question which requires
extensive public discussion. However, there are strong arguments in
favour of maintaining administrative secrecy over certain classes of
information, such as cabinet documents and similar state papers.
The real problem is to bridge the gap between an archaic statute
and the operation of the press in a democracy. Drifting along, with-
out any serious attempt to enforce the criminal law and without
significant communication between the press and government, brings
discredit to the law itself while failing to protect against leaks of
national security information. Yet one cannot be sanguine that there
will be any serious attempt at reform until the government is forced
to act by a confrontation of major proportions.
Brian A. Crane*
* Member of the Ontario Bar, with the firm of Gowling and Henderson,
Ottawa.
