Law used to justify raid on the Citizen

Despite a year of pledges, it is still "up in the air" whether Parliament will reconsider a controversial law on state secrets police used to raid the Citizen.

As the first anniversary of the Jan. 21 RCMP national security raids against the home and office of Citizen reporter Juliet O'Neill passed yesterday, it remained an open question whether Section 4 of the Security of Information Act will be included in an upcoming review of the contentious Anti-terrorism Act, created in the panicky weeks following the 2001 attacks against the United States.

Even with previous public assurances from Justice Minister Irwin Cotler and Public Security Minister Anne McLellan that the section would be reviewed by Parliament, "we haven't reached a consensus yet about the kind of things that the review is going to, in fact, cover," said Liberal MP Paul Zed, chairman of the Commons justice subcommittee on public safety and national security.

At the justice department, meanwhile, the question of what will happen with Section 4 "is still up in the air," said spokesman Mark Feldbauer. "There's a commitment to review that section. Where and when that review happens is yet to be determined."

The Canadian Newspaper Association reacted angrily. "It's not acceptable for press freedom to be up in the air," said Anne Kothawala, association president and CEO.

"The deputy prime minister and justice minister both promised a review and if Parliament is not going to review this medieval law today in the context of the anti-terrorism review, then when? This is a law that turns the craft of journalism into a criminal offence."

Section 4 makes it a crime to disclose or have unauthorized possession of information the government deems sensitive and safeguarded. It was used by the RCMP to secure search warrants against the Citizen and Ms. O'Neill after she wrote a Nov. 8, 2003 front-page story about the RCMP investigation of Maher Arar, the Canadian citizen detained by U.S. authorities at a New York airport in September 2002 and accused of being a terrorist.

Police said the raids were part of a criminal investigation to identify a source who allegedly leaked classified documents to Ms. O'Neill from Canada's security dossier on Mr. Arar, whom U.S authorities deported to his native Syria, where he was jailed for a year without charges.

When the Anti-terrorism Act became law in December, 2001, the government took the opportunity to replace the antiquated Official Secrets Act of 1939, which many people believed was unworkable in an age of Charter rights and global terrorism. It was updated and renamed the Security of Information Act.

In Ms. O'Neill's case, police allege she "did obtain a secret document or information and neglected to restore it to the person or authority by whom or for whom or whose use it was issued, or to a police constable." Contravention carries a maximum 14-year prison term. Ms. O'Neill has not been charged.

Many Canadians, including federal politicians, quickly condemned the raids as police state tactics. Even Prime Minister Paul Martin suggested it was wrong for police to target the journalist. "... What is of interest, should be of interest to everyone, is who leaked the information, not the journalist that received it," he told reporters soon after the raids.

Citizen editor-in-chief Scott Anderson also wrote to the prime minister demanding the government not consent to any prosecution of Ms. O'Neill, that police make public their specific reasons for the raids and that they return all materials seized during the searches.

Ms. McLellan responded five days later, announcing a public inquiry into the actions of Canadian officials in the Arar affair and said Mr. Cotler would ask Parliament to review Section 4.

"We felt it was time, in light of everything that has happened, because nobody has looked at that section in decades," she said.

Mr. Cotler added that the section would be probed "with a view to modernizing that legislation and clarifying it and addressing the issues of public security on the one hand and the protection of fundamental rights of Canadians on the other, including in particular freedom of the press." (He made a similar pledge again in August at a meeting of the Canadian Bar Association.)

A day later, lawyers for the newspaper and Ms. O'Neill launched a legal challenge to have the police search warrants declared in violation of the constitutional guarantees of a free press and freedom of expression.

Their first step was to ask the Ontario Superior Court to revoke earlier court orders sealing the RCMP's detailed reasons for the raids. In November, the court ruled that the sealing orders violated the constitutional guarantees of a free press, freedom of expression and the public's right to an open court system. Much of the previously secret information has now been released. The legal challenge is about to move into another phase and the case is expected to continue for months and possibly years.

On the political front, the newspaper vows not to let the matter rest until Section 4 is reviewed by Parliament.

"If the government doesn't follow through on this promise, a promise they made to the Canadian public, it's a sham," Mr. Anderson said yesterday.

"We've spent more than $250,000 so far defending Juliet O'Neill and the Citizen against this outrageous legislation and no ordinary citizen could afford that. We're sticking to it because of principle and we're not going to rest until Section 4 is reviewed."

Added Ms. Kothawala: "Canadians need to be reminded that the raid on Juliet O'Neill's home and office turned the clock back on democracy and sent a chill through newsrooms of the nation. It's time to reassure Canadians that we can fight terror without becoming a totalitarian state."

Subcommittee chairman Paul Zed said he personally supports a review of Section 4 and "wouldn't be surprised" if the full committee agrees, especially given the pledges of Mr. Cotler and Ms. McLellan.

"But it's my habit as a lawyer not to say anything definitive until I know what the co-committee members are wanting to do."

He expects a decision soon after the House of Commons resumes in February. The mandatory three-year review of the Anti-terrorism Act should begin in late February or early March, he said. The committee has until December to make recommendations to the government.

© The Ottawa Citizen 2005