Public Interest Defence
The Security of Information Act prohibits anyone permanently bound to secrecy* from communicating or confirming special operational information, which may include information about the activities the Communications Security Establishment (CSE) lawfully undertakes.
The Act also assigns specific duties to the CSE Commissioner in the event that an individual who would otherwise be bound by secrecy seeks to defend his or her actions in releasing classified information about CSE on the grounds that it is in the public interest. This is known as the 'public interest defence' provision of the Act.
An individual would not be found guilty of an offence under this part of the Act if that person could establish that he or she acted in the public interest when communicating or confirming special operational information. The Act states that a person acts in the public interest if the person's purpose is to disclose "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." The public interest in disclosure of the information must outweigh the public interest in non-disclosure.
If an individual is charged with violating this part of the Security of Information Act, a judge or court can consider a public interest defence only if the individual followed a series of steps set out in the legislation before disclosing the special operational information. The first step is to bring concerns to the attention of the institution's deputy head or the Deputy Attorney General of Canada. If the individual does not receive a response from the deputy head or Deputy Attorney General on matters related to CSE within a reasonable time, he or she must then bring the concern to the CSE Commissioner and must allow a reasonable time for the Commissioner to respond.
Failure to follow these steps precludes that person from claiming that his/her disclosure was in the public interest.
* Employees of organizations listed in the Schedule of the Security of Information Act, including the CSE, are automatically covered by the Act.
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