COMMENT - What were the origins of Canada's first secrecy law, the Official Secrecy Act?
Canada's early secrecy laws were an inheritance from Britain. In the 1870s and 1880s, a series of scandals in the UK gave impetus to a confidentiality law. The most series of these scandals concerned the leak by Charles Marvin, an employee in the Foreign Office, of details of a treaty between the United Kingdom and Russia. Marvin was charged with larceny - for theft of the paper itself on which this information was conveyed, not the information itself - and his case was dismissed.[1]
The government of the UK responded by passing its Official Secrets Act of 1889, which created offences for both "wrongfully obtaining information" and also the "breach of offical trust" in circumstances where information was communicated to a person to whom it was "not, in the interest of the State, or otherwise in the public interest." [Sic] This law applied to offences "committed in any part of Her Majesty's dominions."[2] That included Canada.
In 1892, when Canada consolidated its criminal laws for the first time in the Criminal Code, 1892. That law specifically held that "[n]o person shall be proceeded against for any offence against any Act of the Parliament [of the UK], unless such Act is, by the express terms thereof ... applicable to Canada or some portion thereof."[2.1] The UK laws applied to Canada.
In 1911, the UK strengthened this law following the Agadir Crisis between France, Germany, and the United Kingdom. The new law lowered the burdened for bringing prosecutions (e.g., more of the burden was placed on the accused -- "he may be convicted if, from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State"). The law also applied to "any part of His Majesty's dominion."[3]
In 1920, the UK's Official Secrets Act was amended, but those amendments specifically did not apply to Canada. The amendments allowed for the interception of "telegraphic cable or wire, or any apparatus for wireless telegraphy, used for the sending or receipt of telegrams to or from any place out of the United Kingdom." Among other things, it also criminalized disguise using a British military uniform. The law also created information collecting powers from those under suspicion ("It shall be the duty of every person to give on demand Duty of to a chief officer of police ... any information in his power relating to an offence or suspected offence under the principal [Official Secrets] Act or this [amended] Act.")[4]
In 1938, MP Duncan Sandys, a Conservative and the son-in-law of Winston Churchill, made a parliamentary question in the House of Commons that raised question about the source of statistics he had received. Sandys was summoned before the Attorney General, who threatened to move against him with the Official Secrets Act.[4.1]
In 1939, Canada acted to bring the 1920 amendments to Canada. On April 12, 1939, Bill 92 was introduced in the House of Commons on April 12, 1939 by Minister of Justice and Attorney General of Canada Ernest Lapointe. As he noted: "The purpose of the bill is to consolidate two acts" - the Official Secrets Act of 1911 and the Official Secrets Act of 1920 - "and, by an act of the parliament of Canada, make them the law of this country."[5] On May 30, 1939, the bill had its second reading, at which point debate over amendments ensued.[6] The bill enjoyed multi-party support. Even MP A. A. Heaps of the CCF, a former leader of the Winnipeg General Strike, agreed that every honourable member would "approve of the principle embodied in the proposed legislation."[7] Following the discussion and debate, the bill was read for a third time and passed.[8] On June 3, 1939, the Governor General Assented to the bill.[9]
Parliament was subsequently prorogued, and would hardly sit over the next year, as the country fell into World War II on September 1, 1939.
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