Canada.com

19 October 2006 

OTTAWA - An Ontario judge has struck down key portions of Canada's national secrecy law, tossed out RCMP warrants used to search a reporter's home, and delivered yet another stinging rebuke to the Mounties over the Maher Arar affair.

Justice Lynn Ratushny of Ontario Superior Court, in a ruling Thursday, quashed three sections of the so-called leakage provisions of the Security of Information Act, passed following the 9-11 terrorist attacks on the United States.

The provisions were used by the RCMP on a frosty morning in January 2004 to search the home and office of Ottawa Citizen reporter Juliet O'Neill, in an attempt to find the source of leaked information about the Arar case that had embarrassed the force.

The sections of the law that were struck down were drawn directly from the decades-old Official Secrets Act, long criticized as archaic and poorly drafted. They dealt with communicating, receiving and failing to return official information.

Ratushny said all three provisions were unconstitutionally vague and overly broad, violating the principle of fundamental justice enshrined in the Charter of Rights.

The judge also ruled the sections contravened the constitutional guarantee of a free press.

"They have not been well-tailored to suit their purpose," she wrote. "They arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression, including freedom of the press."

Ratushny slammed the RCMP for what she called an abuse of the legal process in threatening to lay charges against O'Neill - when the primary aim of the investigation was actually to find out whether someone within the force had leaked information to her about the Arar affair.

The Mounties saw O'Neill as an "easy target," wrote the judge.

They went after her with the aim of "intimidating her into compromising her constitutional right of freedom of the press" and hoped she would reveal her confidential source.

Justice Minister Vic Toews, who was critical of the secrecy law as an opposition MP, said he hadn't read the judgment and wouldn't comment on whether the government would appeal.

"I'll wait to see what the departmental lawyers tell me," he said.

David Paciocco, a lawyer for O'Neill, called the judgment "a powerful reaffirmation of how central the role of the media is in protecting democracy. This is also an ultimate vindication of Ms. O'Neill."

The veteran reporter was overwhelmed by the decision.

"I almost fainted," she said. "I've been waiting for this - I feel like I've been holding my breath for 2 1/2 years . . . and when I saw we won, I thought, 'I get to exhale now.' "

O'Neill said she wouldn't feel completely relieved until all potential appeals have been exhausted.

"But you can imagine how thrilling this is. It's been a lot of pressure and stress for quite a long time."

David Asper, executive vice president of CanWest Global Communications Corp, which owns the Citizen, lauded the courts for being the "last line of defense against the abuse of state authority" and praised the decision as a victory for the rule of law.

"The brute force of the state met its match," he said in a written statement.

Citizen editor Scott Anderson said all Canadians "benefit from striking down this overbroad and vague section of law that gives police more power than they need or, as they proved in this case, deserve."

Squads of Mounties combed through O'Neill's Ottawa home and newspaper office in search of information related to Arar, an Ottawa telecommunications engineer.

Arar, who had come under RCMP scrutiny during an anti-terrorism probe, was detained at a New York airport in 2002.

He spent months behind bars in Damascus after being deported to his Syrian birthplace by U.S. authorities.

While imprisoned, he was tortured into false confessions about links to Osama bin Laden's al-Qaida network. He returned to Canada in October 2003.

In the weeks following publication of a Nov. 8, 2003, story by O'Neill, the RCMP launched a criminal probe of an information leak.

The story had cited a "security source" and a document offering details of what Arar allegedly told his Syrian captors.

Justice Dennis O'Connor, who conducted an inquiry into the Arar affair, has cited the O'Neill story as one example of a series of troubling media leaks in the case.

He said it appeared that someone - he couldn't say who - had put out misleading information to damage Arar's reputation by insinuating there was credible evidence to label him a terrorist.

RCMP Commissioner Giuliano Zaccardelli tried to deflect criticism of the force last month by telling a parliamentary committee the Mounties were trying to find out who was responsible.

But he noted the investigation had been "held up" by the O'Neill court case and expressed hope that it could resume once that matter was resolved.

"We are committed to getting to the bottom of this, if we possibly can," said Zaccardelli.

Ratushny's ruling, taking the force to task for the way it went about the investigation, may have scuttled the commissioner's hope.

The judge not only quashed the search warrants but ordered that all the papers, notebooks, contact listings and computer files seized from O'Neill should be returned to her. The material had been under court-ordered seal pending a decision on the constitutional issues raised by the case.

The RCMP declined to comment on the ruling Thursday.

O'Neill said she remains wary.

"They've already suggested in the courtroom that they're going to keep going after me, even if they lose this case," she said.

"So I will be relieved when I hear the justice minister say there's no need to keep pressuring a reporter on this."