Mr. Garson:

Now.

Mr. Knowles:

By leave.

Mr. Garson moved

the third reading of the bill.

Mr. Speaker:

Is it the pleasure of the

house to adopt the motion?

Mr. Knowles:

On division.

Motion agreed to on division and bill read the third time and passed.

Hon. Stuart S. Garson (Minister of Justice) moved

the second reading of Bill No. 309, to amend the Official Secrets Act.

He said: Mr. Speaker, the purpose of second reading is to discuss the principle of the bill. This bill consists of four amendments to the Official Secrets Act. I suppose the principle which ties them all together is the fact that they represent an attempt by the government, a successful attempt we think, to comply with a recommendation which was made by the royal commission on espionage in 1946. That recommendation was to the effect that the Official Secrets Act, 1939, be studied in the light of the information contained in the report and in the evidence and exhibits, and if it was thought advisable it could be amended to provide additional safeguards.

The first noteworthy feature about this recommendation is that it does not contain, within itself, any suggestion for the amendment of the act. It merely recommends that it be amended if after study it is thought advisable to do so. We have studied the Official Secrets Act, and the bill which is now before the house represents those respects in which we think it should be amended.

Section 1 deals with an amendment to extend the meaning of the phrase "office under His Majesty", to embrace employment in, on, or under a board, commission or other body that is an agent of His Majesty in the

right of Canada or of any province. This amendment has been proposed by security officials, and the reason for its extension is obvious. There is a provision in the act, section 4, subsection I, which makes it an offence for any person to have in his possession or control any secret official code word or password, any sketch, plan, model, article, thing or document which has been entrusted in confidence to him by any .person holding office under His Majesty.

Under the act as it reads at the present time the phrase "office under His Majesty" is really limited to a servant of the government itself. The desire is to extend that to servants of the crown, boards, commissions, and corporations.

Then, in section 5 of the act, subsection 1, paragraph (d), it is made an offence for anyone, for the purpose of gaining admission to prohibited areas, to impersonate a person holding office under His Majesty. In that text also, the meaning of the phrase "office under His Majesty" would be extended.

Mr. Speaker, may I ask at this point that you call it one o'clock.

At one o'clock the house took recess.

The house resumed at three o'clock.

Mr. Garson:

Mr. Speaker, when the house took recess I was just about to begin consideration of clause 2 of the bill. The Official Secrets Act applies at the present time, in accordance with the usual rule of statute interpretation, only to things done and to offences committed inside of Canada. In our deliberations it was proposed by the mounted police, and also by the security panel, that the Official Secrets Act should be given some extraterritorial effect. The security panel suggested that it should be amended to apply to offences committed against the act outside of Canada by a Canadian citizen. The Royal Canadian Mounted Police suggested that the act should be amended to make it an offence for any person obtaining secret information within Canada to publish such information in any country outside of Canada.

This new section 12A, which is covered by section 2 of the bill, therefore makes it an offence to disclose secret information, and so forth, outside of Canada, if the person concerned on the one hand is a Canadian citizen, or in cases in which, not being a Canadian citizen, he obtained information while he owed allegiance to Canada.

Of course, an obvious difficulty in the enforcement of this provision, which has already been the subject of editorial comment in this country, is the necessity of

Official Secrets Act

getting the offender back to Canada for trial; but even giving weight to this great difficulty of catching one's rabbit before one can have rabbit pie, the amendment we have will still serve a very useful purpose, because those who commit an offence of this kind in, for example, the United States, are very likely to fall within the class of citizens who under the United States law are deportable from that country to the country of their citizenship. Therefore if the Canadian was apprehended in the United States and was found to have committed an offence of this kind and was deportable, he would come here under such circumstances that in all likelihood we would be able to bring him to trial.

I think I should say a word or two with regard to the phrase which is used at the bottom of the new section 12A, paragraph (b): "while owing allegiance to His Majesty in right of Canada." This phrase is a little more far-reaching in its effect than would be the expression "while present in Canada". It will be remembered that in the case of Joyce v. Director of Public Prosecutions, 1946 Appeal Cases, 347, Joyce was held to owe allegiance to His Majesty in the United Kingdom while travelling on a British passport, notwithstanding the fact that passport had been issued under the misapprehension that Joyce was a British subject when in fact he was not. The amendment that we are now discussing carries the obligation of allegiance even further than it was carried in that case-that is to say, further than the common law as was enunicated in the Joyce case, because it makes punishable in Canada the disclosure, after ceasing to owe allegiance, of information obtained while owing allegiance. The law is that even an alien owes allegiance while he is within the realm of Canada, unless of course he has diplomatic immunity.

Mr. Fulton:

Or is an enemy.

Mr. Garson:

No, only a citizen of an enemy state which had declared an open war, a hot war, not an enemy in a cold war.

Mr. Fulton:

Yes.

Mr. Garson:

Yes.

Mr. Fleming:

Or a potential enemy,

according to the interpretation in Britain.

Mr. Garson:

Now, the question where such an offender would be tried in the event of its being possible to apprehend him, in respect of offences committed outside of Canada, is already, we think, taken care of by section 13, subsection 1, of the act, which provides:

For the purposes of the trial of a person for an offence under this act, the offence shall be deemed

Official Secrets Act

to have been committed either at the place in which the same actually was committed, or at any place in Canada in which the offender may be found.

Clause 3 of this bill-

Mr. Diefenbalcer:

Before the minister

speaks on clause 3 would he answer a question?

Mr. Garson:

Yes.

Mr. Diefenbaker:

Have there been any cases in the last five years in which anyone has escaped prosecution and conviction because of the fact that this section was not in the Official Secrets Act?

Mr. Garson:

The answer to my hon. friend's question is no. Now that he has raised that point, perhaps it would be as well for me to establish the fact that in respect of all four of these amendments we are not closing the stable door after the horse has gone; we are attempting to close possible loopholes before any person has been able to use them.

With respect to section 3 of the act,. the thought has been entertained that the penalties in this act are inadequate. In our discussion this view was confirmed by the security panel of the government. Section 14(1) as embodied in clause 3 of this bill now provides that where no specific penalty is mentioned, an offender is guilty of an indictable offence and liable to a fine not exceeding $2,000, or to imprisonment not exceeding seven years, or both; and the offender, at the election of the Attorney General of Canada, may be prosecuted by summary proceedings under part XV of the Criminal Code, in which case, in the event of that election being made, the punishment would be a fine not exceeding $500 or imprisonment not exceeding twelve months, or both.

In this connection I should point out the penalty that applies where no specific penalty is provided. The only case in which a specific penalty is provided in the act is in section 7, subsection 2, for the refusal by a person in control of telegraphic or wireless apparatus used in transmitting messages between Canada and a foreign country to produce such messages when required to do so by the minister. In that case it is a summary conviction offence and punishable by a term not exceeding three months or a fine not exceeding $200, or both. So that when we provide, as we do in the new section 14, for practically doubling that penalty to apply to all the cases not specifically provided for, we are providing an increased penalty for the great bulk of the cases which might arise under the act.

Then under section 14(2), as it would be enacted by clause 3 in the bill, the provisions of the Identification of Criminals Act will apply to persons who have been or may be prosecuted under the Official Secrets Act by way of summary conviction. I should like to emphasize in this connection particularly the point raised a few minutes ago by the hon. member for Lake Centre (Mr. Diefenbaker).

I would not "want hon. members to get the impression that, with regard to all the prosecutions which took place as a result of the espionage inquiry of 1946, we did not fingerprint the culprits. But those were cases in which the procedure against the accused was by way of indictment and therefore fell within the express terms of the Identification of Criminals Act, which applies to all those who are guilty of an indictable offence.

When the attorney general under the present Official Secrets Act elects to proceed against an accused by way of summary conviction, although it is in respect of an offence which by statute is declared to be indictable, the possibility of a doubt arises as to whether the offence itself when so proceeded against is an indictable offence so as to make the Identification of Criminals Act regulations with regard to fingerprinting applicable to the offender. The purpose of this second portion of the new section 14, which would be enacted by clause 3 of the bill, is to remove that doubt.

I believe I have covered the main points of the bill. As I indicated in my opening remarks, the bill has been drawn after consultation for the purposes of complying with recommendation No. 5 of the royal commission on espionage of 1946.

Mr. E. D. Fullon (Kamloops):

Mr. Speaker, the bill before us is one to the contents of which, so far as they go, I do not think there can be any objection. Indeed, I believe the only objection that could be taken is that largely the bill is just a piece of windowdressing. It does not actually accomplish very much, and certainly in my view it fails to accomplish what the minister has just said it was designed to do, namely, to follow out the recommendation contained in paragraph 5 of the recommendations of the royal commission on espionage. That recommendation reads as follows:

That the Official Secrets Act, 1939, be studied in the light of the information contained in this report and in the evidence and exhibits and, if it is thought advisable, that it be amended to provide additional safeguards.

In the very narrow sense I suppose this bill might be said to provide additional safeguards, if those words are confined exclusively to the matter of obtaining convictions, should prosecutions be brought-and it

hardly provides full safeguards even there.

I am quite certain that was not the intention of the royal commission in its use of the word "safeguards". If the word "safeguards" is read in conjunction with the other recommendations, and with the context of the report as a whole, it becomes obvious that it meant safeguards against espionage and against the revealing of official secrets or the passage or communication to foreign powers [DOT]of information prejudicial to the interests and safety of the state. That would mean something prejudicial to the safety of Canada.

This bill provides no safeguards whatsoever in that respect. Indeed the bill accomplishes very little. It makes very little change in the present legislation with respect to the prosecution of those charged with offences under the act. About the only thing it does is to provide an increase from seven to fourteen years in the maximum term which can be imposed. I would accept that as a sound enough approach. I believe that people who deliberately betray the safety of the state and deliberately serve an alien and hostile power deserve heavy sentences. I believe therefore that it is proper that we should provide heavy sentences, although in the case of lesser offences it would not be necessary to impose a maximum sentence.

It is interesting to note here that the question of the sentence was considered when the act was passed in 1939. At that time the then minister of justice was asked why the penalty was limited to seven years, and, as reported at page 4723 of Hansard of May 30, 1939, he pointed out that in the English act, on which the bill then before the house was based, the maximum penalty was fourteen years' imprisonment. Then he went on to say that the maximum in the bill then before the house had been set at seven years' hard labour. He then indicated that some thought had been given to the question, and that it had been decided in our act to limit the maximum imprisonment to seven years.

I point that out only as a matter of historical interest, when it is now decided that we should lock the door after the horse has been stolen. It was felt previously that seven years was sufficient to act as a deterrent, whereas it is now felt that seven years is not sufficient either as a penalty or as a deterrent to people who may be tempted to commit these offences.

As to another thing that the bill is supposed to do, namely, to provide that the act shall now have extraterritorial application, I suggest that here again we find a piece of

Official Secrets Act

window-dressing. My contention is that the present act has extraterritorial application. Section 13(1) of the act states:

For the purposes of the trial of a person for an offence under this act, the offence shall be deemed to have been committed either at the place in which the same actually was committed, or any place in Canada in which the offender may be found.

The minister has put his finger on the real difficulty in these cases, namely, that the criminal must be caught before he can be prosecuted.

Mr. Garson:

Does not the hon. member think that that section is subject to the usual rules of interpretation, namely, that it applies only to offences within Canada?