Foreign Interference and Security of Information Act

Marginal note:Public interest defence

• 15 (1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.

• Marginal note:Acting in the public interest

  (2) Subject to subsection (4), a person acts in the public interest if

  • (a) the person acts for the purpose of disclosing 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; and

  • (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

• Marginal note:Paragraph (2)(a) to be considered first

  (3) In determining whether a person acts in the public interest, a judge or court shall determine whether the condition in paragraph (2)(a) is satisfied before considering paragraph (2)(b).

• Marginal note:Factors to be considered

  (4) In deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure, a judge or court must consider

  • (a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;

  • (b) the seriousness of the alleged offence;

  • (c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;

  • (d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;

  • (e) the public interest intended to be served by the disclosure;

  • (f) the extent of the harm or risk of harm created by the disclosure; and

  • (g) the existence of exigent circumstances justifying the disclosure.

• Marginal note:Prior disclosure to authorities necessary

  (5) A judge or court may decide whether the public interest in the disclosure outweighs the public interest in non-disclosure only if the person has complied with the following:

  • (a) the person has, before communicating or confirming the information, brought his or her concern to, and provided all relevant information in his or her possession to, his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada; and

  • (b) the person has, if he or she has not received a response from the deputy head or the Deputy Attorney General of Canada, as the case may be, within a reasonable time, brought his or her concern to and provided all relevant information in the person’s possession to the National Security and Intelligence Review Agency, if the person’s concern relates to an alleged offence that has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions of service for, or on behalf of, the Government of Canada and he or she has not received a response from that Agency within a reasonable time.

• Marginal note:Exigent circumstances

  (6) Subsection (5) does not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.