*Dear Readers: I plan to provide extensive coverage of the Foreign Interference (FI) Commission, now that it has got rolling. Because the Centre for International Governance Innovation, where I am a senior fellow, has been granted standing for the second, “Policy,” phase of the Inquiry I want to make clear that the views offered in this substack newsletter are mine alone and do not represent any official policy of CIGI.
The second day of the FI Commission was given over to presentations by a panel of legal academics who were asked to discuss the challenges of secrecy and the balance between secrecy and democratic transparency. The presentations ranged from dry, to engaging and humorous, to very detailed.
The lead-off presenter was Professor Pierre Trudel (Universite of Montreal). Trudel traversed a number of legal cases informed by decisions on secrecy but seemed not to acknowledge the fact that a Commission of Inquiry is not a court and does not involve a trial or principles of judicial fairness for an accused. His basic pitch was that the Commissioner should be able to communicate to the public the reasons why information might need to remain confidential. OK, then.
More relevant to the circumstances of a judicial inquiry was the second presentation, offered by Professor Michael Nesbitt, from the University of Calgary. Michael had a lighter touch but came closer to the essence of the challenges and opportunities for dealing with secrecy constraints. He reminded us that a Commission is never alone in trying to deal with this problem. He pointed to review bodies such as NSIRA and NSICOP, and suggested that there might be lessons to be learned from their experience, though he did not offer any details. Professor Nesbitt also made the important point that the Commission will encounter two endemic and linked problems: those of over-claiming of national security confidentiality; and the related problem of the over-classification of information.
Professor Nesbitt’s basic argument was that it is in no one’s interest to engage in unnecessary practices to prevent the Commission and public from having access to relevant information. Let’s hope that argument sticks.
One point made by Michael Nesbitt that caught my attention was that the FI Commission would only have access to Cabinet confidences that were provided to David Johnston as special rapporteur. That, on my reading, is not quite what the terms of reference provided to the Commission say.
Here is the relevant passage:
“directs that the Commissioner be given access, so that they may carry out their mandate, to those confidential cabinet documents that came into existence on or after November 4, 2015 and that were provided to the Independent Special Rapporteur on Foreign Interference in relation to the preparation of his First Report, dated May 23, 2023.”
Clearly this grants access, but I don’t read this as an exclusion for the Commission to request access to other Cabinet confidences as they deem necessary. We may learn more later in the week, especially from the lips of Minister LeBlanc during his testimony on Friday.
The third presenter was Professor Leah West. Professor West provided some useful context on the nature of national security confidentiality claims, ground that was also covered in the first afternoon by Commission Counsel Gordon Cameron. She called attention to two facets of confidential information that will undoubtedly come up in the Commission’s work. One is the protection of so-called “third party information”-- basically intelligence provided to Canada by its allies with strict caveats on its circulation. The other is the “mosaic effect”—a concern that even seemingly innocuous bits of information can be pieced together by sophisticated adversaries into a more telling and damaging story, especially with the help of advanced data analytics. As Leah West notes, while there is some air of reality to the mosaic effect, courts have also occasionally expressed skepticism, especially about its more extreme version.
Professor West then took us through an impressive exegesis on a particular piece of statute—the Canada Evidence Act, and, especially section 38 of the CEA. This was a really deep dive. S38 uses the terms “potentially injurious information” or “sensitive information.” It creates a challenge process, mostly meant for courts, involving negotiations between the court and the government over whether or not sensitive information can be made publicly available. The trump hand ultimately rests with the Federal government. As valuable as this deep dive was, the reality, I think, is that in the present circumstances the Canada Evidence Act is best used when the Commission and the Court both agree not to use it. Shortness of time available to the Commission (not nearly enough for lengthy legal wrangling) and common sense should be the core principles that would lead both parties to set aside s38 and try to come to a common understanding of what can be made public. That will be the test. To set an example, the judicial inquiry into the treatment of Mahar Arar found itself locked in a year-long battle with the government over 1500 words.
Did the panel solve the secrecy problem? No, that will be a matter for practical test as the Commission proceeds and the Government responds to its requests for information. It did good service by reminding us that a balance needs to be sought between secrecy and transparency and that there is a public interest in the right to know, a right that is not unlimited.
But a couple of things were missing.
No mention was made of the core legislation that determines government secrecy practices. This is the Security of Information Act (SOIA), which dates back to 2001, and that the government is currently thinking of amending. A dive, not necessarily a deep dive, would have been highly useful. This might also have led to a discussion about leaks of classified information, which in many ways are a formative driver of the Commission itself. The SOIA provides for a definition of leaks and for criminal sanctions of them. A dive down that rabbit hole would also have been useful.
Failure to discuss the SOIA and leaks seem curious omissions to me. Maybe they will be rectified later. Or maybe the Commission intends to skirt them, to avoid the pitfalls of the Johnston report in calling attention to media leaks, denouncing them, and analysing some of their inaccuracies. That focus won Johnston no friends. Not in the media, not among opposition parties who were often happy to quote media stories uncritically.
On to Day Three—featuring veterans of leaks?
Ward Elcock is absolutely right. Whether the Commission will feel the need to ask for additional Cabinet confidences, and how Cabinet confidences are interpreted, which is another issue, will remain to be seen.
The correct interpretation of the clause in the Order in Council that Prof. Wark refers to, is that the Commission will only have access to Cabinet confidences created after a specific date and that were provided to the Special Rapporteur. While the Commissioner could ask the Government for access to others there is no right to such access.