Ground Hog Day for the Foreign Interference Commission
Or, have we been here before?
You know what day it is, right?
For the FI Commission, Friday, February 2 (Ground Hog Day!) marks the last day of its first week of public hearings. We won’t see the Commission in action again until late March. That is when the next round of public hearings is scheduled to take place, shifting ground to questions about alleged foreign interference attempts in the 2019 and 2021 federal elections.
Today’s Commission hearings featured testimony by the Public Safety Minister, Dominic Le Blanc. The script had, in many respects, already been written by preceding sessions of the Commission, which wrestled with the question of finding the appropriate balance between protecting secrets and national security and the public’s right to know.
Minister LeBlanc took the stand at 10:00 a.m. and responded to questions from the lead counsel for the Commissioner, Shantona Chaudhury, for the first hour. It provided the Minister with a platform to explain his view of the Commission’s work. Ms. Chaudhury wanted to describe the challenges between maintaining secrecy and providing for transparency as a “tension.” Mr. Leblanc was firm in calling it the pursuit of a necessary balance. Call it what you will—no doubt it has elements of both. There was elaboration about the so-called “bespoke” process set in place to facilitate the government’s response to the Commission’s request for documents and for declassification to allow such documents to be made public. LeBlanc came back, time and time, to the ways in which the terms of reference for the Commission were established, through intensive negotiations and ultimate agreement with all the opposition parties. Le Blanc also stressed, as did senior officials yesterday, the ways in which the government is committed to ensuring an appropriate degree of transparency for the Commission’s work. He is on the record as saying that the Government has no interest in forcing the Commission into the labyrinth of having recourse to Canada Evidence Act s38 powers and processes. The message was maximum cooperation. A fire will await those feet as the Commission proceeds.
Cross-examination by counsel for the parties made no advances and scored no hits against this veteran Minister. There was much repetition of the same point about wanting to see the Commission achieve maximum transparency. Yup.
The question left hanging over this week’s proceedings is whether the Commission is in Ground Hog Day, the movie, territory. Is it replaying the pitfalls of David Johnston’s work as special rapporteur? What undermined Johnston’s effort and ultimately led his to resign was a lack of public trust in his work. That trust deficit hinged on many things. Perhaps the original sin was the delay of the government in responding to pressures for an inquiry, and its failure to consult with opposition parties to try to win their approval for the creation of a special rapporteur and the appointment of David Johnston. Then there were allegations of his closeness to the Trudeau family (closeness that on close inspection didn’t look very close); and of his role in the Trudeau Foundation (where he had nothing to do with an odiferous donation made by some Chinese businessmen). Lack of trust was also stimulated by concerns that Mr. Johnston, not being a judge and lacking the powers of a judge to compel the production of documents and witnesses, would never be able to get to ground-zero truth about Chinese foreign interference. His stand against the propriety of leaks of classified information—good on him-- also struck a wrong chord with some.
The media, or at least parts of it (hey, you know who you are) didn’t like the fact that Mr. Johnston had had the temerity to question the accuracy of their reporting of Chinese interference, based on leaked classified information, though his critique was relatively mild.
Commissioner Hogue, the Quebec court of appeals judge appointed to head the FI Commission, faces a different set of trust issues and brings some advantages when it comes to the trust factor. She does not have to face allegations of any perceived conflict of interest in terms of her relationship with the Trudeaus. She is a judge, and as Commissioner under the Inquiries Act has powers to compel witnesses and documents. She has the powers of her terms of reference, an Order in Council document, fashioned out of agreement between all the opposition parties, to put wind in her sails. As a judge, because of her office, she has a high incumbent level of public trust, that may put her on a higher plane even than that of a distinguished former Governor-General.
However, Justice Hogue is shackled in the same way that David Johnston was. She has no unique power to reveal classified intelligence to the Canadian public. She has full power to receive it, but not to reveal it. There will be a declassification process, and the public will be able to read declassified records on the Commission’s web site. There are other avenues to deal with classified information, including the writing of summaries of the classified material, or adopting a “write to release” approach, with the underlying intelligence kept secret. The Commission can also hold in camera meetings and try to produce summaries for the public record (something the Arar Commission attempted and struggled with). But the Commissioner, like Mr. Johnston, will stand as interlocutor between the secret world and the public. Will that position secure public trust?
Already the Commission has faced head winds. The Conservative Party has complained about not being granted full standing before the Commission in its Part One phase of the Inquiry dealing with allegations of foreign interference in the 2019 and 2021 elections. The Commissioner batted this back by saying that the Commission cannot descend into a partisan political debate. Too right. However, she did leave a door open for the Conservative Party to cross-examine witnesses as a discretionary power. It is also worth noting that the CPC’s foreign affairs critic, Michael Chong, himself a target of Chinese foreign interference, has been given full standing, so can exercise the Party’s concerns. It is worrying to me that the Conservative Party may be setting the ground in advance for taking a critical approach to whatever factual findings and recommendations the Commission might make.
An advocacy group representing Uyghur Canadians, who were granted standing, has now decided to withdraw because of its concerns about the role allowed to some political figures, such as Michael Chan and Liberal MP Han Dong, who it regards as being too close to Chinese officials. The withdrawal looks, to me, like an unfortunate stunt, for a couple of reasons. One is that the Uyghur Rights Advocacy Project has known for nearly two months about grants of standing by the Commissioner, and made no previous protest. The other is that the Uyghur group is mistaken in thinking that any parties with standing before the Commission will have access to classified documents. Parties will have full access to declassified records, a little time before they appear on the Commission’s website, but that is it. It is understandable that diaspora advocacy groups have concerns about their security as they appear before the Commission, but the Commissioner has clearly indicated her empathy with such concerns and promised various measures to ensure their security.
And now a Sikh advocacy group, the World Sikh Organization, very late in the day, has asked for standing before the Commission following on an announcement that the Commission is seeking information about potential Indian state foreign interference. Again, the timing of this seems a little odd, because the Commission has always included a reference to “other powers” in addition to Russia and China, in its terms, and it was easy to imagine that “other powers” might include India, not least in the aftermath of the controversy over the assassination of Hardeep Singh Nijjar in June 2023, and the public claims made by the government that there was credible intelligence pointing to Indian state involvement.
If all this sounds like sniping at advocacy groups, it is not. It will be vital that the Commission hear from affected diaspora groups. To see some withdrawing, and others banging at the door very late in the day, is simply too bad. It is also worth noting that David Johnston planned a full range of public hearings that would have been scheduled in the summer of 2023, had he continued, and that would have given first priority to hearing from diaspora communities.
But some diaspora groups were not happy with that process.
Ground hog day, the movie?
PS. I never really liked the movie, although I am a big fan of Bill Murray
*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.
As always, Prof Wark’s analysis is valuable to those with an interest in national security. Sadly this may be a tiny minority of Parliamentarians, but I digress.
As a onetime producer and receiver of classified intelligence, the issue of declassification or communicating classified intelligence in an unclassified manner is often more challenging than presented and frequently impossible.
Example 1: CSEC or a Five Eyes ally decrypts communications between a foreign power’s Canadian representatives and its home office. The sensitive material has only been communicated through that one encrypted channel and is released or summarized. The foreign power realizes that its systems are not as secure as they had thought and stop using them, denying all five eye partners with access to that channel.
Example 2: A CSIS human source participates in a sensitive conversation with a foreign representative that reveals useful intelligence. The source is the only person other than the foreign representative present. The information is revealed and the human source is removed to their home country, tried and convicted of treason.
Both examples result in a loss of ongoing intelligence that may be of far greater value than that of the Canadian public learning of a single event as part of the Commission.
Intelligence is rather more complex than the media or the public may believe…
Groundhog Day is a whimsical exercise in which intelligent human beings pretend that rodent behavior will provide real-world information that citizens and governments can act upon. It’s a joke. Is that what the work of this Commission will turn out to be?
Or will it just become a forum for debating “what the public ought to know about security efforts”, rather than how best to detect and prevent foreign interference?
Or perhaps yet another platform for identity grievance mongering - now, from Sikhs, who demand a “right” to join the circus and from whose “community” emerged the biggest terrorist act in Canadian history.
Frankly, I am beginning to wonder how much “actionable information” will actually emerge from this quasi-judicial exercise; particularly when, some of the most revealing allegations – like Bill Blair sitting on a request for an investigatory authorization or Cabinet Ministers not reading their briefings – have nothing to do with the performance of CSIS or the RCMP.
Finally would even a recommendation that “Canada should be more open about the government activities?”, likely be followed by more effective FOI legislation? Don’t hold your breath.