Here We Go (again)
The Government announces a judicial inquiry into foreign interference
This government seems to have trouble keeping secrets. The Globe and Mail published details of the foreign interference inquiry a day before Minister LeBlanc held a press conference on Parliament Hill to make the news official.
The Press Conference was short (23 minutes including a Q and A with assembled media) and much of it was in French. You can see it on CPAC, here:
https://www.cpac.ca/episode?id=a1e8935d-9a5f-4db3-b552-cae040974610
LeBlanc stressed what he called the unprecedented nature of all-party consultations on the public inquiry on foreign interference. He didn’t say why it had taken so long to come to an agreement.
He confirmed the appointment of a Quebec court of appeals judge, Marie-Josee Hogue, to lead the inquiry. He also indicated that the inquiry would be broad in scope—to cover not just China, but also Russia and other foreign states and non-state actors and their efforts to interfere in Canada’s federal elections and democratic processes. Hard to know where the boundaries of “other” might stop? The inquiry will also operate on a tight timeframe, with an initial report to be delivered by the end of February 2024 (six months) and a final report in December 2024.
Much else about the conduct of the inquiry will be left to the determination of Justice Hogue, but LeBlanc did stress that the Justice will have access to all relevant Cabinet documents and records of the national security and intelligence agencies.
The inquiry will operate in two phases, first to assess foreign interference in the 2019 and 2021 elections and to look at intelligence flows to decision-makers in the context of the 2019 and 2021 elections. The second phase will be more forward looking, to examine the capabilities of the security and intelligence community to deal with foreign interference.
You can find a link to the Inquiry’s terms of reference here:
Winners and losers in the backroom negotiations that led to today’s announcement?
Hard to know about the Conservative and Bloc positions, but the NDP have won in terms of their public demand for a broad-scoped inquiry that would look beyond China. They lost on time-frame as their argument for a wrap by December 2023 was never remotely feasible.
The Government won on a couple of fronts. They have secured agreement that the Commission will tackle in public hearings at the outset the sticky issue of classified information and the limitations on what can be revealed in public. The Government also managed to insert a reference to the Commission examining the election protection mechanisms that were put in place by the current government prior to the 2019 and 2021 elections and compare them to practices by previous governments (a lose for the Conservatives).
I will guess that the Conservatives won by getting the commission to look not just at the overall integrity of election campaigns nationally but at any disturbing foreign interference signs at the individual riding level. Hello, Erin O’Toole’s complaint about losing seats because of Chinese interference in B.C. in 2021.
There is also stuff in the official terms of reference for the Inquiry that discusses the powers of the government to prevent disclosure of sensitive information under the Canada Evidence Act (s38). Look for trouble if that instrument raises its head in the course of these proceedings. Claims and counter-claims on national security confidentiality could really bog up the works.
What isn’t in the terms of reference? There is no reference to the Commission drawing on the special rapporteur’s report, or on the two independent reviews being conducted by the National Security and Intelligence Review Agency and by the National Security and Intelligence Committee of Parliamentarians. The absence of cross-walks is surprising and may hamper the work of the review bodies and the Inquiry. All will be siloed, for no obvious purpose.
Oh yes. Minister LeBlanc was asked at the press conference whether Justice Hogue had any relevant national security experience. After brightly telling reporters that she was a senior judge and fluently bilingual, Minister LeBlanc managed to suggest that her lack of experience with national security and intelligence matters (implied) could be considered a bonus, as she could bring a “fresh set of eyes” to an inquiry. LeBlanc even went so far as to say there would have been a problem with appointing, say, a designated judge from the Federal Court with just such experience, as they might find themselves tripping over past cases.
To that, I say…balderdash. The likelihood is that no Federal Court judge wanted the job. So we go with no experience.
Judges are smart people and can learn on the job –time permitting. That didn’t work for Justice Rouleau in the Public Order Emergency Commission. Like Justice Rouleau, Justice Hogue will experience a steep learning curve when it comes to national security and intelligence issues. She will, of course, be assisted by a chosen team of lawyers, but this team will consist of appointments selected by Justice Hogue from colleagues she has worked with. That’s how judicial inquiries roll. On its face, there is no guarantee such a process will give her bench strength when it comes to national security and intelligence.
For Justice Hogue’s bio, see the link here:
What are the omens? Why rain on an inevitable parade? (Why spoil the celebrations at the Globe and Mail?) Will Justice Hogue in the first phase of her inquiry come up with findings any different from those of special rapporteur David Johnston? That seems unlikely to me, except for the fact that there will be pressure to do exactly that.
Will Justice Hogue have the time and experience, in the second phase, to come up with valuable recommendations on enhancing Canada’s ability to counter foreign interference in all its aspects—that range far beyond election interference into such areas as espionage, IP theft, cyber aggression, economic intrusions; intimidation of diaspora communities; disinformation campaigns.
I’ll leave that a BIG question. But important to note that a judicial inquiry into foreign interference is not the same as a much-needed review of Canada’s intelligence capacity writ large.
Do I have a counter-factual wish? I wish that all involved had been more imaginative about creating an independent, expert mechanism to examine foreign interference. But no, we go with the old and tired formula of an inquiry under the Inquiries Act with all its legal parameters and precious little time to learn and breathe.
Gov Gen Johnston impeccable reputation. As for friendship with Trudeau, I do believe that it is possible to have acquaintances and not sell your soul.
Very interesting timing - eh? Or is the flurry of announcements from the Libs while the CPC Policy Convention is on just a coincidence?