Now for a grilling

The joys of appearing before Parliamentary committees in a partisan age

I am scheduled to give testimony this evening (May 30) before the House standing committee on Procedure and House Affairs (PROC). The committee has been studying foreign interference issues since November 2022 and has recently turned its attention to the matter of Chinese officials targeting federal MPs from opposition parties (Conservative and NDP).

https://www.ourcommons.ca/Committees/en/PROC

This latest focus was the result of a May 1, Globe and Mail report based on leaked classified material that discussed Chinese state interference plans regarding members of parliament, specifically Conservative MP Michael Chong.

https://www.theglobeandmail.com/politics/article-china-targets-mps-csis/

The story has rolled from there to include new information about the targeting of Erin O’Toole, the former conservative leader, and NDP MP Jenny Kwan, and the security briefings they have recently received from CSIS.

I will post a copy of my opening statement to the Committee to this substack, after it has been delivered. The committee has given witnesses four minutes for initial remarks (it used to be 10, but such is dumbing down). I will be testifying alongside my colleague, Thomas Juneau, who teaches in the Graduate School of Public and International Affairs at the University of Ottawa and had prior experience in the Department of National Defence dealing with Middle East security issues.

I anticipate being asked by committee members about my views on a public inquiry. You have to be succinct in answering to risk annoying impatient chairs and members who want to get their questions in in their allowed time. Everyone is on a clock and they will roll out a straight-jacket (or a hook) if you don’t answer at speed.

So my succinct response, if asked, will include some of the following points, all arguing against the utility of a judicial inquiry in the current circumstances. (Clearly I won’t be able to cover them all).

When we speak about public inquiries we are talking about judicial inquiries presided over by a judge within a quasi-judicial framework, with subpoena powers and the opportunity to cross-examine witnesses under oath by a potential multitude of “parties” accorded standing.

Judges must be retired from the bench. They will draw on a large legal team to support their inquiry. It is all very lawyerly. Judges and their legal staff may have varying degrees of familiarity with national security and intelligence issues. There is no guarantee about that expertise (as the pool of available retired judges with such experience is very small) and they, and their legal team, will have a steep learning curve.

Judicial inquiries take time to get organized, access records, hold hearings and produce recommendations. They are not fast moving and are not meant to be. They are designed to probe issues deeply where time is not the essence.

Judicial inquiries are not, it shouldn't need to be said, above the law. They must operate in accordance with Canadian law, including restrictions placed on the public sharing of classified information dictated by the Security of Information Act and the Canada Evidence Act. Judges can’t wave a magic wand to produce highly classified intelligence reports, the release of which might well damage Canadian security and intelligence capabilities.

Judicial inquiries make recommendations after they have concluded their work. They don’t dictate policy outcomes. These recommendations might appear two or more years after they begin their work. Whatever government is in office is given time to respond to the recommendations. In the case of the recommendations advanced by Justice Rouleau, who presided over the Public Order Emergency Commission dealing with the events of the Freedom Convoy protests, the government was granted a year to respond.

It is important to have realistic expectations of judicial inquiries. Some can result in real change; others don’t have that effect. I have been involved in three judicial inquiries dealing with national security matters over the past two decades—the Arar Inquiry presided over any Justice O’Connor; the Air India Inquiry chaired by Justice Major; and the Public Order Emergency Commission headed by Justice Rouleau. For Justice O’Connor I took part in an advisory panel on accountability and review for the RCMP. For the Air India inquiry, I produced an expert report on the relationship between the RCMP and CSIS and the challenges of the “intelligence to evidence” problem. For Justice Rouleau’s commission, I produced a research report on intelligence and took part in one of the policy roundtables. All these inquiries did estimable work. Of the three, I would say that only the Arar Inquiry produced recommendations that resulted in major changes—in that case to how the RCMP governed national security investigations and information sharing with partners. Time will tell with Justice Rouleau but it has to be conceded that his recommendations regarding changes to national security and intelligence were very low key and a sidebar to his focus on policing matters.

The purpose of a judicial inquiry has to be clearly defined. They are not meant to be used as an instrument to continue partisan political controversy. They are not meant to be a response to media pressure and demands, and not meant to be based on media reporting. Some of the media reporting from Global News and the Globe and Mail on Chinese state foreign interference has been shown to be flawed, in the first report from the special rapporteur.

https://www.canada.ca/en/democratic-institutions/services/reports/first-report-david-johnston-independent-special-rapporteur-foreign-interference.html

Typically, judicial inquiries are retrospective and focus on a clear issue based on known evidence.

What would the objectives for a judicial inquiry with respect to Chinese state foreign interference be? It couldn’t be to reveal the details of Canadian intelligence knowledge and operations.

A judicial inquiry could have as its objective an increase in public knowledge and understanding; it could have as an objective efforts to improve the capacity of the Canadian intelligence system. Ultimately making improvements to national security literacy in Canada, as the CSIS Director describes it, may be the most important, long-term outcome.

Both objectives could be achieved more expeditiously, I believe, through public hearings, as Mr. Johnston has suggested.

Public hearings may, in fact, have a better ability to deliver on the twin objectives of public transparency and recommendations to improve the national security system, while doing so with more urgency than can be accomplished through a judicial inquiry. Mr. Johnston’s mandate wraps up at the end of October.

Public hearings can involve a wider range of voices on foreign interference threats, including from civil society and from experts from Canada’s Five Eyes counterparts with their own experiences of dealing with this national security threat.

All this said, this is a decidedly minority view. Calls for a public inquiry, reflecting deeply entrenched views, some more informed than others, will not go away and may persist until the next election. It would be something rare for a national security issue to be an important component of a federal election campaign. Maybe that time is coming.