Public inquiries: cautionary notes from the Canadian experience

A guest column from Reg Whitaker

A preface:

I am delighted to welcome Reg Whitaker as a guest columnist to this substack. Reg is an outstanding scholar of Canadian national security practice, the author (with colleagues Greg Kealey and Andrew Barnaby) of a comprehensive, must-read, account of the evolution of Canadian domestic security practices since Confederation—Secret Service: Political Policing in Canada from the Fenians to Fortress America (University of Toronto Press, 2012). He has contributed in countless ways to an understanding of Canada’s security policy and has continued to do so since his retirement from teaching at York University, where he was awarded the title of Distinguished Research Professor Emeritus.

Please lend him your ears.

On the question of a public inquiry into the foreign election interference issue, I have a few thoughts, informed by my personal experience of working on no less than five public inquiries from the 1960s to the present.

As we await rapporteur David Johnston’s recommendations on how best to investigate, calls for a ‘full public inquiry’ have been sounding across the country, from opposition politicians baying for blood to reporters looking for front-page copy. In the former category we find Conservative leader Pierre Poilievre who appears to view a public inquiry as a means of bringing down the Trudeau government. In the latter category we find John Ibbitson of the Globe and Mail literally beside himself with the urgency of it all, advising Johnston that “He should not wait. He should advise the Prime Minister to call the inquiry now. Today. This hour.” Worried that readers miss the gravity of the situation, he concludes his column by declaring that “Only a public inquiry, one with the authority to examine every document, no matter how top secret, and to compel testimony will restore confidence in our political and electoral systems. Now. Today. This hour.”

https://www.theglobeandmail.com/politics/article-tk-2/

Commissions of inquiry – once called ‘royal’ commissions when we were more deferential to the Crown – have a long history in this country. A few have been monumental in their impact on public policy. Many have come and gone to little public notice and have long since been forgotten. Some were decried by opposition politicians as cynical attempts by governments to kick hot political topics safely down the road. Some were praised for courageously criticizing the performance of the same governments that created them. Some have left behind studies that have entered the academic archive of worthy research. One in living memory was simply shut down by a government that had become fed up with what it was doing.

The difficulty of generalizing about public inquiries is not surprising as they have been called to investigate a very wide range of public policy issues amid a wide range of political circumstances and have been equipped by governments with a wide range of resources with which to carry out their assigned tasks. Recently there has been a marked political trend in some quarters to view public inquiries as a magic bullet or talisman that alone will unlock a tangled or blocked public policy issue. Like Alexander the Great wielding his sword to cut through the Gordian Knot, a public inquiry is believed by some to offer the only route to a solution that has evaded all the normal institutions and processes of government. Not surprisingly such high expectations are difficult to fulfil by real world commissions and disillusion may follow.

The calls for a ‘full’ public inquiry into the election interference issue follows the recent pattern of high public expectations. But such a commission falls into a particular subspecies of inquiry: a public investigation into matters of national security. For a variety of reasons, these raise special issues about how ‘public’ a public inquiry into national security can actually be, and how governments are likely to respond to their findings.

There have been six full-scale public commissions of inquiry into national security issues: the Kellock-Taschereau Commission on the Igor Gouzenko Soviet spy affair of 1945-46; the Mackenzie Commission on security policy in 1969; the McDonald Commission on RCMP security service wrongdoing that reported in 1981; the 2006 O’Connor report into Canadian complicity in the case of Maher Arar, the Canadian imprisoned and tortured in Syria as an alleged terrorist; the 2010 Air India commission report on the terrorist bombing of an Air India flight from Canada in 1985 (disclosure: I worked at both the Arar and Air India inquiries); and the 2023 Rouleau commission on the federal government’s invocation of the Emergencies Act to disperse the Freedom Convoy occupying downtown Ottawa. There was another inquiry (Iacobucci 2008), an offshoot of Arar which examined complicity in the imprisonment and torture of three other Canadian terrorism suspects in Syria and Egypt, but this was declared an ‘internal’ inquiry, thus falling outside the public inquiry rubric.   

A few of these inquiries have been largely successful in making public previously hidden matters threatening national security, in revealing abuses of the civil liberties and human rights of individuals affected by security operations, or in getting recommendations for policy reform adopted by governments. Two in particular stand out for their policy impact. Kellock-Taschereau in 1946 publicly exposed espionage by Canada’s wartime ally the Soviet Union using Canadian public servants; its recommendations laid the foundation for new national security rules in the public service. The McDonald Commission disclosed evidence of RCMP wrongdoing in the domestic Cold War and recommended that the security service be separated from the RCMP and ‘civilianized’: the Canadian Security Intelligence Service (CSIS) was created by Parliament three years later. The Arar Commission cleared Mr. Arar’s name and awarded him compensation.

Other commissions have been less successful at fostering government action. The Arar commission was only partially successful: its second mandate, recommendations on institutional reform in national security accountability, met with indifference on the part of the Harper Conservative government which went on to introduce highly controversial toughening of anti-terrorist legislation and practices while ignoring the accountability dimension that was the focus of Arar. Although the Trudeau Liberals after 2015 have significantly reformed the national security accountability landscape both inside and outside Parliament, its reforms have not followed the proposed Arar model. The Air India inquiry may have cast useful light on the circumstances of that tragedy but its specific policy recommendations have not elicited much action.

A closer look at conditions for success offers mixed lessons. Kellock-Taschereau was successful in exposing Soviet espionage by methods that would be both unconstitutional and politically unacceptable by today’s standards. Under the authority of the War Measures Act, suspects were detained without habeas corpus and interrogated at length in the RCMP barracks. They were then hauled before secret hearings of the Commission without counsel and told they must answer all questions without being informed of their legal right to avoid self-incrimination. A public Report named numerous individuals as, in effect, disloyal traitors to Canada. Criminal charges were initiated against about two dozen individuals, resulting in convictions for only about half of those accused. At least three named were clearly innocent of any involvement in espionage, but found their subsequent careers and lives blighted by having been publicly named as disloyal. (Shameless self-promotion: I have recently published  a new look at Gouzenko and the Commission drawing on declassified MI5 files in ‘The Gouzenko Affair: From Star Chamber to the Court Room’, Barry Wright, Susan Binnie and Eric Tucker, eds., Canadian State Trials, v. 5: World War, Cold War, and Challenges to Sovereignty, 1939-1990 (Toronto: University of Toronto Press 2022) 125-76).

The War Measures Act was repealed in the 1980s. Canada today has a Charter of Rights and Freedoms that protects the legal rights of individuals brought before public inquiries. Public naming of individuals based on secret undisclosed evidence is no longer legally or morally acceptable. Kellock-Taschereau may have been effective but this was based on draconian powers that are no longer available to a contemporary public inquiry. Currently, the media have been busy identifying individual elected politicians and other prominent figures as alleged agents of Beijing. Expectations that a public inquiry will authoritatively ‘name names’ are overblown.

McDonald offers a different lesson. When the Pierre Trudeau Liberal government that had launched the Commission began to suspect that its findings might embarrass not only the RCMP but the Liberal cabinet, the government threatened to invoke the equivalent of Richard Nixon’s notorious Watergate defence of executive privilege by blocking the Commission’s investigation of ministerial responsibility. The Commission called a press conference to directly challenge the government, which then backed down in light of the highly unfavourable public perception of their attempted intimidation. Even the creation of a civilianized security service on McDonald’s recommendation was convoluted. The government’s first draft brought ten provincial Attorneys General out into open opposition, alongside widespread public and stakeholder complaints that the draft was inadequate or worse. Public pressure ultimately was successful: the CSIS Act of 1984 was deemed much more acceptable than initial versions.

Any public inquiry with potential to embarrass the government in office is vulnerable to political pressure, but inquiries into matters of national security are especially vulnerable to pressures that come in the form not of avoiding political embarrassment but of invoking the protection of national security. If an inquiry is called, close attention should be paid to its terms of reference, to their scope and detail. Terms should clearly include scrutiny of the federal cabinet as well as agencies like CSIS and the RCMP.

Attention must also be given to the appointed commissioner or commissioners, that they be the kind of individuals who can be expected to take an aggressive rather than minimalist interpretation of their terms of reference. In the case of the Arar inquiry, commissioner Dennis O’Connor had already led a provincial inquiry into the tainted water scandal in Walkerton, Ontario that had pointed a finger directly at provincial government failures; the Arar inquiry did not disappoint in critical scrutiny of Ottawa’s role.

The question of the personality of a potential commissioner raises a particular difficulty as to who might head a public inquiry. In the current hyper-partisan atmosphere in Ottawa, it may be difficult to find someone with both the appropriate stature and qualifications who has no real or perceived ‘taint’ of connection with the Prime Minister or with any political party. The hostile political and press reception to the appointment of David Johnston as rapporteur, a man who was appointed Governor General by Stephen Harper but who had once held a position in the (gasp!) Trudeau Foundation, should give pause to anyone contemplating calling an inquiry, or contemplating taking up an offer of appointment.

Critical public watch will have to be maintained at all times to ensure that a Commissioner, whomever he or she is, is shielded to a degree from ministerial pressure. We may be reasonably confident that such a condition applies today. Not only are opposition parties mobilized around this issue but a promising precedent has been set by the recent Rouleau Commission which offered an unusually transparent look at how federal and provincial politicians and police and security agencies responded to the Freedom Convoy - including remarkable public testimony by the Prime Minister in which he answered sometimes hostile questioning at length over cabinet decisions made only very recently. As well, for Rouleau the government relaxed its usual rule about excluding ‘cabinet confidences’ from access to information.

The latter point concerning access to information points to the deepest ambiguity about public inquiries into national security. Anyone expecting a ‘full’ public inquiry to be fully transparent will be disappointed. All inquiries into national security have to contend with legitimate grounds for non-disclosure. Governments are not immune from misusing ‘national security’ to cover up scrutiny of their own behaviour, so very close watch on abuse of secrecy must always be maintained, but protection of the identity of secret sources and operational methods, as well of intelligence received in trust from foreign sources is imperative.

There are two levels of access that must be distinguished. The first is familiar: what Parliament and the public can expect to see disclosed of the full range of information made available to the security-cleared inquiry staff. The Arar inquiry acknowledged the legitimate basis for non-disclosure of much of the information provided to it confidentially, but disputed many of the redactions in its public report initially demanded by the government, taking the matter to the Federal Court, where Justice Simon Noel eventually ruled that a number of redacted passages should be disclosed. None of these further revelations of course changed the Commission’s recommendations but they did provide additional public illumination of how the Commission had arrived at its conclusions.

But here’s the thing. Even if we assume an unusually relaxed attitude to public disclosure and/or judicial intervention to expand the public record, there is much that will inevitably remain firmly behind closed doors. Yet the whole issue was kicked off by the Globe and Mail whistleblower’s guerilla liberation of CSIS documents. These painted a particular, alarming, view of Chinese interference. We have no idea how representative these documents are of the broader intelligence picture that CSIS might have drawn, or whether they were cherry-picked to build a particular damning case. Nor do we have any idea of CSIS assessments of the reliability of its sources. But it is likely that some at least of what has been now disclosed would not pass a reasonable test for official disclosure in a public inquiry report. So any inquiry will almost certainly face a public credibility test, whatever its conclusions. Since the Conservative leadership, based on its track record on this issue, seems unlikely to accept anything short of wholesale censure of the government, cries of a ‘Liberal cover-up’ and lack of transparency may be the inevitable partisan interpretation.

The second dimension of access to information has to do with access that the commission itself might be denied. Although the terms of reference and the inquiries act can insist on full disclosure to the commission of all relevant public records however classified, there is a tricky exception. Solicitor-client privilege can under certain circumstances limit what even a commissioner armed with a fulsome mandate might be allowed to see. Since criminal charges against individuals are a possible outcome of what an inquiry might dig up – and since there are already lawsuits emerging in this matter with a Liberal MP launching an action against Global TV – solicitor-client privilege may already be in play even before an inquiry is called.

To be sure, this is a fine principle of our legal system. Even if it potentially limits the access of a commissioner to the full record, it should be protected. But there is another aspect of solicitor-client privilege that is less reputable. This is where the government itself is in effect both solicitor and client. The one area where the Liberal government was obdurate about excluding information disclosed to the Rouleau inquiry was the advice the government had received from the Justice department concerning the legality of its invocation of the Emergencies Act. This, declared the Justice minister, was a matter of solicitor-client privilege. Parliament and public would have to simply trust his word that invocation was legal. It was never made clear if commissioner Rouleau was provided this legal advice in confidence, if the commissioner’s view that invocation was legal reflected that advice, or was arrived at independently.

My own view is that for the government to invoke solicitor-client privilege under these circumstances falls outside the spirit of that principle and is not defensible. Certainly the Commissioner should have seen the advice, but so should Parliament and the public to permit an informed judgement of the appropriateness of the government’s action. Hiding behind solicitor-client privilege can only rouse suspicions of a government cover-up. This is a small cloud already in place over the transparency of a possible inquiry on foreign interference.    

A public inquiry may indeed be the only way to deal with foreign election interference while being seen to deal with it. Public pressures may be difficult to ignore. But the record of like inquiries from the past suggests that such a course of action will be less than straightforward. Those raising inflated expectations for full public transparency from such an inquiry are either being naïve or cynical.