Thanks for sharing this, I knew Prof. Whitaker from Carleton where I did my undergrad in Poli Sci and York, where I knew people who did grad school there (York basically poached Carleton's Cdn/Political Economy profs like Prof Whitaker and Leo Panitch). He always had sharp insights, and still does!
I should add (3 days later, after the Chong revelations) that despite serious reservations about the utility of a public enquiry, I am now convinced that this legal mechanism is the only way in which this controversy can now be profitably move forward. Precisely because witnesses are legally obliged to tell the truth, and they can be cross-examined, and there are legal consequences for lies or evasions, and because invoking “national security” may not necessarily avoid scrutiny – as if it were some magic talisman that operates without explanation or context or justification. I think that the recent revelations and the antics in Parliament make this option, inevitable.
A public enquiry is a quasi-judicial mechanism that mimics the processes of a court. It is not a political exercise. Nor is it a forum for airing allegations divorced from actual proof – even though that has been the hallmark of the present controversy. An enquiry is more like a trial, in which evidence is adduced to establish what happened, and why, and then, sometimes, to recommend what might be done about it.
But are the opposition parties, really calling for more scrutiny of themselves and their apparatchiks – how they do business? I doubt it. Not in Canada. Not in Charter-land. Not in respect of ethnic communities that are so assiduously courted by politicians of all stripes.
Moreover, is a pubic enquiry the best means to examine the current problem whatever it is? I doubt that too.
It is common ground that a “pubic enquiry” is supposed to be “public”. That is one of its attractions. But how does that work, when the arguably relevant material is confidential, and statutes that may have to be waived, if it is to be made public? Who decides and how? Must it be done in advance? Will the “public” enquiry have to go “behind closed doors”? And how does that look to the conspiracy-minded?
Will all of the participants (see below) have full, and timely advance disclosure of all arguable relevant documents; and will that be made public? Or will the process be punctuated by redactions and exclusions, which will inevitably produce allegations of a cover-up - like those that were mooted in the Admiral’s trial.
***
It should also be understood that a public enquiry is part of a broader legal framework, that includes procedural fairness for enquiry participants; and further that those issues will be subject to review by the Courts. A public enquiry may be independent from government, but it is still subject to the rule of law, especially if the Charter comes into play. And that is the terrain of judges, not politicians.
But, speaking of “the law” again: will we will learn whether anyone thought that any laws have been broken, (apart from by the leakers themselves of course), or whether police agencies were alerted to that possibility? If the answer is “yes”, is there an ongoing investigation? And if there is, what is its relationship to the enquiry? And if the answer is “no”, then why all the fuss?
Indeed, to get back to the basics: what are the “allegations” about anyway? Who screwed up and how? For despite all the noise, it is not at all clear to me that there have been any governmental “failures”, let alone any unlawfulness (apart, from the leaker), or even whether there were things that CSIS or the RCMP ought to have done, but didn’t? And without knowing what allegedly went wrong, if anything, one can’t even guess at what documents or witnesses might be relevant.
***
As I see it, the furor seems to have been generated by a single disgruntled civil servant and a press that insistently demands: “Justin Trudeau should have done something about this”. But those who say such things, seem to have totally forgotten all the stern pronouncements during the Rouleau enquiry, that politicians must never, ever, tell law enforcement what to do.
Accordingly, what was the PM supposed to do with whatever it was that he was allegedly told? Was he supposed to call up Brenda Lucki and tell her to get right on it? But isn’t that a big “no no" ? And wasn’t there a big fuss about Bill Blair seeking information about an investigation that was then ongoing? Wasn’t the rule: “politicians keep out!”?
Furthermore wouldn’t one expect that CSIS and the RCMP already have protocols in place about how to coordinate their approach to information gathering on the one hand, and actual lawbreaking on the other; since that dichotomy is what produced the institutional split in the first place?
In summary, it seems to me that the utility of a public enquiry is quite debatable and that its operation is fraught with many unanswered questions. And the most important one is this: what are its terms of reference? What is it that the Commission supposed to do or to determine? And of course, there is the utility of the exercise: is it likely to be any better at detecting flaws or failures than, say, NSICOP or NSIRA, which were created to perform that very oversight function?
Then there are all those messy questions about the “hearing mechanics”?
Like: who will be entitled or required to appear and to testify about allegations which, as things now stand, remain totally amorphous and lacking in particulars, since the real accusers are journalists who have no first-hand knowledge of anything, and their “sources” are fragmentary, and (so it is said), must remain secret.
Will the Commission require those journalists to fess up and reveal their sources? What if they refuse to do so, creating yet another distraction, delay, and maybe some Charter issues too? Will the journalists find refuge in the Canada Evidence Act, which now has a form of “journalistic privilege”? And does anyone really think that a journalist will go to jail until the Supreme Court of Canada makes that pronouncement. And how long will that take?
Similarly, who will be allowed to participate in this costly fishing expedition? How many people or institutions will have the right - or the obligation - to come to the party? The media companies that acted as a megaphone for the leakers? Chinese Canadian Organizations? Individual politicians who have been personally pilloried by allegations against them? The political parties, because surely they have an interest in election interference and how to avoid it? The RCMP? CSIS. And so on.
***
Accordingly it seems to me that despite all the simple-minded chatter about the necessity of a “public enquiry” what is being proposed here is a complex legal and administrative undertaking, and there is no indication whatsoever that those making that demand - especially journalists - have given much thought to how it will will work in practice.
For there is no guarantee an enquiry can be quickly established or that it will proceed with dispatch - particularly when any effort to focus or streamline it, will likely be met with allegations of a “cover-up”. Because such enquiries typically take years; and, in the result, there may well be an election before this enquiry one finishes its work. And in the meantime, what are the designated oversight bodies like the NSIRA or the NSICOP are supposed do? Because, one thing that the secret leaker has surely done, is to totally subvert the established process of regulatory oversight – ironically, including the one that contains politicians.
In summary, it seems to me that there has been far too much hand wringing and speculation in this situation, and far too little thought.
Which is why I find Mr. Wark’s pieces so measured and so illuminating.
Thanks for sharing this, I knew Prof. Whitaker from Carleton where I did my undergrad in Poli Sci and York, where I knew people who did grad school there (York basically poached Carleton's Cdn/Political Economy profs like Prof Whitaker and Leo Panitch). He always had sharp insights, and still does!
I should add (3 days later, after the Chong revelations) that despite serious reservations about the utility of a public enquiry, I am now convinced that this legal mechanism is the only way in which this controversy can now be profitably move forward. Precisely because witnesses are legally obliged to tell the truth, and they can be cross-examined, and there are legal consequences for lies or evasions, and because invoking “national security” may not necessarily avoid scrutiny – as if it were some magic talisman that operates without explanation or context or justification. I think that the recent revelations and the antics in Parliament make this option, inevitable.
Thanks for this historical note. For a brief and quite readable summary of how public enquiries work, see the following: https://litigate.com/assets/uploads/20211006-115817-4098-Public-Law-Guide-Inquiries.pdf
***
A public enquiry is a quasi-judicial mechanism that mimics the processes of a court. It is not a political exercise. Nor is it a forum for airing allegations divorced from actual proof – even though that has been the hallmark of the present controversy. An enquiry is more like a trial, in which evidence is adduced to establish what happened, and why, and then, sometimes, to recommend what might be done about it.
But are the opposition parties, really calling for more scrutiny of themselves and their apparatchiks – how they do business? I doubt it. Not in Canada. Not in Charter-land. Not in respect of ethnic communities that are so assiduously courted by politicians of all stripes.
Moreover, is a pubic enquiry the best means to examine the current problem whatever it is? I doubt that too.
It is common ground that a “pubic enquiry” is supposed to be “public”. That is one of its attractions. But how does that work, when the arguably relevant material is confidential, and statutes that may have to be waived, if it is to be made public? Who decides and how? Must it be done in advance? Will the “public” enquiry have to go “behind closed doors”? And how does that look to the conspiracy-minded?
Will all of the participants (see below) have full, and timely advance disclosure of all arguable relevant documents; and will that be made public? Or will the process be punctuated by redactions and exclusions, which will inevitably produce allegations of a cover-up - like those that were mooted in the Admiral’s trial.
***
It should also be understood that a public enquiry is part of a broader legal framework, that includes procedural fairness for enquiry participants; and further that those issues will be subject to review by the Courts. A public enquiry may be independent from government, but it is still subject to the rule of law, especially if the Charter comes into play. And that is the terrain of judges, not politicians.
But, speaking of “the law” again: will we will learn whether anyone thought that any laws have been broken, (apart from by the leakers themselves of course), or whether police agencies were alerted to that possibility? If the answer is “yes”, is there an ongoing investigation? And if there is, what is its relationship to the enquiry? And if the answer is “no”, then why all the fuss?
Indeed, to get back to the basics: what are the “allegations” about anyway? Who screwed up and how? For despite all the noise, it is not at all clear to me that there have been any governmental “failures”, let alone any unlawfulness (apart, from the leaker), or even whether there were things that CSIS or the RCMP ought to have done, but didn’t? And without knowing what allegedly went wrong, if anything, one can’t even guess at what documents or witnesses might be relevant.
***
As I see it, the furor seems to have been generated by a single disgruntled civil servant and a press that insistently demands: “Justin Trudeau should have done something about this”. But those who say such things, seem to have totally forgotten all the stern pronouncements during the Rouleau enquiry, that politicians must never, ever, tell law enforcement what to do.
Accordingly, what was the PM supposed to do with whatever it was that he was allegedly told? Was he supposed to call up Brenda Lucki and tell her to get right on it? But isn’t that a big “no no" ? And wasn’t there a big fuss about Bill Blair seeking information about an investigation that was then ongoing? Wasn’t the rule: “politicians keep out!”?
Furthermore wouldn’t one expect that CSIS and the RCMP already have protocols in place about how to coordinate their approach to information gathering on the one hand, and actual lawbreaking on the other; since that dichotomy is what produced the institutional split in the first place?
In summary, it seems to me that the utility of a public enquiry is quite debatable and that its operation is fraught with many unanswered questions. And the most important one is this: what are its terms of reference? What is it that the Commission supposed to do or to determine? And of course, there is the utility of the exercise: is it likely to be any better at detecting flaws or failures than, say, NSICOP or NSIRA, which were created to perform that very oversight function?
Then there are all those messy questions about the “hearing mechanics”?
Like: who will be entitled or required to appear and to testify about allegations which, as things now stand, remain totally amorphous and lacking in particulars, since the real accusers are journalists who have no first-hand knowledge of anything, and their “sources” are fragmentary, and (so it is said), must remain secret.
Will the Commission require those journalists to fess up and reveal their sources? What if they refuse to do so, creating yet another distraction, delay, and maybe some Charter issues too? Will the journalists find refuge in the Canada Evidence Act, which now has a form of “journalistic privilege”? And does anyone really think that a journalist will go to jail until the Supreme Court of Canada makes that pronouncement. And how long will that take?
Similarly, who will be allowed to participate in this costly fishing expedition? How many people or institutions will have the right - or the obligation - to come to the party? The media companies that acted as a megaphone for the leakers? Chinese Canadian Organizations? Individual politicians who have been personally pilloried by allegations against them? The political parties, because surely they have an interest in election interference and how to avoid it? The RCMP? CSIS. And so on.
***
Accordingly it seems to me that despite all the simple-minded chatter about the necessity of a “public enquiry” what is being proposed here is a complex legal and administrative undertaking, and there is no indication whatsoever that those making that demand - especially journalists - have given much thought to how it will will work in practice.
For there is no guarantee an enquiry can be quickly established or that it will proceed with dispatch - particularly when any effort to focus or streamline it, will likely be met with allegations of a “cover-up”. Because such enquiries typically take years; and, in the result, there may well be an election before this enquiry one finishes its work. And in the meantime, what are the designated oversight bodies like the NSIRA or the NSICOP are supposed do? Because, one thing that the secret leaker has surely done, is to totally subvert the established process of regulatory oversight – ironically, including the one that contains politicians.
In summary, it seems to me that there has been far too much hand wringing and speculation in this situation, and far too little thought.
Which is why I find Mr. Wark’s pieces so measured and so illuminating.