Shine a light on China's meddling, yes but...

A Definite No to an Inquiry

The Globe and Mail published an editorial today (February 28) calling for a judicial inquiry into media leaks (to the Globe) regarding Chinese election interference in the 2019 and 2021 federal elections.

https://www.theglobeandmail.com/opinion/editorials/article-shine-a-light-on-chinas-election-meddling-call-a-public-inquiry/

This call is supported by various distinguished folk, including a former director of CSIS and National Security and Intelligence Adviser, Dick Fadden, who has his own problematic history of trying to call attention to political interference from China. The Globe has also called on a former chief electoral officer, Jean-Pierre Kingsley, who last served in that capacity sixteen years ago, to support its campaign.

The superficial attraction of an inquiry is clear—it would provide an independent and trusted source of fact finding regarding Chinese interference.

But the idea is a bad one, and there are much better alternatives.

Bad, why? Let me count the ways (apologies to Elizabeth Barrett Browning’s famous poem)

Judicial inquiries take time—probably a minimum of two to three years. By that stage we might well have had another federal election!

Any judicial inquiry would run up against the problem of highly classified intelligence. Unlike the anonymous leakers who have been feeding the Globe and Mail and Global News since last Fall, a judge cannot ignore the law (the Security of Information Act) and simply publish what he learns. Any government in its right mind would move heaven and earth to protect classified sources and methods, including any intelligence take from intercepts of Chinese communications. They would be right to do so and have the power to do so through section 38 of the Canada Evidence Act which prohibits the disclosure of information injurious to international relations, national defence, or national security.

https://laws-lois.justice.gc.ca/PDF/C-5.pdf

So the public would be none the wiser about the details.

Judicial inquiries are run by judges and staffed by teams of lawyers. All good and trusted individuals, of course, but usually with almost no knowledge of national security issues and a steep learning curve ahead of them. The Rouleau Commission which recently reported its findings on the government’s use of the Emergencies Act in the face of the so-called “Freedom Convoy” is a case in point.

Judicial inquiries are meant to be fact-finding exercises. The “facts” in the case of Chinese election interference are thin on the ground, subject to media interpretation, and political brinkmanship.

I don’t meant to disparage judicial inquiries. They have an important role to play and have been crucial to advancing understanding and policy with regard to national security threats since the Gouzenko Royal Commission reported on a Soviet spy ring in 1946.

But now is not the time nor the right circumstance for a judicial inquiry into allegations of Chinese foreign interference.

At the very least, it will be important to wait until the independent report written by Maurice Rosenberg, a former deputy minister of Justice, on the working of the Critical Election Incident Public Protocol with respect to the 2021 Federal Election is made public. The protocol establishes a panel of 5 senior public servants who have access to all intelligence reporting on election interference attempts during the writ period. The panel has the power to direct a head of a national security agency (CSIS or the RCMP) to issue a warning about an identified, significant foreign interference threat to an election.

https://www.canada.ca/en/democratic-institutions/services/protecting-democracy/critical-election-incident-public-protocol/cabinet.html

The panel was stood up in 2019 and issued no warnings about interference in the 2019 election. A report on its work during the 2019 election campaign was written by Jim Judd, a former CSIS director and deputy minister of defence. In his report he stated that the fact that the Panel did not have to intervene with a warning during the 2019 election was “good news” and that “on the whole the implementation of the Protocol had been successful.”

https://www.canada.ca/en/democratic-institutions/services/reports/report-assessment-critical-election-incident-public-protocol.html

The panel was again called into being in 2021 during the federal election writ period and again issued no warnings. The Rosenberg report will be important in assessing whether or not the Protocol operated properly. The report is in the hands of PMO and they need to make it public as soon as possible.

Incidentally, efforts to smear Mr. Rosenberg on the basis of allegations of Chinese funding directed to the Trudeau foundation when he headed it strike me as beneath contempt. See the Conservative party statement quoted by the Globe and Mail:

https://www.theglobeandmail.com/politics/article-csis-uncovered-chinese-plan-to-donate-to-pierre-elliott-trudeau/

We also need to expect more from the government in terms of substantive public reporting on national security threats. Consider this, the last CSIS public report covered the year 2021 and was issued in March 2022. That is simply not timely enough.

https://www.canada.ca/en/security-intelligence-service/corporate/publications/csis-2021-public-report.html

Such public reports need to be more current and more forward looking, as was a recent CSE national cyber threat assessment, 2023-2024.

https://cyber.gc.ca/en/guidance/national-cyber-threat-assessment-2023-2024

The Government published a now forgotten national security transparency commitment back in 2017, which was meant to be the engine for higher levels of public reporting. It has been a failure.

https://www.canada.ca/en/services/defence/nationalsecurity/national-security-transparency-commitment.html

Canadians need also to be more aware of the reporting done by the review bodies established by Parliament between 2017 and 2019 to report on the work of our national security and intelligence agencies. One of these review bodies, the National Security and Intelligence Committee of Parliamentarians, produced a report in 2019 on foreign interference.

https://www.nsicop-cpsnr.ca/reports/rp-2020-03-12-ar/intro-en.html

The Prime Minister is right to look to this committee, which is composed of members of both the House of Commons and Senate from all official parties, and who have high-level security clearances and access to classified documents and briefings, for reporting on Chinese foreign interference. So should Canadians look to it.

In the midst of all the media-led and politically partisan demands for an Inquiry we need to take stock of what we are doing to ourselves as a democracy. Yes, the Canadian public deserves to be better informed about national security threats. National security illiteracy is a real problem in this country. But at the same time we need to be careful about encouraging broad-brush suggestions that Chinese Canadians, or any diaspora community in Canada, are disloyal or easily vulnerable to campaigns directed from afar. We also have to maintain a modicum of trust in the ability of Canadians to come up with their own reasoned judgements about political events, even in a social media age. That is fundamental to democracy and to free and fair elections. To think otherwise is to actually encourage the objectives of states that would interfere in our polity.