Some advice for Justice Hogue on her foreign interference inquiry

Or, advice is cheap

Dear Madam Justice,

The clock is ticking. Six months to your first report. Not all of that six months will be your’s to play with (Christmas holiday break, negotiations with the government on public release, translation time--subtract a month at the back end).  You will have front-end time to expend getting your legal team together. Start-up time will eat significantly into your allotment. Time to read into the ‘great lake’ of classified documents will be limited. You will be bombarded by classified briefings from senior government officials.

Your terms of reference are both broad and vague when it comes to any definition of foreign interference.  Be aware of the potential for making them a recipe for failure.  Decide where your focus of concentration needs to be. China and Russia are the top tier foreign adversaries in this space.

The politicians who designed your Inquiry will have no hesitation in throwing you to the wolves if they so desire. The media will not be your friend. They already know what they want to hear from you.

You are the government’s designated “fresh set of eyes,” but lack of experience with the complex world of national security and intelligence presents you and your legal team with a steep learning curve. You will have to decide which are the most important rocks to turn over and peer beneath. Government officials won’t help you with that.

So where to begin?

1.     We have had three judicial inquiries since 9/11 dealing with national security matters (O’Connor on Arar, Iacobucci on related mistreatment issues; Major on Air India). Reach out to the Commissioners and their lead counsels, especially Dennis O’Connor, for advice and reflections.

2.     Reach out to Justice Rouleau to learn about his experience in heading the Public Order Emergency Commission and trying to explore the world of national security and intelligence

3.     Read the crop of independent Canadian reports on national security challenges, including the CIGI report (December 2021), the University of Ottawa Task Force study (May 2022) and the just-released Business Council of Canada publication on economic security and its place in national security (September 2023). You can find them here:

https://www.cigionline.org/publications/reimagining-a-canadian-national-security-strategy/

https://www.uottawa.ca/faculty-social-sciences/sites/g/files/bhrskd371/files/2022-09/natsec_report_gspia_may2022.pdf

https://thebusinesscouncil.ca/report/economic-security-is-national-security/#:~:text=Canada%27s%20new%20geopolitical%20reality%20means,issues%20has%20made%20us%20vulnerable.

4.     Read the classified version of the 2019 report on Foreign interference authored by the National Security and Intelligence Committee of Parliamentarians. Its recommendations were ignored at the time.

5.     Read the special rapporteur’s report and its classified annex.  David Johnston covered the same ground you are tasked with in your first report, due at the end of February.  You will need to quickly determine what more you need to investigate and what you can add to his findings and recommendations, even if there is no mention of this in your terms of reference. Politicians may want to sweep his report under the rug, you should not.

6.     Make yourself familiar with the work being conducted on foreign interference by both the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians. Have frank discussions with the chairs of both committees and with their respective research directors to establish what the value added of your Inquiry can be. Again, this is not in your terms of reference, but something you need to do.

7.     Designing public hearings that can feed into your first report will be extremely challenging, given the short time frame. It will be important that your first set of public hearings addressing concerns about foreign interference in the 2019 and 2021 elections, is evidence based, particularly when it comes to political claims, and is able to hear from Canadian communities who have been impacted by election meddling.

8.     You are directed to hold an initial public hearing on the nature of classified information  and the need to protect secrets. Be sure that this initial public hearing is not a one-sided briefing by government officials. Build in a challenge function.

9.     Press the government to declassify some of the key leaked documents provided by anonymous sources to the media on Chinese election interference.

10.  Do not shy away from criticizing the media presentation of election interference issues should that seem necessary. It won David Johnston no friends, but you are not in the friends-winning game.

The bigger task you face will come with the second phase of your mandate, to make recommendations to improve Canada’s capacity to deal with foreign interference going forward.  You won’t have much time to really dig into this issue, but be sure to familiarise yourself with the work being done by our closest intelligence partners in the Five Eyes as a starter.

More advice to come…