The Globe and Mail is reporting some details of the alleged agreement reached between the political parties (including, you know, the Liberals?) on a public inquiry into democratic interference.
https://www.theglobeandmail.com/politics/article-china-public-inquiry-csis-officers/#
Just in case you missed it (or don’t carry a Globe subscription), the barebones leaked details are these:
Terms of reference have been agreed (the leak includes limited details, where the devil truly matters in the language)
The scope is to include China, Russia and apparently other foreign state or non-state actors, as the NDP has called for. The question of potential impacts on the 2019 and 2021 federal elections is to be revisited, despite the findings of two previous independent expert reports (Judd and Rosenberg) and the Johnston report. According to the Globe, the inquiry would “also look at the flow of foreign-interference assessments to senior government decision-makers, including elected officials.” This is exactly what is currently being reviewed independently and separately by the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians.
On timing, the leak indicates that the “parties” want an initial report by December 7, with a second and final report no later than end of December 2024. This sounds like an adaptation of an unrealistic NDP demand.
Even so, the likelihood of an as-yet-unnamed commissioner/commissioners being able to get security cleared, assemble a team of security-cleared lawyers, get briefed by government officials, review a large “lake” (as David Johnston called it) of highly classified material, hold public hearings with witnesses, analyse everything, and submit any kind of report by December 7 (with lead time for translation and redactions) is pure pie in the sky.
The leak further suggests that formal terms of reference will be decided between the government and its chosen commissioner/commissioners. But that is not how things work. Terms of reference for a judicial inquiry under the Inquiries Act are laid down by an order in council. They can be subject to some discussion before hand, always a good idea, but at the end of the day, the government decides on them.
No commissioner or commissioners have been named. On the kind of speeded-up time table the “parties” apparently want, the pool of eligible judges would be very small (the pool of eligible, willing judges presumably even smaller). The essential qualifications would have to be knowledge of national security and intelligence matters and a current top-secret security clearance. For judges that would likely mean seeking a candidate from the “designated” justices on the Federal Court, (those who hear national security cases) and asking a judge to step down from the Court to take on this particular chalice. Maybe a retired or supernumerary judge with these qualifications could be found, but it’s a big maybe. This is the same profile as is required to fill the post of Intelligence Commissioner, and that is not an easy task. The recently appointed Intelligence Commissioner, Simon Noel (formerly of the Federal Court before his retirement) would have been an excellent candidate to take on a democratic interference study, but he is not in play.
Then there is the interesting suggestion that “Opposition party leaders, who have received security clearances, would be allowed to review unredacted versions of the Commissioner’s reports” (again according to the Globe). This reminds us of the significance of classified information to any judicial inquiry and of the necessity of guarding the release of some of it in any public form. Will opposition party leaders play along? They didn’t with respect to the government’s offer to have them read the classified annex of David Johnston’s report.
The leak, such as it is, suggests to me that there is still a lot of groundwork to be done before a satisfactory formula is found, if it ever is, for a judicial inquiry. Call this ragging the puck if you like. Alternatively, call this reality.