*Dear Readers: I plan to provide extensive coverage of the Foreign Interference (FI) Commission, now that it has got rolling. Because the Centre for International Governance Innovation, where I am a senior fellow, has been granted standing for the second, “Policy,” phase of the Inquiry I want to make clear that the views offered in this substack newsletter are mine alone and do not represent any official policy of CIGI.
The FI Commission opened its first week of public hearings to a sparse crowd of onlookers at the Library and Archives Canada building, on a grey Ottawa day. It was a quiet day on the whole, except for an intake of breath moment in an afternoon presentation by Commission Counsel. Drama and fireworks will come later.
The Commissioner, Marie-Josee Hogue, began with an half-hour introductory statement that traced the history of the Commission’s establishment and included mention of the preceding work of special rapporteur David Johnston.
In her opener, Commissioner Hogue stressed two things. One was the expectation of a cooperative approach on the part of all participants granted standing in the Commission’s work. On that one, we shall see. The Conservative Party of Canada and a Human Rights coalition have both raised concerns about how the Commission will work, with the CPC objecting to the fact that it was denied full standing in the first phase of the inquiry and thus left unable to cross-examine witnesses, including Government Ministers and officials. In statements made public the CPC have not reflected on the discretionary power that Justice Hogue has made available, to allow entities with lesser intervenor status to pose questions and cross-examine witnesses. So this might be a real objection or political grandstanding.
The Human Rights coalition has threatened to abandon the Commission, on the very eve of the public hearings, over the fact that individuals it regards as having close ties with the People’s Republic of China (PRC) have been granted standing in the Commission’s first phase (including Michael Chan, and MP Han Dong) and thus will have access to any documents presented by the coalition and a right to cross-examine its depositions. The timing of this concern is odd, given that the coalition has been aware of the standing provided to Chan and Dong since early December. It would be regrettable if the coalition decided to act on its threat and withdraw from the proceedings, as its voice needs to be heard.
The second point the Commissioner made was that she intended to stay above the fray and will not take part in interviews with witnesses or in reviewing documents. This places great stress on Commission counsel to do a thorough job to understand the issues and convey their findings to the Commissioner. It will no doubt be an iterative process.
The FI Commission had recently issued a statement that in addition to the possibility of Russian and Chinese attempts at electoral interference it intends to also cast its eye on any Indian government interference. It does not seem this was prompted by any specific evidence at this stage. But fishing may turn up something (or not).
Following Commissioner Hogue’s address, the audience (in person and online) were taken through some presentations by Commission counsel. One, by Natalia Rodriguez, who also served as counsel for the Public Order Emergency Commission, discussed the unique status of commissions of inquiry and compared them with other elements of accountability, but curiously made no mention of the independent review bodies—NSIRA and NSICOP—that are completing their own studies of foreign interference. Both bodies will present their findings to Parliament in the near future. It is to be hoped that the FI Commission will have full access to the classified versions of the review bodies’ reports and will be able to effectively work together with them, something that was mandated for David Johnston’s work but was not included in the terms of reference of the Foreign Interference Commission.
Commissions of Inquiry all roll differently. In the case of the Foreign Interference commission it will have both a fact-finding mandate—to probe election interference attempts by foreign powers in the 2019 and 2021 federal elections—as well as a policy recommendations function in its second phase of work, to be devoted to the issue of how the federal government can best prepare itself to combat democratic interference in future.
I have long felt that the second, policy, phase is where the Commission can really make a contribution, both to government capacity and policy and to a wider public understanding of the threat and the challenges in meeting it. The first phase of the Inquiry treads ground already covered by David Johnston’s report as special rapporteur, as well as the independent reports produced in the aftermath of the two federal elections on the functioning of the government’s apparatus to detect election interference. Happy to be proved wrong if the Foreign Interference commission comes up with something genuinely new about election interference in 2019 and 2021, but I am skeptical.
As counsel Rodriguez indicated, Commissions of Inquiry are not trials, they are quasi-judicial in nature. Their job is not to find scapegoats but to uncover facts and probe systemic issues in order to make recommendations (pssst—recommendations are not binding, but Government will, inevitably, have to respond). To do that work a Commission employs lawyers (lots of them) to lead and question witnesses (under oath) and invites into the tent an array of public entities with a demonstrable stake in the issue. These entities can include individuals, advocacy organizations, even political parties. When granted standing, they have the power to cross-examine witnesses themselves. So Commissions, in that way, can and do generate a quasi-court-room atmosphere, but it is important that it does not stray too far into Perry Mason territory. There were problems in that regard that surfaced during the Public Order Emergency Commission, especially in the conduct of Freedom Convoy lawyers. Let’s hope there is no repeat in this Commission.
A follow-on presentation in the afternoon of day one was presented by Commission Counsel, Gordon Cameron. Mr. Cameron is an experienced national security lawyer and he described his talk as a “high-level” look at the nature of classified information. But it inevitably got into the weeds on understanding different levels of classified information and how they relate to concerns about harms, were classification protections to be breached. Weeds are OK; this is important baseline information, especially for those, and they may include parties to the Commission, who have little experience of the realm of official secrets or might be inclined to believe it is a gigantic shell-game to rob the public of its right to know.
Cameron stressed that the Commission will have access to all levels of classified information. He did not talk about “third party” intelligence—that is intelligence provided to Canada, with strict caveats on sharing, by allied partners.
The counsel did emphasize the difference between the Commission’s access to classified information and its authority to disclose it publicly. He called this the “inflection point.” Access does not mean disclosure. Nor does the Commission have any unilateral power to declassify records made available to it.
What the Commission can do is negotiate with the Government to achieve the best possible levels of transparency around classified information. Basically, an ask to the Government to declassify secrets. This process is where redactions come in. The Commission can push back on redactions in various ways, including lifting the redaction, or summarizing its contents, or insisting on the public interest quotient. This is, inevitably, a labour-intensive process. Will the Commission have time for all this—given its strict and looming deadlines? It has experienced staff, such as Mr. Cameron, but everyone has that ticking timepiece strapped to their wrist.
The Commission, in theory, can ultimately take its position on classified information to the Federal Court, and challenge the Government. But in reality, not in the lifetime of this Commission.
There was a final heart-stopper in Mr. Cameron’s presentations. He indicated that the message the Commission was getting from the Government was that a great deal of the volume of relevant intelligence on foreign interference was highly sensitive in terms of intelligence methods, in terms of impacts on Canadians, and in potentially assisting “sophisticated” adversaries in putting together a picture of what Canada knows. A very high proportion—about 80%--of the relevant intelligence, according to what the Commission understands, is classified at Top Secret level, or “above.” This is a magnitude greater than was the case for the Public Order Emergency Commission (POEC). Mr. Cameron is in a good position to understand the difference, as he was also counsel to POEC. It will make the challenge of transparency very real.
One other possible heart stopped was not administered by Mr. Cameron. This concerns problems around access and publication of Cabinet confidences—documents indicating how Cabinet makes high level policy decisions. Cabinet confidences are typically closely guarded, and for some good reasons. They can also be over-guarded. I guess we will have to wait on that one until later in the week.
Thank you for this introduction.
I for one am not familiar with the functioning of a Commission. I understand the recommendations it may make should be of importance to the security agencies and government and could result in changes to how monitoring and counteracting FI are dealt with.
I would feel more confident of a better outcome if an election was not around the corner.