I suspect David Johnston, our former Governor General and the Trudeau government’s ill-fated pick to serve as an independent special rapporteur on foreign interference, is not an “I told you so” kind of guy. Too much class.
So, I will just quote from a key passage from his poorly-received first report on the secrecy problem:
…when I was appointed Special Rapporteur, I began with an inclination towards recommending a Public Inquiry. However, as I have undertaken the review process, I asked myself repeatedly what purpose a Public Inquiry could serve for Canadians in light of the restrictions on the material that would need to be before the Commissioner. I have concluded it would not serve a useful purpose to enhance trust.
A Public Inquiry would not be, in any material way, public. A commissioner would be in the exact same position I am in: reviewing material in private, speaking to witnesses in private, and ultimately providing the public with conclusions that do not cite much by way of specific evidence. This would be unsatisfying, just as my process is unsatisfying, because it cannot be done in public. But two unsatisfying processes are not going to satisfy. A Public Inquiry would delay but not prevent the inevitable grappling that Canadians (as well as media and Parliamentarians without a security clearance) will need to do with the fact that they are not going to see the intelligence, they are not going to see the internal memoranda, and they are not going to hear from the security agencies in any detailed way. This is in many ways unfortunate, but it is necessary to protect our national security, the sources our intelligence agencies rely on, and our obligations to the Five Eyes partners. [1]
Don’t like the message; kill the messenger.
The Foreign Interference Commission may well be headed, as Mr. Johnston predicted, to an unsatisfying conclusion as it grapples with the requirements of secrecy, the reality of a government culture of secrecy, and the demand for maximum (whatever that means) transparency. At best, it may prove David Johnston a little too pessimistic. At worst, it will prove him entirely right.
In the aftermath of the Foreign Interference Commission’s initial week of public hearings on the secrecy problem, held the last week of January, 2024, the participants with standing in this phase of the Commission’s work were asked to make submissions to Commissioner Hogue about what they had heard.
The submissions allow for a kind of gut check of where the pressure points lie for the Commission as it seeks to maximize the transparency of its work, while contesting with Government claims for protecting national security secrets. Submissions came from11 parties, plus the Government of Canada. [2] Commissioner Hogue responded to the submission in her “3rd Notice to the Public.” [3]
The submissions from the parties contained an expected emphasis on the need for maximum transparency, sometimes buttressed by substantial reference to legal cases and principles. Ideas for getting to maximum transparency largely revolved around proposed legal remedies, including demanding access to all Cabinet confidences; the need to use special advocates (‘amicus curiae’) to challenge government claims for national security confidentiality; somehow speeding up any resolution through the courts of government claims to protect classified information (good luck with that); allowing counsel for the parties, if sufficiently security cleared, to take part in any in camera sessions involving witnesses (this was a favourite of the lawyers but ruled out by the Commission’s terms of reference); ensuring that summaries of in camera hearings can be provided; and allowing the parties knowledge of any proceedings under s38 of the Canada Evidence Act where the government refuses the release of confidential information and even provide for submissions by the parties on such claims. That one is actually ruled out by the Canada Evidence Act, but nice try.
Most of this, to be honest, will not push the envelope. Few, if any, of the proposals will be met. None of it addresses the realities of the problem of secrecy. But the repeated call for maximum transparency will at least give the Commissioner some backing when she confronts government claims of secrecy.
While the lawyers were being lawyerly, somewhat more interesting, to my mind, were submissions from those representing diaspora groups, and submissions from politicians with standing at the inquiry.
Diaspora groups such as the ‘Russian Canadian Democratic Alliance” and the “Concern Group, (short for “Chinese Canadian Concern group on the Chinese Communist Party’s Human Rights Violations”) combined a call for maximum transparency with an argument that diaspora groups are especially vulnerable to foreign interference and their issues must be at the heart of the inquiry. The possible need for protections for diaspora community individuals who might testify was also raised.
Some diaspora groups have, unfortunately, pulled out of the Commission because of their concerns about standing given to some politicians with alleged close ties to the Peoples’ Republic of China (PRC) and fears around inadequate security protocols for any testimony they might provide. The first to do so was the Uyghur Rights Advocacy Project at the end of January. [4] They were followed a month later by the “Canadian Friends of Hong Kong.” [5]
The Commissioner subsequently posted a brief statement on the inquiry’s website trying to reaffirm her desire to hear from diaspora groups and the protections available to witnesses who might testify on behalf of such groups. [6]
These withdrawals are, in my view regrettable, and likely based on misapprehensions of the nature and work of the Commission. They have served to undermine, at least to a degree, the Commission’s public stature.
Those political actors who are participants in the first phase of the Commission’s work offered a variety of perspectives in their submissions. [7] Jenny Kwan, a NDP MP, made a point of being critical of the Special Rapporteur’s work for failing to meet the standard of full transparency, as she determined it. Michael Chan, a former Ontario Liberal cabinet minister, wanted to see some caution around any presentation of classified intelligence information to ensure that it was not taken at face value and treated automatically as truth. Michael Chong, a Conservative MP and its foreign affairs critic, included an attack on the current government, who “can be expected to resist disclosure, resist discussion and resist determinations.” The tenor of this remark perhaps underscores the rationale used by Commissioner Hogue for denying full standing to political parties as entities, in the interest of avoiding a descent into partisan political debate.
Standing apart from all the other submissions was one from the Pillar society—an organisation for retired members of the RCMP and CSIS. Written by Dan Stanton, a former senior CSIS officer, the submission stood out for its brevity (one page!); its humorous passages; and for the fact that it actually addressed the issue of how the Commission should treat classified information—emphasizing the potential value of strategic summaries of redacted documents. The Pillar society report argued that raw reporting should not be declassified, why?--because it is “intelligence, not evidence and is open to a range of misinterpretation.”
The Pillar society submission also suggested that there would be a limited quantity of protected allied reporting concerning foreign interference among the records relevant to the Commission’s work and that concerns about the presence of “third party” intelligence requiring substantial redactions was likely overblown.
These submissions by the parties amount, in the end, to skirmishing on the edges of the key battle over secrecy and transparency, which is between the Government and the Commission.
Reading the submission of counsel for the Attorney General, and the response from the Commissioner, is key to figuring out the dynamics of the battle ahead.
Government counsel in their submission lay out the reasons why secrecy matters and the types of classified information that must be protected. They offer some limited solutions to enhancing the goal of transparency for the Commission. These include urging a “write to release” policy to avoid having to redact classified information; focusing redaction efforts on “certain key documents;” working with the Commission to allow summaries to be published of in camera hearings; and supporting the Commission’s efforts to explain why certain information cannot be published.
Government counsel position themselves as collaborators in the Commission’s work to inform Canadians—but that does not mean any departure from the protection of secrets as the government defines them.
The Commissioner’s response to all the participants’ submissions sets the ground for what comes next. [8]
It is clear from that response that the Commissioner understands the tight box she is in in terms of secrecy protections. That box is outlined in the Commission’s terms of reference and by legislation. The Commissioner is clearly prepared to accept the practice of issuing unclassified summaries of classified information, but makes no mention of accepting the Government’s idea of working to redact only a small number of “key documents.” The prospect is raised of the Commissioner engaging in a challenge of Government claims of national security confidentiality and kick-starting a process enshrined in section 38 of the Canada Evidence Act, where designated judges of the Federal Court would hear arguments about the matter and reach a judgement.
Resort to the provisions of the Canada Evidence Act is an empty threat, for two reasons. One is that the tight timelines laid down for the Commission’s reporting do not allow for an appeal to the Federal Court. The other is that, in any case, the Government retains the legal final say over release of classified information. The Commissioner may be counting on the Government’s reluctance to use its Canada Evidence Act powers, but that is a long-shot gamble.
In other words, the outcome of these deliberations to date looks perilously close to the argument made by David Johnston against holding a public inquiry.
While the issue of secrecy versus transparency has been bandied about in the Commission’s work, in general and often high-minded ways, what is surprising is that the discussion has not really explored the culture of secrecy itself, which is ultimately what the Commission is tilting against.
That culture is a product of many things, not least the laws that underpin it, which provide for a very broad definition of secrets and an equally broad definition of harms that could arise from the loss of secrets, contained in the centrepiece Security of Information Act (SOIA) of 2001. The SOIA is legislation vital to understanding the work of the Commission as it strives for transparency. To date no attention has been paid to it.
The culture of secrecy is also a product of how classification labels are affixed to records, to deem them anything from basement level “protected B” status to stratospheric “TSSI” (Top Secret Special Intelligence).
There are three things to keep in mind about what is essentially an archaic system of classification. One is that classification decisions are usually left to the originator of the intelligence report, and are rarely reviewed at any higher level of authority. A second is that overall classification markings on an intelligence document are a product of the highest level of classification of any part of the document. The classification does not necessary distinguish between more and less sensitive passages in an intelligence report. If one line is TSSI, the whole document becomes TSSI. The third element in the classification practice is a mix of human and bureaucratic behaviour. On the human side of things there will always be an aversion to taking risks by putting lower levels of classification markings on a document, for fear of letting something slip. The problem is compounded by a bureaucratic temptation to over-classify in order to raise the profile of a document and bring greater attention on the part of consumers to it. Pump its tires, in other words.
The culture of secrecy persists because of the lack of any muscle memory in the system about alternative ways of doing things. Such a muscle memory could be generated if Canada had any system for the declassification of intelligence records, either on historical grounds, reflecting the fact that records lose their sensitivity over time, or on contemporary strategic grounds, to try to influence an understanding of current events. Despite calls for the creation of a declassification process, along the lines adopted by some of our close allies, no such thing currently exists and a small pilot project managed by Public Safety Canada remains stalled.
The absence of a declassification process robs the potential for creating a more elastic approach to transparency of national security information, and inculcating an altered secrecy culture.
An even greater inhibitor is the ways in which the Access to Information Act and its many exemptions are used to block releases of requested records. The ATIA is the process that is customary used to reinforce government secrecy in the face of public demands for information. It is the current muscle memory and it works against transparency.
Then, finally, there is a deep well of history. Since the shock of the Gouzenko spy ring revelations in 1945-1946, the Canadian state has always put a premium on the protection of secrets, in order to maintain its ally-worthiness. This premium has only been reinforced by the desire to sustain Canada’s place in the Five Eyes intelligence system, to which we make a modest contribution but extract an enormous benefit in terms of allied secrets. To be a trusted partner, Canada must demonstrate its capacity to keep secrets. This is a self-referential burden that must not be under-emphasized.
So here is a prediction. In its short lifespan the Foreign Interference Commission, whatever its good intentions and earnest work, will not change the ground rules that protect a culture of secrecy. Best case, it might prove David Johnston a tad pessimistic.
What it could contribute would be an analytic critique of the culture of secrecy, and recommendations for reform, as a foundation for change in the future.
That would be worth the coin and all the lawyers.
[1] First report of the independent special rapporteur on Foreign Interference, Section VIII, “Conclusions,” paragraph 3, “The limits on a Public Inquiry,” https://www.canada.ca/en/democratic-institutions/services/reports/first-report-david-johnston-independent-special-rapporteur-foreign-interference.html
[2] The submissions can be found on the Foreign Interference Commission website under the “documents” heading, https://foreigninterferencecommission.ca/documents/submissions
[3] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, “3rd Notice to the Public” https://foreigninterferencecommission.ca/fileadmin/foreign_interference_commission/Documents/Procedural_Documents/Notices/3rd_Notice_to_Public.pdf
[4] For an account of the Uyghur group withdrawal, see Catherine Tunney, CBC News, January 31, 2024, https://www.cbc.ca/news/politics/foreign-interference-inquiry-fadden-1.7100381
[5] See Robert Fife and Steve Chase, The Globe and Mail, February 20, 2024, https://www.theglobeandmail.com/politics/article-second-diaspora-group-pulls-out-of-interference-inquiry/
[6] Foreign Interference Commission, “Statement on the Participation of Diaspora Groups,” February 22, 2024, https://foreigninterferencecommission.ca/fileadmin/foreign_interference_commission/Documents/Procedural_Documents/Notices/Statement_on_participation_of_disapora_groups_Feb_21_2024.pdf
[7] Of the set of individual politicians granted standing, Han Dong did not provide submissions. Erin O’Toole and Senator Yuen Pau Woo were granted intervenor status, but did not provide submissions. None of the three opposition parties granted intervenor status (CPC, NDP, and Bloc) provided submissions. Keeping powder dry?
[8] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, “3rd Notice to the Public” https://foreigninterferencecommission.ca/fileadmin/foreign_interference_commission/Documents/Procedural_Documents/Notices/3rd_Notice_to_Public.pdf
"Commissioner Hogue for denying full standing to political parties as entities, in the interest of avoiding a descent into partisan political debate."
The government in this case is the Liberal party so only one political party has full standing.
The government could, if it wanted the full truth, to be more transparent.
But instead, in this case - A Tory motion to launch a parliamentary committee study on the recently revealed Winnipeg lab documents, which show serious security breaches at the high-level security facility, has not received support from Liberal and NDP MPs.
Wesley, you seem to be shrugging nonchalantly. What have you seen/heard that you're not seething as this opportunity to strengthen our democracy and modernize our intelligence apparatus slips away?