Who's Calling for an Intelligence review?

The Rouleau Commission guessing game

February 2023 will mark the first anniversary of the events of the “Freedom Convoy” protests. What is (happily) in most people’s rear view mirror will be brought back to attention by publication of the report by the judicial Inquiry that was established under the terms of the Emergencies Act legislation. The report must be presented to Cabinet no later than February 6. It will subsequently be tabled in Parliament at the end of the month.

It’s hard to resist a guessing game about what the report from Commissioner Rouleau will contain. The Commissioner kept his cards close to his chest during the public hearings and ventured few questions. Testimony was heard from a wide and diverse array of witnesses, from affected citizens of Ottawa, to the Prime Minister. Thousands of pages of documentary evidence was presented to the Commission. No clear focus emerged.

The best clues we have are contained in the terms of reference of the Inquiry. Actually, there are two distinct terms of reference, one general, one slightly more specific. The general one was contained in the Emergencies Act passed in 1988. It says simply that “the Governor in Council shall, within sixty days after the expiration or revocation of a declaration of emergency, cause an inquiry to be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” (s63(1))

https://laws-lois.justice.gc.ca/PDF/E-4.5.pdf

The more specific terms of reference were contained in the Order in Council that established the Commission. It adopts the language of the original legislation but adds some additional direction to “examine issues, to the extent relevant to the circumstances of the declaration and measures taken, with respect to (I’m paraphrasing):

the nature of the convoy protest

the impact of funding of the protest

misinformation and disinformation as an element of the convoy protest

the impact of blockades

the efforts of police and other responders

The Order in Council further directs the Commission to set out findings and lessons learned regarding the use of the Emergencies Act and the effectiveness of the measures taken.

Finally, the Commission is enjoined to make recommendations “on the use or any necessary modernization of the Act, as well as on areas for further study or review.”

https://publicorderemergencycommission.ca/files/documents/Order-in-Council-Décret-2022-0392.pdf

Besides the Commission’s mandated focus on the Emergencies Act and its use, it will also have to try its hand at a first draft of the history of the Freedom Convoy itself. That is what will bring readers to its report, I suspect.

But there is a missing dimension to the directions provided in the legislation and the Order in Council provided to the Commission. There is no explicit attention given to the critical role played by intelligence reporting and threat assessments in determining the responses of police agencies to the Freedom Convoy protest, and ultimately the determination of the federal government to declare a Public Order Emergency. Its absence in the directions given to the Commission is glaring but difficult to explain. Yes, there is language in the Order in Council directions that could be utilized, but it is far from explicit. The role of intelligence could be considered part of the action of “other responders.” It could be addressed by the Commission as part of the encouragement to consider “areas for further study or review.” It could be considered a component of the “circumstances that led to the declaration being issued,” as the Emergencies Act legislation has it. Admittedly, this is not much of a hat to hang an important and necessary study on.

The best outcome would be for the Commission to detail the problems faced in providing an accurate gauge of the intentions and capabilities of the Freedom Convoy protest. It could find that the government suffered an intelligence failure. From there it would be well within its mandate to recommend the need for further study and review of Canada’s intelligence capacity.

This lends weight to an important article published recently by the Centre for International Governance Innovation.

https://www.cigionline.org/articles/after-the-emergencies-act-canada-needs-an-intelligence-system-review/?utm_source=cigi_newsletter&utm_medium=email&utm_campaign=insights-on-governing-trade-from-leading-digital-economies

The author, Greg Fyffe, is a former Assistant Deputy Minister who led the PCO’s Intelligence Assessment Secretariat for a period of 8 years following the 9/11 attacks. Over the last decade he has devoted himself to teaching professional courses, including on intelligence and leadership.His experience gives him an excellent perspective on both the importance of intelligence and some of the reluctance that attends efforts to discuss change and reform of intelligence in public.

He argues that a comprehensive review of Canada’s intelligence system is needed given what we have learned from the events of the Freedom Convoy and the contextual reality of a vastly changed threat environment. Fyffe contends that the standard kinds of interval reviews and what he calls “incremental updates” are not sufficient to meet current needs. They can be limited by senior-level consensus- seeking, lack of breadth, and focus on near-term change. He argues that such reviews may be pragmatic but can lack innovation, don’t promote public debate, and fail to engage all levels of the national security and intelligence system.

His best option is an “independent, outside review with a broad mandate.” He looks to an Australian model of regular public reviews of the intelligence system, a practice that emerged from Australia’s independent inquiry into its intelligence failures with respect to assessments of Iraq’s WMD program. The most recent Australian review, published in June 2017, led to important changes with regard to improvements in governance, intelligence assessment, implementation of intelligence priorities, and systems for technological adaptation.

If it can happen in Australia, a close counterpart to Canada in the Five Eyes intelligence partnership, why not here?

Instituting a Canadian intelligence review really depends on two things—political will (backed by some sense of public expectation for action) and a sense of urgency. The conditions for both could be set by the report of the Rouleau Commission.

Or not.

And if not? The Canadian intelligence system may grow increasingly unable to offer a high-quality picture of the domestic and international threat environment, on which wise decision-making depends. Coordination will continue to be a problem; the legal framework will suffer from outdated statutes (especially the CSIS Act); intelligence assessment work will remain fractured and under-funded; intelligence priority setting and reporting to the highest levels of government remain hit and miss; the opportunities provided by open-source intelligence under-utilized; technological innovation not seized.

The 2017 Australian intelligence review stated that the aim of its recommendations was “to turn highly capable agencies into a world-class intelligence community.”

https://www.pmc.gov.au/sites/default/files/resource/download/2017-Independent-Intelligence-Review.pdf

Is there such an ambition in Canada?