Too much attention on rapporteur's PM connection, not enough on substance: Fasken lawyer
The recommendation to not order a full public inquiry into alleged foreign election interference in Canadian elections is “short-sighted” because it forgoes the truth-seeking tools and safeguards provided by a full public inquiry, says Fasken lawyer Andrew House, co-leader of the firm’s national security group practice.
“Elections and how governments are chosen are key parts of Canada’s critical infrastructure and lie at the heart of our democracy,” says House, who served as chief of staff to Ministers of Public Safety between 2010 and 2015 under the Harper government. House has direct experience in matters currently being discussed concerning foreign interference, the handling of intelligence, and interaction between security officials and ministers in the federal government.
House adds that the debate on foreign interference “is being fuelled not only by an interested and sometimes angry public” but an apparent “cadre of officials with access to information that should be kept secret.” However, House says this information will likely continue to flow to the media because of the decision not to hold an inquiry.
“The implications of continued leaks and continued lack of process to get at the truth around foreign interference are profound – particularly as there are pathways forward that could appropriately satisfy the need for information and rebuild the confidence of Canadians in our electoral processes.”
House’s comments come after the latest twist to the political storm over allegations that China meddled in the last two Canadian federal elections. Last week a government-appointed rapporteur, former Governor General David Johnston, recommended a public inquiry was not necessary.
He stated that such a probe would inevitably disclose sensitive information and that public hearings are a better option.
The recommendation has prompted the opposition Conservative party to question Johnston’s independence from the Trudeau government, which supports the recommendation.
China, for its part, has denied the allegations.
“What we’re debating here in Canada today is malign foreign influence,” says House, saying this is a “more insidious form” of trying to influence governments because it is not transparent.
“Canada really has not come to the forefront in terms of a discussion [on this] in a proper way,” he says. He notes that a former CSIS director did “fairly and squarely” put this on the table back in 2010-2011 and was “roundly criticized for his efforts.”
House says the issue went underground for several years and has only come up again for discussion recently. And while it is good news that we’re “having somewhat of a proper conversation on malign foreign influence,” the concern needs to be looked at more systematically.
He adds the discussion should identify, properly characterize, and suggest how to counter foreign influence, particularly during elections.
Says House: “This matters so deeply because it impacts how individual Canadians perceive our system of representative democracy. The goal is to vote freely and fairly for individuals who go forward to Ottawa and vote freely and fairly based on their understanding of our wishes as constituents and their conscience."
If foreign factors form pressures, coercion, or threats, House says, “it attacks democracy at its root.”
House is also concerned about how much of the conversation on Johnston’s recommendations have come down to the former Governor General’s relationship with PM Trudeau. “In my experience, [he] is a decent Canadian of good faith and long service. I do wish we could stop talking about him and get at the issue of the day, which is the phenomenon of foreign influence.”
Still, House adds that it was probably “unfair” to ask Johnston to take on this role because it was not the appropriate process, and he was “very likely not the appropriate person.” This has nothing to do with any conflict of interest, House says, and more about a background and experience that includes “tremendous service” for this country.
“He’s not an intelligence expert, and he doesn’t have the kind of government experience that would be required to ask the types of questions that need asking and the types of follow-up questions that would have more readily produced a more detailed picture of what may have happened here.”
And even if he did have that background, “not having the tools at his disposal that a public inquiry provides” makes the job more difficult.
The NDP introduced an opposition motion Tuesday that will be voted upon later this week, calling on Johnston to step aside from his role as special rapporteur and instead establish a public commission of inquiry led by someone who has unanimous support from all recognized parties in the House.
The process adopted by the federal government has also not done any favours for MP Han Dong, who in news reports is alleged to have advised an official at the Chinese consulate in Toronto to lengthen the detention of Michael Kovrig and Michael Spavor, two Canadians the Chinese government had detained.
“The allegation is false,” Johnston said. “Mr. Dong discussed the ‘two Michaels’ with a PRC official but did not suggest to the official that the PRC extend their detention.”
Johnston also said there were “irregularities” involving the Toronto Chinese Consulate and Dong’s nomination as the Liberal candidate in the Don Valley North riding. He added he found no evidence Dong was aware of this.
However, House says: “We are simply told in a paragraph that nothing happened with Mr. Dong. And we are expected to accept that at face value – many people may not accept it.” Dong, who stepped down from the Liberal caucus to sit as an independent when the allegations came out, hopes to be reinstated.
Dong “may have benefitted from a robust public inquiry,” House says, “and that’s a real tragedy for him if he is entirely innocent of the allegations.”
How Ottawa has handled this issue also impacts our relations with China, House says. “My impression is that we have done not nearly enough in recent years to demonstrate to that country that we are serious about countering these impacts [of possible foreign interference] and that we have the tools to do so.”
One of the best ways to demonstrate our concern and determination to get to the bottom of things is through “a very thorough public inquiry” with all of the procedural safeguards and tools that such an inquiry entails – for example, the power to compel testimony, the ability to take evidence under oath on pain of perjury.
Johnston has asked the National Security and Intelligence Review Agency (NSIRA) — an independent government agency — and the National Security and Intelligence Committee of Parliamentarians (NSICOP), a joint parliamentary committee, to review his conclusions. However, House questions whether groups inherently connected to Parliament and politicians will get to the heart of the matter.
“The trouble with parliamentarians examining allegations of interference in our elections is that you have one party desperate for the allegations not to be true and other parties eager to find that the allegations are true,” he says. This is despite this issue cutting across party lines, House says.
“Whenever you have individuals sitting in a place of judgment who have an axe to grind . . . you are far less likely to get at the truth,” he says. And it is why a current or former Federal Court of Canada judge, for instance, would be a much better approach, sitting as the head of a public inquiry in a “dispassionate way.”
Such judges have been security cleared and have years of experience,” notes House. “Why would we not look to those judges as a real resource in helping us navigate this issue?”
For those who are legally trained, House says, “This means an awful lot - if a witness gives testimony under oath, they can’t be pursued on defamation for something they said.
“One of the best ways we have of getting to the truth is the examination of a witness and the cross-examination of that witness. None of that will be present in the proposed process. It does beg the question, why aren’t we using the proper tools at our disposal to get at what is a tremendously serious issue?”
House is also concerned that, at some level, not correctly dealing with the issue of foreign interference could be “playing into the hands of those who would seek to interfere in our political life from outside our country.”
