The Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, led by Justice Marie-Josée Hogue of the Quebec Court of Appeal, has a vital mandate. It must investigate the extent of foreign interference and report so that faith in our electoral process, so fundamental to our democracy, is restored. But unlike many public inquiries, the work of this one is more challenging because much of the relevant information that would shed light on what has happened is secret.
But this is not the first public inquiry that has dealt with secret information and Commissioner Hogue would do well if she learned from the lessons of those that have preceded her. In 2004 the government of Canada ordered a public inquiry into the deportation of Maher Arar to Syria where he was brutally tortured. The issue in that inquiry was the extent to which Canadian authorities were involved in his deportation to Syria. Much of the evidence that was presented before the Arar Commission involved top secret intelligence reports.
Given these challenges, many of us were skeptical as to the ability of the commissioner, Justice Dennis O’Connor of the Ontario Court of Appeal, to prepare a report that accurately explained what happened. But despite these difficulties, the commissioner was able to maintain the confidence of the public and deliver a report that established Canada’s complicity in Arar’s deportation and provided important recommendations in relation to information sharing with foreign governments.
One of Commissioner O’Connor’s findings was that the government had often overclaimed in its assertions that disclosure of confidential evidence would be detrimental to national security. This concern has been echoed by Federal Court judges who consider applications made by the government when assertions are made under the Canada Evidence Act that disclosure of information would endanger national security. The court has often criticized the government for withholding information unnecessarily (see for example in Singh Gill v. Canada (Citizenship and Immigration), 2010 FC 1116).
Given the issues at stake in this public inquiry, which relates to one of the central features of our democracy, it is vital that the officials of the government of Canada instruct their counsel at the commission to only make claims when they are absolutely necessary. And here the commissioner also has a role to play. The commissioner must carefully review such claims and must ensure that as much information flows to the public as possible, either through disclosure or fulsome summaries. In addition, the commissioner must be willing to litigate quickly when she considers that the government is overclaiming and must seek a rapid adjudication in the Federal Court. The Federal Court, for its part, should ensure that a judge is assigned to rapidly adjudicate any disputes that arise over redactions to evidence that is relevant to the commission’s decisions.
In addition, it will be important for the Federal Court, when considering an application for nondisclosure made by the government of Canada in relation to evidence that is relevant to the Commission of Inquiry, to appoint an amicus to challenge the government’s assertions of national security confidentiality. The amicus curiae is an important third-party check, precisely because they are independent not only of the government but also of the commission and its legal team.
Providing for an amicus will instill further confidence in the fairness of the process so as to ensure that this commission does not suffer the same fate as the Independent Special Rapporteur on Foreign Interference, whose report failed because it was not seen to be sufficiently transparent. The commissioner might also consider allowing for security-cleared counsel to review the evidence on behalf of the parties. All of these steps will enhance confidence in the fairness and transparency of the process and given what is at stake, gaining public support is crucial.
Another lesson learned from the Arar Commission was the importance of commission counsel in maintaining confidence in the process. Commission counsel was always available to discuss issues with counsel for the parties and had a vital role in ensuring that the commission succeeded in doing its work. Commission counsel in this public inquiry is faced with a challenging task, managing a large number of parties and interveners. But they must keep an open door to counsel for the parties so as to address concerns as they arise.
Finally, the commissioner herself must instill confidence in the process. This requires her to demonstrate flexibility in dealing with issues that come before her. Her recent decision to deny party status to the Conservative Party is one example where she might be advised to take a fresh look. Denying party status to one of the main protagonists in the upcoming election will give them an excuse to reject her report if it suits them and will undermine the faith of those who support the Conservative Party in her objectivity. While there may be good reasons for her decision, the potential cost to the legitimacy of the process is an important consideration that must be taken into account.
This article was original posted on Law360 on 22 February 2024 and is available here.
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