National security world tends to promote secrecy over transparency, professor warns

OTTAWA — There’s a tendency in the national security realm to prioritize secrecy over transparency, a law professor warned the federal inquiry into foreign interference on Tuesday.

University of Calgary professor Michael Nesbitt said security agency employees are typically advised of the penalties for improperly disclosing secrets, but rarely is there punishment for failing to be fully transparent.

If an employee releases too much information, they “will receive a reprimand on the job at best, or a criminal charge at worst,” said Nesbitt, who previously worked for Global Affairs Canada and the Department of Justice.

“Release too little information and the requesting party will fight the government over it for what might be, frankly, years, to the point that the original reviewer and classifier of the information may have long since moved on.”

The inquiry’s first hearings, taking place this week, are focused on the preliminary point of how to make information about foreign meddling public, even though much of it comes from classified documents and sources.

On Monday, a lawyer for the commission warned that the sophisticated spy agencies of Canada’s adversaries will be closely watching the federal inquiry for every bit of information they can exploit.

The discussions on national security and confidentiality of information will help set the stage for the next public hearings, likely to take place at the end of March. 

The March hearings are intended to delve into allegations of foreign interference by China, India, Russia and others in the 2019 and 2021 federal elections, with a report on these matters due May 3.

In opening remarks Monday, commissioner Marie-Josée Hogue said getting to the truth demands that the inquiry team investigate, analyze and reflect as thoroughly as possible.

The experts who appeared Tuesday discussed the practices of past commissions of inquiry, as well as the courts and federal agencies, in dealing with classified information.

The federal government has authority to decide what information about foreign interference becomes public, said Leah West of the Norman Paterson School of International Affairs at Carleton University.

The commissioner and her counsel may argue for certain information to be disclosed, but “the decision rests with the government and, ultimately, the attorney general,” said West, who previously worked at the Department of Justice.

If the commissioner disagrees with that decision, she could then go to court and seek judicial review.

Nesbitt said going to court to determine what can be disclosed in keeping with the Canada Evidence Act should be a “last option,” given the length of such court cases.

“The timelines on that, generally, don’t allow for the completion of reports in three months from now, or even 10 or 11 months from now,” he said.

“That serves no one well. So a collaborative approach that works ahead of time to negotiate a solution is usually the best one.”

This report by The Canadian Press was first published Jan. 30, 2024.

Jim Bronskill, The Canadian Press