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Blog March 18, 2024

How Can There Be a Public Inquiry into Foreign Interference When Much Relevant Information Is Classified “Top Secret”?

In September, the Federal Government called a public inquiry into allegations of foreign interference in Canadian elections.

From outset, the inquiry presented a paradox: How do you have a public inquiry when most of the relevant information is classified “top secret”? 

At the end of January, the inquiry held a week of hearings trying to answer that question, which it called the “national security hearings”. (We had the privilege of representing the Centre for Free Expression.)

The inquiry was required to hold the national security hearings because most of the relevant information about election interference comes from classified intelligence sources, both domestic and imported. In addition to its own intelligence agencies (primary CSIS and the Communications Security Establishment, or “CSE”), Canada receives intelligence from its allies. Canada is a member of the “Five Eyes”, an alliance of the intelligence agencies in the US, UK, Canada, Australia and New Zealand.

Top secret information is closely guarded for many reasons. Some of them are obvious. No one wants a Canadian intelligence agent or asset to be placed in danger or killed. Nor does the government want its adversaries to know what conversations it is recording.

A possibly less-obvious reason, but one emphasized at the inquiry: Canada cannot disclose classified information from its allies without their permission. 

Throughout the national security hearings, current and former government officials described Canada as a “net importer” of intelligence. In other words, Canada gets more intelligence than it gives. 

The government went to great lengths to explain how important the Five Eyes relationship is, and how damaging it might be if Canada’s allies believed that our government would disclose their intelligence, even within the context of a public inquiry. 

As the hearings continued, it became apparent that this concern was a overstated. Canada is not at risk of being seen as intelligence sieve. Quite the opposite: as compared to its allies, Canada has a culture of over-claiming and overprotecting classified information. Richard Fadden, a former CSIS director and national security advisor to the Prime Minister, told the inquiry that “our close allies are much, much more open than we are.”

One simple example is the process of automatic declassification. In the US, classified records are declassified automatically after 25 years.  The UK has moved to a 20-year declassification rule, which replaced a prior 30-year rule. Many other Western countries also have automatic declassification programs. In doing so, these governments recognize the important role of declassification on fostering accountability for its intelligence institutions. 

As CSIS Director David Vigneault pointed out during the inquiry, intelligence agencies are created to have secrets. Secrets, however, can be abused to hide government embarrassment and misconduct. Automatic declassification recognizes two important principles. First, as time passes the public interest in protecting that information diminishes. Second, citizens have the right to know about the operations, successes, and failures of its intelligence agencies. Regrettable decisions might be hidden for now, but not forever.

Despite being common among its allies, Canada has no automatic timeframe for declassification. What does that mean? Well, as the Globe and Mail has reported, it means that the Government may deny university researchers access to 100-year-old records relating to conscription and WWI. Those documents only finally get released after six years of complaints to the Office of the Information Commissioner. Absent that effort, the default is the government’s secrets stay secret, even after their disclosure no longer presents a harm to national security.

Canada’s austere approach to declassification has perplexed the Information Commissioner of Canada, whose office bears the brunt of information requests for historic documents. In 2022, the Information Commissioner of Canada stated that “Canada is in urgent need of a declassification system”. This statement followed a 2020 report that set out a declassification strategy, which has not been implemented. 

Declassification is not a top-of-mind issue for Canadians, but it is an important one. Classification is a powerful tool, and one that can be abused. Where real-time accountability is not possible, it is critical there is a mechanism for subsequent study and review, even if it comes a few decades later.  

Perhaps the Foreign Interference Inquiry’s success (or lack thereof) in pulling back the curtain on the secrets of election interference will call more attention to Canada’s dysfunctional regime.

Change, after all, is not hard. The obvious and easy starting point is automatic declassification. Canada had automatic declassification before the government enacted the Access to Information and Privacy Act in 1983, as the Globe reported. If it works for our allies that supply Canada with its intelligence, it should work for Canada. 

It is odd we guard our allies’ secrets more closely than they do.