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Thomas Jarmyn: The Johnston Report was inadequate. Here’s how to properly investigate foreign interference in Canada

Commentary

In light of the NDP motion that calls on David Johnston to step down in his role as special rapporteur on foreign interference, there are growing questions about what an alternative process might look like, including the scope, mandate, and possible commissioners.

My answers to these questions are based upon military experience, almost thirty years as a lawyer, three years as counsel to the minister of public safety responsible for national security matters, and three and a half years as head of an administrative tribunal.

Let me first highlight some of the weaknesses in Mr. Johnston’s initial report:

  • The report concludes that there “should not and need not be a separate Public Inquiry” because the leaked materials could not be examined in public given the sensitivity of the intelligence. The easy response to this is to consider the inquiries of Justices Rouleau (POEC), O’Connor (Arar), and Major (Air India). Each inquiry considered sensitive information and provided useful redacted summaries that supported their final conclusions.
  • The report appears to have been prepared based upon documents and briefings that were proffered by the government and its agencies. The report does not appear to have been based upon an investigatory or inquisitorial model. Rather it seems that Mr. Johnston consumed the information that was offered on the government’s menu.
  • Striking as well is that neither Mr. Johnston nor his Counsel, Sheila Block, have any considerable experience in national security matters nor experience in government handling national security files. The effect of this is a willingness to take at face-value assertions regarding the handling and dissemination of intelligence. Either the Public Service has permitted a significant degradation in the processes used to disseminate intelligence today from those used in 2010-2013 or the difficulties described to Mr. Johnston were greatly exaggerated.
  • Mr. Johnston did not have the power to follow the evidence. Without the power of subpoena and the ability to compel documents, he was left to rely upon what was given to him. There is no assurance he received the full picture. In fact, from the absence of discussions with the Elections Commissioner or the RCMP, it is apparent that he did not.

What would a better solution have been?

Any solution must address two issues of concern:

  1. What foreign interference has taken place and what are its impacts?
  2. What should Canada do about it?

Those questions need not be answered in the same venue. Answering the first question would require investigation into the operations of several agencies. It is also the question that is most likely to require consideration of intelligence information.

Consideration of how Canada should respond to foreign interference operations is going to be less about intelligence and more about hard choices that have to be made. Canada’s response will affect diaspora communities, have economic impacts, affect public funding of research, and how political parties operate (to name a few of the issues).

However, both questions may be addressed under the Inquiries Act. The first step would be to appoint a commissioner to conduct a departmental investigation under s. 6 of the Inquiries Act. The same individual would be appointed with respect to the:

  • Privy Council Office
  • Public Safety Canada
  • Global Affairs Canada
  • RCMP
  • CSIS
  • Elections Canada

The commissioner’s mandate would be to assess the scope of foreign interference in Canadian governance. Without limiting the scope of this mandate this would include:

  • Selection of candidates at any level of government,
  • Influence of nomination and election results at any level of government,
  • Operation of unauthorized foreign government agencies or outposts in Canada.

The ideal commissioner would be a current or retired judge of the Federal Court of Canada who has experience in proceedings related to national security. This will ensure the commissioner is aware of the strengths and weaknesses of intelligence and is experienced in evaluating and testing that information. The commissioner would be entitled to counsel in the matter. Given the need to have this work done in a short time frame and to ensure experience counsel the commissioner’s counsel should be drawn from the “List of Persons Who May Act as Special Advocates.

The benefit of appointing someone in this manner is that the commissioner has broad powers under ss. 7 to 10 to obtain evidence. The commissioner could compel witnesses to appear; a witness who lies subject to perjury proceedings; and a person under summons who fails to appear is committing a summary offence. The commissioner also has the right of entry into any premises and to compel production of any document necessary to fulfill the mandate.

The commissioner would be mandated to author a report setting out the nature of foreign interference in Canada. There would be both a public and classified version of that report. The report would also include recommendations to improve governmental response to foreign interference. The expectation would be to have the report written within six months of commencement.

The second stage would be to appoint a Public Inquiry under s. 2 of the Inquiries Act. Expertise in the matter of national security is not as critical here. Although if there was only going to be a single commissioner a background in such matters would be important. The question to be answered by the s. 2 inquiry would be “How should Canada respond to foreign interference efforts?” The inquiry would have access to both the public and classified versions of the departmental inquiry. 

At this stage, the public inquiry would be less a matter of past intelligence and more a weighing of consequences of choices. The inquiry would hear from non-government actors about the consequences of foreign interference within their communities or sectors of the country (some of this would likely be in camera in order to protect witnesses). It would seek feedback regarding the consequences of proposed responses and evaluate responses against the history of foreign interference in our society. Finally, it would make recommendations regarding responses, both legislative and policy, to address the problem of foreign interference.

Some will ask “How is this process different from the one put in place by the present government?” Run by someone with experience in the national security field and the power to follow the documents and information rather than relying upon what is given to him by the government, this process is far more likely to arrive at the truth. The power to compel evidence will protect witnesses and whistleblowers from allegations they have breached the Security of Information Act as well as protect them from spurious defamation suits designed to intimidate witnesses.

This two-stage process has the advantage of gathering all of the information necessary to define the problem of foreign interference in Canada. It would have that information evaluated by an individual with expertise in the field. That evaluation would then be turned over to a public process that would seek broader input as to how best to respond.

‘Something will have to give’: The Hub’s writers explain the Alberta election

Commentary

United Conservative Party leader Danielle Smith hailed her party’s election victory last night as a “another miracle on the Prairies,” as she spoke to a jubilant crowd in Calgary.

It may seem odd for a conservative politician to be seeking divine assistance to win an election in Alberta, but it’s a sign of the changing demographics of the province and the hard-fought campaign of the opposition NDP.

As Smith looks toward a majority term in government, we have assembled some of our top contributors for their instant reactions to the election and to explain what it means for the future of the province.

What will she do next?

By L. Graeme Smith

Drive east on the Trans-Canada between Canmore and Calgary and you’ll be menaced by Danielle Smith’s giant face plastered on a protruding billboard, leering out across the road and the trees and the mountains to your back and all the world beyond that. An ominous question emblazoned across the sign demands an answer: 

“Danielle Smith: What will she do next?

Win, apparently. And now that she has, the question, inflected with blue eagerness or orange dread, is being asked again in earnest across the province.

Listen to her loudest critics and you’ll be overwhelmed by catastrophizations of all kinds. Everything is on the table, from the death of democracy and the rule of law to, stop me if you’ve heard this before, the Americanization of our politics. Even the destruction of our publicly-funded health-care system. (Perhaps if Smith is in charge our capacity will collapse and planes will be frantically filled with the critically ill and jettisoned off to foreign countries to find the treatment they can’t receive here—wait, no, sorry. Wrong province.)

Former Calgary Mayor Naheed Nenshi chimed in to claim she is an “existential threat”. Alberta, you see, may not survive the unprecedented situation of being led by conservatives. 

What will she do next? Lower taxes, certainly. Pick more fights with the feds? Already happening. Expand Alberta’s role in Confederation as a small-l liberal jurisdiction offering an alternative to the Progressive Canadian Consensus with policy programs around education, health care, and treatment for drug addiction? Hopefully. Thread the needle of placating the rural base while building up the UCP’s long-term urban appeal and effectively governing the big cities that have been substantially drained of blue blood? Skillfully navigate the relationships necessary to see Alberta’s resources gain expanded market access through the approval and completion of major infrastructure projects? Reduce the province’s reliance on oil and gas revenues and finally find a sustainable path towards increasingly diverse economic growth? Doubtful, doubtful, and come on, be serious. 

All essentially standard stuff for a conservative premier of Alberta, even if old radio clips continue to resurface and cause the occasional controversy.

In contrast to her predecessor, expect less commitment to an ideologically grounded and strategically enacted policy plan, more opportunism,It’s perhaps not surprising but it is remarkable the extent to which what she ran on to win the leadership has already been de-emphasized or jettisoned completely less basic competence and coherence, and perhaps more favourable ratings for all of it. 

More Doug Ford than Donald Trump, in other words.

And expect Alberta to still be standing, democracy and freedoms intact, whenever she, too, is unsentimentally pushed from her fresh-won perch. 

On Alberta’s finances, something will have to give

By Trevor Tombe

“The only direction that business and personal taxes are headed in this province is down!” declared newly re-elected Premier Smith in her election night speech.

There was room in the budget for this, and the UCP costing was credible. But there are risks.

Indeed, the first hint of these potential difficulties surfaced the morning after the election when oil prices slipped to under $70 per barrel.

This is not a threat to Alberta’s economy. It is an incredibly diverse one that is far less reliant on oil and gas activity (especially following the 2015/16 recession) than many think. Unless the global picture darkens, the premier will likely see strong economic and employment growth.

But low prices might undermine the premier’s financial plans.

Budget 2023 was based on $79 per barrel, and required $75 to balance. During the campaign, the UCP committed to lowering personal taxes and raising spending (following an already massive spending increase in the 2023 budget). Overall, these commitments likely mean $77 per barrel is now required to make the party’s fiscal math work.

Who knows where prices go from here, but if they stay where they are, I estimate a deficit of over $4 billion may be in the cards both this year and next, followed by a roughly $3 billion deficit in 2025. 

This could throw a giant wrench into the UCP plans, for several reasons. 

Alberta recently passed a “balanced budget” law that prohibits deficits for more than three years. The UCP also promised their first bill will require a referendum to increase income taxes. So lower spending is their only option. If they run a deficit this year, their balanced budget law requires spending in 2024 to be no larger than 2023. In effect, it mandates a freeze—which is $1.5 billion lower next year than the party committed to in the campaign.

Something will have to give: abandon previous spending commitments, abandon commitments to not increase taxes, or abandon the balanced budget law. With oil prices where they are now, the government will be forced to choose one of these—and it might not be easy.

In the end, it was the economy

By Rahim Mohamed

Democratic Party strategist James Carville coined the phrase “It’s the economy, stupid” in the lead-up to the 1992 presidential election. The pithy, four-word slogan captured how Carville’s charge, the scandal-ridden Bill Clinton, was able to wrest the upper hand over widely respected incumbent president George H.W. Bush in a campaign that played out against the backdrop of a brutal recession.

UCP leader Danielle Smith (no stranger to scandal herself) can likewise thank the economic gods for her comfortable victory last night. Smith, who inherited a provincial economy on the upswing, has at the very least had the good sense to not rock the boat. Under her watch, Alberta has seen strong economic growth and employment gains, attracting thousands of economic migrants (myself among them!). Earlier this year, the province posted its first budget surplus in nearly a decade.

Smith’s seven months of smooth sailing look all the more impressive when compared to Notley’s troubled four-year stretch as premier (2015 – 2019), which was set against the choppy waters of an historic global collapse in commodity prices. Notley was admittedly dealt a poor hand, but didn’t help matters with a series of ill-advised tax hikes. Accordingly, she presided over an unprecedented 13 consecutive quarters of negative outmigration from Alberta.

Yet even voters who were inclined to forgive Notley for her tough run of luck in the 2010s were further put off when the NDP campaign floated a 38 percent corporate tax hike. The job-killing proposal showed that Notley had failed to learn from her economic missteps as premier—and that she would likely make the same exact mistakes if given a second crack at the job.

For all of the colourful soundbites and storylines that have animated Alberta’s roller-coaster election campaign, in the end, it was fundamentally about the province’s economy… stupid.

The UCP can’t give up on highly educated voters

By Karamveer Lalh

Overall an election that did not yield too many surprises. The idea behind the formation of the United Conservative Party was that “so long as the Right is united, the Left cannot win.” This premise held today.

Over the past there were a few things that should give conservatives some pause. First, our brand continues to suffer with educated voters. Increasingly, voters are becoming more polarized based on education rather than income. This can help explain the results in the western part of Calgary, and the southwest of Edmonton, which are highly educated and high-income regions. Interestingly, the NDP suffered in areas with hard to reach first-generation visible minority voters. This is apparent in northern Edmonton and northeastern Calgary.

Looking forward, pending a few recounts, the UCP bench depth is significantly depleted as well, with a number of key cabinet ministers losing their seats, so it will be interesting to see who makes cabinet.

The UCP will continue to want to put COVID in the rearview mirror, so I would like to see them work hard at rebuilding relationships with voters in Edmonton and Calgary in the coming months. The weakness among highly educated voters is consistent with global trends; however, Canada is more educated on average than, say, the United States, so I would caution that giving up on university-educated voters entirely may not be a sustainable electoral coalition over the medium to long term.

Positive signs for Alberta’s future

By Howard Anglin

There were two elections in Alberta yesterday. In one, the UCP handily won 53 percent of the popular vote to the NDP’s 44 percent and a diminished 49-38 seat majority. In the other, the NDP edged the UCP 42 percent to 40 percent and eked out a four-seat majority of 47 to 39.Independent candidate Funky Banjoko was “elected” in Fort McMurray-Wood Buffalo.

The first election was of course the official one, while the second one was a parallel election held by Civix, a “non-partisan, national registered charity dedicated to building the skills and habits of active and informed citizenship among young Canadians.” More than 170,000 Alberta students in almost 1,100 schools across all 87 electoral divisions voted in Civix’s election.

While I’m relieved by the official result (a relief tempered by the agonizingly close losses of several outstanding candidates), it’s the Civix election that gives me real hope. As someone who probably would have voted NDP in high school (more for Notley’s Che Guevara watch than her party’s pants-splitting simultaneous lunge to the economic centre and the cultural far Left), to see that almost 60 percent of Alberta’s youth know better than I did at that age is heartily encouraging. Congratulations to Danielle Smith and the UCP: you have a solid base to build on for the future.

Danielle Smith has four years to win over her critics

By Derrick Hunter

Rachel Notley ran on a platform of increased taxes, higher structural government spending and more uncertainty for the energy sector. This was the same formula she employed as premier between 2015 and 2019. The result was capital flight, high unemployment, and a gargantuan addition to the provincial debt load. Strangely, while the playbook was unchanged, she did not run on her record, behaving instead as if she had never before been in government. Enough Albertans recognized the omission to deny her another shot at the public purse.

Danielle Smith is an intelligent and principled woman who has certainly done and said some peculiar things during a long career in the public eye. She is not as unhinged as her detractors declare, but she often has opinions that are too nuanced for the average journalist or low-information voter. That has made her an easy target for opponents spouting inaccurate soundbites, (“Danielle Smith will take your pension”). On the other hand, her performances in longform, unscripted interviews tend to be well-received by open-minded audiences.

With a fresh mandate, it will be vital for Smith to demonstrate that she can run a competent and fiscally responsible government that is focused on maintaining the economic growth currently underway in Alberta while addressing critical social issues such as health-care reform and defending Alberta from federal intrusion. She has four years to prove herself and win over some of her critics.

Which Danielle Smith will govern?

By Stuart Thomson

One of the big reasons for the UCP’s victory last night is what Edmonton Journal columnist David Staples described as Danielle Smith’s “dramatic personal and policy shift to the centre.”

In short, she managed to convince voters she was basically normal, and not the lunatic that NDP attack ads portrayed her as.

Now, Smith has four years to govern with a majority. Will Albertans get the election campaign version of Smith? Or the talk radio host? Or the fire-breathing leadership contender?

As the losses get tallied, it’s also clear that Smith’s caucus has shifted to the Right. It looks like the UCP could lose nearly a dozen seats, most of them moderate MLAs from Calgary, giving the grassroots Take Back Alberta crew more influence.

Smith’s cabinet choices will be important in signalling her intentions. Speaking of cabinet, Smith also has an Edmonton problem.

When I interviewed Jason Kenney at the end of the 2019 election campaign, when the UCP was extremely confident of victory, he said he was desperately trying to win a seat or two in Edmonton. Even with a huge majority, being shut out of the capital concerned him greatly.

Now, Danielle Smith will have to navigate the province without any representation in its second-largest city.