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Matt Malone: Trudeau promised radical transparency. Instead, he has exacerbated closed government

Commentary

Secrecy has become a key hallmark of the Trudeau government. From refusing to disclose the legal advice relied upon to invoke the Emergencies Act, to invoking a record number of secret orders in council, to declining to reveal even the existence of colossal contracts, the early promises about a government that would be “open by default” have long since vanished. 

It’s been quite the journey. 

In 2014, after eight years of the Harper government, Trudeau’s first private member’s bill as an opposition MP, the Transparency Act, offered bold promises to revitalize the access to information systems. More promises followed in the lead-up to the 2015 election. But after eight years of Trudeau’s own government, newly published data on the performance of the access to information system paints the picture of a system in terminal decline. 

Those statistics show many federal institutions now regularly fail to answer access to information requests within legally required timelines. For example, Public Services and Procurement Canada, which is under scrutiny for its practices with respect to wasteful third-party consultant contracts, only responded to requests last year within lawfully mandated timeframes 24 percent of the time. 

Canadian security and intelligence agencies have promised more transparency. But last year, the Canadian Security Intelligence Service only provided full and unredacted copies of records in 0.3 percent of requests answered. The Communications Security Establishment, which is set to obtain vast and largely unchecked powers through Bill C-26, closed less than one in seven requests within lawful timelines. 

Redactions are a significant problem. The Privy Council Office, which supports the prime minister and cabinet, released 700 records last year but invoked cabinet confidences to redact information 794 times. Under Harper, the Privy Council Office preserved for ten years most records created in the process of responding to access to information requests. Under Trudeau, this document preservation period has been reduced to just two years. 

These practices of over-redaction and destruction of documents harm the preservation of Canadian history, contribute to misinformation, and undermine the purpose of our access to information laws—namely, to foster an open and democratic society and to allow public debate on the conduct of our institutions.

The government has cited translation costs as a barrier to putting in the public domain copies of previously released requests. But how often is translation even requested by people using the system? Last year, out of 209,375 requests closed for access to information, there was just one request for translation from English to French. There are no requests at all for translation from French to English.

Funding for the access to information systems remains far too precarious. The budget of the Office of the Information Commissioner, which reviews complaints about the system, is supposed to be independent; but its budget depends on a federal institution, the Treasury Board, that is often the subject of the commissioner’s investigations. 

It is no surprise, then, that last year the Treasury Board rejected the commissioner’s requests for more funding to deal with an uptick in complaints. Indeed, last July, the commissioner noted that complaints had grown by 185 percent since she assumed her role in 2018. She has since concluded in her latest Annual Report, “It is clear that improving transparency is not a priority for the government.” 

Meghan McDermott, a lawyer with the B.C Civil Liberties Association, holds a few redacted pages disclosed by the Canadian Security Intelligence Service, during a news conference in Vancouver, on Monday, July 8, 2019. Darryl Dyck/The Canadian Press.

Instead, the government is now teeming with employees who specialize in “communications.” More than 4,000 federal government employees now have that word in their job title. Outside of government, investigative journalist Cecil Rosner estimates that the ratio of public relations consultants to journalists is now 14 to one

Like the federal government’s penchant for hiring consultants and communication specialists, lawyers have become far too deeply enmeshed in the system. Sustainable Development Technology Canada, which is embroiled in controversy, sought legal advice in a startling 67 percent of the requests it answered last year. The Patented Medicine Prices Review Board did so for 93 percent of requests answered. 

These staffing and funding priorities are set against the backdrop of an existential crisis facing Canadian journalism, as detailed in an ongoing series in these pages. As veteran journalist Dean Beeby notes, media have been abandoning access to information systems at provincial and federal levels. 

Is that any surprise? The departure from an ethos of “open by default” to one that is closed by design goes to the heart of the government’s credibility problem these days. Broken promises erode trust. New ones fall on skeptical ears.

Michael Kempa: The only clear lesson of the Emergencies Act mess? Reform is needed

Commentary

Last week, the Trudeau government missed its one-year February 17 deadline to respond to the findings and recommendations of Justice Paul Rouleau’s inquiry into the 2022 invocation of the Emergencies Act.

Rouleau’s final recommendations were for the government to clearly indicate within one year of his report which of his proposed reforms they would accept and what their detailed timeline would be to implement them. The government was also supposed to include clear explanations for any recommendations they rejected.  

By ignoring the deadline set by a report that actually supported their decision to invoke the Emergencies Act, the government risks squandering an opportunity to help themselves and prepare Canada for our emergent age of mass protest.

Government inaction on Rouleau’s key recommendations to reform policing and intelligence frameworks—and, critically, the Emergencies Act itself—is starkly contrasted with their immediate decision to appeal Justice Richard Mosley of the Federal Court’s more recent ruling that their use of the Act was illegal.

Silence on the inquiry report that was, on its surface, favourable to the government—while actively fighting the legal decision that seems to go against them—is a baffling move. 

But, trawling through the public record of government communications on matters related to the Act over the past two years, it is possible to offer fair and founded interpretations of what the government’s strategy seems to be, and what it reflects.

At present, all interpretations are unflattering to the government—which calls for their clarification. 

Most charitably, we can hypothesize that the government has misread the many commonalities within the analyses that lead each judge to contrasting final appraisals of whether the federal government was justified in invoking the Act.

Simply put, Rouleau says the government had just barely met the famous Section 2 standards of the CSIS Act for mobilising the Emergencies Act, accepting the government’s argument that the “Freedom Convoy’s” threats to economic stability constituted a form of “serious violence” for a political purpose.

However, Rouleau concedes that “reasonable and informed people could reach a different conclusion.”

Hardly a ringing endorsement.

In apparent contrast, Mosley echoes Rouleau’s assessment that the Freedom Convoy devolved from a set of legal protests across the country into illegal occupation, but he rejects the government’s argument about economic harms constituting serious violence by the letter of the Section 2 standards. As such, he ruled the government’s actions were illegal and are not saved by the Section 1 safety valves of the Charter.

Mosley concedes, however, that had he “been at (the government’s) tables at that time, I may have agreed that it was necessary to invoke the Act.” 

Hardly a damning condemnation.

Justice Paul Rouleau releases his report on the Liberal government’s use of the Emergencies Act, in Ottawa, Friday, Feb.17, 2023. Adrian Wyld/The Canadian Press.
Reform is crucial

What is key—and can be charitably interpreted as being missed by the government—is that both judges agree on the deficiencies of Canada’s policing and intelligence frameworks, and of the Emergencies Act itself, actively calling for its reform.

In keeping with his mandate, Rouleau goes much further than Mosely to make specific recommendations for reform, but the Federal Court judge is not particularly subtle in his calls for legislative action that echo the commissioner’s.

Rouleau follows the advice of the bulk of security experts who provided evidence at his inquiry in calling for the decoupling of the Emergencies Act and the Section 2 standards of the CSIS Act. This is in keeping with the logic that the thresholds constraining CSIS as a covert and secretive domestic intelligence agency ought to be higher than those constraining elected governments who must answer to both houses of the legislature and directly to the electorate. 

Further, while CSIS obtaining warrants to essentially spy on Canadian citizens must always be a strictly legal process, government decisions about acting in times of emergency are both legal and political and thereby require different sets of standards. 

Can economic damage that threatens the ability of large groups of citizens to secure their livelihoods constitute a form of “serious violence” for a political purpose? Rouleau says yes because this is not only a technical legal call but also a political one for which the government must answer: how much economic damage and how many people must lose their livelihoods before we cross over from simple labour protest to arrive at emergency is not easily defined by any purely legal formula.

On this, Mosely says that he can also fully understand why the government might require emergency powers to respond to mass forms of economic disruption, but that the Emergencies Act as it is currently written does not include such powers. He goes on to state that, as a judge, it is not his job to create new powers or write legislation, but to ensure that the “court…only apply the law as it finds it.”

Like Rouleau, Mosley goes on to invite the government to take on its responsibility to undertake the necessary legislative reform.

The government’s muddled response

This brings us to today. By failing to respond to Rouleau and charging off in the direction of appealing Mosley’s ruling, the Trudeau government is either inadvertently or willingly avoiding precisely what both judges have called upon them to do: take leadership responsibility for preparing Canada’s policing, intelligence, and emergencies frameworks for a future that is certain to be marked by mass protest. Political, economic, climate and pandemic disruption are only going to accelerate. 

By appealing Mosely’s verdict, the government is asking the courts to do what Mosely says he could not, and most Canadians would agree he should not: legislate for them.

And it is here that interpretations of the government’s apparent mishandling of the situation become less charitable.

Marco Mendicino, Chrystia Freeland, Justin Trudeau, David Lametti, and Bill Blair listen to a reporters’ question, in Ottawa, Friday, Feb.17, 2023. Adrian Wyld/The Canadian Press.

The first is conceptual blindness (uncharitably, driven by arrogance). In other words, the need to always be right.

Perhaps the government has been stung by the federal court’s unfavourable ruling in a manner similar to the kick to their pride delivered by mass protests that coalesced around the government’s confused and haughty messaging around vaccine mandates and other pandemic measures.

Trudeau had to walk back his assessment of protestors as representing the “fringe minority” of racists, anti-experts, and violent provocateurs when their numbers swelled into the tens of thousands and all security agencies began speaking of “layers of protestors.”

Part of the government’s response can be seen as similar and immediate lashing out against a court ruling that they view as a stinging and inferior rebuke of their own views and logic.

The second concerns the lack of will and available political capital to undertake much in the way of reform in the difficult and fraught policy dimensions of policing, intelligence, federalism, and emergency preparedness. Uncharitably we can call this political cowardice.

Simply stated, the government is polling abysmally coming up on an election year and has little powder to burn on risky policy initiatives that could backfire. As Richard Fadden, former director of CSIS, has put it on numerous occasions, “There ain’t no votes in security and intelligence reform,” even if you get it right.

And if you get it wrong you can be politically obliviated.

Certainly, it is not difficult to imagine the Opposition taking the Trudeau government apart at the joints for trying to “change the laws that they have been judged legally guilty of breaking” in the lead-up to the election.

The third interpretation centres on manipulation, in the sense that delaying action can sometimes be a good tactic to invite and gauge response and calibrate the need to take initiative. Uncharitably, this could be seen as a cynical way to conduct a particularly effective form of free polling.

In other words, the Trudeau government may simply be waiting to see if the public begins jumping up and down to demand action on anything related to the Rouleau Commission and mass protest before they stick their necks out on the policy side of things. 

It is important to stress that these unflattering interpretations of the government’s blend of defensive silence on Rouleau with legal aggression on Mosley are not mutually exclusive. Rather, they appear in the current silence as the main features—arrogance, cowardice, and cynicism—of an unflattering portrait of a government beset by cratering public support.

What’s next?

There will be disagreement about the reform road ahead for policing, intelligence, federalism, and the content of the Emergencies Act.

Some will be very wary of any effort to relax the standards constraining the government in invoking it. Others will not want any aspect of economic threat added to the list of things considered to be violence for a political purpose.

But government silence only delays a public debate we cannot avoid on these difficult matters, if we are to be prepared for a generation of polarization and disruption. 

All political parties should place their plans for promoting national unity, inclusion, and security preparedness at the centre of their election campaigns to earn a mandate to fix the alienating messes driving social unrest and mass protest that Rouleau and Mosley have diagnosed.