Elizabeth Marshall comments on The Right Honourable David Johnston First Report as Independent Special Rapporteur on Foreign Interference

Elizabeth Marshall
Elizabeth Marshall

For many Canadians who have waited patiently for David Johnston’s report, on foreign interference in/on Canadian democracy and elections, the report seems to have missed the mark.  Particularly when a public inquiry has been affectively removed.

In Mr. Johnston’s report he states:

“4. A further public process is required to address issues relating to foreign interference, but there should not and need not be a separate Public Inquiry. A Public Inquiry examining the leaked materials could not be undertaken in public given the sensitivity of the intelligence. However, public hearings on the serious governance and policy issues identified to date should and will be held, at the earliest possible date, as part of the second phase of my mandate.”[1]

He is recommending a “public process” including “public hearings” but not a “public inquiry.”  This seems odd, but then a public hearing would not allow for evidence to be made public.[2]  Mr. Johnston states that due to the security nature of the information – most information could not be made public.  If this is the case then why recommend a “public process” or even a “public hearing,” and yet not a “public inquiry,” – that is the real question?  To any reasonable person surely there are ways and means to relay information without breaching someone else’s security, etc., and the use of Canadian Security Intelligence Service Act (CSIS Act), to maneuver around what is needed, by Canadians, seems to undermine the credibility of this report.

If there can be a “public hearing” it seems disingenuous that there cannot be a “public inquiry,” based on the CSIS Act and/or certain security issues which may come up, particularly when it seems Mr. Johnston “began this process with an inclination that I would recommend that a Public Inquiry be launched. Transparency and truth are the foundation of trust, and we have a long history of using Public Inquiries as a means of permitting Canadians to see “through the looking glass” into the inner workings of government.”  But then he goes on to say:  “However, after my work over the past two months, I have concluded that a Public Inquiry would not be the best way forward for four reasons.” 

His “First” is:

“First, I have been able to review all the relevant facts over the past two months….I have reviewed the testimony of the witnesses that have appeared before the Standing Committee on Procedures and House Affairs (PROC). In my view, a person leading a Public Inquiry would be unlikely to learn more about who knew what, when, and what was done with it, than has been made available to me. Duplicating this effort would not be productive and would lead to delay in addressing the issues.”

It seems to be his thought that because he has all of the information, duplicating these efforts, to gain the trust of the Canadian public, is a waste of time and might delay addressing the issue.  It is not for him to say that duplication to regain trust is unwarranted and I find this quite arrogant, to say the least.

His second reason is:

“Second, any Public Inquiry into these factual questions could not be held in public. The sensitivity of the intelligence and the damage that would be done by revealing it means that the “public inquiry” would necessarily be held in camera. The Commissioner would be left in the same position as I, reviewing material in private and unable to provide any greater transparency than what I am able to provide to Canadians in this report.”

And as I had expressed before:  “To any reasonable person surely there are ways and means to relay information without breaching someone else’s security, etc., and … seems to undermine the credibility of this report.”

His third reason:

“Third, as described below, there is no convincing evidence to support the most serious allegations made about the government’s failure to act on specific instances of foreign interference in respect of the elections of 2019 or 2021. The failures I have found relate to substantial gaps in the communication and processing of intelligence information as opposed to the Prime Minister, Ministers or senior officials ignoring intelligence or recommendations. A further review of the specific media allegations through a Public Inquiry would not advance our ability to amend these arrangements and strengthen our institutional capacity to detect, deter and counter foreign interference. There is evidence that significant communications problems contributed to the intelligence failing to reach the Minister of Public Safety relating to the Honourable Michael Chong and other MPs with family in China, but there is no reason to believe it was intentional.”

And there’s that “just trust me” statement.  He says there is “no convincing evidence” but where is the evidence, by him, to convince the Canadian people?  I find it incredulous that someone who is purportedly so regarded would even suggest the statement of “just trust me” when the Courts would not accept that statement[3] – so why should Canadians.

And his final reasons as to why no public inquiry:

Fourth, while we could launch a Public Inquiry on the issues I am required to address for my October report under my TOR,[4] there would be a clear overlap with the work I have already started doing, and there is no reason to think the additional powers available to a Commissioner (e.g., to subpoena witnesses or take evidence under oath) are required for that work. It is more timely and effective to complete the work already underway so that the government, Parliament and the public will have the benefit of this review and advice at the earliest possible date. Delay would be contrary to the public interest.”

As his first “reason” and his last “reason” seem very similar we will repeat, as well:

“It seems to be his thought that because he has all of the information duplicating these efforts to gain the trust of the Canadian public is a waste of time and might delay addressing the issue.  It is not for him to say that duplication, to regain trust, is unwarranted and I find this quite arrogant, to say the least.”

And why, now, after all of the delays by the federal government is this all to be done “at the earliest possible date. Delay would be contrary to the public interest.”  For months and months Canadians have been waiting to see what would come of David Johnston’s work and to be honest I am very disappointed.  If a mere mortal, such as myself, can comprehend the ability of “any reasonable person surely,” can find, the “ways and means to relay information without breaching someone else’s security, etc.,” and his statements seem “to undermine the credibility of this report.”

Below, please find the link to the report – but to me this is 59 pages of missing the mark for Canadians and I thought that someone of Mr. Johnston’s caliber, would have created something more credible.  Sadly, that is not the case as this seems to reek of arrogance and disregard for we, “mere Canadian mortals.”



Elizabeth Marshall

I am not a lawyer and do not give legal advice.  All newsletters are for information only.  Please seek your own legal counsel.

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[1] Page 1   https://www.canada.ca/en/democratic-institutions/services/reports/first-report-david-johnston-independent-special-rapporteur-foreign-interference.html

[2] Canada Evidence Act, Inquiries Act, Canadian Security Intelligence Service Act

[3] “[23]  “L’etat, c’est moi” and “trust us, we got it right” have no place in our democracy. In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385; United States v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 5 U.S. 137 (1803); Magna Carta (1215), art. 39. From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed. See the discussion in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 (CanLII) at paras. 77-79, Slansky v. Canada (Attorney General), 2013 FCA 199 (CanLII), [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein.

[24]  Tyranny, despotism and abuse can come in many forms, sizes, and motivations: major and minor, large and small, sometimes clothed in good intentions, sometimes not. Over centuries of experience, we have learned that all are nevertheless the same: all are pernicious. Thus, we insist that all who exercise public power—no matter how lofty, no matter how important—must be subject to meaningful and fully independent review and accountability.”  Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 (CanLII).

[4] Terms of Reference