Law professors have provided the Public Inquiry into Foreign Interference some advice on how to tackle the dilemma of safeguarding sensitive information while maintaining democratic transparency, with one of them saying state secrets exist to protect lives.
There are “very good reasons why governments maintain secrecy and confidentiality in a number of cases, including to protect lives, or contrary to what some may think, even to protect the rule of law,” University of Calgary law professor Michael Nesbitt told the commission on Jan. 30.
Mr. Nesbitt, who specializes in national security, said privacy laws exist to protect the safety of individuals. He said secrecy is required to protect human sources and undercover operatives who are working on behalf of the government to collect information.
The public inquiry looking into foreign interference by states like China launched its first public hearings phase on Jan. 29. The commission has dedicated the week to gathering expert input on how to fulfill its mandate of making as much information available to the public as possible while still protecting state secrets.
The inquiry was spurred by pressure from different sectors of society after such secrets were leaked in the press and depicted widespread interference by Beijing.
Secrets are not just about protecting lives, Mr. Nesbitt said, but protecting methods used by government agencies to collect information, “especially from those looking to overcome those methods of information collection.” Investigations, current and past, must also be protected for the same reason, he added.
Mr. Nesbitt also spoke about foreign ramifications, saying disclosure of information received from other countries could impact relationships.
“Canada is—this is well well-known—a net importer of intelligence, meaning these relationships are extraordinarily important to us,” said Mr. Nesbitt.
While stressing that democratic principles require transparency, the professor noted that in looking at past inquiries or national security court cases, there is a tendency to skew the balance toward secrecy.
‘Black Box’ Effect
Pierre Trudel, a law professor at the Université de Montréal interested in information rights and privacy, shared the same point of view with the commission.Mr. Trudel warned about the “black box” effect where the public remains ignorant on a matter, which can undermine trust. “To offset this black box effect, we should be able to provide the public with clarifications on the reasons why we cannot disclose everything contained in the black box.”
Mr. Trudel did not elaborate on a specific mechanism that could be used to achieve this but referred to processes typically used by judges to decide and explain why certain documents can be disclosed or not.
Leah West, a law professor at Carleton University specialized in national security, also suggested relying on a third party to weigh between secrecy and transparency. Her presentation to the commission related to the laws protecting classified information and the processes required to have national security information released.
The commission will hear in the coming days from current and former top security officials, including Canadian Security Intelligence Service Director David Vigneault and one of his predecessors Richard Fadden. Minister of Public Safety Dominic Leblanc will appear at the end of the week.
The second phase of public hearings pertaining to foreign interference in past elections should take place in March. Commissioner Marie-Josée Hogue is to file her first report on May 3.
