Canadians would have greater trust in the government’s handling of Chinese state interference if Ottawa appointed a judge – with full subpoena powers – rather than relying on the advice of former governor-general David Johnston, according to former lead counsel of two major public inquiries.
Paul Cavalluzzo, who was lead commission counsel for the Maher Arar inquiry, and Mark Freiman, who was lead counsel for the Air India inquiry, say a full-scale public inquiry into China’s meddling in Canadian politics would help restore public faith that Ottawa is taking the matter seriously.
“There has been enough skepticism expressed now that Mr. Johnston’s report – no matter how good it is – is not going to satisfy a portion of the public,” Mr. Freiman said. “It would be better to have someone with subpoena powers with the ability to cross-examine and who can explain exactly what was done to get as much at the truth as possible.”
Prime Minister Justin Trudeau said this week that he will not call a public inquiry into Chinese interference in Canadian politics, based on Mr. Johnston’s recommendation that so much of the evidence would be heard behind closed doors because top-secret, sensitive information could not be aired publicly.
Mr. Cavalluzzo, who is also a special advocate in national-security court cases, disputed that argument. He said the 2004-2005 inquiry into the U.S. rendition of Canadian Maher Arar to Syria heard from 83 witnesses over 75 days of top-secret hearings and 45 days of public hearings.
The inquiry found that the American rendition was based on faulty information supplied to U.S. agents by the RCMP. The federal government paid $10.5-million in compensation to Mr. Arar.
“Clearly a public inquiry can be held as in the case of the Arar inquiry where most of the evidence was held in secret court,” Mr. Cavalluzzo said.
He noted that Justice Dennis O’Connor’s final report was met with praise from Canadians, including Mr. Arar and his family. It was also lauded internationally as the first inquiry in the Western world to examine the conduct of government officials in national-security matters after Sept. 11, 2001.
While both lawyers praised the integrity of Mr. Johnston, who was named special rapporteur in March, Mr. Cavalluzzo said the fact that his impartiality is being questioned “is even more reason to a have a fuller inquiry with subpoena powers and the right to cross witnesses under oath.
“In order for people to have confidence, they have to feel, first of all, that the commissioner is independent and secondly that the commissioner has powers to subpoena documents and persons; and have a full hearing where people are cross-examined, right up to the Prime Minister.”
In the case of the Air India inquiry, Mr. Freiman said former Supreme Court justice John Major, as commissioner, wanted as much information as possible in the public so “we had a lot of negotiation with government about how to use stuff that couldn’t be testified to in public.”
The inquiry into the 1985 explosion of Air India Flight 182 – which killed all 329 people aboard, most of whom were Canadians of Indian descent – concluded that a “cascading series of errors” by police, intelligence officers and air-safety regulators allowed the attack to take place.
“The public will never be able to know all the details. It will always be watered down,” Mr. Freiman said. “But I am sympathetic to the argument that there are ways to give the public more than the public knows right now.”
Mr. Cavalluzzo said he was surprised to hear the rationale against a public inquiry. “I went through a far more difficult inquiry in respect of top-secret evidence,” he said, referring to the Arar inquiry. “We had to be very concerned about information from foreign [intelligence] agencies.”
A guide to foreign interference and China’s suspected influence in Canada
The three main opposition parties in the minority Parliament have all demanded a full-scale inquiry.
“A judge heading up a full public inquiry, who has experience with national security, is best able to decide what information should be kept secret,’ Conservative Leader Pierre Poilievre told reporters in Toronto Wednesday.
At a news conference in Ottawa, Bloc Québécois Leader Yves-François Blanchet suggested Parliament, with the support of the three opposition parties, could name someone other than Mr. Johnston to investigate Chinese meddling in Canadian politics.
Mr. Johnston has come under fire from opposition parties for his friendship with the Trudeau family and what they allege is a conflict of interest: the fact he was a member of the Pierre Elliott Trudeau Foundation and yet was being asked by the Prime Minister to review how his government has handled foreign interference.
Mr. Johnston said he sought an independent legal opinion from retired Supreme Court of Canada justice Frank Iacobucci on the matter. Mr. Iacobucci, he said, concluded there was no conflict of interest nor an appearance of one.
Mr. Iacobucci, however, is also a good friend of Mr. Johnston’s – something the former governor-general acknowledged in an interview with The Globe Tuesday.
“He’s a professional, and one of the most respected professionals in the country,” he said.
Asked if he had any concerns about the perception of him seeking a legal opinion from a friend, Mr. Johnston replied: “I asked a professional at the Torys law firm, one of the most respected justices you have ever seen. No, I would never have a question of his integrity.”
Accountability watchdog Democracy Watch on Wednesday also raised questions about Sheila Block, who is also from Torys LLP and has been advising Mr. Johnston as senior lawyer in his investigation into foreign interference.
Democracy Watch, a non-profit group, said its search of Elections Canada’s database showed that Ms. Block appeared to have donated a total of $7,593.38 to the federal Liberal Party between 2006 and 2022. The group said in a statement that Ms. Block appears to have only donated to the Liberals.
The Globe asked the Office of the Independent Special Rapporteur whether this donation record is correct and whether it felt this history of donations, if true, demonstrated bias. Valerie Gervais, a spokesperson for the office, responded with an e-mail statement that did not answer the questions but said: “As with all Canadians, Ms. Block’s personal federal political contributions are a matter of public record.”
In his interview with The Globe, Mr. Johnston said he will look at proposals to criminalize foreign interference, allow CSIS to share more evidence with the RCMP and to replace the Prime Minister’s national-security adviser with a panel of experts.
“One for example is whether we need a national-security council, similar to what the Americans have as opposed to having a national-security adviser,” he said. “So I expect that, not simply through our work but in part through your good reporting, we will be looking at some of these reforms that are very much needed and lessons to be learned from other people who have been dealing with this very extensively.”
The Decibel: Why there won’t be a public inquiry into Chinese interference