Both of the federal agencies tasked with reviewing what the Liberal government and security agencies knew about allegations of foreign interference in the last two Canadian elections — and when they knew it — do not have an automatic right to review cabinet records.
The National Security and Intelligence Committee of Parliamentarians (NSICOP) and the National Security and Intelligence Review Agency (NSIRA) are not allowed to review cabinet documents.
The agency that safeguards those records — the Privy Council Office (PCO) — will not guarantee that either agency will get an exemption from that rule for the foreign interference probe.
NSICOP wrote to Prime Minister Justin Trudeau last fall to complain that its previous investigations into intelligence matters were hamstrung by the lack of access to cabinet documents.
A former clerk of the Privy Council said that in this case, it’s more important for NSIRA to see cabinet records with appropriate safeguards because it’s looking at the flow of information to decision-makers.
An intelligence expert, meanwhile, said it wouldn’t look good for the government to promise a transparent investigation and then withhold some information.
In setting up the framework for the reviews on March 6, 2023, Trudeau said he spoke with the heads of NSICOP and NSIRA and “underscored that Canadians need to have faith in their institutions and deserve answers and transparency.”
The work of both committees is crucial to the work of the special rapporteur on election interference — former governor general David Johnston. He’s expected to advise the Liberal government on its next steps in response to the political controversy that has shaken public trust in the integrity of Canada’s electoral system.
Reports citing intelligence sources published by The Globe and Mail and Global News have said that the Liberal government was warned repeatedly about instances of election interference — and essentially dismissed or ignored those warnings.
A spokesperson for PCO said the special rapporteur “would be entitled to review any classified or unclassified records and documents, including, where necessary in his estimation to carry out his mandate, records protected by cabinet confidence.”
Pierre-Alain Bujold confirmed that NSICOP and NSIRA are not entitled to see cabinet confidences. When it comes to the foreign interference review, he added, “the government is committed to transparency and will continue to work diligently to provide all information relevant” to NSICOP.
‘NSIRA expects cooperation’
Bujold also noted that NSIRA outlined for intelligence agencies on Tuesday both the scope and the limits of its review powers — including its inability to see cabinet secrets.
“Should any additional material be felt necessary to this work, we will work diligently with the agency to determine the feasibility of the request,” Bujold said in an email.
When asked by CBC News if it had concerns about access to cabinet records, NSIRA responded with a written statement laying out its general expectations.
“The review is in its preliminary stages and we cannot comment further on scope or content at this time,” said NSIRA’s statement.
“That said, NSIRA expects cooperation from all departments and agencies subject to review, and access to all necessary information to complete its work.”
In a separate written statement, NSICOP said the committee has not received “assurances” from PCO that it will receive an exemption for this review. It noted that in previous reviews, it has mostly been provided with “the information it requested, including highly classified intelligence.”
But that access has not always extended to cabinet records. Last fall, the committee of parliamentarians put its frustrations in writing, telling the prime minister the refusal to disclose some records represented “a growing risk to [NSICOP’s] ability to fulfil its mandate.”
NSICOP says it’s been left in the dark
That letter was included in NSICOP’s review of the intelligence activities of Global Affairs Canada last November. It warned that federal officials made “broad claims” of cabinet secrecy over documents and the committee was often left in the dark about the number of records and what was being withheld.
The letter, which was also addressed to PCO, went on to remind Trudeau that members of the committee took an oath of secrecy but were still being put in a position where they “will neither receive relevant information, nor be aware of its existence.”
Liberal MP David McGuinty, the chair of NSICOP, declined an interview request. Recently, however, he appeared before the Senate defence committee and called for an overhaul of the legislation governing his committee to allow for unfettered access.
“The [NSICOP] Act can be amended to improve the committee’s access to government information,” said McGuinty. He added that while the committee respects the need for cabinet secrecy, there have been times when it wasn’t given full disclosure.
“And so we have gently but persuasively worked with the Privy Council Office and the prime minister’s team to say, ‘No, sorry, you have to start working with us more openly and on behalf of Canadians. They need to know as much as we can inform them.'”
Mel Cappe, a former clerk of the Privy Council, said he’s a firm believer in cabinet secrecy. He said that while NSICOP should have limited authority to look at cabinet secrets on an ongoing basis, in the specific case of the foreign interference review he doesn’t think it would be necessary.
NSIRA, he said, is another matter.
“I would say that NISRA should have access to cabinet confidences because they are there to look at the flow of information to decision makers, whereas NICOP is really looking at the activities of the agencies themselves, [the Canadian Security Intelligence Service and Communications Security Establishment] and the other intelligence agencies,” said Cappe, who added that access to those records should not be unfettered.
“I think we should have a very narrowly defined group of issues and documents that are within the secrecy cone of silence.”
Intelligence expert Stephanie Carvin said that in terms of political optics, it’s not in the government’s interest to dig in its heels and fight, even behind closed doors, over documents.
“This government has already struggled with transparency issues,” she said. “I don’t think this is helping its case. If the government is arguing that we’re going to have a transparent investigation into foreign interference and then immediately clamps down on cabinet confidence, it runs the risk of undermining its own argument.”
Carvin also noted that the MPs who sit on NSICOP have been given “the highest level of clearance” for dealing with intelligence and there’s no reason not to have confidence in them.
There is precedent to grant an exemption.
Last summer, the Liberal government waived cabinet confidence over documents relating to its invocation of the Emergencies Act. That decision followed a request from Justice Paul Rouleau, who oversaw the Public Order Emergency Commission.
It was only the fourth time in Canadian history that a public inquiry was given access to cabinet documents, according to the commission.