The Policy Consultation Hearings portion of the Foreign Interference Commission examined the issue of foreign interference (FI), from an academic and industry practitioner lens. The Hearings were made up of 7 roundtable discussions that included over 40 academics and industry practitioners. The purpose of the roundtable discussions was to offer up a high-level nonpartisan discussion on FI, in ways that Stage 1 and Stage 2 were not designed to provide. Listening to academics and industry practitioners discuss the issue of FI at such a high level, unconstrained by lawyers was one of the highlights of the Foreign Interference Commission.
All of the roundtables provided key insights, including shocking acknowledgements about how it was not uncommon for policing stakeholders to decide against pursuing criminal investigations related to high-level organized crime and explaining the reason as to why intelligence collected by CSIS is not able to be used during criminal prosecutions.
Building Democratic Resilience Amid Value Conflict
Subject matter experts on this panel had backgrounds in academia, law and journalism, and they provided insight on how Canada could build resilience within its institutions amid all the problems that are plaguing our society. Despite that Canada was seen as a world leader in trustworthy election processes, the current information environment was described as having the potential to influence perceptions across Canada to believe otherwise.
On the topic of FI, FI had many core purposes that needed to be accounted for and focusing on a single form of FI would change very little. Thus, the ambiguity of FI makes establishing the traditional standard for a “legal definition”, to outline what was legal and illegal, practically impossible. As a result, it was necessary to establish a “good enough” definition for working purposes, one that could then be expanded as necessary. So, it was suggested that the focus should be on getting to a point where there was a “good enough” (imperfect) definition, and that it may even be necessary for the Commission to rework their own definition to account for the totality of the threat that FI poses.
On the topic of countering FI, what mattered was not whether a neutral institution was effective at countering it, but whether that institution was perceived as being neutral. If not, being “neutral” meant nothing, and that challenge was further complicated by the polarization present across Canada. Other challenges included how FI could shift to evade law enforcement, how evidence related to it was often not permitted to be used in courts and that political pressures and incentives had the potential to complicate responses to FI. Finally, whether someone ended up getting prosecuted for FI would ultimately come down to the discretion of law enforcement.
What seemed to catch the Commission off-guard, however, was that the panelists disputed a major claim that emerged during Stage 1 and Stage 2, “that FI was the root of all the erosion of trust in political parties and institutions”. Instead, it was suggested that the distrust was the result of deeper factors and longstanding conditions, instances over the decades where institutional power holders attempted to cover the misuse of institutional powers and serious wrongdoings for personal gain and self-preserving purposes. It was even suggested that there were too many risks to letting the government regulate speech, because of how institutional power holders could supress speech for partisan or political reasons. In summary, FI was exploiting burgeoning crisis of trust, an issue that required an understanding of “when”, “why” and “how” it began.
Diplomatic Perspectives on the Foreign Intervention ‘Gray Zone’
Subject matter experts on this panel had backgrounds in diplomacy, international affairs and national security, discussing how diplomacy has always involved a wide spectrum of actions including FI, and how FI has always been a way for nations to achieve national objectives just short of war. The length that some nations were willing to go with their FI activities was described as only being limited estimates of the potential consequences they may face. And there was consensus among the panel that some of Canada’s greatest achievements have been achieved in the “grey zone” of FI.
The panel suggested that there were benefits to FI that served liberal democratic purposes and that it was in Canada’s interest to preserve the “grey zone” of FI rather than eliminating it altogether. Another point was made how Canada has not taken positions against FI when friendly states engaged in such activities, but it has objected to the same practices when they were done by other states. Another point was made how policing and public safety stakeholders have been aware for decades about how hostile state actors have funded different organizations and that there have been legislatures across Canada where elected representatives have been identified as having collaborated with hostile states.
The panel discussed Canada’s delayed response to FI being the result of intelligence that was collected in a vacuum, and how different people would often interpret the same reports as having different meanings. One panelist suggested that intelligence reports could eventually become tools that get used for political purposes, so there were serious consequences for getting reports wrong. Another point of emphasis was that the focus of FI needed to be on municipal and provincial level activity, where were seen as far more vulnerable than the federal level.
The panel compared today’s Canada with a Canada from decades past, where political parties and institutions were trusted—something now described as having all but dissipated. Those days of our past were described as ones where people believed in laws and in the public interest, and how it was individuals and institutional scandals that resulted in the shattering of that trust. The most common consensus across Canada was described as the belief that it was necessary to distrust our institutions. It was also suggested that the Globe and Mail FI leaks had highlighted an uncomfortable truth, that FI had always been taking place in Canada, but it was something that most Canadians did not consider. Canada was too far removed from plaguing national security threats related to things like war (Europe) and immigration (U.S.).
Building Disinformation, Digital Space and Democratic Processes
Subject matter experts on this panel had backgrounds in academia, and what made this panel standout out was the academic introduction into the world of FI. After World War 2, FI boomed, with the primary form of FI conducted through the then-new form of communication—the radio. Between 1946 and 2000, 11% of all the world’s elections were interfered with by the US and Soviet Union, a percentage based on what was “known”. FI was described as an activity that was focused on controlling the flow of information or narrative, because whoever controlled a narrative was all but guaranteed to win their war.
The history of legacy media was highlighted, their role as a traditional gatekeeper of what information and stories were delivered to the masses and how they were not immune to political and institutional influence. In today’s digital world, however, it was possible to bypass that gatekept path to masses, through social networks and with people from around the world. For those with the digital “know-how”, it was possible to boost posts and reach larger audiences. And it was even possible for employees at these social media companies to act as intermediaries to manipulate results on the back end, affecting things like account visibility and search results that populate.
Another aspect that complicated FI activities conducted over social platforms is that these activities are borderless, so they are harder to regulate. Since FI is a permanent activity, it was suggested that FI should be monitored year-round. Additionally, it was suggested that those tasked with tracking FI should be required to publish related reports. It was even suggested that our institutions, created in the 19th century, have aspects to them that do not work in 21st century environments, which is why public trust in institutions is at an all-time low. In short, social cohesion was eroding while radicalization and polarization was amplifying.
Canada’s National Security Apparatus
Subject matter experts on this panel had leadership backgrounds in national security, detailing how outside of Ottawa, a few academics and a few journalists, the threat of FI was not acknowledged as being a significant threat to Canada, or one that was ongoing and permanent. From the get-go, a former public safety director requested that the Commission be explicit in declaring FI as a present and serious danger because it was not being treated as such. It was a threat that saw too much emphasis on public safety stakeholders and that it required more civil society involvement.
As it related to the RCMP and CSIS, “risk aversion” was described as the key reason as to why the two stakeholders rarely applied their “full powers”. Other challenges for the two related to changing mandates, and that a key priority moving forward needed to be establishing greater cooperation between federal, provincial and municipal levels of government, because of how FI starts at lower levels of government. An issue was also raised with how most laws related to national security have almost always been drafted in times of crisis, and thus were backwards looking and incapable of accounting for evolving threat landscapes.
On the supply-side of national security, providing reports and updates to different stakeholders had challenges related to how different products were “interpreted” by different stakeholders. One reason for this challenge was that products get crafted by a national security officer (and for national security officers) and without regard for other stakeholders that may require access to those products. Other aspects that legislators and academics lacked familiarity with included a lack of understanding with how products were crafted, how information and intelligence is shared between stakeholders, the limitations related to the usage of evidence for prosecutions, how containing the harms related to national security investigations has gotten harder, and how such investigations start slower and are forced to play catch up.
Unlike Canada’s closest security partners (US, UK, Australia), Canada does not have a “national security council”, and there are challenges related to continuity for international cooperation on major international files. It was not uncommon for files to transition between different Canadian security officers every few years. In contrast, partner countries had their permanent oversight bodies staffed with academics, former statesmen, retired public servants, and they have full access to all information and a right to know anything and everything related to policing and public safety.
Enforcing, Deterring and Prosecuting Foreign Interference Activities
Subject matter experts on this panel were comprised of leadership backgrounds in federal policing and criminal prosecution and academia, and the panel was critical and unrestrained in their remarks about the national security ecosystem in Canada. The panel was particularly critical of there being a new “gold standard”, reminding that Canadian policing stakeholders have previously tried to implement a similar approach many decades ago that failed miserably. The panel even suggested that the criminal justice system (as an institution) had an obligation to protect everyone on Canadian territory, and a sovereign state that was incapable of doing so was not worthy of the name. By far the most compelling roundtable.
The former federal police leader, who arguably provided the best insights into the issue of FI, started his discussion by deviating away from the Stage 1 and Stage 2 talks of a new “gold standard” in policing, detailing how aggressive criminal investigations that result in timely and successful prosecutions needed to be an essential part of Canada’s “whole of society” approach to FI. Not producing criminal convictions related to FI, combined with the language of a new “gold standard”, is something he noted would likely further dimmish trust in the institution of policing and institutions at-large. Additionally, police officers (municipal and provincial police were most likely to uncover FI), lawyers and judges in Canada were described as having little to no working knowledge on many national security and transnational issues.
Another big shocker was the acknowledgement that it was not uncommon for policing stakeholders to abandon criminal investigations if they had transnational components to them because those investigations have overwhelming administrative requirements and are too time consuming. Other issues raised included an example of how the RCMP struggles to recruit Canada’s best and brightest, because corporations (KPMG) can spend more for talent, such as forensic accountants, than the RCMP is capable of paying. There was also reference to a relationship breakdown between the RCMP and CSIS, how the RCMP was wrong about the activities of certain individuals that were being investigated and how the RCMP’s surveillance team was surveilling pointless locations, and how CSIS was aware of the investigative failings but said nothing.
What may have been the biggest shocker from the policy hearings phase related to CSIS warrants and intelligence collected in relation to those warrants, specifically that Canada’s Courts were likely to rule that it was unlawful. Despite that there were multiple testimonies provided during Stage 1 and Stage 2 about how CSIS warrants require an “extremely high standard” for them to be signed off by a Public Safety Minister, CSIS was permitted (upon the signing of a CSIS warrant) to act on unproven incoming information, and matters only required the slightest of indications of there being a threat to Canada’s national security. In lay terms, the threshold for a CSIS warrant to get approved by a Public Safety Minister did not always meet the standard set out by Canada’s Charter, so it was incapable of being used in court.
On the topic of “deterrence” as a police strategy, that approach was described as using a combination of actions to shape an adversary’s behavior in a way that met police objectives. Deterrence was described as a framework that entailed a multi-faceted approach that offered various pathways to go after a threat actor, including “punishing and denying” their wants, with policing and public safety stakeholders working together. Overall, “deterrence” was described as an easier approach to managing threats and has proven to be a successful police strategy, but it also had elements of “bluffing” to it that could completely undermine police efforts.
As it related to top office holders, they were described as always demanding to be briefed on high-level policing investigations. Such occasions were described as having resulted in many instances where information that did get shared with top office holders would result in leaks and compromised investigations, which is why it is possible that not all information is always shared with top office holders. However, it was also suggested that there have been high-level criminal investigations related to terror financing (Hezbollah) where police could have proceeded with criminal charges, but they were blocked from doing so. Finally, all of this and more was explained as the reason behind the criticism that gets levied against Canada by its closest economic and security partners who routinely call us “a safe haven for serious organized crime activities”.
The Hogue Report will be published by January 31st, 2021.
If Stage 1, Stage 2 and the Policy Hearings phase are any indication, the Hogue Report on FI will end up being must-read, and will hopefully bring this series to a satisfying conclusion.