The Foreign Interference Commission – Stage 2

Unexpected Acknowledgements about Canada’s Vulnerability to Foreign Interference

The Foreign Interference Commission concluded its public hearings phase over the Fall, with Stage 2 and then a subsequent Policy Consultation Hearings phase. Stage 2 of the Foreign Interference Commission lasted around 4.5 weeks and featured around 70 witnesses, including current and former Directors, Commissioners, and other leadership officials across different agencies and departments as well as the Prime Minister and Cabinet Ministers. Although much of the testimonies provided during Stage 2 reflected what was stated during Stage 1, there were acknowledgements that came as a surprise.

COVID-19 reshaped how government functions

During testimony provided by a former Public Safety Minister, there was acknowledgement that there were issues related to the flow of classified information that did not become evident until the arrival COVID-19. Prior to COVID-19’s arrival, classified information was described as flowing rather “freely”, often delivered in binders, and any applications made by public safety stakeholders for warrant approvals or renewals had a 4-to-8-day turnaround window. Once the COVID-19 lockdowns began, the flow of classified information had all but stopped because there were no protocols to securely transport classified documents and leaving them in shared offices was not an option. Further complicating the matter was that Ministerial offices did not have direct access to Canada’s Top-Secret Network (CTSN) and that were times when the kind of security briefings that would get scheduled were different from the security briefings that took place.

During testimony offered up by a panel representing the Prime Minister’s Office (PMO), there was discussion on how the flow of classified information (paper form) that was flowing into the PMO was being delivered daily and weekly pre-COVID-19. The PMO would then filter through everything and provide the Prime Minister with an update on the most important information, but the arrival of COVID-19 changed everything. It was suggested that some classified documents that public safety stakeholders had claimed had made their way to the PMO never ended up reaching the office. Then, there was mention of how one specific intelligence briefing referenced a meeting that had never occurred, yet it appeared in classified documents. Additionally, changes to how classified information flowed were detailed after the leaks to the Globe and Mail, there was the creation of a specific role (client relations officers) and there were new protocols allowing for total oversight and full accountability for all-things classified.

Other testimony provided on the matter over the 4.5 weeks included discussion around the risk assessments of “vulnerable” MPs and how the PMO would be provided with background information on individuals from both public safety and policing stakeholders. It was also discussed how the information that made its way into intelligence reports sometimes required accounting for potential biases and motivations of those compiling such reports that could impact the reliability of such information. Another point that was discussed related to the cultural reluctance across Canada’s institutions to divulge information with the necessary parties, and it was suggested that public safety and policing stakeholders were often unfamiliar with the norms and realities of different fields (political campaigning).

One of the biggest shockers came from an acknowledgment that different public safety stakeholders and political leaders have slowly begun to approach various public office holders and others with institutional powers to inform them that it was necessary for them to step away their roles. Whether that meant “retiring” or “stepping away”, they would be allowed to leave with dignity instead of public safety and policing stakeholders having to get involved (as it was not in the public interest to stain the public office). And there were indications that political parties are now being made aware when they were targets of foreign interference, and  were likely to start to receiving background information on potential candidates and their nominations processes.

News consumption has changed forever

During testimony by the Minister of Canadian Heritage, the focus was on communication and the intersections of mis/disinformation, legacy media, digital literacy, and how the digital revolution has fundamentally changed how people live. One of the points that was referenced highlighted the importance of taking an active role in preventing the death of legacy media from the arrival of big tech platforms, and how layoffs were still taking place across the legacy media landscape despite the federal government having provided support to the sector. The ability for people to receive up-to-the-second updates on breaking stories over big tech platforms managed to eliminate every advantage that legacy media had held.

At the arrival of big tech, much of the instantaneous sharing was not monetized, but legacy media was slow to adapt to the new landscape. The new landscape put pressure on being the first to “break” the story (over social media), effectively eliminating the need for people to visit legacy media websites and wiping out advertising dollars. Additionally, if copyright or sharing violations occurred over TV or radio then the CRTC could get involved, but the CRTC was powerless with big tech platforms. On the topic of Generative AI, fake or manipulated content, it was mentioned how there was legislation that was being tabled that was looking at the possibility of demonetizing “bad actors” that engaged in creating fake or manipulated content and made money from doing so.

None of the lawyers seemed interested in probing the extent of those generative AI deliberations, but I did manage to connect with a staffer from the Minister’s office. Unfortunately, although I did send questions over, I have not received a response as yet. What piqued my interest was whether any consideration had been given to the forwarding of funds earned when an online account earned money by using a person’s likeness or copyrighted footage that belonged to a media company. Instead of blocking funds, I believe accounts that earn money by using another person’s “image or likeness” (real or AI-generated) or manipulated footage from media interviews (owned by media company), should be made to provide all the money earned to the owners.

The Death of the Gold Standard of a Criminal Conviction

During testimony provided by federal policing leaders, foreign interference was described as an existing threat that had evolved to require cooperation across every level of policing and now requiring “new teams” to deal with it. The organization’s leaders described the RCMP as being responsible for educating other police forces (country-wide) and how organized criminal activities are troubling all levels of policing. Lower levels of policing (municipal and provincial) were most likely to come across serious organized criminal activities first, given they were on the “front lines”, but most of those police officers were ill-prepared to handle such complicated crimes.

Arguably the biggest shocker came with the acknowledgement that there have been occasions where crimes were  reported by victims or by their friends and family, and that police stakeholders were incapable of acting on the complaints because the reported criminal activities were related to existing high-level police investigations. As a result, criminal complaints were cast aside because acting on them would effectively ruin existing high-level police investigations involving years of undercover work to get close to targets. Additionally, it was noted that the imposing of sanctions was ineffective because of how sanctions could easily be circumvented through shell companies, among other limitations of Canada’s Criminal Code.

It was also noted that one of the biggest challenges to policing foreign interference was described as inconsistent police practices, with many police organizations described as being unlikely to meet the necessary standards for national security investigations. Other challenges related to how recent foreign interference legislation had yet to be tested in court, and it was expected there would be issues related to the thresholds required to obtain warrants to collect evidence not always meeting the legal threshold to be used in criminal prosecutions. It was suggested that policing stakeholders needed to move away from the “gold standard” that was tied with criminal prosecutions and convictions, and that police files (investigations) that get “closed” are never permanently closed and can still be worked on.

On the topic of “deterrence”, there was discussion about how there were instances where illegal activities had been identified as taking place in locations where legitimate immigration-related activities were taking place. The only problem was that legitimate organizations would request that police not loiter on the premises because their client base felt uncomfortable with the police presence. The trust gap between communities and policing stakeholders was described as a major concern for policing stakeholders at-large. Some of the steps being taken to rebuild that trust included building up relationships across various ethnic communities, with their community leaders, organizing weekly meetings, and by allowing some RCMP hires to work in their home cities.

Further context was provided regarding “sensitive sector requests”, how there were specific protocols when national security investigations entered sensitive sectors: academia, media, religion, trade unions, and politics. As it related to “duty to warn”, when there were threats to life, policing stakeholders would advise targets to avoid going out in public, providing them with advice and services on how to handle potential scenarios, but protective services were not included. And questions regarding whether policing stakeholders had been previously aware the kinds of foreign interference activity that is now at the center of the Foreign Interference Commission (and for how long), they received “no comment” responses.

Public Safety Updates Including the Premiers

During testimony by the then-Minister of Public Safety, there was an acknowledgement that it was due time for legislative changes to account for the evolving threat that was presented by foreign interference.  Arguably the biggest surprise came when the then-Minister acknowledged that they also first learned about “foreign interference” from the stories that leaked in the media about how MPs were targeted and how, prior to that, it was not on any elected official’s radar. There was even a new “first” related to cross-collaboration between federal and provincial stakeholders: Premiers would begin to receive public safety briefings because threats stemming from foreign interference were finally accepted for being the dynamic threat that targeted all of Canada’s policy makers, at every level of government.

The first exchange between federal stakeholders and a Premier involved British Columbia Premier, David Eby, who made the request to connect with public safety stakeholders at the federal level. One of the reasons why such interactions were not taken earlier had to do with legislative constraints that impaired the ability to do so, the separation of powers existing between the federal government and provincial governments. Then, it was suggested that it may be necessary to get intelligence briefings directly from analysts, because there would be questions that arose during intelligence briefings with MPs that could not be answered in real-time, and having those answers was crucial for effective decision making.

What came as a surprise was that the then-Minister of Public Safety suggested it may be necessary to consider bringing about new oversight bodies related to oversight over “all things classified”, with no constraints. Regarding the National Security and Intelligence Committee of Parliamentarians (NSICOP), whether the body continues to exist remains uncertain and would depend on future governments. However, it was suggested that NSICOP’s current mandate was likely inadequate and that it was necessary to consider expanding the current mandate to better account for threats like foreign interference.

A Personal Connection

What was unique about getting accredited with the Foreign Interference Commission and covering the proceedings is that most of the high-ranking officials (current or retired) that gave testimonies were my clients while I was working in telecom (2015-2018) at a flagship location in Ottawa’s downtown. Back then, I helped them to set up their digital services and to service their accounts. During our interactions, we would chat about everything from cyber security to humanitarian work, and I hooked them all up with “beyond top secret” plans that were years ahead of what was available on the market. At the time, none of them were in their Director, Commissioner or other leadership roles, but it was interesting seeing them in a different environment and doing their jobs in high pressure judicial settings.

As the Foreign Interference Commission is set to conclude, the final report is set to be released by the end of January, perhaps the biggest takeaway from everything should be that the Globe and Mail is responsible for setting off the series of events that brought about the public inquiry and the subsequent institutional improvements. Seeing how all these improvements came about because of people breaking the law and leaking top secret information rather than government trying to actively better itself, it serves an indictment on the functionality of our democratic institutions. That indictment should be enough, I would think, to warrant a Canada-wide update of secondary school curriculums so that every civics and citizenship class includes a case study on the Foreign Interreference Commission—so that the leaders of tomorrow may one day get government right.