Canada’s Attorney General essentially holds a ‘trump card’ over disclosure disputes about ‘classified information’ as determined by the federal government, explained an expert witness during the second day of the Foreign Interference Commission’s (FIC) public hearings in Ottawa, ON, on Tuesday.
The FIC was launched by the federal government, ostensibly to examine political influence operations in Canada run by foreign states and non-state actors. Its mandate declares its focus to be on China and Russia.
Leah West, an associate professor of international affairs at Carleton University with legal expertise regarding public inquiries, joined the hearing to explain laws and procedures governing the classification of information by the federal government. The federal government, she said, uses two primary justifications to classify information:
- to protect Canadian national security and/or the security of its allies;
- to protect the safety of individuals.
Sensitive information is classified when the government claims that its public disclosure would undermine national security or place certain individuals – such as confidential sources – in danger.
The Attorney General of Canada (AGC), West stated, “is holding a trump card” over disclosure disputes, even with the ability to override federal courts. Canada’s current attorney general is Liberal MP Arif Virani.
West explained the AGC’s power in the event of a federal court ordering the disclosure of information deemed “classified” by the federal government against the federal government’s objections. She explained how the process would unfold.
“Essentially, the process will look like this. The AGC lost on some of its claims for Section 38 – for privilege to be maintained – and the court ordered that in the public interest certain amounts of the information the government sought to protect had to be disclosed. The government could appeal, or the Attorney General could issue a certificate prohibiting the future disclosure of that information, and that is essentially the end of the matter – there is an element of being able to test the appropriateness of that certificate – but essentially, it’s a bit of a fiat. In short, the AGC is holding a trump card, and if played, then notwithstanding the federal court’s order or their finding, the information must be withheld in accordance with the certificate.”
Michael Nesbitt, an associate law professor at the University of Calgary, said that excessive governmental classifications – which he described as ‘overclaiming’ confidentiality – undermines public confidence and trust in governmental institutions.
An NGO attendee in the hearing room who told Rebel News he had experience observing Canada’s ‘intelligence community’ said bureaucrats tend to be ‘risk averse’ and over-classify information in a defensive and reflexive manner, undermining public transparency with respect to government information.
The first phase of the FIC’s public hearings are scheduled to end on Friday.