By Ryan Alford, April 4, 2023
The government of Canada has been rocked by explosive allegations from leakers within the intelligence community that Beijing influenced the general elections of 2019 and 2021 in favour of the party forming government. The former leader of the Official Opposition Erin O’Toole believes that this campaign cost his party eight or nine seats in the sitting Parliament.
Han Dong, now Member of Parliament for Don Valley North, was allegedly a “witting affiliate” in Beijing’s electoral interference efforts during these elections. Dong had secured the Liberal Party’s nomination for his riding after its incumbent Geng Tan, was smeared by Beijing-affiliated media. That defamatory campaign had been spurred by Tan’s promise to visit Taiwan. Dong, who ultimately dissuaded Tan from making that visit, was supported in his bid to obtain the nomination by Michael Chan, at that time the MPP for Markham-Unionville and Minister of Citizenship, Immigration, and International Trade in the Kathleen Wynne government.
Michael Chan had long been a subject of concern to the Canadian Security Intelligence Service (CSIS). Dalton McGuinty, then Premier of Ontario, was warned by CSIS in 2010 that Chan had very close associations with officials in the Chinese Consulate in Toronto. Five years later, Chan sued the Globe and Mail for reporting that his connections to officials in Beijing were the subject of a CSIS investigation. Numerous sources alleged that both the Ontario and the federal branch of the Liberal Party had rejected or downplayed CSIS’s concerns about Chan because of his fundraising efforts on behalf of senior members of both parties, contribution bundling that had reportedly accorded him the status of a Liberal Party kingmaker.
Vincent Ke, MPP for Don Valley North, had been another subject of pressing concern to CSIS. According to the latest leaks, Ke and a federal staffer (presumably working for Han Dong, Ke’s federal counterpart) funneled approximately $250,000 from the Chinese consulate in Toronto to 11 candidates in the 2019 federal election. Ke has been linked not merely to Beijing or consular officials, but to the Chinese Communist Party’s United Front Work Department, the principal agency tasked with money laundering during Beijing’s electoral interference campaigns.
Most recently, it was alleged that shortly before that election, Han Dong initiated a meeting at Beijing’s consulate in Toronto, at which he told the Consul that the Chinese Communist Party should not release Michael Spavor and Michael Kovrig before election day – as in his estimation, this would influence the vote in the Conservatives’ favour. The two Michaels were instead released on bail four days after the election.
Beijing’s campaign of electoral interference was not limited to donations and actions designed to hinder the Conservative Party; some of the Conservative’s best Chinese-Canadian candidates (such as then MP for Steveston-Richmond East Kenny Chiu) were subjected to coordinated misinformation campaigns. Chiu, a trenchant and effective critic of Beijing’s crackdown in Hong Kong and the destruction of its rule of law, lost his bid for re-election in 2021.
Prime Minister Justin Trudeau has repeatedly denied being briefed about Beijing’s efforts to fund federal candidates and that he had ignored CSIS’s warnings about Han Dong in particular. However, the leaks have revealed more and more information about the alarming reports that CSIS and other agencies had been presenting to Trudeau and the Cabinet. To date, the government has vigorously resisted calls for a Commission of Inquiry, instead unilaterally appointing former Governor General David Johnson a “special rapporteur on electoral interference,” a newly created role and title with a bespoke agenda – one carefully tailored by the Cabinet.
As had been the case with the Rouleau Commission, the mandate of the “independent special rapporteur” is remarkably myopic. It does not mention Beijing or indeed China. It also indicates that Johnson will engage with the Chair of the “National Security and Intelligence Committee of Parliamentarians [NSICOP] . . . to ascertain the extent of their respective work in the area of foreign interference, while ensuring the independence [of NSICOP] in the fulfillment of their mandates is respected.” In other words, Johnson is to leave to the Chair of NSICOP those matters which they determine should be properly considered as within its exclusive remit.
The problem with this arrangement is that NSICOP is not a parliamentary committee with full legislative prerogatives. As a “committee of parliamentarians,” it is actually located within and largely subject to the control of the executive, which is to say Justin Trudeau and his Cabinet. Unlike a parliamentary committee, the Chair (with whom Johnson will consult on what should be considered outside his remit) is not chosen by the members of the committee, but rather directly by the prime minister. It’s Chair (and indeed the only founding or even long-serving member) is David McGuinty, a second-generation Liberal politician, who happens to be the brother of the Ontario Premier who reportedly dismissed CSIS’s concerns about Michael Chan.
Additionally, because NSICOP is located within the executive branch, the prime minister can ignore it at will. Indeed, with respect to the issue of electoral interference, Trudeau has done so repeatedly. In 2019, NSICOP’s report noted that: “If it is not addressed in a comprehensive, whole of government approach, foreign interference will slowly erode the foundation of our fundamental institutions, including our system of democracy itself.” Not only did the government not implement its recommendations, the Cabinet did not even bother to file an official response to the report, a step contemplated – but, crucially, not mandated – by NSICOP’s statutory framework.
In the NSICOP’s last annual report, it reiterated that it “encourages the government to respond to the recommendation of the committee’s seven previous reviews of critical issues in the security and intelligence community, including . . . the absence of a whole of government strategy to address foreign interference in Canada” (emphasis added). When formally committing the issue of electoral interference to NSICOP (that is, yet again), Trudeau acknowledged that: “We have to do a better job on following up on these recommendations. I fully accept that.”
Talk is cheap, and vague statements of an intention to “follow up” on the recommendations of a body that that prime minister controls are worthless. It should also be noted that the Cabinet has the power to deny NSICOP any information that it deems “injurious to national security,” which when the bill was proposed Murray Rankin had noted “would allow any Cabinet member to bury an investigation.” Rankin had also noted that the prime minister has the power to unilaterally censor or even bar the release of an NSICOP report.
What is worse is that the Cabinet intended that the members of the NSICOP would be muzzled in the event that they themselves believe they needed to blow the whistle on governmental abuses – or indeed on attempts to cover them up, which might extend to suppressing NSICOP reports. In other words, they could be prosecuted under the Security of Information Act. The statute that set up the Committee of Parliamentarians went so far as to contemplate prosecutions of its members for what they say to other MPs and Senators within the course of their legislative duties, namely to frame legislation to prevent further abuses. This provision was so egregious that it was struck down as unconstitutional in Alford v. Canada (Attorney-General) in 2022. [Full disclosure: the author of this article was the applicant who brought and litigated this constitutional challenge].
While the Court found this section of the statute a surreptitious attempt to amend the Constitution of Canada’s provisions for parliamentary privilege, the Privy Council Office (that is, Trudeau’s Cabinet) made the decision to appeal the judgment to the Court of Appeal for Ontario. The hearing of that appeal may not take place until after the NSICOP completes the truncated investigation necessitated by the timeline established by the mandate the Cabinet issued to the “independent special rapporteur.”
The NSICOP is firmly under the prime minister’s thumb. He appoints its Chair, controls what information it receives, and ignores it at his pleasure. More fundamentally, it is an executive branch agency, and it cannot investigate serious allegations of wrongdoing by the executive without violating the most basic principle of natural justice: no one can be the judge of their own case.
A public inquiry is necessary, and that inquiry must have the power to call any witness it chooses and obtain any document it requires, including those that relate to national security. That is what Parliament voted for in the motion that it passed on March 23, and this is what the government should implement by means of the Inquiries Act. Most importantly, the Commissioner of the Inquiry – unlike David Johnson and Paul Rouleau – must be appointed by Parliament, and not by the Cabinet.
Ryan Alford is a professor in the Bora Laskin Faculty of Law at Lakehead University and a senior fellow at the Macdonald-Laurier Institute.