(Ottawa) The public and media face a “black box effect” when the government cites reasons such as national security to justify keeping information secret, according to an expert heard Tuesday by the committee on foreign interference.
“The black box effect is essentially an effect by which the public finds itself kept in ignorance,” said law professor at the University of Montreal Pierre Trudel.
For example, when a document is not made public for reasons of national security, the public and the media find themselves faced with “a mystery”, according to him.
“He often doesn’t know what it is, what it’s about, what it’s about, why the information can’t be disclosed and so it gives the impression that we have to take his word for it” , continued the holder of the Public Law Research Center.
A counterbalance to this “black box effect” is necessary, in his opinion, otherwise trust in institutions risks being undermined.
The public may consider that the temptation may be great for a public decision-maker to invoke the exception […] to hide situations or facts which do not fall under this exception, but would, for example, aim to hide clumsiness.
Pierre Trudel, professor of law at the University of Montreal
Professor Trudel believes that the Canadian judicial system is empowered to exercise a check and balance when it is called upon to certify, with complete impartiality, that the disclosure of documents actually risks harming national security.
“We have judges who have the independence, impartiality and rigor to attest and reassure the public on the existence and reality of the reasons why certain types of information must be withheld from the public,” affirmed the expert.
In his eyes, Judge Marie-Josée Hogue, who chairs the work of the commission on foreign interference, is well placed to exercise this counterbalance.
Everything indicates that she will be confronted with this question during her mandate, given the quantity of information protected by the seal of confidentiality which must be examined by the commission.
One of the lawyers from M’s teamme Hogue said Monday that about 80 percent of the documents received by the commission are classified. Of these, 80% have the highest protection ratings, meaning they are considered “top secret” or higher.
Since she was appointed to head this public and independent inquiry, Commissioner Hogue has insisted on her desire to maximize the amount of information that can be revealed to the public.
Commission lawyer Gordon Cameron said the commission will have the option to plead with the government that, in certain cases, the disclosure of classified information would not cause harm to national security.
In the event of a disagreement between the commission and Ottawa, the Federal Court could have to decide on the disclosure, or not, of information.
Another expert who testified Tuesday, Michael Nesbitt, argued that the commission will have to exert pressure to “obtain the complete picture” and to “share as much information as possible.” “Commissions of inquiry are set up for important subjects only and are often […] one of only a few sources of transparency and therefore accountability, then they must have the will to push on behalf of all of us,” said the University of Calgary professor.
Mme Hogue must submit a first report no later than May 3. The final report is expected by December 2024.