Ward Elcock
Ward Elcock spoke 18 times across 2 days of testimony.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Good morning, Commissioner. My name is Ward Elcock. I am a lawyer by training. I have spent some 10 years as the counsel to the Privy Council Office from 1984 until 1994. In 1989, I also became the Coordinator for Security and Intelligence, which was the original title of what then became the National Security Advisor after 2001, September 11th. I became the Director of CSIS in 1994, and in 2004, I became the Deputy Minister of National Defence, and subsequently, I was the Coordinator for Security and Intelligence -- Coordinator for Security through the Olympics and the G8 and the G20 on behalf of the Federal Government, which is my background in these subjects. A comment, rather than a statement, because I wanted to make sure that I said it: One of the things that I found strange in the lead up to the Commission, and through some of the testimony, was the focus on the importance or the relevance the interpretation that CSIS gives to the definition in the CSIS Act, which is also the definition in the Emergencies Act. To my mind, that was odd because, frankly, the relevance of the interpretation that CSIS gives to that definition is, in my view, beyond the normal rules of statutory interpretation, pretty much non-existent. The reality is the Service interprets that provision in the context of its role of its responsibilities in terms of the limitations imposed on it and the limitations that are inherent in any -- in the management of any intelligence service. None of those things are relevant to the discussions of Cabinet or to the issues that a cabinet might debate, but they do have important consequences for CSIS's interpretation of those -- of that definition. In that context, it is not clear to me that any revision of the CSIS Act definition would make any sense. If one were to introduce any new concepts into the definition in the CSIS Act that would create substantial difficulties in terms of the interpretation of the CSIS Act and raise some very significant separate issues. If you were, for example, to include power with respect to economic intelligence, that would in a stroke bring the Service virtually into a full-fledged foreign intelligence agency. So the consequences of a definition -- changing the definition in the CSIS Act are enormous, and in any case, I think, frankly, that's really beyond the purview of the Commission. You're looking at the Emergencies Act not the CSIS Act. We can come back to the issue of what I think ought to happen to the definition and what ought to be added, but I think it's important to recognise that CSIS's interpretation of that definition is a very different animal than the animal that Cabinet looks at when it's dealing with the Emergencies Act.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I’m not sure I can demystify it particularly. I would agree with what Dick has said about intelligence. It is -- it’s information. It is not necessarily, even if it’s collected by technical means, it is not necessarily accurate. It is simply information which you try and make an effort to bring to a level of greater certainty, or the greatest level of certainty you can get it to, but the reality is it is never evidence or proof of anything. It’s simply information that informs decision makers. Hopefully it does give them an advantage, but there are lots of cases where there is not intelligence, and therefore decision makers have no particular advantage as a consequence of it. I’m not sure I agree with the view that, in this case, there was necessarily an intelligence failure. The Commissioner has more information before him than I do. But it does strike me that listening to some of the information I did listen to, that indeed there was intelligence which was available to some of the participants, the Hendon process of the OPP, that would have provided pretty good intelligence about what to expect. The fact that the Federal Government did not have a wide swatch of intelligence reporting upon which to rely, one would like to have more, but the reality is the Service came to the conclusion, and I think rightly so, that it -- that the protest did not rise to the level of the section in the CSIS Act as a threat. Whether it would have risen to that level, one could argue that it arose to that level during the process itself, as the protest morphed into something more than the initial convoy. It’s an interesting question, but not one on which, frankly, I’m in a position to come to any conclusion. Although I would say that even if the Service had come to that conclusion, it really, at that point, would have made little difference, because the reality is the ability to collect information at that point would have been -- the question would be moot. One’s ability to actually collect any useful information would be pretty difficult. I think Professor Wark is right to note the importance of assessment. Assessment is crucial. But at the end of the day, if you don’t have information, there’s nothing to assess. In this case, there was no -- there was little information, apart from whatever information might have been gleaned from public sources or from police sources that would have allowed the assessment of -- or a really detailed assessment of the information for the Federal Government at the Federal Government level. In some sense, this was an issue which was not at the federal level. The Federal Government does not normally have responsibility for issues within a particular province. In this case Ontario, and would be the same in other provinces. It is a provincial jurisdiction. I think the Government on Ontario has pointed out on a number of cases, in a couple of cases in its existence, cities are creatures of the Province. The reality is, that is a matter for the Province, not a matter for the Federal Government. So it is not entirely surprising to me that the Federal Government was not particularly well informed about the issues surrounding the protest. And indeed, I’m not sure that one could necessarily expect that they should be well informed, because this is a matter for another jurisdiction, frankly. So again, the issue of whether there’s an intelligence failure, I’m not sure. Having said that, clearly there was a necessity, given what did happen, given the fact that the protests morphed into something else, whether because they were allowed to morph into something else, or just simply the passage of time allowed it is, as I said, an interesting question. But I’m not sure that there’s any point in pursuing that issue particularly. Apart from that, I think what -- I think it’s really important to keep in mind the reality of what intelligence is or isn’t, and that it is not an exact science. Even if it’s collected by technical means, it’s not an exact science. It’s still an art. You’re still dealing with untested information which you can’t absolutely guarantee.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I think I’m batting cleanup here, so rather than try to respond to everything that has been -- much of which I agree with, let me just pick a few issues. I think Dick is right; one of the clear issues that creates problem in the national security area is that national security is not widely perceived as an important issue, both by governments, but also even by Canadians, which unsurprisingly, if Canadians don’t think national security is terribly important, their politicians are likely to think that national security isn’t terribly important either. I think, however, it is important, and it would - - I would hope, as Dick said, that to the extent that -- of your work that it does, in fact, engender a little more attention to national security, more attention to national security would in theory allow us to build a better system. I think also the issue of national security -- because we tend to focus more on review of the national security agencies is -- because we don’t necessarily worry about national security, we tend to focus more on reviewing those agencies and constraining their abilities and their actions to the point that I frankly think that there is a question of risk tolerance on the part of organizations such as CSIS. If you live in a world where you are heavily reviewed by, I would argue, three review agencies -- Professor Roach has mentioned two, there is a third, the Federal Court, which, frankly, acts sometimes as if it was a review agency. I think in the circumstances often the agencies are so reviewed that they become risk averse, to a certain extent. Perhaps more attention to national security issues, and less attention, as Dick said, to review of national security agencies would be a good thing. The issue of -- between police and the intelligence agencies, the flow, as everybody has said, is pretty one way -- pretty much one way, and has been described by Professor West, the reality is that for CSIS there is a constant question; can I share this information without risking both sources and methods? And I think in the context, one has to realize that the methods that the Service uses are frequently different, and sometimes much more advanced, than police forces use, and in some cases, is the identity of sources and particular methods that they might have used, beyond technical ones, that are at issue for the Service. So there is a great reluctance on the part of the Service to share information with law enforcement, both because it may compromise those sources, but also because frequently it compromises the criminal investigations. If the Service provides information to the RCMP or another police force, and that investigation is compromised because the Service refuses to share the information for the purposes of a prosecution, then the reality is we’re interfering with law enforcement. So there is a tendency not to share with police, and that’s inevitable. The issue of police sharing with -- that came up in the context of the NSIA and whether or not she had received enough information. I think the issue there, in fairness to the police, is that they’re in the process of criminal investigations and therefore are reluctant to share information that may compromise their criminal investigation. And that is a continuous refrain, and it is one, frankly, as counsel to the Privy Council Office, I was familiar with. To the extent that -- I have to say my experience in dealing with -- I think the issue of the flow of information, I think it has gotten harder than it used to be. Frankly, in my time in the Privy Council Office, I had fairly close relationships with the RCMP and they did share, on a fairly consistent basis, the kind of information that I needed to be able to provide Ministers with advice on a variety of issues, as the Coordinator for Security and Intelligence. I think that has become harder to do in the context of more circumscribed rules around all of those issues. But it also depends on the way that police forces see sharing. And in some respects, that’s a very personal issue. Often some senior police officers will be prepared to share. Others will not be prepared to share. It is how each individual sees it, to some extent. Unfortunate, but real. I think I’ve hit -- I mean, I agree with most of what has been said, so I’m not going to delve beyond that into the issues, unless there are questions that we come back to it at some point.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Okay. Again, you’re making me play cleanup. A few points. I would share the view that a greater degree of sharing of information between the federal government and -- between federal government agencies and provincial agencies, and municipal police forces and so on, is important. There have been some efforts to do that over the years; they have not progressed as far as they probably should have. They probably ought to continue to progress, and there ought to be more pressure to make them progress. Although, to some extent, I suspect that that is a result of the reality that national security, or security -- national security issues are not widely seen as crucial. The issue of whether or not some national coordination body, it would or would not be useful. My guess is, frankly, that since we haven’t managed to achieve a national regulator for securities issues, we’re unlikely to get to the point of creating a national coordination for -- or coordination agency for security and national security issues anytime soon. I have long, frankly, resisted suggestions, or have frequently resisted suggestions that there should be reviews of this or that; and, in particular, national security issues. Frankly, I’m not sure they’re all that useful. They’re often formulaic. They’re unlikely to -- it is unlikely to happen any time in the near future. Since an election is -- we’re in a minority situation and an election is two years away, I suspect that that’s not going to happen any time soon. And to be uncharitable -- my academic colleagues will probably not share this view, but sometimes I think that academics would like to see more reviews because it gives them something to write about, rather than achieving anything, in terms of real process. I think one of the things that is clear here -- because it’s not my view, frankly, that there -- this was necessarily -- as I said earlier, that this was necessarily an intelligence failure. I think one of the areas where there really needed to be better cooperation has nothing to do with the federal government; it’s really the issue of how Province of Ontario organizes itself and deals with its police forces. That, to me, in some respects, was much more important issue than whether we have any national coordination function or broader sharing. That seems, in this case, to have been deficient. It would be -- but that is a much more discrete issue. Clearly, in this case the RCMP did not see it as important to share as it might have. I think that is an inevitable consequence, as I think I said earlier, of the way in which police forces function. But if -- I think that it would be important for police forces broadly writ, since in some sense this, at a certain level -- certainly in its initial stages -- was much more a public safety issue than it was a national security issue, or seen as a public safety issue rather than a national security issue. The issue of police sharing and of, perhaps, funding of better police analysis capabilities, in some cases would be more important than trying to build some national structure, which I’m -- suspect we won’t get any time soon.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Some of the issues that come up here are -- a comment that Dick made suggests to me that I may have been around for too long. I do in fact recall the passage of the emergencies legislation and Dick asked the question what was the driver for it, and in some respects, the driver at the time was constitutional discussions with Quebec in which the issue of the War Measures Act was an irritant. And as much as anything, the driver for moving the emergencies legislation forward was the need to get that irritant off the table in the context of those constitutional issues. And that was, as I'm sure some of the people in the room will recall, was a time of considerable constitutional ferment. It was a very difficult period. I think that was the driver, and obviously, they were looking for a fast solution to the definition of an emergency, and they were at an earlier time before a lot of other issues, before 9/11, before our economy became closely interlinked with the United States and the consequences of border closures became a huge issue as they did with 9/11, although why they left out things like national disasters, I'm not quite sure. But I think the definition was too narrow, but I think it was a quick fix. I agree with Dick entirely that there is -- there's no connection between the CSIS Act really -- a real connection between the CSIS Act and the Emergencies Act. There not -- need not be any close connection between the two. I think if one were to move to amend the definition and preserve the connection with the CSIS Act, and I think the Emergencies Act definition needs to be broadened to cover things like potentially economic issues, like potentially economic disasters, what will climate change mean, what would an earthquake in British Columbia that takes a good chunk of British Columbia out to the ocean mean in terms of disaster and a necessity of the federal government taking some action under some authority. Clearly, there are things that people need to think about. I don't have any particular advice on what are the sensible -- what are the things that should be added at this point, but I think they do need to be broadened. If those things were to be imported into the CSIS Act definition and retained in the CSIS Act, that some of those would have consequences for CSIS that I think are well beyond the purview of this Commission. So as Dick said, I think it would be a great -- I think that it will be really important, and as I said at the beginning of this, to separate the definition in the Emergencies Act from the CSIS Act, particularly if there's any contemplation, as there should be, to change the definition and broaden it. It makes no sense to have the connection -- to preserve that connection between the CSIS Act and the Emergencies Act, in my mind.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Yeah. I agree with Professor West, since she raised that comment. I share her view with respect to the issue of any other law of Canada and how it ought to be interpreted. I agree with that Dick said. I don't entirely agree with Professor Wark. Again, I love strategies as much as the next person. I would remind people that the original strategy, which was published in -- just after 9/11 or shortly after 9/11, was as much as anything not about national security policy, but was more about ensuring that our neighbours to the south knew that we were actually engaged and doing something. We also changed the title of the Coordinator for Security and Intelligence because all of us had gotten tired of going to Washington and trying to explain to people what a Coordinator was to the Director of the CIA. I suspect Dick had the same problems I did. I'm not sure that a strategy is the issue extant. I think the issue is to go back to something that Dick said earlier, and with which I agree and I expressed the same view, national security is not perceived as a central issue in this country for a variety of reasons. I participated this year, and as Dick did as well, I two exercises to look at national security problems in Canada, and in every single one of those we struggled with how do you encourage people with the idea of -- with the question of how do you encourage people to pay more attention to national security, care about national security. I'm not sure a study does it. I'm not sure a strategy does it. I don't have an easy answer to how to accomplish that, but I think that many of the problems that we have talked about here or are being talked about here would fall by the wayside if we actually had governments and a population which cared about national security regardless of whether we did a strategy or did a statement or whatever. But I'm not sure how to get there. I think the other problem, frankly, that we all struggled with in those two exercises is how do you define national security? And I do not think in either of those exercises we reached a real conclusion about what an acceptable or agreed definition of national security was. I think that to some extent that's kind of a wild goose chase, diving -- or diving down the rabbit hole, whichever metaphor you want to use, that actually probably achieves not very much in the process.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Then I can rely on you to answer the question first. Can you repeat the question because I was expecting Dick to deal with it.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
The other sources, to be, I guess to be specific if that answers the question, I think the key one would be a point that Dick made earlier, which is that it is the judgement of ministers. I mean, the reason we have a Cabinet is for them to have a discussion about a range of issues and exercise their judgement on all of that -- those issues as a result of that discussion and come to a conclusion. We go through a long process to elect MPs to become Cabinet ministers to become part of Cabinet, that's a pretty important part of our process. Having said that, what feeds into that process, the advice of the Attorney General, the Department of Justice, there will be as well pieces of advice from a variety of parts of PCO that go to the Prime Minister and some other ministers. Other departments will have provided advice to their minister on the basis of their participation at some level in the events. Different departments will have more capacity, others will have less, but there will be a whole range of things that will before ministers, quite apart from whatever ministers -- whoever else ministers are listening to, their perception of events in Canada. Their conversations with their -- with electors, with people in their ridings. There are a whole range of things that ministers will have in their minds and before them as they go through these discussions, but again, as Dick said, it's the issue of judgement that they're there to exercise, that's why we elect them, that's why they get appointed to Cabinet, and hopefully they'll exercise that judgement as part of that responsibility.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I think the issue of a national security definition, I mean, it’s -- as I said earlier it’s really hard to come to an agreed definition on national security, not an easy discussion. I think borrowing from abroad, I think you have to be careful when you’re borrowing from abroad because definitions of national security almost inherently reflect the circumstances of the country where that definition is developed, and so you want to be careful that you’re not buying yourself problems or issues that, actually, you don’t want to. So choosing a definition, I’m not sure that I would import a definition from a foreign country. I think it’s a question of informing oneself about possible definitions and coming to a conclusion. Whether it’s wise for the Commission to come to a conclusion about a definition of national security, I think that that probably is ultimately a better -- that Parliament is probably the ultimate decider of what the definition should be and I think if the Commission were to come to a conclusion about what the definition was, that would probably freeze the issue in terms of how government saw it going forward, and that may not be the right -- the right course of action. But ultimately, there will have -- a definition is not a bad thing. It’s a question more of how you arrive at that definition than whether or not there should or shouldn’t be one.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Intelligence -- by definition, you have an intelligence failure when you don’t actually provide the information in advance. So in a sense, intelligence failure is something that every director of an intelligence service -- and both Dick and I have done that for a few years, is something you live with all the time. You have probably more intelligence failures than successes. Fortunately, most of them are probably not in the public domain. Having said that, it’s not entirely clear to me here that an intelligence failure is the real issue. I think the reality is that the issues here are much more complicated than an intelligence failure. There was some intelligence that probably should have given the Ottawa Police Service pause for thought. Clearly, analytical capacity failed in some way because that didn’t get transferred through. One can look at the national security agencies and say they should have come up with information, but the reality was it was not a subject that, in their view, rose to the level of national security -- a national security threat, and therefore it probably, apart from some analysis from ITAC or some other assessment agency, would not have -- would not have given rise to the collection of additional information. So whether there’s an intelligence failure here or not, I think is open to question.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Hello, Mr. Commissioner. I am not -- while I am lawyer, I was a lawyer by education and early career, most of my career has been spent more than as an operator than as a lawyer. So what I would like to do is just make a few comments that perhaps close out some issues came up in the context of the previous remarks. One, the issue of -- I deal with it because it's one that has come up frequently in my career, and one I think is important to put in its proper place, and that is, was there ever an opportunity to use the military as a tool to deal with this? The military had been used in this country. The last time, in point of fact, was the Oka Crisis, when the military were called out, although that was a request by the Province under the doctrine of Aid to the Civil Power. And in that case, the military were successful in dealing with the issue, or at least permitting hiatus within which a solution could be negotiated. The reality is, it seems to me, that absent an armed insurrection, the military has no role in any of these kinds of events, and anybody who starts to talk about the use of the military I think is unwise and it would be highly improper for the military to be involved in anything, even if this particular event did rise to the level -- did meet the test within the definition of the CSIS Act that was imported into the Emergencies Act. I think I alluded to, in earlier remarks, that in my view there is -- it is open to question whether in fact the events did or did not meet the test that was imported from the CSIS Act. I’m not sure that the view of CSIS necessarily closes that issue one way or the other. I think CSIS operates within limitations, which it imposes on the interpretation of that section, which could lead it to a conclusion that the events did not, in their finality, rise to the level of the definition. But it’s not clear to me that that means that it did not, in point of fact, on the facts, rise to the level of that definition once you get to the final point when the Emergency Act is declared and the City of Ottawa was facing considerable difficulties in trying to resolve the convoy protests and there were still threats of potential convoy protests in other places across the country, particularly at border points. The idea of meeting an emergency before it gets to the point of being an emergency is certainly an attractive one, but in some sense, in the context of Canadian history, political history, constitutional roles, division of constitutional roles, it is almost impossible to foresee a situation in which the Federal Government can rely on, or you could create a mechanism which would allow the Federal Government -- the Provinces and the Federal Government to resolve these issues before they get to a really serious point. One would like to hope that they would, but it would not be the first time in this country, and perhaps even in this case, that a Province refuses, in point of fact, to act to resolve an issue at an earlier stage, when in fact it could have been resolved, which ultimately leaves the Federal Government with the only option of actually taking some action. Whether that happened in this case is for you to decide. Not for me. I’ve not seen all of the testimony and all of the documents. But it does seem to me while it would be attractive to try and deal with emergencies before they happen, that’s a role for the provinces and having -- trying to find a mechanism that would allow that to happen on a routine basis strikes me as, given our history and constitutional divisions of powers, seems to me an impractical goal. So ultimately the -- it seems to me the responsibility of dealing with an emergency must fall to the Federal Government, whether or not the definitions in this case and whether or not the legislation is sufficient to deal with the kinds of emergencies that lie ahead of us. My view is that it probably is not and that it requires some additional thought. In particular, in terms of the definition -- the threshold definition, but also in terms of the powers that would be required to deal with emergencies in the future, which were beyond what were envisaged in the Emergencies Act when it was done back in the early 90’s/late 80’s.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
On the issue of accountability, Commissioner, my view would be that, frankly, that the accountability structure, as it currently stands, for the most part, makes sense. And I’m not sure that there is some need for a new level of accountability beyond what exists. I’m not so sure that the role of the Parliamentary Committee beyond its initial involvement was sensible, but to suggest to Parliament that Parliamentary Committees are not necessary is probably not something that anybody will pay much attention to on the Hill. So the reality is, that will happen if Parliament wants to do it, almost regardless of what anybody else says. But I think it has worked -- I think in this particular case, the mechanisms have worked reasonably well. Clearly the Government has been, from all of the testimony I have heard, been very careful about how it proceeded in this case. Up to you whether or not it has acted properly or not, but clearly it has exercised a great deal of caution. It has also been very careful about to respond to questions and concerns and to appear before the Commission. No Ministers have refused to appear before the Commission. Clearly there is political -- there has been political accountability throughout this. And the Government, if it acted improperly, will be held to political account, which is, at the end of the day, how our system works. It all seems to me, actually, that it has worked exceptionally well. There may be questions about the time -- in particular about the time available for the Commission to do its work, and that obviously is something well within your purview, and I have no real sense of -- I’m sure that that task is a difficult one. And I have -- but I have no real sense of whether the timeline is too short or insufficient. Having said that, I would also say, having, I think, in my career, worked on some 30 or 40 Royal Commissions, Royal Commissions tend to expand to fill the time available to do the work. So I think it would be important, even if there were to be more time for the Commission to do its work, that it not be open ended. But I think, frankly, what I have seen, the accountability mechanisms are, frankly, about right. As to the issues of solicitor/client privilege and Cabinet confidence, having been a government lawyer for some years, no government is ever going to give up either on -- of either of those issues, for obvious reasons. And so I’m not sure that it is worth a lot of effort to deal with those issues, although Professor Kong’s suggestion, I’m not familiar with those statements, frankly. It comes after my time as a lawyer. But if that would work, it might help a little, but the reality is no government -- and I certainly would not advise a government to give up on Cabinet confidences or solicitor/client privilege. Once you’ve given up once, you’re on a slippery slope. And I would -- so I think no government will ever do that.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I expressed the view the other day that it makes no sense, in my view, to tie the Emergencies Act to a definition within the CSIS legislation. I don’t think it works. I don’t think it’s effective. And certainly if there was a decision, you were to come to the conclusion that the definition is insufficient and it should be changed, to try and change that definition within the CSIS Act to allow you to broaden the definition for the Emergencies Act I think would be a mistake. That -- which I think takes me to the next step, which is if you -- if the CSIS Act is not the appropriate place to have, or to draw from a definition of -- that is sufficient for an Emergencies Act, then trying to throw back into the national security community, which is focused on a totally different set of issues and concerns, let’s try to throw back into that community a decision about emergencies in any respect is probably a mistake as well. So I would not see NSIRA as a place to come to a decision on that issue. And I’m not sure it solves the problem, frankly.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
Just a small point, and I disagreed with Professor Wark when he suggested NSICOP the other day, to be a little bit more precise about why I don't think NSICOP would be a good idea. I understand that it is a more non-political body, non-partisan body than some others, but I think there is a problem within NSICOP, and that is it is an attempt for the first time to create a parliamentary body that can review the actions of the service and other parts of the intelligence community. It is a very fragile attempt, and if it fails, as I think there is a better than even chance that it will still fail, there will then be a real difficulty in terms of how Parliament reaches out to review the intelligence community broadly writ. I think to introduce into NSICOP's responsibility, not that we have emergencies every day, but they do happen, and it could happen in the future, could make the non-partisan, it could threaten the non-partisan nature of NSICOP and endanger the experiment, which NSICOP is. So I would urge very strongly that NSICOP not be the body which reviews in any way an emergency because I think it potentially would create a very unfortunate situation in terms of review of the intelligence community by Parliament. Just a view.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I'm not sure that there is anything that one can do to freeze that in the -- or ensure that in the legislation that that never happens, but it seems to me to be relatively unlikely as long as we remain a democracy that a Federal Government that had declared an emergency would then refuse to appear before the bodies that were created to review that mechanism. I am not sure you can -- putting -- I'm not sure legislation solves everything, and I am not sure there is any point in trying to legislate everything. It's a bit like, I suppose, they always say about generals that they're always fighting the last war. In some sense whenever we lawyers pass new legislation we're fighting the last war as well. I'm not sure you want to try and fight all the wars in legislation, it's a never-ending struggle. I think the -- I hope I haven't lost my train of thought here. The other issue that I think is -- no, I've lost my train of thought here. So I'll let you...
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
A thought. It would be hard to say that it does not affect the ability of the Commission to reach a conclusion. Having said that, there are issues of national security; there are Cabinet issues; there are Cabinet documents -- Cabinet issues; there are solicitor/client privilege issues, and I -- that rise beyond -- that are simply issues that you -- the government is unable to make public. And so every -- there are always going to be cases where commissions and/or courts will struggle to deal with issues or have problems in dealing with issues. I guess it then comes back to the question of, for the Commission to decide whether those issues rise to the level that it wishes to make a comment about its inability to conclude on an issue. And that would only be, in my view, if in fact it did, in the Commission’s view, impede their ability to come to conclusion. But I can think of information of a variety of sorts that governments will never turn over or make available to anybody outside government. It’s just simply a reality of the system.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
In some sense, the mere fact that it happens even up to a certain point means that in future, there is a precedent for doing something similar, which is part of, in a sense, the slippery slop argument. You do anything, you do create a precedent for the future. I think ultimately the reality is here, on all these issues, is the Government pays a price if it doesn’t provide some information. If it provides none and the Commission says something, or a Commission says something about failure to provide information, the Government pays a price. So the Government is -- again, this is a political system, it is the government -- the price the government will ultimately pay is a political price, and that’s the way the system works.
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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)
I think the simple answer is yes. I don’t think you can write a piece of legislation that -- I think it’s hard to systematize kind of all of multiple choice. I think you have to -- you pick your mechanisms of accountability, and those are the mechanisms of accountability. Some may work less well in some cases than others, but I don’t think you can do a kind of multiple-choice accountability.