Governments produce and receive all kinds of information on a constant basis. Reams and reams and reams of it. So much that it is all but impossible for anyone to keep track of it, let alone understand what it all means.
At the same time, governments, or at least those in the West, have an obligation to share much of that information with the publics which elected them. This is what happens in a democracy after all. In my country, Canada, there is the Access to Information Act, the purpose of which is to “enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.”
As anyone who has filed an ‘ATIP’ request knows though, what the law says and what the government actually does are two very different things. Requests can take a long time to fulfill (in fairness, I imagine that the government does get gazillions of such files every year) and when they are sent back there can be holes and gaps, sometimes large ones, in what is actually provided.
I worked in intelligence for 32 years in Canada and I thus have a solid understanding of this type of information and why it cannot be disclosed willy-nilly to the public. Some information may have been given to Canada by an ally which expects it to protect it (if the state decides otherwise it can kiss future information sharing goodbye). Sometimes it is derived from a ‘sensitive source’ (i.e. intelligence). Sometimes ongoing court cases may put barriers in the way.
So what do we make of a case of the latter (i.e. a court case) where the plaintiff has asked for information it once had access to but the government now says it can’t?
This is what appears to be unfolding in an ongoing debate on who should provide the Canadian Navy with new ships, the so-called Canadian Surface Combatant project, won by a US-British consortium of Lockheed Martin and BAE. Spain’s Navantia, that nation’s state-owned shipbuilding company which competed but lost, is being blocked not only from examining records related to the project, but also from obtaining information about the type of documents the federal government has in its possession.
The Canadian government is invoking Section 38 of the Canada Evidence Act to refuse the disclosure. This section pertains to “information that the participant believes is sensitive information or potentially injurious information” and could negatively affect national security. OK, that is understandable.
But here is where it gets interesting.
That section is usually invoked when it comes to national security investigations like counterterrorism or counterespionage. I am very familiar with the former as I worked on several so-called National Security Certificates – efforts by the government to remove non-citizens deemed to pose a threat to Canada – when I worked at CSIS (Canadian Security Intelligence Service). So, I definitely get the need to protect sensitive intelligence in this regard.
Here, however, Navantia is claiming that the bidding process was ‘rigged’ and it is seeking documentation to prove its allegations. The government countered with a Section 38 injunction. In the words of a Justice Department lawyer: “the information being requested through the court was sensitive and potentially injurious.” Furthermore, this is believed to be the first time this tool has been used in a case such as this.
I know next to nothing about naval affairs or contracts: I couldn’t tell a canoe from a frigate. But what I do know is that this case does not qualify as either a counterterrorism or counterespionage one. Spain is an ally (in NATO for example) and a friend (we’ll set the 1995 Estai fish near-war aside for the moment!). What could possibly be in the documents requested that Spain cannot now see?
What worries me about all this is the invocation of Section 38. It has valid uses as I already noted and there may very well be good reasons here to block disclosure (though I cannot for the life of me imagine what they could be). But when a state throws up secrecy curtains unnecessarily it undermines the whole process. The public already begrudgingly accepts when it cannot be told things. If that same public smells something not right it becomes cynical and dismissive. It accuses the government of not honouring its own laws and rules.
To cite Desi Arnaz, the Trudeau government ‘has some ‘splaining to do’. Is it possible, as some allege, that Section 38 is being used to cover up shortcomings in a project which has faced significant delays (the whole project has been years in the making). Is this about to become a money pit for Canadian taxpayers (the price tag has climbed significantly from an original $14-billion estimate to around $70 billion)?
We all recognise there are legitimate reasons for secrecy. In this case there may be something I am missing. Nevertheless there is a need for a lot more transparency in this instance. Something is starting to smell bad: the government must stop the stench from getting worse.