The 1946 Canadian Royal Commission on Espionage (Gouzenko) and the 1954-55 Australian Royal Commission on Espionage (Petrov) : Judicial Independence or Complicity?

Abstract

The unexpected defection of Igor Gouzenko in 1945 and the planned defection of Vladimir Petrov in 1954 led to similar Royal Commissions on Espionage in Canada and Australia respectively. Cold War security operations that followed extended well beyond international espionage to perceived domestic threats and security over-reach ‘beyond the law’ that persisted in Canada and Australia into the 1970’s. This article explores the formative influence of the Gouzenko and Petrov affairs with a focus on the legal dimensions and the issue of judicial independence in particular. The Supreme Court of Canada Justices who presided over the closed secret hearings of the 1946 Canadian Commission demonstrated outright complicity with government security measures as they assisted police investigations and recommended prosecutorial responses with little regard for constitutional rule of law and due process conventions. While Royal Commission hearings are inherently inquisitorial, unlike Canada’s Espionage Commission, witnesses at the 1954–55 Australian Commission were permitted legal representation and attention was paid to procedural fairness during largely open public hearings. Moreover, Chief Justice Owen Dixon refused the government’s request to head it, upholding a convention that judges of Australia’s highest court not preside over Royal Commissions. He nonetheless engaged in informal extrajudicial government advising as the Commission was formed and proceeded, and his close involvement with the government’s security response also raises questions about separation of powers and the integrity of judicial independence during perceived security crises. The later legislative tightening of security mandates and more robust oversight of security operations by Parliament and the Courts, the refinement of formal protections of judicial independence and further informal separation between judicial and political cultures and leading personnel, all represent an advance, but the possible compromise of judicial independence under the pressure of government security priorities remains a concern.