The news that the Foreign Interference Commission had decided to reverse course and grant full standing to the Conservative Party of Canada (CPC) in its hearings was leaked in advance to the Globe and Mail. [1] One more leak, but this one a little more easy to trace than pesky leaks of highly classified CSIS records. Hello, Conservative Party of Canada.
The leak came hard on the heels of a letter sent on March 11 by Commission counsel to the CPC, the NDP (which had not, to the best of my knowledge, contested denial of full standing), the Bloc (which had never even bothered to submit an application for standing at the Inquiry), and, for good measure Erin O’Toole, the former CPC leader, who was prominent in advancing a theory that the CPC had lost seats in the 2021 federal election because of Chinese foreign interference.
The course reversal is significant because it suggests that the Commission fears itself to be on shaky ground, following denunciations by the Conservative Party and the withdrawal of two diaspora advocacy groups, and is looking to restore some perceived lost legitimacy. But it may pay a heavy price.
The new grant of full standing means that the opposition parties will now have the right to cross-examine all witnesses. They will, of course, be especially anxious to cross-examine government witnesses, from Ministers on down to senior officials in the security and intelligence community.
Does this sound like a Parliamentary committee with open season for political partisanship to you? It does to me.
Traditionally, “examination” of witnesses at a public inquiry is led by Commission lawyers. They play an important role in testing the evidence presented. In an inquiry, participants granted standing can follow after the “lead” examination by Commission counsel. The lead principle is more than symbolic. It is designed to demonstrate that Commission counsel, with dedicated resources, full attention to the issues at hand, and access to classified records unavailable to any other participant, will play the principle role in establishing the fact base for the Inquiry.
Now the Commission has set the stage for a contest between the probing of witnesses by Commission counsel and the probing by political parties. The Commissioner believes she will be able to control this contest and maintain the quasi-judicial decorum of a public inquiry, but that may be a forlorn hope.
Back in December, when Commissioner Hogue issued her original decision on applications for standing before the inquiry, she denied full standing and cross-examination rights to the Conservatives and NDP. [2]
The reason for this decision was clearly laid out, and is worth repeating:
“Generally, it is undesirable to use public inquiries as a way to advance political parties’ positions because it is imperative that the public view a public inquiry as independent and non-partisan. As has been stated by other commissioners, a public inquiry should avoid public perception of politicization or partisanship whenever possible.”
She went on to say that any grant of standing to a political party “should be done only after careful consideration and with the appropriate safeguards to ensure the Inquiry does not become a platform for partisan talking points, grandstanding, or scorekeeping.”
What caused the Commissioner to change her mind between December 4 and March 11? Who knows? Only the vaguest rationale was given, a reference to “the Commission’s investigation to date.” The Commissioner did claim that her reversal was “not done in response to an application or request from one of the Interveners.” [3] Not done does not explain why done.
The Commissioner’s unexplained change of course is all the more curious because she had already granted full standing in the Inquiry, with cross-examination rights, to Michael Chong from the Conservative Party and Jenny Kwan from the NDP, both of whom surely would have represented their party’s position on issues before the Inquiry.
Whether Commissioner Hogue’s decision has propped up the Inquiry, or fatally undermined it, will be on display during the next round of public hearings planned for March 27 to April 10.
The staid environs of Library and Archives Canada in Ottawa, where the Inquiry holds its public hearings, will be buzzing to a heightened political tune during those two weeks. It will surely add to the drama, but maybe not to the fact-finding. What will be tested, possibly to breaking point, is the overall reputation of the Commission’s work.
Commissioner Hogue’s own premonition may come true.
[1] Steven Chase and Robert Fife, Globe and Mail, “Foreign-Interference Inquiry to grant opposition parties power to cross-examine witnesses,” March 12, 2024, https://www.theglobeandmail.com/politics/article-foreign-interference-inquiry-to-grant-opposition-parties-power-to/#:~:text=exclusive-,Foreign%2Dinterference%20inquiry%20to%20grant%20opposition,power%20to%20cross%2Dexamine%20witnesses&text=The%20head%20of%20the%20public,by%20countries%20such%20as%20China.
[2] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, “Decision on Applications for Standing,” December 4, 2023, https://foreigninterferencecommission.ca/fileadmin/foreign_interference_commission/Documents/Procedural_Documents/Decisions/decision_on_standing_dec_04_2024.pdf
[3] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, “Decision on Intervener Participation in Stage 1 Hearings,” March 15, 2024, https://foreigninterferencecommission.ca/fileadmin/foreign_interference_commission/Documents/Procedural_Documents/Decisions/Decision_on_Intervener_Participation_in_Stage_1_Hearings_-_2024-03-15.pdf
In my opinion, the inquiry has been structured for political purposes from the very beginning in order to kick the can down the road, and provide cover for inaction.
Ironically acceding to the parliamentary demands, but rendering the result operationally ineffective.
Indeed, in my cynical moments, I think it was intentionally constrained with prescriptive time limits, that will limit its practical utility.
And unfortunately, the judge has now compounded the problem, by multiplying the number of parties who will have only polemic points to make.
In the result, we are getting farther and farther away from an assessment of: (1) the extent and impact of foreign interference; (2) whether existing institutions and legal rules are adequate to deal with the problem; and if not, (3) whether additional prophylactic measures (statutory or organizational), need to be developed to make things better.
Including, let's not forget, the peccadillos of political parties themselves, whose grubbing for votes in elections or leadership campaigns (instant members) that, make them ripe for manipulation. As happened with the Labour Party in the Corbyn era. And of course Ministers of the Crown who do not take their responsibilities seriously....like read their briefings.
It also seems to me that the EXISTING institutional checks and balances may actually be helpful here; and at least need to be properly applied, so as to test their efficacy -- as was at least partially illuminated by the recent probe of what happened at the Winnipeg Lab.
Instead, it appears to me that that we will have a truncated telegenic exercise (no doubt generating lots of spicy video clips, maybe even on Tik-Tok!), which, will help in fundraising, but in the result, will resemble the performance of parliamentary committees or in the House of Commons itself.
In other words, it will be a thespian exercise rather than a practical and productive one.
The govt, the Liberal party, has had full standing.
It's wise to extend it to other political parties.