The Foreign Interference Commission
Critical decisions on Standing just announced, or thumbs up and down
Justice Marie-Josee Hogue, appointed to head the Foreign Interference Commission, has recently released a tightly worded set of decisions on applications for standing before the Commission. This work has consumed the Commission for much of November and eaten into its tight time-lines. The Commission’s first report is due by the end of February 2024, and it is committed to hold some public hearings, to involve entities granted “standing,” before that date.
The decision can be found on the Foreign Interference Commission web site at:
The status of a “standing party” is a key component of judicial inquiries. It allows entities to engage in various ways with the Commission’s proceedings, to lend their expertise, air their views, and, in some cases, cross-examine witnesses before the Commission. Standing is part and parcel of the legal baggage that comes with judicial inquiries and is in no way unique to the Foreign Interference Commission. It lends, for better or worse, a quasi-judicial “courtroom” feeling to public inquiries.
Grants of standing depend on two criteria, as articulated by Justice Hogue in her 71-page ruling. One is that a ‘party’ must demonstrate that it has a “substantial and direct interest” in the subject matter of the inquiry. In the case of the foreign interference commission a party has to demonstrate to the judge’s satisfaction that it has been or is substantially affected by foreign interference.
The other part of the test for standing involves the question of expertise and the determination that a party can make a “necessary and appropriate” contribution to the inquiry’s work.
Applications for standing had to thread through these needles and to do so quickly.
An added complication is that there are two distinct phases to the Foreign Interference commission. Phase one is what is called the “factual” inquiry, focused on election interference during the 2019 and 2021 federal elections. Phase One concludes with a report in late February. As I have written before, the phase one proceedings cover substantially the same ground as that reported on by the once-special rapporteur on foreign interference, David Johnston, in May 2023.
Phase two of the Commission’s work is called the “policy phase” and will run from the end of February, 2024, to a final report due in December 2024. To my mind this is the key dimension of the Commission’s work and one where it can break new ground, given the abrupt end of the work of the special rapporteur on foreign interference, owing to David Johnston’s resignation. This more extended phase will canvas the federal government’s capacities for dealing with foreign interference and make recommendations about system improvements.
Parties can be granted standing in one or both phases of the committee’s work. They can also be granted a modified status as an “intervener.” The key distinction between an intervener and a party with full standing is that an intervener does not have a right to cross-examine witnesses in public hearings. An intervener can make oral and written submissions to the Commission and has right of access to copies of all public document exhibits created by the Commission. It’s a lesser capacity, but still important.
The Judge may also deny standing and provide reasons. But Justice Hogue noted that applicants denied standing may still be called by the Commission to testify. They would also be able to take part in a public consultation process planned by the Commission. So all is not lost in terms of engagement.
There is another consideration at play for Justice Hogue, as she makes clear. In adjudicating applications for standing she has to consider the overall impact on the work of the Commission, including issues of proportionality (proportional attention to some aspect of the Commission’s mandate) and “the ability of the Commission to proceed in an expeditious manner.” Too many standing parties might just bog down the Commission’s work, especially in the face of its very demanding time-lines.
Justice Hogue thus faced the difficult task on deciding on just over 50 applications for standing.
Perhaps the most challenging decision was with regard to applications for standing by two opposition political parties—the Conservatives and the NDP (the Bloc did not apply, thankfully…). Before I skip ahead to the outcome it might be worth noting that no political parties had standing before the Public Order Emergency Commission (POEC).
Why the involvement of political parties in a judicial inquiry might become a minefield was well expressed by Commissioner Hogue:
“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.”
The other side of the coin is that political parties have arguably been directly affected by foreign interference and can make a “necessary contribution” to the work of the Commission. Unspoken are the optics of denying political parties standing and the impact this might have on perceptions of impartiality and fairness, not least when the Commission’s terms of reference grant the Government full standing as a party. So, a tough call.
Justice Hogue’s Solomonic judgement on this one was that both the Conservatives and NDP were to be granted the lesser “intervener” status in the factual phase of the inquiry and full standing in the policy phase.
This did not sit well with the Conservatives. The Globe and Mail granted them generous space to air their grievances about the decision.
Sebastian Skamski, director of media relations for Poilievre, went so far as to say that the decision is “deeply concerning and undermines the credibility of the entire process.” He also suggested that the Judge demonstrated a “bias” by singling out the Conservatives with a warning about partisanship.
But if you actually read the decision you will see that Justice Hogue did not single out the CPC. She repeated the same admonition to the NDP and indeed to all parties granted Standing
Do I already see Conservative knives out for a Commission that they were so insistent on creating?
Perhaps there was no good Solomonic judgement available here? It might have been better to not grant standing at all to political parties, rather than have to rely on a “nuclear” option of withdrawing their standing if they demonstrate overt partisanship during the inquiry. (Maybe there is also a reason why I am not a judge)
But we can probably all agree that the last thing one wants is the introduction of House of Commons committee-style wrangling, accusation, and point scoring in a public inquiry.
In this regard it is also worth noting, as the Globe and Mail report did not, that Erin O’Toole, the former leader of the CPC, has been granted standing in both phases of the Inquiry (intervener standing for the factual phase) and that the Commissioner extended an offer to the Conservative Party’s Michael Chong, an acknowledged target of Chinese foreign interference, to apply separately for individual standing, if he so wished. No similar offer was extended to the NDP’s Jenny Kwan, also named as a target of Chinese foreign interference. But then the NDP did not single her out as a key figure in its own application for standing.
If one looks at the overall results of Justice Hogue’s decisions on applications for standing, here are the numbers:
For the factual phase of the Inquiry:
Nine parties granted standing.
This group includes two politicians who have faced media allegations of being complicit in Chinese foreign interference: Federal Liberal MP Han Dong; and Michael Chan, formerly an Ontario provincial Liberal MPP and Cabinet Minister.
Eight parties granted intervener standing.
Included are Erin O’Toole, the former CPC leader and Yuen Paul Woo, a sitting Senator, as well as the Conservative party and NDP.
These numbers may not appear large for the factual phase, but it is also the case that the factual phase of the Inquiry will be of very short duration. The timing of public hearings for the factual phase is not yet known, but they will not begin until January 2024 and must conclude in time for the Commission to prepare its report by the end of February. So even with only 9 entities granted standing, proceeding “expeditiously” during the factual phase will be an issue.
There is more time available to the Commission to conduct its Policy phase, which will presumably begin as soon as the Factual phase is wrapped up and a first report produced at the end of February 2024. From that point until the Commission end date in December, it will be better able to spread its wings, hear from witnesses in public sessions and allow for cross-examination by Parties with standing.
But it is also noticeable just how many parties have been granted standing in the policy phase of the Commission work. It’s a crowded and diverse field. The total number is 18 parties, all with full participation rights. They include the two opposition political parties, Erin O’Toole, Senator Yuen Paul Woo, and a host of civil society actors, including those representing the concerns of diaspora groups that are the subject of foreign interference. An association known as the Pillar Society, consisting of retirees from CSIS and the RCMP, will also have standing. So, too, will the Centre for International Governance Innovation, the only Canadian think tank along the parties. (For the record, while I am a senior fellow at CIGI I was not involved in its application for standing).
The extent and diversity of the entities granted standing for the policy phase of the Inquiry will pose challenges for the Commission, even if it has more available time to hold public hearings during this phase of its work (scheduled for the Fall of 2024) than in its abbreviated factual phase.
By contrast the Public Order Emergency Commission (POEC) granted standing to 23 parties for its factual inquiry but devoted 31 (long) days to public hearings. Whether the Foreign Interference Commission will be able to conduct a similar run of 6 weeks of public hearings during its policy phase (average per day of 9 hours and 14 minutes!) remains to be seen. It will be a difficult target to match and Parties with standing may find themselves under significant time constraints. (How will the political parties like that, I wonder?)
It is also unknown whether the Foreign Interference Commission will attempt to generate its own set of expert roundtable panels, to which the POEC devoted one week of its time.
(For statistics on the POEC, “POEC by the numbers,” see:
https://publicorderemergencycommission.ca/news/public-order-emergency-commission-releases-report/
With applications on standing now decided, the Commission can turn its attention to two pressing issues: standing up its research council and commissioning research papers; and preparing for public hearings early in the New Year. Behind the scenes there will be intense work underway by the legal team to examine records made available to it for the factual phase. Ultimately, the legal team for POEC ballooned to 23 Commission counsel. Current legal staffing for the Foreign Interference Commission stands at 12, with one senior Policy Adviser, also a lawyer (Paul Cavaluzzo).
I expect the Foreign Interference Commission will submerge in the news for a bit, even if it is unlikely to enjoy much holiday season time off. But wait for its first public hearings in the New Year. That will be its initial test, especially in terms of how it handles the mandated discussion on sensitive intelligence and its role in public inquiries.
For the record, this is how its first public hearings are framed in the Commission’s terms of reference:
“conduct public hearings at the outset of the Commissioner’s mandate to identify the challenges, limitations and potential adverse impacts associated with the disclosure of classified national security information and intelligence to the public, for the purposes of fostering transparency and enhancing public awareness and understanding, during which hearings the Commissioner should seek to hear from a range of stakeholders, including senior federal public service officials from the legal and national security and intelligence community, academic and legal experts and other stakeholders, as deemed appropriate by the Commissioner.”
(The Commission’s term of reference can be found here:
https://orders-in-council.canada.ca/attachment.php?attach=44169&lang=en
That should be, in the immortal words of US TV impresario Ed Sullivan: a ‘really big show’ (pronounced ‘shew’ if you are of a generation or two who missed him).
It will be contested ground, not least given a (limited) grant of standing allowed by the Commissioner to a media coalition with an interest in transparency and public disclosure. That coalition consists of the CBC, the Toronto Star, CTV, Global News and the French channel, TVA. It is notable that the recipient of many leaks of classified records on foreign interference, the Globe and Mail, is not part of the coalition. Not sure what to make of that?
Whatever dynamics emerge in the public hearings on sensitive intelligence and public disclosure, the time has come for Canadians to understand the shape and significance of secrets, even if it takes a judicial inquiry to get us there. I look forward to January, whatever the weather.
Giving full standing to the govt (Liberals) but not the CPC and NDP, and 2 Liberals (Federal Liberal MP Han Dong; and Michael Chan, formerly an Ontario provincial Liberal MPP and Cabinet Minister. ) will lead to allegations of bias.
Very helpful analysis.