THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Monday, June 10, 2024
The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 2 p.m. [ET] to consider the subject matter of Bill C-70, An Act respecting countering foreign interference.
Senator Jean-Guy Dagenais (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, welcome.
Before we begin, I would like to ask all senators and other in-person participants to consult the cards on the table for guidelines to prevent audit feedback incidents. Please take note of the following preventive measures in place to protect the health and safety of all participants, including the interpreters. If possible, ensure that you are seated in a manner that increases the distance between microphones. Only use an approved black earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
[Translation]
Welcome to this meeting of the Standing Senate Committee on National Security, Defence and Veterans Affairs. I am Jean-Guy Dagenais, a senator from Quebec and deputy chair of this committee.
Our chair, Senator Dean, is the sponsor of Bill C-70, which we will be examining this week. Therefore, he has asked me to preside over these proceedings.
[English]
I am joined today by my fellow committee members, whom I will now ask to introduce themselves.
Senator Richards: Hello. I’m Senator Richards from New Brunswick.
Senator Housakos: Senator Leo Housakos, Quebec.
[Translation]
Senator Carignan: Good afternoon. Claude Carignan from Quebec.
[English]
Senator R. Patterson: Senator Rebecca Patterson, Ontario.
Senator M. Deacon: Welcome. Marty Deacon, Ontario.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator Anderson: Margaret Dawn Anderson, Northwest Territories.
Senator Cardozo: Andrew Cardozo, Ontario.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier division, in Quebec.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Boehm: Peter Boehm, Ontario.
Senator Dean: Tony Dean, representing Ontario.
Senator Yussuff: Hassan Yussuff, Ontario.
Senator Kutcher: Stan Kutcher, Nova Scotia.
[Translation]
The Deputy Chair: Dear colleagues, as I have already mentioned, today we are beginning our examination of the content of Bill C-70, An Act respecting countering foreign interference.
To begin this work, we are welcoming Michael Kempa, Professor, Department of Criminology, University of Ottawa, and Wesley Wark, Senior Fellow, Centre for International Governance Innovation.
Welcome, gentlemen. We are ready to hear your opening remarks and we will start with Mr. Kempa. Mr. Kempa, the floor is yours.
[English]
Michael Kempa, Professor, Criminology Department, University of Ottawa, as an individual: Thank you very much for inviting me here today.
I would like to begin by saying that, overall, the new legislation is a very welcome start to reforming the constellation of laws that govern Canadian national security. They are very significant adjustments. I wouldn’t call them revolutionary or complete. One of the most important components of the legislation is, for example, a requirement for a review of the Canadian Security Intelligence Service Act, or CSIS Act, every five years, which provides an opportunity to return to some of the larger questions that are not addressed in this particular bill, which are probably best left for a review at five years.
Some of the comments that I’ll offer — I went through the bill in terms of whether the steps taken are adequate for the moment and whether there is anything in here that might tie the hands of the deeper reviews that might occur in five years’ time. The short answer is “no,” there’s nothing in the current bill that poses an obstacle to what might need to be done in five years’ time.
With respect to the three main prongs — reforms to the CSIS Act, amendments to other areas of national security legislation and the creation of a foreign influence transparency agency — I’ll go briefly in that order. The CSIS Act reforms are very helpful to enabling that agency, first of all, to pursue foreign intelligence that’s virtually stored beyond Canada’s borders, which is excellent. There is a wider ability to secure information from third parties, notably telecommunications companies, to streamline procedures — very helpful. Of course, the essential component, particularly with items in the news to do with foreign interference, is enhancing the ability of the, Canadian Security Intelligence Service, or CSIS, to share intelligence information essentially with clients beyond the federal government. That is absolutely essential. For example, if we’re imagining a scenario where there were concerns about impropriety, at least on the funding side, let’s say, of political nominations, it would give CSIS the ability to interact more easily with Elections Canada on that particular issue that is under the ambit of Elections Canada. That is just an example.
One thing I would point out is that, although these capacities for sharing information are easier to legislate, there will be a learning curve, once implemented, not only for CSIS continuing to adjust its culture to communicate more broadly beyond government, but also with the security partners or agencies looking to share information with or receive information from CSIS.
I would just point out that, not at the level of legislation but perhaps via regulations, there might be a requirement for things like universities, other government entities like Elections Canada or even private entities to have to provide some form of partnership plan for receiving information from CSIS so that their treatment of it would be responsible, from CSIS’s perspective.
One thing I would flag is that I would encourage you to read Bill C-70 and its reforms to CSIS. As the legislation in the 1980s was also read in a troika — the original CSIS Act, the RCMP Act of the middle of the 1980s and the Emergencies Act were written with references to one another. Similarly, what you do with Bill C-70 now will have consequences for legislation that will come forward in terms of reforms to the RCMP Act and, potentially, the Emergencies Act in time. There’s nothing in the bill right now that will prevent that broader consideration in years to come. They might be things to do, for example, with the famous section 2 standards as to when CSIS gets involved and when it’s justified to invoke the Emergencies Act. These things haven’t been touched in Bill C-70 but are left open for review in five years, which will probably be essential.
With the broader national security legislation, there are significant steps forward to create specific offences around foreign interference, and updates to do with securing essential infrastructure are very welcome. I would flag that there have been some concerns raised around civil liberties on the issue of whether that particular law of protecting essential infrastructure could frustrate or get in the way of domestic protests that might just be inconvenient, but I would say that anything underlining the language that it must be driven with significant foreign involvement or interference being the essential caveat would protect that type of domestic protest.
Finally, with respect to the creation of a foreign influence transparency agency, such things are often very helpful, particularly for raising public awareness around the distinctions between proper and improper influence in Canadian processes. I would just highlight — and I’m sure my colleague will have more sophisticated thoughts on the matter — a country-agnostic approach where a single agency would be expected, at least at the level of legislation, to devote equal attention to all of the agencies registered from around the world might be unfeasible.
We might not —
[Technical difficulties]
Reforms to the CSIS Act were originally drafted in the mid-1980s with reference to both the RCMP Act and the Emergencies Act. Reading this bill with the same eye to reforms that will be coming down the pipeline for the RCMP Act and the Emergencies Act would be a good idea. There is nothing in the current bill that would prevent that reconsideration at the five‑year mark.
With respect to the new national security legislation, creating new criminal offences around foreign interference is very urgent and welcome, as is the suggestion of legislation for the protection of essential infrastructure. Although the government is very welcome to legislate these matters, we may not have the capacity to enforce these new laws. The RCMP is well known for lacking the capacity to pursue its federal policing mandate. There is no equivalent to the Federal Bureau of Investigation, or FBI, in the North. It would be necessary to follow up with ensuring that the RCMP has the capacity to do this important business.
The second issue of essential infrastructure is the concerns from civil liberties discourses about this bill potentially preventing or stifling domestic protest, which made it inconvenient to use essential infrastructure. Underlining the language around the necessity for foreign involvement or interference driving that activity would safeguard domestic protest.
Finally, with respect to the foreign influence transparency agency, it is very welcome. It has the ability to raise public awareness. I feel — I’m sure my senior colleague feels the same way as I do from things he has written — that a country-agnostic approach where it is the expectation that one agency would devote equal attention to all of the countries of the world would probably be unfeasible. I understand there would be a reluctance to want to create a permanent blacklist of nations to which we would devote more attention, but allowing the head of the new agency and their minister to develop lists for focus that would stand for a period of time could probably be addressed through regulations and may be a welcome idea.
The Deputy Chair: Thank you, Mr. Kempa.
Wesley Wark, Senior Fellow, Centre for International Governance Innovation, as an individual: Thank you, senators. It’s nice to be in the chamber of sober second thought, even if I am a senior colleague.
I want to begin with three quick observations. The first is that Bill C-70, the bill under consideration, takes a piecemeal approach to national security legislation. It’s not a comprehensive overhaul. As Mr. Kempa has indicated, the comprehensive overhaul was much needed. I have less patience than my colleague waiting five years for that, but that’s the situation we’re in. Even with the most extensive amendments proposed in Bill C-70 to the CSIS Act, it is not a comprehensive overhaul of the CSIS Act in itself.
Second, I think that in an ideal world it’s a mistake to rush consideration of this legislation, given its complexity and importance.
The third point that the public discourse has been narrowly focused on one aspect of foreign interference since the fall of 2022, and that aspect is one posed by foreign political interference in our elections and related democratic processes. There’s a much broader constellation, as I’m sure you’re aware, of threats posed by hostile state actors. At the head of that list would be foreign espionage directed at both the state and the private senator. CSIS Director, David Vigneault, once described foreign espionage plus foreign political interference as a one‑two punch to Canadian national security.
Looking more broadly at the threat landscape, we would also have to consider threats to economic security, cyber threats, critical infrastructure threats and research security threats. Bill C-70 has some relevance to this broader array of threats. I think it should be considered in that light and not strictly as legislation regarding foreign interference in a traditional political sense.
I will touch on a few key parts of the bill, starting with Part 1, the CSIS Act amendments. Changes to section 19 on authorized disclosure have long been called for by the service. The challenge will be how to operationalize this new power to allow for greater information sharing with entities outside the federal government. Ministerial direction for this exercise of power should be published, as it was with regard to ministerial direction to CSIS for disclosures to parliamentarians.
The requirement for future parliamentary reviews of the CSIS Act on a five-year cycle is to be commended. The reference to “as soon as feasible” in that part of legislation should be tightened to avoid delays. We have seen some critical delays, including to the parliamentary review of Bill C-20 and Bill C-59. It may be worth considering extending the statutory review to potentially include all aspects of national security legislation and not just the CSIS Act.
Just quickly say a word about the Security of Information Act, or SOIA. It was passed in 2001 as part of the original anti‑terrorism legislation. This is the second lap for me on SOIA, as I testified in 2001 about this legislation. It received little parliamentary or public scrutiny at the time and has not been updated since.
The key changes to be considered in this bill are to section 20(1), an intimidation offence, and I think, more importantly, the indictable offence provisions of section 20.2, section 20.3 and section 20.4. These considerably modernize the legal approach to foreign interference offences, including political interference and transnational repression and should make criminal sanctions more readily available if — and it’s a big if, as Professor Kempa suggested — the RCMP has the necessary capacity to lay charges around SOIA.
If I had more time, I would have said a little bit about the sabotage offences that are included in the bill that are not directly related to foreign interference but I think need amending. I would be happy to go back to that.
Finally, Part 4, the proposed Foreign Influence Transparency and Accountability Act, or FITAA. The Foreign Influence Transparency and Accountability Act is meant to operate so that a person who engages with a foreign state entity to conduct a political influence operation that may involve targeting public officeholders must register. It involves three interlocking definitional pieces. One is the definition of an arrangement with a foreign entity; the second is the definition of political or governmental processes at play; the third is a public office holder. The latter two pieces of this troika allow for the appropriate targeting of foreign political interference.
The definition of an “arrangement,” however, is overly broad and I believe it threatens Charter rights. In particular, section 2(b), which specifies an arrangement can involve:
(b) communicating or disseminating or causing to be communicated or disseminated by any means, including social media, information that is related to the political or governmental process;
I think that is an overbreadth. I note that the government has not yet produced, to the best of my knowledge, the required Charter compliance statement for Bill C-70.
My second concern with the legislation is that it fails to take advantage of the best practices from our allies. It does not escape the overbreadth of the Australian system, which is currently under review by their parliamentary committee, and it fails to adopt, to my puzzlement, the most recent iteration of a foreign influence being introduced by the U.K., which contains a two-tier system and allows for the minister, through regulation, to specify hostile state actors of most concern.
While the Governor-in-Council has regulatory powers in FITAA, none refer to regulating who or what constitutes a foreign entity. In other words, FITAA, from the moment it produced its consultation papers, the desire of public safety from the outset was that this theme would be country agnostic, which I think is a big mistake.
In its present form, FITAA threatens to become an expensive piece of bureaucratic machinery. Never forget, there’s a zero‑sum game here. If more you spend on FITAA, the less you have to spend on the RCMP, CSIS and other security agencies, and it is mostly aimed, let’s be honest, at catching good guys. I don’t think it will match public expectations or serve the purposes of the act as defined. Thank you.
[Translation]
The Deputy Chair: Thank you very much, Mr. Wark.
We will now proceed to questions. As always, four minutes will be allotted for each question, including the answer.
I would ask you to keep your questions succinct to allow for as many interventions as possible.
[English]
Senator Kutcher: Thank you very much for being here, gentlemen. My question has two parts to it, and it’s to both of you.
Recently, Mr. Wark wrote, “This is piecemeal legal reform and its overall conception lacks ambition.” Do either of you have one or two top-of-mind suggestions on how the Senate might approach this and potentially approve this bill?
The second part of the question is that you both have made observations — as has the National Security and Intelligence Committee of Parliamentarians, or NSICOP — that the RCMP has a substantive lack of resources to address this. Do you think that without investment in RCMP resources, we will be able to fulfill the direction in which this bill is moving?
Mr. Wark: Thank you, senator, for the question. On the last part of the question, I think it’s very clear that the RCMP does not have the kinds of resources needed to pursue complex foreign interference investigations. It has had some success in terms of pursuing foreign espionage investigations in recent years, but there have been no charges laid — as I suspect you all know — with regard to foreign political interference.
The RCMP faces a serious challenge, which I’m sure every senator around the table is aware of, which is that it is, essentially, a contract policing force that is only able to devote about 20% of its resources to national policing or national security issues, which simply — in these days — of complexity is not enough.
On the first question, I welcome the invitation to suggest a broader scope. I’m not sure that you would make anybody at the Department of Justice or the Department of Public Safety happy about that, but if I were going to give some suggestions, I would say that you ought to open up the Canadian Security Intelligence Service Act properly, look at section 2, which needs rewriting, and look at section 12, which is no longer compatible with some of the changes, and put section 16 in the bin.
That would be a starter. I think it would also be useful to open up the Security of Information Act, or SOIA, which I think few Canadians know anything about. It’s a principal piece of national security enforcement legislation, and there are elements of SOIA that are not touched in this set of proposed elements including the definition of harms in section 3. I’ll leave it there.
Mr. Kempa: To that, I would simply add on the question of the RCMP. It is not only a question of resources, but also innate capacities, given their long-running mandate. As we all have been very aware, the format of one style of recruitment and training that produces officers that ultimately go on to careers in very different areas of policing — including federal policing issues — has not been a success.
There was a very interesting pilot project to directly recruit RCMP members into federal policing in Ottawa rather than pass through the depot in Regina. There was — I understand — quite a significant error in that the federation or union was not fully brought up to speed on this particular approach, and, therefore, it’s on ice at the moment. That’s a fundamental issue. Enforcement of the laws here not only depends on resources, but on officers who have the trained capacity to do investigations and enforcement in those very different areas of policing.
Again, on the big issues that if there were an open limit for what the Senate could come back to, I would underline the section 2 standards for which CSIS gets involved in issues, which also drive the Emergencies Act and its basis for being invoked are terribly out of date and don’t reflect temporary threats to Canada’s security.
Senator Boehm: I’d like to thank our witnesses for their expertise and for being here today. I have a question for each of you, and I’ll put them both out there so we can maximize the time.
Professor Kempa, in a recent article — and you touched on this in your remarks today — you expressed some concerns about the downplaying of treason among MPs and senators in the context of foreign interference. Recognizing that there is a question whether treason is a binary thing — Is there a capital “T” treason or small “T” treason? We don’t know. How would you suggest that this bill deal with that? If it doesn’t, what could it have added to it? I’ll ask the question for Dr. Wark as well so that I can get them off my chest.
Dr. Wark, in your recent article in the Toronto Star, you emphasize the critical need for prosecuting foreign interference to deter bad actors and educate the public. You’ve touched on public education in your remarks today, and you also mentioned other jurisdictions that share our Westminster system of government — notably Australia and the U.K. Could you suggest if there is a way to get the message out that’s better or that we can learn from other jurisdictions, rather than our usual manner by press release or press conference?
Mr. Kempa: On the use of the word treason itself, obviously, as we know very well, treason requires handing over either military or security secrets that undermine the safety and security of Canada. That’s not what is described in most or all of the cases in the NSICOP report entitled Special Report on Foreign Interference in Canada’s Democratic Processes and Institutions, for example, where information was alleged to have been given to foreign third parties.
I think the use of that term in the title was a device of the editor to communicate that there are no offences in the Criminal Code to capture what is described, for example, in the NSICOP report.
In that sense, this bill is an improvement in that it actually creates Criminal Code offences along the lines of the behaviours that are alleged or described in the NSICOP report — exchanging information for the return of either political muscle, which is to say support on the ground through promised diaspora communities and so forth, or funds, which isn’t capital “T” treason as defined in our Criminal Code. So, that would be extremely helpful.
I would say that one of the principal windows of the threat of foreign interference is the nomination process, being the main conclusion so far of the interim report of the Public Inquiry into Foreign Interference, or PIFI, inquiry. Given that nominations are conducted under private party rules other than the financing of nominations, this bill does not touch the vulnerability of nominations, apart from enabling CSIS to communicate, for example, with Elections Canada on matters of finance. That is an improvement. But the matter of nominations is not part of this bill.
Senator Boehm: Thank you. Dr. Wark?
Mr. Wark: Thank you, Senator Boehm, for the question. I’ll briefly refer to your first one, which is that in the Criminal Code we have two definitions of treason, as you probably know. There’s high treason, which has a distinctive musty feel and still refers to Her Majesty and assassination attempts against Her Majesty. More importantly, there is a separate Criminal Code definition of treason, which offence can include communicating information to a foreign adversary in peacetime. That would be covered. This is why I use the word “treason” in comments I’ve made after the NSICOP revelations.
In terms of your question about how to get a message out, I think there are some strategic ways that are very important. One of them has been recently promised by the government, which is to produce a national security strategy. It came forward as a promise in the defence policy update. I’m not sure at what stage that promise is at, but it’s 20 years since we last had a national security strategy. Without a national security strategy, I think that can be a principal instrument to help better inform Canadians and hold governments to account. This is how we understand the threats, this is how we’re responding to them and this is how we intend to respond in the future. It’s a very important instrument that’s been allowed to languish.
In reference to the NSICOP report, one of the recommendations it makes is to ensure that the National Security Council — another innovation, a cabinet committee chaired by the Prime Minister that is meant to deal with national security issues — is more visible, transparent and accountable, and tell Canadians what it’s doing. My own communication with the Privy Council Office on that matter suggests to me that the Privy Council Office has no intention of doing that, which I think is a mistake.
Senator Boehm: Thank you very much.
Senator Cardozo: Thank you, professors, for being here.
Professor Kempa, I’ll ask you the first question in terms of the foreign interference registry. I wonder if we’re assuming it can do more than it can in that bad actors will probably not register. I understand that in Australia, for example, there are many people dealing with trade who are registering because they’re trying to influence the government. However, someone who wants to carry out an assassination or intimidate diaspora communities will not register and say that’s what they intend to do. Have we put too much stock in the idea of having this registry?
For either of you, I’d like your thoughts on whether this bill covers interference from the far right, which in the U.S. is increasingly being seen as a major threat to national security. I’m not sure we’re quite thinking that way yet. However, if you look at far-right groups, militia groups in the U.S. and the spilling over of their ethos into Canada, does this bill deal with that kind of foreign interference? First on the registry, please, Professor Kempa.
Mr. Kempa: Obviously, no. An oversight body of registering those attempting to influence the Canadian political process in an overt fashion will not capture those who have poor intentions or are acting surreptitiously. A map of legitimate entities that are registered, a map of that network, can provide CSIS and law enforcement with a starting point for interrogating the underlying darker networks of actors that seek to influence in a surreptitious fashion. Often, parties may be known to one another. Those on the registered list can point law enforcement investigation in the right direction for those darker networks.
Senator Cardozo: Does the failure to register become a problem for somebody who is caught engaging in nefarious activities?
Mr. Kempa: Yes. That would bring them under the legislation dealing with foreign interference. Again, if they’re foreign entities, to try to bring a form of Canadian prosecution would be difficult. However, identifying those influencing outside of the network could lead to things like being barred from influence for a period of time, and so on.
Senator Cardozo: Professor Wark, your thoughts.
Mr. Wark: Thank you, senator. Are we putting too much stock in the efficacy of a foreign influence transparency and accountability act? I think so, for sure. We’re putting too much stock in it, I think, because of public expectations about how it will work is probably hugely exaggerated and it hasn’t been explained well to the public at this stage. It may have a certain deterrence effect.
To give you an example of what has gone on in terms of allied practices, if we look at the Australian system which has been in place since 2018, in the most recent accounting of the general distribution of entities that registered under that scheme, over 50% of the registrants came from entities — that is, individuals, corporations or governments — that are close allies of Australia. South Korea, Japan and the United States are one, two and three in terms of registerable activities. This is why I say that we’ve not taken advantage of that experience from Australia because I don’t think that’s how we want a registry to operate. That’s why it cannot afford to be country agnostic, despite the wishes of public safety in this regard.
In terms of capturing far-right actors, again, there’s a three‑part mechanism involved in the act, and it partly depends on what you mean by “far right.” The intention is to try and capture some activities on the part of authoritarian governments that are our principal concerns, I think, in this foreign interference space, namely, the Chinas, the Russias and the Irans and, on the margins of being an authoritarian government, India.
Senator Patterson: Mr. Wark, this is directed toward you. I was interested in your comments on the section concerning sabotage. You said, “Those offences need amending.” How does the bill currently address it, what areas are of particular focus in terms of amending and what are the recommendations?
Mr. Wark: It’s a bit of a technical issue. I’m putting on my amateur legal hat, but if you look at the sabotage provisions in Division 2, Part 2 of Bill C-70, what you see that I think is concerning is that there are two different definitions of what is called “saving provisions”; that is, people who engage in what might be otherwise lawful advocacy protests or dissent are saved from prosecution under this act. In one part of the bill, you’re saved from prosecution even if your activities might cause a serious risk to the health or safety of the public or any segment of the public. That’s clause 52.1(1)(c). In another part of the legislation, proposed section 5, you would not be saved if you cause serious risk. I think it’s probably one of those drafting errors, but nevertheless important, that would deserve a look at.
The other thing is that in the consultations that were held, an explanation was provided by government officials about why they were using the words “essential infrastructure.” It was a bit of a convoluted explanation. Basically, they were saying they’re using essential infrastructure because they wanted to make a fresh start. What they’re really referring to is the government has failed so far to produce a promised update of a 2009 strategy on critical infrastructure. We have a 2009 definition of “critical infrastructure,” but we don’t have a 2024 definition yet. I think the bill needs to wait for that definition. Thank you.
Senator Patterson: Thank you.
Senator M. Deacon: Thank you for being here and returning today. I’m interested in your conversations about allies and rushing. Those certainly dominate.
First, I want to ask Professor Wark a question. You’ve questioned, publicly, the usefulness of the distinction between “security intelligence” and “foreign intelligence” in section 16 of the Canadian Security Intelligence Service Act, suggesting it’s still artificial. You touched on this, but Bill C-70 leaves this untouched. Could you elaborate quickly on why this distinction exists in the first place and why you will like to see it changed in this legislation? You have a huge smile right now.
Mr. Wark: Yes. I was going to say, “Bless you.” Thank you for that question. It’s been long on my mind. To find out why section 6 exists, we have to go back to 1984 and the circumstances in which CSIS was created, and the view in 1984 — coming out of the McDonald commission and of special consideration, including a special Senate committee chaired at the time by senator Michael Pitfield — that CSIS needed to be a domestic security intelligence organization. Neither Parliament nor the McDonald commission — though it raised the question — wanted it to be a global foreign intelligence service along the lines of the CIA or MI6. That was the view in 1984. Part of it was wrapped up in the sense that they had to build a new institution out of a framework in which the RCMP had been engaged in various scandalous and illegal activities. There was this segment built into the CSIS Act in 1984 that referred to foreign intelligence, but only foreign intelligence you would collect in Canada. The idea behind that, of course, was that the government needed the ability of CSIS to monitor foreign embassies and consulates in Canada. That was never explained but that was clearly the rationale and remains the rationale for section 16.
My argument would be that a distinction between “security intelligence” and “foreign intelligence” in 2024 is meaningless. This is why section 16 should be binned, but it’s an ambitious step that CSIS officials are not interested in venturing forward on. I think they would need to be given a push by Parliament, by the government, to do that. We need a CSIS that has a global foreign intelligence capacity of a kind that it doesn’t have at the moment.
Senator M. Deacon: Thank you very much for that. This legislation does fix some outdated issues, like collecting foreign intelligence in Canada while assessing data that might be stored on a cloud server somewhere else, for instance. Where I’m lost a bit here is the distinction between CSIS and the Communications Security Establishment Canada, or CSE. I felt that CSIS was on the ground, domestic, and the CSE was internet driven — sort of in front of the screen kind of intelligence. Have those boundaries started to blur more since everything exists online now? Either one of you can reply. I can extend this if you wish.
Mr. Wark: I’ll go briefly and then turn it over to Mr. Kempa. CSIS and CSE have distinct mandates and missions. CSE, as you know, senator, is responsible for monitoring global internet, collecting on what they call a global information infrastructure and doing cybersecurity missions in that regard.
CSIS is what is called a human intelligence organization. Many countries have a combination of a signals intelligence organization like the Communications Security Establishment, or CSE, working being alongside a human intelligence organization like CSIS. We don’t have the capacity for these agencies to work alongside each other. They pursue their siloed methodologies.
Mr. Kempa: I will just add that I don’t see it as blurring CSIS’s role into CSE’s — rather, it’s enabling CSIS to get some of what, essentially, is equivalent data but to use for their own purposes.
Senator Housakos: Thank you to our witnesses for being with us here today.
I heard from you both — and I think particularly from Mr. Wark — how the RCMP does not have the tools to pursue investigations when it comes to foreign interference. They didn’t have the tools for years, and they certainly won’t have any more of those tools under this legislation, in my humble opinion.
Even though we know that when CSIS and even our Five Eyes allies share intelligence information with the RCMP, very often the RCMP cannot even use that information in court proceedings. Yet the current government is constantly telling the House and the Senate that they cannot divulge the names of members of parliament and senators facing allegations of foreign interference due to the fact of not wanting to interfere with RCMP investigations. Is that response erroneous?
Mr. Kempa: There are many reasons why people or governments may not want to release names. However, the excuse that this would interfere with RCMP responsibilities is not a good one for the reason that the total governance of the ethical behaviour and comportment of members of parliament is not uniquely a police matter. A violation of criminal law certainly is. Currently, we don’t really have Criminal Code violations for most of the categories of foreign interference that we’re concerned with here from the NSICOP, report.
I would simply say that there has been a long history of citing RCMP or police investigation, as an excuse for not releasing public information, and usually, it’s not a valid excuse.
Mr. Wark: Senator, my response would be slightly different. I’m not in favour of naming names either inside the Parliamentary Precinct or outside it. I think it would be a very damaging precedent for democracies like Canada to undertake. The proper place for naming names is through an investigation and in a court of law where someone who might be named for committing some kind of crime or other would have the appropriate opportunity to defend themselves.
In terms of whether there is a way to go forward short of naming names and short of simply relying on the unknowns of an RCMP investigation, I would say that yes, there is. I would point in two directions. One is that, to be honest, in the aftermath of the NSICOP report, it’s incumbent on the government to provide more contextual information about these cases. I don’t mean naming names, and I don’t mean providing specifics that might betray intelligence sources and methods. I mean more context: When did they happen? Are the persons involved still engaged in political activity? How solid the intelligence might be, or is it an ongoing collection process?
That would just give that kind of greater framing to the information.
I think that should be the government’s responsibility, not — frankly — the responsibility of the National Security and Intelligence Committee of Parliamentarians, although you have them coming this evening, and you can ask them what they think about that.
The other thing is that the RCMP has this practice of divulging very minimal information about its investigations, even to the point where charges are laid. This is in enormous contrast to FBI practice, for example, or even MI5 practice. I think the RCMP could — without, again, interfering in their investigations — provide some more contextual information about ongoing criminal investigations in the foreign interference space. Again, I’m not talking about details, and I’m not talking about anything that would compromise an investigation. It could just be more information in the public space.
It’s part of a broader transparency reluctance within government that the RCMP is infected by, as are many other government departments and agencies.
Senator Yussuff: Thank you, witnesses, for being here. I have three questions, and I hope both participants can address them in your own contexts.
In your view, does Bill C-70 sufficiently respond to the NSICOP report? Are there gaps that you think the bill might miss?
Mr. Wark: I missed the first part.
Senator Yussuff: I’m sorry. In your view, does the bill sufficiently address the recommendations from NSICOP?
The second one is this: You’ve criticized Bill C-70 as being country agnostic, and you’ve made this point again. Given what we know of other countries, do you think this is a very important point, given that this legislation is now providing some context for a foreign registry? Should we try to narrow the gap so that it doesn’t become so country agnostic?
The last one I would ask is to do with the commissioner that will be named to do his or her job. Do you believe there’s sufficient independence for that commission to perform the responsibility or act on behalf of parliament?
Mr. Wark: These are interesting questions.
I’ll be very brief on the last one regarding the commissioner. I have no doubt that the commissioner will have all the independence he or she needs. I think the challenge will be finding the appropriate commissioner to engage in this complex task — finding a commissioner and setting up all the machinery to make the commissioner’s office functional. It’s a bit similar to finding a Superior Court judge to run a public inquiry on national security intelligence issues. This is one of the reasons why, I think, this legislation to set up the Foreign Influence Transparency and Accountability Act, or FITAA, need not be rushed. You can rush it, but FITAA is not going to be in place before the next election. People might tell you otherwise, but it’s not going to happen that way. Therefore, if you can, take your time.
In terms of narrowing the gap, identifying hostiles and state actors of concern, there are various ways in which this can be done. It doesn’t necessarily have to be done in legislation, but I think it should be done through regulation with regard to FITAA. To be fair to CSIS and CSE, for example, they have been quite explicit in some of their public documents on foreign interference threats in naming the key threat actors, and I think that has to continue.
In terms of your first question, of course, Bill C-70 was not designed to respond to the NSICOP report. They were running on parallel tracks. The NSICOP process started a year ago, and they produced their report in what has to be recognized as record speed. I think they deserve some credit for doing it so quickly and comprehensively. Bill C-70 is a grab bag of legislative amendments, many of which have been in the works for many years. They were brought together and presented as a package of legislation to deal with foreign interference. Some of them do, some of them don’t.
Mr. Kempa: Just to briefly add to that, many of the issues identified by NSICOP on foreign interference are not criminal law matters. Those that are criminal matters are addressed in the legislation creating new offences. However, the things that are most impactful for the upcoming election are not principally the matters addressed in this bill. Again — just to reiterate the point — perhaps there’s less need to rush than maybe commonly publicly understood at the moment. For example, one of the major recommendations of NSICOP would be for the political parties to agree to some reasonable basis of rules for their nominations processes. That’s not a legislative requirement, for example.
Therefore — again — this does not address everything that NSICOP has raised, and, in fact, many of the most pressing issues don’t require this legislative response within the next calendar year.
Senator Dean: Thank you both for joining us today.
I want to go back to the lead table in terms of prioritization, and the question is this: It seems to me that if you identify several states up front — and right now we have a good sense of who the current ones are — we also know that in the past couple years, that lead table has changed a bit, hasn’t it?
Therefore, I’m having difficulty seeing the challenge of being a bit agnostic, which does not preclude what the communication, through the current targets of activity, might be. That’s the first one.
The second, Mr. Wark, is that you raised a question about the use of the term “arrangement” and the three-part test on FITAA. It is a three-part test, and the part in which “arrangement” is used is pretty specific in speaking to the nature of the activities associated with that arrangement. So maybe you could tell me why the concept of “arrangement” in that rubric is a challenge for you?
Mr. Wark: Thank you, Senator Dean. Just very quickly, if there were going to be in some form or another a narrower focus to FITAA, designed to ensure that the registry is targeted at key foreign state actors of concern engaged in foreign interference operations in Canada, the way to do that, I think, is the way that the U.K. system has done it. They produced this legislation in 2023, and they’re starting to roll that out in practice in 2024 — this is the two-tiered system I referred to — and it is a list that a minister produces under regulation to help target interference activities and keep the registry tight.
I think this is the best way to go, and I’m bamboozled, frankly, as to why we didn’t follow that lead, given that we’re following leads. Everybody else in the Five Eyes, with the exception of New Zealand, has a foreign influence registry. We’re coming in late to the scene. The advantage for Canada is often learning lessons from allies, but we haven’t done that in this case.
Any list would have to be kept evergreen, but I have never understood Public Safety’s resistance to this, and the resistance is that they do not want to create a black list. Well, I think they need interrogation on that. That is what a foreign influence transparency registry, at the end of the day, is meant to be. It’s meant to be a black list. It’s not meant to be a white list. It’s not meant to catch good guys, and I fear that is what it will become because that’s what the Australian registry has become.
The American system is different. It goes back a long way. Their legislation isn’t very good. It dates back to 1938, but they have a very strong enforcement arm in the FBI. Enforcement they really do in the United States. Whether we’ll be able to do it here with a registry is another question, but I think the approach is the wrong one.
Senator Dean: It’s the approach as opposed to the use of the term “arrangement”? That’s helpful, thank you.
[Translation]
Senator Carignan: The question is a little more technical and concerns the offences that are being added to the Criminal Code, particularly the offence of influencing a political or governmental process. When I read the offence, I wondered if it wasn’t casting too wide a net. I’ll give you an example: It covers foreign interference in educational governance. When I look at the definition of educational governance, it even includes primary or secondary schools; the bill provides for life imprisonment for interfering in a political process in a primary school.
It seems to me that this is pushing things a bit too far. Don’t you think that, in order to maintain the constitutional validity of these offences, we should reduce the framework somewhat and eliminate educational governance? Ultimately, we could keep the universities, as there can be research chairs and a bit more secrecy there, but I’m not sure about primary schools. I’d like your opinion on that.
[English]
Mr. Wark: Senator, thank you. It’s a question in my mind. The way I would phrase this — and it’s a bit of speculation on my part — is this is a hammer designed to crack a nut? The nut of concern — and again, it may have been raised in Canadian officials’ minds by some of the Australian experience — is things like the Confucius Institutes. However, rather than name them in this legislation, they chose a broader brush in terms of educational institutions at all kinds of levels, so I think it’s frankly a bit ridiculous.
Coming back to Senator Dean’s question, again, I would emphasize that the definition in 2(b) of “communicating” is just far too broad and reflects, for those of you who saw it, the consultation paper that the Department of Public Safety put out when it was running consultations. One of the cases it proposed was of an academic writing an op-ed under the influence of a foreign government. If that’s the kind of thing that the Foreign Influence Transparency and Accountability Act is meant to capture, I think we should all be concerned.
Senator Dasko: Thank you for being here today. My question is for Mr. Wark. You described this being a piecemeal approach, and you also used the word “grab bag,” a few minutes ago. One might also use different words to describe the same phenomenon. For example, we could call it an incremental approach, and that might put a little better feel to it.
Instead of having this incremental approach, this grab bag, piecemeal, what would be the best way to proceed? Would it be to take more time with the substance of this bill and add more sections? Would it be better to hive off significant sections of the bill to deal with at some future date, hopefully through sober second thought and other useful inputs? How would you deal with this piecemeal approach phenomenon that you’ve described?
Mr. Wark: Senator, I’ll go first if I may. The reason why I feel that a piecemeal approach is the wrong one, with regard to this legislation, is twofold. One, I think it has to be understood that national security legislation in Canada is very distributive. There are bits and pieces of legislation across all kinds of different parts of the law referring to different mandates and authorities by different departments and agencies, and I could go on and on and on. It really genuinely is piecemeal.
Senator Dasko: Like the elections bill.
Mr. Wark: Yes, and it’s been developed that way, pieces of national security legislation brought forward in different historical times for different reasons. We have never approached this legislation in any comprehensive way, ever in our modern history.
Arguably, the government had an opportunity to approach it in a non-incremental way. I understand the argument for incrementalism. It’s an argument that officials would like to make, and when I suggested to CSIS officials, for example, in consultations that this was not very ambitious, they said, “Oh, hold on a minute. Wait five years, and we’ll do something more ambitious.” Well, maybe, but that’s a long wait when the national security threat environment is changing quickly.
I don’t know what the art of the possible is for parliamentary bodies like yourself and in the House of Commons. It’s probably not to extend consideration of this legislation very long, but I would encourage you at least to suggest that there might be parts of the national security legislative framework that do need a more thorough look in the future, and I would include in that the Canadian Security Intelligence Service Act and the Security of Information Act. I would also include the Immigration and Refugee Protection Act, section 8 in particular, which is always a problem, and there may be other parts that occur to people.
If you did have the desire to sever any part of this legislation, I think it would be very worthwhile to sever the FITAA part and give it really proper consideration. Because, as I say, however important people think it is going to be, even if you pass the legislation tomorrow, it’s not going to be in place to make a difference in the next federal election.
Senator Richards: Thank you very much for being here. You kind of went all around my question. I think it’s been answered, but this is more than a recruitment problem for RCMP training and recruitment. It goes into the government’s lack of response and neglect in realizing the seriousness of this, and I’m wondering if this bill will help level the playing field enough that we can take it seriously and pass it.
Mr. Kempa: Thank you. The answer would be no, it wouldn’t level the playing field with concerns for the RCMP.
To build on the previous point, I would add to that list of legislation that ought to be considered together also the RCMP Act and the Emergencies Act as part of that constellation of legislation that would have to be reformed.
If there were one portion to bin, I would agree it would be FITAA, for the reason that it has the danger to bleed off further resources with limited beneficial impact that might otherwise go to the enforcement end for the RCMP. There are real dangers in this of making things worse for the capacity of the RCMP to carry out its federal business.
Mr. Wark: The National Security and Intelligence Committee of Parliamentarians, before this more attention-headline-gathering review, did an excellent report on the RCMP and RCMP federal policing, which called attention, very strongly, to the problems that the force has from being divided between contract policing and federal policing, lack of resources for federal policing and the way that resources are bled away from federal policing. It is a huge problem that needs to be tackled by a government with a will to tackle it.
[Translation]
Senator Dalphond: My question concerns the new commissioner’s investigative powers, which include the power to compel someone to answer questions and produce documents, and to impose a financial penalty. The act also provides that the person may be charged with an offence under the act and possibly even under the Criminal Code. It is said that the evidence that will be gathered by the commissioner cannot be used in criminal or offence proceedings.
Isn’t there a danger that the RCMP will have the rug pulled out from under it by the commissioner conducting an administrative investigation and imposing a penalty, which would make what has been uncovered inaccessible?
[English]
Mr. Kempa: In many ways, that would replicate a similar problem for CSIS sharing information with the RCMP. You could have parallel difficulties with FITAA, essentially is what you’re saying. I would agree with that posing a problem.
Mr. Wark: The commissioner has powers given to a commissioner in the context of FITAA. They’re relatively narrow powers, and they draw on the Australian and U.S. experience of requiring the production of certain kinds of information.
Frankly, drawing on that experience is right because if you can’t compel the production of certain kinds of information, you cannot really enforce a foreign influence transparency act. Obviously, care would have to be taken on how that’s done. The idea that the commissioner report publicly and annually is an important one. I don’t think the commissioner’s activities would preclude RCMP’s investigations on a separate track, if necessary.
[Translation]
The Deputy Chair: Thank you, Mr. Wark. Mr. Kempa, I’ll ask you a question and I’d like you to answer it quickly. You mentioned intelligence services potentially intervening at Elections Canada. I’d like to know where in this bill is the possibility of preventing the nomination of a person who, according to the foreign interference intelligence services, presents risks to the country’s security. Will we be able to act proactively, or will we still be dependent on endless investigations after the fact? I ask that you keep your answer short.
[English]
Mr. Kempa: I think the difficulty is that — Bill C-70 does not create specific offences around meddling in nominations as they have in the United Kingdom and Australia. My understanding would be, unless it was a matter of finance, Bill C-70 would not change very much from the present situation.
The Deputy Chair: Thank you very much.
That brings us to the end of our time with this panel. Thank you Mr. Kempa and Mr. Wark for taking the time to meet with us today.
[Translation]
We are now resuming with our second panel of witnesses. I’d like to welcome Richard Fadden, former National Security and Intelligence Advisor to the Prime Minister of Canada and former director, Canadian Security Intelligence Service; Daniel Stanton, former intelligence officer, Canadian Security Intelligence Service; Michelle Tessier, Senior Fellow, Graduate School of Public and International Affairs, University of Ottawa; and Duff Conacher, Co-Founder, Democracy Watch.
I welcome each and every one of you. I now invite you to make your opening statements.
We will begin with Mr. Fadden. Mr. Fadden, the floor is yours whenever you’re ready.
[English]
Richard Fadden, Former National Security and Intelligence Advisor to the Prime Minister of Canada and Former Director, Canadian Security Intelligence Service, as an individual: Thank you, Deputy Chair.
Let me start by apologizing for the sunglasses. I’m not trying to be spook-like. I simply grabbed the wrong set after I left the car. I’ll take them off after I finish reading.
Thank you for the opportunity to speak to you about Bill C-70. It’s a relatively complex and technical piece of legislation. I should admit up front that I’m not the ideal person to answer questions on the third subsection of the fourth subsection. I will do my best, but that’s not me.
Having said that, it creates and amends a number of statutes. Its overall thrust goes a considerable distance to deal with the threat of foreign interference, a threat that has been with us for some considerable time. It deals with other matters, the treatment of data sets by CSIS and the creation of a scheme to deal with certain information before the federal courts.
I propose to focus my comments on the creation of offences relating to foreign interference, the creation of a foreign interference registry and the expanded authority given to CSIS to share intelligence. These last three sets of proposals will fill serious gaps in the toolbox of those fighting foreign interference.
Having said this, coming back to a point that was raised by the previous panel, they do not represent a silver bullet dealing with foreign interference. This is for two reasons: Foreign interference threats will always evolve, and they represent only the first step in dealing with what will be an ongoing challenge for us and our allies.
I understand that two broad concerns have been raised concerning what is in Bill C-70, the possibility of Charter-and-privacy-compliance issues, and the speed with which many hope Bill C-70 heads toward Royal Assent.
On the question of Bill C-70’s fast-track treatment, I’m afraid I’m going to disagree with my friends of the previous panel. I think the national interest requires it. Johnston, NSIRA, NSICOP and Hogue have all made clear that foreign interference is a clear and present danger to the national interest and national security, a danger that we as a country have been slow in dealing with.
To delay Bill C-70 to the point that it will not be in place before the next election would be a gift to our adversaries. I strongly disagree with Professor Wark when he argues that it would be impossible to have things in place before the next election.
If the public service and the ministry is doing its work, they should already have a list of people who might possibly be appointed as commissioner, and make that appointment within a week of Royal Assent.
If there is a willingness to get all of this into place before the next election, if you and your colleagues from the other House act quickly, I would submit it is within the realm of the possible and we should try to do that.
In considering the speed with which Bill C-70 can be dealt with, it’s important to recall that its passage does not deal with the issue. Time will be necessary for the implementation; the appointment of the commissioner, as I’ve just mentioned; the development of protocols for CSIS to share intelligence; and the development of program details by the police, and prosecutors, to deal with the new offences. All these take time, thus my argument that rapid passage would make sense.
I do not suggest that Bill C-70’s passage should be speeded through no matter what. If serious issues are found, then perhaps they should be dealt with by breaking them out from the broader bill.
I’m not a Charter lawyer. In fact, I’m a lapsed lawyer. I see no danger to Charter rights or privacy in the actual words of the bill. If there are risks, they will be in implementation. I submit this is the case in almost any statute created by Parliament that deals with offences.
The language of the offence can be very clear, unambiguous and Charter compliant. The people who implement are those who, in the end, create the difficulty for individual Canadians.
To that end, I would draw your attention to the Minister of Justice’s review of Bill C-70 to the effect that the bill is Charter compliant.
I would draw your attention to the good faith implementation by ministers and officials to which Parliament is entitled, the recourse to the courts which, in Canada, we are not holding back on virtually any issue these days; and, finally, amendments, if necessary.
All of the above combine to suggest, at least to me, that Bill C-70 merits your review, with amendments if need be, and early approval.
Thank you for your attention.
Daniel Stanton, Former Intelligence Officer, Canadian Security Intelligence Service, as an individual: Thank you, Deputy Chair, and good afternoon, committee members.
First, I wish to say it is an honour to have the opportunity to be invited to speak to committee members on Bill C-70, which I feel will not only strengthen Canada’s national security, but foster more trust among Canadians in the resiliency of our democratic institutions. I’m going to talk briefly about the disclosure of intelligence in the new regime and the criminalization of foreign interference.
The CSIS Act, section 19, is to be amended by adding after subsection 2 the authorized disclosure of intelligence to build resiliency against threats. The CSIS Act was enacted in 1984, and when I began working in counter-intelligence in 1986, the target of hostile intelligence services was the federal government. It was the Cold War and our classified government information, assets and personnel were the coveted prizes, and the means were espionage. The federal government, which was the sole recipient of CSIS intelligence, is no longer an exclusive target. Historical events have upended that exclusivity, and foreign threat actors are targeting other levels of government — think tanks, universities, journalists, the business sector, and as reinforced last week, politicians.
The measures of the act include a new ability for CSIS to share threat intelligence with other levels of government, including Indigenous governance bodies, the private sector and universities, what I’ll call the non-traditional clients of intelligence reporting. This is going to be a significant overhaul in terms of the mandate of the service and Canada’s national security. That intelligence to provinces and territories will have a significant impact in terms of building resiliency. Should a foreign delegation with a hidden agenda visit our North, authorities could be given a useful briefing.
What will this new disclosure regime look like? Some Canadians have what I think is an unrealistic view of this, that there will be some sort of all-you-can-eat buffet of intelligence reporting, that the government`s going to open the tap. That’s not quite the case. As per the bill’s provisions, the end game is to build resiliency to strengthen national security, and that means that CSIS will continue collecting secrets and safeguarding the security of that information.
The need-to-know principle, which I adhered to and respected for 32 years, will remain sacrosanct. The new, non-traditional audience of intelligence reporting will require security clearances. The designated recipient of intelligence will need to demonstrate proper physical and technical security of that information. Whether the recipient is a university, the leader of a political party or a municipal police force, there will need to be a mutual level of trust for a worthwhile exchange. Leakage of sensitive reporting will be a show stopper.
During my career at CSIS, I worked at three field offices and was frequently advised by non-government partners that the service only took and never gave. I think it’s a fair criticism. This new regime of disclosures will enhance CSIS’s ability to keep Canadians safe and strengthen national security and allow for a more holistic assessment of the threat environment.
I wish to briefly address Part 2 of the bill, the criminalization of foreign interference. Without these significant changes to the Security of Information Act, there will not be any serious consequences to foreign interference and transnational repression. These amendments, as well as the foreign agent registry, will significantly mitigate the significant threat to our nation’s national security.
Finally, on a personal note, I participated as an intervener at the inquiry — the Hogue commission — and like many Canadians, I followed a particular panel discussion at the Hogue inquiry comprised of Canadians representing Sikh, Russian, Uyghur, Iranian and Chinese communities. We listened to heartbreaking stories of foreign state repression involving surveillance, monitoring, harassment, blackmail, intimidation and murder. These are the Canadians I think of when I think of Bill C-70, Canadians without agency, Canadians who have been ignored by successive governments. As a country, we’ve let them down. Bill C-70 is, I feel, a start in getting things right. Thank you.
[Translation]
The Deputy Chair: Thank you, Mr. Stanton. We will now give the floor to Ms. Tessier.
[English]
Michelle Tessier, Senior Fellow, Graduate School of Public and International Affairs, University of Ottawa, as an individual: Deputy chair and committee members, thank you very much for the invitation to discuss the subject matter of Bill C-70, An Act respecting countering foreign interference. A bit about myself: My name is Michelle Tessier. I worked with the Canadian Security Intelligence Service for 35 years as an intelligence officer and as a senior manager. My most recent role was that of Deputy Director of Operations, a position I held from December 2018 until my retirement in March of 2023. Considered the second-in-command of the service, that role is responsible for the overall management and governance of service operations. Shortly after my retirement, I was accepted as a senior fellow with the University of Ottawa’s Graduate School of Public and International Affairs.
Given my experience with the service, I am well aware of the limitations of the 40-year-old CSIS Act, especially in relation to foreign interference as well as other national security threats facing Canada. The world is a very complex environment, and the threat landscape evolves with it. Threat actors will use all tools at their disposal, including advanced technology, the digital space, any vulnerabilities that they can perceive in our democratic processes or in our legislation. And they notice there are sometimes no repercussions for their actions.
Unfortunately, our legislation and tool kit have not kept up with this threat environment and with the complexity of this threat environment. To counter foreign interference and other threats, our government agencies must be given the required tools. As regards Bill C-70, certain proposed amendments to the CSIS Act in particular would be a great step in equipping that agency with the ability to more efficiently counter the threat.
The proposed amendments in Bill C-70 respond to urgent gaps in CSIS’s authorities. I will highlight what I consider to be some of the key aspects of the proposed legislation as regards CSIS.
As has been mentioned, greater disclosure authorities would enable CSIS to disclose information to a wider number of stakeholders outside of the Government of Canada. We know that foreign interference, as an example, touches on all levels of government and occurs year-round, not just during electoral periods. CSIS needs the authority to share its information with entities such as municipal and provincial governments, riding associations, all parliamentarians, victims of foreign interference and others who need to take action to counter the threat.
Streamlined warrant applications. CSIS is one of the most reviewed intelligence services in the world. The minister, the Federal Court, the Intelligence Commissioner, the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians all play a key role in reviewing the service’s activities to ensure due diligence to the law and Charter obligations. These safeguards are important in a democracy and should remain.
That being said, the service’s requirements for its warrant applications have not changed since 1984. It is a lengthy process and does not differentiate requirements between highly intrusive powers, such as communications intercepts, and less intrusive powers, such as subscriber information. This can lead to investigations being impeded, delayed or even halted and opportunities missed.
Efforts to enable the service to obtain certain powers more quickly, all while seeking Federal Court approval, would enable quick action by CSIS and ensure greater efficiency in protecting Canadians from threats.
Advances in digital technology are giving threat actors the advantage. Without proper authorities to collect, analyze and exploit data sets, CSIS will lag behind its adversaries, putting at risk Canadians and their interests. Given the digital age, the ability to analyze key sets of data can lead to greater discovery and identification of threat actors.
Other gaps, such as modernizing the service’s role in foreign intelligence collection as well as requiring a statutory review of the CSIS Act every five years, will ensure our intelligence agency remains equipped to modernize its authorities and powers in parallel to the threat environment.
Lastly, the intelligence-to-evidence issue remains a complex challenge in enabling the valuable intelligence gathered by CSIS to assist in law enforcement action. While both CSIS and the RCMP have a great partnership, the lack of an ability to protect intelligence in an open court system severely limits the better use of CSIS intelligence. Thank you for your time. I will now take your questions.
[Translation]
The Deputy Chair: Thank you very much, Ms. Tessier. We’ll now give the floor to Mr. Conacher. The floor is yours, sir.
[English]
Duff Conacher, Co-Founder, Democracy Watch: Thank you very much to the chair and committee for this opportunity to speak on this important bill, Bill C-70. My comments will address Parts 2 and 4 of the bill, the changes to the Security of Information Act and the proposed new Foreign Influence Transparency and Accountability Act. You should have received at least a summary submission of the changes to the bill that Democracy Watch is calling for. If not, a full submission that explains the details of the many loopholes in the bill and the problems with the enforcement system that make it lack independence, effectiveness, transparency and accountability.
I am happy to answer your questions after I give you the summary, but you will also have in written form that full submission, which goes into quite a bit of detail.
First of all, the loopholes in Part 2 and Part 4 are in the definition section for “public office holder” and “political and governmental process,” which are covered by the prohibition in the Security of Information Act, to be amended, and the creation of the new foreign agent registry in the disclosure requirements.
The loopholes will allow for secret, unethical foreign interference activities to continue without having to be registered or disclosed in the proposed foreign influence registry. As a result, they will also not be prohibited.
What are the loopholes? The following things will not be covered in terms of either being prohibited or required to be disclosed.
Activities undertaken by businesses or organizations that have an arrangement with a foreign government or foreign entity.
Activities to interfere in political party leadership contests are not covered.
Also not covered are communications with nomination contestants and party leadership contestants who are not MPs or cabinet ministers, because they are not public office holders and so are not covered under the definition of “office holder.”
Communications with election candidates who are not cabinet ministers are also not covered because they’re also not public office holders. When the writ drops, every MP becomes a candidate, and candidates are not covered.
Communications with people who have been elected as MPs or appointed as senators but have not yet taken office. This is a general loophole in our laws. For someone who is elected or appointed as a senator, it’s not defined as to when they become a public official, so they can be bribed under the Criminal Code during that time period. They would also not be an office holder under this act, so communications would not have to be registered or disclosed and would not be prohibited, even if they’re foreign interference.
Territorial politicians and public officials are not included in the definition, so communications with them and with provincial and municipal government appointees also not covered.
Communications with judges and lieutenant-governors are also not covered.
A foreign agent could use a lobbyist as a proxy for their influence activities, to do them in secret, because the Lobbying Act has loopholes that allow for secret, unethical lobbying. Those could be done in secret through an arrangement with a lobbyist. A foreign agent could also use staff or volunteers of political parties or riding associations, which are not covered.
Friends, family members and close associates of contestants, candidates, parties and riding association executive members could all be used as a proxy for secret influence activities.
In terms of enforcement problems, the proposed foreign influence transparency commissioner will lack independence and be ineffective. They will be allowed to bury cases with secret decisions. They will not be accountable because they will be partisan and political, as they will be hand-picked behind closed doors by the ruling party cabinet, with little input from opposition parties. They will not necessarily serve a full seven-year term because cabinet could arbitrarily shorten it. They will be encouraged to please the ruling party toward the end of their term because the reviewing party cabinet has the sole power to reappoint them. They will be ineffective because they will not be required to do regular unannounced audits. They will be secretive because they will not be required to issue public rulings with reasons for every situation they review. They will be unaccountable because it is unclear in Bill C-70 whether their decisions and actions, including penalizing violators, could be challenged in court. If they fail to do their job properly by ignoring the facts or the law, they could, as a result, possibly not be held accountable to the courts because it’s not set out clearly that there’s a right to challenge decisions in court.
There are also problems with the cabinet’s discretion. Cabinet is granted discretion that is dangerously broad to exclude arrangements with foreign entities, exclude public officials from the list of public office holders, limit the amount of information required to be disclosed in the proposed registry, and not to require regular updates. All those details should be in the act, along with a deadline for implementation. Currently, there’s no deadline in the bill for implementing the registry or the commissioner position.
Overall, outside the realm of Bill C-70, but, as others have mentioned, there are a dozen other loopholes in Canada’s political, finance, election, lobbying and ethics rules that allow for secret, unethical and undemocratic interference by foreigners, foreign entities and foreign governments in Canadian politics. These loopholes exist across the country at every level of government. Until they’re closed, secret, unethical and undemocratic foreign interference will be both legal and also undetectable because no one even has a mandate to watch and find it in terms of enforcement of lobbying, political, finance, ethics and election laws.
I welcome your questions. Thank you.
The Deputy Chair: Thank you, Mr. Conacher. We will proceed to questions. I remind you that four minutes will be allotted for each question, including the answer. I ask that you keep your questions succinct in order to allow for as many interventions as possible.
Senator Kutcher: Thank you all for being with us today.
This bill attempts to expand the non-traditional audience for intelligence information. Recent discussions about a report by the National Security and Intelligence Committee of Parliamentarians highlighted this issue of the non-traditional audience in terms of the leaders of a political party getting information to intelligence.
There are three parts that are not clear to me. If one of the spooks could answer this, I’d appreciate it.
What does this kind of non-traditional security clearance entail? How is it actually conducted?
Second, what does this non-traditional security clearance allow the individual to access? Everything in CSIS, or only on a specific file?
Third, what does this kind of security clearance prevent non‑traditional audiences from disclosing?
Mr. Fadden: I’ll give it a try, if I may. I think many of the answers to your questions, senator, will be resolved in the implementation phase because the legislation itself is pretty general.
I can only give you examples that I’ve gone through, when I was working, of talking to university professors or senior businessmen. They don’t want details down to the nth level. What they want is a sense of what is worrying the security services, which they cannot discuss right now.
I don’t know if they’re going to have a special kind of security clearance or not. I hope they do, because if we simply add the non-traditional clearances to the lists that are already in existence, it’s going to take us 15 years to get through them all. There are serious delays in granting security clearances.
I would say that there might be a principle that they’ll never get top-secret information, but they’ll get secret information. I’m guessing. But I think all of this should be taken into account by those who are implementing.
Ms. Tessier: Perhaps I can add to that. I think the idea is to allow CSIS to share classified information with a greater number of people. Currently, the way the CSIS Act is written, they can only do so with individuals in the federal government or for law enforcement purposes. There are very specific requirements.
Currently, in order to share classified information with, let’s say, a parliamentarian who is not part of the government and who faces threats, CSIS has to use what they call their threat reduction mandate — which wasn’t what it was set out for and doesn’t facilitate the sharing of classified information. Anyone who is subject to the Security of Information Act is subject for life, no matter who that would be.
Senator Kutcher: What specific information does it prevent the person from disclosing?
Ms. Tessier: Any classified information that CSIS would share, CSIS would ask them not to disclose that information.
Mr. Fadden: Can I add to that, senator? I think that what Ms. Tessier said is absolutely true. However, it’s often possible to take a security briefing on a particular topic, remove some of the details, talk in greater generalities and still convey the essence of what CSIS is worried about.
One of the problems we have today is that there’s an assumption that people require great detail to understand the threat environment, and that’s not often the case. I think you take information, and CSIS, in every single case, is going to have to make a judgment call. That is the bottom line. As trust is developed, they will give more and more information.
For example, if you give information to the Business Council of Canada, it will be to two or three people there so that they understand what the government is talking about. They will have to take that information, raise it to a more general level, and talk to the CEOs who are members of the Business Council of Canada. That’s what I meant in my remarks when I said there’s a lot of work to do to develop the protocols that will answer many of the questions that you’re asking.
Senator Boehm: I’m following up where Senator Kutcher left off, so my question is for Mr. Fadden and anyone else who would want to comment.
We’re going to see a new class of MPs after an election, many of whom will be new to Parliament. Senators, we change more slowly. But what are the impediments for providing the briefings that you suggest? In the old days, we would call that an unclassified briefing, or maybe even a restricted one that could indicate where there are areas of concern. To that, I would add knowledge for people that are based in Ottawa or going abroad on parliamentary trips, of what the Vienna Convention on Diplomatic Relations actually is, and its counterpart, the Vienna Convention on Consular Relations in terms of what diplomats can and cannot do, and what threshold they need to cross to be declared a persona non grata. For example, it’s basic knowledge, but as people here are constantly being approached by diplomats who are accredited here, and so too when they’re travelling abroad, this should be a concern. Maybe in the onboarding process, and specifically to party leaders, there could be a briefing of this kind.
Mr. Fadden: Senator, I absolutely, totally and in an unqualified way agree with you and it’s not exclusively a CSIS matter, it’s a matter for Global Affairs Canada and the Privy Council Office. Over the years we’ve failed miserably to brief on the subjects that you are talking about. There’s nothing exceptionally confidential about the two conventions you’ve mentioned. There’s nothing exceptionally confidential about discussing practical examples of how you might approach or how things may happen. I very much hope that this sort of thing can occur. All it requires is a ministerial wave of a hand to allow it to happen and we’ve not had this in the past.
I would note, however, as I understand this bill, the accessing of classified information would not extend to you and your colleagues in the House for constitutional reasons. I have often felt it would greatly help with the discharge of your responsibilities if you could have access to classified information as well, without going so far as to convert us to the American system. Somewhere in there, there may be, I hope, an opportunity for you and your colleagues to do a bit of study.
Senator Boehm: I wish I still had mine.
Mr. Fadden: Indeed.
Senator Boehm: Thank you.
Senator Housakos: A lot of what has been going on really highlights the monumental failure of our parliamentary system when it comes to foreign interference. The truth of the matter remains, if it weren’t for the courage of CSIS officials who have leaked out this information over the last few years, because of frustration and inertia and some journalists who picked up this cause, we wouldn’t be here having a discussion about Bill C-70 or anything else for that matter. The question that remains is all roads right now, when it comes to national security, lead to the Prime Minister and the Office of the Prime Minister. If it wasn’t for that action that has taken place, I suspect that those reports would still be collecting dust in the Prime Minister’s Office.
What can we do? What are the other Five Eyes allies doing in order to depoliticize this particular existential threat, while allowing parliament the flexibility to do its work in a secure and effective fashion?
Mr. Fadden: I can try my hand at it, senator. One of the distinctions between ourselves and the United Kingdom and the Australian parliament is that they have worked out the means to provide far more security briefings to their committees and their members than we have, and they have developed the tradition of less partisanship on national security issues. You’re better placed than I am to decide whether it’s possible to diminish the partisanship, but it doesn’t look likely from an outsider’s perspective. If the U.K. and Australia can do it, it should be possible to develop a set of rules.
Now we have the difficulty highlighted by Mr. Poilievre that the minute you’re briefed, you can’t talk about things, so you suffer from the same disadvantage as everybody else. But your U.K. and Australian colleagues have managed to do it. It doesn’t mean they provide classified information to both chambers fully, but they do so to designated offices and particular committees.
At one level, this changes the constitutional arrangement between the Crown and Parliament and this is a toughie — if I can use the vernacular — I would argue it’s worth doing. One of my political masters way back when argued with me when I wanted to do something, national security is to be dealt with, not talked about. That particular perspective still permeates the entire system. While there’s some truth to that, we have to find a way to change the culture as well, I would argue, senator.
Senator Housakos: Another question I have is this bill goes quite a way to resolving a number of problems, but the problem that still remains is that when MPs and senators are accused of foreign interference, you can’t rely on the RCMP. Sometimes you can’t even rely on a court of law. There has to be political accountability. Parliament is a powerful tool. Parliamentary privilege is something we talk about, but something we exercise as well.
How can we make sure we use our parliamentary privilege to hold parliamentarians to account when it comes to foreign interference?
Mr. Fadden: I think that’s recognizing a very serious problem, and it’s manifest today by the fact that parliament is having some difficulty in trying to figure out how to get access to the names of those implied in the NSICOP report. I think you would need to constitute committees similar to the one that the House constituted — although it may have been a joint committee — with regard to the Winnipeg labs. There were special arrangements made. They were allowed to receive all sorts of information. There was a container around which they did their work, and that went some distance to raise the confidence and the credibility of the issues. That’s just one way of thinking about it. In camera isn’t enough. You’d have to have something along those lines.
Also, it should be possible — and this bill doesn’t do it — to find a way to regulate in the broad sense the nomination process and the activities of political parties. Speaking as a Canadian, I do not want CSIS or the RCMP or anybody else mucking around with the nomination process; it’s not a good idea. That shouldn’t prevent parliament from developing a framework and then requiring the political parties to enforce it for the Crown. There are all sorts of examples like this. We delegate authority all the time to third parties, but it would provide for rules but without enforcement by agents of the government.
Senator M. Deacon: [Technical difficulties] I would have a question to Senator Woo on my right, with the support of the committee.
Senator Woo: She would like me to take a question if the committee agrees. I’m not a regular member of this committee.
Senator Housakos: Just to point out, colleagues, you don’t have to be a regular member to ask a question.
Senator M. Deacon: He’s run out of time.
Senator Woo: She’s generously offered me some time. If I may continue then. My question picks up on Mr. Fadden’s —
[Translation]
Senator Carignan: Excuse me, I would like to raise a point of order.
The Deputy Chair: You are making a point of order, but I am not familiar with all —
Senator Carignan: Are we giving our name? Are you following the order of names given to you?
The Deputy Chair: I am. I had Senator Deacon’s name.
Senator Carignan: So, Senator Deacon; if it’s not her, it’s someone else.
The Deputy Chair: There you go. Normally, that would be Senator Dean.
I am sorry, Senator Woo. Indeed, the point of order raised by Senator Carignan — I’m not familiar with all the provisions of the Rules, but this is clearly the first time we’ve seen a senator give the floor to someone else. I’ve never seen that in 12 years here. I’m sorry, but either Senator Deacon asks a question or we move on to Senator Dean.
[English]
Senator M. Deacon: I will ask a question. I was trying to help out the timing today.
[Translation]
The Deputy Chair: You may ask Senator Woo’s question.
[English]
Senator M. Deacon: Fair enough. My question does concern the FITAA. Our approach under Bill C-70 would be country agnostic, not targeted. I’m wondering through its application, is the process too unwieldy, too much bureaucracy in it, with the unintended effect of catching the good guys? Is there strength to the country-agnostic approach, or would it be better to make it more targeted or even a tiered approach with known threats at the top?
Mr. Stanton: I’d like to address that. I, for one, publicly, in both testimony last year and op-eds, have spoken not against the registry, but simply pointed out that it is not a magic wand. It will be of limited effect. It will not, in any way, militate against the clandestine foreign state actors who are doing most of the damage. That said, it does have some merits. It will buttress the Lobbying Act and certainly reduce some of this activity.
I don’t like the fact it’s country agnostic. A lot of Canadians, particularly in the diaspora communities, are expecting that we’re going to point out the People’s Republic of China, or PRC, India, Russia — all the others. If I missed anyone, I apologize. With it being country agnostic, we’re going to have Switzerland, the Vatican. I don’t mean to be facetious, but there are people who don’t discern between clandestine activity of foreign interference and regular lobbying. So you could have an administrative monster. I do think it’s good, but your point, senator, is well taken. We should specify a reasonable number of states that the Canadian government is concerned about and populate the registry with that.
Senator M. Deacon: We talked about this earlier, yourself and Mr. Fadden, the idea of learning from our Five Eyes. We referred to the U.K. and Australia today in a couple of other conversations. How does this approach compare with those countries? What can we learn from them?
Mr. Stanton: It’s my understanding that Canada looked a lot at the Australian bill because there were some shortcomings there. Ours is probably a little better, with maybe a broader scope on that. I don’t want to sound like a negative person, and I certainly wouldn’t want the registry to slow down the movement of this wonderful bill. It’s just that people should not expect that it’s some sort of panacea.
Senator M. Deacon: Thank you. I’m not sure if Mr. Fadden has anything to add?
Mr. Fadden: I actually take a different view. I started my career in Foreign Affairs. One of the things they pounded into our young brains at the time is that the government should never do anything negative in respect of another country unless they absolutely have to. So our relations right now with China are uneven. They may not be in four years. Listing them in the legislation will require legislative amendments, and we all know how long that takes in this country. If you must list, then I would do it in the regulations or I would have the commissioner issue an order, but some flexibility is a good thing.
Having Parliament say, “I don’t like India. I don’t like Iran. I don’t like China. I don’t like Russia,” is basically telling the foreign minister, “My god, we’re creating a problem for you that you need not have.” My apologies to my colleague who has a different view, but it’s just a different perspective.
Senator M. Deacon: Thank you for sharing that.
Senator Patterson: Professor Tessier, I direct this one toward you. You were talking about how the existing regulations for people like CSIS have been unduly restricting in comparison to other nations. We actually know that this is not only about national security. It’s about the trust of the Canadian public in our democratic institutions and the support of foreign allies in being willing to share intelligence, et cetera, with us.
In terms of this bill that we have in front of us now, do you see that this will help garner any better trust with Canadians but, also with our key Five Eyes partners, et cetera? Thank you.
Ms. Tessier: Thank you for your question. Absolutely. As I highlighted, a lot of safeguards exist already and will continue to exist, even with the changes being proposed. Your point about our allies is extremely important. To be frank, they look at Canada right now as being unable to deal with this threat to the extent that Canada should be able to deal with it. This bill would most certainly set us in the right direction. It certainly doesn’t solve everything, but it is a way to indicate and to equip the agencies to deal with this threat in a more efficient manner.
Senator Patterson: Mr. Conacher, from a civil liberties perspective, what is your perspective on this as well, because it means more sharing of information both internally and outside of Canada, especially given all the loopholes you spoke about?
Mr. Conacher: Thank you for your question. It’s simply disclosure. I don’t see a problem with being required to disclose this information in the same way that some lobbying is required to be disclosed now. As I mentioned, the Lobbying Act and the federal, provincial, territorial and municipal lobbying laws have many loopholes that allow for unethical lobbying. We shouldn’t really have loopholes in this.
In terms of it being a prohibition, I can understand some concerns that people may have in terms of some arrangements, but I don’t think they’re covered. For example, the universities have raised the issue of international research arrangements. Those won’t be covered as long as it’s with researchers who are not operating on behalf of foreign governments or state-owned businesses.
We will see. I should mention that I’m happy to come back to the committee when the committee reviews the bill after it’s gone through the House. The House committee is, right now and through this evening, considering amendments. Hopefully, all of the loopholes will be closed through those amendments and the enforcement system strengthened so it’s independent and effective and transparent and accountable. But I’m happy to come back to the committee and provide another brief on the loopholes and problems that are not corrected by amendments in the House committee, or in the House itself as it continues to review the bill.
Senator Patterson: Thank you very much.
Senator Cardozo: I have just a comment on the country-agnostic aspect. It does seem to me that we should be leaving it to the commissioner to decide where to focus. There would be a national focus on areas where there are problems, but the main countries in the law would be problematic. With China and India, we were “besties” with them just the other day and now we’re not. How do we keep changing that list in law?
I have a question for Mr. Stanton and Mr. Conacher. I want to focus on the matter of registering with the registry. If the bad actors do not register, is there a way to strengthen the registry or strengthen the act in that respect?
Mr. Stanton: Yes, senator, it is a good question. We can anticipate any scenario. Most likely, the good Canadians will register, much like doing taxes, because they do their due diligence. Some who might consider registering could, alternatively, go more covert and actually hide their activities.
I don’t know enough about the proposed registry to see how this would be enforced administratively. Will the commission be pursuing people who don’t register? Will this be fed by intelligence? Will CSIS be providing leads? I doubt it.
It’s hard to imagine how the government will identify the non‑clandestine people who have agency in some foreign capacity and aren’t registering. Perhaps I don’t have the background for that question. I wonder what incentivizes people to call in on this. Most likely, the people who do will be the good citizens who want to make sure everything is fine.
Senator Cardozo: Mr. Conacher, your thoughts? I appreciate the list of loopholes you’ve given us, but just a quick thought?
The Deputy Chair: Unfortunately, your time is finished and it will have to be answered during the second turn.
Senator Yussuff: Thank you, witnesses, for being here.
Mr. Fadden, my question is directly to you. With my colleague Senator Housakos, you were elaborating how we can find greater consensus in the interests of the country. You stated very clearly that this is in the national interest. I imagine all of us should care about the security of the country collectively, regardless of one’s political affiliation, including in the Senate and the House. Yet we seem to have this acrimony in governance and politics in how we talk about these issues. Based on your experience and the job you did previously, can you give us some guidance that may be of interest for us in the future? It may not be for this bill right now, but certainly it would guide us in regard to the future.
Mr. Fadden: I don’t think there’s a silver bullet there, senator. There would have to be some leadership from the prime minister of the day because what he or she says and does has an influence all the way down the system, affecting all ministers. That’s manifested, particularly in the other place, through the House of Commons, and a lot of acrimony has developed there. Ideally, a new prime minister would take a different approach on the issue of partisanship.
Having people equally well informed, having an equal playing field, would help. Security clearances for the Senate and the House of Commons would be useful. Allowing officials to brief the Senate and the House of Commons without needing a note from the King, Pope and the Dalai Lama, which is currently the system today. I’m being sarcastic. I apologize.
It’s not that easy for an official to brief members of Parliament and senators. Making this easier would provide for an easier exchange. Eventually, ministers would come to accept this as part of the deal, constantly reminding people that other parliaments have found a way of doing it.
I really don’t have an answer except to say that I think it’s worth trying. Speaking from outside the system right now, it is impossible for parliamentarians writ large to have a calm conversation and this affects the credibility of the entire institution. You’re having one here, but to have one in the House of Commons proper or in some House committees is very difficult. I don’t know about your other committees. Perhaps you’re calmer than other committees, but I think you build on this over time.
I think it’s too late for this Parliament. Maybe the next Parliament with new people might make it easier.
Senator Yussuff: There’s also one very important part as we’re dealing with national security. This is not to comment on the free press doing its role and responsibility to hold Parliament and politicians accountable, but we’ve seen some really outrageous breaches from CSIS in regard to disclosing information that I would say gives us a huge degree of credibility. How can we actually have an agency that’s breaching its fundamental responsibility and leaking information that I think undermines its credibility with Canadians in general? How do we deal with that issue in the context of security improvement which this legislation is trying to provide?
Mr. Fadden: My understanding, senator, is that a public determination has not yet been made as to who actually made the leaks. Everybody is assuming it was by members of CSIS, and I don’t think that’s a given. That information has been distributed very broadly in ministerial offices, in central agencies and departments. I understand there’s an RCMP inquiry under way, an administrative inquiry. The best thing that we can do is figure out who did this and make sure that they’re disciplined.
One of your colleagues mentioned that if it hadn’t been for them, we wouldn’t be having this conversation. The conversation is a good thing, the leaks are not. We have to figure out who did it and see that they’re disciplined.
[Translation]
Senator Carignan: My question concerns the definition of “foreign entity.”
The definition always makes a link with a state or part of a state. Shouldn’t we broaden the definition to cover certain economic groups or groups that, at the very least, have a “disruptive” ideology, that don’t necessarily have a link with a state, but that are based abroad and could benefit from attacking Canada’s higher interests, and could, therefore, be covered by these prohibitions?
In other words, isn’t the definition that always makes a state connection too restrictive?
Ms. Tessier: I would like to answer.
The Canadian Security Intelligence Service Act does not contain the word “state” when it comes to foreign interference or influence. The intelligence service, when it looks at its own definition of foreign interference, indicates that it must be related to a state.
Of course, everything evolves with the threat, so it’s a good question. I actually recently participated in a meeting with other academics where we talked about this very issue. The CSIS Act doesn’t limit it to linking foreign influence or interference with a state, but that’s how it’s defined.
If the threat evolves, there are other aspects of the Canadian Security Intelligence Service Act that can also be used to examine this type of activity. Indeed, it’s something to consider.
Senator Carignan: Can you give us examples of situations you had in mind when discussing groups? Ultimately, it could be a company, since there are companies that are currently more powerful than some states.
Ms. Tessier: Currently, in terms of elements related to foreign states, when CSIS looks at foreign interference, that interference must involve deceptive or clandestine activities, threats against an individual or threats against Canadian interests; that’s how the service describes foreign interference.
If a state is behind a company, CSIS will continue to look into it. However, CSIS also has a mandate that authorizes it to examine espionage and terrorism. There are other ways to capture it if it’s not a state, but an entity that poses a threat to Canada, and CSIS will take an interest in it.
Senator Carignan: My point is that this element is not covered in the Criminal Code when the offence is created, and it’s not covered in the registry, either.
Ms. Tessier: I think that may be something to consider.
I also think that amendments to the Criminal Code need to be considered, as it may not be easy — or even possible at the moment — to prosecute, given the flaws in the definition.
Mr. Fadden: I agree with your concerns.
However, if we take a country like China, all economic entities are agents of the state, as is the case for a number of states. It’s not a perfect answer, but it’s a partial answer to your concerns.
Senator Carignan: Yes, I was well aware of that. Thank you.
[English]
Senator Dasko: My question is for Mr. Conacher.
Thank you, Mr. Conacher. I know you’ve worked for many years to strengthen our democratic institutions, and I’m pleased to see you engaged on this file too.
You talked about your long list of loopholes. I’m particularly interested in your comments about political leaders and election candidates. You make the point that, of course, elected officials all become candidates when the writ is dropped. So there it is.
I wonder if you can describe how this would be solved. Would this be changes to the Elections Act, the CSIS Act? Explain, if you will, how you think it should be dealt with.
Mr. Conacher: If you’re talking in terms of loopholes, just to quickly answer the previous question, Democracy Watch’s position is that activities undertaken by businesses and organizations should be covered, even if they are not state controlled.
In terms of the loopholes, Bill C-70 does a strange thing. Part 2 has a long list definition of public office holders. Part 4, which creates the registry, adopts the definition of public office holders from the Lobbying Act, which means if the Lobbying Act changes that definition, it will be changed in this bill as well.
It doesn’t make sense. There should just be a list in the new act to create the registry like there is in Part 2 for the changes to the Security of Information Act and list all the public office holders.
It should be expanded. Obviously, candidates for election, after the writ is dropped, an MP becomes a candidate. They’re not a public office holder anymore. It should be public office holders and other political actors, and then just define “political actor” as all those people who are not public office holders, including the people who could be used as proxies by a foreign agent.
Senator Dasko: Right. That includes leadership candidates?
Mr. Conacher: Nomination contestants, party leadership contestants who are not MPs or cabinet ministers, election candidates, as well as the staff and volunteers of contestants and candidates and parties in riding associations. All of those people will be used as proxies if it’s left open to use them as proxies. You just have one of them communicate your influence communications onto the public office holder.
Staff of MPs and senators are covered, but not staff of contestants, candidates, parties and riding associations or the top volunteers.
Senator Dasko: So it’s just as simple as adding them to the list?
Mr. Conacher: Just add “political actor” or whatever you want to call them and put in a new definition in both the changes to the Security of Information Act and also the proposed new Foreign Influence Transparency and Accountability Act.
Senator Dasko: Thank you.
Senator Richards: I thank everyone for coming. Senator Dasko just asked my question that I was going to ask Mr. Conacher. I’ll ask it in a different way to the panel. I’ll try to phrase it a little differently.
Since Mr. Conacher said this bill is full of holes, like holes in a net where any puck could go through, I’m wondering, then, what the other panellists think of his concern about this, and how might this be corrected, in your mind, if you agree with him?
Mr. Fadden: Forty years in the public service working with ministers have taught me something about the art of the possible. I agree with Mr. Conacher’s list of loopholes. I don’t think it’s within the realm of the possible to close all of them through this process. I think your colleagues in the House would have serious concerns about involving some of the long list that Mr. Conacher has brought about.
They are real loopholes. If I presumed to give you some advice, I’d pick the one or two most important ones that preoccupy you the most, but if you try to do every single one of them, I cannot imagine that you will succeed. There are just too many. It’s asking for too much, too soon. As I said in my opening remarks, this should be the first step in a series of activities that continues to work on foreign interference, and you should try and do it then.
Senator Richards: Anyone else want to comment on that?
Ms. Tessier: Perhaps if I may, the one issue, which is being addressed to a certain degree by the bill, is what we call the intelligence to evidence question, which I referred to briefly in my opening remarks. I understand that it’s a complex issue in our judicial system but essentially, it is the ability to protect intelligence while still being able to use it in criminal proceedings.
The bill doesn’t really go into criminal proceedings. It does talk about administrative tribunals being able to use intelligence while protecting that intelligence. That is a first step. But I think the intelligence to evidence issue, which is not an easy one — I understand that — is one that really merits prioritization in terms of how that can be implemented in a system such as ours.
Senator Richards: Thank you.
[Translation]
The Deputy Chair: In closing, I would like to ask Ms. Tessier a follow-up question. Mr. Stanton, you can also answer. Ms. Tessier, you mentioned the many organizations and committees of politicians that have a mandate to oversee CSIS activities. Is it really necessary to create a new commissioner position to oversee the fight against foreign interference? Don’t we already have all the oversight we need to ensure the job is done by the book?
Ms. Tessier: Thank you for the question. Obviously, as a former intelligence officer and manager at CSIS, I always found that there were a lot of agencies that oversaw activities. We want to find a balance between the ability to give powers — and therefore to have an intelligence service in a democracy — and the need to ensure that Canadians really feel comfortable and that they are well supported. If the decision is made to create another position, it could be advantageous if we really want to underline the importance of regulating all the activities that will be listed in the new legislation.
The Deputy Chair: Thank you. Mr. Stanton, do you agree with Ms. Tessier’s comments?
[English]
Mr. Stanton: No, I really don’t have anything more to add to what she said.
[Translation]
The Deputy Chair: That concludes our time with this panel. I thank our guests, Mr. Conacher, Ms. Tessier, Mr. Stanton and Mr. Fadden, for taking the time to meet with us today.
For those joining us live, we are meeting today to continue our consideration of the subject matter of Bill C-70, An Act respecting countering foreign interference.
We will now continue with our third panel of witnesses. I would like to welcome Balpreet Singh Boparai, Legal Counsel, World Sikh Organization of Canada; Anaïs Bussières McNicoll, Director of the Fundamental Freedoms Program and Interim Director of the Privacy Program; and Shakir Rahim, Director of the Criminal Justice Program, Canadian Civil Liberties Association. I welcome each of you.
[English]
I now invite you to provide your opening remarks. We will begin with Mr. Rahim. You may begin when you are ready.
Shakir Rahim, Director, Criminal Justice Program, Canadian Civil Liberties Association: Good afternoon, and thank you for having us here today.
I will focus my opening remarks on the proposed offence of sabotage to essential infrastructure contained in Part 2 of Bill C-70, which would create subsection 52.1(1) of the Criminal Code. This new offence would have a chilling effect on advocacy, protest and dissent. For context, it does not have a foreign interference element and can apply to wholly domestic matters. Under the new offence, protests can be criminalized if they impede access to a central infrastructure and there is an intent to endanger the safety, security or defence of Canada, or causes serious risk to the health or safety of the public.
Upon close inspection, this language is overly broad. The Criminal Code does not define what constitutes the “safety, security or defence of Canada.” The term is defined expansively in other legislation. Under the Security of Information Act, for example, a “purpose prejudicial to the safety or interests of the State,” includes adversely affecting the stability of the Canadian economy without reasonable economic or financial justification. If a similar standard applied here, it might be argued, for example, that peaceful protests that impede access to any economically important infrastructure pose a risk to the safety of Canada and are criminal offences.
To address this risk, we suggest that proposed subsection 52.1(5), which is proposed to exempt criminal liability for certain forms of protest under the new offence, be amended to remove language that the exemption does not apply if there was an intent to cause the harms outlined in proposed paragraphs 52.1(1)(a) through (c).
Second, under the proposed paragraph 52.1(2)(i), what constitutes essential infrastructure can be prescribed by future regulations. We have seen similar powers relied upon to suppress protest. During the 2010 G7 summit in Toronto, for example, the entire summit zone was classified as an area of Public Works to prohibit access to protesters under regulations through the Ontario Public Works Protection Act. Therefore, we suggest that proposed paragraph 52.1(2)(i) be struck.
I will now turn it over to my colleague.
Anaïs Bussières McNicoll, Director of the Fundamental Freedoms Program and Interim Director of the Privacy Program, Canadian Civil Liberties Association: Thank you, and good afternoon.
My submissions today will focus on Part 4 of Bill C-70, which creates the foreign interference registry. Under this part of the bill, any person that enters into an arrangement with a “foreign principal” under which they undertake to carry out activities listed in relation to a political or governmental process in Canada must, within 14 days, provide the commissioner with a list of information to be specified at a later stage by regulation. The term “foreign principal” includes a foreign economic entity, which is broadly defined. It includes a foreign state, a group of foreign states and any entity that is controlled, in law or in fact, or substantially owned by a foreign state or group of foreign states.
Since the bill leaves for future regulations which classes of persons will fall outside of the registry’s scope, the broad definition of “foreign principal” might very well capture an international organization made up of member states, such as the United Nations. One cannot rule out that this definition might also capture foreign state-owned or funded media; charities; and academic institutions, such as universities.
Bill C-70’s definition of “arrangement” is also broad and notably includes an arrangement under which a person undertakes, in association with a foreign principal, to communicate by any means information related to a political or governmental process in Canada. This vague language, which does not require a subordinate relationship between the foreign principal and the person, could possibly capture individuals who have simply been in contact with entities that fall under the broad definition of foreign principal.
Finally, Bill C-70 also relies on future regulations to identify the information that would have to be registered in the registry. It’s therefore currently impossible to assess how this tool could be used by the state, and what impact it could have on democracy, freedom of the press, academic freedom and privacy rights. In view of the broad definitions discussed above, it’s possible that any individual who has been in contact with a foreign state-owned media or academic institution, with respect to a Canadian political process, and who then engages with the public with respect to the same political process would be required to provide detailed information to the registry as to their activities.
The Canadian Civil Liberties Association, or CCLA, is therefore concerned that the registry could be used to surveil and potentially chill international engagement of various actors instead of fulfilling its declared purpose, which is to act as a tool to lessen foreign interference in the affairs of Canada and increase transparency.
We are thankful for the opportunity of meeting with you today. That being said, we want to note that the CCLA opposes the rushed way in which the legislative study of this important bill is currently unfolding. We reiterate our call to extend the time allocated to this crucial step so that more meaningful consultation can take place. Thank you.
The Deputy Chair: Thank you. Next we hear from Mr. Singh. Mr. Singh, the floor is yours.
Balpreet Singh Boparai, Legal Counsel, World Sikh Organization of Canada, As an individual: Thank you.
Good afternoon. My name is Balpreet Singh. I’m the legal counsel for the World Sikh Organization of Canada, or WSO. For the past 40 years, India has consistently sought to intimidate Sikhs in Canada and stifle Sikh advocacy in favour of Khalistan, a sovereign state governed in accordance with Sikh principles and values. This interference has been in the form of disinformation campaigns, denials of visas, intimidation of family members and — as we know now — even assassinations.
Advocating for Khalistan is protected under the Charter’s right for freedom of expression. Attempts to draw attention to ongoing Indian interference for the past four decades fell largely on deaf ears as India consistently maligned Sikh activism as extremism or worse. This is a pivotal movement for Sikhs in Canada. In June 2023, Hardeep Singh Nijjar was assassinated while leaving the Guru Nanak Sikh Gurdwara Sahib temple in Surrey, British Columbia, where he served as president. The community, including our organization, immediately believed it was at the hands of the government of India. As we know now, these suspicions were later substantiated as information emerged of Indian plots to kill Sikh activists here in Canada and across the world.
Last week, NSICOP released a report stating that Canadian MPs and other politicians have colluded with India and other foreign governments including leaking confidential information and being paid to raise Indian issues in Parliament. The WSO has publicly called for the names of those MPs to be released in order to restore confidence in our democracy. Foreign interference is a national crisis, and for Sikhs, it has had deadly consequences. With respect to this legislation, we believe that Bill C-70 is a step in the right direction, but we have concerns.
First, the legislation gives CSIS the power to disclose information to any person or entity, should CSIS deem it relevant. This would be a positive step as members of the Sikh community have received duties to warn, with no details on the sorts of threats they face or any resources to protect themselves. We are concerned, however, that foreign state officials or agents in Canada may be considered an entity. One way to address this is to define entity within the legislation as a domestic entity.
We know that the framework for cooperation in countering terrorism and violent extremism between Canada and India is still active, and we have grave concerns over intelligence sharing between Canada and India. Vigilance is needed to ensure that the new powers created by this legislation are used to counter foreign interference and not turned around on communities like our own. Creating new channels for intelligence sharing could, potentially, do that.
The sabotage provision being added to the Criminal Code makes it an offence to interfere with access to an essential infrastructure or cause an essential infrastructure to be lost, inoperable, unsafe or unfit for use, with the intent — and this is in the legislation — to endanger the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada. Sikhs have often protested in front of Indian consulates and the embassy here in Ottawa. The Indian embassy staff include military, naval and air attachés.
Last year, the Indian media falsely reported the Indian embassy in Ottawa was targeted with two grenades by a Sikh protester, a story covered by the Journal de Montréal last week. Could this provision be used to charge Sikh protesters in the future and stifle Sikh protests? That’s a question we have. We’re also concerned about the introduction of intimidation provisions to the Criminal Code, introducing penalties of life imprisonment for intimidation without clearly defining what intimidation means.
We see the addition of considerations of international relations to the Immigration and Refugee Protection Act, giving the minister the ability to intervene should they believe that matters could damage international relations. We’re of the opinion that this language and provision could go against the overall provisions of this legislation.
Considerations of international relations have already harmed the Sikh community. The reason foreign interference against Sikhs went unchecked for the past four decades is the desire of successive Canadian governments to improve trade relations with India. This has been at the expense of the Sikh community. A report by investigative journalist Sam Cooper published online in The Bureau revealed that CSIS planned a major intervention in 2017 to dismantle Indian intelligence networks in Vancouver that were monitoring and targeting the Sikh community. This operation was reportedly obstructed by the government, citing potential repercussions for Canada-India relations, with the Sikh community suffering as a result.
The WSO and the Sikh community fear that international relations may be used as an excuse to ignore ongoing interference by India, and — even worse — might create tools that could be used against Canadian Sikh activists.
In conclusion, Canada needs new tools to counter foreign interference — there is no doubt about that — but our organization as a community fears that the legislation may be pushed through without fully examining the unintended consequences for minority communities in Canada. This is my submission, and I look forward to any questions that you might have.
The Deputy Chair: Thank you, Mr. Boparai. Four minutes will be allowed for each question including the answer. I ask you to keep your questions succinct to allow for as many interventions as possible.
Senator M. Deacon: Thank you to our guest. I hope to squeeze in two questions. First, in terms of these new laws regarding foreign interference, one of the infractions would be influencing political or governmental processes including educational governance. I’d like to get a little bit of a real-world application that’s fairly timely right now. I’ll reference the campus protests at the University of Toronto and other schools, putting pressure on university boards to divest. Do you see such a protest being targeted by these laws that we’re talking about today. I’ll address this question first to the CCLA, please.
Ms. Bussières McNicoll: I think there’s a possibility that these laws could target those types of protests. I don’t know if Mr. Rahim has something to add. My focus with respect to this bill was part 4.
Mr. Rahim: Yes, I would echo my colleague. That is a tangible risk. I think the fact that we have expansive language in these provisions and that we haven’t had an opportunity to sit down and work through to see what kinds of factual situations may be covered or not, speaks to those sorts of risks. There is a need in the provisions, which we have spoken about here and referenced in our submission, to ensure that we have more precise and targeted language to avoid the criminalization of the type of activity that you just referenced.
Senator M. Deacon: Mr. Rahim, thank you. I’ll carry on with you if you don’t mind. You expressed concerns about the availability of imprisonment for life for certain offences introduced under Bill C-70, saying that it is disproportionate and excessive. What are some of the scenarios in which you see this being used in a heavy-handed manner by a judge? In your opinion, what would be the appropriate maximum for an individual who commits more extreme offences under these changes, which could span from property damage to the use of violence?
Mr. Rahim: Thank you for that question.
The issue would be that it does capture offences that no matter the factual hypothetical situation that is presented, Parliament has clearly specified falls at a certain level of severity. Certain mischief offences, for example, carry a two-year maximum length imprisonment. Our concern is that this bill, in effect, will take a whole range of offences — in fact, any offence that can proceed by indictment in the Criminal Code — and add the risk of life imprisonment. Given the severity of that sentence, we think that it’s far too broad of an expansion of the penal provisions of the Criminal Code.
In our written submission to the committee, we proposed that the maximum sentence that could be imposed would be equivalent to the predicate offence. The sentence for whatever offence somebody is charged with which forms the two pieces necessary for this new provision — that is, the foreign interference part and the indictable offence committed for the benefit of the foreign state, or what have you — should not exceed the predicate offence. If it’s a two-year maximum for the offence charged and convicted of, then the foreign interference component also adds two years. That would be our position, namely, to add some element of proportionality to the proposed law.
Senator M. Deacon: Thank you very much.
Senator Boehm: I don’t think the answer to my question will take too long. My question is for Mr. Rahim and the Canadian Civil Liberties Association. It goes to the comments that you made about critical infrastructure. What you said is, as expected, entirely consistent with your news release.
However, Public Safety Canada has said that proposed changes to the Criminal Code under Bill C-70 will:
. . . expressly clarify that the sabotage offences do not apply to legitimate advocacy, protest or dissent in circumstances where there is no intention to cause the serious harms specified in the legislation
In light of that, could you please expand on the CCLA’s concerns regarding freedom of expression? Is it the issue around how and by whom intention and legitimacy are determined?
Mr. Rahim: Thank you for that question. That forms part of it. The issue really comes down to understanding what harms are under this provision. As I noted in my oral remarks, if we’re talking about, for example, harm to Canada’s safety or security and that language is interpreted or defined broadly, as it has been in other forms of legislation, to include certain types of economic harm, then you could have protests which lead to a negative economic consequence for Canada captured in these provisions. An environmental group, for instance, might be protesting a major natural resource development; or a civil rights group might block major intersections in a city and create some perceived type of risk that way.
We propose that you take out the qualifier that exempts the application of that provision if there is this intent to cause certain harms and create a blanket protection for protest advocacy or dissent. Already, there are other parts of the Criminal Code that can address situations where there’s a real risk to public safety. We think this would ensure that the protections for protest advocacy and dissent are strong.
Intent is not the same thing as motivation. If somebody is certain or substantially certain that some outcome will occur, they’re said to have acted with intent under criminal law. Someone could say, “My purpose here was to protest, or to advocate, or to dissent,” but if we have an expansive notion of harm in the provision, and if a person knew that some type of economic risk might be created by their actions, they could still be criminally liable under this new offence.
Senator Boehm: Thank you.
Senator Dalphond: My question will follow up from Senator Boehm’s because I have the same concerns. It will be addressed to Mr. Rahim again.
I understand the concerns of the associations. Are they with both provisions, the one on sabotage and the other one about essential infrastructure? Both are defined as requiring intent. The first one is the intent to endanger. Is that the concern for you? That’s proposed section 52, with the clarification that it does not apply to people that are participating in advocacy protests or dissent.
Mr. Rahim: That is correct. It would apply to both aspects of this new proposed offence. The part which concerns impeding essential or interference with access to essential infrastructure, which we think captures some of these different types of protests that we reference; and the endangerment piece, the harms piece. That is how those could be read expansively. A peaceful protest that is seen to cause certain types of risks to safety or security is captured under this provision because as soon as that occurs, then the protection that is supposed to ensure protest, dissent or advocacy has space, disappears.
Senator Dalphond: I assume that when a peaceful manifestation is happening and then it becomes more dangerous, or violent, the police will first order people to disband. If you stay after the order of the police, then I guess that might change the intent, but participation in a peaceful gathering can hardly be covered by this provision. Can you agree or do you disagree with this?
Mr. Rahim: Again, I think it’s because of the risk that what constitutes a threat to safety can be broadly construed beyond, let’s say, a protest that becomes violent in terms of risking physical harm to others or severe damage to property. If what were proposed was a clear, tight and understandable definition of what posed these types of risks, then I think some of our concerns could be addressed. However, since that is not in there, that’s what forms one of the risks to protests that we see.
Senator Dalphond: Thank you.
Senator Kutcher: Thank you very much. I’d like to continue along the lines of both Senator Boehm and Senator Dalphond.
I’d like to address some of the nuances of what you’re saying. How does your concern relate to situations where malicious foreign actors are known to be using proxies to incite protests designed to disrupt essential infrastructure and then are successful in doing so? How does what you’re talking about address that issue?
Mr. Rahim: If the provision contained the language that we’re talking about, namely, protests where there is a nefarious intent by a foreign actor to impede access to infrastructure, then we would be dealing with a different type of provision. Maybe that would be adequate to narrow the scope, but that type of language isn’t in this provision. It is applicable to a wholly domestic context without a foreign interference element and without a nefarious intent by a foreign actor. That is part of where our concern arises with that particular offence.
Senator Kutcher: Are there situations where foreign actors will work through proxies to achieve substantive disruptions in essential infrastructure?
Mr. Rahim: That is a conceivable situation, yes.
Senator Kutcher: How do we differentiate these issues?
Mr. Rahim: Even if people are working through proxies or there’s some foreign element, there ought to be some minimum level of evidence that can establish that. If the provision contained such an element — one that added the foreign direction component — there could still be evidence that is taken note of by a court through inferring what certain actions could have meant and analyzing communications. If there were no evidence at all of that occurring, then, in our view, it would be an issue for there to be criminal liability. Even if proxies are being used, we think there should be adequate evidence to ground an offence that contained that as an element.
Senator Kutcher: Okay.
Senator Housakos: I want to pursue the line of questioning that Senator Kutcher began, which is very important. Obviously, we all want evidence-based action to be taken by our government when it comes to foreign interference, but we’re past that point now. We all acknowledge there have been entities in Canada for the longest time who are working to cause disruption in our democratic institutions, funnel intellectual property out of this country for the benefit of foreign countries and so on and so forth.
Based on the fact that if you look at Canada over the last few years, when it comes to freedom of association and freedom of speech, I think we certainly have gone to the other extreme. Mr. Rahim, I don’t think you could name one instance where the federal government has overreacted in shutting down protests in this country — except for maybe one that I can come up with, because I considered it a peaceful protest on the streets of Wellington. However, we have had organizations that have blocked critical infrastructure like railways for weeks on end, and the federal government didn’t do anything. We currently have squatters who are sitting on university institutions across this country calling for death to certain people because of the faith they believe in.
Can you give me examples where you think the government has gone too far and clamped down on freedom of association and freedom of expression and impeded Canadians from protesting in favour of A, B or C?
Mr. Rahim: One of the reasons we can point to a strong tradition of the protection of protest in this country is because we are vigilant when it comes to the types of laws or government action that could stifle that protest. Certainly, in cases where there is a risk of physical violence or where a party wants to claim that its property rights are being violated such that there should be a court injunction, those procedures and criminal offences are available for authorities or private actors to pursue.
If, indeed, it is the view of this committee or of yourself, senator, that this provision is necessary to address a perceived deficit that exists, our view is that at the minimum, adopting the amendments we propose would ensure that we maintain the tradition of ensuring that protest can be present in our free and democratic society. We understand that there might be different policy perspectives on this, and we’re just trying to propose what we think is the best way to continue to uphold that freedom of expression in Canada.
Senator Dean: Thank you for joining us and providing your advice.
With respect to the Foreign Influence Transparency and Accountability Act — which is the focus of your concern — I’m looking at the three-part test for registration to be required. I see the need for a foreign principal, and those are listed. I see certain influence activities, which relates to communication with certain people and the disbursement of monies. I see the need for activity being directed to the development of policy proposals, the proceeding of a legislative body and decision-making power by a public office holder. All three of these tests would need to be met in order for there to be registration. In addition to this, there is language in the proposed legislation that says this doesn’t apply in any way to demonstrations and organized dissent as we ordinarily understand it.
I’m having a hard time trying to figure out how you’re not already protected here, but perhaps I’m missing something. I understand the concern. I’m just not seeing where the concerns arise in the context of the proposals.
Ms. Bussières McNicoll: Thank you for this question. I will answer, with respect, to Part 4 of the bill, which is the foreign influence and transparency registry, in which there is a requirement — as you said — for an individual to be involved with a foreign principal. However the way a foreign principal is defined is extremely large and includes a foreign economic entity — so any entity that is controlled by law or in fact or substantially owned by a foreign state or group of foreign states. That might capture a lot more than a foreign state or foreign power but might also capture international organizations made up of member states, foreign state-owned or state-funded media, charities and academic institutions such as universities.
With respect to the requirement to be acting under an arrangement, the arrangement can be very large, and it includes an undertaking to communicate or disseminate information by any means, including social media. Again, this is extremely broad. This is not just about communicating with the public office holder or distributing money.
Finally, there are the criteria of acting under the direction of a foreign principal but also in association with a foreign principal. “In association with” does not require any subordinate link or relationship between the individual and the foreign entity.
Therefore, with all of those very broad definitions put together — and also the fact that under the act, we don’t know what type of information would have to be provided under the registry — there’s certainly a fear that this registry could be used to suppress or at least chill and surveil international engagement instead of its declared purpose, which is to oppose and lessen foreign influence and interference.
Senator Dean: Okay. Thank you.
Senator Cardozo: My question is for Mr. Boparai of the World Sikh Organization of Canada. As I understand it, a number of diaspora communities have been calling for a foreign interference registry for a while. I hear the points that you raised. You didn’t talk too much about the registry. I wonder what your thoughts are about it. My question specifically is around whether bad actors would register or not, given that if people come here for nefarious purposes, they may not even want to register. How does the registry help in that regard?
Mr. Boparai: Thank you for the question.
I think the foreign interference registry is a step forward. It’s more than what we currently have. Will it capture everything? I don’t think that’s realistic.
We do, however, endorse the recommendations made by Democracy Watch. We think the commissioner needs to be independent, and there need to be changes to ensure that the commissioner is not appointed and dismissed at the whim of the cabinet. We believe that the seven-year term should be a single seven-year term that should not be cut short. Like I said, we endorse the other recommendations made by Democracy Watch.
Senator Cardozo: In terms of the appointment of the commissioner, currently, it’s Governor-in-Council, and then there are deputy commissioners who would be public service appointments who, I assume, would be appointed by the commissioner. Instead of Governor-in-Council, what would be your preference?
Mr. Boparai: It would be by parliament. To be very honest, what we’re nervous about are situations that have already occurred, which is — once again — using international relations to either ignore or cover up foreign interference situations. I mean, the role of India is what we have experienced for the past four decades, but even when the foreign interference commission was called, India was not named among the countries. It was China, Russia and Iran. However, during the proceedings, it has come to light that everyone knew that India is the second-most prolific foreign interferer here in Canada. Once again, the reason that’s not known is for these international relations reasons. Therefore, we don’t want political considerations and international relations considerations to obscure the reality of foreign interference here in Canada.
Senator Cardozo: Okay. Thank you.
[Translation]
The Deputy Chair: I see there are no further questions. That concludes our time with this panel. We thank Mr. Rahim, Ms. Bussières McNicoll and Mr. Boparai for taking the time to meet with us today.
We will suspend briefly while we welcome our next witnesses. We will return at 5:30 p.m.
We are continuing our consideration of the subject matter of Bill C-70, An Act respecting countering foreign interference.
We now welcome our fourth panel of witnesses. I would like to welcome Sherap Therchin, Executive Director, Canada Tibet Committee; Mehmet Tohti, Executive Director, Uyghur Rights Advocacy Project; and Katherine Leung, Policy Advisor, Hong Kong Watch.
I welcome each of you and invite you to make your opening statements. We’ll begin with Mr. Tohti.
The floor is yours as soon as you are ready.
[English]
Mehmet Tohti, Executive Director, Uyghur Rights Advocacy Project, as an individual: Thank you, Mr. Chair, and thank you, senators. Thank you for the opportunity to testify today on this critical and pressing issue of countering foreign interference.
As a firm advocate for the Uyghur people and against the Chinese Communist Party’s ongoing genocide being committed against my people in my homeland, foreign interference by the Chinese state has had a marked impact on my personal life here in Canada. Chinese repression and new efforts to silence dissent have attempted to shackle my activism and intimidate me into retreating from speaking out about the devastation of my family, friends and community.
While we are a predominantly Muslim ethnic group residing in East Turkistan that China calls the Xinjiang Uyghur Autonomous Region, Uyghurs have been subjected to mass internment, forced labour, surveillance, sterilization, torture, suppression of religious practice and the political indoctrination within China by the Chinese Communist Party, or CCP.
China’s repression to the Uyghur community extends beyond its borders. Both communities within China and the diaspora have been ferociously targeted. Canada has not been a safe refuge from transnational repression by the Chinese government.
Many Uyghurs, including myself, have been surveilled, harassed and intimidated intensely. I would like to remind you at this point of Huseyin Celil, a Canadian student of Uyghur origin who was abducted in Uzbekistan 17 years ago and smuggled into China by the Chinese government and sentenced to life in prison. His family, four children, in Burlington, and the youngest one — or all children, they don’t know whether their father is alive or dead.
I have received threatening phone calls and messages many, many times, right before some notable event is to take place. I have been followed and hacked. As a Canadian, the Chinese government has attempted to curtail my rights to exercise free speech and assembly.
The recent report by the National Security and Intelligence Committee of Parliamentarians defined “transnational repression” as:
. . . the exertion of control of an ethnocultural community by a foreign state through monitoring, coercion, harassment, intimidation or violence. States deploy a wide range of tradecraft to carry out repression, including human intelligence collection, online monitoring, cyber attacks, coercion by proxy, controlling mobility by selectively providing consular service . . . harassment and threats of violence, threats and harm to family members, forced repatriation and, in some cases, physical violence.
Uyghur Canadians have been experiencing all of those textbook examples of transnational repression for decades. In that regard, Bill C-70 is a [Technical difficulties] response by the Government of Canada to my community’s experience of transnational repression. It is the first initial step forward in addressing foreign interference and protecting Canadian citizens from transnational repression.
As a human rights defender, I believe that the broader application and the coverage of certain acts of transnational repression against human rights activists afforded by the proposed amendments in Bill C-70 will allow for greater protection of full and uninhibited exercise of my democratic rights in Canada.
The proposed amendment in Bill C-70 will foster joint strength among Canadians to effectively counter threats to the security of Canada and to safeguard diaspora communities in Canada more broadly.
The expansion of information disclosure to anyone, not just a public official, if deemed essential in the public interest, will allow for enhanced bureaucratic transparency. Enhancing CSIS’s ability to carry out its important functions serves to strengthen Canada’s trust in the agency and in its capacity to detect, prevent and respond to the threat of foreign agents including China.
Necessarily, Bill C-70’s emphasis on international cooperation under [Technical difficulties] is a crucial and powerful tactic in countering the global reach of authoritarian regimes such as China. I applaud the proposed creation of a foreign influence transparency registry, which will enhance the effectiveness of protecting vulnerable diaspora communities, and the proposed appointment of a commissioner of foreign influence transparency.
I look forward to any questions you may have. Thank you.
[Translation]
The Deputy Chair: Thank you, Mr. Tohti. We will now hear from Mr. Therchin. The floor is yours, Mr. Therchin.
[English]
Sherap Therchin, Executive Director, Canada Tibet Committee: Good afternoon, and thank you, chair, and committee members. I deeply appreciate this opportunity to speak with you today on the important matter of countering foreign interference. I would like to thank everyone involved for taking this matter seriously and for the detailed process to develop countermeasures.
My presentation today will focus on Part 1 of Bill C-70, with reference to the review of the bill by Sarah Teich and Hannah Taylor. While the review finds many of the amendments encouraging, it highlights a limitation. Bill C-70 does not propose the addition of a definition of “transnational repression” to any pieces of legislation that it aims to amend or enact.
A brief note on foreign interference and transnational oppression. Though related, the difference seems to be that they target different groups. The available literature on the topic suggests that foreign interference typically targets state structures seeking to influence governmental and political processes, whereas transnational repression targets diaspora groups such as Tibetans and Uyghurs, aiming to silence dissent and control opposition within these communities.
In defining “transnational repression,” it is essential to recognize and address the specific tactics used by foreign states to silence dissent among diaspora communities. This repression can take various forms, including harassment, surveillance, threats, coercion and physical violence. Authoritarian states, such as the People’s Republic of China, or PRC, routinely use these tactics to control dissent and opposition beyond their borders. The PRC’s transnational repression is a well-documented phenomenon affecting several groups, including the Tibetan diaspora.
The Chinese Communist Party employs various methods to exert control and suppress Tibetan activism and identity worldwide. Key tactics include the following:
Surveillance and intimidation. The PRC has engaged in extensive transnational repression against the approximately 150,000 Tibetans living outside of Tibet, many of whom reside as fugitives in South Asia. This repression includes harassment, surveillance and coercion — aimed at silencing and controlling the Tibetan diaspora. According to the U.S. Department of State, the Tibetan overseas community has frequently faced cyberattacks, phishing attempts and online intimidation, believed to have been orchestrated by the PRC government. Freedom House reported relentless phishing and hacking attacks against Tibetans in exile, while Safeguard Defenders highlighted that PRC authorities have issued death threats to force Tibetans into silence or to return to Tibet.
In 2019, Tibetan-Canadian student leader, Chemi Lhamo, received a death threat that likely originated from Chinese diplomats in Canada.
Second, coercion by proxy. The Chinese authorities frequently threaten or harm relatives of exiled Tibetans in Tibet to exert control over the diaspora. This method ensures that exiled activists are silenced or forced to conform to the CCP’s demands, out of fear for their loved ones.
The Jamestown Foundation noted that Chinese consulates brought together data from family members applying for visas to identify and target Tibetans in PRC regions, including Tibet, with the government compelling Tibetans in Tibet to pressure family members seeking asylum overseas to return home. This is something we have observed in Canada as well, but they won’t speak because they still have families inside Tibet.
Third, infiltration and disinformation. The CCP infiltrates Tibetan diaspora communities and organizations, using spies and co-opted individuals to sow distrust, spread disinformation and undermine solidarity networks.
One notable incident involves the distribution of a fake letter, with a forged signature of the Honourable Prime Minister Justin Trudeau, promoting the PRC narrative about Tibet in 2019. This appalled the Coalition of Tibet Groups in Canada. Such actions are designed to create confusion, erode trust within the community and disrupt efforts to advocate for Tibetan rights. These activities impair the community’s ability to organize and stand united in their advocacy.
In 2018, the PRC appointed delegates from the Tibet Autonomous Region to testify at the Foreign Affairs Committee. A committee member asked about key human rights issues, such as the whereabouts of Tibet’s religious leader, Panchen Lama, who was abducted at the age of six. The witness, who was representing the Chinese government and testifying before the committee, said that he does not wish to be disturbed.
I would like to provide some recommendations. Incorporating a clear definition of transnational repression in Bill C-70 would enhance Canada’s ability to combat foreign interference effectively. It would provide a legal basis for identifying and prosecuting transnational repression activities, thereby protecting diaspora communities from foreign state harassment and coercion.
First, include a comprehensive definition of transnational repression that encompasses all forms of extraterritorial control and coercion used by foreign states against the diaspora community.
Second, enhance surveillance and prosecution mechanisms. Strengthen provisions within the CSIS Act and the Criminal Code to allow for robust monitoring and prosecution of transnational repression activities, ensuring that perpetrators are held accountable.
Third, support victims and communities. Establish mechanisms, including specialized funds, to support and protect diaspora communities, providing resources and assistance to those affected by transnational repression.
Finally, foster international collaboration to address transnational repression, working with allies to develop coordinated responses and share best practices.
[Translation]
The Deputy Chair: Thank you very much, Mr. Therchin. We will continue with Ms. Leung.
Ms. Leung, the floor is yours.
[English]
Katherine Leung, Policy Advisor, Hong Kong Watch: Today, I reiterate the key message I shared with your counterparts in the House of Commons. Hong Kong Watch supports a speedy passage of the Countering Foreign Interference Act such that it is in place before the next election.
While we support the bill in its entirety, I would like to highlight two key amendments that would strengthen the bill’s ability to comprehensively address the multi-faceted nature of foreign interference.
Bill C-70 aims to counter foreign interference in Canada and addresses concerns raised by diaspora communities about foreign meddling and intimidation. The bill provides new tools for the governments, including a foreign agent registry, new offences related to foreign interference, and enhanced information-sharing capabilities for CSIS. While these measures begin to tackle transnational repression, the foreign agent registry scope should be expanded to cover activities beyond political and government processes.
Part 2 of the bill introduces necessary measures to counter foreign interference, including the creation of new offences for deceptive acts that undermine democratic processes and harm Canadian interests. These amendments acknowledge that foreign interference often targets individuals at the grassroots level, indirectly influencing our democratic processes and interests. The bill correctly points to intimidation, threats and violence as tactics used by foreign entities to silence dissent within diaspora communities, but one amendment we would support adding to this list is the tactic of discrimination.
Discrimination is another method employed to suppress dissent from diaspora communities. There have been incidents where individuals in Canada have faced job loss or eviction due to their political opinions, and adding discrimination to the list of activities prohibited under section 20 of the Security of Information Act would make the bill better equipped to address all types of foreign interference.
As part of my work at Hong Kong Watch, I look at issues faced by the Hong Kong diaspora here in Canada. I have published two briefings that include case studies of Hong Kongers who have faced threats and intimidation here on Canadian soil for exercising their Charter-protected rights of advocacy for freedom and democracy in Hong Kong.
One such case is of a Hong Konger who, after participating in a pro-democracy rally, was evicted by their landlord, who was linked to the Chinese Communist Party. As the bill is currently written, such activities would not trigger registration as a foreign agent.
Foreign interference takes place in many forms, not just direct meddling in elections or donations to political campaigns. Foreign interference at the community level has the effect of discouraging Canadians from speaking out on issues that matter to them, which results in elected representatives not hearing about these issues. This is why it is important to expand the registration requirements of the foreign influence transparency registry to not only political and governmental processes but also activities aimed at suppressing public discourse, therefore indirectly influencing democratic processes.
For elected officials to represent their constituents fully, it is crucial that Canadians can freely express their views without fear of retribution. Expanding the scope of the foreign agent registry is essential to address the threats and protect democratic participation.
In conclusion, while I have outlined several recommendations for amendments to strengthen Bill C-70, I urge the Senate to pass this bill swiftly. This bill would give Canada a much stronger framework to combat foreign interference than we currently have in place and should be in place before the next election.
I will conclude my remarks here. Thank you.
The Deputy Chair: Thanks, Ms. Leung. Now we proceed to questions.
Senator Housakos: Thank you to our witnesses. You are the stakeholders who inspire me to do the work that I have been doing in the Senate. I thank you for all you do.
We all come to Canada, if we’re immigrants or children of immigrants, for freedom, human rights and the rule of law. We expect our government to protect us from nefarious forces around the world.
I apologize on behalf of the Senate and my colleagues, Mr. Tohti, because, as you know, my motion to recognize what happened to the Uyghur people was defeated in this chamber, the only chamber in the Western democracy to defeat such a motion. Shameful and I apologize.
One of my bills, Bill S-204, calling for a ban on all products in Xinjiang that are being made with Uyghur slave labour has been adjourned in the chamber. The majority of government-appointed senators continue to keep that bill on ice, as you know.
Now we finally have a foreign registry bill, which is three years late because, as you know, Bill S-237 has also been adjourned by a majority of government senators.
Despite all that, I would like our witnesses to share with my colleagues some concrete examples how proxies on behalf of nefarious totalitarian organizations use those proxies to intimidate Canadians, using their family back in Hong Kong and mainland China and Xinjiang, and how that operation is being carried out by the United Front Work Department.
Mr. Therchin: Thank you, senator. It is an unforgettable moment in the memory of Uyghur Canadians when the Senate voted against the Uyghur genocide. It is the memory of many Uyghur Canadians who lost their parents, family members, including myself, 37 of my family members lost just because of the Uyghur genocide, including my mother and siblings.
According to a new study, more than 800,000 Uyghur children were taken from their parents and put under government-sponsored orphanages for enforced indoctrination and a — so-called by the Government of China — transformation, transforming from being Uyghur to Han Chinese.
That should be a triggering alarm for each member of the Senate, and unfortunately, some senators vote against it.
Again, you are right on the foreign agent registry, that was the campaign that Uyghurs, Tibetans and Hong Kongers worked on for a decade, because as victims of the transnational oppression and the foreign influence, we thought that Canada would be better off if we had such a system, as was the case for the United States, the U.K. and other allies. Now, this is the national conversation and we are starting again.
I hope that many senators and elected representatives open their eyes to realize how deep foreign interference has penetrated in our three levels of government, including our House and the Senate. Ongoing study of the foreign interference commission and ongoing public discussion about this matter, and it should be a good reminder for everyone in this chamber to open their eyes. Do something about the Chinese Communist Party’s interference, not only in the democratic process of Canada, at the same time the safety and security of myself and many Canadians.
Senator Kutcher: Thank you to the witnesses for being here. It’s clear your common experiences are with PRC malignant extraterritorial activities and the United Front Work Department. You have told us that the bill does not adequately deal with transnational oppression and you have provided some very helpful suggestions. Thank you for that.
I have two questions, and I’ll start with Ms. Leung and then the others. The first is: Does this bill adequately address disinformation provided to diaspora communities by the United Front Work Department? Second, do you have concerns that the RCMP may not have the capacity to protect diaspora communities from these malevolent state actors?
Ms. Leung: Thank you for the question. As to disinformation, it is not my understanding that the bill deals with it directly. If we wanted to counter disinformation dispelled by the United Front Work Department, we would have to look at Chinese propaganda airwaves channels that are on Canadian airwaves such as CGTN. In the same way that Canada banned RT from Canadian airwaves, I think we have ground to do that with CGTN as well.
Another way that the United Front Work Department dispels this information in Canada is using WeChat. Now, WeChat is notoriously difficult to regulate because it doesn’t operate in the same way that Western social media platforms would such as Facebook, Instagram, et cetera. There is a need for us as Canadians to think about how we tackle that problem.
Senator Kutcher: Do you think the RCMP has the capacity to protect your diaspora communities?
Ms. Leung: From my conversations with the RCMP, I know they are doing what they can, given the limitations. I am going to be having an event with the RCMP soon where we will connect them with the Hong Kong community and ask them to tell them how to deal with transnational repression.
What I have heard is that, currently, a big difficulty is in prosecuting those who have, essentially, committed transnational repression on Hong Kongers. For example, the case I raised earlier about the landlord evicting a pro-democracy individual in Canada and the landlord being a United Front member, I don’t know that there is a prosecutable offence there for the RCMP to go after. That is currently the gap that I am seeing in my work.
Senator Kutcher: Thank you. Could we hear from the other witnesses on that other point?
Mr. Therchin: Thank you. I would like to speak on the disinformation in the context of the transnational repression because the disinformation does affect in creating repression to the diaspora community, including in Canada. A case of an example, in March, we organized a talk at the University of Ottawa in collaboration with the U.S. Embassy here with the participation of the U.S. Under Secretary Uzra Zeya. The topic was the forced assimilation of Tibetan children into residential school.
Just days after that event, the Chinese embassy sent out a mass email with information about how those topics that were discussed during the event at the University of Ottawa are not true, basically promoting disinformation about the issue we have been raising for the past year and a half.
What it does to activists like me, it creates a sense of fear, more than just one single event. The notion of being constantly watched, the fear that the PRC creates is — it’s not easy for me to testify, although I am doing this as being very close to an issue that is close to all Tibetans. As much as I would like to speak on any platform on such issues, I know that this will affect my future as well because, with the impact and the influence of China, speaking on any platform like this makes it very difficult for my own future. But I still do it because one must speak out if it is concerning foreign interference and transnational oppression —
[Translation]
The Deputy Chair: Thank you, Mr. Therchin.
Senator Carignan: I would like you to continue your answer to Senator Housakos’s question and give specific examples of what you experienced with your mother, in particular. Can you give us some specific examples?
[English]
Mr. Tohti: On January 16, early in the morning — my office is at Albert and Metcalfe streets, two blocks south of Wellington — just as I arrived in the office at 8:30, I received a phone call. It was a Hong Kong WhatsApp number. I picked up the phone and, at the other end of the phone, it was not someone from Hong Kong. It was the Chinese state police.
They had my mother’s brother, my uncle, on the side. That was the first time I had a chance to talk with someone from my family circle because my communication with my mother and all of my relatives was cut off since October 23, 2016. I seized that moment, and I asked questions of the police: Where is my mother? Why can I not talk with her? Where are my brothers, sisters? Why can I not communicate with them?
At that time, I was told that my mother was dead and my two sisters were dead and my three brothers — they said they don’t know. I said how they could not know; they are the state police.
How about their spouses, their children, and my brothers, sisters, the parents? It was a tough reality, a harsh reality. I learned that my mother and many of my relatives were already gone. It was two weeks before the Motion 62, or M-62, was about to be voted on in Parliament. The Chinese government wanted to give me a clear message: If you continue, your remaining relatives will have the same consequence.
Similarly, on July 20, 2020, just three hours prior to my testimony at the House of Commons, I received a message. It said, “Your mother is dead.” Just three hours before my testimony. And I received that kind of message frequently.
Last year, on July 3, we were at a Montreal restaurant, planning to have the Uyghur summit in Quebec. We finished our dinner and drove away from the restaurant. I received a phone call from one of our close friends at Global Affairs. He said, “Mehmet, your car is being followed. Be careful.” So we made some sharp turns and came back to the hotel. I called back to that official. He said, “two cars were following us. I tried to intervene but their licence plate was covered.” In Canada, in Montreal.
This is not a joke. Foreign interference is not a joke. I will remind every senator, every parliamentarian, it is about our lives. It is about our families. It is about our relatives. We shouldn’t sleep. There are hostile actors active in Canada creating a threat, a life-threatening risk every day, interfering in our lives and making hostages of our family members, compelling us to live life in a manner that we don’t want.
This is a serious matter. So I urge every senator to put your hand on your heart and put yourself in our shoes and act accordingly. Thank you.
The Deputy Chair: Thank you, Mr. Tohti.
Senator Cardozo: Thank you, Mr. Tohti, for your impassioned response and sharing that information with us.
I want to ask both Mr. Tohti and Mr. Therchin, are you concerned about your appearance here today? Do you think you will face repercussions?
You both talked about forced repatriation. Could you share with us more information or some examples of how that is conducted?
Mr. Therchin: Earlier I was speaking more in the context of not just one singular appearance and testimony, like today, but in general, when you speak out publicly on important issues like this. We know — I think everyone in this room would agree — that there is enough evidence of Chinese foreign interference in Canada.
For someone like us who speak on this issue, whom China considers as a threat to them, it creates a sense of a threat to us as well, knowing that there are Chinese police stations in Canada, knowing that they are infiltrating all levels of government, not just government, as I mentioned earlier, and not just targeting state structure, but targeting the diaspora community through transnational oppression.
China has created an environment of fear for everyone, not just activists. For activists, definitely, I do fear, although my family is here. I don’t have any immediate family members in Tibet, but I can speak for myself that, even with my family living in independent, free nations like Canada, I still have this fear.
A lot of Tibetans in Toronto and elsewhere in Canada have families inside Tibet. They won’t talk to you on any of these issues because they fear that, if they speak to you, their family in Tibet will have repercussions.
Senator Cardozo: Can you give us an example of how the forced repatriation is carried out?
Mr. Tohti: Let me pick up from there. Let me give you another example. I left my hometown in 1991. In my whole life, I did two things: I wrote things and I spoke things. Those are two basic functions of humanity.
For that reason, I am totally isolated from my mother, parents and all siblings for 34 years. No one from my family is able to come and see me in Canada, and I cannot go back. That is the price we have paid and are still paying.
There are many Uyghur Canadians, not only me, members of the Uyghur diaspora. I gave you an example of Hussein Jalil. He went to Uzbekistan, not China, on his Canadian passport. He was abducted there and smuggled into China and sentenced to a life term. The Chinese government did not recognize the Canadian passport.
You say repatriation? We are talking about a country that does not recognize your Canadian passport. As long as you were born in China, that is the basis of the repatriation. There are a lot of partners of China’s Communist Party around the world, Mafia groups and underground groups. One Hong Kong bookseller with a Swedish passport was smuggled into China. He appeared on TV and confessed his crimes.
The repatriation does not take place with normal legal procedures. That is how the Chinese government is operating.
Senator Cardozo: I would imagine some people face threats to return; otherwise their family members would be harmed? Is that a practice?
Mr. Therchin: Yes, that is a common practice. If you speak up here or in public settings or anything like that, being critical of the Chinese government, then you face that threat, and you have to take that risk.
If we do not speak up, that is exactly what the Chinese government wants. You are free here. Many of you are just living in this beautiful country because someone else before you paid that price for your freedom. If you do not speak up —
The Deputy Chair: Thank you, Mr. Therchin.
Senator M. Deacon: Thank you for being here, the three of you, all of you. Thank you for your stories. We are listening, and it’s very impactful, so I do respect the time you are taking to share them with us.
I want to come back to the concerns around FITAA, specifically the country-agnostic approach it will take. What I’m hearing is that the kind of interference that you’re experiencing means even if it were targeted, it wouldn’t require people trying to intimidate and influence you to register anyway. Is that correct?
Mr. Tohti: I didn’t get your question.
Senator M. Deacon: I’ll try it again. In looking at this whole country-agnostic approach that it will take, what I’m hearing is that the kind of interference that you’re experiencing means even if it were targeted, it wouldn’t require people trying to intimidate and influence you to register anyway.
Mr. Tohti: Probably Ms. Leung is in a good position to answer. Let me keep it short.
For an authoritarian regime like China, they find a way, anyway, even if you pass the registry. But the passing of the registry will send a signal, and it is one factor of deterrence. It is not the silver bullet that will solve everything. It is at least one tool, and we should have it. We have to have it.
Senator M. Deacon: Just before I go to Ms. Leung, to finish that thought, then, with what you’re saying, if we look at the information sharing powers being granted to CSIS under this proposed legislation, do you think the act goes far enough for the diaspora community in Canada? What kind of information do you envision receiving that could be important for you since it’s quite clear you’re being directly targeted by a foreign entity as it is?
Mr. Tohti: Any information is useful. For example, when the Chinese government delegation comes in and the number of times I was told by the officials in Global Affairs that there were talks about our activities here. The Chinese side raised this issue. Also, there are non-state actors, proxies, and their job is to monitor our activities and schedules. Otherwise, it is impossible for the Chinese government to know, with the 12-hour difference and the 5,000, 6,000, 10,000 kilometres away, what my schedule will be this morning.
Yes, there are a lot of proxies. At the same time, it is well connected, and the Chinese government has enough resources to manage all proxies and target the individuals and the dissent.
With the foreign agent registry, the registry alone doesn’t solve the whole problem, but at least it sends a signal. It places a deterrence factor. For that reason, CSIS, by passing that legislation, at the same time alerts us if there is any threat or if there is any possible threat. I should be aware if someone is following my car.
Senator M. Deacon: Thank you.
Senator Yussuff: Thank you, witnesses, for being here. I think telling the experience is really important, because it gives us a context to this legislation and how it might help.
Maybe I could start with Katherine Leung first. Recognizing that the repression in Hong Kong hasn’t ceased — as a matter of fact, I have friends who are in prison in Hong Kong right now as a result of their activities and, more importantly, speaking out against the regime. They were elected members of the legislature, and now they are in prison. It speaks volumes to the Chinese government’s long arm in holding those accountable.
I know most of you want to see the legislation passed as quickly as possible, but you have made some recommendations in regard to how we could improve the legislation from your experience. Do you think that it would give it the teeth that you’re looking for, recognizing the arm of the Chinese state is pretty strong and far-reaching in the context of having this proxy doing its work for it? Do you have confidence that even the changes you’re proposing will help diminish some of the interference that you have been seeing in the community across the country?
Ms. Leung: Thank you for the question. My central takeaway from looking at this bill is that it is a great first step, but it is not going to solve foreign interference. I don’t think that any bill can at this point because foreign interference is constantly evolving. It is clandestine. It is covert, and we have simply no way of knowing exactly what they are doing on Canadian soil. It will always be a response to new threats that come up.
That being said, I think this bill should pass as soon as possible. It would diminish some concerns in the community just knowing that Canada is taking this issue seriously, and creating a framework around it would reassure communities and, hopefully, alleviate some of the self-censorship that we see in Hong Kong communities especially.
There is always room for improvement, but I think it is very important that this bill is in place before the next election, because Canadians deserve to be able to elect a government without interference from another state.
Mr. Tohti: As I said in my opening statement, this bill is the first step in the right direction. If you look at the United States, they have a foreign agent registry, and they allow, for example, the Uyghur Human Rights Policy Act, and at the same time, the Senate already tabled the Transnational Repression Policy Act.
After we pass this bill, we should not stop with this bill. We should not be satisfied with this bill. We should move ahead to the next step, which is a transnational repression policy act, as our allies did.
By doing that, we can fill the gap. We can amend and improve the loopholes that existed in previous bills so we can make it better.
Mr. Therchin: I would echo both Ms. Leung and Mr. Tohti on this. Timing is of the essence here. As Ms. Leung said, if we could pass this bill before the next election. Although we did make some suggestions, including the definition of transnational oppression, but certainly I think there are a lot of good amendments proposed in the legislation, and I would support the passing of the bill at the earliest.
Senator Richards: Thank you all for being here. I will direct my questions to Ms. Leung, but anyone can join in.
When I was in Taiwan in October — I was fortunate enough to go with a group of senators — we went into this building where a group of kids, young adults, were fending off thousands of cyberattacks from China.
Have any of you been subjected to personal or intimidating cyberattacks while here in Canada? If you have, is the Government of Canada aware of this? Have you made them aware of this?
Ms. Leung, you can answer or anyone can answer.
Ms. Leung: Thank you for the question. I’m exceptionally fortunate compared to my colleagues because I have not experienced anything, or I simply have not taken note of it. I don’t know what it is about me personally that makes them not want to target me, but I have not been the target of these attacks.
I get the occasional phishing email. I get the occasional threatening comment, distasteful comments on social media, but there’s nothing that really makes me afraid. I have no personal experience that would compare with my fellow witnesses here today.
My colleagues at Hong Kong Watch have also received phishing emails and threats via email, but it’s nothing to the degree of what Mr. Tohti and Mr. Therchin were talking about.
Senator Richards: Could you answer that, sir?
Mr. Tohti: All the time, we receive cyberattacks, and online and direct phone call attacks all the time from China and outside. I can give you one notable example: We had a legal case against CBSA for failing to exercise its jurisdiction to stop the products made by use of forced labour. Before the official court hearing, my cellphone and computer, and our legal counsel’s cellphone and computer were hacked right at that time, so the hearing was adjourned.
There is another example. The Jewish, Toronto-based group, JIAS, wanted to have a fundraiser to sponsor a number of Uyghur refugees. They were on a fundraising campaign. That webinar or the online event was hacked and inserted instead was unacceptable pornography — just for a fundraising campaign.
It is a lot. As I said, I always receive those kinds of messages on Twitter and via direct phone calls. It is non-stop.
Senator Richards: And the Canadian government is aware of it?
Mr. Tohti: Yes, the RCMP knows about it, and CSIS knows about it. They don’t have any mechanism to address it.
Senator Richards: Thank you.
Senator Patterson: This bill also includes an expanded ability of CSIS to share information with diaspora communities. Do you think it will help? Do you think it goes far enough?
Ms. Leung: Thank you for the question.
I think any kind of information sharing will be helpful to the community. A lot of the time, we’re left in the dark about what we’re facing, exactly what the threat is and how we can counter it or take protective measures.
Transparency is a very important first step, because foreign interference is clandestine and covert. They operate successfully because we don’t know what they are doing. Sunlight being the best disinfectant, this is an effective first step for sure.
Senator Patterson: Thank you. Anybody else who would like to add more, please go ahead.
Mr. Therchin: I would like to talk about the information sharing. Some of the information is not necessarily discreet and confidential information, even the publicly available information. For example, in 2018, Tibetan origin delegates representing the PRC government from the Tibet administrative region came and testified before the Foreign Affairs Committee. That kind of testimony from the Tibetan region, appointed by the Chinese government, as far as my knowledge is concerned, has never happened in any other country except here in Canada. We didn’t know about them coming and testifying at the committee until just two or three days before; I saw it on Google. We didn’t receive any information about such people coming to the House of Commons Standing Committee on Foreign Affairs and International Development and testifying.
It was important, because what they were going to speak about was directly counter to what we have been saying in Canada for a long time. Basically, they were here to repeat the propaganda of the PRC about Tibet.
Senator Dalphond: My question is for all the witnesses, and I will, perhaps, start with Ms. Leung. Clause 53 of the bill amends section 20 — the foreign interference, intimidation and threats of violence. The word “intimidation” is being added. Do you consider this an improvement that could be useful? Maybe the issue is not necessarily legal; maybe it’s enforcement. I don’t know how you see it.
Were you part of the consultations for these amendments, such as that part of the clause 53 and so on of the bill?
Ms. Leung: Thank you for your question.
I will first tell you that I was not part of the consultations. Second, we do think adding “intimidation” to section 20 would be helpful. The more specific we can be about the threats, the better, but as I stated in my opening remarks, it would be necessary to add “discrimination” to that as well, because “intimidation, threats or violence” does not encompass all the transnational oppression that goes on. It surely will not encompass everything, even after we add, “discrimination.”
That is a significant tactic we have seen in the Hong Kong community specifically with regard to people losing their jobs or being evicted from their homes for their pro-democracy advocacy that they have undertaken in Canada, even after leaving Hong Kong.
We think adding “discrimination” is necessary, and having specific wording and language as to tactics of transnational repression is important.
Senator Dalphond: Were you consulted or part of the discussions about the new section 20 which we found at 53?
Mr. Tohti: We were not. Most importantly at least, there is a definition for a number of offences for the first time. The definition is not enough, in my opinion. It should be codified and incorporated into our Criminal Code after that definition is made, and whatever is being regarded as the crime or offence under our human rights ground, as we discussed, in terms of just discrimination on ethnic or religious background and things like that — all of them should be included or expanded upon in the transnational repression or foreign interference as well, because foreign interference, as my colleague said, targets specific people and specific groups on the basis of —
Senator Dalphond: It is a way to do intimidation.
Mr. Tohti: Yes, and so it should be included in our Criminal Code.
[Translation]
The Deputy Chair: We have time for a second round. I would ask for quick questions and short answers, please.
[English]
Senator Cardozo: In terms of the foreign interference registry that you have all been advocating for. How do we strengthen it? Some people who are bad actors will not automatically register. How do we get them to register, or what good is the registry if they don’t register?
Mr. Tohti: Ms. Leung highlighted a number of points, and I will add that the United States passed a foreign agent registry in 1938, and Australia, U.K. and other allies also passed similar legislation. Given that, if we look at the legislation, what is the advantage of this registration, how strong is it and how can we make our registration much stronger? Yes, it gives us a pretty good understanding of the amendment.
Senator Cordy: Ms. Leung, do you have a quick comment?
Ms. Leung: Yes, I do.
My understanding of the purpose of a registry is that bad actors won’t register, and with that, we have punishments, such as monetary fines or even prison time, for those who fail to register and are acting as foreign agents. The deterrent for foreign agents acting in Canada would be that they either come clean about what they are doing or they risk facing consequences.
Senator Cardozo: Okay, thank you.
Senator Housakos: We know that democracy flourishes when we participate and encourage it. I can tell you after a number of meetings with stakeholders — Canadians who have come from Hong Kong and mainland China, and Canadians of Persian descent — it always strikes me that, in a country like ours, after meetings and round tables, they don’t want to take pictures. They don’t want to be posted on sites, because they don’t want to face intimidation, both here and back home. It’s unbelievable in 2024 that you’re experiencing that.
In your opinions, in the last nine years, has the government done enough to protect Canadian citizens and their right to participate in democracy?
Mr. Tohti: Let me go first. When the first national media reported about me being followed by the Chinese agents, it was in 2007 in Maclean’s magazine. The headline of the article was “Beijing is always watching: Chinese-Canadians say spies have been monitoring and intimidating them.” It is now 2024, 17 years later.
It took a long time for not only the government, but the Canadian public, including elected and appointed legislators, to understand foreign interference, the Chinese communist party’s infiltration and the deep-rooted influence in Canada through business, academia, universities and several levels of government.
Even though I have many things to say and I don’t believe the governments, it took time, yes. At least now we are seizing the moment. We have to seize this moment and address this issue once and for all.
The Deputy Chair: That brings us to the end of our time with this panel. Thank you, Mr. Therchin, Mr. Tohti and Ms. Leung for taking the time to meet with us today.
The Deputy Chair: We now continue with our fifth and final panel today.
[Translation]
I would like to welcome our witnesses. We have the Honourable David McGuinty, P.C., Chair of the National Security and Intelligence Committee of Parliamentarians; the Honourable Senator Frances Lankin, P.C., member of the committee; and Alex Ruff, Member of Parliament for Bruce—Grey—Owen Sound and member of the committee; they are accompanied by Lisa-Marie Inman, Executive Director of the Committee Secretariat.
I welcome each of you. I now invite you to make your opening statements.
[English]
Hon. David McGuinty, P.C., M.P., Chair, National Security and Intelligence Committee of Parliamentarians: Thank you very much, Mr. Chair and honourable members of the committee, for your invitation to appear this evening as you examine Bill C-70. It’s my pleasure to discuss the perspective of the National Security and Intelligence Committee of Parliamentarians, or NSICOP, on this proposed legislation in light of the release of its most recent special report on foreign interference in Canada’s democratic processes and institutions.
This report is yet another example of a unanimous, non‑partisan review of the government’s response to a national security threat by a committee of security cleared senators and members of Parliament from all major parties and groups, which is why I’m joined — and am honoured to be joined — this evening by your colleague and my colleague, the Honourable Frances Lankin and, of course, Alex Ruff, the Member of Parliament for Bruce-Grey-Owen Sound. Lisa Marie Inman is also with us here this evening. She is executive director of the secretariat to the committee, and she is also available to assist if required.
Senators, we will be restricting our comments to the matter at hand this evening.
[Translation]
We are here specifically to help you understand the reasoning behind the committee’s unanimous findings and recommendations on certain proposals in Bill C-70. Our committee is uniquely positioned to assist you in this regard.
First, we have developed some expertise in studying this issue, as this is the third time the committee has looked at the government’s response to the threat of foreign interference in Canada. The committee first considered the issue of foreign interference as part of its 2018 special report on the Prime Minister’s official visit to India.
As for the 2019 report, it was a more in-depth look at foreign interference activities from 2015 to 2018.
Our latest study builds on these two reports.
[English]
Second, committee members have access to highly classified information that cannot be discussed in public. In other words, we have reviewed the intelligence reporting that points toward the need for this legislation. As such, we appear before you today not as policy-makers but as a committee with privileged insight into why the need for legislative reform is so critical and pressing. That said — as a reminder — NSICOP is a review body. There may be questions we cannot answer this evening given our mandate and our security requirements.
As with the 2019 review, the committee found that foreign interference in democratic processes and institutions is a sophisticated and pervasive national security threat that undermines Canadian’s democratic rights and the integrity and credibility of the parliamentary process. We wrote that interference activities in democratic processes and institutions targeted all orders of government, political staff, civil society groups, ethnocultural communities, community organizations, business persons and journalists.
In particular, the committee found that Canada’s legal framework does not enable security agencies and law enforcement to effectively respond to this threat. In other words, we have consistently noted there is a lack of robust tools to address foreign interference. This contributes to a situation in which there are few meaningful deterrents to foreign states and their Canada-based proxies to conduct interference activities. This makes Canada vulnerable.
For this reason, the committee’s first major recommendation of relevance to Bill C-70 was that the government addresses several specific legislative gaps before the next federal election and in five key areas.
First, the committee recommended the creation of a foreign influence transparency registry. Crafted carefully to avoid the stigmatization of ethnocultural communities and to protect Canadian rights and freedoms, the legislation should clarify what behaviours qualify as interference. It would serve both as a deterrent to agents of foreign states and would provide the RCMP with offences to investigate.
Similar legislation in allied states like Australia and the United States has proven to be a useful tool for police to respond to foreign interference. A foreign influence transparency registry would also support transparency — much like the current registry of lobbyists.
Second, Canada’s criminal law does not define or criminalize foreign interference. The committee recommended amendments to the Criminal Code and the Security of Information Act to actually do so. A key challenge for the security and intelligence community identified by the committee was the absence of an agreed-upon threshold for action. A clear and modern definition of foreign interference would help to clarify what activities do and do not qualify as a threat. That should ensure that departments develop standardized definitions of what constitutes a threshold for action.
Third, the Canadian Security Intelligence Service Act, or CSIS Act, is clearly and invariably showing its age. Of note, the act does not currently allow CSIS to provide classified information to parliamentarians or other orders of government. This makes it difficult to properly brief and warn parliamentarians and other orders of government. Difficulties also extend to sharing information with investigators who are not peace officers — such as electoral officers — to enable investigations, lay charges or support prosecutions. For this reason, the committee recommends modernizing the CSIS Act to facilitate the wider sharing of classified information, which is actually included in this present bill.
[Translation]
Fourth, the committee recommends that the government resolve the difficulties associated with converting intelligence into evidence. Intelligence agencies take great care to protect their sensitive collection techniques, confidential sources and information passed on by allies.
The committee identified a number of instances during its review where intelligence agencies withheld information from law enforcement agencies, including the RCMP and the Office of the Commissioner of Canada Elections, for fear that the information would be disclosed in court.
In the committee’s view, this is a very serious problem. We encourage the government to continue to consider other legislative options to fully address the issue.
[English]
Fifth, the committee reviewed troubling intelligence suggesting that nomination processes and leadership races are particularly vulnerable to foreign interference. This is a critical gap, because a number of electoral districts in Canada are considered safe seats for one party or another, and because the number of votes required to sway riding nomination is often small, they are a very useful avenue for foreign states to engineer the election of their preferred candidate.
While the Canada Elections Act imposes administrative penalties on fundraising by a foreign entity, Canada does not criminalize interfering in nominations or in any other political party process. For this reason, the committee recommends that the government reduce vulnerabilities in political nomination contests and leadership races.
We’re encouraged by the new influencing political or governmental processes found in this bill.
A second major recommendation of relevance to Bill C-70 is the government should also engage all political parties to determine whether party nomination processes should be included within the framework of the Canada Elections Act. This would mean party nomination processes would be subject to monitoring by Elections Canada and the office of the Commissioner of Canada Elections.
The committee also called for the government to work with Parliament to determine whether the mandate of the Conflict of Interest and Ethics Commissioner and the Senate Ethics Officer could be revised to include concerns regarding foreign interference.
Currently, foreign interference is not defined in the Conflict of Interest Act or in the Conflict of Interest Code of either chamber. As such, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Officer are not currently expressly empowered to investigate conflicts of interest linked, or potentially linked, to foreign interference.
In its third major recommendation of relevance to Bill C-70, the committee called on the government to review and renew national security legislation, strategies and funding to ensure these actually keep pace with the evolution of the threat and, colleagues, it is evolving. This is to ensure the security and intelligence community has the tools and the resources it needs to respond to the threat in a way that discourages future inference efforts.
This and future governments must also regularly include parliamentary review provisions and legislation. These statutory reviews are critical for identifying how Canada keeps pace with the threat. We’re pleased to see the five-year review provision included in the Canadian Security Intelligence Service Act amendments.
The government also needs to respect the review provisions set out in legislation and hear the members of the committee, NSICOP, are clear; we are including the review of NSICOP’s own enabling legislation in this regard. Letting them slip past their deadlines does not convey the impression that Canada takes its national security legislative framework seriously. All in all, Bill C-70 from the perspective of the committee is a good start.
In closing, I wish to say all of our reports are the result of the dedicated work of my colleagues on the committee and the outstanding staff at the executive who backstopped that work.
Since its inception, every single finding and recommendation in all 13 NSICOP reviews have been made entirely on a consensual basis between all members. This is due to all of our steadfast commitment to treating national security and intelligence as something that transcends the partisan arena. We treat all of these in a very non-partisan way.
On that note, we look forward to your questions. Thank you so much for your attention.
The Deputy Chair: Thank you so much, Mr. McGuinty.
We proceed now to questions. I remind senators four minutes will be allotted for each question, including the answer. I ask that you keep your questions succinct in an effort to allow as many interventions as possible.
Senator Boehm: Thank you, chair. Thank you, Mr. McGuinty, and fellow members of NSICOP, and Ms. Inman, for the report you produced.
Mr. McGuinty, in your remarks you mentioned other jurisdictions; I would like to pursue that with you, especially those that are in our own Westminster tradition. The Australians have had a registry since 2018. Legislation has been passed in the U.K. as well.
You touch on it, but this is new for us in Canada — including how to deal with the question of cabinet confidentiality. I appreciate there are things you can’t tell us. My top secret security clearance ran out a few years ago. It’s a difficult issue. It’s one I want to put out there. That is one.
The second one, is there anything that would impede, in your view, looking forward, to provide briefings and onboardings for new parliamentarians, whether in this place or the other, as they are elected or appointed? That does not necessarily have to be classified. It could be unclassified. It could set out the rules of the road, as noted in your report, for example, as to what the roles of diplomats accredited here are, how you should engage with them, that sort of thing. It’s a two-prong question, please.
Mr. McGuinty: Thank you for the question, senator.
We didn’t set out entirely on this journey to bring a comparative perspective in terms of what Five Eye partners or Westminster-style countries may be ordering their affairs.
We did find on a number of occasions that the U.K. and Australia were perhaps further ahead than we were in dealing with some of these things. I alluded to the fact there are criminal sanctions for example in both of those jurisdictions if you interfere with nomination processes. It is important for us, and important for you who will be looking at Bill C-70, and improving it, to draw on that experience comparatively.
As a general proposition, a committee would take a little exception with the notion that this is new to Canada. What we found is that this is not new to Canada, that, in fact, Canada’s been aware of this for decades. We, at the committee, feel it is now time to move with relative haste to catch up to other jurisdictions.
With respect specifically to the question of briefing parliamentarians, we have been raising the notion of briefing parliamentarians for five years. The review repeats that we have taken it to the Prime Minister and the centre of the government several times.
We have been asking for parliamentarians to be briefed immediately upon being sworn in and regularly thereafter in order for them to understand what foreign interference is.
Foreign interference is not foreign influence, for example. There are covert and other implications with respect to foreign interference. What is a co-optee? What is a representative or somebody representing a maligned state actor on Canadian soil? How do you protect yourself? What questions might you ask? What about your staff?
All that being said, one of the points we want to make early on through our appearance this evening is this: There is a rightful focus on Parliament and parliamentarians, but it’s extremely important for all of you to understand this review transcends Parliament, not just Parliament at the federal level, but provincial and municipal governments. This is a societal problem and challenge.
We have seen information that led us to write about the situation in the media business, our community associations and boardrooms. This is something which is omnipresent in Canada now.
With respect to parliamentarians, absolutely, we go back at it again in this review, calling on the government to brief parliamentarians. We note the Minister of Public Safety is taking some steps in this regard.
If this briefing were combined with new ethical provisions at the House and Senate level, that would go some distance in ensuring that all parliamentarians are fully aware of the risks.
Hon. Senator Frances Lankin, P.C., Senator, National Security and Intelligence Committee of Parliamentarians: Thank you. May I add that, of course, both chambers control their own processes around these things.
I have asked — since the 2018 report on foreign interference — for appropriate briefings of all new senators through Senate security. I have raised the issue with the Black Rod, to raise it on my behalf.
If any of you are on the CIBA committee, I would ask you, please, to consider raising it there. These briefings, and not just by our own security protective services, by CSIS and other agencies, I think is critical to senators and, in general, parliamentarians being able to do their work with their eyes wide open.
Senator Boehm: I would add staff to that as well. Thank you, chair.
Senator Kutcher: Thank you for being here and for the excellent work you are doing, not just this last report but all the work you have done, and reminding us about the propensity for Canadians not being fully aware of the activities of malevolent state actors and their ability to cause harm. This is not the Gouzenko Affair all over again, but it bears the same concerns.
In your last two reports, you have made numerous recommendations that could have been addressed in this bill. Mr. McGuinty, you commented on a couple of them. Which of the NSICOP recommendations that could have been added to Bill C-70, yet were not added, but which you think should be added? That’s the first question.
The second question: In your report you spent quite a bit of time raising concerns about the fact that the RCMP doesn’t have the capacity to address many of the emerging threat environments. Could say more about what would be necessary there?
Mr. McGuinty: Please forgive me because I can’t remember exactly what we said about the RCMP in this review. I know what we said in the last review that we did on the federal policing mandate of the RCMP, in which we pointed out to the hundreds and hundreds of officers that are lacking now to deal with the federal policing mandate challenges that the RCMP is struggling with. I think we saw a bit more from the Auditor General last week as well on that front.
There are two suites of things I think that we have to decouple in terms of what we said about in the review that applied to Bill C-70. The first are actual legislative recommendations. The majority of what we have put forward here in terms of legislative calls for action find themselves in Bill C-70, almost entirely or partly there. Then there are a series of recommendations that are not specifically legislative in nature. The ones that are specifically legislative — what we would call recommendation 1 in our review of four or five bullet points — we find that most of those are captured, but we would say this: We recommend the government define foreign interference in Canadian law to ensure a common understanding of what the threat actually looks like. This was not included in Bill C-70.
That would be very important because at this stage we can’t seem to find a foreign interference definition that transcends all different actors. For example, if you were to ask the police chief in Halifax what foreign interference was, you would be hard‑pressed to get a clear answer. If you were to ask one department over another, or one official over another, what foreign interference looked like, they would take you to a CSIS definition, but you would probably find confusion and misunderstanding. There was one area in which we thought it would be important. That modern definition would be very important to migrate into Bill C-70.
Some of the others that are not legislative in nature haven’t found their way into the bill. Those are some of the things I talked about like the role of the Ethics Commissioner. We think that’s important. Every year — I’m not sure about the Senate — members of Parliament have to fill in about a 20-page summary of disclosure documents. I went through it again — painfully — a couple of weeks ago. I didn’t see a single reference to foreign interference. I wasn’t asked to attest to any overt efforts to cultivate a relationship with me. I wasn’t asked anything. I didn’t have any place to disclose concerns. I dare say that if I were to pick up the phone and call one of the officers at the Ethics Commissioner’s office to say, “I think I have a foreign interference concern, can you help me,” I don’t think we’re going to get any information that would be helpful.
Those are some of the things that we called for, that didn’t find their way into the bill. Am I missing anything?
Senator Lankin: Yes. A couple of things. If you ask what is not in there, I’m going to refer to our recommendations. Recommendation 1 is the legislative actions, and as the chair indicated, we still require definition of foreign interference.
The engagement of political parties to look at the nomination process and determine whether the political parties are in agreement that it should come under the framework of Canada Elections Act. That’s a process that can be begun by any political party, but all of them need to be participants in that.
The chair just mentioned the ethics commissioners in both chambers. Some of the things are not legislative. So, ensuring that the roles, mandates and accountability of the National Security Council and supporting governance mandate structures, that’s something that has begun to be addressed. There continues to be work needed there, at least from the review period that we looked at. I can only speak from what is in our review.
Some things are just a matter of calling on the government to do it. They should immediately implement a report annually on briefings of parliamentarians on the threat of foreign interference. It’s just an accountability mechanism. Those things aren’t in the bill, but they are not appropriately centred within a legislative response.
Senator Kutcher: You would actually recommend a definition of foreign interference?
Mr. McGuinty: Yes.
Alex Ruff, Member of Parliament, Bruce-Grey-Owen Sound, Member, National Security and Intelligence Committee of Parliamentarians: I wanted to go further about what the RCMP and the police jurisdiction are lacking. This gets to the crux of the challenge. We laid out in the report in paragraph 153, which addresses the sensitive intelligence and evidence conundrum. How do you protect our sources or techniques that the security apparatus utilizes, our relationships with our foreign partners and our allies if that’s where some of this information is coming from? Ultimately, I would remind all parliamentarians and anybody that is impacted, we conclude in paragraph 164 that some of these actions on which we’re reporting may be illegal, but they are unlikely to lead to criminal charges, only to Canada’s failure to address the longstanding issue of protecting classified information and methods in the judicial processes.
Bill C-70 tackles the first part of how to share the information. In my understanding of the bill in its current form, I don’t believe it tackles how you deal with that second aspect that even if that information now gets to our law enforcement, whether or not it is going to be able to do that. That’s something I encourage this committee and all committees studying the bill to continue to look into.
Senator Yussuff: Thank you all for being here. Thank you for all of your hard work.
Mr. McGuinty, let me come back to you. I’ll use your own quote: “It’s a good start.” That’s not exactly a resounding cheer about the direction in which we are going. I appreciate your cautionary advice to us.
Given the diversity of our country — and we wouldn’t have expected this, but this is the reality today — we are now subject to foreign intimidation to a large extent. In terms of the context in which we examine this in a way that doesn’t perpetuate racism or stereotypes about these communities, do you think there is a deep appreciation of how we need to address this in a way that gives confidence to these communities, but equally to the security apparatus and how we go about doing the job? Does it create more harm while at the same time protecting the country’s security as we go forward?
Mr. McGuinty: That’s an incredibly important question. It is one that we struggled with, and one that we looked at very closely, which is why on page 13 of the English version of the review, there is a separate box that discusses in detail the notion of transnational repression. We found it warranted individual treatment. In it, we try to define what it is and how it is performed. We use a couple of cases to talk about exertion of control of an ethnic cultural community. We also wanted to debunk some commentary. For example, we worked directly on the question of what are called “police stations” in a number of urban centres in Canada. We defined that for Canadians to have a better idea what they are and what they are not. What they seem to be all about and what they do. Where are they located? What does CSIS assess they do? What did the United States do about these so-called police stations? What is the RCMP doing about them now?
This question of getting this balance right is extraordinarily important. One of the benefits of a Canadian context for this balance, Senator, which goes back to something Senator Boehm raised a minute ago, comparatively, Canada has a Charter of Rights and Freedoms. Other jurisdictions don’t. So, when we look for bespoke legislation, custom-tailored legislation for the Canadian context, it’s a smaller needle to thread because we have cherished rights, freedoms and protections that we all want to see upheld. This question of transnational repression is a new normal. It’s here. It’s arrived. We have seen it. We have defined it. It’s something we hope Bill C-70 will be able to reflect in whatever changes we make in dealing with foreign interference.
Senator Yussuff: If I may, you found something quite unique in the context of our parliamentary system. We’re talking about national security, which should concern everyone of us who are in the parliamentary system whether it’s in the House or in the Senate. Yet, for a variety of reasons, we can’t seem to come to a common consensus. This should not be a political issue, either in the House or the Senate, as to how we approach it, but more how we collectively work to ensure that we are doing our best to ensure the security of the country is paramount in the work we do as parliamentarians.
So how do we overcome that based on your experience working with your committee where it seems to have a consensus every time you put together a report? What would you share with this committee so we can learn? At the end of the day, in my view, other jurisdictions seem to have done this in a very interesting way, and we are still struggling to get from base one to base two of how we can work better as parliamentarians to achieve this common objective for the greater good of the country.
Mr. McGuinty: I think what allows us at our committee to be able to work this way is what I would define as nobility of purpose. There are just some things that transcend partisanship. I think the committee would obviously agree that national security is one of those things. We might even agree that climate change is another. Certainly, that’s my view. Some things ought to be removed from that partisan arena.
I think good faith and goodwill can go a long way in deliberations that are multi-party but also that are driven toward the good. I think there is a consensus now at the parliamentary level, and perhaps even at other orders of government level, and we highlight those in the review as well, that something better has to emerge from this process. Canadians are watching. They are very concerned. One of the things that we do at the committee is we feel we have an outreach and educative role to expose Canadians to some of the challenges. But we’re very encouraged, at the same time, with Bill C-70. We spent a lot of time in this review highlighting what the government has done in the review period.
We are also very clear about our assessment of what they have done, but there have been steps taken. Bodies like NSICOP have been created; like NSIRA; like the Critical Election Incident Public Protocol, which didn’t exist seven years ago; like the Security and Intelligence Threats to Elections Task Force, or the SITE Task Force, which didn’t exist; and other measures that are moving forward. But there is room for improvement. I’m always reminded of the old maxim from negotiation: when your negotiator comes to you and says, “I just can’t get any more; we’re at the end of the rope; we just can’t make any more progress” — and I know I’m talking to someone who knows a little bit about negotiations. The golden rule in negotiation, when your chief negotiator tells you that is simple: you change negotiators and start again until you get it right. So I think my colleague Alex Ruff can also add to that, and maybe both colleagues.
Mr. Ruff: Just quickly, your question is how we, as parliamentarians, can up our game on this. Recommendation 6, immediately start the briefings and annually report on it so we know who has been briefed and who hasn’t been briefed, and if you haven’t bothered getting briefed. It’s a way to hold people accountable.
The second thing, every single parliamentarian, in fact, I would encourage every single Canadian, read this report from start to finish. Maybe read it once every year, because there’s something in there that gets the message across. I think that’s the value. It’s not about us that helped author it. It’s the fact is that this is an issue that needs to be resolved, and you want to tone down the partisanship and up our game on national security intelligence. We all need to do a better job of educating ourselves on what the threats are, what the vulnerabilities are and how we deal with it going forward.
Senator Lankin: Very quickly, it’s something that one could lie awake at night thinking about. I agree with everything that Mr. Ruff said. What I would add is that I understand that in the first blush of reading this report and its contents, a bit of a shock value has taken place. And the response has primarily been, thus far, from inside both chambers of Parliament, a focus on parliamentarians — who, what, when, where.
I really need us as parliamentarians to look broader in our responsibility to Canadians. These are academics who are being interfered with; research projects; corporation decisions, community organizations; ethnocultural communities; the media themselves, who haven’t reported on the fact that they are also subject to foreign interference. These bigger issues should be a uniting force for all of us to get outside of the inside baseball that has been going on in the last week, I say with respect and I understand it. But there’s a broader horizon here. Let’s lift our eyes up and let’s get focused on how this is touching every part of Canadian society, and we need to get ahead of it.
Senator Housakos: Thank you, colleagues, for being with us today. The truth of the matter is that Parliament has failed Canadians, and thus far what we have heard from witnesses we have failed Canadians on all sides here. The truth of the matter is that while our Five Eyes allies around the world have passed legislation years ago, have put into place mechanisms and given tools to their law enforcement to deal with this — and in many instances our Five Eyes allies have charged people. There are people before the courts; there are people in jail.
Here in Canada, we’re having discussions about what the definition of foreign interference is. That’s a problem. And yes, this is a good bill and it’s a good step forward, but the truth of the matter is there was something called Bill C-51 in 2015, the national security act that was passed. The first thing that the current government did with Bill C-59 was to repeal and revamp it, to take teeth away from it.
We have had MPs calling for legislation as far back as 2019 for a similar foreign registry act. We dragged our feet. There’s a bill in the Senate, Bill S-237, that has been sitting there adjourned for three years, very similar to Bill C-70. None of my colleagues around the table wanted to speak to it.
These are serious concerns and questions, and you’re right, Senator Lankin, this isn’t a partisan issue, but we have done nothing in order to address a very serious issue. And the question is: Why has it taken so long and why is it that we’re allowing in our country for all roads in terms of national security, to lead to the Prime Minister’s Office and he decides what is made public and what isn’t, and he decides when it is?
NSICOP is a parliamentary body that is shrouded in secrecy at every step, and the answer is always, “We’re dealing with sensitive national security issues.” But you know what Canadians want to know: how are we dealing with them and where is the accountability?
So when our colleagues are being named, they are not being named because of anything we did in Parliament. It’s because some public servants at CSIS got tired of the inertia and leaked this information. It’s the only reason we’re having this debate. So the question I have, because you have been dealing with this, what do we need to change in our parliamentary structure so we can have more transparency and more accountability?
Mr. McGuinty: Thank you, senator. A couple of things. The committee was very clear in calling out the government for a slow reaction to a lot of these issues. Paragraph 175:
The slow response to a known threat was a serious failure and one from which Canada may feel the consequences for years to come.
Like every word, sentence and paragraph in this review, those are deliberately chosen words.
We talk about the need to act now. We talk about the need to act swiftly. We talk about delays. We talk about the government being slow to do; slow in terms of different delays.
It’s important for Canadians maybe to come up to speed — even parliamentarians to start coming up to speed more with the notion of classified information, intelligence, how it doesn’t always amount to evidence. There’s truth to that.
This conundrum of moving intelligence into the light of day and criminal justice proceedings — not easy. As I said earlier, this is something — I’m not here as an apologist for any government. Mark my words, I’m just not. We are not here for this purpose. But I remember 20 years ago when I was first elected, the discussion about creating an NSICOP-like structure. First it was Mr. Easter; then it was Mr. Martin; then it was Joyce Murray, my colleague; and finally it was Mr. Trudeau who in third-party status said, “We need some kind of mechanism like NSICOP to be able to deal with this.”
I remember going to Prime Minister Harper and asking him if he would not consider. At that time, he was not open to it at that stage. Perhaps he would be today. I suspect he would be.
I don’t think it’s a question of blame here. I think it’s a question of all of us coming together now to act quickly and swiftly. Bill C-70 is a wonderful first start. It’s capable of improvement. Counting on you good folks to make it better. That would be my initial reaction to the timing.
For clarification of the record, I think you alluded to the question of redactions. I want to break this to everybody: The Prime Minister doesn’t sit at a table with a black marker and stroke off parts of the review. This is all conducted technically through four established clear criteria in the law that creates NSICOP. The government can only redact for certain purposes. It is predicated on section 38 of the Canada Evidence Act, and there are teams of experts in the federal government who do this.
We have been through this 13 separate times, so we have a good idea of how it works. It is predicated on removing material that would be deemed to be injurious, but on four specific grounds. It’s not something that is either random or simply politicized. Frances Lankin and I can tell you — having been at NSICOP since the beginning — that we cannot remember an instance where the government has tried, in any way, shape or form, to politicize the work — certainly the written review work of the committee. Senator Lankin?
Senator Lankin: Yes. It is important for us all to keep that in mind because a lot of assertions and allegations are being made about this that has inadvertently misled the public about the process. Things are redacted on the grounds that are contained in legislation. The services in the security intelligence community, the committees — whether it be NSIRA or NSICOP — are bound by those provisions.
I think people have talked a lot — and, Senator Housakos, you talked about this — about lack of prosecutions. Sometimes people roll their eyes a bit, but the intelligence-to-evidence challenge is a real one, and it’s different than in other countries. I think most of us cherish a Charter of Rights and Freedoms which protects individual citizens. Its interaction with the courts of law and how evidence is disclosed to the accused, et cetera, are all important aspects of this. Furthermore, not betraying sources and tradecraft are important concepts for us to understand with respect to what’s injurious to our country’s interests.
Before coming to this chamber, I was on the Security Intelligence Review Committee, the predecessor to NSIRA, and we raised a number of these issues at that time. This is a long time coming, but when things arrive, sometimes there’s a moment and an opportunity. That’s why I now make a plea to step up and above and find a way to move this forward. It’s not just about moving it quickly and urgently. These things are all urgent. It is about doing the work to review and understand: Does this bill get it right?
The chair has alluded to this, but, as a review body, unlike our committee counterparts in Australia, we are not a legislative committee that reviews legislation. We will make recommendations, but it’s up to the government and Parliament to determine if the provisions, as set out in any proposed bill, are appropriate or going to do the job.
Mr. McGuinty: If I could, Senator Housakos, I want to come back to the question of leaks. You are right. We stipulated about it clearly in paragraphs 165 and 166. First, we completely decry the notion of leaks. This is not whistle blowing. This is an illegal act. You’re not a patriot. You’re not a whistle-blower. You’re actually contravening the law. We talk about that clearly, but we also say that we acknowledged an uncomfortable truth. I will read it:
Prior to the leaks, there was little sense of urgency between elected officials and senior decision-makers to address outstanding gaps to this important and well-documented threat to national security.
The leaks were the principal catalyst. That’s unfortunate, but here we are. And so what we’re saying now is we’re here. This has been out. We don’t believe in leaks. We think it’s actually quite dangerous for our security and intelligence apparatus and the folks who work there, but you are right to stipulate that this has been something that has catalyzed action and is unfortunate.
Senator Patterson: Thank you very much for this report. I do believe it is absolutely critical for Canadians to have it available to them. Senator Lankin, I agree with you that you need to focus beyond parliamentarians and the processes of Parliament, but we cannot forget that one of the objectives of foreign interference is to undermine confidence in democracies, and to implant their wishes in places where democracies don’t wish to have them. I’m going to come back to your comment about holding people accountable within the parliamentary world, within parliamentarians, and even within the Senate under section 48(4) of the Ethics and Conflict of Interest Code for Senators. The Senate Ethics Officer can — and I’m going to quote this again:
(4) In carrying out an inquiry, the Senate Ethics Officer has the power to send for persons, papers, and records, which powers may be enforced by the Senate acting on the recommendation of the Committee following a request from the Senate Ethics Officer.
I do believe that Canadians want to know and want to have some process shared that people that when you have made allegations of parliamentarians being involved in these activities that they will at least be looked into.
My question to you for both houses is this: Is there a way for Senate ethics or House of Commons ethics to request a copy of the report to quietly look at the behaviour of certain senators or parliamentarians should this be true without exposing them to the public?
Senator Lankin: I could weigh in but do you want to take the first response to that?
Mr. McGuinty: I thought you were going to say that question’s so easy even the chair could answer it.
That’s a very difficult question. At NSICOP, we’re not seized with the responsibility of the dissemination of information, or what backstops the review. We are not the owners of the intelligence. We are neither the collectors nor the assessors of that intelligence. That’s a question I think better put to the government as to whether they are in a position to share. I think you are implying the unredacted version of the report?
Senator Patterson: Potentially, but I would suggest that your committee is the owner of the report.
Mr. McGuinty: Yes. Now I’m really going to turn to the smart person and ask Lisa-Marie Inman to answer. She can tell us more about that.
Lisa-Marie Inman, Executive Director, Secretariat of the National Security and Intelligence Committee of Parliamentarians: I think you’re right, it’s a question typically directed to the government. The committee produces the report, but the committee submits its reports to the Prime Minister and to the concerned ministers per our act.
Senator Patterson: Has the committee recommended to the government that there should be a follow-up of some type to this? Both in your report and in the publicity that’s come out, we have talked among ourselves that it may not be a criminal act, but we are self-regulating and this needs to be looked at. Has a recommendation come from the committee that the government should be sharing this in a confidential fashion with the appropriate ethics groups?
Senator Lankin: Recommendation 2 calls on the government to “engage political parties” — so they must be involved as well. We need to talk about both chambers with respect to nominations, which I’ve already mentioned, and the Canada Elections Act. It continues:
. . . and work with Parliament to determine whether the statute governing the Conflict of Interest and Ethics Commissioner and the Senate Ethics Office be revised to include foreign interference.
That’s an important precursor to having the ethics officers in either chamber take action with respect to complaints that may come forward on this basis to be able to determine what access they might have to information. You can see that there are efforts in this bill to allow CSIS to share more information, but I also come back to the point that the chair made and that I believe MP Ruff referred to as well in terms of responsibilities of parliamentarians. You can’t be responsible if you haven’t been told.
The briefings of parliamentarians upon arrival and on an ongoing regular basis is the wake-up call that I think all of our colleagues will appreciate that with respect to understanding if somebody approaches you, should you be suspicious of it? There have been a lot of comments about the words “witting” and “unwitting.” We need to be witting, but we can only be witting if we have been briefed and informed. I think that’s a critical first step which relates, Senator Patterson, to your question about the ethics officers and the committees that serve them.
Senator M. Deacon: Thank you for being here. Thank you for not only this report, but all your reports. They are outstanding whenever we get them, and it is always interesting to see the conversion to action.
I have been thinking about the Foreign Influence Transparency and Accountability Act, or FITAA, and what its intent is. One thing it will do is create a list of entities and individuals that law enforcement will have to monitor, maintain and enforce.
Our earlier witnesses today expressed concerns about resources needed to do this right and do it well. In the sanctions study we did in the Standing Senate Committee on Foreign Affairs and International Trade, it was widely said that the sanctions regime was compliance-based, to quote witnesses. There have been so few prosecutions that as a practical matter, the regime depends on entities and individuals being aware of their obligations and acting accordingly. That’s what was said during our conversations.
When I look at FITAA, I worry that we might go down the same road and not allocate the required resources to see it enforced well. Is it your understanding that this list will be compliance-based, and if so, how effective do you think that will be?
Mr. McGuinty: Is it acceptable to say that I have no idea?
Senator M. Deacon: Sure.
Mr. McGuinty: I have no idea. This is not an issue that the committee explored or looked at carefully, but we’re certainly going to take careful note of it.
I’m trying to remember within the 98 pages whether we bore down on that, and I don’t think we have.
Senator Lankin: We did look at other jurisdictions, and I give the caveat again that we have all given, that this is a different country with a different structure constitutionally and charter. The foreign interference registry has in other countries and in their systems offered opportunities for law enforcement to take action when someone should have complied and/or didn’t comply with the foreign registry requirements. An example in the United States would be where the U.S. took steps to shut down the People’s Republic of China, or PRC, community police stations. That’s a very good example. The RCMP is doing their work with respect to that but in a different context, because we don’t have that registry.
In terms of evidence, approaches, potential sanctions and enforcement, it can be of help. But basically, yes, it is a compliance-based approach, like our lobbyist registry.
[Translation]
Senator Carignan: Thank you, Mr. Chair. I want to follow up on Senator Patterson’s question and clarify something. I am a member of the Conflict of Interest Committee. Our code of ethics already provides for that. We don’t need to amend it, as the code states very clearly that we cannot contribute to espionage activities. We have fairly broad provisions in the code of ethics that include this kind of offence and that provide for penalties to be imposed on a senator who behaves in this way.
The problem right now is that we don’t have any names. The ethics counsellor has no names. So it’s impossible to investigate and penalize repressive behaviour. Minister LeBlanc says that if party leaders had names, they could at least not sign certain candidacy submissions and discreetly put them aside, but we can’t do that with senators, as they are appointed until the age of 75. That’s why we have a code of ethics that enables us to impose penalties.
I am of the opinion that it is absolutely necessary to publish or find a way to send the names to the ethics counsellor so that a proper investigation can be conducted on senators suspected of wrongdoing.
Second, I’m surprised by your response to my colleague, Senator Housakos. You didn’t talk about potential improvements to the system. Your report states that the Prime Minister wasn’t the one who carried out the redactions. I find this concerning. The legislation states that the Prime Minister is the one who can do them. If someone else did them, we already have a problem.
Let’s just say that the Prime Minister carried out the redactions. All sorts of factors come into play here. We can see that, for political reasons, some information didn’t reach the Prime Minister’s Office. You criticize a number of actions, including the Prime Minister’s omission and slowness. You don’t pull any punches or beat around the bush, as some people put it.
That’s fine, but you aren’t proposing any changes to limit this power or remove it from the Prime Minister. Instead, you’re giving that power back to yourself so that you can make this assessment. I’m surprised that you don’t make further recommendations regarding the structure in order to limit the power of the Prime Minister and the minister. We see this power used for political purposes. However, you state the following in paragraph 160:
… senior officials have requested that intelligence agencies pull back published reports because they believed the information was too politically sensitive.
It’s no longer about national security. It’s about politics. This shouldn’t be the case. I’m looking at the list of countries that you included. One of them has three asterisks. Can you identify this country for the sake of the public interest, so that I can let my guard down on that country? Iran, okay. India, okay. We’re being careful. However, which country is the three asterisks? I don’t understand why this country isn’t identified. The Prime Minister decided not to identify it. Why?
Mr. McGuinty: Before giving the floor to Mr. Ruff, I want to be perfectly clear. The Prime Minister doesn’t carry out the redactions. I can assure you that, on the contrary, during my meetings with the Prime Minister before the report was tabled in both Houses, at times the Prime Minister personally intervened to push senior government officials to increase transparency and identify countries, for example. The Prime Minister’s Office doesn’t review information and redact —
Senator Carignan: Subsection 21(5) of the act states that the Prime Minister may —
Mr. McGuinty: Yes, he assigns the responsibility to his senior staff, the Privy Council Office, Justice Canada and the agencies. We work closely with all the players in this area. I just wanted to clarify the redaction issue. I’ll ask Mr. Ruff to answer the other questions.
[English]
Mr. Ruff: To build on what Mr. McGuinty said — and I’m 100% in agreement. The Prime Minister is not redacting anything. It’s the process that we go through that allows those redactions to occur to protect national security, national defence and mainly international relationships, if you want to talk about countries.
The criticism that you’re rightly pointing out and that the committee has pointed out in its report about lack of information getting to the Prime Minister, that’s not lack of our report getting to him. That’s lack of intelligence and previous reporting that the intelligence community has provided, and rightfully so. That’s why we flagged it.
There’s been nothing redacted from this report that was redacted for political purposes. It’s redacted for legitimate national security, foreign relations or national defence reasons.
To get to your question about what the solution is going forward, it really wasn’t our mandate. There’s plenty of opportunity. That’s what I think Parliament needs to be seized with, and it’s something that if you expect this committee to take a greater role — we mention this committee’s review was supposed to start a few years ago, that five-year review. If Parliament thinks this committee can play a role, or a different function needs to be done — and that’s why Recommendation 2 states that the government should be involved in that process of talking to the political parties about how to tackle this issue of dealing with things that maybe aren’t of a complete criminal nature but are things that need to be addressed. Maybe that’s a different organization or body, and as we have suggested in our report, you can look at the different —
[Translation]
Senator Carignan: I don’t want to argue with you, Mr. Ruff, because we aren’t in caucus. If we were, I could argue more.
Mr. McGuinty: Go ahead.
Senator Carignan: The committee’s mandate is to review the legislative and regulatory framework. If something doesn’t work within that framework, you need to say what might work. Your job is to look at that.
[English]
Senator Cardozo: Thank you very much for being here to talk about your report and thank you for the work you do. It is always encouraging and enlightening when there’s a situation where people across party lines work together, especially for the sake of national security.
My question is on your first recommendation about the registry. A lot of people and communities have asked for this for a long time. I want to ask you whether we might be expecting too much of it in the sense that bad actors who are here to do nefarious things will not be anxious to sign up to be on the registry. How do we get the best out of the registry, despite that?
Mr. McGuinty: I don’t think the committee is suggesting — and I don’t think you are either, senator — that the registry is the panacea.
Senator Cardozo: Right.
Mr. McGuinty: It’s not the answer to all these things. It’s something in the arsenal of responses available to Canada.
We think there are a few helpful things that will flow from the registry. The first is that it will provide clarity about what is and isn’t foreign interference. If any of you were to sit down with colleagues from the Senate and ask them about the difference between foreign influence and foreign interference is, you’d be hard pressed to get a clear answer. That’s okay, because it’s not part of our normal nomenclature. We think that clarity would be helpful.
It’s also important because the registry will provide clarity with respect to our expectations around behaviour and foreign interference. That’s not set out anywhere for folks. It’s something that my good friend, the senator from the CLC, as I like to refer to him — thank you for your indulgence — we worked together for years. Forgive me, I’m just kidding, Senator Yussuff.
Senator, you asked a question earlier about the sensitivity around our diaspora communities. We think that the foreign influence transparency registry has to be carefully crafted to avoid the stigmatization of ethnocultural communities and to protect Canadian rights and freedoms. These are cherished rights and freedoms that are hard fought and hard won, and so we think it will go a considerable distance.
The beauty of this is, as our two colleagues on the other side of the room alluded to earlier, we’re late to this dance, but that allows us to draw on the comparative experience from other jurisdictions and to perhaps design our way forward on this registry in a way that picks up on their learning going forward.
Senator Cardozo: Thank you.
Senator Dean: Thanks for joining us and for another terrific report. It’s honest, it’s transparent, and it’s accessible. It’s a really good read. It’s important, of course, that it has named and articulated transnational repression, and you also use the opportunity to name the major threat actors engaged in foreign interference currently. Alongside that, you note that over the last two or three years, what I’m going to call “the league table” has shifted a bit and some people have moved up and some people have moved down, and there’s a little bit of a surprise there.
The question for you is that some witnesses have suggested to us today that the government should follow up on that and actually name the major threat actors in the legislation. We know that a lot can change in five years, and it already has in a couple of years. It seems to me that the government or security agencies could regularly communicate publicly whom the main actors are without embedding that in legislation that would be rigidly in place for the next five years. Do you have a view on that?
Mr. McGuinty: No. The committee doesn’t have a view on that. We haven’t examined the question of the immutability of naming or not naming foreign state actors. We reflected what we saw in the review period in terms of a hierarchy of involvement in the practice of foreign interference.
Can that change? Yes, it can change. It has changed in the past; it will change in the future. I think we can be pretty sure of that. The geopolitics of the world will change.
I’m not sure if we can add much to that, senator. I don’t know whether naming states would be a solution to this. I think it might be rapidly outdated. What do you think, senator?
Senator Lankin: I think it might be rapidly outdated. With the right caution, you could consider another mechanism, and parliamentarians should consider another mechanism.
I would just refer to the question of, I think, Senator Carignan about the names of state actors that have been redacted. There are reasons for those redactions. You can pick which one you want out of the ones set out in the criteria in the legislation. That will remain a challenge for governments, even if there is another process for issuing a list. It is the right question and one of the things that both chambers needs to be seized with to consider the best way to provide Canadians with an update of this information.
Senator Dean: Thank you.
Senator Dasko: Thankfully, most of my questions have been answered. Speaking about rapidly outdated threat actors, there is an American election coming up. Anyway, I won’t go there.
Mr. McGuinty, you earlier stressed the importance of, I will call them “winnable” ridings, or ridings that a party has that are very safe for them. You mentioned the fact that foreign interference has tended to be found in these kinds of ridings.
Some of the recommendations from your report have found their way into the bill, but at the same time the monitoring of nominations has not. I would like your thoughts on this. Doesn’t this actually say it’s important, and yet it hasn’t yet made its way into the legislation? Is this a real problem for our system going forward? We are going to be having an election a year and a half from now, and if we are looking at a whole process that is not actually covered — and other processes too. Leadership races are not included in the legislation, and there are a number of aspects of the political process that your report does mention that has not made its way into the legislation. I would just like your thoughts on that and if this will create a real deficit of security and foreign interference continuing.
Senator Lankin: I will jump in and say two things quickly. The legislation does include a provision that talks about influencing political parties and government, so there is a provision there.
The specifics with respect to nomination and leadership races are really important. Our recommendation was not that they include it in the bill, it was that they engage the political parties in determining this. I think the House of Commons, at the very least, if not right across Canadian society, would explode to think that one government of one political stripe imposes the system on all the political parties without the right kind of consultation coming together.
There is a role for parliamentarians and political operatives, in the best sense of that word, to take responsibility for the processes that have been identified through intelligence, but specifically here today by this committee, as wanting in terms of the need for protection. Those political parties have to come to an agreement around that. It won’t be imposed by a parliamentary committee or by a government alone.
Senator Dasko: Are you saying they should do the monitoring themselves?
Senator Lankin: No. I’m saying they need to determine — our recommendation very specifically — let me just read it, and it is the second recommendation:
The government engage political parties to determine whether party nomination processes and leadership conventions be included within the framework of the Canada Elections Act. . . .
We say, “Here’s one possibility,” but you have to determine whether that’s the appropriate way to go, and all the parties need to be engaged and come to an agreement on that.
I would say that if people want action quickly, given what you’re saying about this being imminent, then the parties should be coming together as we speak to get this piece of work done. In addition, if there is agreement on what the legislation should look like, if it’s the Canada Elections Act, then that could be brought forward in the fall and acted on quickly.
Senator Dasko: In any case, I’m very skeptical that the parties would want to have this monitoring done by the Chief Electoral Officer, but that’s my take on it. Thank you.
Mr. McGuinty: If I could, Mr. Chair, one of the encouraging things in Bill C-70 is that clause 53 provides for an offence of influencing political or governmental processes, and included in the definition of “political or governmental process” is the nomination of a candidate.
Senator Dasko: Okay.
Mr. McGuinty: It goes some distance already, and perhaps it can be expanded and built upon in terms of some of the recommendations we have made.
Senator Dasko: Thank you.
Senator Dalphond: My question will be exactly on clause 53 of the bill, so a good introduction. This was amended to add the word “intimidation,” and we heard from witnesses that came before you today about this transnational repression and all these people who live in communities here are subject to coercion and threats, especially those who still have relatives in other countries.
Do you think that this clause 53 addresses the issue properly? Some witnesses have suggested we also add the word “discrimination” on top of “intimidation.”
Second question: Even if we have the perfect wording, isn’t the problem its enforcement? I guess that means that the police force, regional police, provincial police and Crown attorneys, and all these people involved in the investigations and then after that on charging, have to be fully briefed about what transnational threats are. I think it’s there that maybe this can — and share some information, not necessarily exact information that leads to the — find the traces, but to explain how it works, the schemes and everything else.
I look at domestic violence, and it took about 20 years for the police officers to understand what it meant, and then to act. Maybe CSIS should also be involved in that, in training police forces about that. I don’t know what you think of that.
Mr. McGuinty: That’s a series of important questions, senator, not many of which we have addressed in the review. The review speaks for itself in terms of what we said around nomination processes and leadership conventions.
We did highlight two case studies. One was the Han Dong case study, and the other was the question of foreign interference in two Conservative Party of Canada leadership races. We have gone exactly as far as we can in terms of informing you and Canadians about what might have taken place.
As I mentioned earlier, Canada does not criminalize interfering in nominations or other political party processes. This new Bill C-70 will go some distance. We are hoping that through the Bill C-70 process, and perhaps beyond, we will simply reduce vulnerabilities, because we came face to face with the troubling intelligence that suggests that nomination processes and leadership races are particularly vulnerable to foreign interference. They are outside the ambit of federal regulation or oversight, and it may very well be time for an adult conversation about how we can make them tighter so that Canadians can have more trust and confidence in the process.
I wish I could give you more insight to the questions you have raised. I don’t think we are able to do that right now in terms of what we looked at.
Senator Lankin: I have one thing to add.
Mr. McGuinty: Please.
Senator Lankin: Thank you. Just to add, you’re also speaking about witnesses you heard from, perhaps community organizations, diaspora communities, and whether or not the wording here needs new wording like “intimidation,” and “discrimination.”
As the chair has said, we’re a review body. We review the framework, which is our mandate under the legislation. We don’t review legislation. We make recommendations. It’s your job to figure out whether the words are the right words or not, and we have not, as a committee, done that work and do not have a common point of view that we could express on behalf of the committee.
Senator Woo: I am interested your call for a clearer definition of “foreign interference.” In fact, there is a good working definition that I’m sure you use as well. It came out in the Public Inquiry into Foreign Interference, or PIFI, report, and CSIS and CSE, both have their definitions. You know it’s to do with threats within or involving Canada, coercive, covert, and/or deceptive, and which affect the interests of Canada. Is this a good working definition? I’m interested in why you wouldn’t want to put that forward, because it seems to be what many people are working with already.
Mr. McGuinty: Sorry. The definition provided by?
Senator Woo: CSIS and CSE have a very similar definition.
Mr. McGuinty: Yes.
Senator Woo: Essentially, coercive, covert, deceptive, affecting individuals or Canada’s interests.
Mr. McGuinty: The question is does the committee support the notion of the definition of “foreign interference” as —
Senator Woo: It’s widely used already.
Mr. McGuinty: Right.
Senator Woo: Is this something that you would be comfortable with?
Senator Lankin: We did not examine the wording. What I can say to you is that it is not universally applied across all of the security and intelligence, or S&I, community.
Senator Woo: Correct.
Senator Lankin: And that’s important, so getting consistency. Putting it in legislation so it’s also publicly available in guiding things like the definitions under security of information or under the foreign influence transparency registry is really important.
It’s not your exact question, but in the report, we do refer to what we think is critical about having a common definition across the S&I community and law enforcement and defence, all of that, and the same or a common understanding of the thresholds to be met for something to be considered foreign interference as opposed to foreign influence, and those thresholds are not the same. In that lies a huge gap. We haven’t solved that problem. We recommend that government and Parliament solve that problem.
Senator Woo: If I could ask a different question. Something we learned from PIFI, and particularly the hearing — the witness testimony from the SITE Task Force, as well as the panel of five — is when they receive certain bits of intelligence from the respective S&I agencies, they often applied their own kind of judgment, kind of broad knowledge of what they know the world to be, and they rejected some of this intelligence because it was not plausible, it was not persuasive, it was not credible, there were inconsistencies, some of the information they felt was simply wrong, and that’s why they didn’t sound the alarm. You know the story very well.
Is this something that the NSICOP does as well when you look at the intelligence that’s given to you, or is that not part of your protocol?
Mr. McGuinty: Just quickly I will respond, and then I will ask Mr. Ruff to chime in. It is something we do look at, and we are one of the recipients of the evaluations of the critical election protocol process post-election, and so we get it. It’s usually performed by a third party, and then the review comes to us. We examine it. We make comments and provide some feedback.
We’re aware of that. We’re also aware of the difficulty internal to the group of five in terms of a core and transparent understanding of where the threshold is. At what point is the threshold met or exceeded, and call on the group of five to inform Canadians that we have a problem here in this election?
Up to this point, according to the folks who have done the third-party assessments, they have not come to that threshold, but I think Mr. Ruff can also add a few points here.
Mr. Ruff: This is why we have Recommendation 5 in here. We are calling for those clear definitions around thresholds. This is an issue we looked at very intensively throughout the study, throughout the review, on numerous issues, and that’s why you see that whole idea of what the threshold is, the different challenges and the differences and how it was interpreted to include how it impacts nomination races, federal elections and anything to do with our democratic process is in institutions. We need that threshold clarified, in the committee’s view, because Canada needs it clarified so that people understand who has a duty to report what and when. That does need to be cleared up.
Senator Woo: I agree. I think Commissioner Hogue is going to be working on that as well, and we look forward to seeing what she will come up with, but my question is slightly different.
Do you actually question the accuracy and credibility of the intelligence itself, where something is said that does not ring true to you, or do you take it at face value? What I understand from elections work is that sometimes the officials will look at it and determine it doesn’t ring true. The analysis seems to be flawed — it doesn’t seem to add up. Do you do that kind of thinking in your committee? Are you able to?
Mr. McGuinty: Ms. Inman, can you take a crack at that?
Ms. Inman: I can. I’ll speak from the perspective of the secretariat. Really, we’re the body that deals with the agencies and departments that provide information. On behalf of the committee, we will determine what the committee is asking for, go out and ask for information, get it back and present it to the committee, but neither the secretariat, nor NSICOP, nor the committee, is an intelligence collector.
Senator Woo: Okay.
Ms. Inman: It’s not a collector. It’s not an assessment body. NSICOP reports —
Senator Woo: You take it at face value?
Ms. Inman: To a degree. I would say the NSICOP reports set out what was known or what was reported — this is what was available to decision makers at the time, and this is how the government responded or decision makers responded to what it knew.
Just as a note, the committee’s report set this out in a note to readers as well, just to set out that in particular scene-setting chapters or in the narrative, the committee really tried to set out the intelligence that had been reported about the event, later assessments of that intelligence and the information that the committee had received in classified appearances.
Senator Woo: That’s helpful. Thank you.
Mr. McGuinty: Thank you, senator.
[Translation]
The Deputy Chair: Before we move on to the second round, Mr. McGuinty, I have a question for you. CSIS’s suspicion of foreign interference isn’t necessarily forensic evidence. Far from it, at times. The people who engage in harmful interference often do so on behalf of large foreign powers and operate in the shadows and in secrecy, of course. How far does a registry go to protect our democracy? How could the information gathered by our intelligence services be used to prevent the election in Canada of people who might be on the payroll of a foreign power, for example? I imagine that this is the starting point for this bill.
Mr. McGuinty: That’s an extremely tough question.
The Deputy Chair: I usually ask tough questions.
Mr. McGuinty: You wait until the end of the meeting, too.
We took a somewhat distant approach when it came to determining whether to create the registry. I don’t know whether I have anything else to add. Our comments on this topic are included in the report. We think that the registry will play a significant role in helping to define foreign interference and determine what remains unknown. It will establish basic data and help people understand what constitutes acceptable and unacceptable activities. Is this a definitive solution? No. It’s an option and a tool to help us. In our opinion, along with other tools, it will help clarify the situation and counter foreign interference, of course.
The Deputy Chair: You can put it in writing, but I think that there isn’t time.
[English]
Senator Housakos: We’ve spent a considerable amount of time right now, colleagues, talking about what hasn’t been done in terms of foreign interference and what needs to be done, but there’s the here and now. The truth of the matter is we know that when it comes to national security and foreign interference, the buck stops with the number one guy in government, and that’s the Prime Minister.
The law is also clear. He might not decide in detail what’s redacted and what’s not redacted, but he signs off on all national security briefings, and he is cognizant, if he wants to be, of all information that is brought to his attention.
The debate for me is not whether he’s the one who has redacted these reports or not. The debate here is thanks to the leaks from frustrated employees at CSIS, we are aware right now that, wittingly or unwittingly, there are a number of parliamentarians who have engaged in foreign interference.
The question remains: What has the Prime Minister done to alert the parliamentarians who unwittingly have been used in this foreign interference so they can take measures to prevent this in the future? And what has the Prime Minister and the government done with the members of Parliament who wittingly engaged in foreign interference?
The truth of the matter is — I don’t expect to get an answer from NSICOP — the problem for us as parliamentarians and for Canadians is that’s just not good enough. Our highest institutions of democracy are called into question, and we rely strictly, to your point, on the most partisan seat in government — the Prime Minister’s Office — to take a decision which invariably all prime ministers do based on political expediency.
So, going forward, what do we do to prevent this? What do we do now to hold to account the parliamentarians who wittingly participated in foreign interference?
Mr. McGuinty: I don’t want to disappoint you, but I’m going to disappoint you.
Senator Lankin: He didn’t expect an answer.
Mr. McGuinty: Those are questions properly put to the Prime Minister, in fairness.
Senator Housakos: Maybe we’ll bring him to the Senate. We’ll summon him, with my colleagues’ approval.
Mr. McGuinty: Sure. The good news is, we’re part of a committee called NSICOP, which was created through the House at the initiative of the Prime Minister. We are surfacing important issues. That’s a good place to start. Let’s have a debate and discussion about these things. Let’s get it out in the open. Let’s talk about the magnitude of this challenge. Let’s talk about some remedies that can be considered, like Bill C-70. How can it be better improved?
It’s an iterative work-in-progress. We’re getting there. Nobody on the committee believes that we have finalized the proper response, but we hope this is a major contribution and has landed reasonably well for policy-makers to look at and determine that they need to address these.
I think this is one of those moments when Canadians are perfectly capable of understanding what foreign interference versus foreign influence is, if they are given a chance. We hope that more and more Canadians will read this review. It’s a long one, 98 pages, over a weekend or two, but it will certainly help prepare.
And maybe, senator, to repeat something that my very good friend Senator Lankin has repeated twice this evening: What we have tried to highlight here is that foreign interference is something that transcends parliaments — it is societal. We couldn’t see a single element of Canadian society untouched by foreign interference in terms of the information that we pored over in some 33,000 pages of materials. It’s a Canadian challenge, not just a Canadian parliamentary challenge. Let’s hope that we all rally together and perhaps tool down a little bit and find the proper response out of the partisan arena so we can do right by Canadians. I think that’s what we’re trying to do here as well.
You and I have spoken many times in the past, and I know you know that. I know you feel that and want that — we all do — so it’s important for us to get this right, and that’s why we’re just so grateful that we’re able to be here to talk to you about this.
[Translation]
Senator Carignan: In conclusion, the government is proposing a new section in the Criminal Code that states as follows:
Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty …
Educational governance means “the governance of a school board or primary or secondary school …”
Aren’t we going a bit too far by calling interference in the school election at École primaire Arc-en-ciel in Saint-Eustache a criminal act and making it an offence punishable by life imprisonment, while parliamentarians who committed acts are neither prosecuted nor reported?
I think that the people tuning in must be thinking that something is wrong with the system.
Mr. McGuinty: I don’t think that we can answer these key questions directly, because we haven’t covered them.
Senator Carignan: So your recommendation doesn’t concern interference in primary schools?
Mr. McGuinty: In our 2019 report, we outlined situations of foreign interference in our schools and in our universities.
Senator Carignan: Universities are fine.
Mr. McGuinty: No, in our schools, in our school boards. We explained this clearly in the report. This may be why the government … I don’t know. We didn’t draft Bill C-70, but we showed that foreign interference had taken place in these areas.
Perhaps we need to revisit the 2019 report. However, this has all been well documented.
Senator Carignan: Thank you.
The Deputy Chair: Can you wrap up briefly, Senator Cardozo?
Senator Cardozo: I just have a quick question
[English]
I have a quick question with regard to your report and the issue of naming names. You’re aware that, in the House, I think the government has agreed to the Bloc proposal to have the Hogue commission to review the issue and decide whether she would name names. Do you have any thoughts on that idea of what should happen next in terms of how Canadians find out who those names are and which political parties were involved?
Mr. McGuinty: That’s a great question, one we’ve been getting quite often, actually. Look, in all of its reports, the committee aims to share as much information as it can. Since we launched the committee, we have tended to be more transparent, rather than less, but we do butt up against clear restrictions in our enabling legislation.
The committee in this case worked hard to disclose as much as it possibly could. All I can say is that this report speaks for itself. We have disclosed everything that we have been able to during this year-and-a-half-long journey. It’s really now up to Parliament. If you’re saying that there’s consensus, and forgive us, we haven’t been in the House today, but if there’s consensus moving toward some way of dealing with this — perhaps it is through Madam Justice Hogue — I think the committee would probably say that’s encouraging if we are finding ways to overcome some of the immediate partisanship.
There will be differences in how we decide to deal with this phenomenon. Maybe in closing, Mr. Chair, I would suggest to Canadians and senators here, this isn’t going away. It’s increasing in intensity, it’s increasing in sophistication, and it’s reaching into every nook and cranny of Canadian society. That’s why, when the Prime Minister asked us to take on this third journey of foreign interference, we decided to widen the mandate to move beyond just the last two elections and to look at democratic processes, systems and institutions. Along the way, we are also reminding people to learn more about what’s going on. If you’re a university researcher, if you’re sitting at a corporate boardroom, if you’re running a community association, there are malign actors who would like to exert influence in Canada for their own purposes. We just hope that together we’re going to be able to move this ball further down the field.
Senator Cardozo: Thank you.
[Translation]
The Deputy Chair: This brings us to the end of our time with this panel.
We would like to thank Mr. McGuinty, Senator Lankin, Mr. Ruff and Ms. Inman for taking the time to meet with us today. It’s much appreciated.
Our meeting has come to an end. We’ll continue reviewing the content of this bill on Wednesday, June 12, at 11:30 a.m., in room B45 of the Senate of Canada building.
I would like to take this opportunity to thank my colleagues and our analysts, the clerk, the interpreters and all the support staff. It has been a long day. I wish you all a pleasant evening.
(The committee adjourned.)