THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 12, 2024
The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 11:32 a.m. [ET] to examine the subject matter of Bill C-70, An Act respecting countering foreign interference.
Senator Jean-Guy Dagenais (Deputy Chair) in the chair.
The Deputy Chair: 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 audio feedback incidents. Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters.
[Translation]
If possible, ensure that you’re seated in a manner that increases the distance between microphones. Use only a black approved earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you aren’t using your earpiece, place it face down on the sticker placed on the table for this purpose.
[English]
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 the committee. Our chair, Senator Dean, is the sponsor of Bill C-70, which we are examining this week, and therefore he has asked me to chair these proceedings.
[Translation]
Before we begin, I would like to ask the committee members here today to introduce themselves.
[English]
Senator McBean: Marnie McBean, a senator for Ontario.
Senator Richards: Dave Richards, a senator from New Brunswick.
[Translation]
Senator Carignan: Good morning. Claude Carignan from Quebec.
Senator Housakos: Leo Housakos from Quebec.
Senator Dalphond: Pierre J. Dalphond from Quebec.
[English]
Senator Patterson: Rebecca Patterson, Ontario.
Senator M. Deacon: Welcome back. Marty Deacon, Ontario.
Senator Anderson: Margaret Dawn Anderson, Northwest Territories.
Senator Dasko: Donna Dasko, a senator from Ontario.
Senator Cardozo: Andrew Cardozo, Ontario.
Senator Boehm: Peter Boehm, Ontario.
Senator Cotter: Brent Cotter, a senator for Saskatchewan.
Senator Yussuff: Hassan Yussuff, Ontario.
Senator McNair: John McNair, New Brunswick.
[Translation]
Senator Kutcher: Stan Kutcher from Nova Scotia.
The Deputy Chair: Today we’re continuing our consideration of the subject matter of Bill C-70, An Act respecting countering foreign interference. To continue this work, I’m pleased to welcome the Honourable Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada; and the Honourable Dominic LeBlanc, P.C., M.P., Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs. Welcome, Mr. Virani and Mr. LeBlanc. They’re accompanied by officials from Public Safety Canada, the Canadian Security Intelligence Service, the Royal Canadian Mounted Police and the Department of Justice Canada.
[English]
Thank you for joining us today. We will begin with opening remarks. Mr. Virani, you may begin when you’re ready.
[Translation]
The Honourable Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair.
[English]
I’m very pleased to be here today to speak with all of you here in the Senate about Bill C-70.
This bill reflects both the reality of the foreign interference threat we face in this country and the views of Canadians and experts on how best to address it. The proposals are strong, they are direct and they are measured.
[Translation]
Bill C-70 proposes to amend existing offences and add new ones to the Security of Information Act and the Criminal Code, in direct response to the threat posed to our democracy by foreign interference. The proposed amendments would protect people in Canada, including the disproportionately affected diaspora, from the ever-evolving threat of foreign interference.
[English]
These changes are based on the extensive consultations we have had with affected communities, provincial, territorial and Indigenous partners, academics, the legal community and other stakeholders. There were over 40 roundtables leading up to the introduction of this legislation.
The message from the consultations was clear: Canada must take action to equip law enforcement and prosecutors with the tools they need to counter foreign interference.
[Translation]
With regard to the Security of Information Act, the bill amends the current offence of using foreign-influenced intimidation, threats or violence against Canadians and people living in Canada. To help police and prosecutors address transnational repression, it removes the requirement to prove that the prohibited act actually harmed Canadian interests or sought to increase the capacity of a foreign state to harm Canadian interests.
Under this bill, it will instead be necessary to prove that the prohibited act was committed on behalf of, or in association with, a foreign state.
The bill ensures that the Security of Information Act addresses threats by foreign states against family members of Canadians. This captures instances where family members are being threatened to exert pressure on someone to do or not do something, such as protesting a foreign government.
In other words, an individual overseas is breaking the law when they threaten a Canadian or a family member of the Canadian on behalf of a foreign state.
[English]
The bill creates three new offences in the Security of Information Act, or SOIA:
First, an offence for committing any indictable offence for a foreign entity.
Second, a new general foreign interference offence that would apply where a person knowingly engages in surreptitious or deceptive conduct for a foreign entity.
With the third new offence of political interference for a foreign entity, the act would criminalize surreptitious or deceptive interference with a democratic process at the direction of or in association with a foreign entity. It would apply at all times — not only during the writ period — and to all levels of government. It also applies to the nomination process of political parties and to the most senior levels of decision-making in educational institutions.
These updates to the law are designed to protect our institutions from interference. The offence applies where a malign foreign influence covertly attempts to undermine legitimate processes.
The bill also proposes to increase the penalties and broaden the scope of the preparatory acts offence in the Security of Information Act. “Preparatory acts” refers to actions taken in preparation of committing certain offences like espionage or foreign-influenced threats of violence.
[Translation]
In terms of the Criminal Code, the bill proposes to modernize the existing offence of sabotage, which hasn’t been revised since 1951, and add two offences concerning critical infrastructure and devices intended for sabotage. During public consultations, Canadian association and industry stakeholders made clear the need to protect critical infrastructure.
The proposed amendments would expressly recognize the right to freedom of expression and the right to peaceful assembly protected by the Charter and confirm that individuals acting under these rights without the intent to commit an act of sabotage don’t fall within the scope of the offence.
To ensure that these new offences come into play in the right circumstances, the Attorney General must give his consent before any charges related to sabotage are laid.
[English]
It is absolutely critical that the right to peaceful protest is safeguarded, and it will be safeguarded with this legislation.
Through these important legislative proposals, our government is taking concrete action to protect people in Canada and our democratic institutions from foreign interference.
Thank you, and I would now turn it back to the chair.
[Translation]
Thank you.
The Deputy Chair: Thank you, Minister Virani. We’ll now hear from Minister LeBlanc.
[English]
Hon. Dominic LeBlanc, P.C., M.P., Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs: Honourable senators, thank you for the opportunity to speak to you today about Bill C-70 during your pre-study of this legislation.
Mr. Chair, you’ll allow me a personal moment. When we went around the table and honourable senators introduced themselves, I had a moment where I smiled. The presence of Senator McNair from New Brunswick is something that is, for me, a particularly happy moment. I was a young articling student at a law firm in Saint John, New Brunswick, 31 years ago when Senator McNair was a senior partner in that law office. I’ve had the chance to know him for three decades, and to see him sitting here today is a happy moment for me. I know my father would share that sentiment as well.
Mr. Chair, today foreign interference poses one of the greatest threats to Canadian society, our economic prosperity and our sovereignty. By giving our law enforcement and intelligence agencies enhanced tools and authorities, the countering foreign interference act will strengthen our ability to detect and disrupt foreign interference threats to our national security while upholding Canadian interests and rights as well as, of course, the need for transparency.
[Translation]
Honourable senators, it first bears noting today that the proposed changes incorporate the views of Canadians that the government heard during consultations.
[English]
One of the main pillars of this bill and its commitment to transparency is the creation of a foreign influence transparency registry.
In the spring of 2023, the government held public consultations to guide the creation of a Foreign Influence Transparency Registry. The government also conducted further public consultations on potential legislative amendments to the Canadian Security Intelligence Service Act, the Criminal Code, which my colleague just referred to, the Security of Information Act and the Canada Evidence Act.
A foreign influence transparency registry will require that all individuals or entities who enter into an arrangement with a foreign principal and who undertake activities to influence a government or political process in Canada publicly register these activities.
The goal of a foreign registry would be to promote transparency from all people who advocate on behalf of foreign governments or entities, as well as to ensure accountability from those who would seek to do so in clandestine ways.
[Translation]
However, a registry is by no means a single solution to foreign interference. This issue is a complex threat that requires a multi-pronged approach.
[English]
Targeted amendments to the Canadian Security Intelligence Service Act would also better equip the government to build resilience and counter modern threats that Canada faces today.
Among other changes, Bill C-70 would increase the ability of the Canadian Security Intelligence Service, or CSIS, to be more agile and effective in its investigations by introducing new authorities for specific collection techniques. It would also enable a broader disclosure of information to key partners outside of the Government of Canada. With the appropriate safeguards, this information would help Canadians build greater resiliency to these threats.
This bill also introduces several new measures to assist CSIS in its investigation of foreign interference. These will close gaps in CSIS’s authorities that have become more acute with — obviously — the global shift towards digital communication and technology. For example, it introduces preservation and production orders. These will, respectively, allow CSIS to request orders from the Federal Court to compel a third party to preserve or produce information that may be valuable to a CSIS investigation.
Honourable senators, it is important to underscore that all of these amendments would continue to respect Canadians’ fundamental rights and freedoms. My colleague the Attorney General described that a moment ago. Strong review, oversight and transparency measures are still in place and unchanged.
All these proposals have been developed while considering the high expectations Canadians properly have for their privacy rights and, of course, include protections provided by the Canadian Charter of Rights and Freedoms.
[Translation]
Our security and intelligence agencies have been doing the hard work of detecting and countering threats. I have every confidence that they’ll continue to do so. I’m joined by the director of the Canadian Security Intelligence Service and the deputy commissioner of the RCMP, who can obviously fill you in on the details.
Foreign interference is never acceptable. Canada must never tolerate intimidation, harassment or disinformation by foreign actors in our country.
[English]
To conclude, Mr. Chair, with the passage of Bill C-70, we will better face the threat of foreign interference head on while obviously respecting the rights and freedoms of all Canadians.
[Translation]
Mr. Chair, I know that I also speak for my colleague when I say that we look forward to responding to your questions and suggestions. Thank you.
The Deputy Chair: Thank you, Minister LeBlanc.
We’ll now open the floor to questions. As always, you’ll have four minutes for each question, including the answer. I’ll say it again. You’ll have four minutes for each question and for the answer. Please keep your questions succinct, so that we can hear as many contributions as possible.
[English]
Senator Housakos: Thank you, ministers, for being with us.
So far, our committee has heard troubling testimony from many witnesses that highlighted the fact that while other Five Eyes nations have moved forward with legislation and have equipped their national security agencies with what they need to carry out the fight against foreign interference, Canada has been spending its time with delays and trying to define what foreign interference even is. Obviously, legislation has now been tabled in haste nine years into this government.
Ministers, that’s troubling when the first thing this government did in 2015 was to revamp Bill C-51, a national security law that was put into place to start dealing with foreign interference and national security. It’s also troubling when this government delayed dealing with the Kenny Chiu bill dealing with foreign interference tabled in the House of Commons many years ago. It is also troubling that we have had a bill in the Senate of Canada for three years — Bill S-237 — that has been adjourned, and no government appointee wants to speak to that particular bill.
Of course, the pièce de résistance is that, more than a year ago, this government decided to put into place a special rapporteur — former governor general David Johnston — whose findings were consistent with the government’s point of view at the time that there was nothing to see here, and let’s move along.
There are two questions, ministers. First, I would like this committee to know: What did the special rapporteur cost Canadian taxpayers? I think we all now agree that it was a delay tactic and a useless expense to taxpayers. Second, if, more than a year ago, the special rapporteur had not been put in place to play delay tactics, how much further ahead would we be in passing this legislation?
Mr. LeBlanc: Obviously, I wouldn’t share the partisan introduction of Senator Housakos. Those partisan comments can stand. I don’t think it’s constructive to address them. We’re happy to talk about the legislation that’s currently before the House of Commons and that we hope will come to the Senate.
The specific question in terms of the cost of former governor general Johnston, who was appointed to that position by Mr. Harper — Senator Housakos would know that well. He served as Speaker of the Senate under Prime Minister Harper. Former Governor General Johnston did this work. I don’t have those precise figures. The Privy Council Office would have those, and we’ll be happy to make sure you have the costs with respect to the special rapporteur’s work.
Senator Housakos: Minister, you deal with partisan politics every day of the week, and this is Parliament. We ask tough questions, and we expect honest and transparent answers.
My second question needs to be answered. We deserve an answer, and Canadians do. How much further ahead would we be with this legislation if it were tabled by the government more than a year ago instead of putting in place a special rapporteur who came to the conclusion that there is nothing to see here?
Mr. LeBlanc: Again, when former Governor General Johnston was doing his work, the government was consulting before that work began in terms of a foreign influence transparency registry. We think it is important to do the work in an appropriate way, to hear from Canadians and to consult with those who have expert opinions on this. Our government has been doing this work.
I think it’s also important to note that our government was the first government to take the threat of foreign interference seriously. In 2013, for the first time, CSIS started talking publicly about the threat of foreign interference in terms of our democratic institutions. For the last two years of the Harper government, including when the current leader was minister of democratic institutions, he did absolutely nothing in terms of putting in place measures and protections to detect and disrupt foreign interference.
I think we have a proud record of working on this issue. I share your view, senator, that the threat has evolved and that the nature of the threat has increased. That’s why we have evolved and strengthened our measures in that context, and we’ll continue to do so. We think this legislation is a great opportunity for Parliament to take that important step forward. That’s why we were so happy that the Conservatives in the House of Commons were amongst the first to come to me and say they would like to work with us on passing this bill.
Senator Boehm: Thank you, ministers, for being with us today.
My first question is for Minister LeBlanc. I want to ask you about the impact of this bill on democracy itself. I know it’s sort of an existential question, but it’s not a small matter either.
During our meeting here on Monday, we heard from Professor Wesley Wark, who earlier that day published an article entitled How to deal with Treason? Treason is not a word we use much in our country. In the article, he questioned the principle of naming and shaming, and there has been much talk of that lately. In the fourth reason he gave against naming and shaming as a deterrence approach, he stated:
. . . most importantly: we live in a democracy, underpinned by a principle that anyone accused of a crime has the right to a fair trial.
As minister also responsible for democratic institutions, I would be interested in hearing your view and that of the government regarding the fundamental impact of this bill and of the naming and shaming approach or issue specifically on our democratic issues.
Mr. LeBlanc: Senator Boehm, thank you for the question. Those are two questions there, senator.
The impact on democratic institutions is something that I think all parliamentarians should properly be concerned about. My sense is that is shared both in your place and in our place amongst all parliamentarians.
You’ve been a senior official in the foreign affairs department, Senator Boehm, and you would have seen some of this intelligence work well before and probably in greater quantities than I have. What is insidious is that those seeking to undermine public confidence in our democracies would be quite pleased with the discussion that is taking place in a partisan context now about whether senator so-and-so or MP so-and-so was, in fact, the person who did something.
To your point, the naming and shaming is, I think, a dangerous concept for us to embark on. It’s not something the government will do. I have learned, in the 10 months I’ve had the privilege to be the minister of public safety, the difference between intelligence and evidence. I have learned from the director and the RCMP every week, and our deputy minister is with me. We have seen examples with a piece of intelligence, as more intelligence is collected, as allies provide different perspectives, as certain things are corroborated or, in fact, discredited, that the nature of that intelligence information changes. To take a raw piece of information that may come from one uncorroborated source and pretend that it should judge a particular parliamentarian’s service to the country is, in my view, extremely dangerous.
That being said, I have a lot of confidence that the work that our colleagues at CSIS and the RCMP do is designed exactly to ensure that in the case where there is wrongdoing that reaches the threshold in a rule-of-law country, Senator Boehm, that I think you referred to — and my colleague the Attorney General has views on this obviously. That work is robust, meticulous and serious, and we should have confidence in that process as well.
I have a lot of confidence in the resiliency of our democracy. I think that Canadians should and are proud of our democratic institutions. Democratic Five Eyes partners talk to me about this in meetings. American Secretary of Homeland Security Mayorkas talked to me about this as recently as two weeks ago. They are also seeing hostile state actors attempting to destabilize the confidence of their citizens in democratic institutions. I think, sadly, the presidential election in the United States might give us a front-row seat on how some countries will seek, with disinformation and other tactics, to shake the confidence of people in great democracies. I don’t think Canadians need to be pessimistic, but we need to pass legislation like this and continue to work together to strengthen that confidence.
[Translation]
Senator Carignan: Welcome. I have a question for Minister LeBlanc. Minister, I was reading the report by your former colleague Mr. McGuinty. Your Prime Minister’s inaction is quite blatant. There are many instances of complacency, many expectations and many contradictions. There seems to be a lack of trust in the information received from our intelligence services. You’re still casting doubts, even in your remarks today.
It seems that the most effective solution would be to ask Justice Hogue to conduct this investigation, confirm the evidence and reach a conclusion on the involvement or lack of involvement of members of Parliament in criminal offences. I think that this is the right thing to do. However, it all depends on the mandate that you’ll give to Commissioner Hogue, whom I fully trust.
Will you give Justice Hogue the mandate to release the names of parliamentarians who allegedly committed offences? I’ll give you a degree of proof in the balance of probabilities, if she concludes that these people committed wrongdoing.
Criminal charges can be laid. However, senators and members of the House of Commons can also violate the code of ethics, which could lead to penalties.
Mr. LeBlanc: Thank you for the question. I really appreciate your focus on the background of the Hogue commission.
To answer your question, senator, the government will certainly provide the appropriate mandate so that the Hogue commission can look into these issues.
I wouldn’t venture to provide a legal opinion on Justice Hogue’s obligations.
Senator Carignan: If you give him a mandate.
Mr. LeBlanc: I don’t think that it’s possible to give a mandate that goes against the Security of Information Act, for example. It’s a technical matter. I can’t confirm Judge Hogue’s obligations right now. These obligations were explained to me by Deputy Commissioner Flynn, who is here with us today. He clearly explained my obligations on Monday morning.
The commission’s ability to make names publicly available is a legal matter. I won’t venture to provide an opinion to a judge as important as Justice Hogue from the Quebec Court of Appeal.
However, to answer your question, if the government believes that this is an appropriate course of action, with the precautions in place for information security and security codes, I think that this suggestion makes a great deal of sense.
In the wake of Andrew Scheer’s letter and the Bloc Québécois motion, the Privy Council Office already started a process with counsel for the commission last weekend. The goal is to understand how they can specifically review what you just put forward. I was told that counsel for the commission thought that this was possible, even if it meant checking with the justice, and that their terms of reference already gave the commission the ability to follow the evidence. Given the report of the National Security and Intelligence Committee of Parliamentarians and the need to reassure the public about the resilience of our institutions, both here and in the House of Commons, I think that Justice Hogue has a significant mandate to help us. We’ll be working with her to —
Senator Carignan: Do you agree that, when it comes to public trust, you should give Justice Hogue free rein to name names in the event of an offence or to refer the matter for criminal prosecution?
The Deputy Chair: Thank you, Senator Carignan. We’ll now give the floor to Senator —
Senator Carignan: I’d like an answer.
The Deputy Chair: But it’s that —
Senator Carignan: Senator Dagenais, I understand that —
The Deputy Chair: Okay, go ahead. I’ll give you a few minutes, minister.
Mr. LeBlanc: I won’t need a few minutes. I understand that Senator Carignan is an experienced lawyer. This isn’t a yes-or-no question. Will the Hogue commission, like the committee of parliamentarians, be able to review and consider all these circumstances? Of course. Will the necessary documents be provided so that it can review all these issues? Absolutely. Will public disclosure be authorized? Again, you have more experience as a lawyer than I do, Senator Carignan. If I must tell a Court of Appeal judge, without a trial or prosecution, that she needs to look at the information — all the information — and rule on whether a person is guilty, it seems a bit simplistic.
Senator Carignan: I didn’t say anything about guilt. I talked about referring the case for prosecution.
[English]
Senator Yussuff: Thank you for being here. I’ll be as brief as I can. I hope you can try to get in as many answers as you can within the time frame that we have here.
Minister, we have before us probably the most comprehensive piece of legislation dealing with the security of this nation. Given the time we have for this — we started our work last Monday and were asked to complete this work within a short period of time — I’m worried that we won’t have the necessary time to do our job in a diligent way, recognizing the importance of this legislation. You have had time to prepare the legislation, and we don’t have that on our hands right now. Nevertheless, I understand you want us to pass this bill before we rise. How do we accomplish that while doing we are supposed to do, namely, scrutinize the bill as much as we can to ensure it meets the obligations of the nation?
Mr. Virani: Thank you, Senator Yussuff. I would say a few things.
First, there were extensive consultations in the preparatory work for the bill. That should give you some sense of the appropriateness with which we proceeded.
Second, this is a matter where we are seeing all-party support in the House of Commons, which, unfortunately in June of any given year, is usually quite rare. We’re seeing that because all parties in the House of Commons feel the necessity of proceeding with pace in respect to this legislation.
Third, the fact you that have already commenced your prestudy is an example of the diligent work you are doing to assist us in our work in the House of Commons. I acknowledge that prestudy as a step in the right direction towards helping us achieve that joint goal.
Senator Yussuff: Recognizing that reality, we’re still running against the clock. If we decide that we don’t have enough time, we have a gun to our head to get this done. That presents a challenge to us in the Senate, giving the way we operate. We take our time and do the things necessary to ensure legislation meets its obligation.
The report issued by the joint Parliamentary committee outlines some tremendous stresses that they’re experiencing. They are subjected to harassment and targeting. Recognizing the diversity of our country and the fact that what led to this discussion was the leaks from the intelligence service or from the upper echelons of the bureaucracy, how are we supposed to have integrity if we can’t maintain the secrecy that is required either in the intelligence service or within the bureaucracy responsible for this? How is our diaspora community supposed to have confidence should they want to tell us something when they can’t be assured of that trust? What are the deterrent mechanisms? More importantly, is that being considered in the context of this legislation, recognizing the experience that we just went through? It was important for the journalists to shine a light on this, but it is important for our integrity with our Five Eyes partners that we do not have leaks within our security service in this country.
Mr. LeBlanc: Senator Yussuff, I share your concern around those leaks. Again, I don’t have any information on what work the RCMP or other partners are doing in terms of investigating them. Not to nitpick, but it was some intelligence documents that were supposedly leaked. How they were leaked and what was the nature of those documents, I don’t know, obviously. However, to your point, senator, it underscores the precise challenge.
I have been privileged to see the work done by our national security agencies, by the RCMP, the quality of their work and the remarkable work that the women and men who work for the Royal Canadian Mounted Police are doing. It is dangerous work, and it is valuable to the Five Eyes partners. I have heard from Five Eyes ministers, in particular from Secretary Mayorkas, the value of Canadian intelligence products. It also allows us to be a consumer of their intelligence work.
The National Security and Intelligence Committee of Parliamentarians is, in our view, an appropriate forum for this kind of examination to take place because of the security around the information they have, the oath and the commitments of members who serve in those capacities.
It is a corrosive thing to have this circumstance. There is still a lot of confidence in the work that Canada can do, but it reminds us of the importance of that security, senator, as you mentioned.
I see we may be out of time. However, Senator Yussuff, you identified diaspora communities that are often targeted by these malevolent actors. Those are the ones we are seeking to protect as well.
Senator Patterson: Thank you, ministers, for being here.
Mr. LeBlanc, I would like to follow up on one of your other comments. You talked about resiliency and democracy as well as things that have happened within the Parliamentary Precinct that have undermined the confidence of Canadians in us. I also am with you. I think naming without proper investigation and rules in place will undermine confidence in democracy. However, being seen to do nothing will also undermine confidence and have an impact on resiliency.
Turning to the Senate, will there be a time when we can get the appropriate security clearances for each leader of each recognized group and caucus within the Senate to have an unredacted look at the report provided by NSICOP so that we can internally — that is, until greater things happen, until everybody has been through the processes — address behaviour and demonstrate that we are deserving of the confidence of Canadians?
Mr. LeBlanc: Thank you for the question, Senator Patterson.
The preamble to your question is about the importance of reassuring Canadians and the integrity of our democratic institutions, including the place where you and your colleagues are serving, and that is paramount. It is something that the government and I think all parliamentarians in our place worry about. To govern ourselves in a way that enhances that confidence and provides that reassurance while taking our collective responsibilities to ensure that the appropriate processes are in place with those protections that your colleagues have referred to and that we share is reasonable.
When I have seen some of the commentary around the National Security Intelligence Committee of Parliamentarians — it says “parliamentarians,” of course, because it includes members of this place — about how your chamber can properly provide that assurance, you’ll understand that it’s not for a lowly member of the House of Commons. I wouldn’t presume to suggest how you should govern yourself; that’s not appropriate.
However, your suggestion around the leadership having access to that information is an interesting one. You’ll understand the NSICOP reports to the Prime Minister and is supported by its own secretariat, but those sorts of requests go through the Privy Council Office. Regardless, I am happy to take it back as a suggestion. I don’t have the authority to agree today to that as a suggestion. It seems to me a thoughtful way to provide that reassurance. I would be happy to work with our colleagues to ensure that, again, through our government representative, with whom I chair the operations committee of the cabinet — Senator Gold is an active participant at our operations committee of the cabinet. I am happy to work with him in the appropriate way to see how we can advance that. I thank you for that suggestion.
Senator Patterson: Thank you very much for that. We were told it needed to come from you, so please commit to this. It is important to us within the Senate to please commit to that. I am sure Senator Gold will work with you, hand in glove, so that our leaders can be appropriately briefed.
Mr. LeBlanc: Senator, thank you. I am happy to do that and follow up with Senator Gold, with whom I work cheerfully and positively all the time.
I have one suggestion, probably through the appropriate Senate security officials with the different groups and caucuses. I know that with senior officials from CSIS and our department, one of the things we’re doing tonight is a briefing for the Liberal caucus in the other place to help colleagues understand best practices in terms of defensive practices and better understanding the nature of the threat. That’s one positive thing we can do for all senators. I know that work is under way, but I am happy to ask David Vigneault. He loves to come to the Senate. He will be here any time it is helpful.
Senator Kutcher: Thank you, ministers, for being here with us.
The committee has become aware of concerns that the CSIS Act, which defines threats to the security of Canada, is outdated. My question is to Minister LeBlanc primarily, but Mr. Virani, please join in as needed. The act needs modernization. It hasn’t been modernized since 1984, and times have changed. Would you be open to considering an amendment to Bill C-70 to help modernize the definition of “threats to the security of Canada” in such a way that issues such as essential infrastructure, transnational aggression, new sabotage provisions — which are in the other act — can be better addressed and to assist the FI commissioner in the conduct of their investigations?
Mr. LeBlanc: Senator Kutcher, thank you for that question. It is an absolutely valid question in terms of being critical to the work Parliament has to do to understand what the appropriate tools are, and therefore definitions to give our national security agencies as they do their work.
I won’t purport to comment on potential amendments, senator — you’ll understand — that would come from this place. I have confidence that such work would be done well. If you would like a quick answer in terms of the definition of “threats to the security of Canada,” I could make up an answer for you, but it wouldn’t be as helpful as perhaps having Director Vigneault give you that answer.
Senator Kutcher: Thanks, minister. I would certainly agree with you on that.
David Vigneault, Director, Canadian Security Intelligence Service: Thank you.
The question of the definition within the CSIS Act has been raised a number of times, including recently during the Commission of Inquiry on the Invocation of the Emergencies Act. There was some commentary about the need to modernize it.
Speaking as the director of CSIS, the current definitions allow us to capture the type of activities we are concerned with. We have not seen an impediment with the way they are drafted now in terms of doing our work. When we are working with the Federal Court, for example, when we go for a warrant, we are able to match the type of threat activity we see to the authorities derived from the definition in the act to be able to go to the court and have the authorities to investigate further. For today, the practice is that those definitions work well.
However, as was discussed at the commission of inquiry, the threat environment is changing, as are the actors, the means and the velocity with which threats are coming at Canadians, including — in response to Senator Yussuff — to the diaspora communities in Canada, where people are vulnerable. Those threats are changing. It would be healthy to have a review of the definitions in due course.
Parochially, at this point of where the bill is, the changes of Bill C-70 are really important for CSIS to be more effective today. My only reflection is that amendments are probably work I would like to see done in the future — a kind of thoughtful reflection upon the threat environment and, therefore, the appropriateness of the definitions of the act.
Senator Kutcher: Thank you for that explanation. Our experience here in the Senate has been that the future often never comes, so maybe we could try to assist you to move it along more quickly.
Mr. LeBlanc: You are more confident of your future than those of us who have to get elected, senator.
One of the things the director mentioned is the idea of a review. We think that is a very positive thing, and it is something that Arif and I built into the legislation. It does seem kind of strange that this is the first significant work done around the CSIS Act in 40 years. CSIS celebrates its 40th birthday. It was passed at the very end of Mr. Trudeau’s government, and Mr. Mulroney was the first prime minister to set up the agency. The idea of a recurring review for Parliament offers that opportunity. When CSIS was born, David probably had an eight-track tape player in a Corvette.
[Translation]
Senator Dalphond: Welcome to our committee, ministers. My questions are for the Attorney General. They concern the interpretation of the amendments to the Criminal Code in relation to the new offence of sabotage to critical infrastructure. When I read the definition of infrastructure, I see that it includes transportation infrastructure. I imagine that this would include the Windsor bridge and government operations infrastructure. I gather that this would also include the Parliament of Canada.
Should we be concerned about this new offence, despite the definition of the exclusion? Given what happened two years ago, could the sabotage provisions have been used against the people blocking Wellington Street with their trucks?
Mr. Virani: Thank you for the question, senator. I believe that the definition intended to give a certain amount of leeway and quite a lot of flexibility to address the situation as it stood at the time. Mr. Vigneault just told us that there are threats, that the threats have increased and that they target a number of aspects or physical spaces.
For example, in the House of Commons, we studied an amendment that seeks to include both current and emerging threats. For instance, Ms. Hughes’s preliminary report revealed extensive threats that target a number of aspects of infrastructure. This doesn’t relate to what happened to the Parliament of Canada two and a half years ago. However, this aspect affects Canada as a whole and all our institutions, especially our infrastructure. The flexibility in our definitions specifically addresses this issue.
Senator Dalphond: Your answer is that it would focus on Parliament and include the Windsor bridge. If the protesters are demonstrating for political reasons, is there any cause for concern? I’m referring to the brief from the Canadian Civil Liberties Association, which proposes to amend the exception for political demonstrations. Have you read this brief?
Mr. Virani: I understand some of their concerns, of course.
Senator Dalphond: Shouldn’t the exemption in subsection 52(5) be amended to delete the words that they propose to remove?
[English]
They proposed removing the words “while participating in advocacy, protest or dissent but they do not intend to cause any of the harms referred to in paragraphs (1)(a) and (b).”
[Translation]
Mr. Virani: First, the right to protest is protected by the House. As a lawyer and judge, you know this quite well. Second, when we set our sights on the sabotage crimes, we realized that the provisions hadn’t changed since 1951 and that we needed to modernize this aspect. We included a specific reference to the right to protest in the prescribed law. We wanted to make it absolutely clear that this right is and always will be protected. Fourth, when you prosecute for sabotage, you need the consent of an attorney general. You need either me for the federal aspects or the people in the field in any province. This adds another aspect and protection for important constitutional rights.
The Deputy Chair: Thank you for your response, minister.
[English]
Senator M. Deacon: Thank you to the whole team for being here today.
Certainly, we need to get this right, and get it right together, so that Canadians understand it, the integrity of it, and trust it, which is critical. One of the concerns that emerged at Monday’s meetings was that FITAA is country-agnostic. This reflects largely what the Australians did, frankly, whereas the U.K. tool was a two-tiered approach to their foreign influence transparency registry. Why did we go the Australian route on this when even they are questioning if it was the wisest choice and it could make this registry larger, more unwieldy, by catching what one witness referred to on Monday as the good guys as well? Mr. LeBlanc, if I could direct this to you, that would be great.
Mr. LeBlanc: Senator Deacon, thank you for the question.
I do remember discussions on this when we were considering this legislation, including conversations at cabinet committees and with officials of our department. You are right to identify different models. The deputy or others may be able to provide more precision than I can.
One of the things I worried about is the idea that the registry itself becomes a blacklist. There can’t be a gotcha moment because somebody follows the law in a transparent way and registers.
If, collectively, Parliament decides that bringing greater transparency to these activities, as other democracies have done, is a good thing — the list of countries changes. I have only been the minister of public safety for 11 months. It feels a bit longer. In 11 months, the list of the countries that may be sources of concern evolved. Every time we’d add a country to that list, you can imagine what that does to our foreign policy implications.
We thought having a country-agnostic registry would help remove the mépris or the risk of negative inferences being drawn by people following the law and registry, in the same way a lobbyist who registers on the lobbyist registry is following the legislation in a transparent way. We think it would minimize the chance of blacklists. It provides a greater transparency, which can be helpful.
Again, I’m not a foreign policy expert, but you can imagine the pressure to take this country off or add that country. That would be the discussion constantly. Doing it in a country-agnostic way seemed to be an easier way to set it up.
Senator M. Deacon: Thank you. If there is more information to add in writing from the team, please, that would be great.
Mr. LeBlanc: Of course.
Senator M. Deacon: I appreciate that.
Senator Cardozo: Thank you, ministers, for being here and for the work you and your officials have done in putting this very comprehensive bill together.
I have two questions, and the first is on the registry, which is certainly something that many diaspora communities, and others, have called for and are in support of. It has one gap, which is that really bad actors wouldn’t register and tell you what they were planning to do. I would like your view on that.
My second question is this: Does the bill cover non-state actors? I am thinking of other terrorist groups, private militias or White nationalist groups. Under the definitions in the foreign influence transparency and accountability act, it talks about a foreign entity. Could a non-state actor also be subject to this bill?
Mr. LeBlanc: Thank you, Senator Cardozo, for the question.
I’ll take a crack at your first question. Perhaps the deputy can provide some precision in terms of a non-state entity. I don’t want to give you an answer that is not entirely accurate.
I saw comments in some of the work. I am lucky enough to see updates on the work that your committee has been doing. I took note of that comment or question around bad actors or those who are seeking the most harm — pick your definition — are not going to go online and register. Sure. There are speed limits. Some people are speeding now. The vast majority of people follow the speed limit. There is an investigative power for the commissioner, including serious criminal sanctions for those who seek not to follow the law. There will always be a small group of people who recklessly and wantonly may decide not to follow the law. They will face the consequences. I’m proud that the potential sanctions are appropriately severe.
We think this is an important step. The RCMP and CSIS have their investigative authorities. People behaving in a way that reaches a criminal threshold will face those sanctions. It is not a one-off but it is part of a greater transparency. We think the vast majority of people will want to comply with the law. The small group of people who may not will face the appropriate sanctions. The registry is not a be-all and end-all. It is an important step and is as you said, senator, work that many diaspora communities have asked us to do. I have confidence that it will be borne well and properly. Don’t minimize the small risk of that. I have confidence there are other mechanisms.
Mr. Chair, perhaps the deputy can comment in terms of a state entity or not. Shawn?
Shawn Tupper, Deputy Minister, Public Safety Canada: We have tried to keep this open and allow the new commissioner some flexibility in determining that future in terms of how things will work. As long as there are linkages between a non-state actor and a state actor, they could be captured. Those are things that will require that investigative power and the ability of the commissioner to look at situations and make determinations under this new law. It is not to exclude all non-state entities, but it will be a bit situational specific as it relates to the acts of state entities and those relationships.
Senator Cardozo: So if it is a terrorist group operating in another country, they wouldn’t be subject to this?
Mr. Tupper: Again, I would say the one key thing to remember is this is but one new tool in a tool kit of activities we have available to us through our operational agencies and through a series of laws. It isn’t that they remain unfettered and free to act at will. We have a number of different ways we will the track that information and be able to pursue those kinds of activities. It may not be best pursued through this commissioner’s office.
[Translation]
The Deputy Chair: I see that the clock is ticking. We’ll finish with one last question. We can then let the ministers go and continue with the officials.
[English]
Senator Anderson: Thank you, ministers, for your attendance.
Minister LeBlanc, you spoke about the foreign public registry intent to uphold Canada’s interests and autonomy.
My question is around the Nechalacho mine, the rare earth mine located 100 kilometres southeast of Yellowknife on Dene territory which is owned by the Australia’s Vital Metals Ltd.
Vital Metals sold a 9.9% stake to Shenghe Resources, a Chinese company. Shenghe Resources had also purchased all of its stockpiled rare earth material. The sale has made Shenghe Resources the current largest shareholder in the mine. China extracts more than 60% of rare earth elements and processes as much as 90% of the global supply.
The initial endeavour of this mine was marketed as a way for Canada to reduce its reliance on China for materials that are critical in various types of carbon technology. It was also touted as an opportunity to provide jobs to Yellowknife Dene and other Akaitcho members, to help drive economic reconciliation and assist with much-needed northern infrastructure.
According to an article in News/North dated January 16, 2024, the N.W.T. MLA for Tu Nedhé-Wiilideh, which lands include the Nechalacho mine, stated:
It appears Vital and the Chinese are trying to pull a fast one to get around Indigenous landholders, the GNWT and the federal government. Do you think our Indigenous stakeholders and regulators would ever support what the project has become? Absolutely not!
Is foreign business ownership seen as a threat when it alienates Indigenous communities on their lands and they operate and challenge Canada’s autonomy? That country, China, has clearly identified itself as a near-Arctic state. Will Bill C-70 address any of these concerns to ensure it does not happen again and strengthen Canada’s reliance against foreign assets and strengthen Canada’s own?
Mr. LeBlanc: Senator Anderson, thank you for the question.
I am somewhat familiar with that specific case. I have participated in various intelligence briefings on that sort of transaction. I want to be careful, of course, not to speak about specific transactions, but one of the responsibilities I have as the public safety minister is to work with my colleague the Minister of Innovation and Industry around the Invest in Canada Act. We regularly review transactions, including, obviously, circumstances where a Chinese entity would seek to acquire interests in critical sectors of our economy, and that, I cannot imagine, wouldn’t be considered that. I don’t want to speak to specific Invest in Canada Act decisions. We provide advice based on the intelligence services to my colleague the Minister of Innovation.
You are concerned about Indigenous rights. As the intergovernmental affairs minister, I remember having this conversation with former Premier Cochrane. I do know and understand the sensitivity around that particular corporate actor perhaps not meeting the threshold in terms of understanding Indigenous rights and the responsibility around the duty to consult and the UN declaration. That is a difficult case.
Perhaps the deputy has some specific information on that one example, but I’m loath to understand what we can say in a public forum such as this. I would defer to the deputy if he has specific remarks.
[Translation]
The Deputy Chair: Thank you, minister.
This brings us to the end of our time with this panel. I want to thank Minister Virani, Minister LeBlanc and the officials from Public Safety Canada, the Canadian Security Intelligence Service, the Royal Canadian Mounted Police and the Department of Justice Canada for taking the time to meet with us today.
We’ll now suspend briefly to prepare for the next panel. We’ll return in a few minutes.
Welcome back, everyone. For the people joining us live, we’re meeting today to continue our consideration of the subject matter of Bill C-70, An Act respecting countering foreign interference.
We’ll continue with our second panel. I would like to welcome, from the Canadian Security Intelligence Service, Sarah Estabrooks, Director General, Policy and Foreign Relations. From the Department of Justice Canada, we’re joined by Heather Watts, Deputy Assistant Deputy Minister; Karine Bolduc, Counsel; and Mark Scrivens, Senior Counsel.
Lastly, from Public Safety Canada, we’re joined by Richard Bilodeau, Director General. From the Royal Canadian Mounted Police, we have Mark Flynn, Deputy Commissioner, Federal Policing.
Welcome to each of you. The officials won’t be giving any remarks, but they can take questions from the senators.
I want to remind you that four minutes will be allotted for each question, including the answer.
Please keep your questions succinct so that we can hear as many contributions as possible.
[English]
Senator Woo: I want to ask about the use of the term “in association with” in the legislation, both in Part 4 when it refers to the registry but also in the offences against essential infrastructure, sabotage and so on. Can you give us an understanding of what you mean by “in association with”?
Richard Bilodeau, Director General, Public Safety Canada: Maybe I can start off, and my colleagues from the Ministry of Justice can follow up.
The legislation has three triggers that require a registration. That first one is an arrangement which includes acting in association with or at the direction of. The intent of the definition was to make it sufficiently broad to capture any type of arrangement with a foreign state. It will be up to the commissioner who will be tasked with enforcing the legislation to determine whether that threshold is met. It still requires some degree of understanding between a foreign state and an individual or an entity that has an arrangement. It cannot be just somebody doing it just because they think the foreign power would like them to be doing it. There has to be some degree of understanding.
Senator Woo: And yet the definition is separate and distinct from “under the direction of,” which suggest that “in association with” does not require some sort of subordinate relationship. Would you consider someone who shares a view with the foreign state and may have been in regular contact with a foreign state agent would be sufficient to trigger the “in association with” requirement?
Mr. Bilodeau: I’ll caveat my response by saying that, ultimately, it will be up to the commissioner because the commissioner will be administering the law independently. It will be up to them to determine.
Senator Woo: What is the thinking of the department as far as this is concerned?
Mr. Bilodeau: The intent is there has to be some link between the activity and the state.
Senator Woo: Certain people meet regularly, they talk to each other and they have a common viewpoint on a particular issue. There is no subordinate relationship, but one could argue that they are in association with. Would that be sufficient for registry and offences under the sabotage and Security of Information Act?
Mr. Bilodeau: I can’t speak to the sabotage and Security of Information Act, but I can speak for the registry. Again, it would be a fact-finding case that would have to be made, but there would have to be some understanding that the influence or the activity that is being undertaken is being done in association with the state. There has to be some understanding of the linkages between the activity and the state, and there has to be an agreement. It does imply some degree of understanding that that activity is being done for the state.
Senator Woo: In agreement, of course, means agreeing on a point of view, and I’m very concerned that that’s a sufficient trigger.
I appreciate that this legislation is done in part to address the legitimate concerns of some diaspora communities about transnational repression and so on, and it is very much needed, but what is being done to protect other parts of the diaspora community who are worried about suppression of their own political views which may be repressed because they would be subject to suspicion of being in association with a foreign state simply because they hold those views?
Mr. Bilodeau: Any Canadian, whether they’re a member of the diaspora community or not, that expresses a view would not be required to register.
Senator Woo: Even if they are in association with?
Mr. Bilodeau: There would have to be an agreement with a foreign state to do one of the three activities, which is either communicate with a public office holder, communication to the public or disbursement of money in relation to a government or political process. If an individual just says, “I think the government should change this law,” the fact that they’re a member of a diaspora community doesn’t automatically require them to register. The Minister of Justice can speak to this. People are free to continue to express themselves and express their views. Those three elements would have to be present to require the registration.
Senator Woo: When they speak to me, they would be required —
The Deputy Chair: Thank you, Mr. Bilodeau.
Senator Richards: This is a question I was going to ask Minister LeBlanc. I’m not sure if I’m asking the right people. It comes off of Senator Anderson’s question at the last session.
How much do we have to recognize our own sense of naivety — I’m not just talking about this government but Canadians as a whole — before we begin to realize the very seriousness of foreign interference in our country? Do you think this bill has the teeth to accomplish what we want, especially in light of Senator Anderson’s question?
Mr. Bilodeau: Thank you. I can maybe start off and turn it to my colleagues who all have a role to play in this.
As we were discussing, the Investment Canada Act has the ability to review transactions for national security concerns. Beyond that, Bill C-70 brings together a suite of tools that respond to the threat that has evolved over the last few years when it relates to foreign interference. The foreign influence transparency registry is one of those tools. It will bring transparency to influence activities involving our government and political processes. As Minister LeBlanc said previously, it is by no means the only thing that needs to be done. That is why bringing changes to the CSIS Act, the Security of Information Act and the Criminal Code is so important at this point, because it modernizes the tool kit to challenge conduct that we’re worried about and foreign interference.
I don’t know if Deputy Commissioner Flynn wants to add to that because he will be charged with administering it.
Mark Flynn, Deputy Commissioner, Federal Policing, Royal Canadian Mounted Police: From a law enforcement perspective, the tools that are contemplated in Bill C-70 and the important work and modifications that you do to it are very much needed today. I’m hoping that this is the first in a series of legislative reforms that is completed in an agile way and that is adapting to the continuous, evolving threat environment we’re dealing with.
My ask of you would be to ensure that we have a regular process that is looking at the tools and what additional tools are required and that we not wait for every possible tool to be identified before we implement some tools, because I fear we would be waiting an eternity. The environment is continuously evolving, and we will never have a state of perfection. It’s important to have the tools that we need today. I recognize that likely means that other tools I would like to see in place today or tomorrow may not be included in such a bill, but waiting for all the important work that you do every day to be done to include those would mean further delays, which has a negative impact on our operations.
Senator Richards: This bill is kind of a first step towards an overall view of foreign interference?
Mr. Flynn: I am hoping that we have an agile, active view and legislative process tackling this problem.
Senator Richards: Naivety is over about foreign interference?
Mr. Flynn: I would hope that it is over.
Senator Richards: I would hope so too.
Senator Housakos: Let’s also be clear, colleagues. The only reason we’re here at this point has nothing to do with a government that has been inactive on this for nine years. It has to do with the fact of frustrated civil servants at CSIS who leaked enough information and raised enough red flags. That’s why we’re here.
Furthermore, my concern is with the structure we have in place right now in that all roads, when it comes to national security and foreign interference, lead to the Prime Minister’s Office. He is the judge, prosecutor, jury and the executioner. And that is the most partisan office in our land. He is the custodian of basically fighting back against political foreign interference in our own Parliament, so there is an inherent problem in our structure.
I do recognize the Criminal Code doesn’t necessarily contain provisions to investigate parliamentarians when it comes to foreign interference. NSICOP is there, but, of course, it is a very secretive body that reports, again, fundamentally to the Prime Minister and cabinet.
We add the compounded problem that security information — particularly that we get from Five Eyes partners, and, very often, that which is gathered by the Canadian Security Intelligence Service, or CSIS, and the RCMP — can’t always be used in a court of law, so we recognize that challenge as well.
The question I have for the commissioner is this: Is the structure that we have in place right now in Parliament adequate, where we have the Prime Minister, who is the head of government, in charge of deciding what warrants being investigated in Parliament and what doesn’t, and which one of his colleagues deserve to be investigated and which ones don’t? For example, he had no problems outing India and using intelligence information that he didn’t share with the public because of secrecy, but he outed them for his own political agenda. With the structure that we have in place right now, commissioner, how hard is it for the RCMP to investigate senators and MPs when you know you have to go, ultimately, through the Office of the Prime Minister?
Mr. Flynn: I think it’s important to clarify immediately in my response that the RCMP does not go through the Prime Minister. The Prime Minister plays no role — nor does any minister, any other member of Parliament or any other elected official — in determining who the RCMP investigates. The RCMP is very much independent in our investigations and in deciding who we investigate, when we investigate them and to what extent we investigate those individuals. We follow the evidence that we have, and we ensure we are meeting our mandate in an independent way.
Senator Housakos: But you’re reporting to the Prime Minister through CSIS and other intelligence security services when you get security information on a parliamentarian and you’re using that information for your investigations. How often do you investigate anybody in society where you share your investigative information with them, other than the Prime Minister and Parliament?
Mr. Flynn: We have many different investigative avenues that we pursue. The RCMP, as you know, is part of a department that does fall under the direction of the minister —
Senator Housakos: Commissioner, I appreciate that, but other than the Office of the Prime Minister, is there any other individual or entity in the country you would investigate where you’re actually sharing the information with that person who is being investigated? In this instance, if you’re investigating a parliamentarian based on security information from intelligence, it’s information you and the Prime Minister have equal access to.
Mr. Flynn: I can assure you that the Prime Minister does not have equal access to all of the information that the RCMP holds in our investigative efforts. I can further assure you that when we are investigating other types of crime — or this type of crime — we absolutely do engage with the entities and the various authorities under which those entities operate to ensure that our investigative actions are appropriate to manage the integrity of our investigation, the rights of the individual who is accused, as well as to take steps to mitigate the harm that the entity itself is facing from those individuals. It is a delicate balance that we are seized with on a daily basis in all of our criminal investigative efforts.
[Translation]
Senator Carignan: Thank you, Mr. Flynn.
First, I’m happy to know that the Prime Minister said earlier that he was following your legal advice, even though you aren’t a lawyer. In the past, he didn’t take your colleague’s advice. The commissioner said that he didn’t need to initiate emergency measures, but he did so anyway. It’s good to know that he might listen to you.
This shows that the government, the Prime Minister or the ministers choose what they want to hear. Even if you have the independence required to carry out your investigations, when the time comes to make recommendations, if they decide not to follow them, you’re in a bind and we’re at a dead end. As we saw in the commission’s final report on the state of emergency, the Prime Minister’s Office was complacent, despite a number of requests from the Canadian Security Intelligence Service and the RCMP.
In your opinion, what aspect of this bill will ensure that the government or the Prime Minister must follow the recommendations and that we won’t be caught in a situation of this nature, where they know that parliamentarians probably committed criminal offences but they don’t want to tell us?
Mr. Flynn: Thank you for your question, senator.
[English]
With respect to the bill as a whole, I think it would be appropriate for someone else to answer that.
Again, with respect to our criminal investigative efforts into the new provisions or the modified, existing provisions in the Criminal Code, Security of Information Act and other acts, there is nothing currently existing or in the bill that gives any control to the Prime Minister to impact our investigative efforts.
[Translation]
Senator Carignan: I have another technical question.
The offence of influencing a political or governmental process reads as follows: “Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity…” The burden is quite high. It must be proved beyond all reasonable doubt.
As has been pointed out a few times, given the challenge of transitioning from intelligence to proof, do you believe that the provisions in this bill will make it possible to convict individuals beyond all reasonable doubt, considering the level of difficulty involved in proving that a foreign entity has given an order to an individual?
[English]
Heather Watts, Deputy Assistant Deputy Minister, Department of Justice Canada: Thank you very much for your question.
You’re referring to the political interference offence that is proposed to be a new section 20.4, and that offence would cover activity that’s done at the direction of and in association with a foreign entity that’s surreptitious, deceptive and that interferes with a political or governmental process, as defined in the act.
I would say that, as with all criminal offences, it’s always a question of the evidence that is available to put forward for a prosecution. Obviously, the government is aware of the challenges that can come with intelligence being used as evidence in criminal proceedings, and there are some measures in the bill that will address that in an administrative law context.
In a criminal law context, I would just remind you that intelligence is a piece of information. It is not necessarily something that a court will receive into evidence. It has to be relevant and admissible, and it has to meet the requirements to be admitted as evidence. Of course, as you know, the government does not always disclose intelligence in open court proceedings because we have a need to protect that information.
Section 38 of the Canada Evidence Act works to protect that information. What comes out of that process can be used in legal proceedings, including criminal proceedings. As you know, the government has an ability to use that information.
There are limitations, but we have been successful in using information that comes from intelligence agencies that form part of the police file for the prosecution of terrorism offences, for example. While the challenges may be there, at least in the terrorism context, to the extent there are similar considerations about the need to protect sensitive information and the need to prosecute, while respecting the fair trial rights of the accused, there is a way to strike that balance, notwithstanding some of the challenges you have pointed to.
Senator Yussuff: I have a couple of questions.
With the Canadian Security Intelligence Service Act, there are significant changes in the context of the act that allow for intelligence sharing among federal partners, i.e. other orders of government, Indigenous governance organizations, universities, et cetera. Given this new reality of sharing information, the bigger question I have is, how are we going to educate those entities about the sensitivity that’s required in regard to information they’re receiving so that they can handle it in an appropriate way to ensure the integrity of their organizations is protected and at the same time ensuring they themselves don’t go afoul of the law with that information they receive?
Sarah Estabrooks, Director General, Policy and Foreign Relations, Canadian Security Intelligence Service: Thank you for the question.
Indeed, this is going to be uncharted territory, and there will be challenges here. More than anyone, the service obviously cares about the integrity of its information, and how it discloses it will be vital to ensure it is not injurious to national security downstream. A number of questions come to mind. The service has established productive relationships across Canada in a number of sectors where there are those trusted channels and well-educated and informed individuals who understand how to handle intelligence. Building on that, learning from that and establishing process around that is what we’re working on right now to understand how we can mitigate any risk.
However, there is also a wide range of information that could be disclosed. I think it’s safe to assume it’s unlikely we’ll be disclosing top secret, sensitive information from well-placed human sources or technical collection. That would be extremely difficult to mitigate risk. We have to assume that there will be an ability to build resiliency to threats by being engaged earlier, before threats are material, to discuss the kind of tradecraft and vectors of threat activity, to build awareness and help mitigate risks in discussion with those who own the information, assets, et cetera, that we’re trying to protect.
It’s not going to be a one-size-fits-all approach, for sure. There are channels, for example, at the provincial level where there are established departmental security regimes where disclosure may be a little more tactical, and there are other ways we can assume that it will be intelligence-informed sharing for the purpose of building resiliency.
Senator Yussuff: Mr. Flynn, given the threat the diaspora communities are facing in this country, and given that you as the chief law enforcement office have to mitigate and work with those communities, do you have adequate resources in the context of the diversity of our population to meet your responsibility and your obligation? And, of course, building public good in regard to liaising with those communities, because simply going in doesn’t build trust — you have to build trust over time and establish and maintain that trust. Do you have the resources necessary? Given that this bill is going to add additional responsibility to your work, do you have adequate resources to meet your obligation in terms of Bill C-70?
Mr. Flynn: In the context of Bill C-70 and to answer your question, the bill is a tool to combat foreign interference. You have touched on a very important element that I think is often missed in this discussion, and that’s the threat to our diaspora and the large Canadian communities that are represented throughout that diaspora.
Resourcing-wise, I can tell you from a law enforcement perspective that we will never have enough resources to do everything that we would like to do or that we could do. I also don’t believe that law enforcement is the only solution to many of these problems. You touched on it with your questions around the education and the earlier statement about the naivety. I think we have to do an awful lot of work to ensure that we are connecting with the diaspora and that we are representing and conducting ourselves in a manner that builds that trust and confidence. You will have seen in some of the RCMP operations over the last couple of years that we have taken significant steps to appear under our federal policing banner, if I could call it that, to be present in uniform and seen by the communities that we are recognizing the problem and that we are taking strong action to combat it.
We are dealing with a shortage across the entire policing community in Canada and internationally. We have unrelenting demand in terms of violent extremism, foreign actor interference and hostile activity of state actors, and I will say the additional element of organized crime involvement in those activities is absolutely pressing the number of resources that we have.
Senator Patterson: I’m not sure if this is for Ms. Watts or Mr. Bilodeau. We have received a number of submissions from different groups. Democracy Watch just released about 49 different areas they saw as a challenge, but I would like to focus on lobbying. They had 17 recommendations and what they considered loopholes within the act in terms of lobbying. In effect, it’s about foreign influence using lobbyists to get around through the Lobbying Act and influence people in positions of authority federally, provincially and at municipal levels. I am wondering if you can talk a little bit about how you see the act addressing issues such as indirect use of foreign influence through legitimate acts.
Mr. Bilodeau: Thank you for that question.
The foreign influence transparency registry is about increasing transparency of all influence done on behalf of foreign states, and it’s about putting that out in plain view for everybody to consult.
To your specific question about lobbyists, I’ll go back to what triggers a registration obligation. If someone in Canada — a lobbyist, for example — takes on a mandate with a foreign state to influence a government or political process, that lobbyist would have to register under the foreign influence transparency registry as well as their own obligations that they might have in other pieces of legislation. The legislation also includes the ability to bring into force the provisions for provincial, territorial and now as well municipal governments due to an amendment that was done in committee in the House of Commons. Anybody who has that agreement has to register whether or not they’re a lobbyist or anybody else, for that matter — it doesn’t exclude any person.
Senator Patterson: Thank you.
As a follow-up, their concern is on the secretive side. It goes back to whether bad actors will sign up. Maybe, Deputy Commissioner Flynn, this is for you. When you are investigating someone who, in effect, may be breaching two acts, the Lobbying Act and this new act, how would you investigate this? Where would the primary emphasis be?
Mr. Flynn: Primary emphasis is a very difficult question to answer because our approach moving forward is to combat the threat, not necessarily to have a focus with respect to the use of a particular tool. The expanded tool kit gives us more options and closes the gaps that we have seen in some of our current investigations.
To focus on the registration element of this and the transparency that that brings, it gives us another option to use if someone is using deceptive or surreptitious means to circumvent our ability to make that connection. We will use that tool in addition to the current tools that we have.
Mr. Bilodeau: If I can add to your question as well, the commissioner will have the ability to investigate and rely on complaints. If individuals were to become aware that somebody may be doing something that should be registered and they are not, they will be able to advise the commissioner’s office, and the commissioner will be able to investigate, just like the commissioner will be able to rely on intelligence that may inform their work. I understand there are other offences as well that are being brought forward that might be useful.
Ms. Watts: To the extent that it’s helpful, we need to think of Bill C-70 as a tool kit, and the registry is one of the tools in the tool kit. Some of the other things are the amendments proposed to the Security of Information Act, and I would bring you back to the political interference for a foreign entity offence. Where the conduct is surreptitious, deceptive and directed at a governmental process — which could include nominations, political leadership, development of party platforms, et cetera — and it falls within the elements of that offence, that is another tool that law enforcement can use to get at that activity.
Senator M. Deacon: Thank you all for being here.
My question specifically concerns U15 Canada, which represents our major universities. We have heard a bit about this from other witnesses, but their written submission on this legislation stated that the current criteria for determining the obligation to register activities on the foreign interference transparency registry poses significant concerns for research activities at universities and for the Canadian academic community. They note that they think this could be cleared up in the regulations, specifically in 6(1), which would allow for the non-application of the registry to certain classes of persons specified in subsequent regulations.
For these regulation exemptions, what has past experience taught you on how they are applied? Will groups like U15 Canada be able to use this as an avenue to submit exceptions through the regulatory process? How long, based on past experience, might this usually take?
Mr. Bilodeau: Thank you for that question.
Again, there is a three-part test to register, so I won’t go over it. I think we have spoken about it.
On the ability to bring regulations for exemptions, the development of regulations will be consulted, so we will have the opportunity to engage in those discussions. I would point out that the intent of the legislation was to include as few exemptions as possible to ensure that we are not excluding conduct that should be, in fact, captured.
Having said that, however, one of the concerns that we have heard also from the research universities and universities in general is that they are concerned about their partnerships with foreign universities who may be publicly funded and that being captured. Again, it is not sufficient to just say, “Well, there is a collaboration with a public university in a foreign state.” It still has to meet the three criteria, and it still has to be about influencing activities. I think that will be an important thing to remember.
The commissioner, when this is all set up, will have the ability to issue interpretation bulletins to explain what they may consider as registerable activities, and one key component of doing that will be educating the public on their obligations. It is not just a black-and-white thing that exists in legislation. It will be given life through the commissioner.
Senator M. Deacon: Thank you very much.
We also heard on Monday from the Canadian Civil Liberties Association, or CCLA — a whole different area but important testimony — about life imprisonment provisions brought in Bill C-70 under the newly named “Foreign Interference and Security of Information Act.” They stated that, for instance, a person convicted of mischief in relationship to the property for the benefit of a foreign entity faces up to life imprisonment instead of a maximum sentence of two years less a day, which we see in the Criminal Code. At first glance, this does seem heavy-handed, even in the context of foreign interference. I am wondering what certainties or guarantees civil rights groups can be given for those provisions which will be enforced in a proportional manner relative to the offence in question. I can direct this to the officials at the Department of Justice Canada first.
Ms. Watts: Part of the answer to the question is in your question. Sentencing is always an individualized process in the criminal law. Judges will give a sentence that is fit and appropriate to the circumstances of the offence and the offender. In the context of this bill and what we have proposed as maximum penalties, the idea of signifying the seriousness of an offence through the imposition of a potentially very high maximum penalty is something that the courts will look to in determining the seriousness of the offence and the conduct that is worthy of punishment. In all cases, this sentence has to be fit and proportionate. The fact that there is a high maximum penalty doesn’t mean that the sentence will be disproportionate, and it gives judges discretion within the range that is set by the law to find the right sentence for the offender.
Senator M. Deacon: Thank you for putting that on the record, as it’s come up as a concern.
Senator Kutcher: My question is to Mr. Flynn, and it follows up on Senator Yussuff’s question. I want to make sure that you agree that Bill C-70 will place an additional considerable burden on already under-resourced investigative and enforcement capacity in the RCMP.
Also, I would like to specifically ask you: What kinds of threat environments are the RCMP looking at currently and that we may not know much about? What plans are you aware of to enhance RCMP capacity for investigation and enforcement? What funding are you aware of or that has been flagged to you that might be directed to these kinds of resources, and if those have been flagged, do you have any idea when those resources might be available to you?
Mr. Flynn: I’ll attempt to be brief because there is a lot to unpack in that question. Thank you for the question.
Additional burden: Bill C-70 includes provisions for us to assist the commissioner in the investigation of the various activities that will be investigated there. Bill C-70 also gives us modifications to existing law and additional tools. Yes, there may be new offences that we’re investigating, but I would consider it modifications and additional authorities that may reduce the time of some of our investigations because of the additional options that we have.
However, what is really important, as I stated before, is that the light has been shined on this problem. There is a much greater understanding. We’re having a very good discussion here, and there are many other discussions occurring about this problem that are absolutely necessary because it is everywhere. It is an absolute threat, and there are significant harms to Canada that are occurring on a daily basis. Our tackling of that is a key priority for the RCMP, and specifically under my area of responsibility, federal policing.
We received funding under the Countering Hostile Activities by State Actors funding for us to add additional resources to combat this type of threat and the hostile activities specifically.
Internally, we are also aware that there are changes we need to make to ensure that our resources are being utilized for the highest priority. You will hear over time — some of you may have already heard — that we are making modifications to how the federal policing area operates. We have gone to a regional model. I have four regional commanders that are in charge of operations nationally that now report directly to me to ensure that I have both the accountability and the authority necessary to direct those resources to the highest priority threat.
I will take this opportunity, though, to state also that the number of threats that we are looking at, as I articulated before, is immense. We have resources that are working to exhaustion every day of the week, every hour of the day. Out of respect for them, I have to raise the fact that we do not have sufficient resources to do everything that we are called to do on a daily basis, and I would say that’s true for all police in the country and all of those that are involved in public safety.
Senator Kutcher: Thank you very much.
Senator Boehm: Thank you to the witnesses for the information you are providing.
My question is for Ms. Estabrooks. It goes to the issue of briefings and who gets briefings and who doesn’t among parliamentarians. There is such a thing as an unclassified briefing, which means it could be verbal, a slide deck or something like that. Then there are suggestions out there — notably by Professors Juneau and Carvin — that the leaders of political parties should receive a classified briefing of some kind so they could assume responsibility in their own caucuses.
Why not have an unclassified briefing as part of the onboarding process for anyone who is new to Parliament or refreshers for others? Seats change and newcomers join both houses, and you have a situation where suddenly they are in the limelight. They receive attention from foreign entities and diplomats. They don’t know the parameters of the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations. They don’t know where to turn. As Bill C-70 gets enacted and practices and regulations are established, would that be something that the service could take on, and do you think it is a good idea?
Ms. Estabrooks: Thank you for the question.
The briefings conversation has been very rich over the past number of years. The service has briefed dozens of parliamentarians from coast to coast to coast on threats to the security of Canada and in particular the foreign interference threat. There is also a fairly concerted effort with other partners in the security community, including public safety, the RCMP and our colleagues in cyber space, to help do exactly what you have discussed: to equip parliamentarians to be able to understand some of the vulnerabilities that they uniquely face and to take measures with regard to their handling of information, personal devices and that kind of thing in order to mitigate risks. These are typically done at an unclassified level — to your point — such that they can be helpful in the tactical space, but not necessarily for wider dissemination, effectively.
The bill moves the service’s authority to disclose classified information to a new level, and it is an ongoing conversation on exactly how that will look when it comes to parliamentarians. There are obviously a number of other factors to consider, but with the disclosure authority that is included in the bill, the service would have the ability to disclose information for the purpose of building resiliency to threats to the security of Canada. Therefore, it’s in line with what you have mentioned but richer and more informed by the collection we have.
Senator Boehm: With the objective of increasing the knowledge base, for example, foreign diplomats accredited here are sent by their countries to try to influence us. However, there are lines they cannot cross, and, of course, our diplomats abroad do the same thing. But sometimes there is a lack of knowledge in that respect.
The other element related to that is that if someone — an elected or appointed official — feels that they are too much under the scope or getting uncomfortable with the attention they are receiving, who do they go to? Do they go to their leadership within their own caucus or within their own group with a potential that it might have consequences for their careers, promotions, elevations or whatever? Is there some thought being given to some sort of a mechanism in that respect?
Ms. Estabrooks: I will take this first, and then pass it to you, Richard.
The service will always talk to anyone about any perceived threat that they may be experiencing. Routinely, individuals in influential positions will approach the service and ask to be equipped with some information and perhaps share some information. Obviously, we take that very seriously, and we protect the confidentiality of those exchanges at the highest level. There is nothing prohibiting that. There is no limit on that. Of course, if there is something worthy of further investigation, we would be deeply engaged. We also have 1-800 numbers and e-mail addresses for this kind of routine disclosure, which sometimes comes from communities who may not necessarily feel comfortable engaging a security official directly.
Senator Dalphond: My question is for Ms. Watts from the Department of Justice. It is a follow-up on my first questions with the minister. The minister gave the broad principles, and I think I would like something more specific.
First, I understand that with the new offence of sabotage for essential infrastructures, the key element is that it has to be endangering the safety, security or defence of Canada — especially with a look at subsection (b). It is the naval, army or air forces of other countries. I guess it gives a sense of what is being protected.
The question I asked the minister was about the people who were protesting in front of parliament two years and a half ago. They would not be covered by the provisions because that would not fit the definition of endangering the safety, security or defence of Canada. Am I wrong or right to assume that?
Ms. Watts: I think you have got the elements of the offence right. It is anyone who:
. . . interferes with access to an essential infrastructure or causes an essential infrastructure to be lost, inoperable, unsafe or unfit for use with the intent to —
(a) endanger the safety, security or defence of Canada;
The courts will have to figure out exactly how they intend that term to apply. It will obviously depend on the facts and circumstances of the case.
Senator Dalphond: But in principle, this is not targeting protests before Parliament?
Ms. Watts: No. I think your previous question — if I remember correctly — dealt with the “for greater certainty” clause in subsection (5).
Senator Dalphond: Yes.
Ms. Watts: You need to read the two together. The intention is not to make criminal what is lawful dissent and protest. We recognize freedom of expression, and I think the Charter statement that’s been tabled for this bill gives you a very good explanation of that. The “for greater certainty” clause really is meant to do just that — to be very clear that we do not intend to capture lawful dissent, protest and advocacy where they don’t intend to cause one of those harms listed in number one.
Senator Dalphond: Is that necessary? The last part is the definition of what they intend to cause.
Ms. Watts: Yes.
Senator Dalphond: So it is repetitive, to a certain extent.
Ms. Watts: Yes, I would say you are right. It is repetitive, and because it is a “for greater certainty” clause—
Senator Dalphond: Doesn’t the repetitiveness raise the issue that it is a means of defence or an exclusion? Who has the burden to show it? Wouldn’t it be better to remove that part and keep it as the intent in the main definition, which is clearly the Crown’s burden?
Ms. Watts: It is a very good question. As with all criminal offences, the Crown is always going to be the one that bears the burden of proving beyond a reasonable doubt that the elements of the offence have been committed, and this bill does not change that.
The “for greater certainty” clause here is a little bit — you also need to look at the original sabotage offence, which had a carve-out for labour advocacy and protest. It is really a similar type of thing. It is just that — “for greater certainty.” It does not affect the burden or change the elements of the offence. It is really just to signal what the offence is not intended to capture.
Senator Dalphond: Thank you. My suggestion would be to please reconsider, before it is voted on, whether it is necessary to have the intent twice in the definition of the infractions and in the exclusions from the infractions. Maybe it is redundant and creates a certain vagueness. Thank you.
Ms. Watts: Thank you for the question.
Senator Cardozo: I just have a couple of questions.
Further to our discussion earlier about naivety, I wonder if we are also being naive about non-state actors. I want to read you a sentence from a Department of Homeland Security bulletin titled Summary of Terrorism-Related Threat to the United States:
The United States remains in a heightened threat environment. Lone offenders and small groups motivated by a range of ideological beliefs and personal grievances continue to pose a persistent and lethal threat to the Homeland.
From what I understand, this bill does not deal with non-state actors. They are talking about non-state actors in the U.S., and I think we have some of those spilling over to Canada. I am interested in your thoughts. If we don’t do it here, where do we do it?
The second question is with regard to the registry. What about all those real bad actors who don’t register? What can we do about them?
Mr. Bilodeau: Maybe I will start with the second question, and then start answering the first and then turn it over to Deputy Commissioner Flynn.
You are right that the bad actors are going to try not to register. That’s why the bill proposes a number of investigative tools for the commissioner, including the ability to investigate and use intelligence as well as production orders and similar other tools to identify those actors who may not be registering. I’ll give you an example. Somebody may write an op-ed in a newspaper. They may be doing it on behalf of a foreign state, but they are not registered. Maybe complaints come in and identify them and say, “We think this person may be associated with a foreign state.” The commissioner can then take that, investigate it and determine whether or not that’s the case. We expect we will have all those tools to investigate. Together with all the other tools that are being proposed in Bill C-70, we’ll be able to tackle that.
About the terrorism threat, I will say that counterterrorism remains a top priority. There are a number of other tools available in the Criminal Code, including listings of terrorist organizations. I know it remains a priority for the RCMP.
Mr. Flynn: Absolutely. When I look at the terrorism threat and what you described in the U.S. documents you were referring to, we have tools that you will see us use on a daily basis to combat those threats. I am concerned with the level of social erosion we have. I’m especially concerned about the level of involvement of youth. The youngest that I have recently had the challenge of reviewing files and receiving information on is as young as 12 years old being involved in terrorism in Canada.
I don’t look to the tool kit in Bill C-70 to address that lone actor or terrorism threat. We have listings, and we have terrorism legislation that we use on a regular basis to combat that. I do think there needs to be a lot of attention paid to that problem, and I actually think a lot of the solution to that is outside of the law enforcement space. It has to do with looking at how we conduct ourselves as a society — what is acceptable and what is not — and society needs to enforce a lot of those rules. I think we will see a change if we can bring about that attention to the matter and focus on all of us being part of the solution. Otherwise, we will just exhaust investigators. As you saw before Christmas, there was a significant threat right here in Ottawa, and I can tell you that the efforts to combat that threat were exhausting.
Senator Cardozo: Are you saying that the laws we have currently cover these other threats but don’t cover foreign state actors, and that’s what this bill is about?
Mr. Flynn: Specific to this, I think that is an accurate characterization. It is addressing gaps with respect to foreign state actors as well as elements that have been a challenge in the past to do with the harm and “in the interest of” provisions that my colleagues have spoken about previously or which the last panel spoke about.
Ms. Estabrooks: One of the particular challenges in this milieu is the digital nature of our work today. Some of the proposals in Bill C-70 would better equip the service in that space. We’ve used the word “modernization,” and we’ve also talked about how old the CSIS Act is at length. Many of the amendments proposed in the bill would better equip the service in its investigations in the digital space in terms of leveraging technology and data and approaching the Federal Court for the right authorities for the kind of collection we need to do, because the digital nature of these extremist investigations is extremely complex. It is very easy to hide online, it is very easy to remain anonymous, and our tool kit has not kept pace with the rapid technological evolution.
The Deputy Chair: This brings us to the end of our time with this panel. Thank you to our witnesses for taking the time to meet with us today.
This brings us to the end of today’s meeting. We will continue our consideration of the subject matter of this bill tomorrow, Thursday, June 13, at 8:00 a.m. Eastern Time in Room C-128 of the Senate of Canada building. I thank you for your participation today. I wish you all a good day.
(The committee adjourned.)