THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Thursday, June 13, 2024
The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 8 a.m. [ET] to study 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: Honourable senators, before we begin, I would 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. If possible, ensure that you are seated in a manner that increases the distance between microphones. Only use 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 were not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
[Translation]
Welcome to this meeting of the Standing Senate Committee on National Security, Defence and Veterans Affairs. I am Jean-Guy Dagenais, senator from Quebec and deputy chair of the committee. Our chair, Senator Tony Dean, is the sponsor of Bill C-70, which we will be examining this week, and therefore, has asked me to chair these proceedings.
Before we begin, I welcome the committee members here today to introduce themselves, beginning on my left.
[English]
Senator Richards: Dave Richards from New Brunswick.
[Translation]
Senator Carignan: Good morning. Claude Carignan from Quebec.
Senator Housakos: Leo Housakos from Quebec.
[English]
Senator Cardozo: Andrew Cardozo, Ontario.
Senator Woo: Good morning. Yuen Pau Woo, British Columbia.
Senator M. Deacon: Welcome. Marty Deacon, Ontario.
Senator Anderson: Margaret Dawn Anderson, Northwest Territories.
Senator Dean: Tony Dean, Ontario.
Senator McNair: John McNair, New Brunswick.
Senator Dasko: Donna Dasko, Ontario.
Senator Boehm: Peter Boehm, Ontario.
Senator Yussuff: Hassan Yussuff, Ontario.
Senator Kutcher: Stan Kutcher, Nova Scotia.
The Deputy Chair: Thank you, colleagues.
Today, we will continue our consideration of the subject matter of Bill C-70, An Act respecting countering foreign interference.
[Translation]
Joining us on today’s first panel, I am pleased to welcome the hon. Michael Chong, the member for Wellington—Halton Hills; Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group; and Trevor Neiman, Policy and Legal Counsel, Business Council of Canada.
Welcome, gentlemen, and thank you for accepting our invitation. I now invite you to provide your opening remarks. We’ll begin with the hon. Michael Chong.
Mr. Chong, you may begin when you are ready.
Hon. Michael Chong, P.C., MP, Wellington—Halton Hills, as an individual: Hon. senators, thank you for inviting me to your preliminary study of Bill C-70, An Act respecting countering foreign interference. This bill is critical to protecting our democratic institutions and elections.
[English]
Canadians expect their government to protect them from the malign threat activities of authoritarian states. Canadians expect the whole of the Government of Canada, including its intelligence agencies and its law enforcement, to protect our elections and democratic institutions from the clandestine, coercive and corrupt foreign interference threat activities of authoritarian states. That is what Canadians expect, and that’s why Canadians were so shocked when the extent of foreign interference threat activities in our democracy was revealed to Parliament and to the public.
Justice Hogue, who is leading the foreign interference public inquiry, concluded in the inquiry’s initial report, which was released on May 3, last month, that “Interference occurred in the last two general elections . . .” and became so serious that it “. . . diminished the ability of some voters to cast an informed vote . . . .” She also concluded that foreign interference had a negative impact on the broader electoral ecosystem in both the 2019 and 2021 elections and that it undermined public confidence in Canadian democracy.
Bill C-70 is a response to the shocking revelations of foreign interference threats directed against our elections and against the elected House of Commons. Bill C-70 contains a range of measures that will protect candidates in the next general election and protect members of the House of Commons.
Now that Bill C-70 is working its way through Parliament, inaction and delay cannot continue. As Justice Hogue noted, the risk from the impacts of foreign interference will only increase as long as “. . . sufficient protective measures to guard against it” are not taken. As the general election draws closer, time is running out to strengthen the confidence Canadians have in our elections.
It is not often that the official opposition works with the government on legislation to see its passage through the House of Commons. Liberal and Conservative MPs and MPs in other parties representing the vast majority of Canadians have supported this bill as it has gone through the House and its committee. It appears that when the bill comes to a vote this afternoon in the House of Commons that those MPs will rise to support the bill. This is how serious members of the House of Commons see the threats to the elected house and to our elections.
[Translation]
In light of the intelligence revealed in the most recent reports by the National Security and Intelligence Review Agency, the Committee of Parliamentarians on National Security and Intelligence and the Commission on Foreign Interference, it is essential that we as parliamentarians ensure the protection of our institutions and our elections. We must work together to preserve the integrity of our elections and democratic institutions. In my opinion, Bill C-70 is an excellent first step.
[English]
I look forward to your questions. Thank you.
[Translation]
The Deputy Chair: Thank you very much, Mr. Chong. Now we will hear from Mr. McSorley.
[English]
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group, as an individual: Thank you for the invitation to appear here today on behalf of our coalition of 46 Canadian organizations.
We recognize the importance and urgency of addressing the impacts of foreign interference, particularly where governments are threatening individuals or their close ones in order to repress their ability to exercise their fundamental rights or engage in democratic processes.
I’m also very cognizant and grateful for the efforts that have gone into this committee holding multiple and even marathon meetings throughout this week. However, I must share that I, the coalition I represent and my colleagues at other civil liberties and human rights organizations are deeply troubled by the rushed process that this bill has taken. A bill of such breadth requires in-depth study. Introduced barely a month ago, with the foreign interference inquiry ongoing, it will have gone through committee study in both chambers of Parliament in just two weeks. This is faster than the 2001 study of the first Anti-terrorism Act, which was granted consideration over a period of two months. This expedited study means that experts and organizations with limited resources have had to rush their analysis of the bill and has made submitting briefs and appropriate amendments nearly impossible.
Bill C-70 is a very consequential bill that deals with crucial issues that are important to the protection and promotion of democracy and democratic rights in Canada. It has the potential to uphold those rights, but also contains very clear areas where those very rights may or will be undermined. We fear that those concerns will remain unaddressed until after Bill C-70’s provisions are implemented and their impact felt by individuals and communities across Canada. We’re therefore urging the committee to work with your fellow senators to extend your study of Bill C-70 in order to hear more input and analysis and to provide the opportunity to develop, propose and debate amendments.
In what ways are the changes in Bill C-70 consequential? It has been presented as legislation to address the important threats of foreign interference, but the changes proposed through this legislation also go much further. If adopted, Bill C-70 will have wide-ranging impacts on Canada’s national security, intelligence and criminal justice systems. As such, it will also have significant impacts on the lives and fundamental rights of people in Canada. This includes growing surveillance, diminished privacy and increased racial, religious and political profiling. Other provisions contain undefined or overly broad wording that could infringe on freedom of expression and association, along with proposed punishments that raise significant questions of proportionality and sentencing. The way courts handle sensitive information will also change, undermining due process in the justice system through the use of secret evidence.
I’d like to share some of our specific areas of concern.
First, modifications to CSIS’s data set regime are only tangentially related to foreign interference. Many of these changes actually arise from a scathing National Security and Intelligence Review Agency report that found CSIS had been breaking the law in its implementation of the data set regime. Instead of ensuring adherence to the law, the law is being modified to legalize CSIS’s activities. The potential consequences of these changes remain unclear and should have been addressed during a statutory review of 2019’s National Security Act. We recommend removing these changes until such a review can happen.
We are also concerned by changes to disclosure powers in section 19 of the CSIS Act. While we understand the goal and importance of ensuring appropriate information can be shared, serious questions have been raised for the past two decades around how CSIS has handled the disclosure of sensitive information. Clauses 34(2) and 34(3) of Bill C-70 in particular require greater safeguards.
Bill C-70 also grants CSIS significant new production order and warrant powers. It comes after years of courts admonishing CSIS for misleading them in their warrant applications. Warrant requirements exist to protect our rights, and they shouldn’t be lessened right now, especially not while CSIS’s problems of breaches of duty of candour to the courts have not been properly addressed.
This bill also changes the Security of Information Act to create new rules that would see minor offences, if committed in association — which remains undefined — with a foreign entity, be punishable by either life in prison or consecutive sentences that could amount to life in prison, raising concerns of proportionality in sentencing as well as freedom of expression.
We also have concerns about the proposed foreign influence registry and new sabotage offences, including a very troubling amendment adopted in the other place this past Monday.
I would like to conclude by commenting on changes to the Canada Evidence Act. Our coalition is fundamentally opposed to expanding the use of secret evidence in Canada’s courts under the guise of protecting national security, national defence and international affairs. Introducing a standardized system for withholding information from those challenging government decisions will normalize this process and will facilitate the spread of the use of secret information further into our justice system.
Thank you very much for my time today, and I look forward to discussing this with you further.
[Translation]
The Deputy Chair: Thank you very much, Mr. McSorley.
[English]
Next we’ll hear from Mr. Neiman.
[Translation]
Mr. Neiman, the floor is yours.
[English]
Trevor Neiman, Vice President, Policy, and Legal Counsel, Business Council of Canada: Mr. Chair, committee members, thank you for the invitation to take part in your study of Bill C-70.
As an organization representing Canada’s most innovative and successful businesses, I will restrict my comments today to the portion of the bill that has the most direct relevance to the Canadian economy and the private sector, clause 34(3), which seeks to amend the Canadian Security Intelligence Service Act to enable CSIS to disclose threat intelligence to stakeholders outside the Government of Canada for the express purpose of increasing their awareness and resiliency against foreign interference.
However, before commenting on this clause, I want to make crystal clear that the Canadian business community is broadly supportive of Bill C-70 in its entirety. From the establishment —
[Translation]
The Deputy Chair: Mr. Neiman, I would ask you to slow down.
[English]
Just speak more slowly for the interpreters.
Mr. Neiman: Thank you Mr. Chair.
From the establishment of a foreign influence transparency regime to the creation of new sabotage offences, this urgently needed bill will help protect Canadians’ lives and livelihoods by providing our government with the tools it needs to better protect our country.
I will start my substantive remarks by noting that while the current discussion in Canada surrounding foreign interference has been rightly focused on the integrity of our democratic processes and the safety and security of targeted and ethnic and cultural groups, it is important for us all to acknowledge that state actors actively target all aspects of Canadian society. This includes the Canadian economy. Indeed, in an era of growing geopolitical rivalry, in which supply chains, infrastructure networks and technological innovation increasingly determine strategic advantage, Canadian businesses are often the primary target of our adversaries. This should concern all Canadians.
Economic security threats are not abstract, nor do they exist in a vacuum. These threats target the critical infrastructure needed to power our homes. They target the supply chains that provide our families low-cost food and medicine. They target the intellectual property that creates good jobs and helps pay our bills. In short, these threats put Canadians’ very safety, security and prosperity at risk.
To be sure, businesses and governments invest billions each year to keep Canadians safe from these and related economic attacks. However, if we want to be truly effective in protecting our way of life, then we must replace our independent efforts with collective action. Key to building this partnership is the sharing of threat intelligence.
Unlike the domestic security agencies of Canada’s Five Eyes partners, who possess modern legal authorities allowing them to share detailed threat intelligence with their respective business communities, CSIS is presently prohibited from sharing all but the most generalized threat intelligence with the Canadian private sector. This represents a considerable gap in Canada’s defences. Despite CSIS having both the knowledge and expertise to help Canadian companies withstand growing threats, CSIS’s outdated legislation means businesses are left fending for themselves.
It is for this reason that the Business Council of Canada strongly supports clause 34(3). With new threat intelligence sharing authorities, CSIS could communicate more specific and tangible information with Canadian companies. This would give business leaders a clear understanding of the growing threat, as well as the protective measures that could be taken to better safeguard their employees and customers, as well as the communities in which they operate.
The use of these new authorities would also benefit the Government of Canada by helping CSIS build greater trust and confidence with the Canadian private sector. This would encourage business leaders to share more with Ottawa about the threats they’re seeing on the ground, which would better inform government policy as well as improve CSIS’s ability to respond to future threats.
Of course, the granting of any new powers must be consistent with the values that we share in our democratic society, including respect for individuals’ rights and freedoms. On this front, we’re very pleased to see that the Government of Canada has incorporated rigorous safeguards into clause 34(3) such as to ensure that disclosures protect Canadians’ privacy interests.
Before concluding, I want to stress the need for urgency. The Business Council agrees with many lawmakers that the protections contained within Bill C-70 must be put in place before the next general election. The preservation of our democratic system is of utmost importance. However, I will add that when it comes to strengthening the resiliency of our economy, Canada is falling far behind our allies. This not only exposes everyday Canadians to unnecessary risks, but by failing to move in lockstep with our closest allies, we risk being perceived as a weak link. This could jeopardize our country’s relationship with allies at a pivotal moment when the global order is being reshaped and partnerships matter most.
I’ll conclude by noting that Bill C-70 is just one of many economic security reforms that must be urgently undertaken to protect Canadians. As a priority, the Business Council urges the Government of Canada complement clause 34(3) with a formalized threat exchange to securely receive and disseminate CSIS’s threat intelligence broadly across the Canadian economy. This and nearly 40 other much-needed reforms are included in the Business Council’s recent report Economic Security is National Security.
Thank you for the opportunity to speak. I look forward to your questions.
The Deputy Chair: Thank you, Mr. Neiman.
We will now proceed to questions. As usual, four minutes will be allotted for each question, including the answer. I ask that you keep your questions succinct in an effort to allow as many interventions as possible.
Senator Boehm: Thank you, witnesses, for being with us. I have two questions, if there’s time, one for Mr. Chong and one for Mr. Neiman.
Mr. Chong, you said in your remarks there’s widespread agreement that this bill is necessary and long overdue, and there’s multipartisan agreement on it. As David McGuinty, chair of NSICOP, told us here on Monday, foreign interference against Canada is not new to Canada. In fact, we’ve been aware of it for decades, and it exists in other countries as well. But there’s certainly been politics on all sides over the timing of this bill and over the NSICOP report. How do we ensure that the substance, that is, the effort to combat foreign interference — since this, as you said, is a preliminary step — does not fall victim to excessive politicization? Is that something that worries you at all as a prominent parliamentarian and as someone who has been targeted himself in a foreign interference campaign, given this is a heated debate, especially when it comes to demands for naming and shaming and briefings and non-briefings? I’d like your views on that.
Mr. Chong: Thank you, senator, for the question.
This bill will give the Canadian Security Intelligence Service new powers to fortify Canadian democracy against these foreign interference threats by allowing CSIS to brief individuals outside of the Government of Canada. It also establishes a new framework act of parliament to establish both a commissioner and a foreign influence registry. I have faith in the public service. I have faith in the public servants in the whole of the Government of Canada, in our security agencies and in the establishment of this new commissioner that they will fulfill their roles under this act in a way that is non-partisan and in a way that interprets the act to the benefit of Canadians while ensuring protection against foreign interference and the protection of Charter rights.
Senator Boehm: Thank you.
Mr. Neiman, in your remarks and in your news release of May 6, you made reference to the need for business to be adequately informed by CSIS and, indeed, as there are developments, that business be kept abreast of what is going on so they do not fall into difficult situations. Does your organization have any relationship with CSIS currently, even on an ad hoc basis, or do any of the members have that? Are there specific concerns other than what you mentioned in your remarks, and what level of intelligence or threat-sharing relationship does the Business Council of Canada envision with CSIS? Would there be, in your view, a two-way-street opportunity? In other words, if a business feels threatened somehow or that it’s being lured into something, is there a way for that business to then approach CSIS or other authorities?
Mr. Neiman: Thank you for the question.
The Business Council of Canada does indeed have a relationship with CSIS, but also with the broader security and intelligence community in Canada. However, we would say that that relationship is very much a one-way street when it comes to collaborations with CSIS. That’s because, as currently constituted, the CSIS Act prohibits CSIS from sharing all but the most generalized information with the private sector. There are certain exceptions when there’s an imminent national security threat. CSIS might be able to use its threat reduction powers where they meet certain legal thresholds to share information with the private sector, but very much that’s a flawed mechanism for collaboration because of the legal thresholds I mentioned and because it’s reactive in nature. An effort is under way to further strengthen and solidify that relationship with CSIS, but the key to that will be passing Bill C-70 and, in particular, the information sharing regime in 34(3).
Senator Housakos: My question is for Mr. Chong. When we look over the last decade, it has become evidently clear that the biggest impediment to dealing with foreign interference seems to be this government. The first thing they did when they came into power in 2015 was to repeal and revamp Bill C-51 from the previous government that was trying to take the first steps to deal with national security issues and deal with foreign interference. We saw the Conservative Opposition — and yourself — for a very long time have been calling for a foreign registry and have been raising red flags in regard to this issue, and the response from the Trudeau government in previous parliaments was to cry racism. We’ve had a bill that the Conservatives tabled in the Senate that has been adjourned for three years, and the government has not been willing to take it up and run with it. We’ve seen the special rapporteur fiasco, which was another attempt to rag the puck and try to not deal with the impending difficulties and problems that we and our Five Eyes allies are facing.
My questions are two: Why has the government dragged its feet on this for almost a decade? What are the ramifications and impact in terms of dealing with foreign interference, given that we’re so far behind our other Five Eyes allies?
Mr. Chong: Thank you, senator, for the question.
I think it has taken the government too long to get to this place. That’s why, when the government finally introduced Bill C-70 in the House of Commons and we studied it, we jumped at the opportunity to support it. But it did take too long to get to this place.
The NSICOP report that was released just last week highlighted that the government was warned in 2018 that foreign interference activities are a serious existential threat to Parliament and our elections. The Prime Minister was warned at the time that measures in place were not sufficient to protect our democracy against these threats and was also advised to take further action.
In fact, the Clerk of the Privy Council, in December 2019, went to the Prime Minister, asking for approval for an action plan to protect Parliament in our elections, and the Prime Minister withheld his approval. A year later, the National Security and Intelligence Advisor, or NSIA went to the Prime Minister for a second time, asking for approval for an action plan to protect Parliament. Again, approval was withheld. For a third time, the initiative was resurrected by the NSIA in February 2022, and again, approval was withheld. So, on three separate occasions, the most senior of the civil service approached the Prime Minister for approval for action to protect Parliament and our elections, and the approval was not granted.
Fast forward to today, it’s clear — as Justice Hogue noted in her report — that the impact and the risks associated with foreign interference threats have only increased as a result of our inability to implement measures to protect our democracy and our elections.
This bill comes after many years of study within the Government of Canada and within Parliament. In fact, in this Parliament alone — I looked it up, and my staff did a lot of leg work in preparation for this committee — four committees of the House have examined foreign interference. They conducted 70 meetings on foreign interference — I’m not including the meetings on this bill — interviewed and heard from 364 witnesses, heard 152 hours of testimony and gathered 1,902 pages of evidence.
This is a much delayed bill, but it’s now in front of us, and we have an opportunity to see it through.
Senator Yussuff: Thank you, witnesses, for being here.
Mr. Chong, if I could come back to you, you’ve been subjected to interference, suffering threats to your family and to yourself in regard to foreign interference. Given that we’re here now with a consensus bill with parliamentarians, the bigger question I have is, we have seen an authoritarian regime, or even democratic regime — as we’ve seen — involved in the murder of one of our own citizens in this country. This is a serious issue. How do we put aside the partisan politics that attempt to dominate debate and look at the nation’s security? It’s not a Conservative issue or a Liberal issue; it’s a Canadian issue. How do we put aside all of that and how do we work together? Whether you like it or not, China is not subjected to a four-year election cycle. They have a continuous approach to their foreign relations and, more importantly, how they take on issues in terms of threats and challenges they face. How do we build a mechanism that is more robust but also means that all of us have to put our hands together as parliamentarians for the greater good of the country?
Mr. Chong: Thank you, senator. I think that’s an excellent question.
I think the government has achieved that in this bill through the commissioner model. The commissioner can only be appointed after not only consultations with the leaders of the recognized parties in the House of Commons and the leaders of the entities in the Senate, but also after resolution is adopted by the Senate and resolution is adopted by the House of Commons. Parliamentarians will necessarily indicate their support for the commissioner. The commissioner will be, at the same time, situated within the Department of Public Safety and Emergency Preparedness so that we don’t see some of the siloing that has taken place in the past that prevented the government from acting on national security issues. I have confidence that the commissioner will be sufficiently independent while at the same time situated within the machinery of government in order to effectively carry out his or her job, while at the same time having the support of parliamentarians. It’s not an independent officer of Parliament position that’s being created in this bill, but at the same time, we have seen broad support across the aisle for models like this that have allowed us to deal with various issues in the past.
Senator Yussuff: My next question is for Mr. McSorley. You raised some important points with regard to civil liberties in the broader context of this bill. The right to protest in this country has been fundamental to the Charter. You’ve commented very clearly that you see the line being blurred here in regard to the expansion of language used in this bill. Could you comment in terms of your fears and worry in regard to how this bill might apply should a government choose to be much more aggressive in utilizing those sections of this new provision in the bill?
Mr. McSorley: Certainly. Thank you very much for the question, senator.
One of the key areas we’re concerned about — and we share those concerns with the Canadian Civil Liberties Association that was here on Monday — is the lack of definitions in the foreign interference transparency registry. We’re concerned that language around what constitutes a foreign entity, what constitutes association, in particular, is incredibly broad and doesn’t necessarily specify that there’s a benefit or even an influence from that foreign entity, simply that there may be some form of association. Over the past 20 years working specifically on counterterrorism and civil liberties, for example, we’ve seen charities, specifically from the Muslim community, accused and investigated for very vague association, sometimes only because they’ve received invitations to appear at conferences from international organizations.
[Translation]
Senator Carignan: I have two questions; the first is for Mr. Chong.
Because it’s well documented in the report of the Committee of Parliamentarians on National Security and Intelligence, we’ve seen the deficient processing of information or the poor judgment on decisions to be made. The Canadian Security Intelligence Service provides information, but there’s also a political adviser, there are people around the Prime Minister or sometimes the Prime Minister himself doesn’t believe it and says it’s not important. I don’t think that’s enough; there are competent people and if the information gets to the Prime Minister, it’s because it’s reliable. Yet things don’t move.
I look at the bill, I don’t see any limits on or means of oversight and monitoring, or a way to take that discretion away from the political adviser or the Prime Minister.
Doesn’t this concern you? Could improvements be made? If it’s not in this bill, could it be done at a later date to avoid this kind of situation where we have a Prime Minister who is wearing rose-coloured glasses?
Mr. Chong: Thank you for the question. The law cannot ask elected officials and politicians to do something that concerns the consumption of intelligence and national security advice.
In my opinion, this bill gives CSIS the power to go outside the Government of Canada and indicate information that will protect the private sector, individuals, businesses, universities and so on. In addition, the government must ensure that these individuals and entities have information to protect their rights and their business.
[English]
The bill allows CSIS, for the first time, to brief classified information outside of the Government of Canada. That is a good thing because, first of all, our security agencies have been asking for powers to do this for some time, and it will bypass a roadblock we’ve seen outlined in NSICOP and other reports where the cabinet has failed to heed the advice of CSIS to harden civil society against these threats by allowing CSIS to go around the Prime Minister, to go and brief outside of the Government of Canada its intelligence information, to use sunlight and transparency to harden civil society against these foreign interference threats.
[Translation]
Senator Carignan: My next question concerns the business sector. Certainly, some communication can take place with businesses, but there are limits to this information, particularly when it comes to the name or person associated with a Canadian entity. Canadian entities will be used to hide, make threats and engage in espionage. I feel like we’re putting in a set of teeth only to have them pulled right away.
The Deputy Chair: Senator Carignan, your time is up, but you will be able to ask questions in the second round.
[English]
Senator M. Deacon: Thank you for being here today, all of you. I appreciate that.
I want to come back to a question similar to that of my colleague Senator Boehm earlier the business community. Thank you for reminding us of the importance of that and the words “two-way street.” You weren’t quite finished your answer, so I want to make sure we get that answer out. It was something you referred to in your submission in the other place. I’ll give you a few seconds to finish it.
Mr. Neiman: Thank you.
As I mentioned in my opening remarks, we believe that CSIS’s new threat-sharing powers is only the first step that needs to be taken to strengthen the resiliency of the Canadian economy. It needs to be followed up by the Government of Canada establishing a mechanism to securely and efficiently disseminate CSIS’s threat intelligence broadly across the Canadian economy.
The Business Council has called for the government to create a formalized threat exchange that is based on the United States’s highly successful Domestic Security Alliance Council — DSAC. DSAC is a partnership between 700 strategically important American corporations, the Federal Bureau of Investigation and the Department of Homeland Security. Through timely two-way information exchange, DSAC advances the U.S. government’s mission of protecting national and economic security while also giving American corporations the ability to safeguard their operations, customers and communities.
DSAC members benefit from a variety of benefits from participating in this organization, including direct and high-level engagement with leaders from the FBI and DHS. The private sector gets tailored access to threat intelligence specific to their sector, and then both the public and private sector also gain access to a network of security practitioners where they can collaborate, resolve problems jointly and share best practices.
At the Business Council, we believe that CSIS, Public Safety Canada and the business community are well positioned to establish and operate a similar exchange to really make sure that these authorities in clause 34(3) are used to the utmost to build the greatest resilience across the economy by ensuring that Canadian businesses, businesses on the front lines protecting Canadians, really have the information that they need to protect Canadians from these evolving threats.
Senator M. Deacon: Thank you. It’s interesting timing that DSAC is also under a good review south of the border. That will, hopefully, be helpful.
Mr. McSorley, I want to come back to something I brought up yesterday and heard in part of your introduction, and that comes back to the maximum sentences that could apply from any range of crimes, from mischief to crimes of violence. Yesterday, we asked the officials. They felt it would be proportional, that it would be appropriate and that guides would be set in place for it to work and work well. I’m curious today if you feel the same way. If you have concerns, what change would you like to see in the legislation that would strike a balance between the proportionality while also recognizing the severity of foreign interference in Canada?
Mr. McSorley: Thank you. I appreciate the question.
We are concerned and remain concerned that there are new offences created that would result in life sentences or consecutive sentences.
One of the things that we’ve suggested is that for consecutive sentences, currently the bill says that it’s required that less than life sentences are served consecutively. We’ve made the suggestion that it should instead read that they may be served consecutively in order to give the judge greater decision making on whether or not consecutive sentences that could amount to a life sentence should be imposed.
We’re also concerned that the new provisions will allow for a potentially very minor offence, if done simply in association with a foreign entity, to then lead to life imprisonment, which we think is a very disproportional possibility. Similar to the CCLA again, we would support the idea that it would be changed to reflect parallel or similar sentences or that there be some kind of restrictions placed on how long it would be.
Senator Kutcher: Thank you all for being with us this morning.
My question is to Mr. Chong and Mr. Neiman, and it’s about transnational repression. The bill is a step toward addressing this, but we’ve heard quite compelling testimony about the impact of transnational repression on Canadians and concerns the bill might not be sufficient. Those concerns were raised at the individual, academic, community and business levels. Can you share with us what else needs to be done to address these challenges? Particularly, what are your thoughts on the role and the resources of the RCMP to protect Canadians from threats and harassment from foreign actors and businesses?
Mr. Chong: Thank you, senator. You raised a very good question.
One of the things the Government of Canada needs to act upon is the long-standing recommendation of many reports to reform the RCMP. The Mass Casualty Commission’s Final Report was released recently, and there have been other reports over the last 20 years. There has been the recommendation of the Legislative Assembly of the Province of British Columbia. There’s been the desire of the Government of Alberta to get the RCMP out of contract policing to focus on its federal mandate. There’s also been a recent report of NSICOP that made a similar recommendation. I think that is a critical component in enforcing federal law when it comes to transnational repression, which often involves issues like money laundering and foreign interference that the force is not properly resourced to do currently.
The NSICOP report noted that the entry requirements into Depot in Saskatchewan are 18 years of age and a high school degree. At Quantico, the FBI has a requirement of 23 years of age and a university degree. Out of the 823 hours allocated for training at Depot, only six hours are for federal mandate policing; the other 817 hours are for provincial contract policing.
So, clearly the force is not properly resourced to enforce its federal mandate, which explains why there’s been a lack of prosecution here in Canada when it comes to federal law and federal mandate, particularly regarding transnational repression.
Mr. Neiman: Unfortunately, I don’t have a sufficient response to this question at this time, but I could endeavour to respond back in writing, if that’s appropriate.
Senator Kutcher: Thank you.
Senator Cardozo: Perhaps I could have the senator’s remaining minute while I ask my question. Thank you very much.
Mr. Chong, thank you very much for coming here. More importantly, thank you for your work over many years on this. Apart from your family being harassed, as Senator Yussuff talked about, you’ve done a lot of work in this area.
There are many issues I could ask you about, but the issue of the registry in Part 4 of the bill — I see one gap there, which is that bad actors would not be chomping at the bit to register. How do we deal with that aspect? You and I have had the chance to talk about this in the past, but I’d like to get your views in more detail on the record.
Mr. McSorley, in terms of timing, one of the reasons we’re looking at the urgency of this is that, in order for the registry to go into effect before the election, we need to pass this as soon as possible. Is there a way to carve out clause 113 of Part 4 from the bill? Can we do that first and do the rest later?
Mr. Chong: Thank you for the question.
First, I’d like to state that while my case has been closely followed and watched, many Canadians have suffered in silence who have been subject to these repression tactics. I feel my role is to speak for the voiceless and give voice to the repression they have felt over many years. That’s why I’m so intently focused on working with the government to see the passage of this bill.
With respect to your question, I note that the structure of the bill ensures that people engaging in legitimate influence activities on behalf of a foreign principal will register. In the interests of transparency, that’s a good thing. We require lobbyists to register and others to register, and now require people acting on behalf of a foreign principal to register.
For those who are engaged in clandestine, coercive and corrupt foreign interference and influence activities, they will obviously not register. There, the bill provides not only a deterrence from them engaging in those activities but, if they decide to engage in those activities, the bill provides a three-step process to go after those individuals.
First, the commissioner can issue notices of compliance. Failing to cooperate with the commissioner can lead to penalties.
Second, the commissioner can issue administrative monetary penalties, which are civil fines that will allow her to go after individuals who are engaged in these clandestine, corrupt and coercive activities.
Third and finally, if the evidence or information rises to the level of criminality, she can refer it to the police of jurisdiction, Crown attorneys or Crown prosecution for a criminal prosecution.
Senator Cardozo: Thank you very much.
Mr. McSorley?
Mr. McSorley: Thank you, senator.
If the government had originally come in with the idea of not introducing an omnibus bill and separating out the transparency registry, while having a separate bill for the other provisions, that could have been workable. Then, we could have had an in-depth study of the registry before the summer break and gone back to the other provisions in the fall, which we know will come into effect much faster than the influence registry. At this point, unfortunately, it feels like the horse is out of the stable. I’m not sure if there is a procedure at this point to be able to separate the bill in two. At this point, we’d be concerned that the registry itself has not been able to face the kind of scrutiny it would have faced had it been introduced on its own, and that if we rushed to pass that, there are areas that would not be addressed. At this point, we’re hoping that you and your colleagues and members of the other place will look at how to study this more in depth.
Senator Dasko: Thank you to our witnesses for being here.
My questions are all for Mr. Chong. Mr. Chong, you talked about the importance of foreign influence on election campaigns. Your former leader suggested that a number of ridings might have actually changed hands because of foreign interference. What are your thoughts about that? Do you think that happened?
Mr. Chong: I defer to Justice Hogue in her initial report of May 3. She concluded that there was foreign interference in the 2019 and 2021 elections, that it undermined public confidence in our democracy and that, in several ridings, in particular, it could have had an impact on the results of those ridings and on the ability of Canadians to cast a ballot in those particular ridings. Based upon Justice Hogue’s analysis in the initial report, I think it’s clear that interference did happen and that it did have an impact.
Senator Dasko: It might have had an impact on votes — I think that’s what she was implying — but do you think it changed the results in terms of turning the riding around in any instance? I’m just asking because your former leader thought that a number of ridings had changed hands. I just want your view. Do you think that was the impact?
Mr. Chong: First off, the former leader and Conservatives have never questioned the overall outcome of the 2021 election. We have been clear that it did not impact the overall outcome.
We’ve also been very clear — as has former leader Erin O’Toole — that it could have had an impact on a handful of ridings. That is a very hard thing to assess. The former leader and other Conservatives have never said that it definitively changed the outcomes of the results in those ridings. It’s hard to read the minds of women and men when they enter the ballot box or when they don’t go to vote.
We’ve been very clear right from the outset that it could have had an impact on the overall outcome in those particular ridings. It certainly had an impact, but whether it was sufficient to affect the outcomes in those handful of ridings is something we will never know.
Senator Dasko: Thank you.
I have a question about the nomination race. The NSICOP report focused on nomination races, especially nominations in winnable ridings for parties, saying that has been a serious issue with foreign interference. Mr. McGuinty and Senator Lankin were here the other day, and not just them but others have said that the bill doesn’t go far enough in dealing with nomination races and that, in fact, nominations are not going to be monitored, which was one of the recommendations from NSICOP. Can you tell me how you see the bill dealing with nominations? Does it not go far enough?
Mr. Chong: The bill does deal with party nominations. It makes it an offence for a foreign entity or their proxy to interfere in a nomination race or in a leadership contest.
With respect to the rules that concern the eligibility of individuals to vote in a nomination, I think that’s an area where Justice Hogue has highlighted some real concerns. In the Conservative Party, I think our rules are fairly tight. In order to become a member, you have to pay a $15 membership fee and you have to do that through one of three methods.
The Deputy Chair: Thank you, Mr. Chong. The time has run out.
Senator Richards: I’m going to ask a quick question of Mr. McSorley. I think this bill is an important bill. I don’t think it’s going to solve our problems the way we want it to. The head of the RCMP told me yesterday that he thought it was a good first step. I don’t know if the RCMP has the resources to handle this. I don’t think they do.
I’m wondering, because of your concern, do you think parts of this bill will be challenged by the civil liberties union in the courts and, therefore, hold up its passage because of a court decision that might be coming?
Mr. McSorley: Thank you very much for the question.
I’d say it’s too early to say whether or not there would be any court challenges to this bill. I think we would be in a situation where an individual or community would have to be impacted by aspects of this bill in order to really be able to understand how it can be challenged.
In that sense, a court challenge wouldn’t hold up the passage of this bill. It may lead to the tightening of the bill, changes to the legislation or recommendations to Parliament by the courts in terms of whether aspects of the bill are constitutional or infringe on the Charter. Unfortunately, we’re concerned that that will only come after an individual or community is impacted.
We see, very clearly, areas that would not undermine or undo some of the key provisions of this bill, but they would serve to ensure that civil liberties are better protected by bringing better definitions, looking at sentencing regimes and also safeguards around information disclosure — not blocking information disclosure, but ensuring there’s accountability, transparency and records kept on who has shared information on what so that they can be reviewed by NSIRA or other bodies afterwards.
Senator Richards: You were talking about innocent association. I wonder if you felt that way — I’m going to ask this because I’m just interested — about people who have had their bank accounts frozen when they gave a couple hundred dollars to the tractor trailer protest here two years ago. They had their bank accounts frozen, and they were harassed as being right-wing fascists or whatever they were called. I thought that was pretty deplorable. What does the civil liberties union think about that?
Mr. McSorley: Thank you for the question.
At the time, we raised concerns around the powers of the government to be able to block and restrict access to funds. We’ve been raising those concerns for the past 20 years, not just around the convoy protest but also its impact on Muslim charities and other organizations like environmental and land defender organizations that have faced similar issues around investigations of their finances that were unjustified and never led to charges. We think that in any instance where civil liberties are undermined, especially in instances of freedom of expression and political expression, that they need to be investigated and they need to be challenged. Going forward and looking at this bill, there are areas where similar things could happen to a future convoy protest that have already been decried and we could see it applied more easily to other protests and movements in the future.
Senator Richards: Thank you.
Senator Dean: Mr. McSorley, thanks for joining us today.
You’ve identified concerns about some of the amendments proposed. I want to look particularly at data sets and warrants.
If there’s one thing we all know in terms of transparency, it is that the CSIS Act and the operations of CSIS were designed in an analogue world and they’re now struggling and have been increasingly struggling to deploy and do their work and protect us in a digital world. That goes to the question of data sets. Yes, we’ve heard that CSIS may have juggled things around the borders, but those borders have been very tight and restricted, haven’t they? They have made the work of our intelligence community increasingly difficult and constrained and have strained their ability to protect us in key areas, including the operation of individual rights. We need to update those. My view is that we need to give CSIS the ability to do their job well, to protect all of us, collectively and individually.
With respect to warrants, it’s pretty much the same thing, isn’t it? Originally, there’s a sort of one-size-suitable-for-all-purposes warrant capacity, which itself has proven to be absolutely unadaptable to the realities of the threats facing us. There are now some proposed warrant flexibilities and fit-for-purpose warrants, all of which would still be subject to the approval of a judge, so that we’re not giving a green light to CSIS to go on a run without boundaries.
Could you react to that?
Mr. McSorley: Thank you very much for that question.
We recognize that technology changes and that laws need to adapt to those technologies. We were concerned with the data sets when they were originally introduced in 2017 and brought into force in 2019, because they allowed for the collection of non-threat-related information and bulk collection of that information. There was a clear decision at that time that, within five years, there should be a review of how that regime works. Over that time, NSIRA found that CSIS, instead of going back to parliamentarians and telling them, “We need this changed earlier, we need the review to happen and we need new legislation,” they instead broke the laws that govern the data set regime in order to, as you said, have the flexibility that they believe they require.
Our primary concern is that we feel that what is going through in this particular bill is problematic because it requires a deeper review, deeper understanding and an overall discussion in the context of the original data set regime about whether these new powers and changes to the regime are necessary and what the potential impacts could be. We’re also concerned particularly about other things that are being worked in the data set regime around, for example, disclosure of entire data sets without clear reasons and safeguards. These are the kinds of things that a deeper and more thorough analysis of the data set regime would allow for.
In terms of warrants, our primary concern is that CSIS has been found time and again by the courts to have violated the process and violated their duty of candour to the courts. We don’t doubt that with technology changing, there needs to be some adaptations. What we’re concerned about, as they’re granted more powers, is what is to keep the service from again pushing those boundaries instead of adhering to the rules that are in place? We would ask for greater safeguards.
There’s a private member’s bill in the other place to modify the oath of CSIS members in order to swear to the upholding of the duty of candour. We think that is one step in the right direction that doesn’t appear in this bill. We think there are other areas that could be looked at in order to ensure that CSIS may be gradually granted more powers but also that there’s accountability and greater solutions found to this problem of duty of candour.
[Translation]
The Deputy Chair: That concludes the time we have with this panel of witnesses. We’d like to thank Mr. Chong, Mr. McSorley and Mr. Neiman for taking the time to meet with us today.
We will now continue with our second panel of witnesses. I’d like to welcome Guy Saint-Jacques, former Canadian ambassador to China; Charles Burton, Senior Fellow at Sinopsis, and Aaron Shull, Managing Director and General Counsel at the Centre for International Governance Innovation.
[English]
Welcome to all of you. I invite you to provide your opening remarks. We will begin with Mr. Saint-Jacques. You may begin when you are ready.
[Translation]
Guy Saint-Jacques, former Canadian ambassador to China, as an individual: Thank you, Mr. Deputy Chair. Good morning, senators. Thank you for inviting me to appear before your committee today. Foreign interference in Canada is a matter of grave concern that, until recently, has not been given the attention it deserves, even though our sovereignty and democracy are at stake.
The lack of reaction from the government despite all the detailed reports from our intelligence services is hard to understand, especially in a context where relations with China deteriorated sharply after Wanzhou Meng, then Michael Kovrig and Michael Spavor, were arrested in December 2018. Let’s not forget all the coercive measures taken by China to punish Canada. In this context, the government should have been even more vigilant in trying to prevent any attacks from China. In my opinion, this near indifference must have raised concerns among our partners, particularly the Group of Five.
I’d like to make it clear that a diplomat’s role is to try to influence a foreign government to take measures and positions that are as favourable to them as possible.
[English]
This is what I tried to do during my 40-year diplomatic career. The big difference with what is at stake here is that the approaches I was making were done openly, I never offered financial or organizational support to get a candidate selected and/or elected, and I did not run disinformation campaigns on the internet. I also never put pressure on Canadians living abroad to vote for a candidate or threatened them if they were not doing so. These are all activities that Chinese diplomats do in a systematic way.
Since Xi Jinping came to power in November 2012, he has significantly increased the budget of the United Front Work Department, which is charged with influencing and controlling the Chinese diaspora abroad. Budgets have also been increased to influence public opinion abroad, including on social media, with systematic use of disinformation. Chinese diplomats have been instructed to become a lot more aggressive in the pursuit of China’s current economic and political goals.
China understands very well the weaknesses of our electoral system and how to take advantage of them. We have heard a lot on this at the hearings held by the Hogue Foreign Interference Commission. I look forward to its recommendations, but I would submit that the political parties should immediately change their rules on the nomination process for candidates. Basically, only Canadian citizens should be allowed to vote to choose a candidate, and the process should be under the supervision of Elections Canada.
[Translation]
Following the report of the Committee of Parliamentarians on National Security and Intelligence, I would add that political parties should not wait for the RCMP to lay charges against parliamentarians or political staff suspected of plotting with agents who are Chinese or of other nationalities. The parties must put in place clear policies to show that there will be zero tolerance for such activities and that, if there are suspicions, those individuals will be questioned by party authorities and expelled, if necessary.
As for the bill under consideration, Bill C-70, An Act respecting countering foreign interference, it seems to me to be a good approach, because it improves existing legislation, such as the Canadian Security Intelligence Service Act. Amendments include creating new criminal penalties for offences; better information sharing within the federal apparatus, including the use of sensitive information, in administrative proceedings before the Federal Court; and finally, creating a registry of agents who represent foreign interests.
[English]
On this last point, the leaders of Canadian universities have raised concerns about the potential negative impacts this could create. In my view, major progress has been made in recent years as more scrutiny is applied to joint research projects to pay more attention to security aspects and potential military applications. This being said, it is important to continue to have relations with China and people-to-people exchanges. Let’s recall that Canada’s Indo-Pacific Strategy, unveiled by Minister Joly in November 2022, calls for collaboration on environment and climate change, biodiversity, public health and so on.
[Translation]
Thank you. I’ll be happy to answer any questions you may have.
The Deputy Chair: Thank you very much, Mr. Saint-Jacques.
[English]
Charles Burton, Senior Fellow, Sinopsis, as an individual: My area of expertise is Chinese domestic politics and foreign policy. I was educated in the People’s Republic of China and subsequently worked in the Communications Security Establishment and in the Canadian diplomatic service and as an academic. I have published several articles and reports on Chinese influence operations in Canada.
I will focus my remarks on Part 4 of Bill C-70, the Foreign Influence Transparency and Accountability Act, as it impinges on the activities of agents of the Chinese Ministry of State Security, MSS, targeting Canadian politicians.
This is about more than foreign powers trying to rig election outcomes through hidden methods. China’s Ministry of State Security, collaborating with the Chinese Communist Party’s massive United Front Work Department, has a two-pronged strategy for subverting legislatures around the world to serve Beijing’s purposes.
Their first manœuvre is a policy called huaren canzheng, which means getting persons of Chinese origin elected to public office, at all levels. Allegations that China’s consulate in Toronto bussed in young Chinese nationals to stuff a nomination meeting in a safe Liberal riding and provided false IDs to enhance fraudulent claims that these youngsters were residents in the riding is a classic MSS game plan for swaying elections in any country that is lax in its democratic institutional processes. Beijing has an ironclad expectation that anyone of Chinese origin, as descendants of the mythical Yellow Emperor Huangdi, has an irrevocable requirement of loyalty to China.
The Chinese Ministry of State Security’s second tactic is longer-term cultivation of people who are not ethnic Chinese but who can influence Canada’s domestic and foreign policy to promote Chinese interests. Typically, it starts early in a politician’s career through a strategy of “spreading the net wide” to support specific candidates, often mobilized through the “police stations” and other front organizations. Those who wittingly or semi-wittingly become China’s political proxies will often be offered free trips to China through friendship associations, including the Canada-China Legislative Association. This approach will have proven very fruitful for the Chinese authorities if any of the parliamentarians cited in the latest NSICOP report have risen to the federal cabinet, with access to cabinet secrets.
The subversion of Canadian officials may derive from bribery, blackmail or “honey pots.” Fifteen years ago, member of Parliament Bob Dechert, the parliamentary secretary to Foreign Minister John Baird, admitted exchanging flirtatious e-mails with Shi Rong, a young Xinhua news agency “reporter” based in Canada. But when it was revealed that Ms. Shi had never published an article in the Chinese press, she rapidly disappeared to China, resurfacing a couple of months later as a scholar at Harvard’s John. F. Kennedy School of Government, where so many future U.S. politicians spend their salad years.
What we observe most, though, is that people who become “friends” to China while in a position of political influence derive rewards from the Chinese regime years later, when the politician or senior civil servant returns to the private sector. When former Australian prime minister Bob Hawke travelled to China after leaving office, then-president Jiang Zemin greeted him with the words, “Mr. Hawke, China never forgets its friends and we want you to know we regard you as one of our best friends.” In the 1980s, as PM, Hawke had energetically encouraged Australia’s South Pacific neighbours to embrace China’s emergence onto the region’s geopolitical stage. In the years that followed, Mr. Hawke took on several directorships and consultancy positions relating to China, which enabled him to achieve considerable financial success. There are more details about this in the op-ed that I published in the Toronto Star this morning. Here in Canada, we can observe former cabinet ministers, ambassadors to China and people retired from senior roles in our foreign ministry who have assumed lucrative China-related opportunities after leaving government.
Let me conclude by observing that it will be very difficult for our future foreign influence transparency and accountability act to track the silent implication of future payoffs for officials who took the Chinese Ministry of State Security’s bait years earlier. But we must adopt other regulatory mechanisms to do so.
Thank you, Mr. Chair.
The Deputy Chair: Thank you, Mr. Burton.
Aaron Shull, Managing Director and General Counsel, Centre for International Governance Innovation, as an individual: Good morning, Mr. Chair and honourable members of this committee.
I’m going to put my bottom line up front. I’m going to urge rapid passage of this bill. I appeared previously in the House committee looking at this bill, and I raised a significant concern there: municipalities were not specifically enumerated as a covered entity within the bill. They were effectively excluded from the scope of the registry. I am pleased to report that this concern has been addressed based on the testimony provided. The revised bill now explicitly includes municipalities, and this ensures a much more comprehensive approach when it comes to covering foreign interference activities. Given this crucial improvement, my advice is to expedite passage of this bill so that the foreign influence transparency registry can be established well in advance of the next election.
The urgency surrounding this: The preamble of the bill highlights the necessity of this action, and when you’re looking at a preamble for statutory interpretation, it sets out the purpose and context of the bill. I realize it might be a little early in the morning to start talking about the purposes and principles of statutory interpretation, but I digress. The preamble says:
Whereas efforts by foreign states or powers and their proxies to influence, in a non-transparent manner, political and governmental processes at all levels of government in Canada have systemic effects throughout the country and endanger democracy, sovereignty and core Canadian values . . .
“Have systemic effects.” Not might have. Do have. It is a statement of fact. And “endanger democracy, sovereignty and core Canadian values.” If we are indeed to meet the purpose of this bill, if we are indeed to meet the moment, it has to be passed before the next election.
I joked in a previous committee that it would be a little bit like delivering a birthday cake the Tuesday after a Saturday birthday party. If we do not have this in place before the next election, we will have missed a critical moment.
There are concerns that have been raised by previous colleagues about scope, reach and breadth, but let me just say that Canada has national security review mechanisms and there are comprehensive legislative review mechanisms within this bill that give me comfort. Canada has what I think are some of the strongest review mechanisms anywhere in the world. There’s rigorous oversight through the National Security and Intelligence Review Agency, through the Intelligence Commissioner and through the courts. In fact, I know that this committee will hear from Craig Forcese later. He sits on NSIRA and was actually one of my law professors. I wouldn’t want Craig reviewing my homework, because he takes it very seriously. So there’s comprehensive scrutiny.
For me, it’s crucial that the public and all stakeholders understand that the enhanced powers within Bill C-70 are subject to stringent checks and balances, and they’re only used appropriately and when justified, and then there’s legislative review for both the CSIS Act and the foreign influence transparency and accountability act. Even though the bills aren’t perfect — and I will be the first one to admit that, Mr. Chair — there are review mechanisms coming up, and I think it’s more important to do it now than to do it absolutely perfectly.
This also aligns with the recent report of the National Security and Intelligence Committee of Parliamentarians, or NSICOP. I know all of the attention was on the witting and the unwitting and who is witting and who is not witting and when are we naming folks, but the number one review or recommendation from that report was to establish a foreign influence transparency registry before the next election. You don’t have to just take my word for it as that was the number one recommendation out of that report as well.
The other point I would raise is that this was all subject to broad and national stakeholder consultations from coast to coast to coast, and those consultations have shown a need for stronger tools, but they also engaged experts, community leaders and concerned citizens, most of whom described their valuable perspectives on how to best protect our democracy and most of whom support the establishment of this registry.
To close here, I will just say that there are new powers, but they’re subject to review and they’re meant to deter malicious acts. The comprehensive approach in Bill C-70, with its inclusion of municipalities, robust oversight mechanisms and broad-based support, makes it a critical piece of legislation for protecting our national security and democratic integrity. I strongly urge this committee to support the swift passage of the bill to ensure that we have the necessary tools in place to counter foreign interference effectively and uphold the values and principles that define our democracy.
Thank you very much for your attention, Mr. Chair, and I look forward to your questions
[Translation]
The Deputy Chair: Thank you very much, Mr. Shull. We’ll now open the floor to questions. We allow four minutes for each question, including the answer. I would ask you to keep your questions succinct to allow as many interventions and questions as possible.
Senator Carignan: My question is about disclosure of intelligence, particularly disclosure to third parties. One of the limitations is that information can’t be disclosed if it contains the name of a corporation, incorporated or continued under federal or provincial law, or a Canadian entity. Isn’t this an important loophole, knowing that the Chinese, and in particular the Chinese state, will use Canadian entities as a front to do business?
If we can’t communicate with a Canadian entity, even if we know it’s just different, that greatly limits the sharing of information. Secondly, shouldn’t there be a way to extend information to the whole procurement element? I’m still in shock that the federal government awarded contracts to install Chinese antennas in RCMP communications towers. Shouldn’t something be done on that front as well, to improve the security of our communications? Could Mr. Saint-Jacques answer my question, and then the others?
Mr. Saint-Jacques: Thank you, senator. I would say that the bill in its current form greatly improves the flow of information. In my opinion, even if the name of the corporation is mentioned, I think it’s possible to communicate and make parties more aware. Until now, CSIS was very limited in the communications it could share.
With respect to your second question on procurement, here too, the existing laxity was caused in good part by calls for tenders where the lowest bidder was always chosen. Now, we know that Chinese companies are subsidized and that our companies can hardly compete with them. We’re now paying much closer attention to security issues. That’s a good thing.
Senator Carignan: Secondly, as we saw in the report by the Committee of Parliamentarians on National Security and Intelligence, or CPNSI, the Prime Minister controls the information that can be released. Everything is concentrated in the Prime Minister’s Office. In the CPNSI report, information was clearly blocked by political advisors, officials close to the Privy Council Office, or PCO, or Privy Council officials. Shouldn’t we find a way to take even more power away from the Prime Minister’s Office and the Privy Council Office and give more to the Committee of Parliamentarians, so that it can provide more information and operate more independently? Mr. Burton?
[English]
Mr. Burton: I think it has been well established in evidence to Parliament, particularly to the Commons, that there is an issue of the culture of CSIS. I think Mr. Vigneault in his evidence to the Hogue commission said that the purpose of CSIS is to maintain secrets. The purpose of CSIS is to help us catch bad people engaged in malign activities in our country, not to maintain the secrets as secrets. I think that other countries such as Australia, the United States and the U.K. have been much more forthcoming in providing information about investigations that started with their intelligence services and stating more publicly what they know.
Senator Kutcher: Thank you all for being with us.
I have a single question, but I would appreciate each of your opinions on it, starting with our ex-ambassador and then Mr. Burton and Mr. Shull. Bill C-70 follows a country-agnostic approach from the Australian model instead of an enhanced-tier approach used in the U.K. The Australian Strategic Policy Institute has just studied this and notes that the Australian approach does not adequately address the activities of the United Front Work Department and other People’s Republic of China, or PRC, threat activities in Australia. Can you share your thoughts on why we’ve chosen a country-agnostic approach and what impact that may have on our ability to deal with foreign threat actors?
Mr. Saint-Jacques: I have not been privy to how this was decided, but my personal opinion is that the U.K. approach is better. It’s more adapted to the type of threat that we have to deal with.
Mr. Burton: I was recently in Washington giving testimony to a U.S. committee on the Chinese Communist Party, or CCP. When I suggested that Canada would do well to have a foreign interference transparency scheme act like Australia’s, they took some exception to it. In other words, the Americans are keen on the Foreign Agents Registration Act in the United States. They’re not so keen on other countries having acts supervising the activities of what they do here in Canada. There is an issue there, but my feeling is that transparency is always good. I receive benefits from foreign companies that engage my consulting services. I’d be happy to lay that out.
In terms of the Australian legislation, I have spoken to friends who were involved in that legislation. They said that it’s not very well drafted. Their equivalent of CSIS has not been given the resources to properly follow up with it, but the simple existence of this legislation has a dampening effect on Australian politicians who might feel inclined to become involved with benefits from foreign states such as China. We saw some resignations from boards of the former Australian minister of international trade just before the Australian bill came into effect.
I think it has a certain educational capacity, raising awareness of what’s going on so that Canadian politicians can be more aware of the very sophisticated and well-funded engagement by China and take steps to avoid being caught in something they might regret very much later.
Mr. Shull: I would just say that I think it’s a distinction without difference. The practical effect will be the same. There are some countries that are more active. They’re the ones that will be subject to registration, point finale. Regardless of whether you have a two-tier system or not, the end result is the same.
Senator M. Deacon: Thank you for being here today.
My first question is for Mr. Shull, and it’s going to pick up on something that I asked about yesterday. Our universities are fearful that this bill could put a serious chill on shared research opportunities with our international partners. I note that, in the House during your appearance, there was some debate about the role of provinces in all of this and some success that you’ve had, which is great. The universities fall under the jurisdiction of the provinces. In testimony in the other place during your appearance, one of your fellow witnesses stated that even when premiers were offered to sit down and talk about CSIS last June, all but one denied. To quote the witness, “There’s a certain naivety that is close to stupidity here when we start dealing with this.” Do you think with this legislation that provinces will perk up a little bit and offer a deeper recognition of their responsibilities in all of this? If not, what can we do to change that?
Mr. Shull: Thank you. That’s a good question.
I would say that I sincerely hope so. I will also answer one of the previous senator’s questions along with this one. You’re asking about research institutions, and the previous senator was talking about 5G and Huawei. There’s a big debate going on nationally about 5G and Huawei. At the same time that we were doing this, something was being built called Compute Canada. There is no reason this committee should know what that was, but it is the supercomputing infrastructure linking a number of research institutions together. Guess who all of the back end is built by? Huawei.
For me, there are two conversations we’re having this morning. One is about the merits of this bill and whether it should be passed subject to amendment, how quickly, et cetera. There is a second and broader conversation about a national security strategy that we must have in this country. We do not have that. The government has pledged to make one. In my view, we’re playing whack-a-mole, changing this and doing that. In the absence of a strategic architecture, adversarial states are behaving in a very strategic way that requires a strategic response.
I urged this committee to pass this bill swiftly, and that advice holds. Should this committee wish to study what a national security strategy could look like or what it entails, I would love to be the first witness. Thank you.
Senator M. Deacon: Thank you.
Mr. Burton, I have a question I want to ask you about in your testimony in the other place. You mentioned that there’s a subtle influence mostly exercised by China that is not caught up in this bill, that being that once an official leaves public office, there’s a sense that they will look after those it considers friends. In many cases, this can lead to financially lucrative careers once they move on from public service. This could mean that some won’t act on intelligence they see as unfriendly to China because they’re looking for that lucrative next act. The Lobbying Act prohibits designated public officeholders from taking a lobbying career within five years of their retirement, but does any sort of similar prohibition exist for scenarios that I just outlined? If not, would a similar prohibition on working for any company, business or entity with ties to a foreign government be wise, or would it be too hard to enforce?
Mr. Burton: Yes. My feeling is that it’s highly problematic for senior public officeholders to take any funds from a foreign source after they leave office. We have provisions whereby people who have had — like me a couple of times in my career — access to top-secret information are not allowed to make use of that in their post-government careers or to reveal any of those secrets. Similarly, there should be a provision whereby public officeholders should not be allowed to undertake foreign-funded business opportunities after they leave public service. I realize that this is not going to be well received, but the parliamentary pension is quite generous, and I think that’s enough.
If I could just say one quick thing about your other question, I used to be the vice-president of the Brock University Chinese —
The Deputy Chair: I’m sorry, but the time has run out.
Senator Cardozo: I would like to ask all three witnesses about the issue of nominations. Ambassador Saint-Jacques, you suggested that they should be limited to citizens. I think some if not all parties allow permanent residents — immigrants — to vote in nominations. I suppose their interest is that these are potential voters, so they’re trying to attract them to their political party. The problem with Don Valley North allegedly was that it was international students who were being bussed in and participating in that nomination. Do you have any thought about whether we should include permanent residents? I’d like all three of you to comment, but perhaps Ambassador Saint-Jacques could respond first.
Mr. Saint-Jacques: Well, as I said earlier, China knows very well the weaknesses in our system. If we want to run democratic processes, we have to go above the board. I would say that in all aspects of selection of candidates, including at the leadership level — I know that there have been concerns in the past that have been raised with this. Right now, for some parties, allowing people as young as 15 years old, who are not Canadian citizens, is an open avenue for anyone to tamper with the nomination process. This has been tolerated, but in my view, since only Canadian citizens can vote in elections, I think it should be limited to Canadian citizens.
Mr. Burton: I absolutely agree with Guy. I think the process in Don Valley North was completely nuts. It should only be the people who have the right to vote who have the right to choose the candidate.
Mr. Shull: I disavow any expertise regarding political nominations. I work for a non-partisan group, so I don’t care who wins the next election. I will say this, though: You should make it as hard as possible for hostile state actors to influence outcomes. How we do that is maybe a subject of some debate and consternation. My overall argument is to make it as hard as humanly possible to shuffle the deck at the nomination stage.
Senator Cardozo: Mr. Burton, what are your thoughts on the registry?
Mr. Burton: I’m extremely happy to see it. The fact that it might exist, as I said, has a considerable dampening effect on the operations of the Chinese Ministry of State Security in Canada. I’ve been calling for it for many years, and I couldn’t be more delighted that there’s consensus in Parliament that this is something we need.
Senator Cardozo: There seems to be a gap that the bad actors might not register. Do you have a concern about that?
Mr. Burton: Of course. That’s why we’re going to go after those people who violate that law.
Senator Cardozo: Thank you.
Senator Housakos: Thank you to the panel for being here. You are clearly well informed when it comes to dealing with the dictatorship in Beijing, with firsthand experience.
I am always stunned by the fact that the dictatorship in Beijing has an annual budget of $2.6 billion that they spend through the “united front” in order to influence democracies around the world. Those same democracies have given them unfettered access to the richest middle-class markets in the world. That gives them the $2.6 billion to come back and spend on influencing our democracies and spying on us.
The question I have is very simple: Why is it that it seems here in Canada we’re so reticent compared to our allies, such as the U.K., Australia and the United States, to put measures in place when we know that there are five elements in our society that they have infiltrated, which are government, Parliament, the media, academic institutions and our economy? Why have we been, as a country, so reticent compared to our other democratic allies? There has to be a reason for this.
Mr. Burton: Do you want me to take that? I think it’s about money. The Chinese regime makes it clear that governments that criticize China’s international behaviour and support for global dictatorships, criticize China’s human rights violations domestically, including the genocide against the Uighurs, and those who crack down on Chinese Ministry of State security agents in Canada — we’ve only ever expelled one of the dozens of those people who freely operate here — will be punished. Economically, there will be fewer opportunities for Canadian businesses to achieve Chinese contracts because the Chinese regime operates as an integrated whole between business, party and state. That’s part of the issue with education.
Our people have made a decision, which I regard as racist, to not pursue the Chinese approach to members of diaspora communities. I’ve been advising the Canadian Coalition on Human Rights in China since 2005, I think. It consists of representatives of the Canadian Uighur, Canadian Tibetan, Chinese democracy groups, Falun Gong and so on. I think they feel very disappointed in Canada that the Canadian mainstream is not prepared to protect them against assault by agents of the Chinese regime who expect them to keep quiet about their concerns. I think it’s a national shame. I feel ashamed as a White Canadian that we’ve been letting this go on for so long.
Mr. Saint-Jacques: There has been complacency for a long time. When I was ambassador, I had briefings before I went to Beijing in 2012 where CSIS expressed concerns about actions taken by the Chinese government to influence the electoral process in Canada. I can confirm that, during my four years as ambassador, I saw examples where members of Parliament, some political staff and some members of provincial governments were most likely under the influence of China. Despite all the warnings and detailed reports that were provided by CSIS, again, I find it very difficult to comprehend why action was not taken earlier.
When I talk about complacency, maybe some political parties felt it was not important if elections were influenced in this or that riding because they were going to win. In fact, it might help them to win, which raised very important questions about our democracy.
Senator Boehm: My question is initially for Mr. Guy Saint-Jacques, but I would encourage our other panellists to respond if they wish.
This year, 2024, is a major election year throughout the world, and some unexpected elections have popped up, such as the decision by President Macron to have National Assembly elections in France. There is the upcoming British election, and the biggie in November is to the south of us. G7 leaders are meeting in Italy this weekend. There has been some work done in the past in terms of looking at interference in our democracies. There’s a mechanism that was established out of Charlevoix in 2018. Unfortunately, it is underfunded.
My question is really in the context of Bill C-70 and the road ahead. Mr. Saint-Jacques, everyone refers to you as our former ambassador to China, which you were, but you were also deputy head of mission in two of our most important allied capitals. Looking at your vast foreign policy experience, I’d be interested in your views in terms of what our country can do, working together with allies, to combat interference.
Mr. Saint-Jacques: Thank you, senator. You raise a very important question. In fact, I can add to that.
If you look at the G7 communiqué that came out of last year’s summit, there is, for the first time, a clear reference to working together to combat coercive measures taken by China. For a country like Canada, it’s very difficult by itself to counter interference and coercive measures — all the tactics — used by China. We have to really work as a team and be firm when we approach China.
I think our lack of action so far has damaged our image and the reputation of Canada in capitals such as Washington and London. I know that officials have been perplexed about the lack of action, because — let’s not kid ourselves there — security services are well aware of what has been going on here. Disinformation, especially during electoral campaigns, has been underestimated and not properly analyzed in this country, in my view.
Senator Boehm: Thank you.
Mr. Burton or Mr. Shull?
Mr. Burton: It’s very important that we get into full alignment with our like-minded allies in terms of our policies toward China and India. Canada’s Indo-Pacific Strategy being funded at $2.4 billion over five years is not being seen as a very vigorous approach by the Americans. As we continue to not put investments into defence, we will be more and more removed from the centre of global affairs and geostrategic activity in NATO and the Five Eyes. Already in the Five Eyes, it seems our position is being debased. If Mr. Trump becomes the president of the United States, then we will really have to take much more responsibility for our own defence. I’m well off my area of expertise here, but China regards itself as a near-Arctic state. They are collaborating more and more with Russia. As far as I can see, we’re not defending our Arctic in any way that meets their challenge.
Mr. Shull: Thank you for the question.
Senator, I believe you were the G7 sherpa at Charlevoix, if I’m not mistaken. I remember it well. The answer is in the preface of your question: The G7 rapid response mechanism is not funded properly. It’s not a bad solution; it’s just an under-resourced and underutilized one. So, raise the costs. It’s a simple game of raising the cost as much as you can on adversarial state actors that would seek to meddle in our elections.
Senator Yussuff: Thank you, witnesses, for being here. Mr. Saint-Jacques, it’s good to see you again. Thank you for your service to the country.
The broader question in regard to Bill C-70, of course, is that this gives our security establishments new tools in the broader effort to protect our democracy but also to ensure that the challenges we face will be met head on. If you have had a chance to reflect on this piece of legislation in the context of what they can do, and learning from other jurisdictions in regard to their approach, what do you think is missing from the legislation? Do you think it strikes the right balance in what we’re trying to achieve in protecting our democracy and in keeping the country safe and, at the same time, of course, protecting our traditional rights for people to do the things they do in this country in terms of protests but also recognizing they have a fundamental responsibility to how we conduct ourselves around elections?
Mr. Saint-Jacques: I think it’s a good start because it covers areas that were not properly covered. Of course, we’ll have to wait to see how regulations will be worked out to capture the areas that you have mentioned.
The main past problem that has been identified, in my view, by the Hogue commission is the improper sharing of information to alert people to what’s going on. As I said earlier, not enough attention is being given to disinformation activities conducted by Chinese state actors on social media that is used by Canadians of Chinese origin, such as WeChat and Weibo.
We also have to make senior officials and government ministers accountable for their actions. I can tell you that, based on my experience when I was ambassador in the past, there were important security memos going to ministers. Those were read. There were mechanisms to ensure that they were read. Then it was for the ministers to take proper action.
Again, in all of this, I think we are seeing a change of attitude, finally, and I hope that this will be spelled out clearly in the regulations that will have to come out shortly.
Senator Yussuff: In the context of these new provisions, we’re going have a new commissioner with some broad powers and responsibility. Do you believe the commissioner will have enough independence in his or her role to carry out the responsibilities now bestowed on the commissioner to enforce this legislation but also to ensure that there are some synergies that can be more effective given the broadness of the legislation?
Mr. Shull: I do, senator, for two different reasons.
First, the amended bill that’s coming over requires joint resolutions of both the Senate and the House of Commons.
Second, you also need them embedded within an institution because they need access to a SCIF. You don’t want to start doing MOUs with CSIS. They need the intelligence to be able to issue those notices of non-compliance, to issue those administrative monetary penalties, and they need to do so quickly. Setting up a new institution outside the ambit of a new department is just impractical.
Mr. Burton: It’s very difficult, if it’s an order-in-council appointment that can be stopped at any time, to encourage genuine independence. I think it’s hard for CSIS and the RCMP to investigate senior politicians who may be compromised by China because of political sensitivities. It’s not a good thing for them to be offending the people they answer to. I do think the highest degree of independence, such as something comparable to the Auditor General of Canada, is very important to make this work the way we hope it will work.
Senator Dasko: Thank you to our witnesses today.
My first question is to Ambassador Saint-Jacques. I’m particularly concerned with what you said about Chinese efforts to influence public opinion in foreign countries. I’m obviously interested in the efforts they have made in Canada, whether through disinformation or other forms of influence. It’s very hard for Canadians to recognize what this is and where it is, to see it when it happens. Could you provide some real concrete examples of how China has done this so that we can try to understand how and where it happens? My second question to you is this: It is my sense that this bill doesn’t actually deal with this phenomenon in any way. It doesn’t actually address it. I wonder if you could comment on that after you provide some examples. Thank you.
Mr. Saint-Jacques: Thank you, senator.
On your first question, one example of disinformation was used when there was that devastating fire in Hawaii last year. China sent out information and used artificial intelligence to create false images to say that, in fact, it was an experiment by the U.S. government that went badly and that that was the source of the fire. This was spread out. On this, China has no qualms to twist the truth, and, in fact, they will continue to do so.
That being said, I would say there are efforts to try to influence broad public opinion, but at the time of elections, the focus is mostly on Canadians of Chinese origin. They focus on 12 to 15 ridings where there is a high proportion of Canadians of Chinese origin.
As to your second question, we’ll have to see what kind of regulations will come out, but if I look at the last electoral cycle, I think that senior officials missed the boat because they didn’t properly recognize what was being spread out as disinformation on some candidates by Chinese state actors. This was very damaging. I recall one answer by senior officials saying, “Well, since this was limited to one community, we decided not to act.” In my view, this was a totally inappropriate response, and it was treating a group of Canadians differently from the rest. It’s very important to protect the rights of Canadians of all ethnic origins.
Senator Dasko: Going back to the influence of public opinion, are you saying that, with respect to Canada specifically, then, you wouldn’t have any examples — the example you gave was about Hawaii. Is there anything like that that you can tell us about their efforts in Canada to influence other populations or the general population, or is it almost all focused on the diaspora community?
Mr. Saint-Jacques: I can tell you that I read Chinese media in Canada, and I’ve given interviews to media in Canada that use Mandarin. I can tell you that in terms of what is being published, sometimes 90% of the information comes straight from Beijing. That means that what Canadians of Chinese origin read when they look at Chinese media is straight propaganda from China. At the beginning of the Meng Wanzhou affair, I answered questions, and I was struck that the questions came straight from Beijing. They had no understanding of the Canadian position.
The other problem we have is that we give platforms to the Chinese ambassador. This happened in Montreal with the quorum, where the previous Chinese ambassador, Cong Peiwu, was invited —
The Deputy Chair: Excuse me, Mr. Saint-Jacques.
Senator Dean: Thanks again to the witnesses.
I’m going to go back to an earlier topic. Bill C-70 is designed to give CSIS the ability to deliver on its mandate in an increasingly digital and dangerous world. One of the provisions would suggest that there should be more flexibility in access to fit-for-purpose warrants. The other is that there should be more flexibility given to the service in the use of its data. Any reactions on those recommendations? Any concerns?
Mr. Shull: A good sturdy “Hear, hear.” I’m all for them. I think the idea of being able to share outside of the Government of Canada is perfect, especially in relation to corporate actors at the front lines dealing with this.
With all due respect to a witness on the previous panel who said that the data set regime is disconnected from the foreign interference regime, I would tend to disagree. What do you think CSIS wants to use that data for?
Again, with all due respect to the previous witnesses, in my view, this legislation is remedying the evils that were found in the very fine NSIRA report that was done. They were taking those recommendations from the review agency seriously and putting forward a solution to those problems, so I’m all for it.
Mr. Burton: I am concerned about the speed with which we’re going through this. These are very serious matters, impinging on key questions in the Canadian Charter of Rights and Freedoms. I do know that the public safety ministry has spent a lot of time and consideration on this, and I’m confident that we’re doing the right thing. If there is something that does impinge on the rights of Canadians, I’m sure that our courts will address those.
Senator Dean: Mr. Saint-Jacques, it is great to see you again. I have a very different question for you. Many of us as parliamentarians, senators and citizens are subject to a stream of what I would term disinformation about the true role of the World Health Organization and other multilateral institutions that serve us and of which Canada is a member. Do you have a sense or any evidence that those undermining trends and messages have their origins in offshore locations and, if so, where those might be?
Mr. Saint-Jacques: I would say that China understood about 10 or 12 years ago the importance of multilateral organizations, and it changed its approach, first by trying to head as many of these organizations. A few years ago, there were five Chinese citizens heading 14 major international organizations. They have also used the development assistance program to corral support from developing countries. I’ve seen this when I was the Chief Negotiator for Canada on Climate Change, where African countries were taking Chinese positions that were detrimental to their interests. I’m also sure that at the start of the COVID-19 pandemic, the reaction was delayed because of the previous influence that China had on Ethiopia. At the time, the now-Director General of World Health Organization, Dr. Ghebreyesus, was foreign minister. Let’s recall that China built the headquarters of the African Union in Addis Ababa. You can see that there’s a concerted effort on the part of the Chinese government to use these international institutions for its own purposes and with no qualms to use disinformation to spread rumours around to create all kinds of problems.
Senator Woo: Thank you, witnesses.
I’d like to ask how you think we might be able to protect the rights of Canadians to hold views that might be perceived to be friendly to, say, China without them being stigmatized or indeed having them required to register under the proposed registry because of the very vague provision that refers to someone being in association with a foreign principal. Perhaps Mr. Shull would like to start.
Mr. Shull: Thank you very much for the question. It’s a fine question.
I would say there’s maybe the distinction to be had here. There’s the requirement to register when you’re engaged in a relationship of some kind with a foreign principal, and then there is holding views. Anyone can hold views. Anyone can say anything they want. The primary issue that we’re talking about in this bill is catching that deficiency when there’s an arrangement between a foreign principal. The question then becomes: Let’s get down to the definitional scrutiny of it.
In my view, the bill does a pretty admirable job. I don’t think there’s much slippage there. To the extent there needs to be, there is going to be probably clarity issued by the commissioner, as soon as they’re in place. If they go too far afield, the courts are there to catch it. They’re subject to judicial review. That’s what the common law is all about, building that definitional clarity.
Senator Woo: How would you define “in association with”?
Mr. Shull: In my mind, it will turn on the distinct facts, so to the extent there’s control, either ephemeral or real; to the extent there’s a relationship where someone feels there’s power and control; to the extent that someone holds influence or sway over others. There are ways to do this. Judges have been making up legal tests since the common law has started, and that’s probably where we’ll find ourselves.
Senator Woo: Let me pick up on your words. Someone feels that there is control or ephemeral control. Can you elaborate on how that would be determined?
Mr. Shull: Yes.
Senator Woo: Let me give you a concrete example.
Mr. Shull: Yes, please.
Senator Woo: If someone is in contact with a foreign official and they subsequently write an op-ed which holds a view that is aligned with that foreign state but there’s no evidence that there was control or material benefit or any kind of subordinate relationship, would that not possibly fall under the definition of “in association with”? Could that not? Based on your understanding of ephemeral and feeling that there might be this control situation.
Mr. Shull: There are marginal cases, and ultimately this is why it’s such a good question. The case you proffered seems to me to be independent. Based on the facts you just put forward, I wouldn’t suggest there was a relationship there. You’ve outlined a fact pattern that is completely independent.
Senator Woo: Yet that is the specific example used in a consultation paper by the government to provide a concrete example of who would be required to register. Why do you think this is not relevant?
Mr. Shull: Again, it will turn on the specific facts of the case, but in the case you indicated, you said there was contact, a discussion, and then there was an op-ed that was written.
Senator Woo: Specifically the example cited in the consultation paper by the Minister of Public Safety. But I take it you don’t agree that this would be eligible for registration?
Mr. Shull: That seems to be a stretch to me.
Senator Woo: Okay. Thank you.
[Translation]
The Deputy Chair: That brings us to the end of our discussion with this panel of witnesses. We’d like to thank Mr. Saint-Jacques, Mr. Burton and Mr. Shull for taking the time to meet with us today. Thank you.
For those joining us live, we are meeting today to continue our review of the subject matter of Bill C-70, An Act respecting controlling foreign interference.
[English]
We now continue with our third and final panel. I’d like to welcome our witnesses.
[Translation]
From the National Security and Intelligence Review Agency, Vice-Chair Craig Forcese and Senior General Counsel and Acting Executive Director Charles Fugère; from the Office of the Intelligence Commissioner, the hon. Simon Noël, Q.C., Intelligence Commissioner, and Justin Dubois, Executive Director and General Counsel.
Gentlemen, welcome. Mr. Forcese, I now invite you to make your opening remarks. The floor is yours, whenever you’re ready.
[English]
Craig Forcese, Vice-Chair, National Security and Intelligence Review Agency: Good morning, senators. I would like to start by recognizing that I am speaking to you from the unceded ancestral territories of the Anishinaabeg Algonquin nation.
[Translation]
Thank you for inviting us to participate in this work. I am a Professor of Law at the University of Ottawa and a member of the National Security and Intelligence Review Agency, or NSIRA, since 2019 and now NSIRA’s Vice-Chair.
To my left is Charles Fugère, Senior General Counsel and Acting Executive Director of the NSIRA Secretariat.
[English]
My remarks today comprise three points: first, NSIRA welcomes law reform as necessary, but such reforms alone are not sufficient; second, this bill’s proposed amendments to CSIS’s statutes are important, but changes to the data set regime should not be expected to cure inevitable tensions in the structure of the CSIS Act; and third, NSIRA would welcome broader parliamentary review of the National Security Act of 2017.
I make these remarks on behalf of an expert national security review body. NSIRA’s mission is to serve as the trusted eyes and ears of Canadians through independent expert review and investigation of Canada’s national security and intelligence activities, including those of CSIS. Our recently released review on political foreign interference between 2018 and 2023 is an example of our work.
Let me turn to our three key points.
[Translation]
Firstly, this preliminary study will contribute to the public debate on law reform with respect to foreign interference. As a result of its reviews, NSIRA has recommended legislative amendments to address identified gaps. For example, we recommended that the role of national security and intelligence adviser to the Prime Minister be defined in a legal instrument. That said, as we pointed out in last year’s annual report, legislative action, while necessary, is often not sufficient to address the gaps.
Several of NSIRA’s recommendations on the subjects covered in Bill C-70 dealt with necessary improvements in information management, training and resources. For example, we recommended that CSIS and Public Safety develop a mechanism to rigorously track and document the receipt of intelligence products.
[English]
I will turn to my second point. Bill C-70 proposes changes to CSIS’s data set regime to clarify perceived legal ambiguities enacted in 2019. As a review body, our task is to scrutinize how this data set regime is applied. Our past data set review suggests a latent tension in the CSIS Act. On the one hand, there is a strict retention standard for the most relevant intelligence information but with no legislated standards on its administration. On the other hand, there is a data set regime with a more relaxed retention standard but subject to complicated legislated administration. Inevitably, deciding which regime applies to which information in which circumstances will be an ongoing challenge, as will be the temptation to opt for the less administratively complicated system. The review agency’s task will be to continue to review how CSIS implements these systems.
With respect to the proposed amendments to CSIS’s warrant regime, NSIRA’s experience suggests that the current one-size-fits-all system of warrants is unwieldy and is, therefore, reasonably subject to legislative reform. NSIRA’s task will be to closely review CSIS’s implementation of new warrant procedures.
Finally, as you study this bill, I note that the National Security Act, 2017, established NSIRA and reformed many key national security powers within the intelligence services. That act anticipated that it would be reviewed after three years, a period now passed. Should parliament take up that review, we look forward to sharing our observations on other proposed amendments to national security laws.
Thank you for the opportunity to speak with you today. We would be pleased to answer questions from the committee.
[Translation]
The Deputy Chair: Thank you very much, Mr. Forcese. We will now hear from the hon. Simon Noël. Mr. Noël, the floor is yours.
Hon. Simon Noël, c.r., Intelligence Commissioner, Office of the Intelligence Commissioner: Esteemed senators, thank you for inviting me to discuss Bill C-70. With me today is Justin Dubois, Executive Director and General Council of my office.
Following the remarks by the Vice-Chair of NSIRA, I will focus my remarks on the dataset regime. Certain amendments in the bill involve the dataset regime. When we talk about datasets, we’re talking about the privacy of Canadians. The Intelligence Commissioner plays an important oversight and monitoring role within this regime.
In a few words, my mandate is to approve or disapprove certain national security and intelligence activities planned by Communications Security Establishment Canada and the Canadian Security Intelligence Service. For example, I have to approve categories of activities that CSIS employees or human resources may engage in that would be against the law. I also have to approve CSIS activities related to datasets.
[English]
I believe it is important to understand broadly how the data set regime works when considering the amendments. It allows CSIS to collect, retain and use information that is not directly and immediately related to a threat to the security of Canada. For CSIS to collect the information, it must be relevant to its duties.
To collect a data set containing Canadian-related information, it must fall within an approved class, that is, a category, that has been authorized by the Minister of Public Safety and by the Intelligence Commissioner. To retain and use the Canadian-related information, CSIS must then move on and obtain a judicial authorization from the Federal Court.
CSIS may also retain a foreign data set, which is a data set with no apparent Canadian-related information. In that case, the Intelligence Commissioner must approve the authorization for retention issued by the director of CSIS.
Since a data set might contain a large volume of information that is not directly threat related, the data set regime has the potential to impact the privacy interests of Canadians. An important part of my role is to ensure that the Minister of Public Safety and the director adequately consider Canadian privacy interests.
Most of the proposed changes related to the data set regime in the bill are intended to facilitate the service use of Canadian and foreign data sets. I anticipate that the proposed amendments will not change the nature of my role of conducting independent quasi-judicial oversight.
[Translation]
That said, I’d like to highlight a proposed amendment that would have an impact on the commissioner’s work as well as the privacy interests of Canadians. The bill would authorize CSIS to collect and retain datasets for the purposes of section 15 of the Canadian Security Intelligence Service Act.
This section of the act allows CSIS to conduct investigations for the purpose of providing security assessments to the Government of Canada, such as for public service employment and immigration purposes. This expands the scope of datasets relating to Canadians that CSIS can collect and retain.
Our security agencies need the tools to do their jobs, because they are given extraordinary powers. We must continue to ensure sufficient oversight and monitoring of these powers. I’m pleased to see that the bill does not change the oversight framework.
I am here today as Intelligence Commissioner, but I bring the experience of over 20 years as a designated Federal Court judge, as well as that of a lawyer involved in national security issues and commissions since 1979. I’m happy to answer any questions insofar as my perspective might help you. Thank you.
The Deputy Chair: Thank you very much, Mr. Noël. We’ll move on to questions. As a reminder, there are four minutes for each question, including the answer. I’d ask you to keep your questions succinct, and I’d ask our witnesses to keep their answers as succinct as possible. Before we begin, I would like to ask our two witnesses a question. Could you explain why a new commissioner would be created, rather than using the expertise of two experienced agencies?
Mr. Noël: That’s a very good question, Senator Dagenais. I’m not in the legislator’s head; you’d have to know the exact reason this position was created. It seems to me that the workload of the two organizations you referred to is quite heavy. It’s a different kind of work. For example, in my case, obviously, I’m asked to oversee and scrutinize whether the security agencies, the Communications Security Establishment, or CSE, or the service agency are acting within their sphere of competence and respecting the rights of Canadians.
In that sense, the work is quite different from that of a commissioner who would have to set up a registry that calls for a different kind of work.
The Deputy Chair: Thank you. Mr. Fugère, do you have a comment, or Mr. Forcese?
Mr. Forcese: Thank you for the question.
[English]
I would have a similar response. We are a review body.
[Translation]
So, we review things after the fact.
[English]
For us to engage in activities that involve the imposition of obligations on individuals and then subsequently to constitute a review body examining that activity would put us in an inherent conflict of interest.
I would note that, as constructed right now, Bill C-70 subjects the new office to our review function. Much like the rest of executive government engaged in national security and intelligence, it would be subject to review by our body in terms of conduct of its powers.
Senator Boehm: Thank you to the witnesses for being here. My first question is for Professor Forcese and then afterwards, if there’s time, for Commissioner Noël.
Bill C-70 was amended by the House Standing Committee on Public Safety and National Security to require a comprehensive parliamentary review of the act and its operation, not just as originally planned after every five-year period but also during the first year after a general election.
Assuming that this goes through, and considering that NSIRA reports directly to Parliament, do you see the agency being involved directly or indirectly in a post-election review in this way? If not involved in the review of Bill C-70 itself, would NSIRA look at its operation in the context of CSIS activities under Bill C-70?
Regardless of any role that NSIRA might play in such reviews, how do you think success or failure of Bill C-70 in combatting foreign interference can be measured beyond waiting to see what happens in the next election?
Mr. Forcese: Thank you for the question, senator.
I will start with a brief overview of our functions. We also, of course, have the National Security and Intelligence Committee of Parliamentarians.
Our functions are best described as compliance or propriety oriented. We look at compliance with the law and whether activities were reasonable and necessary in the circumstances. Our focus tends to be quite operational. In some circumstances, we will look at how well a legal regime is operating, because sometimes that legal regime has implications for operations. We would not, however, generally embark on a review that focuses strictly on an efficacy question, how well a regime is designed, except to the extent that it is collateral to our propriety review.
In response to your question, in relation to feeding into a Bill C-70 review, whether on a one-year time frame or thereafter, our work product might prove relevant, but it would not be dedicated to how well Bill C-70 is working overall. Certainly here are aspects of Bill C-70 that would be part and parcel of our regular work.
Senator Boehm: Would you see NSIRA playing a role, for example, in a review post election within that one-year time frame?
Mr. Forcese: Potentially, in the same way that our review on foreign interference examined the institutions that existed during the review period to address foreign interference. It is possible that we would conduct a review into those areas. As an exercise of our independence, we select our own reviews on the basis of those matters that we consider based on a fairly cogent understanding of the environment. On the priority reviews, I would note that ministers have the capacity to ask us to conduct reviews as well.
Senator Boehm: If I have time, I have a quick question for Commissioner Noël. Assuming the bill, of course, will pass, it provides a lot of extra responsibilities to various agencies. There might be instances where foreign laws would have an impact on what our bill and our law will do. In the future, do you envision having greater contact with some of your foreign counterparts or equivalents, even if there isn’t an exact equivalent to your role?
Mr. Noël: Let me respond to this, senator, in the following way: The data set collection could be very useful for foreign interference in many ways. I suspect that, in the future, there will be more foreign data sets being asked to be authorized and retained down the road.
If we look around the world — because we’ve done that — the U.S. FISA Court does the same work. We are in the process of getting in contact with them to discuss their way of doing things. We’re doing the same with Great Britain in order to familiarize ourselves.
As with NSIRA finally, we are a member of the Five Eyes oversight and review committee from those five countries. As part of the discussions, data set collection and foreign interference are topics of interest, of course, and discussed among ourselves.
Senator Cardozo: Mr. Noël, could you explain to me the relationship between your office and Canadian Security Intelligence Service?
My second question is to both of you is about the issue of intelligence. In some ways, people overestimate what intelligence is. We’re now talking more about pieces of intelligence. People tend to think of intelligence as being the absolute fact, whereas what we’re finding is that maybe intelligence isn’t that intelligent and it’s just pieces of information.
Mr. Noël: In my past life, senator, I have dealt with CSIS since 1979, and as a judge since 2002. I’ve dealt with hundreds of warrants, applications and others. I’ve always felt completely independent, as some of my judgments have shown in the past.
Having said that, in my new job, I feel that I’m as independent as when I was a judge. I assume a quasi-judicial job. There is a provision in the Intelligence Commissioner Act, which says that CSIS has the obligation to brief me. Somebody may say that that’s a nice way to try to influence the commissioner. I have put forward to them the following. I have them that that if they want to brief me, they’d better cover themselves on all topics of importance, because if one day I come to a topic that they haven’t briefed me on, they’ll have to pay for it. There will be a conclusion that will say that I wasn’t briefed. You don’t learn about national security — the facts and the collection of intelligence — at university.
As for intelligence collection, you are right, senator. You cannot say that fact number one is conclusive to the point of being the fact. My experience has been that you have to look at intelligence globally. You cannot say that there’s one thing happening and that’s it, and then you draw a conclusion from that. You have to be able to look at all the facts that are being collected and ensure for yourself that the conclusion that you may arrive at is based on all these facts. It’s a challenge. We should not take intelligence as court evidence. It’s not the same thing. It is a collection of all of these facts that becomes more conclusive at the end.
Senator Cardozo: Mr. Forcese?
Mr. Forcese: Thank you very much for the question.
I’ll pick up on the last point that Mr. Noël raised, and this is a quote from our review that I mentioned on foreign interference: “Intelligence is not evidence. Nor is it wild speculation, conjecture, or rumour.”
The issue with intelligence is always, as Mr. Noël indicated, a question of interpretation. In our role as NSIRA, when we assess reasonableness and necessity, it may well be that we will engage in analyses — especially in our complaints function — that scrutinize the manner in which intelligence was assessed. That’s one of our tasks. I don’t think I’d have anything more to add other than that it’s a contingent and contextual exercise.
Senator Woo: Welcome, witnesses.
I’d like to pick up on that line of questioning and to ask NSIRA in particular if you have the mandate and ability not just to make the general statement that intelligence is not evidence, but to, in fact, question the credibility and materiality of a piece of intelligence — not just a piece of intelligence, but an analytical report based on intelligence, a sudden conclusion that may be reached that maybe in your gut doesn’t sound quite right. What ability do you have to challenge the analytical report? A lot hinges on such a finding for ordinary Canadians.
Mr. Forcese: Thank you for the question, senator.
Our statute says that in rendering both our review and complaints reports and findings, we can make such findings and recommendations as we think are appropriate. In the context of a review, there’s a further amplification that says, “such as comments on legality, reasonableness and necessity.” In exercising those functions, we have a broad bespoke remit to serve as a body of scrutiny entitled to full classified information. In the course of that scrutiny activity, it may well be that we will conclude that lines are not created from the dots, et cetera. That would require us to draw a judgment, which the act permits us to do.
Senator Woo: But it’s more than whether the legal niceties were met and whether the logic was consistent. It’s partly about whether the information is correct and whether the analysis makes sense. I’ve seen documents that, to my mind, simply don’t make sense. If a review agency is only able to take it at face value and to assess simply, as you put it, the compliance part of its veracity, who, then, in the world of review and in the view of accountability can question the materiality and credibility of intelligence analysis? Maybe Mr. Noël would like to comment as well, either of you.
Mr. Noël: I’ll follow up on Professor Forcese. There’s an impression out there that whatever CSIS says is the gospel and that it’s the truth. I differ for the following reason. As I said, I’ve dealt with many warrants. I questioned the facts on the basis of which the warrants were being sought. Sometimes I disagreed. I examined CSIS witnesses, asking them, “On what basis are you saying that? For what reason are you saying that?” The end result, as designated judges of our Federal Court have shown, is that many warrants are either entirely or in part dismissed.
On that, you are right: Who the heck questions the facts? The gospel approach. I think NSIRA does it very well in their recent report, and NSICOP has brought it up. The Federal Court does it. As the Intelligence Commissioner, I do the same. If you look at my recent decisions, as Professor Forcese knows, I dismiss applications. I told CSIS and the CSE, “No, this isn’t good enough, and I disagree.” So, there are institutions that can question.
Senator Yussuff: Thank you, witnesses, for being here.
Both of you have unique roles in the two agencies for which you’re responsible in regard to your duties. This piece of legislation bestows some entirely new powers in the context of how we challenge and deal with foreign interference in this country.
As you know, diaspora communities in this country have been the centre of many debates about how they’re behaving or not behaving and what foreign governments are doing to influence them. There’s some recognition that some of those communities themselves are subjected to foreign interference, as we see in B.C. where a Canadian citizen was murdered by a foreign state.
Given the role that you are playing in this, how do we bridge the gap in the communications and the relationships that have to be built? If we are going to protect the country, we need our citizens to play an important role in that. How do we ensure that misinformation and disinformation about certain communities are also scrutinized so it doesn’t become prejudicial such that Canadians are looking at those communities in a way that is unfair to them, and they don’t have the ability to defend themselves?
Mr. Forcese: Thank you for the question, senator.
From an institutional perspective, I would say that people should be aware that NSIRA has a complaints function. In performing our complaints function, we’re effectively a quasi-judicial investigative body. Our remit in terms of complaints includes CSIS, the Communications Security Establishment and the national security functions of the RCMP.
In circumstances where Canadians feel that those services have conducted themselves in a way that generates a complaint, we are entitled, upon receipt of the complaint, in circumstances where there is activity, to conduct an investigation, which involves reviewing and scrutinizing classified information. That’s the different footing we’re on than, for example, a court on judicial review. We have full access to classified information and also the staff and capacity to conduct those assessments. There could well be cases that touch on the sorts of circumstances that you’ve indicated, where citizens are unhappy with the conduct of the security services that touch on foreign interference where our intelligence complaints function might be engaged.
Senator Yussuff: I want to come back to this because this is very fundamental to this act being effective to help us deal with the challenges we’re faced with. When prejudice is widespread against a particular community, it’s not just an individual who suffers; the entire community suffers. As we’ve seen during the whole COVID period, the entire Chinese community in this country was viewed prejudicially in a way we have not seen for many decades, but it was not the first time. How do we respond to that as a nation? How do we respond to agencies in government to say that these things very much require the care that should be brought? Too often, the communities are left to defend themselves. They don’t have the resources nor the wherewithal of how government agencies operate in this country. It’s unfortunate when these things happen, and I do value that we have an important role to play in protecting our country against foreign interference.
Mr. Noël: We have the impression that our system is collapsing. It’s not true. It’s operating and it’s functional. NSIRA is doing its job. NSICOP is doing its job. The impression people have is a sense of, “What’s happening?” Senator, there will always be room for improvement. I’m sure NSIRA has suggestions in its back pocket to amend the act, like we do. But the system is operating.
With the publicity that is coming out of everything now, I hear you loud and clear that some communities are more pointed than others. This is a negative consequence that I see out there. I’m hoping the day will come where national security will come back into a proper perspective and not in a sense of reacting to situations, as we are seeing at the present time.
[Translation]
The Deputy Chair: Thank you very much, Mr. Noël.
Senator Dalphond: Welcome to our witnesses. My question will certainly be for Justice Noël. For colleagues who don’t know him, he sat on national security cases in the Federal Court for many years, including in windowless, well-insulated rooms where you couldn’t hear what was going on in the room.
My question is about the protection of information about Canadians. I was reading your annual report, which is very well done and summarizes some of the principles you’ve written into decisions. In 2023, two decisions were rendered on the category relating to information about Canadians. You refused one and authorized the other. In your report, you asked yourself, wouldn’t this be the time to change the reasonableness test to a more stringent test for the collection of information on Canadians, which, in principle, is prohibited? Could you tell us more about that? Would it require an amendment to the act to change the name, or is that something you would have the power to do?
Mr. Noël: Thank you, Senator Dalphond.
It all comes back to reasonableness and administrative law. It’s the way the reasonableness standard is applied: adding not only the consideration of the decision made, but also the objectives of the commissioner’s role. There are two things I’d like to mention in that regard, senator. If I see that there is an excess of jurisdiction or that jurisdiction is used for other purposes, this can have a major impact on the reasonableness standard.
Second, it’s the Stanley Cup finals in Edmonton, so I feel a bit like a goalie. When I look at the data that CSIS wants to collect, and I realize how much capturing that data affects our privacy, I feel my privacy is affected, too. I have no hesitation in saying that it doesn’t work. Once again, it has an impact on the decision to be made in terms of reasonableness.
Senator Dalphond: Do you find that decision-makers’ responses are generally in line with your decisions? Are people receptive and do they understand the limits?
Mr. Noël: That may surprise you. When you refuse, there are two options: You can use judicial review or you can ask them to do their homework. So far, my experience has shown me that they do their homework, come back in the following months and make a few corrections to the original request.
It’s important to remember that I’m involved in decisions as they are being made. NSIRA, in its role as a review board, looks after the facts. They published a report in 2023 for 2019-22. They look at all of that, and they’re very helpful to us. Furthermore, in my decisions, I will refer to the NSIRA where appropriate to recommend that certain elements be examined more carefully. Overall, that’s the kind of system that works. The more it evolves — it’s brand new, since it’s only been around since 2019 — the better it works.
Senator Dalphond: Thank you.
[English]
Senator Dasko: Thank you for being here today. I am learning so much. It’s quite incredible.
Bill C-70 will create a foreign influence registry. I would like to understand how the agency and the office will intersect with the registry. It would be very helpful for me if you could explain that, as well as possibly give examples of how you might intersect or interact with that new organization. Thank you.
Mr. Forcese: Thank you very much for the question, senator.
The amendments in Bill C-70 include an amendment to our own acts which make clear that the new transparency registry is subject to review by NSIRA. Our task will be to perform the tasks we perform for all government bodies implicated in national security and intelligence. Our focus is on the legality of their conduct as well as the reasonableness and necessity of the exercise of their powers.
In terms of how we develop the specific focus or terms of reference of our review, we have a publicly available triage form, so to speak, that gives an indication as to the considerations that drive how we prioritize reviews. New and novel issues is one of the considerations that determine a review, as are high-risk activities. They are considerations that drive which reviews we select and put into the pile of immediate reviews.
Given that the transparency registry will be subject to our review, there will be circumstances where it will either be subject to review per se or, following from a development that really began in 2019, we can follow the thread between agencies. So, to the extent there’s intelligence sharing or information flowing between agencies, we can track that to ensure that — this relates to Senator Woo’s concerns — whatever might be transferred to support a decision in its original form supports that decision.
Senator Dasko: Would that be on a complaint basis, for example, or just a regular review of the operations of the registry, or all of the above?
Mr. Forcese: In principle, it could be a complaint, although it’s more likely to be a review. That is something we self-initiate based on our triage considerations, and then we establish the scope of what it is we’re going to examine and conduct a review. A review is typically a year-long exercise, and they produce reports. The reports are filed with the responsible minister. We prepare a redacted version, in cooperation with the government, that goes onto our website.
Senator Dasko: Thank you.
Mr. Noël: Madam senator, we will not have a direct role in any way. I said earlier that the data set collection could have an impact on foreign interference as a tool given to CSIS when it investigates, but we have nothing to do. Our job is to review decisions and decide whether the decisions are actually reasonable.
Senator Dasko: So you would have no interaction or intersection with the registry at all?
Mr. Noël: No.
Senator Dasko: Mr. Forcese, could you give an example of how you would interact with them, given what you said? You would decide to undertake a review by looking at your criteria, and that review would involve a large-scale review, a small review, a focused review? What would you be looking at?
Mr. Forcese: There’s no one-size-fits-all. The scope of the review really depends upon the subject matter.
The way it would work in practice is that a determination would be made that this entity or subject matter deserves review. The subject matter may cover several agencies. In some circumstances, we’ll focus on an agency per se. We will establish the issue we want to look at. Again, the breadth of the issues can vary. We’ll establish terms of reference, and then we’ll have full access to all information, except cabinet confidences, in the possession or control of the agencies, including classified information. Our facility is a secure premise, and we’re accredited to handle classified information.
Senator Dasko: You would have access to all the information from the registry?
Mr. Forcese: Subject to cabinet confidences. That’s the only exclusion in our act.
We would generate thereafter a review report that goes through many iterations of quality control within our organization, and, as the members at the pinnacle of the agency, we would approve the report.
One of the obligations we have in circumstances where we, in our opinion, conclude that there may have been a violation of the law — note the very low threshold — we are obliged — we have no discretion — to notify the responsible minister who, in turn, is obliged to notify the Attorney General. That’s what we call a section 35 report. Again, you’ll find a description of how that process works on our website.
Senator Yussuff: Mr. Forcese, as a result of what you said in the review, let me ask you this, because it requires some thinking: Is it possible for you to look at systemic bias in regard to a review on a particular community? Often, what we tend to do is focus on individual complaints as we examine what the agencies are doing, but systemic bias, as you know, is far-reaching, and the implication is very corrosive to how we build harmony in our society. Do you have the power and authority to examine such a phenomenon, and, if so, how would we find out if your department is looking at this? Given the strength of our community and the diversity of our country, we have to constantly be vigilant as to how we build solidarity with each other for the greater good of the country and our national security. This is an issue I see consistently being raised that requires more scrutiny. I’m not the expert. You’re the one who sees the data and the evidence, and you have the authority and power to look at this. It will require looking at it through a different lens, not the particular lens we would look at this in regard to your work.
Mr. Noël, I want to compliment you. Just on what I have heard today, I think you will be a great ambassador to go across our diverse communities in this country and talk about how you apply your expertise and your previous experience to the responsibility of warrants that come before you, because most of what the security intelligence service does in this country is a mystery.
Mr. Forcese: Thank you for the question, senator.
Questions of bias, systemic and individual, could arise in a complaints function. In fact, for matters that touch on national security that go before the Canadian Human Rights Commission, the government can oblige those to come for our assessment first before they go back to the Human Rights Commission.
In the context of reviews, because we are a propriety organization and focusing on law, reasonable necessity and questions of systemic bias can arise in terms of our assessment. Our assessment will consider Charter of Rights and Freedoms issues. All the security services are subject to the Charter of Rights and Freedoms and also human rights considerations. We would also say that complaints within international human rights law fall within the ambit of the law for the purposes of a legality assessment.
Mr. Noël: I want to follow up. As commissioner, our office has made it a point that we want to reach people in the communities, and we have done that. We have an “open door” policy to reach to people.
There are a lot of things in national security that have to be demystified. “It’s all bad; there is nothing good; there are no professional people working on that.” I disagree on all of that.
With your permission, Mr. Chair, this bill is not the best. I agree with Professor Forcese. There are a lot of things that need to be done to improve it, but it’s better than nothing. Let’s move along and get it going. I hear loud and clear, “Oh, there should be a different look being put following the definition and things like that.”
For what it is worth, the sunset clause could be brought to three years rather than five years. I know some people will say it’s not good enough, but it’s a pressure point that you’re adding, so you may consider that.
Overall, things are moving in Canada. They’re not that bad. In 2015 in the U.S. when they began, it was, “My god. What is happening in this world?” 2019 has reached us, and now we’re at 2024, and it’s reaching us.
The big concern I have, and I’ll finish on this, the more we speak publicly on national security and disclose things without knowing it, do you know who is listening more? People on St. Patrick Street and Charlotte Street. We have to keep our ammunition close to ourselves a bit. We have to be able to digest things with the organizations that are operating: NSIRA and NSICOP. Let’s protect ourselves. Talking publicly about national security, to me, raises concerns. For instance, if you say, “Well, I don’t have any problem having read the NSICOP report,” you are telling me, then, that somebody who knows more on the other side is saying, “Oh, we’ve got this going. That means they haven’t caught that.” If we talk about the threshold to intervene in an election, are we going to disclose how the threshold will be applied and tell our enemies, “Hey, this is the way it’s going to be applied”? Come on, let’s wake up and start doing things in the interests of all Canadians.
That’s really my last word. Let’s move on. The system is not broken. NSIRA has shown it. NSICOP has shown it. Our office is showing it. Let’s move on.
Senator Woo: I want to amplify Senator Yussuff’s question and put to you and get your reaction to the proposition that some reviews have to look not just at the individual case of, perhaps, an intelligence failure or misdiagnosis or just pure error but at the way in which this potentially flawed piece of intelligence has deeper ramifications for a whole community. I’m referring to, in my view, certain pieces of analytical reports that seem to have classified certain points of view on international issues that are deemed to be national security threats or unacceptable from a national security perspective and have cast it in such a way that it undermines democracy and harms elections and so on and so forth, but which ultimately affect the ability of Canadians of different stripes to hold that view and to cast those views in an election. It’s a much broader remit than a particular piece of, as I say, possibly flawed intelligence. How do you tackle something like that? It’s systemic, rather than individualistic or particular.
Mr. Forcese: There will be or could be instances in which, in the context of a review or a complaint, the underlying, more systemic issues arise. They could be questions of law, in which case, as I’ve already mentioned, we have the power to raise those issues. In other circumstances, we certainly take those into account in terms of our criteria as issues that we’ve noted, areas of vulnerability and concern for purposes of planning the next review or next reviews. We are alive to these issues. They can arise in different ways. They can arise in a complaints context, and they can arise in a review context.
Let me also emphasize that, in our methodology and our culture, we are robustly independent in terms of the judgment we apply. That independence is manifest through the way we operate institutionally at the staff and secretariat level and also amongst the members who constitute the governing mind. Our purpose is to maintain that independence and to scrutinize, with fresh eyes, the matters that come before us, and that could include systemic issues.
Senator Cardozo: I wanted to get your views on the issue of being country-agnostic. There are some who have appeared before us and suggested the act should name the countries. It seems to me that we should leave that to the discretion of the commissioner and that, over time, the countries we want to be focusing on will change. I’d like to hear your views.
Mr. Noël: Your question is right on, senator.
In 1979, what was it? It was the Cold War. That’s what we were looking at. We were looking at telephone lines, typing and conversation. That’s how we did it. Now, things have changed. It has evolved through the years, and what we’re seeing is primarily three, or maybe four, different countries that are actively involved in the new technology and are using it to their best interests, and we’re waking up to that phenomenon. In five or ten years from now, things will change again. It will evolve. Look at artificial intelligence. We don’t know what we’re going into with artificial intelligence. We may wake up one day and say, “My God, where are we? Have we ceded control?”
The agencies have the capability, I think, of informing Canadians who the countries are that are actively involved, if only to protect the communities in Canada. I think that is operating. Some of the countries are more attacked than the others at the present time, but my prediction is that things will change.
Mr. Forcese: I think the intention in drafting any national security law is to reconcile the need for a dynamic threat environment that has to be accommodated by legislation, on the one hand, and building enough of a superstructure so you preserve accountability to the broader Canadian liberal democracy. One of the safeguards in such a system — accepting that you need a certain amount of pliability in the law — is to empower agencies like those in front of you with the capacity to engage in that assessment of how laws are being applied.
I will say that one of the things that we have emphasized, in addition to independence, is the idea of proactive publication of redacted versions of a report made available to the public to enable the public to understand what we do and also what the subject matters of our review are.
The message is, regardless of the superstructure of this act, we will always be engaged as a review body in carefully scrutinizing the necessity, reasonableness and legality of any agency, again, with a firm commitment to independence.
Senator Cardozo: Thank you.
The Deputy Chair: Thank you. This brings us to the end of our time with this panel.
Thank you Mr. Noël, Mr. Dubois, Mr. Fugère and Mr. Forcese for taking the time to meet with us today.
[Translation]
That concludes our meeting. If there are no further comments, I would like to thank my colleagues and take this opportunity to thank our analysts, our clerk, the interpreters and all those who helped us make this meeting possible and interesting.
(The committee adjourned.)