Moved third reading of Bill C-70, An Act respecting countering foreign interference.

He said: Honourable senators, I rise to speak at third reading of Bill C-70, the countering foreign interference act. This will be a shorter speech today, and I share your relief collectively and individually in that experience.

Bill C-70 is a significant legislative initiative touching on three existing acts and creating an important new one — all in the realm of national security and defence in Canada.

When we think about public policy initiatives, we are generally engaged in trying to seize opportunities — business opportunities, export opportunities — or addressing harms. Some of them are complex and need multi-faceted responses. In this case, the government tries to develop a range of approaches in an effort to wrap its arms around the nature and character of the problem that we’re facing. We have seen here public servants in the room — senators Harder, Cotter, McNair, Oudar and Saint-Germain — who will attest to that.

In this case, Bill C-70 is designed to address the complex challenge of protecting Canadians and others living in Canada from foreign states seeking to interfere in Canadian democracy, major institutions and communities, including parliamentarians, diaspora communities and universities. These activities are deceptive, threatening and, in many cases, illegal.

Foreign interference — and malign foreign interference, more specifically — is distinct from legal and legitimate channels of engagement such as lobbying, advocacy efforts and regular diplomatic activity. Foreign interference takes complex forms, and it’s evasive by nature.

We have learned about foreign interference through a number of reports and studies, and it’s therefore necessary to develop multi-faceted approaches in order to disrupt these efforts. This is a feature of the countering foreign interference act.

I spoke at second reading about past initiatives to reform Canada’s responses, and I want to do that in much briefer form today.

In 2019, before a Canadian general election, the government announced the Plan to Protect Canada’s Democracy, which included, among other measures, the Critical Election Incident Public Protocol and the Security and Intelligence Threats to Elections Task Force.

In 2022, leaks emerged from the Canadian Security Intelligence Service, or CSIS, alleging that China had engaged in foreign interference in the 2019 and 2021 federal elections. This, in turn, prompted committee studies on foreign interference in the House of Commons.

In March 2023, the Prime Minister requested two independent reviews on the issue. The National Security and Intelligence Review Agency, or NSIRA, was asked to conduct a review focused on the production and dissemination of intelligence on foreign interference, including how it was communicated across the government.

In a parallel report released just weeks ago, the National Security and Intelligence Committee of Parliamentarians, or NSICOP, concluded that:

Foreign states conduct sophisticated . . . foreign interference specifically targeting Canada’s democratic processes and institutions, occurring before, during and after elections and in all orders of government. These activities continue to pose a significant threat to national security, and to the overall integrity of Canada’s democracy. . . .

China, India and Iran were named as the most active perpetrators.

In fall 2024, the government launched the Foreign Interference Commission to respond to increasing concerns about the issue. Witnesses reinforced the need to address this critical threat, reporting instances of foreign state actors monitoring, intimidating and harassing them and their families. And, of course, we know this is a much more pressing issue in diaspora communities.

One year ago, the government also held public consultations to guide the creation of the foreign registry as well as separate consultations that focused on potential legislative amendments to the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act.

I go through all of that again just to remind you, colleagues, that this bill did not come out of nowhere. It was not created in a vacuum. Indeed, it was the result of over a year of consultation and expert advice.

I will summarize again but briefly the key changes in this act without recounting the extensive detail covered at second reading.

First, changes to the Canadian Security Intelligence Service Act, the CSIS Act, would give CSIS new authorities to provide advice to non-federal partners, including other orders of government, enabling them to build resilience against threats; initiate a five-year parliamentary review of the CSIS Act; provide for a range of warrant powers tailored to the requirements of an investigation; and, importantly, allow CSIS to collect from within Canada foreign intelligence that resides outside of Canada.

The bill would also amend the Security of Information Act, or SOIA, to create new targeted foreign interference offences, including a general foreign interference offence committed for a foreign entity, an indictable offence committed for a foreign entity and political interference for a foreign entity. It would amend the existing offence of foreign-influenced threats or violence — section 20 — by removing the need to prove that the act actually helped foreign state actors or did harm to Canada. It would increase the penalty for preparatory offences from two years to five if done in connection with a SOIA offence, punishable by 10-plus years in prison. The bill would also amend the definition of “special operational information” to address the inappropriate sharing of military technology and knowledge.

Proposed changes to the Criminal Code would strengthen the legal response to sabotage by enacting a new sabotage offence focused on conduct directed at essential infrastructure and specify categories of protected essential infrastructure. The amendments would also expressly clarify that the sabotage offences do not apply to legitimate advocacy, protest or dissent in circumstances where there is no intention to cause the serious harms specified in the legislation. They would introduce a new offence of making, possessing, selling or distributing a device to commit a sabotage offence, such as malware or bots.

An amendment in the House of Commons also included a reference to essential infrastructure under construction.

Finally, colleagues, the foreign influence transparency and accountability act would enact the foreign registry, which would be administered and enforced by an independent foreign influence transparency commissioner. The commissioner would be appointed by the Governor-in-Council, which, by the way, distinguishes the bill from its Australian and UK counterparts, where the power rests with the minister responsible.

The appointment of the commissioner would require consultation with all the major groups and parties in the House of Commons and in the Senate, and final approval from both houses as well.

A foreign influence arrangement is defined as an arrangement under which a person undertakes to carry out, under the direction of or in association with a foreign principal, a number of activities in relation to a political or governmental process in Canada, including communicating with a public office holder, communicating or disseminating information that is related to the political or governmental process, and distributing money or items of value or providing a service or the use of a facility.

I would note that this is not an exhaustive list and that the term “political process” would capture not only elections and nomination contests but, crucially, also leadership contests.

An arrangement would require three elements, a three-part test: a person to act under the direction of or in association with a foreign principal, engagement in at least one of the foreign influence activities listed in the definition, and that the activity be performed in relation to a political or governmental process in Canada.

As a reminder, “foreign principal” is defined as:

. . . a foreign economic entity, a foreign entity, a foreign power or a foreign state, as those expressions are defined in . . . the Security of Information Act.

Colleagues, it warrants repetition: The bill is not intended to prohibit arrangements with foreign principals in Canada, but it does state that those arrangements should be transparent.

Failing to register an arrangement or activity within 14 days could result in penalties, such as a notice of violation or administrative monetary penalties to enforce or encourage compliance. In more serious cases, the commissioner would have the ability to pursue these violations as criminal offences, which police of jurisdiction could investigate.

Finally, as a result of an amendment in the other place, the statutory parliamentary review has been changed from five years to one year after a federal general election. This ensures there are additional checks and balances in the bill.

Colleagues, I also want to speak briefly about the pre-study at the Standing Senate Committee on National Security, Defence and Veterans Affairs. These meetings were chaired by our colleague Senator Dagenais, the deputy chair, because, as sponsor, I stood down as chair. I want to thank and applaud Senator Dagenais for his diligent work and for managing a considerable number of intensive hearings with very tough issues under discussion.

At the same time, I commend my colleagues on the Standing Senate Committee on National Security, Defence and Veterans Affairs, who are a brilliant group of parliamentarians and not only provide good advice but ask tough questions and exercise judgment with diligence and grace. It’s a committee I am proud to be part of and to chair.

Thank you, colleagues.

The committee met for a total of 10 hours over three days — June 10, 12 and 13 — and heard from 35 witnesses. Witnesses highlighted their support for the bill and their expectation of seeing it passed quickly.

Daniel Stanton, a former intelligence officer at the Canadian Security Intelligence Service, or CSIS, stated that Bill C-70:

. . . will not only strengthen Canada’s national security, but foster more trust among Canadians in the resiliency of our democratic institutions.

He continued, stating:

Without these significant changes to the Security of Information Act, there will not be any serious consequences to foreign interference and transnational repression. These amendments, as well as the foreign agent registry, will significantly mitigate the significant threat to our nation’s national security.

Balpreet Singh Boparai of the World Sikh Organization of Canada said:

. . . the legislation gives CSIS the power to disclose information to any person or entity, should CSIS deem it relevant. This would be a positive step as members of the Sikh community have received duties to warn, with no details on the sorts of threats they face or any resources to protect themselves. . . .

Mehmet Tohti, Executive Director of the Uyghur Rights Advocacy Project, said:

The expansion of information disclosure to anyone, not just a public official, if deemed essential in the public interest, will allow for enhanced bureaucratic transparency.

He continued, saying that it:

. . . serves to strengthen Canada’s trust in the agency and in its capacity to detect, prevent and respond to the threat of foreign agents . . . .

Trevor Neiman from the Business Council of Canada said that Canada’s “. . . business community is broadly supportive of Bill C-70 in its entirety.”

He continued, saying:

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. . . .

He also said that:

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, customers as well as the communities in which they operate.

We also heard from many civil liberties groups, who are deeply concerned with the speed of this legislative process and some potential negative impacts of the bill on individual rights and liberties. We must listen closely to this community also.

Some observations appended to the report include the need for adequate resourcing for the RCMP to enforce the provisions of the bill; the uncertainty created for universities in their relationships and partnerships with foreign schools and the need for the foreign influence transparency registry commissioner to engage with these groups and provide guidance and clarity on their obligations under the act; the potential unintended impacts on diaspora communities and individual rights, including freedom of expression and freedom of association; and, lastly, the recognition that the committee would have benefitted from additional time to study this legislation.

Colleagues, we have heard from senators that we would all have appreciated more time to study such a complex bill and consider amendments.

I am going to share with you, and I hope my committee colleagues will understand and appreciate this, that toward the conclusion of our meeting and continuing on after the meeting ended, to a person — I believe this was a unanimous view — members of the committee were concerned enough that they were searching between themselves for appropriate approaches. One of those was that the committee not close down its study and end its terms of reference but, indeed, consider the possibility of seeking a new order of reference to continue observing the ongoing development and formation of the institution, the processes and the regulations that will be developed as a result of this registry’s creation.

Colleagues, I understand all of these concerns that were raised. I want to state very clearly that my belief is that this is an urgent issue we need to act on now.

Foreign interference is a major and growing threat to our national security. It has already affected us. In fact, yesterday, David Eby, the Premier of British Columbia, in a letter addressed to the Prime Minister, said, “Serious allegations of foreign interference at the federal level are making headlines in B.C.”

The letter continues, saying:

. . . our government does not have the information we need to intercept and address any alleged foreign interference at the provincial level.

Based on public media reports, we have credible reasons to suspect state-level interference with British Columbians with personal connections or relatives in China, Iran, Ukraine, India and Russia. We have grave concerns about the activities of transnational organized crime, based on our money laundering inquiry. Expert advice following a recent computer security incident involving provincial government e-mail has given us reason to suspect the involvement of a state-level actor.

Colleagues, we know this is not the only instance of state-level actors being involved with the electronic and digital infrastructure of private sector and government organizations, because we have seen reports on that too.

The premier’s letter continues:

Once passed, please bring this bill into force immediately so that we may . . . take any action required here in British Columbia.

Colleagues, this is not something to be taken lightly. Provinces, municipalities, diaspora communities, businesses, universities and other groups are counting on us to pass this bill quickly, and it is our job to protect them.

We must worry about diaspora communities. I’ve spoken to those in Toronto, as you have to those in your own communities, who have had their identities stolen online and replaced with vicious characterizations about their behaviour and businesses they might be involved in. This is vicious. All of these things are in the mix, and our diaspora communities are being affected by this daily.

Colleagues, before concluding, I want to again return to our discussions yesterday at the National Security, Defence and Veterans Affairs Committee and the broad consensus that we should seek permission in the fall — or earlier — to continue an oversight role in examining the ongoing process of engagement, the regulation-making process and other key policy and design matters associated with Bill C-70.

Colleagues, thank you. It is a privilege, as always, to engage in this hugely important work with you, and I look forward to seeing this bill passed.

Thank you so much.

Will the honourable senator take a question? Thank you very much. As you mentioned, a common theme that certainly came through our committee and through briefings was that there was not enough time to review this consequential legislation. The mandated review will not be until after the election, which is scheduled late in 2025 at this moment.

You touched on this. If this legislation is passed, can you be more specific about a meaningful role the Senate and our committee could have in the fall to continue to look at this and review it to see, frankly, if there is anything we have missed or could be corrected?

First of all, thank you for the question because it allows me to talk about this more, but I may have already overreached. Let me say this: The nature of the problem was clearly addressed and understood. That is shared by everybody in here — there wasn’t enough time to wrap our arms around the complex issues in a way that we would have liked, both the advantages of this model — and there are many — and also some of the challenges of it.

I haven’t talked to our steering committee, but I imagine one possibility — and we could always surmise about possibilities — is that the committee may seek a mandate, or the Senate as a whole may want to do something, to examine further the issues, questions and opportunities that senators felt they didn’t have time to interrogate sufficiently given the speed in which this process has occurred.

I will say that given the speed and the truncated time available to us, I commend everybody in this chamber for doing a marvellous job because you have done your work, as you often do, when pressed. But, Senator Deacon, some form of order of reference that is broad, that allows us to look at the things we didn’t cover in sufficient detail so that we can satisfy ourselves as a community that we have done our job well and completed our work in the way we would like to.

Would the senator take another question?

Yes, I would.

First, Senator Dean, I want to thank you for your leadership as the sponsor of the bill and providing us with all the information we needed through the process.

Certainly, as you say, foreign interference is a serious and growing threat, both in terms of other countries that want to interfere in our political system, but also people who want to intimidate members of diaspora communities with regard to politics in another country.

You addressed the balance in terms of civil liberties. One of the pressing issues was the need — the reason we want to get this through now is to have the registry in place by the next election, scheduled for the fall of 2025. Do you think there is enough time to do that? I call on your past experience as a senior public servant. Do you think there is the time to go through the steps in order to put the registry in place well before the election?

With the preface of the obvious unknown factor of when the next federal election might be, I would say that if it is when we expect it to be, on the appropriate anniversary, with hard work, with an early search for a commissioner and due diligence in terms of consultation, I think that government can move quickly and commissions can move quickly when they are tasked to. Government works well when it is focused on a priority and it is given a very clear mandate, and that goes for politicians and public servants alike.

This is one of the most pressing challenges that we face in Canada today, and it deserves a rapid response, but a diligent response.

A new commissioner and those who are engaged with building this new organization will have to find the right balance of speed, good judgment, the acquisition of the right talent — which is absolutely a critical success factor in all of this — the right accountabilities and a good, solid time frame.

With all of those things, Senator Cardozo, this can be done, and I would more so say that it has to be done. I think all of you would agree with that. Thank you.

Would Senator Dean take another question?

Yes.

Thank you, Senator Dean, and thank you for your work on this bill as the sponsor. We have seen how quickly things can move when the government is committed to getting something done. Of course, as you all know in this chamber, I, on a reflex, don’t like when we rush legislation through.

But wouldn’t you agree, Senator Dean, that we are behind the eight ball when it comes to foreign interference compared to other Five Eyes allies? More importantly, given the fact that we have found this renewed sense of importance in this issue, would you agree there is absolutely nothing to prevent this chamber, going forward, having a number of our committees — Foreign Affairs and International Trade, National Security, Defence and Veterans Affairs, Legal and Constitutional Affairs — over the next few months and years, building on this first step forward by making sure national security is, indeed, a priority and what is the best path forward? We could play a role, wouldn’t you say, in all these various aspects of it?

This is a matter in which I’m going to defer to the chamber. I’m not going to get ahead of my colleagues. That’s a discussion that you have to have, and I’m not going to opine on.

At the current time, I can only tell you what the inclinations of some of my colleagues were at the Standing Senate Committee on National Security, Defence and Veterans Affairs.

Honourable senators, I rise to speak to Bill C-70, the countering foreign interference act.

Much has been said already, but given the seriousness of the subject matter and its impact on a foundational element of Canadian society, namely our very democracy, I wish to add my voice to this important debate.

The revelations in the Special Report on Foreign Interference in Canada’s Democratic Processes and Institutions released recently by the National Security and Intelligence Committee of Parliamentarians, also known as NSICOP, were unsettling. It demonstrates that Canadians, least of all the government and parliamentarians, can no longer sit back and turn a blind eye to interference by foreign states in our democratic processes.

As the report revealed, current and former elected officials have wittingly colluded with foreign governments against Canada’s national interests. Despite its domination of the news cycle lately, foreign interference against Canada and other countries has been a problem for decades.

There has been much debate and frustration over the timing of this bill because, after years of ignoring a clear and present danger, it is both only coming now and is being rushed through Parliament in only a few weeks.

One thing all parliamentarians and Canadians agree on is that Canada needs to finally start taking seriously the significant national security threat of foreign interference. That is what Bill C-70 aims to do.

It is not perfect — I have yet to see a bill that is — but it is a solid first step in at least addressing foreign interference in our democratic processes, especially as we near the next federal election.

Just as “foreign interference” requires a clear definition, so too does understanding how it impacts our democratic processes and what those processes are beyond elections themselves. NSICOP’s report cites key processes including:

the election itself;

nomination processes, including leadership races;

parliamentary business, including parliamentary motions and the legislative process;

campaigns; and

fundraising.

When we talk about foreign interference, especially as parliamentarians, we must recognize that there is much more to a functioning democracy than the specific act of voting.

In understanding how malign foreign actors seek to influence these processes, the NSICOP report states that foreign interference:

. . . undermines the democratic rights and fundamental freedoms of Canadians; the fairness and openness of Canada’s public institutions; the ability of Canadians to make informed decisions and participate in civic discourse; the integrity and credibility of Canada’s parliamentary process; and public trust in the policy decisions made by the government.

So, colleagues, we are not just talking about the possibility of one candidate winning over another with the help of a foreign state, which is certainly bad enough. We are talking about the long-standing, ongoing assault on a fundamental element of our society and the public trust needed to ensure its survival.

Along with the creation of a foreign influence transparency registry and bolstering the ability of CSIS to do its work through amendments to the CSIS Act, as well as increased investment, Bill C-70 is also playing an important role in the public discourse around foreign interference.

Over the more than 11 hours of meeting time last week on the pre-study of Bill C-70 at the National Security, Defence and Veterans Affairs Committee, we heard that while there are serious concerns, such as the potential impact on privacy and the right to protest and the rushing through of the bill, there is also general agreement that this legislation is much needed and long overdue.

One problem, as I see it, is that parliamentarians and their staff are not equipped with the knowledge of how to identify foreign interference efforts. As parliamentarians, we often meet with ambassadors and high commissioners and other diplomats, as do members of our staff. That is a normal part of diplomacy and of our roles in this place.

Just as Canadian diplomats abroad work to influence governments and legislators to advance Canada’s national interests and priorities, foreign diplomats accredited to Canada are sent by their countries to try to influence our own policies. However, there are lines that diplomats do not and cannot cross. As with most things, there are grey zones, but it is important to recognize the differences between foreign influence and foreign interference.

In my previous life as a Foreign Service officer for 37 years, especially posted abroad, I engaged with, influenced and sometimes even cajoled others to advance Canada’s interests. Regardless of the goals I was trying to achieve, however, I did not cross any lines.

Acceptable diplomatic conduct involves states engaging in open, transparent and mutually agreed-upon interactions to promote their respective values and national interests, to build alliances and foster international cooperation. These activities are conducted within the framework of international law and norms under the Vienna Convention on Diplomatic Relations of 1961 and its companion, the Vienna Convention on Consular Relations of 1963.

Canada actively influences other countries in various ways. For example, Canada advocates for ratification of free trade agreements; de-escalation of conflicts and tensions around the world; and advancement of Canadian policy objectives and values, including human rights, women’s political empowerment and LGBTQI+ rights.

Interaction with foreign officials here in Ottawa and on postings abroad was a mainstay of my previous life and has continued in my current one. That is the norm for most, if not all, of us in this room as well as for our staff. Going beyond normal diplomatic activities in an attempt to subvert a sovereign country’s democracy and society, however, is crossing the line between influence and interference. That is why being able to recognize the difference is so important. Unfortunately, there remains a lack of knowledge in this respect.

As much as Bill C-70 will make a difference, it would go that much further if parliamentarians and their staff had the knowledge to empower them to differentiate between foreign influence and interference so they can identify and manage issues.

With all the attention and blandishments we, as parliamentarians, receive from representatives of foreign countries here and on our journeys abroad, it would be in our best interest — and that of our intelligence agencies — to receive detailed briefings. Whether parliamentarians receive classified or even unclassified briefings, unclassified security briefings, at the very least, should be offered to senators’ staff as they are also susceptible to influence and interference tactics.

I know that the Canadian Security Intelligence Service, or CSIS, is willing to provide these briefings. There should also be the possibility to receive unclassified and specific-country briefings as required.

In my previous career, I was frequently a consumer and purveyor of — as well as sometime contributor to — security and intelligence analysis. I know that knowledge is power, colleagues, and I believe that parliamentarians can play a role in helping to combat foreign interference if we are empowered with the tools to do so.

Our country’s business community — specifically the Business Council of Canada — has also advocated for CSIS to communicate more specific and tangible information to Canadian companies. Just as parliamentarians and staff need to understand the growing threat environment, so, too, do business leaders so they can better protect their employees, customers and communities.

Amendments to the Canadian Security Intelligence Service Act, or CSIS Act, outlined in Bill C-70, will allow CSIS to share more with companies than they are currently permitted.

Efforts are not just under way in Canada to combat foreign interference in our own democratic processes but globally, too, with our partners and allies. Colleagues, foreign interference is not a problem unique to Canada. It is one that impacts every liberal democracy around the world. While frustrations about Canada’s response to interference against our own country are justified, it is important to understand that Canada is not the only target. That is why we need to work with our partners and allies around the world to combat the threat we all face.

For example, Canada worked with its G7 partners on a unified approach to countering malign foreign activities at the G7 summit last week in Italy. In the G7 leaders’ communiqué released last week at the end of the summit, leaders acknowledged the threat posed by foreign information manipulation and interference, which now has an acronym: FIMI.

G7 Leaders pledged to strengthen their coordinated efforts to better prevent, detect and respond to foreign interference and will direct their relevant ministers to bolster Charlevoix’s G7 Rapid Response Mechanism by creating, by the end of 2024, a collective response framework to counter foreign threats to democracies, including publicly exposing foreign operations of information manipulation.

Domestic and global efforts to combat foreign interference activities are all well and good, but it is crucial that we can review measures taken to ensure their efficacy or lack thereof. Bill C-70 was amended by the House Committee on Public Safety and National Security to require a comprehensive parliamentary review of this act and its operation not just, as originally planned, after every five-year period but also during the first year after a general election. This is important, colleagues, especially considering the gravity of the threat against our democracy — and the need to see what works and what does not — as well as the concerns of diaspora communities and civil liberties organizations.

As the chair of a committee that undertook a mandated five‑year comprehensive review of legislation — that being the Sergei Magnitsky Law and the Special Economic Measures Act — I know that legislative reviews do not necessarily happen just because they are written into law. It is my hope that parliamentarians and, indeed, Canadians can count on the following points: that in the context of the operation of the act in the case of a post-election review, the designated Senate or House committee be required to identify any cases of interference that might have occurred and how they were dealt with, and that members of that committee receive any necessary intelligence briefings and security clearances; and that reports be written in a way that is accessible to the Canadian public — who deserve transparency — especially in matters impacting the functioning of our foundational democratic processes.

Finally, we need a clear understanding of how the success — or failure — of the act and its operation will be measured beyond waiting to see what happens at the next election. The Senate Committee on National Security, Defence and Veterans Affairs can play an important role in looking at the implementation of Bill C-70 beyond the mandatory reviews, particularly regarding its impact on diaspora communities and civil liberties organizations.

Colleagues, foreign interference must not be subject to hyper‑partisanship, as we have all agreed that it is a matter of grave and enduring importance. It also requires creative and modern solutions capable of adapting to constantly developing threats and tactics.

Unfortunately, Canada has long been complacent when it comes to national security. Even 100 years ago, former Quebec senator Raoul Dandurand told the League of Nations that Canadians “live in a fireproof house far from inflammable materials.” Despite the wars and conflicts around the world, the terrorist attacks and cyberattacks and the many humanitarian crises over the past century, Canada has not abandoned its sense of invulnerability.

Bill C-70 is long overdue, colleagues, but it is perhaps finally an acknowledgement that Canada is not invincible and that we, ultimately, are responsible for the security of our own country. Without safeguarding the heart of our society — our very democracy — there will be no country to defend.

Thank you.

Honourable senators, let me start by thanking my friend Senator Dean for his wise stewardship of the bill and my friend Senator Dagenais for allowing me to sit in on meetings of the Standing Committee on National Security, Defence and Veterans Affairs during the pre-study as an observer.

Colleagues, earlier today you will have received notice that I will move an amendment to Bill C-70 to remove the phrase “in association with” from the bill. Before I do so, let me take a few minutes to explain why I think it is necessary.

There are six references to that phrase in both Part 2 and Part 4 of the bill. For example, the words “in association with” are part of the definition of “arrangements” in the Foreign Influence Transparency and Accountability Act. The act requires persons to register and provide information:

. . . in relation to arrangements entered into with foreign states or powers and their proxies under which persons undertake to carry out certain activities in relation to political or governmental processes in Canada.

It defines “arrangement” as, “. . . under which a person undertakes to carry out, under the direction of or in association with a foreign principal . . . .”

We have received clarification from officials that “arrangements” include not only formal contracts but other kinds of agreements that are less explicit. Here is what an official from Public Safety Canada said:

An arrangement wouldn’t need to be a written contract. It wouldn’t necessarily need to be spelled out on paper. It can be a verbal understanding. Ultimately, it would be up to the commissioner, based on the facts available to them, to determine whether there was an understanding, an arrangement, an agreement to conduct these influence activities. It’s purposely drafted in a way to not limit it to just that one contract that says I will pay you X to do Y.

In other words, the concept of “arrangement” is already very elastic. This is as it should be since we already have a Registry of Lobbyists that would require anyone who formally represents a foreign power to register under that measure. The new foreign influence transparency registry would close loopholes in the Registry of Lobbyists both by expanding the scope of covered activities and by using a broad definition of “arrangements.”

What, then, is the point of adding the phrase “in association with” to this definition of “arrangements”? Where does the phrase come from anyway? It turns out that this phrase is taken from the Criminal Code and pertains to the commission of offence for criminal organizations.

In the code, 467.12(1) says:

Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

There is some jurisprudence around the term “in association with.” In R. v. Ruzic, 2001, the Supreme Court explained that there is an implicit requirement that the accused committed the predicate offence with the intent to do so for the benefit of, at the direction of or in association with a group they knew had the composition of a criminal organization.

In R. v. Venneri, 2012, the Supreme Court highlighted the underlying principles behind the terms “in association with,” “benefit” and “at the direction of.” The court says the terms have a shared purpose:

Their common objective is to suppress organized crime. To this end, they especially target offences that are connected to the activities of criminal organizations and advance their interests.

Those rulings refer to the suppression of organized crime and the activities of criminal organizations. The proposed foreign influence transparency and accountability act, or FITAA, however, is not a registry of organized crime and criminal organizations. It is a transparency registry intended to encourage persons and organizations lobbying on behalf of a foreign principal to be transparent about their activities. Those activities are not illegal; they are certainly not criminal. The FITAA registry, after all, is not meant to be a blacklist; rather, it is a whitelist. In fact, one of the features of Bill C-70 is that anyone who is in compliance with the registry can legitimately carry out the political interference activities listed in Part 2 of Bill C-70.

The words “in association with” may have some utility in the prosecution of individuals involved in criminal gangs, but it is not helpful for the purposes of FITAA. On the contrary, the use of that criterion will force the commissioner to look for a foreign influence analogue to organized crime.

How will they do that? I believe it will boil down to the views expressed by the person suspected of being “in association with,” even if the point of the registry is not about screening for good or bad points of view. This has already been seen to be a problem in criminal cases where offences using the “in association with” term have allowed conduct to be criminalized that only has a tenuous connection to a criminal organization.

Take the case study of co-called malign foreign influence that was highlighted in the Minister of Public Safety’s consultation paper on the registry that we now have in Bill C-70. It paints a scenario whereby a Canadian academic is asked by an individual employed by a foreign government to write an op-ed opposing a position taken by the federal government without disclosing the foreign actor’s request to do so. This example sent shivers down my spine. It suggests that Canadians who have interactions with foreign governments are servile dupes who have no capacity for individual judgment or agency. How do we know that the Canadian did not already share the views of the foreign government or if they may have, in fact, influenced the foreign agent rather than the other way around?

The reality is that the commissioner of the registry will be hard pressed to determine if there was any direction from the foreign agent to the academic. The commissioner might have information about contact between the agent and the academic, but in the absence of information about direction, they will have to guess if the academic was “in association with” the foreign agent.

The likely starting point for such an assessment will be the views expressed by the academic. The government is passing the buck to the commissioner to determine how to define a vague and problematic term, and is counting upon the courts to fix any excess.

However, we should not go down this road in the first place by inviting the commissioner to perform such a task, and we can do so by removing the words “in association with” as part of the definition of “arrangements” with a foreign principal.

Honourable colleagues, if you think this is a marginal case study, let me give you an example that is closer to home.

When MPs and senators travel to another country as part of an interparliamentary association, they invariably meet with foreign principals who will bend the ears of their Canadian counterparts on policy issues that are important to them. Very often, Canadian parliamentarians will return to Ottawa and pass along those messages to the responsible minister, a senior bureaucrat or the party caucus. I have heard Hill colleagues advocate for lower cheese tariffs after a visit to the U.K.; a change in wine import quotas after visiting Wellington; the need to invest in liquefied natural gas, or LNG, export facilities after going to Berlin; or a plea to support Taiwan’s participation in the World Health Assembly after a sponsored trip to Taiwan. Are the MPs and senators “in association with” the foreign power, and do they have to register with the FITAA registry? After all, they are members of an association that explicitly seeks to influence and be influenced by their counterparts.

Perhaps you agree with the policy proposals advocated by the Brits, the Germans, the Kiwis and the Taiwanese, and are therefore inclined to discount the need for registration, but what if a parliamentary delegation came back from Beijing and advocated for more flights between China and Canada? What if they lobbied for Canada to not follow the lead of the United States in imposing massive tariffs on Chinese electric vehicles, or EVs? Would those examples make you more inclined to insist on registration?

On the face of the bill, MPs and senators are not exempt from registration under FITAA. Perhaps the commissioner will issue a ruling to give all of us a pass, but what about our staffers?

What about the numerous — hundreds — bilateral and multilateral business associations in Canada that do very similar work as our interparliamentary associations, and that regularly meet with foreign officials to hear their views on policy issues that affect bilateral relations? Will members of the Canada-EU, Canada-Japan, Canada-U.S. or Canada-Africa business associations and councils have to register if they trigger any of the three criteria under FITAA simply because they are “in association with” the foreign power?

Just last week, the Business Council of Canada sent a letter to the Prime Minister warning that Canada faces “diplomatic isolation” in NATO if it doesn’t meet its defence spending target of 2%. I presume that Mr. Hyder, the CEO of the Business Council of Canada, believes we will face diplomatic isolation because he has had conversations with leaders of NATO governments who have told him as much. I am sure Mr. Hyder is not “directed by” those governments to lobby Ottawa, but can it not be said that he and his organization are “in association with” NATO governments in conveying such a message?

What about the hundreds of cultural, clan and civil society organizations in Canada that have intrinsic links with foreign governments and which might, from time to time, engage with public officials? Let me be clear: If any such groups have an “arrangement” or are acting “at the direction of” a foreign power, they should register, but in the absence of meeting such tests, does it make sense to use the woollier concept of “in association with” to force them to register?

You might think that it isn’t a big deal if parliamentarians, business associations and cultural and civil society groups have to register. So what if the term “in association with” captures a very broad swath of individuals and groups? But bear in mind that the phrase “in association with” also appears in Part 2 of the bill that deals with political interference for which the consequences are not trivial at all. The use of “in association with” could ensnare Canadians in criminal cases related to political interference because of their views or connections, with the threat of a maximum penalty of life imprisonment.

The open-ended nature of the phrase “in association with” will incline the commissioner and investigators to look at the backgrounds and views expressed by suspected agents as a proxy for being “in association.” Even if they do not specifically go in that direction, there will be public pressure upon them, including snitching and rumour mills, to make judgments about who should be required to register based upon the views they hold and the groups they associate with.

That is how McCarthyism started.

If you have any doubt this will happen, I offer myself as a case study. Yesterday, I learned that the Chinese Canadian Concern Group on the Chinese Communist Party’s Human Rights Violations has written to the Commissioner of the Public Inquiry into Foreign Interference to question my loyalty and that of our former colleague Senator Victor Oh. To be specific, the concern group has urged the commissioner to review my participation in the commission by “. . . taking into consideration his past comments and associations.”

I suppose I should thank the Concern Group for providing me with such an egregious and timely example of stigmatization based on my “past comments and associations.” You can be sure that if Bill C-70 is passed, they and others will use the phrase “in association with” to stigmatize many other Canadians who have much fewer protections than I have. Indeed, they have already recklessly named other Chinese Canadians in the letter and cast them as possible foreign agents with zero evidence.