Resuming debate on the amendment. Two people have shown an interest in asking a question, and there are 19 seconds left. Senator Woo, you have the floor.

Leave is not granted.

Honourable senators, I rise to speak briefly to Senator Woo’s proposed amendment to Bill C-70.

I thank Senator Woo for his heartfelt remarks. I thank Senator Dean for his sponsorship, his very responsible carriage of this bill and his remarks today. And I thank the members of the committee, who worked diligently to study this bill during the time that they had.

This chamber is at its best when thoughtful people engage in vigorous, civil debate about matters of consequence, and that’s what’s happening here today.

I know we all count ourselves fortunate to be part of a country and an institution where this kind of debate is not only possible but encouraged, and it’s an honour for me to be part of it.

Bill C-70 has been developed in that spirit, with the aim of protecting our democratic institutions and the values of openness and transparency that make Canada, Canada.

We can’t take our democracy for granted. We can’t ignore the reality that some foreign powers — among others — would like to see our democracy sour and rot and are actively working to make that happen. We have a responsibility to protect people who have come to Canada in search of safety and freedom from the tentacles of the regimes they fled.

Colleagues, I’m confident that we’re all on the same page in that regard. Our debate today — and our debate on this amendment, in particular — is about how exactly to do so.

It’s important for people to demand vigilance and thoughtfulness from legislation, particularly when it relates to national security, so that we don’t unintentionally solve some problems by creating others. That’s what Senator Woo is attempting to do in this case, and I thank him again for it.

One of the main objectives of Bill C-70 is to protect members of diaspora communities. The last thing any of us want to do is feed suspicion and persecution of fellow Canadians on the basis of national origin or ethnicity. The concerns Senator Woo has expressed are legitimate, important and should not be taken lightly.

We each come to this chamber with perspectives shaped by our background and experience. Bringing those perspectives to bear as part of the legislative process is an act of patriotic service to Canada.

To that end, I will now share my views about this amendment.

Colleagues, in short, I cannot support this amendment.

As we’ve heard, the amendment proposes to remove the phrase “in association with” from two areas of the bill, as set out and explained by Senator Woo in his remarks. Let me address them each in turn.

The first of these areas is the Security of Information Act, a bill that has been on the books for some time and is being amended with proposed amendments in Bill C-70. Bill C-70 would create or expand several offences in that act involving activity undertaken “. . . at the direction of, for the benefit of or in association with . . .” a foreign entity.

These offences include the use of intimidation, threats or violence in proposed sections 20 and 20.1; conducting an indictable offence for a foreign entity in proposed section 20.2; and engaging in surreptitious or deceptive conduct harmful to the interests of Canada in proposed section 20.3.

The bill also creates the offence of engaging in surreptitious or deceptive conduct with the intent of influencing political, governmental and certain other processes at the direction of or in association with a foreign entity in proposed section 20.4.

Colleagues, in all these cases, a person has to be engaged in malign activity. On their face, these provisions do not criminalize mere association with a foreign entity. Rather, they target people who are up to no good, using threats, violence, intimidation and deceit. Someone engaged in this kind of activity should be subject to prosecution.

The government disagrees that these provisions are over-broad or ambiguous. As I mentioned, section 20 of the Security of Information Act already contains a provision — and that’s the one I referred to earlier — and it has been in force for many years. It has always included the phrase “in association with.” This is nothing new in this area of the law. Indeed, in one important aspect, Bill C-70 actually removes ambiguity from the existing law.

Let me explain. The existing section 20, which is currently in force, prohibits the use of “. . . threat, accusation, menace or violence . . .” to induce someone to do something harmful to Canada “. . . at the direction of, for the benefit of or in association with a foreign entity . . . .” That’s the law as it stands now. Bill C-70 would replace the terms “menace” and “accusation” with “intimidation,” a term better understood in Canadian criminal law, notably in the context of extortion.

That’s not an unhelpful analogy with regard to some of these offences. They are extortion-type offences, albeit not for monetary gain but for the nefarious purpose of interfering in our democratic processes.

As I said, this provision which is currently in force includes the “in association with” phrasing. So, the proposed amendment offered by Senator Woo would actually water down the existing statute. That would certainly be contrary to the government’s intent, which is to more effectively deter and to allow for the prosecution of malign activity where a foreign entity is involved.

I’ll turn now to the second area where the proposed amendment would apply, and that is the foreign influence transparency and accountability act.

This new act is not about malign activity. It’s simply about transparency. Bill C-70 would require people to register if they’re attempting to influence political or democratic processes in Canada “. . . under the direction of or in association with a foreign principal . . . .”

Colleagues, there is no implication that such activities are inherently bad, and there is no attempt to discourage them or curtail them. The government’s objective is simply to ensure that Canadians know where political messaging is coming from and who is behind it. It is the same concept as the lobbying registry, which doesn’t prevent lobbying; it simply promotes transparency.

Removing “in association with,” as this amendment proposes, would create a sizable loophole in the requirement to register, and it therefore undercuts the transparency objective.

When it comes to political communication, relationships between foreign actors and people in Canada are not usually so straightforward as to involve written contracts or explicit direction. There may be situations, for example, where a foreign regime funds a think tank in Canada. Now, the regime may not direct the think tank’s specific actions and communications, but Canadians at least are entitled to know who is bankrolling it, regardless of what the think tank’s positions were or are and where they originated.

Or the agent of a foreign country might approach a Canadian academic and encourage them to make certain public statements or publish certain articles, without giving explicit instructions. Under Bill C-70, the academic would be free to do so. They would just have to be transparent about it. The proposed amendment, on the other hand, would relieve them of that obligation of transparency.

Colleagues, foreign actors can be quite skilled at finding weaknesses in our laws and exploiting them. By removing “in association with” and limiting the registry to situations where there is explicit direction from a foreign principal, we would be pre-emptively hollowing out this new registry.

Colleagues, the purpose of this bill is to better protect Canada from foreign interference and transnational repression and to promote transparency with regard to political communication and influence. Bill C-70, looked at as a whole, enhances the tool kit that is available to our national security and intelligence agencies to help them counter these growing phenomena. A spectrum of tools could be brought to bear from transparency requirements, on the one hand, to administrative monetary penalties to investigation to prosecution — all depending on the context.

Similarly, the new foreign influence transparency commissioner would likewise have a range of tools at their disposal, from issuing guidance and warnings to making referrals to law enforcement. In other words, this bill is not a blunt instrument. It is a very nuanced one, a nuanced approach to a nuanced and challenging issue.

As I said at the outset, I’m sensitive to Senator Woo’s concerns. We are all aware that well-intended legislation can have unintended consequences, especially in the national security space.

I would remind senators that we have taken significant steps in recent years to strengthen oversight and accountability in this regard. We now have institutions like NSICOP and NSIRA, which didn’t exist when anti-terror laws were adopted in years past.

Legislating in this space will always be a matter of trying to strike the right balance: protecting civil liberties while protecting our national security and national institutions. The government believes that this bill strikes that balance appropriately, and, as demonstrated by the vote in the other place, members of the House of Commons emphatically agree.

The other place is also of the view that these new statutes should be operational before the next election, a goal that would be jeopardized if we return the bill to them at this point in the calendar.

I understand that the Senate’s National Security Committee has had initial discussions about the possibility of staying engaged with Bill C-70. Senator Dean alluded to that. That could include following the implications and studying its implementation when we return in the fall. From the government’s point of view, this sounds like a very worthwhile endeavour, and it’s a good way of respecting the desire of the other place and of the public to respond to emerging threats in a timely way while doing our due diligence and carrying a watching brief in our role as senators.

Once again, I want to thank Senator Woo for his contributions to the study of this bill. Senator Woo, I trust that you will be an eager participant in any further committee study of Bill C-70 and related issues, and our chamber would certainly benefit from your involvement.

For the moment, though, I encourage honourable senators to oppose this amendment and support this legislation as drafted. Thank you for your kind attention.

Yes, of course.

Thank you for your question. It’s an important one. I have confidence that the government’s intent is very clear in this law as not to stigmatize members who engage and participate legitimately in the legislative process.

I would point out, though, if I may — and this is proposed section 20.4 to which you’re referring — that although it retains “in association with,” a careful reading shows that it, unlike the other sections, has removed the phrase “for the benefit of.” The reason is the continuum of standards that might be reached. The easiest one to meet for an investigation or indeed a prosecution is “for the benefit of” because that’s fairly clear. It was precisely because that is too easy a bar that the government removed it from this particular area, unlike the sections that involved intimidation, threats and violence and so on and so forth, to make it harder to capture those who are engaged in deceptive conduct or surreptitious conduct.

It is very difficult sometimes to know for sure whether one is directed because paper trails by any competent foreign bad actor will not be easily found, if present at all. The “in association with” is a factual question that will have to be examined.

I am confident in the legislation as a whole. I have confidence in the procedures that are set up, with the new commissioner and in good sense and including, by the way, the legal provisions — judicial review and others — that are in the bill.

So it is a legitimate question, but this is designed to have a narrower focus to reduce and mitigate the risk that you’ve pointed out.

The lawyer in me is very reluctant to comment. I’m not going to duck behind that, Senator Woo, but I think it’s unlikely that it would be caught. That’s not my reading of the legislation. When it’s looked at as a whole and in terms of its overall objectives, with ample evidence on the record, both in the other place and here, this is what the government’s intentions are. Respectfully, I don’t believe that would be captured, and I don’t believe it should be.

Senator Gold, thank you for your speech on this. I have a few more legal points.

I think it’s actually a good thing that the phrase “in association with” is used in a major federal statute. Senator Woo provided an example of that from the Criminal Code, and you provided a few more. It’s also a good thing there is already federal case law, including the Supreme Court of Canada — as Senator Woo himself referenced — interpreting that phrase, “in association with.” There are likely other federal statutes other than the Criminal Code which probably also use the phrase “in association with.”

So using language which is contained in other statutes and has been well interpreted by courts is a positive thing for federal legislation.

As well, from Senator Woo’s reference, it sounds like the Supreme Court of Canada did not rule the phrase “in association with” to be overbroad in that Criminal Code case that he referenced.

Given all of that, wouldn’t you agree that it lends credence to the same phrase, “in association with” and would not be found to be overbroad for those reasons as well?

Thank you for that. I agree with that, Senator Batters. I won’t elaborate the point; I think you put it very well. I do agree.

Again, I think it is inappropriate certainly for me, in my capacity as Leader of the Government, to opine on hypothetical situations. Again, I would point you to the language of the clause, which provides that you must be either at the direction of or in association with a foreign entity and engage in surreptitious or deceptive conduct with the intent. That’s point one.

Second, we all might remember the long discussions we had around Bill C-59, which I had the privilege of sponsoring in this place some many years ago now, where the issue of the difference between intelligence and evidence was highlighted as an ongoing issue within our legal system. Again, there is a distinction between an investigation that the Canadian Security Intelligence Service, or CSIS, may undertake and whether or not that ever arises to something around which there would not only be evidence that’s usable, much less evidence that rises to a level of prosecution.

Again, I think your question is a hypothetical one, and I don’t believe that the legislation, as drafted, would support the view that you expressed.

Honourable senators, I’ll be brief. I’m going to add to comments already made about our colleague Senator Woo: No one can unravel complex and indecipherable statutes as well as our good friend there, and that’s a skill indeed. I’m grateful to Senator Woo for bringing these ideas and this proposal to our attention.

Senator Woo feels that the framing of the language, to put it simply, casts too wide a net. I think, from my reading and intention of this, that a registry is indeed intended to cast a wide net. That is its purpose. I think it has two purposes: to cast a wide net, to see what that net looks like and then to look at actors and individuals who may not have chosen to join the registry. It’s an interesting device and tool, and we see it used in other regulatory contexts.

The discussion about scope is critically important, and I’m glad that we’re having it. My own concern with this is that the solution to that as proposed by Senator Woo would narrow the scope of this and move too much in the other direction, if I can put it that way, and that we’d end up with a relatively small number of registrants, and one of the purposes of the registry would be defeated.

That’s a concern that I have, and for that reason I’m not inclined to support the amendment even though I find it painful to do that, I will admit.

As Senator Woo mentioned, there will be a commissioner. That commissioner, hopefully, will be appointed early, and we’ll have a role in that appointment. I suspect that commissioner will deal very quickly with issues like parliamentary travel and what I would call the extraneous group of concerns that have been raised about this, and they should be concerned, but I think they’re easily dealt with.

At the end of the day, my concern is what we would be left with if we were to adopt this and how that would operate within this scheme and its relationship with other elements of a complex of instruments that is being contemplated in terms of pushing foreign interference to the ground.

So there it is: it’s brief and straightforward, and I’ll leave it at that. Thank you, Senator Woo.

My view is that when we have a commissioner we will engage with the commissioner in the design and framing of regulations and that matters like this will be appropriately addressed there. I think that these are matters too complex for us, frankly. Let me just say that about me; I’m guilty.

I think that’s work that is yet to be done. Again, I will say that we will have a role in selecting a commissioner. Selecting the right person is going to be key in all of this. The regulations, approaches and processes that are associated with the actual operation of this provision are going to be paramount.

I will go back to the concerns raised at the committee about the need for us to keep eyes on this because we have a stake in it as parliamentarians. Thank you.

Well, I would first say, Senator Woo, that “in association with” is not vague and amorphous. We know what it means. It means, in its plain meaning, doing something together. Doing something together, that is what “association” means.

In saying that, I’m struck, as I was this morning, when we had a conversation about our Charter and freedom to associate, and I think that’s important as well.

Beyond that, I would say that hypotheticals about what other countries might do and how it might relate to this are difficult to engage in. I’m not inclined to go there is the answer.

Senator Dean, will you take a question?

Certainly.

Thank you.

We are talking about “in association with” in isolation from the rest of the phrase which includes intent. I’m also going to go back to our colleague Senator Boehm’s comment about when we engage in parliamentary or diplomatic processes, there are parameters to our actions. Within there comes the context of who we are doing it for.

In our discussions and the debate that transpired within the very abbreviated time we had to study this bill, did we ever hear that people engaging in legitimate engagement in accordance with parameters in the best interests of Canada were going to be captured by this law? Again, I go back to the point, if you take “in association with” in isolation, you cannot do so without the full phrase, “with the intent to.”

Did we hear anything like that in our discussions?

My understanding of the scheme is that yes, people who are operating completely within the bounds of the law would meet some of the criteria and would be expected to register, and that’s okay.

The point of the registry is not to entrap those people who are doing things wrong. In many cases, it is asking people who are doing things right to just register. I don’t have a problem in an operation like this with people who are following laws and appropriate practices still finding themselves with a relatively light requirement to register in a registry of this kind.

If this process overreaches a little, I would rather it do that than under reach. We might see a lot of under reach if we were to agree with this amendment.

I will say that there are criteria for registration that are clear and which will require some people to register who are acting in a manner that would not attract some of the penalties associated with certain activities under the legislation.

Do I have a problem with that? No, I don’t.

I will say only a few words. Just to make some additional statements, though I agree with Senator Gold on all he said, including on the very relevant comments that were made by Senator Woo, which I respect very much.

What he said could be true in a different context, but we have to remember here that this bill could not lead to McCarthyism. Joseph McCarthy was running a United States Congress committee that was politically judging people who were charged with being communist, who were close to communism or who were sharing views that were considered to be communist views.

Here we are creating offences that will be dealt with by the Crown office that will have to charge somebody before a court of law. The accused appear before a judge — a woman or a man of certain qualifications who has to act impartially and not in the pursuit of political gains or opposing political enemies or political wins. We should not compare; there is no danger of McCarthyism here. I think this is, unfortunately, an overreach comment.

The second point I want to make is that “in association with” is not a new concept. It is a concept well-known to the criminal law. It is found in many places in the Criminal Code, and it was very useful to have in the fight against gangs, especially in Quebec with the biker gangs.

The term “in association with” is also used in the Security of Information Act , which is the first amendment that is on the list of proposed amendments, where the words “in association with” has been found since 2001. What the bill has been amended is to add intimidation to the provision but not the concept of “in association with.” This is not something new. This is something that has been there for 25 years, so far without a problem.

That said, my third and last comment is about the words “in association with.” As Senator Woo referred, very properly, the Supreme Court of Canada had to look at this concept in an appeal from the Court of Appeal of Quebec in 2001. The Supreme Court disagreed with the Court of Appeal of Quebec. I was not part of the panel, incidentally, but the court disagreed with the Court of Appeal of Quebec on one point: the definition of “in association with.” It was about biker gangs.

Just to summarize, that judgment reached exactly what Senator Patterson was aiming at. At paragraph 43 of the Supreme Court decision in Venneri which was unanimous and written by Justice Fish, a former colleague of the Court of Appeal:

The phrase “in association with” should be interpreted in accordance with its plain meaning and statutory context. It is accompanied here by the terms “at the direction of” and “for the benefit of.

That is exactly the same situation we have here.

These phrases are not mutually exclusive. On the contrary, they have a shared purpose and will often overlap in their application. Their common objective is to suppress organized crime.

Here it is to suppress foreign interference. To this end, they especially target acts that are connected to the activities of foreign organizations and advance their interests. To this end, they especially target offences that are connected with the intent to interfere in the political process in Canada.

In my view, we should trust the system. I trust the courts. I trust what we are trying to do here. It is nothing new. I believe this: When the words “in association with” are read with “under the direction of” and “to the benefit of,” in the context of the bill they are clear: it is about foreign interference.

You have to read all these things together. I know Senator Woo doesn’t have to believe me all the way, and he is not paying me, so I’m giving free advice. Free advice is always worth the price you pay for it, but I’m giving the advice that I’m not concerned, and I will vote against the amendment and vote for the bill.

Are you suggesting I provide a subamendment to your amendment? In your speech, you referred mostly to the Criminal Code and the fact that people will go to jail and will be charged under the Criminal Code of very serious offences, so I’m addressing that concern about criminal law.

Regarding the other part of the bill, which is creating this new registry, if people have any doubts, I understand that the mandate of the commissioner will be to provide information and guidelines. I think this is maybe a new avenue that will have to be explored, and perhaps some people will have to register because they act in association with a foreign state for the benefit of that foreign state. But to visit Taiwan on a paid trip is not to act for the benefit of or in association with Taiwan, as you referred to in your speech. If you go to Israel on one of these paid trips, or to Taiwan — I did last year — you have to report it. It has to be disclosed to the Senate Ethics Officer and put on the website so that it is known to the public, to everybody.

The purpose of the registration in the proposed act is to make public what otherwise would be hidden from public view. It is not to prevent someone from saying, “I believe the French government is absolutely right on this policy, and I want to fight for it and I think it should be in Canadian law.” Yes, I could do that, but if I do it under the direction of or for the benefit of the French government, I should disclose it. It doesn’t prevent me from doing it; it just requires me to make it public.

What is the net and who should register — that’s the second part of your question — is an interesting question, but I won’t opine on that one. I’ll wait for the Supreme Court to give me guidance. Thank you.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “nays” have it.

I see two senators rising. Is there agreement on the length of the bell?

Fifteen minutes.

Is leave granted?

The vote will take place at 5:29 p.m. Call in the senators.