Parliamentary Committee Notes: An Act respecting countering foreign interference - Media Lines

On May 6, 2024, the Honourable Dominic LeBlanc, Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs introduced legislation to counter foreign interference in Canada. Bill C-70, An Act respecting countering foreign interference introduces the Foreign Influence Transparency and Accountability Act (FITAA); and amends the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act.

Key Messages

General

• Foreign interference is one of the most critical threats to Canada’s national security. It can undermine Canadian sovereignty and social cohesion, diminish the Canadian public's trust in our institutions, and threaten the rights and freedoms to which all people in Canada are entitled.
• In recent years, we have observed a significant increase in the sophistication, persistence, and pervasiveness of these efforts.
• Efforts by foreign states, and those who work on their behalf, to target politicians, political parties, and democratic processes in order to influence Canadian public policy and public opinion and ultimately undermine our democracy and democratic processes represent some of the most paramount concerns.
• While foreign states usually advance their interests in legitimate and transparent ways, some also act in ways that threaten or intimidate people in Canada, their families elsewhere or are otherwise covert or deceptive, and harmful to Canada’s national interests.
  
• The Government of Canada has a wide range of tools and authorities to address the many forms of foreign interference, but as the threat evolves, our toolkit must adapt accordingly.
• That is why the Government of Canada has introduced Bill C-70, An Act respecting countering foreign interference, which aims to protect people in Canada and further strengthen Canada’s counter-foreign interference toolkit, by:
  • introducing the Foreign Influence Transparency and Accountability Act (FITAA), which would enable the creation of a Foreign Influence Transparency Registry overseen by a Foreign Influence Transparency Commissioner to independently administer and promote compliance with the FITAA; and,
  • seeking legislative amendments to enhance the government’s ability to detect, disrupt and protect people in Canada against the threats posed by foreign interference. This includes changes to the Security of Information Act, the modernization of the 40-year-old Canadian Security Intelligence Service Act and the modernization of certain Criminal Code offences. It also amends the Canada Evidence Act to introduce a standardized regime to protect and use sensitive information in administrative proceedings in the Federal Court of Canada.
• The proposed legislation takes into consideration the input received during consultations with the public and with a wide variety of partners and stakeholders, including provincial, territorial and Indigenous governments and partners, community organizations, academia, and the private sector. This is intended to ensure that the legislation is aligned with our national values, captures a wide range of expertise, perspectives, views and opinions, and respects Canadian fundamental rights and freedoms.
• The Government of Canada must protect all people living in Canada, and this legislation will help safeguard individuals and members of communities from being targeted and threatened by foreign interference.
• Countering this threat, while upholding Canadian interests, values and principles are top priorities for the government. The government recognizes the importance of transparency in its approach to counter foreign interference.

Foreign Influence Transparency and Accountability Act

• The purpose of the Foreign Influence Transparency and Accountability Act (FITAA) is to promote transparency from people who advocate on behalf of a foreign state or entity and accountability from those who would do so in non-transparent and/or clandestine ways.
• Registration does not necessarily mean that someone is an agent of a foreign state. In many cases, they may only have a business or contractual arrangement. In other words, they are not an employee of or under the control of a foreign principal. By registering under FITAA, individuals and entities are transparent about their connections. This supports Canada's national security objectives.
• Fostering transparency and accountability will reinforce the protection of political and democratic processes often targeted by attempts at foreign interference, while also aligning Canada with international best practices.
  
• The FITAA is not a single solution to foreign interference in Canada. The Foreign Influence Transparency Registry would be an additional tool to bolster Canada’s approach to countering foreign interference, and it builds on ongoing and long-standing Government of Canada efforts to protect our democratic institutions against the threat of foreign interference.

Consultations:

• The Government of Canada launched consultations in March 2023 to guide the development of a Foreign Influence Transparency Registry to ensure solutions capture a wide range of expertise, perspectives, views and opinions.
• Key themes and findings from the public consultations are available in a What We Heard report.
• We received responses from individuals and organizations across the country and engaged with a diverse range of partners and stakeholders, many of whom indicated broad support for a Foreign Influence Transparency Registry.
• People in Canada were clear that a Registry must focus on transparency. It cannot become a “blacklist”, which could further stigmatize and marginalize those from certain communities.
• On November 24, 2023, the Government of Canada launched additional consultations to gather feedback about potential amendments to the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act.
• We received significant positive feedback in this second round of consultations. We again received responses a diverse range of partners and stakeholders, the majority of whom indicated broad support for the proposed amendments.
• Key themes and findings from the public consultations are available in two reports found here.

Amendments to the Canadian Security Intelligence Service Act

General

• In recent years, Canada has seen an increase in the frequency and sophistication of foreign interference by countries seeking to advance their political, economic and security interests to the detriment of Canada’s.
• The proposed changes to the Canadian Security Intelligence Service Act (CSIS Act) would help the Government of Canada better address evolving foreign interference threats. To do so, CSIS must be able to equip national security partners to operate in a digital world and respond to evolving threats.
• These changes incorporate the input received during consultations from people in Canada, including community organizations, academia, the private sector, and provincial, territorial and Indigenous governments and partners to ensure that the amendments capture a wide range of expertise, perspectives, views and opinions.
• The amendments also continue to respect Canadian fundamental rights and freedoms, with strong review, oversight and transparency measures unchanged.

Information sharing

• Unlike in the past, where foreign interference mainly targeted the federal government, its assets and institutions, foreign interference today threatens all levels of government – including provincial, territorial, municipal and Indigenous governments – and also all sectors of society, including academia, hospitals, laboratories, community groups and industry.
  
• All people in Canada have a role to play in protecting Canada’s national security. This is why there are sometimes situations where persons and other orders of government/entities such as provinces, territories, and municipalities outside the Government of Canada may need to receive some information from CSIS in order to better understand foreign interference threats, how these threats can present themselves, and steps to become more resilient against them.
  
• Stakeholders and partners, including provinces and territories, look to CSIS more than ever to share information and intelligence to help them protect their assets, sectors and ultimately Canada against national security threats.
  
• Amendments to the CSIS Act would enable the disclosure of information, subject to privacy protections, to individuals and organizations outside the Government of Canada, to help them build resiliency to threats to the security of Canada.
• Increased resiliency would enable Canadian society at large to mitigate the impact of foreign interference before it undermines our institutions, economy, rights and sovereignty.
• Improving the legal authorities for the timely disclosure of information by CSIS to relevant stakeholders, including other orders of government and jurisdictions, is an important addition to the Government of Canada’s toolkit to protect Canada, the Canadian public and our institutions against threats to national security.

Judicial authorization

• Today, digital technologies permeate every aspect of Canadian life. Electronic information and data have become a large and important part of national security investigations. When the investigative technique is more than minimally intrusive, these investigations require a warrant from the Federal Court to ensure the privacy rights of people in Canada are respected.
  
• The CSIS Act currently has one type of warrant featuring requirements that are appropriate for the most intrusive investigative techniques (e.g., the interception of private communications). It was intentionally designed to be used only when all other investigative avenues have been exhausted.
  
• Having more targeted judicial authorizations that would allow CSIS to obtain specific pieces of information, or to conduct one-time collection activities without having to prove that all other investigative techniques have been exhausted, would enable CSIS to counter foreign interference threats in a more timely manner.
  
• More targeted judicial authorizations can ultimately be less intrusive overall, because CSIS will not need to resort to multiple investigative techniques, over longer periods of time. These can help mitigate false starts and focus investigative resources.
• The new authorizations incorporate safeguards to ensure they are used appropriately.
  
• Amendments would also enable CSIS to seek an order for the preservation of information that is held and may be deleted by a third party.
  
• This means that CSIS can have third parties preserve information of importance to an investigation that otherwise could be lost while CSIS takes the necessary steps to obtain a judicial authorization to collect the information.

Datasets

• Despite the clear importance of data and data analytics, CSIS’ ability to retain and use datasets under this authority has been limited by the complexity of the regime and limitations on how datasets may be used.
  
• Targeted amendments to CSIS’ dataset authority will alleviate some of the more challenging elements by, for example, extending the timelines for the evaluation of datasets, while maintaining the strong safeguards to protect the privacy rights of Canadians.
  
• Amendments would also enable CSIS to use Canadian datasets for security screening investigations.
  
• Other amendments clarify several parts of CSIS’ dataset authority, including its application, and minimize duplicative aspects.

 Foreign intelligence collection

• Court decisions have made it clear that CSIS cannot collect foreign intelligence from within Canada when the information is located outside Canada.
  
• This geographic limitation restricts foreign intelligence collection in ways that could not have been foreseen in 1984, given how information today is largely digital and borderless.
  
• Electronic information that was previously collected in support of Canada’s foreign affairs or national defence is now frequently located outside our borders.
  
• Amendments seek to clarify CSIS’ authority to collect, from within Canada, foreign intelligence that is located outside Canada, while still maintaining the other limitations originally intended by Parliament.

 Statutory review

• The threat environment facing Canada is in a constant state of evolution and Canada needs to ensure it has the tools necessary to detect and address national security threats.
  
• Periodic reviews of the CSIS Act would ensure that CSIS is adapting to emerging threats and has the appropriate legislative tools available to protect Canada and the Canadian public while respecting rights and freedoms.
  
• Up-to-date authorities bolster CSIS and Canada’s ability to engage with allies, maintaining Canada’s reputation as a trusted partner in the fight against national security threats that transcend borders.

Amendments to the Criminal Code, Security of Information Act and Canada Evidence Act: An Act respecting foreign interference and national security

• Foreign interference is one of the most critical threats to Canada’s national security. Countering this threat, while protecting people in Canada and safeguarding Canada’s sovereignty, interests, and values, is a top priority for the government.
• To this end, the Government of Canada is working to strengthen Canada’s ability to respond to evolving foreign interference threats by proposing reforms, including to three key laws – the Security of Information Act,the Criminal Code and the Canada Evidence Act.
• This legislation is an important step in our path toward better protecting people in Canada from these threats, while also safeguarding the values, rights and freedoms that define a free and democratic society.
• Changes to the Security of Information Act would better address foreign interference risks to Canada and ensure that surreptitious or deceptive hostile activities, including those directed at our democratic processes including the nomination of political candidates, are addressed by the criminal law. They would also better address transnational threats or violence by foreign states and those who work on their behalf to intimidate people living in Canada and their families wherever those family members may be. For example, when someone who is working on behalf of a foreign state threatens someone in Canada that their parents will not be allowed to leave that state to come to Canada to visit them unless they provide information to the foreign state.
• The changes would also address the inappropriate sharing of military knowledge and protect against the harmful disclosure of military technology to our adversaries.
• Changes to the Criminal Code, introduce a new sabotage offence focused on conduct directed at essential infrastructure and specific categories of protected essential infrastructure including private and public infrastructure systems that enable transportation or communications or support the delivery of health and food services. The changes would also create an offence covering the making, possessing, selling and/or distributing of a device to commit a sabotage offence, such as a bot infected with malware, and recognize Charter protections for freedom of expression and freedom of peaceful assembly.
• Changes to the Canada Evidence Act (CEA) would create a general Secure Administrative Review Proceedings (SARP) process to govern the protection, disclosure, and use of national security information in judicial reviews and statutory appeals in the Federal Court and Federal Court of Appeal – though it would not apply to proceedings under the Immigration and Refugee Protection Act. Such a process would be useful in the defence of a broad range of foreign interference related administrative decisions. Finally, other changes to the CEA would aim, among others, to address concerns about trial interruption and delay.
• These proposed changes reflect the input received during broad-based consultations with people in Canada on the Security of Information Act, the Criminal Code and the CEA, including provincial, territorial and Indigenous governments and partners, various stakeholders representing diverse communities across Canada, members of the legal profession, academia, civil society organizations, and industry.

Questions and Answers

Foreign Influence Transparency and Accountability Act

Q1. What is the purpose of the Foreign Influence Transparency Registry?

A1. The Foreign Influence Transparency Registry seeks to strengthen Canada’s national security by raising public awareness of influence activities undertaken by foreign states, and bolstering deterrence against foreign states that seek to influence Canadian democracy and political processes in non-transparent ways. The registry would be accessible to the public and to all jurisdictions in Canada.

Q2. Who is required to register?

A2. There are three criteria that, when taken together, would trigger the registration requirement under the Foreign Influence Transparency and Accountability Act:

• Any individual or entity that enters into an arrangement (foreign influence arrangement) with a foreign principal, where that individual or entity acts at the direction of or in association with a foreign principal to engage in foreign influence activities.
  
• Undertakes any of the following foreign influence activities: communication with a public office holder; communication or dissemination of information to the public; or disbursement of money or thing of value.
  
• The activity that is undertaken is in relation to a political or government process.

A foreign principal could be a foreign economic entity, a foreign entity, a foreign power or a foreign state.

Q3. Who would administer the registry?

A3. Independence in investigations and enforcement decisions are critical to ensure there is no political influence, or appearance of any political influence, in the administration of the registry. For this reason, a Governor-in-Council appointed Commissioner of Foreign Influence Transparency (“Transparency Commissioner”) would administer the registry.

The Transparency Commissioner would be housed within Public Safety Canada. This is a model that is used by the Competition Commissioner and the Superintendent of Bankruptcy, both of which have resulted in a high degree of independence and professionalism in enforcement actions, while still allowing the government to leverage existing information sharing processes across departments and agencies to support the offices.

Q4. Are there registration exemptions?

A4. Exemptions to registration are intended to cover individuals, arrangements or information where transparency is apparent. Exemptions are envisioned for accredited diplomats and consular officials, and foreign government employees acting openly in their official capacity. We recognize that further exemptions may be appropriate and the legislation provides that the Governor-in-Council may, by regulations, make provisions for further exemptions if needed.

Q5. What are the consequences of not registering?

A5. FITAA includes provisions to promote compliance with registration obligations and to address serious violations, including failing to register an arrangement or activity or obstructing the operation of the registry. The Transparency Commissioner would have a number of tools to promote compliance, including Notices of Violation, and administrative monetary penalties.

For more egregious contraventions, the Transparency Commissioner could refer the matter to the appropriate law enforcement authorities to conduct an independent criminal investigation.

Q6. What are the penalties?

A6. While amounts for administrative monetary penalties for contraventions of the FITAA would be set out in regulation, any individual or entity guilty of an indictable offence under the criminal provisions in the FITAA could face prosecution and penalties up to $5 million, a prison term not exceeding five years, or both.

The decisions of the Commissioner can be judicially reviewed in the Federal Court.

Q7. What review and accountability provisions would be in place for the Commissioner?

A7. All matters and processes carried out by the Commissioner would be reviewable by the National Security and Intelligence Review Agency (NSIRA) and the National Security and Intelligence Committee of Parliamentarians (NSICOP). In addition, the Commissioner would be required to table an annual report each year in Parliament. It is also envisioned that a statutory review would occur every five years.

Q8. What were some of the key findings from the consultations?

A8. The consultations demonstrated broad support for a Canadian-made Foreign Influence Transparency Registry. However, a resounding theme from the consultations was that such a registry, while an important tool, would not be a singular solution to foreign interference in Canada. For this reason, the Government of Canada has consulted people in Canada on amending various Acts, and continues to review and assess the tools and authorities we have in place to ensure our approach keeps pace with modern threats. We also heard that the registry must be properly designed, resourced and enforced to be effective. In principle, stakeholders argued that exemptions should be as narrow as possible to avoid creating loopholes. More information about the findings of the consultations are available in a What We Heard report.

Q9: Is the FITAA designed to address Overseas Police Stations?

A9: The registry is an important tool to enhance transparency for those who act on behalf of foreign governments to influence our government and political and democratic processes. While the registry is not intended to address the full spectrum of foreign interference threats in Canada, ultimately how the law applies to such a scenario would be subject to the decision of the Foreign Influence Transparency Commissioner. In particular, FITAA will regulate communication or dissemination of information to the public by individuals working for foreign states.

In addition, the FITAA is being introduced alongside a number of other measures, such as amendments to the CSIS Act that would help detect and in some circumstances disrupt such activity, and changes to the SOIA that may criminalize some transnational repression activities (for example, an individual in Canada working on behalf of a foreign state threatening to harm relatives in that country of a Canadian citizen who is protesting human rights concerns). Amendments to the Security of Information Act would also address so-called ‘overseas police stations’ (see Q29). Collectively these measures will bolster Canada’s counter-foreign interference response, including to address situations such as overseas police stations.

Q10:   Is the Foreign Influence Transparency Registry a Blacklist?

A10: No, this is a misconception. Registering under FITAA does not mean that an individual is engaged in undesirable or unlawful activity. The ultimate goal for Canada is to enhance transparency over foreign influence undertaken at the direction of, or in association with foreign states. This is a desirable societal goal that the FITAA is intended to help us achieve, and to that end it is not a “blacklist.”

Q11: Would the FITAA prevent people from engaging in political expression or democratic processes?

A11: No. The FITAA does not prevent anyone from engaging in democratic processes in Canada. It simply requires openness and transparency around certain governmental and political communications activities other influence activities where they are undertaken at the direction of, or in association with, a foreign state.

Q12: Would the FITAA capture foreign influence directed towards other orders of government or jurisdictions in Canada?

A12: Foreign interference targets not just the federal government but also communities across Canada, as well as provinces, territories and Indigenous partners. Elected and public officials across all political parties and levels of government are targeted, including Members of Parliament and Senators, members of provincial and territorial legislatures, municipal officials, and representatives of Indigenous governments.

In order to meaningfully address foreign interference, we need to ensure that our approach is comprehensive and includes malign foreign influence efforts targeted towards all jurisdictions in Canada. The FITAA would not impose new obligations on provinces, territories and Indigenous governments; rather, it would (once in effect) impose obligations on others seeking to influence those jurisdictions.

When fully in force, the bill is intended to apply to federal, provincial and territorial political or government processes, as well as to Indigenous councils, governments and similar entities in Canada. Our intent is to continue consulting with these partners over the coming months to discuss the proposal.

Q13: Why are accredited diplomats, consular officers and other foreign representatives accredited by Canada exempt from the registry?

A13: Diplomats and other accredited foreign representatives are not required to register because information about the foreign governments they represent is already in the public domain. Global Affairs Canada maintains a list of all accredited foreign representatives on its website.

Q14: When would the FITAA be in place? Why have a delayed coming into force?

A14: We cannot predict the parliamentary process, so it is difficult to determine when the FITAA would be in place.

What we can say is that we have set out in the bill a pre-requisite of a Governor-in-Council order before the bill would come into force. This would allow for some time between Royal Assent and operationalization of the registry and supporting infrastructure. This time would also allow for the office to be stood up, guidance documentation to be designed and issued, and education initiatives to be undertaken by the office of the Transparency Commissioner.

Amendments to the Canadian Security Intelligence Service Act

Q15: What is the intent of the amendments to the CSIS Act?

A15: While the CSIS Act has been amended before, CSIS’ authorities were originally written in 1984 at a time when the prolific use and expansion of digital technology could not have been foreseen. In order to detect and disrupt the threat posed by foreign interference, CSIS requires a toolkit appropriate for modern technology and modern day threats. Amendments to the CSIS Act would better equip CSIS to carry out its mandate to investigate, advise the Government of Canada, and take measures to reduce threats to the security of Canada, including foreign interference. The amendments would also allow CSIS to build resiliency against foreign interference threats that target all aspects of Canadian society.

Q16: What was the purpose of the CSIS Act consultations?

A16: The purpose of these consultations was to seek input from stakeholders and the public with the goal of updating the CSIS Act and better protecting people in Canada against the threats posed by foreign interference.

The Government of Canada consulted the Canadian public, as well as provincial, territorial, and Indigenous governments and partners, the private sector, academia, legal, privacy and transparency experts, and community representatives on the potential for CSIS Act amendments in key areas including:

1. Whether to enable CSIS to disclose information to those outside the Government of Canada for the purpose of increasing awareness and resiliency against foreign interference.
   
2. Whether to implement new judicial authorization authorities tailored to the level of intrusiveness of the techniques.
   
3. Whether to close the gap, created by technological evolution, and regain the ability for CSIS to collect, from within Canada, foreign intelligence about foreign states and foreign individuals in Canada.
4. Whether to amend the CSIS Act to enhance CSIS’s capacity to capitalize on data analytics to investigate threats in a modern era.
   
5. Whether to introduce a requirement to review the CSIS Act on a regular basis so that CSIS may keep pace with evolving threats.

Q17: What did the Government of Canada hear in the consultations on the CSIS Act?

A17: From November 24, 2023 to February 2, 2024, CSIS and Public Safety held public consultations on updating the CSIS Act. Three hundred and sixty individuals submitted responses to the online survey. Government officials also engaged directly with a diverse range of partners and stakeholders, including those from provincial, territorial, and Indigenous governments and partners, academia, businesses, and communities, during roundtables.

The degree of support for each of the amendments varied, though overall, sentiments were generally positive across all five proposals. While support was strong, not all participants favoured all the proposals. A minority of respondents expressed privacy concerns and the need for strong oversight and accountability, with input also reflecting the importance of building trust in CSIS and encouraging continued transparency. Overall, participants recognized the need for legislative amendments that would better equip the government to respond to national security threats such as foreign interference. This included provinces and territories who consistently noted that more information from the federal government on the threat of foreign interference would aid them in making decisions, while acknowledging ongoing discussions would be needed on how such information could be distributed and used.

Many participants also expressed a general interest and desire to learn more about CSIS’ work. CSIS will continue to work on conveying what it does and how it meets its mandate.

Q18: Are there additional safeguards being introduced with these amendments?

A18: Safeguards include:

• Information sharing: With a broader disclosure authority, CSIS would also implement safeguards recognizing the need to maintain privacy protections, as well as confidentiality over CSIS’ investigative techniques and sources. For example, the new resiliency disclosures would not authorize CSIS to disclose the personal information of Canadians, permanent residents or any individual in Canada.
• New suite of judicial authorizations: These targeted tools would still involve independent judicial authorization, ministerial and review oversight, and would be Charter compliant.
• Dataset regime: The regime already includes numerous safeguards and protections to minimize the personal and private information of individuals in collected datasets, particularly for Canadians and individuals in Canada. Only persons designated by the Director of CSIS may have access to these datasets. CSIS can only retain Canadian datasets once they have received authorization from the Federal Court. Foreign datasets can only be retained when authorized by the Minister of Public Safety, whose authorization must be reviewed and approved by the Intelligence Commissioner. Canadian datasets would continue to be required to belong to an approved class that the Minister of Public Safety has determined and that the Intelligence Commissioner has approved.
• Closing the gap in foreign intelligence collection: Amendments would maintain the existing limitations under section 16 of the CSIS Act. Namely, the collection must be at the request of the Minister of Foreign Affairs or Minister of National Defence, with the consent of the Minister of Public Safety, and subject to the Federal Court’s authorization and conditions. In addition, any collection under section 16 cannot be directed at Canadian citizens, permanent residents, or corporations incorporated in Canada.

Q19: How would CSIS and other security agencies ensure respect for the privacy rights of people in Canada including rights under the Charter once these amendments are in place?

A19: CSIS is committed to ensuring that its activities are consistent with Canadian laws and that the Canadian public has trust in their security intelligence service. Maintaining legal compliance, as well as systems of review, oversight, and transparency have been primary objectives with these proposed amendments. Informed by respondents’ input during the consultations, these proposals have been developed with the high privacy expectations of people in Canada including as protected by the Canadian Charter of Rights and Freedoms.

The amendments would operate within existing systems of review, oversight, and transparency, and as the Canadian public would expect with the granting of new powers, introduce new safeguards.

The National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians also provide a review function for CSIS’ activities. Additionally, certain CSIS activities are subject to the review and approval of the Intelligence Commissioner.

Q20: Why is the government already pursuing changes to the dataset regime that was only established six years ago?

A20: The changes to the CSIS Act introduced by the National Security Act (2017) established a framework for the collection, retention, and use of datasets by CSIS. The framework authorizes the collection of datasets that are likely to assist CSIS in the performance of its duties and functions. The regime includes robust safeguards to protect Canadians’ rights and freedoms, including privacy. These protections include enhanced requirements for ministerial accountability, safeguards on the handling of datasets, and judicial oversight.

The changes to the dataset regime brought by the proposed amendments would not overhaul the regime, but address unforeseen roadblocks and unintended inefficiencies. The amendments seek to clarify the application of the dataset authority, and allow more flexibility in the evaluation and retention of datasets to improve usability of the regime.

Q21: If the threat environment has evolved so considerably, why is the government not seeking to broaden the definition of “threats to the security of Canada”?

A21: The current definition of threats to the security of Canada in section 2 of the CSIS Act adequately captures foreign interference. No changes are required in order to enable CSIS to investigate foreign interference activity. The definition, a term that is foundational to CSIS’ core mandate of section 12, is referenced in at least 13 other statutes, therefore any change to section 2 would have consequential impacts to how national security threats are defined in Canada writ large and the core mandate of CSIS. Significant additional study is required on how other programs would be affected by updating this definition.

The bill includes a recurring statutory review, so that issues such as the definition of “threats to the security of Canada” can be carefully considered by Parliamentarians and the CSIS Act can be amended in the future if necessary.

Q22: Why are CSIS Act amendments being tabled before the PIFI, NSIRA and NSICOP foreign interference reviews and recommendations?

A22: The government is looking forward to addressing the findings and recommendations in the upcoming NSIRA, NSICOP and PIFI reviews. In the meantime, the Government of Canada continues to observe pervasive, persistent, and sophisticated state-sponsored threat activity targeting Canadian democratic institutions, which require immediate action and which people in Canada expect.

Foreign interference has been observed at all levels of government across Canada and across party lines targeting individuals in positions of potential influence. The recently concluded public consultations on the proposed CSIS Act amendments outlined a number of important authorities that would better protect Canada against today’s threats. Tabling legislation now allows Parliamentarians to review and debate these authorities in a timely manner given the nature of the foreign interference threat.

The government is committed to cooperating with the work of the Commission, NSIRA and NSICOP and will be responsive to any further requests and recommendations it receives. The Government of Canada recognizes the importance independent review plays in maintaining and strengthening the trust of the Canadian public in their national security institutions.

SOIA, CC, and CEA changes

Q23: What would the changes to the Security of Information Act and the Criminal Code entail?

A23: The newly proposed amendments to the SOIA in Bill C-70 would:

• create new foreign interference offences to better address foreign interference risks to Canada and to ensure that hostile activities are fully addressed by the criminal law, including those involving:
• deceptive or surreptitious acts that undermine democratic  processes (including foreign interference in nomination contests and federal, provincial, municipal and Indigenous governments, and school boards);
• deceptive or surreptitious acts that harm Canadian interests (for example knowingly facilitating the entry into Canada of agents of a foreign state who are posing as tourists);
• indictable offences committed when directed by, for the benefit of, or in association with a foreign entity (including foreign states);
• amend Section 20 of the Act to better address transnational threats or violence by foreign entities and those who work on their behalf to intimidate people living in Canada and their families abroad;
• expand the preparatory acts offence (Section 22), which targets doing anything in preparation of the commission of an offence (such as espionage), to cover more SOIA offences and new offences, and enhancing the existing penalties;
• amend the definition of “special operational information” to address the inappropriate sharing of military technology and knowledge; and
• amend the definitions of person permanently bound to secrecy and allowing Canadian Armed Forces (CAF) units to be added to the SOIA schedule, so that CAF groups can be permanently bound to secrecy.

Changes to the Criminal Code sabotage offence would include:

• introducing a new sabotage offence focused on conduct directed at essential infrastructure and specify categories of protected essential infrastructure including private and public infrastructure systems that enable transportation or communications, or support the delivery of health and food services. This change updates the existing offence in the Criminal Code from the 1950s to reflect and modern world and threat environment.;
• expressly clarifying 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; and introducing a new offence of making, possessing, selling and/or distributing a device to commit a sabotage offence (such as a bot)

Q24: Why make the changes to the Security of Information Act now?

A24: In recent years, many experts have called on Canada to modernize its laws to address new and evolving foreign interference threats. The need to modernize, clarify and in some cases improve the criminal law has been reflected in work done in recent years by review agencies, parliamentary committees, civil society groups, and internal interdepartmental engagement. There was also broad support from public consultations for the creation of new offences under the SOIA that specifically target foreign interference activities. SOIA has not had a substantial revision since 2001 and the amendments proposed in this legislation would enable the Canada to better address and respond to threats in the modern world. These reforms are consistent with the steps taken by the United Kingdom to counter foreign interference with their National Security Act 2023.

Q25: Would the new offences under the Security of Information Act and the Criminal Code prohibit legitimate political activities or expression?

A25: No. The proposed offences under the Security of Information Act target foreign interference activities that are inherently harmful to Canada’s national interests and are tailored to the objective of protecting Canada and people in Canada from the harms associated with these types of activities. The offences would not prohibit people from engaging in otherwise lawful activities for the benefit of a foreign entity, provided that those activities are carried out in a transparent manner. The proposed sabotage offences under the Criminal Code are tailored to the legislative objective of protecting important Canadian interests and essential infrastructure against serious harms. These offences incorporate a stringent ‘guilty mind’ component, requiring an intent to cause specified and serious harms. They expressly exclude work stoppages related to labour relations or workplace safety, along with legitimate protest, advocacy and dissent in circumstances where there is no intention to cause the serious harms set out in the legislation.

Q26: What is transnational repression?

A26: Transnational repression (TNR) is one of the most harmful manifestations of foreign interference and has a disproportionate impact on diaspora communities within Canada. As noted by Justice Hogue, This is broadly understood as efforts undertaken by foreign states or those working on their behalf to reach beyond their borders to intimidate, silence, forcibly or coercively repatriate or harm individuals and/or their families perceived as threats to their domestic political status quo. Extrajudicial killings are considered a particularly egregious form of TNR. As noted by Justice Hogue in her Initial Report, TNR represents a direct affront to the basic rights of individuals in Canada, and undermines Canada’s sovereignty and it may cause diaspora members to refrain from fully participating in Canadian public life.

Q27: Are there concerns that this legislation may accidentally target the same marginalized or minority communities that it seeks to protect?

A27: Prior to introducing this legislation, the Government of Canada held extensive consultations on these proposals, including online and in-person. These consultations included roundtables with feedback from affected communities, including community groups, advocacy organizations and Indigenous partners. The majority of community-based advocacy groups validated official assessments of increasing and pervasive foreign interference through their own lived experiences. Overall, there was general support for the package of reforms proposed, including the new proposed foreign interference offences and modernization of the sabotage offence, as well as for increasing the penalty for the preparatory acts offence under the SOIA and expanding its application to other SOIA offences. The transnational offences are designed to protect members of these communities, not target the, by ensuring that the coercive behaviour to which they may be subject by persons acting on behalf of foreign entities is fully captured by the criminal law and recognized as foreign interference.

Q28. Has the bill been reviewed for inconsistency with the Canadian Charter of Rights and Freedoms?

A28. Yes. The Minister of Justice has examined the bill for inconsistency with the Charter, as he is required to do for all government bills under s. 4.1 of the Department of Justice Act. The Minister will also be tabling a Charter Statement for the bill, in keeping with his obligations under s. 4.2 of the Department of Justice Act. Charter Statements set out some of the key considerations that informed the review of a government bill under s. 4.1, and that support the bill’s consistency with the Charter.

Q29. Do the changes to the SOIA address so-called “Overseas Police Stations”?

A29. Yes, the proposed amendments to SOIA, add to Canada’s toolkit to address so-called overseas police stations. Attempts by foreign actors to influence people in Canada using intimidation, threats or violence are already addressed in the criminal law. Amendments in this bill will mean that the Foreign Interference and Security of Information Act applies to intimidation or threats done on behalf of, at the direction of or for the benefit of the foreign entity or a terrorist group even if there is no evidence that the intimidation or threats were:

(a) for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or were

(b) reasonably likely to harm Canadian interests.

The amendments will also allow the law to be applied where one or both parties are outside of Canada and where the subject of the threat is a family member located outside of Canada.

Other amendments to the Act will create additional offences and penalties for any other offence that is committed by anyone trying to operate a so-called overseas police station.

For example, personating a police office is an offence under s.130 of the Criminal Code and if it is done in connection with a foreign entity, the proposed provisions in this bill would add a significant sentence to be served after the sentence from the underlying criminal act is completed. Any other criminal offence, including extortion, criminal harassment or visa fraud, committed in connection with establishing such a police station on behalf of a foreign state would also trigger the proposed offence and additional penalties.

Q30: Does the government expect retaliation from foreign states for bringing forth these proposed changes?

A30: We cannot rule out the possibility of retaliation by foreign states who engage in foreign interference. We have seen cases where our allies were met with retaliatory language, in response to adopting measures to counter foreign interference. Despite these potential risks the measures introduced in this Bill are necessary to ensure Canadian law keeps pace with new and evolving threats from foreign entities that threaten Canadian democratic and political processes and persons in Canada, including those from diaspora communities who may be uniquely vulnerable to foreign interference. .

Q31: Do changes proposed in this legislation address recent concerns brought to light in the Public Inquiry regarding foreign interference in the nomination of candidates for political parties?

Q31: This legislation proposes a new offence of engaging in covert or deceptive conduct undertaken at the direction of, or in association with a foreign entity, with the intent to influence a Canadian political or governmental process, or to influence the exercise of a democratic right or duty in Canada. This also  includes the nomination processes of political parties, in addition to democratic processes at the federal, provincial and municipal levels, as well as Indigenous governments, school board elections, and other democratic electoral processes.

Q32: Does this legislation apply the same whether an individual accused is a Canadian citizen, permanent resident, or a foreign national?

A32: Yes, the offences apply to anyone in Canada regardless of their citizenship status. As described below the amended offence in section 20 of SOIA could apply to individuals outside of Canada where either the victim or perpetrator is a Canadian citizen or someone normally resident in Canada.

Q33:   Do the Section 20 changes to SOIA apply whether an individual accused of transnational repression is within Canada or committing the act from abroad?

A33. For the amended offence addressing intimidation, threats or violence, special rules allow the offence to apply to these individuals outside of Canada where either the victim or perpetrator is a Canadian citizen or someone normally resident in Canada, or where it is for the purpose of increasing the capacity of a foreign state to harm Canadian interests; or is reasonably likely to harm Canadian interests.

CEA changes

Q34: What are the proposed changes to the Canada Evidence Act?

A34: The changes to the CEA would:

• create a general Secure Administrative Review Proceedings (SARP) process to govern the protection, disclosure, and use of national security information in judicial reviews and statutory appeals in the Federal Court and Federal Court of Appeal – though it would not apply to proceedings under the Immigration and Refugee Protection Act;which has been in force a number of years, is well established in practice, and has been found by the Supreme Court of Canada to be consistent with the Charter; and
• amend s. 37 and s. 38 of the CEA which deal with specified public interest (s. 37) and sensitive or injurious (s. 38) information to provide that, absent exceptional circumstances, any decision to not disclose specified public interest or national security information, respectively, should only be reviewable on appeal after the conclusion of the trial and in the event of a conviction. This proposal seeks to address concerns about trial delay and interruption and would also address issues related to court efficiency and resources, by ensuring that appeals are not launched by defendants unless there is a conviction.

Q35: What would creating a SARP process under the CEA look like, compared to current measures? Why is a SARP process beneficial?

A35: Changes proposed to the CEA would establish a Secure Administrative Review Proceeding (SARP) regime for judicial reviews or statutory appeals in the Federal Courts and the Federal Court of Appeal where sensitive information forms part of the record.

The proposed changes would provide judges in these administrative proceedings with the authority to protect the sensitive information from disclosure, and to consider the entirety of the decision-making record at issue, even where all information may not be disclosed to the non-government party, while at the same time providing mechanisms to ensure that the proceeding irrespectively remains fair and effective – including through the appointment of a special counsel to represent the interests of the non-governmental party.

Q36: How would the amendments to the CEA impact the existing review proceedings in stand-alone regimes?

A36: Bill C-70 and the proposed amendments would repeal existing stand-alone regimes and amend section 38 of the CEA to establish a universally available Secure Administrative Review Proceedings (SARP) process. These existing standalone schemes do not clearly provide for the consideration of the appointment of a special counsel on clearly defined terms and conditions and decision-making about claims for non-disclosure is not centralised, leading to potentially inconsistent results. The standalones are also limited in the types of sensitive information they seek to protect. These changes would significantly enhance the ability of federal decision-makers to consider and defend administrative decisions across all federal sectors in the interest of national security.

These changes would not apply to proceedings under the Immigration and Refugee Protection Act.

Q37: How would the proposed changes impact the practice of interlocutory appeals and sealing orders?

A37: The government is proposing amendments to the CEA which would effectively end the practice of interlocutory appeals – which are appeals that may occur despite aspects of a case still being before a court. This would only apply in the criminal context and only for the accused; given that the damage caused by any disclosure of the information is irreparable, the Crown would continue to be able to appeal an order to disclose information on an interlocutory basis. The amendments would impact of s.37 and s.38 of the CEA and would contribute to streamlining processes, help avoid delays and protect national security when required.

With regard to sealing orders, section 487.3 of the Criminal Code deals with orders that deny access to information presented to a judge in support of a warrant. The proposed legislation would amend the Criminal Code to clearly add national security considerations to this process. The list of factors will be expanded to include when the disclosure of information would be injurious to international relations, national defence or national security. This would be a codification of what courts are doing in practice but would bring consistency to the approach.

Foreign interference and sabotage

Q38: Do these proposed changes align with the legislative reforms being undertaken by our allies?

A38: Yes. For example, allies like Australia and the United Kingdom have recently amended and strengthened their own foreign interference laws. That work included creating new offences to deal with the modern threat environment, such as improved espionage and sabotage laws. Australia has also implemented a law addressing interference with political rights and duties.

In the context of the sabotage offence in the Criminal Code, Canada’s allies, such as Australia and the United Kingdom, have pursued reforms that focus on clarifying the mental element required for the offence, adding a foreign interference element, and in the Australian context, what infrastructure is captured by their sabotage offence.

Q39: How is ‘sabotage’ defined in the proposed amendments in the Criminal Code?

A39: The Criminal Code already contains an offence for sabotage, which criminalizes conduct that jeopardizes the safety, security or defence of Canada, or that of military forces of other states that are lawfully in Canada (Section 52).

The proposed offence makes it clear that sabotage can also be described as various activities that target infrastructure, electronic networks, systems, property, and other things, carried out with the goal of endangering a country’s safety and security interests or that of the public. A proposed additional offence would make it clear that interference with the essential infrastructure that causes harm to people in Canada is also a sabotage offence. This could include, for instance, intentionally interfering with, or limiting access to essential infrastructure in order to cause its loss or make it inoperable, unsafe or unfit for its purpose.

Q40: Are there any safeguards in the sabotage offence to ensure protests – for example, in the context of a labour dispute – are still lawful?

A40: The sabotage offence already contains exemptions from criminal liability, such as work stoppages related to labour disputes or safety concerns.

A person who goes near a place only to obtain or communicate information is likewise exempted from this offence.

The proposed offence also makes it clear that no person commits an offence if they interfere with access to an essential infrastructure while participating in advocacy, protest or dissent but they do not intend to serious harms to Canada or people in Canada.

Foreign Interference in Canada and the Public Inquiry

Q41: What is foreign interference and who are the main perpetrators in Canada?

A41: Foreign interference is a cross-cutting threat that can target Canada’s democratic institutions, communities, economy, sovereignty, and critical infrastructure (including supply chains). Activities can include harassment and intimidation of Canadian communities, as well as cyber-incidents, disinformation campaigns, and other disruptive actions.

In recent years, Canada has seen an increase in the frequency and sophistication of foreign interference by countries – particularly the People’s Republic of China and the Russian Federation, and the Islamic Republic of Iran, among others – seeking to advance their political, economic and security interests to the detriment of Canada’s. While acknowledging the evolving nature of the threat environment, Canada’s approach to counter foreign interference remains country agnostic.

The Government of Canada takes the issue of foreign interference seriously. We take a whole-of-government and whole-of-society approach to strategically countering foreign interference.

Q42: What is happening with the public inquiry on Foreign Interference?

A42: On September 7, 2023, the Government of Canada announced the establishment of a Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions.

Justice Marie-Josée Hogue is mandated to examine and assess interference by China, Russia and other foreign states or non-state actors, including any potential impacts, to confirm the integrity of, and any impacts on, the 43rd and 44th federal general elections at the national and electoral district levels.

The Commissioner is directed to deliver an interim report to the Government by May 3, 2024, and a final report, which will include recommendations, by end of December 2024.

Further questions on the Commission’s work should be directed to media@pifi-epie.gc.ca.

If questions are about the Commission’s budget or contracting:

Questions on the Commission’s budget and contracting should be directed to the Privy Council Office at mediacentre@pco-bcp.gc.ca.

Q43: How does the bill respond to the Commission’s interim report?

A43: The Government agrees with Justice Hogue that reaffirming Canadians’ trust is of the utmost importance. Countering foreign interference remains a top priority for the Government of Canada.

We will do this, as the Commissioner counsels, by ensuring Canadians are well informed of the threats, and by continuing to improve our methods to detect, deter and counter foreign interference.

This Bill will protect Canada and Canadians by equipping our security partners with the appropriate tools to detect, investigate and deter threats in the modern threat landscape; amend existing laws to address the impact on communities, while maintaining robust safeguards; and bolster deterrence by creating new transparency tools that shine a light on influence activities undertaken by foreign states and their proxies.

Q44: Why are you introducing this bill before the Public Inquiry is complete and has issued recommendations?

A44: The Government of Canada announced the launch of public and stakeholder consultations to inform the design of a registry in March 2023. We’ve heard loud and clear from the Canadian public, including representatives from diverse ethnic and cultural backgrounds, that action is urgently needed now to bolster our counter-foreign interference toolkit. Introducing this bill is a much-needed step in the right direction, and does not preclude the work to be undertaken as part of the Public Inquiry. These also represent proactive steps being taken to ensure that measures are in place to safeguard the integrity of our elections and democratic processes.

• Budget 2023 proposed $13.5 million over five years to Public Safety Canada to establish the office of the National Counter-Foreign Interference Coordinator, as well as $48.9 million over three years to the Royal Canadian Mounted Police to protect people in Canada from harassment and intimidation by foreign actors, to increase its investigative capacity, and to more proactively engage with communities at greater risk of being targeted.
• In March 2023, the Government also re-affirmed the allocation of $10 million over five years to the Protecting Democracy Unit, housed at the Privy Council Office. The Protecting Democracy Unit coordinates, develops, and implements Canadian government-wide measures designed to combat disinformation and protect Canada’s democratic institutions and processes, including against foreign interference, in close cooperation with the NCFIC and in coordination with other government partners. The Protecting Democracy Unit is also responsible for coordinating the Plan to Protect Canada’s Democracy.
• These investments build on Budget 2022, where the Government committed $13.4 million to renew and expand the G7 Rapid Response Mechanism over the next five years, to address foreign threats to democracy.
• Public and stakeholder consultations to guide the creation of a Foreign Influence Transparency Registry.
• On November 24, 2023, the Government of Canada also launched public consultations on the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act. The purpose of these consultations was to gather feedback from the Canadian public about potential amendments to further bolster Canada’s counter-foreign interference toolkit.
• The Government of Canada has also introduced a series of measures to safeguard Canada’s world-class research, which include:
• Implementing the National Security Guidelines for Research Partnerships and the new Policy on Sensitive Technology Research and Affiliations of Concern;
• launching Canada’s new Research Security Centre as announced in Budget 2022, and;
• supporting post-secondary institutions with a total investment of close to $50 million through the Research Support Fund.

The Government of Canada takes the issue of foreign interference seriously. We take a whole-of-government and whole-of-society approach to strategically countering foreign interference.

Date modified:

2024-10-09