As part of the final phase of the Public Inquiry into Foreign Interference, the PIFI requested policy submissions regarding how the Canadian government should respond to foreign interference concerns. Below is the introduction to ICLMG’s submission, as well as the list of our recommendations. You can read the full brief here.

Policy Submission to the Public Inquiry into Foreign Interference

Since 2021, the Canadian government has initiated multiple reviews and independent inquiries, including the Public Inquiry on Foreign Interference, to address alleged threats of foreign interference in Canada. We recognize the importance of addressing this issue, particularly in instances where governments are threatening individuals or their close ones in order to suppress their ability to exercise their fundamental rights or to engage in democratic processes.

However, we are deeply concerned by the policy approach and legislative responses that the Canadian government has adopted to date to address this issue, and the direction that it signals the government will take in the future.

This includes a nearly exclusive focus on granting new powers to national security agencies and creating significant new offences that we fear will result in over-reach and over-securitization of responses to this issue. Our work on the impact of national security and anti-terrorism laws, which share similarities in terms of addressing covert activities tied to either domestic or international entities with malicious intent, has shown the necessity of clear definitions, evidence-based decision-making, and responses that are necessary and proportionate.

Failing to adhere to these principles can lead to the further marginalization of a variety of organizations and communities, including those from racialized, Indigenous or immigrant populations, as well as those involved in dissent, protest and challenging the status quo. This is caused by the undermining of fundamental rights and with it democratic involvement and participation, leading often to more tension and divisions. It is also important to ensure that responses beyond policing, intelligence and criminal charges are appropriately explored.

The most glaring example is the adoption, in haste, of Bill C-70 – the Countering Foreign Interference Act – in June 2024, which will have wide-ranging impacts on Canada’s national security, intelligence and criminal justice systems. As such, it will also have significant impacts on the lives and fundamental rights of people in Canada.

For example, the decision to provide CSIS with new forms of warrants, granting it extra-territorial reach for foreign intelligence activities, and allowing the service to disclose information to any person or entity, in order to build “resiliency,” will lead to increased surveillance, diminished privacy, and racial, religious and political profiling. Powerful new offences for actions undertaken in “association with” foreign entities, including foreign governments and state-affiliated agencies, punishable by up to life in prison, will infringe on freedom of expression and association, and raises questions of proportionality in sentencing. Likewise, vague and undefined terms raise similar worries about the Foreign Influence Transparency and Accountability Act (FITAA) and the foreign influence registry it will create. This is compounded by significant areas of FITAA being left to regulation as opposed to specified in the legislative text. The bill has also transformed how, in administrative proceedings, federal courts handle sensitive information that can be withheld, undermining due process in courts through the use of secret evidence.

A bill of such breadth required in-depth study. However, in the rush to address issues of foreign interference as quickly as possible, the bill passed through the entire legislative process in less than two months. This is faster than even the rushed 2001 study of the first Anti-terrorism Act, which studied for two months.

This astoundingly short study resulted in significant aspects of the legislation going unstudied and areas of concern going unaddressed: less time meant that experts and organizations with limited resources had to rush their analysis of the bill, and made submitting briefs and appropriate amendments nearly impossible, with many who would normally have intervened deciding not to do so for fault of resources. Even when members of parliament and senators recognized concerns, the refrain was that the bill’s study was either constrained by time limits imposed in the House of Commons or by the necessity to adopt new rules before an eventual election.

Moreover, the bill was introduced just days after this Inquiry published its first interim report, and before the public tabling of reviews from both the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians on the same topic. The tabling of significant legislation before the public has had the ability to fully consider reports on the breadth and impact of foreign interference in Canada raises significant concerns of being able to adequately assess the necessity and proportionality of government responses, let alone whether these responses will be effective in addressing foreign interference activities.

This curtailing of debate in the name of expediency on an issue as important as protecting our democratic systems remains deeply troubling. Unfortunately, it also appears indicative of a rush to make policy decisions and take action that has permeated much of the recent debate.

In the rest of our submission, we examine key areas from Bill C-70 that illustrate the concerns raised above and future policy considerations that the federal government should take into account. Read our full submission here.

Recommendations

Recommendation 1: That the government ensure that all proposed responses to foreign interference concerns are necessary and proportionate, and based on evidence.

Recommendation 2: That policy and legislation related to foreign interference be adopted in an open and transparent manner, that prioritizes consultation and promotes democratic participation.

Recommendation 3: Concerns around foreign interference cannot be used to justify the hasty adoption of unrelated, or minimally related, legislation or policies.

Recommendation 4: That the government rescind the changes made to s. 19(2)(d) to allow the Minister to authorize disclosure to any person or entity. Alternatively, any authorized disclosure should be limited to entities or persons within Canada.

Recommendation 5: That the government revisit s. 19(2.1) of the CSIS which allows for information, excluding personal information, to be disclosed by CSIS to any person or entity for the purpose of building resiliency against threats to the security of Canada.

• Resiliency should be defined in the CSIS Act and any further legislation
• Add transparency and accountability requirements for information sharing activities, including:
  • Public sharing of documents and information disclosed, where possible;
  • Internal documenting of what information was disclosed to whom and why;
  • Reporting all instances of information disclosure to the NSIRA, similar to the existing requirement in s. 19(3) of the CSIS Act, regarding reporting of information disclosed with Ministerial authorization.

Recommendation 6: The government should consider creating a separate office, apart from CSIS, to organize and arrange briefings with non-governmental entities to avoid a bias towards securitization and to ensure a holistic approach to protecting against interference with the exercising of fundamental rights or participating in democratic processes.

Recommendation 7: That the government, at the earliest possible moment, engage with the public, including civil society organizations, to make further amendments to the provisions of Bill C-70, including those recommended in our brief to the Senate.[1]

Recommendation 8: That all future policies on foreign interference must appropriately take into account impacts on freedom of expression, freedom of association, and the ability to engage in protest and dissent.

Recommendation 9: Remove provisions for a new Secure Administrative Review Proceeding and instead review the areas of legislation that already allow for similar regimes, in order to remove provisions for the non-disclosure of information to appellants and those seeking judicial review.

[1] ICLMG. “Brief on Bill C-70,” submitted to the Senate Standing Committee on National Security, Defence and Veterans Affairs, June 2024. Online at: https://iclmg.ca/wp-content/uploads/2024/06/C-70-BRIEF-PROPOSED-AMENDMENTS-ICLMG.pdf