
Crédit: André Querry
Written by Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group
Translated by Barbara Ulrich, translator
Originally published in the December 2024 issue “Imaginer une ville des droits humains” of the Droits et libertés magazine by La Ligue des droits et libertés. Subscribe or purchase a copy here (in French only).
Worries around “foreign interference” continue to make headlines across Canada and Quebec, generating intense scrutiny, controversy and calls to act as quickly as possible to address what the national security agencies have hyperbolically called an “existential threat” to Canada.
There are clearly instances of foreign interference that raise urgent concerns. The revelations, for example, that members of the Sikh community in Canada are being targeted for harassment, violence and even murder by agents of the Indian government, along with other threats of transnational repression of human rights defenders in Canada and their families.
But too much of this debate has also been characterized by xenophobia, racism, political partisanship and one-upmanship, and a mad dash to bring in severe and wide-ranging new laws that will have significant impacts on fundamental rights in Canada, including freedom of expression and association, but also on protest and dissent, international cooperation and solidarity, academic freedom and freedom of the press.
Much of this has also been driven by secret intelligence leaked by anonymous sources, whose accuracy and provenance remains in serious question. Some of this has been addressed by the Public Inquiry into Foreign Interference, but with the inquiry’s final report yet to come, the trustworthiness of these leaks remain in question.
Rights violated, once again
Despite these outstanding questions, the government’s response has focused almost exclusively on granting new powers to national security agencies and creating significant new offences that will result in over-reach and the over-securitization of responses to this issue. Our work on the impact of national security and anti-terrorism laws since 2002 has shown the importance of clear definitions, evidence-based decision-making, and responses that are necessary and proportionate.
Failing to adhere to these principles inevitably undermines fundamental rights and with it democratic involvement and participation. The result is the marginalization of a variety of organizations and communities, especially those from racialized, Indigenous or immigrant populations, as well as those involved in dissent, protest and challenging the status quo.
Law adopted at full speed
The most glaring example is the adoption, in haste, of Bill C-70 – the Countering Foreign Interference Act – in June 2024, which made significant changes to Canada’s national security, intelligence and criminal justice systems.
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, which is nearly unheard of.
This astoundingly short study resulted in many 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. Even when members of parliament and senators recognized concerns, the refrain was that the bill’s study could not be delayed in order to adopt new rules before an eventual election, which with a minority government could happen at any time.
Powers unrelated to interference
For example, Bill C-70 changed the CSIS Act to create new, more easily obtainable warrants for one-time searches and to secretly collect information located outside of Canada. The new powers must still be approved by the courts, but takes place behind closed doors. This is essentially a reward for CSIS, which, for years, has been contravening existing warrant rules, particularly by misleading the courts. High thresholds for obtaining secret warrants is one of the key ways our charter rights are protected; Bill C-70 watered these down.
This is just one part of the many changes to the CSIS Act that are only in part related to fighting foreign interference, and will in fact apply to any form of intelligence gathering or investigation that CSIS undertakes from now on.
Human rights defenders, international development and solidarity organizations, politicians, academics, labour organizers, environmental activists and Indigenous land defenders, journalists, and many others in Canada work directly with foreign counterparts daily. Many of these international colleagues may work for or represent governments, foreign state-owned or affiliated businesses, foundations, academic institutions or media, or work for multilateral organizations composed of foreign states. These international partnerships are crucial, helping to bring new perspectives, make advances in research and policy, share the work of people in Canada internationally, and help build cooperation and international solidarity.
Negative impacts on rights
However, in its response to allegations of foreign interference, the federal government has introduced rules that will almost certainly have a negative impact on the freedom to associate with international colleagues, freedom of expression and on the ability of people in Canada to engage in protest and dissent.
C-70 made significant changes to the Security of Information Act, renaming it the Foreign Interference and Security of Information Act (FISI). Alarmingly, FISI creates much more severe penalties – up to life in prison – for offences already included in the Criminal Code, including harassment and intimidation, if they are committed “at the direction of, for the benefit of, or in association with, a foreign entity” or, in certain cases, with a terrorist organization.
Another troubling sections of FISI reads:
20.4 (1) Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty in relation to such a process or such governance or the exercise of a democratic right in Canada.
In favour of clear definitions
The issue is not because it sets out to protect democratic processes, but rather the way it attempts to do so. The most glaring example is the term, “in association with”, a broad term that is not defined in the legislation. For example, it could easily mean that a person who collaborates with an individual or organization that works for or closely with a foreign entity (including governments, but also state funded arms-length agencies, or even multilateral bodies) on issues of mutual interest, and then sets out to advocate a change of policy, could be seen to be violating the law even if no actual influence is exerted by the foreign entity. The government says that such influence activities would only be illegal if done in secret. But if you are not operating under the influence of a foreign entity, you could easily believe that is not necessary to share your association publicly – opening the possibility of violating this law.
The definitions of what constitutes a political process, educational governance and the exercise of a democratic right are also very broad. Even if the goal of this new law is laudable, the way it is formulated threatens serious impacts on freedom of expression, dissent and protest.
For example, look at campus encampments in solidarity with Palestinians and against the Israeli government’s genocide in Gaza. One of their key calls was for university administrations – which are bodies of educational governance – to divest from arms manufacturers that supply the Israeli army. This is clearly legitimate advocacy meant to influence a university policy; more specifically, there could be calls for certain board members to be removed, or for students to campaign for student union on this issue. However, there were unfounded and spurious allegations that these encampments and campaigns were either funded by or coordinated with foreign governments. Under Bill C-70, Canadian security agencies would have justification to investigate these activists, and, if they discover even an association with any individual or organizations affiliated with a foreign government, they could face serious penalties. The same could apply to those fighting for better labour standards, for climate justice, for Indigenous rights, and more.
Increased surveillance to be expected
It’s important not to fear-monger, and it isn’t clear that these kinds of charges are in any way imminent – but they are absolutely possible under these new laws. We simply don’t know, despite assurances from the government, how they will be used. But so long as the possibility exits, they can lead to increased surveillance, threats of reprisal, and, at the end of the day, a chilling effect on freedom of expression and other fundamental rights.
The concerns around “in association with” also extends to the newly created Foreign Influence and Transparency Act, establishing a Foreign Influence and Transparency Commissioner and the long-expected Foreign Influence and Transparency Registry. The new registry will require individuals and organizations to file for registration should they, under the direction of or in association with a foreign principal:
- communicate with a public office holder;
- communicate or disseminate information that is related to the political or governmental process;
- or distribute money, items of value or provide a service or use of a facility.
The requirement to register is broader than the process described above, since a “foreign principal” is defined more broadly than a “foreign entity” and includes advocating in a much more general way for policy changes. The penalties are also less severe, and includes the options to provide individuals with notices before the laying of charges. However, the need to register for a “foreign influence” registry for simply acting in association with a foreign principal, raises similar concerns. Any group in Canada that may work with a foreign, state affiliated organization – even if they are not acting at the behest of this foreign organization – would need to register publicly that they are acting under “foreign influence.” This has raised serious concerns in other countries. In the United States, for example, a similar registration law has led to unfounded investigations of environmental organizations, and the requirement for at least one well-respected national environmental organization to register as a “foreign agent.” We can expect similar results in Canada, chilling free expression, free association, and the ability to work with international partners on important social causes.
Freedom of expression under pressure
Finally, Bill C-70 expanded existing sabotage offenses under the Criminal Code to include the offense of interfering with a broad new category of “essential infrastructure,” which includes transportation, food supply, government operations, financial infrastructure, or any other infrastructure prescribed by regulation. Any number of these may at some point be the focus of a protest, or impacted by the carrying out of a protest activity that could interfere with their operations. While the new law also includes an exclusion for advocacy, protest or dissent, but only If the individuals involved do not intend to cause harm.
This leaves a huge amount of discretion to interpret the “intent” of a protest. For example, Indigenous land defenders have engaged in rail and highway blockades as acts of civil disobedience, with the stated goal of disrupting economic activity to pressure government officials. Knowing that the intent is to cause a disruption, and that it could theoretically entail harm, it would not be outlandish to imagine the government using such a law to criminalize protests, with a potential sentence of up to 10 years. This will no doubt cause people in Canada to reconsider whether to participate in acts of protest that could now be considered the much more serious crime of sabotage.
Over the next months, the government will be setting our regulations and naming the new Foreign Influence Commissioner, impacting how these laws are interpreted and implemented. It is essential that the public and civil society groups remain vigilant and continue to pressure the government to not sacrifice fundamental rights in their names of fighting foreign interference.
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