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).

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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. Continue reading →

Here is what we’ve accomplished in the second half of 2024 thanks to your support:

ICLMG Twentieth Anniversary publication

We launched our 20th anniversary publication on September 11, 2024, the 23rd anniversary of the 9/11 attacks and the start of the so-called “War on Terror.” We are grateful to all the contributors, translators and reviewers who volunteered their time to make this possible!

• We launched the publication with a webinar in English on September 11
• We had a second launch in person in Montreal, held in French organized by our member La Ligue des droits et libertés
• The bilingual publication is available online for free, and people can get physical copies as well.

Help us fight for justice and human rights.
Donate to the ICLMG!

Bill C-20: Public Complaints and Review Commission Act

Bill C-20 will create a new, independent review agency for both the RCMP and CBSA. It will replace the current RCMP review body, and create the first ever independent review body for the CBSA. The creation of an independent review body for the CBSA has been a longstanding, key demand and advocacy priority of the ICLMG coalition. Since June, ICLMG:

• Organized meetings with partner organizations and member groups to coordinate strategy
• Sent a joint brief with colleagues including proposed amendments for the Senate committee study
• On October 31, 2024, Bill C-20 received Royal Assent. ICLMG will continue to work on bringing improvements to the new review body throughout the regulation process and as it is established.

Bill C-27: Digital Charter Implementation Act, 2022

Bill C-27 is the government’s proposed update to Canada’s private sector privacy law, namely the Personal Information Protection and Electronic Documents Act. It will also increase powers granted to the Privacy Commissioner, create a new tribunal, and enact a new Artificial Intelligence and Data Act (AIDA). While our primary focus is not on the private sector, there are key aspects of this bill that have an impact on national security and privacy rights. AIDA will have more direct repercussions on our work, given the growing use of AI in surveillance capitalism and government surveillance. Since June, ICLMG:

• Continued to organize meetings with partner organizations and privacy experts to discuss strategy
• Engaged with MPs on the progress of the bill and needed amendments
• Monitored the bill’s progress at committee.

C-41: International assistance and anti-terrorism laws

Humanitarian aid and international assistance generally is being hindered by Canada’s anti-terrorism laws, particularly in Afghanistan – a risk ICLMG has long warned about. In Spring 2023, the government tabled Bill C-41 to ostensibly address the issue. Despite several remaining shortcomings, the bill received royal assent in June 2023. The authorization regime was finally launched in June 2024; as of December 2024, no application has been approved. Since June, ICLMG:

• Discussed advocacy strategies to raise concerns about the implementation of the authorization regime with ICLMG members and partners
• Participated in a Public Safety Canada briefing on the implementation of Bill C-41 and raised concerns around the authorization regime delays in processing and review.

Bill C-63: Online Harms Act

The federal government introduced Bill C-63 in February 2024. Known as the “Online Harms Act,” it responds to many of our concerns with the government’s original “online harms” proposal from 2021, but several aspects of the bill continue to raise serious concerns. Since June, ICLMG has:

• Continued participating in meetings of the “Online Harms Network”
• Presented at the Digital Justice Summit on Legal and Policy Solutions for Online Harms organized by NCCM and OpenMedia in September in Ottawa
• Met with NDP MP Peter Julian regarding concerns with the bill
• Submitted a brief and testified at the House of Commons Standing Committee on Justice and Human Rights for their pre-study of the bill
• Saw a major victory with the government’s announcement that they will be splitting the bill, a key demand we advocated for.

Bill C-70: Foreign Interference legislation

Although the federal inquiry into foreign interference had yet to issue its final report, in May 2024 the federal government introduced new foreign interference legislation, Bill C-70. Much of it reflects proposals from a consultation held from December to February, but fails to respond to many of the concerns that we raised with the government. Following an extremely rushed parliamentary process, the bill was adopted in June 2024 with very little study and minimal amendments. Since June, we:

• Wrote a letter to the House committee studying the bill, co-signed by several partner organizations, to urge MPs to extend the study of C-70
• Submitted briefs to and appeared at both the House of Commons Public Safety committee and the Senate National Security committee to present our urgent concerns
• Created a letter-writing campaign calling on MPs and Senators to extend their study and amend the bill.
• Co-wrote an urgent public statement to Senators, signed by partner organizations, urging them to amend Bill C-70: “Charter Rights Under Threat if Senate Fails to Fix Foreign Interference Bill”
• Participated in two webinars on foreign interference:
• “Understanding Bill C-70: Beyond a National Security State”, organized by the Canadian Foreign Policy Institute
• “What to do about foreign interference”, organized by the Centre for Free Expression
• Provided feedback on thematic document and questions for the Policy Phase of the Public Inquiry into Foreign Interference (PIFI) and, in Oct 2024, submitted a brief for the Policy phase of the PIFI

Bill C-353: The Foreign Hostage Takers Accountability Act

Although we agree with the intent of the bill to support survivors of hostage-taking and arbitrary detention as well as their families, this bill is unnecessary, and would have very broad, negative, and unintended consequences.

• We shared our concerns with the bill at the Standing Committee on Foreign Affairs and International Development

Continue reading →

On December 5th, 2024, ICLMG’s National Coordinator Tim McSorley, testified at the House of Commons Standing Committee on Justice and Human Rights for their study of Bill C-63, the Online Harms Act. You can watch his short testimony above, the full panel here or read his remarks here.

As part of this study, we also submitted a brief to the committee detailing our concerns as well as our recommendations to address them:

In 2021, the federal government published a proposal for online harms regulations. The International Civil Liberties Monitoring Group (ICLMG) joined many other organizations and experts in opposing significant parts of that proposal.[1] The government responded by engaging in further consultation, resulting in the introduction of Bill C-63, An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts, in March 2024.

Bill C-63 responds in many ways to the critiques that ICLMG and others leveled regarding the first proposal:

• While still including seven different categories of harms,[2] it proposes more severe rules around content moderation for the sharing of “content that sexually victimizes a child or revictimizes a survivor” as well as “intimate content communicated without consent,” as opposed to one approach for all seven harms.
• There is no explicit requirement that would require platforms to monitor all content in order to identify and remove harmful posts.
• The main focus is on the regulation of platforms, in the form of obligations to create and follow online safety plans, and not on policing all users.
• Except for content that sexually victimizes a child, there is no requirement for mandatory reporting of content or users to the RCMP or CSIS.
• There are no proposals to create new CSIS warrant powers.
• There are greater rules around platform accountability, transparency and reporting.

However, there remain serious areas of concern:

• Part 1 of the Act:
  • The harm of “content that incites violent extremism or terrorism” is overly broad and vague, and encompasses kinds of activities that are not defined in law, opening the likely possibility of excessive censorship. Further, given the inclusion of the online harm of “content that incites violence,” it is redundant and unnecessary.
  • The definition of “content that incites violence” is also overly broad, allowing for the possibility of content advocating for protest and civil disobedience to be made inaccessible on social media platforms.
  • While not explicitly requiring platforms to proactively monitor content, the Act does not disallow such actions either.
  • Lack of clarity in the definition of what is considered a regulated service could lead to platforms being required to monitor, and likely “break”, encryption tools that protect online privacy.
  • Platforms would be required to preserve certain data relating to posts alleged to incite violence or to incite violent extremism or terrorism for one year; this is likely to ensure that the data is available if law enforcement receive judicial authorization to request it. However, the current wording leaves the breadth of the requirement uncertain and in need of clarification/narrowing.
  • While the Act lays out transparency requirements for online platforms, it fails to include algorithmic transparency in regard to how content is recommended.
• Part 2 of the Act:
  • This section amends Canada’s existing hate crime offences and creates a new stand-alone hate crime offence, and is only tangentially related to Part 1. It has raised serious concerns among human rights and civil liberties advocates in regard to the breadth of the offences and the associated penalties. As it does not touch explicitly on counter-terrorism concerns, it falls outside of ICLMG’s mandate so we will be limiting our comments. However, this does not signal that there is not a significant need for amendments and for consideration of splitting Parts 2 and 3 from the bill to be considered separately. [The brief was sent before the government’s announcement that they would be splitting the bill as we advocated for.]

Read the full brief here for detailed proposals to address some of our specific concerns.

Footnotes

[1] International Civil Liberties Monitoring Group, “Submission to the federal government’s consultation on its proposed approach to address harmful content online.” 25 September 2021. Online: https://iclmg.ca/wp-content/uploads/2021/10/Online-Harms-Submission-ICLMG.pdf

[2] (a) intimate content communicated without consent; (b) content that sexually victimizes a child or revictimizes a survivor; (c) content that induces a child to harm themselves; (d) content used to bully a child; (e) content that foments hatred; (f) content that incites violence; and (g) content that incites violent extremism or terrorism.

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