Mr. Chair and committee members, thank you for the invitation to appear today. I'll keep my opening remarks very brief.
My name is Josh Krane. I'm a partner in the competition and foreign investment group at McMillan. I've represented many foreign buyers and Canadian businesses in connection with investment transactions that have been subject to the ICA.
My comments will focus on the proposed judicial review amendment at proposed section 25.7. I'd like to start by offering some context.
All the foreign investors I encounter in my law practice are looking to make investments in Canada because they see an opportunity to tap into an educated workforce, expand their sales channels or find opportunities to grow their businesses. The people I meet are genuinely interested in building successful enterprises. They are receptive to feedback and sensitive to the political environment in Canada. I also appreciate that there are state forces at work that we cannot always see. I believe that Canada needs to be prudent about foreign state interference in our economic system.
The challenge I see is that the proposed amendments don't fix a fundamental issue with the ICA, which is that investors are not provided with sufficient information to decide whether to continue to pursue an investment caught up in a national security review or to withdraw their investment. This is the challenge for investors and their advisers because the pathway forward can become very unclear.
In a paper that I published last year, we proposed that the process include the creation of a national security amicus or intermediary to help bridge the communication and information gap between investors and the government. We recommended that this amicus be authorized to review a packet of confidential evidence used to make a security assessment, and then brief the investor on the strength of the government's position without disclosing sensitive information. This includes the benefit of encouraging investors to withdraw their investments before the government has to make a national security order. If a matter proceeds to judicial review, which the amendments now contemplate, the amicus could challenge the accuracy, reliability and sufficiency of the evidence collected to ensure that the government is appropriately held to account before a court of law.
The process we proposed is not without precedent. It's used in the immigration security certificate process, which also has national security dimensions. The Canadian International Trade Tribunal also allows external counsel to receive confidential information on the condition that they sign strict confidentiality undertakings with significant penalties for a breach. We've provided Mr. MacPherson with a copy of the paper, which I understand The Canadian Bar Association has endorsed in its brief.
Those are my submissions, and I look forward to addressing any questions you may have.