Public Safety Committee on June 3rd, 2024

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

It's a pleasure to be back at the public safety committee for a bit.

Thank you to both of our witnesses for being here on this really important piece of legislation.

Dr. Burton, in particular, I want to thank you for bringing your expertise. I think that when it comes to China, we'd be hard pressed to find anybody else in Canada who has your level of expertise on this subject.

You mentioned working with Australia, but I wonder if you could compare Bill C-70 to our Five Eyes partners and how it compares to the legislation they have in place in dealing with foreign interference.

[Dr. Charles Burton]

I would say one thing about country-agnostic. I was invited down to the U.S. Congress to talk about Canada-China, and I mentioned the possibility of this legislation. The American congresspeople were not entirely happy about the idea that we were going to be requiring transparency of foreign influence, because they're foreign in Canada too. I was a bit taken aback by that.

I think the real difference in terms of the U.S. FARA is the degree of resources and implementation and effectiveness of the legislation. Australia has been slow to bring people to account. I think they just did the first one. They've had the act since 2019. When the act came into effect, Andrew Robb, the former Australian trade and investment minister, had been responsible for shaping the China-Australia free trade agreement, which we did not regard that highly when we were thinking of doing free trade with China, and negotiated a 99-year lease on the port of Darwin. Andrew Robb, we subsequently found out, had been paid almost $800,000 a year by a Chinese billionaire associated with the Chinese People's Political Consultative Conference, which is the number one agency for the United Front Work Department in China. He resigned from that consultancy just before the legislation came into effect. We saw some other Australians who did so.

We might see a similar impact in Canada of people who decided they'd rather not be associated with potential Chinese association. I think Mr. Robb suggested that it was really the political pressure that caused him to resign. There's no suggestion that he ever did anything that was against the law or anything like that.

I do think it's a question of how enthusiastically we decide to implement this legislation, more than the legislation itself: the extent to which we provide the resources necessary, including to the foreign influence commissioner; the nature of the regulations we decide to put into effect; and I guess whom the government decides to appoint, through an order in council, to that role. Legislation is one thing, but making it work is something else.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Professor Kempa, did you want to add anything on that?

[Michael Kempa]

The point I would add on implementation capacity would be that, again, it is essential and important to clarify in the Criminal Code issues around, or create criminal offences around, foreign interference related to the protection of, for example, essential infrastructure and to update definitions of sabotage, etc. Then the issue comes down to this: If CSIS and others are able to amass information or intelligence that might guide criminal investigation, you would need an RCMP, or some other federal policing service, that has the capacity to actually carry out those investigations to produce evidence for criminal prosecution.

This is the necessary first step, but at the moment, the implementation would be quite difficult, in that it's clear that the RCMP does not have that capacity.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I think I have a couple of minutes left.

Dr. Burton mentioned resources and regulations. Well, you both mentioned resources, actually. Having the legislation is one thing, but how critical is it that the government puts resources behind this legislation to make sure that what we put in place...? I think all parties have agreed to fast-track this bill. We recognize that it's a priority. How important is it for those resources to be attached to the legislation?

[Dr. Charles Burton]

Obviously, we need the security agencies and the RCMP to regard this as a priority area, but it's very difficult politically. People who may have found themselves beholden to the Chinese state for whatever reason, whether it was something they did in China or China knows something about them, are not going to be supportive of the idea of this information coming to light.

From the point of view of the investigation agencies—I think Mr. Kempa would know better than me—do they want to take up a case that's going to be controversial and cause kickback from important people in our government who may in fact be needing some guidance with regard to whether or not they're fully supporting Canadian interests and are not being partially compromised by the interests of a hostile foreign state? It's not going to be easy, and I think the role of the commissioner will be quite critical.

I do have some concerns about the nature of that appointment as an order in council appointment and the provisions in the act that allow that person to be removed at any time by the government. I don't know enough about the mechanisms of government, but I'd really prefer that there be a very high degree of independence for such a person.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I think that's my time. Do I have six seconds?

Professor Kempa, do you want to quickly add anything to that?

[Michael Kempa]

I absolutely echo the point on the importance of the independence of that office. We could almost consider a type of tripartite governance structure for that body, similar to the direction the RCMP is very slowly moving in with the establishment of a management advisory body. It is not currently, formally, an oversight body, but it may become a civilian oversight mechanism for the RCMP. Something similar for this office might be appropriate, in order to insulate it from government influence.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Mr. Villemure now has the floor for six minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Mr. Burton, you talked about people being recruited, possibly unwittingly. For some, it is during their career, and for others, it could even follow their retirement. Some have used the term “useful idiots”.

Do you think it's important to establish post-employment guidelines for public office holders by prohibiting them, for example, from engaging in any activity with a foreign country? Do you think such a measure could be useful and applicable?

[Dr. Charles Burton]

I've made this recommendation. If you've served in government, you shouldn't be allowed to take money from a foreign power in retirement when you return to the private sector. Many of our people are leaving Foreign Affairs in their fifties. They feel they never got rewarded enough and want to make big money. I'm seeing a number of my friends from my years in diplomatic service who, in fact, have left government and are working for China-related associations.

The issue is this: If, while in a position of public trust, you were identified by the Chinese government as not being friendly to China in some way, you would be toxic to a wide range of Canadian law firms, businesses and boards that would not be able to hire you for fear of alienating the Chinese, who we know do this. We know from Jenny Kwan, for example, that she's not able to go to normal events in her riding because the Chinese evidently don't like her and don't want her present. From that point of view, we have to accept the reality that it's very hard for people not to be tempted to go easy on China while in public life, because they have half a mind on what they're doing afterwards.

I'm not suggesting that they have this all planned out. I think it could be a somewhat unconscious thing, not shaking the Chinese tree. I don't think we have a situation where, say, the Chinese ambassador goes to the Canadian foreign minister and says, “You know, if you take it easy on the Ministry of State Security agents operating in your country, we'll do good things for you when you leave office.” It doesn't work that way. It's a much more sophisticated process of “We just know this is how it goes.” There are so many examples that seem to me to be awfully coincidental. People who seem to give China an easy time or support Chinese purposes—those who, say, supported the immediate release of Meng Wanzhou—find themselves being very successful in China business after they leave public service, even though they previously had no business experience.

[René Villemure, Bloc, Trois-Rivières, QC]

You mentioned the independence of the commissioner. The bill suggests that the commissioner is independent and that he can conduct investigations as he sees fit. However, he is accountable to Public Safety Canada and does not have a working group at his disposal, as mentioned by Mr. Kempa.

Do you believe that the commissioner's independence as currently worded in the bill is adequate or that we need to go a little further to ensure transparency and public trust?

[Dr. Charles Burton]

I'd like to see it be more independent. I have some concerns about the Conflict of Interest and Ethics Commissioner related to similar sorts of notions. I think it's hard for people who are answerable to the government to investigate the people who are, in effect, their boss.

However, as I said, I'll put this out there: I don't understand the mechanism or the possibilities for ensuring greater independence, but I would like to see the commissioner pretty independent and the provisions for removing this person be subject to a transparent and open process so that, if they're getting too close to sensitive issues, they won't be removed so that they can't find out things the Canadian public has a right to know about.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you.

Mr. Kempa, I would like to ask you the same question, the one about the commissioner's independence.

[Michael Kempa]

It is absolutely the case that serving at the pleasure of a minister is troublesome for any head of a major policing or security organization. It's not necessarily that the commissioner lacks the integrity or the personal ability to stand up to their minister. It's simply on the point that they will tend, over time, to manage with one eye upwards, as they call it, in the sense that they have to anticipate the wants and desires of the minister, sometimes against the interests of their organization.

The RCMP is the best example that exists of how that model is troublesome. If there wasn't a sort of tripartite arrangement but there was at least a very transparent and clear information exchange, then if the commissioner were to be dismissed on questionable grounds, at least there would be public awareness and potentially outrage for an egregious dismissal.

[René Villemure, Bloc, Trois-Rivières, QC]

According to the bill, the commissioner's appointment must be preceded by consultation with certain individuals. The parties in question are notified, but their formal agreement is not required to appoint the commissioner. They are simply informed of an appointment.

Do you think that's sufficient?

[Michael Kempa]

I would prefer perhaps a deeper process other than the one listed here. I'm not quite sure, other than a tripartite situation where there's some advisory body—as there are with police organizations for the naming of chiefs or commissioners, apart from the RCMP—and where they're not simply picked by a minister through a process along those lines.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much.

[The Chair, Liberal, Ron McKinnon]

Thank you, sir.

We'll go now to Mr. McAllister—sorry, Mr. MacGregor. You'd think I'd know by now.

Please go ahead for six minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

I'd like to thank both of you for being here today to help guide us through this study of a very important piece of legislation.

Professor Kempa, I'd like to start with you.

Going to clause 34 of the bill, which is giving the new disclosure rules to CSIS, I can read very clearly that all of the following conditions have to be met before it's disclosed, but I, too, have questions on how the service is going to make decisions. More importantly, what will the receiving entity or person do with that because it's intelligence that is being shared? Then I guess the questions arise of what the person is expected to do. I know there are protections for personal information, but if an organization is told by the service that there's someone in its employ whom they have concerns with, what is it then supposed to do with that?

Is there anything that you could elaborate on to help guide this committee? Does this section need some amending or, as you said, would you like to see some clarification in regulatory-making authority?

[Michael Kempa]

To my mind, it would actually be impossible to legislate, for example, a precise list of how exactly CSIS is meant to share every form of intelligence on a scale of most-to-least reliable with every possible public, private and civil body that it now can. Rather, I would see it as falling within regulations, and they would be more in terms of guidance for CSIS rather than a prescriptive list.

Depending on the nature of the intelligence, you would almost have to imagine a situation where if there is an entity like a university or a corporation, for example, it would have to have basically an employee or designated office to receive intelligence information. Perhaps in exchange for working with CSIS, it would have to submit basically what its information management plan is, to become a formal partner ongoing.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

To be clear, I think this is a good thing that we're doing to allow disclosure of information. It's just that more questions arise. We just want to make sure that it's done correctly and that the sharing is actually going to lead to a fruitful outcome and have a positive net impact, instead of leading us into more rabbit holes by accident.

Moving further on in the bill, there are quite significant amendments to the Security of Information Act in this legislation. I'm thinking specifically of clause 53 of the bill. Clause 53 is roughly five pages long. In the existing Security of Information Act, section 24 says, “No prosecution shall be commenced for an offence against this Act without the consent of the Attorney General.” However, in clause 53, specifically there's a section “Political Interference for a Foreign Entity”. Given that the Attorney General ultimately is someone who was elected to the House of Commons and then appointed to cabinet, I'm just wondering if you are comfortable with that section, needing the consent of the Attorney General.

Do we need to inoculate it with a more permanent member of the civil service who is not elected and not swayed by political events? Do you have an opinion on that?

[Michael Kempa]

On that one, it would be the standard conventional practice to rely on the Attorney General, but I understand the reservations there. I would say that as long as there was some measure of transparency or accountability, such that if an egregious decision were taken there could be some form of remedial action, then that would probably be preferable to allocating it to a professional public servant, for example.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you for that.

Professor Burton, I'd like to turn to you because, as you said, most of your comments were directed to part 4 of this bill. I raised questions during our first meeting on the definition of “arrangement”. It's talking about being “under the direction of or in association with”. Those are two very different things. In being “under the direction of”, there's an obvious hierarchy. It suggests employment, and it suggests that someone is giving orders and someone is executing them, whereas being “in association with a foreign principal” seems to be a little bit more open to interpretation.

I'm just wondering, with universities often being a nexus of the political world and the educational world, but also of sharing knowledge with foreign entities, is there a risk that universities might have some difficulty with this in having to register the free flow of information between countries? Do you foresee any dangers we need to look out for as a committee?

[Dr. Charles Burton]

It is very troubling. Obviously, universities have a mandate to create and disseminate knowledge. They don't have a mandate to protect our nation's national security, and they are internationalized. Academic freedom does make it challenging for us to tell universities that they can't do this or that. Then there's the troubling reality that scientists of Chinese origin who have come to Canada naturally have extensive networks within China. Are they going to be unable to get research funding because of these suspicions?

I really don't know how we can square this circle, unless we start to look much more carefully at the relationship between universities and the state. We are perceived, I think, by our Five Eyes partners as being a weak link in the protection of dual-use technologies and sensitive research. The Winnipeg lab fiasco has not helped the confidence of our partners in terms of sharing information with us.

I am troubled by this, and I do agree with you. I looked it over and I don't understand what those words mean either.