Public Safety Committee on June 5th, 2024

[Heath MacDonald, Liberal, Malpeque, PE]

This committee just did a review of Bill C-26. During that testimony, we heard that there were about 5.2 million cyber-attacks in four months in 2023, from September to December. I think that's correct. Of those, 62% targeted critical infrastructure.

In our testimony during our last meeting, Michel Juneau stated that “86% of our national infrastructure is either owned or operated by the private sector”. It's going to become a very serious issue, or it already is a very serious issue. We may not even be aware of what's transpiring underneath. What's the best way to go about delivering that message and ensuring that there are safeguards in place within this bill?

You talked a bit about 40 items that you guys did a report on. Can you talk a bit about them, and give us a couple of examples and their relevance?

[Trevor Neiman]

The Business Council did put out a recent report, last September, that set out a pretty comprehensive set of reforms that we believe the Government of Canada should adopt to address the most glaring gaps in Canada's economic security posture. We were very happy to see that a number of them were incorporated into this bill, particularly clause 34, which allows for increased information sharing.

As I mentioned at the beginning of my remarks, we've also supported the foreign influence transparency registry, as well as the new sabotage offences as they relate to the protection of essential infrastructure.

At the same time, as I mentioned in my opening remarks, we think this bill should move forward on an expedited basis, so we wouldn't want to make significant changes to the bill that would slow down that process. However, we would hope that the government would try to bring in some of the additional changes that we suggested.

You mentioned critical infrastructure and I just want to provide a short commentary on that. The Business Council is very supportive of the amendments to the sabotage provisions. We note that the current provisions in the Criminal Code date from 1951. They have not been updated since then.

Obviously, the threat environment has changed drastically since then. We see more and more that our adversaries have an increased intent and willingness to target and undermine our critical infrastructure. Those are the systems that allow Canadians to heat and power their homes, communicate with their loved ones across this vast nation and get their goods to and from international markets. Disruption to those systems would be absolutely devastating to Canadian society. I don't think I exaggerate much when I say that a substantial disruption to our central infrastructure could put millions of Canadians' lives, security and prosperity at risk. We think that the amendments are a good step forward.

We're also very happy to see that the government has included some safeguards in there, including making exceptions for work stoppages related to labour disputes, as well as exceptions for individuals who are legitimately engaged in advocacy, dissent and protest, as well as the requirement for a proceeding to be brought before the Attorney General to provide consent.

We think that those protections there provide the right balance between protecting Canada's economic and national security and, at the same time, making sure that these provisions are respectful to individual Canadians' rights and freedoms.

[Heath MacDonald, Liberal, Malpeque, PE]

Mr. Leuprecht, if I didn't ask you a question, our good friend, Mr. Desserud, would be upset with me when I return to Prince Edward Island, so I'm going to ask a quick question.

You didn't use this word, but you talked a little bit about contextualization of the agnostic list. You were somewhat against that in your preamble.

Before the chair cuts us off, can you quickly give me your main reason for that?

[Prof. Christian Leuprecht]

I think entities need a clear signal.

If you're a university or a private sector company, to be fair, you now need to.... Australia ran into this problem, where all foreign actors need to be treated equally. If you're a foreign visitor to a university from Germany or you're a foreign visitor from some hostile state, the university cannot treat the risk assessment differently. It means that you cannot deploy the very scarce resources you have in a targeted fashion, so it's just giving the minister the option.

The other advantage is that it allows the government to negotiate. If it gets indirect threats from a hostile state actor, the government can now indirectly signal that, if they're going to treat us like that, we might end up listing their particular country and maybe two can play at this game.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Mr. Villemure, you have the floor for six minutes.

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

Thank you very much, Mr. Chair.

Thank you to the witnesses, Mr. Neiman, Professor Leuprecht and Ms. Rheault.

Ms. Rheault, as George Orwell said, the fewer the words, the less people are tempted to think. Earlier, you told us that it was too restrictive, that words were missing or that there were too many words. I would like to give you an opportunity to further explain that.

[Emmanuelle Rheault]

Let's simply look at section 52.3, which the bill proposes to add to the Criminal Code and which deals with the consent of the Attorney General. It says that “No proceeding for an offence under subsection 52(1), 52.1(1) or 52.2(1)”, that is, sabotage offences, “shall be instituted without the Attorney General's consent”. The Criminal Code defines the Attorney General as the provinces, the Director of Criminal and Penal Prosecutions in Quebec and the Attorney General. If Ottawa wishes to retain its discretion, it should say “Attorney General of Canada”. There is language like that in section 773 of the Criminal Code to allow the federal government to retain its discretion with respect to certain sections of the Criminal Code that are more sensitive internationally, whether against other countries or against other individuals.

There is also the exception set out in proposed subsection 52(5). According to the bill, an act of sabotage is permitted when a person participates in advocacy, protest or dissent, but does not intend to cause any of the harms referred to in paragraphs 52(1)(a) to (c). It's extremely broad. We're still referring to the first paragraph of this clause, which is a problem in the first place. With respect to the latter part of the exception, as I mentioned, I haven't seen that in New Zealand, for example. I've only seen it in the current bill. In my opinion, this wording would create problems, because its scope is much too broad.

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

Do you have any comments on the proposed amendments to the CSIS Act?

[Emmanuelle Rheault]

You're probably referring to the Security of Information Act. I'm sorry, I may not know all the terms as well as some of your guests.

I have limited myself to the sections of this act that are incorporated into the Criminal Code. For example, I took a closer look at proposed subsection 20.4(1) that the bill proposes to add to this act. It talks about influencing a political or governmental process. It reads: “Every person commits an indictable offence who, at the direction of … a foreign entity …” Once again, this section is very general. Yes, the term “foreign entity” is defined in section 2 of the Security of Information Act, but there are other definitions. I can quickly see examples that probably correspond to what you have in mind. I hear what the other guests are saying and I hear some of the concerns being expressed. Given the way this provision is worded, influence groups could be covered by proposed section 20.4 without necessarily being tied to the government.

Once again, the scope of this section is very broad and, since we're talking about a criminal offence here, the constitutionality of this section could quickly be called into question.

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

Thank you very much.

Professor Leuprecht, you gave impassioned testimony. You said that it was the minimum required to live together, no less.

You've listed a lot of things, but if you had to prioritize them, what do you think are the main missing or faulty things?

[Prof. Christian Leuprecht]

I'd say that, in general, the federal government has faced challenges in sharing information with stakeholders effectively and efficiently, as well as in a timely manner. We've seen this in the recent reports of committees dealing with accounting.

We know this from FINTRAC. FINTRAC has trouble sharing the right information. We know this from CSIS. We've noticed that we have it within agencies and among agencies.

The way the bill enables the ability to share information within government and with external stakeholders.... We have some very good models—the Canadian Cyber Threat Exchange, for instance, and the Canadian centre for cybersecurity, where I think there are probably significant synergies with CSIS in terms of sharing threat actor information. Some entities have cracked it precisely because the government has enabled information-sharing provisions.

I think we are just too restrictive.

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

At the outset, you mentioned a lack of courage and ambition. That's quite striking.

The bill states that there will be a review every five years. I can name you a series of laws that must be reviewed every five years, but they aren't reviewed. We're trying to create an incentive, as it were.

A little earlier, a witness suggested including a provision that says if there's no review after five years, the act is no longer valid. That would be akin to a nuclear bomb.

Would you have a suggestion for us to ensure that the act is reviewed every five years?

[Prof. Christian Leuprecht]

For example, the Australians require that a report be produced every five years providing an overview of the intelligence and national security architecture. The individual who is tasked with that has quite a bit of latitude. The report is quite long, but it generally focuses on a particular area where they are trying to suggest improvements.

We're talking about laws that are not very visible to the public or to members of Parliament, and they are also very complex. As the witness indicated, it has very significant consequences on the protection of civil life and human rights. Given that the global security environment is changing so quickly and we have laws with definitions from 1951 and 1984, we need a mechanism that allows members of Parliament to act more effectively and in a way that's better adapted to today's realities.

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

Thank you very much.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Villemure.

We'll go now to Mr. MacGregor for six minutes.

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

Thank you very much, Mr. Chair.

Thank you to all three of you for joining us today.

Professor Leuprecht, I want to revisit the issue of part 4 being country-agnostic, because I want to present to you a hypothetical situation. Of course, the government of the day is guided by different political leanings, and it may view certain countries in different lights from its competitors in the House of Commons.

I'm wondering about a situation in terms of listing a country. Could there not be the potential of the government of the day's trade interests colliding with the country's national security interests? It's a very political decision to list a country. Does that not come with some pitfalls because that's essentially a political decision? There could be other things guiding a government's decision rather than the purely national security interests of Canada. Is that not a danger?

[Prof. Christian Leuprecht]

We had exactly that situation very recently in terms of the reimposition of certain visa requirements on Mexican nationals to Canada, where there was a vigorous internal debate on precisely this sort of trade-off. Ultimately, this gives the Minister of Foreign Affairs a stake on both sides, because the Minister of Foreign Affairs can ultimately make the trade argument, and the Minister of Foreign Affairs would also have the opportunity to list a country.

The listing regime is important, because we've been very poor in the last 20 years in anticipating the evolution of the international security environment. In a case of a rapid degradation of the international security environment, where the government feels it might need to take fairly aggressive, rapid measures to protect Canadians, Canadian interests and Canadian institutions, this is an important tool that we will—not “may” but “will”—regret within your and my lifetimes if it is not inserted into the bill.

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

In the interest of transparency, would we not also have an interest to know how some of our closest friends and allies are influencing our political processes?

[Prof. Christian Leuprecht]

Yes, but they don't need to resort to covert, clandestine, coercive—

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

That wouldn't be covered by a registry. Clandestine wouldn't be covered by the registry.

[Prof. Christian Leuprecht]

Our closest allies have plenty of legal mechanisms. For me, the primary purpose of the registry is to lower the evidentiary threshold for investigations, because, in many cases, it is very difficult for security and criminal intelligence to reach the current threshold as defined in law in Canada. With the registry, you are now giving the agencies a much lower threshold for the purpose of investigation. That, I think, is the primary purpose.

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

Okay. Thank you for that.

I also want to recognize that, from your comments, you see Bill C-70 as a bare minimum, and you did mention other statutes that you wish could have been enacted.

We're limited by what's before us. We can't go beyond the scope of the bill, but in the amendments to the CSIS Act, you did make mention of the fact that a lot more could have been done with section 16. However, are you happy with what the government is proposing here in its amendment to section 16 as an addition? Do you see any improvements that we can make as a committee?

[Prof. Christian Leuprecht]

I think what I was hoping to signal is that there's nothing in this bill that you can really reasonably strip out of the bill. This is the minimum threshold. That's the primary signal that I was hoping to send.

I appreciate that the government did have the guts to tackle section 16, because that is inherently a long-standing controversy. Just going there shows that there's some willingness to engage constructively on some key matters that might subsequently come up in other bills for further amendment.

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

Thank you.

Ms. Rheault, I'd like to turn to you and your expertise in criminal law.

Of course, there are some significant amendments to the Security of Information Act, with significant offences and punishments, pretty much all of them involving life imprisonment. I know that other offences involving life imprisonment can be treason, mutiny and things like that.

On the offences listed in these new amendments to the SOIA, do you think the punishments match how serious the offences are?

[Emmanuelle Rheault]

You have to understand that, basically, I'm a defence lawyer. So my practice is always guided by the humanistic approach I take with my clients.

Of course, traditionally, offences punishable by life imprisonment involve violence. These are offences that pose a certain risk to someone's life or a very high risk to their physical integrity, or terrorism offences.

Certainly, when I read the bill, I find life sentences somewhat disproportionate to the offences I see. The 14-year maximum penalty under the Criminal Code is widely used for many offences of similar gravity.