Public Safety Committee on June 6th, 2024

[Richard Bilodeau]

I haven't had an opportunity to read that letter, but I can give a few reactions.

One is that the foreign influence transparency and accountability act doesn't prohibit any activities. It just requires transparency about certain activities. Having said that, any agreement or any situation must be looked at through the lens of what is required to be registered. That is an arrangement with a foreign principal to do one of the three activities enumerated in the legislation, and it has to be about a government or political process. It's only when those three are met that the registration obligation is triggered.

Part of the commissioner's mandate will be to inform what is captured by that. You can imagine a scenario where a university partners with a foreign university that may be publicly funded to carry out research about a specific topic, but if it's not about a government or political process, then one of the elements isn't met and it doesn't trigger a registration obligation.

I think it's important to always look at this through the lens of the three requirements. We're not looking to chill expression or anything. It's just about being transparent about the very specific things that are enumerated in the legislation.

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

As you said, further nuance can be spelled out in the regulations, and the commissioner will have some authority to make some nuances as well. Is that correct?

[Richard Bilodeau]

That's right. We would expect the commissioner, when they're developing guidance, to engage with the appropriate stakeholders in consultations.

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

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. MacGregor.

I think we'll have to call an end to the panel at this point.

Thank you to all the witnesses for being here. Some of you have been here for a couple of hours. I appreciate that. Thank you for making yourselves available on such short notice and for all of your great answers, which will help us in our study.

We will suspend while we bring in the next panel.

[The Chair, Liberal, Ron McKinnon]

I call this meeting back to order.

I would like to welcome the witnesses for our last panel on Bill C-70. From the office of the intelligence commissioner, we have the Honourable Simon Noël, intelligence commissioner, and Justin Dubois, executive director and general counsel. From the National Council of Canadian Muslims, we have Ahmad Al Qadi and Nusaiba Al Azem by video conference. Finally, as an individual, we have Marcus Kolga, senior fellow at the Macdonald-Laurier Institute, also by video conference.

Welcome to you all.

I will invite Mr. Noël to make an opening statement of up to five minutes, please.

Go ahead, sir.

[Simon Noël, Intelligence Commissioner, Office of the Intelligence Commissioner]

Thank you, Mr. Chair.

Mr. Chair, members of the committee, thank you for inviting me to discuss Bill C‑70 with you.

Joining me today is Justin Dubois, executive director and general counsel of my office.

The role of the Intelligence Commissioner was created in 2019. I've been in this role since October 2022. In one sentence, my mandate is to approve or not approve certain national security and intelligence activities planned by the Communications Security Establishment, or CSE, and the Canadian Security Intelligence Service, or CSIS.

More specifically, CSIS and CSE may sometimes engage in activities that could involve breaking the laws of Canada or interfering with the privacy interests of Canadians. These activities are authorized by the minister. The intelligence commissioner, whom I will refer to as the IC, reviews the minister's reasons to determine whether they meet the test of reasonableness as recognized by the Canadian courts. If reasonable, the IC approves the authorization, and the agency can proceed with the planned activity. My written decisions are binding, and redacted versions are published on our website.

A number of ministerial authorizations subject to the IC's review relate to the use of datasets. The IC's main role relating to the dataset regime ensures that CSIS exercises its authority to collect non-threat-related information about Canadians and persons in Canada in a balanced manner. That the minister has given proper consideration to privacy interests and independent oversight is, in my mind, crucial.

Bill C-70 proposes certain amendments to this dataset regime. Most of the changes are intended to facilitate the use of the dataset regime for CSIS. Overall, I am of the view that the proposed amendments will not change the nature of my role when conducting independent oversight.

Having said that, I want to highlight a few proposed amendments that would nonetheless impact the work of the commissioner.

First, Bill C‑70 would authorize CSIS to collect and retain datasets for the purposes of section 15 of the CSIS Act. This section allows CSIS to conduct investigations to provide security assessments to the Government of Canada. In addition, it would broaden the scope of the datasets affecting Canadians that it can collect. The addition may raise new concerns that I will have to consider during my quasi‑judicial review.

Second, this bill would allow CSIS to disclose foreign datasets authorized for retention. The conditions for disclosure of the package would need to be clarified. It is conceivable that this element would be considered by the commissioner when examining the reasonableness of ministerial findings.

Third, this bill includes amendments related to the validation period for ministerial authorizations.

I highlight these changes because I think they are the most consequential and help me explain how the dataset regime is operationalized. The IC's oversight role is limited to datasets falling within part 1—that is, the collection of personal information not directly and immediately related to a threat to the security of Canada.

Bill C-70 makes it clear that CSIS will make use of the dataset regime only when the dataset cannot be collected through other jurisdictional means. I'm here as the intelligence commissioner, but I carry my baggage of experience—you can see my age—as a designated judge of the Federal Court for 21 years, as well as counsel involved in national security matters and commissions—the first one being the 1979 McDonald commission on the FLQ crisis in Quebec—and the reform that brought about the CSIS we know today.

I will add this before I finish. As a judge, I was involved in the dataset regime, the within and outside Canada regime—something you have in front of you today—and fine-tuning the special advocate's role and involvement in proceedings on section 38 of the Canada Evidence Act.

Having said that, I'm open to any questions you may have, if that's helpful to you. I look forward to it.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, sir.

I now invite Mr. Al Qadi to make an opening statement of up to five minutes.

[Ahmad Al Qadi, National Council of Canadian Muslims]

Thank you, Chair.

Good morning. My name is Ahmad Al Qadi. I'm joined by Nusaiba Al Azem, director of legal affairs for the National Council of Canadian Muslims. We're here to offer submissions on Bill C-70.

Let us begin by noting that many of the goals in the act are laudable. In fact, more than four years ago we testified in front of the foreign affairs committee about the need for Canada to crack down on foreign agents from any nation, given the clear intimidation that Uyghur Canadians were facing from Chinese state agents. We are deeply troubled by the numerous reports of interference by foreign states, including the governments of India, China and others, which have a pattern of engaging in crackdowns on minority communities

We are in full agreement with what many others have stated before you in this committee: Canada must take action to challenge foreign interference. That's why we have clearly supported parts of this legislation, such as the call for a foreign agents transparency registry.

That being said, while there is much that is good about this act, we must first note as clearly as we can that rushing to pass this bill in its entirety would be problematic. When we are rushing to make changes to our national security legislation that have fundamental impacts on privacy legislation, when we are further empowering agencies like CSIS that numerous judges have cited for their problematic behaviour and when there has been no time for academics or civil society actors to review the legislation, respectfully, there is a high likelihood that unintended consequences will result. Even today, as we are offering our initial response to the legislation, we doubt we will be able to provide fulsome answers to all of the questions posed given that we received a technical briefing on the legislation from government officials only yesterday.

Moving too fast can impact everyone negatively. Our national security agencies have in the past erroneously targeted Christian social conservatives, environmentalists, Sikh communities, indigenous communities, Muslims, progressives and everyone in between. That's why we believe more time is needed to conduct a fulsome study with academics and experts that isn't crammed into one week. Our first and most important recommendation to this committee, therefore, is to split the bill, pass part 4, which most have considered to be strong and relatively uncontroversial, and study the rest of the important suggestions laid out in the bill in a far more thorough fashion.

I will turn it over to my colleague Nusaiba.

[Nusaiba Al Azem, National Council of Canadian Muslims]

Thank you very much.

Ahmed is indeed right that a number of provisions require further study. For example, under part 2, for section 20 of the Security of Information Act, SOIA, there is an amendment to add the language of intimidation:

Every person commits an offence who, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person to do anything or to cause anything to be done.

However, as has been raised before for this committee today, “intimidation” is not defined in the SOIA, and this is hugely problematic. Are we using the tort definition or relying on parallel Criminal Code uses of the concept of intimidation or another definition entirely? This ambiguity could be used by this or future governments to target different kinds of protest activities that some have accused of being foreign-funded, whether they involve convoy protesters, Black Lives Matter protesters or others. We recommend that this section be deleted in its entirety or that “intimidation” be clearly defined in the act to ensure there is a civil liberties carve-out similar to the proposed carve-outs in subclause 60(2) and clause 61 of Bill C-70.

The bill also, in part 1, expands substantively CSIS powers. The expansion of CSIS powers to, as proposed, help it adapt to changing technology beyond Canada is a significant change that deserves study. Changes around surveillance and warrant procedures deserve significant study as well.

We are also concerned about the expansion of the inadmissibility provisions of the Immigration and Refugee Protection Act, IRPA, the sabotage provisions and many others. The new IRPA provision, for example, suggests that the minister may be able to find someone inadmissible if the minister deems that they are bad for Canada's “international relations”. How would this impact dissidents from dictatorships that Canada has diplomatic relationships with?

This legislation has many complex implications. Appropriate due diligence is not being exercised when it appears that all parties, with what we view as good intentions, are inadvertently rushing to make significant changes to our national security infrastructure without adequate checks and balances through longer, rigorous and informed study.

Subject to any questions, those form our submissions. Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you.

I now invite Mr. Kolga to make an opening statement of up to five minutes.

[Marcus Kolga, Senior Fellow, Macdonald-Laurier Institute, As an Individual]

Thank you, Mr. Chair and honourable members of the committee.

I'm a journalist and civil society activist who's been researching and exposing foreign information and influence operations targeting Canada and our allies for nearly 15 years. I'm also a human rights activist. Through this work, I've had the privilege of supporting and collaborating with extraordinarily courageous champions of democracy and human rights, some of whom testified before this committee earlier this week. Others have faced intimidation or detention for speaking out against the totalitarian regimes in Beijing, Moscow and Tehran. Some have been poisoned and others have been brutally murdered for their activism and advocacy.

For my work in supporting many of those brave activists and our common causes, I've directly witnessed and experienced the chilling effects of foreign authoritarian transnational repression. These effects include death threats, harassment and defamatory articles regularly published by Kremlin-controlled media outlets against me. Kremlin-aligned influencers and proxies in Canada have attempted to discredit and silence me through psychological intimidation and whisper campaigns.

While my personal experiences are less severe than those of witnesses you heard from earlier this week, such as the brave members of the Uyghur, Tibetan and Hong Kong communities, the objectives of these influence operations are universal: to repress the free and open expression of regime critics within the Canadian political and media environment, and ultimately to undermine our democracy.

These operations aim to cast doubt on the credibility of their victims. Tactics may include malicious online articles or poisoned letter-writing campaigns containing false accusations about the target, sent to media, government officials and even the victim's employers. In my case, such campaigns were carried out by Canadians working with Russian companies, trade promotion organizations and Kremlin-controlled think tanks.

The psychological impact of being targeted and defending against such foreign influence operations is, by design, exhausting. Victims feel isolated and defenceless. Concern for the safety of family members creates additional psychological stress, all of which is made worse when these campaigns include threats of physical violence. This can lead to significant psychological trauma and further problems. Ultimately, the target becomes so overwhelmed that they give up and silence themselves, limiting their ability to freely express themselves.

The lack of a coherent support system for vulnerable communities compounds the problem. In 2019, when my family and I were targets of death threats sent from a Moscow-based IP address and on social media, no law enforcement organization was equipped to deal comprehensively with the issue of transnational repression. When I called my local law enforcement unit, they told me to contact the RCMP. When I contacted the RCMP, they told me to contact CSIS. CSIS is, of course, a dead end.

When Bill C-70 comes into force, all parliamentarians need to support the development of policies that provide meaningful support for vulnerable communities and the brave activists and journalists who become victims of transnational repression. For Canadians vulnerable to transnational repression, Bill C-70 is a welcome ray of hope in our common cause to defend our democracy against authoritarian regimes that seek to undermine it.

The transparency and accountability required by the foreign influence transparency registry will help ensure that dishonest Canadians who are lured into the service of foreign authoritarian regimes with lucrative opportunities are identified. This will allow government officials, media and vulnerable communities to be aware of who and what these individuals publicly represent. When properly enforced, this new law will help prevent them from manipulating our political and information environment.

However, I believe the act would be further strengthened by a definition of both physical and digital transnational repression. Such activity targeting vulnerable diaspora communities and human rights and pro-democracy defenders should be included in the act and the foreign influence transparency registry.

Our foreign adversaries spare no expense in their efforts to undermine our democracy. Until now, they've manipulated our information spaces, influenced policy and intimidated our brave frontline defenders of democracy with relative impunity. Properly implemented and enforced, Bill C-70 will end their impunity and provide a new bulwark to defend our democracy.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, sir.

We will now start our questions with Mr. Genuis.

Mr. Genuis, please go ahead for six minutes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

We have a great panel again today. I'm going to start with the National Council of Canadian Muslims. Hopefully I'll get to others, but I know how the time can fly.

I really sympathize with some of the points you've made about timing. In full disclosure, we have, on our side, been pushing that this bill be passed quickly, but it should have been proposed much earlier. I think we should have had legislation on foreign interference in front of us years ago. That would have allowed us more time.

There is urgency because we need to protect the next election. We need to ensure that some of these provisions, which take time to implement, are in place before the next election so that we won't have the same kinds of problems.

There's a study happening here, and there's also a study happening in the Senate. I think the Senate is already doing a pre-study, so that's an opportunity as well for you and other groups to engage and put forward suggestions.

I'm very glad you raised division 3, the IRPA changes, because I think they have not been a subject of discussion yet at all. I don't know that we've had immigration officials before the committee. Hopefully, they'll be here for the clause-by-clause portion for people who have questions.

What is your understanding of why language would be inserted that allows for inadmissibility on the grounds of “international relations”? Obviously, national security and national defence make sense, but I would think that almost any dissident refugee who comes to the country would have some effect on our international relations with the country they're fleeing from. It does seem pretty broad. What do you read into that?

[Nusaiba Al Azem]

I'm happy to answer this one.

Just on a personal note, I want to say what an honour it is to testify alongside former justice Noël, whose decisions I read many times in law school, over and over.

With respect to the IRPA, our primary concern is obviously the piece you identified about the minister deeming that something is injurious to Canada's international relations, precisely because, as you identified, it can be overly broad. What does that mean?

“International relations” has also been added, pursuant to the bill, to the Criminal Code, but again, it's not defined. Does that mean dissidents from dictatorships that Canada has diplomatic relationships with could be impacted? Again, our primary concern here is not with the potential application of the rules in principle, but rather the lack of definition included in some of the language, which could cause undue harm. We have to emphasize that the legislation has implications on many facets, and we're concerned that any kind of rush in understanding the—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Sorry, I'm going to jump in. I have another question. It's also for you.

I want to ask about the issue of political discrimination. I believe we should want a country in which people are free to express their political views without fear of intimidation or other kinds of consequences, like employment-related consequences and consequences in their commercial relationships. That's why I proposed a private member's bill, Bill C-257, which would add “political belief or activity” as prohibited grounds of discrimination in the Canadian Human Rights Act.

I'm concerned about how foreign interference can play a role in political discrimination as well, and how foreign interference may manifest itself not necessarily as direct threats of violence, for example, but as pressure on institutions to not hire certain people, to remove people or to limit the participation of people who may be expressing political views that are not in line with the interests of a foreign state.

This is an issue that I've discussed on a few fronts with you folks at NCCM. Could you share your thoughts on the issue of political discrimination and how we might combat it through legislation or otherwise?

[Nusaiba Al Azem]

I'm happy to.

With respect to political discrimination, this speaks a bit to part 4 and why we support the transparency of a registry that allows for the listing of everybody, every agent, who could potentially be undermining Canada's democracy or sovereignty, whether an ally or not. It also speaks to the important part about not rushing other pieces that could potentially be used to undermine, for example, civil rights groups and people who are protesting, whatever that might look like. They should have the ability to exercise that political division.

Does that answer your question?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Yes. Thank you.

These are the last 30 seconds I have.

Mr. Kolga, if the government is concerned about foreign interference, why haven't they expelled more Russian diplomats? What is your view on the expulsion of Russian diplomats and what they may be up to while they're here in Canada?

[Marcus Kolga]

Well, we don't know exactly what Russian diplomats may be up to, but it's probably no good. We know that Russia uses its diplomats to engage in intelligence operations and influence operations. We know this through the reporting of Canadian journalists who have reported how they try to pitch various disinformation stories to Canadian journalists and such.

I would absolutely favour reducing the number of Russian diplomats in Canada. Right now, there are up to 80 of them. I don't know what 80 Russian diplomats in Canada would be doing other than engaging in potential foreign interference.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Genuis.

We'll go to Mr. Gaheer for six minutes.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you, Chair.

Thank you to the witnesses for appearing before the committee.

My questions are for the intelligence commissioner.

Sir, it's an honour to have you at committee. You did this in your opening testimony as well, but can you please outline the relationship between your office and CSIS?

[Simon Noël]

CSIS has jurisdiction to collect datasets. As a result of that, the IC intervenes when the minister or the director authorizes that.

I want to give you an overview of the jurisdiction. Human sources acting across Canada on behalf of CSIS can do certain activities and not others. They can commit illegal acts in order to pursue their investigation. I'm involved in reviewing the category of acts and omissions that these human sources can do in the field.

My relationship with CSIS goes back to 1984. I was involved in the complaint process with the predecessor to NSIRA, and I have followed the work of CSIS through the years. As a judge, I dealt with hundreds of warrant application certificates being issued. Presently, I do oversight review of CSIS. If you want me to say how I qualify that, I think I have a professional, serious relationship with them. We relate, we disagree and we agree sometimes, and I say so publicly, as my decisions can attest to.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

When that review happens, is it subject to a reasonableness standard?

[Simon Noël]

Yes.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Is it the Vavilov standard?