ANALYSIS: Is the New Foreign Interference Act an Adequate Response to Beijing’s Meddling?

Public Safety Minister Dominic LeBlanc speaks to reporters in the foyer of the House of Commons May 6, 2024, announcing newly proposed legislation aimed at countering foreign interference in Canada. (The Canadian Press/Spencer Colby)

The federal government’s foreign interference bill has caught the most attention for creating a foreign agent registry and allowing the nation’s intelligence agency to share information with non-federal entities.

But Bill C-70 proposes a host of other changes, which those who deal with foreign interference issues on a regular basis praise as valuable.

There are, however, some key limitations to some of the provisions in the bill compared to what allied countries have, legal experts say.

As well, security experts warn that the bill alone can’t be the government’s sole response to the serious threat of interference by the Chinese regime, as that requires a fundamental shift in government approach beyond mere new legislation and tweaks to the Criminal Code.

What Has Been Asked For

Longtime human rights lawyer David Matas says one of the changes proposed in the bill shows that someone in the corresponding governmental department was observing the limitations that people like him have been pointing out when it comes to seeking justice for those targeted by foreign powers.

“The component that strikes me as most noteworthy, other than the registry and disclosure provisions, is the provision addressing foreign interference not directed to governments,” Mr. Matas told The Epoch Times.

In the current Security of Information Act, a “foreign-influenced” threat is defined as one “that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests.”

“The current law is tied to Canadian interests,” Mr. Matas says. This requirement has made prosecution of cases where a foreign entity is involved in intimidation and harassment of individuals in Canada more difficult, he says.

Under Bill C-70, which will rename the act to the Foreign Interference and Security of Information Act, the section dealing with foreign interference is revamped, including creating offences for “committing an indictable offence at the direction of, for the benefit of, or in association with a foreign entity,” among others.

A protester holds a sign that reads "No CCP interference in Canada" at a rally outside of the Wenzhou Friendship Society in Richmond, B.C., on Feb. 25, 2023. (Vivian Yu/NTD)

“The new law considerably expands the old law, providing more detail–detail which will make its enforcement more likely,” Mr. Matas said.

Another provision in the bill that makes it a criminal offence to sabotage “essential infrastructure” was welcomed by the Canadian Telecommunications Association.

“Bill C-70 … addresses a significant gap in our legal framework by explicitly criminalizing acts of sabotage against essential infrastructure, including the telecommunications network equipment that Canadians rely on to stay connected,” the association said in a May 13 statement.

The act specifies that the new sabotage offences don’t apply to acts of protest where there is no intention to cause serious harm.

In addition, the bill introduces a new criminal offence for possessing or distributing a computer program, such as “bots,” meant for a sabotage operation against essential infrastructure.

Another change proposed in the bill is adding more provisions to criminalize inappropriate sharing of military technology and knowledge under the revised Security of Information Act.

The bill is also meant to better integrate efforts between the Canadian Security Intelligence Service (CSIS) and other security and intelligence agencies.

One of the shortcomings of Canada’s security and intelligence apparatus noted by experts has been that information gathered by CSIS often can’t be used for prosecution since it’s not collected to an evidentiary standard. This is unlike some other agencies, for example the FBI, which functions as both an intelligence and a law enforcement agency. As well, concerns have been raised that an intelligence agency would be reluctant to share information with the judicial system in Canada as the country’s disclosure laws during court proceedings may compromise the agency’s sources.

Bill C-70 seems to be “the first Bill in decades that seeks to address the intelligence-to-evidence conundrum,” notes international law firm Gowling WLG.

The bill asks for the creation of a process called Secure Administrative Review Proceeding (SARP) that would govern the protection of sensitive information in judicial reviews.

“It remains to be seen whether the SARP process is the most efficacious in terms of meaningfully facilitating the use of intelligence in an open court,” Gowling WLG notes in an online post about the bill.

The Conservative Party has said it will support the Liberal government to facilitate swift passage of the bill.

Other Features

Bill C-70 specifically mentions interference with the nomination process of an election candidate as one of the activities considered a criminal offence.

Han Dong appears as a witness at the Foreign Interference Commission in Ottawa on April 2, 2024. (Adrian Wyld/The Canadian Press)

The issue of irregularities during the nomination process has been highlighted in the ongoing foreign interference inquiry, with intelligence reports indicating that international students were bused in under the coercion of the Chinese Consulate to vote for the Liberal nomination of Han Dong in a Toronto riding ahead of the 2019 election. Mr. Dong, who went on to win the 2019 race and was re-elected in 2021, has denied involvement with these incidents.

The provision is part of a newly introduced offence which on a broader level makes it an indictable offence to interfere with a political or governmental process under the direction of a foreign entity. The offence is punishable by up to life in prison.

The bill also makes foreign interference in school boards and universities a criminal offence. The foreign interference inquiry’s May 3 report mentions that foreign interference includes cultivating long-lasting relationships, including with those who may be involved at local representative bodies such as school boards.

“Today’s school board trustee may become tomorrow’s Member of Parliament,” the report says.

The Chinese Communist Party (CCP) is also known for its targeting of educational institutions, including having its Confucius Institutes (CIs) hosted at schools and universities abroad in the name of cultural exchange.

“CIs are closely linked to the Chinese Party-state,” says a 2013 CSIS workshop report. As well, CSIS has repeatedly warned universities and academics of China’s espionage and talent recruitment efforts.

The bill also broadens CSIS’s warrant powers, including in areas where digital data is involved, updating Canada’s legislation with the evolving technology. New warrant provisions are also introduced for collecting information or intelligence located outside Canada “from within Canada.”

CSIS Sharing and Foreign Agent Registry

Just ahead of the announcement of the new bill, Alberta Premier Danielle Smith had publicly called on the federal government to make legislative changes that enable CSIS to brief provinces on intelligence relating to risks.

B.C. Premier David Eby had also said that it’s “frustrating” that the agency isn’t able to share information with him about allegations of Beijing’s meddling in the 2022 Vancouver municipal election as he’s not a “direct client” of theirs, as the federal government would be.

With Bill C-70, CSIS would be allowed to disclose sensitive information to non-federal entities as required. These would include provincial and municipal governments, businesses, and researchers.

The news was welcomed by the Business Council of Canada (BCC), which said the act would help “build a stronger, more secure country at a time of heightened geopolitical risk.”

The organization also welcomed the introduction of the foreign agent registry, which human rights groups, China watchers, and security professionals have long called for.

A sign for the Canadian Security Intelligence Service building in Ottawa, in a file photo. (Sean Kilpatrick/The Canadian Press)

“If effectively implemented, the new registry could deter states from engaging in hostile activity; enable the earlier, more effective disruption of malicious state behavior; and foster greater resiliency by increasing the public’s awareness of the nature, scale, and extent of foreign state activities in our domestic affairs,” the BCC said in a statement on May 6.

The United States has had a foreign agent registration law since 1938, while Australia initiated one in 2017 and the UK in 2023 amid heightened interference by Beijing.

While some have questioned how effective the measure is—such as former Australian Prime Minister Tony Abbott, who argued that those who register are “the honest ones”—a foreign interference law at the very least can be a deterrent.

Just ahead of the date that Australia’s law came into effect in 2019, two former cabinet ministers and a former premier cut their ties with Beijing-linked companies.

As well, some have suggested that Australia’s law could have been made more effective by making it not “country-agnostic” and by acknowledging that it is regimes like the CCP that are most hostile.

“The crux of the problem is that the laws deny the crux of the problem, which is that some countries by their actions demand a prioritised level of scrutiny and others do not,” former Australian Deputy Prime Minister John Anderson wrote in a 2021 report published by the Australian Strategic Policy Institute.

But Canada’s version of the registry could have even more limitations than what allies have introduced, international lawyer Lawrence Herman says.

“The first defect MPs can examine is the bill’s narrow definitions of which arrangements require registration,” Mr. Herman wrote in a May 16 report published by the C.D. Howe Institute.

In Canada’s proposed version of a registry, these arrangements include only communications by foreign agents with a “public office holder,” or communications with the members of the public only when a “political or governmental process” is involved. The bill wouldn’t cover registration for actions meant to influence Canadian public opinion, Mr. Herman gives as an example.

“This is much narrower than what Canada’s allies have in place,” he said.

He says another shortcoming with the bill is the exemptions, including those involving “religious, scholastic, or scientific activities.”

“This latter exclusion seems unduly broad and would eliminate, for example, arrangements with persons in Canada directly or indirectly connected with the Chinese government or the Chinese Communist Party that concern scientific research at universities or quasi-governmental bodies like the National Research Council,” Mr. Herman said.

This would be especially pertinent in a situation such as the high-security National Microbiology Lab in Winnipeg, where two scientists were fired after having been found to have undisclosed ties to Beijing, he said.

Debates

The issue of security versus privacy is another concern that has been raised about Bill C-70.

“We acknowledge the importance of addressing anything that poses a serious threat to Canada’s democracy. That being said, this Bill requires significant changes to become Charter-compliant,” Anaïs Bussières with the Canadian Liberties Association said in a statement.

“For instance, subject to ministry approval, [CSIS] could disclose information obtained in the performance of its duties and functions to ‘any person or entity’. Under current legislation, such disclosure is limited to state officials. This proposed expansion of [CSIS’s] power must be subjected to stricter limits to protect privacy rights.”

Other concerns have been raised regarding the security aspect as well.

While the bill bolsters provisions to protect sensitive information, it still allows a suspect, if there has been a conviction, to appeal a court decision to prevent disclosure of certain information.

Chinese police officers walk outside the Museum of the Communist Party of China in Beijing on June 25, 2021. (Kevin Frayer/Getty Images)

Calvin Chrustie, a former senior operations officer with the RCMP, says security agencies of allied countries, or even witnesses, might be reluctant to trust Canada’s judiciary system with their sensitive information and might hesitate before helping in the prosecution of a case for that reason.

“Unless there are built-in mechanisms for the police and the public to have confidence and be empowered to protect this information and the people providing the information and the organizations’ information, I’m not sure how that’s going to build any confidence with witnesses, organizations, and our allies,” Mr. Chrustie, now a senior partner with the Critical Risk Team consulting firm, said in an interview.

Phil Gurski, a veteran of CSIS and the Communications Security Establishment, said he will also be watching with a lot of interest what the real implications of this new bill will be for the protection of sensitive information in judicial proceedings. He said he expects there will be legal challenges launched against efforts to prevent disclosure of sensitive information in courts.

“Canada has tended to be more open in terms of what should be disclosed in the court, so I’d be curious to see how they get around that,” he told The Epoch Times.

But more broadly, the security professionals agree that it takes a more comprehensive approach by the government to tackle foreign interference.

“Any improvements are better than what we have currently. Unfortunately, these changes do not address the issue as a whole,” says former RCMP and military intelligence officer Scott McGregor.

Getting to the Root of the Issue

Mr. McGregor, co-author of “The Mosaic Effect: How the Chinese Communist Party Started a Hybrid War in America’s Backyard,” says China is conducting “unrestricted warfare” on the West, yet Canada still hasn’t taken the first step of adequately defining which foreign interference threats the country faces.

“Until the real question of what are the threats to Canadian national security is made clear, I do not see band-aid changes to the Canadian Criminal Code being much help,” he told The Epoch Times.

The Chinese embassy in Ottawa in a file photo. (The Epoch Times)

Mr. McGregor points out that, historically, it appears that no one goes to jail in Canada as part of foreign interference operations. This has been particularly the case with money laundering operations in places like British Columbia, where CCP operators have been involved in money laundering and drug operations for years, he says.

“Our legal system is not capable of prosecuting high-level money laundering cases,” he said.

“Foreign influence has been here all along. It’s not new. The corrupting of our institutions and compromising of our critical infrastructure has been happening and no agency or government has stopped it.”

What is needed, he says, is a whole-of-government approach to address the issue at its root. This includes national strategies to counter transnational organized crime, he says.

“We need legal reform and a whole-of-government and civil and corporate approach to identifying and addressing threats to Canada,” Mr. McGregor said.