Charter Statement - Bill C-70 An Act respecting countering foreign interference

Bill C-70: An Act respecting countering foreign interference

Tabled in the House of Commons, June 4, 2024

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-70, An Act respecting countering foreign interference, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-70 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

Canada is often targeted by foreign states, or those acting on their behalf, seeking to advance their own strategic objectives. While foreign states usually advance their interests in legitimate and transparent ways, some also act in ways that threaten or intimidate people in Canada, their families elsewhere or are covert and deceptive, and harmful to Canada’s national interests. Often described as foreign interference, these deceptive, coercive and threatening activities can target all levels of government, the private sector, academia, diverse communities and the general public. While foreign interference activities are not new, they have increased in volume and complexity in recent years.

Bill C-70 proposes a number of measures that would modernize and fill gaps in existing legislation, strengthening the tools available to combat foreign interference and to protect national security.

Part 1 of the bill would make a number of amendments to the Canadian Security Intelligence Service Act (CSIS Act). These include amendments to the dataset regime as well as to CSIS’ foreign intelligence assistance mandate in section 16 of the CSIS Act. Part I would also amend the Act to create new judicial authorization authorities and to expand CSIS’ authority to disclose information and intelligence to partners outside the federal government.

Part 2 of the bill would amend the Security of Information Act to enact three new offences related to foreign interference and would amend the existing offence under section 20 of that Act (foreign-influenced or terrorist-influenced intimidation, threats or violence). It would also modernize the existing sabotage offence under section 52 of the Criminal Code and add two new companion offences relating to sabotage of essential infrastructure and the making, possession or distribution of devices that are designed to be used for sabotage.

Part 3 of the bill would amend the Canada Evidence Act to create a general scheme to deal with information related to international relations, national defence or national security in Federal Court or Federal Court of Appeal judicial reviews or statutory appeals arising from federal administrative decision-making. The new general scheme would repeal and replace existing stand-alone schemes, with the exception of the regime under the Immigration and Refugee Protection Act, and would also apply to legislative regimes that do not currently include a similar scheme. Part 3 would also amend the Canada Evidence Act to provide that an appeal from a decision not to disclose information can only be brought after the person has been convicted of the offence unless there are exceptional circumstances justifying an earlier appeal. Finally, it would amend the Criminal Code to broaden the reasons for which the information included in a warrant application can be made subject to a sealing order.

Part 4 would enact the Foreign Influence Transparency and Accountability Act, which would seek to counter efforts by foreign states or powers and their proxies to influence, in a non-transparent manner, political and governmental processes in Canada. The new Act would provide for the appointment of a Foreign Influence Transparency Commissioner and would require certain persons to report to the Commissioner arrangements they have with foreign principals to carry out activities in relation to a political or governmental process in Canada. The Commissioner would be required to establish and maintain a publicly accessible registry that contains information about those arrangements. To support the administration and enforcement of the Act, the proposed Act would include a number of offences and would grant the Commissioner powers to collect information and to summon individuals.

The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:

Part 1 – Amendments to the Canadian Security Intelligence Service Act

Datasets (section 8 of the Charter)

The dataset regime was introduced into the CSIS Act in 2019 to provide CSIS with the authority to collect, retain, and use datasets that are relevant to CSIS’ duties and functions under section 12 to 16 of the Act but that are not “directly and immediately related” to a threat to the security of Canada. Bill C-70 would make a number of amendments to the regime to address ambiguities that have been identified and challenges that have emerged in implementing the regime.

Among other things, the bill would remove ambiguities regarding the regime’s application by clarifying that the dataset provisions do not detract from pre-existing authorities to collect and retain information under the Act, and that they apply to information that CSIS would not otherwise be authorized to collect or to retain.

The bill would extend certain time limits under the legislation that have created challenges for the implementation of the dataset regime. For example, when a dataset is initially collected, it must be evaluated to, among other things, determine whether and what type of authorization is required to retain and use it, and to remove certain categories of private information. The bill would extend the evaluation period from 90 to 180 days. The bill would also extend the maximum duration of authorizations to retain datasets from two to five years for Canadian datasets and from five to ten years for foreign datasets.

The bill would clarify and streamline the process that applies in circumstances where information that has been collected under other CSIS authorities, including information incidentally collected in the execution of a warrant or production order, is sought to be retained as a dataset. As of the day on which CSIS determines that the information constitutes or could be used to constitute a dataset, the information would be subject to the rules governing the collection and evaluation of new datasets. This means that the time limits for the evaluation period would begin to run on that day and that the restrictions on the use of the dataset would be triggered. If authorization to retain the dataset is not sought within the legislated timelines, the dataset would have to be destroyed.

Bill C-70 would expand the purposes for which Canadian datasets can be used, permitting CSIS to use these datasets in exercising its duties and functions under section 15 of the Act. Section 15 authorizes the Service to conduct investigations for the purpose of providing security assessments or advice to Ministers.

The bill would amend the Act to permit the disclosure of datasets. Foreign and Canadian datasets could only be disclosed with Ministerial or judicial authorization, respectively.

Finally, the bill would expand the authority to use datasets in exigent circumstances during the evaluation period by permitting the exploitation (as opposed to just the querying) of the datasets during that time. Exploitation is defined in the Act as the computational analysis of one or more collections of information for the purpose of obtaining intelligence that would not otherwise be apparent.

The powers to collect, retain, use and disclose information under the dataset regime may engage privacy interests protected under section 8 of the Charter. The following considerations support the consistency of the datasets provisions, including in light of proposed amendments under Bill C-70, with the Charter. 

The regime includes numerous safeguards and accountability measures to limit any potential impact on privacy rights to what is reasonable and proportionate to the national security purposes for which these datasets may be used by CSIS. When a dataset is collected, it must be evaluated to determine whether and what type of authorization is required to retain and use it and to remove certain categories of private information such as private medical or health information and information that is subject to solicitor-client privilege. During the evaluation period, the dataset cannot be used except in exigent circumstances, with the authorization of the Director and the approval of the Intelligence Commissioner. Retention of Canadian datasets requires judicial authorization. Retention of a foreign dataset requires Ministerial authorization and approval of the independent and quasi-judicial Intelligence Commissioner. In both cases, the judge or the Minister, respectively, must be satisfied that the dataset is likely to assist CSIS in the performance of its duties and functions and that CSIS has complied with its obligations to remove the information that is not permitted to be retained.

Extending the time for the evaluation of new datasets would better enable CSIS to meet its obligations during this phase, such as confirming whether the dataset is a Canadian, foreign, or publicly available dataset, reviewing the datasets for the purpose of complying with its obligations to delete certain categories of information and seeking the appropriate Ministerial or judicial authorizations. Although the time limits would be extended, the rules restricting the use of datasets during the evaluation period would continue to apply.

The proposed amendments that would apply where CSIS seeks to transfer information that was collected under other CSIS authorities into the dataset regime incorporate the same essential safeguards that apply to the collection of new datasets. As of the day on which CSIS determines that the information is or could be constituted as a dataset, the rules and safeguards under the dataset regime would apply. Prior to that day, any retention of the information by CSIS would remain subject to the broader set of rules governing the retention of information collected under CSIS’ other authorities. These include requirements that flow from the terms of the Act itself as well as those that may be included as conditions in a warrant issued by the Federal Court. For example, a warrant may include a requirement to destroy any information that is incidentally collected in the execution of the warrant by a fixed date unless that information meets the thresholds for retention under the applicable authorities.

Permitting the querying and exploitation of Canadian datasets for the purposes of investigations under section 15 of the Act would further important national security objectives. These include conducting security assessments on individuals seeking security clearances that are required as a condition of employment in the federal public service, as well as security assessments that are used in the immigration context during the application process for visas, refugee status or Canadian citizenship. Querying and exploitation of Canadian datasets for section 15 purposes would be subject to the same high threshold that applies to CSIS’ use of these datasets in carrying out its functions under sections 12 (investigating threats to the security of Canada) and 12.1 (threat reduction). Specifically, CSIS would only be permitted to query or exploit a Canadian dataset where it is “strictly necessary” in carrying out its duties and functions under section 15 (conducting investigations to provide security assessments and advice to Ministers).

While the bill would allow for the disclosure of datasets, a foreign or Canadian dataset could only be shared if the authorization to retain the dataset permitted such disclosure and would be subject to any terms and conditions included in the authorization in that regard.

Exploitation of datasets that are not yet the subject of judicial or Ministerial authorization would be subject to the same requirements and safeguards that apply to queries of datasets under the existing provisions of the Act in these circumstances. The exploitation of the dataset would have to be authorized by the Director. In order to grant the authorization, the Director would have to be satisfied that exploitation of the dataset is required to obtain intelligence for the purpose of preserving the life or safety of any individual or to acquire intelligence of significant importance to national security, the value of which would be diminished or lost if the Service had to wait until the applicable authorization was obtained. To be valid, an authorization granted by the Director must be approved by the Intelligence Commissioner.

The Service’s activities involving datasets are subject to oversight by the National Security and Intelligence Review Agency (NSIRA). If NSIRA makes a finding or recommendation that CSIS actions are contrary to statute or the Charter, the Director is required under the legislation to give this portion of the NSIRA report to Federal Court, which then can consider the matter and provide a remedy. 

Collection of information that is located outside Canada (section 8 of the Charter)

Section 16 of the CSIS Act authorizes CSIS to assist the Minister of National Defence or the Minister of Foreign Affairs, within Canada, in the collection of information about foreign states and persons (foreign intelligence). Bill C-70 would close a gap that has been created by technological advancements by permitting CSIS to collect foreign intelligence from within Canada even when that intelligence is located outside Canada where the other requirements of section 16 are met. Because the bill would expand the scope of the collection authority under section 16 to include information that is located outside Canada, it has the potential to engage privacy interests under section 8 of the Charter. The following considerations support the consistency of this aspect of the bill with the Charter.

The amendment would allow CSIS to better fulfil the important objective of supporting the Government of Canada in managing Canada's foreign relations and national defence by understanding the capabilities, intentions or activities of foreign states or foreign individuals. The authority to collect information outside Canada would be subject to the same limitations that apply under section 16 when the information to be collected is located in Canada. Specifically, collection has to be at the request of the Minister of Foreign Affairs or Minister of National Defence, with the consent of the Minister of Public Safety. Importantly, where the collection is more than minimally intrusive of privacy interests, it could only be conducted with the authorization of, and subject to any conditions imposed by, the Federal Court. In addition, any collection under section 16 cannot be directed at Canadian citizens, permanent residents, or corporations incorporated in Canada.

Disclosure of information (section 8 of the Charter)

The existing provisions of the CSIS Act authorize the disclosure of information that CSIS collects in the performance of its duties in certain circumstances. Bill C-70 would make several amendments to the existing disclosure provision in section 19 of the Act to expand CSIS’ authority to disclose information to persons or entities outside the Government of Canada. Currently, CSIS has the authority under section 19(2)(a) of the Act to disclose information to “peace officers” with jurisdiction to investigate an alleged contravention of a federal or provincial law. However, not all persons who have jurisdiction to investigate such alleged contraventions have a “peace officer” designation. The bill would amend the existing provision to authorize the disclosure of information to “any person” with jurisdiction to investigate the alleged offence.

Section 19 also includes an authority to disclose information to any minister of the Crown or person in the federal public administration where the Minister of Public Safety is of the opinion that the disclosure is essential in the public interest and the public interest clearly outweighs any invasion of privacy that could result from the disclosure. Bill C-70 would amend this authority to permit disclosure to “any person or entity” while retaining the high thresholds that apply to disclosures under this provision.

Finally, Bill C-70 would introduce a new authority for CSIS to disclose information for the purpose of building resiliency against threats to the security of Canada. This authority would only be available in relation to information that has already been provided to a federal department or Agency that performs duties and functions to which the information is relevant. The information disclosed under this provision could not include any personal information pertaining to a Canadian citizen, permanent resident or any individual in Canada. It could also not include the name of a Canadian entity or a corporation under federal or provincial law. Because the proposed authorities to disclose information have the potential to interfere with a reasonable expectation of privacy, they may engage section 8 of the Charter. The following considerations support the consistency of these provisions with section 8.

Permitting the disclosure of information to “any person” with the jurisdiction to investigate an alleged contravention of Canadian law would not fundamentally alter the nature or purposes of the existing authority in section 19(2)(a) of the Act. Rather, it would modernize the authority to reflect the full range of actors who have such jurisdiction. The discretion to disclose information under this provision would have to be exercised in a way that complies with the Charter.

The proposed amendments to section 19(2)(d) of the Act, permitting the disclosure of information to “any person or entity” whether or not they are part of the federal Government, would respond to the evolving nature of threats posed by espionage and foreign interference, which increasingly impact other levels of government and all sectors of society, including Canadian communities, academia, the media, and private enterprises. The amended disclosure authority would remain subject to the very high threshold that applies under the existing legislation. Disclosure would only be permitted under this provision where the Minister is satisfied that the disclosure is “essential in the public interest” and that the public interest “clearly outweighs” any invasion of privacy that could result from the disclosure. CSIS would still be required, as soon as practicable after the disclosure, to submit a report on the disclosure to the National Security and Intelligence Review Agency.

The proposed authority to disclose information for the purpose of building resiliency against threats to the security of Canada has been crafted to minimize any potential impacts on privacy. It would not authorize the disclosure of any personal information pertaining to Canadian citizens, permanent residents or individuals present in Canada. It would also not authorize disclosing the name of Canadian corporations or entities. The authority would better enable CSIS to engage in full and frank discussions with partners to help them be more aware of the threats they face and take protective measures to withstand threats, including threats of foreign interference.

Judicial authorizations and warrants (section 8 of the Charter)

Preservation order

The Bill would enable the Service to make an application to a designated judge of the Federal Court of Canada for a preservation order. A preservation order would compel a third party to preserve information, records, documents or things that the Service has reasonable grounds to suspect will assist in investigating a threat to the security of Canada, or in performing its duties under section 16 of the Act in relation to the defence of Canada or the conduct of the international affairs of Canada. This authority would enable the preservation of the information, records, documents or things while the Service makes an application for a production order or warrant to obtain them. By preventing persons from controlling their own information, records, documents or things, the proposed authority has the potential to interfere with a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of the preservation order authority with the Charter. The purpose is to ensure the preservation from loss or destruction of information that will assist the Service in its important mandates to investigate threats to the security of Canada and assist the Ministers of National Defence and Global Affairs in the collection of information or intelligence relating to the capabilities, intentions or activities of foreign states or persons. The preservation of the information would give the Service the time necessary to seek a warrant or production order to obtain it. Persons could only be required to preserve information after a judge – who is independent and impartial – is satisfied of the existence of reasonable grounds to suspect that it will assist the Service in the fulfilment of its duties, that an order is necessary to preserve the information, and that the Service has or intends to apply for a warrant or production order to obtain it. The judge would retain a discretion whether to issue an order or not. A preservation order would only be effective for 90 days to ensure that a warrant is either pursued promptly, or that the information is not retained indefinitely. The judge would have the discretion to include in the order any measures necessary in the public interest. Finally, any information ordered preserved under a preservation order would be required to be destroyed when the order expires, unless it would be retained in the ordinary course of business or is subject to other legal obligations to retain it.

Production order

The Bill would enable the Service, with the Minister’s approval, to make an application to a designated judge of the Federal Court of Canada to obtain a production order. A production order would compel a third party to produce any information, record or document that the Service has reasonable grounds to believe is likely to provide information or intelligence that will assist it to investigate a threat to the security of Canada, or to perform its duties under section 16 of the Act in relation to the defence of Canada or the conduct of the international affairs of Canada. By enabling a judge to order persons to produce their information, records or documents, the proposed production order authority has the potential to intrude upon a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of the production order authority with the Charter. The purpose is to enable the Service to obtain information that will assist it in its important mandates to investigate threats to the security of Canada and assist the Ministers of National Defence and Foreign Affairs in the collection of information or intelligence relating to the capabilities, intentions or activities of foreign states or persons. Persons’ privacy interests would only suffer intrusion if a designated judge of the Federal Court – who is independent and impartial – is satisfied of the existence of reasonable grounds to believe that the information sought will assist the Service in the fulfilment of its duties. The judge would retain a discretion whether to issue an order or not. The judge would also have the discretion to include in the order any measures necessary in the public interest. To minimize any unintended or potentially excessive impacts on privacy, those subject to the order would be able to apply to a judge to have it revoked or varied if it is unreasonable in the circumstances to require the production of the information, record or document, or if producing it would disclose information that is privileged or otherwise protected from disclosure by law. Finally, any information ordered preserved would be required to be destroyed once a production order is fulfilled or revoked, unless the information would be retained in the ordinary course of business or is subject to other legal obligations to retain it.

Warrant

The Bill would enable the Service, with the Minister’s approval, to make an application to a designated judge of the Federal Court of Canada to obtain a warrant where the Service has reasonable grounds to believe the warrant is required to obtain any information, record, document or thing that will assist in investigating a threat to the security of Canada, or in performing duties under section 16 of the Act in relation to the defence of Canada or the conduct of the international affairs of Canada. Activities by the Service that could be authorized under this warrant power would include entering any place or accessing any thing, searching for, removing or making copies of any information, record, document or thing, or installing any thing. The use of this authority has the potential to intrude upon a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of the warrant authority with the Charter. The purpose is to enable the Service to obtain information that will assist it in its important mandates to investigate threats to the security of Canada and assist the Ministers of National Defence and Foreign Affairs in the collection of information or intelligence relating to the capabilities, intentions or activities of foreign states or persons. Persons’ privacy interests could only suffer intrusion if a designated judge of the Federal Court – who is independent and impartial – is satisfied of the existence of reasonable grounds to believe that a warrant is required to enable the Service to obtain information that will assist the Service in the fulfilment of its duties. The judge would retain a discretion whether to issue a warrant or not. Under this provision, the Service would only be authorized to obtain the information through a single attempt. In issuing a warrant the judge could impose any terms and conditions that they consider advisable in the public interest. A warrant would be valid for no longer than 120 days. Finally, any information preserved under a preservation order would be required to be destroyed once it is obtained under a warrant, unless the information would be retained in the ordinary course of business or is subject to other legal obligations to retain it.

Removal warrant

The Bill would amend section 23 of the Canadian Security Intelligence Service Act, which currently enables a designated judge of the Federal Court of Canada to authorize a warrant to remove any thing that had previously been installed pursuant to a warrant. The proposed amendment would expand the authority to also enable the Service to apply for a warrant to remove from any place any thing that was installed on consent. A removal warrant could be issued if the Service believes on reasonable grounds that one is required. Authorizing the Service to remove any thing from any place where it may have been installed may intrude upon a reasonable expectation of privacy and so has the potential to engage section 8.

The following considerations support the consistency of the removal warrant authority with the Charter. The purpose of a removal warrant is to support the Service generally in the fulfilment of its national security investigations. A removal warrant enables the Service to do such things as preserve investigative integrity by avoiding detection and to conserve public resources. Persons’ privacy interests could only suffer intrusion if a judge – who is independent and impartial – is satisfied of the existence of reasonable grounds to believe that a warrant is required to enable the Service to remove any thing from any place where the Service had installed it. The judge would retain a discretion whether to issue a warrant or not, and would be authorized to impose any terms and conditions that they consider advisable in the public interest.

Part 2 – Measures to counter foreign interference

Amendments to the Security of Information Act to create new foreign interference offences (section 7 of the Charter)

Bill C-70 would amend the Security of Information Act (SOIA) by enacting three new offences related to foreign interference and by amending the existing offence under section 20 of that Act.

All of the proposed offences would be punishable by a maximum penalty of imprisonment for life. The bill would also provide that a sentence for these offences would have to be served consecutive to any other sentence that is imposed on the person for an offence arising out of the same event or with any sentence that the person is subject to at the time of sentencing, provided that none of the sentences is one of life imprisonment.

Because these proposed offences give rise to the possibility of imprisonment, they engage the section 7 right to liberty and so must respect the principles of fundamental justice. The offences of foreign-influenced intimidation and political interference for a foreign entity also have the potential to engage the freedom of expression under section 2(b) of the Charter. The following considerations support the consistency of the proposed offences with the Charter.

The proposed offences target foreign interference activities that are inherently harmful to Canada’s national interests and are tailored to the objective of protecting Canada and Canadians from the harms associated with these types of activities. The amendments to the offence in section 20 of the SOIA would simplify the proof of the offence in circumstances where it is committed in Canada or implicates people with specified links to Canada, such as residing in Canada. Although it would no longer be necessary to prove intent to harm Canadian interests or the reasonable likelihood of such harm in these circumstances, the offence would be narrowed to ensure that it only captures conduct that is sufficiently serious to warrant criminal sanction (conduct that amounts to a threat, intimidation or violence). The proposed offence of committing an indictable offence for a foreign entity would capture conduct that is already the subject of a criminal prohibition, but would reflect the seriousness of engaging in such conduct for a foreign entity. The proposed offence of engaging in surreptitious conduct, or omitting to do anything, for a foreign entity would be limited in its reach by the mens rea (guilty mind) element, which would require proof that the person intended their conduct or omission to harm the safety or interests of the state, or was reckless as to whether such harm would result. The offence would not apply to legitimate activities that are not covert or deceptive even if they are carried out for the benefit of a foreign entity. The political interference offence would complement measures targeting foreign interference under the Canada Elections Act, but would apply at all times, including outside of the election period, and to all levels of government. Because the offence would only apply to surreptitious or deceptive conduct, the offence would not apply to legitimate and transparent democratic advocacy or lobbying activities by persons or foreign states that are otherwise not prohibited by law. For all of these offences, the judge would have discretion to impose a fit and appropriate sentence.

The requirement for consecutive sentences in relation to the offence of committing an indictable offence for a foreign entity also has the potential to engage rights under section 12 of the Charter in circumstances where it would be imposed in conjunction with a sentence for an offence that is subject to a mandatory minimum penalty. The following considerations support the consistency of the consecutive sentencing requirement with section 12 of the Charter.

The proposed new offence is not itself subject to a mandatory minimum penalty. A judge imposing a sentence for this offence would retain the discretion to craft a global sentence that is fit and proportionate, in keeping with the general principles of sentencing. These include the “totality principle”, which requires that the cumulative sentence imposed for multiple offences should not be unduly long or harsh and should not exceed the overall culpability of the offender.

Amendments to the Criminal Code sabotage offence (sections 2(b), 2(c) and 7 of the Charter)

The bill would also modernize the existing sabotage offence under section 52 of the Criminal Code and add two new companion offences relating to sabotage of essential infrastructure and the making, possession or distribution of devices that are designed to be used for sabotage. Prosecution for any of these offences would require the consent of the Attorney General.

The existing sabotage offence in section 52 would be amended to clarify the mens rea (guilty mind) element by specifying that the person must commit a prohibited act with intent to endanger the safety, security or defence of Canada, or to endanger the safety or security of naval, army or air forces that are lawfully present in Canada. The bill would also provide, for greater certainty, that the offence does not apply to a person who engages in a prohibited activity while participating in advocacy, protest or dissent but who did not intend to cause the specified harms.

In addition, the bill would enact a new offence of interfering, by act or omission, with access to an essential infrastructure or causing an essential infrastructure to be lost, inoperable, unsafe or unfit for use. “Essential infrastructure” would be broadly defined as public and private infrastructure, services and systems that are essential to the health, safety, security and economic well-being of persons in Canada, and would also include a non-exhaustive list of essential infrastructure. This new offence would also have a strong mens rea component. The prosecution would have to prove that the person intended to cause one of the following specified harms: endangering the safety, security or defence of Canada; endangering the safety or security of military forces lawfully present in Canada; or causing a serious risk to the health or safety of the public or any segment of the public. The offence would include the same exceptions as the main sabotage offence. Like the existing sabotage offence, this new offence would not apply to work stoppages related to labour disputes or safety concerns, or to the conduct of a person who goes near a place only to obtain or communicate information. The bill would also make it clear that interference with essential infrastructure in the context of advocacy, protest or dissent, would not be captured where the person did not intend to cause the specified harms.

The bill would also make it an offence to make, possess, distribute or sell a device for the commission of either of the two sabotage offences. The bill would define a “device” for the purpose of this offence as a mechanism or tool, including a computer program, that is designed to facilitate the commission of a sabotage offence.

Because these proposed offences give rise to the possibility of imprisonment, they engage the section 7 right to liberty and so must respect the principles of fundamental justice. To the extent that these offences have the potential to impact individuals engaged in advocacy or protest, they may also engage the freedom of expression and freedom of peaceful assembly under sections 2(b) and 2(c) of the Charter. The following considerations support the consistency of the proposed sabotage offences with the Charter.

The scope of the proposed sabotage offences is tailored to the legislative objective of protecting important Canadian interests and essential infrastructure against serious harms. The main sabotage offence and the essential infrastructure sabotage offence both incorporate a stringent guilty mind component, requiring an intent to cause specified and serious harms. Legitimate protest, advocacy and dissent, in circumstances where there is no intention to cause the specified harms, is not captured by the offences. The companion offence of making, possessing, selling or distributing a device for the commission of a sabotage offence is limited to devices that have been specifically designed for the harmful purpose of facilitating a sabotage offence. All three offences preserve the discretion of the trial judge to craft a fit and appropriate sentence.

Part 3 – Measures relating to the protection of information

Secure administrative review proceedings (sections 2(b) and 7 of the Charter)

The bill would amend the Canada Evidence Act to establish a regime of general application to govern the disclosure, protection and use of sensitive or potentially injurious information in administrative proceedings before the Federal Court or Federal Court of Appeal such as judicial reviews or statutory appeals arising from federal administrative decision-making. Sensitive information means information relating to international relations, national defence, or national security that the Government of Canada is taking measures to safeguard. Potentially injurious information means information that could injure international relations, national defence, or national security. The regime would replace all existing stand-alone regimes other than the regime under the Immigration and Refugee Protection Act. It would also apply to administrative contexts for which such procedures are not currently in place. The bill would also amend the Immigration and Refugee Protection Act to provide for the protection of information relating to international relations and national defence, to align the scope of protection under that regime with that under the Canada Evidence Act.

Under the proposed regime, if a participant in a judicial review or appeal proceeding expects that sensitive or potentially injurious information could be disclosed, notice would have to be given to the Attorney General of Canada except in specified circumstances. Unless the Attorney General authorizes disclosure of the information, the matter would be brought before the judge hearing the judicial review or appeal for an order with respect to disclosure. The judge would be authorized to appoint a special counsel if the judge is of the opinion that considerations of fairness and natural justice require it. The special counsel would have access to the evidence filed in the underlying proceeding, including any sensitive information that is undisclosed. The role of the special counsel would be to protect the interests of the non-governmental party when information and other evidence is presented, or representations are made in private and in the absence of the non-governmental party and their counsel. This may arise in the context of a motion for non-disclosure, the underlying proceeding, or an appeal. To fulfil this role, the special counsel would be able to make oral and written representations with respect to the undisclosed information. The special counsel would also be able to participate in, and cross-examine witnesses who testify during, any part of the hearing that is held in private and in the absence of the non-governmental party and their counsel. Finally, the special counsel would be able to exercise any other powers, with the judge’s authorization, necessary to protect the interests of the non-governmental party.

The judge would be permitted to authorize disclosure of the information unless the judge concludes that the disclosure would be injurious to international relations, national defence, or national security. The judge could also authorize disclosure of some or all of the information subject to any appropriate conditions. If the judge concludes that the disclosure of the information would be injurious, but that the public interest in disclosure outweighs the public interest in non-disclosure, the judge could authorize disclosure of the information or a summary of the information.

In circumstances where an order or decision has been made under the Canada Evidence Act or any other federal law that would result in the disclosure of information, the proposed regime would authorize the Attorney General of Canada to issue a certificate prohibiting the disclosure of information. The certificate could be reviewed by the Federal Court of Appeal and could be varied or cancelled if some or all of the information is unrelated to either information received in confidence from, or in relation to, a foreign entity or to national defence or national security.

The judge in the underlying judicial review or statutory appeal proceeding would be able to rely on undisclosed information to consider the merits of the proceeding and would be able to receive representations and conduct a hearing in the absence of the public, the non-government party and their counsel for that purpose. However, if the judge is of the opinion that it is impossible to conduct a fair hearing because the non-governmental party is not reasonably informed of the case, the judge could make an order granting that party an appropriate remedy other than a remedy that would result in the disclosure of the protected information.

Provisions authorizing court proceedings in the absence of the public engage the open court principle under section 2(b) of the Charter. Depending on the nature of the underlying administrative proceeding, and the types of interests that are at stake in those proceedings, the provisions authorizing restrictions on disclosure of information could also engage rights under section 7, or potentially other provisions, of the Charter. The following considerations support the consistency of the proposed regime with the Charter. 

Like other Charter rights, the open court principle is not absolute and may be limited where there are pressing state objectives. Protecting sensitive information, the disclosure of which could harm international relations, national defence or national security is a recognized and important state interest. The proposed regime is tailored to limit the use of proceedings from which the parties and public are excluded to only those situations where such measures are necessary to protect sensitive information. The responsibility for assessing whether the disclosure of the information could lead to the listed harms would lie with the presiding judge. Most importantly, the provisions that allow proceedings to be conducted in the absence of the non-governmental party and their counsel or the public only apply to those portions of the proceedings that involve sensitive information. The remainder of the hearing would be open to the public and the applicant. Any summaries of evidence provided to the applicant would become part of the publicly available court record. The proposed regime incorporates procedural safeguards and allows for judicial discretion to ensure the fairness of proceedings. Specifically, the authority to appoint a special counsel – whose role it would be to protect the interests of the non-governmental party – would help to ensure the fairness of proceedings that are held in the absence of the non-governmental party and their counsel. Another important safeguard is the judge’s discretion to authorize the disclosure of all or part of the potentially injurious information, or a summary of it, where the public interest in disclosure outweighs the public interest in non-disclosure. If the judge is of the opinion that they are unable to conduct a fair hearing because the non-governmental party is not reasonably informed of the case, the judge retains the discretion to grant an appropriate remedy. The proposed new regime is modelled closely on existing regimes under the Canada Evidence Act and the Immigration and Refugee Protection Act that have been upheld by the Supreme Court of Canada under the Charter. 

Interlocutory Appeals (sections 7 and 11(d) of the Charter)

Under the existing provisions of the Canada Evidence Act, judicial orders of disclosure or non-disclosure made by both the Federal Court and the trial court dealing with information relating to public interest privilege (section 37) or national security privilege (section 38) can be appealed while the underlying criminal trial is put on hold. Bill C-70 would amend the Canada Evidence Act to provide that any decision not to disclose specified public interest or national security information would only be reviewable after the conclusion of the trial in the context of an appeal from conviction. The court would retain the discretion to allow an appeal to be brought before conviction in exceptional circumstances. Given that the damage caused by any disclosure of the information is irreparable, the Crown would continue to be able to appeal an order to disclose information on an interlocutory basis. Because the proposed provisions would apply to the prosecution of offences that carry a risk of imprisonment, they engage the right to liberty under section 7 of the Charter and fair trial rights protected under sections 7 and 11(d) of the Charter. The following considerations support the consistency of these provisions with the Charter.

The principles of fundamental justice do not generally include a right of appeal. Conducting the appeal of any non-disclosure order only after the conclusion of the trial would contribute to a better use of court resources and simplify the trial process, and most importantly, could prevent delays that affect the right to having a trial within a reasonable time. The trial judge would retain discretion to permit an appeal before conviction in exceptional circumstances.

Sealing Orders (Section 2(b) of the Charter)

Section 487.3 of the Criminal Code gives a judge the power to make an order denying access to and prohibiting the disclosure of any information that was presented to the court to obtain a warrant. Currently, subsection 487.3(2) lists several factors that a judge can consider when determining whether to make the sealing order. Bill C-70 would expand the list of factors to include consideration of whether disclosure of the information would be injurious to international relations, national defence or national security. Because the bill would expand the circumstances in which a sealing order could be granted, it limits the public accessibility of information supporting a warrant application and engages the open court principle under section 2(b) of the Charter.

The following considerations support the consistency of these provisions with the Charter. Like other Charter rights, the open court principle is not absolute and may be limited where there are pressing state objectives. Protecting sensitive information, the disclosure of which could harm international relations, national defence or national security is a recognized and important state interest. The judge would have the responsibility for assessing whether the release of the information could lead to the listed harms. To make the sealing order, the judge would have to be satisfied that the injury to international relations, national defence or national security outweighs the interest in access to the information.

Part 4 – Enactment of the Foreign Influence Transparency and Accountability Act

Part 4 of the bill would enact new legislation that would seek to counter efforts by foreign states or powers and their proxies to influence, in a non-transparent manner, political and governmental processes in Canada. Such efforts have negative systemic effects throughout the country, endangering democracy, sovereignty and core Canadian values, and have a particularly negative effect on certain communities in Canada.

Reporting of arrangements with foreign principals (Section 2(b) of the Charter)

The proposed Act provides for the appointment of a Foreign Influence Transparency Commissioner. Persons will be required to report to the Commissioner arrangements they have with foreign principals to carry out activities in relation to a political or governmental process in Canada. The political or governmental processes in question include any proceeding of a legislative body, the development of a legislative proposal, the development or amendment of any policy or program, the making of a decision by a public office holder or government body, including the awarding of a contract, the holding of an election or referendum and the nomination of a candidate or the development of an electoral platform by a political party. Specified information about arrangements in relation to influencing such processes will be disclosed on a public registry that the Commissioner will be tasked with establishing. The requirement that individuals and entities report to the Commissioner and have registered their arrangements with foreign principals in order to lawfully express themselves on their behalf has the potential to affect freedom of expression.

The following considerations support the consistency of the bill with the Charter. To the extent that the expression affected by the reporting requirements may be attributed to the foreign state, foreign states are not rights-holders under the Charter. Generally, governments must respect rights and freedoms; they are not protected by them. To the extent that freedom of expression may be otherwise engaged, the objective of protecting Canadian sovereignty and democracy from foreign influence is of fundamental importance. Preventing foreign states from covertly influencing Canadian politics and governance by requiring transparency from individuals and entities who make arrangements with them to try to influence political and governmental processes, may be considered a rational means of furthering this objective. The bill does not impose restrictions on the content of expression, nor prohibit expression outright. Rather, the arrangements to engage in communications are only subject to administrative requirements of registration. Further, as persons have 14 days to register an arrangement, the freedom to engage in last-minute or unplanned communications is not limited by the registration requirements.

Power to summon individuals (section 7 of the Charter)

Under the proposed Act, the Commissioner would be granted investigative powers for the purpose of ensuring compliance with the Act, including the power to summon and enforce the attendance of persons before the Commissioner and compel them to give oral or written evidence on oath or solemn affirmation, and the power to compel persons to produce any documents or other things that the Commissioner considers relevant for the investigation. The power to summon individuals to answer questions under oath has the potential to deprive them of their liberty, and if so would need to accord with the principles of fundamental justice, including the right to silence and the principle against self-incrimination.

The following considerations support the consistency of this power with the Charter. The proposed investigative powers are routine in Canadian law, and similar powers have been upheld by the courts as consistent with the Charter. The purpose of the investigative powers is to ensure compliance with the registration scheme, and not to further a penal investigation. Further, the bill would provide protection to persons who have been summoned against the use of information they provide as evidence against them in subsequent proceedings.

Offences (section 7 of the Charter)

The bill also proposes several new offences that include imprisonment as a possible sentence, including the offence of failing to report the required information to the Commissioner. As such offences have the potential to deprive offenders of their liberty, they must accord with the principles of fundamental justice.

The following considerations support the consistency of the proposed offences with the Charter. The offences support the overall purposes of the Act both directly, by prohibiting the non-disclosure of the specified information to the Commissioner, as well as indirectly, by prohibiting the provision of false or misleading information to the Commissioner and the obstruction of the Commissioner in the performance of their duties. In reviewing the relevant measures, the Minister of Justice has not identified any potential inconsistencies between the offence provisions and the principles of fundamental justice.

Collection and disclosure of information (section 8 of the Charter)

The requirement that individuals and entities disclose their private arrangements with foreign principals to the Commissioner for further disclosure to the public has the potential to interfere with a reasonable expectation of privacy.

The following considerations support the consistency of the bill with section 8 of the Charter. The objective of protecting Canadian sovereignty and democracy from foreign influence is of fundamental importance. Preventing foreign states from covertly influencing Canadian politics and governance by requiring transparency from individuals and entities who make arrangements with them to try to influence political and governmental processes, may be considered a reasonable means of furthering this objective. The information that will be required to be disclosed to the Commissioner will be specified in regulations. That information will have to be relevant to furthering the purposes of the Act. The same is true of the information that the Commissioner will be required to disclose to the public via the registry.

The Commissioner’s investigative power to order persons to produce documents also has the potential to interfere with a reasonable expectation of privacy. The Commissioner’s investigative powers are routine in Canadian law, and similar powers have been upheld by the courts as consistent with the Charter. The purpose of the investigative powers is to ensure compliance with the registration scheme, and not to further a penal investigation. Any order to produce documents must be relevant to this purpose.

The proposed Act would provide some protection to the information required to be reported to the Commissioner as well as information the Commissioner may obtain in the course of investigations. The Act would require the Commissioner, and any person acting on the Commissioner’s behalf or under their direction, not to disclose – with limited exceptions – any information that comes to their knowledge in the performance of their duties and functions under the Act.

Administrative monetary penalties (section 11 of the Charter)

The bill would make contravention of certain provisions of the proposed Act a violation, for which administrative monetary penalties could be imposed. The Commissioner may issue a notice of violation to a person where they have reasonable grounds to believe that a person has committed a violation. The notice of violation must identify the nature of the violation, and the amount of the monetary penalty, as well as the right of the person to make representations to the Commissioner. Depending on the amount of the monetary penalties, which would be specified in regulations, and if they are assessed for a punitive purpose, the Bill could potentially affect section 11 rights.

The following considerations support the consistency of the provisions with the Charter. The proceedings leading to the imposition of a monetary penalty would be administrative in nature. As the Bill specifies, the purpose of imposing a penalty would be to promote compliance with the proposed Act, and not to “punish”. There is no mandatory minimum monetary penalty imposed by the Bill. In this context, the proposed approach does not lead to the imposition of “true penal consequences” for the purposes of section 11 of the Charter.