6. Questions and Answers – Part 2

• Table of Contents

Qs & As – Bill C-70, An Act to amend the Security of Information Act (SOIA), the Criminal Code and the Canada Evidence Act (CEA)

Contents

• What changes are proposed to the Security of Information Act (SOIA)?
• Why are the changes needed?
• What do partners and stakeholders say about the proposed changes?
• Do our allies have similar provisions?
• How will the changes impact Charter rights?
• Would the new offences prohibit legitimate protest, political activities or expression?
• When do these changes come into force?
• Why are we changing the name of the Security of Information Act?
• Why are we adding DND and the CAF to the list of organizations that can permanently bind individuals to secrecy?
• Why were the words “accusation” and menace” removed from s.20 and why are we adding “intimidation”?
• Why are we targeting “attempts” to induce Canadians using intimidation, threats or violence?
• Is there precedent for laws that apply to actions and/or people outside of Canada (extra-territorial application)?
• Why should the Canadian law against foreign-influenced and terrorist-influenced threats or violence apply to individuals outside of Canada?
• Why are we creating a supplementary offence where existing offences are committed at the direction of, or for the benefit of, a foreign entity?
• Why should sentences under this provision be served consecutively and not concurrently?
• What constitutes surreptitious and deceptive conduct under s.20.3?
• What do we mean by “reckless as to whether their conduct or omission is likely to harm Canadian interests”, in the “engaging in surreptitious or deceptive conduct” offence?
• Can an omission form the basis of a crime? Can you provide examples?
• What harm is the new offence of interference with democratic processes intended to capture?
• Why didn’t you wait for the results of the Public Inquiry into Foreign Interference before creating this offence?
• Why do we include “educational governance” in our political interference offence?
• What levels of “governance” are included in the definition of “educational governance”- is this the board of governors only? Does it include other departmental-level structures?
• What are some examples that illustrate how this offence might apply to a university?
• Why does the definition of “public office holder” include members of band councils, aboriginal governments or institutions and officers and employees of entities that represent the interests of First Nations, Innuit or Metis people?
• Why does the law target seeking to “influence” public office holders? Why not focus on more significant actions like “interfering with” public office holders?
• Do these amendments overlap with the proposed changes to the Canada Elections Act?
• What changes are proposed to the preparatory acts beyond an increased penalty (s.22.1)?
• Do the changes to the SOIA address so-called “Overseas Police Stations”?
• Australia’s first charges under their new foreign interference laws have been controversial. Could the same thing happen in Canada?
• What changes are proposed to the Criminal Code?
• Why are we adding the requirement of “intent to endanger” to s.52(1)? What does it change?
• How is the mental element of the sabotage offence changing?
• How do we ensure that people engaged in advocacy, protest or dissent without the intent to commit sabotage are not captured by the offence?
• Is the list of “essential infrastructure” in s.52.1 exhaustive or are these just examples?
• Is there overlap between s.52 (sabotage) and s.52.1 (sabotage – essential infrastructure)?
• Why are we not creating a new offence for sabotage done on behalf of a foreign entity?
• Would the sabotage offence apply to interference with the construction phase of essential infrastructure?
• Why do we need a specific offence for “devices” related to sabotage?
• What “devices” is this offence intended to capture?
• Why does the offence include devices used “in part” to carry out sabotage?
• Why is the Attorney General’s consent required before proceedings are instituted under this provision?
• Do these proposed changes align with the legislative reforms being undertaken by our allies?
• How is ‘sabotage’ defined when it comes to the proposed amendments in the Criminal Code?
• Are there any safeguards in the sabotage offence to ensure protests – for example, in the context of a labour dispute – are still lawful?

What changes are proposed to the Security of Information Act (SOIA)?

• The creation of a new foreign interference (FI) offences in the SOIA to address new types of emerging threats, specifically:
  1. The commission of an indictable offence at the direction of, for the benefit of, or in association with of a foreign entity;
  2. Knowingly doing anything, or omitting to do any covert or deceptive act at the direction of, for the benefit of, or in association with of a foreign entity, knowing that (or being reckless about whether) it would cause harm to Canadian interests.
  3. Knowingly doing anything, or omitting to do any covert or deceptive act at the direction of or in association with a foreign entity, that interferes with democratic processes
• Amending section 20 of the SOIA to make proving that offence (foreign influenced or terrorist-influenced threats or violence) more straight forward, i.e. by removing the requirement that there be proof that it actually helped the foreign state or harmed Canada.
• Amending section 22 of the SOIA (preparatory acts offence) to increase the maximum penalty from no more than two years to five years if in connection with a SOIA offence that is punishable by a term of imprisonment of ten years or more, and to have it capture more threatening conduct by applying it to additional SOIA offences.
• Creating a new offence of engaging in conduct for the benefit of a foreign entity, where the conduct is covert or involves deception, and where the person intends that the conduct will influence a political or governmental process, or will influence the exercise of a democratic right or duty, in connection with Canada. This offence would complement the Canada Elections Act.

Why are the changes needed?

• The tools and techniques employed by foreign states and actors to influence Canadians have grown increasingly sophisticated in recent years. The proposed changes demonstrate Canada’s commitment to countering foreign interference and punishing those who seek to subvert our democratic processes.
• They will significantly increase Canada’s ability to counter and to punish foreign interference by creating new offences to address emerging threats and increases the penalties for existing offences.
• The amendments are intended to facilitate law enforcement investigations and to allow prosecutors to pursue criminal charges, and to use related investigative tools that already exist in the Criminal Code, against people who are engaged in or facilitating FI in Canada, by ensuring that there are no gaps in the law.
• Increasing the penalties will also advance the criminal law goal of deterrence by sending a strong message that Canada will not tolerate foreign interference.

What do partners and stakeholders say about the proposed changes?

• The Government received broad support for the creation of new offences under the SOIA that specifically target FI activities. Stakeholders emphasized the need to ensure that the new measures effectively target the prohibited activities and the actors who undertake them.
• Some stakeholders suggested that treating foreign interference as an aggravating factor in sentencing would be sufficient, but others were concerned about abuse of process and other such risks created by introducing such a serious aggravating factor.
• Stakeholders emphasized the need to ensure that new offences can be proven and effectively prosecuted.
• Certain stakeholders expressed concern about the new provisions capturing legitimate activities and the impact on vulnerable communities who already face systemic discrimination in the criminal justice system.

Do our allies have similar provisions?

• Yes. For example, allies like Australia and the United Kingdom have recently amended and strengthened their own FI laws. That work included creating new offences to deal with the modern threat environment, such as improved espionage and sabotage laws. Australia has also implemented a law addressing interference with political rights and duties.
• In the context of the sabotage offence in the Criminal Code, Canada’s allies, such as Australia and the United Kingdom, have pursued reforms that focus on clarifying the mental element required for the offence, adding an FI element, and in the Australian context, what infrastructure is captured by their sabotage offence.

How will the changes impact Charter rights?

• [Redacted].
• In fact, the proposed changes will positively impact Charter rights by specifically entrenching protections for freedom of speech and freedom of assembly lawful protest.

Would the new offences prohibit legitimate protest, political activities or expression?

• The proposed offences under the Security of Information Act 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 offences would not prohibit people from engaging in otherwise lawful activities for the benefit of a foreign entity, provided that those activities are carried out in a transparent manner.
• The proposed sabotage offences under the Criminal Code are tailored to the legislative objective of protecting important Canadian interests and essential infrastructure against serious harms. These offences incorporate a stringent ‘guilty mind’ component, requiring an intent to cause specified and serious harms. They expressly exclude work stoppages related to labour relations or workplace safety, along with legitimate protest, advocacy and dissent in circumstances where there is no intention to cause the serious harms set out in the legislation.

When do these changes come into force?

• The coming into force provision proposes that all amendments come into force 60 days after Royal Assent.

Why are we changing the name of the Security of Information Act?

• The proposed name change is intended to reflect the fact that the Act is no longer focused exclusively on protecting information, it now includes measures designed to counter foreign interference. The new name, the Foreign Interference and Security of Information Act, reflects that change.

Why are we adding DND and the CAF to the list of organizations that can permanently bind individuals to secrecy?

• Certain offices and individuals at the CAF work with secret information. The current wording of the SOIA does not permit the CAF to designate groups within their organizations as permanently bound to secrecy. Instead, they are required to permanently bind employees individually, a time-consuming process. This change will promote efficiency by allowing the CAF to permanently bind groups of individuals, as we do with other public servants.

Why were the words “accusation” and “menace” removed from s.20 and why are we adding “intimidation”?

• Adding the term “intimidation” to the existing list of actions in s.20 (“attempts to induce, by threat or violence”) clarifies the meaning of the section and ensures that it goes to the heart of the harm it seeks to deter. The change ensures that the section captures actions used to induce (or seek to induce) harm to Canadian interests or increased capacity of a foreign entity or terrorist group to harm Canadian interests. The meaning of “menace” and “accusation” in this context are included within the concepts of “intimidation, threat or violence”.

Why are we targeting “attempts” to induce Canadians using intimidation, threats or violence?

• The practice of targeting “attempts” to induce using intimidation, threats or violence is long-standing in the Criminal Code. It reflects the fact that the harm is caused by the attempt to induce and is not contingent on whether that attempt is successful.

Is there precedent for laws that apply to actions and/or people outside of Canada (extra-territorial application)?

• Yes. There are many examples of laws that apply to people outside of Canada. Sections 20(2) and 26 of the current Security of Information Act apply to actions that take place outside of Canada already. Similarly, s.7 of the Criminal Code specifies a number of offences over which Canadian courts would have jurisdiction even though they were committed outside of Canada.

Why should the Canadian law against foreign-influenced and terrorist-influenced threats or violence apply to individuals outside of Canada?

• In order to effectively protect Canadians from foreign and terrorist-influenced threats or violence the provision must be sufficiently broad to capture all situations where either the person making threats or the victim of the threats has sufficient ties to Canada.
• If the provision only applied when both parties are in Canada it would not be effective in protecting Canadians from threats or violence that originate outside of Canada.

Why are we creating a supplementary offence where existing offences are committed at the direction of, or for the benefit of, a foreign entity?

• The proposed “supplementary” offence is intended to emphasize the seriousness of committing criminal offences on behalf of foreign states or actors. It reflects the proposition that while the commission of any indictable offence is a serious matter, it is deserving of greater condemnation and penal sanctions when done to benefit a foreign state.
• There’s precedent for this kind of supplementary offence in existing nuclear terrorism (s.7(3.74) Criminal Code) and proceeds of crime-focused provisions (462.3 Criminal Code).

Why should sentences under this provision be served consecutively and not concurrently?

• Sentences under this provision should be served consecutively and not concurrently to emphasize the seriousness of the offence.
• Crimes committed with the intent to interfere with Canada’s democracy are particularly damaging to Canadian society and, therefore, require significant penalties to both deter would-be perpetrators and punish foreign interference. This is consistent with the approach we have adopted with respect to terrorism and organized crime offences.

What constitutes surreptitious and deceptive conduct under s.20.3?

• Neither term is defined in the SOIA so their plain meaning applies:
  Surreptitious means:
  1. done, acquired, etc, in clandestine or by improper means
  2. operating by stealth, or
  3. characterized by fraud or misrepresentation of the truth
• In 2010 the Security Intelligence Review Committee (SIRC) said that “surreptitious”, connotes some element of underhanded behaviour.
• Deceptive means: “tending or having power to cause someone to accept as true or valid what is false or invalid; tending or having the power to deceive”. Synonyms include deceitful.
• Examples include knowingly facilitating the entry into Canada of agents of a foreign entity who are posing as tourists. The offence does not apply to legitimate activities performed for the benefit of a foreign entity that are not covert or deceptive, for example, promoting a foreign country’s industry, language, or culture, or diplomatic activities, or transparent lobbying for a foreign country’s interests.

What do we mean by “reckless as to whether their conduct or omission is likely to harm Canadian interests”, in the “engaging in surreptitious or deceptive conduct” offence?

• Recklessness will be found where a party, aware that there is danger that their conduct could bring about the prohibited result, nevertheless persists, despite the risk. Essentially, it is satisfied by one who sees the risk and takes the chance. It is in this sense that the term "recklessness" is used under criminal law, and it is clearly distinct from the concept of civil negligence.

Can an omission form the basis of a crime? Can you provide examples?

• The new proposed s.20.3 offence would address “omissions” as well as actions:
  • 20.3 (1) Every person commits an indictable offence who, at the direction of, for the benefit of or in association with, a foreign entity, knowingly engages in surreptitious or deceptive conduct or omits, surreptitiously or with the intent to deceive, to do anything if the person’s conduct or omission is for a purpose prejudicial to the safety or interests of the State or the person is reckless as to whether their conduct or omission is likely to harm Canadian interests.
• For this new offence, an example might include failing to search a compartment that one has a duty to search, in order to surreptitiously aid the proxy of a foreign entity who is attempting to smuggle something into the country.

What harm is the new offence of interference with democratic processes intended to capture?

• Canada’s democratic processes are at the core of our society. Attempts by foreign actors to exert influence on Canadian democratic processes have the potential to undermine trust in government generally and in the processes themselves. The new provisions seek to protect Canada’s critical institutions against political influence from foreign actors.
• The offences are intended to capture acts that are done by proxies working with foreign states.
• This offence can be distinguished from those in the Canada Elections Act in several ways:
  • They focus on those working with foreign states, but not private foreign actors.
  • They focus on surreptitious or deceptive conduct.
  • Unlike some Canada Elections Act offences, they apply at any time.
  • They apply to activities outside elections, including nomination contests.
  • They apply at a sub national level including provincial, territorial, municipal indigenous governments. They also include school boards and the governance of post-secondary institutions.

Why didn’t you wait for the results of the Public Inquiry into Foreign Interference before creating this offence?

• The Government of Canada announced the launch of public and stakeholder consultations to inform the design of a registry in March 2023, well before the announcement of the Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions. We’ve heard loud and clear from Canadians, including representatives from diverse ethnic and cultural backgrounds, that action is urgently needed now to bolster our counter-foreign interference toolkit. Introducing this Bill is a much-needed step in the right direction, and does not preclude the work to be undertaken as part of the Public Inquiry.
• As its name suggests, the ongoing Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions is focused on examining and assessing interference by China, Russia and other foreign states and non-state actors in Canada’s 43^rd and 44^th general elections. It is more narrow in scope than the consultations.
• On November 24, 2023, the Government of Canada also launched public consultations on the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act. The purpose of these consultations was to gather feedback from Canadians about potential amendments to further bolster Canada’s counter-foreign interference toolkit.

Why do we include “educational governance” in our political interference offence?

• In defining what is meant by political processes we sought to address surreptitious or deceptive interference at all levels of government and to protect institutions that are particularly susceptible to foreign interference. For that reason, in addition addressing interference with provincial, territorial, indigenous and municipal governments, the offence defines “educational governance” broadly to include both school board elections and the governance of post-secondary institutions.
• Individuals and states seeking to interfere in Canadian governance do not focus exclusively on federal, provincial and municipal governments. Educational leaders and school boards are also subject to foreign interference and deserve similar protection.

What levels of “governance” are included in the definition of “educational governance”- is this the board of governors only? Does it include other departmental-level structures?

• The intention of the provision is to address high-level decision making by what would be officials and committees considered to be the board of governors, executive and management level of the institution.
• Ultimately, it would be for a judge to decide the scope of the term “educational governance” on the facts of the case.
• Any prosecution of this offence, including the laying of a charge, would require the consent of the Attorney General of Canada, who would be required to weigh the public interest in such a prosecution. That public interest evaluation would involve an assessment of the impact on the independence of the University.

What are some examples that illustrate how this offence might apply to a university?

• The intention of the provision is to address high-level decision making by what would be officials and committees considered to be the board of governors, and the executive and management level of the institution.
• The conduct involved must be surreptitious (secret or hidden, with the intent to avoid detection), or deceptive (with an intent to deceive others). The conduct must be directed by a foreign state, or done in association with that state (there was collusion, an agreement, or a demonstrable understanding between the proxy and the foreign state). It is insufficient that the activity was done merely to benefit the foreign state.
• For example: someone, acting in association with a foreign state, surreptitiously coerces a university president to allow a foreign institute to establish itself on a university campus in order to influence university decision making. The institute is secretly a front for the intelligence agency of the foreign government.

Why does the definition of “public office holder” include members of band councils, aboriginal governments or institutions and officers and employees of entities that represent the interests of First Nations, Innuit or Metis people?

• Individuals and states seeking to interfere in Canadian governance do not focus exclusively on federal, provincial and municipal governments. The amendments seek to protect all orders of government from undue influence. Indigenous and First Nations leaders are also subject to foreign interference and deserve the same protections.
• A similar approach has been taken in the existing Lobbying Act and the new Foreign Interference Transparency and Accountability framework included in this Bill.

Why does the law target seeking to “influence” public office holders? Why not focus on more significant actions like “interfering with” public office holders?

• The offence is more specific than attempting to “influence”. It targets foreign actors seeking to exert influence in our democracy using surreptitious or deceptive means, a serious and concerning issue.
• Our democracy is harmed by attempts to influence public office holders, regardless of whether they’re successful, and so the offence targets attempts to influence and not just successful interference.

Do these amendments overlap with the proposed changes to the Canada Elections Act?

• While the proposed changes to the Canada Elections Act are also intended to combat foreign interference, they do not focus specifically on foreign states and they only apply to the Federal Government. The proposed amendments to the Security of Information Act target foreign states and apply to all levels of government.
• Australia took a similar path, despite having elections legislation at both the federal and state levels.

What changes are proposed to the preparatory acts beyond an increased penalty (s.22.1)?

• The proposed amendments expand the scope of preparatory acts to include more offences, including the new offences, and increase the penalty for preparatory offences.

Do the changes to the SOIA address so-called “Overseas Police Stations”?

• Attempts by foreign actors to influence Canadians using intimidation, threats or violence are already addressed in the criminal law.
• Amendments in this Bill will mean that the Foreign Interference and Security of Information Act can apply even if there is no evidence that the intimidation or threats were:
  1. for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or were
  2. reasonably likely to harm Canadian interests.
• The amendments will also allow the law to be applied where one or both parties are outside of Canada and where the subject of the threat is a family member located outside of Canada.
• Other amendments to the Act will create additional offences and penalties for any other offence that is committed by anyone trying to operate a so-called overseas police station.
• For example, personating a police office is an offence under s.130 of the Criminal Code and if it is done in connection with a foreign entity, the proposed provisions in this Bill would add a significant sentence to be served after the sentence from the underlying criminal act is completed. Any other criminal offence, including criminal harassment of visa fraud, committed in connection with establishing such a police station on behalf pf a foreign state would also trigger the proposed offence and additional penalties.

Australia’s first charges under their new foreign interference laws have been controversial. Could the same thing happen in Canada?

• MP Arya may wish to discuss recent news stories about Australia’s first prosecution under it’s new foreign interference laws – the Duong case. The NYT and MP Arya suggest that Duong is a case of prosecutorial overreach and xenophobia (further details below)
  • Who Australia Caught When It Went Looking for Chinese Spies – The New York Times (nytimes.com)

Do you think it is possible that such an outcome could happen in Canada under this proposed law?

• I do not want to comment on a case that occurred in Australia without knowing all of the facts.
• However, I can say that we have benefited from having seen the experiences of the Australian legislation, and the bill reflects efforts to learn from the experiences of Australia. In particular, some of the definitions in the Australian legislation have been criticized as being vague and not providing sufficient detail to guide law enforcement and prosecutors. The design of the current Bill was informed by these lessons.
• Two particular features of our proposed offences are of note:
  • First of all, no prosecution can proceed without the consent of the Attorney General who must ensure that there is sufficient evidence of all of the elements, and that the prosecution is not tainted by extraneous biases or by xenophobia.
  • Secondly, the offence of interference with a political process requires that not only must the activity be surreptitious or deceptive, it must also be directed by, or coordinated with, the foreign state. What that means is that if someone does something on their own initiative, without the involvement of a foreign state, the offence will not apply.
• Background:
  • The New York Times has reported that “The first case tried under Australia’s foreign interference laws has raised tough questions about the breadth of the regulations.”
  • The prosecution involved a $25,000 donation to a community hospital, which, according to prosecutors, “would at some point have become the basis for a pro-China pitch to a local member of Parliament”.”
  • They report that Australian police officers asked the man what he meant when he said that involving an Australian government minister in a charity event could benefit “us Chinese”.
  • The case turned in part on whether the accused individual was talking about mainland China and the Chinese Communist Party, or the local Australian Chinese community.
• Facts that may not be included in the question:
  • The accused was found guilty by a jury.
  • The NYT reports that some of the evidence was heard by the jury in camera and is unknown to external observers.
  • There was evidence that the accused had bragged about his close relationship with PRC officials and a Chinese intelligence officer.
  • There was evidence that the accused provide the PRC with photos of members of the Falun Gong in Australia.
  • The NYT explained that he often acted without instruction from the PRC.

What changes are proposed to the Criminal Code?

• The proposed amendments to the Criminal Code will modernize Canada’s sabotage offence to reflect modern realities by:
  • Clarifying that the offence applies to public and private infrastructure that is essential to the health, safety and security and economic well-being of Canadians.
    • The offence covers both Provincial and Federal infrastructure.
  • Modernizing the language around the intent required to commit the offence
  • Adding an offence specific to devices used to commit sabotage
  • Entrenching protections for Charter rights like freedom of expression and assembly in the Criminal Code.

Why are we adding the requirement of “intent to endanger” to s.52(1)? What does it change?

• The proposed change is to remove the words “for a purpose prejudicial to” in the existing section and replace it with the words “with the intent to endanger” the safety, security or defence of Canada or the safety or security of foreign forces lawfully present in Canada. The intent is to modernize the language of the section (drafted in 1951) to reflect the current context.
• It clarifies that the issue is the intent to harm Canadian (or allied) interests and not simply prejudice to those interests.

How is the mental element of the sabotage offence changing?

• Canada’s sabotage offence in section 52 of the Criminal Code currently criminalizes “prohibited acts,” that are done “for a purpose prejudicial to (a) the safety, security or defence of Canada, or (b) the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada.” This wording has remained largely unchanged since the offence’s creation in 1951.
• The mental element for this offence is “for a purpose prejudicial”. The sabotage offence, and its mental element, have received little judicial comment. That said, Courts have generally interpreted such provisions as subjective – meaning that intention or knowledge suffice – as they’ve done in other areas of the criminal law.
• Nevertheless, the mental element aspect of the sabotage offences has been modernized to more clearly reflect this by using the word “intention”.

How do we ensure that people engaged in advocacy, protest or dissent without the intent to commit sabotage are not captured by the offence?

• The mental element of the offence – the requirement of intent to endanger the safety, security or defence of Canada, its allies or members of the public – ensures that people without the intent to cause this kind of harm are not captured by the offence.
• For greater certainty the new offences also clarify that activities relating to advocacy, protest, and dissent do not constitute sabotage where there is no intent to commit endanger the safety, security or defence of Canada, its allies, or members of the public.

Is the list of “essential infrastructure” in s.52.1 exhaustive or are these just examples?

• They are just examples. The definition at s.52.1 introduces the list by saying “including the following” which clearly indicates that other infrastructure may be found to be essential.

Is there overlap between s.52 (sabotage) and s.52.1 (sabotage – essential infrastructure)?

• Yes, there is the possibility of overlap. For example, intentional interference with essential infrastructure protected by s.52.1 could also constitute interference with the safety and security of Canada under s.52.
• They will not always overlap. For example, interfering with health services infrastructures with the intent to cause a serious risk to the health of the public is a violation of s.52.1 but does not engage s.52(1) if it does not impact the safety, security or defence of Canada (or allied forces lawfully present in Canada).

Why are we not creating a new offence for sabotage done on behalf of a foreign entity?

• Because the new offence of committing an indictable offence in connection with a foreign state (s.20(1) of the FISOIA) will capture sabotage done on behalf of a foreign state or actor or a terrorist group.

Would the sabotage offence apply to interference with the construction phase of essential infrastructure?

• The definition of “essential infrastructure” in the proposed s. 52.1(2) of the Criminal Code is limited to “a facility or system, whether public or private, that provides or distributes services that are essential to the health, safety, security or economic well-being of persons in Canada, including the following:…”
• The active tense used in the definition means that the infrastructure must be complete, and in place, for the offence to apply.
• However, depending on the facts, attempts to interfere with the construction of essential infrastructure could constitute the offence of mischief. Other offences might also apply.

Why do we need a specific offence for “devices” related to sabotage?

• The separate provision specific to “devices” is intended to capture people who sell these devices on the black market but do not themselves engage in sabotage. The specific offence was required to ensure that the law effectively deters the facilitation of sabotage via the sale of devices (electronic or physical).

What “devices” is this offence intended to capture?

• The term “device” is not defined in this part of the Criminal Code other than the clarification at s.52.2(3) that it includes computer programs (as defined at s.342.1(2) of the Code).
• As a result, the plain meaning of the term applies: “tool or implement, especially used to carry out a particular function”. Examples include devices to copy security passes or disrupt cell phone towers.
• It should be noted that “device” in this context includes both physical and mechanical devices and is not limited to electronic / computer-related devices.

Why does the offence include devices used “in part” to carry out sabotage?

• In order to ensure that the offence captures devices with legitimate functions that can be modified or re-purposed, in whole or in part, for use in sabotage. This would include, for example, an incomplete electronic program, piece of malware, or other set of instructions that requires additional customized code.
• Including components of devices is consistent with the definition of device in s.327(4) of the Criminal Code, the section concerned with “possession of device to obtain use of telecommunications facility or service”.

Why is the Attorney General’s consent required before proceedings are instituted under this provision?

• The AG’s consent is already required for the offences under the Security of Information Act, including the new offences.
• Acts of sabotage carry a significant social cost and are fundamentally contrary to the public interest. Requiring AG consent for charges to be laid ensures that the public interest in these offences is considered early in the process and that the offence is only laid in appropriate circumstances.

Do these proposed changes align with the legislative reforms being undertaken by our allies?

• In the context of the sabotage offence in the Criminal Code, Canada’s allies, such as Australia and the United Kingdom, have pursued similar reforms that focus on clarifying the mental element required for the offence, adding a foreign interference element, and in the Australian context, what infrastructure is captured by their sabotage offence.

How is ‘sabotage’ defined when it comes to the proposed amendments in the Criminal Code?

• The Criminal Code already contains an offence for sabotage, which criminalizes conduct that jeopardizes the safety, security or defence of Canada, or that of military forces of other states that are lawfully in Canada (Section 52).
• Sabotage can also be described as various activities that target infrastructure, electronic networks, systems, property, and other things, carried out with the goal of endangering a country’s safety and security interests or that of the public. A proposed additional offence would make it clear that interference with the essential infrastructure that causes harm to people in Canada is also a sabotage offence. This could include, for instance, intentionally interfering with, abandoning, or limiting access to essential infrastructure in order to cause its loss or make it inoperable, unsafe or unfit for its purpose.

Are there any safeguards in the sabotage offence to ensure protests – for example, in the context of a labour dispute – are still lawful?

• The sabotage offence already contains exemptions from criminal liability, such as work stoppages related to labour disputes or safety concerns.
• A person who goes near a place only to obtain or communicate information is likewise exempted from this offence.
• The proposed offence also makes it clear that no person commits an offence if they interfere with access to an essential infrastructure while participating in advocacy, protest or dissent, but they do not intend to cause serious harms to Canada or people in Canada. As a result, protestors who interfere with essential infrastructure without the intent to cause serious harm to Canada or Canadians.

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