Fortifying national security on Canadian soil and in the ether: Everything you need to know about Bill C-70

Foreign interference involves a spectrum of tactics employed by foreign state and non-state actors to manipulate, disrupt or influence Canadian affairs. In the context of democratic elections, such interference can manifest in different ways: disinformation campaigns, cyberattacks targeting critical infrastructure and illicit funding of political activities. In an era where the boundaries of influence blur across digital landscapes, the sanctity of democratic processes faces unprecedented threat.

The blunt force of Canada's national security toolbox is limited when it needs to respond to foreign interference and foreign influence. As techniques evolve and non-state actors become more sophisticated, so too should our tools. In this regard, Canada is far behind some of its Five Eyes partners. One such example is that Canada's spy agency is lawfully precluded from sharing intelligence with non-cleared individuals. This is in contrast with threat-intelligence exchanges in the United States between American corporations and certain security and intelligence bodies (see here).

Introducing Bill C-70

However, on May 6, 2024, the Canadian Government introduced Bill C-70, "An Act to amend the Canada Elections Act, the Protecting the Electoral Process Act, and the Public Service Employment Act." The Bill is designed to respond to threats of foreign interference in a number of ways including but not limited to the introduction of new criminal offences and changes to Canada's spy agency, CSIS (hereinafter "the Service").

The introduction of the Bill comes at the heels of a key finding from Justice Hogue's foreign interference inquiry that foreign interference took place during Canada's 2019 and 2021 general elections. Justice Hogue found that although there was evidence of such interference, it did not alter federal electoral results but left a "stain" on them (see here).

Bill C-70 is purported to increase transparency, accountability and security within Canada's electoral framework. It carries a dual purpose – on the one hand, it is punitive in nature by introducing a number of new criminal offences, and on the other, it seeks to preserve the sanctity of the electoral process. Notably, if passed, it will come into force on a date to be fixed by the Governor-in-Council.

With respect to the so-called punitive elements, the Bill proposes four key changes worth noting.

1. Changes to the Security of Information Act

The Bill re-names this Act the "Foreign Interference and Security of Information Act."  It creates new foreign interference offences for deceptive or surreptitious acts that undermine democratic processes. Offences include surreptitiously influencing the outcomes of political processes, such as the nomination of a candidate, offences pertaining to intimidation, threats or violence with extra-territorial effect and "preparatory acts." Sentences for many of these offences are to be served consecutively.

The Bill expands preparatory offences, which target doing anything to prepare ahead of committing an offence (such as espionage). The Bill proposes to change the definition of "special operational information" to address the inappropriate sharing of military technology and knowledge, and the definitions of persons permanently bound to secrecy to allow Canadian Armed Forces units to be permanently bound to secrecy.

2. The modernization of the 40-year-old Canadian Security Intelligence Service Act and the sabotage offence in the Criminal Code

The Bill seeks to amend the Service's powers in order to allow the spy agency to share intelligence with other levels of government, including Indigenous governance bodies. The Bill also circumscribes the Service's use of data sets containing personal information, among other changes.

Introduction of a new sabotage offence in the Criminal Code focused on conduct directed at "essential infrastructure," which includes but is not limited to transportation, financial, and information and communication technology infrastructure. Of note, sabotage still does not apply to advocacy or protest in circumstances where there is no intention to cause serious harms as set out in the Bill.

A new offence of making, possessing, selling and/or distributing a device to commit a sabotage offence, like "bots," all of which are web-based activities.

3. Amendments to the Canada Evidence Act 

The Bill would amend the Canada Evidence Act to create a standardized Secure Administrative Review Proceeding (SARP) to facilitate the protection and use of sensitive information in federal proceedings. These proceedings must take place in the "National Capital Region" and may involve the appointment of "special counsel" which are on the roster of federal special advocates.

In addition, amendments permit (unless there are exceptional circumstances) that any decision not to disclose specified public interest or national security information should only be appealed by the accused following the end of a criminal trial and in the event of a conviction.

4. The introduction of the Foreign Influence Transparency and Accountability Act 

This is akin to the oft-cited "foreign agent registry" that the Americans have had since 1948. Overseen by an independent Foreign Influence Transparency Commissioner, the Registry would promote transparency from people who advocate on behalf of a foreign state or state-owned business. 

If implemented, the new registry could deter states from engaging in hostile activity: individuals or entities who enter an arrangement with a foreign principal and undertake activities to influence a government or political process in Canada would be required to publicly register these activities.

Electoral Reform

In addition to the punitive elements of the Bill C-70, there are a number of provisions aimed at enhancing transparency, accountability, and security within Canada's electoral framework. Some of the key objectives include:

1. Disclosure of foreign funding: Mandating the disclosure of foreign funding in certain political activities.

2. Prohibition of foreign contributions: Prohibiting the acceptance of contributions from foreign entities for certain activities related to Canadian elections, thereby safeguarding the integrity of the electoral process from external manipulation.

3. Expanded powers for the commissioner of elections: To effectively investigate and prosecute instances of foreign interference, the Commissioner of Elections will be granted enhanced authorities and resources. This includes, but is not limited to, the ability to compel testimony and access relevant information.

4. Strengthening cybersecurity measures: Recognizing the growing threat of cyberattacks on electoral infrastructure, the legislation includes provisions to bolster cybersecurity measures, safeguarding against unauthorized access and manipulation of digital systems.

5. Public awareness and education campaigns: In addition to regulatory measures, Bill C-70 emphasizes the importance of public awareness and education in combating foreign interference. By empowering Canadians with knowledge about the risks and tactics employed by foreign actors, the legislation aims to foster a more vigilant and resilient society.

Reflections

The introduction of Bill C-70 underscores Canada's commitment to upholding the principles of democracy and protecting the integrity of its electoral system. In an age where misinformation spreads rapidly across borders and malign actors seek to undermine democratic institutions, proactive measures are essential in order to safeguard the democratic process.

Foreign interference poses a multifaceted threat to democracy, ranging from disinformation campaigns aimed at manipulating public opinion to cyberattacks targeting critical infrastructure. By enacting robust legislation such as Bill C-70, Canada sends a clear message to foreign entities that attempt to undermine its sovereignty will not be tolerated.

Challenges and controversies

While Bill C-70 represents a significant step forward in the fight against foreign interference, it is not without its challenges and controversies.

Some critics argue that the legislation may infringe upon freedom of expression (see here) and could be susceptible to misuse for political purposes, specifically given the broad definitions of communications under the foreign agent registry (see Wesley Wark's analysis). Balancing the need for security with the protection of civil liberties remains a delicate task for policymakers as they regulate in this domain.

Moreover, it would seem that this is the first Bill in decades that seeks to address the intelligence-to-evidence conundrum. This is a phenomenon in which security and intelligence agencies routinely either cannot use or pose restrictions on the use of their intelligence for the purpose of criminal prosecutions, thus undermining the ability to prosecute to the fullest extent. It remains to be seen whether the SARP process is the most efficacious in terms of meaningfully facilitating the use of intelligence in an open court.

Finally, it would seem that there is no clear exemption for lawyers or law firms with respect to the proposed registry parameters. It remains to be seen whether the sanctity of the role of a barrister and solicitor client privilege will be preserved by Parliament.

Importantly, with the House of Commons set to rise in a month's time, there is a real possibility that this Bill will not pass and come into force in time before the next general election. Efforts should be made to ensure passage is swift.

As Canada confronts the complex realities of the digital age, the introduction of Bill C-70 represents a crucial milestone in its efforts to safeguard democratic processes from foreign interference. By enacting comprehensive legislation and fostering a culture of vigilance and resilience, Canada reaffirms its commitment to upholding the integrity of its electoral system and preserving the sovereignty of its democratic institutions. As the global landscape continues to evolve, proactive measures such as Bill C-70 will remain essential in defending democracy against emerging threats. It is important to convey this message beyond our borders.