For more than nine months, the Liberal government has been eyeing a package of measures that could be instrumental in safeguarding Canadian democracy from foreign interference instigated by hostile states such as China – but so far has only moved ahead on one item.
Ottawa announced last month that it will hold public consultations to set up a foreign-agent registry that would require people advocating for a foreign state to register their activities.
But the government has yet to move on three other significant measures that were presented to cabinet last summer, according to four government officials.
The sources say these include changing the Criminal Code to make foreign interference an offence; modernizing the Canadian Security Intelligence Service Act, created in 1984, to allow the spy agency to share more information on foreign-interference activities; and revising the Security of Information Act.
A senior official said Janice Charette, Clerk of the Privy Council, and Intergovernmental Affairs Minister Dominic Leblanc, who is also responsible for democratic institutions, are now examining proposed changes to the CSIS Act and the Security of Information Act. They are expected to report to Prime Minister Justin Trudeau later this month, the official said.
While the Criminal Code amendment is also on the table, the official was unable to say whether this measure would move forward. The Globe and Mail is not identifying the four sources who were not authorized to discuss the matter.
The government has faced intense criticism over its handling of Chinese interference since The Globe reported Feb. 17, based on secret and top-secret CSIS documents, that Beijing employed a sophisticated strategy to disrupt Canada’s democracy in the 2021 election campaign.
A Feb. 18, 2020, CSIS intelligence report, also seen by The Globe, assessed that at least 11 candidates in the 2019 election were the targets of foreign interference. It said the 11, along with 13 members of their staffs, had direct connections to a “known or suspected malign actor.”
Stephanie Carvin, associate professor of international relations at the Norman Paterson School of International Affairs, said Canada’s laws need to be updated to improve the way intelligence about foreign interference can be turned into court-ready evidence. CSIS is often unwilling to reveal how it obtained intelligence from wiretaps of Chinese diplomats or sources close to Beijing’s consulates and their proxies, she said.
“If the service is aware crimes are taking place but feels it cannot pass this information to the RCMP, then this is something that needs to be addressed,” she said. “It could be overcome if CSIS could collect evidence that would meet an evidentiary standard, and then pass that information onto the RCMP that doesn’t necessarily cover live sources.”
The RCMP has said it is not investigating China’s interference operations, which include allegations of violations of Canada’s election laws, citing a lack of evidence that would stand up in court.
However, interim RCMP Commissioner Michael Duheme told CTV’s Question Period over the weekend that the force is dismayed about the situation and that discussions are under way to allow the RCMP to use CSIS intelligence as evidence.
“I’ve seen it through a criminal lens, as to what we’ve been involved with; foreign actor interference. And I also see it through when the service briefs the round table at the deputy minister level. So yes, I am very, very concerned.”
On intelligence information, he said: “You don’t want to reveal any trade secrets of how this is collected. And with the full and frank disclosure that we face … that is challenging sometimes when you want to use some intelligence that’s not accessible or cannot be used for law-enforcement purposes.”
“I am hoping we can land on a solution where we can use intelligence in our criminal investigations,” Commissioner Duheme added.
Prof. Carvin said CSIS also needs clearer ground rules to access information from peoples’ phones, computers and other devices.
“Because of technological change, there is such a large sea of grey now with regards to all of the data, technology and storage,” she said. “People always think spies want to live in a sea of grey but they don’t. They want very thick black lines that say where they can go and where they can’t go, to give them operational certainty.”
CSIS Director David Vigneault has been asking since February, 2021, for legislative changes, saying the spy agency’s powers are “better suited for the threats of the Cold War era.” He’s called for legal tools to launch “data-driven investigations” to combat efforts by China and Russia to steal intellectual property, and digital data files of private companies and academic institutions.
The government sources were unable to provide details of what exactly is being proposed to the Security of Information Act. This 2001 law replaced the Official Secrets Act, and addresses threats of espionage by foreign powers and terrorist groups, and intimidation or coercion of ethnocultural communities.
The National Security and Intelligence Committee of Parliamentarians noted in 2019 that the Security of Information Act – unlike the CSIS Act – does not make a clear distinction between espionage and foreign influence. This has affected the ability of the RCMP to conduct criminal investigations of foreign interference, the committee said.
Critics point out that a foreign-agent registry and criminalizing foreign interference would be effective tools in curbing clandestine efforts by China and other hostile states to interference in elections through social disinformation campaigns or illegal funding and support of favoured candidates.
Dennis Molinaro, a former national-security analyst and professor at Ontario Tech University, said Australia provides a guide on how to use the Criminal Code to fight foreign interference. It criminalized attempts to assist a foreign power by covertly engaging in influence activities on its behalf – an offence that carries a sentence of up to 20 years in prison upon conviction.
Australia has also criminalized the act of knowingly assisting a foreign intelligence service – something Canada still does not do. He said asset freezes and civil forfeiture procedures could also be added to foreign-interference legislation, allowing federal prosecutors to confiscate ill-gotten property, even if offenders are located outside of Canada.
In early March, Public Safety Minister Marco Mendicino announced online public consultations on a foreign-agent registry that would conclude on May 9. Ottawa must then decide whether to proceed with the registry.
A spokesman for Mr. Mendicino declined to comment on what further measures Ottawa is planning but noted that the 2023 budget also gave the RCMP nearly $50-million to combat harassment of Canadians by powers such as China and Russia, and allocated $13.5-million to create a National Counter-Foreign Interference Office in the Department of Public Safety.
“As these threats evolve, so does our response,” said Alexander Cohen, director of communications to Mr. Mendicino.
He said recommendations to combat foreign interference are also part of the task handed to former governor-general David Johnston, who has been selected by Mr. Trudeau as a special rapporteur to assess the extent and impact of foreign interference in Canada’s electoral processes.
In a memo obtained under access-to-information legislation by The Canadian Press, the Prime Minister’s national-security adviser, Jody Thomas, warned him to expect some pushback on a foreign-influence registry.
While Canada’s allies and diaspora group “will likely welcome these measures,” Ms. Thomas said some people may raise concerns because some countries such as Russia have used foreign-agent registries to “silence activists and shut down organizations critical of government.”
The memo indicated Ottawa was looking at broader public consultations on changes to the Criminal Code, CSIS Act and the Security of Information Act.
Robert Fife
Steven Chase