Hon. Marilou McPhedran: Colleagues, I’d like to begin by saying that I support the principle and purpose of this bill. There’s no doubt that foreign influence on our democratic institutions is a grave threat that must be taken seriously.

[English]

However, I welcome this opportunity to place on the parliamentary record some grave concerns about the application, scope and means of this rushed bill, entitled “Countering Foreign Interference Act.”

First, a compelling case has not been made for rushing to a vote on this bill when we are in the midst of an independent public inquiry into foreign interference in federal electoral processes and democratic institutions being conducted by an independent commissioner, Justice Marie-Josée Hogue. She has accepted responsibility to address the National Security and Intelligence Committee of Parliamentarians, or NSICOP, report as part of her ongoing inquiry and to report by the end of this year, in ample time for development and scrutiny of new legislation.

It is deeply ironic that if we as senators choose to truncate our task as the chamber of sober second thought without ensuring the time for proper study and amendment, it will be civil society that will take on this task, but with fewer resources and far less authority than we have. For example, today, seeing the Senate rushing this bill through in less time than the time taken for the Anti-terrorism Bill in 2001, post 9/11, the Centre for Free Expression, working with the International Civil Liberties Monitoring Group — a coalition of 46 Canadian organizations — announced their plan to create a rights risk-monitoring mechanism. The new law created by this bill needs to be monitored, because implementation is going to impact internationally protected and Charter rights, such as freedom of expression, freedom of assembly and freedom of association.

Civil liberties that are supposed to be protected by our Canadian Charter of Rights and Freedoms, entrenched in the Constitution of Canada, are endangered by this bill, which is being rushed through Parliament to appease political expediency. In doing so, we are denying Canadians a more thorough and careful study of this bill, which is, after all, our primary role.

It is worth noting the “abuse of process” referenced by Senator Tannas today with respect to rushing the budget bill. It was given about five times more time than we have given the bill on foreign interference now before us.

So, what are we facing this evening? My speaking time is short, but sadly, my list of concerns is quite long. I have been troubled by signs of foreign interference for years now, and I am one of the parliamentarians for whom foreign interference is real and present. To give just one example, earlier this year, media reported that a number of parliamentarians in a number of countries were targeted by the Chinese state-sponsored hacking group APT31 in January 2021. I was among those politicians targeted due to my work — mark these words, please, for their vagueness — “in association with” pro-democracy groups in Hong Kong.

Following those revelations, I contacted the Senate cybersecurity team, which conducted an in-depth analysis. The Information Services Directorate, or ISD, confirmed that my office was targeted by malicious malware and other hacking attempts. However, those incursions were identified promptly by our IT team as potentially malicious, quarantined and deleted from our system without compromising our internal networks. I commend the vigilance and quick action of the Senate IT security team.

However, I remain deeply concerned that I was not informed that I was, among other parliamentarians, a deliberate target of foreign-backed hacking attempts. My experience as a target does not occlude my concern that Bill C-70 will prove to be harmful to innocent Canadians, because it is unnecessarily and likely unconstitutionally vague and overly broad.

Clause 53 would criminalize several acts made — here are these words again — “. . . in association with . . .” foreign entities that would prejudice Canada’s interests. To my eye, this wording does not sufficiently delineate between criminal activity and innocent, well-intentioned cooperation or communication with international partners. Allow me to remind us about the Supreme Court of Canada on the doctrine of vagueness:

It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act. . . .

That is from R. v. Mabior in 2012.

The following year, the Supreme Court ruled in R. v. Levkovic in 2013:

It is not enough for laws to provide guidance to legal experts; laws, as judicially interpreted, must be sufficiently intelligible to guide ordinary citizens on how to conduct themselves within legal boundaries. . . .

Furthermore, I believe the scope of activities this bill would render illegal is substantially disproportionate to its objectives. Unlike comparable anti-terrorism legislation, these new crimes do not require the intent to support other illegal activities. Bill C-70 only requires the knowledge of a risk of prejudice to Canada’s interests, a term that is not defined and is overly broad.

The creation of these new crimes in addition to the proposed foreign influence registry will impact freedom of expression and freedom of association for academics, members of civil society, broadcasters and business leaders, who could soon find their research, advocacy, journalism or business dealings deemed illegal under this bill as a new law.

There is a high probability that the proposed registry will also undermine individual privacy rights. Good faith actors who register run the risk of seeing themselves profiled on discriminatory grounds or “doxxed” for their political positions. Definition and protection of the information collected and published through the registry created in this bill are left to regulation — details completely unknown to us as we face this vote.

Honourable colleagues, in light of constitutional protections this bill engages and the importance of the democratic institutions it aims to protect, Bill C-70 should be studied with thorough scrutiny, a process that cannot be rushed through in less than two weeks. It is clear that this horse of a bill has the bit in its mouth and is galloping to a “yea” majority.

As the place of sober second thought, we have a duty to scrutinize such important legislation. We should be ensuring that its means will indeed attain its ends, considering evolving regulations. We should be closely examining if any compromise on fundamental freedoms is necessary, rational, minimal and proportionate.

Earlier in this debate, Senator MacDonald affirmed that national security is not a partisan issue, and I agree. I would add that protection of constitutional rights and freedoms is not a partisan issue either. Further, the two are not mutually exclusive. May I remind you of the supreme constitutional protections of privacy, freedom of the press, freedom of peaceful assembly, freedom of expression and freedom of association?

What we as parliamentarians are engaged in right now is a textbook example of the “shock doctrine,” defined by Naomi Klein in her prescient book of that name, that documents the exploitation of national crises or upheavals to establish laws and measures that can be used to undermine rights and freedoms while citizens are too distracted by, for example, a financial crisis to engage and develop an adequate response and resist effectively. I might add that for us as senators charged with careful review of bills that come to us from the other house — whenever those bills may come — an adequate and effective response takes time, and parliamentarians have a duty not to become distracted from scrutinizing bills that can be used to undermine rights and freedoms.

Parliamentarians should not be distracted when changes to sabotage laws — including amendments passed by the House of Commons to extend the coverage of infrastructure still under construction — threaten the right to protest, including the rights of Indigenous land defenders and their allies. I agree with civil society concerns that the protective exceptions in this bill for protest do not go far enough and could still be used to stifle legitimate acts of civil disobedience or dissent.

I believe we are seeing here what Naomi Klein observed in several countries that she studied, which is, “Democracy and human rights are often trampled upon under the guise of emergency measures.”

In closing, while I support the policy intent of this bill and I believe that we do need new laws that address foreign interference effectively, I also believe that the risks in this bill should be heard as a clarion call for a more thorough study, such as we typically do with major bills — except, perhaps, when we are hearing the siren call of summer adjournment.

In light of the imminent choice for a scrutiny-light approach to this bill, I urge that our next step be to refer these issues for further Senate committee study than has been undertaken on this hugely consequential bill.

Thank you. Meegwetch.