Hon. Yuen Pau Woo: May I ask a question of Senator Downe?

Hon. Yuen Pau Woo: I ask for another five minutes.

Hon. Yuen Pau Woo: Therefore, honourable senators, in amendment, I move:

That Bill C-70 be not now read a third time, but that it be amended,

(a)in clause 53,

(i)on page 26, by replacing line 28 with the following:

“rection or for the benefit of a for-”,

(ii)on page 28, by replacing lines 8 and 9 with the following:

“outside Canada, at the direction or for the benefit of a foreign entity or a terrorist group, in-”,

(iii)on page 29,

(A)by replacing line 11 with the following:

“rection or for the benefit of a for-”,

(B)by replacing lines 27 and 28 with the following:

“who, at the direction or for the benefit of a foreign entity, knowingly engages in surrepti-”,

(iv)on page 30, by replacing line 14 with the following:

“who, at the direction of a foreign”;

(b)in clause 113, on page 75, by replacing lines 5 and 6 with the following:

“person undertakes to carry out, under the direction of a foreign principal, any of the follow-”.

Honourable colleagues, I thank you for your attention. I hope you will you support my amendment.

Hon. Yuen Pau Woo: Honourable senators, let me start by thanking my friend Senator Dean for his wise stewardship of the bill and my friend Senator Dagenais for allowing me to sit in on meetings of the Standing Committee on National Security, Defence and Veterans Affairs during the pre-study as an observer.

Colleagues, earlier today you will have received notice that I will move an amendment to Bill C-70 to remove the phrase “in association with” from the bill. Before I do so, let me take a few minutes to explain why I think it is necessary.

There are six references to that phrase in both Part 2 and Part 4 of the bill. For example, the words “in association with” are part of the definition of “arrangements” in the Foreign Influence Transparency and Accountability Act. The act requires persons to register and provide information:

. . . in relation to arrangements entered into with foreign states or powers and their proxies under which persons undertake to carry out certain activities in relation to political or governmental processes in Canada.

It defines “arrangement” as, “. . . under which a person undertakes to carry out, under the direction of or in association with a foreign principal . . . .”

We have received clarification from officials that “arrangements” include not only formal contracts but other kinds of agreements that are less explicit. Here is what an official from Public Safety Canada said:

An arrangement wouldn’t need to be a written contract. It wouldn’t necessarily need to be spelled out on paper. It can be a verbal understanding. Ultimately, it would be up to the commissioner, based on the facts available to them, to determine whether there was an understanding, an arrangement, an agreement to conduct these influence activities. It’s purposely drafted in a way to not limit it to just that one contract that says I will pay you X to do Y.

In other words, the concept of “arrangement” is already very elastic. This is as it should be since we already have a Registry of Lobbyists that would require anyone who formally represents a foreign power to register under that measure. The new foreign influence transparency registry would close loopholes in the Registry of Lobbyists both by expanding the scope of covered activities and by using a broad definition of “arrangements.”

What, then, is the point of adding the phrase “in association with” to this definition of “arrangements”? Where does the phrase come from anyway? It turns out that this phrase is taken from the Criminal Code and pertains to the commission of offence for criminal organizations.

In the code, 467.12(1) says:

Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

There is some jurisprudence around the term “in association with.” In R. v. Ruzic, 2001, the Supreme Court explained that there is an implicit requirement that the accused committed the predicate offence with the intent to do so for the benefit of, at the direction of or in association with a group they knew had the composition of a criminal organization.

In R. v. Venneri, 2012, the Supreme Court highlighted the underlying principles behind the terms “in association with,” “benefit” and “at the direction of.” The court says the terms have a shared purpose:

Their common objective is to suppress organized crime. To this end, they especially target offences that are connected to the activities of criminal organizations and advance their interests.

Those rulings refer to the suppression of organized crime and the activities of criminal organizations. The proposed foreign influence transparency and accountability act, or FITAA, however, is not a registry of organized crime and criminal organizations. It is a transparency registry intended to encourage persons and organizations lobbying on behalf of a foreign principal to be transparent about their activities. Those activities are not illegal; they are certainly not criminal. The FITAA registry, after all, is not meant to be a blacklist; rather, it is a whitelist. In fact, one of the features of Bill C-70 is that anyone who is in compliance with the registry can legitimately carry out the political interference activities listed in Part 2 of Bill C-70.

The words “in association with” may have some utility in the prosecution of individuals involved in criminal gangs, but it is not helpful for the purposes of FITAA. On the contrary, the use of that criterion will force the commissioner to look for a foreign influence analogue to organized crime.

How will they do that? I believe it will boil down to the views expressed by the person suspected of being “in association with,” even if the point of the registry is not about screening for good or bad points of view. This has already been seen to be a problem in criminal cases where offences using the “in association with” term have allowed conduct to be criminalized that only has a tenuous connection to a criminal organization.

Take the case study of co-called malign foreign influence that was highlighted in the Minister of Public Safety’s consultation paper on the registry that we now have in Bill C-70. It paints a scenario whereby a Canadian academic is asked by an individual employed by a foreign government to write an op-ed opposing a position taken by the federal government without disclosing the foreign actor’s request to do so. This example sent shivers down my spine. It suggests that Canadians who have interactions with foreign governments are servile dupes who have no capacity for individual judgment or agency. How do we know that the Canadian did not already share the views of the foreign government or if they may have, in fact, influenced the foreign agent rather than the other way around?

The reality is that the commissioner of the registry will be hard pressed to determine if there was any direction from the foreign agent to the academic. The commissioner might have information about contact between the agent and the academic, but in the absence of information about direction, they will have to guess if the academic was “in association with” the foreign agent.

The likely starting point for such an assessment will be the views expressed by the academic. The government is passing the buck to the commissioner to determine how to define a vague and problematic term, and is counting upon the courts to fix any excess.

However, we should not go down this road in the first place by inviting the commissioner to perform such a task, and we can do so by removing the words “in association with” as part of the definition of “arrangements” with a foreign principal.

Honourable colleagues, if you think this is a marginal case study, let me give you an example that is closer to home.

When MPs and senators travel to another country as part of an interparliamentary association, they invariably meet with foreign principals who will bend the ears of their Canadian counterparts on policy issues that are important to them. Very often, Canadian parliamentarians will return to Ottawa and pass along those messages to the responsible minister, a senior bureaucrat or the party caucus. I have heard Hill colleagues advocate for lower cheese tariffs after a visit to the U.K.; a change in wine import quotas after visiting Wellington; the need to invest in liquefied natural gas, or LNG, export facilities after going to Berlin; or a plea to support Taiwan’s participation in the World Health Assembly after a sponsored trip to Taiwan. Are the MPs and senators “in association with” the foreign power, and do they have to register with the FITAA registry? After all, they are members of an association that explicitly seeks to influence and be influenced by their counterparts.

Perhaps you agree with the policy proposals advocated by the Brits, the Germans, the Kiwis and the Taiwanese, and are therefore inclined to discount the need for registration, but what if a parliamentary delegation came back from Beijing and advocated for more flights between China and Canada? What if they lobbied for Canada to not follow the lead of the United States in imposing massive tariffs on Chinese electric vehicles, or EVs? Would those examples make you more inclined to insist on registration?

On the face of the bill, MPs and senators are not exempt from registration under FITAA. Perhaps the commissioner will issue a ruling to give all of us a pass, but what about our staffers?

What about the numerous — hundreds — bilateral and multilateral business associations in Canada that do very similar work as our interparliamentary associations, and that regularly meet with foreign officials to hear their views on policy issues that affect bilateral relations? Will members of the Canada-EU, Canada-Japan, Canada-U.S. or Canada-Africa business associations and councils have to register if they trigger any of the three criteria under FITAA simply because they are “in association with” the foreign power?

Just last week, the Business Council of Canada sent a letter to the Prime Minister warning that Canada faces “diplomatic isolation” in NATO if it doesn’t meet its defence spending target of 2%. I presume that Mr. Hyder, the CEO of the Business Council of Canada, believes we will face diplomatic isolation because he has had conversations with leaders of NATO governments who have told him as much. I am sure Mr. Hyder is not “directed by” those governments to lobby Ottawa, but can it not be said that he and his organization are “in association with” NATO governments in conveying such a message?

What about the hundreds of cultural, clan and civil society organizations in Canada that have intrinsic links with foreign governments and which might, from time to time, engage with public officials? Let me be clear: If any such groups have an “arrangement” or are acting “at the direction of” a foreign power, they should register, but in the absence of meeting such tests, does it make sense to use the woollier concept of “in association with” to force them to register?

You might think that it isn’t a big deal if parliamentarians, business associations and cultural and civil society groups have to register. So what if the term “in association with” captures a very broad swath of individuals and groups? But bear in mind that the phrase “in association with” also appears in Part 2 of the bill that deals with political interference for which the consequences are not trivial at all. The use of “in association with” could ensnare Canadians in criminal cases related to political interference because of their views or connections, with the threat of a maximum penalty of life imprisonment.

The open-ended nature of the phrase “in association with” will incline the commissioner and investigators to look at the backgrounds and views expressed by suspected agents as a proxy for being “in association.” Even if they do not specifically go in that direction, there will be public pressure upon them, including snitching and rumour mills, to make judgments about who should be required to register based upon the views they hold and the groups they associate with.

That is how McCarthyism started.

If you have any doubt this will happen, I offer myself as a case study. Yesterday, I learned that the Chinese Canadian Concern Group on the Chinese Communist Party’s Human Rights Violations has written to the Commissioner of the Public Inquiry into Foreign Interference to question my loyalty and that of our former colleague Senator Victor Oh. To be specific, the concern group has urged the commissioner to review my participation in the commission by “. . . taking into consideration his past comments and associations.”

I suppose I should thank the Concern Group for providing me with such an egregious and timely example of stigmatization based on my “past comments and associations.” You can be sure that if Bill C-70 is passed, they and others will use the phrase “in association with” to stigmatize many other Canadians who have much fewer protections than I have. Indeed, they have already recklessly named other Chinese Canadians in the letter and cast them as possible foreign agents with zero evidence.

Hon. Yuen Pau Woo: Barely two hours ago, 20 of our colleagues were at 1 Wellington to receive a technical briefing on Bill C-70. That’s less than a quarter of our complement of senators. I’m now standing before you, rushed to make a speech after receiving this briefing on short notice, with inadequate preparation, but, nevertheless, I would like to put some things on the record.

The first thing, which should be obvious from my preamble, is that we are rushing this bill. There is no question that we are pushing this through with a kind of haste that is not becoming of the upper chamber. I think it is correct to say that at the technical briefing there were many questions that were not asked because of a lack of time, and there were many answers given that were, to some of us, unsatisfactory.

Colleagues, the purpose of second reading, typically, is to talk about the principle of the bill. Let me say, first off, that I support the principle of the bill, but the idea of discussing the principle is in anticipation of the bill being sent to a committee where the details of the bill can be studied carefully and possible flaws in that bill can be scrutinized and possibly fixed. What we have instead, as you all know, is a pre-study that took place last week, also rushed, and when the National Security and Defence Committee meets tomorrow — starting 8 a.m., by the way, for those of you who are interested — it will go directly into clause-by-clause consideration. We are essentially skipping — leapfrogging — from second reading to clause by clause, and then, presumably, a third reading vote by Thursday.

Colleagues, we are taking less time to review this consequential bill than we did with anti-terrorism bills in the last three decades — in 2001, 2012, 2015 and 2019 — all of which were passed quickly enough in the heat of the moment and were flawed. Some of them had to be fixed a few years later.

You may remember, for example, the 2019 amendments to what was previously Bill C-51, the anti-terrorism bill.

The likelihood of Bill C-70 is that it will go through to a third reading vote and pass before we rise for the summer — flaws and all. And perhaps we will have a chance down the years to fix some of those flaws, but in the meantime, the price to be paid by the flaws in the bill will be the individuals and organizations who will be trapped or caught by what I think is an overly wide and overly sticky spider’s web that is Bill C-70.

Before I get to just a very small number of the flaws that I see in this bill, allow me to demonstrate my bona fides in this area. Almost from the time that I joined the Senate in late 2016, I have been working on countering foreign interference in Canada and on Parliament Hill.

In 2018, well before the hullabaloo, well before the media leaks, well before the febrile discussion about foreign interference being widespread, I organized in Centre Block a workshop for parliamentarians to talk about Chinese foreign interference in Canada. I did that because I could see — even back then — that this was going to be a very difficult topic, one that was already being weaponized, first of all, in the United States, where we saw a lot of anti-foreign interference activities directed at China and Chinese people in the United States that was stigmatizing, discriminatory and justified by the imperatives of national security.

I hoped at the time that we could have a grown-up conversation about foreign interference so that we can avoid the excesses that I think we’re beginning to enter into. I failed because today we are in a fevered environment where there is, it would seem, overwhelming support — indeed, unanimous approval — for a bill on countering foreign interference that has manifest flaws in it that have been raised to all of us through a variety of sources in civil society, academia and from ordinary Canadians.

I’ve also, as some of you know, participated in the Public Inquiry into Foreign Interference. I am a formal intervener, and I had the opportunity to witness and partake of the information that was made available. I also participated in the public consultation that led to Bill C-70 on developing a foreign interference transparency registry, which we have now in this bill, and I’ve made formal submissions to the Public Inquiry into Foreign Interference, expressing my concern about the quality of intelligence and about the failure to consider the consequences of foreign interference zealotry, which is causing harm to the freedom of expression of diaspora communities including during an election.

Let me now get to a number of the flaws that I see in the bill that I hope others will pick up and that we can perhaps put some thought into ameliorating. These are only a few examples.

The first has to do with the Security of Information Act where there’s a new offence related to political interference. I agree with the need to stop political interference from foreign principals, but there’s a special provision where there is an offence of preparing the act of political interference. It says that this offence is when someone does anything that is directed towards or done in preparation of the commission of the offence, “the offence” being political interference.

In this provision, we are copying from the Australian example, where they also have a provision against the preparation and planning of an act of foreign interference, and they had their first conviction last year. Let me tell you that story.

A Vietnamese Australian has been sentenced to two years in jail for the act of preparing or planning an act of foreign interference. What was that act? He organized a fundraiser during COVID, raising money from Vietnamese and Indo-Chinese-Australian communities to buy personal protective equipment and other medical supplies, and he donated that money to a hospital. At the ceremony where the donation was made, he invited a politician — I think he was a sitting minister at the time — to stand with him on the stage holding one of these fake cheques for $25,000 Australian. That was used as evidence that this Vietnamese Australian person was cultivating the minister for a future act of foreign interference.

Just think about that. The Australian system is the Australian system, and they have the right to conduct themselves in the way that they want to. But are we going down the road where someone who develops a relationship with a politician or a public official who may have the potential to rise up the ladder sometime in the near or distant future, that that act in itself is a crime of planning or preparing an act of foreign interference? It drives shivers down the spine.

Let me move now to Part 4 of the bill, which is the proposed “Foreign Influence Transparency Accountability Act.” Let me start by telling you what I like about the bill. I commented during the consultation phase and participated vigorously in the public debate. There are many things I like about it. In fact, some of the suggestions that I and many others offered were taken up.

The first is that it’s country agnostic — it does not require a gazetting or a focus on one country or another.

Secondly, it doesn’t try to use the registry to deal with the very real problem of transnational repression. In the private member’s versions of the bill of a foreign influence registry that we have seen previously in the House of Commons and in this chamber, the notion is that a registry can somehow stop bad acts of foreign interference — particularly the most vile kinds of acts, which is the repression of Canadians by foreign governments through threats and intimidation.

This bill doesn’t try to do that. Instead, it creates a separate new category of criminal offences that have to do with the actual commission of repression and intimidation. I have concerns about the word “intimidation,” but I think that is the correct way to deal with criminal acts rather than to use the registry as a proxy.

I also like this registry in that it doesn’t use the concept of related entity, which is such a broad and vague term that it can capture just about anyone who is associated with an organization that is in some way connected to a foreign power. Instead, it uses the term “arrangements.” I recommended the idea of using the word “arrangements,” but I would have preferred that it focus on material arrangements because that’s concrete — a contract, a quid pro quo, a trip to Taiwan, for example, to Israel, to China or to Mexico. That’s a material arrangement. Instead, what we have is “. . . arrangements . . .” or “. . . in association with . . .” Here, I have grave concerns. What does “. . . in association with . . .” mean? The best clue is found in the consultation paper that was issued by Public Safety in preparation for this bill, which gave us a case study of what I think they mean. Here is the case study.

An academic has a meeting with a foreign principal. It could be a diplomat; it is somebody who represents another government. They have a conversation or maybe multiple conversations. Shortly after, the academic writes an op-ed that is in favour of that country’s position on a given issue. Maybe the academic also gives some lectures on campus in favour of or aligned — shall we say — with that government’s position. That example is described in the consultation paper as an act of malign foreign interference, and it is my interpretation that the intent of this bill and the use of the term “. . . in association with . . .” would capture the acts of that academic.

But, colleagues, if an academic has a meeting with a foreign official and that academic later expresses a view which is closely aligned with the foreign government, how do we know that the foreign official —

Your Honour, may I have another five minutes?