On May 6, 2024, the Government of Canada introduced legislation to both deter and counter foreign interference and improve the ways in which intelligence is protected and used in certain legal proceedings. The proposed legislation would create new offences and update existing offences in the Security of Information Act (SOIA), modernize the offence of sabotage in the Criminal Code, and create a new legal process in the Canada Evidence Act (CEA) for how sensitive information is both protected and used in certain legal proceedings. The changes would modernize Canada's laws to better protect our democracy, and protect people in Canada, including disproportionately affected diaspora communities, against new and evolving threats posed by foreign interference, as well as align with legislative reforms being undertaken by our allies.
These changes are being proposed following broad consultations by the Government of Canada on the SOIA, Criminal Code and CEA. These consultations were conducted online with the general public, as well as through a series of roundtable discussions with provincial, territorial and Indigenous partners, various stakeholders representing diverse communities across Canada, members of the legal profession, academia, civil society organizations, and industry. More can be learned about these consultations here.
The Security of Information Act
The SOIA currently criminalizes information-related conduct that may be harmful to Canada, such as spying, economic espionage and foreign-influenced threats or violence. The SOIA has not been substantially revised since 2001.
Proposed changes to the Security of Information Act
The newly proposed amendments to the SOIA in Bill C-70 would:
- create new foreign interference offences to better address foreign interference risks to Canada and to ensure that hostile activities are fully addressed by the criminal law, including those involving:
- deceptive or surreptitious acts that undermine democratic processes (including foreign interference in nomination contests and federal, provincial, territorial, municipal and Indigenous governments or democratic processes); An example of such an act would be surreptitiously influencing the outcomes of political processes, such as the nomination of a candidate;
- deceptive or surreptitious acts that harm Canadian interests (e.g., knowingly facilitating the entry into Canada of agents of a foreign entity who are posing as tourists); and
- indictable offences committed when directed by, for the benefit of, or in association with a foreign entity;
- amend Section 20 of the Act to better address transnational threats or violence by those who work on behalf of foreign entities to intimidate people living in Canada, including members of diaspora communities who may be uniquely vulnerable to these threats, and their families abroad (for example, an individual in Canada working on behalf of a foreign state threatening to harm relatives of a Canadian citizen who live in the foreign state);
- expand the preparatory acts offence (Section 22), which targets doing anything to prepare ahead of committing an offence (such as espionage), to cover more SOIA offences and the new foreign interference offences, and enhancing the existing penalties;
- amend the definition of "special operational information" to address the inappropriate sharing of military technology and knowledge; and
- amend the definitions of person permanently bound to secrecy and allowing Canadian Armed Forces (CAF) units to be added to the SOIA schedule, so that CAF groups can be permanently bound to secrecy.
To better reflect these amendments, the bill also proposes the SOIA be renamed to the Foreign Interference and Security of Information Act.
The Criminal Code of Canada
There are existing Criminal Code offences in place that address different types of conduct in connection with foreign interference, such as sabotage, intimidation, uttering threats, computer hacking and bribery, amongst others.
Proposed changes to the Criminal Code would:
- introduce a new sabotage offence focused on conduct directed at essential infrastructure and specify categories of protected essential infrastructure, including private and public infrastructure systems that enable transportation or communications, or support the delivery of health and food services;
- expressly clarify that the sabotage offences do not apply to legitimate advocacy, protest or dissent in circumstances where there is no intention to cause the serious harms specified in the legislation; and
- introduce a new offence of making, possessing, selling and/or distributing a device to commit a sabotage offence. This includes things like "bots", which are Internet-connected devices that are infected with malware.
- modernize and clarify the mental element (the specific state of mind of the accused) required for the offence of sabotage;
The Canada Evidence Act
Proposed changes to the Canada Evidence Act (along with corresponding Criminal Code amendments) would:
- create a standardized Secure Administrative Review Proceeding (SARP), with an improved and streamlined process under s. 38 of the CEA relating to the protection and use of sensitive information in federal administrative proceedings such as judicial reviews and statutory appeals in the Federal Court or Federal Court of Appeals (with the exception of all matters under the Immigration and Refugee Protection Act (IRPA), which will continue under existing IRPA processes); it would also allow for the appointment of special counsel in these SARP proceedings;
- amend s. 37 and s. 38 of the CEA to provide that, unless there are exceptional circumstances, any decision not to disclose specified public interest or national security information should only be appealed by the accused following the end of their criminal trial and in the event of a conviction. This proposal seeks to address concerns about trial delay and interruption and would help with court efficiency and resources, by ensuring that appeals are not launched by defendants unless there is a criminal conviction; and
- amend the sealing order provision of the Criminal Code to clarify that national security considerations would be expressly included in the list of reasons for a judge to consider when deciding whether to issue a sealing order in relation to a Criminal Code warrant.
