Bill C-70: Trudeau’s latest assault on free speech

The Trudeau government’s latest national security legislation promises to cement Justin Trudeau’s legacy as the most anti-free speech Prime Minister in the post-WWII era.

The government’s newest assault on free expression, Bill C-70, is titled “An Act respecting countering foreign interference”. If adopted, Bill C-70 would amend numerous Canadian laws relating to national security. These laws include the Canadian Security Intelligence Service Act, the Criminal Code of Canada and the little-known Security of Information Act (“SIA“).

Bill C-70 constitutes a serious threat to democratic discourse. It is particularly dangerous for those who are critical of Canadian foreign policy.

The ‘foreign interference’ scam

In recent years, Canada’s ‘mainstream’ politicians and pundits have whipped up hysteria with unsubstantiated allegations that the West’s official enemies are manipulating Canadians with ‘disinformation’.

As I’ve argued before (see here and here), the brouhaha around alleged foreign interference is mostly a scam.

This manufactured national security crisis is designed to distract us from the disastrous consequences of Canada’s foreign policies and persuade Canadians to tolerate more and more censorship.

How would Bill C-70 amend the SIA?

Currently, the SIA imposes the most severe penalty that Canada’s constitution permits (life imprisonment) on those who use threats, accusations or violence to benefit foreign entities.

Section 20 of the SIA provides:

Foreign-influenced or Terrorist-influenced Threats or Violence

Threats or violence

20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done

   (a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or

   (b) that is reasonably likely to harm Canadian interests.

Application

(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.

Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

Under Bill C-70, section 20 of the SIA would be amended to read as follows:

20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person to do anything or to cause anything to be done.

Thus, Bill C-70 would add the concept of “intimidation” to the definition of the indictable offence and would remove the terms “accusation” and “menace”.

In addition, Bill C-70 would eliminate the requirement that the impugned conduct be “for the purpose of increasing the capacity of a foreign entity or terrorist group to harm Canadian interests” or be “reasonably likely to harm Canadian interests”.

Bill C-70’s failure to define “intimidation” creates uncertainty and severe legal risk

For purposes of section 20 of the SIA, Bill C-70 does not define “intimidation”.

As a result, if the Bill is adopted, members of the public will be obliged to make guesses about its meaning. If they guess wrong, they could find themselves in prison for life.

In interpreting legislation, Canadian courts employ well-established principles. One of those principles is that the legislature is presumed to use words for a reason.

If “intimidation” was meant to cover only threats and violence, then there would be no reason for Parliament to add the word to section 20 of the SIA because that section already uses the terms “threat” and “violence”. Thus, Courts would likely infer that the addition of the word “intimidation” was meant to encompass conduct other than threats and violence.

The Cambridge Dictionary defines “intimidation” as “the action of frightening or threatening someone, usually in order to persuade them to do something that you want them to do”.

Thus, “intimidation” includes within it the notion that the conduct in question elicits a certain response from the person targeted by that conduct. The response is one of fear or feeling threatened.

Some people experience fear readily. Others experience it infrequently. Whether an individual finds conduct to be ‘intimidating’ depends largely upon the experience, emotional fortitude and ideological disposition of the person to whom that conduct is directed.

A key question which Bill C-70 fails to answer is: whose reaction matters? Is conduct ‘intimidating’ if it causes anyone to be afraid or feel threatened? Or is it ‘intimidating’ only if it would cause a ‘normal’, ‘reasonable’ or tough-minded person to be afraid or feel threatened?

Stated differently, is the standard objective or subjective? If it is objective, how high is the bar for ‘intimidation’?

The answer to these questions will have major implications for free speech.

Consider the pro-Palestine protests now occurring on university campuses across the country. Some pro-Israel students have reacted to those non-violent protests by claiming that the protests make them feel ‘unsafe’. Zionist students assert that the mere fact that the protesters wear keffiyehs, condemn Zionism or chant ‘intifada’ (which simply means “shaking off“) is ‘intimidating’.

Under Bill C-70, participation in a non-violent protest could result in severe criminal liability based solely on the fact that persons who disagree with the protesters claim to be ‘intimidated’ by them.

Other forms of non-violent protest might well cause ideological opponents of the protesters to allege ‘intimidation’.

Below, I offer three examples.

1. Non-violently protesting outside a government minister’s home: In January of this year – days before the ICJ ruled that Israel was plausibly committing genocide – citizens of conscience peacefully protested outside the Montreal home of Canadian Foreign Minister Melanie Joly. They called for an end to Canada’s military and economic support for Israel. Canada’s political elite responded to that protest with howls of indignation. Ontario’s fanatically pro-Israel Education Minister Stephen Lecce tweeted: “The singular mission is to intimidate… It is disturbing that residents are made to feel unsafe in their neighbourhoods, along with elected officials and their families in their homes.” Even Heather McPherson, the supposedly pro-Palestinian foreign affairs critic of the NDP, became indignant. She thundered that: “This is appalling. People do not have to agree with politicians and elected representatives, but to harass them at their private homes is completely and utterly unacceptable.”
2. Splashing red paint at the entrance of the Israeli consulate in Toronto: In May 2021, after Israel embarked on yet another ‘mowing of the lawn’ in Gaza, Rabbi David Mivasair splashed red paint onto the entrance of the office tower that house’s Israel’s consulate in downtown Toronto. Although the paint could easily be washed off, Israel’s consulate described Rabbi Mivasair’s act of conscience as a ‘provocative act of vandalism‘. The complaint prompted Toronto’s police to arrest the Rabbi and charge him with mischief under $5,000. Prosecutors ultimately dropped the charge, but what would they have done if Bill C-70 had been in force at the time? It’s easy to imagine that Israel’s consular staff would have claimed they were ‘intimidated’ by Rabbi Mivasair’s red, removable paint.
3. Criticizing a government minister in a chance encounter: In March of this year, a pro-Palestinian protester approached Minister Joly while she was taking a ‘relaxing walk’ in Montreal. The man attempted to film a video of Joly while imploring her to “lift the cap on the number of Palestinian refugees” that Canada should welcome. A few seconds into the interaction, Joly appeared to grab the man’s phone. Joly’s office later complained to the press that the man had approached Joly with an “intention to startle” her. What’s the difference between an intention to startle and an intention to intimidate? Your guess is as good as mine.

Bill C-70 criminalizes speech that could be in Canadians’ interests

Under the current version of the SIA, using a “threat, accusation, menace or violence” is not sufficient to create criminal liability. The Crown must also prove that (1) the accused’s “threat, accusation, menace or violence” was made or done “for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests”, or (2) the “threat, accusation, menace or violence… is reasonably likely to harm Canadian interests”.

Bill C-70 would eliminate the Crown’s obligation to prove an intention to harm Canadian interests or a risk of harm to Canadian interests.

In other words, Bill C-70 would subject an individual to life imprisonment even if there’s no evidence that the accused’s purpose was to enable a foreign entity or a terrorist group to harm Canadian interests or that the accused created any risk of harm to Canadian interests.

Under Bill C-70, the Crown would be required to prove only that the accused acted “at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group”.

Bill C-70 defines none of these terms. Neither does the current version of the SIA.

What does it mean to act “at the direction of, for the benefit of or in association with” a foreign entity or terrorist group? The phrase “in association with” is especially broad and ambiguous.

Moreover, the mere fact that someone acts “for the benefit of” or “in association with” a “foreign entity” does not necessarily mean that the person seeks to harm Canada’s interests or that the person created a material risk of harm to Canadian interests.

The reason for this is simple: Canadians have interests that overlap with the interests of peoples from other nations, including nations that are perceived by Canada’s government to be hostile to Canada.

Consider the case of military spending. By reducing military spending, Canada’s government would free up public funds for socially beneficial purposes, including healthcare, education, public housing and environmental restoration.

At the same time, Canada’s reduction in military spending might benefit the citizens of a foreign country considered by Canada’s government to be hostile to Canada.

Such a government might respond to a Canadian reduction in military spending by redirecting some of its own military spending to programs benefitting its own constituents. In other words, Canada’s reduction in military spending could well constitute a win-win for Canadians and the citizens of that foreign country.

As Bill C-70 is drafted, however, the fact that the foreign entity might benefit from the conduct of the accused is sufficient to expose the accused to life imprisonment even if Canadians would also benefit from the policies promoted by the accused.

Ambiguous criminal laws deter free speech

When the legislature adopts laws that employ ambiguous terminology, members of the public are less able to predict how courts will interpret those laws. This exposes them to heightened risk of criminal liability.

Moreover, if the law imposes severe penalties for non-compliance, then members of the public will tend to avoid potentially non-compliant conduct even if the risk of prosecution for engaging in that conduct is low.

Bill C-70’s amendments to the SIA exhibit both these defects: the legislation employs ambiguous terminology and imposes the most severe penalty for non-compliance.

If it is adopted, the inevitable consequence of this legislation will be to cause members of the public to censor themselves. In my view, that is the primary goal of the legislation.

Indeed, we’ve seen the Trudeau government employ this strategy before. As I explained in a recent analysis of Trudeau’s “Online Harms” Bill, that legislation also employs ambiguous terminology while imposing Draconian penalties for non-compliance.

Trudeau’s “Online Harms” Bill and Bill C-70 come hot on the heels of the Trudeau government’s unprecedented use of the Emergencies Act to stifle criticism of Canada’s pandemic response. In 2022, when Trudeau announced that he would invoke that law for the first time in Canadian history, I criticized his decision, writing:

However strongly we leftists may disagree with the objectives, values or opinions of participants in the “freedom convoy”, if we support the government’s use of emergency powers in these circumstances, then it is only a matter of time before the government turns those extraordinary powers against us.

In January of this year, my criticisms of Trudeau’s use of the Emergencies Act were vindicated when a Canadian Court ruled that the government’s use of the Emergencies Act was unreasonable and infringed on protesters’ Charter rights.

Other flaws in Bill C-70

Bill C-70 does much more than amend section 20 of the SIA. It also creates new criminal offences, including this one:

Influencing political or governmental process

20.4 (1) Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty in relation to such a process or such governance or the exercise of a democratic right in Canada.

This new offence suffers from the same defects as the amendments to section 20 of the SIA: it employs ambiguous, undefined terms (such as “surreptitious” conduct), it does not require proof that the conduct was done for the purpose of harming Canadian interests, and it imposes the most severe penalty (life imprisonment) for non-compliance.

Bill C-70 also contains many provisions relating to government surveillance by the Canadian Security Intelligence Service (CSIS).

In a scathing 2020 ruling, the Federal Court of Canada found that CSIS had employed activities that were likely illegal in order to obtain intelligence, and that Canada’s Department of Justice failed to disclose that to the court.

Do we really want to expand the surveillance powers of this rogue agency?

Opposition to Bill C-70 intensifies

The International Civil Liberties Monitoring Group, the Canadian Association of University Teachers (CAUT), the National Council of Canadian Muslims, and the BC Gurdwaras Council are among 14 groups opposing Trudeau’s attempt to ram Bill C-70 through both Houses of Parliament by the end of June.

In a recent open letter, they warned that Bill C-70 “will have significant impacts on the lives and fundamental rights of people in Canada, including risks of increased surveillance, diminished privacy, limits on freedom of expression and freedom of association, undermining due process in courts through the use of secret evidence, and racial, religious and political profiling.”

It’s not too late to stop this Draconian and repressive bill from becoming law.

I urge all those who care about free speech to contact their Members of Parliament and demand that this anti-democratic legislation be withdrawn.