Senator 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.

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.