Canada Responds to Foreign Interference With Bill C-70: New Criminal Offences and Procedures

Following the release of the Foreign Interference Commission’s Initial Report on May 3, 2024, Canada’s Minister of Public Safety has tabled Bill C-70, the Countering Foreign Interference Act (Bill). The Bill would create a regime to combat foreign interference, including significant updates to the Criminal Code and Canada’s national security regime.

While the Bill seeks to address foreign interference through several legal channels, this bulletin focuses on the Bill’s enactment of new criminal offences, proposed amendments to existing offences and creation of new evidentiary processes for certain federal proceedings.

What Is Bill C-70?

The Bill was introduced in response to concerns about foreign interference in Canada’s electoral system, but if enacted, it will have implications that extend beyond the ballot box.

The Bill is a four-part proposal to update existing laws and create new legislation that expands Canada’s toolbox for addressing foreign interference across industries in both the public and private sectors. The proposed regime creates new and potentially expansive legal definitions that seek to target foreign interference. 

Notably, the Bill also establishes a Foreign Influence Transparency and Accountability Act, which would create a foreign influence registry with reporting requirements for entities entering “arrangements” with “foreign principals.” These terms are very broadly defined. We have separately described these changes and potential concerns about their application to a broad range of legitimate commercial actors in our companion Blakes Bulletin: New Foreign Influence Registry Will Impose Heavy Compliance Burden, which focuses on the compliance burdens imposed by a new foreign influence registry.

New Criminal Offences

The Bill would also create new criminal offences and update existing offences geared toward combatting foreign interference. These changes include:

• Enacting a new “sabotage” offence under s. 52.1 of the Criminal Code, specifically aimed at interfering with access to “essential infrastructure.” For this offence, essential infrastructure is defined as a public or private facility or system that provides or distributes services that are essential to the health, safety, security or economic well-being of Canadians. This new offence does not capture legitimate advocacy, protest or dissent where there is no intent to cause harm as specified under s. 52.1.
• Amending the existing “sabotage” offence in the Criminal Code to clarify the mental element required that will capture all acts “intended” to endanger the safety, security or defence of Canada, instead of acts done for a purpose prejudicial to Canadian safety, security and defence.
• Enacting a new criminal offence of making, possessing, selling or distributing a “device” (defined as a “computer program”) with the intent or knowledge that it will be used, in whole or in part, to carry out the offence of sabotage under s. 52.1. 
• Creating new offences under the Security of Information Act (to be renamed the Foreign Interference and Security of Information Act) relating to foreign interference. The proposed amendments make it an offence to commit an indictable offence, engage in surreptitious or deceptive conduct, or influence political or government processes at the direction or benefit of or in association with a foreign entity.
• Removing the requirement to prove that the alleged criminal act “helped” a foreign state or “harmed” Canada in the existing offence of committing foreign-influenced threats or violence under s. 20 of the Security of Information Act.

Revised Procedures for National Security and Public Safety Information

The Bill proposes to establish new processes related to the protection and disclosure of certain information in specific legal proceedings involving sensitive information, including information related to national security. These proposals include:

• Creating a standardized Secure Administrative Review Proceeding (SARP) under s. 38 of the Canada Evidence Act for the use of “sensitive information” in administrative proceedings at the Federal Court and Federal Court of Appeal. Sensitive information in the Canada Evidence Act is defined as information relating to international relations, national defence or national security that the Government of Canada is taking measures to safeguard. Non-government litigants navigating SARP proceedings may request the appointment of special counsel to protect their interests when sensitive information is presented in their absence.
• Amending ss. 37 and 38 of the Canada Evidence Act to prevent an accused from appealing any decision not to disclose sensitive information or information related to a specified public interest until after their criminal trial ends and only if it results in a conviction.
• Amending s. 487.3(2)(a)(iii.1) of the Criminal Code to expressly include “national security considerations” as a factor in the list of reasons a judge will consider when deciding whether to issue a sealing order related to a warrant under the Criminal Code. 
• Amending the Canadian Security Intelligence Service Act to broaden the capacity of the Canadian Security Intelligence Service (CISIS) to seek warrants for the collection of electronic records containing personal information where it is relevant to performing their duties and functions. 

Potential Implications and Next Steps

With these significant legislative changes and the introduction of new compliance regimes, it will be important to monitor how the provisions are interpreted and applied if enacted. For example, companies and organizations operating in Canada will want to follow the eventual interpretation and application of the definition of “essential infrastructure” in the new offence of sabotage that, on its face, includes a broad range of systems and industries. The proposed definition expressly includes infrastructure related to transportation, information and communication technology, energy and utilities, health services, government operations, financial infrastructure, among others. In addition, the Bill permits expansion of the definition by way of regulation. 

Before it becomes law, the Bill must complete two additional readings in the House of Commons and be sent to committee for further review. If passed by the Senate, the changes proposed by the Bill will come into force only upon an order from the Governor in Council. 

Given the new offences, new warrant options for CSIS and untested limits of the proposed foreign influence registry (which also includes offence provisions), organizations or industry associations that believe they may be adversely affected should remain alive to future developments in this area. 

For further information, please contact:

or any other member of our Public Sector Crisis & Compliance or Litigation & Dispute Resolution groups.