The Government of Canada appears poised to enact a foreign agent registry, following the passage of an opposition motion calling for the creation of “a foreign agent registry similar to Australia and the United States of America” [1] on May 8, 2023 and the conclusion of Public Safety Canada’s consultation on the matter on May 9, 2023.

I. America’s Foreign Agents Registration Act Could be Template for Canadian Law

Other nations, including the United States of America, have already implemented foreign agent registries. The American Foreign Agents Registration Act, 22 U.S.C. §611 (“FARA”) was signed into law by U.S. President Franklin D. Roosevelt in 1938. It was subsequently expanded under U.S. Presidents Lyndon B. Johnson and Bill Clinton in 1966 and 1995, respectively.

Currently, FARA requires an “agent of a foreign principal”[2] to register with the Department of Justice within 10 days of becoming an agent. An agent is any person who:

  • “engages… in political activities for or in the interests of such foreign principal”;[3]
  • “acts… as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal”;[4]
  • “solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal”;[5] or
  • “represents the interests of such foreign principal before any [American] agency or official”.[6]

Foreign principals include foreign governments, political parties and persons.[7] They also include partnerships, associations, corporations, organizations, and other combinations of persons “organized under the laws of or having its principal place of business in a foreign country”.[8]

Agents who register under FARA must disclose, among other things, their contact information, their legal status and structure, their agreements with foreign principals, and their activities.[9] They are also required to disclose:

The nature and amount of contributions, income, money, or thing of value, if any, that the registrant has received within the preceding sixty days from each such foreign principal, either as compensation or for disbursement or otherwise, and the form and time of each such payment and from whom received.[10]

The maximum penalty for an offence under FARA is a fine of up to $10,000 USD and/or a prison term of up to five years.[11]

II. Some Foreign Corporations and Organizations Must Register under the Canadian Lobbying Act

In some circumstances, foreign corporations, organizations and governments are already required to disclose limited information under the Lobbying Act.

Foreign corporations, including state-owned enterprises, are currently required to register with the Office of the Commissioner of Lobbying for Canada if they lobby the federal government—and the volume of that lobbying surpasses a legislated threshold.[12]

  • Lobbying includes grass-roots communication, which is defined as “any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion.”[13]

Foreign organizations, including non-governmental organizations, are also required to register with the Office of the Commissioner of Lobbying for Canada if the volume of their lobbying surpasses the threshold.[14]

Interestingly, the term organization is defined broadly under the Lobbying Act to include “a government, other than the Government of Canada”.[15] In reality, however, exemptions for “diplomatic agents, consular officers or official representatives in Canada of a foreign government”[16], “officials of a specialized agency of the United Nations in Canada”[17] and “officials of any other international organization to whom there are granted, by or under any Act of Parliament, privileges and immunities”[18] mean that very few foreign governments are legally required to register.

Consultants and independent contractors who “undertake” to lobby “for payment” on behalf of a foreign corporation, organization or government are also required to register with the Office of the Commissioner of Lobbying for Canada.[19] The exemptions, above, do not apply to these “third-party consultants”. [20]

Any registration filed with the Office of the Commissioner of Lobbying for Canada must disclose if a corporation or organization “is funded in whole or in part by a government or government agency”.[21] This requirement extends to funds received “from Canadian [and] foreign governments”.[22]

In addition to government funding, consultant lobbyists are also required to disclose if their client is controlled or directed by “any person or organization” that has a “direct interest” in the lobbying activities.[23] In the context of a foreign non-governmental organization or a foreign state-owned enterprise, this may require the disclose of information on a foreign government.

The maximum penalty for an offence under the Lobbying Act is a fine of up to $200,000 and/or a prison term of up to two years.[24]