On March 10, 2023, Canada’s Minister of Public Safety, the Honourable Marco Mendicino, announced the federal government’s launch of a public consultation on the creation of a Foreign Influence Transparency Registry in Canada (Registry). The purpose of the public consultation is to solicit feedback on how Canada might bolster defences against malign foreign influence. Consultations are open until May 9, 2023.
Concurrent with the launch, the government released a consultation paper, “Enhancing Foreign Influence Transparency: Exploring Measures to Strengthen Canada’s Approach” (Consultation Paper).
The proposed Registry attempts to distinguish between two concepts: foreign influence and foreign interference. Foreign influence involves transparent activities undertaken by foreign states to exert influence, such as legitimate lobbying, advocacy efforts and regular diplomatic activity. Foreign interference, on the other hand, is defined in the Consultation Paper as “activities perpetrated by a foreign state, or proxy, that are harmful to Canada’s interests and are clandestine or deceptive, or involve a threat to any person.” A sub-set of foreign interference known as “malign foreign influence” refers to a foreign principal’s attempt to exert influence through non-transparent or covert means.
The objective of the proposed Registry is to ensure transparency and accountability from individuals who advocate on behalf of a foreign government and to protect communities who are targeted by foreign interference by foreign governments.
GAPS IN EXISTING FRAMEWORK
While several existing legislative tools tangentially regulate foreign influence activities, they are not specifically designed to address malign foreign influence. For example, the Lobbying Act requires those seeking to influence Canadian public office holders to register and report communication activities with public office holders. However, according to the Consultation Paper, foreign states and their proxies that seek to operate covertly when influencing Canada may do so in ways that avoid registration obligations under the Lobbying Act. This could include seeking to leverage members of certain cultural groups to support the foreign state’s geopolitical views to the detriment of Canada without any direct communications with public office holders requiring registration under the Lobbying Act.
The Canada Elections Act includes various prohibitions related to foreign involvement in electoral activities. For example, only Canadian citizens and permanent residents are permitted to donate to federal elections candidates, riding associations, political parties, and nomination and leadership campaigns, and third parties cannot use foreign contributions to support their partisan activities. However, Canada’s election laws do not fully extend to party nomination contests and elections at subnational levels.
POTENTIAL ELEMENTS OF REGISTRY FRAMEWORK
The Consultation Paper outlines the key elements of the Foreign Influence Transparency Registry under consideration, including:
Arrangements to Influence Canada Could Require Registration: Such “arrangements” could require registration where the intent of the arrangement is to undertake influence activities in Canada or toward Canadians. Arrangements could be explicit or implicit and would not need to require payment. Failure to register an arrangement could result in monetary, regulatory/civil and/or criminal penalties levied against the individual or entity in contravention of the provisions.
Broad List of Registrable Activities: The Registry would provide for a broad, clear list of registrable activities aimed at eliminating loopholes, to the extent possible, while also ensuring that there is no undue regulatory or administrative burden, that privacy and Charter rights continue to be respected, and that legitimate interests and activities are not impeded. This could potentially include communications activity aimed at the public in circumstances where that activity is undertaken on behalf of a foreign principal for the purpose of influencing government or public opinion.
Exemptions: The Registry could provide certain exemptions to registration, such as “legal advice and representation (which could apply where a person or entity is undertaking a registrable activity on behalf of a foreign principal, but the activity is primarily related to, or incidental to, providing legal advice in judicial processes), diplomatic and consular activities undertaken by formally accredited officials, and situations where an individual is engaging in registrable activities but is doing so in their transparent capacity as an employee or representative of a foreign government.”
Information Disclosure: Registration and activities would most likely be public and could include personal details for the individual or entity undertaking the activities, dates, the purpose of the activity, and the nature of the relationship between the individual/entity and the foreign principal.
Compliance: The Consultation Paper suggests a series of scalable compliance mechanisms, including notices, administrative monetary penalties and criminal sanctions.
The above measures would expand the current legal requirements for registration and reporting of lobbying communications and activity under the Lobbying Act framework. For example, requiring the registration of “arrangements,” explicit and implicit, as well as expanding the list of registrable activities to communications directly with Canadians (rather than solely with public office holders) are not currently captured.
If adopted, the Registry may significantly impact a wide variety of Canadian businesses, including professional services firms representing foreign governments in Canada or businesses with ties to foreign governments.