West's submissions on a Canadian Foreign Influence Registry Scheme
In March 2023, Public Safety initiated public consultations on the merits of a Foreign Influence Transparency Registry. The following are my submissions to this consultation process.
My recommendations are informed by reports from CSIS on foreign interference, as well as reporting by advocacy groups like Alliance Canada Hong Kong. It also incorporates Canada’s constitutional jurisprudence on the freedom of expression protected under section 2(b) of the Charter. Finally, it reflects my analysis of strengths and weaknesses of comparable registration schemes like those of the US, Australia and proposed in the UK, as well as the impact on expression and advocacy of registration regimes in countries like Russia. I welcome informed feedback from academics, practitioners and advocates working in this space.
Recommendations: Foreign Influence Transparency Registry
Dr. Leah West
Overview
A foreign agent registry will invariably impose prior restraint on the freedom of expression of Canadians and engage their rights under section 2 of the Charter of Rights and Freedoms. As such, it is necessary that registry requirements be narrowly tailored to meet the pressing and substantial objective of the scheme and limit the burden it imposes before Canadians can engage in constitutionally protected speech.
The recommendations herein aim to ensure that the most significant forms of political influence activities are captured by a foreign influence registry that can survive a Charter challenge. Namely, the activities captured must be aimed at influencing a clearly defined political or governmental purpose. The influence activities must be directed by a foreign government or entity closely affiliated with a foreign state. The information collected must be limited to what is absolutely necessary to administer the registry, and an arm’s length commissioner should administer the registry.
I believe these recommendations will help ensure the constitutionality of the scheme. However, even a broader scheme will not capture covert foreign interference, especially the type of activities impacting certain diaspora and dissident communities in Canada. For this reason, I conclude by suggesting amendments to the Criminal Code.
Object and Purpose of a Foreign Influence Transparency Registry
To promote the transparency of activities undertaken by intermediaries on behalf of foreign principals to protect the sovereignty of Canada and the self-determination of Canadians.
Obligation
A person who has entered into an arrangement/agreement with a foreign principal pursuant to which the foreign principal directs the person to conduct certain activities on their behalf for the purpose of political or government influence must register with the Government of Canada.
That arrangement/agreement must be registered before a person may communicate with a public office holder, communicate with the public, or disperse money, goods, services or anything of value to persons in Canada on behalf of the foreign principal for the purpose of political or government influence.
Engaging in these activities without registering, deliberately misrepresenting a registerable agreement or activities, or refusing to comply with requests for information necessary to administer the registry are criminal offences punishable by imprisonment or fine. Other administrative errors, omissions, missed deadlines, etc., are punishable by fines only.
Definitions
Person: individual, partnership, association, corporation, organization, or any other combination of individuals.
Foreign Principal: a foreign government or government official; a foreign government-related entity; a foreign political organization; a foreign government-related individual. (Government means federal, regional and local governments.)
Note: Suggest allowing the responsible Minister, via regulation, to additionally specify any other foreign entity as a foreign principal where reasonably necessary to protect the security or interests of Canada. The legislation should provide for a redress mechanism for a Ministerial designation.
A person undertakes an activity for the purpose of political or governmental influence if the sole or primary purpose, or a substantial purpose, of the activity, is to influence one or more of the following:
a) a process in relation to an election or a designated vote in Canada;
b) a process in relation to federal, provincial, territorial, indigenous or municipal government decision;
c) proceedings of a House of the Parliament or a provincial, territorial, indigenous or municipal legislative body;
d) a process in relation to a registered political party;
e) a process in relation to a Member of Parliament or of a member of a provincial, territorial, indigenous or municipal legislative body who is not a member of a registered political party;
f) a process in relation to a candidate in a federal, provincial, territorial, indigenous or municipal election; or
g) the public, or a section of the public, in relation to any of the listed processes or proceedings.
Exempted Persons
Registered diplomats recognized under international and Canadian law
UN Officials or officials from other international organizations recognized and accredited under Canadian law.
Lawyers acting in their capacity as representatives of foreign principals in legal proceedings.
Persons in arrangements with foreign principals from states listed by the Minister via regulation (e.g. Canada’s closest allies: US, UK, Aus, NZ.)
Note: Suggest also allowing the responsible Minister, via regulation, to specify other exempted persons.
I believe bona fide journalistic activities would never be captured by the registration obligation as I’ve defined it. I also see no legal basis for exempting charities, non-governmental organizations, or academic institutions or researchers who engage in registerable activities on behalf of foreign principals. Conversely, it is well documented that foreign states will use the media, charities and academics to engage in foreign influence/interference activities.
Registration Information
To limit the burden of engaging in political speech captured by the regime and the potential chilling effects on expression resulting from registration, the information and disclosure requirements of the regime should be as limited as possible.
The discretion afforded to the government to seek additional information should also be limited to that which is absolutely necessary to meet the object and purpose of the act (transparency of activities). Meaning there should be little difference between the information the government can request and access and the information made available on the public registry (excluding the obvious exclusions for personal and confidential information). Moreover, there should be limits on sharing information not publicly available with other government departments and agencies.[1]
The risk of having wide discretion on the information the government can request and what it can do with that information is that the scheme may be viewed as a surveillance tool for law enforcement and intelligence officials. This would likely increase the chill on political expression.
Administration of the Registry
The mandate of the Commissioner of Lobbying should be expanded to include the administration and enforcement of the foreign influence transparency scheme. This move would serve several important functions. First, it would limit the perception of bias arising from having an elected official oversee and enforce rules governing political speech. Second, it would curtail concerns that the scheme is being used by other agencies within the government for surveillance purposes, which would diminish the chill on speech.
Third, similar to their role under the Lobbying Act, the Commissioner’s duties and functions should include developing and implementing educational programs to foster public awareness of foreign influence and the scheme’s requirements. Given the history of Canada’s diaspora communities and their attempts to get answers from the government about matters related to foreign influence/interference, an independent body may be viewed as a more trustworthy source for dialogue and engagement.
Finally, this move would allow the government to include corresponding disclosure obligations on MP’s and public office holders like those specified under 9.1 of the Lobbying Act, limit concerns of bias around enforcing restrictions on entering registerable arrangements after leaving federal public office (see s. 10.11 of the Lobbying Act), and give greater weight to annual reports tabled in Parliament.
Criminal Code Amendment
A foreign influence transparency scheme will do little to stop much of the foreign interference activities affecting Canada’s diaspora and dissident communities. Changes to the Criminal Code are necessary to capture this kind of foreign interference. In particular, the Government should strongly consider introducing foreign interference offences like those proposed in sections 13-17 of the UK’s National Security Bill.
[1] For more see the dissenting opinions of the Australian High Court in LibertyWorks Inc v. Commonwealth of Australia.