Canada’s foreign influence transparency registry has recently come into force, yet the regime remains mired in uncertainty to a degree that threatens to undermine the very democratic institutions it is intended to protect.
The regime was adopted in the wake of growing interference by foreign states in democratic processes in Canada and around the world. In principle, it could provide an important transparency mechanism that obligates people in Canada to register any covert arrangements to conduct Canadian-related political advocacy at the direction or under the authority of a foreign government.
But in practice, little attempt was made to tailor the regime to its objective and as a result it threatens to capture significant amounts of low risk and even fully transparent activity, with severe consequences for the media, academics, lawyers, and the operation of the international human rights framework in Canada.
“In what has since become an all too common practice, this regime was forced through the legislative process at breakneck speed and with little opportunity to consider its negative implications”, said Howard Sapers, Executive Director of the Canadian Civil Liberties Association. “Journalists, universities, civil society and others are now left to grapple with the consequences.”
Canada’s regime is explicitly modelled on similar regimes adopted in the US, the UK and Australia, but it incorporates the many of the broadest features of these other regimes while ignoring their limitations and safeguards. All of the regimes, for example, include explicit safeguards for journalists, lawyers and for activity that is already inherently transparent, but Canada’s does not.
In correspondence to the Office of the Foreign Influence Commissioner, which oversees the operation of this new regime, CCLA identified a number of concerning scenarios where the registry mechanism could lead to disclosure of confidential information that poses little risk of foreign interference.
For example, if a Canadian journalist attributing a quote to an anonymous high placed official in the European Union in a news story, the role of the foreign state is already self-evident for anyone who reads the story. But without any exception for transparent news reporting, the journalist could be obligated to report the name of their source to the registry. The ability to protect sources is integral to the important work of journalists.
CCLA is seeking confirmation that this and other problematic situations are excluded from the scope of reporting obligations, particularly in light of the severe penalties that can result for anyone who fails to comply.
Other foreign influence regimes have also been heavily criticized for mostly catching innocuous activity. A recent legislative review of the Australian regime, for example, concluded that the overly broad scheme had “failed to achieve its intended purpose” and that the “compliance burden and resources required to administer” the scheme could not be justified.
“Our experience with foreign influence registries in other countries shows that casting too wide a net is both counterproductive and creates a significant chilling effect on activity that is essential to any democracy”, said Tamir Israel, Director of the Canadian Civil Liberties Association’s Privacy, Surveillance and Technology Program. “Canada’s regime seems to have learned none of these lessons, adopting the sweeping breadth of these regimes and none of their explicit safeguards.”
CCLA is urging the Office of the Foreign Influence Commissioner to provide clarity on the regime’s limitations and to identify where changes to the regime’s general legal framework might be required to address concerns arising from its overbreadth.
