Foreign Influence Registry is a danger to Canadian democracy

THE DANGERS OF A FOREIGN INFLUENCE REGISTRY

Today’s blog post focuses on the grave dangers to the fabric of Canadian democracy we believe lurk in the government’s seemingly sensible decision to “implement a foreign influence transparency registry in order to bolster defences against malign foreign influence.”

RI President Peggy Mason comments:

It is important to underscore at the outset that our concerns have nothing whatever to do with our view of the degree of threat that China — or any other potentially malign state actor — might pose. Our concern is that the registry is not an appropriate tool to address those threats and, indeed, will likely cause far greater harm than it prevents.

The government of Canada has initiated a public consultation process on the type of registry to be established, not whether we should have one in the first place. The consultation paper states:

The purpose of this consultation is to solicit feedback from the Canadian public and stakeholders on how Canada can implement a foreign influence transparency registry in order to bolster defences against malign foreign influence, and what those measures might entail. Input will inform decision-making and the subsequent design of new measures that may be tabled in Parliament.

The Honourable Senator Yuen Pau Woo, a leading Canadian voice against a registry, has provided his feedback to the government in the form of an open letter to Public Security Minister Marco Mendicino. It is a powerful argument for why the registry is such a terrible idea and we will review it here in some detail.

Terms of public consultation are too narrow

Senator Woo argues that, instead of six specific questions on the scope of the registry, we should be

identifying the specific problem that the registry is trying to address and whether the proposed solution creates more harm than good.

What is the problem?

The consultation paper makes clear that the problem is “interference” by a “foreign principal”, of which “malign foreign influence” is a subset.

The definition of “foreign principal” is:

an entity that is owned or directed, in law or in practice, by a foreign government. This could inter alia include a foreign power, foreign economic entity, foreign political organization, or an individual or group with links to a foreign government.

The paper also defines the general category of “influence by a foreign principal”:

A transparent undertaking for the purpose of changing, shaping, or altering in any way, Government of Canada policies, outcomes or processes, or public opinion, on behalf of a foreign principal.

Another word for this activity by governments is diplomacy, which the paper acknowledges in the following statement:

Foreign interference is distinct from normal activities undertaken by foreign states to exert influence, such as legitimate lobbying, advocacy efforts, and regular diplomatic activity.

“Foreign Interference” is defined as follows:

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. This can include, for example, harassment and intimidation of Canadian communities to instill fear, silence dissent, and pressure political opponents.

Senator Woo comments on the examples of harassment and intimidation:

These acts are indeed unacceptable, but harassment and intimidation are already offences under Section 423 of the Criminal Code. If a foreign actor or its proxy engages in harassment and intimidation, that actor should be prosecuted.

That such acts may be taking place with impunity suggests the need for stronger law enforcement or stronger laws, not a registry of foreign influence.

Malign Foreign Influence

Malign foreign influence is defined as:

A covert or non-transparent undertaking by, at the direction of, on behalf of, or with the substantial support of a foreign principal, with the objective of exerting influence and affecting outcomes. This is a subset of foreign interference.

A further relevant definition contained in the consultation paper concerns activities that would need to be registered, defined in part as follows:

‘Arrangements’ between a foreign principal and any person or entity acting, by virtue of that arrangement, on behalf of the foreign principal, could be registrable where the intent of that arrangement is to undertake influence activities in Canada or towards Canadians.

The ‘arrangement’ could be explicit or implicit, and would not need to have been made in Canada to be registrable. Payment or any other advantage to a person or entity acting on behalf of the foreign principal would not be required to undertake the activity and for the arrangement to be registrable. Influence activities may not have taken place yet for the arrangement itself to be registrable. [emphasis added]

Turning back to the issue of what constitutes malign foreign influence, the consultation paper provides the following “illustrative scenario”:

An individual, employed by a foreign government, asks a prominent Canadian academic to write an op-ed opposing the Government of Canada’s approach to a particular international issue, and urging Canadians to likewise disagree. The academic writes the op-ed and it is published in a widely circulated national newspaper. The academic is also asked to engage with student groups on campus to advocate a viewpoint that is favorable to the foreign government. The academic does not disclose their relationship with the individual employed by the foreign government. This is an example of malign foreign influence because the influence activities are undertaken covertly. The foreign interests being represented in the article, and in the engagement with student groups, is not transparent.

Senator Woo concludes his analysis of this highly problematic example with the following sobering statement:

Unless the government deems interactions with certain foreign governments to be illegal, it will be impossible to determine if an opinion piece written by a Canadian following an encounter with a foreign government official is a case of “malign foreign influence”.

Under such circumstances, it is likely that the opinion piece will be deemed to be “malign” because of the views expressed in the piece rather than on any meaningful evidence of “arrangements”. This amounts to a definition of “malign” that has nothing to do with foreign interference, but everything to do with one’s opinions.

It is as chilling a prospect as any that we would associate with authoritarian and repressive regimes.

A tool of repressive regimes

Senator Woo adds:

A common comment I have heard from many Canadians who grew up in such regimes is that the proposed registry resembles what they suffered under — and came to Canada to escape.

The honourable Senator makes a further cogent point when he writes:

By opting for a foreign influence registry rather than spelling out what is considered unacceptable foreign interference, the government is conceding that it cannot easily distinguish between benign and malign foreign influence.

It would rather run the risk of stigmatizing Canadians caught in the web of a registry than provide examples of malign foreign influence that may not amount to foreign interference.

The Golden Rule

Senator Woo proposes the following “golden rule” to guide government actions in this area:

Do not create a foreign registry for the activities of other countries that you would not want other countries to create for Canada’s activities abroad.

He explains further:

It is routine for Canadian parliamentarians, diplomats, and other officials to speak to overseas stakeholders about issues that are important for Canada. Indeed, our foreign service officers actively seek to influence the decision-making of foreign countries in favour of Canadian interests.

They do this by speaking not only with government officials but also with academics, business and civil society leaders, even dissidents — always within the laws of the country they are operating in.

We should expect the same of foreign representatives in Canada, and there should be penalties for transgressions by foreign agents on Canadian soil.

He then asks:

How can we object to a foreign government encouraging its diaspora to take part in Canadian elections (without favoritism, coercion, or corruption) when we fund democracy promotion activities around the world?

What of other Five Eyes allies who have instituted such registries?

Rather than asking why Canada has not yet followed the examples of the US and Australia in enacting a foreign agent registry, Senator Woo argues:

We should instead be asking if the American and Australian experience has resulted in less malign foreign influence and foreign interference, and if any such benefits outweigh the costs of bureaucratic deadweight, social stigma, and a toxic political environment.

That very debate is now ongoing in Australia, with a senior University administrator testifying:

I’m just not sure that this piece of legislation, in and of itself, is actually delivering what the government intended.

But there is a member of the Five Eyes intelligence network that Senator Woo believes we should be emulating:

If we are to draw a lesson from the Five Eyes, we should look to New Zealand, which is quietly looking at strengthening its laws to deal with harmful foreign interference rather than creating a registry that will do little or nothing to address those problems.

Interestingly, there is a different — very specific and focused — type of register that New Zealand has announced its intention to establish:

a beneficial ownership register. Such a register will enhance New Zealand businesses’ ability to identify ultimate ownership and control of potential partners and will support due diligence to reduce foreign interference risks.

As for the example of the United States, Senator Woo writes:

Instead of mimicking the Americans, who are locked in geo-strategic rivalry with the People’s Republic of China, we should contemplate the path that has always distinguished Canada from its southern neighbour — one that is more open to the world, more focused on social cohesion, more interested in the rights of minorities, and less given to ideological excess.

“A most unCanadian proposal”

In his conclusion, Senator Yuen Pau Woo sets out his view of what the foreign influence transparency regime will not do:

[it] will not address egregious acts of foreign state interference such as hacking, harassment and intimidation of Canadians. It will neither reduce foreign influence nor help to distinguish between malign and non-malign forms of such.

On the other hand:

it will stifle legitimate political debate, stigmatize certain groups, and foster inwardness. The costs of a registry will far outweigh its meagre benefits.

To adopt a registry now is to give in to the politics of fear and division. It will result in a smaller, nastier, and more self-absorbed Canada.

The minimum requirements for such a registry

Senator Woo summarizes the minimum requirements for such a registry to be tolerable:

If a registry is unavoidable, it should apply to all countries equally and be based on specific arrangements such as monetary payment between individuals or organizations and a foreign state, rather than on hypothetical or presumed arrangements.

Registration should only be required for lobbying of government officials and politicians, and not for private activities or general communications. It should not be based on country of origin, ethnicity, business and civil society affiliations, and on one’s views.

He concludes:

Inasmuch as a registry seeks to make foreign influence activities transparent, it should be accompanied by full government transparency in describing the types of influence activities that are deemed to be malign, and how the registry would reduce such bad acts.

I hope you [Minister Mendicino] will reconsider the foreign influence transparency registry.

Negative impact on NGOs of foreign influence registries

For the potentially catastrophic impact on non-governmental organizations of foreign interference registries, see Concerned about foreign interference in Canada? An ‘enemy agent’ registry is not the answer (Jordan Stanger-Ross, theconversation.com, 20 April 2023).

In the hopes of encouraging a full reading of the article, we include the following excerpt:

information circulated by the Ministry of Public Safety suggests that if a registry is created, Canadians who advocate viewpoints deemed favourable to foreign interests might be fined or imprisoned, even in cases when they’ve received no payment or benefit for expressing those views.

People accused of intending to express such viewpoints might also be penalized, even if they’ve not yet done so….

Really, this is about countries with whom Canada finds itself in conflict. What’s being proposed is a registry of enemy agents.

Parliamentary e-petition calling on the government to reconsider the foreign influence registry

Chandra Arya, a Liberal MP for Nepean Ontario, is the parliamentary sponsor of an e-petition initiated by Li Wang, of Coquitlam, B.C:

e-4395 Petition to the Government of Canada

We, the undersigned, citizens and residents of Canada, call upon the Government of Canada to reconsider its proposed Foreign Influence Transparency Registry.

It continues:

If current legislation is not adequate to deal with intimidation by foreign actors, the government should consider instead strengthening these laws.

The signatories to the e-petition give the following reasons for their opposition to the proposed registry:

• It will not meaningfully address intimidation and other forms of foreign interference.
• It is a “misleading way” to identify sources of foreign interference.
• It “goes well beyond” agents who are acting for foreign governments.
• It poses a serious harassment and stigmatization risk for racialized communities.
• It could infringe on Canadians’ Charter rights, stifle international business and civil society links.
• It could increase the marginalization of vulnerable communities.

Like Senator Yuen Pau Woo’s letter, the petition ends with a minimum list of necessary requirements if the registry is still deemed necessary. Specifically, it should:

• apply to all countries equally,
• be based on specific arrangements such as monetary payment between individuals or organizations and a foreign state, and
• require registration only in the case of lobbying government officials and politicians, and not for private activities or general communications.

Finally:

It should not be based on country of origin, ethnicity, business and civil society affiliations, and most importantly, on one’s views.

TO SIGN THE PETITION, CLICK HERE.

We also urge readers to email the following parliamentarians to convey support for the petition and its request for the Government of Canada to withdraw its proposal for a Foreign Influence Transparency Registry:

Prime Minister Justin Trudeau: < justin.trudeau@parl.gc.ca  >; < Alana.Kitely@pmo-cpm.gc.ca >;

Public Safety Minister Marco Mendicino: < Marco.Mendicino@parl.gc.ca >; kelly.murdock@ps-sp.gc.ca >;

Leader of the NDP Jagmeet Singh: < Jagmeet.Singh@parl.gc.ca >;

NDP Critic for Public Safety Peter Julian: < Peter.Julian@parl.gc.ca >;

Conservative Critic for Public Safety Raquel Dancho: < Raquel.Dancho@parl.gc.ca >;

Bloc Quebecois Critic for Public Safety Kristina Michaud: < Kristina.Michaud@parl.gc.ca;

Green Party Critic for Public Safety Elizabeth May: < Elizabeth.May@parl.gc.ca >;

And find your local Member of Parliament HERE.

Whither Canada?

We call on the Government of Canada to withdraw its proposal for a Foreign Influence Transparency Registry and instead concentrate on strengthening its laws against harmful interference, including the refinement of legal definitions of prohibited activities and in relation to effective enforcement.

Photo credit: Government of Canada (House of Commons Petitions)