The foreign influence registry could fail a Charter challenge; Ukraine war update and more

FOREIGN INFLUENCE REGISTRY UPDATE

We first considered the potential dangers of a foreign influence transparency registry for Canada in our blog post of 23 April.  Our concerns have only increased since then, but before explaining why, we wish to recall the statement made by RI President Peggy Mason at the beginning of that post:

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.

Citing an unnamed government source, first reported in La Presse and on Radio Canada, CBC journalists Peter Zimonjic and Louis Blouin write that the federal government has completed its public consultation process and

will move forward with the creation of a registry of foreign agents to help prevent China and other countries from meddling in Canada’s affairs.

The anonymous source is also quoted as saying that the consultation process

showed Canadians broadly support the initiative.

The apparent intention of the government to move forward with the registry comes against the backdrop of the expulsion from Canada of Chinese diplomat Zhao Wei

after an intelligence report accused him of trying to target the family of  [MP Michael] Chong, who has been critical of China’s treatment of its Uyghur Muslim minority.

Following the expulsion, the House of Commons has unanimously agreed that

a committee should strike a study into the “intimidation campaign” allegedly orchestrated by a now-expelled Chinese diplomat against Conservative MP Michael Chong and his family.

Let us hope that the Committee is able to consider actual evidence of the alleged campaign, not just unproven assertions in leaked intelligence reports.

Intelligence is not evidence

For a good discussion of why intelligence is not evidence, see ‘Intelligence is not truth’: Why prosecuting foreign election interference is rare” (cbc.ca, 2 March 2023).

One quote from that article, from security expert and professor at the Norman Paterson School of International Affairs Stephanie Carvin, illustrates the problem:

Sources are human. They can get things wrong, they can report rumours, they can lie….. People who are being wiretapped may know that they are being wiretapped, so they can say things that are trying to deliberately mislead people.

Foreign agent registries and the weaponization of transparency

In the aforementioned CBC article on the government’s intentions to move forward with the registry, its authors write:

Under a foreign agent registry, people who act on behalf of a foreign state to advance its goals would have to disclose their ties to the government employing them.

The article goes on to say that Canada is seeking to “learn from the US,” which has had a Foreign Agent Registry Act since 1938.

But the scope of the American registry goes far beyond people “employed by a foreign state to advance its goals,” as the International Center for Not-for-Profit Law (ICNL), in its extensive work on the dangers to civil society from this legislation, has repeatedly demonstrated.

In their website introduction to their work, they state:

Amidst concern about foreign influence, the Justice Department has ramped up enforcement of the Foreign Agents Registration Act (FARA). While it is understandable that policymakers want to protect U.S. politics from foreign interference, FARA is overly broad and vague. It has been repeatedly “weaponized” to target nonprofits, activists, and others. To address this problem, ICNL has called for better targeting of FARA’s provisions.

In their short briefer on the danger of FARA to U.S. civil society (March 2021), they include the following astonishing examples of the scope of entities that must register:

  • A U.S. religious organization [was required] to register as a “foreign agent” for helping prepare banners for foreign attendees to a March for Life rally because in printing banners for a foreigner it acted as a “publicity agent” under the Act.  Nov. 19, 2019, advisory opinion.
  • A U.S. environmental nonprofit [was required] to register because it received a grant from a foreign government to improve multi-national corporations’ product sourcing practices to reduce the effect on the environment in tropical countries. March 13, 2020, advisory opinion.
  • A consultant of a foreign non-governmental foundation [was required] to register for helping the foundation educate members of the U.S. public about development, democracy, and good governance issues abroad. Aug. 6, 2019, advisory opinion.

The extent of the problems with the American legislation we are apparently seeking to emulate is further elaborated in detail in the following articles by Nick Robinson, the Senior Legal Advisor for the U.S. Program of ICNL:

And then there is the key role that FARA plays in justifying laws that target civil society around the world. An ICNL brief, available in PDF format here, on this issue begins:

The past decade has witnessed a rise in authoritarianism and tightening space for civil society worldwide. Foreign agent laws have been a key part of that trend, with governments weaponizing both their overbreadth and ambiguity to target civil society and dissent.

See also “Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency, Duke Law Journal (2020)

The Rideau Institute comments:

There is no mention  in the CBC article of any concerns over the American registry.

Joint NGO Statement condemns proposed EU FARA

Civil society concerns are not limited to the United States. On 4 May 2023, a statement was signed by Transparency International EU and over 200 other civil society organizations entitled:

EU Foreign Interference Law: Why We Are Against An EU FARA

Joint Statement: EU foreign interference law a threat to civil society

The statement goes on to call for

exceptionally careful consideration and a formal impact assessment – to determine whether such a legislative instrument is a necessary and proportionate response, to what is currently a very undefined aim.

Transparency International EU is part of the global anti-corruption movement. Its mission is

to prevent corruption and promote integrity, transparency and accountability in EU institutions, policies and legislation.

The Rideau Institute comments:

That this organization is leading the opposition to an EU Foreign Agents Registration Act surely speaks volumes, but as with the American legislation, the CBC article is silent on such concerns or indeed any concerns at all about the efficacy of this mechanism or its potentially negative consequences.

Canada’s proposed registry and the Canadian Charter of Rights and Freedoms

Quite aside from its potentially grave effects on civil society groups, the proposed registry has a potential chilling effect on the freedom of expression of all Canadians, particularly diaspora communities who risk being stigmatized by the very tool that is meant to shield them from foreign interference.

The Canadian Charter of Rights and Freedoms begins:

Guarantee of Rights and Freedoms

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2 Everyone has the following fundamental freedoms:

  • (a) freedom of conscience and religion;
  • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  • (c) freedom of peaceful assembly; and
  • (d) freedom of association.

In an article entitled Freedom of Expression in Canada (Supreme Court Law Review, 2013), law professors Kent Roach and David Schneiderman review the history of the legal right to freedom of expression in Canada, noting first:

The ability to speak about matters that concern us — subjects that inspire and move us into action through expression — is central to contemporary ideas about liberty and democracy. For these reasons, McLachlin C.J.C. in “Sharpe” endorsed the idea of free expression as “the matrix, the indispensable condition of nearly every other freedom”.

Dr. Leah West, an Assistant Professor of National Security Law at Carleton University’s Norman Paterson School of International Affairs, has posted online her full submission to the public consultation on the proposed Foreign Influence Transparency Registry.

She writes:

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.

She continues:

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.

She summarizes her approach as follows:

  • 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.

Close allies to be exempted: US, UK, Australia and New Zealand

In addition to exempting registered diplomats, UN and other officials of accredited international organizations, and lawyers representing foreign principals in legal proceedings, Dr. West proposes that there also be an exemption for:

Persons in arrangements with foreign principals from states listed by the Minister via regulation (e.g. Canada’s closest allies: US, UK, Aus, NZ.)

The Rideau Institute comments:

The Lobbying Act already covers all paid lobbying of federal office holders in relation to federal policymaking, awarding of federal contracts, or other financial benefits. This would include lobbying on behalf of foreign principals (with diplomats and UN officials exempted).

It is therefore not clear at all why close allies should be exempted from the Foreign Influence Transparency Registry, not to mention the difficulty the Government of Canada would have in justifying why it has exempted certain close allies and not others.

In short, if it is necessary at all, then it should apply to all foreign governments equally.

Journalists, charities, CSOs and academics

Regarding journalists, Dr. West writes:

I believe bona fide journalistic activities would never be captured by the registration obligation as I’ve defined it.

She continues:

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.

Even if the Government of Canada were to adopt Dr. West’s suggested approach, it is hard to determine whether she has defined registrable activities in a sufficiently narrow manner as to avoid the litany of concerns raised by European and American civil society organizations referenced earlier in this blog post, not to mention the chilling effects on freedom of expression that she herself has raised.

The Rideau Institute comments:

Given the potentially dire implications for freedom of expression and its centrality to our exercise of other fundamental rights and freedoms, it is surely prudent for the Government of Canada to refer its draft legislation on a Canadian Foreign Influence Transparency Registry to the Supreme Court of Canada for an advisory opinion.

Whither Canada?

Given the extraordinary damage that could be caused to the fundamental freedom of expression by overreach (even if inadvertent) in the proposed Foreign Influence Transparency Registry, we call on the Government of Canada to forthwith indicate its intention to refer its draft registry legislation to the Supreme Court of Canada for an advisory opinion.

UKRAINE UPDATE

The Russia-Ukraine War Report Card (Belfer Russia-Ukraine War Task Force, 9 May 2023)

May 9 update: Continued stalemate. Ukrainian and US officials denied involvement after two drones flew into the Kremlin. Net territorial change in the past month: Ukraine +48 square miles.

Reconciling peace and justice

Brian Finucane and Stephen Pomper have written a superb, but subscription-only, article in Foreign Affairs entitled Can Ukraine Get Justice Without Thwarting Peace? Now Is Not the Time to Create a Special Tribunal for Russia (8 May 2023).

 In the authors’ view:

Seeking accountability for Russian President Vladimir Putin and other senior Kremlin officials now, while Russia and Ukraine remain locked in combat, is hard to reconcile with any realistic Western war aims.

A big push to prosecute Russian leaders for starting the war signals a desire to remove Russia’s leadership, risks escalation, and would almost surely complicate diplomacy to bring the war to an end.

And then there is the danger of failure:

If establishing such a court ultimately proves futile, it could also weaken rather than strengthen the international criminal justice project.

Finucane and Pomper therefore conclude:

Rather than barreling ahead and risking a full-on collision between the interests of peace and justice, Ukraine and its partners should pursue a sequenced approach in which accountability efforts are better harmonized with the goals of conflict resolution.

 Whither Canada?

One thing that Canada can do immediately to help the International Criminal Court in its accountability efforts is to respond positively to the Court’s request for budgetary assistance, made on a recent visit to Ottawa by ICC chief prosecutor Karim Khan.

In his words:

What we’re asking for is peanuts.

UPDATE ON ISRAEL-PALESTINE

Under the heading, The Question of Palestine, a UN statement reads:

This year marks the 75th anniversary of the mass displacement of Palestinians known as “the Nakba” or “the Catastrophe”The UN Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP) will commemorate the 75th anniversary of the Nakba at UN Headquarters in New York.

It will take place on 15 May, pursuant to the mandate by the General Assembly given in resolution A/RES/77/23 of 30 November 2022, and will mark the first time in the history of the UN that this anniversary will be commemorated.

The planning of this event was taking place against the backdrop of the fourth day of Israeli air strikes against Gaza and rocket fire attacks launched by Islamic Jihad into Israel. Commenting on the violence, the UN Special Rapporteur on human rights in the occupied territories, Francesca Albanese, an Italian lawyer and human rights academic, stated:

Member states need to stop commenting on violations here or there, or escalation of violence, since violence in the occupied Palestinian territory is cyclical, it is not something that accidentally explodes.

There is only one way to fix it, and that is to make sure that Israel complies with international law.

On the fifth day of the conflict, a ceasefire was agreed and appears to be holding.

Photo credit: Wikimedia Commons (Ukrainian tank)

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