Senator Yuen Pau Woo

After nearly two years, the Foreign Influence Transparency Registry (FITR) is finally on the home stretch. The consultation period on the draft regulations has just ended, clearing the way for the creation of the registry. Anton Boegman, a former BC Elections Official, has been nominated for the position of Commissioner. He has a tough job ahead of him. 

Those who view FITR as a tool to expose foreign spies and covert proxies will be disappointed because the registry is designed as a “white list” of legitimate activities, not a black list of nefarious goings-on. At the same time, many individuals and organizations engaged in legitimate cross-border engagement may find themselves unfairly stigmatized – whether they register or not. In practice, FITR risks becoming an exercise in bureaucratic form-filling that may shed some light on foreign influence but will reveal very little about foreign interference.

Under the proposed framework, any person carrying out certain activities related to a political or governmental process under the direction of, or in association with, a foreign principal would be required to register. 

The scope of what constitutes a “political process” is expansive, extending well beyond elections to include the development or amendment of virtually any policy or program at all levels of government, including Indigenous governments.

Registration is required even if there is no direct engagement with public officials. Public commentary, such as social media posts addressing policy issues, could be sufficient to trigger registration. Likewise, the definition of a “foreign principal” extends far beyond foreign governments to include foreign businesses, NGOs, cultural organizations, foundations, and think tanks.

The key test is whether activities are conducted “under the direction of” or “in association with” a foreign principal. If you are paid by the foreign principal, you are clearly “under the direction of” and should already be listed in the Lobbyist Registry, which begs the question of bureaucratic overlap between the two registries.

Absent payment, I don’t know how the Commissioner will determine if someone is “under the direction of” or “in association with” a foreign principal. Is the work of a bilateral business or friendship association “at the direction” of a foreign principal? Do periodic meetings with foreign diplomats constitute being “in association with” that government? What about employment in a multinational corporation or collaboration with foreign academic institutions?

When Public Safety Canada issued a consultation paper on a possible registry in 2024, they offered the example of a Canadian academic who was asked by a foreign principal to write an op-ed opposing the Government of Canada’s position on a particular issue. This might seem to be an open and shut case, except that the only way in which authorities would even suspect the academic in the first place is if that scholar’s views did not align with the government.  Which amounts to guilt by association (the academic may well have met with a foreign principal) and an infringement of free expression.

The Registry has the laudable objective of “distinguishing between legitimate and transparent foreign influence and covert and non-transparent foreign influence”. This would be a good outcome if the regulations were clear about activities that are registrable and those that are not. Without such clarity, we can expect that persons who are involved in incidental and benign “foreign influence” activities but who, in good faith, do not register, will be suspected of being involved in shady activities and draw unwanted attention from security agencies.

It is therefore surprising that the draft regulations seem to exempt “foreign-funded institutions or media outlets” from registration. Surely, given the outsized influence of foreign-funded media and advocacy groups, leaving them off the registry would create a gaping hole in capturing the most material sources of foreign interference.

The registry will be country agnostic, as it should be. As such, one should expect that with such a broad definition of “arrangements” and “foreign principals”, the largest number of registrants will be those with ties to countries that Canada has maintained the longest and deepest political, economic, and cultural ties with. 

Will we, in fact, find that the largest number of listings are of foreign principals from places like the United States, Britain, Europe, and Israel? Or will pressure be put on the Commissioner and partner agencies to use the registry as a witch hunt to target Canadians with ties to “unfriendly” countries?  

The government has taken pains to stress that non-compliance will result in mostly administrative monetary penalties rather than criminal prosecution. However, non-compliance could also trigger a different kind of penalty, through the Foreign Interference and Security of Information Act, which says: 

“Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty in relation to such a process or such governance or the exercise of a democratic right in Canada”.

A major test of “surreptitious or deceptive conduct” is presumably the failure to comply with FITR. Under this offence, the maximum penalty for conviction is life imprisonment. Why would Canadians, especially recent immigrants who maintain benign ties with “foreign principals” run the risk of going to jail for participating in civic activities?

Officials point to other jurisdictions that have registries but fail to explain whether they have made any difference in combating foreign interference.  

The Australian scheme, on which FITR is modelled, was found to have significant flaws and in need of substantial reform. After careful study, New Zealand has rejected the need for a registry, opting instead for changes to the criminal code. And we have been reminded of the deadly harms of the US Foreign Agents Registration Act (FARA), which President Trump invoked in his recent Memorandum on Countering Domestic Terrorism and Organized Political Violence — brutally enforced in Minnesota for all to see.

The FITR has been a long time coming. It was mooted over fevered concerns about foreign interference in the 2019 and 2021 general elections, which were eventually found by the Foreign Interference Commission to be immaterial to the results of the election. But the political pressure for a registry was overwhelming, and in 2024, Parliament rushed through a bill creating FITR in about a month. 

The train has now left the station, and we will soon have a registry that is well-intentioned but ill-conceived.  While transparency is a worthy goal, poorly designed transparency regimes can chill free expression, stigmatize legitimate engagement, and distract from genuine security threats.  It will now be up to Mr. Boegman to ensure that these excesses do not materialize.

Originally published by The Institute of Peace and Diplomacy