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Letter to Minister Mendicino on the Foreign Influence Transparency Registry

The Honourable Marco E. L. Mendicino
Minister of Public Safety
House of Commons
Ottawa, ON

Dear Minister:

I am writing to provide my feedback on the proposed foreign influence transparency registry. Given the importance of this issue and my concerns about the impulses behind a registry, I will be making this letter public.

I appreciate that your department has launched a consultation and is seeking feedback on six specific questions. With due respect, they are the wrong questions. Instead, 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?

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

The example of foreign interference provided in the paper is one where harassment and intimidation of Canadian communities instills fear, silences dissent and pressures political opponents. 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.

The consultation paper tries to make the case for a registry to also deal with “malign foreign influence” but is vague about what constitutes malign influence. The specific example given in the paper sent shivers down my spine. Here it is in full:

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.

This example offends so many of the values that Canadians cherish, including internationalism and openness to the world, freedom of association, freedom of expression, and freedom of thought. It also portrays Canadians who have interactions with foreign governments as servile dupes who have no capacity for individual judgement and agency. One could as easily construe the meeting of a prominent academic with the foreign official as an example of Canadian influence on that country. How is it that we have become so insecure as to imagine every encounter with a foreign government only in terms of how the “foreigner” influences us, and not the other way around?

It should be expected that an academic who is working on issues related to a foreign country meet with officials from that country occasionally. It should also come as no surprise that experts on issues far removed from Canada write on those issues with a degree of nuance that is often lost on domestic audiences, but which may be more aligned with the views of a foreign government. That the same academic would share such views with student groups is part of the job of being a teacher, not an act of subversion.

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.

The Wrong Solution

Which is the great irony in a proposed foreign influence registry that is ostensibly about countering interference by authoritarian regimes. 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.

There is another way to define “malign” foreign influence, which the consultation paper hints at. It is to categorize as harmful only those ideas and viewpoints that come from certain countries. The shorthand for these countries is “authoritarian”, “non likeminded”, and “undemocratic”. Under this construct, the registry would target a list of such countries and include essentially all state and non-state entities, on the basis that all entities are potentially subject to the direction and control of the government.

This is a “catch-all” approach that will affect tens of thousands of Canadians who maintain links with designated countries. It will force them to either register or cut off their ties with their native countries. It could include, for example, ties with alumni associations, cultural and sporting groups, business clubs, municipalities, and kinship bodies.

This approach will result in many grey areas where the need to register is subject to the discretion of the Department. In the absence of any evidence of material arrangements with a foreign state, it is inevitable that the test of registration will default to the views of the individual or organization. This again amounts to defining foreign interference as views deemed to be unacceptable to the government of the day. Welcome to Registry of UnCanadian Activities.

Even if many such individuals and organizations are exempted from registration under one government, there is no guarantee that they won’t be required to register under another. In any case, the fundamental problem with this approach is not in the number of entities that end up in the registry; it is in the stigmatization of those for whom the threat of registration is always hanging over them, and the chill in civic discourse and political participation that will descend on whole communities.

Anti-China Sentiment is Driving Anti-Asian Hate

We are already witnessing this chill among Chinese Canadians in particular because of the relentless unsupported allegations by anonymous sources about foreign interference involving Chinese Canadian politicians and ridings where there are large numbers of Chinese Canadians. There is nothing racist about being critical of China or highlighting proven cases of foreign interference in Canada’s domestic affairs. However, the persistent questioning of the loyalties of Chinese Canadians, based on little or no evidence, reeks of racism. It is shameful that political leaders of all stripes have aided and abetted the slurs and innuendo perpetrated by unprincipled and irresponsible journalists.

It does not help that your government has repeatedly made vague comments about the threat of foreign interference without spelling out what those acts are. Canadians, especially racialized minorities, cannot prevent foreign interference if they don’t know what it is. If media accounts are to be believed, meetings with Chinese diplomats, campaigning for candidates that are “friendly” to China and objecting to a foreign agent registry are examples of foreign interference. Are they?

There is widespread agreement about the spike in anti-Asian hate since 2019 and leaders across the political spectrum are united in condemning it. Yet very few have the courage to admit that the single biggest driver of racism towards Chinese and other Asian Canadians is the growing anti-China sentiment in Canada. The proposed registry is driven by that same sentiment, with little regard as to whether it will work and what the negative effects will be for Canadians.

Foreign Influence is Part of What Defines Canada

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. This is as much a problem of the sources of foreign influence as it is one of content. A registry that focuses solely on foreign influence from authoritarian states omits influences from other states and from non-state actors that are surely much larger in size and scope. To suggest that the latter category of foreign influences is small and mostly benign is naïve in the extreme. Put simply, foreign influence in Canada is pervasive, as befits an open economy that values internationalism and prides itself as a country of immigrants and multiculturalism. It is futile and harmful to try and categorize types of foreign influence using crude identifiers such as country of origin and type of government.

The Golden Rule

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.

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.

But to require registration of state-linked foreign influence in Canada opens the door to reciprocal actions by other countries, which could be highly problematic for Canadian businesses, NGOs, academics, and aid workers abroad. This is in fact the basis on which the EU (rightly) protested a recent proposed foreign agent law in Georgia, but it also points to the hypocrisy of double standards in the kinds of foreign influences that are deemed acceptable and those that are not. 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 About the Five Eyes?

Proponents of a registry are fond of pointing to similar legislation in the US and Australia and asking why Canada has not followed suit.

That is the wrong question. 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. My assessment is that the costs of a foreign influence/agent registry are much greater than any meagre benefits. Here is a simple test: Has there been less malign foreign influence in the United States since the passing of the Foreign Agent Registration Act of 1938?

A recent example points to the dangers of FARA-type overreach. On the urging of a US Senator and Congressman, The China Project -- an online news portal focusing on contemporary China and US-China relations -- was targeted for listing under the Foreign Agent Registry Act (FARA). That campaign was not based on any evidence of material links with the Chinese government, but it would seem, on the content of The China Project and the background of its principals. It turns out that this organization is not only unaffiliated with the Chinese government, but its postings and podcasts are banned in the People’s Republic of China.

The Australian example is similarly dispiriting. Canberra’s Foreign Influence Transparency Scheme (FITS) is widely seen as a “blacklist”, resulting in reputational damage for registrants and a chilling effect on benign foreign interactions in Australia. By some accounts, foreign interference activities in Australia are at an all-time high even though FITS has been in place for more than four years. While some would argue for a stronger FITS, the more intuitive conclusion is that the registration scheme was the wrong tool to counter foreign interference in the first place.

We are not the United States or Australia

There is yet another reason why Canada should not follow the example of the United States and Australia. It is that we are not the United States or Australia, both of which have a different history and ethos with respect to race relations.

Canada is not without its own dark history of racism, first and foremost towards indigenous peoples, but also with respect to Jews, Irish, Ukrainians, Doukhobors, Italians, Sikhs, Japanese, Tamils, Hindus, Chinese and more. But today, we celebrate the fact that Canada is a country of immigrants and that we embrace the concept of multiculturalism. If multiculturalism is to be anything more than a slogan, it must mean that we do not interpret “foreign” to mean “suspicious”, or worse, “threatening”. It should also mean a determination on the part of our leaders to foster a political culture that seeks to discriminate between positive and negative influences on our society through openness, education, and dialogue, rather than censorship and stigmatization. In making this point, I am appealing not only to your government but to the entire political class, which has been complicit in the rush to judgement on matters of foreign interference, and complacent about the risks of national security overreach.

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.

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. Twenty years from now, I would like to think that we will be able to look back on 2023 in the same way we remember 2003, when Canada resisted American pressure to participate in the invasion of Iraq. This is not about turning our backs on the Americans; it is about pursuing what we believe to be right for Canada.

One Hundred Years after the Chinese Exclusion Act

As it is, our better instincts have already been compromised by an extreme anti-China sentiment that has spilled over into the toxic stigmatization of Canadians who do not share such views or who are associated with the People’s Republic of China because of their ancestry, business ties, or professional interests. The recent media reporting of anonymous and unsubstantiated “intelligence” reports focusing on China has created a frenzy of innuendo against Chinese Canadian politicians, scholars, and community leaders – all in the name of national security. A combination of ignorance, ideological zeal, fear, groupthink, and political cowardice has created the very conditions under which a foreign influence registry is most dangerous and why we need to warn against it.

The great irony is that discussions around a foreign influence registry are taking place on the 100th anniversary of the enactment of the Chinese Immigration Act. Chinese activists at the time took to calling it the Chinese Exclusion Act because of the near total prohibition of immigration of Chinese people to Canada between 1923 and 1947. But they could just as well have called it the Chinese Registration Act because the law required all Chinese in Canada to register within 12 months of its enactment, on the threat of fines, jail and/or deportation. Even after registering, Chinese in Canada were subjected to the humiliation of constant harassment by enforcement officers who would challenge the authenticity of registration certificates.

To be sure, a modern-day registry would not result in the enforced registration of all, or even most, Chinese in Canada. But it could require the registration of all Canadians who are deemed to be under the influence of the Chinese (and other) governments. That may not be as severe as the Chinese Immigration Act of 1923, but it would still be a form of exclusion that is as unacceptable today as the original Exclusion Act was a century ago. In some ways, a modern-day registry is worse because it would suggest that we did not learn anything from previous episodes of xenophobia and discrimination against minority groups in Canada. On the contrary, it would suggest that the Canadian state has an evergreen capacity to conjure up justifications for the selective discrimination of its citizens.

A Most UnCanadian Proposal

In summary, a foreign influence transparency registry 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.

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. 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 will reconsider the foreign influence transparency registry.

Yours sincerely,

The Honourable Yuen Pau Woo