Canada's Foreign Influence Registry: Key Compliance Questions

Canada’s foreign influence registry is a public database of foreign influence activities relating to political and governmental processes in Canada. The registry plays a complementary role to larger national security efforts. Many government initiatives seek to protect the country’s democratic and political processes from foreign interference. Unlike those initiatives, the foreign registration law was drafted to capture a broad range of activities that seek to (directly or indirectly) influence Canadian decision-makers. Many legitimate and “ordinary-course” business activities are caught and must be registered. Similar registries go by different names in different jurisdictions. Under the Canadian regime, one could be required to register despite not being an “agent”, so the term “foreign influence registry” is used instead.

Canada’s foreign influence law uses the flexible concept of an “arrangement”, which does not require a contract, formalities, or even compensation.

The law sets out a three-part test to determine whether a person (individual or entity) must file and maintain a registration for their arrangement:

1. The person enters an arrangement to act under the direction, or in association with, a foreign principal.
2. The arrangement involves carrying out covered activities.
3. The covered activities relate to a political or governmental process.

A political or governmental process includes virtually any decision of a government, public office holder or public body, including procurement and contracting decisions. The holding of elections or referendums, or nomination or platform decisions by a political party are also included.

Any one of the following activities, if in relation to a Canadian political or governmental process, can trigger a registration obligation:

• Communicating (orally or in writing, formally or informally) with a public office holder, which includes virtually every elected official, appointee, and employee, no matter how junior, at every level of government of Canada.
• Communicating or disseminating information to the public by any means, including social media, giving interviews, conducting surveys, sponsoring events, and participating on panels.
• Distributing money or items of value, or providing a service or the use of a facility. This is a broad, multi-faceted category, and includes activities that range from distributing books and planning a community meeting, to hosting a foreign official or sponsoring travel.

The term “foreign principal” includes many different types of foreign entities, including:

• a foreign state
• a group of foreign states (for example, a multilateral organization of which Canada is a member, such as NATO or the United Nations)
• any entity, including a business or not-for-profit, that is controlled, in law or in fact, or is substantially owned, by a foreign state or group of foreign states
• any person acting at the direction of, for the benefit of, or in association with, any of the above

Canada’s foreign influence law is broad enough to capture virtually any relationship where activities are to be performed under the direction of, or in association with, a foreign principal.

• An “arrangement” can be formal or informal, written or unwritten, paid or unpaid.
• “Direction” can be relayed through orders, requests, or even expectations. It can be signaled by feedback or mere encouragement.
• Work in “association” need not involve control at all. It could be evidenced by coordination work or sharing communication channels.

Canada’s foreign influence law includes provisions that capture arrangements relating to Indigenous governments and public office holders thereof.

However, for the time being, those provisions have not been brought into force.

No.

The stated goal of the foreign influence registry is transparency, and it is expected to capture a large amount of legitimate commercial and civic activities.

Mostly, but not entirely.

After a registration has been submitted and approved by the Foreign Influence Commissioner’s office, it will be published (with some information removed) on the registry. For instance, the full list of those staffing the matter will be publicly disclosed, but not their dates of birth.

All information on the registry will be public and easily searchable.

Not necessarily.

For some projects, third parties will also be involved. If one of those other parties is a foreign principal and you are collaborating by (for example) coordinating messaging or resources, you might need to register because you are working “in association” with them.

No.

While US FARA (Foreign Agents Registration Act) exempts some private commercial activities, the Canadian regime has no such exemption.

No.

Registering as a lobbyist does not meet your obligations under the foreign influence law. In fact, it could increase your risk because it will publish information about your activities.

Some situations require a foreign influence registration but not a lobbyist registration, and vice versa. Similarly, some information to be included in a foreign influence filing is not part of a lobbyist registration, and vice versa.

US FARA (Foreign Agents Registration Act) does not require registration when an agent is properly registered under the Lobbying Disclosure Act. However, Canada’s regime contains no such exemption.  

No.

The Canadian regime is inspired by foreign influence schemes elsewhere, but it is much broader in some respects. Many exemptions common in other jurisdictions are absent in Canada.

No.

The Canadian foreign influence registry is country-agnostic.

No.

There is no sector-specific exemption for charities or not-for-profit entities.

No.

Unlike in other jurisdictions with registries, Canada’s foreign influence law has no exemption for legal professionals or the provision of legal services.

Administrative monetary penalties (AMPs) are increasingly being used by Canadian regulators as a tool to enforce regulatory compliance.

Unlike ordinary prosecutions, which proceed through the courts and require a formal trial, AMPs are imposed through a summary procedure that lacks many protections available to defendants at trial.

Although administrative rather than criminal, AMPs can carry significant financial and reputational consequences. Under the Act, penalties of up to $1 million may be imposed, and details of violations are made public by the Commissioner.

Failing to make a required filing, providing false or misleading information, and obstructing the Commissioner are all offences punishable upon criminal conviction by a maximum fine of $5 million, up to five years’ imprisonment, or both.

As an alternative to criminal prosecution, the regime allows the Commissioner to impose an administrative monetary penalty of up to $1 million.

Yes.

The obligation to register rests with the person who undertook to carry out a covered activity under an arrangement. The legal obligation to register is not excused by an uncooperative foreign principal (although that fact may be considered when determining the severity of the penalty or the Commissioner’s enforcement posture).

Yes.

The Commissioner has broad powers to publicly name persons against whom penalties have been issued, including details of the contravention. Procuring authorities, the media, and other stakeholders often see little distinction between an administrative penalty and a criminal sentence imposed by a court.

The Commissioner has the same powers as a court to interview, to compel testimony, and to require the production of documents. The Commissioner's sweeping powers can be used to investigate suspected non-compliance with the Act, and to issue public reports of non-compliance.