The foreign agent registry should be active and enforceable in Canada, but it’s not. So, what happened?

On June 20, 2024, Canada’s most significant national security legislation since 2019 was assented to in short order. Among several reforms targeting foreign interference, was the birth of the foreign agent registry—a framework that our American counterparts have had since 1948.

The proposed parameters for the registry are technically in force, although not yet implemented in practice. The primary purpose of the registry and the office administering it, among other things, is to shed light on any proxies who seek to exert foreign influence/interference.

The delayed implementation of the registry in Canada has left individuals in the dark with respect to enforcement and possible quasi-criminal sanctions.

Here’s what you need to know about what comes next.

A refresher on the registry

The foreign agent registry requires anyone who enters into an arrangement with a foreign principal to report to the Commissioner within 14 days after which the arrangement is entered.

An arrangement is one where a person undertakes to carry out—under the direction of or in association with a foreign principal—a political or governmental process in Canada. This includes either:

  • Communicating with a public office holder.
  • Communicating, disseminating or helping to communicate/disseminate political or government-related information in Canada—by any method, including social media.
  • Distributing money or items of value or providing a service or the use of a facility.

Importantly, a foreign principal includes a foreign economic entity, a foreign entity, a foreign power or a foreign state (see these definitions for more detail under section 2 of the Foreign Interference and Security of Information Act).

For example, a company engaging in the development of a legislative proposal, or the development of a policy or program, with a public officer holder in Canada, and on behalf of a foreign state may be required to register their arrangement publicly.

Failure to register could attract quasi-criminal offences, together with significant monetary penalties. These orders will be made a matter of public record and can attract fines up to $5 million dollars for individuals.

There are clear exemptions in the legislation, which include but are not limited to valid, diplomatic, consular, official or special representatives’ work. It remains to be seen whether any regulations will exempt further activity.

The registry is not yet in effect

The short answer is that the registry is not yet in place.

A Commissioner has not been appointed to administer the Act, an office for the Commissioner has not yet been established, and therefore, there are no conceivable fines that could apply at this time.

For the moment, it does not appear that this is a priority for the government.

With the prorogation of Parliament until March 6, 2025, and a possible election looming large thereafter, it is highly unlikely that the registry will be implemented in practice until the next government is formed.

In order for the legislation to have clout, the following must transpire:

  • A Foreign Influence Transparency Commissioner must be appointed.
  • This appointment must be made after consultation with:
    • The leader of the Government in the Senate or Government Representative in the Senate and the leader of the Opposition in the Senate.
    • The leader or facilitator of every other recognized party or parliamentary group in the Senate.
    • The leader of the Opposition in the House of Commons.
    • The leader in the House of Commons of each party having at least 12 members in that House.
  • The appointment must be approved by a resolution of both the House of Commons and the Senate.

To date, no such candidate has been identified—at least, not to the knowledge of the public.

Once a Commissioner is appointed, an office must be established and staff must be hired. The Commissioner’s first task will be to appoint skilled and competent individuals to aid in the implementation and administration of the Act.

The Commissioner’s second task will be to draft advisory opinions and interpretation bulletins with respect to enforcement and interpretation of the Act. This would be similar to what the Lobbying and Ethics Commissioner do in Canada.

No doubt, embassies, diplomatic staff, and consular officials (although exempt from this legislation) across the country will be interested in better appreciating the set of circumstances which will ensue from this new legislation, particularly when individuals from their respective countries are communicating with public office holders regarding political or governmental processes at every level of government in Canada.

We will continue to keep the public apprised of the developments as they arise.

If you wish to obtain further information or believe you may be subject to this Act and the future registry, talk to our National Security and Government Affairs professionals and our White-Collar Defence and Investigations team for legal advice and guidance on how you can prepare, ensure compliance, and what this means for individuals in your organization when you communicate with public office holders across provinces, municipalities and at the federal level.