Key Facts
- Commissioner
- Anton Boegman
- Bulletins issued
- Five interpretation bulletins
- Registration deadline
- 60 days for existing arrangements; 14 days for new ones after Aug. 4
- Solicitor-client privilege
- Advice subject to privilege is not an influence activity
- Public Safety Minister
- Gary Anandasangaree
Background
Canada’s new Foreign Influence Commissioner moved on the first day of his mandate to clarify the rules for a registry the government has promised will shed more light on state-backed meddling within the country.
The registry is part of the Liberal government’s broad response to concerns raised about state-backed meddling in elections and other democratic processes in Canada, which culminated in the 2024 Hogue Inquiry.
As of Tuesday, individuals or organizations that have an arrangement with a foreign principal to conduct activities intended to influence Canadian politics or government processes must register those arrangements or potentially face fines or criminal prosecution.
Current Situation
The commissioner’s office issued five interpretation bulletins on Tuesday for key parameters of the new system, providing guidance for those who may have to log their activities.
Among the issues addressed by Commissioner Anton Boegman in the bulletins Tuesday are the definition of arrangement, what an influence activity is or isn’t, and – in an important notice to the legal community – where solicitor-client privilege sits in the mix.
“Providing advice, which is subject to solicitor-client privilege, to a foreign principal is not considered an influence activity,” one of the bulletins said. “This activity does not count as an influence activity as it does not involve communicating with or providing a benefit to members of the public or public office holders in an attempt to sway their position on a Canadian political or governmental process.”
Impacts
Those whose work would have qualified for registration as of Tuesday have 60 days to register. Any new arrangements entered into after Aug. 4 must be logged within 14 days. After review by the commissioner’s office, registrations will be made public.
What the new system is set up to capture is much broader than influence linked to elections. It includes, for example, the potential that journalists who conduct interviews with foreign officials will have to register, as would state-backed businesses engaging with the government over issues such as permits or licences.
Timothy Cullen, a partner at McMillan LLP, said in an interview that he was pleasantly surprised to see the commissioner deal with the question of solicitor-client privilege right off the bat, but would have liked to see it go further. Interpretation bulletins are non-binding and can be changed, he pointed out. “An exemption could have been issued by regulation and would be far more legally significant than a mere interpretation bulletin,” he said.
Future Outlook
Scenario analysis: The possibilities below are not certain predictions.
In an interview ahead of the registry launch, Mr. Boegman said the registry requirements were designed broadly so as to minimize loopholes, but his office would be watching to see where tweaks might be necessary over time.
Mr. Cullen said he’s waiting to see what the first batch of public registrations reveals. “I’m very curious to see what ends up being reported in the first round of public disclosures and whether there is overdisclosure or unnecessary disclosure that results in the commissioner issuing further clarification,” he said.
If the first round of disclosures reveals overdisclosure or gaps, the commissioner may issue further clarifications or tweak the rules. However, any changes through interpretation bulletins would be non-binding, and more significant changes could require regulatory amendments.
Source: theglobeandmail.com
