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Foreign influence registry raises solicitor-client privilege concerns

Observers say criteria triggering the duty to register are drafted in broad and vague terms, with much left to future regulations

Parliament of Canada

Civil society groups say the federal government’s foreign agent registry legislation may be too vague and broad in its scope. That lack of specificity is raising concerns it may impact on solicitor-client privilege.

Introduced after Justice Hogue's foreign interference inquiry found there was foreign interference during Canada's 2019 and 2021 general elections, the Countering Foreign Interference Act, as set out in Bill C-70, aims to respond to interference threats by introducing new criminal offences, changing Canada’s spy agency, and increasing transparency and security within the electoral framework. It received royal assent on June 20.

In a briefing to the Senate’s national security committee, Kyla Lee, chair of the CBA’s Criminal Justice Section, expressed concern about “the potentially overbroad and vague nature of criminal offence created in Bill C-70.” She wrote that a foreign entity, as defined in the legislation, is not inherently criminal.

Lee noted that some of the bill’s language echoes what’s in the Criminal Code around terrorist and criminal organizations, neither of which should apply to a foreign entity, and that the bill has an overly broad ambit of the law as a result.

She also pointed to issues with s. 52.1(2)(i), which deals with the sabotage offence.  

“This section vests the executive with the power to prescribe, through regulation, what constitutes 'essential infrastructure’ for the purpose of the offence…More particularly, some political parties have been critical of, for example, foreign environmental group involvement in resource development,” Lee wrote.

The Canadian Civil Liberties Association also sees this provision potentially suppressing legitimate protest, advocacy or dissent.

“The provision has no foreign interference requirement, so it can apply to a wholly domestic context,” says Shakir Rahim, director of the CCLA’s criminal justice program.

He says the type of infrastructure defined is quite broad and includes natural resource development and transport infrastructure. There is a brief carve-out for protest, advocacy and dissent unless someone acts with the intent to cause specified harm, including to Canada’s safety or security.

“The issue is that term isn’t defined anywhere in the Criminal Code, and in other places, that has been defined quite broadly, like in the Security of Information Act.”

To this end, Rahim believes these provisions could be ripe for a court challenge.

Like the CBA, Rahim also has issues with the fact that anyone who commits an indictable offence at the direction of benefitting a foreign association or entity can be subject to life imprisonment.

“Our concern is that it converts any indictable offence under the Criminal Code to one that carries a life sentence, and that is a really broad expansion of penal consequences in the Code,” he says.

“Take an offence like mischief to property, which has a two-year max right now. As soon as there’s a foreign interference component, it becomes life imprisonment, which we think is disproportionate.”

The CCLA also highlights that the term foreign principle can include a foreign economic entity, which is broadly defined as any entity controlled in law or in fact by a foreign state or group of foreign states.

“Right now, we cannot rule out that this definition may capture foreign state-owned or funded media, charities and academic institutions such as universities,” says Anaïs Bussières McNicoll, director of the CCLA’s fundamental freedoms program.

She says the term association doesn’t require a subordinate relationship between the foreign principal and the person, which could capture individuals who had just met and been in contact with foreign entities that fall under the broad definition of foreign principal. If they happen to think the same thing about the same issue, maybe they will be found to be in association with that foreign principal.

Bussières McNicoll is also worried about the reliance on future regulation to identify the type of information that would need to be collected by the foreign influence registry. She says it’s impossible to assess how the state would use it.

“This tool could be used to surveil and maybe even chill international engagement with various actors instead of fulfilling its declared purpose, which is to lessen the impact of foreign interference into the affairs of Canada,” she says.

The registry does not exempt legal advice from triggering an obligation to register, but future regulations might grant them. For now, that remains up in the air.

“That speaks to the broader concerns we have with respect to this proposed registry,” Bussières McNicoll says.

“The fact that the criteria triggering the duty to register are drafted in very broad and vague terms, and a lot is left to future regulations.”

The CBA’s Administrative Law, Competition Law and Foreign Investment Review Sections also weighed in, writing to Public Safety Canada during consultations to seek an exemption from the foreign agent registry related to the provision of legal advice to foreign governments or state-owned enterprises, particularly around the administration and enforcement of Canadian laws like the Investment Canada Act.

“In these situations there will already be transparency to the applicable agency, tribunal or court regarding the foreign government, its positions and activities in the proceedings.”

For Kyle Morrow, an anti-bribery and corruption law associate at Fasken Martineau DuMoulin LLP in Ottawa, the concerns about solicitor-client privilege may be overblown. He believes C-70 is an important piece of legislation that will bring Canada in line with other nations like Australia and the United States.

That said, in some ways, the proposals are less transparent than some other legislation, such as lobbying statutes.

“It’s important that we don’t overstate the scope of what solicitor-client privilege covers,” Morrow says. “I do agree with some of the suggestions in the media that perhaps there should have been more substance and specifics put into the legislation, but the plan has been to add that substance in regulation, so that is a fair criticism.”

As for privilege, he says the law covers political and governmental processes, which are defined terms in the Act.

“I would find it hard to imagine a situation where a lawyer who is being paid by a client who is acting on behalf of a client who is trying to attempt to influence the development of a bill in Parliament, for example, is acting within a legal capacity,” Morrow says.

“They are more likely to be acting in a lobbying capacity. We have to be mindful of solicitor-client privilege, but we also have to not overstate the scope of the privilege and the law.”

He says there is a difference between confidentiality and solicitor-client privilege, and there are instances where either the client can waive the privilege or, in the case of confidentiality, things can be disclosed.

“If you look at the lobbying statutes, they don’t have a particular carve-out for solicitor-client privilege, perhaps because that would be redundant in the legislation,” Morrow says.

“If a lawyer is taking off their lawyer hat and putting on their lobbying hat, they are stepping outside of the courtroom or tribunal, and they are going to elected officials and trying to influence any of those processes that are covered by the Act, I’m not sure that it’s providing legal advice.”

Morrow adds that lobbying statutes point out that just because a client hires a lawyer as their lobbyist, it doesn’t mean that they don’t need to register and comply with lobbying regimes.