Dennis Molinaro is a former national security analyst with the federal government specializing in foreign interference, and an instructor in legal studies at Ontario Tech University. His most recent book is The Bridge in the Parks: The Five Eyes and Cold War Counter-Intelligence.
While it is a necessary first step on the road to resilience, a foreign agent registry – as has been proposed in Canada after recent revelations of foreign election interference – risks becoming a tissue-paper shield if it does not have the right mix of transparency and enforcement reforms to back it up.
At a basic level, foreign interference transparency registries, such as those in place in Australia and the United States, require individuals or entities providing specific services to foreign states to disclose and register those relationships or face penalties, such as fines or imprisonment. But it is the details of any registry that dictate its potential effectiveness.
If the thresholds for registration or what is considered a foreign service are too restrictive, the registry will fail to capture the types of clandestine relations we seek to curb. If these thresholds are too lax, we will run the risk of unintentionally maligning individuals for legitimate and even beneficial activities.
Moreover, as state-sponsored actors are unlikely to be intimidated by financial or criminal penalties, we have to consider whether security and intelligence services can unilaterally designate foreign principals who fail to self-identify, and what the appeals process for these designations will be.
While these questions are important to ask, we also have to look beyond a registry and examine the more fundamental tools that investigators and prosecutors will require in order to identify and counter the most concerning acts of foreign interference.
Australia leaps out as a model to follow, as its foreign-interference legislation is straightforward and simple. It criminalizes (with the possibility of a 20-year prison sentence upon conviction) attempts to assist a foreign power by covertly engaging in influence activities on their behalf, including against Australia’s democratic institutions. Australia has also criminalized the act of knowingly assisting a foreign intelligence service – something Canada still does not do. We should follow Australia’s lead by adding foreign-interference activities to Canada’s Criminal Code.
To stiffen these measures and recognize that interference often comes alongside illicit enrichment, asset freezes and civil forfeiture procedures could also be added to foreign-interference laws, allowing federal prosecutors to confiscate ill-gotten property, even if offenders are located outside of Canada. Even more fundamentally, improving intelligence-law enforcement co-operation, such as through an integrated RCMP/CSIS foreign interference team, will also be necessary to ensure that investigations are pursued according to evidentiary standards from the outset.
But perhaps even more important than updating our criminal laws and security agencies is that we must recognize that foreign interference as a political phenomenon operates similarly to corruption. The tools needed to effectively combat it will therefore be comparable to those that anti-corruption experts have long called for.
Canada has consistently fallen behind other leading economies in global transparency rankings in recent years. Any conversation about countering foreign interference must also include a discussion regarding enhancing financial transparency requirements in politics and in business. Public beneficial-ownership registries and the enforcement of disclosure requirements for “politically exposed persons” are critical to ensuring that people in positions of public trust are unable to hide illicit assets and dubious financial relationships in forests of shell companies – whether related to a foreign state or another nefarious actor. These tools may not be popular among the political classes, but Canadians have the right to demand more scrutiny of where our leaders get their money, and what they do with it in the vicinity of their time in office. It is called public service for a reason.
Other much-needed reforms to our aging democratic institutions will support these and other worthy transparency-related goals. Elections Canada needs more resources and should work with partners to scrutinize provincial and municipal elections. Notoriously opaque party nomination processes must be subjected to enhanced transparency rules, equally applied to all parties to avoid unfairly disadvantaging early adopters. Meanwhile, a foreign interference “centre of excellence” that brings together civil society and diaspora activists, academics and public servants could serve as an inclusive policy shop, offering non-partisan solutions to future interference problems.
Once again, we can look to Australia – which has dealt with foreign interference efforts that are similar to those in Canada – for leadership in this regard. After all, there was a reason that our partners “down under” introduced not just a registry in 2018, but an entire legislative scheme aimed at curbing interference.
Unless we too consider such collateral measures alongside a registry, Canada risks signalling to foreign adversaries that they can continue to operate here, to the detriment of Canada’s international reputation and its sovereignty.