Exempt legal advice from foreign influence registry

  • June 27, 2023

The Administrative Law Section and the Competition Law and Foreign Investment Review Section of the Canadian Bar Association welcome a foreign influence transparency regime to help detect covert actions by foreign governments that can be detrimental to Canada’s national interest. However, as they explain in a letter to Public Safety Canada, the Sections have one significant concern.

The proposed foreign influence transparency registry would be a complement to the existing legislative tools working to facilitate transparency, such as the Lobbying Act, Conflicts of Interest Act, Canada Elections Act and the national security review measures of the Investment Canada Act.

The concern from the Sections is that legal advice and representation to foreign governments and their related entities should be exempt from any registration requirement. “The exemption is particularly important for legal advice and representation to foreign governments in the administration and enforcement of federal, provincial and territorial legislation, including the Investment Canada Act and Competition Act,” the letter states.

As the Sections explain, legal advice and representation of a state-owned enterprise investor or other entity owned or controlled by a foreign government is not the kind of covert action targeted by the registry.

And as the letter also points out, other jurisdictions have created a clear exemption for legal advice and representation including the United States, Australia and the United Kingdom.

In addition, the Sections recommend “exempting from disclosure pursuant to the administration of the regime information that is subject to solicitor-client or contemplated litigation privilege, regardless of who is in possession of the information.”