In June 2024, Bill C-70: An Act respecting countering foreign interference received Royal Assent.
The Act aims to bolster Canada's defenses against foreign interference. It follows on the heels of the Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions Commission, which investigated foreign interference attempts in Canada. The initial report from the Commission found evidence of foreign interference in the 2019 and 2021 federal elections.1
The Act introduces several changes aimed at safeguarding Canadian politics and government, including:
- creating new offences to target attempts to undermine democratic processes;
- updating the Canadian Security Intelligence Service Act to expand CSIS' powers to collect and share information; and
- amending the Canada Evidence Act to create a standardized scheme for handling sensitive information in federal proceedings.
The most broadly impactful change in the Act is introduction of the Foreign Influence Transparency and Accountability Act ("FITAA"). FITAA will create the Foreign Influence Transparency Registry. FITAA will require individuals and other entities in "arrangements" with "foreign principals" to register their foreign influence activities in relation to government or political processes in Canada with the Commissioner. The Commissioner will post this information in an online, publicly accessible database. FITAA does not prohibit or punish these activities. It simply requires registration and publication.
Who needs to register?
Any person—which includes corporations, trusts, partnerships, and any other legal entity—must register their "arrangements" with a "foreign principal" if the arrangement relates to the "political or governmental processes" of (1) the federal government; (2) a provincial government; or (3) a council or other entity that acts on behalf of an Indigenous group, community or people or represents the interests of First Nations, the Inuit or the Métis.
This statement is confusing. Its terms are defined in specific ways. There four key components of the requirement. If you meet all four, you likely must register.
First, the relationship between the individual and the foreign entity must be an "arrangement"—meaning a relationship where the individual acts "at the direction of, or in association with" the foreign principal.
Second, the relationship must be with a "foreign principal". This includes foreign powers (think foreign governments or entities exercising or purporting to exercise government), foreign states (a state, province, or other political subdivision of another country), foreign entities (a group of foreign powers or anyone acting at the direction of, for the benefit of, or in association with a foreign power), or foreign economic entities (entities controlled or substantially owned by foreign states). This is a broad definition. It includes foreign state-owned media, foreign state-controlled pension funds, and more.
Third, the individual does one of these things: communicates with a public office holder; communicates or disseminates information to the public; or distributes money, items of value, a service, or the use of a facility.
Fourth, the activity relates to a political or government process in Canada. This includes parliamentary or legislative proceedings, developing legislative proposals or policies, the decision-making of a public office holder or government (including awarding a contract), holding elections or referenda, or political party nominations or platform development. It applies to federal, provincial, territorial, and municipal governments, as well as council or other entity that acts on behalf of an Indigenous group, community or people or represents the interests of First Nations, the Inuit or the Métis.
Already existing arrangements will have 60 days to register once FITAA comes into force. Arrangements entered after FITAA comes into force will need to register within 14 days of entering the arrangement.
What information do I need to provide?
Unfortunately, FITAA does not specify what information registrants must provide to the Commissioner. This makes it impossible to determine how burdensome registration will be. The federal Government will provide this information in the future, through regulations.
Are there any exceptions?
FITAA is broad. It has very few exceptions. The exceptions include arrangements involving the Crown, foreign diplomats or consular officials, or employees of foreign principals acting openly in their official capacity.
What happens if I don't register, but should have?
FITAA doesn't prohibit these arrangements, it promotes transparency. There is no consequence—besides potential publicity—for registering. However, if you should have registered, but did not, you may receive steep penalties and fines. The Commissioner can apply administrative monetary penalties to those who fail to register. The amounts of these penalties will be set in the regulations, which are not yet released.
Criminal sanctions can also apply to violations of FITAA. If found guilty, these carry steep fines (up to $5,000,000) and periods of incarceration (up to 5 years).
Can the Commissioner do anything else?
FITAA empowers the Commissioner to receive complaints and information from others to assist with the Registry. They can also investigate potential breaches of FITAA, summon witnesses, and compel the production of evidence.
Conclusion
The registration requirements under FITAA are broad. Those advocating for foreign interests in relation to political and legislative processes—such as some lawyers, accountants, consultants, and government relations professionals—must register. Because the definitions also capture undertakings on behalf of businesses controlled by foreign states, those acting in political or governmental processes on behalf of foreign state-controlled businesses may also need to register. For instance, those acting for foreign public sector pension funds, including those owned by close Canadian allies, will likely need to register.
If a foreign principal is instructing you to get involved in politics or government, you should carefully review whether FITAA applies to you. FITAA will come into force sometime in the future, on a date set by the Governor in Council.
Footnote
1 Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, "Initial Report" (May 3, 2024), online: https://foreigninterferencecommission.ca/fileadmin/user_upload/Foreign_Interference_Commission_-_Initial_Report__May_2024__-_Digital.pdf.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.