Ottawa – The proposed Foreign Influence Transparency and Accountability Act (FITAA) would impose an obligation on individuals and entities that enter into an arrangement with a foreign principal (as described below), to register their arrangements and disclose any foreign influence activities undertaken where they are in relation to government or political processes in Canada. Relevant information from the registration would be held in the Foreign Influence Transparency Registry and would be available to the Canadian public and all jurisdictions to consult freely.
A registration requirement would exist where the following three criteria are all met:
- Arrangement:
An arrangement between any individual or entity with a foreign principal, where that individual or entity acts at the direction of, or in association with, a foreign principal. A foreign principal includes a foreign power, foreign state, foreign entity, or foreign economic entity (e.g. state owned business) as defined in the Security of Information Act (to be renamed the An Act respecting countering foreign interference following the passage of Bill C-70). - Activities:
There are three types of activities which would each result in a registration requirement:- communication with a public office holder;
- communication or dissemination of information to the public by any means, including social media; and
- disbursement of money or items of value, or providing a service or the use of a facility.
- Subject of the activity:
The activity that is undertaken must be in relation to a political or government process in Canada for there to be a registration obligation. A political or government process includes:- a parliamentary or legislative proceeding;
- the development of a legislative proposal;
- the development or amendment of any policy or program;
- the making of a decision by a public office holder or government body, including the awarding of a contract;
- the holding of an election or referendum; and,
- the nomination of a candidate or the development of an electoral platform by a political party.
Exemptions
A limited number of exemptions are provided and include:
- arrangements to which the Crown is a party;
- foreign nationals who hold a passport that contains a valid diplomatic, consular, official or special representative acceptance issued by the chief of protocol at Global Affairs Canada; or
- foreign government employees acting openly in their official capacity.
The legislation also provides that the Governor-in-Council (GIC) may, by regulations, make provisions for further exemptions to registration obligations.
Application to all levels of government in Canada
The proposed legislation is intended to eventually apply to activities undertaken in relation to political or government processes at all levels of government in Canada, including municipal, provincial and territorial governments, and Indigenous governments. The coming into force date would be fixed by the GIC.
Administration
The FITAA would be overseen by an independent Commissioner appointed for up to seven years by the Governor In Council following consultations with the opposition parties in the House of Commons and recognized groups in the Senate. The office of the Commissioner would be housed by Public Safety Canada, while administering and enforcing the Act independently from the Department and Minister. This is a model that is used by the Competition Commissioner and the Superintendent of Bankruptcy, both of which have resulted in a high degree of independence and professionalism in enforcement actions, while still allowing the government to leverage existing information sharing processes across departments and agencies to support the office.
Compliance
One of the key objectives of this legislation is to promote transparency for foreign influence activities in Canada. To promote compliance, and to deter non-compliance, certain compliance tools are proposed. Modern compliance frameworks can include both administrative and criminal sanctions. The proposed legislation relies primarily on administrative sanctions, including through the use of administrative monetary penalties (AMP). However, criminal sanctions may apply to more serious violations of the Act and/or other potential criminal conduct.
Three offences are envisioned in the legislation:
- failing to register an arrangement or activity;
- failing to update information on the registry pursuant to the timeframe set out in regulation; and
- knowingly providing false or misleading information to the Commissioner.
There is also an offence for obstructing the commissioner in the operation of the registry.
Where it is determined that a violation has occurred, the Commissioner may issue a Notice of Violation noting various information, such as the specific violation, the name of the individual or entity who failed to discharge their legal obligations under the Act, the proposed penalty, the right to pay the penalty or make representations. If no action is taken by the individual or entity, they will be deemed to have committed the violation. In that case, a Notice of Violation would be published, including the nature of the violation, the name of the person or entity found to be in violation, and the amount of the penalty imposed. The Commissioner may also make public the reasons for their decision. Recipients of Notices of Violation would be able to seek a Judicial Review before the Federal Court of Canada.
For more egregious contraventions of the proposed legislation, the Commissioner can choose to refer the matter to the Royal Canadian Mounted Police (RCMP) to independently conduct an investigation of a violation of the FITAA and it would be up to the RCMP to decide whether to refer the matter to the Public Prosecution Service of Canada to take appropriate actions.
Investigative tools and information sharing
The Commissioner would be able to receive complaints or information to assist them in fulfilling their duties. The Commissioner would exercise their discretion on whether to investigate or to refuse to conduct any investigation. To support investigations, the legislation allows the Commissioner to rely on a number of tools, including: investigative approaches; the ability to summon and enforce the attendance of persons before the Commissioner and compel them to give oral or written evidence on oath; and, the authority to compel persons to produce any documents or other things that the Commissioner considers relevant for the investigation.
To further support the Commissioner’s investigations, the Commissioner would be able to receive and share information with a number of Government of Canada partners, as well as provinces, territories, municipalities, Indigenous governments and groups in Canada. It is envisioned that this would include intelligence from the Security and Intelligence agencies in keeping with proper legal requirements and processes, and consistent with the Security of Canada Information Disclosure Act and Privacy Act. The GIC would make regulations regarding the sharing of information to and from the Commissioner.
Reporting and Review
The legislation would create a number of reporting and review mechanisms to support its proper administration, including an annual reporting requirement by the Commissioner. Within six months after the end of each fiscal year, the Commissioner would be required to submit an annual report to the Minister, which would then need to be tabled it in each House of Parliament within 15 sitting days. Furthermore, the Commissioner’s activities would be reviewable by the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians. Finally, the legislation would undergo a statutory review by Parliament every five years.