In an era of heightened scrutiny concerning foreign interference in domestic affairs, Canada has taken steps similar to those taken by the United States, Australia, and most recently, the United Kingdom, to achieve greater transparency. Bill C-70, which proposes to enact the Foreign Influence Transparency and Accountability Act (the “Act”), received royal assent on June 20, 2024. The Act will come into force on a date to be fixed by Order in Council.[1] Canadian charities and not-for-profits (“NFPs”), especially those that interact with entities abroad, should be aware of the various implications of this new regime on their activities.
Background
The Act responds to increasing concerns over undisclosed foreign influence in Canada’s domestic affairs, particularly within parliamentary proceedings, policy development, and electoral processes. The Act sets out to create a new registry, currently referred to as the Foreign Influence Transparency Registry (the “Registry”).[2] The Registry, which will be publicly available, aims to enhance transparency by requiring individuals and entities involved in “arrangements” with “foreign principals” (as defined below) and engaged in certain activities related to political or governmental processes in Canada to register and disclose their interactions.[3]
The Act also establishes an independent Foreign Influence Transparency Commissioner (the “Commissioner”) to oversee the administration and enforcement of the Registry. The Commissioner will enforce compliance through administrative sanctions, including monetary penalties, with provisions for criminal charges in severe cases of non-compliance or intentional misinformation.
Criteria for Registration and General Application
The Act introduces the following three criteria that, once met, require registration with the Commissioner:
- Arrangement with a Foreign Principal: An “arrangement” must exist between an individual or entity and a “foreign principal”:
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- An “arrangement” involves an individual or entity undertaking to carry out certain activities (set out below) while acting under 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.[4]
- Activities Triggering Registration: The Act specifies three types of activities that trigger the registration requirement:
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- communicating with a public office holder;
- communicating or disseminating information to the public by any means, including by social media; or
- disbursing money or items of value, providing a service, or providing the use of a facility.
- Subject of the Activity: The activity undertaken must be related to a political or government process in Canada. This includes:
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- parliamentary or legislative proceedings;
- the development or amendment of legislative proposals;
- the development or amendment of policies or programs;
- the decision-making processes by public office holders or government bodies, including contract awards;
- the holding of elections or referenda; or
- the nomination of candidates or the development of electoral platforms by political parties.
The Act applies to arrangements related to processes at all levels of government in Canada, including federal, provincial, territorial, municipal, and Indigenous governments. Certain exemptions exist under the Act, such as arrangements where the Crown is a party, diplomatic or consular activities, and activities carried out by foreign government employees acting openly in their official capacity. Other exemptions will be prescribed by future regulations. Individuals and entities engaging in activities falling within the purview of the Act will be required to disclose specified information (as prescribed by future regulations) within 14 days of entering into a disclosable arrangement. They will also have an ongoing obligation to keep the information disclosed in the Registry current.
Implications for Charities and Not-for-Profits
Canadian charities and NFPs, especially those engaged in public policy dialogue and development activities (such as lobbying), are affected by the Act and must carefully navigate its measures. Charities and NFPs must be aware that the disclosure requirements under the Act apply in addition to, and in parallel with, existing regimes, such as the rules under the Income Tax Act (Canada) governing the political activities of registered charities and the registration and reporting requirements under federal and provincial lobbying legislation.
Furthermore, charities and NFPs should be aware that the definitions under the Act are broad, capturing any arrangements between parties “in association with” a foreign principal. The definition of a “foreign principal” is also broad, and includes “foreign entities” and “foreign economic entities,” which could include various foreign governmental or non-governmental organizations with whom some Canadian charities and NFPs regularly interact.[5] For example, some charities and NFPs, such as universities and other research-based organizations, often collaborate with foreign institutions and rely on these international partnerships in conducting their work. It is possible that publications from these charities and NFPs addressing issues surrounding foreign policy, governance processes, economics, as well as climate change, technology, and other topics subject to increased political debate, could be disclosable under the Act.[6] Additionally, other charities and NFPs that share information about foreign policies—such as by posting on social media—could also be subject to disclosure requirements if their activities are considered “in association with” a foreign government or a foreign state-owned or funded non-governmental organization.
Conclusion
As Canada prepares to implement the Registry, ongoing dialogue and clarification will be crucial to addressing sector-specific concerns voiced by charities and NFPs. In particular, clear communication of guidelines and exemptions will be essential in helping charities and NFPs understand their obligations under the new regulatory framework and mitigate potential challenges.
If you have any questions regarding the Act, the Registry, or the potential impacts to your organization, we invite you to speak with a member of Miller Thomson’s Social Impact Group.
[1] Bill C-70, An Act respecting countering foreign interference, 1st Sess, 44th Parl, 2024, Part 4 (assented to 20 June 2024).
[2] Public Safety Canada, News Release, “Canada’s Foreign Influence Transparency Registry” (5 May 2024).
[3] The terms “arrangement”, “foreign principal”, and “political or governmental process” are defined in section 2 of the Act.
[4] The terms “foreign power”, “foreign state”, “foreign entity”, and “foreign economic entity” are defined in subsection 2(1) of the Security of Information Act (Canada).
[5] Ibid.
[6] Jim Bronskill, “Canadian universities say foreign influence registry could harm research partnerships”, CBC News (10 June 2024).
