Enhancing Foreign Influence Transparency: Exploring Measures to Strengthen Canada’s Approach

Public and Stakeholder Consultation Paper

March 10, 2023

Introduction

The purpose of this consultation is to solicit feedback from the Canadian public and stakeholders on how Canada can implement a foreign influence transparency registry in order to bolster defences against malign foreign influence, and what those measures might entail. Input will inform decision-making and the subsequent design of new measures that may be tabled in Parliament.

Background and context

There is no greater responsibility for the Government of Canada than the protection of individuals and communities in Canada, including our democratic institutions and economic prosperity.

The global threat landscape Canada faces has significantly evolved, with threats from a variety of both state and non-state actors becoming sophisticated and pervasive. Today, Canada’s security and intelligence community is focused, among other threats, on foreign interference. Foreign interference is activity undertaken by foreign states, or those individuals and entities acting on behalf of a foreign state, to advance their own strategic objectives to the detriment of Canada’s national interests. Such activity is deceptive, coercive, threatening and/or illegal. Foreign interference is distinct from normal activities undertaken by foreign states to exert influence, such as legitimate lobbying, advocacy efforts, and regular diplomatic activity.

As an open, multicultural society and world leader in economic, technological and research sectors, Canada is a growing target of foreign interference. Threat activities can target all levels of government, the private sector, media, academia, as well as individual Canadians and persons residing in Canada. No one is immune from foreign interference or its impacts. However, certain groups face increased threat activity due to a number of factors, including their occupation, ethnic or cultural heritage, or field of expertise/study.

The Government of Canada will not tolerate these activities. Departments and Agencies across the federal government – including the Canadian Security Intelligence Service, the Royal Canadian Mounted Police, among others – operate within their respective mandates, while ensuring to work closely together to support integrated government responses.

Given the threat environment is not static, this consultation is intended to solicit feedback from the Canadian public and stakeholders on how Canada should implement a foreign influence transparency registry.

Malign Foreign Influence

For the purpose of this paper, malign foreign influence is defined as a subset of foreign interference, wherein a individual or entity exerts influence, through covert or non-transparent means, at the direction of, or on behalf of, or with the substantial support of, a foreign principal.

Foreign governments regularly seek to influence the Government of Canada and public opinion in Canada, and often do so through established legitimate and transparent channels. This is regular influence undertaken by a foreign principal and, when sufficiently transparent, may not pose a significant harm to Canada or Canadians. However, when individuals or entities seek to exert influence on behalf of foreign principals in non-transparent ways, this can have serious consequences.

Some foreign governments, or their proxies, may leverage individuals or entities to undertake non-transparent, malign foreign influence activities intended to shape Canadian government policy, outcomes, or public opinion, without disclosing their foreign government ties. Such activity may include:

• seeking to influence Members of Parliament, Senators or their staff;
• seeking to influence public servants at all levels of government;
• seeking to influence political parties and election candidates;
• making verbal or written statements in public or through media favorable to a foreign government, while deceptively obfuscating their origins or motivations;
• producing communications materials for societal, political and government influence; and,
• disbursing money and things of value on behalf of a foreign government for influence purposes.

These activities could result in policy and legislation favourable to foreign interests over Canadian ones. They could also impact the content of available material that informs public opinions and the exercise of democratic rights. In some instances, this information could be disseminated by Canadians who may not be fully aware it originates from a foreign principal or entity. Unclear labelling of state-backed communications can produce public or media messaging that reinforces interests of adversarial states and circulates propaganda/disinformation that could either misdirect citizens or pollute the general media/information environment.

Malign foreign influence is a particularly complex challenge to address, in part because detection can be difficult and attribution can be made only after influence has been exerted. Canada, and many of its allies and like-minded partners, have mechanisms in place to establish appropriate parameters for general political lobbying through traditional, legitimate means. However, these regimes are difficult to apply to malign foreign influence campaigns that are designed in a manner that tries to circumvent registration requirements set out in legislation. For this reason, some of Canada’s closest allies and like-minded partners have brought forward additional measures, including legislative regimes, to specifically enhance foreign influence transparency in their respective countries. Any new measures brought forward to bolster Canada’s approach should be in alignment, to the extent possible, in order to bolster overall collective resilience. More information about the approaches taken by the United States, Australia, and the United Kingdom can be found in Annex A.

Existing Tools to Ensure Transparency and Address Conflicts of Interest

Canada has measures in place to increase transparency over certain communications with, and dealings of, Canadian public offices holders. While these measures were not designed to address malign foreign influence, there are provisions set out in legislation that could pertain to dealings with foreign states, as outlined below:

Lobbying Act:

The Lobbying Act supports transparency and accountability in the lobbying of federal public office holders in order to contribute to Canadians' confidence in federal government institutions. The Act requires, among other things, that consultant lobbyists disclose information regarding the identity of their client (which could be a foreign or domestic government) when, for payment, the consultant communicates with a public office holder on a regulated lobbying matter (as defined in the Act). Communications with public office holders include indirect communications, such as appeals to persuade the public to communicate with a public office holder about a regulated lobbying topic.

For more information on the registration requirements for lobbyists, please consult the website of the Office of the Commissioner of Lobbying.

Conflict of Interest Act:

The Conflict of Interest Act, administered by the Conflict of Interest and Ethics Commissioner, seeks to prevent conflicts between private interests and the public duties of appointed government officials, called public office holders. The Act sets out a series of rules that apply to all public office holders, which include ministers, parliamentary secretaries and most ministerial staff, as well as Governor in Council appointees such as deputy ministers, heads of Crown corporations and members of federal boards, commissions and tribunals. The Act also includes post-employment obligations that apply to all former public office holders. For example, all public office holders are prohibited for life from taking improper advantage of a previously held public office, switching sides, and improperly using information obtained in their capacity as public office holders.

For more information, please consult the website of the Office of the Conflict of Interest and Ethics Commissioner.

Canada Elections Act:

The Canada Elections Act includes various prohibitions related to foreign involvement in electoral activities. Only Canadian citizens and permanent residents are permitted to donate to federal elections candidates, riding associations, political parties, and nomination and leadership campaigns. Third parties cannot use foreign contributions to support their partisan activities^Footnote1.

To read more about the Canada Elections Act, please visit Federal Electoral Legislation – Elections Canada.

Why additional tools are being considered

While these Acts may be used in certain circumstances to increase transparency in communications and dealings between Canadian public office holders and foreign states, they were not designed to address malign foreign influence. Foreign states, and their proxies, that seek to obfuscate their intentions when influencing Canada may do so in ways that avoid registration obligations under current laws, and existing tools may not cover some key processes such as party nomination contests and elections at sub-national levels, which are particularly susceptible to malign foreign influence.

In addition, the security and intelligence community is aware that some foreign states, or their proxies, may target members of certain groups in Canada due to close familial and cultural links they may have with a foreign country. This targeting may include seeking to use any available leverage to influence members of those groups to support foreign geopolitical views to the detriment of Canada’s. Some foreign states may also seek to use this leverage to coerce group members to advance foreign state views across Canada, without any requirement, implicit or explicit, to communicate with public office holders in any capacity. This type of activity is not directly addressed by Canada’s existing framework, which presents a gap in Canada’s existing approach.

Guiding principles

Increasing foreign influence transparency in Canada could benefit Canada’s overall national interest, as well as protect Canadians and Canadian institutions in a variety of ways. As the government considers approaches, and analyzes feedback solicited from the public and key stakeholders through this consultation process, any proposed way forward will consider, among other factors, the following guiding principles:

Transparency and awareness: 

Increase transparency and general public awareness of malign foreign influence activities in Canada through, among other provisions, enhanced public disclosure requirements for individuals or entities acting on behalf of foreign principals to influence Canada and Canadians.

Deterrence: 

Increase the risk to individuals who would seek to avoid registration obligations by designing compliance measures and penalties, which could include monetary penalties as well as criminal penalties for non-compliance and/or violations.

Detection: 

New measures should consider the extent to which they will empower the Government of Canada to better detect malign foreign influence in Canada and what more might be required. Enhancing Canada’s ability to detect malign foreign influence in Canada expands the government’s capacity to disrupt hostile activity at an earlier stage.

Alignment with democratic partners – presenting a unified response: 

Some of Canada’s like-minded partners have implemented enhancements to their legislative and policy toolkits to enhance foreign influence transparency and to address the complex, modern threat environment. Any measures brought forward by Canada should consider how, to the extent possible, they could align with those of our partners to present a unified approach.

Minimize administrative burden: 

Any new measures should seek to eliminate or reduce the administrative burden associated with registration and compliance, to the extent possible.

Uphold Charter Rights:

Any new measures to enhance foreign influence transparency will be designed in a manner that upholds and is consistent with the Canadian Charter of Rights and Freedoms.

Consultation: Measures to address malign foreign influence

To enhance foreign influence transparency and address malign foreign influence, the Government of Canada will introduce a registry to complement existing legislative tools and authorities. A foreign influence transparency registry could impose strict disclosure requirements for individuals and entities acting on behalf of foreign principals for influence purposes. If individuals or entities acting on behalf of foreign principals fail to register, they could face significant administrative and/or criminal penalties. The rules may not only apply to Canadian citizens, but could capture any individual or entity undertaking registrable activities in Canada or towards Canadians, at the direction of a foreign principal. This could include, for example, permanent residents, or foreign residents residing in Canada.

To ensure there is compliance with such measures, as well as to enhance transparency and awareness of malign foreign influence in Canada, the government could require individuals or entities to publicly register. To implement a register and oversee the overall administration of the law, an approach to governance will need to be designed. The outcomes of this consultation process will help the Government determine how best to do this.

Key elements of a foreign influence transparency registry under consideration include:

• Arrangements
• Registrable Activities
• Exemptions
• Information Disclosure
• Compliance

The following sections address each element and poses questions to inform the design of a foreign influence transparency registry.

Arrangements to Influence Canada

‘Arrangements’ between a foreign principal and any person or entity acting, by virtue of that arrangement, on behalf of the foreign principal, could be registrable where the intent of that arrangement is to undertake influence activities in Canada or towards Canadians.

The ‘arrangement’ could be explicit or implicit, and would not need to have been made in Canada to be registrable. Payment or any other advantage to a person or entity acting on behalf of the foreign principal would not be required to undertake the activity and for the arrangement to be registrable. Influence activities may not have taken place yet for the arrangement itself to be registrable.

Regardless of the nature of the relationship between the person or entity and the foreign principal, both parties must have intended that the person or entity might or would undertake ‘registrable activities’ on behalf of the foreign principal.

Failure to register an arrangement could result in monetary, regulatory/civil and/or criminal penalties levied against the individual or entity in contravention of the provisions. In addition to registering the arrangement itself, any subsequent influence activities undertaken in Canada or towards Canadians would also need to be registered (additional registrable activities are listed in section 2). Further, restricting public office holders from entering into any arrangement with a foreign principal for the purpose of undertaking influence activities in Canada could be considered.

Registrable Activities

In addition to requiring arrangements to be registered, a foreign influence transparency registry would require, at a minimum, a clear list of specific activities that, when undertaken on behalf of a foreign principal, could result in a registration obligation. It is reasonable to assume that any individual or entity seeking to undertake malign foreign influence activities against Canada or Canadians on behalf of a foreign principal would want to subvert any new measures by using sophisticated tradecraft and other means to avoid making their actions known. Therefore, the scope of registrable activities should be sufficiently broad to eliminate loopholes, to the extent possible, but also be calibrated to ensure there is no undue regulatory or administrative burden, privacy and Charter rights continue to be respected, and legitimate interests and activities are not impeded.

Registrable activities could include:

Parliamentary lobbying:

Lobbying an elected official or their staff is generally intended to influence government decisions, policy and processes. It is important to identify when elected officials and their staff are being lobbied on behalf of a foreign principal, especially when it is done outside of normal diplomatic channels.

General political lobbying and advocacy:

General political lobbying covers lobbying activities directed towards public officials, departments, agencies or authorities of the Government of Canada, registered federal political parties, and/or candidates in elections.

Disbursement activity:

Disbursement activity includes the distribution of money or things of value by an individual acting on behalf of a foreign principal to another individual or organization where the disbursement is undertaken for the purposes of influencing Canada or Canadians.

When a foreign state, or individuals and entities acting on its behalf, seeks to covertly influence Canadian public discourse to suit its interests, there can be significant detrimental impacts to Canada’s national interest. For example, a foreign state seeking to advance their geopolitical interests, to the detriment of Canada, may seek to undermine certain sectors of government (e.g. defence and security) or the economy/society as a whole. They may also target members of certain groups to achieve their goals. These individuals may feel that they are being targeted with undue solicitation to hold particular viewpoints or undertake actions in Canada to benefit a foreign state or government.

Such malign foreign influenced activities can sow distrust between Canadians and democratic institutions, erode social cohesion, and undermine Canada’s sovereignty and good governance. Current laws have limited capacity to fully address foreign influence transparency, as they are primarily focused on protecting Canada from influence where there is communication between an entity and public office holders and/or Canadian politicians. This may not adequately capture communications activity directed solely at members of the Canadian public.

In light of the above, consideration should be given to whether “communications activity” would be registrable:

• Communications activity could cover all circumstances in which information or material are disseminated, published, disbursed, shared or made available to the Canadian public. Information and material can be in any form, including, for example, visual, digital, graphic, or written forms. A communications activity is registrable if the activity is undertaken on behalf of a foreign principal for the purpose of influencing Government or public opinion. Such activities can influence the views and opinions of people involved in political and government processes, individuals in Canada, or Canadian society. These activities may also look to manipulate the information environment, diminish trust in democratic institutions, processes and sow discord all in service of the geo-strategic interests of a foreign government.

Exemptions

Recognizing that there are many Canadians and Canadian businesses/organizations that interact regularly with foreign governments, or entities that act on behalf of foreign governments, any new law could include limited exemptions.

Where an exemption applies, there may be no registration obligation for any individual or entity even if they undertake registrable activities on behalf of a foreign principal. Where exemptions are included, they should be sufficiently broad to cover certain legitimate and permissible activities, but must also balance the fact that hostile states may seek to secretly influence Canada or Canadians by employing sophisticated tradecraft to navigate exemptions and avoid registration obligations.

For example, exemptions could include legal advice and representation (which could apply where a person or entity is undertaking a registrable activity on behalf of a foreign principal, but the activity is primarily related to, or incidental to, providing legal advice in judicial processes), diplomatic and consular activities undertaken by formally accredited officials, and situations where an individual is engaging in registrable activities but is doing so in their transparent capacity as an employee or representative as a foreign government.

Information Disclosure

Any individual or entity that undertakes a registrable activity on behalf of a foreign principal, where an exemption does not apply, would be required to register the activity. The register would likely need to be public in order to support greater transparency and build societal resilience to malign foreign influence.

Information publicly disclosed during the registration process could include personal details for the individual or entity undertaking the activities, dates, the purpose of the activity, and the nature of the relationship between the individual/entity and the foreign principal. Precedents already exist in the Government of Canada’s legislative framework for this type of information disclosure. For example, information disclosure requirements are set out in Section 5(2) of the Lobbying Act, and include disclosure of personal details (e.g., names, addresses, date of birth, employer information) and key details of the activity being registered (e.g., subject matter of the lobbying activity, the entities lobbied, etc.).

Compliance

Any potential law would need to set out mechanisms that are intended to encourage compliance, or it may otherwise be ineffective. Compliance mechanisms can come in many different forms, and Canada has learned from its allies and like-minded partners that, without sufficient mechanisms in place, compliance enforcement and verification can be challenging. To address this concern, a series of scalable compliance enforcement mechanisms would likely be necessary.

First, administrative enforcement mechanisms could be designed that would allow for the issuance of notices. These could be tiered to first issue a notice that would publicly declare an individual or entity is a foreign principal. These notices would provide clarity to any individual or entity acting on behalf of the identified foreign principal that they must register their activities. The second tier of notices could provide the ability to compel an individual or entity to produce any information or documentation where, for example, there are reasonable grounds to suspect that the individual or entity has a registration obligation in relation to a foreign principal. Notices would fully comply with principles and laws concerning procedural fairness, and there would be a process put in place to appeal the issuance of notices.

To enforce compliance, administrative monetary penalties (AMPs) could be used. AMPs could deter non-compliance through fines that, although may not result in a criminal record or prosecution, would nonetheless increase the cost to individuals or entities that may seek to avoid publicly disclosing their malign foreign influence activities. Individuals or entities that are subject to AMPs could be publicly listed on the registry as an additional mechanism to bolster transparency and deterrence. AMPs would need to be a high enough amount so that individuals or entities that may seek to avoid registration obligations wouldn’t simply consider paying fines as a cost of doing business.

In addition to notices and AMPs, criminal penalties could be included. Establishing criminal penalties would further increase the risk to individuals who would seek to undertake malign foreign influence in Canada and avoid any kind of obligation to register or make their activities and intentions public. Traditionally, offences relating to national security threats have been difficult to investigate, and therefore prosecute under existing legislation. Having penalties in place in a foreign influence transparency registry law could provide Canada with an alternative means of countering potential national security threats that would complement national security prosecutions.

Criminal and regulatory offences in a foreign influence transparency registry could include:

• undertaking registrable activities while not being registered;
• failure to fulfill responsibilities under the law (i.e. reporting and disclosure obligations);
• providing false or misleading information or documentation in relation to an individual’s registration;
• inducing or directing individuals or entities to undertake activities which, if taken, would be registrable activities; and,
• destroying records.

As with any approach that requires some form of disclosure with a government entity, there is a risk that non-compliance could come as a result of genuine error or from a lack of understanding regarding registration obligation and/or process. Measures would need to be designed in a manner that considers these factors, and seeks to mitigate the administrative burden associated with registration, to the extent possible.

Questions for Consultees

1. What types of organizations or entities should be included in the definition of “foreign principal”?
2. What types of activities and/or arrangements should be registrable?
3. What activities (if any) should be exempt from registration obligations?
4. What kinds of information should registrants be required to disclose regarding their activities and to what extent should this information be made public?
5. What penalties, if any, are required to enforce compliance?
6. Do you have other views you wish to provide in relation to this consultation?

Annex A: International Benchmarking

United States:

The Federal Bureau of Investigation (FBI) is the lead federal agency responsible for investigating foreign influence operations. However the U.S. has recently established the Foreign Malign Influence Response Center (FMIC) within the Office of the Director of National Intelligence

(ODNI) to serve as the primary government organization for analyzing intelligence relating to malign foreign influence operations, coordinate governments efforts related to detecting and responding to such operations, and assess the expertise and readiness of government departments to respond to such operations. The Center intends, at this time, to focus efforts on “covered foreign countries”, which includes the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the People’s Republic of China. In addition, new legislation has been recently introduced to congress to strengthen defenses to foreign influence, such as the Fighting Foreign Influence Act, and the Foreign Influence Transparency Act recently introduced in the Senate.

The U.S. also uses the Foreign Agents Registration Act (FARA) to address malign foreign influence. In 1938, FARA was enacted to require individuals doing political or advocacy work on behalf of foreign entities in the United States to register with the Department of Justice (U.S. DOJ) and to disclose their relationship, activities, receipts, and disbursements in support of their activities. FARA does not prohibit any specific activities, but rather it seeks to require registration and disclosure as a measure of transparency. FARA does not have any specific provisions targeted at former public office holders. A publicly accessible database of registered foreign agents is maintained on U.S. DOJ’s website, and the FARA Unit of the Counterintelligence and Export Control Section in the National Security Division is responsible for the administration and enforcement of FARA. FARA has been in place for over 80 years, but recently, detected violations have provided leads for the FBI to initiate counter-intelligence investigations, some of which have led to criminal charges and/or immigration proceedings.

Australia:

In 2018, Australia introduced the Foreign Influence Transparency Scheme (FITS) into law. Generally speaking, any person is required to register under the FITS if they engage in, or plan to engage in, activity that is undertaken for the purpose of political or governmental influence and on behalf of a foreign government, foreign political organization, or foreign company, where total or substantial control can be exercised by a foreign government, or foreign government-related individual. Crucially, registrable activities include not only traditional lobbying but also communications and spending undertaken for political or governmental influence and on behalf of a foreign principal. Additionally, whether a particular activity is registrable or not depends on who the foreign principal is and the purpose of the activity, and in some cases on the person’s former status. A former Cabinet Minister must register any such activities for life, while a former designated position holder (senior government or Parliament official) must do so for 15 years following their having left the position.

The registry is maintained by the Attorney General’s Department (AGD) Foreign Influence Transparency Scheme Section, and is publicly accessible on the AGD website. The registry displays the registrant, a brief description of their reported activity, the foreign principal, and the dates when the activity began and ceased (if applicable). Registrants must update their submission to the registry every six months in order to provide authorities with updated information. Offences exist for failing to register or update your information when required to do so, misleading or lying to authorities, or destroying relevant records. Penalties for violations under the FITS range from fines to prison terms of six months to five years.

United Kingdom:

The United Kingdom relies on a variety of authorities for security and intelligence departments and agencies to counter foreign interference. The Official Secrets Act (1911, 1920, and 1939) are the core pieces of legislation providing criminal offences to protect the UK from espionage and hostile activity by states. The 1911 Act created criminal offences for two different types of espionage: espionage by trespass/proximity, and espionage by information gathering and communication. Subsequent amendments continued to modernize the legislation, including a suite of changes in 1989 when criminal offences for unauthorised public disclosure of sensitive official information were created.

In 2022, the United Kingdom tabled a Bill to again update and reform the Official Secrets Act, as well as bring forward a new foreign influence registration scheme (FIRS) that would require individuals in scope of certain requirements to register activity being undertaken for, or on behalf of, a foreign state.

Date modified:

2023-09-11