Annual report 2017-2018 – Ministerial direction to Global Affairs Canada: Avoiding complicity in mistreatment by foreign entities

Introduction

The Minister of Foreign Affairs issued the Ministerial Direction to Global Affairs Canada: Avoiding Complicity in Mistreatment by Foreign Entities (the MD) on December 14, 2017. The MD prohibits:

1. The disclosure of information that would result in a substantial risk of mistreatment of any individual by a foreign entity;
2. The making of requests for information that would result in a substantial risk of mistreatment of any individual by a foreign entity; and,
3. Certain uses of information that was likely obtained through mistreatment of an individual by a foreign entity.

Paragraph 23 of the MD directs Global Affairs Canada to produce an annual report to the Minister of Foreign Affairs regarding the application of the MD. The report is to include:

• Details on substantial risk cases where the MD was engaged, including the number of cases;
• The restriction of any arrangements due to concerns related to mistreatment; and,
• Any changes to internal policies and procedures related to the MD.

Background

The promotion and defence of human rights is a key priority for Global Affairs Canada and the department is actively working bilaterally and within multilateral organizations to advocate against torture and inhumane treatment. Global Affairs Canada is also providing support to a wide range of capacity-building programs around the world that are aimed at strengthening security, protecting human rights and supporting the rule of law.

As part of its mandate, Global Affairs Canada collects and uses information, especially through diplomatic reporting. As part of its role in maintaining Canada's network of missions abroad, Global Affairs Canada is also responsible for the security of missions. Both of these responsibilities involve engaging with foreign entities, including local law enforcement. At times, this can involve exchanging information. The vast majority of the information that is exchanged does not pertain to individuals. Where such an exchange may be necessary, the MD provides clear guidance to officials.

This report details activities undertaken by Global Affairs Canada from December 2017 to December 2018 that were in compliance with the MD.

Training and outreach

In early 2018, a message was broadcast to all employees of Global Affairs Canada announcing the issuance of the MD and outlining its core obligations. A program of outreach and training was developed shortly afterward and implemented throughout the year, both at headquarters and at missions abroad. This program, which focuses on security and intelligence awareness training, is part of a broader effort under the Duty of Care initiative to enhance the Department's capacity to use intelligence to protect our people, information and assets.

Dozens of mandatory training sessions were held for personnel at headquarters as well as those posted at high-priority missions abroad, including Mission Security Officers, Management Consular Officers, Readiness and Security Program Managers, Global Security Reporting Program Officers, as well as Heads of Mission and Canada-Based Staff.

Officials from other departments and agencies co-located in missions abroad, including personnel from the Department of National Defence (DND), the Canada Border Services Agency (CBSA), the Royal Canadian Mounted Police (RCMP) and Immigration, Refugees and Citizenship Canada (IRCC), have also participated in and benefited from this training.

More than 500 staff have received in-person training regarding the MD and the obligations that it entails for employees, both in Canada and abroad. Materials will continue to be refined to support further training and outreach over the coming year.

Human rights reporting

Global Affairs Canada's human rights reports provide baseline information that helps inform Canada's international engagement, including foreign policy, development, trade, security and consular activities. The reports provide an evidence-based overview of the human rights situation in a particular country, as well as information on significant human rights-related events. These reports are classified and produced for an internal Government of Canada audience, including Global Affairs Canada, the RCMP, CBSA, IRCC, DND, Public Safety Canada (PS), the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE) and others.

The MD requires Global Affairs Canada to maintain policies and procedures to assess the risks associated with relationships with foreign entities, and to cooperate in this process with other federal departments and agencies. Human rights reports prepared by Global Affairs Canada are among the key sources of information used to inform these assessments, with partner departments and agencies indicating that these reports are consulted on a frequent basis at all levels, including Deputy Heads. As such, the demand for human rights reports from Global Affairs Canada has increased significantly over the past year, particularly since nearly identical MDs were issued to other departments and agencies within the Government of Canada.

In April 2018, the Deputy Minister of Foreign Affairs wrote to all Heads of Mission informing them of the important role that human rights reports play in supporting compliance with the MD, not only by Global Affairs Canada but by all partner departments and agencies subject to the same obligations.

Global Affairs Canada's human rights reports now include a new mandatory section focusing on mistreatment, to ensure that all reports address this issue going forward. Personnel at Canada's missions abroad produced 70 human rights reports covering the period of April 2017-March 2018. These reports have been made available to all other departments and agencies that have been issued similar MDs, to ensure that they can be referenced in cases in which obligations under the MD may be engaged.

In the year ahead, Global Affairs Canada will continue to work with partners to incorporate feedback on human rights reporting to date, consider input on countries of interest for the next reporting round, and further refine the guidance to mission personnel who draft the reports. All of this will be done with a view to ensuring that human rights reports are as effective as possible in supporting decision-making, both by Global Affairs Canada and by other departments and agencies within the Government of Canada.

Ministerial Direction Compliance Committee

During the reporting period, Global Affairs Canada established a formal governance mechanism to enhance the department's compliance with the obligations in the MD.

The Ministerial Direction Compliance Committee (MDCC) consists of senior executives representing security, human rights, consular, geographic and legal bureaus, as well as the Department of Justice. The MDCC is convened on an ad hoc basis to review the proposed disclosure, request or use of information in cases in which prohibitions under the MD may be engaged. The MDCC's role is to promote compliance with the MD by recommending risk-mitigation strategies, seeking increasingly senior-level discussion and approval for decisions as required, including by the Deputy Minister of Foreign Affairs, and documenting how each case is managed.

The MDCC mirrors similar structures that exist within other departments and agencies subject to the MD, including CSIS and the RCMP. While there have not yet been any cases that have required the MDCC to convene, efforts over the year ahead will focus on refining procedures and documentation to support future meetings.

Information Sharing Evaluation Committee (ISEC) participation

The Director General, Counter-Terrorism, Crime and Intelligence at Global Affairs Canada sits on the Information Sharing Evaluation Committee (ISEC), which is chaired by the Canadian Security Intelligence Service (CSIS). ISEC is convened on an ad hoc basis when CSIS requires formal senior-level deliberation of cases in which the disclosure or request of information to or from foreign entities, or the use of information from foreign entities is contemplated, and a decision is required about whether a proposed action may or may not proceed given the obligation to comply with the MD.

Prior to participating in these meetings, officials from Global Affairs Canada meet to determine considerations from the departmental perspective, including legal considerations, assessments of human rights records of the entities being discussed, any consular or foreign policy considerations, and overall compliance with the ministerial direction. The representative from Global Affairs Canada provides departmental perspectives that enable CSIS officials to make a well informed decision about whether or not information should be requested, disclosed or used in a given case, and if so, what mitigating measures need to be applied to ensure compliance with the MD.

A representative from Global Affairs Canada participated in 15 meetings of the ISEC between December 2017 and December 2018, providing valuable input to support compliance with obligations contained in the MD. Global Affairs Canada will continue to participate in ISEC meetings in the year ahead.

Information Sharing Coordination Group

Global Affairs Canada participates in the Information Sharing Coordination Group (ISCG), an interdepartmental working group led by Public Safety Canada to support a coordinated approach to implementing the MD across all implicated departments and agencies. Beginning in spring 2018 and continuing to the present, departmental officials have worked with partners to establish a consistent approach to country-level risk assessments, including by sharing methodology and best practices for human rights reporting. Other efforts of the ISCG have focused on harmonizing approaches to entity­ level assessments and understanding the information sharing arrangements of partners with foreign entities, including ensuring awareness of any relationship restrictions due to concerns about mistreatment.

Over the coming year, Global Affairs Canada will continue to contribute to the efforts of the ISCG to further enhance compliance with the MD among implicated departments and agencies.

Conclusion

There were no substantial risk cases for Global Affairs Canada in which the MD was engaged during the reporting period. There were also no restrictions on information sharing arrangements due to concerns related to mistreatment.

Work is ongoing to ensure that Global Affairs Canada continues to be fully compliant with the MD over coming years. Priorities for the year ahead include: continued work on standard operating procedures for the MDCC and standard record-keeping; further outreach and training; continued coordination with other departments and agencies to ensure common practices; and, expanding the set of human rights reports that contain dedicated information to assist departments and agencies in properly applying the MD.