Annual report 2018-2019 – Ministerial direction to Global Affairs Canada: Avoiding complicity in mistreatment by foreign entities

Introduction

The Avoiding Complicity in Mistreatment by Foreign Entities Act came into force on July 13, 2019. On July 24, 2019, the Minister of Foreign Affairs approved the Order in Council (OiC) Directions for Avoiding Complicity in Mistreatment by Foreign Entities issued to the Deputy Minister of Foreign Affairs, as per the requirement of section 3(2)(d) of the Act. The direction 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.

Prior to the OIC direction, Global Affairs Canada was subject to the 2017 Ministerial Direction Avoiding Complicity in Mistreatment by Foreign Entities. The operational requirements for both the 2017 MD and the 2019 OIC are substantively the same. Therefore, the departments and agencies subject to the 2017 Ministerial Direction Avoiding Complicity in Mistreatment by Foreign Entities were not required to amend their processes to transition from one to the other. Global Affairs Canada did not need to amend its processes.

Similar to 2017 MD annual reporting requirements, pursuant to subsection 7(1) of the Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act), the Deputy of Foreign Affairs is required to provide its Minister with an annual report regarding their department's application of these directives during the previous calendar year. The annual report should 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, and ensures the security of missions abroad. 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 deemed to be necessary, the OiC direction provides clear guidance to officials on the considerations relevant to their decision-making.

This report details activities undertaken by Global Affairs Canada from December 2018 to December 2019 (engaging the 2017 MD from December 2018 to July 2019 and the OiC direction from July 2019 to December 2019) that were related to the Directions.

Ministerial Direction Compliance Committee

The Ministerial Direction Compliance Committee (MDCC) is the formal governance mechanism to enhance the department's compliance with the obligations in the OiC direction. The MDCC's role is to promote compliance with the OiC 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. It is convened on an ad hoc basis to review the proposed disclosure, request or use of information in cases in which prohibitions under the OiC direction may be engaged. The MDCC mirrors similar structures that exist within other departments and agencies subject to the OiC, including the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP).

During the reporting period, the MDCC met on four occasions to discuss four cases where there was a potential substantial risk of mistreatment and where the OiC direction was engaged.

In all four cases, the MDCC followed the procedures as set out in its Terms of Reference and provided timely guidance to the requesting Global Affairs Canada officials on how to best address the situation while complying with the OiC direction, including proposing risk mitigation strategies and recommendations on how to proceed.

In all four cases, the MDCC determined that there was a substantial risk of mistreatment if the information was to be shared with the country authorities in question and therefore instructed the requesting Global Affairs Canada officials not to share the information with those authorities while proposing other solutions to address the situation at hand (see classified annex for details).

However, several lessons were learned from those initial four MDCC meetings, notably regarding the organization of the collected information as to improve the efficiency for decision making. As per the Terms of Reference for the MDCC, Global Affairs Canada is currently doing a stocktaking of the MDCC processes and will conduct a full-review of the Terms of Reference after one year of operation, starting from its inaugural meeting on May 24, 2019.

Human rights reporting

Global Affairs Canada's human rights reports provide an evidence-based overview of the human rights situation in a particular country, including significant human rights­ related events, trends and developments. The reports inform Canada's international engagement, including foreign policy, development, trade, security and consular activities. These reports are classified and produced for an internal Government of Canada audience, including Global Affairs Canada, the RCMP, CSIS, Canada Border Services Agency (CBSA), Immigration, Refugee and Citizenship Canada (IRCC), the Department of National Defense (DND), Public Safety Canada (PS), the Communications Security Establishment (CSE) and others.

The 2017 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 OiC directions were issued to other departments and agencies within the Government of Canada.

In April 2019, 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 2017 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 50 human rights reports covering the period of April 2018-March 2019. These reports have been made available to all other departments and agencies that were 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 useful as possible in supporting decision-making, both by Global Affairs Canada and by other departments and agencies within the Government of Canada.

Training and outreach

The Department implemented a comprehensive program of outreach and training throughout 2019, both at headquarters and at missions abroad, with a view to ensuring awareness and compliance with the MD/OiC direction. More than 580 staff received in­ person training in 2019 regarding the MD/OiC and the obligations that it entails for employees as part of the GAC Governance, Accreditation, Technical Security and Espionage (GATE) training.

As the exchange of information with foreign entities is by in large done abroad, training sessions were held at 26 missions, covering approximately 360 key employees. The target employees for training on the OiC requirements are those posted at high-priority missions abroad, including Mission Security Officers, Management Consular Officers, Readiness Program Managers, Global Security Reporting Program Officers, as well as Heads of Mission and Canada-Based Staff.

Some officials from other departments and agencies co-located in missions abroad, including personnel from DND, CSIS, CBSA, the RCMP and IRCC, have also participated in and benefited from this training.

At Headquarters, twelve training sessions were held for approximately 220 high-priority employees.

Materials will continue to be refined to support further training and outreach over the coming year.

Information Sharing Evaluation Committee (ISEC) participation

The Director General, Counter-Terrorism, Crime and Intelligence Bureau at Global Affairs Canada sits on the Information Sharing Evaluation Committee (ISEC), which is chaired by 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/OiC.

Prior to participating in these meetings, officials from Global Affairs Canada meet to determine considerations from the departmental perspective, including legal considerations as they relate to Global Affairs Canada's economic sanctions regime, assessments of human rights records of the entities being discussed, any consular or foreign policy considerations, and overall compliance with CSIS' MD/OiC. 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/OiC.

A representative from Global Affairs Canada participated in 12 meetings of the ISEC between December 2018 and December 2019, 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. It should be noted that CSIS has informed that it is considering reducing GAC's role in the Committee to an observer role.

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 and OiC across all implicated departments and agencies.

In 2019, departmental officials have contributed to discussions on departmental policies and procedures on the MD, OiC implementation, lessons learned and best practices to establish a consistent approach to country-level risk assessments, including by sharing methodology and best practices for human rights reporting. For instance, the ISCG is finalizing a policy document that will provide guidance on questions and issues that have been raised so far on the implementation of the OiC. The policy document has incorporated the feedback form the implicated departments and agencies who have all fed into the process, including Global Affairs Canada. It will contain guidance that is mindful of different contexts in which these departments and agencies work. 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 OiC direction among implicated departments and agencies.

Conclusion

There were four substantial risk cases for Global Affairs Canada in which the OiC was engaged during the reporting period.

There were no restrictions on information sharing arrangements due to concerns related to mistreatment.

Global Affairs Canada continues to make positive strides in making awareness and implementation of the OiC part of the Department's day-to-day culture, both at headquarters and at post. A review of the MDCC Terms of Reference, operating procedures and standard record-keeping will be conducted in Spring 2020 and the development a policy suite of products to support employees in complying with the OiC direction is underway. These include: a colour-coded Country Risk Assessment quick-reference guide that identifies countries as either low-risk (Green), medium-risk (Yellow), or high-risk (Red); step-by-step guides for employees and for Heads of Mission for facilitating decision making regarding disclosing or requesting information; and finally MDCC related forms to help employees identify various risks regarding potential information disclosures or requests, and to propose risk mitigation strategies.

Priorities for the months ahead also include: further outreach and training; continued coordination with other departments and agencies to ensure common practices; and, expanding on the mandatory section focusing on mistreatment in the Global Affairs Canada human rights reports to assist departments and agencies in properly applying the OiC.