Annual report 2020 – Implementation of the Directions to Global Affairs Canada: Avoiding complicity in mistreatment by foreign entities

Introduction

This report details activities related to the Avoiding Complicity in Mistreatment by Foreign Entities Act (ACMFEA) Directions undertaken by Global Affairs Canada from January 2020 to December 2020.

The reporting year was exceptional due to the COVID-19 pandemic. For Global Affairs Canada, COVID-19 mitigation measures saw the repatriation of 523 Canadian diplomats from missions abroad and unprecedented restrictions on access to headquarters and other Global Affairs Canada facilities. However, despite these challenges, progress was achieved on several fronts, notably in developing products to assist employees in complying with the Order in Council (OiC) Directions and creating online training, which are highlighted in the Training and Outreach and Internal Policies and Procedures sections.

Background

ACMFEA 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, 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 the MD to the OiC process.

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 the Minister of Foreign Affairs with an annual report regarding the department's application of these directives during the previous calendar year. The annual report should include:

• Details on substantial risk cases where the Directions 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 Directions.

As part of its mandate, Global Affairs Canada collects and uses information, notably through diplomatic reporting. Indeed, the very nature of diplomacy involves 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.

Moreover, 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.

Avoiding Mistreatment Compliance Committee

The Avoiding Mistreatment Compliance Committee (the Committee) is the formal governance mechanism to enhance the department's compliance with the obligations in the OiC direction. The Committee’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 Committee mirrors similar structures that exist within other departments and agencies subject to the OiC.

During the reporting period, the Committee met on one occasion to discuss a case where there was a potential substantial risk of mistreatment and where the OiC direction was engaged. Another case, presented to the Committee in late Fall of 2019, continued to its conclusion into early 2020.

For the first case, the Committee determined that there was not a substantial risk of mistreatment if the information was to be shared with authorities in the country in question. However, the Committee instructed the requesting officials not to share the information until a partner Government of Canada department/agency, which was the owner of information, first confirmed that it had already shared the information with those authorities. The Committee also proposed mitigation strategies to ensure compliance with the OiC Directions. Details are provided in a classified annex.

For the second case, the Committee determined that there was not a substantial risk of mistreatment if the information was to be shared with local authorities in question but instructed the requesting Global Affairs Canada officials not to share the information, as a partner Government of Canada department/agency was the more appropriate interlocutor to those requesting authorities. The Committee recommended that the partner department convene its own compliance committee regarding this information exchange. Details are provided in a classified annex.

As per indicated in the Terms of Reference of the Committee, the secretariat initiated a full-review of the Committee’s processes after one year of operation, including a consultation with Committee members to identify areas for improvement, gaps and other challenges. The review report highlights several challenge areas faced by the Committee where efficiency could be gained, such as the timeliness of Committee decisions; addressing Duty of Care issues; and, final reporting of case outcomes regarding Committee decisions. Recommendations were provided for each of these areas, in addition to recommendations for updates to the Terms of References to reflect current realities, such as renaming the Committee from the Ministerial Direction Compliance Committee (MDCC) to the Avoiding Mistreatment Compliance Committee (AMCC), and on some longer-term issues, such as resourcing. Due to COVID- restrictions, the final report’s completion is expected in 2021.

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, CBSA, IRCC, DND, Public Safety Canada (PS), the Communications Security Establishment   (CSE) and others.

Global Affairs Canada’s human rights reports now include a mandatory section focusing on potential for mistreatment. These reports are among the key sources of information used to inform ACMFEA assessments, with partner departments and agencies indicating that these reports are consulted on a frequent basis at all levels. As such, the demand for human rights reports from Global Affairs has increased significantly over the past years, particularly since OiC Directions were issued to other departments and agencies within the Government of Canada who use them for their own internal assessments.

In Fall 2020, the Director General of Global Affairs’ Office of Human Rights, Freedoms and Inclusion sent a message to all Heads of Mission reminding them of the important role that human rights reports play in supporting compliance with the ACMFEA Directions, not only by Global Affairs Canada but by all partner departments and agencies subject to the same obligations. The Director General of GAC’s Office of Human Rights, Freedoms and Inclusion also held a meeting with all Director Generals of the Geographic Bureaus on the importance of the human rights reports in supporting compliance with the ACMFEA Directions.

Personnel at Canada's missions abroad produced 33 human rights reports covering the period of April 2019-December 2020. The department has made these reports available to all other departments and agencies that were issued similar ACMFEA Directions to ensure that they can be referenced in cases in which obligations under the Directions may be engaged.

In the year ahead, Global Affairs 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

Due to COVID-19 restrictions on travel and in person meetings, the department was able to deliver a limited number of in-person awareness sessions compared to the previous reporting years. However, in order to provide employees with continued access to training on the ACMFEA, Global Affairs Canada developed a new virtual course available to all employees with a view to ensuring awareness and compliance with the OiC Directions. The course was made available in July 2020 as part of the Global Affairs Canada Governance, Access, Technical Security and Espionage (GATE) Awareness Program. Over 130 employees successfully completed the virtual version of the course since its launch.

The department held, in-person sessions abroad and at headquarters (HQ) in January and February 2020, and at HQ in December 2020. The department provided in-person sessions to 40 bureau officers at HQ and to 68 officers abroad (January and February), including Heads of Missions (HOMs), Canada-Based Staff and officials from other departments and agencies co-located in missions abroad, including personnel from the Department of National Defence, Canada Border Services Agency (CBSA), Immigration, Refugee and Citizenship Canada (IRCC), the Department of National Defense (DND), and the Royal Canadian Mounted Police (RCMP).

In addition, the department updated the 2020 edition of the Heads of Mission Handbook to include a comprehensive section on the OiC obligations for the ACMFEA for Heads of Mission and their staff at Mission, including procedures on how to refer cases to the department’s Avoiding Mistreatment Compliance Committee at Headquarters.

Internal policies and procedures

Materials for raising awareness regarding internal policies and procedures on OiC Directions continued to be developed to support employees over the course of the year. In 2020, GAC developed a suite of products to assist employees and HOMs  in complying with the OiC Directions, including: an interactive/dynamic formto facilitate decision making regarding disclosing or requesting information and the submission of potential information disclosures and requests for approvals to the Avoiding Mistreatment Compliance Committee; a guidance document with information on procedures, tips and definitions for completing the form; a one page overview of ACMFEA for employees simplifying their ACMFEA obligations; a flow chart for understanding the AMCC decision process; and, a dedicated ACMFEA email address to which employees could send requests for information. Due to pandemic restrictions, the suite of products could not be finalized in 2020, but are in final stages of approval at the time of the drafting of this report, with expected distribution of the final products across the department and related communications in 2021.  

Information Sharing Evaluation Committee (ISEC) participation

The Director of the Intelligence Policy and Programs Division 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 OiC Directions. It should be noted that CSIS has amended GAC's role in the Committee to serve as a non-voting member, as is the case with other OGD representatives (e.g. Justice).

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' OiC Directions. The representative from Global Affairs Canada provides departmental perspectives that supports CSIS officials with foreign policy implications advice 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 OiC Directions.

The representative from Global Affairs Canada participated in one meeting of the ISEC in 2020, providing input to support compliance with obligations contained in the OiC Directions. 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 OiC Directions across all implicated departments and agencies.

In 2020, the ISCG held 3 meetings. Departmental officials contributed at each meeting to discussions on departmental policies and procedures on the 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.

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

Conclusion

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

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

Although the restrictions due to COVID-19 created many challenges in terms of production of materials, 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. Priorities for the months ahead also include: further outreach, training, and awareness-raising across the department; 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.