Annual Report 2021 – Implementation of OiC Directions for Avoiding Complicity in Mistreatment by Foreign Entities

Introduction

This report details activities related to the Avoiding Complicity in Mistreatment by Foreign Entities Act (ACMFEA) undertaken by Global Affairs Canada (GAC) from January 1 to December 31, 2021.

The reporting year was again an exceptional one due to workplace and business disruptions caused by the COVID-19 pandemic, both at headquarters and missions abroad. 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 for Avoiding Complicity in Mistreatment by Foreign Entities (the 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 and the OiC Directions to the Deputy Minister of Foreign Affairs were issued shortly thereafter, per the requirement of section 3(2)(d) of the Act. The Directions prohibit:

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

Prior to the OIC Directions, GAC was subject to the 2017 Ministerial Direction Avoiding Complicity in Mistreatment by Foreign Entities (MD). The operational requirements for both the 2017 MD and the 2019 OiC are substantively the same and the Department could leverage existing processes and activities to transition from the MD to the OiC process.

Pursuant to subsection 7(1) of ACMFEA, the Deputy of Foreign Affairs is required to provide the Minister of Foreign Affairs with an annual report regarding the department's application of the Directions during the previous calendar year. The annual report should include:

• The number of, and details on, “substantial risk” cases where the Directions were engaged;
• 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, GAC collects and uses information, notably through diplomatic reporting. Indeed, the very nature of diplomacy involves frequent exchanges of information. The vast majority of the information that is exchanged does not pertain to individuals. Where an exchange containing personally identifiable information may be deemed to be necessary, the OiC Directions provide 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 GAC and the department actively advocates in its bilateral relationships and within multilateral organizations against torture and inhumane treatment.

Avoiding Mistreatment Compliance Committee

The Avoiding Mistreatment Compliance Committee (the Committee) is the formal governance mechanism to maintain and enhance the department's compliance with the obligations in the Directions. The Committee’s role is to recommend risk-mitigation strategies, seek escalatory senior-level discussion and approval for decisions as required, up to and including the Deputy Minister of Foreign Affairs, and document 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 Directions may be engaged. The Committee is similar to structures that exist within other departments and agencies subject to the OiC.

During the reporting period, no cases were referred to the Committee and therefore it did not convene in 2021.

In 2020, the Committee’s secretariat initiated a full review of the Committee’s processes after one year of operation, as per its Terms of Reference. Notional recommendations have been developed to improve the working methods of the Committee and update the Terms of Reference. It is expected that the review will be completed in 2022 and the Terms of Reference updated.

Human rights reporting

GAC's human rights reports provide an evidence-based overview of the human rights situation in a particular country, including significant 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 GAC, the RCMP, CSIS, CBSA, IRCC, DND, PS, CSE and others.

GAC’s human rights reporting template and instructions now include a mandatory section focusing on ACMFEA issues and the potential for mistreatment. These reports are a key source of information used to inform ACMFEA-related risk assessments. As such, the demand for GAC’s human rights reports has increased significantly since the OiC Directions were issued to relevant departments and agencies.

Every year, a priority country list is developed to direct the department’s human rights reporting effort. This list is based on internal consultations and recognized human rights organization reports. It aims to identify countries of concern in regards to human rights violations. Personnel at Canada's missions abroad produced 53 human rights reports on countries of focus for the period of January to December 2021. The department makes these reports available to all other departments and agencies that were issued ACMFEA Directions to support their evaluations for cases where obligations under the Directions may be engaged.

In fall 2021, the Director General of GAC’s Office of Human Rights, Freedoms and Inclusion sent a message to all Heads of Mission abroad reminding them of the important role that human rights reports play in supporting compliance with the ACMFEA Directions, not only by GAC but by all partner departments and agencies subject to the same obligations. The Director General also held a meeting with Directors General of GAC’s geographic bureaus to launch the annual reporting cycle in which the importance of the human rights reports in supporting whole-of-government compliance with the ACMFEA Directions was underlined.

In the year ahead, GAC will continue to work with partners to incorporate feedback on human rights reporting and consider input on countries of interest for the next reporting round to ensure that human rights reports are as useful as possible in supporting decision-making by GAC and partner 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 only a limited number of in-person awareness sessions compared to previous reporting years. However, Global Affairs Canada continued to provide employees access to training on the ACMFEA through a virtual course available to all employees to ensure awareness and compliance with the OiC Directions. The course is part of GAC’s Governance, Access, Technical Security and Espionage (GATE) Awareness Program. Over 250 employees have successfully completed the virtual version of the course since its launch in 2020.

The department also delivered in-person GATE sessions at headquarters between April and December 2021 to a total of 29 employees. Given travel restrictions, in-person training was not offered abroad during the reporting year.

The Consular Policy Bureau began offering a new virtual course in January 2021 on Allegations of Torture and Mistreatment which presents the ACMFEA Directions. This presentation was offered four times in 2021 and was attended by over 230 participants. Attendees included locally-engaged consular staff at missions, Canada-based staff and honorary consuls.

In addition, the Director General of the Intelligence Bureau delivered a presentation in May 2021 to Heads of Mission that included a segment on the ACMFEA and the department’s obligation under the Directions. The department’s Head of Mission Handbook includes a comprehensive section on OiC obligations, including procedures on how to refer cases to the department’s Avoiding Mistreatment Compliance Committee.  The Director General also participated in a discussion of ACMFEA obligations with his departmental counterparts responsible for geographic regions in October 2021 to further reinforce communications of the department’s obligations.

Internal policies and procedures

In 2021, GAC improved the suite of products designed to raise awareness of internal policies and procedures and assist employees and HOMs in complying with the OiC Directions developed in the previous year. A new risk assessment form has been created to support employees in the risk assessment process and previous guidance documents have been assembled into a broader orientation guide outlining the complete decision-making procedure in GAC. These two new resources will be finalized and distributed throughout the department in 2022 via internal broadcast message.

Information Sharing Evaluation Committee (ISEC) participation

The Executive 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 deliberation of cases in which the disclosure of information to, request for information from, 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 under the OiC Directions.

Prior to participating in these meetings, GAC officials meet to determine considerations from the department’s perspective, including legal considerations as they relate to GAC'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. GAC’s representative then provides departmental advice at ISEC in support of a decision by CSIS officials on a course of action, including any mitigating measures to ensure compliance with the OiC Directions.

While ISEC did not meet in 2021, GAC stands ready to actively participate in any meetings that are convened in the year ahead.

Information Sharing Coordination Group

GAC 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 2021, the ISCG held five meetings. GAC officials contributed to discussions on departmental policies and procedures on OiC implementation; lessons learned for establishing a consistent approach to country-level risk assessments; and the methodology and best practices employed in human rights reporting.

Over the coming year, GAC will continue to contribute to the efforts of the ISCG to further enhance whole-of-government compliance with the OiC Directions.

Conclusion

During the reporting period, no substantial-risk cases presented to Global Affairs Canada engaged the OiC Directions.

Similarly, no restrictions were applied by GAC to any information-sharing agreements or arrangements due to concerns related to mistreatment.

Although disruptions due to COVID-19 posed challenges, GAC continued to make positive strides in making awareness and implementation of the OiC part of the department's operational posture and organizational culture, both at headquarters and at missions.

Priorities for the year ahead include further outreach, training, and awareness-raising across the department; continued coordination with other departments and agencies to align ACMFEA practices; and continued circulation of human rights reports to relevant departments and agencies, including sections focusing on mistreatment risks to assist partners in properly applying the OiC.