Annual report 2022 – Implementation of Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities

Introduction

This report details activities undertaken by Global Affairs Canada (GAC) from 1 January to 31 December, 2022 related to the implementation of the Avoiding Complicity in Mistreatment by Foreign Entities Act (ACMFEA) and the related Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities (OiC Directions).

During the reporting period, GAC developed resources to support the implementation of ACMFEA across business lines and worked with other government departments and agencies to exchange best practices. Notably, regular in-person training activities related to ACMFEA resumed for the first time since the beginning of the COVID-19 pandemic, as officials returned to the office on a more regular basis. The department also participated in a new initiative to better coordinate human rights reporting and risk assessments between departments, in consideration of the National Security and Intelligence Review Agency’s (NSIRA) past recommendations. In 2022, GAC did not make any determination to proceed with an information sharing activity where the restrictions under the OiC Directions may have applied, nor were any limitations on information sharing agreements imposed by the department or the deputy head.

The following report outlines GAC’s obligations under ACMFEA and the OiC Directions, summarizes the internal activities undertaken by the department in 2022, and underscores collaborative efforts undertaken by GAC with counterparts from other government departments in the reporting period.

Background

Pursuant to subsection 7(1) of ACMFEA, the Deputy Minister of Foreign Affairs, before March 1 of each year, is required to provide the Minister of Foreign Affairs with a report regarding the department's implementation of the OiC Directions during the previous calendar year.

ACMFEA and the related OiC Directions, issued in September 2019, restrict the sharing of information with foreign entities where there is a substantial risk of mistreatment and place limitations on certain uses of information which may likely have been derived from mistreatment. Specifically, the OiC Directions prohibit:

• The disclosure of information that would result in a substantial risk of mistreatment of any individual by a foreign entity (where the substantial risk cannot be mitigated);
• The making of requests for information that would result in a substantial risk of mistreatment of any individual by a foreign entity (where the substantial risk cannot be mitigated);
• Certain uses of information that was likely obtained through mistreatment of an individual by a foreign entity (unless the use of the information is necessary to prevent loss of life or significant personal injury).

Prior to the introduction of the OiC Directions, GAC was subject to the 2017 Ministerial Direction Avoiding Complicity in Mistreatment by Foreign Entities (2017 MD). The department’s obligations under both the 2017 MD and the 2019 OiC Directions are substantively the same. Since the introduction of ACMFEA, the department has updated policies and processes developed in 2017 to continuously improve the implementation of ACMFEA and the OiC Directions. The development of GAC’s information sharing policy is guided by its statutory obligations, certain definitions from the 2017 MD that are not included in the OiC Directions, as well as recommendations from recent NSIRA reviews of the government’s implementation of ACMFEA.

As part of its mandate, GAC collects and uses information obtained from other government departments and foreign entities, notably through diplomatic reporting. Indeed, the very nature of diplomacy involves frequent exchanges of information. Furthermore, the promotion and defence of human rights is a key priority for GAC, and the department actively advocates against the use of torture and inhumane treatment through bilateral relationships and within multilateral organizations.

The vast majority of the information that is exchanged by GAC does not pertain to individuals. Where an exchange concerning information which may put individual(s) at risk of torture and mistreatment may be deemed necessary, the OiC Directions provide clear guidance to officials on the considerations relevant to their decision-making.

Governance & Departmental Resources

Avoiding Mistreatment Compliance Committee

The Avoiding Mistreatment Compliance Committee (AMCC) is the formal governance mechanism supporting department's compliance with its obligations as outlined in the OiC Directions. The Committee’s primary role is to make decisions concerning the risk posed by information sharing activities with a foreign entity, to recommend risk-mitigation measures as appropriate, and to refer decisions to the Deputy Minister of Foreign Affairs when required. The AMCC is supported by a secretariat which assists in communicating decisions within the department, as well as documenting how cases are managed. The Committee is similar to mechanisms that exist within other departments and agencies subject to ACMFEA.

The AMCC is convened on an ad hoc basis to review the proposed disclosure, request, or use of information by a GAC division or mission in cases in which prohibitions under the OiC Directions may apply. Because no cases were referred to the AMCC in 2022, it did not convene during the reporting period.

The committee’s secretariat completed a full internal assessment of the AMCC mechanism and Terms of Reference in 2022. The assessment included 14 recommendations to the AMCC Chair with the intent of clarifying the committee’s purpose and the roles and responsibilities of each member. The assessment also recommended that the chair be granted authority to convene the committee in the absence of a case for decision to maintain members’ knowledge of the file and promote awareness of the department’s obligations under the OiC Directions.

Following the assessment, the secretariat began preparing updated Terms of Reference for consideration by AMCC members in early 2023.

Departmental Policies and Procedures

GAC continued to develop its policy guidance to support the implementation of the OiC Directions across all business lines in 2022. The department developed off-the-shelf policy guidance for divisions engaging in information sharing activities and forms for documenting decision making in cases where the prohibitions under the OiC Directions may apply. GAC will publicize these materials through various internal channels to increase awareness of the department’s obligations under ACMFEA and the OiC Directions, and ensure compliance with the Act. The department is also planning to develop new training materials concerning its obligations when sharing information with foreign entities to support officials across all branches, especially staff serving in missions abroad.

Training and Outreach

Following several years with limited opportunities for in-person training due to the COVID-19 pandemic, the department was able to resume training activities related to ACMFEA in 2022. The department’s obligations under ACMFEA and the OiC Directions are included as part of a broader intelligence training course called ‘Governance, Access, Technical Security, and Espionage’ (GATE), which was delivered to a total of 326 employees at 30 training sessions during the reporting period. An in-depth session on the department’s information sharing practices, including its obligations under the Directions, was also offered to Global Security Reporting Program (GSRP) officers on 8 July, 2022. Finally, the department’s Head of Mission (HOM) Handbook provided to all new HOMs includes a comprehensive section on GAC’s obligations under the OiC Directions, including procedures on how to refer cases to the AMCC. 

The Consular Policy Bureau offered training in various format on the topic, including the online video recording of the “Allegations of Torture and Mistreatment” workshop, sessions during the consular pre-posting week as well as in the online course “Safeguarding Personal Information: The Role of the Consular Officer”. These various courses, which introduced employees to ACMFEA and OiC Directions, were offered to 82 employees in 2022.

Human Rights Reporting

GAC's human rights reports (HRR) 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 engagements, including foreign policy, development, trade and consular activities. Reports are prepared by Canada’s diplomatic missions abroad and can be classified. HRRs are produced for an internal Government of Canada audience and are made available to a wide range of departments and agencies, including the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), the Canada Border Services Agency (CBSA), Immigration Refugees and Citizenship Canada (IRCC), the Department of National Defence (DND), Public Safety Canada (PS), and the Communications Security Establishment (CSE). These reports support evidence-based risk assessments across several departments and agencies for cases where obligations under the OiC Directions may be engaged.

GAC’s human rights reporting template and instructions include a mandatory section focusing on risks related to torture and mistreatment. These reports are a key source of information used to inform decision making in cases where the OiC Directions may apply. In response to the increased demand for reliable information on mistreatment since the OiC Directions were issued, GAC updated its reporting guidelines and templates in 2022 to collect more detailed and relevant information concerning torture and mistreatment from missions.

Personnel at Canada's missions abroad produced 33 human rights reports on countries of focus for the period of January to December 2021. Every year, a country list is developed to direct the department’s human rights reporting effort. This list is developed based on consultations with GAC geographic divisions (in consultation with Canada’s diplomatic missions abroad) and other government departments and agencies. The country selection process cross-references GAC’s report on plans and priorities, the United Nations’ Universal Period Review process, and reports from reputable human rights organizations. Annual reporting is required for countries when information on their respective human rights situation is essential to the work of GAC’s security partners and client divisions. The department makes these reports available to all other departments and agencies that were issued OiC Directions pursuant to ACMFEA to support their evaluations for cases where obligations under the Directions may be engaged. GAC will continue to collaborate with other government departments and agencies on its human rights reporting process to provide relevant, evidence-based information and support decision-making related to the Directions.

In fall 2022, the Director General of GAC’s Office of Human Rights, Freedoms and Inclusion sent a message to all Heads of Mission abroad to launch the annual reporting cycle, reminding them of the important role that human rights reports play in supporting compliance with ACMFEA Directions, not only by GAC but by all partner departments and agencies subject to the same obligations.

Collaboration with Other Government Departments and Agencies

Inter-departmental Human Rights Consultation

In November and December 2022, GAC officials participated in an inter-departmental, working-level Human Rights Consultation with counterparts from CSE, CSIS, and DND. To note, GAC was represented by 28 officials. During the three-day meeting, participants reviewed each departments’ respective human rights risk assessments for several countries along with each department’s methodology for handling cases involving prohibitions under the OiC Directions. The agenda addressed specific countries where discrepancies exist between departments’ risk assessments, in an effort to ensure greater consistency when exchanging information with foreign entities.

While GAC does not produce human rights risk assessments, the department’s interventions were guided by its annual human rights reporting, and input from missions and geographic divisions. Other government departments and agencies indicated that GAC’s on-the-ground perspective is particularly valuable in developing human rights risk assessments.

The meeting was proposed by DND in consideration of NSIRA’s recommendation “that departments identify a means to establish unified and standardized country and entity risk assessment tools to support a consistent approach by departments when interacting with Foreign Entities of concern under the Act.” While all departments and agencies present at the meeting intend to continue developing their respective country profiles, they agreed to share the results of risk assessments upon request in future. GAC committed to continue sharing its human rights reports proactively with the interdepartmental community. Several participants also expressed interest in developing a means of proactively sharing their respective departments’ profiles in a similar manner to GAC. Considering the ever-evolving nature of the global human rights situation, DND intends to repeat this exercise at regular intervals.

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. The ISCG held four meetings in 2022. GAC officials contributed to discussions on departmental policies and procedures on the implementation of OiC Directions; lessons learned for establishing a consistent approach to country-level risk assessments; and the methodology and best practices employed in human rights reporting.

Information Sharing Evaluation Committee (CSIS)

GAC sits on CSIS’ Information Sharing Evaluation Committee (ISEC) in an advisory capacity, which is available to CSIS managers to offer input on human rights and foreign policy considerations. ISEC is a CSIS Director General-level committee, which is convened on an ad hoc basis to deliberate cases that may pose a higher risk of mistreatment. ISEC assesses cases involving the disclosure of information to, request for information from, or the use of information from foreign entities and comes to a decision on whether a proposed action may or may not proceed in accordance with CSIS policy, ACMFEA, and 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, and any consular or foreign policy considerations. GAC’s representative then provides feedback at ISEC in support of a decision by CSIS officials on a course of action, including any potential mitigating measures to ensure compliance with the OiC Directions.

Conclusion

During the reporting period, no information sharing cases presented to GAC carried a substantial-risk of mistreatment and therefore the OiC directions were not engaged. Similarly, no restrictions were applied by GAC to information-sharing agreements or arrangements due to concerns related to torture or mistreatment.

GAC continued to advance the full implementation of ACMFEA and the OiC Directions across business lines and worked with counterparts from other departments to develop a more coordinated approach to reducing risks related to mistreatment. In the year ahead, GAC will make resources regarding the department’s obligations more readily available to branches at headquarters and missions abroad, and increase training opportunities related to ACMFEA and the OiC Directions. The department will also continue to actively collaborate with other departments and agencies on the implementation of the Act by providing its human rights reporting to the government-wide community and participating in interdepartmental initiatives.