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Annual report 2023 – Implementation of Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities

Table of contents

Summary

This report details activities undertaken by Global Affairs Canada (GAC) from 1 January to 31 December 2023 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. Building on work initiated in 2022, GAC ratified and implemented several important amendments to the Terms of Reference of the Avoiding Mistreatment Compliance Committee, the primary governance mechanism supporting the department’s compliance with ACMFEA. This helped renew the use of the compliance function. Throughout the year, the department collaborated with several departments and agencies 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 2023, GAC also made two determinations where the restrictions under the OiC Directions have may applied: one to proceed with an information sharing activity and another not to proceed with an information sharing activity.

The following report outlines GAC’s obligations under ACMFEA and the OiC Directions, summarizes the internal activities undertaken by the department in 2023, 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 1 March 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:

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 and 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.

In early 2023, new Terms of Reference (ToR) were ratified by the AMCC following a full internal assessment of the AMCC mechanism, as required by the previous ToR. The new ToR include several important changes such as clarifications on the committee’s purpose and the roles and responsibilities of each member. The chair has also been granted authority to convene the committee in the absence of a case for either policy development and/or maintaining members’ knowledge of the file and promoting awareness of the department’s obligations under the OiC Directions.

With this new authority, the chair convened the AMCC in February 2023 for the first time since 2020 (as no cases were escalated to the level of the AMCC in 2021 and 2022) to discuss the clarifications on the roles and responsibilities of the AMCC. Due to GAC’s rotational cycle, this was also the first AMCC meeting for all committee members. The clarifications on the roles and responsibilities had a reinvigorating effect and helped improved the conduct and efficiency of the meetings during the reporting period.  The AMCC convened four times during this period, twice to discuss recommendations for improvements to the compliance function, and another two times to evaluate cases where the OiC Directions were engaged.

For the first case, the Committee determined that there was a substantial risk of mistreatment and that the risk could not be mitigated if the information was to be shared with the foreign authorities in question. The Committee instructed the requesting Global Affairs Canada officials not to share the information. 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 authorities in the countries in question. The Committee granted the requesting Global Affairs Canada officials the permission to share the information on condition that the proposed mitigation strategies to ensure compliance with the OiC Directions be applied. Details are provided in a classified annex.

Departmental policies and procedures

GAC continued to develop its policy guidance to support the implementation of the OiC Directions across all business lines in 2023. The department completed the drafting of its policy guidance tools for divisions engaging in information sharing activities and forms for documenting decision making in cases where the prohibitions under the OiC Directions may apply. In 2023, the AMCC Secretariat finalized the consultations for these policy guidance documents and forms and will seek AMCC approval on the revised products in early 2024. In 2024, GAC will publicize these materials within the department 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 developing new information materials on how to properly use these policy guidance materials.

Training and outreach

The department’s obligations under ACMFEA and the OiC Directions are currently included as part of a training course called ‘Governance, Access, Technical Security, and Espionage’ (GATE), which was delivered to a total of 818 employees in over 63 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 14 Global Security Reporting Program (GSRP) officers in June 2023. 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. GAC is currently in the process of developing a virtual training module dedicated exclusively to ACMFEA to support officials across all branches and staff serving in missions abroad in their understanding the department’s obligations when sharing information with foreign entities.

The Consular Policy Bureau also 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 42 employees in 2023.

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 to collect more detailed and relevant information concerning torture and mistreatment from missions.

Every year, a country list is developed based on consultations with GAC geographic divisions (in consultation with Canada’s diplomatic missions abroad), consular divisions and partner government departments and agencies, including those that issued OiC Directions pursuant to ACMFEA to support their evaluations for cases where obligations under the Directions may be engaged. In the 2023 reporting cycle, GAC produced 93 human rights reports on countries of focus for the period of January to December 2022, which were all made available to other government departments in 2023. Thanks to a broader consultation strategy with these departments and agencies the previous year, the 2023 period was a record year for the number of HRRs.

Finally, the Director General of GAC’s Office of Human Rights, Freedoms and Inclusion sent a message to all Heads of Mission in Fall 2023 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.

GAC will continue to collaborate with partner government departments and agencies on its human rights reporting process to provide relevant, evidence-based information and support decision-making related to the Directions.

Collaboration with other government departments and agencies

Inter-departmental human rights consultation

For the reporting period, GAC has met and continued to collaborate on an ad hoc basis with several departments on their respective human rights risk assessments for several countries. While GAC does not produce human rights risk assessments, GAC’s contribution to these reviews was guided by its annual human rights reporting, and input from missions and geographic divisions.

This collaboration is 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.” These government departments and agencies have indicated that GAC’s on-the-ground perspective is particularly valuable in developing human rights risk assessments and considering the ever-evolving nature of the global human rights situation, this collaboration is particularly useful. GAC committed to continue sharing its human rights reports proactively with the interdepartmental community and several departments have expressed interest in developing a means of proactively sharing their respective departments’ profiles in a similar manner to GAC.

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 three meetings in 2023. 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; the methodology and best practices employed in human rights reporting; and the setting of priority countries for ISCG member departments and agencies for GAC consideration when it develops its yearly list of HRRs.

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. GAC participated in three ISEC meetings in 2023.

Conclusion

During the reporting period, two information sharing cases were presented to the AMCC that carried a substantial-risk of mistreatment: the first did not proceed with an information sharing activity, as the AMCC concluded that the risk of mistreatment could not be mitigated; and for the second, the AMCC concluded that the risk could be mitigated with certain restrictions, including assurances a and caveats, therefore the information sharing activity could proceed. No other restrictions were applied by GAC to formal 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.

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