2018-2019 RCMP Annual Public Report on the Ministerial Direction Avoiding Complicity in Mistreatment by Foreign Entities
Introduction
On September 4, 2019 the Governor in Council issued an Order in Council (the 2019 OiC) direction to the Commissioner of the RCMP and a number of other Deputy Heads across the Canadian national security community. The OiC direction is a requirement of section 3(2)(d) of the Avoiding Complicity in Mistreatment by Foreign Entities Act, which came into force on July 13, 2019. The OiC direction superseded the 2017 Ministerial Direction on Avoiding Complicity in Mistreatment by Foreign Entities (the 2017 MD), which was formally repealed the same day that the OiC direction was issued. The operational requirements of the 2017 MD and the 2019 OiC are substantively the same; the RCMP did not need to amend its processes to transition from one to the other.
The 2017 MD required the RCMP to report to the Minister, on an annual basis, regarding the application of the Direction, including: 1) details about substantial risk cases where the Direction was engaged, including the number of cases; 2) restriction on any arrangements due to concerns related to mistreatment; and, 3) any changes to internal policies and procedures related to the 2017 MD. The reporting requirements under the 2019 Avoiding Complicity in Mistreatment by Foreign Entities Act are less prescriptive, stating only that "Every deputy head to whom directions have been issued under section 3 must, before March 1 of each year, submit to the appropriate Minister a report in respect of the implementation of those directions during the previous calendar year."
The RCMP's previous report to the Minister concerned the implementation of the 2017 MD from September 25, 2017 to September 25, 2018. The present report details the RCMP's implementation of the 2017 MD and the 2019 OiC from September 26, 2018 to December 31, 2019. It addresses the RCMP's internal policies and procedures, findings and recommendations from the RCMP's internal review of its implementation of the 2017 MD, as well as any new training and communication initiatives.
RCMP Information Sharing Practices and Operational Governance
Background
Information sharing with domestic and international law enforcement and security agencies is essential for the successful execution of the RCMP's mandate. Information exchanges can range from straightforward requests to confirm whether an individual has a criminal record, to urgent notifications that a suspect may be posing a threat to themselves or others.
The RCMP is committed to ensuring that the information it exchanges, both requests and disclosures, with international law enforcement and security agencies does not involve, or result in, mistreatment. This is important to the RCMP for two reasons. First, avoiding complicity in mistreatment is a core Canadian value, and second because information tainted by mistreatment (or allegations of mistreatment) cannot generally be used as evidence in Canadian courts. To be useful in criminal prosecutions, information must be handled and obtained in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms and the Privacy Act. Information obtained through mistreatment is contrary to these principles, and using it as evidence would be damaging not only to the investigation, but to the reputation of the RCMP and the Government of Canada.
The RCMP has implemented comprehensive policies and procedures to ensure that the information it exchanges or uses is not a result of mistreatment, nor will it lead to the mistreatment of any person. Many of these policies stem from lessons learned through the 2006 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Following the Commission, robust operational policies and accountability measures were established to ensure that information exchanges are completed with due respect for human rights. Furthermore, the RCMP stores, retains and disposes of personal information commensurate with the nature of the investigation, and in accordance with RCMP policies that are based on common law, Treasury Board policies, the Privacy Act and the Library and Archives of Canada Act.
Updating Policies and Procedures
The RCMP's national security function has been subject to Ministerial Direction related to information sharing and mistreatment since 2011. The 2011 Ministerial Direction to the Royal Canadian Mounted Police: Information Sharing with Foreign Entities (the 2011 MD) applied only to national security investigations, and stipulated that the RCMP could not exchange information with foreign entities where there was a substantial risk of mistreatment, unless that risk could be mitigated. In exceptional circumstances, the RCMP was directed to "make the protection of life and property its priority." When there was a serious risk of loss of life, injury, or substantial damage or destruction of property, the Commissioner could authorize the RCMP to share information that may have been derived from mistreatment with appropriate authorities in order to mitigate a serious threat. To ensure compliance with the 2011 MD, the RCMP updated its existing policies and created the Foreign Information Risk Analysis Committee (FIRAC) to assess the risks of information exchanges on behalf of the national security program.
The RCMP's current Foreign Information Risk Advisory Committee (FIRAC) was established to support compliance with the 2017 MD. The 2017 MD is broad in scope, applying to all crime types, and more restrictive in that it no longer allows the Commissioner to authorize the request or disclosure of information to prevent loss of life, injury, or the destruction of property if the risk of mistreatment cannot be mitigated. The 2019 OiC replaced the 2017 MD, but was substantively similar, and did not require significant changes to RCMP processes. The 2017 MD and the 2019 OIC imposed clear limits:
- The disclosure of information to any foreign entity that would result in a substantial risk of mistreatment of an individual
- The making of requests to any foreign entity for information that would result in a substantial risk of mistreatment of an individual
- The use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity
Investigative and analytical units are required to consider the risk of mistreatment before requesting, disclosing or using information from a foreign partner, and to engage the FIRAC process if there is a substantial risk. When a request is submitted to FIRAC, the exchange (e.g. disclose, request, or use of information) must first be approved by the Criminal Operations Officer (CROPs) or other approving officer as per Operational Policy, and must also be deemed relevant and necessary to assist in the advancement of an investigation. To the extent possible, the investigative team will present the potential for substantial risk of mistreatment along with a mitigation strategy.
FIRAC's recommendation(s) are made by the Chair, upon advice of the Committee, with dissenting opinions captured in the record of decision (RoD). The RoD is added to the investigative file and provided by the Committee Chair to the appropriate Assistant Commissioner or Executive Director for signature. In cases where the FIRAC is unable to determine whether the risk can be mitigated, the responsible Assistant Commissioner or Executive Director will provide the RoD to the appropriate Deputy Commissioner for furtherance to the Commissioner for decision.
The FIRAC process has been stable since 2018, and is administered on behalf of the RCMP by the Federal Policing External Review and Compliance unit. In response to the RCMP's experience in explaining a number of specific FIRAC decisions to reviewers from the National Security and Intelligence Review Agency (NSIRA) in Fall 2019, the RCMP developed and implemented templates and processes to more effectively capture meeting minutes during each FIRAC. The minutes are taken by both the FIRAC Secretariat and the Manager of the External Review and Compliance unit, to document the rationale and recommendations issued by FIRAC members. Unlike the RoDs, the meeting minutes are not signed-off by committee members; however, they are retained for record-keeping and reporting purposes.
Risk Assessments
To support compliance with the 2017 MD and the 2019 OiC, the RCMP's Law Enforcement Assessment Group (LEAG) continues to develop and review assessments of foreign countries and specific law enforcement entities available to RCMP personnel in Canada and abroad through the RCMP's protected-B Integrated Collaborative Environment (ICE). The ICE site lists countries and law enforcement entities as GREEN (Low Risk - no review by FIRAC required), YELLOW (Medium Risk - a review by FIRAC is required if one or more specified risk conditions is present), or RED (High Risk - all information exchanges must be reviewed by FIRAC). The RCMP also makes the complete classified country assessments available through its Classified Environment (CE). The full-length assessments include open source human rights assessments, assessments by Canadian partners, and observations by RCMP Liaison Officers (LOs) deployed in the region. The assessments also identify any known factors that could mitigate risks, such as documented assurances provided to the RCMP by foreign entities, the presence of vetted teams, or a record of compliance with RCMP caveats and requests to respect human rights.
Countries and law enforcement entities were triaged, and assessments were carried out in order of priority. The ICE Site currently provides one hundred and forty-nine (149) country risk assessments; of the149, twenty-two (22) have been assessed as high risk, sixty-nine (69) are considered to be medium risk, and fifty-five (55) are considered low risk. Once all countries and relevant law enforcement entities have been assessed, the RCMP will undertake a periodic review process; countries can also be reassessed sooner if there is an operational need. Nevertheless, in every case, the FIRAC will consider information that may be more recent than the approved risk assessment, including updates from RCMP LOs.
FIRAC One Year Review: Key Findings and Recommendations
The Strategic Policy unit within Federal Policing conducted a review of the FIRAC process in June 2019 to identify areas for improvement, gaps or other challenges with respect to the RCMP's implementation of the 2017 MD. Key findings from the review reveal that while the RCMP has been generally successful in implementing a process to effectively manage the sharing of information with foreign entities when there is a risk of mistreatment, there are three core areas requiring further attention. First, as a law enforcement agency, the RCMP has unique needs that are not adequately met by the current process. For example, due to the high administrative burden placed on the FIRAC Secretariat, in addition to the levels of approval required when making a request, the RCMP has struggled to respond to urgent requests in a timely manner, potentially impacting police operations. Second, the review acknowledged that FIRAC members, and the FIRAC Secretariat, are largely drawn from Federal Policing; now that the MD applies to all RCMP business lines, more needs to be done to ensure that Contract and Indigenous Policing and Specialized Policing Services are adequately represented. Furthermore, resource constraints on the FIRAC Secretariat and the LEAG make it challenging to adequately support the current FIRAC process. Lastly, the RCMP is challenged in providing training and awareness to all RCMP employees so that personnel are equipped with the necessary knowledge and information to properly perform their duties with respect to the 2017 MD or the 2019 OiC.
Implementation Measures: Communication and Training
The RCMP has taken active steps to train relevant personnel to promote an awareness and understanding of the 2017 MD, the 2019 OiC and the FIRAC process. Initial training efforts have targeted those with a key role in supporting the FIRAC process. For instance, training was first delivered to RCMP personnel who serve, or were about to be deployed, as RCMP LOs and Analysts Deployed Overseas (ADO); these personnel are the primary means by which the RCMP shares information with foreign entities. Training LOs and ADOs so they are aware of the RCMP's responsibilities under the 2017 MD and 2019 OiC has helped to ensure that information exchanges posing a substantial risk of mistreatment are routed through the FIRAC for consideration. The LOs and ADOs were also reminded of their responsibility to continuously monitor the human rights record of foreign entities, and to immediately inform headquarters of any mistreatment allegations.
Training was provided to personnel in the national security program who facilitate information exchanges for front-line investigators, INTERPOL Ottawa, and the RCMP's Sensitive and International Investigations unit. The FIRAC Secretariat also provides one-on-one guidance and information sessions when requested. However, to date these sessions have only been offered in English, and only in the National Capital Region. To ensure that consistent training is available in English and French to RCMP personnel across Canada and abroad, the FIRAC Secretariat is currently working with RCMP Learning and Development services to develop an online training course using the RCMP's Agora platform. The online course is expected to be available by December 2020. Once in place, the Agora course will include documents, instructions, exercises and an examination module, and will provide the RCMP with a mechanism for documenting and tracking who has been trained, and ensuring that any personnel involved in foreign information sharing have been adequately and recently trained and assessed.
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