2020 RCMP Annual Public Report on the Ministerial Direction for Avoiding Complicity in Mistreatment by Foreign Entities
Introduction
The Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act) came into force on July 13, 2019. The Act authorizes the Governor in Council to issue written directions to deputy heads regarding:
- 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
On September 4, 2019, pursuant to subsection 3(1) of the Act, the Governor in Council, on the recommendation of the Minister of Public Safety Canada (PS), issued the Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities (the Directions) to the Commissioner of the RCMP. In accordance with subsection 7(1) of the Act, the Commissioner must provide an annual report on the implementation of the Directions during the previous calendar year to the Minister before March 1.
This report details the RCMP's implementation of the 2019 Directions from January 1, 2020 to December 31, 2020. The report provides an overview of the RCMP's information sharing practices, efforts to update national policy, develop web-based training with respect to the Directions and the Foreign Information Risk Advisory Committee (FIRAC) process, as well as the RCMP's implementation of recommendations with respect to the development of a unified set of country assessments.
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.
Information sharing practices
The RCMP has successfully implemented a robust and comprehensive process to ensure information exchanges do not involve or result in the mistreatment of any person. In accordance with the 2019 Directions, the RCMP is required to consider the risk of mistreatment before requesting, disclosing or using information from a foreign partner. In cases where a substantial risk of mistreatment exists, the exchange must be referred to the RCMP's FIRAC.
When a case is presented to the FIRAC, the Committee focuses on the following key issues:
- Is there a substantial risk of mistreatment if information is shared? / Has information received been derived from mistreatment?
- What are the proposed measures to mitigate the risk, and their likelihood of success (e.g., diplomatic assurances)?
- Will moving forward (or not) with the exchange of information pose a threat to Canada's national security or other interests? If so, how real are the threats?
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 for signature. In cases where the FIRAC is unable to determine whether the risk can be mitigated, or where the use of information likely obtained from mistreatment is necessary to prevent the loss of life or significant personal injury, the responsible Assistant Commissioner will provide the ROD to the appropriate Deputy Commissioner for furtherance to the Commissioner for decision.
Implementation of the directions
Developing national policies
The policy and associated resources associated with the 2017 Ministerial Direction (MD) on Avoiding Complicity in Mistreatment by Foreign Entities, which the 2019 Directions replaces, remain in effect as the operational requirements of the 2017 MD and the 2019 Directions are substantively the same.
The RCMP is currently working to strengthen national policy to better support the consistent application of the Directions across all of the RCMP's program areas. To this end, the updated policy will clarify roles and responsibilities, as well as the triggers and thresholds that engage the FIRAC process.
The RCMP's approach to the Directions is expected to evolve through continued engagement with internal stakeholders, further to reviews conducted by external review bodies, as well as through continued consultations with other federal government departments and agencies that are also subject to the Directions.
Risk assessments
The RCMP continues to work on implementing the recommendations put forth in the National Security and Intelligence Review Agency's (NSIRA) Review of Departmental Frameworks for Avoiding Complicity in Mistreatment by Foreign Entities, specifically as it relates to the development of a unified set of country assessments for human rights situations. For instance, the RCMP actively participates on the Public Safety-led Information Sharing Coordination Group (ISCG), which is the primary interdepartmental forum responsible for supporting co-operation efforts and information-sharing practices amongst the national security group. Further, upon request, the RCMP will provide country risk assessments to various departments/agencies including Global Affairs Canada, the Canadian Security Intelligence Service and Canada Border Services Agency.
Training and awareness
The FIRAC Secretariat provides one-on-one guidance and information sessions to RCMP personnel when requested. To date, initial training efforts have targeted those with a key role in supporting the FIRAC process (e.g. Analysts Deployed Overseas and RCMP Liaison Officers).
Further, the RCMP continues to develop an online training course to provide RCMP personnel with the necessary knowledge, as it relates to the 2019 Directions and the FIRAC process. The online course is expected to be made available by late Summer/Fall 2021. Once available, the FIRAC course will be incorporated into the Federal Policing onboarding process as well as become a prerequisite for the RCMP's National Security Criminal Investigations Course. Further, the course 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 recently trained and assessed.
Once finalized, the new national policy and information about the FIRAC course will be published on the RCMP's infoweb. An awareness campaign, including formal communications will also be carried out.
Activity report – January 1, 2020 to December 31, 2020
During the 2020 reporting period, the RCMP did not experience any significant operational impact as a result of the Directives. Significant impact is defined as instances where the substantial risk could not be mitigated, and the RCMP was unable to disclose information that could have prevented injury or loss of life, or where a domestic operation failed because the RCMP was unable to proceed with an information exchange or use.
Between January 1, 2020 and December 31, 2020, there were no RCMP information exchanges that generated a substantial risk of mistreatment that required a referral to the Commissioner in accordance with the Order in Council Directions.
Conclusion
The RCMP will continue to leverage existing mechanisms such as the PS-led ISCG in its efforts to strengthen policies and procedures with respect to the implementation of the Directions.
- Date modified: