2021 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
- 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, 2021 to December 31, 2021. The report provides an overview of the RCMP's information sharing practices, efforts to update national policy, and internal training with respect to the Directions and the Foreign Information Risk Advisory Committee (FIRAC) process.
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 also to the reputation of the RCMP and the Government of Canada.
Information sharing practices
In accordance with the 2019 Directions, all RCMP investigative and analytical units are 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.
The FIRAC establishes a systematic approach to the review of information exchanges (i.e., seeking to disclose, request, or use information) where there is a substantial risk of mistreatment. In line with the Act and Directions, FIRAC examines the operational context of each request, the application of risk-mitigation strategies, the strength of assurances, and makes recommendations to the responsible Assistant Commissioner or Executive Director.
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 one of the co-Chairs, upon advice of the Committee, with dissenting opinions captured in the record of decision (ROD). The ROD is provided to the appropriate Assistant Commissioner or Executive Director for decision and added to the investigative file. 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 or Executive Director will provide the ROD to the appropriate Deputy Commissioner for furtherance to the Commissioner for decision.
When matters are referred to the Commissioner for decision, the Commissioner must document the basis for the decision and appropriate measures taken to mitigate the risk (e.g. caveats, assurances, measures). If the Commissioner approves the disclosure, it must be accompanied by the RCMP's characterization of the information's accuracy and reliability.
The Commissioner must then inform the Minister of Public Safety and Emergency Preparedness, the National Security and Intelligence Review Agency, the National Security and Intelligence Committee of Parliamentarians, and the Civilian Review and Complaints Commission for the RCMP of any determinations, as well as disclose any information considered in making the decision.
Implementation of the Directions
Developing National Policies
The RCMP is in the final stages of publishing its strengthened 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. Once finalized, the new national policy and information about training will be published on the RCMP's internal website. An awareness campaign, including formal communications will also be carried out.
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.
FIRAC Coordination Unit: strategic guidance, awareness and training
A 2021 internal review of the RCMP's implementation of the Act and existing framework revealed the need to improve administrative support to the FIRAC. The FIRAC Coordination Unit was stood up with dedicated staff to form the policy centre in support of the RCMP's implementation of the Act and related directions, including compliance. The FIRAC Coordination Unit provides guidance and support on the application of the legislation to operational personnel and the Committee; oversees record keeping of FIRAC meetings; identifies strategic level issues related to process; shares outcomes with the Law Enforcement Assessment Group (LEAG) to inform risk on an ongoing basis; and, engages with external federal partners to share and incorporate best practices.
In the last year, the RCMP revised the FIRAC Terms of Reference to clarify roles and responsibilities, enhance processes and procedures, and provide guidance around mitigation measures. The FIRAC membership was also expanded to more program areas involved in foreign information exchanges to strengthen deliberations and recommendations, as well as increase awareness across the RCMP. The impact of these changes will be more evident in 2022.
There remains a need to continue promoting awareness and training to RCMP personnel across Canada about the Act and the RCMP's obligations in this regard. In the last year, several information training sessions were held with operational program areas, in addition to ongoing training provided to analysts and Liaison Officers deploying abroad.
The RCMP finalized a foundational course titled Avoiding Complicity in Mistreatment by Foreign Entities that will be accessible to all personnel from the online training platform AGORA. The course is expected to be operational by late Winter/Spring 2022, and all FIRAC members will be required to complete the training. Once available, the Avoiding Complicity in Mistreatment by Foreign Entities course will also be incorporated into the Federal Policing onboarding process, as well as become a prerequisite for the RCMP's National Security Criminal Investigations Course.
Law enforcement assessments
The LEAG is made up of representatives from different program areas of the RCMP that have subject matter expertise to collaborate on the development of country profiles and foreign entities in which the RCMP engages. It was created to facilitate the systematic and consistent review of foreign countries and their law enforcement entities, according to a number of criteria risk factors, in order to evaluate the risk for mistreatment and inform the level of risk posed within the context of information sharing with specific foreign entities. The risk profile guides operational personnel to determine whether conditions exist to present the information exchange to the FIRAC.
In 2021, through internal review, the RCMP recognized LEAG required dedicated personnel to complete analysis, coordination and administrative functions on an ongoing basis. To this end, responsibility for LEAG was moved to the RCMP's international program where information and resources can be better leveraged to coordinate RCMP foreign entity profiles. In the longer term, the RCMP will support whole of Government efforts to develop a set of unified country assessments, and will continue to contribute to the Public Safety-led Information Sharing Coordination Group (ISCG), which is responsible for supporting co-operation efforts and information-sharing practices amongst the security and intelligence community.
Activity report – January 1, 2021 to December 31, 2021
During the 2021 reporting period, the RCMP did not experience any significant operational impact as a result of the Directions. 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, 2021 and December 31, 2021, there were 55 cases presented to the FIRAC. 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.
RCMP areas of focus in 2022
Building on work to improve its internal procedures, the RCMP will examine how best to capture mitigation measures and monitor the outcome of exchanges. It is recognized that this is critical information to feed into the RCMP's ongoing assessment of risk. Further work is underway to identify which foreign entities should be prioritized for updates in the immediate and longer term.
To enhance the sharing of information between the FIRAC and LEAG, the RCMP is initiating quarterly meetings between these two groups to examine cross-cutting strategic level issues, address gaps in process and procedures, and prioritize joint work.
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. The RCMP will continue its efforts to raise awareness and deliver training to personnel across the country to ensure compliance with the Act.
- Date modified: