Annual Report to the Minister of National Defence: Application of the Act and the Directions to DND/CAF for Avoiding Complicity in Mistreatment by Foreign Entities 2022

(U) EXECUTIVE SUMMARY 

(U) In 2022, the Department of National Defence and Canadian Armed Forces (DND/CAF) undertook numerous activities to implement the Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act) and associated Governor-in-Council Directions. This included the implementation of the updated policy suite on information sharing with foreign entities, updating the Release and Disclosure Officer / Authority (RDO/A) training program, expansion of the Country Human Rights Profiles, development of tools to ease external review of the Act’s implementation, and strengthening interdepartmental collaboration and coordination. 

(U) There were no cases in 2022 where information sharing activities with a foreign entity could not proceed due to a substantial risk of mistreatment.

(U) As recommended by the National Security and Intelligence Review Agency (NSIRA), DND/CAF undertook a revision of its policy framework regarding the Act and its implementation starting in 2020. The revised framework provided comprehensive procedures under which sharing information with foreign entities must occur in order to mitigate the risk of mistreatment. New methodologies and risk assessment tools were also introduced to further support DND/CAF decision makers. The Ministerial Direction to the Department of National Defence and the Canadian Armed Forces: Avoiding Complicity in Mistreatment by Foreign Entities, signed in July 2022, the Chief of the Defence Staff and Deputy Minister Directive on Information Sharing Activities: Avoiding Complicity in Mistreatment by Foreign Entities, signed in February 2022, and the Chief of Defence Intelligence (CDI) Functional Directive on Information Sharing Activities with Foreign Entities signed in December 2021, provide very detailed protocols and procedures surrounding information sharing with foreign entities and enhance DND/CAF’s ability to avoid complicity in mistreatment.

(U) DND/CAF undertook further collaboration efforts in 2022, consistent with NSIRA’s recommended actions. Specifically, this was done by developing strong partnerships with other Government of Canada (GoC) departments and agencies under the Act and identifying where discrepancies in risk ratings occur. This included taking into account the full spectrum of advice and knowledge of the Information Sharing Coordination Group (ISCG) members to develop the updated policy suite and, in turn, sharing the policy suite, risk rating methodology, and risk rating list with ISCG members. Engagement with other departments and agencies under the Act also occurred through a series of discussions regarding country human rights assessments for the purposes of identifying the differences between each organisation’s risk ratings.

(U) The 2022 year also saw the expansion of the Human Rights Risk Assessment Program, the introduction of Case Studies to promote continuous improvement, enhanced record keeping practices, and substantial efforts towards the transfer of the RDO/A training program to an online platform to support individuals located across the country or deployed abroad.

(U) PREAMBLE 

(U) This report by DND/CAF is presented to the Minister of National Defence (MND) pursuant to the Governor-inCouncil’s Directions for Avoiding Complicity in Mistreatment by Foreign Entities (Deputy Minister of National Defence and the Chief of the Defence Staff) (the 2019 Directions), which were issued under the Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act). 

(U) In accordance with paragraph 18 of the Ministerial Direction to the Department of National Defence and the Canadian Armed Forces: Avoiding Complicity in Mistreatment by Foreign Entities (the 2022 MD), the classified version of this report includes: 

1.   Details on substantial risk cases where the 2019 Directions were engaged, including the number of cases;
2.   The restriction of any arrangements due to concerns related to mistreatment; and 
3.   Any changes to internal polices and procedures related to the 2019 Directions. 

(U) The unclassified version of the report includes the contents described above without containing information: 

1. In accordance with subsection 7(2) of the Act:
   1. the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or
   2. that which is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

(U) This report describes the activities that support DND/CAF compliance with the 2022 MD, the Act, the 2022 Chief of the Defence Staff (CDS) and Deputy Minister (DM) Directions, and the 2021 Chief of Defence Intelligence (CDI) Functional Directive (FD) from 01 January 2022 to 31 December 2022.

(U) INTRODUCTION

(U) This is the fifth such report released since the introduction of the MD in 2017. As in previous years, DND/CAF did not encounter any instance in 2022 where information sharing activities with a foreign entity could not proceed due to a substantial risk of mistreatment of an individual.

(U) Context

(U) Information sharing with foreign entities allows DND/CAF to maintain strong relationships with Allies and coalition partners and to further enhance Canada’s ability to address threats to national security, national defence, and contribute to the safety and security of Canadians and DND/CAF personnel in Canada and abroad.

(U) While information sharing is vital to DND/CAF’s ability to be a key contributor to international partnerships and coalitions, Canada recognises that information provided to, and received from, partner entities has the potential to contribute to mistreatment.

(U) Canada condemns in the strongest terms the use of torture or other cruel, inhuman, or degrading treatment or punishment, and while all agencies and departments are subject to international agreements, such as International Humanitarian Law, including the Law of Armed Conflict and the Hague Conventions, the Act further reinforces Canada’s commitment to preventing mistreatment.

(U) Through effective policies and oversight, DND/CAF aims to avoid disclosing or requesting information that would result in a substantial risk of mistreatment of an individual by a foreign entity and to avoid using information that is likely to have been obtained through mistreatment.

(U) As part of this, the ISCG, a Public Safety Canada-led inter-departmental forum, serves as an essential information sharing platform regarding the implementation of the Act between all departments and agencies who received Governor-in-Council Directions. The ISCG was convened on multiple occasions in 2022, continuing discussions on the implementation of the Act, associated directions, reporting requirements, methodologies, and responses to external review body recommendations. As an active participant, DND/CAF shared its newly approved CDI FD on Information Sharing with the ISCG, including templates under the Human Rights Risk Assessment Program (HRRAP).

(U) Current Defence Landscape

(U) The 2022 year brought unique challenges to DND/CAF. The conflict in Ukraine, as well as CAF operations around the world, required DND/CAF to remain agile in its information sharing. CAF members and DND employees relied on the tools and procedures set out in the 2022 MD, 2022 CDS/DM Directive, and 2021 CDI FD to facilitate timely decision-making supported by objective advice and consultations with other government departments and agencies.

(U) This posture is expected to continue into the 2023 year and information sharing in this environment will only grow in its importance as a result.  

(U) The current defence landscape necessitates effective governance over information sharing decisions to enable consistency and position DND/CAF as a leader in the protection of human rights within international coalitions. For these reasons, DND/CAF has established an extensive policy and governance framework to support information sharing and will continue to enhance and adapt it to realities in our changing world.

(U) POLICY AND GOVERNANCE FRAMEWORK

(U) In 2021, DND/CAF undertook efforts to update the Avoiding Complicity in Mistreatment by Foreign Entities Policy Framework. This updated policy framework, finalised in 2022, consists of an updated MD, CDS/DM Directive, and CDI FD, and articulates more clearly what constitutes information that would lead to mistreatment and provides additional tools to support decision-making.

(U) Updated Policy Framework

(U) The passing of Bill C-59, An Act Respecting National Security Matters, including the introduction of the Act, and the associated Governor-in-Council Directions (2019), necessitated minor updates to the existing policy framework.

(U) Further, as recommended by NSIRA, DND/CAF determined that the required updates to the framework provided an opportunity for an internal review of the policies and processes for sharing information with foreign entities. DND/CAF therefore underwent a policy framework review and subsequent update.

(U) The 2022 MD supplements the 2019 Governor-in-Council Directions to help facilitate the implementation of the Act and directs DND/CAF to maintain internal policies and procedures to assess risks associated with relationships with foreign entities, and cooperate with other departments and agencies subject to similar Direction.

(U) The 2022 CDS/DM Directive supersedes the DM/CDS Directive on the Disclosure, Request, and Use of Information: Avoiding Complicity in Mistreatment by Foreign Entities (2018). The revised Directive establishes direction, procedures, and oversight mechanisms for the disclosure, request, and use of information for the purposes of avoiding complicity in the mistreatment of an individual by a foreign entity.

(U) The 2021 CDI FD formally entered its implementation phase in January 2022. The 2021 CDI FD superseded the 2018 Interim CDI FD on Information Sharing with Certain Foreign States and their Entities and established detailed procedures, oversight, and internal review mechanisms for the sharing of intelligence and intelligence-derived information with foreign entities.

(U) The overall policy direction and framework for deciding whether the disclosure of information to a foreign entity would result in a substantial risk of mistreatment of an individual by a foreign entity did not substantially change compared to the interim CDI FD, the 2018 DM/CDS Directive, or the 2017 MD. Rather, the updated framework provides greater clarity and guidance for information sharing with foreign entities, including obligations under the Act. This includes formalising processes already in place and enhancing previous directives by providing decision makers with additional tools (e.g., templates for Country Human Rights Profiles, decision-making flowcharts) to determine whether the release or disclosure of information to a foreign entity would result in a substantial risk of mistreatment of an individual.

(U) Governance

(U) The updated policy framework formalises the oversight mechanisms of the Defence Information Sharing Advisory Committee (DISAC), chaired by the CDI for the purpose of providing advice to the DM and CDS on issues relating to the Act, and the Defence Information Sharing Working Group (DISWG), a working-level committee comprised of several L1s which has been operating since 2019.

(U) The Release and Disclosure Coordination Office (RDCO) within the Canadian Forces Intelligence Command (CFINTCOM) acts as the secretariat to the DISAC and DISWG while maintaining and providing advice and guidance on the implementation of the policy framework.

(U) The policy framework ensures that considerations under the Act are engrained in all DND/CAF information sharing decision-making processes. This includes, but is not limited to: cases where information is being directly shared with a foreign entity; cases where information is shared domestically, but for the purposes of sharing with a foreign third party; and cases where information may be released to the public, such as court proceedings, and which subsequently are available to foreign entities. Therefore, DND/CAF personnel at the working and management levels are directed to consider their responsibilities under the Act every time they contemplate releasing, disclosing, requesting, or using information from a third party.

(U) Cases where a Release and Disclosure Officer / Authority (RDO/A), i.e., individuals who are responsible for sharing information and who have been appropriately qualified to do so, believes there may be a substantial risk of mistreatment are escalated to the DISWG. In the event that the DISWG is unable to come to a consensus, or the risk of mistreatment is considered substantial even with proposed mitigations, the DISWG will escalate the case to the DISAC.

(U) The below graphic shows the process of elevating a case for release and disclosure under the updated policy framework.

(U) While the process for elevating a case to the DISAC remains the same under the updated policy framework, the 2022 CDI FD provides tools and guides, such as the Country Human Rights Profiles and partner entity assessments to assist RDOs in better understanding mistreatment considerations when releasing and disclosing information to foreign entities.

(U) When a DISWG is convened, the secretariat will gather a wide range of materials, such as risk ratings from other departments and agencies under the Act, to ensure decision makers have the most information possible from the widest range of reputable sources. This information is also provided to the DISAC, when convened.

(U) The DISAC did not convene in 2022 given that there was no decision required by the DM/CDS regarding a potential substantial risk of mistreatment of an individual borne from a proposed information sharing activity.

(U) TRAINING AND AWARENESS OF RESPONSIBILITIES UNDER THE ACT  

(U) The updated policy framework is supported by a rigorous RDO/A Training Program that all military and civilian personnel are required to complete in order to be qualified to occupy positions in which they are primarily responsible for information sharing with foreign entities.

(U) This robust course was again provided virtually, in part due to COVID-19 restrictions at the beginning of the year, but also due to the increased ability of RDCO to train more individuals from across Canada, and in some cases, around the world. The virtual format enabled the training team to reach a broader audience of DND/CAF personnel across the country who can study at their own pace.

(U) Throughout the last year, RDCO has begun conversion of the RDO/A training into a Defence Learning Network (DLN) supported course. The aim of the DLN version of the course is to enhance interactive content for the learners and provide greater flexibility to run people through the training during peak periods such as deployment season. Previously, the number of students able to take the training at one time was limited by the availability of the training officer, who can only have a few trainees at any given time. The improved content will include short scenarios and vignettes based on real examples and experiences from DND employees and CAF members. The scenarios will be inserted into the different modules to help future RDO/A understand how the policies and directives apply to potential situations they will face domestically or abroad. Finally, the DLN course will also serve as a repository for updated content and provide access to all latest references regarding the sharing of intelligence and intelligence-derived information in accordance with all applicable laws and policies.

(U) In 2022, CFINTCOM led the training and qualification of 98 DND employees and CAF members responsible for information sharing as part of RDO/A training, bringing the total number of DND employees and CAF members that have received accreditation since the implementation of the 2017 MD to 568. This number does not include individuals who received information sharing training as part of larger information sessions provided by RDCO throughout the year.

(U) In addition, various mandatory and role specific training and courses include sessions on CAF members’ roles and responsibilities with regards to human rights. These include detailed information on International Humanitarian Law, including the Law of Armed Conflict, the Geneva Conventions, the Hague Conventions, Core Human Rights Instruments, and other related international laws and agreements. CAF members are extensively trained in how to comply with these laws, identify breaches, and to support partners and Allies in upholding them. 

(U) IMPLEMENTATION OF NSIRA RECOMMENDATIONS

(U) NSIRA is mandated to review annually the implementation of all directions issued under the Act. To date, NSIRA has conducted three reviews under this mandate and has issued a number of recommendations to government departments and agencies for strengthening the implementation of the Act. DND/CAF recognises the importance of these reviews and is dedicated to the continued enhancement of activities to foster the protection of human rights around the world and avoid complicity in mistreatment by foreign entities. The following section identifies actions taken by DND/CAF to implement applicable recommendations from NSIRA.

(U) 2019 Recommendations and DND/CAF Actions

(U) Recommendation 1: Departments should conduct periodic internal reviews of their policies and processes for sharing information with foreign entities in order to identify gaps and areas in need of improvement.

(U) Action: In 2021, DND/CAF updated the suite of policies and directives in order to provide greater clarity and guidance on information sharing with foreign entities, including obligations under the Act. The updated policy framework was signed in 2022 and implementation began shortly thereafter.

(U) Recommendation 2: Departments should ensure that in cases where the risk of mistreatment approaches the threshold of “substantial”, decisions are made independently of operational personnel directly invested in the outcome.

(U) Action: DND/CAF has developed a robust process for assessing risk and mitigating it as necessary. This process takes into account the full spectrum of advice and knowledge from key representatives from across DND/CAF. The ISCG, DISWG, and DISAC committees all contribute to providing objective decisions based on comprehensive risk and mitigation measures.

(U) The DISWG secretariat has developed strong partnerships with other departments and agencies under the Act. This has enabled the DISWG to consult risk ratings from other departments and agencies when a case is referred for review to ensure that decisions are supported by a wide range of documentation.

(U) Recommendation 3: Departments should develop (a) a unified set of assessments of the human rights situations in foreign countries including a standardised ‘risk of mistreatment’ classification level for each country; and (b) to the extent that multiple departments deal with the same foreign entities in a given country, standardised assessments of the risk of mistreatment of sharing information with foreign entities.

(U) Action: DND/CAF consulted the intelligence community to develop its country human rights assessment methodology, captured within the 2021 CDI FD. This methodology has been shared with the ISCG to assist other departments and agencies in building and implementing their assessments. 

(U) In 2022, DND/CAF engaged with other departments and agencies under the Act through a series of discussions culminating in a Human Rights Summit hosted by CFINTCOM. This Summit regarded country human rights assessments for the purposes of identifying the differences between each organisation’s risk ratings and was largely considered a success by all participants.

(U) Recommendation 4: The definition of “substantial risk” should be codified in law or public direction.

(U) Action: The updated policy suite includes a definition of “substantial risk” that is currently being used by all other government departments and agencies subject to the Act.

(U) 2020 Recommendations and DND/CAF Actions

(U) Recommendation 1: All departments in receipt of directions under the Act have an official framework that ensure they can fully support their implementation of the directions.

(U) Action: In December 2021, DND/CAF finalized the CDI FD, with the CDS/DM Directive and MD signed in 2022. The new framework details the policy requirements and processes necessary to fulfill DND/CAF's obligations under the Act.

(U) Recommendation 2: Departments coordinate to identify best practices for all essential components of information sharing frameworks and that the ISCG is leveraged to ensure these practices are shared where possible across the community to support the implementation of the Act.

(U) Action: DND/CAF engages with the core intelligence and information sharing organisations within the GoC to identify best practices for the purposes of developing key components of DND/CAF's information sharing framework. This includes the Country Human Rights Profiles methodology, which consolidates and refines the profiles of other core intelligence organisations as well as includes perspectives unique to DND/CAF's mandate. DND/CAF continues to be an active participant of the interdepartmental working group.

(U) Recommendation 3: Departments establish consistent thresholds for triggers in their information sharing frameworks, including evaluations against the concerns of the Act, when a case is to be elevated in the decision process, and how this is documented.

(U) Action: In December 2021, DND/CAF finalized the new CDI FD. It includes a robust and consistent process for assessing risk, and mitigating it as necessary, which takes into account the full spectrum of advice and knowledge from key representatives from across DND/CAF. The updated policy suite includes definitions that are collectively used by other government departments and agencies subject to similar directions on avoiding complicity in mistreatment by foreign entities.

(U) Recommendation 4: Departments identify a means to establish a unified and standardised country and entity risk assessment tools to support a consistent approach by departments when interacting with Foreign Entities of concern under the Act.

(U) Action: DND/CAF consulted the intelligence community to develop its country human rights assessment methodology, captured within the December 2021 CDI FD. This methodology has been shared with the ISCG to assist other departments and agencies in building and implementing their assessments. 

(U) In 2022, DND/CAF consulted with GAC, CSIS, and CSE to identify discrepancies between risk ratings, understand the reasons behind the discrepancies, and to align and adjust profiles where required.

(U) ENHANCEMENT OF DND/CAF ACTIVITIES UNDER THE ACT

(U) The below items outline the enhancements made to DND/CAF activities under the Act in 2022. 

Implementation and Expansion of the Human Rights Risk Assessment Program (HRRAP)

(U)  The HRRAP continued with its initial implementation in 2022. The implementation of the updated policy as well as the tools and procedures identified below will continue into 2023/2024.

(U) Country Human Rights Profiles: The development of Country Human Rights Profiles, which measure the risk of torture and mistreatment based on a country’s human rights record, began in 2021. In 2022, RDCO expanded the profiles to include countries with which DND/CAF does not have an information sharing relationship, though may be deployed to for humanitarian or relief efforts such as natural disasters.

(U) Partner Entity Assessments: A requirement under the 2021 FD outlined the use of Partner Entity Assessments for partners in medium and high risk countries. These assessments are created when information sharing with a foreign entity (e.g. military unit, intelligence organization, etc.) is required and documents the risks associated with partnering and subsequently sharing information with a particular foreign entity.  

(U) Information Exchange Plans: These plans are designed at the outset of a named operation where it is expected that operational information will be routinely and frequently disclosed and/or requested to or from Coalition partners or other foreign entities.

(U) Human Rights Risk Rating List: The risk rating list contains the risk rating of each foreign state with which DND/CAF engages, or will potentially engage, in information sharing activities. The list assists RDAs/Os in providing guidance to L1/Operational Commanders during the planning and conduct of foreign information sharing activities.

(U) Introduction of Case Studies

(U)  In order to enhance DND/CAF’s implementation of the Act and support the HRRAP, CFINTCOM introduced yearly case studies which will delve into specific themes related to current events and priorities that arise through the year. These case studies will aim to support the HRRAP through proactive due diligence and review of current practices and procedures. Ultimately, the case studies will result in the provision guidance and recommendations to DND/CAF on how it can continuously improve and provide enhanced support to individuals who are required to share information.

(U) Record Keeping

(U) In order to support effective decision-making and consistency throughout DND/CAF, in 2022 CFINTCOM took steps to enhance record keeping practices through the introduction of new templates and efficiencies in reporting cases of information sharing.

(U) DISWG Case Summary Template: Introduction and implementation of a Case Summary template that tracks DISWG cases brought to DISWG for decision, including the Country Risk Rating, Partner Entity Assessment rating, advice from other government departments, and other items.

(U) Transactional Assessments: These assessments are completed by RDAs/Os in all cases where information is disclosed to, or requested from, a country that is identified as medium or high risk by the Country Human Rights Profile, except in cases where routine and frequent exchanges of information are undertaken during the course of a named operation, in which instance a separate tool (Information Exchange Plan) is used for outlining the type of information being shared.

(U) Release and Disclosure Log: In 2022, RDCO developed a ‘Release and Disclosure Log’, an online system where individuals responsible for requesting, releasing, and disclosing information can note these transactions. The platform will centralise information sharing records that can then be downloaded by RDCO for review and analysis. The RDO Log is expected to be released in 2023 and can be used in the future as a tool to provide NSIRA data and statistics on information sharing related to the Act.

(U) Strengthening Collaborative Relationships with Other Government Departments

(U) As recommended by NSIRA, DND/CAF aimed to strengthen its collaborative relations with other departments and agencies under the Governor-in-Council directions in 2022 to ensure that country risk ratings are aligned as much as practicable.

(U) HRRAP Validation Pilot Program: As part of the development of the profiles, DND/CAF launched a pilot program that aimed to increase collaboration between the core intelligence departments and agencies. Spanning from March to August 2022, DND/CAF shared country profiles with GAC as a pilot department to further validate the Country Human Rights Profiles. However, the pilot results noted that the proposed process for validation would not be easily replicated on a larger scale, specifically with the sharing and validation of country profiles by all departments and agencies under the Act. 

(U) Human Rights Summit: In order to facilitate a more efficient and wide-reaching method of validation, DND/CAF hosted a Human Rights Summit in late  2022 in collaboration with CSE, CSIS, and GAC. The Summit consisted of a series of discussions regarding country human rights assessments for the purposes of identifying the differences between each organisation’s risk ratings. As a result, DND/CAF has been able to update its profiles to include information shared during that week, which has further aligned the department with the other attendees. It has been requested that the Summit occur on an annual basis and be replicated for the ISCG.

(U) In addition to the validation pilot and Human Rights Summit, County Human Rights Profiles were shared throughout the year with GoC departments and agencies that have a responsibility under the Act. Through the pilot program and Summit, DND/CAF was able to build key working relationships and partnerships to support the sharing of profiles between departments and agencies, which supported key decision-making and implementation activities across the GoC. 

(U) NEXT STEPS

(U) DND/CAF will continue to implement the updated policy framework, develop tools to enhance objectivity in decision-making, and increase awareness of responsibilities under the Act in the coming years. Activities that have been identified going forward include:

• (U) The creation of an RDO Field Handbook,  which will be accessible to all DND/CAF members, and will consolidate all policies, directives, procedures, tools and processes relating to information sharing in order to aid individuals in the evaluation of key obligations, policy considerations, and application of information sharing related to their responsibilities.
• (U) Amendments to the National Defence Security Orders and Directives (NDSOD) which articulate the security obligations and responsibilities of all DND employees and CAF members, to include specific references concerning the obligation to avoid complicity in mistreatment by foreign entities.
• (U) The development of Standard Operation Procedures in order to support consistency in the review of Country Human Rights Profiles, management of the DISWG and DISAC, and other activities under the Act.
• (U) The development and implementation of a communications plan, and subsequent products, to increase awareness of information sharing responsibilities with foreign entities, clarify policy and procedures, and support informed and objective decision-making. 
• (U) Expanded use of Case Studies to examine DND/CAF implementation of the Act and to proactively identify areas of improvement and opportunities for enhancement.
• (U) The launch of the Release and Disclosure Training Course on the Defence Learning Network to enable the training team to reach a broader audience of DND/CAF personnel across the country who can study at their own pace.

(U) CONCLUSION

(U) DND/CAF did not encounter instances in 2022 where information sharing activities with a foreign entity could not proceed due to a substantial risk of mistreatment of an individual. DND/CAF continued to ensure that all information sharing activities complied with the Act, the 2019 Directions, the 2022 MD, the 2022 CDS/DM Directive, and the 2021 CDI FD. 

(U) In 2022, DND/CAF undertook efforts to ensure that applicable NSIRA recommendations were implemented. This included updating the policy framework, using a wide-range of documentation and subject matter expert knowledge to facilitate objective decision-making, and strengthening the relationship with the ISCG.

(U) Further, DND/CAF spearheaded efforts such as the Human Rights Summit, enhanced record keeping, and the transition of training materials to the DLN, in order to facilitate sharing with other government departments and agencies, support reviews of information sharing under the Act, and increase awareness of responsibilities under the Act throughout the organisation.

(U) In 2023, DND/CAF will continue to build on this momentum in order to support additional training, collaboration, and implementation of the updated framework and to further DND/CAF’s position as a leader in supporting and protecting human rights around the world.