Backgrounder

Having its origin in the recommendations of Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, the Avoiding Complicity in Mistreatment by Foreign Entities Act (ACA) and the directions issued under its authority seek to avoid risks of Canadian complicity in torture or other forms of mistreatment. They do so by putting limits on Government of Canada information sharing with foreign entities such as states and non-governmental organizations.  

The directions prohibit Government of Canada departments from disclosing information to – or requesting information from – foreign entities if doing so would result in a substantial risk of mistreatment of any individual by any foreign entity. The directions also limit how departments may use information that is likely to have been obtained through mistreatment. Collectively, the ACA regime codifies Canadian values and commitments under the Canadian Charter of Rights and Freedoms, the Criminal Code, and international law in respect of protecting rights and prohibiting torture and other cruel and inhumane treatment. 

NSIRA is required to review, each calendar year, the implementation of all directions issued under the ACA. To date, such directions have been issued to the Deputy Heads of twelve departments and agencies. NSIRA’s annual review of ACA implementation ensures that the Government of Canada remains accountable for the information that it shares with foreign partners, and respects related Canadian values and commitments. While the ACA separately requires each department to report publicly and to their Minister on ACA implementation each year, NSIRA’s horizontal review mandate offers unique insights into the consistency of this implementation and corresponding decision-making government wide. 

NSIRA’s ACA review for 2022 focused on how departments assess mistreatment risk in the context of their information sharing with foreign entities. NSIRA pursued this focus because departmental compliance with the directions depends on whether departments are accurately identifying which information exchanges may engage a substantial risk of mistreatment. If departments under-assess the level of risk involved in an exchange or over-assess the impact of mitigations to reduce this risk, they will not trigger the ACA’s embedded mechanisms for accountability and transparency. These mechanisms include referring certain high-risk cases to Deputy Heads as well as onward reporting to NSIRA. 

NSIRA found major inconsistencies in how different Government of Canada departments assessed the mistreatment risk posed by different countries. Indeed, NSIRA even identified some instances where different departments concurrently assessed the same country as presenting low, medium, and high mistreatment risk. NSIRA also found that departments often attributed an unjustifiably high weight to proposed risk mitigations and, in some cases, incorrectly incorporated mitigations within their initial assessments of countries’ baseline risk.  

Such methodological deficiencies, as well as a lack of checks and balances in the risk assessment process, may lead departments to systematically under-assess the risks involved in contemplated information exchanges. The net effect is that, when it does not adhere to the substance of the directions under the ACA, the Government of Canada risks exchanging information contrary to the directions’ prohibitions. 

As part of a suite of recommendations designed to address this risk, NSIRA reaffirmed its 2019 recommendation for the Government of Canada to develop a unified set of risk assessments for ACA purposes. In every ACA review since 2019, NSIRA has maintained its position that human rights risks within a given country should be assessed consistently across government. Doing so would avoid the unnecessary drain on resources caused by each department independently assessing risk and eliminate opportunities for discrepant outcomes.