Review of Departmental Frameworks for Avoiding Complicity in Mistreatment by Foreign Entities

Backgrounder

In 2019-2020, NSIRA conducted its first interdepartmental review on the implementation of the 2017 Ministerial Directions on Avoiding Complicity in Mistreatment by Foreign Entities (2017 MD). The review set out to build NSIRA’s knowledge of the information sharing process adopted by the six departments that received the 2017 MD.

NSIRA conducted a case study for each department that had operationalized the 2017 MD. NSIRA noted significant differences in the six departments’ implementation and operationalization of information sharing processes. NSIRA found that CSE, CSIS and the RCMP had implemented the 2017 MD; DND/CAF was implementing the final elements of the 2017 MD; GAC had not yet fully implemented the 2017 MD; and, the CBSA had not yet operationalized the 2017 MD.

NSIRA examined and found differences in how high-risk decision-making is removed from operational personnel who may have a vested interest in the sharing. CSE and the RCMP had the most independent processes; GAC removed high-risk decision-making from front line personnel, while CSIS and DND/CAF decision makers had a direct operational interest in sharing information. NSIRA recommended that Departments 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.

NSIRA also found a lack of standardization in information sharing risk assessments for both foreign countries and foreign entities. This issue has been noted in other NSIRA information sharing reviews.

In 2019, parliament passed the Avoiding Complicity in Mistreatment by Foreign Entities Act, which in conjunction with the subsequent issued Orders in Council (OIC’s) codified many of the provisions of the 2017 MD and left the essential prohibitions and limits unchanged. Noteworthy, the six departments examined in this review are also the same departments for which there is an obligation to issue OICs pursuant to the Act. This review set out the foundation that has assisted and facilitated NSIRA’s subsequent mandated information sharing reviews.

Publishing this review aligns with NSIRA’s efforts at increasing transparency and being more accessible to Canadians through its work.

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