2017-18 Annual Report on the Ministerial Directive to DND/CAF: Avoiding Complicity in Mistreatment by Foreign Entities

Table of contents

  1. Introduction
  2. Internal Policies and Procedures to Avoid Complicity in Mistreatment
  3. Conclusion

1. Introduction

In November of 2017, the Minister issued direction to the Department of National Defence and the Canadian Armed Forces on Avoiding Complicity in Mistreatment by Foreign Entities with the objective of clearly setting out Canadian values, principles against torture and mistreatment, and commitment to the rule of law. The Ministerial Direction (MD) requires that a classified annual report be provided to the Minister regarding its application, and that an unclassified version be released to the public. This 2017-2018 Annual Report on the MD is the unclassified version of the first such report.

The MD prohibits the disclosure and request of information when there is a substantial riskFootnote 1 that doing so would result in mistreatment of an individual by a foreign entity, and that risk cannot be mitigated. It also prohibits certain uses of information that was likely obtained through mistreatment. The MD applies to all instances of information-sharing with foreign entities. It requires ongoing assessment of risks associated with Canada’s exchange of information with foreign entities. If officials seeking to disclose or request information identify a substantial risk of mistreatment and are unable to determine if the risk can be mitigated, the matter is to be referred for decision to the Chief of the Defence Staff (CDS) and the Deputy Minister (DM). In any case when approval to disclose or request information is granted because the CDS and the DM determined that the substantial risk can be mitigated, the basis for such determination must be clearly documented. The Minister and the National Security and Intelligence Committee of Parliamentarians (NSICOP), subject to its legal mandate, will be informed, as soon as is feasible, of cases that required a decision by the CDS and the DM with the relevant contextual information.

Functionally identical MDs were also issued to other core security and intelligence departments and agencies within the Government of Canada, specifically the Communications Security Establishment (CSE), Canadian Security Intelligence Service (CSIS), Canada Border Services Agency (CBSA), the Royal Canadian Mounted Police (RCMP) and Global Affairs Canada (GAC), by their respective Ministers.

Information that was likely obtained through mistreatment may not be used:

In accordance with the MD, the classified report to the Minister will include:

In addition to the classified annual report to the Minister, the MD commits to further transparency and accountability in decision-making by requiring that the NSICOP is provided with as much information from the annual report as the Committee is authorized to receive by law. Furthermore, the MD stipulates that an unclassified version of the annual report is provided to the public.

Recognizing the broad mandate of DND/CAF as it relates to information sharing with foreign entities, the main focus of this annual report will be on information sharing by the defence intelligence enterprise. The report outlines the existing accountability measures relevant to DND/CAF’s mandated activities. It also highlights the new internal policies and procedures implemented to operationalize the MD. No restrictions on information sharing arrangements due to concerns related to mistreatment were put in place during this reporting period, and DND/CAF did not have any cases where the CDS/DM decision-making process prescribed by the MD was applied for this reporting period.

2. Internal Policies and Procedures to Avoid Complicity in Mistreatment

Accountability Framework: Context and History

Information sharing with foreign entities and domestic partners is essential to DND/CAF’s ability to maintain strong relationships and address threats to national security and national defence. DND/CAF has traditionally conducted its activities within a robust accountability framework, subject to the rule of law, Cabinet direction, Ministerial oversight, the authority of the DM, CDS, Level 1s (ADM-level) and operational commanders, as well as internal oversight mechanisms and bodies. CAF members and DND employees, including those responsible for sharing information with foreign entities, are required to fully respect Canadian law, applicable international law, as well as DND/CAF orders, directives, policies and procedures concerning the sharing and protection of information.

DND/CAF has developed measures to assess the impact of disclosing to, and requesting information from, certain partners and DND/CAF has applied caveats to control further dissemination. Such information sharing activities were subjected to further safeguards in 2011 following the establishment of the Framework for Addressing Risks in Sharing Information with Foreign Entities, which was developed to institute a consistent decision-making process in cases where sharing information with foreign entities may give rise to a substantial risk of mistreatment.

National and International Governance Bodies

DND/CAF information sharing with its traditional international partners in the United States, United Kingdom, Australia and New Zealand – comprising with Canada the Five Eyes (FVEY) partnership – is characterized by a strong tradition of respect for each other’s caveats and the principle of originator control. This respect is solidified through various agreements and a shared understanding of the restrictions that govern how each partner’s information may be used. In addition, DND/CAF’s information sharing with NATO is governed by long-standing agreements, policies and protocols. These partner countries are parties to international treaties on human rights with mechanisms under their respective domestic laws to address human rights violations.

DND/CAF has bilateral defence intelligence arrangements with non-FVEY partners as well. These partnerships are each codified with memoranda of understanding (MOU) or information sharing arrangements which articulate a common understanding of the restrictions that govern how each partner’s information may be used. Defence intelligence relationships are also guided by other arrangements, such as technical MOUs, work plans, and/or exchange of letters, which set forth standards, norms, and expectations. 

Back to top

Implementing Policies

To ensure successful implementation of the MD, DND/CAF introduced two directives in early 2018 to strengthen existing accountability and oversight mechanisms with respect to information disclosure, request and use: the DM/CDS Directive on the Disclosure, Request and Use of Information: Avoiding Complicity in Mistreatment by Foreign Entities (“the DM/CDS Directive”) and the Chief of Defence Intelligence Interim Functional Directive: Information Sharing with Certain Foreign States and Their Entities (the CDI Interim Functional Directive). 

The DM/CDS Directive, issued in April 2018, establishes direction, institutes procedures, directs the accountability, and establishes oversight mechanisms for the disclosure, request and use of information. It contains a Decision-Making Process Flowchart on Avoiding Complicity in Mistreatment by Foreign Entities, which provides a visual representation of the decision-making process that DND officials and CAF members must follow in three specific sets of circumstances pursuant to the MD (either to disclose information to, request information from, or use information obtained from, a foreign entity). Under the provisions of the DM/CDS Directive, each disclosure of information to, or request for information from, a foreign entity must always be assessed on a case-by-case basis to determine if there is a substantial risk of mistreatment to an individual.  If a substantial risk of mistreatment exists, or if there is uncertainty, a risk assessment is undertaken to determine if that risk can be mitigated through caveats, assurances or other measures.  If the risk cannot be mitigated, the information will not be disclosed to, or requested from, the foreign entity.

In the case of information that was likely obtained through the mistreatment of an individual by a foreign entity, it may not be used in any way that creates a substantial risk of further mistreatment or as evidence in a judicial, administrative, or other proceeding. In exceptional circumstances, and based on the results of a risk assessment required under the DM/CDS Directive, the CDS and the DM could authorize the use of such information to deprive an individual of their rights or freedoms if it is necessary to prevent loss of life or significant personal injury (like the prevention of a terrorist act).

Accountable to, and acting under the direction of the CDS and the DM, the Chief of Defence Intelligence (CDI) exercises functional authority for Defence Intelligence and is responsible for issuing direction and guidance on how information may be shared with foreign entities. In order to identify those foreign entities that are at a low risk of engaging in the mistreatment of an individual, an interim assessment was conducted in April 2018. This assessment is provided in the CDI Interim Functional Directive. The assessment is based on a number of factors, which include, but are not limited to, a compilation of reporting conducted by Other Government Departments (OGDs), allied and Non-Governmental Organizations, the foreign state’s human rights legislation and treaties, and DND/CAF’s long-standing relationship with the entities of the foreign state. Work is already underway to complete a second, more comprehensive iteration of the CDI functional directive on information sharing with foreign entities.

Other Implementation Measures

a) Defence Information Sharing Assessment Committee (DISAC)

The DM/CDS Directive establishes a Defence Information Sharing Assessment Committee (DISAC) to serve as the advisory body for the CDS and DM in their decision-making responsibilities under the DM/CDS Directive. The DISAC would assess all cases in which the L1 or delegated commander determines that there is uncertainty as to whether the risk of mistreatment can be mitigated. The DISAC would also assess cases involving the use of information that was likely obtained through mistreatment, to deprive someone of their rights and freedoms and where exceptional circumstances are present, in accordance with the MD.

The DISAC is led by Canadian Forces Intelligence Command (CFINTCOM) and comprised of members from: Assistant Deputy Minister (Policy) (ADM (Pol)), Strategic Joint Staff (SJS), the Judge Advocate General (JAG), the DND/CF Legal Advisor (DND/CFLA), operational commands and other consultative stakeholders as required. CFINTCOM’s Release and Disclosure Coordination Office (RDCO) serves as the DISAC Secretariat.

b) Directorate of Intelligence Review, Compliance and Disclosure (DIRCD)  

To augment the existing accountability and oversight mechanisms and establish a formal program of compliance within the defence intelligence enterprise, CFINTCOM created a new Directorate of Intelligence Review, Compliance and Disclosure (DIRCD). While the Directorate has recently been focused on responding to the NSICOP review of DND/CAF’s intelligence activities, its newly-established Compliance Team is also responsible to CDI for the continual assessment of the defence intelligence enterprise to determine if it is in compliance with applicable laws, orders, directives and policies.

c) Release and Disclosure Officer/Authority Training Program

In addition to being the DISAC Secretariat, the RDCO provides training, guidance, and technical advice to Release and Disclosure Authorities (RDAs) and Release and Disclosure Officers (RDOs). RDAs are designated, trained, and certified persons who are accountable to CDI, through the operational chain of command, for nominating and overseeing the activities of RDOs and providing direction and guidance on the sharing of defence intelligence within the context of their activities and operations. RDOs are designated, trained, and certified persons who are accountable to CDI, through the operational chain of command, for approving or declining requests to share information with external entities, in accordance with applicable laws and policies.

The RDCO has enhanced, expanded and modernized the existing RDO/RDA training program, which continues to be mandatory for all personnel responsible for sharing defence intelligence with foreign entities. As of November 2017, the RDO/RDA training includes new modules on the MD implications on information sharing with external entities, applicable policies, procedures and information sharing scenarios based on actual events. As of January 2019, the RDO/RDA training has expanded from a one-day to a two-day course to reflect the updated curriculum. Over 100 CAF members and DND employees from CFINTCOM, CJOC, CANSOFCOM and other L1 organizations have been certified as RDOs since the program was updated in November 2017.

Ongoing implementation efforts

a) Defence Intelligence Oversight Board (DIOB)

Chaired by the DM and the CDS and reporting to the Minister, the DIOB is the most senior DND/CAF integrated board providing guidance, policy direction and decisions related to the management of defence intelligence including information sharing arrangements. The DIOB held its first meeting in December 2018.

b) Comprehensive CDI Functional Direction on Information Sharing with Foreign Entities

Work has already begun on a second, more comprehensive iteration of the CDI Functional Direction on Information Sharing with Foreign Entities, which will expand upon the CDI Interim Functional Directive.

3. Conclusion

No restrictions on information sharing arrangements due to concerns related to mistreatment were put in place during the period November 2017 to December 2018, and DND/CAF did not have any cases where the CDS/DM decision-making process prescribed by the MD was triggered. Since the MD was issued to DND/CAF, a number of measures were implemented to improve accountability and compliance. These included introducing two directives to strengthen existing accountability and oversight mechanisms with respect to information sharing, establishing the DIOB and DISAC, modernizing the RDO/RDA training program to better support DND employees and CAF members responsible for sharing information with foreign entities, and creating the new DIRCD directorate within CFINTCOM. Work is already underway to complete a comprehensive CDI functional directive to standardize information sharing processes.

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: