2020 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

Table of contents

• Introduction
  • Background
• Policy and Procedures on Avoiding Complicity in Mistreatment
  • DND/CAF Governance and Accountability Framework
  • Development of Updated Policies and Directives
  • Modified Release and Disclosure Officer/Authority (RDO/A) Training
• Monitoring and Restrictions on Information Sharing
  • Overview
  • Common Practices and Considerations
  • Monitoring and Reporting
  • Special Working Groups and Committees
  • Other Intelligence and/or Information Sharing Partnerships
• Conclusion

Introduction (U)

(U) This report by the Department of National Defence (DND) and the Canadian Armed Forces (CAF) is presented to the Minister of National Defence (MND) pursuant to the Governor in Council’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 clause 23 of the Ministerial Direction to the Department of National Defence and the Canadian Armed Forces: Avoiding Complicity in Mistreatment by Foreign Entities (the 2017 MD), the classified version of this report includes:

• Details of any cases where it was believed that the release or disclosure of information to foreign entities could have resulted in a substantial risk of mistreatment of an individual;
• The restriction of any information-sharing arrangements due to concerns related to mistreatment; and
• Any changes to internal policies and procedures related to the 2017 MD, the Act or the 2019 Directions.

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

• In accordance with subsection 7(2) of the Act:
  • the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or
  • that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.
• In accordance with clause 25 of the 2017 MD:
  • that compromises the national interest, the effectiveness of operations, or the safety or security of an individual.

(U) This report describes the activities that support DND/CAF compliance with the 2017 MD, the Act and the 2019 Directions from 01 January 2020 to 31 December 2020. 

Background (U)

(U) DND/CAF shares defence-related information with other government departments, agencies, international partners and allies as a means to contribute to the defence and security of Canada, and satisfy international defence-related obligations. DND/CAF ensures that information sharing activities with other government departments, allies and other foreign partners are done in accordance with applicable Canadian and international law, including the Act and the 2019 Directions. The 2017 MD strictly prohibits the sharing of information (request from and/or disclosure to a foreign entity), under any circumstance, if there is a substantial risk of mistreatment to an individual that cannot be mitigated. Also, the 2017 MD prescribes, for certain cases, specific referral mechanisms to the Chief of the Defence Staff (CDS) and the Deputy Minister (DM) to determine if information can be lawfully requested, disclosed or used, and requires annual reporting obligations to the MND, National Security and Intelligence Committee of Parliamentarians (NSICOP), and the public. The Act and the 2019 Directions (which came into force in July and September 2019, respectively), supplemented the direction issued to DND/CAF in the 2017 MD. Notably, the 2019 Directions added reporting requirements to the National Security and Intelligence Review Agency (NSIRA). The Actreflects broader international obligations placed on Canada by customary international law, the law of armed conflict, and from international agreements to which Canada is a party including: the Geneva Conventions and its Additional Protocols, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (CAT). These legal obligations permeate through DND/CAF’s internal governance and oversight mechanisms.

(U) DND/CAF did not encounter any instances in 2020 where information sharing activities with a foreign entity could not proceed due to a substantial risk of mistreatment of an individual. The COVID-19 pandemic resulted in a reduction of some military operations, including information sharing activities that are a part of those operations as well as in-office presence.  DND/CAF was able to meet the requirements under the Act, the 2019 Directions and 2017 MD, and followed a robust framework of internal directives and procedures. Additionally, DND/CAF drafted a suite of updated policies and directives designed to further refine internal procedures and guidance to DND/CAF personnel. DND/CAF aims to implement these new policies and directives in 2021, including an updated Ministerial Directive; an updated CDS/DM Directive on Information Sharing Activities; and a new Chief of Defence Intelligence (CDI) Functional Directive (FD) on Information Sharing Activities with Foreign Entities (replacing the currently in force CDI Interim Functional Directive on Information Sharing Activities with Certain Foreign States and their Entities). The pandemic also necessitated the adoption of a virtual format for the training and qualification of Release and Disclosure Authorities and Officers – a key component of DND/CAF’s measures to ensure compliance and adherence to the Act, the 2019 Directions and all associated policies.

Policies and Procedures on Avoiding Complicity in Mistreatment (U)

DND/CAF Governance and Accountability Framework (U)

(U) DND/CAF conducts its operations and activities within a robust accountability framework, subject to: applicable Canadian and international laws, Cabinet direction, Ministerial authorization and oversight, the authority of the DM and the CDS, Assistant Deputy Ministers, and operational commanders. Internal oversight mechanisms and bodies, including the military chain of command, oversight boards and compliance processes, as well as policies, directives and operational orders that have been developed through extensive consultation with policy, legal and operational stakeholders help ensure compliance with the law. This accountability framework has been supplemented with the creation of two external review bodies in 2017 and 2019, respectively – the NSICOP and the NSIRA.

(U) CAF members and DND employees are required to fully respect applicable legal obligations, as well as DND/CAF orders, directives, policies and procedures concerning the sharing and the protection of information. The imperative to operate in a lawful and policy-compliant manner is both a personal and an institutional obligation.

Development of Updated Policies and Directives (U)

(U) The coming into force of the Act and the issuance of the 2019 Directions led DND/CAF to undertake a comprehensive review of the 2017 MD and all associated orders and directives. The impacts of the COVID-19 pandemic delayed the development and implementation of new policies and directives in 2020, but DND/CAF aims to implement them in 2021, including:

• an updated Ministerial Directive referencing the Act and the 2019 Directions;
• An updated DM/CDS Directive on Information Sharing Activities, which will establish direction, procedures and oversight mechanisms for information sharing activities to avoid complicity in mistreatment by foreign entities, including when decisions need to be referred to the DM and CDS;
• a new Chief of Defence Intelligence Functional Directive (CDI FD) on Information Sharing Activities with Foreign Entities, which will supersede the previous interim CDI FD. The updated CDI FD will establish direction, procedures, and oversight and review mechanisms for sharing intelligence and/or intelligence-derived information with foreign entities, and will provide practical guidance to DND/CAF personnel, including Release and Disclosure Officers.
• standardized Country Human Rights Assessment Templates to be used in the assessment of foreign states’ human rights records, which will assist DND/CAF in determining the level of risk of mistreatment when sharing with foreign entities;
• standardized Foreign Entity Assessment Templates to be used for the assessment of prospective foreign partners with whom information sharing is required, which will further assist DND/CAF in determining the level of risk when sharing with these partners. Foreign Entity Assessments will consider factors such as:  the necessity of information sharing with the particular entity;  the partner’s relationship history (with Canada and/or Allies); the partner’s ability to adequately secure sensitive and classified information; the entity’s human rights record; and any mitigation measures that will be put in place to minimize the risk that sharing information with this partner will result in mistreatment of an individual;
• updating the terms of reference for the Defence Information Sharing Assessment Committee (DISAC), which advises the DM and CDS on the sharing of defence information with foreign entities; and
• introducing terms of reference for the Defence Information Sharing Working Group (DISWG), which is a working-level body that advises Release and Disclosure Authorities and Officers, and operational commanders on the sharing of defence information.

(U) Despite the delay in implementing the new suite of policies and directives, throughout 2020 DND/CAF remained subject to a robust framework that included:

• the Act and the 2019 Directions;
• the 2017 MD;
• the DM/CDS Directive on the Disclosure, Request and Use of Information: Avoiding Complicity in Mistreatment by Foreign Entities;
• the CDI Interim Functional Directive on Information Sharing with Certain Foreign States and their Entities; and
• regular deliberations at the DISWG of information sharing issues.

Modified Release and Disclosure Officer/Authority (RDO/A) Training (U)

(U) The above policies and directives are complemented by a rigorous RDO/A Training Program that all military and civilian personnel are required to complete in order to be qualified to release and disclose defence-related information with foreign entities. In 2020, due to the restrictions in place related to the COVID-19 pandemic, the resumption of the standard RDO/A Training (two days in a secure classroom with up to fifteen students and ten guest speakers) was not possible. As a result, Canadian Forces Intelligence Command (CFINTCOM) developed a virtual pilot version in acknowledgement that RDO/A Training is a Force Generation requirement for employment as an RDO under the Chief of Defence Intelligence’s delegated authority. Students were required to review a self-study package, complete an examination, and were then debriefed by an instructor. 

(U) Throughout conversion of the course material to a virtual format, special attention was made to the perspective of deployed practitioners whose duties require practical application of the course material. A self-study package was developed that outlines the obligations and best practices with respect to information sharing with other government departments and agencies as well as foreign partners. In particular, the training emphasizes the requirements and procedures to lawfully share information and avoid complicity in mistreatment by foreign entities. The virtual format allowed the training to reach a broader audience of DND/CAF personnel across the country who could study at their own pace. Moreover, the training was made more robust with an exam that tests students on the key concepts of release and disclosure, including with multiple short-answers and scenario-based questions to evaluate their critical thinking skills. Lastly, the debrief session allowed for a one on one interaction between the student and the instructor to ensure that the material was well understood, and that the students could conduct their duties as RDOs. The virtual training approach was put in place in June and continued throughout the remainder of the year. While there was less demand for RDO/A training last year given the reduction in operations and pandemic-related restrictions, CFINTCOM was still able to train 53 students who are now qualified to act as, or assist, a RDO.

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Monitoring and Restrictions on Information Sharing (U)

Overview (U)

(U) During 2020, DND/CAF identified no instances of information sharing with a foreign entity (including disclosures of information, requests for information, or use of information) where there was a substantial risk of mistreatment to an individual. This outcome resulted from a combination of factors, including the application of standard practices and risk mitigation measures. Moreover, no new restrictions on existing DND/CAF information sharing arrangements were implemented in 2020 as a result of concerns over the risk of mistreatment by a foreign entity.

Common Practices and Considerations (U)

(U) By virtue of the global scope of its activities, the extent to which DND/CAF shares information with partners and allies varies depending on the nature of its various engagements. DND/CAF maintains its greatest level of privileged information and intelligence sharing with the US under the auspices of the North American Aerospace Defence Command (NORAD) and the Five-Eyes (FVEY – Australia, Canada, New Zealand, the United Kingdom, and the United States of America) – which are both long-standing and highly integrated relationships characterized by shared values and enduring mutual trust. Beyond NORAD and the FVEY community, DND/CAF shares extensively with NATO member state militaries, various military coalitions, and select foreign partner forces.

(U) As a result of the varying nature of its mission sets and multilateral partnerships, DND/CAF has to continuously evaluate with whom it shares information in an effort to balance the operational need-to-share underpinning mission success, against the need-to-know (intelligence requirements) and right-to-know (appropriate clearances and systems). DND/CAF must also ensure that its information sharing activities takes into account its legal obligations under applicable Canadian and international law, including the Act and the 2019 Directions. Therefore, DND/CAF will continue to monitor closely for any change of circumstances which may require restricting information sharing.

Monitoring and Reporting (U)

(U) Throughout 2020, DND/CAF maintained a variety of monitoring and reporting mechanisms to ensure that its information sharing practices complied with the provisions of the Act, the 2019 Directions, the 2017 MD, the DM/CDS Directive, and the CDI Interim Functional Directive to avoid complicity in mistreatment by foreign entities. CFINTCOM raised awareness across the defence community on DND/CAF’s obligations related to avoiding complicity in mistreatment by providing training, responding to queries from personnel posted outside Canada, and through multiple engagements with other branches and commands during meetings of the Defence Information Sharing Working Group (DISWG) and regular updates to the DM and CDS chaired Defence Intelligence Oversight Board. DND/CAF also instituted tangible measures to ensure that relevant decision makers and advisors were rapidly informed of emerging concerns over the potential incidence of mistreatment in CAF areas of operations.

Special Working Groups and Committees (U)

(U) As noted in previous years’ reports, DND/CAF created a governance framework to allow rapid and efficient decision-making and broadly engage at various levels at headquarters, including senior operational commanders and, as required, to the CDS, the DM and the MND.  This framework included the creation of two bodies for consultation and decision-making: the DISWG and the Defence Information Sharing Assessment Committee (DISAC).  DND/CAF is also an active member of the Information Sharing Coordination Group (ISCG), a forum supporting interdepartmental collaboration in the implementation of the Avoiding Complicity in Mistreatment by Foreign Entities Act.

(U) Defence Information Sharing Working Group (DISWG). The DISWG provides a platform for open discussion among representatives from relevant DND/CAF branches and commands on existing or proposed information sharing arrangements or transactions. The DISWG topics of discussion may include, but are not limited to, reporting pertaining to alleged mistreatment in an area where CAF operates, lessons learned, challenges and potential operational impacts of specific information sharing arrangements or transactions.

(U) The DISWG membership is comprised of representatives from the Strategic Joint Staff (SJS), the Assistant Deputy Minister for Policy (ADM (Pol)), the Canadian Joint Operations Command (CJOC), the Canadian Special Operations Forces Command (CANSOFCOM), the Office of the Judge Advocate General (OJAG), the Office of the Legal Advisor to DND/CAF (DND/CF LA), and CFINTCOM.  Records of Discussion are documented by the DISWG Secretariat, distributed to the DISWG membership, and submitted to the CDS and the DM, through the CDI.

(U) The DISWG is a key part of the DND/CAF governance framework for information sharing and provides advice to operational commanders where there are concerns that information sharing activities with foreign partners pose a risk of mistreatment. While CJOC and CANSOFCOM commanders ultimately decide whether to share information with foreign partners, the DISWG provides advice on whether there could be a substantial risk of mistreatment and/or on how any such risk can be mitigated to ensure that information sharing is done in accordance with the law and policy. Based on the advice provided in the DISWG Record of Discussion, the operational commander will determine whether a proposed information sharing request or arrangement can be allowed under the Act and associated directions. If doubt continues to exist with respect to whether or not a substantial risk of mistreatment can be mitigated, the Defence Information Sharing Assessment Committee (DISAC) (see below) will be convened.

(U) In order to provide an independent view of the operational commander’s decision with respect to information sharing that could pose a substantial risk of mistreatment, representatives from ADM(Pol) and the SJS provide a high level challenge function throughout the assessment process by participating in the DISWG, as well as by raising concerns directly with the operational commander and/or the DM and CDS should ADM(Pol) or the Director of Staff of the SJS have reservations with the commander’s decision. This process has been established to ensure that decisions made by an operational commander on the most sensitive requests for information sharing are not based solely on operational imperatives or unduly influenced by operational interests.

(U) In 2020, the DISWG met on seven occasions. Generally, the DISWG convenes at least monthly, but due to restrictions imposed in response to the COVID-19 pandemic, and the subsequent scaling  back of operations, fewer meetings were held in 2020, with three being held secretarially.  Nevertheless, the DISWG deliberated a number of challenging issues within this period. The CAF is mandated by the Government of Canada to operate in areas of the world where human rights are not respected and mistreatment is prevalent. The CAF needs to be able to operate in these environments with non-traditional partner forces while still respecting the Act and all associated directions and policies. As such, foreign partner vetting and ongoing monitoring is a critical component of operations.

(U) Defence Information Sharing Assessment Committee (DISAC).  In the absence of a situation where a potential substantial risk of mistreatment of an individual borne from a proposed information sharing activity (which could not be effectively mitigated at the Task Force or Operational Command levels), the DISAC was not convened in 2020.

(U) Information Sharing Coordination Group (ISCG). The ISCG is the primary interdepartmental forum supporting collaboration between departments and agencies as they implement the Act and their respective Order-in-Council Directions. Similar to 2019, DND/CAF actively participated in multiple meetings of the ISCG in 2020, along with representation from the twelve departments and agencies that either received, or were considered for receipt of, Order-in-Council Directions, in respect of their information sharing activities with foreign entities. During 2020, the ISCG advanced the development of its own terms of reference; discussed implementation of the 2019 Act and associated directions, including planning to collaborate on country-level human rights assessments, and developing best practices and common definitions for ‘foreign entities’, ‘mistreatment’ and ‘substantial risk’; and discussed reporting requirements.

Other Intelligence and/or Information Sharing Partnerships (U)

(U) DND/CAF has a number of bilateral and multilateral information and intelligence sharing arrangements with various foreign partners. The Commander of CFINTCOM, in his/her role as CDI, issues strategic guidance for Defence Intelligence Partnerships to DND/CAF stakeholders. Beyond the sharing of defence intelligence, the sharing of information more generally also takes place with a wide variety of other nations in order to support authorized DND/CAF activities, such as: port visits, capacity building operations, disaster response operations, non-combatant evacuation operations, or defence diplomatic missions (Canadian Defence Attachés).

Conclusion (U)

(U) DND/CAF did not encounter instances in 2020 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 2017 MD and all direction from the DM, the CDS, and the CDI. Despite the challenges posed by the pandemic, training and qualification of Release and Disclosure Officers and Authorities continued in a revised format and the DISWG continued to meet periodically to discuss information sharing issues. In response to the Act coming into force and the issuance of the 2019 Directions, DND/CAF undertook a comprehensive review of its policy suite on avoiding complicity in mistreatment to clarify the requirements under the Act and associated directives and policies to all areas of DND/CAF, and its deployed elements in particular.  Additional policy guidance, including an updated Ministerial Directive, DM/CDS Directive, and CDI FD will be implemented in 2021.

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