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 2023

(U) Executive Summary

(U) Preamble

(U//OUO) This report by the Department of National Defence and the Canadian Armed Forces (DND/CAF) is presented to the Minister of National Defence pursuant to the Governor in Council’s Directions for Avoiding Complicity in Mistreatment by Foreign Entities (the 2019 Directions), which were issued as follow-on direction to the (2019) Avoiding Complicity in Mistreatment by Foreign Entities Act.

(U//OUO) The information contained in this report reflects the period from 01 January 2023 to 31 December 2023. Its contents describe how DND/CAF’s authorized defence activities were conducted within the constraints of the statutory obligations of the Act (2019) and the follow-on directions including the 2022 Ministerial Direction (MD), the 2022 Chief of Defence Staff (CDS) and Deputy Minister (DM) Directions, and the 2021 Chief of Defence Intelligence (CDI) Functional Directive (FD). 

(U//OUO) 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. a detailed description of the total number of cases deliberated for substantial risk of mistreatment to individuals by DND/CAF in 2023;
2. an explanation of any cases assessed to present an immitigable risk of mistreatment to individuals; and,
3. updates on the implementation of the policy suite associated with the Act.

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

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 is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

(U) Introduction

(U//OUO) This is the sixth annual report released since the introduction of the MD in 2017, which preceded the 2019 Act of Parliament. Unlike in previous years, DND/CAF assessed that one foreign entity presented an immitigable substantial risk of mistreatment to individuals, which resulted in DND/CAF personnel being unable to support a bilateral Request for Assistance from a foreign entity or participate in a multinational operation with allies.

(U) Context

(U//OUO) The Government of Canada relies on DND and the CAF to fulfil their complementary mandates through the implementation of Canada’s defence policy Strong, Secure, Engaged (SSE).

Through SSE, the CAF is enabled to defend Canada’s sovereignty while making tangible contributions to its bilateral and multilateral commitments in North America and internationally. 

(U//OUO) Canada’s bilateral and multilateral relations, particularly with its Five Eye partners and the NATO Alliance, are enabled through the routine, often reciprocal, sharing of information and intelligence. Canada’s ability to share the right information, at the right time, with the appropriate partner, will remain crucial to its most important relationships and ability to unequivocally defend Canadian interests in a fast changing world.

(U//OUO) While the Government of Canada is committed to defending Canada and promoting Canadian interests in North America and abroad, it is equally committed to upholding Canadian values in doing so. Canada condemns, in the strongest possible terms, the use of torture or other cruel, inhuman, or degrading treatment or punishment. Canada’s Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act) therefore facilitates government departments and agencies to share information and intelligence with partners under the constraints of Canada’s core legal principles and values.

(U//OUO) Since the Act was legislated in 2019, DND/CAF has developed a robust follow-on policy suite to guide personnel in assessing the substantial risk of mistreatment to individuals when sharing information or intelligence during the course of authorized defence activities.

(U) Current Defense Landscape

(U//OUO) Canada and its allies found no respite from the challenges to the rules based international order in 2023. DND/CAF personnel continued to serve Canadian interests across multiple concurrent named operations including Operation (Op) UNIFIER, Op REASSURANCE, Op IMPACT, Op NEON, and Op ARTEMIS.

(U//OUO) Additionally, DND/CAF cooperated with Other Government Departments and Agencies to support Canada’s commitment to international peace and stability through the Indo Pacific Strategy, the Interdepartmental Task Force on Haiti, and the evacuation of Canadian citizens and other entitled persons from Sudan, Israel and the Palestinian Territories.

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(U) Report

(U) Policy and Governance Framework

(U//OUO) The Department of National Defence (DND) and the Canadian Armed Forces (CAF) maintain a robust policy suite to guide the operational commands — Canadian Joint Operations Command (CJOC), Canadian Special Operations Forces (CANSOFCOM) and the Canadian Forces Intelligence Command (CFINTCOM) — in sharing information and intelligence with foreign entities during the course of their authorized defence activities.

(U//OUO) The extant Chief of Defence Intelligence (CDI) Functional Directive (FD), entitled “Chief of Defence Intelligence Functional Directive: DND/CAF Information Sharing Activities with Foreign Entities,” was signed in December 2021.

(U//OUO) CFINTCOM’s Release and Disclosure Coordination Office (RDCO) undertook an internal review of the FD in 2023. Officials determined that some of the language in the policy suite could be clarified, particularly related to the tools for assessing substantial risk of mistreatment to individuals.

(U//OUO) CFINTCOM officials completed a mature draft of the revised FD late in 2023, and anticipate that the updated policy will be promulgated early in 2024.

(U) Governance

(U//OUO) Although the December 2021 policy update formalized the Defence Information Sharing Working Group (DISWG) and the Defence Information Sharing Advisory Committee (DISAC), both of them existed prior to 2021 — 2019 and 2018, respectively — as advisory bodies related to avoiding complicity in mistreatment by foreign entities.

(U//OUO) The DISWG remains a working-level committee that enables subject-matter experts from the Strategic Joint Staff, Office of the Judge Advocate General, Office of the Department of National Defence and Canadian Forces Legal Advisor, CFINTCOM, CJOC, CANSOFCOM, and the Assistant Deputy Minister (Policy) to provide near real-time advice to operational commanders on issues relating to information sharing, including cases of potential  substantial risk of mistreatment to individuals.

(U//OUO) The DISAC, comprised of senior leaders from the organizations mentioned above, serves as the advisory committee to the Deputy Minister (DM) and Chief of  Defence Staff (CDS). The DISAC convenes when an operational commander is unable to determine whether a substantial risk of mistreatment of an individual can be mitigated during a DISWG; or information or intelligence received by DND/CAF from a foreign entity that could prevent the loss of life was likely obtained from mistreatment.

(U//OUO) The DISAC did not convene in 2023; however, the DM and CDS were apprised of issues brought to the DISWG through Records of Discussion (RoDs) from each meeting.

(U//OUO) In all cases since its conception in 2019, the DISWG has either reached decision through consensus or provided the requesting operational command with the advice it required to make an informed decision. For that reason, combined with the fact that the DM and CDS remain apprised of issues brought to the DISWG through the associated RoDs, the DISWG did not recommend any cases for contemplation or decision at the DISAC in 2023

(U) Information Sharing

(U) Update from 2022 DISWG Cases

(U//OUO) The DISWG convened on nine occasions in 2022. Although a number of agenda items were raised, two issues of particular importance are outlined below:

1. information sharing with a foreign entity; and,
2. credible allegations of substantial mistreatment of individuals by two foreign entities that DND/CAF maintains a sharing relationship with.

(U//OUO) On the topic of sharing information with a foreign entity, the DISWG concurred that sufficient mitigations were in place to share information and intelligence with it.

(U//OUO) On the matter of credible allegations of mistreatment committed by two foreign entities, CFINTCOM RDCO drafted Partner Entity Assessments to assess DND/CAF’s ability to mitigate the risks associated with mistreatment to individuals, which led to the assessment that a change in sharing posture was not immediately required.

(U) Information Sharing Items Elevated to the DISWG in 2023

(U//OUO) The DISWG met on six occasions in 2023. The 2023 meetings highlighted that the increasing complexity of the global operating environment, in which DND/CAF deploys, was not contemplated in the Avoiding Complicity in Mistreatment by Foreign Entities Act (2019).

(U//OUO) The policy framework relies on the specificity of DND/CAF sharing certain information with particular foreign entities, allowing officials to assess the risk of substantial mistreatment of individuals on a case-specific basis.

(U) Training and Awareness of Responsibilities Under the Act (2019)

(U//OUO) DND/CAF supports the fulfilment of its obligations under the Act (2019) through a comprehensive training and accreditation process.

(U//OUO) CFINTCOM RDCO released its updated Release and Disclosure Officer and Release and Disclosure Authority Training Course on the Defence Learning Network (DLN) in 2023, which marked a significant milestone in the advancement of the training methodology to DND/CAF personnel across the country and deployed abroad. RDCO also made the course available to Other Government Department/Agency (OGD/A) employees as well as FVEY personnel within the intelligence community.

(U//OUO) The updated training is self-paced and delivered entirely online. It includes videos and case studies to help Release and Disclosure Officers/Authorities understand how various policies and directives would apply to situations domestically and abroad.

(U//OUO) CFINTCOM led the training and qualification of 128 DND/CAF personnel in 2023, of which 76 were accredited. All DND/CAF personnel receive the qualification upon their successful completion of the course; however, only some personnel are eligible to receive an additional five-year accreditation^{Footnote 1}. Over 600 DND/CAF personnel have been accredited to date, with 427 still holding a valid accreditation in 2023. 

(U//OUO) Additionally, it remains relevant to note that CAF members are specifically required to complete mandatory training on their obligations with regard to human rights prior to deploying to an expeditionary named operation. This pre-deployment training includes instruction on International Humanitarian Law (i.e., the Law of Armed Conflict) including the Geneva Conventions, Hague Conventions, as well as other core international human rights instruments. In other words, CAF personnel are enabled to individually ensure that their actions comply with all applicable laws, and identify actual or potential violations.

(U) Enhancing Communication

(U//OUO) DND/CAF developed, and began to implement, a communication plan to increase awareness of information sharing responsibilities with foreign entities, clarify policy and procedures, and support informed and objective decision-making. 

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(U) Implementation of the Human Rights Risk Assessment Program

(U//OUO)  The Human Rights Risk Assessment Program was successfully implemented in 2023, with the completion of the Country Human Rights Profiles.

(U//OUO) The program continued to support the Information Sharing Coordination Group (ISCG) in 2023 by attending interdepartmental meetings and finding ways to collaborate with OGD/As on joint responsibilities under the Act (2019).

(U//OUO) Country Human Rights Profiles: The development of Country Human Rights Profiles, which qualitatively summarize individual country and territory human rights records, then assign a quantitative score that to rank its state of human rights, began in 2021. A total repository of 192 profiles was completed in 2022-23 in support the operational commands and senior executives. The profiles are accessible across the Defence Intelligence Enterprise and to Government of Canada and FVEY partners.  

(U//OUO) CFINTCOM RDCO completed its initial development of all 192 profiles in 2023. Officials will therefore maintain them with a particular emphasis on countries rated medium (yellow) or high (red) risk in 2024. In other words, officials will be in a position to monitor the defence and geopolitical landscape to ensure that the Profiles are appropriately updated for relevance to the operational commands and senior executives. Officials may also update particular Profiles based on a country or territory’s human rights situation (e.g., where it may be in decline or susceptible to trigger events, such as civil unrest).

(U//OUO) Partner Entity Assessments: Partner Entity Assessments are required for foreign entities (e.g., specific military unit, intelligence or law enforcement organization, etc.) located in countries or territories rated to be medium or high-risk — according to their  Country Human Rights Profile — when DND/CAF is likely to share information or intelligence that could result in substantial risk of mistreatment of individuals ^{Footnote 2}. The Assessment must be approved by the operational commander overseeing the defence activity prior to sharing information or intelligence with the partner entity.

(U//OUO) DND/CAF completed two Partner Entity Assessments in 2023.

(U//OUO) Transactional Assessments: Transactional Assessments document information sharing and mistreatment-related considerations prior to Release and Disclosure Officers/Authorities sharing information with a country or territory assessed to present a medium or high-risk of mistreatment to individuals.

(U//OUO) None of the operational commands completed Transactional Assessments in 2023.This is largely due to the fact that most of Canada’s primary information sharing partners are its FVEY  and NATO allies. DND/CAF remained satisfied that FVEY and NATO entities are trusted, reliable, and that no immitigable risk of mistreatment to individuals would prevent DND/CAF from responsibly sharing with them.

(U//OUO) Information Exchange Plans for Operations: These plans are designed at the outset of an authorized named operation where it is reasonably expected that routine information or intelligence will be exchanged (on a frequency that would make Transactional Assessments prohibitive) during multilateral defence operations where at least one foreign partner has been assessed to be either medium or high-risk. As a likely example, an Information Exchange Plan for Operations may be required, vice a Transactional Assessment, on a multinational operation in which sharing information or intelligence is an inherent purpose of the operation.

(U//OUO) The operational commands completed one Information Exchange Plan for Operations in 2023.

(U) Record Keeping

(U//OUO) In order to dually support effective decision-making and consistent record keeping, CFINTCOM RDCO took steps to enhance record keeping practices in 2022.

(U//OUO) Release and Disclosure Officer Log: The Release and Disclosure Officer Log (RDOL) was completed in 2023 to support information sharing and assist in record keeping. While the RDOL is currently undergoing transition to use, it is expected that it can be used in the future as a tool to provide National Security and Intelligence Review Agency data and statistics on information sharing related to the Act.

(U) Collaboration with other Government Departments and Agencies

(U//OUO) DND/CAF continued to strengthen its collaborative relationships with OGD/As in 2023. In an effort to reasonably support a coherent risk rating methodology between the core National Security and Intelligence partners, DND/CAF facilitated its second annual Human Rights Summit in December 2023. The participants discussed each organization’s methodology for their country human rights assessments, which allowed officials to identify consistencies as well as gaps in their respective processes.

(U//OUO) Although the there are some differences between each organization’s methodology, the processes of research, assessment, and validation produced substantially similar risk ratings under two case studies reviewed during the 2023 Summit.

(U//OUO) Participants completed ‘case study’ reviews of two foreign entities in order to illustrate their respective methodologies and confirm their joint understanding of the qualitative human rights situation associated with each one. 

 (U//OUO) As in previous years, DND/CAF proactively shared its County Human Rights Profiles with OGD/As that have responsibilities under the Act (2019), as well as with its FVEY partners.

(U//OUO) DND/CAF’s Country Human Rights Profiles were available to OGD/As that have responsibilities under the Act (2019) such as Global Affairs Canada, the Communications Security Establishment (CSE), the Canadian Security Intelligence Service (CSIS), the Financial Transactions and Reports Analysis Centre of Canada, the Integrated Terrorism Assessment Centre, and the Privy Council Office.

(U) Next Steps

(U//OUO) DND/CAF will continue to implement its policy suite in a collaborative manner that enables DND/CAF personnel, as well as OGD/A partners, to understand their responsibilities under the Act. Activities identified to support this work in 2024-25 include:

• (U//OUO) Amendments to the National Defence Security Orders and Directives (NDSOD). An instrument that articulates the security obligations and responsibilities of all DND/CAF personnel, amendments will include the addition of a specific reference concerning the obligation of personnel to avoid complicity in mistreatment by foreign entities. 
• (U//OUO)  Maintenance of evergreen Standard Operational Procedures (SOPs). The SOPs will help to ensure that all lines of effort across CFINTCOM RDCO are undertaken consistently and incompliance with the Act and its subordinate direction.
• (U//OUO) Selection of Case Studies to examine DND/CAF implementation of the Act. A tool to assist personnel in proactively identifying areas of improvement related to the Human Rights Risk Assessment Program.

(U) Conclusion

(U//OUO) One immitigable substantial risk of mistreatment to individuals occurred in 2023, which precluded DND/CAF personnel from sharing information or intelligence with a foreign entity.

(U//OUO) CFINTCOM RDCO held six DISWGs to provide timely policy advice to operational commands, and inform its 2023 policy review.  

(U//OUO) DND/CAF also led engagements on the Act (2019) with OGD/As, such as the Human Rights Summit, which facilitated a real-time exchange of best practices between DND/CAF, CSE and CSIS. It also launched its training materials on the DLN, which allowed OGD/A personnel to take its training.

(U//OUO) DND/CAF will continue to support robust collaboration between OGD/As through its participation in the ISCG.

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