Ministerial Direction to the Department of National Defence and the Canadian Armed Forces: Avoiding Complicity in Mistreatment by Foreign Entities

November 24, 2017

Purpose

1. Based on applicable Canadian law, including the Crown Prerogative, I have issued this Ministerial Direction to the Department of National Defence (DND) and the Canadian Armed Forces (CAF).
2. The Government of Canada is committed to addressing threats to national security and protecting rights and freedoms. The purpose of this Direction is to clearly state Canadian values and principles against torture and mistreatment and commitment to the rule of law.
3. This Direction prohibits:
   1. the disclosure of information that would result in a substantial risk of mistreatment of an individual by a foreign entity;
   2. the making of requests for information that would result in a substantial risk of mistreatment of an individual by a foreign entity; and
   3. certain uses of information that was likely obtained through the mistreatment of an individual by a foreign entity.
4. The decision-making processes for these situations are set out in annexes A, B, and C of this document.

Definitions

5. “Mistreatment” means torture or other cruel, inhuman, or degrading treatment or punishment.
6. “Substantial risk” is a personal, present and foreseeable risk of mistreatment. In order to be “substantial”, the risk must be real and must be based on something more than mere theory or speculation. In most cases, the test of a substantial risk of mistreatment will be satisfied when it is more likely than not that there will be mistreatment; however, in some cases, particularly where the risk is of severe harm, the “substantial risk” standard may be satisfied at a lower level of probability.
7. “Foreign Entities” may include foreign governments, their departments, agencies and militaries, and may also refer to military coalitions, alliances, and international organizations.

Preamble

8. Section 7 of the Canadian Charter of Rights and Freedoms guarantees that “everyone has the right to life, liberty, and security of the person.”  Section 12 prohibits “any cruel and unusual treatment or punishment,” which Canadian courts have described as behaviour “so excessive as to outrage the standards of decency.”  This behaviour includes torture and other cruel, inhuman, or degrading treatment or punishment.
9. Torture and other cruel, inhuman, or degrading treatment or punishment represent affronts to Canadian values. The Government of Canada opposes in the strongest possible terms their use, including in responding to threats to national security. 
10. Canada is a party to a number of international agreements that prohibit torture and other forms of cruel, inhuman, or degrading treatment or punishment.  These include international agreements relating to armed conflict (e.g., Geneva Conventions, Additional Protocols, and other agreements) and human rights (e.g. the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)).  The CAT requires state parties to criminalize all instances of torture, and to take effective measures to prevent torture and other cruel, inhuman, or degrading treatment or punishment in any territory under their jurisdiction.
11. Torture is a criminal offence in Canada that has extraterritorial application.  The Criminal Code also prohibits aiding and abetting the commission of torture, counselling the commission of torture whether or not the torture is committed, conspiracy to commit torture, attempting to commit torture, and being an accessory after the fact to torture. Furthermore, the Criminal Code states that “exceptional circumstances” (including a state act of war, a threat of war, internal political instability or any other public emergency) is not a defence to a charge of torture.
12. Torture and other cruel, inhuman, or degrading treatment or punishment also serve no legitimate military, law enforcement, or intelligence gathering purpose. Any information they yield is very likely unreliable, and therefore is inadmissible as evidence in a court of law.
13. The Government of Canada, therefore, has no interest in actions associated with the use of torture and other cruel, inhuman, or degrading treatment or punishment. Knowingly associating the Government of Canada with any of these actions would damage the credibility and effectiveness of any department or agency associated with them.

Principles

14. Recognizing that information-sharing with foreign entities is vital to DND and CAF’s ability to maintain strong relationships and address threats to national security and national defence, and that DND and CAF must also be able to quickly share information with domestic partners with a mandate and responsibility to respond to these threats, such sharing must be done in a manner that complies with Canada’s laws and legal obligations.
15. DND and CAF must avoid knowingly contributing to mistreatment by foreign entities.
16. DND and CAF must assess the accuracy and reliability of information received, and properly characterize this information in any further dissemination.  DND and CAF must maintain measures for identifying foreign entities that engage in mistreatment of individuals.
17. DND and CAF has a responsibility to keep me, as Minister of National Defence, informed about DND and CAF information sharing arrangements.
18. Transparency about the use of this Direction is a key principle. In accordance with Principle 4 of the Government’s National Security Transparency Commitment, DND and CAF are expected to publish information that explains how this Direction is implemented, including how risk assessments are conducted, in line with Canadian values, including those expressed by the Canadian Charter of Rights and Freedoms.

Inter-Agency Cooperation

19. DND and CAF will maintain internal policies and procedures for assessing the risks associated with relationships with foreign entities. This includes evaluating the human rights records of foreign governments generally, and not only the specific entities associated with them.
20. DND and CAF will cooperate in this assessment process with all other Government of Canada departments and agencies covered by Ministerial Direction to ensure that decision-making is supported by the most comprehensive assessment base of information possible.
21. DND and CAF will monitor their arrangements with foreign entities based on a number of factors, including human rights and risk of mistreatment. These arrangements will be restricted if it is assessed by DND and CAF that a foreign entity is engaging in, or contributing to, mistreatment. When such an action is taken, DND and CAF will inform the other Departments and Agencies subject to this or a similar direction in a timely manner.

Accountability

22. DND and CAF are subject to the rule of law; Ministerial oversight; and, in areas related to national security and intelligence, review by the National Security and Intelligence Committee of Parliamentarians.
23. DND and CAF are directed to produce a classified annual report to me, as the Minister of National Defence, regarding the application of this Direction. The report will include:
    1. details on substantial risk cases where this Direction was engaged, including the number of cases;
    2. the restriction of any arrangements due to concerns related to mistreatment; and
    3. any changes to internal policies and procedures related to this Direction.
24. I, as Minister of National Defence, will provide the National Security and Intelligence Committee of Parliamentarians with as much information from the report as the Committee is authorized to receive by law.
25. This report, in an unclassified format, will be released publicly, containing the contents described above to the extent possible without compromising the national interest, the effectiveness of operations, or the safety or security of an individual.

Appendix A of the Ministerial Direction:

Decision-making process for the disclosure of information that would result in a substantial risk of mistreatment of an individual by a foreign entity

1. The ongoing assessment of the risks associated with Canada’s exchange of information with foreign entities is vital to ensuring that Canada does not knowingly contribute to mistreatment abroad.
2. When there is a substantial risk that disclosing information to a foreign entity would result in the mistreatment of an individual, and officials are unable to determine if that risk can be mitigated through, for example, the use of caveats or assurances, the matter will be referred for decision to the Chief of the Defence Staff and the Deputy Minister.
3. If that substantial risk cannot be mitigated, information will not be disclosed to that foreign entity.
4. In any case when approval to disclose information is granted because the Chief of the Defence Staff and the Deputy Minister determine that the substantial risk can be mitigated, the basis for such a determination must be clearly documented.
5. I, as  Minister of National Defence, and the National Security and Intelligence Committee of Parliamentarians (subject to its legal mandate), will be informed, as soon as is feasible, of cases that required a decision by the Chief of the Defence Staff and the Deputy Minister, and provided with relevant contextual information.

Appendix B of the Ministerial Direction:

Decision-making process for the making of requests for information that would result in a substantial risk of mistreatment of an individual by a foreign entity

1. The ongoing assessment of the risks associated with Canada’s exchange of information with foreign entities is vital to ensuring that Canada does not knowingly contribute to mistreatment abroad.
2. When there is a substantial risk that making a request for information to a foreign entity would result in the mistreatment of an individual, and officials are unable to determine if that risk can be mitigated through, for example, the use of caveats or assurances, the matter will be referred for decision to the Chief of the Defence Staff and the Deputy Minister.
3. If that substantial risk cannot be mitigated, information will not be requested from that foreign entity.
4. In any case when approval to make a request for information is granted because the Chief of the Defence Staff and the Deputy Minister determine that the substantial risk can be mitigated, the basis for such a determination must be clearly documented.
5. I, as  Minister of National Defence, and the National Security and Intelligence Committee of Parliamentarians (subject to its legal mandate), will be informed, as soon as is feasible, of cases that required a decision by the Chief of the Defence Staff and the Deputy Minister, and provided with relevant contextual information.

Appendix C of the Ministerial Direction:

Decision-making process for the use of information that was likely obtained through the mistreatment of an individual by a foreign entity

1. Information that was likely obtained through mistreatment may not be used:
   1. in any way that creates a substantial risk of further mistreatment;
   2. as evidence in any judicial, administrative, or other proceeding; or,
   3. to deprive someone of their rights or freedoms, except, where the Chief of the Defence Staff and the Deputy Minister (or in exceptional circumstances, a senior official delegated by the Chief of the Defence Staff and the Deputy Minister), authorize such use because it is necessary to prevent loss of life or significant personal injury.
2. In exceptional circumstances, as set out above in 1(c),  allowing use that deprives someone of their rights or freedoms may be necessary when, for example, information suggests someone is about to commit a terrorist act. The information must be accurately described, and its reliability properly characterized using caveats making clear that the use of this information has been authorized for a clearly defined and limited purpose.
3. I, as  Minister of National Defence, and the National Security and Intelligence Committee of Parliamentarians (subject to its legal mandate), will be informed, as soon as is feasible, of cases that required a decision by the Chief of the Defence Staff and the Deputy Minister, and provided with relevant contextual information.