Directions for Avoiding Complicity in Mistreatment by Foreign Entities (Deputy Minister of National Defence and Chief of the Defence Staff)

Disclosure of information

1 (1) If the disclosure of information to a foreign entity would result in a substantial risk of mistreatment of an individual, the Deputy Minister of National Defence and the Chief of the Defence Staff must ensure that Department of National Defence and the Canadian Armed Forces officials do not disclose the information unless the officials determine that the risk can be mitigated, such as through the use of caveats or assurances, and appropriate measures are taken to mitigate the risk.

Referral to Deputy Minister and Chief of the Defence Staff

(2) If the officials are unable to determine whether the risk can be mitigated, the Deputy Minister and the Chief of the Defence Staff must put measures in place to ensure that the matter is referred to the Deputy Minister and the Chief of the Defence Staff for determination.

Authorization by Deputy Minister and Chief of the Defence Staff

(3) If the Deputy Minister and the Chief of the Defence Staff determines that the risk can be mitigated, they may authorize the disclosure of the information on condition that they clearly document the basis for that determination and appropriate measures are taken to mitigate the risk.

Accuracy and reliability

(4) The Deputy Minister and the Chief of the Defence Staff must put measures in place to ensure that information is not disclosed under subsection (1) or (3) unless it is accompanied by a characterization of the information’s accuracy and reliability, as determined by officials from the Department of National Defence and the Canadian Armed Forces.

Request for information

2 (1) If the making of a request to a foreign entity for information would result in a substantial risk of mistreatment of an individual, the Deputy Minister of National Defence and the Chief of the Defence Staff must ensure that Department of National Defence and Canadian Armed Forces officials do not make the request for information unless the officials determine that the risk can be mitigated, such as through the use of caveats or assurances, and appropriate measures are taken to mitigate the risk.

Referral to Deputy Minister and Chief of the Defence Staff

(2) If the officials are unable to determine whether the risk can be mitigated, the Deputy Minister and the Chief of the Defence Staff must put measures in place to ensure that the matter is referred to the Deputy Minister and the Chief of the Defence Staff for determination.

Authorization by Deputy Minister and Chief of the Defence Staff

(3) If the Deputy Minister and the Chief of the Defence Staff determines that the risk can be mitigated, they may authorize the making of the request for information on condition that they clearly document the basis for that determination and appropriate measures are taken to mitigate the risk.

Use of information

3 (1) The Deputy Minister of National Defence and the Chief of the Defence Staff must ensure that information that is likely to have been obtained through the mistreatment of an individual by a foreign entity is not used by the Department of National Defence and the Canadian Armed Forces

1. in any way that creates a substantial risk of further mistreatment;
2. as evidence in any judicial, administrative or other proceeding; or
3. in any way that deprives someone of their rights or freedoms, unless the Deputy Minister and the Chief of the Defence Staff or, in exceptional circumstances, a senior official designated by the Deputy Minister and the Chief of the Defence Staff determines that the use of the information is necessary to prevent loss of life or significant personal injury and authorizes the use accordingly.

Precautions

(2) The Deputy Minister and the Chief of the Defence Staff must ensure that the Department of National Defence and the Canadian Armed Forces assess the accuracy and reliability of the information before it is used and that any authorization given for the purposes of paragraph (1)(c) accurately describes the information, characterizes the information’s accuracy and reliability and identifies the limited purpose for which the authorization is given.

Information to Minister, Agency and Committee

4 (1) The Deputy Minister of National Defence and the Chief of the Defence Staff must inform the Minister of National Defence, the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians of any determination made under subsection 1(2) or 2(2) and of any decision regarding whether to give an authorization referred to in paragraph 3(1)(c), and must disclose any information considered in making the determination or decision, as soon as feasible after the determination or decision is made.

Ongoing investigation or military operation

(2) Information relating directly to an ongoing law enforcement investigation or military operation may be proactively disclosed once the investigation or operation is no longer ongoing.

Limitation

(3) For greater certainty, only information to which the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians are entitled to have access under section 9 of the National Security and Intelligence Review Agency Act and section 13 of the National Security and Intelligence Committee of Parliamentarians Act, respectively, may be proactively disclosed to those entities under this section.