Directions for Avoiding Complicity in Mistreatment by Foreign Entities
2020 Annual Report
January 1 – December 31, 2020
Introduction
The Government of Canada condemns torture and other cruel, inhuman or degrading treatment or punishment of individuals and recognizes that these acts are an affront to Canadian values. Public Safety Canada (PS) is mandated to keep Canadians safe from a range of risks such as natural disasters, crime and terrorism in order to build a safe and resilient Canada. PS is committed to protecting human rights and freedoms while administering its mandate and engaging in information sharing activities with foreign entities. PS fulfills this commitment through its implementation of the Avoiding Complicity in Mistreatment by Foreign Entities Act (the Act) and its Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities (the Directions).
This is PS’ second annual report on the implementation of its Directions and covers January 1 to December 31, 2020. This report discusses PS’ compliance with the Act and the Directions by highlighting its current information sharing practices and arrangements, policies and procedures in place, the number of substantial risk cases and the number of restrictions to any arrangements due to concerns of mistreatment.
Background
Created in 2003, PS plays a key leadership role through the coordination of activities across federal departments and agencies responsible for national security and the safety of Canadians. In order to fulfill its mandate, PS relies on access to a wide variety of information. Given that PS has no investigatory mandate, it depends on information obtained from domestic partners and, on occasion, foreign entities.
Pursuant to the Act, which came into force in July 2019, the Governor in Council issued the Directions to the Deputy Minister of PS on September 4, 2019. The Directions provide instructions regarding:
- the disclosure of information to any foreign entity that would result in a substantial risk of mistreatment of an individual;
- the making of requests to any foreign entity for information that would result in a substantial risk of mistreatment of an individual; and,
- the use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.
Since being issued the Directions, PS has conducted internal assessments to identify which areas of the department could be impacted based on their information sharing activities with foreign entities. While most program areas at PS are not implicated by the Directions as they do not make decisions regarding whether to exchange information with foreign entities, it was determined that the Passenger Protect Program (PPP) and the Passport Program under the Passenger Protect Office (PPO) are the primary programs within PS that shares information relative to the Directions.
Information Sharing Practices & Arrangements
The Passenger Protect Office
The PPO contributes to the security of air transportation and supports the roles and authorities of the Minister of PS in relation to the PPP and the Passport Program.
The Passenger Protect Program
The Secure Air Travel Act (SATA) provides the legislative framework for the PPP. The PPP prevents individuals who may pose a threat to air security or who may travel by air to commit a terrorist act through additional security screening or preventing them from boarding a plane. Passengers travelling to, from and within Canada are screened against the SATA list.
The SATA list (sometimes called Canada’s “No Fly List”) includes the name, any aliases, date of birth and gender for persons the Minister of PS (or delegate) has determined there are reasonable grounds to suspect they could be a threat to aviation and/or national security and intend to travel by air for the purpose of terrorism.
The Minister (or delegate), determines who will be placed on the SATA list based on information provided by an Advisory Group chaired by PS with officials from Transport Canada (TC), the Canadian Security Intelligence Service (CSIS), the Royal Canadian Mounted Police (RCMP), Immigration, Refugees and Citizenship Canada (IRCC) and the Canadian Border Services Agency (CBSA).
The Advisory Group shares information on individuals whom they suspect may pose a threat to transportation security, or who may be looking to travel by air for terrorism-related purposes. Deciding to list an individual is a rigorous process which includes meeting a certain legal threshold. When making a recommendation, sufficient information must be provided to meet this threshold in order to support the addition of the individual’s name to the SATA list. The SATA list is reviewed by the Minister (or delegate) at least every 90 days; individuals may become listed, delisted, or relisted. Passengers travelling on commercial flights to, from and within Canada are screened against the SATA list. If a passenger is on the SATA list, they are flagged to the commercial air carrier and actions are taken to prevent any potential risks. These actions may include additional security screening or preventing the passenger from boarding the plane. If an individual is denied boarding under SATA, they receive a letter from the Minister which contains instructions on how to apply for recourse and to request being removed from the SATA list.
Amendments were made to SATA and its regulations (SATR) as part of the National Security Act, 2017, to enable the Government of Canada to put in place two important enhancements to the PPP:
(1) A government-controlled centralized screening system that ensures consistent and efficient screening of passengers against the SATA list through automation as well as a faster resolution of false name matches to the list. With centralized screening, the responsibility of screening passengers against the SATA list is transferred from air carriers to the Government of Canada. The onboarding of air carriers to centralized screening is taking place in phases between December 2020 and November 2022
(2) The Canadian Travel Number (CTN) serves as a unique identifier for individuals who may have the same, or similar, name as a SATA-listed individual, to help distinguish them during the screening process. Individuals can apply for a CTN from the CTN Office within the PPO.
For air carriers who are not yet on board the Government of Canada’s centralized screening system, the SATA list gets communicated to air carriers by Transport Canada (TC), pursuant to subsection 13(a) of the SATA for SATA list screening.
The Passport Program
The Passport Program operates under the authority of the Canadian Passport Order (CPO), under which the Minister of PS (or delegate) has to cancel, revoke or refuse a Canadian passport in order to prevent the commission of a terrorism offence, or for the national security of Canada or a foreign country or state.
Similar to the process conducted by the PPP, in order to support the Minister’s role, there is an Advisory Group chaired by PS with key domestic national security partners such as the RCMP and CSIS. The Advisory Group shares information to determine if individuals meet a certain risk threshold relative to terrorism and the national security of Canada or a foreign country or state.
Mistreatment Risk Assessments
The PPP and Passport Program rely primarily on information from domestic partners, such as CSIS, RCMP, and CBSA. These agencies are also subject to the Directions and exchange information with foreign entities according to their respective mandates and processes to assess the risk of mistreatment associated with information sharing (inbound and outbound) with foreign entities.
It is a fundamental duty of PS to be a responsible steward of the information in its control. PS requests written attestation to affirm the information exchanged is in accordance with the Directions and without substantial risk of mistreatment by a foreign entity. PS assesses the risk of mistreatment in collaboration with its domestic partners. The foreign entities with which PS exchanges information are assessed as presenting a low risk of mistreatment.
Implementation of the Directions
Updating Policies & Procedures
Departmental Policy
To inform a consistent implementation of its Directions, PS is committed to developing and implementing internal mechanisms to:
- assess the risk of mistreatment by foreign entities as a result of the disclosure of, request for, and use of information;
- determine whether the risk of mistreatment by foreign entities can be mitigated;
- ensure matters are referred to the Deputy Minister for determination and decision when officials are unable to determine whether the risk can be mitigated or when a determination is needed as to whether the use of information likely obtained through mistreatment is necessary to prevent loss of life or significant personal injury; and
- document and report information sharing activities, policy developments and updates, tools and processes.
PS has drafted and consulted on its internal Policy on the Directions for Avoiding Complicity in Mistreatment by Foreign Entities to ensure compliance with the Act and consistent application of the Directions across the department. The draft policy, which is planned for implementation in 2021, provides guidelines to PS officials for implementing the Directions. It outlines:
- principles PS officials will adhere to in sharing information with foreign entities;
- a governance structure for making decisions to ensure oversight;
- when the Directions are considered engaged and processes PS officials must follow, including referrals to the Deputy Minister for determination and decision;
- guidelines and tools for assessing and mitigating risks; and
- documentation and reporting requirements.
Program Policies
SATA Listing and Passport
The PPO has, and continues to, update its practices and procedures to ensure disclaimers and significant caveats accompany the information shared with partners. For example, the PPP’s standard operating procedures were updated to ensure that new information used by the Minister (or delegate) in making decisions relative to the SATA list contain attestations certifying that the information has been assessed and affirms that it complies with the Directions.
The PPO has further committed to working with the domestic partners that underpin both the PPP and Passport Programs to ensure that information holdings relative to the operation of both programs are continuously renewed and assessed to assure compliance with the Directions.
Enhancements to PPP
Following the issuance of the Directions, PPP updated its practices and procedures to ensure disclaimers and significant caveats continued to accompany information exchanged with foreign entities. The PPP’s standard operating procedures were also updated to ensure information exchanges are assessed for a substantial risk of mistreatment and the introduction of centralized screening and the CTN helps enhance national security by ensuring effective and consistent screening of the SATA List; strengthen privacy safeguards and integrity of the PPP; and, enhance procedural fairness for false-positive matches.
In the centralized screening model, the Government of Canada screens air travellers against the SATA List. This eliminates the requirement to disclose the SATA list to individual air carriers in order to perform the screening under SATA. All air carriers bound by PPP are required by SATR to be onboard the new system by November 2022. Once onboard, air carriers must permanently remove all versions of the SATA list and any information respecting listed persons, which supports the application of the Directions.
Inter-Agency Cooperation
PS chairs and participates in the Information Sharing Coordination Group (ISCG), an interdepartmental forum for supporting collaboration, lessons learned, and information sharing between departments and agencies subject to the Directions. This group provides an opportunity for PS and other departments and agencies to share information and discuss lessons learned. In 2020, the ISCG drafted its terms of reference and guidance documents on the implementation of and annual reporting on the Directions. The ISCG members had a number of discussions throughout the year on various topics, including the National Security and Intelligence Review Agency's review of the Directions which PS participated in.
Global Affairs Canada (GAC), which is also subject to the Directions, conducts human rights reporting and country risk assessments relative to the potential risk of mistreatment by foreign entities. These human rights reports and assessments, as well as others prepared by domestic partners, are widely used within government, including PS, to assess the risks of information sharing with foreign entities. In addition to this resource, PS is working with its portfolio partners in order to ensure harmonized country assessments that take into account the latest information and intelligence available, as feasible.
Activity Report
Cases of Substantial Risk
For the period of January 1 – December 31, 2020, PS referred 0 cases to the Deputy Minister for determination and authorization.
| Information Sharing Activity | Disclosure of Information | Request for Information | Use of Information |
|---|---|---|---|
| Number of cases referred to the Deputy Minister | 0 | 0 | 0 |
Restrictions of Arrangements
During the reporting period of January 1 – December 31, 2020, PS had 0 instances where an arrangement with a foreign entity was restricted due to concerns regarding mistreatment.
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