Directions for Avoiding Complicity in Mistreatment by Foreign Entities 2023 Annual Report

January 1 – December 31, 2023

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, including 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’s fourth annual report detailing its activities related to the Act and the Directions. This report covers information sharing activities undertaken from January 1, 2023, to December 31, 2023, and discusses PS’s compliance with the Act and the Directions. Specifically, it highlights 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. This report on the implementation of the Directions is made pursuant to subsection 7(1) of the Act.

Background

The Act and its associated directions demonstrate the Government of Canada’s commitment to prevent the mistreatment of individuals as a result of information exchanged between a government department and a foreign entity. Pursuant to the Act, which came into force in July 2019, the Governor in Council issued the Directions to the Deputy Minister of Public Safety on September 4, 2019. The Directions provide instructions for:

• 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.

PS has a leadership role and coordinates activities related to national security and the safety of Canadians across federal departments and agencies. PS does not have the authority or capability to investigate or gather a wide variety of information. As a result, PS relies on the information obtained from other federal departments and, on occasion, foreign entities.

Within PS, the Passenger Protect Program (PPP) and the Passport Program are the programs that share information that relate to the Directions.

Information Sharing Practices and Arrangements

The Passenger Protect Program (PPP)

The Secure Air Travel Act (SATA) provides the legislative framework for the PPP. The PPP prevents individuals who may pose a threat to aviation security, or who may travel by air to commit a terrorist act, from boarding a plane, or may have them subjected to additional security screening. Passengers travelling to, from and within Canada are screened against theSATA List.

The SATA List (sometimes called Canada’s “No Fly List”) includes the name, any aliases, date of birth and gender of persons for which the Minister of Public Safety (or their delegate) has determined that there are reasonable grounds to suspect that they pose a threat to aviation security or are looking to travel by air for terrorism-related purposes.

The Minister (or their delegate) determines who will be placed on the SATA List based on information provided by members of the Passenger Protect Advisory Group (PPAG) chaired by PS. The group includes officials from Transport Canada (TC), the Canadian Security Intelligence Service (CSIS), the Royal Canadian Mounted Police (RCMP), and the Canada Border Services Agency (CBSA). Immigration, Refugees and Citizenship Canada (IRCC) participates in the PPAG as observers only.

PS exchanges information, both via the PPAG and through the course of regular PPP operations to develop the recommendations to the Minister to add, maintain, and remove individuals from the SATA List. The decision to list an individual involves a rigorous process that requires a legal threshold to be met, pursuant to section 8(1) of the SATA. Sufficient information must be provided to meet this threshold in order to support the addition of an individual to the SATA List. The SATA List is reviewed by the Minister (or their delegate) every 90 days, and individuals may be listed, delisted, or relisted. If a listed passenger attempts to travel, they are unable to receive a boarding pass until their identity is verified at the airport. Should there be a confirmed match to the SATA List, the Minister (or their delegate) may issue a direction to the air carrier to require that individual to undergo additional security screening or to prevent the passenger from boarding the plane. If an individual is denied boarding under SATA, they will receive a letter from the Minister containing instructions on how to apply for recourse.

The Passport Program

The Passport Program operates under the authority of the Canadian Passport Order (CPO), under which the Minister of Public Safety (or their delegate) may 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.

To support the Minister’s role, there is a Passport Advisory Group (PAG) chaired by PS that includes the RCMP, CSIS, and IRCC. The PAG shares information to determine a recommendation for the Minister (or their delegate) on whether individuals meet a certain risk threshold related to terrorism and the national security of Canada or of a foreign country.

Implementation of the Directions

Policies and Procedures

Departmental Policy

In 2022, PS implemented its departmental Policy on the Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities (Deputy Minister of Public Safety and Emergency Preparedness) (the Policy). In 2023, PS enhanced understanding of the policy and respective roles and responsibilities through information sessions and the publication of the policy on the Intranet. Under the Policy, officials:

• 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.

The Policy ensures that PS’s information sharing activities with foreign entities are consistent with Canada’s obligations to protect human rights and that the Government of Canada is not complicit in mistreatment.

Between January 1, 2023 to December 31, 2023, PS:

• Held two information sessions to raise awareness on PS’s obligations under the ACMFEA and related Directions, as well as the roles and responsibilities of PS officials under the departmental policy;
• Published the Departmental Policy on Info Central (the PS Intranet site) to increase awareness; and
• Initiated the evaluation of its implementation and effectiveness of its Policy, which will continue in 2024.

SATA Listing and Passport

The PPP, through its practices and procedures, continues to ensure that disclaimers and caveats accompany the information that is shared with partners, as well as the information that comes before the Minister (or their delegate). In 2023, both the PPP and the Passport Program developed policy guidance related to the implementation of the Act and Directions in its programming. Both programs have committed to continue their work with domestic partners to ensure that information holdings relating to the operation of both programs are continuously renewed and assessed to ensure compliance with the directions.

Enhancements to the PPP

As part of the National Security Act, 2017, the Government of Canada introduced two key changes to the PPP. First, a government-controlled centralized screening system was put in place to ensure consistent and efficient screening of passengers against the SATA List. The new centralized screening model transfers responsibility for screening passengers against the SATA List from air carriers to the government. Previously, air carriers were responsible for screening passengers against the SATA List. Full operationalization of centralized screening has been in place since November 2022, and air carriers no longer have access to the SATA List. They were required to attest, in line with the Secure Air Travel Regulations, to Transport Canada that they have destroyed all previous copies of the SATA List in their possession by March 31, 2023. All air carriers flying to, from, and within Canada confirmed they had done so by the stated deadline. Additionally, the federal government launched the Canadian Travel Number (CTN), a unique identifier that travellers can apply for if they believe they have the same or similar name as someone on the SATA List. This CTN helps distinguish individuals during the screening process and prevents SATA-related travel delays only. These changes strengthened the integrity of the PPP, and enhanced procedural fairness of the program, thereby reducing access by air carriers and the chance of unnecessary exchanges with foreign entities.

Assessing the Risk for Potential Mistreatment

It is a fundamental duty of PS to be a responsible steward of the information under its control. PS is primarily a consumer of information and thus relies mainly on information from other departments and agencies associated with both programs. These agencies are also subject to written directions, and as such exchange information according to their respective mandates and processes used to assess the risk of mistreatment associated with information sharing with foreign entities. The PPP collaborates with other government departments to consider the risk of mistreatment resulting from the sharing of information with foreign entities. As per the Policy, when the PPP does not have sufficient information to conduct an assessment of substantial risk, it may request and use risk assessments conducted by another department or agency for the express purpose of evaluating the specific information exchange. In these instances, PS requires the partner department or agency to attest to having conducted the assessment.

Inter-Agency Cooperation

PS chairs and participates in the Information Sharing Coordination Group (ISCG), an interdepartmental forum that supports collaboration between departments and agencies subject to directions under the Act. This group provides an opportunity for PS and other departments and agencies to share best practices and discuss lessons learned. Throughout 2023, the ISCG held a number of discussions on various topics, including country and risk assessments.

PS supports ISCG’s efforts to advance its three key objectives of establishing best practices, sharing general information among its membership, and coordinating the development of policy documents in response to interdepartmental issues.

Activity Report

For the period of January 1 to December 31, 2023, PS referred zero cases to the Deputy Minister for determination and authorization.

Restrictions of Arrangements

During the reporting period of January 1 – December 31, 2023, PS had zero instances where an arrangement with a foreign entity was restricted due to concerns regarding mistreatment.

Date modified:

2024-05-17