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Governor in Council Direction to the Deputy Minister of Fisheries and Oceans: Avoiding complicity in mistreatment by foreign entities – Annual Report 2019

Table of contents

Background

The Avoiding Complicity in Mistreatment by Foreign Entities Act came into force on July 13, 2019, which authorized the Governor in Council (GiC) to issue Directions to the deputy heads of federal departments and agencies that conduct information sharing activities with foreign entities where there could be a substantial risk of mistreatment.Footnote 1

On September 4, 2019, the GiC issued the Directions for Avoiding Complicity in Mistreatment by Foreign Entities to the Deputy Minister of Fisheries and Oceans The Directions pertain to the request and disclosure of information that would result in a substantial risk of mistreatment of an individual by a foreign entity, as well as the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity. Under the Act, the Deputy Minister must make a copy of the Directions public. The Directions issued to the Deputy Minister can be found on the Orders in Council Division page.

Introduction

This report responds to the Act’s requirement that the Deputy Minister submit a report to the Minister of Fisheries, Oceans and the Canadian Coast Guard (Minister) before March 1 of each year with respect to the implementation of the Directions during the previous calendar year. This inaugural report covers the period from when the Directions were issued on September 4, 2019, until the end of the calendar year, December 31, 2019.

Information sharing practices

As Canada is surrounded by three oceans, effective relations and collaboration with international partners is essential to managing shared ocean resources. Through diplomatic relations, Canada has entered into both formal and informal arrangements and agreements on fisheries, oceans and science issues with a number of nations.

The Canadian Coast Guard participates in international information-sharing activities related to its core missions of marine search and rescue, environmental response, the maintenance of navigation aids and pathways, and icebreaking. The Coast Guard also supports maritime security and law enforcement partners, through the provision of vessels and helicopters, vessel electronic surveillance information, and maritime expertise. For example, the Coast Guard participates in strategic information sharing protocols with international partners such as the Government of the United States through the Maritime Event Response Protocol / Maritime Operational Threat Response (MERP/MOTR), and the Marine Security Operations Centres (MSOCs) program under the MSOC Memorandum of Understanding.

The Conservation and Protection Directorate of the Department of Fisheries, Oceans and the Canadian Coast Guard (Department) is also represented in the MSOCs. The Department also engages in information sharing activities related to illegal, unregulated, and unreported (IUU) fisheries crime, including through participation in international platforms such as the Interpol’s Fisheries Crime Working Group (FCWG) and by monitoring compliance with the conservation and enforcement measures of various regional fisheries management organizations, such as the North Atlantic Fisheries Organization. Information sharing is also conducted on a bilateral basis with other countries such as the United States, France, and Denmark.

Operational governance

As required by the Directions, the Deputy Minister has implemented measures to ensure that decisions to conduct information sharing activities when there is a substantial risk of mistreatment, or use information likely to have been obtained through mistreatment, are appropriately assessed and that determinations are made based on the best available information and with the appropriate level of accountability. The measures which the Deputy Minister has implemented include a governance and reporting structure, an internal review committee (IRC), and a decision screen which collectively ensure compliance with the Directions.

Updating policies and procedures

In practice, the Directions are operationalized by officials who are directly involved in information exchange activities with foreign entities. When information is shared with or received from foreign entities, or when information received from a foreign entity is to be used, the first level of assessment occurs with the departmental official sharing or receiving the information. Under the Department’s new policies and procedures, a matter should be referred to the IRC if:

The IRC is comprised of a number of senior departmental officials with a mandate to ensure that matters referred to the IRC are assessed on a case-by-case basis using the latest relevant information to produce a comprehensive and well-substantiated risk assessment decision. This process determines which cases meet the threshold for further escalation to the Deputy Minister for decision. The Department’s new measures and procedures will be periodically reviewed to ensure that they remain relevant and continue to serve their intended purpose.

Interdepartmental coordination

The Department participates in the Information Sharing Coordination Group (ISCG). This forum assists departments and agencies subject to GiC Directions in establishing best practices to effectively implement the requirements of the Directions, such as the requirement to report annually.
The Department’s periodic review of the measures and procedures will be informed by continued engagement with review bodies, as well as through continued consultations with other federal government partners, including through participation in the ISCG.

Mistreatment Risk Assessments (MRAs)

The Department has leveraged Global Affairs Canada’s country risk assessments and will incorporate information provided through both government sources and non-governmental organizations. Departmental officials will assess the risk of mistreatment that would result from an information sharing activity with a foreign entity, considering the likelihood that action may be taken against an individual, and the potential overall impact of any such action. This approach ensures that the assessment of risk across all federal departments and agencies subject to GiC Directions is consistent.

Cases of substantial risk

The following section outlines by category of activity any cases that the Department identified as presenting a substantial risk of mistreatment pursuant to the Directions for the period from September 4, 2019 to December 31, 2019:

The Department had no cases.

The Department had no cases.

The Department had no cases.

Annex 1: Decision screen

Description

On this slide there is a chart that is made of bubbles that are linked together by arrows. The chart describes how sector-level actors receive or make requests, conduct reviews and analysis related to information sharing. It also describes how senior-level actors review, analyze, and recommend a course of action to the Deputy Minister. A recommendation to the Deputy Minister is only made when there is a substantial risk of mistreatment.

The top bubble contains the following text: “Information sharing or receiving activity”. The first question asked is whether there is a human rights risk involved in the information sharing or receiving activity. The chart indicates that “Global Affairs Canada” provides a country risk profile in order to determine whether there is a human rights risk. If there is no human rights risk, the information can be released or received. If there is a human rights risk, we follow the arrow to the bubble below which asks whether there is a “Substantial risk of mistreatment?”. The chart indicates that the “RCMP, CSIS, GAC, TC, IRCC, etc.” make the operational determination of whether there is a substantial risk of mistreatment. If the answer to that question is “No”, the information can be released or received. If the answer is “Yes”, the information goes to an “Internal Review Committee”. DFO and CCG bulk data screening provide an evaluation of data sharing through a Memoranda of Understanding. The information then goes to Senior Management before a decision is made by the Deputy Minister.

Annex 2: Governance structure

Description

On this slide there is pyramid-shaped chart with a description of each level of the governance structure.

The bottom level of the pyramid is represented by the Foreign Entity. There can be a request for information or a disclosure of information involved.

The level above is represented by the Receiving or Distributing Sector. This sector:

  • Tracks their information-sharing activities with foreign entities
  • Carries out initial assessment of mistreatment risk
  • Makes determination to receive, release, or use information if there is no substantial risk of mistreatment

The level above is represented by the Internal Review Committee. Permanent members: DG-level from Strategic Policy and Priorities, Coast Guard Operations, Conservation and Protection, and International and Intergovernmental Affairs. Ad-hoc subject-specific members (e.g. Science or a region) on a case-by-case basis. Justice will sit on the Committee and provide legal advice as required. The Internal Review Committee:

  • Reviews and evaluates cases where there is a substantial risk of mistreatment and provides a recommendation to the DM
  • Identifies and considers any treaty or legal obligations pertaining to this information-sharing activity

The level above is represented by Senior Management:

  • Memoranda for decision to the DM on high-risk cases will require ADM approval from Strategic Policy, ADMs from implicated sectors, and the Commissioner for activities related to the Coast Guard.
  • In cases where decisions need to be made in “real-time”, the DM will be briefed by senior management from Strategic Policy and any other implicated sectors.

The top level of the pyramid is represented by the DM:

  • Each DM decision must be reported to the Minister, NSICOP, and NSIRA
  • DM must submit an annual report to the Minister before March 1 of each year. The Minister must provide a copy to NSICOP and NSIRA.
  • The DM must make an unclassified version of the annual report available to the public.
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