Directions for Avoiding Complicity in Mistreatment by Foreign Entities
2021 Annual Report
January 1 – December 31, 2021
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 report details activities related to the Act and the Directions undertaken by PS from January 1, 2021, to December 31, 2021. This report discusses PS's 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. This report on the implementation of the Directions is made pursuant to subsection 7(1) of the Act.
The Act and its associated directions seek to prevent the mistreatment of any individual as a result of information exchanged between a Government of Canada 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 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.
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 investigative mandate, it depends on information obtained from domestic partners and, on occasion, foreign entities.
Within PS, the Passenger Protect Program (PPP) and the Passport Program, both under the Passenger Protect Office (PPO), are the programs that share information that relate to the Directions.
Information Sharing Practices and Arrangements
The Passenger Protect Office
The PPO contributes to the security of air transportation and supports the roles and authorities of the Minister of Public Safety 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, from boarding a plane, or else can have them subjected to additional security screening. 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 of persons for which the Minister of Public Safety (or their delegate) has determined that there are reasonable grounds to suspect 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 an Advisory Group chaired by PS. The group includes 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 Canada Border Services Agency (CBSA).
PS exchanges information, both via the Advisory Group and through the course of regular PPP operations, with domestic PPP partners (RCMP, CSIS, TC, CBSA, IRCC) to support the making of recommendations to the Minister on individuals suspected of posing a threat to aviation security, or of looking to travel by air for terrorism-related purposes. The decision to list an individual involves a rigorous process that requires a certain legal threshold to be met. When making a recommendation, sufficient information must be provided to meet this threshold in order to support the addition of the individual to the SATA List. The SATA List is reviewed by the Minister (or their delegate) at least every 90 days; individuals may be listed, delisted, or relisted. If a passenger is on the SATA List and they attempt 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 additional security screening or to prevent the passenger from boarding the plane. If an individual is denied boarding under SATA, they receive a letter from the Minister containing instructions on how to apply for recourse and how to request removal from the SATA List.
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 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 is expected by November 2022, at which time air carriers will no longer have access to the SATA List and must permanently remove or destroy any and all information regarding listed persons. Additionally, the government launched the Canadian Travel Number, 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 helps distinguish them during the screening process and prevents travel delays.
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.
In order to support the Minister's role, there is a Passport Program Advisory Group chaired by PS that includes key domestic national security partners such as the RCMP and CSIS. The Advisory Group shares information to determine whether individuals meet a certain risk threshold related to terrorism and the national security of Canada or of a foreign country.
Mistreatment Risk Assessments
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 it relies mainly on information from other departments and agencies, such as the RCMP, CBSA, and CSIS. 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.
PPP collaborates with other government departments to consider the risk of mistreatment of its sharing of information with foreign entities. When PS 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. In 2021, the foreign entities with which PS exchanged information were assessed as presenting a low risk of mistreatment of an individual.
Global Affairs Canada (GAC), which is also subject to directions, conducts human rights reporting and country risk assessments regarding 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 by PS, to assess the risks of information sharing with foreign entities. In addition to this resource, PS works with its portfolio partners to ensure that country assessments take into account the latest information and intelligence available.
Implementation of the Directions
Updating Policies and Procedures
To ensure the 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.
In 2021, PS finalized its internal 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) to ensure compliance with the Act and consistent application of the Directions across the department. The Policy, approved by the Deputy Minister in November 2021, came into effect on January 1, 2022. The Policy's purpose is to ensure that PS's information sharing activities with foreign entities are consistent with Canada's obligations to protect human rights and ensure that the Government of Canada is not complicit in mistreatment. The Policy provides guidance to PS officials on implementing the Directions. Specifically, it outlines:
- requirements under the Act and Directions;
- roles and responsibilities for PS officials, including Directors General, the Senior Assistant Deputy Minister of the National and Cyber Security Branch, and the Deputy Minister;
- ongoing evaluation and monitoring requirements;
- key definitions to support the implementation of the Directions;
- a governance structure for making decisions to ensure oversight;
- processes that PS officials must follow, including referrals to the Deputy Minister for determinations and decisions;
- guidelines for the consistent implementation of the Policy, including tools for assessing and mitigating risks; and,
- documentation and reporting requirements, including a checklist that must be completed when the Directions are engaged.
Implicated PS program areas, prior to the effective date of the Policy, employed interim measures to ensure that the Act and Directions were enforced.
SATA Listing and Passport
The PPO, through its practices and procedures, continues to ensure that disclaimers and significant caveats accompany the information that is shared with partners, as well as the information that comes before the Minister (or their delegate) with respect to making administrative decisions. The PPO has further committed to continue its work with the domestic partners that underpin both the PPP and the Passport Program 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 PPP
In the new centralized screening model, the Government of Canada screens air travellers against the SATA List. This eliminates the requirement to disclose the SATA List to air carriers in order to perform screening. All air carriers bound by PPP are required to transition over to the new system by November 2022. Once this occurs, air carriers must permanently delete all versions of the SATA List and any information respecting listed persons. These changes will strengthen privacy safeguards and the integrity of the PPP, as well as enhance procedural fairness for false-positive matches to the SATA list, thereby reducing the chance of unnecessary exchanges with foreign entities.
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. In 2021, the ISCG finalized and endorsed its terms of reference and guidance documents on the implementation of, and annual reporting on, the directions. ISCG members had a number of discussions on various topics throughout the year.
PS is committed to enhancing the 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.
Cases of Substantial Risk
For the period of January 1 – December 31, 2021, 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
Restrictions of Arrangements
During the reporting period of January 1 – December 31, 2021, PS had 0 instances where an arrangement with a foreign entity was restricted due to concerns regarding mistreatment.
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