RCMP Annual Public Report on the Ministerial Direction Avoiding Complicity in Mistreatment

Introduction


On September 25, 2017, the Minister of Public Safety and Emergency Preparedness issued a Ministerial Direction (MD) to the Commissioner of the RCMP entitled Avoiding Complicity in Mistreatment by Foreign Entities. The MD includes a requirement to report to the Minister, on an annual basis, regarding the application of this Direction, including: 1) details about cases where the Direction was engaged, including the number of cases; 2) any restrictions on any arrangements due to concerns about potential mistreatment; and, 3) any changes to internal policies and procedures related to this Direction. This report details the RCMP's application of the MD from September 25, 2017 to September 25, 2018.

RCMP information sharing practices and operational governance

Background


Information sharing with domestic and international law enforcement and security agencies is essential for the successful execution of the RCMP's mandate. Information exchanges can range from straightforward requests to confirm whether an individual has a criminal record, to urgent notifications that a suspect may be posing a threat to themselves or others.

The RCMP is committed to ensuring that the information it exchanges – requests and disclosures – with international law enforcement and security agencies does not involve or result in mistreatment. This is important because avoiding complicity in mistreatment is a core Canadian value, and also because information must be handled and obtained in accordance with Canadian law, including the Charter and the Privacy Act, if it is to be useful in criminal prosecution. Information obtained through mistreatment would be contrary to these principles, and using it as evidence would be damaging to not only the investigation, but to the reputation of the RCMP and the Government of Canada.

The RCMP has implemented comprehensive policies and procedures to ensure that the information it exchanges or uses is not a result of mistreatment, nor will it lead to the mistreatment of a person. Many of these policies stem from the lessons learned from the 2006 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Following the Commission, robust operational policies and accountability measures were established to ensure that information exchanges are carried out with full respect for human rights. The RCMP stores, retains and disposes of personal information commensurate with the nature of the investigation, and in accordance with RCMP policies that are based on common law, Treasury Board policies, the Privacy Act, and the Library and Archives of Canada Act. All operational records are retained for a minimum of two years.

Information sharing in the RCMP's national security context has been subject to Ministerial Direction since 2011 with the issuance of an MD entitled Information-Sharing with Foreign Entities, which dictated that there could be no exchange of information with foreign entities where there was a substantial risk of mistreatment, unless the risk could be mitigated, or where there was an imminent threat to life or property.

To ensure compliance with the 2011 Ministerial Direction, the RCMP updated the requisite policies and created a new committee – the Foreign Information Risk Analysis Committee – to assess risks for the national security program.

Updating policies and procedures


Policies had to be further updated upon the issuance of the 2017 MD, as it represented a significant shift in policy for the RCMP. Firstly, the MD strictly prohibited the exchange of information (request and/or disclosure to a foreign entity) if the substantial risk of mistreatment could not be mitigated. Secondly, and most significantly, the MD applies to all business lines, not just the national security program.

Given these changes, the RCMP modified its supporting policies to assess information exchanges across the organization. The Committee was renamed the Foreign Information Risk Advisory Committee (FIRAC) to clarify that it is an advisory body to senior management, mandated to assess whether an information exchange should proceed, and to make recommendations accordingly. The updated FIRAC is now comprised of executives from across all business lines, with relevant expertise and professional responsibilities. This not only ensures that decisions are made with the appropriate level of accountability, but that they are informed by the experience of senior officers with a broad understanding of operational, intelligence, policy and human rights issues.

Risk assessments


To ensure compliance with the MD, the RCMP is taking the necessary steps to clearly articulate to personnel the foreign entities that pose a substantial risk of mistreatment. This is particularly challenging from a law enforcement perspective, as we potentially could share information with hundreds of foreign states, each with a number of law enforcement entities with different human rights records. Further, some entities may pose a human rights concern in some sectors or for some types of criminality, but not in others. For instance, an entity may be hostile towards members of the LGBTQ2 community, requiring that any exchange of information in relation to someone who identifies as such would need to be assessed and any potential substantial risks appropriately mitigated. In other states, there may be a substantial risk of mistreatment surrounding a particular type of criminal activity (e.g. drug smuggling), but not others.

The MD requires that the RCMP must develop measures for identifying foreign entities that engage in the mistreatment of people. As a result, the RCMP is in the process of assessing every country, and its relevant law enforcement entities, to examine their human rights records and to understand the potential risk of substantial mistreatment. The RCMP's assessments also identify factors that could mitigate the risk, such as assurances provided to the RCMP, or a record of complying with RCMP caveats and requests to respect human rights. The RCMP's assessments are classified and are law enforcement sensitive.

Assessments are informed by a broad range of human rights reporting, including Global Affairs Canada's Annual Human Rights Reports and reporting from non-governmental organizations such as Amnesty International. Other partners also subject to an MD are also consulted to develop an RCMP assessment.

Information exchanges that engaged the Ministerial Direction


Between September 25, 2017 and September 25, 2018, 29 requests that posed a potential risk of mistreatment were reviewed by FIRAC. As a result of the reviews conducted by the Committee during this period, a total of four potential information exchanges were denied because risks could not be mitigated.

Seeking approval for information exchange


The FIRAC process is triggered when an RCMP employee identifies a need to exchange personally-identifiable information with a foreign entity. Personnel will consult the risk assessment, and determine if the information exchange poses a potential substantial risk of mistreatment. The employee engages a Senior Officer for approval to submit a request to National Headquarters (NHQ) for a FIRAC. The request outlines the operational necessity of the exchange or use, as well as the exact information to be exchanged. If approved, the request is provided to FIRAC and a meeting is scheduled.

The FIRAC will review the request to confirm whether there is a substantial risk of mistreatment, and then determine if that risk can be mitigated (e.g., seeking assurances against mistreatment from the foreign entity). If the Committee determines that there is no substantial risk, or that the substantial risk can be mitigated, it will recommend that the information exchange may proceed. If the risk cannot be mitigated, the FIRAC will recommend that the information exchange not proceed. Further, for each request, a formal record of decision is taken, attached to the investigative file, and kept for reporting purposes. RCMP Liaison Officers posted abroad ultimately facilitate the approved information exchanges with foreign entities.

Should an incident arise where the RCMP must use information that may have resulted from mistreatment to prevent an imminent threat, the FIRAC will make this recommendation to the Commissioner to determine how to proceed, as per the MD.

Implementation measures: communication and training


The RCMP has taken concrete steps to inform personnel about the MD and the policies in place to ensure compliance. For example, communiqués have been issued to personnel and the policies have been the subject of discussion across a range of units at NHQ and in the field to ensure awareness and compliance.

The RCMP has trained key personnel to promote an awareness and understanding of the 2017 MD and the FIRAC process. Initial training efforts have been targeted to those who play a key role in supporting the FIRAC process. For instance, training was first delivered to RCMP personnel who serve, or were about to be deployed as Liaison Officers, as they are the primary means by which the RCMP shares information with foreign law enforcement entities. This training ensures that these personnel are fully aware of their responsibilities under the MD and that only FIRAC-approved exchanges are actioned. Training was also provided to NHQ personnel who facilitate information exchange requests for RCMP field personnel. Additional efforts are underway to develop further training material and opportunities.

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