OTTAWA – A recently published report by the National Security and Intelligence Review Agency highlights the urgent need for federal agencies in Canada to improve their protocols for sharing information with foreign partners, in a manner that ensures such actions do not inadvertently lead to torture. The report emphasizes compliance with the Avoiding Complicity in Mistreatment by Foreign Entities Act, which prohibits sharing or utilizing information from foreign organizations that may pose a substantial risk of torture or mistreatment of individuals in custody abroad.
The Act permits the sharing of information if agencies can adequately assess and mitigate the associated risks. The report stresses that mitigation is essential for responsible information-sharing, although it is often challenging to implement effectively. The findings align with Canada’s international human rights obligations aimed at eradicating torture, cruel, inhuman, or degrading treatment or punishment.
The review agency's report particularly emphasizes the requirement for federal agencies to maintain detailed records that reflect their adherence to these legal mandates when making information-sharing decisions. Covering the year 2023, the report scrutinizes five cases where Canadian agencies disclosed information to foreign entities engaged in armed conflict. The agency assessed how these conflicts may have impacted the ability of Canadian organizations to minimize the risks inherent in such exchanges.
Alarmingly, the report reveals that three key federal agencies—Canadian Security Intelligence Service (CSIS), Immigration, Refugees and Citizenship Canada, and the Royal Canadian Mounted Police (RCMP)—appeared to fall short of the compliance expectations set forth in the law concerning complicity in mistreatment. Deficiencies were noted across all three agencies, particularly related to their mitigation strategies aimed at addressing the specific risks of torture and mistreatment.
For instance, CSIS was found to depend on warnings attached to shared information and assurances from recipient agencies regarding how the shared data would be utilized. The attached caveats mandated that the information should solely serve intelligence purposes, conform to international human rights law, including the Convention Against Torture, and restricted further dissemination without CSIS approval. However, the report concluded that these caveats and assurances were inadequately structured to effectively manage the risks of mistreatment.
Notably, CSIS did not respond immediately to the conclusions presented by the intelligence review agency. Alongside its findings, the report highlighted that Global Affairs Canada’s inadequate record-keeping practices hindered the review agency’s ability to evaluate compliance regarding particular cases being investigated.
Moreover, the intelligence review agency noted that the involvement of foreign entities in armed conflicts complicated Canadian agencies' obligations under the law. The practical challenges of complying with these legal requirements create significant dilemmas for Canadian agencies, especially when seeking to share information for humanitarian objectives.
In response to these findings, the spy watchdog made several recommendations aimed at reinforcing compliance and enhancing information-sharing protocols. These include the development of comprehensive mitigation plans that rigorously assess the reliability of any caveats and assurances provided. The agency also instructed CSIS, National Defence, Global Affairs Canada, Immigration, and the RCMP to undertake a comprehensive study of information-sharing practices with foreign entities operating in conflict zones.
This ensuing study aims to identify the challenges faced in applying the existing legal framework and the potential gaps therein, serving as a crucial next step towards ensuring that Canadian agencies adhere to the highest standards of human rights and ethical information-sharing practices.
