Avoiding complicity in mistreatment by foreign entities: Annual report 2021

Introduction

The Avoiding Complicity in Mistreatment by Foreign Entities Act (ACA, or ‘the Act’) came into force on July 13, 2019. The Act authorizes, and sometimes requires, the Governor in Council to issue written directions to deputy heads 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 for information to any foreign entity 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^{Footnote 1} of an individual by a foreign entity.

On September 4, 2019, the Governor in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness (the Minister), pursuant to paragraph 3(2)(f) of the Act, issued the Order in Council (OiC) Directions for Avoiding Complicity in Mistreatment by Foreign Entities (the OiC) to the President of the Canada Border Services Agency (CBSA, or ‘the Agency’).

Every deputy head to whom directions have been issued must, before March 1 of each year, submit to the appropriate Minister a report in respect of the implementation of those directions during the previous calendar year.

This Report developed by the CBSA is presented to the Minister and covers the period from January 1, 2021 to December 31, 2021.

Background

The mandate and role of the Canada Border Services Agency

The CBSA was established by the Canada Border Services Agency Act and is an integral part of the Public Safety Portfolio. The Agency works to ensure Canada's security and prosperity by managing the access of people and goods to and from Canada. It also enforces more than 90 acts and regulations that keep our country and Canadians safe.

The Agency's legislative, regulatory and partnership responsibilities include the following^{Footnote 2}:

• administering legislation that governs the admissibility of people and goods, plants and animals into and out of Canada;
• detaining those people who may pose a threat to Canada;
• removing people who are inadmissible to Canada, including those involved in terrorism, organized crime, war crimes or crimes against humanity;
• interdicting illegal goods entering or leaving the country;
• protecting food safety, plant and animal health, and Canada's resource base;
• promoting Canadian business and economic benefits by administering trade legislation and trade agreements to meet Canada's international obligations;
• enforcing trade remedies that help protect Canadian industry from the injurious effects of dumped and subsidized imported goods;
• administering a fair and impartial redress mechanism;
• promoting Canadian interests in various international forums and with international organizations; and
• collecting applicable duties and taxes on imported goods.

Information Sharing Practices and Arrangements

The CBSA relies on information to execute its border management responsibilities safely and efficiently. The Agency collects, retains, and shares information strictly within the parameters of its border management mandate, as set out by CBSA program legislation. The CBSA’s information-sharing activities can be characterized as follows:

• The CBSA is a net consumer of information. The majority of information held by the CBSA is derived from private sector stakeholders (such as air carriers or commercial transport companies). This information is provided to the CBSA under regulatory requirements and allows the Agency to make timely, risk-based decisions on the admissibility of people and goods attempting to enter Canada. Individuals and private sector stakeholders also provide information to the CBSA when engaging in one of its ‘trusted’ programs (e.g., Trusted Traveller or Trusted Trader).
• The CBSA augments this regulatory information with information received from various partners, including public safety partners such as the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS), in order to effectively identify and manage higher-risk cases.
• The CBSA’s information-sharing with foreign entities mostly implicates the Border Five (B5) allies (i.e., the United States, the United Kingdom, Australia, and New Zealand). As outlined in the Agency’s legislative authorities, and mirrored in the CBSA’s policies and operational guidance, the CBSA only exchanges information with domestic and international partners in cases where the activity is permissible under the Customs Act or the Privacy Act. These exchanges are well-codified in various written arrangements and agreements.

Although the CBSA has numerous partnerships and manages a substantial amount of information, given the context described above, its information sharing activities are generally low-risk in terms of possible association with mistreatment.

The CBSA recognizes that one of its key responsibilities is to be a steward of the information in its control. In line with the OiC, the CBSA continues to implement measures to augment its management of information-sharing activities.

Implementation of the directions

Interdepartmental coordination

In developing its policy in support of the OiC, the CBSA has ensured that it is applying a compatible and complementary approach to that of other federal partners in terms of how it assesses risk associated with its information-sharing activities with foreign entities.

In line with this approach, the CBSA continues to be an active participant in the Public Safety-led Information-Sharing Coordination Group (ISCG). The ISCG is the primary interdepartmental forum for supporting interdepartmental collaboration and information-sharing between members as they implement the Act and the corresponding Directions.

The three primary objectives of ISCG are to:

• Establish best practices;
• Share information; and
• Coordinate the development of policy documents and responses for inter-departmental issues.

Updated policies, guidance, and procedures

The existing CBSA Policy and Operational Guidelines regarding the 2017 Ministerial Directive to the CBSA, which the 2019 OiC replaces, remain in effect and provide an interim measure for ensuring that the CBSA avoids implication in potential mistreatment as it transitions to a more formalized risk-assessment framework. Under this policy, CBSA officials must consult the Information Sharing & Collaborative Arrangements Policy (ISCAP) Unit if they are applying the Ministerial Directive to decisions regarding the disclosure of information, the making of a request for information, or specific uses of information should these activities be associated with a risk of human rights abuses.

Once finalized in 2022, the updated ACA Policy will be published on the CBSA intranet, along with any associated standard operating procedures. Together, these documents will be available for agency-wide use, and will provide both policy and operational guidance to CBSA officials. As per best practices, an awareness campaign, including formal communications regarding the release of the policy, will be carried out.

Country profiles

The CBSA maintains Serious Inadmissibility & Mistreatment Country Assessments (SIMCA) that reflect the security, organized crime and human rights environment in identified countries of concern. The country assessments, while primarily focused on supporting immigration screening, are available for review by all CBSA personnel engaged in information sharing with foreign entities and serve to inform personnel on the risk of mistreatment linked or associated with deciding to collect from, disclose to, or use information sourced from foreign entities.

The SIMCA provides the basis for the CBSA’s risk assessment process as part of its responsibilities under the ACA and related OiC.

Mistreatment risk assessment

The CBSA developed a risk assessment methodology for assessing the risk of mistreatment by a foreign country and/or entity. Risk level classifications are based on who should have access to the information and how much harm could result if the information were disclosed, exchanged, or unavailable.

The risk assessment methodology applied to CBSA information sharing activities establishes the level of the risk by simultaneously considering the level of mistreatment risk associated with a specific international entity and the sensitivity of information involved in the activity. The final risk rating is determined by cross-referencing the risk level associated with the country against the risk level associated with the type of information being shared.

Senior Management Risk Assessment Committee

High risk decisions will be referred to a Director General-level Senior Management Risk Assessment Committee (SMRAC), which will act as an objective arbiter of risk as it pertains to the sharing of information which may result in mistreatment or use of information which may have been derived from mistreatment. The SMRAC is to be convened on an as-needed basis to determine whether there exists the substantial risk of mistreatment if information is shared with a foreign entity or that there is a substantial risk that information that has been received by the CBSA from a foreign entity has been obtained as a result of mistreatment.

Where risk is deemed present, a Risk Assessment Package will be prepared. After considering the information contained within the package, the SMRAC is tasked with making one of three decisions as they pertain to the substantial risk of mistreatment:

• If the information sharing with a foreign entity will likely not lead to the mistreatment of an individual, or if the information received from an entity was likely not obtained as a result of mistreatment, the information may be shared or used;
• If the information sharing with a foreign entity may result in a substantial risk of mistreatment, or if there is a risk that the foreign entity obtained the information as a result of mistreatment, but these risks have been sufficiently mitigated, then the information may be shared or used; or
• If the information sharing with a foreign entity will likely lead to the mistreatment of an individual, or if it likely that the information received from a foreign entity was obtained as a result of mistreatment, then, the information cannot be shared or used.

The SMRAC will also be responsible for referring any decisions to the CBSA President (DM Level), as necessary, and will ensure the CBSA’s implementation of the OiC is fully compliant with associated legislation (i.e. ACA).

This process will complement existing CBSA information sharing policies and procedures in order to maximize operational efficiency while ensuring that the CBSA adheres to the requirements of the Mistreatment OiC.

Training

The CBSA provides general information-sharing training online and in-person to staff. CBSA employees regularly conducting information-sharing activities, or those whose responsibilities may bring them into information-sharing scenarios, have access to additional training on information-sharing tailored to their particular roles and responsibilities. This approach ensures that training is commensurate with any potential risk in sharing information.

Activity Report

The CBSA’s 2021 report includes OiC-related activities conducted from January 1, 2021 to December 31, 2021.

Cases of substantial risk

Restriction of arrangements

CBSA had 0 cases of restrictions being applied to any arrangement due to concerns related to mistreatment for the period January 1, 2021 to December 31, 2021.

Date modified:

2022-03-21