Avoiding complicity in mistreatment by foreign entities: Annual report 2020

Introduction

The Avoiding Complicity in Mistreatment by Foreign Entities Act (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 subsection 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 by the CBSA is presented to the Minister and covers the period of January 1, 2020 to December 31, 2020.

Background

The mandate and role of the Canada Border Services Agency

The CBSA was established by the Canada Border Services 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 Traveler 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, United Kingdom, Australia, and New Zealand). As outlined in 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, the OiC 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 has begun to develop country profiles that will reflect the security, organized crime and human rights environment in identified countries of concern. The country assessments, while primarily focused on supporting immigration screening, will be available for review by all CBSA personnel engaged in information sharing with foreign entities and will 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 CBSA country profiles will be a source for establishing a risk baseline for a particular country, as well as the particular foreign agency or department with which the CBSA shares information. This baseline will inform the mistreatment risk assessment.

Mistreatment risk assessment

The CBSA is in the process of developing a risk assessment methodology for assessing the risk of mistreatment by a foreign entity. This methodology will be based on the risk levels associated with a particular country and the associated or type of information. The higher the risk level, the higher the approval level required to disclose or make requests for information.

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 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. ACMFEA).

This process will build on and complement existing CBSA information sharing policies and procedures in order to minimize confusion between existing and new policies and procedures, as well as 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 2020 report includes OiC-related activities conducted from January 1, 2020 to December 31, 2020.

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, 2020 to December 31, 2020.

Date modified:

2021-03-11