Governor in Council direction to the Deputy Minister of Fisheries and Oceans: Avoiding complicity in mistreatment by foreign entities – Annual Report 2020
Table of contents
- Information sharing practices
- Operational governance
- Policies and procedures
- Interdepartmental coordination
- Mistreatment Risk Assessments (MRAs)
- Cases of substantial risk
- Annex 1: Decision Screen
- Annex 2: Governance Structure
The Avoiding Complicity in Mistreatment by Foreign Entities Act (Act) came into force on July 13, 2019, which authorized the Governor in Council (GiC) to issue Directions to the deputy heads of federal departments and agencies that conduct information sharing activities with foreign entities where there could be a substantial risk of mistreatmentFootnote 1.
On September 4, 2019, the GiC issued the Directions for Avoiding Complicity in Mistreatment by Foreign Entities (Directions) to the Deputy Minister of Fisheries and Oceans (Deputy Minister). The Directions pertain to the request and disclosure of information that would result in a substantial risk of mistreatment of an individual by a foreign entity, as well as the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity. Under the Act, the Deputy Minister must make a copy of the Directions public.
The Act requires that the Deputy Minister submit a report to the Minister of Fisheries, Oceans and the Canadian Coast Guard (Minister) before March 1 of each year with respect to the implementation of the Directions during the previous calendar year. This report covers the period from January 1, 2020 until December 31, 2020.
Information sharing practices
As Canada is surrounded by three oceans, effective relations and collaboration with international partners is essential to managing shared ocean resources. Through diplomatic relations, Canada has entered into both formal and informal arrangements and agreements on fisheries, oceans and science issues with a number of nations.
The Canadian Coast Guard (Coast Guard) participates in international information-sharing activities related to its core missions of maritime security, marine search and rescue, environmental response, the maintenance of navigation aids and pathways, and icebreaking. The Coast Guard also supports maritime security and law enforcement partners, through the provision of vessels and helicopters, vessel electronic surveillance information, and maritime expertise in the form of maritime domain awareness. For example, the Coast Guard participates in strategic information sharing protocols with its domestic and international partners, such as the Government of the United States through the Maritime Event Response Protocol / Maritime Operational Threat Response (MERP/MOTR), and the Marine Security Operations Centres (MSOCs) program under the MSOC Memorandum of Understanding.
The Conservation and Protection Directorate of the Department of Fisheries, Oceans and the Canadian Coast Guard (Department) is also represented in the MSOCs. The Department also engages in information sharing activities related to illegal, unregulated, and unreported (IUU) fisheries crime, including through participation in international platforms such as the Interpol’s Fisheries Crime Working Group (FCWG) and by monitoring compliance with the conservation and enforcement measures of various regional fisheries management organizations, such as the North Atlantic Fisheries Organization (NAFO). Information sharing is also conducted on a bilateral basis with other countries such as the United States, France, and Denmark.
The Department of Fisheries and Oceans’ conservation and protection mandate is to promote and maintain compliance with legislation, regulations and management measures implemented to achieve the conservation and sustainable use of Canada’s aquatic resources. Internationally, this mandate extends to waters outside of Canadian Fisheries Waters, that border Canadian territory, and international waters in which Canadian interests are impacted. In addition, as a responsible fishing nation, Canada has a vital role to play in the development and support of international fisheries enforcement related initiatives.
In order to support its mandate, the Department focuses on the following international engagements:
- Regional Fisheries Management Organizations (RFMOs) – the Department’s first international priority is to work within relevant RFMOs to promote and maintain compliance with international agreements. To this end, the Department works with contracting parties to ensure that agreed provisions on enforcement are fair, effective and practical, with a clear emphasis on increasing compliance (e.g. Northwest Atlantic Fisheries Organization (NAFO), North Pacific Anadromous Fish Commission (NPAFC), Western and Central Pacific Fisheries Commission (WCPFC) and International Commission for the Conservation of Atlantic Tunas (ICCAT))
- Multi-lateral and Bi-lateral – the Department strategically collaborates with international organizations (International Monitoring, Control and Surveillance Network (IMCS Network), United Nations Fisheries and Agriculture Organization (UN FAO), North Pacific Coast Guard Forum) and States (France, Denmark, United States) to advance Canadian international enforcement objectives. This engagement contributes to global efforts to combat illegal, unreported and unregulated (IUU) fishing activity and protecting aquatic resources and ecosystems important to Canada
The Department’s exchange of enforcement related information is governed through treaty (The Convention on Cooperation in the Northwest Atlantic Fisheries, Canada-US Treaty on Mutual Legal Assistance in Criminal Matters, Port State Measures Agreement (PSMA)), legislation (Coastal Fisheries Protection Act (CFPA), Privacy Act) and MOU between enforcement organizations (Canada-Greenland reciprocal VMS arrangement, Canada-Russia MOU).
The Department internally reviews information in advance of exchange with foreign entities to assess risk and ensure adherence to established governance frameworks. In cases of sensitive or higher risk holdings, the Department engages internally and enlists external expertise, such as that available at the Department of Justice and Global Affairs Canada. While there is no central repository for information that is exchanged under the various departmental engagements, the department maintains records of all exchanges, whether through formal RFMO processes, or tracked by subject matter experts, within the organization.
The Department’s National Fisheries Intelligence Service (NFIS) is engaged internationally, but has yet to start sharing intelligence products with state and non-state actors. In the foreseeable future, it is believed that NFIS will not be engaged in intelligence sharing activities with foreign entities where there could be a substantial risk of mistreatment. Should the situation arise whereby there is any indication of the contrary, the Department is ready to implement the framework to ensure that proper protocols and caveats are put into place.
The Department in concert with the Coast Guard, is represented in the MSOC program, governed under the MSOC MOU, and supports maritime security and law enforcement partners and objectives, through the provision of Monitor Control and Surveillance gathered information (aerial surveillance, patrol vessel surveillance, Vessel Monitoring System), and enforcement expertise.
As required by the Directions, the Deputy Minister has implemented measures to ensure that decisions to conduct information sharing activities when there is a substantial risk of mistreatment, or use information likely to have been obtained through mistreatment, are appropriately assessed and that determinations are made based on the best available information and with the appropriate level of accountability. The measures which the Deputy Minister has implemented include a governance and reporting structure, an internal review committee (IRC), and a decision screen which collectively ensure compliance with the Directions.
Policies and procedures
In practice, the Directions are operationalized by officials who are directly involved in information exchange activities with foreign entities. When information is shared with or received from foreign entities, or when information received from a foreign entity is to be used, the first level of assessment occurs with the departmental official sharing or receiving the information. Under the Department’s policies and procedures, a matter should be referred to the IRC if:
- Departmental officials determine that there is a substantial risk of mistreatment of an individual by a foreign entity and the risk cannot be mitigated
- Departmental officials are unable to determine if there is a substantial risk of mistreatment and/or are unable to identify sufficient risk mitigation measures
The IRC is comprised of a number of senior departmental officials with a mandate to ensure that matters referred to the IRC are assessed on a case-by-case basis. The latest relevant information is used to produce a comprehensive and well-substantiated risk assessment decision. This process determines which cases meet the threshold for further escalation to the Deputy Minister for decision. The Department’s measures and procedures will be periodically reviewed to ensure that they remain relevant and continue to serve their intended purpose. Given there were no reported cases of invoking the Directions under the Act during the last review period, no amendments have been made to the Department’s measures and procedures to date.
The Department continues to participate in the Information Sharing Coordination Group (ISCG). This forum assists departments and agencies subject to GiC Directions in establishing best practices to effectively implement the requirements of the Directions, such as the requirement to report annually.
The Department’s periodic review of the measures and procedures will be informed by continued engagement with review bodies, as well as through continued consultations with other federal government partners, including through participation in the ISCG.
Mistreatment Risk Assessments (MRAs)
The Department continues to leverage Global Affairs Canada’s country risk assessments and will incorporate information provided through both government sources and non-governmental organizations. Departmental officials will continue to assess the risk of mistreatment that would result from an information sharing activity with a foreign entity, considering the likelihood that action may be taken against an individual, and the potential overall impact of any such action. This approach ensures that the assessment of risk across all federal departments and agencies subject to GiC Directions is consistent.
Cases of substantial risk
The following section outlines, by category of activity, any cases that the Department identified as presenting a substantial risk of mistreatment pursuant to the Directions for the period from January 1, 2020 to December 31, 2020:
- Disclosures of information
The Department had no cases.
- Requests for information
The Department had no cases.
- Use of information
The Department had no cases.
Annex 1: Decision Screen
On this slide there is a chart that is made of bubbles that are linked together by arrows. The chart describes how sector-level actors receive or make requests, conduct reviews and analysis related to information sharing. It also describes how senior-level actors review, analyze, and recommend a course of action to the Deputy Minister. A recommendation to the Deputy Minister is only made when there is a substantial risk of mistreatment.
The top bubble contains the following text: “Information sharing or receiving activity”. The first question asked is whether there is a human rights risk involved in the information sharing or receiving activity. The chart indicates that “Global Affairs Canada” provides a country risk profile in order to determine whether there is a human rights risk. If there is no human rights risk, the information can be released or received. If there is a human rights risk, we follow the arrow to the bubble below which asks whether there is a “Substantial risk of mistreatment?”. The chart indicates that the “RCMP, CSIS, GAC, TC, IRCC, etc.” make the operational determination of whether there is a substantial risk of mistreatment. If the answer to that question is “No”, the information can be released or received. If the answer is “Yes”, the information goes to an “Internal Review Committee”. DFO and CCG bulk data screening provide an evaluation of data sharing through a Memoranda of Understanding. The information then goes to Senior Management before a decision is made by the Deputy Minister.
Annex 2: Governance Structure
On this slide there is pyramid-shaped chart with a description of each level of the governance structure.
The bottom level of the pyramid is represented by the Foreign Entity. There can be a request for information or a disclosure of information involved.
The level above is represented by the Receiving or Distributing Sector. This sector:
- Tracks their information-sharing activities with foreign entities
- Carries out initial assessment of mistreatment risk
- Makes determination to receive, release, or use information if there is no substantial risk of mistreatment
The level above is represented by the Internal Review Committee. Permanent members: DG-level from Strategic Policy and Priorities, Coast Guard Operations, Conservation and Protection, and International and Intergovernmental Affairs. Ad-hoc subject-specific members (e.g. Science or a region) on a case-by-case basis. Justice will sit on the Committee and provide legal advice as required. The Internal Review Committee:
- Reviews and evaluates cases where there is a substantial risk of mistreatment and provides a recommendation to the DM
- Identifies and considers any treaty or legal obligations pertaining to this information-sharing activity
The level above is represented by Senior Management:
- Memoranda for decision to the DM on high-risk cases will require ADM approval from Strategic Policy, ADMs from implicated sectors, and the Commissioner for activities related to the Coast Guard
- In cases where decisions need to be made in “real-time”, the DM will be briefed by senior management from Strategic Policy and any other implicated sectors
The top level of the pyramid is represented by the DM:
- Each DM decision must be reported to the Minister, NSICOP, and NSIRA
- DM must submit an annual report to the Minister before March 1 of each year. The Minister must provide a copy to NSICOP and NSIRA
- The DM must make an unclassified version of the annual report available to the public
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