Evolution of Rules on Information-sharing and Human Rights

1. Introduction

[Adopted from Craig Forcese, "Touching Torture with a 10-foot pole"]

By access request dated 2012, this author received (often redacted) copies of “ministerial directions” (sometimes also referred to as “ministerial directives”) issued by the minister of public safety and that official’s predecessor to both the RCMP (1950 forward) and CSIS (1984 forward). With several exceptions, the following discussion focuses on these “ministerial directions”.  In their contemporary guise, these directions are issued by the minister of public safety under provisions in both the CSIS and RCMP Acts that empowers the head of these agencies to control and manage their services, but “under the direction of the Minister”.[1]  The directions issued by the minister are binding administrative instruments, and their issuance is an act of discretion by the Minister.[2]

The compilation of documents released by the government in response to my access request was incomplete, either through omissions or redactions.[3]  However, it is possible to piece together some imperfect sense of the trajectory of these policies.

Early instruments deal with police assistance to foreign nations in the form of policy training, consultative and investigative assistance. [Ministerial Directive on Police Assistance to Foreign Nations]. A second instrument on “RCMP law enforcement agreements” with, among others, foreign agencies specifies that “[w]ith respect to the disclosure of personal information, the provisions of the Privacy Act shall be respected.” [Ministerial Directive on RCMP Law Enforcement Agreements]. A 2002 instrument on the same topic replaces earlier versions and is silent on disclosure or information-sharing. [Ministerial Directive on RCMP Agreements (2002)]

There is, therefore, no evidence of any ministerial direction on torture and information-sharing prior to 2003 – that is, prior to the period in which the question became controversial in the wake of the Maher Arar incident.  A 2003 ministerial direction governing RCMP foreign intelligence and security cooperation practices specifies that these arrangements “may be established and maintained as long as they remain compatible with Canada’s foreign policy,” including consideration of the foreign entity’s “respect for democratic or human rights.” These arrangements must “respect applicable laws and practices relating to the disclosure of personal information”. [Ministerial Direction, National Security Related Arrangements and Cooperation (2003)]

The closest equivalent document issued to CSIS and available to this author is entitled “Ministerial Direction for Operations”.  It requires the Service to “ensure adequate and consistent handling of information about Canadians when collecting, storing, sharing and disclosing information” and requires arrangements with domestic and foreign partners to “establish their purpose and obligations, including the application of privacy…legislation.” [Ministerial Direction on Operations, Annex A]

Since this document released under access law is undated and deeply redacted, it is unclear whether this direction is the one described in the annual reports of the Security Intelligence Review Committee.[4]  Specifically, in 2000-01, SIRC reported that the until-then “hodgepodge” of ministerial directions had been replaced with a single instrument “covering the entirety of CSIS operations.”[5]  Among other things, that document included requirements that “the human rights record of the country or agency concerned…be assessed” and that weighed “in any decision to enter into a co-operative relationship”.  Likewise, “the applicable laws of Canada must be respected and the arrangement must be compatible with Canada’s foreign policy”.[6]

In May 2009, the minister of public safety issued a more specific ministerial direction on CSIS information-sharing with foreign agencies.  This document provided:

“so as to avoid any complicity in the use of torture, CSIS is directed to

• not knowingly rely upon information which is derived from the use of torture, and to have in place reasonable and appropriate measures to identify information that is likely to have been derived form the use of torture;
• take all other reasonable measures to reduce the risk that any action on the part of the Service might promote or condone, or be seen to promote or condone the use of torture, including, where appropriate, the seeking of assurances when sharing information with foreign agencies.” [Ministerial Direction to the Director Canadian Security Intelligence Service: Information Sharing with Foreign Agencies]

2. CSIS Operational Policies

This author has also obtained redacted copies of CSIS’s operational policies designed to implement these ministerial directions.  By 2002, CSIS apparently completed a review of the foreign agency’s human rights record in assessing potential new foreign arrangements pursuant to the 2001 Ministerial Direction on CSIS Operations. According to the Service’s operational policies, “if there are allegations of human rights abuses, the Service always ensures to use a cautious approach when liaising with the foreign agency and closely scrutinizes the content of the information provided to, or obtained from, the foreign agency” either “in an effort to avoid instances where the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations” or “to ensure none of the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations.” [CSIS, OPS-402 Section 17 Arrangements with Foreign Governments and Institutions].

In a directive issued in November 2008, the CSIS Deputy Director of Operations described the then-extant CSIS policy on information-sharing with agencies possessing poor human rights records.  Among other things, that directive provides that: “When sharing, seeking or accepting information from a foreign agency, employees must consider the record of that agency or the country, in regard to its use of mistreatment to collect information. In this respect, employees will be expected to be familiar with human rights (HR) agency and country profiles” [CSIS, DDO Directive on Information Sharing with Agencies with Poor Human Rights Records]. Depending on this assessment, the Service employee must follow a process of approval prior to using or sharing the information.  With respect to out-bound information sharing, the risk of maltreatment might be mitigated by use of a caveat.  A sample CSIS caveat was also released under the access request and reads:

“Our service is aware that your organization might be in possession of threat related information on Canadian citizen (name of individual). As we believe (name of individual) will be present in your country, our Service recognizes the sovereign right of your government to undertake reasonable measures under the law to ensure your public safety. Should you deem some form of legal action against (name of individual) is warranted, our Service trusts that (name of individual) will be fairly treated within the accepted norms of international Conventions, that he is accorded due process under law and afforded access to Canadian diplomatic personnel if requested. Furthermore, should you be in possession of any information that originated from our service regarding (name of individual), we ask that this information not be used to support (name of individual) 's detention or prosecution without prior formal consultation with our service.”

The 2008 policy also makes clear, however, that with proper approval, information could be shared, even if the substantial risk of mistreatment could not be eliminated or significantly mitigated by a caveat.[7]  Further information on what might guide such a decision is redacted from the document.

Various accountability bodies have questioned the effectiveness of these operational policies.  In its 2004-5 annual report, the Security Intelligence Review Committee doubted CSIS could meet the human rights standards expressed in its 2002 policy.[8]  The Federal Court raised equally pressing concerns in relation to the 2008 policy.  In Majoub, Justice Blais observed that

“[t]he Service appears to rely on the experience of their employees to assess and … [filter] information that is from a country or agency with a questionable human rights record. There is no evidence that employees, trained in the art of intelligence collection, have specific expertise in assessing whether information comes from torture or not. … It is also clear from the record that the Service does not have the means to independently investigate whether the information is obtained from torture. Indeed, the evidence of [senior CSIS officer] Mr. Vrbanac suggests that the Service is ill equipped to conduct an inquiry into the provenance of information to ensure that it is not from torture.”[9]

In the result, the Service’s approach was insufficient to “ensure that all the information obtained from countries with a poor human rights record meets the admissibility criteria” of the immigration security certificate law, mentioned above.[10]