The Avoiding Complicity in Mistreatment by Foreign Entities Act came into force in July 2019. The Act helps to manage the risk of someone being harmed or tortured by a foreign body based on information shared by the Government of Canada. As required by the Act, the Minister of Transport issued Directions to the Deputy Minister of Transport on September 4, 2019.
As required by this new regime, the Deputy Minister of Transport has delivered this annual report to the Minister of Transport and to relevant external review agencies. The report covers the roll-out of the Directions for calendar year 2020.
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Introduction
The Avoiding Complicity in Mistreatment by Foreign Entities Act 2019 (ACMFEA), aims to mitigate the risk of mistreatment of an individual which could be attributed to Government of Canada departments or agencies sharing information with foreign entities. The Minister of Transport issued Directions for Avoiding Complicity in Mistreatment by Foreign Entities to the Deputy Minister of Transport (hereinafter referred to as the 2019 Directions) in September 2019.
The 2019 Directions prohibit Transport Canada (TC) officials from disclosing information to, and requesting information from, a foreign entity if the exchange of information could result in a substantial risk of mistreatment of an individual. The 2019 Directions also prohibit certain uses of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.
Pursuant to the reporting requirements contained in the ACMFEA, the Deputy Minister of Transport hereby submits its annual report to the Honourable Omar Alghabra, Minister of Transport, covering the implementation of the Directions for calendar year 2020.
Department of Transport information sharing practices and operational governance
Background
During calendar year 2020, the 2019 Directions applied to TC aviation security activities (disclosures) pursuant to the Secure Air Travel Act (SATA), in the context of the Passenger Protect Program (PPP).
The PPP is administered by Public Safety Canada (PS) and TC (through the Aviation Security Directorate), in cooperation with several other federal Departments and Agencies. It aims to prevent individuals who could pose a threat to civil aviation or national security from boarding a plane, by working with air carriers to screen passengers travelling to, from and within Canada.
In accordance with SATA, TC currently discloses information to air carriers, which includes:
- An electronic copy of the SATA List (also referred to as Canada's “No Fly List”); and
- Any decision made by the Minister of Public Safety and Emergency Preparedness regarding the denial or allowance of transportation to a person (i.e. allow boarding, deny boarding, or further screening required).
These procedures are currently being replaced under a new enhanced program (gradually, between November 2020 and November 2022). It is anticipated that these changes will reduce ACMFEA-related risks. The new program has been made possible by recent amendments to subsection 6(2) of the Secure Air Travel Act (SATA) and the Secure Air Travel Regulations (SATR). They limit the distribution of information about individuals outside of Government channels by transferring responsibility for the screening of passenger manifests against the SATA list from airlines to TC.
Program elements include the establishment of a new PPP Operations Centre at TC headquarters (in November 2020), which is managed by the TC Aviation Security Directorate. This has enhanced TC's role in managing the SATA list:
- since November 2020, air carriers are being transitioned (in phases) to the enhanced and centralized PPP;
- by November 2022, air carriers will no longer receive electronic or physical copies of the SATA list;
- once an air carrier has fully completed its PPP testing and is certified, the Minister of Public Safety and Emergency Preparedness will withdraw the legislative exemption allowing them to use the SATA list;
- airlines must then certify that all copies of the SATA list and related information in their holdings has been destroyed and that they in compliance with relevant regulations;
- TC will then assume responsibility for screening of flight manifests (provided by air carriers up to 72 hours in advance of a flight) for matches against the SATA list; and,
- TC will continue to provide oversight of the implementation of the PPP, including taking enforcement action if an air carriers fails to comply with the regulatory requirements (e.g., checking the list properly, or failing to take a security action as directed).
Transport Canada also sits a member of the PS-chaired Passenger Protect Advisory Group which makes recommendations to the Minister of Public Safety Canada on whether or not a passenger should be prohibited to fly.
Mistreatment risk assessments
In accordance with the 2019 Directions, TC developed a corporate policy in September 2020 to highlight the department's ACMFEA-related requirements, roles and responsibilities. With respect to its role in the PPP, the TC Aviation Security Directorate ensures that ACMFEA-related risks are actively assessed, monitored and handled in accordance with these instruments. This includes monitoring and assessing arrangements with foreign entities based on a number of factors, including but not limited to human rights and risk of mistreatment.
The Department of Public Safety is coordinating the development of operational procedures for the interdepartmental community that supports the PPP. These efforts are ongoing, particularly as the program transitions to enhanced format. The TC Aviation Security Directorate is a participant in that process, and continues to refine its procedures as the PS framework matures. This will help ensure alignment and consistency across PPP partners with respect to conducting ACMFEA risk assessments.
The information provided by TC to a foreign entity in the context of PPP activities is limited and the risk of mistreatment is low. The main information shared is limited to a Ministerial Directive to deny or allow boarding, or to conduct further screening, which is a common practice under different global aviation security regimes. Information relating to why or how the determination was made is not shared with air carriers. In the 13 years the PPP has been in existence, there have been no known occurrences where an individual has been mistreated by a foreign entity following the receipt of a no-board direction.
Updating policies and procedures
As noted, the Government of Canada is currently working on implementing improvements to the PPP, where the security screening of passengers will be centralized and entirely controlled by the Government of Canada in advance of the time of departure. As the SATA List will no longer rest with the air carriers in order to implement the program, the need for foreign entities to access the SATA List will be eliminated. This will help improve the security of air travel, reduce false positives, and protect passenger privacy. It will also reduce ACMFEA-related risks, which will continue to be monitored and assessed in PPP activities. Relevant policies and procedures will be updated or adjusted as necessary during this transition.
Cases of substantial risk
During this 2020 reporting period, risk assessments conducted by the PPP did not find any cases that presented substantial risk of mistreatment by foreign entities. Accordingly, no cases were referred to the Deputy Minister for determination.