Spy watchdog raps RCMP over application of protocol to avoid complicity in torture

A federal spy watchdog says a senior RCMP official wrongly considered the importance of a strategic relationship with a foreign organization when deciding whether sharing information posed a risk of torture.

The aim of the Avoiding Complicity in Mistreatment by Foreign Entities Act is to prevent the brutalization of someone in overseas custody due to the information Canada exchanges with agencies abroad.

The RCMP and other federal agencies subject to these provisions must assess the risk of mistreatment and decide whether a risk can be managed.

In a report released Thursday, the National Security and Intelligence Review Agency (NSIRA) strongly cautions against including other considerations, such as fostering strategic relationships, in the assessment of substantial risk.

The intelligence review agency recommended that in cases where an RCMP assistant commissioner disagrees with a committee's recommendation not to share information, the case be automatically referred to the force's commissioner.

The heavily redacted report, the review agency's latest to examine the anti-torture protocol, covers the calendar year 2021.

The watchdog found the RCMP had "a robust framework" in place for the triage and processing of cases pertaining to the law aimed at avoiding complicity.

However, it raised pointed concerns about one case handled by the RCMP's foreign information risk advisory committee, an advisory body to senior management.

Details of the case, including the foreign entity involved, were stripped from the version of the report made public Thursday.

The committee concluded that there was a substantial risk of mistreatment should certain personal information be shared, and said the risk could not be managed by caveats and assurances.

As a result, the committee recommended that the information not be exchanged. It suggested exploration of additional options to reduce the potential risk of torture, so that members could reconsider the case.

RCMP official rejects recommendation

However, an assistant RCMP commissioner rejected the committee's recommendation and "allowed the sharing of information," the review agency report says.

The assistant commissioner reasoned, in part, that the RCMP should consider the consequences of not sharing, as this would be detrimental for the relationship, adding that "engagement ... will give insight and influence."

Ultimately, the senior official decided the risk could be mitigated, despite the committee's view to the contrary.

However, federal instructions for implementing the law clearly state that when officials are unable to determine whether the risk can be managed adequately, the matter must go to the RCMP commissioner for a final say.

The intelligence review agency concluded that "this case should have been elevated to the Commissioner for determination."

In a response included with the report, the RCMP disagreed with the call to automatically refer such cases to the commissioner, saying the intelligence review agency had "misinterpreted the roles and responsibilities" of the assistant commissioner with respect to the process.

The RCMP agreed that the decision to share information "should not include external objectives."

But the force added that for the assessment of substantial risk, these external objectives, such as relationship-building, "have been, and will continue to be, important in the totality of the information being considered."

The review agency also found that the RCMP did not have a centralized system of documenting assurances and did not regularly monitor and update the assessment of the reliability of assurances.

In addition, the watchdog notes the Mounties had not developed mechanisms to update country and entity profiles in a timely manner. "In many cases these assessments are more than four years old and are heavily dependent on an aggregation of open source reporting."

In its response, the RCMP said the force "has an established centralized system in place to track caveats and assurances provided by foreign entities."

The RCMP's record management system is where information from any follow-ups conducted with foreign entities — including any concerns about non-compliance with caveats and assurances — is included in respective operational files, the force added.