As part of Canada’s support for a stronger and more rigorous export control system, the Government deposited on June 19, 2019 its instrument of accession to the Arms Trade Treaty (ATT). Joining the ATT gives Canada an opportunity to formalize its current export control practices, while increasing the rigour and transparency of its export control regime.
Arms Trade Treaty (ATT)
The Arms Trade Treaty is an international treaty that establishes common standards for the international trade of conventional weapons and seeks to reduce illicit arms trade and human suffering. It promotes responsibility, transparency and accountability in transfers of conventional arms. Its goal is to ensure that all States have effective export control systems in place. The ATT sets broad goals but States that sign on to the Treaty have flexibility on the form and structure of their export control systems.
The ATT aims to reduce the widespread availability and misuse of weapons due to poorly regulated arms trade. These weapons are often found in areas of conflict and impact directly on security and development. The Treaty aims to ensure that all States demonstrate responsible behaviour while engaging in legitimate arms trade. By establishing effective export controls, ATT States Parties can reduce arms flows to illicit groups, such as terrorists or criminals, and ensure that their arms export are not used for improper purposes.
Canada has long been at the forefront of promoting export controls as a means to reduce the risks that can come from the trade in conventional arms. Joining the ATT is a natural step to complement Canada’s existing engagement on the responsible trade of conventional arms. It gives us greater influence to work with the international community to counter illicit trade. Joining the ATT ensures that Canada is on par with most of our international partners and allies in the G7 and NATO in contributing to the development of this essential global norm in support of the responsible trade in arms.
On April 13, 2017, the Minister of Foreign Affairs introduced Bill C-47, An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments). Bill C-47 received Royal Assent on December 13, 2018. Bill C-47 and the underlying regulations that were pre-published in the Canada Gazette Part I from March 16-April 15 2019 will come into force in late summer 2019.
The ATT explicitly recognizes “the legitimate trade and lawful ownership, and use of certain conventional arms for recreational, cultural, historical, and sporting activities, where such trade, ownership and use are permitted or protected by law”. Bill C-47, correspondingly, does not affect domestic gun control regulation and it does not apply to domestic trade in arms.
Assessment criteria and substantial risk test
Under the changes to the Export and Import Permits Act in Bill C-47 that will come into force in late summer 2019, the minister shall not issue an export or brokering permit if, after taking into account all relevant considerations, including available mitigating measures, he or she determines that there is a substantial risk that the proposed transaction would result in any of the negative consequences referred to in the ATT assessment criteria.
Bill C-47 goes beyond the ATT requirements and also includes serious acts of either gender-based violence or violence against women and children in the list of criteria the Minister must consider as part of the assessment process. There will also be circumstances where an export will not be allowed to occur on grounds deriving from Canada’s foreign, defence or national security policies.
For there to be a substantial risk, there should be a connection, based on compelling evidence, between the negative consequences and the specific goods or technology proposed for export or brokering. The minister will judge whether to issue export or brokering permits based on an assessment of all relevant information available at the time of a permit application, including the nature of the goods and their end-use, the country of destination, the record and behaviour of the stated consignee, and the possibility of unauthorized diversion, as well as various other criteria established in law and policy. Should Global Affairs Canada become aware of reliable evidence concerning violations perpetrated using Canadian-made equipment, the Minister of Foreign Affairs may suspend or cancel the associated export or brokering permits.
The assessment criteria and the risk test under the ATT apply to full-system conventional arms (as defined in Article 2 of the treaty). However, Canada will go beyond the ATT requirement and apply the ATT criteria and risk test to the assessment of applications for export permits for military and strategic goods and technology included in the Export Control List.
Article 10 of the ATT requires signatories to take measures to regulate the brokering of arms taking place under their jurisdiction. With Bill C-47, Parliament agreed to control the brokering activities of persons and organizations in Canada, and also of Canadians abroad (citizens, permanent residents and organizations).
Brokering is defined in Bill C-47 as “arranging or negotiating a transaction that relates to the movement of goods or technology included in a Brokering Control List from a foreign country to another foreign country.” The Brokering Control List regulation, which comprises all items for which a permit will be required prior to engaging in a brokering transaction, will include full-system conventional arms (as defined in Article 2 of the ATT) as well as all items listed in Group 2 (Munitions List) of the ECL, and any ECL items, including dual-use items, with a likely weapons of mass destruction end-use.
The following activities may be excluded from brokering controls: transfers between affiliates of a corporation, and transactions undertaken by Canadians abroad who are directed by their non-Canadian employer. However, these exemptions do not exist where the item being brokered is a full-system conventional arm within the scope of the ATT. Additionally, administrative and auxiliary services, such as transport, financing and insurance, among others, will not be captured by the new brokering controls. The Government is also developing a general brokering permit to streamline the authorization of brokering involving transactions to low-risk countries.
For more information about the forthcoming controls please consult the Overview of the Arms Trade Treaty regulatory implementation package, which was published to accompany public consultations on the draft regulations.
Reporting on ATT Items Exported to the United States
During the debates on Bill C-47 and ATT accession, a number of parliamentarians and civil society stakeholders asked for increased transparency in reporting on controlled exports to the United States. At the same time, industry stakeholders noted that the seamless movement of most controlled items between Canada and the United States is vital to the preservation of Canada’s close defence relationship with the U.S. and to the viability of Canada’s defence, security and aerospace industries. In response to this discussion, the Government of Canada committed to looking at ways to increase transparency while maintaining the competitiveness of Canadian businesses.
Therefore, as part of the regulatory package to implement Bill C-47, Canada is proposing a regulatory amendment that would create a new Group in the ECL (Group 9), which would list all items that fall under the scope of the ATT and impose a permit requirement to export these items to the United States (there already exists a permit requirement to export these items to all other destinations). These items are defined in Article 2 of the ATT as the following full-system conventional arms:
- battle tanks;
- armoured combat vehicles;
- large-calibre artillery systems;
- combat aircraft;
- attack helicopters;
- missiles and missile launchers; and
- small arms and light weapons when destined for police and/or military end-use.
The amendment to the ECL will be accompanied by a new General Export Permit (GEP-47: Export of Arms Trade Treaty Items to the United States). This will allow Canadian exporters to use the General Export Permit instead of applying for individual permits when exporting Group 9 items to the U.S. The GEP would require exporters to notify the Government of Canada of their intent to use the GEP and to report twice a year on any permanent exports (i.e. items that will not be returned to Canada within two years) of Group 9 items. Together these two regulatory amendments will allow Canada to increase transparency in the reporting of military exports without unduly burdening Canadian businesses.
For more information about these regulations please consult the Export Controls website.
 Under the ATT, State Parties must assess full system conventional arms against a number of specific considerations and must not issue permits when there is an “overriding” risk of any of the listed negative considerations. Overriding risk is not a term known in Canadian law. Canada will therefore be using a “substantial risk” test, which is known in Canadian law and jurisprudence.