Foreign Affairs Committee on June 11th, 2012
Evidence of meeting #41 for Foreign Affairs and International Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was treaty.
A recording is available from Parliament.
On the agenda
- Habib Massoud Deputy Director, Non-Proliferation and Disarmament Division, Department of Foreign Affairs and International Trade
- Paul Galveias Senior Export Control Officer, Export Controls Division, Department of Foreign Affairs and International Trade
- Mark Fried Policy Coordinator, Oxfam Canada, and Member, Control Arms Coalition
- Hilary Homes Campaigner, International Justice, Security and Human Rights, Amnesty International, and Member, Control Arms Coalition
- Lina Holguin Policy Director, Oxfam-Québec, and Member, Control Arms Coalition
- Kenneth Epps Senior Program Officer, Project Ploughshares, and Member, Control Arms Coalition
- Steve Torino President, Canadian Shooting Sports Association
- Tony Bernardo Executive Director, Canadian Shooting Sports Association
- Solomon Friedman Lawyer, As an Individual
June 11th, 2012 / 4:45 p.m.
Solomon Friedman Lawyer, As an Individual
Good afternoon, honourable members. Thank you very much for inviting me to address you today.
My name is Solomon Friedman. I am a criminal defence lawyer in private practice in Ottawa. Although I maintain a comprehensive defence practice, a significant portion of my work is focused on firearms law, representing law-abiding hunters, target shooters, sportsmen and women, and firearms businesses in Criminal Code and related Firearms Act matters.
As the Government of Canada considers its position on the arms trade treaty, it is important that Parliament be aware of the potential domestic implications of the treaty in general, and in particular of certain more problematic provisions. I preface my remarks by simply noting that there is, as of yet, no official final draft of the treaty before this committee for consideration. Accordingly, issues highlighted today may become moot and new ones may arise. I base my comments, therefore, on the chair's text and on suggested model texts, which have been circulated by the United Nations and various NGOs, and by Canada's official policy statements concerning the proposed treaty.
In my view, there are three distinct areas of concern with regard to the proposed treaty. First, does the treaty signify a step backwards in firearms regulation and a change of direction for this government? Second, will the treaty adversely affect law-abiding gun owners and businesses by influencing domestic criminal and regulatory law and by unduly hampering law reform in Canada? Third, are certain key treaty provisions overly broad in their scope and reach?
With your kind permission, I will address each in turn.
First, the government should be careful that this treaty not signify a regression, a step backwards, in how firearms and gun owners are treated in Canada and abroad. Since 2006, the Canadian government has demonstrated a shift, exemplified in policy, regulation, and most recently legislation, in how Canadian gun owners are regulated under our law. Instead of punishing the law-abiding for the acts of the lawless, the government has consistently signalled that the regulation of firearms should target those who wilfully and unlawfully misuse firearms in a criminal manner.
It is imperative that Canada's involvement with the arms trade treaty not signify either a condemnation of responsible civilian firearms ownership or a step backwards to a time when it was thought—based on ideological speculation, not empirical evidence—that somehow the criminal misuse of guns could be addressed by more onerous and stringent regulation of law-abiding civilian gun owners, be they farmers, hunters, or target shooters.
Aside from the potential for symbolic repercussions, Parliament should be aware that international law, despite being conceived of and legislated thousands of miles away, can potentially have very real implications here at home. Of course, in Canada, unless a treaty is implemented by domestic legislation, it is not, strictly speaking, a part of Canadian law. However, courts are increasingly turning to international law, be it in the form of binding treaties or normative principles, when interpreting domestic law.
For example, a court may consider the arms trade treaty when wrestling with an unclear provision in the Firearms Act or the Criminal Code. Of course, despite Parliament's best intentions, legislators do not always say what they mean and mean what they say. For that reason, Parliament should be particularly concerned with broad, overreaching purposive clauses and preamble-like statements. If these are in conflict with our own domestic approach to regulating firearms, we do not want to put a court in the position of having to square domestic statutory interpretation with Canada's statements on the international stage.
Of course, such a discussion is, by its very nature, entirely speculative. We do not know which provisions of the Firearms Act or the Criminal Code will be litigated and require interpretation by our courts. Similarly, we do not know how a court may choose to use the arms trade treaty as the basis of statutory interpretation. Accordingly, when crafting any treaty provisions, Canada should proceed with caution.
Aside from the courtrooms of this country, the effects of the arms trade treaty may be felt in the chambers of Parliament as well. To illustrate this point, let me turn to the long-gun registry for a moment.
I had the opportunity to testify before the parliamentary committees that reviewed and ultimately passed Bill C-19, both in the House and the Senate. At both these sessions, proponents of the long-gun registry repeatedly cited Canada's international commitments in the UN and other global forums as a purported reason for maintaining the wasteful and ineffective registry.
The Chair Dean Allison
Mr. Friedman, I'll get you to slow down as well so that the interpreters can keep up. Thanks.
Lawyer, As an Individual
It is important that the government assess this treaty with an eye to not just the current state of firearms regulation in Canada but also to how the law may develop in the future. Make no mistake about it, the Firearms Act is desperately in need of rewrite, revision, and reform. Parliament should not bind itself through treaty commitments or other international instruments and thereby prevent the meaningful reform that is required to restore equity and fairness to the treatment of two million law-abiding Canadian gun owners.
Finally, I would like to point out two particularly problematic provisions that appear in numerous draft texts and proposals for the arms trade treaty.
First, it is essential that any final treaty protect Canada's sovereignty and national discretion in the regulation of civilian-owned firearms. I would therefore commend the government for the approach it has taken to propose the introduction of a paragraph acknowledging and respecting “responsible and accountable trans-national use of firearms for recreational purposes, such as sport shooting, hunting and other forms of similar lawful activities”. This is a good first step.
Also, many states have argued for a ban on firearms transfers to “non-state actors”. The use of this term is overbroad and inconsistent with Canadian domestic law. I would agree, therefore, with Canada's recent proposal that the phrase “illegal armed groups” be used instead. While no one would argue that armed guerrilla groups and insurrectionist insurgents should be denied firearms, the term “non-state actors” on its face connotes any non-government entity or individual, including, it would seem, responsible and law-abiding civilian gun owners.
In closing, I think the most important issue for this committee in considering the arms trade treaty is one of focus. It is clear that Canada should support measures that keep firearms out of the hands of those who seek to do ill, whether it is to terrorize their own people or to topple democratically elected governments.
At the same time, however, Canada must expressly recognize on the international stage, as it has done at home, that the lawful use and ownership of firearms is consistent with both international and domestic peace and security. For that reason, the arms trade treaty should not focus on compliant and law-abiding civilian gun owners. As I have seen time and time again in my firearms law practice, such an approach is ineffective, unworkable, and fundamentally unjust.
Thank you for your kind attention.
The Chair Dean Allison
Thank you, Mr. Friedman.
Members, we'll start with the first round of seven minutes. I will ask you to put your question to an individual, if that's possible, just so we can help our people with the microphones.
Mr. Saganash, the floor is yours, sir.
Romeo Saganash Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Mr. Chair. I will share my seven minutes with my two colleagues, the one on my left and the one on my right.
I would have liked to ask our witnesses a number of questions, and I thank them for being here today. My question is for the Oxfam-Québec representative, Ms. Holguin.
She said in her presentation that it was unfortunate that socio-economic development is no longer included in Canada's criteria. I think you were all here earlier when we mentioned the six criteria used for that negotiation. I would like Ms. Holguin to give us more detail about this, to clarify the connection she is establishing between these negotiations and socio-economic development, and that she describes to us how these issues could be addressed as part of the negotiations on the United Nations arms trade treaty.
Policy Director, Oxfam-Québec, and Member, Control Arms Coalition
We think that the treaty needs to take these criteria into consideration. Before a country decides to transfer weapons, it must determine whether doing so will contribute to violating human rights or international humanitarian law and hinder development, in which case, those resources should perhaps instead be put toward fighting poverty.
In an Oxfam report that will be published this week, we indicate that, in 2009-2010, fragile states have increased their military spending by 15%. Of course, they could have used those resources to send children to school, improve their health care system or feed people. The treaty's introduction indicates that there is a connection between development and armed violence, and that in the case of a transfer, the country should consider what their responsibilities are.
The effectiveness of aid is also an issue for us. It is something that is extremely important for this government. If we give aid to fragile countries and others, but they use that money to buy weapons, it doesn't make sense. In our report, we give the example of Eritrea, which used 35% of its budget to buy weapons. But 35% of that country's total budget comes from development aid. In other words, the money comes in on one side and goes out the other.
As I mentioned, I'm from Colombia. I've been in Canada for 15 years now, but I grew up there. Colombia has been in a state of conflict for 50 years. None of the children have access to education. Inequality is growing. Why? Because the Colombian government has spent a lot of money in the course of the conflict. Colombia is of enormous economic interest to Canada. So there is not only the question of how effective the aid is; there is also an economic interest. If we want companies to engage in development in Colombia, but Colombia doesn't apply any control of weapons and everyone plays by different rules, it won't work.
I hope that answers your question.
Ève Péclet La Pointe-de-l'Île, QC
My question is for Mrs. Homes.
You gave the example of Syria, which is fairly recent. Could you please give us more detail about how this treaty will mitigate international armed conflicts? Are there any other examples you could give us in this regard?
Campaigner, International Justice, Security and Human Rights, Amnesty International, and Member, Control Arms Coalition
I'm not sure I caught the end of that, but I think I understand generally what you're saying.
The other example I would give, as a contemporary example that hasn't been in the headlines in the same way Syria has, is Sudan. With the conflict in Darfur, there was a Security Council arms embargo, but it was only on the region. It wasn't on the whole of Sudan. Without going into a lot of detail, arms still were sold to Sudan and they got into Darfur, for all sorts of reasons, and to both sides in that situation. It shows the political will around the rigorousness of an arms embargo and the breadth you need to have to truly deal with an armed conflict. We just don't have enough of that to rely on it.
The other thing is that there is an increasing conflict now between Sudan and the newly independent South Sudan. Again, the international community has really struggled to deal with that through things like Security Council resolutions. There's a lot of attention on what's happening in South Sudan with the refugee flows, but not so much within Sudan. You have the government bombing two southern states, causing hundreds of thousands of people to flee, but they're bombing their own citizens.
I'm picking on the Security Council, but there is a reason for that. You would think that a state bombing its own citizens would result in some sort of Security Council condemnation, and it hasn't. And because that's where.... When I say there are few regulations, we're looking for something where there is a common standard, where people know where that bar is, and we don't have that for the arms trade. Everyone is sort of looking to a different set of rules. We're looking to establish that common set of rules so that even if not everyone has yet signed on to a treaty, the common standard exists, that norm exists, and you can use that as pressure to say, “You are falling short as a state”.
It's primarily Russia and China that have been selling to Sudan, but also Belarus. There are a number of states arming South Sudan, which is a new county being seen as a new market.
So it's to be able to bring that norm to these contexts and say, “Don't help fuel a conflict. Look at the abuses that are taking place. Look at how these weapons are being used.”
The Chair Dean Allison
Ms. Homes, that's all the time we have.
Garry Breitkreuz Yorkton—Melville, SK
Thank you, Mr. Chair.
Again I'll be sharing my time.
I have just a comment on what Ms. Homes has been saying, and I think what Mr. Bernardo was saying something very similar to—that a treaty like this probably would have very little effect on a government turning on its own citizens. I think that could be a huge problem, and I don't know that it's going to really be solved by this; I'm skeptical.
To the Canadian Shooting Sports Association, you talked about a consensus being reached in regard to this treaty that I think the U.S. asked for. That could be a real challenge. Maybe you could talk about that a little bit more. What is the American position on this ATT, and what are the positions of other countries that might be a party to it?
Both of you are familiar with the United Nations. Could you maybe talk a little bit about that?
Executive Director, Canadian Shooting Sports Association
Certainly, Mr. Breitkreuz.
The U.S. position in regard to the arms trade treaty has not been fully declared. In looking back at previous references, Ambassador Bolton testified to the United Nations last time that the United States would entertain absolutely no measures whatsoever that would impinge upon their second amendment, which is the right of citizens of the United States to keep and bear arms. So it seems that constitutionally any U.S. involvement in something where the firearms of their citizens might be regulated by an international agreement is completely a non-starter. Now, while the U.S. has not declared itself yet with regard to this particular item in the current ATT talks, the U.S. Senate has. After the last conference last summer, the U.S. Senate sent a strongly worded letter to Barack Obama signed by a majority of the senators, which stated that if civilian firearms were going to be included in the arms trade treaty, then the U.S. Senate would refuse to ratify it.
If any member would like a copy of that letter, I have a copy of it.
As for other countries around the world, I think you see countries that perhaps would be quite agreeable to the exclusion of civilian firearms, particularly with regard to their domestic regulation. In previous negotiations that have happened within the UN framework, this has been a constant bugaboo. It's been an irritant going right back to 1995 when this stuff all started. It's always been a roadblock. If there's a legitimate need or legitimate interest in going forward with a real arms trade treaty that deals with the export of military weapons into the underdeveloped areas of the world, then you have to do what you can to make that happen. In doing so, if you include the domestically regulated firearms of civilians in that mix, you're already trying to do a dance with one foot in a concrete block, and it's not going to happen.
Garry Breitkreuz Yorkton—Melville, SK
Mr. Friedman, I was interested in your testimony. I understand we could sign on to an international treaty at the United Nations without ratifying it here in Canada, and it would be binding upon us. I think I heard you say that. I would like to know how such an international treaty might affect criminal proceedings here in Canada. How would it affect law-abiding citizens here? I wasn't clear. You touched on this, yet I'm not clear as to how that works.
Lawyer, As an Individual
I'd be happy to clarify that.
In Canada, international law is formally received into domestic law through implementation by statute. That, however, is really not the end of the conversation, particularly when we look at statutory interpretation. Statutory interpretation is probably the most boring class in law school, and it has to do with how we divine the meaning of words and phrases in our legislation. Increasingly—and this is what I refer to—courts are turning to Canada's international commitments to decipher words or phrases that may appear in our own domestic legislation and that, for whatever reason, are unclear. As I said, this is a speculative process, but it's one that has happened again and again, and it has certainly gained favour in Canadian legal circles. The Supreme Court itself is engaged in this. There's nothing new or unusual about it.
I think what should be of concern to the Canadian government when considering the arms trade treaty is ensuring that, for example, when we have overarching statements of principle—let's say, for example, about how Canada ought to view the regulation of firearms, be they civilian or not—those phrases not be inadvertently transmitted and received into our domestic legislation. I pointed to the example of a judge who is trying to weigh a particular phrase in the Criminal Code—and in this case it would be something about firearms transfer, whether it be ownership, registration, or use—who would then look to the international law and say, “Well, if Canada has made this profound and overarching statement on”—let's say—“firearms control, including civilian use, then I should take a harsh or stricter interpretation.” That is precisely how it could affect law-abiding gun owners in Canada.
Ordinarily, for example, when we have an ambiguity in a Criminal Code statute, we say it's resolved in favour of the accused. If, however, there are other interpretive sources, such as international law, that give a different interpretation, that rule may not be followed.
The Chair Dean Allison
Mr. Dechert, you have all of 45 seconds left.
Garry Breitkreuz Yorkton—Melville, SK