Bill C-47 (Historical)

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)

This enactment amends the Export and Import Permits Act to
(a) define the term “broker” and to establish a framework to control brokering that takes place in Canada and that is undertaken by Canadians outside Canada;
(b) require that the Minister take into account certain considerations
before issuing an export permit or a brokering permit;
(c) authorize the making of regulations that set out additional mandatory considerations that the Minister is required to take into account before issuing an export permit or a brokering permit;
(d) set May 31 as the date by which the Minister must table in both Houses of Parliament a report of the operations under the Act in the preceding year and a report on military exports in the preceding year;
(e) increase the maximum fine for a summary conviction offence to $250,000;
(f) replace the requirement that only countries with which Canada has an intergovernmental arrangement may be added to the Automatic Firearms Country Control List by a requirement that a country may be added to the list only on the recommendation of the Minister made after consultation with the Minister of National Defence; and
(g) add a new purpose for which an article may be added to an Export Control List.
The enactment amends the Criminal Code to include, for interception of private communications purposes, the offence of brokering in the definition of “offence” in section 183.

[The Chair, Liberal, Peter Fonseca]

Now we are on CPC-7. There is a chair's ruling on this one, on CPC-7.

The chair's ruling is that Bill C-47 amends several acts, including the Excise Act, 2001, to add inflationary adjustment clauses. The amendment seeks to establish new amounts of fines related to certain more serious alcohol offences.

As House of Commons Procedure and Practice, Third Edition, states on page 770, “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the chair, this addition is a new concept that is beyond the scope of the bill as adopted by the House at second reading; therefore, I rule the amendment inadmissible.

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

That's very interesting, because we've had a number of witnesses on both sides of this argument, but I tend to think that in a realistic world, it would happen.

On another matter, back in 2018, I think you were a witness for Bill C-47, and you described that bill as “a solution looking for a problem”. Essentially I'm probably paraphrasing what you said, but you said something to the effect that the existing regime for export permits was working well. Given the diversion that's taken place now with respect to this particular piece of equipment that wound up somehow in the Nagorno-Karabakh conflict, has your opinion changed with respect to that point?

[Jean-Christophe Boucher]

Sure. I think we've been pretty much blindsided by the Saudi weapons exports and everything, and in the grand scheme of things we haven't designed a good process to have these debates in the public sphere.

I think the 2019 bill, Bill C-47, has done a good job at moving us forward in this, but I think there are other things we could have done better to create transparency. For example, much of what we're doing right now is at Global Affairs Canada, which is not really a department that is super keen on transparency, and much of the reporting that has been done is actually terrible.

In other countries where this is done, there are requirements for quality reports. The Netherlands does this. In the Netherlands, every time they have all these quarterly reports, they actually tell you how many export permits were authorized, how many were rejected, where, how much they are worth, and all of this, which we don't have in Canada.

Also, in Canada there are different departments responsible for this—GAC, DND, ISED—which makes it really difficult to follow what people are doing.

I think there is a lot of work still to be done to create an environment where we can have this debate in the public sphere and also create an environment where the defence industry has a really good sense of what they can and can't do, and where they should go and not go. I think moving forward on this is in the interest of the Government of Canada, both to respect human rights and also to allow these companies to flourish.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you, Mr. Chair, and thank you to all of our witnesses today. We've had some technical ups and downs, but we made it.

Ms. Cianfarani, I'm going to start by piggybacking on your opening statement. On November 7, 2017, you appeared before this committee during its study of Bill C-47 on Canada's accession to the Arms Trade Treaty, the ATT. In your opening remarks then, you said:

Canada's accession to the UN ATT will further enhance our very strong defence export regime and raise the bar globally for other countries whose defence export control processes are not up to Canada's very high standards. The treaty places additional burdens on countries that export small arms and military equipment, to ensure the weapons are not diverted to third parties or misused by the actual recipients. It will also regulate the practice of brokering, where weapons are exported from one third country to another. This is in part why CADSI called on the government last year to accede to the UN ATT.

Now that we're today, after Canada's official accession to the UN ATT, which placed human rights considerations at the centre of our export control regime, can you update this committee on your organization's positions towards Canada now that we're officially part of the ATT?

[Christyn Cianfarani, President and Chief Executive Officer, Canadian Association of Defence and Security Industries]

Thank you very much for inviting me to share our views on Canada's export control system.

We presently represent over 400 Canadian firms—over the last five years, we have represented, at times, nearly 1,000 firms—that produce technologies and services for the Canadian Armed Forces and authorized foreign customers.

First off, CADSI does not advocate on behalf of individual companies, their defence procurements or their export permits, and we are not privy to the details of company-specific business pursuits. I am not able to comment on any specific transactions. I'm here to give you an industry-wide view on Canada's export control system.

Accounting for over 50% of industry revenues, exports are critical to our industry. The Canadian market is too small to sustain it, and our firms produce products that are sought around the world. For these reasons, our companies need a timely, efficient, consistent and predictable export control system with clear rules.

Unfortunately, in recent years, Canada's export control system has not met these considerations. It's now a competitive disadvantage for an industry selling into a fiercely competitive and export-intensive global market.

We believe that it is possible to have a timely, efficient, consistent and predictable export control system that also keeps Canadian-made defence products out of the hands of adversaries or regimes that use these exports to abuse human rights. We used to have such a system, and we need to get it back on track.

The export permit is the last step in a long business process. The government needs to provide companies with more information and transparency upfront as to the countries and end-users it considers high risk. We need to know where there's a low probability of export permit approval.

I shared this very message when I spoke before this committee in 2017, to express industry's support for Bill C-47 and Canada's accession to the United Nations Arms Trade Treaty. Unfortunately, according to the annual report to Parliament on military exports, Global Affairs' record in meeting its own service standards for permit approvals has steadily declined since then.

In 2017, GAC met its standard for reviewing permits of group 2 items to Canada's closest partners 96% of the time. In 2019, this fell to just over 70%. GAC's own performance target is to meet the standard of 10 days for Canada's closest partners and 40 days for other destinations 90% of the time. There are examples of export permit applications that have languished in the department for more than 500 days without a decision.

We estimate that these delays and uncertainties have cost our members hundreds of millions of dollars in lost contracts and business opportunities. Furthermore, industry's inability to tell its customers, typically other nation states, when they will receive their goods is damaging Canada's reputation as a reliable trading and security partner.

The inability to meet service standards is not attributable to Canada's accession to the UN ATT. The trend predates that. In addition, the new obligations of the UN ATT only apply to conventional weapons systems, of which Canada produces very few, nor has there been an increase in the number of defence export permit applications that could account for this problem. In fact, GAC received $13 million in budget 2017 to help implement the UN ATT.

This committee is looking at defence exports to Turkey. The 2019 temporary suspension of new export permits to this country is an example of the government's lack of transparency and poor communications with industry. The industry has been exporting to Turkey, a NATO ally, for decades. We learned of this suspension through the media, with no further information provided by the government until April 2020—six months later.

In addition, we were not told whether the suspension applied to all or some of the seven groups of controlled goods. We were not told whether it applied to all Turkish end-users or only those that posed a substantial risk, which is the legal test under the Export and Import Permits Act. Issuing a suspension is the government's prerogative, but there should also be an onus on government, the regulator, to explain exactly what those changes mean.

It's hard for companies to follow the rules when they're not told what the rules are or when the criteria are applied and not explained. I cannot emphasize how important government clarity and predictability are in this regard.

The last thing companies want is to be in violation of laws, regulations and export policies. It would be devastating to their reputations and their businesses. We need to return to a timely, efficient, consistent and predictable export control system with clear rules. Our industry depends upon it.

Thank you.

[Cesar Jaramillo]

Yes. One of the great benefits of the legislative process called Bill C-47, leading to Canada's welcome accession to the Arms Trade Treaty, was the substantial risk clause and the two words “shall not”. As a result of this inclusion of the substantial risk clause, it is not optional.

It used to be that the government had an obligation to consider certain factors, but as long as the factors were considered, the minister could basically authorize exports anywhere. Now, the minister has a legal obligation. If a human rights trigger is identified, then the minister “shall not” authorize those shipments. We are in a stronger position now, because the minister, again, has the obligation to deny certain export permits.

The extent to which this will continue to be implemented remains to be seen.

[Peggy Mason]

Thank you.

The first part of your question was with respect to comments that had been made. They were made by Justin Mohammed at Amnesty International, specifically about the fact that Bill C-47 to allow Canada to accede to the Arms Trade Treaty actually did not implement all of the obligations of the Arms Trade Treaty. I would like to turn it to him to answer that part.

With respect to the arm's-length agency, I'm making a radical proposal here in traditional terms.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you.

You talked about the need to amend domestic law with regard to the ATT. What are the amendments you think we should be making? I thought the law was specific already in keeping with the ATT, but should our domestic law be amended even further? How do we keep domestic politics out of it?

Again, one knows what happens at question period when somebody gets up and asks the question and everything becomes a political minefield and the waters get muddied as opposed to our looking clearly at our legislation and at our obligations. When you look at Bill C-47, how do we amend that? Should it be amended? What are the next steps we should take to ensure...?

You talked about an arm's-length watchdog group that is going to be clear in terms of its legal obligations, its legal arm's length, etc., and that is something that could happen. How do you escape that political minefield that occurs in the House of Commons when you take this to the House, you look at voting and then everyone plays games with it? What can one do? I am asking this question not because I'm being partisan at all, but because I do not want Canada to have its name muddied internationally with our not living up to our obligations. What should domestic legislation look like?

[Cesar Jaramillo]

The minister used to have almost full authority to authorize any and all exports to any destination regardless of the human rights record of the recipient.

Recently, as part of Bill C-47, which is the legislation that was getting Canada ready to accede to the Arms Trade Treaty, that changed in a positive way. There is something now called the substantial risk clause, whereby in the risk assessment if Global Affairs Canada determines there is a risk or misuse of a certain export, the minister not only has the option but indeed the obligation to deny such exports. We are now in a much stronger position.

As my colleague, Peggy Mason, from the Rideau Institute said, that is the law. There remains a gap between the law as written and the law as implemented. It is the implementation of the law where we see severe shortcomings.

[Stacia Loft, Articling Fellow, Amnesty International Canada]

Thank you.

Our understanding of Canada's export review process post-Bill C-47 is informed by Global Affairs Canada's final report on weapons exports to Saudi Arabia. The Minister of Foreign Affairs ordered officials to release the document earlier this year. While this exercise in transparency is to be commended, the final report displayed serious gaps in Canada's export evaluation process.

First, the final report improperly suggests that the definition of “substantial risk” should consider whether a pattern of repetitive behaviour can be identified with respect to human rights violations. This is not the correct metric under the ATT. The prospect of risk is, and that's what needs to be considered. While the pattern of repetitive behaviour could be an indicator of risk, it is not determinative of risk. It indicates a higher threshold than the treaty requires.

Second, the final report did not rely on reports authorized by human rights or civil society organizations, which have long documented Saudi human rights violations and possible violations of international and humanitarian law. It was also selective in its treatment of the UN group of eminent experts' report from 2019. Finally, the report made errors in interpreting international humanitarian law. For example, the report is dismissive of concerns about sniper rifles, saying that they are intended to support precision targeting and thus less likely to result in civilian casualties.

While a sniper rifle is a permissible means of warfare, this does not mean that the methods of their use have been compliant. A sniper rifle in the hands of someone using it to target civilians is no less an international humanitarian law violation. If this is the rigour that is applied to questions of international humanitarian law when Canada conducts arms exports, it is undoubtedly lacking.

Why does Canada need a more rigorous export control system, specifically one that fully implements the ATT? The Saudi case is illustrative. Saudi Arabia's human rights record is beyond debate. It is an established violator of human rights both domestically and internationally. These acts all raise questions. If such a record does not constitute a risk of Canadian weapons being used to commit serious international human rights and international humanitarian law violations, then what does?

In conclusion, Amnesty International offers two recommendations for the committee's consideration. I will be brief.

First, Canada should amend its domestic legislation to ensure that it is fully compliant with all of the terms of the ATT. In the interim, the Governor in Council could enact regulations that would give those obligations the force of law.

Second and finally, Canada should reassess export permits where violations of international humanitarian law, international human rights law and gender-based violence have been alleged by domestic and international investigative bodies or by human rights and civil society organizations.

I thank you.

[Justin Mohammed, Human Rights Law and Policy Campaigner, Amnesty International Canada]

Thank you, Mr. Chair.

I'd like to begin by acknowledging that I am joining the committee from unceded Algonquin territory in Ottawa, Ontario.

We would like to thank the committee for inviting us, particularly on International Human Rights Day. We wish all of the committee members a happy International Human Rights Day.

Mr. Chair, committee members, as you may know, Canada acceded to the Arms Trade Treaty, or as we will refer to it, the ATT, in September last year, after which it became binding on Canada at international law. It is an important convention that can help prevent the commission of serious international crimes, including genocide, war crimes and crimes against humanity. This is why Amnesty International has campaigned in Canada and around the world to encourage states to adopt domestic laws that fully implement its terms.

Amnesty International is encouraged by this committee's decision to study controls, protocols and policies around the granting and freezing of arms exports. However, we would respectfully remind the committee that these measures are, quite simply, not law. The starting point must be to ensure that Canada's legal framework fully implements all of its international legal obligations under the treaty.

Bill C-47, which amended the Export and Import Permits Act, or as I will refer to it, the EIPA, was introduced to implement the ATT, and it did strengthen Canada's export control regime. However, the legal and regulatory regime that it created failed to fully implement the treaty. Several civil society organizations provided written briefs about these deficiencies to the Senate foreign affairs committee in November 2018, and again when Global Affairs Canada undertook consultations to develop a regulations package to accompany Bill C-47 in April 2019.

Allow me to provide just two examples that were highlighted in those briefs. First, article 6 of the ATT contains an absolute prohibition on certain weapons transfers, such as those that violate UN Security Council arms embargoes or transfers where there is knowledge that the arms would be used to commit genocide, crimes against humanity and war crimes. The absolute prohibition on such exports does not exist in Canadian law.

Second, there are also deficiencies around the U.S. weapons export process. Through the use of a so-called general export permit, almost all U.S. weapons exports are exempted from the review mandated by article 6 and article 7 of the ATT. Such exemptions are not permissible under the treaty.

The consequences of failing to fully incorporate the ATT in Canadian law, as my colleagues will elaborate, is that Canada continues to export weapons where there are significant concerns about the possibility of their use in the commission of serious international crimes.

I'll now turn it over to my colleague, Stacia Loft, to continue our testimony.

[Rob Oliphant, Liberal, Don Valley West, ON]

I think Mr. Bergeron will be happy that the government side is supportive of this motion. I think we also had some concerns with the information we were able to get as parliamentarians. We think it's important to get this information, so we're broadly supportive of the motion.

I have a couple of concerns. I'll just speak about the motion, and I'm going to present a very modest amendment to it. I would hope that we don't redo the work that this committee did when it considered Bill C-47 in the last Parliament and made significant amendments to that, which the government accepted from the committee.

To Mr. Morantz, I think that—I haven't ever met you, Marty, good to meet you—when you raised the question of the knowledge that a country might have about exports and whether or not that should deny their being sold, that's critical to the former Bill C-47 and to the arms treaty that we had acceded to, but we've have gone farther in our own legislative requirements. I think that we may want a briefing on those amendments, which were to both the Criminal Code and another bill that I can't remember the full name of. I just don't want to get into that because I think we could spend the whole fall on work that was done last Parliament, so I think we could refer to it.

However, as I said, we are in support of this. Our one concern is the 30-day limit, and I say that not because the government particularly has a concern about it, but because there are over 20 requests now that have been made to the law clerk and parliamentary counsel. I think it could be unreasonable to get a fairly large number of documents, have them translated and have them reviewed by the law clerk so he can confirm all of that. We're not doubting that Parliament has the right to see the documents. We get that, but we just want to make sure that we have enough time for the office to do it. I believe there are only eight people in that office, and there are thousands of pages of documents that other committees have already asked for in the last couple of weeks.

I am going to suggest, Mr. Chair, if it's appropriate, I would amend the motion. It looks like this is all one sentence, so it's hard to say, but the line should say, “related to the granting of any such permits within 60 days of the adoption of this motion”, just to give all of those offices a little more time to do it so we get the work done and done well. That would be the amendment. As I said, as amended, this side of the virtual table would be in support of the motion.

Foreign Affairs

[Pamela Goldsmith-Jones, Parliamentary Secretary to the Minister of Foreign Affairs (Consular Affairs), Lib.]

Madam Speaker, human rights are central to our foreign policy. As Canadians, we value our freedom, democracy and the rights guaranteed to us by our charter. However, not everyone is as fortunate. Many people are denied the right to live their lives as they wish. This can especially be the case for women around the world, who are forced to live as second-class citizens. We are using our voices as Canadians to speak up in the defence of human rights, even when it can be very difficult to do so.

Our position on human rights, including women's rights, in Saudi Arabia is very clear. It is a position that we have advocated for in public and in private since we came to office. This dialogue is critical to international diplomacy, because it establishes a common understanding about the value we place on ourselves, on our fellow citizens and on humankind.

That is also why Canada has taken such a strong stance on the killing of journalist Jamal Khashoggi. We are gravely concerned about the involvement of the Saudi government in this extraterritorial murder. The killing of dissidents is horrific and shocking, and it cannot be allowed to go uninvestigated. Murderers cannot enjoy impunity and immunity from consequences. We have demanded a full accounting of the killing in an independent international investigation.

Canada is not alone in this matter. Under our leadership, the foreign ministers of the G7 countries have made two separate statements on Mr. Khashoggi's murder.

Canadians expect that our country's foreign policy respects our values. This is why we have committed to stronger and more vigorous arms export controls. That is why we passed Bill C-47, which will allow us to accede to the Arms Trade Treaty and also implement measures to ensure that Canadian arms exports are not used in unacceptable ways.

We have consulted on these changes with industry as well as with civil society. Canadian arms manufacturers also want to ensure that their goods are not misused abroad. The Canadian Association of Defence and Security Industries supports our accession to the Arms Trade Treaty, which puts the treaty criteria, including human rights, directly into legislation. Those were the same changes that the member opposite voted against. She and her NDP colleagues voted against including human rights and gender-based violence as considerations in our arms export system.

Unlike the NDP, we live up to our principles. We are committed to supporting our strong defence industry and the important jobs that it supports. That also includes the significant investments across Canada that we make in our industries. Our government will always support Canadian workers and industries and defend their interests at home and abroad.

Criminal Code

[Matt DeCourcey, Parliamentary Secretary to the Minister of Immigration, Refugees and Citizenship, Lib.]

Mr. Speaker, I rise to speak to Bill S-240, which is private member's business relating to trafficking in human organs.

To begin, let me clearly state that our government is entirely committed to ensuring that our criminal justice system keeps communities safe, protects victims and holds offenders to account.

Additionally, our government has a proven record over the last three plus years of presenting a solid face on the international stage as it relates to trafficking in organs, to trafficking in people and to the illicit trafficking of arms exports.

Members in this House will recall that, not too long ago, under the leadership of our foreign affairs minister, our government introduced Bill C-47, which would allow Canada to accede to the Arms Trade Treaty, to ensure that arms sold to other state entities were not going places where they could contravene international law, where they could cause all kinds of horrific things to occur. Quite frankly, we introduced that bill and we believe in the philosophy that underlies it because we understand the importance of global human rights and the equality of human dignity and ensuring that international law is upheld. We certainly share that philosophy when it comes to any and all other matters that concern trafficking and activities that occur across borders in illicit ways. That would relate as well to the trafficking of human organs.

We want to eliminate human organ trafficking around the world. That is why Canada's criminal justice system is at the forefront of these efforts. We want to stop these kinds of activities from happening abroad.

Furthermore, we certainly condemn the illegal and exploitative trade of human organs in the strongest terms, and we say that both in Canada and on the international stage. People can be sure that the officials who represent Canada at embassies and in international forums abroad share that same message, as would all members on the government side of the floor, when meeting with constituents in their home ridings, representing the government from coast to coast to coast and when travelling abroad to represent the Government of Canada and all Canadians on the international stage.

Organ transplantation and donation is governed by a comprehensive legislative framework at federal, provincial and territorial levels in encompassing health and criminal law. We are talking about significant coordination between different federal departments and agencies, which all have to work together to ensure we can guard against the trafficking of human organs. It takes cross-jurisdictional conversations as well to ensure officials at provincial and territorial levels, as well as public safety officials, ensure these sorts of things can be snuffed out and guarded against, and that this sort of trafficking is prevented as much as possible. Trafficking is prevented in drugs and human smuggling at home or when things arrive at our borders or shores.

We want to ensure we take a public health approach when we look at these sorts of things as well to ensure, first and foremost, that we look after the safety, security, health and well-being of Canadians. When we do that at home, we have the ability to share that story around the world and work with other partners on the international scene who may not have the same level of capacity Canada has to deal with these issues. It is a lesson and something we share across the world. Where we have the capacity to step up and lead, Canada always has. It has certainly been the story under this government.

We have to be aware of trafficking in human organs and other illicit goods, especially in the context of increased migration and flows of people who are on the move more so than we have seen since the end of World War II. In many cases, people are fleeing persecution. In some cases, they are fleeing gang violence and other activities that have caused them personal, physical, mental and psychological harm. Therefore, it is important we understand why people are on the move, what other illicit activities could be camouflaged with people moving around and how we guard against any trafficking at all, but certainly a proliferation of trafficking of things like human organs, persons or other illicit goods.

Another point is that the Criminal Code in Canada currently prohibits the removal of an organ without the informed consent of the donor. If we lacked that provision in our Criminal Code, think how terrible it would be to have an organ removed without one's consent. We have taken steps in our country to ensure that is not the case. It is reflected in our view that human dignity is to be upheld in all cases. Having someone's consent to have an organ removed is upheld in Canada.

With the few minutes I have left, it might be worth re-emphasizing for those who have been watching over the last few minutes how seriously we take the issue of trafficking in human organs, just like we take all matters that would have a negative or deleterious effect on the health, well-being, safety and security of Canadians or on the Canadian population.

Foreign Affairs

[Andrew Leslie, Liberal, Parliamentary Secretary to the Minister of Foreign Affairs (Canada-U.S. Relations)]

Mr. Speaker, our government is fully committed to creating a stronger and more rigorous arms export control system through Bill C-47. As the member opposite knows, the contract for those vehicles was signed in 2014, and all the major parties, including the NDP, agreed to respect that contract during the last election campaign. Canadian businesses and workers and our international partners need to know that an agreement with Canada still means something after an election.