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.

[Erin O'Toole, Conservative, Durham, ON]

This is wonderful, because this is a committee doing what it should be doing. We remember when Prime Minister Trudeau said he wanted committees to be more effective, to take in reasonable concerns. He took parliamentary secretaries off committees so they could be truly independent and bring forth reasonable concerns.

Therefore, a reasonable and modest exclusion to address concerns that even government members are trying to address in their questions would solve all concerns.

Let me pose it the other way. If the government were to oppose such a specific clause being inserted into Bill C-47, would your members take that as your concerns being ignored? Further, would your members take that as a sign that their concerns are valid, because there was no exclusion in the arms trade treaty, only mention in the preamble?

Would voting down such a reasonable clause be taken as ignoring their concerns and really fuelling the uncertainty on this area?

[Erin O'Toole, Conservative, Durham, ON]

Really, then, there's virtual agreement in Canada on all aspects of this bill, with some uncertainty with respect to the fact that specific exclusions were not provided for recreational and legal use of firearms.

We've heard from Mr. Saini, Mr. DeCourcey who is the parliamentary secretary, Mr. Sidhu, and Mr. Wrzesnewskyj. They seem to agree that supporting recreational use of firearms is legitimate within the context of Bill C-47, and that the best way to do it is with a specific exclusion.

If an exclusion is inserted into Bill C-47, would your organizations be prepared to support the full bill?

[Greg Farrant]

I want to be very clear. We do believe the ATT will affect small end-users, small legal, law-abiding firearms owners in this country, because of some of the language in the ATT.

As for what happens in other countries, it is not either the mandate of my organization or really our concern. Our concern is Canadian, in particular Ontario, firearms owners, users, hunters, recreational shooters, etc.

We believe that such language, in several articles in the ATT—and we're not suggesting that Canada should or shouldn't sign on to the ATT. What we are looking for is some level of certainty and some level of protection, if you will—I hate to use that word—within C-47 that simply ensures there are exemptions for the recreational shooting and hunting communities in this country. We think that can be achieved through a small amendment to C-47.

We're not sitting here in judgment of the entire treaty, nor are we sitting in judgment of Canada's decision to sign the treaty going forward. Certainly, we wouldn't be so arrogant as to make that overarching recommendation. We're just seeking some protections because of language in the treaty and the lack of similar protections in the bill that would offset some of the provisions in the treaty, in our view. That's simply all we're looking for here. We're not making statements about what Canada should or shouldn't do.

[Steve Torino]

I think that when Canada is affected by something, they must still be part of the treaty and they must still agree with what's been passed and implemented by the 75% majority. If not, their choice is to get out of the treaty, but up to the date that they get out of the treaty, they must still abide by the changes made. That is in the Arms Trade Treaty itself, that you must abide by the decisions as long as you are part of it. You can get out, if you don't like what's going to happen in the future, but as of at that point, you must agree with what's happening.

It's an issue. It's raising a concern to this committee that is involved with finally deciding which way C-47 will go. I thought it was necessary to bring this up to the committee.

[Greg Farrant]

I'll speak to that if I may, Mr. Chair.

I think you've just pointed out the very concern that we have. I'll grant you that if those are already in place, I understand your question, but the problem is that without exemptions in this piece of legislation, and the exemption we're asking for is a very simple one, a very straightforward one, and one that echoes what the parliamentary secretary said in his remarks during debate repeatedly, all of the articles you've just cited now have the potential, and I stress “potential”, to become something else in this country, depending on what the regulatory regime attached to Bill C-47 becomes, and we don't know what that's going to be. I'll give you an example, if I may. This is hypothetical, obviously.

If the government, through regulation, included some sort of provision for the minister at his discretion to demand, request, or whatever, certain records, that in itself would start to veer towards constituting something that we had before and do not have right now. I recognize these three articles you quoted, and one we already talked about, article 12, has language in it that is of concern in terms of inventories, in terms of the information that it requires of individuals and organizations, or “persons and organizations” as they refer to it. We remain concerned about those articles themselves without some sort of clarification in our national legislation that would address it.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I see that's your first concern which you noted, but especially in Mr. Farrant's testimony, there was a different concern that he seemed to concentrate on.

Mr. Farrant, you raised concern over the possible creation of a gun registry in Canada, notwithstanding the fact that it's been made clear by the parliamentary secretary, by the minister, by the government, publicly declared—and, in fact, you quoted the parliamentary secretary several times—where we've made it absolutely clear this is not about doing that. In fact, there's no wording that claims that.

You referenced article 12, which requires a state party to have a domestic national record-keeping system. We've had a system like that since 1947, which Mr. O'Toole referenced, since World War II. We've had a record-keeping system under the EIPA. These record-keeping obligations are familiar to all Canadians involved in the legitimate trade of arms. These are not new requirements that will be changed in any way by Bill C-47. Given those facts, and all the declarations that have been made, it's clear that the bill will do a number of things, but one of the things it will not do is create a new registry.

Do you agree?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Mr. Torino, your presentation at the start of the committee meeting concentrated on a somewhat different aspect of this bill and treaty. In the first part of your presentation, you spoke of the inclusion of brokering in Bill C-47. You called that a major amendment. You referenced the possible curtailment of exports to Canada. Are you, or have you previously been, a firearms dealer or broker?

[Erin O'Toole, Conservative, Durham, ON]

That seems like a very reasonable request under the circumstances. As you said, the concern is, and I'll quote you, Mr. Farrant, that there could be a “pseudo registry” if that certainty is not provided. The parliamentary secretary and the government like to repeat often that they're not going to return to the registry, which they now acknowledge was profoundly unfair. A small inclusion of explicit language would resolve this once and for all. I think that's a reasonable request considering a majority is going to push through Bill C-47. Rather than relying on a preamble that even legal scholars have said is not reliable to the point we'd like, explicit language with respect to an exemption for lawful use for hunters, for sport shooters, would satisfy this confusion.

I hope my friends on the government side heard your reasonable proposal and my suggestion, and we can, at the clause-by-clause stage, insert that so we can all be assured that this is going to be effective, at least from Canada's standpoint.

Some of our witnesses have said that because the big four weapons exporters around the world are not signatories, or will not abide by the treaty, our participation is merely symbolic. If we're going to be symbolic or an example to the world, we should do so in a way that eliminates concerns of lawful users of firearms.

[Erin O'Toole, Conservative, Durham, ON]

Thank you very much, Mr. Chair.

Thank you, gentlemen, for outlining some of the concerns that members of both your groups have with Bill C-47. I would describe them as very reasonable concerns, and I appreciate your expressing them in a little more detail today.

For your benefit, I will speak for a moment on where we've been so far in committee, and then I will have a few questions specific to your concerns.

First, we heard from government officials from the trade and export controls bureau that essentially Canada had one of the world's leading import and export regimes. I added to the testimony to say we've had that since the war.

They weren't able to give detail on any of the violations you were referring to, Mr. Torino. They said that they don't know of any violations in a brokering aspect or under the act as it currently stands, but they have undertaken to get that.

Ms. Gilmour who appeared said that we're already complying with 26 of the 28 elements of the ATT, and have done since long before the UN brought forward a treaty. In fact, the two elements—really there's just one, the brokering changes, and the second element is a change from policy to law. Policy has already been implemented, since the Mulroney government, and they are going to change from a policy direction into law. You could say there's really only one change being made by this legislation because there hasn't been a problem in Canada.

We recently heard from Amnesty International that they view this as not a step forward because the U.S. and mainly the large military equipment exporters around the world are not parties to this ATT.

That's why we're here today, and now we're hearing from those concerned.

Mr. Torino, you mentioned that you were involved as an adviser on the ATT from 2006 to 2014. Did Canada ask for an explicit carve-out, not in the preamble, but in the treaty itself? Did Canada advance that specific exemption for lawful firearm users, sport shooters, or hunters as part of the UN discussions on the treaty?

[Steve Torino, President, Canadian Shooting Sports Association]

Thank you, Mr. Chairman and members of this committee, for inviting me to comment on Bill C-47 , and to answer any questions I can in this regard. I would also like to present some relevant background information that may be pertinent to this bill.

I am president of the Canadian Shooting Sports Association, and I chaired the firearm advisory committee for the Liberal government from 1996 to 2006, and co-chaired the firearm advisory committee for the Conservative government from 2006 to 2014. I was also an adviser to the Canadian delegation to the United Nations on the Arms Trade Treaty and related programs from 2006 to 2014. Our association represents some 60,000 firearms owners and active target shooters.

The Arms Trade Treaty covers not only conventional arms used in conflicts, but civilian legal arms, ammunition and related parts and accessories as well. Since Bill C-47 contains amendments to the Export and Import Permits Act, allowing the accession to the Arms Trade Treaty, it should be stated that Canada is basically a nation of importers of these products, and that any amendments to current policies and practices can have an impact on this $5 billion per year industry and its clients, the end-user.

CSSA members are concerned with possible negative effects from the implementation of the Arms Trade Treaty and Bill C-47 , including a possible curtailment of exports to Canada of currently available civilian firearms, ammunition and related parts and accessories. Canada’s annual imports of civilian firearms, ammunition, parts, and accessories exceeds $400 million according to Statistics Canada. In addition, there is concern in the firearms community of a possible return to a firearm and ammunition registry, alluded to in article 12 of the treaty.

The inclusion of brokering in Bill C-47 appears to be a major amendment to the Export and Import Permits Act and the Criminal Code. To the best of our knowledge, there are no illegal brokers operating in Canada who would be affected by this amendment, and all legal brokers in our opinion are in compliance with Canadian standards. So the thought arises as to what events and subsequent consultations have occurred in this regard that would lead to this amendment.

Canada’s rules regarding the import and export of conventional arms and small arms and light weapons already exceed the ATT guidelines. Canada’s practices for export are well established. Canada’s import and export controls exceed UN treaty requirements, and are in line with those of our principal allies and partners in the major export controls regimes. It is our experience that Canada’s export controls officials are very involved in analyzing each proposed transfer.

Much of the balance of Bill C-47 seems to refer to codifying current policies and practices or creating modifications thereto.

Current world conflicts raise questions as to the efficacy of the controls in the Arms Trade Treaty, when a myriad of weapons appear in the hands of insurgents who are labelled as undesirable to peace in the affected regions. As well, the source of such weapons used in the present series of “terrorist” attacks worldwide pose similar queries.

The current Arms Trade Treaty was supposed to be passed by consensus. Yet when the consensus could not be reached in April 2013, it was passed by simple majority vote in the UN General Assembly.

In its current version, section 20 of the Arms Trade Treaty clearly states that any future changes to the treaty will be passed by a 75% majority of the states parties present for the vote. This simple majority vote by the states parties could change Canada’s current working policies, putting decisions in the hands of states parties, who, in some cases, have serious conflict issues of their own, and who could possibly interpret any proposed changes to the Arms Trade Treaty in the light of their own issues. This interpretation could, and possibly might, have some unintended and unwanted consequences for Canada, since our controls far exceed those of most states parties.

When Canada enters this treaty, and I gather it will, we would be subject to any changes made by other nations, without much say on our part in the final outcome. This can be viewed as not necessarily the best situation to maintain our decision-making abilities in a sovereign Canada.

It is our recommendation to include language in Bill C-47 that would remove the spectre of this legislation creating a future firearms registry, in keeping with the commitments of this government.

Thank you for your time and consideration.

[Greg Farrant, Manager, Government Affairs and Policy, Ontario Federation of Anglers and Hunters]

Thank you very much.

Good morning, Mr. Chair. Good morning, members of the committee.

On behalf of the Ontario Federation of Anglers and Hunters, our 100,000 members and our 740 member clubs across Ontario, thank you for affording us the opportunity to appear before you today to comment on Bill C-47.

Clearly, most reasonable people do not object to increased oversight when it comes to the export of various types of what are referred to as conventional weapons in the Arms Trade Treaty and increased vigilance as to what countries these weapons are being sent to, where they might be used to engage in acts of war, terrorism, or subjugation of their own citizens. In fact, since a large part of the bill deals with the export of these types of weapons and not importation into Canada, we have no major objections in that regard. There are, however, two or three troubling aspects regarding the importation rules and the absence of certainty in the legislation that I want to comment on very briefly today.

During second reading debate, the Parliamentary Secretary to the Minister of Foreign Affairs stated:

I would like to make it clear that Canada's accession to the Arms Trade Treaty does not and would not affect domestic ownership of firearms or Canada's domestic firearms laws and policies. The ATT would govern the import and export of conventional arms, not the trade in sporting and hunting firearms owned and used by law-abiding Canadian citizens. This government understands that this treaty will in no way affect domestic ownership of firearms.

In response to a question from the member for Red Deer—Lacombe, he responded by saying:

Let me make it clear that accession to the Arms Trade Treaty will in no way affect domestic gun ownership in this country. It will in no way put any restrictions on law-abiding Canadian citizens. It does not deal in the trade of sporting and hunting firearms.

Finally, in response to a question from one of his own colleagues, he stated:

The ATT governs the import and export of conventional arms, not the trade in sporting and hunting firearms owned and used by law-abiding Canadian citizens.

This is an important point, reinforced by the fact that the parliamentary secretary to the minister repeated the government's position on this three times.

While the ATT does contain a measure of assurance in the preamble—not the treaty itself but in the preamble—that speaks to legitimate trade, lawful ownership, and use for several purposes, there is no language in the treaty itself or in the bill that provides similar comfort, what at least one member referred to as a “greater clarity” clause. The question is why not?

If the government believes that the treaty does not impinge upon domestic ownership or use of firearms, and in the words of the parliamentary secretary, “will in no way put any restrictions on law-abiding Canadian citizens”, why wouldn't the government include wording in the bill that would provide a level of certainty for legal, law-abiding firearms owners? I have every doubt that the nation-states that are party to the ATT are predisposed to amend the treaty itself to include such wording, so why is our government reluctant to at least provide some assurances in Bill C-47 that recognize what the parliamentary secretary has said and is reflective of language in the preamble to the ATT, whether that's wording that appears in the preamble or the top hat of the bill or elsewhere?

In our view, this is a missed opportunity for the government to demonstrate clearly their conviction that the treaty is not intended to impact negatively upon that group by reaffirming this in the legislation, and we would respectfully recommend that the committee rectify this oversight.

This becomes even more important in view of the fact that we believe the treaty contains language that may indeed pose a problem for legitimate firearms owners in Canada, and in fact could impinge upon Canada's domestic firearms laws and policies contrary to the government's assurances. I would refer you to article 2 of the treaty, which outlines eight categories of conventional weapons, the last of which is small arms and light weapons. Further to this, articles 3 and 4 clearly state that the treaty also applies to ammunition used by any of those eight categories, their parts and components.

Given that the ATT refers to both persons or individuals and organizations, how could that be interpreted as not impacting on firearms owners in Canada, who may on occasion order firearms, ammunition, or parts from the United States? This is lost on me, but I would appreciate any clarification on the matter if someone can provide it. If that is not possible, it would certainly appear that the treaty does in fact impinge on legal firearms owners, but there is no accounting for this in the bill through exemption or any other means.

The second issue I will speak to briefly this morning was a source of considerable rancour during debate, namely, the contention that requirements in the ATT require nation-states to collect information, which, ipso facto, has the appearance of a new and different firearms registry. I'm not a lawyer nor do I pretend to be one, but in reading article 12(3) of the ATT, its reference to record keeping and in particular the phrase “end-users”, it certainly appears that nation-states that sign on to the treaty are encouraged to create and maintain a version of some type of registry that, in our view, has some resemblance to what went before.

This government, and indeed the Prime Minister himself, have repeatedly assured the firearms community across Canada that they have no intention of bringing back a long- gun registry, and we have taken the government at face value. However, by signing on to the ATT, which includes the criteria suggested in article 12(3), it's hard to see how this is not a variant of the former model, which is cause for much concern and calls into question earlier comments I referred to which contained assurances that lawful firearms owners would not be impacted.

However, the keeping of and retention of records by importers, exporters, firearms dealers, and end-users for defined periods of time that is referred to in the bill, without being required to turn these records over to the government on demand, is something that most in the industry already do for insurance and other purposes. This, in itself, does not constitute a registry subject to future regulations. The problem occurs when the requirements under the ATT require nation-states to keep records where individuals or end-users could be identified, and they're shared, something the ATT seems to provide for. This is problematic in terms of privacy, and problematic in that it takes on the appearance of a pseudo registry, intentionally or otherwise.

Our final concern relates to the fact that so much of the substance of this bill remains unknown. As the member for Laurier—Sainte-Marie noted in the House, the meat of the bill will be in the regulations, which are yet to come. Any legislation, not just this bill, that proposes to govern activities substantially through regulations that are unknown and unseen during debate is always of concern because, as the expression goes, the devil is in the details.

We obviously can't comment on regulations that have yet to be created or seen, but we do want to express concern over the fact that legislation is debated in a public place while regulations, which will largely govern the government's actions going forward in this area and give force to the legislation, will not be subjected to the same level of scrutiny.

Once again, Mr. Chair and members of the committee, I wish to thank you for inviting us to be part of this discussion. Thank you.

[The Chair (Hon. Robert Nault (Kenora, Lib.)), Liberal, Bob Nault]

Colleagues, we're eating up the time of our witnesses, so I would like to get started.

This study is pursuant to the order of reference of Tuesday, October 3, 2017, Bill C-47 an act to amend the Export and Import Permits Act and the Criminal Code.

Before us today, from the Canadian Shooting Sports Association, is Steve Torino, president; and from the Ontario Federation of Anglers and Hunters, Greg Farrant, manager of government affairs and policy. Welcome to the committee.

I think everyone here knows the process, so I am going to quickly turn it over to our witnesses to do their presentations. Then we'll get right into Qs and As.

Without further ado, who is going to start?

Greg, according to Steve, you're starting. The floor is yours.

[Peggy Mason]

I'd like to quickly go back to the original question to note that it's not just a matter of the strength of the end-user certificates, and so on, that the U.S. has. It's the fact that they have quite different criteria for determining whether an export should be allowed. A very obvious example is Pakistan. We haven't exported any military equipment directly to Pakistan since they tested nuclear weapons using our technology. However, the United States has no compunction in that regard. Similarly, there was recent export of fighter aircraft to Nigeria where Canada I think wouldn't agree with that.

We're surrendering. We're surrendering our judgment as to where the goods should go if the United States is not part of our implementation of the ATT.

With respect to all of article 7 being in the regulations, that's wonderful, except for the government's own description of those regulations, which is in the summary at the beginning of Bill C-47. It says:

This enactment amends the Export and Import Permits Act to (b) authorize the making of regulations that set out mandatory considerations that the Minister is required to take into account

Presumably they mean the article 7 considerations, except that is not sufficient. Under the ATT they're not just to be taken into account; they shall be applied. That's the problem. The problem is not that they're not going to list all the items in article 7 of the ATT; it's what the minister has to do with them, how his discretion is or is not fettered.

The final point with respect to regulations, because I think a very important point was brought up, is flexibility. Why do we have regulations? We want to be flexible. I would argue that the appropriate procedure would be to have what is required. We know now that the article 7 criteria are required. They're obligatory under the Arms Trade Treaty. Put those in the act, in Bill C-47, but, of course, allow for regulations to update, to refine, in all of the areas that were mentioned. That way, you have the core in the act, and then you have flexibility for adding new items as required.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

I'd be very interested to hear a comparison between the current regime and Bill C-47. It seems, if I understood correctly, that in your opinion Bill C-47 is a step back, not a step forward. Is that correct?

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Good afternoon, and thanks for appearing before the committee.

I hear that we have a 1986 policy guideline under the Joe Clark government. We have the current regime, and I am led to believe that our current regime about export and import control is quite ahead of the game on many fronts: regulations and control, and keeping things in place. Then, we have Bill C-47 and we have the ATT. My understanding from Mr. Neve is that there are 10 areas where Bill C-47 falls short in order to comply with, or at least to achieve, the satisfactory level in terms of arms control.

The whole conversation is on the effectiveness of the ATT, specifically where three out of the six major exporters of arms are not part of it. I mean, we can have all the regulations in the world, and it's nice to have the regulations, but if the main players are not in, you can say maybe 70% or 80% of the arms traded in the world are out of control.

Could you please comment on that?