Foreign Affairs Committee on Oct. 17th, 2017

[Robert Brookfield]

I'd like to highlight again that Bill C-47 amends the summary conviction maximum to be $250,000. The act will continue to allow for an unlimited amount of funds for indictable convictions. It will be up to the prosecutor and the judge to decide whether they bring it as a summary conviction or indictable offence, and then discretion will be given to the judge to decide the appropriate circumstances and what the fine or other penalties would be.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

To that point, doesn't that in fact weaken it? If you're trying to defend yourself, a lawyer would point out that, if you take a look, we have this legislation that caps fines at $250,000. That could in fact play into the argument that a fine should be closer to that amount in the most recent legislation that was passed in regard to illegal trafficking or brokerage of arms.

[Robert Brookfield]

I'm not an expert in criminal law convictions—we deal with the Export and Import Permits Act and other things—but I can say that it would be up to the prosecutor whether or not to bring an indictable offence. Presumably, if the offence was beyond the scope of the summary conviction maximum, it would be brought as an indictable offence. They would make the argument that there is a reason we brought this as an indictable offence rather than as a summary conviction, and the maximum for summary conviction could be one of the elements as to why it was appropriate to bring it as an indictable offence. Jail time could be another factor.

[Wendy Gilmour]

I think there's an important point, which I was going to reiterate.

It's not just the fine. With a summary conviction, jail time of up to one year is provided for. For an indictable offence, jail time of up to 10 years is provided for at the judge's discretion. Those are fairly significant penalties associated with a violation of the Export and Import Permits Act.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

If we have the tools in place to allow for higher fines, why, in this instance, would we not consider not limiting the fine to $250,000?

[Robert Brookfield]

Summary conviction offences, as Ms. Gilmour pointed out, in other legislation have lower caps. The whole point of a summary conviction offence is that it's intended to be for a less significant offence overall. I'm not a prosecutor, nor am I an expert in criminal law. Where that line varies would be an issue for the criminal prosecutor. The point is, if you decide that it's in the lower threshold and appropriate for summary conviction, increasing it to $250,000 gives broader scope for bigger punishment within the lower category.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Have we provided parameters and definitions of what would be considered a lower category, or the type of illegal arms trafficking that would qualify for this lower category, as opposed to a higher fine?

[Robert Brookfield]

I'm not aware of that being done in any legislation. The difference between a summary offence and an indictable offence is something that's quite common in the Criminal Code and in other criminal sanctions. It's generally a question for prosecutors, judges, and defence attorneys to argue about.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'll leave that line of questioning, although I'm still not quite sure that $250,000 is an adequate amount.

I fully support—and I think most of us here fully support—the whole concept of a rules-based international system. Could you provide us with a list of countries that is organized by volume in arms trade and that is cross-referenced with those countries that are signatories to the ATT or are in the process of ratifying and acceding to it? That can be provided at a later date.

The reason I ask for that—and I think it's quite important—is that there's this other component to it. There are countries that we're particularly worried about, whether they have an international rules-based, treaty-based system, like Russia, or whether they are gross human rights abusers, like Myanmar. In our hemisphere we're terribly worried about the situation in Venezuela. None of those countries are on this particular list. This is, I assume, a first round in trying to get as many countries as possible onto the list and to sign up.

Are we aware that there might be a second round, where we'll start...? This is the foundation for an international system that would control arms. It's still lacking teeth in many ways. Are there any plans that you could share with us—or maybe Canada can be an initiator once we've ratified—regarding a second round that would see a strengthening of the ATT system that's being put in place?

[Richard Arbeiter]

We can certainly provide a list of countries to the committee that have signed, ratified, or acceded to the Arms Trade Treaty. You are correct in identifying that there are notable exceptions to that list.

In terms of second rounds, the treaty provides for regular review of implementation among states parties. In my opening statement I talked about having another opportunity for Canada to influence export controls internationally over time, and our participation as a state party, should Canada accede, would allow us to participate in those discussions, just as we've participated in the review of other international conventions that we've signed on to.

The intent, of course, is to encourage others to also sign on over time by making the standard as universal as possible. It will take a number of years until it is actually the international standard. I can't give you a set date for a second round. This happens over time as states come to their own conclusions. Hopefully they are influenced by the model shown by Canada and other countries that have chosen to accede following the entry into force of the treaty. Certainly the review among states parties does afford that opportunity to work with partners to think about how we can encourage others to also come online.

[The Chair, Liberal, Bob Nault]

Thank you.

We'll go to Mr. Genuis, please.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

[The Chair, Liberal, Bob Nault]

We have a significant amount of time, so we'll just keep going around with five-minute rounds. Take your time.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

I'd like to clarify something. My understanding of the way the arms control system is structured—and would still be if C-47 were to pass—is that ultimately it's up to ministerial and cabinet discretion in terms of whether a particular export is allowed to go to a particular country or whether particular countries are listed. Am I correct in that understanding?

[Wendy Gilmour]

The Export and Import Permits Act is under the authority of the Minister of Foreign Affairs.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Perfect.

[Wendy Gilmour]

She has wide discretion to issue or not to issue a permit. What the Arms Trade Treaty does is to reinforce specific prohibitions that exist under Canadian law right now, for example with respect to arms embargoes that are in place further to UN Security Council action, which we implement under the United Nations Act, and others.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

That's great. Thank you.

I was looking at some of the guidelines with respect to export control, and I was reading on the Foreign Affairs website, “the Government of Canada strives to ensure that, among other policy goals, Canadian exports are not prejudicial to peace, security or stability in any region of the world or within any country.”

[Wendy Gilmour]

Yes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

The minister's making that determination, but ultimately the understanding is seeking to not undertake arms exports that are prejudicial to peace.

I wonder if you can comment on this. Maybe it's a question more for the minister, but can you comment on how the decision was arrived at that in light of the Artsakh controversy the arms export to Azerbaijan was not prejudicial to peace in the region? Do you know how that determination was arrived at?

[Wendy Gilmour]

I cannot comment on any specific export permit. Those elements are further to commercial confidentiality, because it's commercial activity on the part of Canadian companies where absence of permit....

What I can say very explicitly is that how export permit decisions are arrived at is that on receipt of an export permit application there is an assessment of the risks posed by the specific good or technology being exported, the country to which it's being exported, and the end user and the end use that the export will be put to against the range of considerations, which we have discussed already are very similar to that in policy that currently exists under article 7 of the treaty.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Can I ask, then, with respect to the particulars of the export to Azerbaijan, would there have been some kind of an effort to guarantee that that military equipment would not be used in subsequent fighting with Armenia?

[Wendy Gilmour]

I cannot comment on any specific export permit determination. When we look at an export permit application, as I said, we're assessing for risks. The likelihood that a particular Canadian good or technology is going to contribute to regional or international security would be one of the elements. If we believe there is a significant risk that something would be prejudicial to Canadian security and stability in any region of the world or within any country, which is what section 7 of the Export and Import Permits Act says at present, then we would probably recommend to the minister not to issue the permit. The ultimate decision would be that of the Minister of Foreign Affairs.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Maybe I'd observe, then, and welcome your comment on this, but it seems a little bit strange that commercial considerations are invoked to not disclose information about what is in reality a question of peace and security and international politics in terms of whether or not military equipment is used by a particular nation in the context of a conflict with another nation. It seems like a little bit of a problem of public accountability when we have stated objectives of policy not having a negative impact on peace and security, yet we have arms sales going to a country which....

We're not talking about ancient history here. Last year 350 people were killed in a four-day war or border clash, however you want to describe it, over Artsakh or Nagorno-Karabakh, again whatever you want to call it, but involving Armenia and Azerbaijan. Canada having authorized this export, it raises questions, simple questions, that I would be curious to know the answers to in terms of what kinds of assessment went on. I think there's maybe a public interest in knowing that, but I guess what you're telling me is that you're unable to comment on the particulars of that.

[Wendy Gilmour]

I cannot comment on the particulars of any individual export permit. I would say, however, that Canada remains a world leader with respect to the transparency of our military exports. We have the “Report on the Export of Military Goods from Canada”, which has been in place since 1991, that outlines Canada's authorized exports by the specific type of good and the value to particular countries over the course of the year. That provides a greater level of transparency than exists in most other countries.