Foreign Affairs Committee on Oct. 17th, 2017

[Richard Arbeiter]

I think you're right. There are two parts of it. There's the standard bearing role, encouraging others through modelling good behaviour, and then there's the tangible support. I referred in my remarks to a financial contribution that we've made to an organization that has been working with several countries, including in Africa—I think I referred to Namibia, Ghana, and Zambia—to provide the capacity building support to bring their systems into line with the ATT.

What this means in practice is looking at legislation, regulation, their system, looking at their customs controls, looking at their border controls, and helping them to establish systems on entry and exit of the goods that they import and export to have more rigorous control over arms that are covered under the ATT.

That is not something that happens overnight. Building an effective system in parts of the world that may not have strong existing controls is a longer term process, but the ATT represents, for them, an obligation that compels certain behaviour to bring them into line and to seek, if they so choose, international assistance and the kind of capacity building support that I've outlined to strengthen their internal controls, which is all a good thing.

Among the 92 countries that are already states parties, there is a huge number that happen to be in regions of the world that are affected by conflict. This is an opportunity for them to work with partners to seek support. There is indeed a whole section in the Arms Trade Treaty around international co-operation and around the kind of assistance that can be made available to countries that are seeking to adhere to its obligations over time, so that they can build the kinds of controls that are absolutely important.

We see that as a strong benefit to not only international peace and security, but Canada's interests in international peace and security.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Saini.

Ms. Vandenbeld, go ahead, please.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you.

In paragraph 4 of article 7 of the Arms Trade Treaty, when they talk about the criteria for export permits, it explicitly says that countries will “take into account the risk of the conventional arms...being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.”

I noted, Mr. Arbeiter, that in your remarks you had mentioned that this is the first time this kind of a clause is in a treaty like this.

[Richard Arbeiter]

Yes.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Right now my understanding from Ms. Gilmour is that we have certain policies around our export controls. This particular bill, though, Bill C-47, is going to make it explicit. We will have to put that in regulation and it will be legally binding.

Given that this requirement to look at acts of gender-based violence for the first time is in the treaty, does that mean that by explicitly requiring that in regulation, we will be able to strengthen our current policies in terms of making sure that any arms we're exporting aren't going to be used against women and children?

[Wendy Gilmour]

The purpose of placing or of establishing an ability for the minister to create a regulation and to put these criteria into regulation is to make all of the criteria that are in the Arms Trade Treaty explicit and very transparent, in particular for Canadian exporters, so that they understand how their exports are going to be assessed in applying for a permit.

At present, we have export permit assessment criteria that were established by policy in 1986, and then subsequently other policy objectives were added, such as a specific reference to weapons of mass destruction and so forth.

The ATT assessment criteria expands on our existing elements and will then establish in the regulation the specific elements. We already take into account in our export permit considerations, by policy, the possibility for a risk with respect to gender-based violence, with respect to regional instability, international instability, the risk of a serious human rights violation, international humanitarian law violations, but this will make it absolutely explicit and a legally binding requirement for the minister in making decisions on export permits.

[Richard Arbeiter]

Can I simply just add to that? The government has consistently made clear it's commitment to working to prevent sexual and gender-based violence and is proactively using all of the tools available at its disposal to encourage more positive work on this issue. We're delighted that it's in the treaty, but it is only natural that we would seek in our assessment process to ensure that this consideration is taken into account in how we make decisions about the export of these weapons as well.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

If I am understanding correctly then, right now it's a matter of policy.

[Wendy Gilmour]

Yes.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Of course, our government has prioritized this in all areas of international development. This will make it not just policy; this will make it legally binding. This and any future governments would then be bound by this as opposed to just having a policy that could be more readily changed. Is that...?

[Richard Arbeiter]

That is correct.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

I know there are those who have suggested that it be done in legislation as opposed to regulation. I noted, Ms. Gilmour, that you spoke about different circumstances in the past, like after 9/11, when things evolved, and it took a very long time to change the legislation.

In areas like gender-based violence, the fact that this is the first time it's explicit in a treaty means that this may evolve as well. We could in the future want explicit mention of things like transgender rights or other things. By having it in regulation, will it make it easier to be able to evolve, add, be flexible, and adapt as our understanding of rights internationally expands?

[Robert Brookfield]

Yes, that's correct. The regulations and legislation obviously are both binding legally, but the legislation gives the authority to pass the regulations, so it gives the broad scope. This legislation, in implementing the Arms Trade Treaty, would give legislation the authority to implement at the level the ATT requires and broader, and those can be changed by regulation, the same way that sanctions law, for example, and the UN-ACT or the Special Economic Measures Act are done by regulation to allow more flexible movement.

That contrasts a policy that, as you say, has some legal effect potentially but can be changed more.... In fact, there's a legal obligation to consider exceptions to policy where there is a legal obligation to comply with regulations and legislation.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Mr. Arbeiter.

[Richard Arbeiter]

I was just going to say that the key message is that they both have force of law. Your question, I believe, was about downstream efficiencies. As Ms. Gilmour pointed out in her remarks, there are greater efficiencies in regulation than legislation. The answer is yes.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

You mentioned that, on those regulations, there would be civil society input, there would be consultation, and there would be parliamentary input. Presumably also as you go forward and as regulations adapt and expand, there would also be consideration of input through consultation for that.

[Wendy Gilmour]

It is a very important element of the regulatory process that there is a mandatory prepublication through Canada Gazette or a mandatory consultative process that allows all Canadians, anyone with a particular interest in a particular regulation, to feed into that regulatory process before it is then reconsidered and adopted by a Governor in Council.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you.

[The Chair, Liberal, Bob Nault]

Thank you very much.

Mr. O'Toole, go ahead, please.

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

Thank you very much.

I think it's important to clarify the last exchange, Ms. Gilmour, because I think I've heard several of my Liberal colleagues suggest that our export control system did not anticipate gender-based violence, ethnic cleansing, or issues like that before issuing an export permit. I did hear you say that since 1986 issues like that would be taken into consideration. Is that correct?

[Wendy Gilmour]

In 1986, the cabinet adopted a series of policy guidelines that instructed the export controls program to closely control exports with respect to certain criteria: countries of instability, countries subject to sanctions, and countries with serious human rights records.

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

Do you recall which cabinet that was?

[Wendy Gilmour]

In 1986...? It was Joe Clark who issued the press release.

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

Okay, Joe Clark.

[Wendy Gilmour]

He was foreign minister at the time. Somewhere I have a copy of his press release.