Thank you for giving me this opportunity to address the committee on this most important legislation.
I fully support the comments just made by Alex Neve and will pick up from where he left off.
My work toward achieving robust Canadian and international standards for the export of military equipment started with my time as an international security policy adviser on the staff of then foreign affairs minister Joe Clark when he was shepherding through cabinet new guidelines for Canada's military exports, which became known as the “1986 policy guidelines”. They are still in effect today and can be found in the regulations to the Export and Import Permits Act—which I'll call EIPA from now on to save time—conveniently collated in the “Export Controls Handbook”.
Let me quote the human rights criteria in those guidelines:
Under present policy guidelines set out by Cabinet in 1986, Canada closely controls the export of military items to: ...countries whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.
We had high hopes when the 1986 guidelines were established that Canada would set a global standard for responsible arms exports. Beginning in the 1990s, however, the human rights guideline became more honoured in the breach than in its observation, with more and more military equipment going to Saudi Arabia, precisely the destination the 1986 guidelines were meant to avoid. So what went wrong?
The answer is very simple and equally easy to fix. The 1986 guidelines, like other criteria in the EIPA itself, are not mandatory, but are, as the name implies, guidelines. This became painfully clear when the Federal Court considered a challenge to the $15-billion Saudi arms deal launched by McGill law professor and former MP Daniel Turp.
Before turning to that court decision, we need to consider, in addition to the policy guidelines—because they're of course not the only criteria, and they're contained in the regulations—the relevant section of EIPA itself, since Bill C-47 leaves this section almost entirely unchanged. Subsection 7(1.01) of the EIPA identifies the factors to be taken into account by the minister in deciding to issue an export permit, in addition to the guidelines I mentioned. I quote:
In deciding whether to issue a permit under subsection (1), the Minister may, in addition to any other matter that the Minister may consider,
—like the policy guidelines—
have regard to whether the goods or technology...may be used for a purpose prejudicial to...the safety or interests of the State...or...peace, security or stability in any region of the world or within any country.
The relevant language there is “may have regard to”. The language used in subsection 7(1.01) is extremely permissive, and there are no legal limits placed on the foreign minister's discretion to approve arms exports.
Now, turning to the Federal Court decision on the legality of the Saudi arms deal, in approving the six export permits in April 2016, Minister Dion, then the foreign affairs minister, relied on a memorandum prepared by officials in Global Affairs.
The memorandum acknowledged serious concerns about Saudi Arabia's human rights record; however, the memorandum affirmed that Global Affairs Canada was “not aware of any reports linking violations of civil or political rights in the kingdom with the proposed military exports.” I hasten to add that, since that statement and that ruling, which is now being appealed, ample evidence of such misuse with Canadian equipment has come forward.
The government argued that the EIPA includes guidelines and policies that “provide for strict controls over the export of goods such as [light armoured vehicles], but contain no prohibitions.” The minister's “sole obligation” is “to take into account all the relevant factors having regard to the existing legislative framework...”.
The court ruled in favour of the government—as I noted, it's under appeal now—declaring:
These factors guide the Minister. It is for him to decide how to assess them and how much weight to give to each, as long as he exercises his power in accordance with the object and in the spirit of the EIPA....
The court observed that even a “plain reading of the language chosen in the EIPA”—language not being changed by Bill C-47—“indicates that the Minister has broad discretion in issuing permits for controlled goods.”
The ruling of the court concluded:
The role of the Court is not to pass moral judgment on the Minister's decision to issue the export permits but only to make sure of the legality of such a decision. Of course, his broad discretion would have allowed him to deny the permits.
The Federal Court's judgment that the minister acted within his discretion demonstrates that the discretionary power under the EIPA is too broad and that there is a need for hard legal limits on that power. This conclusion is highly relevant in the context of Canada's planned accession to the ATT, since both the EIPA, as it now stands, and the Saudi arms deal are inconsistent with that treaty.
Let me now turn to article 7 of the Arms Trade Treaty, which reads:
If the export is not prohibited under Article 6,
—and Alex Neve has already referenced that provision that prohibits exports if you have knowledge that they're going to be used to commit genocide or other war crimes—
each exporting State Party, prior to authorization of the export of conventional arms
...shall, in an objective and non-discriminatory manner, taking into account relative factors...assess the potential that the conventional arms...would contribute to or undermine peace and security...[or] could be used to...commit or facilitate a serious violation of international humanitarian...[or] human rights law....
Here's the relevant part of the Arms Trade Treaty:
If, after conducting this assessment and considering available mitigating measures, the exporting...Party determines that there is an overriding risk of any of the negative consequences
—undermining peace and security or committing or facilitating serious violations of human rights—
the exporting...Party shall not authorize the export.
The words “shall not authorize the export” in article 7(3) of the Arms Trade Treaty must therefore be given their full and intended effect. This requires hard legal limits on the discretion of the minister of foreign affairs, limits that we left out of the original policy guidelines and limits that are absent from Bill C-47.
Again, with the Federal Court having ruled that it is currently within the discretionary power of the minister of foreign affairs to approve arms exports to countries that are undermining international peace and security or engaging in serious violations of international human rights or international or international humanitarian law, a key step in bringing Canada into line with the ATT involves placing hard limits on this discretion. If Canada is to comply with this treaty fully and truly set a global standard, the minister must be legally obligated under Canada's implementing legislation to deny exports that carry an “overriding risk” of contributing to undermining international peace and security or committing or facilitating serious violations of international human rights or international humanitarian law.
Bill C-47 contains no new provisions in the EIPA proper, the actual legislation, to limit ministerial discretion; however, as Alex Neve also alluded to, Bill C-47 proposes to amend the EIPA to “authorize the making of regulations that set out mandatory considerations that the Minister is required to take into account before issuing an export permit...”. Note that the bill does not establish any mandatory considerations; it only authorizes the making of regulations that will include them.
Even the idea of mandatory considerations at the regulatory stage, however, is misleading, since the considerations will not actually be mandatory or prohibitive, but only “mandatory...to take into account”, which is what we have right now in the EIPA and which the Federal Court has ruled does not fetter the minister's discretion in any way. This amendment does not result, therefore, in any change in the scope of the minister's discretion.
The absence of any real substance to these mandatory considerations “to take into account” renders Bill C-47 incompatible with the Arms Trade Treaty. Under article 7 of the treaty, Canada will be obligated to “assess the potential that the conventional arms...could be used to...commit...a serious violation of international human rights” and if there is an “overriding risk of any of the negative consequences”, it “shall not authorize the export”. That's the requirement under the ATT.
The legal obligation under the ATT goes far beyond the consideration of certain factors. It is an obligation to refuse permits in certain high-risk circumstances.
By leaving the decision to approve or disapprove a permit to the minister's discretion as opposed to creating hard legal limits on that discretion, Bill C-47 is, in terms of ATT implementation, a failure.
I end with a point of comparison with respect to a model law which the Government of New Zealand developed and enacted. I end with this one section, subsection 5(3) of the model ATT implementation law. It reads in part:
If on the basis of the assessment conducted under subsection (2) the Authority
—because it need not be the minister in some cases—
determines that there is a substantial risk that the conventional arms, ammunition, or parts and components: (a) would undermine peace and security; or (b) could be used to commit or facilitate: i. a serious violation of international humanitarian law; ii. a serious violation of international human rights law;... and the risk cannot be mitigated, the Authority shall refuse the application for an export licence.
The key language here is “shall refuse”, firm and binding language of the kind that is strikingly and fatally missing from Bill C-47. I associate myself with the comments that Alex Neve made about how anything to do with mandatory consideration of factors should not be in the regulations because it deprives you, the committee and other parliamentarians, from knowing and impacting on the content of those regulations.
Accordingly, the Rideau Institute recommends that hard legal limits, based on the risk assessment criteria set out in article 7 of the ATT, be imposed on the foreign affairs minister's discretionary power to approve arms exports, and that these hard legal limits be set out in a statute and not in regulations.
Thank you very much.