Foreign Affairs Committee on Nov. 2nd, 2017

[The Chair, Liberal, Bob Nault]

Mr. DeCourcey, we'll have to wrap it up. I'm sorry.

[Greg Farrant]

I didn't mean to go off on a tangent there. I apologize.

[The Chair, Liberal, Bob Nault]

That's okay. We all have strong views.

Mr. Torino, I want you to wrap up as we finish off this part with the witnesses. Do you want to say a few words? Then I'll wrap up.

[Steve Torino]

Thank you, Mr. Chairman.

I would like to reiterate that, in our opinion, Canada's rules and regulations, as I mentioned in the presentation, far exceed those of most other countries. We're at the top of the list. Also, as has been said in this committee before, we've had them for many years.

If it's simply codifying the rules and regulations presently in place, nothing is going to change in that regard; however, the concerns raised about a possible registry and about a possible effect on what comes into the country for the lawful firearms community I think still stand. In terms of any type of amendment and any type of inclusion of some sort of legislation that would guarantee or at least rectify the situation for the concerns that have been presented so far, we'd like to know that, if possible.

Thanks very much to you and the members of this committee.

[The Chair, Liberal, Bob Nault]

Mr. Torino and Mr. Farrant, on behalf of the committee, I want to thank you very much. Many of us who are gun owners are very interested in this subject. I think I'm the only person around this table who was here when Bill C-68 went through, and I remember it very well. It's a discussion that needs to be had whenever there's a perception that maybe the unintended consequences of a piece of legislation need to be clarified. I appreciate very much your bringing this forward. We're looking forward to further discussions with witnesses, and we'll see where the committee goes from there.

Thank you very much.

Colleagues, we're going to take a short break, and then we'll start with our next witnesses.

[The Chair, Liberal, Bob Nault]

Colleagues, I'd like to bring this meeting back to order.

Before us in the second hour, from Project Ploughshares, we have Cesar Jaramillo, executive director; and from Oxfam, we have Martin Butcher, policy adviser on arms and conflict. He's on video conference.

I'm not sure if there's been a decision on who will go first. Why don't we start with Mr. Butcher and see if the system works. There are days when it doesn't work the way it's supposed to, so I might as well find out right off the bat if we can hear Mr. Butcher. That would be a good way to proceed.

The floor is yours, Mr. Butcher, and hopefully we will hear you loud and clear.

[Martin Butcher, Policy Advisor on Arms and Conflict, Oxfam]

Good afternoon. Thank you very much for the invitation. It's an honour.

The protection of civilians, the achievement of sustainable socio-economic development, and the reduction of humanitarian harm in conflict all necessitate preventing irresponsible arms transfers. This is why Oxfam supported the negotiation of the Arms Trade Treaty and now supports universalization and robust implementation of the treaty with a view to reducing human suffering.

For Oxfam, it is important that all states that have not yet done so should become party to the treaty and incorporate it into national legislation. We therefore welcome the Canadian commitment to accede to the treaty.

States parties must strictly comply with the Arms Trade Treaty, which can help protect civilians in even the most difficult situations by placing international humanitarian and human rights law at the centre of arms transfer decisions, giving only secondary concern to commercial considerations.

At the heart of the national implementation of the ATT are the criteria against which the risks associated with each arms transfer will be judged. For Oxfam, it is important that governments follow a process of thorough risk assessment and then explicit decision on whether or not to authorize transfer for all potential transfers, in line with treaty obligations. This can be done using a number of different instruments.

For example, within the EU, arms transfers are subject to the intra-community transfers directive, a lighter touch regulation, which takes account of the economic integration of the EU and the non-sensitive nature of most intra-EU arms trading.

For wider transfers, the U.K., for example, has a system of open licensing where, in cases where the combination of equipment and destination is considered less sensitive, multiple deliveries are permitted under a single licence. Companies using such licences are required to keep careful records and are subject to audit upon demand by government. While we do have concerns in some cases regarding what the U.K. government considers “less sensitive”, this does show that it is possible to provide for risk assessment and licensing of arms sent to all destinations, in accord with the obligations of the ATT. This is also vital with regard to transparency and reporting, essential components of ATT effectiveness.

Also important is that the scope of the criteria is broad enough for robust treaty implementation. Oxfam urges Canada to look to good models for criteria and to apply them widely. The EU criteria for risk assessment, detailed in the 2008 “common position on arms exports” and incorporated into U.K. law as the “consolidated criteria”, are a good starting point for effective implementation of the risk assessment before granting an arms export licence, as required by the ATT.

All 28 EU member states use this system for evaluating arms export risk—a quarter of current ATT states parties. The criteria considered whether the proposed export would: contravene the U.K.'s international commitments; be used for internal repression or where there is a risk of serious violations of IHL, international human rights law, including gender-based violence; provoke or prolong armed conflicts or aggravate existing tensions in the destination country; be used aggressively against another country; adversely affect the national security of the U.K. or allies; be diverted or re-exported under undesirable conditions; seriously undermine the economy; or seriously hamper the sustainable development of the recipient country.

Noteworthy in this regard is that Canada has in fact formally aligned itself to this EU common position, which means that in theory it should already be applying these criteria. It would be interesting to know what alignment means in practice for Canada at this point.

Even excellent language in national law and regulation is insufficient if a government lacks the political will to properly implement the treaty and is not held to account by Parliament and the courts. The U.K. is of interest here again, with the High Court recently endorsing parliamentary scrutiny as a vital part of an effective strategic exports control system.

Oversight of arms sales is a job for Parliament. This has been the case in the U.K. for the last 20 years or so.

The 1996 Scott report into the arms to Iraq scandal noted that a well-informed Parliament has a critical role to play in preventing executive excess. This was confirmed by the recent High Court decision in the judicial review brought by the Campaign Against Arms Trade on arms to Saudi Arabia, which, although subject to appeal, found in favour of the government, with the court extremely reluctant to overrule the government when it comes to licensing decisions, and that this is much better a job for the legislature in general and the Committees on Arms Export Controls in particular. They said:

...the role of the Court can properly take into account that there is an expectation, consistent with democratic values, that a person charged with making assessments of this kind should be politically responsible for them.... [M]inisters have appeared before the Parliamentary Committees on Arms Export Controls and the All-Parliamentary Group on Yemen; ministers have also spoken in parliamentary debates on Yemen, made oral and written statements, responded to urgent questions, and answered a wide range of parliamentary questions and ministerial correspondence. The seriousness of the case of arms supplies to Saudi Arabia during the Yemen conflict underlines that parliamentary scrutiny is most necessary in the most difficult cases. Where UK-supplied arms are being used...by armed forces who lack the necessary training,... targeting capabilities [and self-analysis], the role of Parliament is vital.

Oxfam, therefore, recommends that the Canadian Parliament establish an appropriate committee structure for the scrutiny of government arms transfer policy and practice.

In conclusion, from Oxfam's perspective as an organization dealing with the human consequences of irresponsibly and illicitly traded arms, it is essential that Canada provide for transparent licensing of all arms exports in a robust manner, and for parliamentary scrutiny of that system.

Thank you very much.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Butcher. We heard you loud and clear, which is great.

Mr. Jaramillo, you are next. The floor is yours.

[Cesar Jaramillo, Executive Director, Project Ploughshares]

Thank you, Chair.

Good afternoon. My name is Cesar Jaramillo. I am the executive director of Project Ploughshares. Thank you very much to all members of the committee for the kind invitation to address you.

I've given a title to my brief remarks, which is “Bill C-47: if left unchanged, Canada will not meet ATT obligations”.

For decades, efforts to better regulate illicit or irresponsible arms exports and to strengthen military export controls have been a key focus of the activities of Project Ploughshares. We were strong advocates of the landmark international Arms Trade Treaty long before its adoption and have since underscored the importance of full compliance as the ultimate measure of the treaty's effectiveness.

We were greatly encouraged by Canada's decision to join the Arms Trade Treaty after a highly conspicuous absence and we have engaged in a constructive spirit with colleagues at Global Affairs Canada on this important file. However, while our desire to see Canada become a fully compliant state party to the treaty has not changed, our expert assessment is that the proposed legislation, Bill C-47, would not enable Canada to meet the requirements and expectations of the Arms Trade Treaty.

We have profound concerns about substantial shortcomings of the bill that make it impossible for us to recommend it before this committee. For absolute clarity, we cannot and we do not support Bill C-47 in its current form. This is a position that is shared by a host of Canadian groups from the disarmament, human rights, and development fields, some of which have testified before the committee on this very issue.

Before I address some of our major concerns about the bill, I would like to underscore the singular importance of this opportunity to review Canada's military export controls regime. It is a rare occurrence that may not happen again in years, if not decades. As such, we encourage all stakeholders, including members of this committee, to seek strong, effective legislation for Canadian arms exports that is truly in line with modern expectations of rigour, accountability, and transparency in the global arms trade, including, of course, full compliance with the Arms Trade Treaty.

A key concern about the proposed legislation is that it does not address the exemptions that have long been afforded to Canadian military exports to the United States. Under current practice, which has been left unchanged by Bill C-47, Canadian military exports to the United States are exempted from licensing and reporting requirements applicable to every other destination. These exemptions are utterly incompatible with the letter and the spirit of the Arms Trade Treaty. Even though we have long considered such an arrangement with the United States to be problematic and contrary to the expectations of transparency around Canada's arms exports, this loophole has become especially egregious as Canada readies to accede to the Arms Trade Treaty. We are aware that the position of Global Affairs Canada is that the exceptions granted to U.S.-bound exports are consistent with the Arms Trade Treaty. For several reasons, we must express our disagreement with this view.

In its first article, the Arms Trade Treaty calls for the highest possible common international standards. To be sure, there are two interrelated and equally important elements to this requirement—highest possible international standards and common international standards—yet the arrangement with the United States neither constitutes the highest possible standard nor is it common to the standards applied to others. Likewise, article 2 of the ATT is explicit about its applicability to all military exports covered under the treaty. Article 5 calls for the treaty to be implemented in “a consistent, objective and non-discriminatory manner”. We find it hard to see how “all” could be interpreted to mean anything other than the totality of Canadian exports, including those destined for the United States. Further, the unique treatment afforded to the United States is out of line with the expectations of consistency, objectivity, and non-discrimination specified in article 5.

Such exemptions would be incompatible with Arms Trade Treaty obligations regardless of the recipient. In the case of the United States, they are especially suspect. The United States is the largest exporter of weapons and military equipment in the world, and as such, Canadian components to the U.S. can be incorporated into systems in the United States and then exported to third parties without requiring further authorization from Canada.

The United States is also the largest recipient of Canadian military goods by far. Project Ploughshares estimates that Canada exports military goods worth as much as $2 billion to the United States annually, typically more than half of all of our total military exports. Therefore, with Bill C-47 in its current form, the majority of Canadian military exports will neither be reported nor require export permits, even after Canada joins the Arms Trade Treaty.

Critically, the United States is not an Arms Trade Treaty state party and is not expected to become one in the foreseeable future. Canada, on the other hand, will soon be a state party and the expectation is that all its arms export regulations will be consistent with the provisions of the treaty, including those related to licensing and reporting obligations.

Further, a widely shared goal of state parties is the universalization of the Arms Trade Treaty. It is hard to see how Canada can contribute to that objective when it offers laxer conditions to a non-state party than it does to those states that have agreed to be bound by the treaty's obligations.

Another area of great concern relates to the way in which Bill C-47 addresses articles 6 and 7 of the treaty, which refer to prohibitions and risk assessment, respectively. In this regard, Global Affairs Canada has indicated that Canada's “current export permit considerations are consistent with all these elements as outlined in the ATT, but are established as a matter of policy, not law.” Also, Global Affairs Canada states, "The critical element was the need to create a legally binding obligation for the minister to take the ATT assessment considerations into account in deciding whether to issue an export permit."

This characterization leaves the impression that the only measure necessary for Canada to be in full compliance with articles 6 and 7 is to establish a legal obligation for the minister to take certain factors into account when assessing export permit authorizations. In reality, however, the Arms Trade Treaty establishes a higher standard than merely taking into account certain considerations when deciding on export permit authorizations.

The Arms Trade Treaty establishes categorical prohibitions on certain arms exports, depending on the outcome of an objective risk assessment process, and it includes unambiguous wording to this effect when referring to exports that a state shall not authorize. Canada's export controls regime lacks any such obligation or wording, whether in policy or in law.

The obligation for the minister to simply consider certain factors does not suffice to meet treaty standards, even if established as a matter of law. In the absence of language that explicitly requires the denial of certain export permits, the minister will have virtually unchecked discretion to authorize any and all military exports, however questionable the recipient or however damning the risk assessment, as long as he or she indicates that factors were taken into account.

We are further concerned that, under the current approach taken by Global Affairs Canada, the details related to these critical areas will be left to subsequent regulations, which are to be known only after the legislation is enacted. Of course, in principle, we do not oppose the notion that certain aspects of a bill can be and, in some contexts, have been, left to be addressed by subsequent regulations. What we find problematic is that aspects related to some of the most crucial dimensions of the Arms Trade Treaty, namely the prohibitions and risk assessment, would be a matter of regulations and not law.

Another area that the bill fails to address has to do with the lack of harmonization between the Department of National Defence and Global Affairs Canada vis-à-vis risk assessment processes for arms exports. While both departments will need to comply with the obligations of the Arms Trade Treaty once Canada becomes a state party, we are concerned that having two separate risk assessment procedures may lead to inconsistent standards and decisions concerning where Canadian military equipment may end up.

Earlier I pointed to the obligation contained in article 5 of the ATT to implement treaty provisions in a consistent manner in the context of the exemptions given to U.S.-bound exports. This requirement for consistency in the implementation of the treaty is also applicable to the dual risk assessment processes at the Department of National Defence and Global Affairs Canada.

To finish these remarks, let me reiterate that we remain very much supportive of Canada joining the treaty as a fully compliant state party. Unfortunately, however, Bill C-47 falls short of meeting the spirit, the objectives, and the specific provisions of the ATT, and thus we cannot support it in its current form.

Thank you very much for your attention. I would very much welcome your comments or questions related to these remarks.

[The Chair, Liberal, Bob Nault]

Thank you very much to both witnesses.

Colleagues, we'll go right to questions.

I'll start with Mr. Genuis, please.

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

Thank you, Mr. Chair.

To the witnesses, thank you so much for being here and for the hard work you undertake around the world.

Obviously, all of us would agree in principle that we have to do everything we can to end conflicts and to help people who are suffering as a result of them. It's interesting for me that in the context of this hearing, one hour after another, we've had two fairly different kinds of stakeholder groups both raising substantial concerns about this legislation. In some ways they're different concerns, but I think there is a common thread I would tie between the concerns that were raised in the first hour and the concerns that we're hearing in the second hour. That's around the subjectivity this legislation gives to the minister.

You're saying it's still up to the minister's discretion around approving arms sales. We heard earlier that there is subjectivity around what the regulations will look like. In both cases we have subjectivity leading to concerns about what the minister will actually do. On that basis, concerns are coming from different elements of civil society.

I'd be curious to hear your comments on that. Do you agree that maybe the reason we hear concerns from different groups in civil society is that these decisions will be made in regulation as opposed to actually being laid out in the legislation?

[Cesar Jaramillo]

Thank you very much for that very good question. I wasn't here for the first hour, so I'm not sure what concerns were raised by the earlier witnesses. I do know from our conversations with other colleagues and like-minded organizations in Canada who have testified before this committee that there are in fact several concerns about the bill.

One aspect, as you rightly point out, has to do with the wide discretion with which the minister would be in a position, as I said, to authorize any and all export permits as long as he or she says they considered the factors. We are greatly concerned that there is no such language, as is found in the Arms Trade Treaty, that refers to exports that shall not proceed, or that the minister cannot authorize. There is no categorical language.

Thus far, the closest Canada's export control regulations come to a categorical prohibition is two words: “closely controls”. That's really the closest we come to a categorical prohibition, “closely controls”. But even under that rubric of close control, right now, as you well know, we are in the early stages of a multi-billion dollar deal with one of the worst human rights violators in the world. That's Saudi Arabia. It is an undisputed fact that they are among the worst of the worst.

Evidence indicates that close control does not suffice and that there is a need for very specific categorical language that indicates, without room for ambiguity, that if certain triggers are met, certain exports quite simply cannot proceed. There is nothing to that effect in the current legislation, in the current regulations, or in the proposed changes in Bill C-47.

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

I'll jump in here just because of the time, if that's okay.

I want to get a bit more specific and to get your opinion on some of the suggestions we heard earlier. We heard this morning from a number of groups who represent firearms owners in Canada. They expressed their strong support for a robust system of arms control that effectively keeps weapons out of the hands of bad actors around the world, but they are concerned about the impact of this legislation on responsible firearms owners, sport shooters and hunters here in Canada. They asked us for, in the spirit of greater clarity in the legislation, which is not something you addressed specifically, clear language, not just in the preamble but in the legislation itself, that carves out and protects the rights of responsible, law-abiding firearms owners in Canada.

I'd be curious to hear your perspective on that kind of language and even on what such an exception could look like in a way that would not infringe on some of your particular concerns.

[Cesar Jaramillo]

Thanks for the question. Yes. I am aware that some sectors have concerns about the impact the Arms Trade Treaty may have in terms of the rights of legal, lawful gun owners in Canada.

The first point I will make is that this is not a conversation that is exclusive to Canada. In the United States, in other contexts, the NRA—you know, the sports shooting association types—have repeatedly raised this concern, not just in Canada but internationally, and in the context of multilateral Arms Trade Treaty negotiations.

It is a surprise to me that we are still having this conversation because time and again, every authoritative expert in the world has tried, in a constructive spirit, to placate those concerns and to say that the Arms Trade Treaty has nothing to do with domestic gun ownership. The Arms Trade Treaty was neither designed nor intended to infringe upon the rights of lawful gun owners domestically, but rather to curb irresponsible international arms transfers.

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

Sorry, Mr. Jaramillo, given that is the intention, surely you would accept that a section in the text of the legislation—not in the preamble, but in the text of the legislation—which specifically ensured that would be helpful in advancing the objectives that you want to see advanced. Is that right?

[Cesar Jaramillo]

No. My position is that it would not be necessary to include such language. The best basis for this claim is the treaty itself, because there is nothing in the treaty that explicitly or implicitly indicates a threat to Canadians' lawful gun ownership.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Genuis.

Now we'll go to Mr. Levitt, please.

[Michael Levitt, Liberal, York Centre, ON]

Mr. Butcher, I'm going to ask you some questions. You've been sitting there so patiently on video. I don't want you falling asleep or dozing off.

We had a discussion a couple of days ago. An issue of Westminster-style democracies, like New Zealand, Australia, the U.K., came up. It was the issue of policy and regulation versus legislation, particularly around the point of the mandatory nature of the rules moving forward.

We had a little bit of back and forth on New Zealand, but I got some clarity on that. Theirs is actually policy-based. It's not in legislation. I want to explore the U.K., where you're sitting now, and get a sense from you about what the design looks like there. We're interested in what other jurisdictions are doing on this point.

[Martin Butcher]

Certainly. The legislation that regulates the export of arms from the U.K. is the 2004 Export Control Act. Within that, we also have the consolidated criteria by which the EU common position on arms exports is brought into British law. That's done within a provision of the 2004 act, which allows the government to make secondary legislation, without requiring that the full legislative process be undertaken every time those regulations are to be changed.

There are also a variety of responsibilities under the Arms Trade Treaty and a number of other international instruments. As those are brought into British legislation under enabling acts, there's a legal obligation for the government to follow those treaties.

We have a variety of legislative and regulatory powers and responsibilities for the government here in the U.K.

[Michael Levitt, Liberal, York Centre, ON]

Thank you.

You talked a bit about parliamentary oversight. I'm interested in hearing a little more about how that's been built into the process.

[Martin Butcher]

Absolutely. For about 20 years now, we've had the Committees on Arms Export Controls, which bring together the defence, foreign affairs, international development, and international trade committees. They each supply a quarter of the MPs on the committees. In a variety of different ways, the committees seek to hold ministers to account.

Most typically, certainly up until 2015, the committees held an annual inquiry where some members of civil society would present evidence and then the foreign secretary and the business secretary would present oral evidence. They would receive written evidence from a wide variety of sources, as well as oral evidence from industry, and compile a report looking at the government's own report on its arms transfer activities in the previous year.

In the last Parliament, that was varied, and they tried to look at a series of individual questions, like arms transfers to Saudi Arabia, the implementation of the Arms Trade Treaty, and procurement questions. Due to the deeply political nature, in particular of arms sales to Saudi Arabia, that one didn't go so well. The committees have just been reconstituted and we're now eagerly anticipating how ministers will be held to account by committees in future. As I mentioned, there are also a variety of questions and requests for ministerial statements that are made throughout the year on arms trade issues.

[Michael Levitt, Liberal, York Centre, ON]

Thank you.

I want to shift the focus a little to human rights abuses and the impact of the conventional arms trade on conflicts, specifically the impact of illicit small arms and light weapons. My colleague sitting next to me, Ms. Vandenbeld, on Tuesday brought up the example of the Congo, which we all know has undergone numerous civil conflicts and suffered from awful human rights abuses. I know Oxfam is active around the world. Can you maybe use that as an example of the issue of illicit arms trade in conflict?

[Martin Butcher]

Absolutely. Clearly, in Africa in particular, Oxfam is extremely active. The illicit arms flows are extremely damaging and fuel conflicts across the continent. It's estimated that something like 95% of small arms and light weapons in Africa come from outside the continent, most with very little control, and circulate within the continent, often with no control at all. This is an area of massive concern for us.

The Arms Trade Treaty, if properly implemented, can play a massive role in changing this situation, thereby improving the lives of people in the Congo with possibilities for development. By clearly delineating what is legal trade, when arms move across borders, we can be certain that a particular shipment of arms is moving legally. By fully implementing the provisions of the treaty, for example, on the diversion of arms, an African government must make sure that all its stockpiles are absolutely secure and safe, that there is no movement of arms out of those armouries, into the grey and black markets, and ensure that they have proper customs regulations, that customs people are trained and paid on time, and the same goes for the security services.

The ATT can play a role in making sure that the legal trade is secure and that there is a clear delineation between what are legally traded and illegally traded arms, which will allow the seizure of those illegally traded ones.

[Michael Levitt, Liberal, York Centre, ON]

Thank you very much.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Levitt.

We'll go to Madame Laverdière, s'il vous plaît.