Foreign Affairs Committee on May 11th, 2021

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Maire looks like he wants to answer.

[Jacques Maire]

In two or three words, yes, there are countries we have sanctioned. The impact of that is very important because they then realize they are dependent on our supplies. There are countries that have alternatives. In the case of Turkey, it has the possibility, of course, of going to Russia, which is the case for anti-aerial defence. It's an issue for the allies and for NATO; that's an issue for them.

The way the U.S. manages the situation.... They just prevented the sale of the F-35 to Turkey. This had a big impact on Turkey because there was also the possibility for them to develop the industry locally. It's a mix between these: Do we want Turkey to be part of NATO, or do we want to get rid of this partner? I think the issue is that we want to keep them, of course; then, what is the balance between economic and military sanctions?

[The Chair, Liberal, Sven Spengemann]

Thank you very much, Mr. Maire.

We'll go now to Mr. Bergeron for six minutes.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

I'd like to thank the witnesses for being here and contributing to our work by clarifying various matters for us on how to proceed.

I particularly want to thank Mr. Maire for being here so late in the day and would ask him to thank his wife on our behalf for her understanding, cooperation and concern.

We have to make all sorts of attempts at squaring the circle insofar as we need to reconcile interests and goals that may appear divergent. On the one hand, we need to support a viable and substantial weapons industry that creates jobs and innovation. We therefore need to export weapons. On the other hand, we need to make sure that everything is consistent with our values.

And when we act on our values, we also need to realize that if we don't sell weapons to certain countries, other less scrupulous companies will fill the gap left by Canadian companies.

Not only that, but frequently, as time goes by, we come to the realization that today's friends can become tomorrow's enemies. I'm mentioning this in connection with the geopolitical issue that Ms. Fry mentioned a few moments ago.

We mustn't forget that the Americans armed the Mujahedin only to realize that they had armed the Taliban and al Qaeda against western countries. It's easy to end up in situations where, because of the involvement of other countries, we end up causing significant damage to allies. I'm thinking for example of France, which for many years sold Mirages and Exocet missiles to Argentina. The British Navy paid the price for that during the Falkland Islands war.

We find ourselves with an ally that can be, to say the least, unruly. Turkey is in fact becoming increasingly unstable and less and less reliable. Canada, among others, had been assured that the equipment would never end up anywhere than Syria. I'd like to add a footnote to what Ms. Fry said, when she pointed out that we were very happy to be able to rely on Turkey to fight the Daesh, but we weren't quite so happy when Turkey attacked our Kurdish allies, who are also fighting against the Daesh. Turkey is therefore becoming a progressively less reliable ally.

How then are we supposed to behave in what is, to say the least, a singular environment in which, as I was saying, we are trying in various ways to square the circle.

[Jean-Christophe Boucher]

It's an important and vital question. It's essential to come up with a protocol that gives the government flexibility and the ability to react quickly. In the current circumstances, that's not what we have.

Global Affairs Canada submits a report once a year. However, the report is late this year. By and large, what's in the report does not really allow for an exhaustive analysis of what is being sold and where it is being sold. The report doesn't indicate how we might get an inkling of what is being done.

I think that the Netherlands has a better approach. In their system, the Dutch Ministry of Foreign Affairs is required to publish a report every three months. It has to report what is happening every three months to the Dutch Parliament and to the government . Not only that, but if an export permit is granted for a country on the list, like Turkey, the ministry must tell the Dutch Parliament about it within two weeks. If Dutch companies try to sell weapons to Turkey and a permit is authorized, Parliament has to be told about it within two weeks.

This enables Dutch parliamentarians and civil society to respond much more quickly, and it allows for much more transparency, which would not be the case if they had to wait for a year. When reports are published more regularly, adjustments can be much more responsive to events.

One of the problems we have today is that contracts are signed without knowing what will happen in ten years, nor how the equipment will be used. We need to be more agile and to have a better way of doing things.

[Pierre Jolicoeur]

Personally, I can only agree wholeheartedly. More transparency would give Canadian citizens a better understanding of our agreements with our various trade partners, both within the alliance and elsewhere.

Not long ago, we discussed the sale of weapons to Saudi Arabia. I use Saudi Arabia as an example because it is a rather blatant case. It was also the biggest military contract ever signed by Canada. It was for light armoured vehicles that Canada sold and exported to Saudi Arabia.

It shows how difficult it is to strike a balance between the need to export products and exporting them to a trade partner that does not have many shared values with Canada in terms of human rights. This is clear from its behaviour. We were told that the weapons were being used in the conflict in Yemen, on the Arab Peninsula.

Canada's decision on April 12 to suspend the export of weapons to Turkey is the right decision. It sends a signal that Canada acts upon concerns like these and does not want to be associated with repression or with the illicit or inappropriate use of such weapons.

Combined with what Mr. Boucher was saying, measures like these are also a very good approach. They send a signal that Canada does not want to be associated with repressive movements.

[The Chair, Liberal, Sven Spengemann]

Thank you very much.

Thank you, Mr. Bergeron.

We will now turn, for the final intervention in this panel, to Mr. Harris, for six minutes, please.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Thank you to all of our witnesses.

Mr. Jolicoeur, you've talked about Azerbaijan's military buildup, which has been taking place not only recently, but for the last 10 or more years, at a high level. You would have been aware of that, and presumably Canada would be aware of that too. The conflict is considered a frozen conflict, I suppose, with an imposed ceasefire and four UN Security Council resolutions saying that the occupation of the additional territories in the Nagorno-Karabakh is not legal. We would have been aware of that. We would have also been aware of Baykar's activities. The Turkish government did not hide its support for Azerbaijan.

Shouldn't Canada have been more careful in selling this drone equipment or in allowing the targeting equipment to be sold, in a domino effect, to Baykar, then to the Turkish government and then to Azerbaijan? Should alarm bells have been going off in Canada already before those drones ended up in Azerbaijan?

[Pierre Jolicoeur]

I think the Canadian government could have been more proactive in trying to identify this potential use of the drones. That said, as you just mentioned in your question, Azerbaijan made very clear that it wanted to reconquer the secessionist entity. The threat has been mentioned many times in past years. For the military budget of that state, billions of dollars have been raised in past years, to the point where the military spending of the state is equal, if not superior, to the entire budget of Armenia, which is next door. To explain the context, it was a clear message that if diplomacy doesn't work out, by military means the state will reconquer its dissident territory.

That said, Turkey has been an ally of Azerbaijan right from the start. For the past 30 years, Turkey has been supporting Azerbaijan at all times. However, it has done so in a limited way. In the previous iterations of the conflict in the early 1990s, Turkey limited its involvement to organizing an embargo around Armenia. The military support was limited to some military advisers and officers helping Azerbaijan to train. It did not participate directly in the conflict, other than those aspects on the side.

What was new last year was the more intense involvement of Turkey in that conflict. This has something to do with the new assertive policy of Turkey—

[Jack Harris, NDP, St. John's East, NL]

But that would have been known, presumably, to the government as well.

What disturbs me, sir, is that, at the end of the day, even the government study by GAC can't confirm that there were actual end-use assurances given and that Baykar did not violate any end-use assurances. Even though it went from the Government of Canada to Baykar, which put it on a UAV and sold it to the Government of Turkey, from whence it went to Azerbaijan and got used, there was no diversion.

Is there something wrong with the optics of this? The logic doesn't make sense. Either the rules are not right or the government is not applying them right. Does it make sense to you that this is not a diversion?

[Pierre Jolicoeur]

It seems to be because of the synchronicity. Right before the start of the conflict, in the spring of 2020, contacts had been established by the Turkish government asking to reintroduce the sale of that equipment, which had been suspended for the previous year.

A few months before the start of the conflict in the fall of 2020, Canada authorized the sale, and that's been done. If we look at the chronology of the events, it seems to be that the Canadian government has been manipulated by the Turkish government. That is a hypothesis that is difficult to check if we don't have access to the conversations between the Canadian government and the Turkish government.

It seems to be that the synchronicity confirms this potential—

[Jack Harris, NDP, St. John's East, NL]

Are you saying that we don't know whether the rules are inadequate or whether Global Affairs was adequately watching what was going on?

[Pierre Jolicoeur]

I think Global Affairs watched correctly the sale of that equipment and the Turkish partners did what they needed to do correctly. It was the use by the Turkish government at a later stage that we didn't.... Maybe we lack a good mechanism to follow up on what has been done with Canadian equipment of military purpose.

[The Chair, Liberal, Sven Spengemann]

Thank you very much, Mr. Harris.

Colleagues, as I said, we're being challenged by the clock this afternoon.

Unfortunately, there's not much time left for the second round of questions.

On behalf of all the committee members, I'd like to thank the witnesses for being here, for their expertise, their testimony, and particularly their contribution to our study. We are truly grateful.

Thank you very much for being with us, even under tight time frames. Please keep safe.

We will allow our witnesses from panel one to disconnect and, Madam Clerk, we will suspend briefly to sound check our incoming witnesses and then continue.

[The Chair, Liberal, Sven Spengemann]

Dear colleagues, we are now resuming the meeting.

I'd like to give a few instructions to the new witnesses.

I encourage all participants to mute their microphone when they are not speaking. When you have only 30 seconds left, I will signal you with this card, as I always do. For access to interpretation, click on the icon at the bottom of your screen.

I'd like to welcome our witnesses for the second panel.

Today we have Mrs. Dominique Babin, lawyer and partner at BCF Business Law.

We also have Dr. James Fergusson, who is a professor at the Centre for Defence and Security Studies, department of political studies, University of Manitoba.

We'll begin with Mrs. Babin.

Mrs. Babin, you have three to five minutes for your opening statement.

You have the floor.

[Dominique Babin, Lawyer and Partner, BCF Business Law]

Thank you, Mr. Chair.

Good afternoon, everyone. I'd like to thank the members for their invitation to appear before the committee today.

I must admit this is my first time appearing before a parliamentary committee. Please forgive me if my level of decorum is not up to scratch. I'm very happy to be here today.

My greetings also go to Mr. Fergusson, who is also appearing before the committee.

Allow me to introduce myself. My name is Dominique Babin, and I'm a lawyer and partner in business law with the Montreal firm BCF. I have practised business law for more than 20 years. For five of these years, I was the director of legal affairs for an American defence sector company. In this capacity, I administered export permits on a daily basis for this defence company.

Now that I'm in private practice, defence sector companies, and companies from other sectors as well, consult me to ensure that their transactions and exports are in compliance. I'd like to point out at the very outset that as a lawyer, my role is really to advise companies to ensure that they are in compliance with legislation enacted by Parliament.

I would like to point out very humbly that I'm not here to give advice on what foreign policies Canada should be adopting with respect to Turkey. However, as Dr. Fry mentioned, I am in a good position to make practical suggestions for improvements that could mitigate some of the negative impacts that might result from enforcement of export controls, which are indeed barriers to trade.

Before coming, I consulted some of the companies and partners with whom I do business on a regular basis. However, I am here as an individual and not to do any lobbying or to send any messages that I may have been asked to transmit. I am truly here in my own capacity and as a professional.

I had prepared a very long speech before I knew that our time would be limited. I asked myself about the two main messages I wanted to get across in my opening statement. As it happens, they are practical issues.

The main challenge that is often faced by the companies I work with is being able to identify which goods are subject to controls.

Once goods have been identified as subject to controls and known to be dangerous, then the proper thing to do is go through the whole approval process to obtain a permit. What I've noticed is that companies often make the effort to follow the process when it's not even necessary to do so. I'll give you some examples of this.

In Group 2 of the Export Control List, a number of concepts cover goods specifically designed for military purposes or for military equipment. It's sometimes difficult for companies to know whether their goods meet the criterion of having been specifically designed or modified for military use.

Some technologies are also combined. Commercial technology can be combined with the military technology, for example. Sometimes, whether out of ignorance or for practical reasons, a commercial portion is listed as controlled, even when it is exported separately. In some cases, this is simply to avoid delays at the border. An export permit is therefore requested, which is a more straightforward process than having to explain why there is none.

My first practical recommendation would be to encourage access to advisory opinions, which would be binding or have probative value for clearing customs.

You've thoroughly discussed the second issue, which is to make the issuing of permits predictable. I have often heard it said that rather than deny a permit to export companies that submit a permit application, they are asked to withdraw their application to avoid having to deny the permit.

I believe that it would be better for a country to be a little more transparent and to have clearer measures that more accurately identify certain aspects of the Export Control List. That brings me back to the importance of properly identifying controlled goods.

Thank you.

[The Chair, Liberal, Sven Spengemann]

Thank you very much, Mrs. Babin.

We will now go to Professor Fergusson.

I understand that we were not able to revive the video, but we will give you the floor to present your opening remarks.

Professor Fergusson, go ahead, for between three and five minutes, please.

[Dr. James Fergusson, Professor, Centre for Defence and Security Studies, Department of Political Studies, University of Manitoba, As an Individual]

Governments that are considering controls must weigh strategic, political, economic, technological, cultural and moral or ethical concerns, and in many cases these do not easily line up together. On the surface, these are never easy decisions.

However, for Canadian governments, these are not as difficult as they appear. In fact, in some ways, Canadian military and dual-use export controls are not really of its own making. As a function of long-standing principles underlying Canadian foreign policy, one might actually suggest that others make the decisions, or at least set the basic parameters of Canadian decisions in which Canada fills, in the details or the blanks.

For Canada, its export controls are informed by UN Security Council sanction regimes, a host of international and multilateral agreements, and a set of common preferences and interests that are shared by like-minded nations, Canada’s NATO allies and the United States in particular. The latter is, of course, extremely important. Canada’s defence and dual-use technology and production capabilities are integrated into what may be termed the North American defence industrial and technological base, and as component and subsystem suppliers within American complicated corporate structures and supply chains, a significant portion of Canadian goods are subject to the U.S. international traffic in arms regulations.

Naturally, difficulties arise if all these forces are not aligned together. This is especially the case when differences emerge between Canada’s NATO European allies and the United States.

Even so, Canada cannot, and arguably should not, be out of step with the international community, allies and the U.S., except on the political margins. This is especially relevant in the recent decisions to suspend new export permits to Turkey and subsequently prohibit export permits. At one level, this was a made-in-Canada solution on the legal grounds that Turkey had violated, to some degree, the end-user prohibition, in response to evidence that Canadian surveillance technology embedded in Turkish drones had been provided to Azerbaijan and then employed in the recent war over Nagorno-Karabakh. Canada cannot sit idly by when a legal agreement is violated, and, from this perspective, the Canadian decision should not be interpreted as expressing any position on the conflict or any other aspect of Turkish behaviour.

At the same time, it is not difficult to interpret the decision as more political than legal. In this regard, Canada is in step with its European allies and the United States, albeit perhaps a step or two ahead.

Concerns about Turkish behaviour long predate this violation. For example, the EU and NATO allies have expressed a range of concerns about Turkish internal and external behaviour, and talks have begun between the EU and NATO on possible coordinated prohibitions on military and dual-use exports. The U.S. is entertaining similar prohibitions and has frozen F-35 sales to Turkey.

Of course, while Canadian, American and EU motives share some general similarity, they are also distinctly different. The difficulty for all concerned is Turkey’s status as a key geostrategic member of the alliance, the implications of coordinated allied military and dual-use export controls on Turkish membership, and in particular its importance relative to NATO deterrence activities on the southern flank and in the Black Sea. It also has implications for peace and stability in south Europe and the Aegean Sea.

The central issue with regard to Turkey is the clash between the legal in-area commitments of alliance members, as embodied in articles 3, 5 and 6 of the Treaty of Washington, and national out-of-area interests.

In particular, I would note that article 3 states:

In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

Turkey has distinctly different interests in the Middle East that are not entirely shared by the rest of the alliance. Balancing these differences is not an easy task, but it's clear that a Turkey within the alliance is more preferable to a Turkey outside of the alliance. I suspect that this view is also held by the Turkish government.

In this regard, Canada’s prohibition of defence exports is not going to drive Turkey over the edge. Canada is simply not that important, nor is Turkey dependent on Canadian defence exports. The same cannot be said for the United States and other NATO allies, which could push Turkey over the edge if widespread prohibitions are undertaken. However, this is unlikely. What is important for Canada is to negotiate a quick resolution with the Turkish government, which would positively contribute to managing this intra-alliance issue.

I look forward to answering any of your questions on the Turkish issue, or broader issues concerning military and dual use export controls.

Thank you.

[The Chair, Liberal, Sven Spengemann]

Professor Fergusson, thank you very much for your opening remarks.

Colleagues, we're extremely tight for time. We have some committee business afterwards. Hopefully, it'll be very quick.

We will go straight to questions from members now. The opening round goes to Mr. Morantz, for six minutes, please.

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

Thank you, Mr. Chair.

Professor Fergusson, I want to welcome you to the committee. I wish I could say it's nice to see you, but it's nice to hear you. I'm a University of Manitoba alumnus; I majored in political studies. That was back in 1983, so I don't know if we would have crossed paths, but there were some wonderful professors in those days, Paul Thomas among them. It's nice to see you and have a fellow Manitoban here, or hear you, sorry.

One of the areas that I'm quite interested in is this conflict, if you will, between foreign policy interests of countries and their international obligations when it comes to export permits. For example, Canada, as is Turkey, is a part of the Wassenaar Arrangement. The ATT, domestic legislation, all basically cover the same ground on issues in terms of making sure there aren't human rights violations, that there are risk assessments and so forth. Do you see this as an issue, or should these decisions be made strictly based on our international obligations?

[Dr. James Fergusson]

The straightforward answer is no. It was very nice, and I think part of the issues that have emerged over the past 30-odd years, or I would say 25 years, took place and evolved in a different world from today. They gave countries like Canada, and Canada in particular, the luxury to push forward a universalist, if you will, humanitarian agenda with little real opposition because of the nature of the international system at the time. That world has now changed, and we continue the luxury of talking about these international obligations, but at the end of the day.... Here I would refer you to a recent report that came out of Global Affairs that looked at all of the various elements of Canada's international agreements, a checklist, if you will, and related them to whether or not Canada's exports to Turkey really had significantly violated any of them. When I read them, I was a bit surprised, given our prohibitions. The answer was no, they didn't; they had no significant impact.

Interpretations of issues of humanitarian human rights relative to recognition of diversity—and by “diversity”, I mean differences in national cultures in the global international system—are always open to political interpretation and political manipulation. For some reason, it's easy in some cases; in other cases—and Turkey I think falls into this—it is much more difficult and problematic, but at the end of the day, it's relatively easy. I don't think outside the legal issues involved with end-user agreements with Turkey, and if you put it in the context of the Turkish environment—I like to say they live in a bad neighbourhood—and Turkish interests relative to our strategic interests, I don't necessarily see that the international obligations are being violated, because many of them are simply open to sovereign state interpretation. As long as we as sovereign states, Canada included, are free to interpret these as we will, then the political realities will continue to be at play.

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

To be clear, you're saying it is possible, even in a country like Canada, that political considerations on matters of foreign policy interests could affect the decision on whether or not to issue an export permit?

[Dr. James Fergusson]

Of course, you can't ignore them. In fact, most times I would argue they trump the others.

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

That's very interesting, because we've had a number of witnesses on both sides of this argument, but I tend to think that in a realistic world, it would happen.

On another matter, back in 2018, I think you were a witness for Bill C-47, and you described that bill as “a solution looking for a problem”. Essentially I'm probably paraphrasing what you said, but you said something to the effect that the existing regime for export permits was working well. Given the diversion that's taken place now with respect to this particular piece of equipment that wound up somehow in the Nagorno-Karabakh conflict, has your opinion changed with respect to that point?

[Dr. James Fergusson]

Not at all—it remains the same.

I mean, I don't know the evidence. I've read the evidence that has come out of Foreign Affairs and all the reports that have come out with regard to this technology, and it just seems to be very strong evidence, but the exact details, how it was done and what the specific role of the Turkish government was remain difficult to know. At the end of the day, my views have not changed at all.