Overview of the Arms Trade Treaty regulatory implementation package
Canada will join the UN Arms Trade Treaty (ATT) later this year. To ensure compliance, it is Canada’s practice before it accedes, to meet all of the legislative requirements of the Treaty. As a first step, the Government of Canada introduced Bill C-47, which amends the Export and Import Permits Act (EIPA) to establish controls on brokering of military items and to incorporate directly into Canadian law the assessment criteria laid out in the ATT, along with other amendments to further strengthen Canada’s export controls. Bill C-47 received Royal Assent on December 13, 2018.
Following the passage of Bill C-47, Global Affairs Canada (GAC) consulted Canadians on the proposed strengthening of Canada’s export controls regime. GAC then drafted a package of six regulations that are needed to implement Canada’s obligations under the ATT. Four of the draft regulations establish the framework for new controls on brokering of military items, while the two others enable Canada to report on exports of ATT-listed items to the United States. These regulations are being “pre-published” in the Canada Gazette, Part I, for 30 days from March 16 to April 15, 2019, during which stakeholders are encouraged to review them and to comment.
Below is a summary of the changes that will be made to Canada’s export controls program once Bill C-47 and its related regulations enter into force. We anticipate the entry into force to take place during summer 2019.
Legislation: Bill C-47
Bill C-47 amends the EIPA to establish controls over brokering by:
- (1) defining brokering;
- (2) making unauthorized brokering illegal by amending the Criminal Code to make brokering without a permit a criminal offence; and
- (3) giving the Government of Canada the authority to establish a Brokering Control List, Brokering Permit Regulations, and two other regulations related to brokering.
Definition of “broker”
The amended EIPA defines “brokering” as “arranging or negotiating a transaction that relates to the movement of goods or technology included in a Brokering Control List from a foreign country to another foreign country.” Here are a few interpretive notes on that definition:
- A foreign country means a country other than Canada, so items moving into or out of Canada are not included. Requirements regarding items moving into or out of Canada are captured under other regulations.
- A “transaction that relates to the movement of goods or technology” is a transaction related to the acquisition or disposition of these goods or technology.
- With respect to technology specifically, a “transaction that relates to the movement of technology” must include the disclosure of the contents of that technology and not just the passage of the technology itself (e.g. on a USB key that remains unopened) from one place to another.
- The definition of brokering does not include the provision of strictly administrative or support services (for example, booking of rooms, transportation, or marketing).
The amended EIPA will prohibit unauthorized brokering by any legal or natural person either in Canada or abroad, specifically:
- (a) a Canadian citizen,
- (b) a permanent resident, or
- (c) an organization as defined in section 2 of the Criminal Code. This means that Canada is making unauthorized brokering a criminal offence and that brokering obligations are applicable extraterritorially as well as domestically.
Proposed brokering regulations
Bill C-47 authorizes the Government of Canada to make regulations to control brokering. At this time, Global Affairs Canada is proposing four regulations on brokering that, together, would create the framework for controlling brokering.
- Brokering Control List (BCL): This regulation lists all items for which a brokering permit is required. The Government of Canada proposes to include all items listed in Group 2 (Munitions List) and Group 9 (ATT items) of the Export Control List (ECL), as well as other ECL items—including dual-use items—that are likely to be used to produce or develop a weapon of mass destruction. The scope of the proposed BCL is comparable to and informed by the existing brokering controls of Canada’s allies.
- Brokering Permit Regulations (BPR): This regulation sets out the information that an applicant (meaning a person or organization) must submit in their application for an individual brokering permit. This includes the applicant’s name and contact details; information about the seller, buyer and any other agents or brokers involved; and information on the goods to be brokered, including on their proposed end use. Applicants for brokering permits would be able to use Export Controls On-Line (EXCOL), the same dedicated website used for export permits.
- Regulations Specifying Activities that Do Not Constitute Brokering (“Exclusions”):This regulation specifies activities that, while technically falling under the EIPA’s definition of “brokering,” would be excluded from the new controls. Two exclusions are proposed:
- (1) transfers between affiliates of a corporation, and
- (2) Canadians who are directed by their non-Canadian employer to undertake brokering activities, so long as they do not control the employer. The first exclusion would ensure that transnational operations within a company can continue without impediment, while the second exclusion would ensure that individual Canadians are not placed at a disadvantage in the global labour marketplace. However, these exclusions would not apply to the movement of full-systems conventional weapons, as laid out in Group 9 of the Export Control List (see the Order Amending the Export Control List below).
- General Brokering Permit (“GBP”) No. 1:This regulation creates a General Permit that could be used to broker in pre-defined, lower-risk circumstances. This GBP would authorize brokering to select, low-risk destinations, provided that the end use is in that destination and that the broker follows the requirements set out in the GBP, which are that the person or organization using the GBP must:
- (a) notify Global Affairs Canada that they plan to use the GBP, and
- (b) subsequently report on the items and transactions for which they used the GBP. The main advantage of the General Brokering Permit is that prospective brokers would not need to submit an individual application prior to the brokering activity or activities.
Transparency and reporting
During the debates on Bill C-47 and ATT accession, a number of parliamentarians and civil society and academic stakeholders asked for increased transparency in reporting on controlled exports to the United States. At the same time, industry stakeholders noted that the permit-free movement of most controlled items between Canada and the United States is vital to the preservation of Canada’s defence, security and aerospace industry. Canada has benefited greatly from its privileged defence relationship with the United States, and it is important not to undermine this arrangement. In response to this discussion, the Government of Canada committed to looking at ways to increase transparency that would not require individual permits for the export of controlled items to the United States. The two regulations that are proposed aim to do just that: to enhance transparency while preserving the special relationship Canada has with the United States with respect to defence materiel.
Proposed reporting regulations
- Order Amending the Export Control List (Arms Trade Treaty): This regulatory amendment would create a new Group in the Export Control List (Group 9) that lists all items that fall under the reporting scope of the ATT and states that a permit is required to export these items to all destinations, including the United States. These items are those full-system conventional arms that are defined in Article 2(1) of the ATT as battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons. Article 13 of the ATT confirms that States Parties may use UN reporting standards in their ATT reports. With respect to small arms and light weapons, this means “man-portable weapons made or modified to military specifications for use as lethal instruments of war.” In keeping with the UN’s reporting parameters for the United Nations Register of Conventional Arms (known as UNROCA), Canada reports to the United Nations on the exports of small arms and light weapons destined for police and/or military end use.
- General Export Permit No. 47—Export of Arms Trade Treaty Items to the United States: This regulation would allow Canadians to use a General Export Permit (GEP) instead of having to apply for individual export permits when exporting Group 9 (ATT) items to the United States. It would also authorize the export of other non-restricted and restricted firearms and ammunition (controlled under Export Control List items 2-1, 2-2.b., and 2-3) to the United States, formalizing the existing system of not requiring an individual permit. The GEP would require exporters to notify the Government of Canada that they plan to use the GEP and to report twice a year on any permanent exports (i.e. items that would not be returned to Canada within two years) of Group 9 items. There would be no reporting requirement for the non-ATT items captured under this GEP, or for temporary exports. The reporting under this GEP would give the Government of Canada accurate data on exports of ATT items to the United States in a way that would not create unmanageable burdens on exporters. As a result, Canada would be able to report on all its exports of full-system conventional arms, as required by Article 13 of the ATT.
The RCMP and the Canada Border Services Agency will continue to be responsible for the enforcement of the EIPA, with the RCMP being the enforcement authority for the regulations on brokering. Failure to comply with the EIPA and its associated regulations can lead to prosecution. Bill C-47 amended the EIPA to increase the maximum monetary fine for all offences punishable on summary conviction from $25,000 to $250,000.
The regulations will be open to comment for 30 days from March 16 to April 15, 2019, and we encourage all interested parties to provide feedback. Officials will review and consider all comments and may make some adjustments to the package of final regulations. We expect that the final regulations will be published in June. They will enter into force 30 days later, allowing Canadians time to familiarize themselves with the final regulations and put in place any required processes. Canada can then officially request to join the ATT and would become an ATT member after a mandatory 90-day waiting period.
Should you have additional questions about Canada’s new brokering or reporting regulations, please contact the Export Controls Policy Division at firstname.lastname@example.org.
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