Honourable senators, I rise to present Bill C-47, An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments).

Bill C-47 seeks to enhance the way Canada regulates arms exports in order to allow it to accede to the Arms Trade Treaty, or ATT. Although we already have a robust arms trade control system, some legislative changes are needed in order to satisfy all the requirements of the ATT.

In a nutshell, Canada has to comply with two provisions. First, there is Article 7 of the treaty, which lists criteria for assessing arms exports, including criteria on human rights, gender-based violence, and peace and security. Second, there is Article 10 of the treaty, which requires the state parties to regulate the brokering of arms between two foreign countries. I will come back to that a little later in my speech. For now, I would like to provide some background on the purpose and scope of the Arms Trade Treaty.

The evidence is clear: irresponsible, unregulated arms transfers are intensifying and prolonging conflicts that claim many victims, contribute to regional instability, facilitate human rights abuses and hinder social and economic development.

After several years of negotiations, the Arms Trade Treaty was adopted by the United Nations General Assembly in 2013. That treaty is the first international agreement whose purpose is to establish common standards to curb the illicit transfer of conventional arms. It also aims to promote accountability and transparency in the global arms trade.

Although the ATT went into effect on December 2014, Canada remains the only one of NATO’S 29 member countries and the only G7 country yet to sign the treaty. Of our NATO and G7 allies, only the United States and Turkey did not ratify the treaty after signing it. Bill C-47 would essentially allow Canada to stand with its international partners by having it to join a treaty that now has 96 member states. On November 12, there will be 97 member states, as Brazil ratified the treaty a few weeks ago and will become a member after 90 days. I am not sure if there is a connection to my speech at second reading, but today Lebanon passed legislation that will lead to the treaty’s ratification.

According to Amnesty International, the transfer of conventional weapons is valued at US$100 billion a year, making it a major international industry. But this trade is not without negative repercussions: armed violence is responsible for more than 500,000 deaths a year around the world, not to mention the injuries inflicted and other collateral damage.

A country like Canada faces a dilemma. Few domestic deaths are caused by the arms trade, and the defence and security industry has a lot of economic clout. This industry accounted for more than $6.2 billion of Canada’s GDP in 2016, according to the latest data, and generated 59,800 well-paying jobs. These jobs have a national impact, when you take regional specializations into account. For example, Ontario and Quebec have land conveyances and aerospace, and the West and the Atlantic provinces have the shipping industry.

The challenge we face with Bill C-47 and, globally, with foreign arms sales is how to reconcile some potentially conflicting interests. We must strike a balance between the economy and the safety of individuals in our sober second thought, without forgetting that this bill strengthens what is already one of the world’s most stringent arms export control regimes. We must therefore consider the industry’s contribution to keeping our economy strong, in addition to defence, security and geopolitical interests, while assuring that Canadian exports are not used to commit or facilitate a serious violation of international human rights or humanitarian law. At the end of the day, Bill C-47 is designed to increase the rigour and transparency of export controls, without unduly undermining other inherent strategic considerations.

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I would like to outline some of the key features of the ATT to give you a better understanding of the ins and outs of Bill C-47.

It must be clearly and unequivocally stated that this multilateral instrument has no impact on the sovereignty of each member state over arms control within their borders. The ATT does not establish an international conventional arms control registry and does not require the member states to create a national firearms registry. Moreover, the treaty’s preamble clearly acknowledges the right to own weapons for legitimate purposes, including, “. . . for recreational, cultural, historical and sporting activities.”

The ATT seeks to ensure that member states act responsibly in the arms trade. In this way, it helps lessen the suffering of thousands of civilians who are affected or threatened by armed conflict and violence. To this end, it covers a wide range of conventional weapons, including combat vehicles, armoured vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and small arms.

Under Article 7 of the treaty, the member states must assess the possibility that these arms or ammunition could contribute to or undermine peace and security or could be used to commit one, a terrorist act; two, an act related to organized crime, international organized crime; three, a serious violation of human rights; or four, a serious violation of international humanitarian law.

A member state is required to refuse an export only when it considers that, despite its planned mitigation measures, there is an overriding risk of one of the aforementioned consequences.

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The use of this criterion is the result of a compromise intended to give member states greater flexibility in determining the level of risk beyond which an export permit application must be refused.

In its fourteenth report entitled Promoting Human Rights - Canada’s Approach to its Export Sector tabled last June, the Standing Senate Committee on Human Rights notes:

. . . the term “serious violations of international humanitarian law” includes grave breaches of the four Geneva Conventions of 1949, serious breaches of Common Article 3 to those conventions and Additional Protocol I to those conventions, the war crimes prohibited under the Rome Statute of the International Criminal Court and other war crimes defined under customary international law.

What constitutes a serious violation (or abuse) of international human rights law is constantly evolving. The scope, the consequences for victims, the intent, and the shocking effect of the potential violation or abuse in question could be relevant to determining the seriousness of a violation or abuse.

The regulation of conventional arms brokering activities between two countries is another important aspect of accession to the treaty. Bill C-47 would ensure that Canada is compliant with Article 10 of the ATT, which requires member states to regulate the international brokering of arms. At present, Canada does not regulate brokering under the Export and Import Permits Act. Bill C-47 addresses this gap, paving the way for collaboration with most of our international partners.

In this regard, Bill C-47 is not limited to meeting the minimum requirements set out in the ATT. It would make it mandatory to assess the risk stipulated in the ATT for both export permits and brokering permit applications. Instead of the terminology used in the treaty, clause 8 of the bill would require an assessment of substantial risk. This is a well-established concept in Canadian jurisprudence and is also recognized by the international community as meeting the requirements of the ATT. Following that assessment, an export or brokering permit application would be denied if the risk of any of the negative consequences listed is substantial enough to outweigh all other considerations, despite the available mitigation measures to reduce the identified risk.

Including the assessment criteria for substantial risk directly in the act exceeds the requirements of the ATT. Initially, the government had planned to include them in regulations, but committee discussions in the other chamber, along with pressure from civil society, led the Minister of Foreign Affairs to introduce an amendment to this effect. This codification in legislation would be unprecedented for Canada in relation to its main allies and would also clarify the status of the law and provide greater rigour and transparency in the issuing of export permits. I must point out, however, that Canada’s current export control policy, based on cabinet guidelines dated from 1986, is exhaustive and restrictive. Jurisprudence has nonetheless shown that these guidelines would be insufficient to restrict the minister’s discretionary power since they do not have the force of law.

The most innovative aspect of Bill C-47 is that it would create a legal duty for the minister to consider the negative consequences listed, and prohibits him or her from issuing a permit if it is determined that a serious risk exists, despite the planned mitigation measures.

Although the minister would retain discretionary power in evaluating the relevant factors for issuing export permits for controlled goods, that power would be explicitly and expressly set out in legislation. In other words, by increasing the applicable legal standards, Bill C-47 would make it possible for the courts to intervene more effectively in cases of non-compliance with the relevant legislative provisions.

Bill C-47 also includes a number of other measures to strengthen Canada’s export control system. Specifically, the criterion of substantial risk would apply to the risk assessment of gender-based violence or violence against women and children. This criterion is more stringent than what is set out in the ATT.

Moreover, the bill would provide predictability by requiring the minister to table two separate reports in both houses of Parliament no later than May 31 of each year, one pertaining to the application of the Export and Import Permits Act and the other to military goods exported under a permit.

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I also want to draw your attention to an issue that came up during the debate on this bill in the other place. That issue is national firearms regulation. Bill C-47 would not change the conditions governing the use of firearms or the regulation of firearms at the national level. It is strictly about firearms exports and imports. These regulations have been in place for decades and would not change after ATT accession. That means no new obligations would be imposed on responsible, legitimate firearms importers.

Our current, long-standing record-keeping system meets the treaty standards and would not change with the passage of Bill C-47. I want to make it very clear that the ATT and Bill C-47 will not create a national or international gun registry. The two instruments have a common goal: to end the carnage being fuelled by the unmonitored international arms trade, without detracting in any way from the use of guns for legitimate purposes, such as hunting and target shooting.

Please know that ATT accession will complement Canada’s long-standing participation in four multilateral export control regimes, namely, the Wasenaar Arrangement, an international agreement on export controls for conventional arms and dual-use goods and technologies, meaning those for civil and military use; the Missile Technology Control Regime; the Nuclear Suppliers Group; and the Australia Group, which controls the export of chemical and biological technologies that could be used as weapons.

Furthermore, Canada will continue to allow most items covered by the Arms Trade Treaty to be exported to the United States without a permit. As you know, the two countries have a very integrated market. The free flow of goods is a competitive advantage and a fundamental characteristic of the Canada-U.S. defence industry. This bilateral cooperation was established a long time ago with the signing of the Defence Production Sharing Agreement in 1956. These exports are very important in defending our country and supporting North America’s defence industry infrastructure on both sides of our border. In these unstable times, let’s not lose sight of the fact that the United States are an ally in NORAD and NATO.

North American integration of the military industrial complex is in compliance with international law because the Arms Trade Treaty does not state how countries are to set up their export controls. Other states party to the treaty have expedited procedures for low-risk countries. For example, the Netherlands, Belgium, and Luxembourg do not require export permits for arms transfers to each other. France, Germany and the United Kingdom have simplified procedures such as general authorizations. The same logic applies to Canadian arms exports to the United States and vice versa, both countries being considered low-risk because of the rigorous American export control system. It is worth noting that, when controlled goods go through the United States to a final destination in some other country, an export permit must be issued before the shipment leaves Canada. A Canadian export permit must be issued for all arms transfers going through the United States to a third country.

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A parallel can be drawn between a scenario where a licence would be needed for arms exports to the United States and the threat of tariffs as high as 25 per cent on auto sector exports to the U.S. As many stakeholders pointed out in the context of the recent controversy, some auto parts cross the border several times before the final product is fully assembled. In other words, a part can go back and forth several times before final assembly. Such restrictions on the free movement of goods would hinder our mutual economic development and seriously threaten the growth of Canada’s defence industry, which, may I remind you, supports nearly 60,000 jobs.

Lastly, let’s not forget the objectives of the Arms Trade Treaty: to create an international standard to curb the illicit trade of conventional weapons, encourage countries with weak controls to strengthen their systems, and stop illegal arms shipments to conflict regions.

I will repeat that essentially, the challenge we face with Bill C-47 is to weigh multiple interests that appear to be contradictory. Striking a balance based on the evidence and the facts is vital in this context. It would not be prudent to base the risk assessment for arms exports solely on Canada’s economic, defence and security interests. That’s why Bill C-47 would make it illegal to ignore a substantial risk of a serious violation of international humanitarian law or international human rights law. In principle, the current assessment process considers all of Canada’s strategic interests. Enshrining this duty in law would add consistency, rigour and transparency to export controls.

Honourable senators, I urge you to speak to the principle of Bill C-47 as soon as possible so that we may refer the bill to a committee. We could then study it in depth and make our contribution to a piece of legislation that is vital to ensuring Canada’s arms exports are responsible in the current context.

Thank you.