Order Amending the Automatic Firearms Country Control List: SOR/2020-225

Canada Gazette, Part II, Volume 154, Number 22

Registration
SOR/2020-225 October 14, 2020

EXPORT AND IMPORT PERMITS ACT

P.C. 2020-802 October 9, 2020

Whereas, pursuant to section 4.1 footnote a of the Export and Import Permits Act footnote b, the Minister of Foreign Affairs has consulted with the Minister of National Defence;

And whereas the Governor in Council considers it appropriate to permit the export of any thing that is specified in any of paragraphs 4.1(a) to (c)footnote a of that Act and that is included in an Export Control List, or any component or part of any such thing, to any of the countries listed in the annexed Order;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to sections 4.1footnote a and 6 footnote c of the Export and Import Permits Act footnote b, makes the annexed Order Amending the Automatic Firearms Country Control List.

Order Amending the Automatic Firearms Country Control List

Amendments

1 The Automatic Firearms Country Control List footnote 1 is amended by repealing the following:

2 The List is amended by adding the following in alphabetical order:

Coming into Force

3 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Automatic Firearms Country Control List (AFCCL), which has existed since 1991, is a positive list of countries to which Canadians may export certain prohibited items as defined in the Criminal Code if they have obtained a permit to export these items. Further to the Export and Import Permits Act (the Act), prohibited firearms, weapons and devices (or components and parts thereof), that are also included on the Export Control List, may only be exported to countries listed on the AFCCL and only to the governments of those countries or to end-users authorized by those governments. Any permit application to export controlled items to AFCCL countries is assessed on a case-by-case basis against considerations laid out in legislation (including the Arms Trade Treaty [ATT] assessment criteria and the substantial risk test) and in policy. The ATT criteria include considerations as to whether the proposed export could be used to commit or facilitate a serious violation of international human rights or humanitarian law, an act of terrorism or transnational organized crime, or a serious act of gender-based violence or violence against women and children. If, after considering any available mitigating measures, the Minister of Foreign Affairs (the Minister) determines that there is a substantial risk that an export would result in any of these negative consequences, then the Minister cannot issue a permit for that export.

The AFCCL currently comprises 40 countries. These include most NATO allies, as well as Australia, Botswana, Chile, Colombia, Finland, Israel, Kuwait, New Zealand, Peru, Saudi Arabia, South Korea, and Sweden. Ukraine was added most recently in 2017.

Canada is the only country in the world to legally limit the export of automatic firearms by destination. Canadian defence manufacturers that export automatic firearms and prohibited weapons have often expressed frustration that the AFCCL places them at a competitive disadvantage as compared to their international competitors. The addition of appropriate destinations to the list helps to lessen this competitive disadvantage.

On September 1, 2019, the Act was amended to remove the requirement that Canada must have concluded an “intergovernmental defence, research, development and production arrangement” with a country prior to its inclusion on the AFCCL. The Act now requires that the Minister consult the Minister of National Defence before recommending to the Governor in Council that amendments be made to the AFCCL. This amendment enables the addition to the AFCCL of traditionally neutral countries, such as Austria, Ireland, Japan, and Switzerland, that cannot enter into such defence arrangements.

On May 1, 2020, a separate Government of Canada initiative resulted in the reclassification of various firearms as prohibited, thereby barring their export to non-AFCCL destinations. Adding countries that are significant manufacturers of firearms to the AFCCL, such as Switzerland and Austria, allows Canadians who own these newly prohibited firearms to return them to their manufacturer. This is already an option for Canadian owners of models of prohibited firearms that are manufactured in other AFCCL countries, such as the United States.

Objective

This Order

Description

The following four countries are added to the AFCCL: Austria, Ireland, Japan, and Switzerland. Additionally, “Czech Republic,” “Republic of Colombia” and “Republic of Korea” have become “Czechia,” “Colombia” and “Korea, Republic of,” respectively.

Regulatory development

Consultation

From June 20 to July 20, 2020, the Government consulted Canadians on the proposal to add Austria, Ireland, Japan, and Switzerland to the AFCCL. Four responses were received during the 30-day public consultations period: two from industry representatives, one from a firearms business and one from a civil society organization. All respondents were supportive of the addition of Austria, Ireland, Japan, and Switzerland to the AFCCL.

Industry representatives expressed support for the amendment and noted that the Government contributes to a more predictable, transparent, and timely export process when it communicates to industry, through regulations such as the AFCCL, the countries to which it is more comfortable permitting certain defence exports. Industry representatives also provided additional details as to some potential commercial opportunities that would be facilitated by the Order.

One response was received from a firearms business who was supportive of the idea of allowing exports of newly prohibited firearms to additional destinations, particularly Switzerland.

The only response received from a civil society organization was supportive of the addition of the four countries, and requested additional clarification as to how export permit applications for AFCCL items are assessed against the risk assessment criteria outlined in the ATT. Global Affairs Canada does not distinguish between how exports of AFCCL items are assessed compared with all other exports of military and strategic items listed on the Export Control List. All export permit applications for military and strategic items, including those for AFCCL items, are assessed on a case-by-case basis against the ATT assessment criteria, which includes an assessment of whether they could be used to commit human rights violations. In this regard, if there is a substantial risk that an export may result in a serious violation of international human rights law, the Minister is legally required to deny the export permit.

Instrument choice

The AFCCL is established in legislation and amendments to the AFCCL can only be carried out through regulations made under the Act.

Regulatory analysis

Benefits and costs

This Order provides substantial economic benefits to Canada. Given that the Order creates new opportunities for Canadian exporters in the defence industry, it is impossible to monetize with any degree of precision the economic impact that could result. However, the potential benefits to the Canadian economy resulting from these new export opportunities are likely to be in the billions of dollars.

Apart from the minimal cost in time and labour to apply for a permit to export an AFCCL item to one of the newly listed destinations, there are no foreseeable costs to industry as a result of this Order. There is no fee to apply for a permit to export AFCCL items.

In terms of additional cost to government, the Order is not expected to result in a significant increase in export permit applications processed over the long term. However, given the recent announcement to reclassify a number of firearms as prohibited, it is anticipated that there will be an increase in the number of export permit applications of prohibited firearms, particularly during the two-year amnesty period in which owners must come into compliance with the new regulation, as firearms owners may seek to return their newly prohibited firearms to the country of manufacture. As the addition of these four countries to the AFCCL provides more options to impacted owners, it may increase the number that choose the option to export.

Small business lens

According to data from Statistics Canada, 485 companies, or 76% of all companies in the defence industry, employed fewer than 100 people in 2018. These small businesses accounted for 15% of all industry jobs, 12% of total industry sales and just under 8% of exports by value.

Many of the Canadian firearms manufacturers that will benefit from this Order are small businesses. In addition, many small businesses are integrated into the supply chains of some of the larger defence manufacturers that will benefit through increased exports.

This Order does not impose new administrative or compliance costs on small businesses. Therefore, the small business lens does not apply.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in the administrative burden on business.

Regulatory cooperation and alignment

This Order is not related to a work plan or commitment under a formal regulatory cooperation forum. The AFCCL is a provision that is unique to Canada. The Order will more closely align Canada with other like-minded countries that also assess proposed exports of such items on a case-by-case basis.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No substantial gender-based analysis plus (GBA+) impacts have been identified for this Order.

Canada assesses all export permit applications against the potential risk that the export could pose to vulnerable groups. Canada has also acceded to the ATT, which is the first international treaty that specifically mentions gender-based violence as an outcome to prevent when determining whether to allow the export of arms. Under the Act, the Minister must consider, among other criteria outlined in the ATT, whether the goods or technology specified in an export permit application could be used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children. If, after considering available mitigating measures, the Minister determines that there is a substantial risk that the proposed export would result in any of the negative consequences referred to in the Act, including with respect to vulnerable groups, then the Minister must deny the export permit.

With respect to the economic benefits that this Order will likely bring due to increased exports, these benefits will not be shared evenly between genders. This is because those identifying as women comprise only 19% of the workforce in the defence industry.

Rationale

Austria, Ireland, Japan and Switzerland are appropriate additions to the AFCCL as they are countries with which Canada has a positive defence cooperation and security relationship. All four countries are members of the four main export control and non-proliferation regimes, namely, the Wassenaar Arrangement (the multilateral export control regime responsible for military exports), the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Australia Group.

A few miscellaneous housekeeping amendments have been made so that Czechia, Colombia and the Republic of Korea are listed using the official short form of their name, which is consistent with how all other entries are listed, so that all countries appear in alphabetical order.

Implementation, compliance and enforcement, and service standards

Implementation

The Order comes into force on the day it is registered. On that day, the Export Controls Operations Division at Global Affairs Canada, which is responsible for issuing export permits, will begin to assess export permit applications for AFCCL items to the newly listed destinations, on a case-by-case basis and in accordance with assessment considerations laid out in legislation and policy.

Compliance and enforcement

All exports or transfers of prohibited firearms, weapons, and devices (or components and parts thereof) that are listed on the Export Control List must be authorized by an export permit. The Canada Border Services Agency and the Royal Canadian Mounted Police are responsible for the enforcement of export controls. Exporting, transferring, or attempting to export or transfer goods and technology identified on the Export Control List without a permit as required by the Act is prohibited and may lead to prosecution.

Service standards

For information on the processing times for permit applications to export AFCCL items, please consult the latest version of the Export and Brokering Controls Handbook, which can be found on the website of the Export Controls Policy Division.

Contact

Judy Korecky
Deputy Director
Export Controls Policy Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343‑203‑4332
Fax: 613‑996‑9933
Email: judy.korecky@international.gc.ca