Canada Gazette, Part I, Volume 154, Number 25: Order Amending the Automatic Firearms Country Control List
June 20, 2020
Export and Import Permits Act
Department of Foreign Affairs, Trade and Development
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
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, would allow 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.
This proposal seeks to
- lessen the competitive disadvantage that Canadian companies face compared to their international competitors; and
- allow Canadians who own one of the 1 500 models and variants of firearms that were reclassified as prohibited on May 1, 2020, additional options to dispose of them through export.
The following four countries are proposed for addition to the AFCCL: Austria, Ireland, Japan, and Switzerland.
The potential addition of Austria, Ireland, and Switzerland was the subject of previous consultations by Global Affairs Canada in 2012, and consultations on adding Japan were held more recently in 2017. The two consultations were conducted over a 30-day period on the Department’s website and stakeholders were invited to submit their comments. Comments received from industry stakeholders were supportive of the addition of the countries to the AFCCL. At the time, civil society stakeholders raised no concerns with any of the countries now proposed for addition.
Potential concerns about the export of AFCCL items are mitigated by the fact that all export permit applications are assessed on a case-by-case basis against the ATT assessment criteria, including for the potential that they could be used to commit human rights violations. If there is a substantial risk that an export may result in a human rights violation, the Minister is legally required to deny the export permit.
The AFCCL is established in legislation and amendments to the AFCCL can only be carried out through regulations made under the Act.
Benefits and costs
This proposal would provide substantial economic benefits to Canada. Given that this proposal would create 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 proposal. There is no fee to apply for a permit to export AFCCL items.
In terms of additional cost to government, the proposal 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 overall increase in the number of export permit applications of prohibited firearms over the short term, 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. While the addition of these four countries will provide more options to impacted owners, it will also likely 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 would benefit from this proposal are small businesses. In addition, many small businesses are integrated into the supply chains of some of the larger defence manufacturers that would benefit from this proposal through increased exports.
This proposal does not impose new administrative or compliance costs on small businesses. Therefore, the small business lens does not apply.
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 proposal 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 proposed amendments would more closely align Canada with other like-minded countries that 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 proposal.
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. Should the Minister determine that, after considering available mitigating measures, 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 proposal would likely bring due to increased exports, these benefits would not be shared evenly between genders. This is because those identifying as women only comprise 19% of the workforce in the defence industry.
The proposed countries are appropriate additions to the AFCCL as they are countries with which Canada has a positive defence cooperation and security relationship. All of the countries proposed for addition 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.
Implementation, compliance and enforcement, and service standards
The proposed Order would come into force on the day on which it is registered. On that day, the Export Controls Operations Division at Global Affairs Canada, which is responsible for issuing export permits, would 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 in 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.
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.
Export Controls Policy Division
Global Affairs Canada
125 Sussex Drive
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to sections 4.1 footnote a and 6 footnote b of the Export and Import Permits Act footnote c, proposes to make the annexed Order Amending the Automatic Firearms Country Control List.
Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Judy Korecky, Deputy Director, Export Controls Policy Division, Global Affairs Canada, 125 Sussex Drive, Ottawa, Ontario K1A 0G2 (email: Judy.Korecky@international.gc.ca).
Ottawa, June 18, 2020
Assistant Clerk of the Privy Council
Order Amending the Automatic Firearms Country Control List
1 The Automatic Firearms Country Control List footnote 1 is amended by adding the following in alphabetical order:
Coming into Force
2 This Order comes into force on the day on which it is registered.