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) (S.C. 2018, c. 26)
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Assented to 2018-12-13
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)
S.C. 2018, c. 26
Assented to 2018-12-13
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)
SUMMARY
This enactment amends the Export and Import Permits Act to
(a) define the term “broker” and to establish a framework to control brokering that takes place in Canada and that is undertaken by Canadians outside Canada;
(b) require that the Minister take into account certain considerations before issuing an export permit or a brokering permit;
(c) authorize the making of regulations that set out additional mandatory considerations that the Minister is required to take into account before issuing an export permit or a brokering permit;
(d) set May 31 as the date by which the Minister must table in both Houses of Parliament a report of the operations under the Act in the preceding year and a report on military exports in the preceding year;
(e) increase the maximum fine for a summary conviction offence to $250,000;
(f) replace the requirement that only countries with which Canada has an intergovernmental arrangement may be added to the Automatic Firearms Country Control List by a requirement that a country may be added to the list only on the recommendation of the Minister made after consultation with the Minister of National Defence; and
(g) add a new purpose for which an article may be added to an Export Control List.
The enactment amends the Criminal Code to include, for interception of private communications purposes, the offence of brokering in the definition of “offence” in section 183.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. E-19Export and Import Permits Act
Amendments to the Act
Marginal note:2004, c. 15, s. 52
1 The long title of the Export and Import Permits Act is replaced by the following:
2 The heading before section 2 of the French version of the Act is replaced by the following:
Définitions et interprétation
Marginal note:2004, c. 15, s. 53(2)
3 (1) The definition technology in subsection 2(1) of the Act is replaced by the following:
- technology
technology includes technical data, technical assistance and information necessary for the development, production or use of an article included in an Export Control List or a Brokering Control List; (technologie)
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- broker
broker means to arrange or negotiate 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, including a transaction referred to in subsection (1.1); (courtage)
- Brokering Control List
Brokering Control List means a list of goods and technology established under section 4.11; (liste des marchandises de courtage contrôlé)
- foreign country
foreign country means a country other than Canada; (pays étranger)
- organization
organization has the same meaning as in section 2 of the Criminal Code; (organisation)
(3) Section 2 of the Act is amended by adding the following after subsection (1):
Marginal note:Transaction — brokering
(1.1) For the purpose of the definition broker, a transaction that relates to the movement of goods or technology includes a transaction that relates to its acquisition or disposition, and a transaction that relates to the movement of technology also includes a transaction that relates to the disclosure of its contents.
4 Subsection 3(1) of the Act is amended by striking out “or” at the end of paragraph (e), by adding “or” at the end of paragraph (f) and by adding the following after paragraph (f):
(g) to facilitate the collection of information in respect of the exportation of goods that were, are, or are likely to be, the subject of trade investigations or trade disputes.
Marginal note:1995, c. 39, s. 171
5 Section 4.1 of the Act is replaced by the following:
Marginal note:Automatic Firearms Country Control List
4.1 The Governor in Council may, on the recommendation of the Minister made after consultation with the Minister of National Defence, establish a list of countries, to be called an Automatic Firearms Country Control List, to which the Governor in Council considers it appropriate to permit the export of any of the following that is included in an Export Control List, or any component or part of any such thing:
(a) a prohibited firearm described in paragraph (c) or (d) of the definition prohibited firearm in subsection 84(1) of the Criminal Code;
(b) a prohibited weapon described in paragraph (b) of the definition prohibited weapon in that subsection; or
(c) a prohibited device described in paragraph (a) or (d) of the definition prohibited device in that subsection.
Marginal note:Brokering Control List
4.11 (1) The Governor in Council may establish a list of goods and technology, to be called a Brokering Control List, including in it any article that is included in an Export Control List the brokering of which the Governor in Council considers it necessary to control.
Marginal note:Conditions
(2) The description of any article set out in the Brokering Control List may contain conditions that are based on approvals, classifications or determinations made by specified persons or specified government entities, including foreign government entities. For greater certainty, those conditions may differ from any conditions set out in the description of that article in the Export Control List.
Marginal note:1991, c. 28, s. 3
6 Section 6 of the Act is replaced by the following:
Marginal note:Amendment of lists
6 The Governor in Council may revoke, amend, vary or re-establish any Area Control List, Automatic Firearms Country Control List, Brokering Control List, Export Control List or Import Control List.
Marginal note:2004, c. 15, s. 56
7 Subsection 7(1.01) of the Act is repealed.
8 The Act is amended by adding the following after section 7:
Marginal note:Brokering permits
7.1 (1) The Minister may issue to any person or organization, on application by them, a permit to broker in relation to any goods or technology specified in the permit, subject to the terms and conditions specified in the permit or in the regulations.
Marginal note:General permit to broker
(2) Despite subsection (1), the Minister may, by order, issue generally to all persons and organizations a general permit to broker in relation to any goods or technology specified in the permit, subject to any terms and conditions specified in the permit.
Marginal note:Security considerations — export and brokering
7.2 In deciding whether to issue a permit under subsection 7(1) or 7.1(1), the Minister may, in addition to any other matter that the Minister may consider, take into consideration whether the goods or technology specified in the application for the permit may be used for a purpose prejudicial to the safety or interests of the State by being used to do anything referred to in paragraphs 3(1)(a) to (n) of the Security of Information Act.
Marginal note:Mandatory considerations — export and brokering
7.3 (1) In deciding whether to issue a permit under subsection 7(1) or 7.1(1) in respect of arms, ammunition, implements or munitions of war, the Minister shall take into consideration whether the goods or technology specified in the application for the permit
(a) would contribute to peace and security or undermine it; and
(b) could be used to commit or facilitate
(i) a serious violation of international humanitarian law,
(ii) a serious violation of international human rights law,
(iii) an act constituting an offence under international conventions or protocols relating to terrorism to which Canada is a party,
(iv) an act constituting an offence under international conventions or protocols relating to transnational organized crime to which Canada is a party, or
(v) serious acts of gender-based violence or serious acts of violence against women and children.
Marginal note:Additional mandatory considerations
(2) In deciding whether to issue a permit under subsection 7(1) or 7.1(1), the Minister shall also take into consideration the considerations specified in regulations made under paragraphs 12(a.2) or (a.3).
Marginal note:Substantial risk
7.4 The Minister shall not issue a permit under subsection 7(1) or 7.1(1) in respect of arms, ammunition, implements or munitions of war if, after considering available mitigating measures, he or she determines that there is a substantial risk that the export or the brokering of the goods or technology specified in the application for the permit would result in any of the negative consequences referred to in subsection 7.3(1).
Marginal note:2006, c. 13, s. 112
9 Section 8.5 of the Act is replaced by the following:
Marginal note:Retroactive permits
8.5 An export permit, import permit or brokering permit issued under this Act may, if the permit so provides, be retroactive.
Marginal note:2006, c. 13, s. 114
10 (1) Subsection 10.2(1) of the Act is replaced by the following:
Marginal note:Inspection
10.2 (1) An inspector may, at all reasonable times, for any purpose related to the administration or enforcement of this Act, inspect, audit or examine the records of any person or organization that has applied for a permit, an import allocation, an export allocation, a certificate or another authorization under this Act in order to determine whether that or any other person or organization is in compliance with this Act.
Marginal note:2006, c. 13, s. 114
(2) Paragraph 10.2(2)(a) of the Act is replaced by the following:
(a) enter any place in which the inspector reasonably believes the person or organization keeps records or carries on any activity to which this Act applies; and
Marginal note:2006, c. 13, s. 114
11 (1) Subsection 10.3(1) of the Act is replaced by the following:
Marginal note:Keeping records
10.3 (1) Every person or organization that applies for a permit, import allocation, export allocation, certificate or other authorization under this Act shall keep all records that are necessary to determine whether they have complied with this Act.
Marginal note:2006, c. 13, s. 114
(2) Subsections 10.3(4) to (8) of the Act are replaced by the following:
Marginal note:Electronic records
(4) Every person or organization that is required to keep a record and that does so electronically shall ensure that all equipment and software necessary to make the record intelligible are available during the retention period required for the record.
Marginal note:Inadequate records
(5) If a person or organization fails to keep adequate records for the purposes of this Act, the Minister may, in writing, require them to keep any records that the Minister may specify, and they shall keep the records specified by the Minister.
Marginal note:General period for retention
(6) Every person or organization that is required to keep records shall retain them until the expiry of six years after the end of the year to which they relate or for any other period that may be prescribed by regulation.
Marginal note:Demand by Minister
(7) If the Minister is of the opinion that it is necessary for the administration or enforcement of this Act, the Minister may, by a demand served personally or sent by mail, require any person or organization that is required to keep records to retain those records for any period that is specified in the demand, and the person or organization shall comply with the demand.
Marginal note:Permission for earlier disposal
(8) A person or organization that is required to keep records may dispose of them before the expiry of the period during which they are required to be kept if written permission for their disposal is given by the Minister.
Marginal note:For greater certainty — firearms
(9) For greater certainty, this section applies in respect of a firearm only if the firearm is included in the Export Control List, Brokering Control List or Import Control List and it is the subject of an application for a permit, certificate or other authorization under this Act.
Marginal note:2006, c. 13, s. 115
12 (1) Paragraph 12(b) of the Act is replaced by the following:
(a.2) specifying, for the purposes of subsection 7.3(2), considerations that the Minister shall take into consideration when deciding whether to issue an export permit under subsection 7(1) in respect of goods or technology included in the Export Control List;
(a.3) specifying, for the purposes of subsection 7.3(2), considerations that the Minister shall take into consideration when deciding whether to issue a brokering permit under subsection 7.1(1) in respect of goods or technology included in a Brokering Control List;
(b) respecting information to be supplied by persons and organizations that have been issued or granted permits, import allocations, export allocations, certificates or other authorizations under this Act and any other matter associated with their use;
Marginal note:2004, c. 15, s. 58
(2) Paragraph 12(e) of the Act is replaced by the following:
(e) exempting any person or organization, any goods or technology or any class of persons or organizations, goods or technology from the operation of any or all of the provisions of this Act;
(e.1) specifying activities or classes of activities that do not constitute brokering for the purposes this Act; and
13 The Act is amended by adding the following after section 14.1:
Marginal note:Broker or attempt to broker
14.2 (1) No person or organization shall broker, or attempt to broker, except under the authority of and in accordance with a brokering permit issued under this Act.
Marginal note:Exception
(2) A person or organization does not contravene subsection (1) if, at the time of the alleged contravention, they would have brokered under the authority of and in accordance with a brokering permit issued under this Act had they applied for it, and if, after the alleged contravention, the permit is issued.
Marginal note:Act or omission outside Canada
(3) Every person or organization that commits an act or omission outside Canada that, if committed in Canada, would constitute a contravention of subsection (1) — or a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, such a contravention — is deemed to have committed that act or omission in Canada if they are
(a) a Canadian citizen;
(b) a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act who, after the commission of the act or omission, is present in Canada; or
(c) an organization that is incorporated, formed or otherwise organized under the laws of Canada or a province.
Marginal note:Jurisdiction
(4) If a person or organization is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (3), proceedings for an offence in respect of that act or omission may, whether or not they are in Canada, be commenced in any territorial division in Canada. The person or organization may be tried and punished for that offence as if the offence had been committed in that territorial division.
Marginal note:Appearance at trial
(5) For greater certainty, the provisions of the Criminal Code relating to the requirements that a person or organization appear at and be present during proceedings and the exceptions to those requirements apply to proceedings commenced in any territorial division under subsection (4).
Marginal note:Previously tried outside Canada
(6) If a person or organization is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (3) and they have been tried and dealt with outside Canada for an offence in respect of the act or omission so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada.
Marginal note:Exception for foreign trials in absentia
(7) Despite subsection (6), a person or organization may not plead autrefois convict to a count that charges an offence in respect of the act or omission if
(a) the person or organization was not present and was not represented by counsel acting under the person or organization’s instructions at the trial outside Canada; and
(b) the person or organization was not punished in accordance with the sentence imposed on conviction in respect of the act or omission.
Marginal note:2004, c. 15, s. 61
14 Section 16 of the Act is replaced by the following:
Marginal note:No transfer or unauthorized use of permits
16 No person or organization that is authorized under a permit issued under this Act to export or transfer goods or technology, to import goods or to broker shall transfer the permit to, or allow it to be used by, a person or organization that is not so authorized.
Marginal note:2006, c. 13, ss. 117 and 125
15 Sections 17 and 18 of the Act are replaced by the following:
Marginal note:False or misleading information, and misrepresentation
17 No person or organization shall knowingly furnish any false or misleading information or knowingly make any misrepresentation in any application for a permit, import allocation, export allocation, certificate or other authorization under this Act or for the purpose of procuring its issue or grant or in connection with any subsequent use of the permit, import allocation, export allocation, certificate or other authorization or the exportation, importation, brokering, transfer or disposition of goods or technology to which it relates.
Marginal note:Aiding and abetting
18 No person or organization shall knowingly induce, aid or abet any person or organization to contravene any of the provisions of this Act or of the regulations.
Marginal note:1991, c. 28, s. 5(1)
16 (1) The portion of subsection 19(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Offence and penalty
Marginal note:2004, c. 15, s. 63
(2) Subsection 19(3) of the Act is replaced by the following:
Marginal note:Consent of Attorney General
(2.1) No proceedings for an offence in respect of the contravention of subsection 14.2(1) that is deemed to have been committed in Canada under subsection 14.2(3) may be commenced without the consent of the Attorney General of Canada.
Marginal note:Factors to be considered when imposing sentence
(3) If an offender is convicted or discharged under section 730 of the Criminal Code in respect of an offence under this Act, the court imposing a sentence on or discharging the offender shall, in addition to considering any other relevant factors, consider the nature and value of the exported or transferred goods or technology, or the imported goods, that are the subject-matter of the offence or, in the case of a contravention of subsection 14.2(1), the goods or technology to which the offence relates.
17 Sections 20 and 21 of the Act are replaced by the following:
Marginal note:Officers, etc., of organization
20 If an organization commits an offence under this Act, any officer or director of the organization that directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the organization has been prosecuted or convicted.
Marginal note:Applicant for permit for non-resident
21 If a permit, other than a brokering permit, is issued under this Act to a person who has applied for it for, on behalf of, or for the use of, another person who is not a resident of Canada and that other person commits an offence under this Act, the person who applied for the permit is, whether or not the non-resident has been prosecuted or convicted, guilty of the like offence and liable, on conviction, to the punishment provided for the offence, on proof that the act or omission constituting the offence took place with the knowledge or consent of the person who applied for the permit or that the person who applied for the permit failed to exercise due diligence to prevent the commission of the offence.
18 (1) Subsection 22(1) of the English version of the Act is replaced by the following:
Marginal note:Venue
22 (1) Any proceeding in respect of an offence under this Act may be instituted, tried or determined at the place in Canada where the offence was committed or at the place in Canada in which the accused is, resides or has an office or place of business at the time of institution of the proceedings.
(2) Paragraph 22(2)(a) of the Act is replaced by the following:
(a) an information may include more than one offence committed by the same person or organization;
19 The Act is amended by adding the following after section 23:
Marginal note:Evidence — Brokering Control List
23.1 (1) The original or a copy of a bill of lading, customs form, commercial invoice or other document is admissible in evidence in any prosecution under this Act in respect of any goods or technology included in a Brokering Control List if it appears from the document that
(a) the goods or technology was sent or shipped from a foreign country or the goods or technology was destined for a foreign country;
(b) a person or organization, as shipper, consignor or consignee, sent or shipped the goods or technology from a foreign country or brought the goods or technology into foreign country; or
(c) the goods or technology were sent or shipped to a destination or to a person or organization other than as authorized in the brokering permit relating to the goods or technology.
Marginal note:Proof of the facts
(2) In the absence of evidence to the contrary, a document that is admissible in evidence under subsection (1) is proof of any of the facts set out in paragraph (1)(a), (b) or (c) that appear from the document.
Marginal note:R.S., c. 1 (2nd Supp.), s. 213(1) (Sch. I, subitem 4(2)); amended, 1995, c. 5, par. 26(1)(b) and 2013, c. 33, par. 195(1)(b)
20 Section 26 of the Act is repealed.
21 Section 27 of the Act and the heading before it are replaced by the following:
Reports to Parliament
Marginal note:Annual reports
27 No later than May 31 of each year, the Minister shall prepare and cause to be laid before each House of Parliament a report of the operations under this Act for the preceding year and a report in respect of arms, ammunition, implements and munitions of war, that were exported in the preceding year under the authority of and in accordance with an export permit issued under subsection 7(1).
Transitional Provision
Marginal note:Automatic Firearms Country Control List
22 Every country that is included in the Automatic Firearms Country Control List, as defined in subsection 2(1) of the Export and Import Permits Act, immediately before the day on which section 5 of this Act comes into force is deemed to have been included in that list, on that day, under section 4.1 of the Export and Import Permits Act, as enacted by that section 5.
Amendment to the Criminal Code
23 Paragraph (h) of the definition offence in section 183 of the Criminal Code is amended by adding the following after subparagaph (ii):
(ii.1) section 14.2 (broker or attempt to broker),
Coming into Force
Marginal note:Order in council
24 The provisions of this Act, other than section 20, come into force on a day or days to be fixed by order of the Governor in Council.
- Date modified: