This enactment amends the Export and Import Permits Act to

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:

An Act respecting the export, transfer and brokering of goods and technology and the import of goods

Définitions et interprétation

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) 

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 means a list of goods and technology established under section 4.‍11; (liste des marchandises de courtage contrôlé)

foreign country means a country other than Canada; (pays étranger)

organization has the same meaning as in section 2 of the Criminal Code; (organisation)

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.

• (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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

Retroactive permits

8.‍5 An export permit, import permit or brokering permit issued under this Act may, if the permit so provides, be retroactive.

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.

• (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

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.

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.

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.

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.

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.

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.

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.

• (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;

• (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

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

Offence and penalty

19 (1) Every person or organization that contravenes any provision of this Act or of the regulations is guilty of

• (a) an offence punishable on summary conviction and liable to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 12 months, or to both; or

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.

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.

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.

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.

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.

• (a) an information may include more than one offence committed by the same person or organization;

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.

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.

Reports to Parliament

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).

• (ii.‍1) section 14.‍2 (broker or attempt to broker),