Canada Adopts New Export Controls and Amends Process for Introducing Future Controls

The Government of Canada recently announced changes to Canada’s Export Control List (“ECL”), which provides for the control of exports and transfers of goods and technology.[1] Among the more significant changes are new controls over exports and technology transfers related to software designed for monitoring or analysis by law enforcement, certain items designed to circumvent information security, and certain military-related software, including software for offensive cyber operations. 

The amendments to the ECL were published in an Order Amending the Export Control List, SOR/2021-121 (the “Order”) and come into force after July 23, 2021.

Overview

The specific items and technologies that are subject to export controls are listed in “A Guide to Canada’s Export Control List” (the “Guide”) and in a variety of multilateral common control lists. These common control lists, taken together, are exhaustive and contain all of the items and technologies subject to export controls. Accordingly, regulatory amendments (like the Order) are required to ensure that the ECL references the latest versions of the Guide and the common control lists.

The Order brings Canada’s export controls into compliance with its multilateral export control commitments made as of December 2020.[2] This follows a previous update to the Guide in March of 2020, which aligned Canada with its multilateral export control commitments made as of December 2018.[3]

There has historically been a lengthy gap between the date new export control commitments are made by Canada, and the date the required regulatory changes are made. The Order, however, contains amendments that will help to mitigate these delays in the future and that will remove the necessity for regulatory amendments as the Guide and the common control lists are updated.

Canadian companies that work with goods or technology subject to export controls should carefully review these new controls that come into force after July 23, 2021. They should also exercise increased vigilance over export and technology transfer controls in light of amendments to the ECL that could diminish the notice Canadian companies receive when new controls are introduced. The McCarthy Tétrault team will continue to canvass new export controls as they are developed and implemented.

Key Changes to Controlled Goods and Technology

The new Guide includes several key additions and updates. A number of minor clarifications and edits were also included that will not be specifically canvassed below.

New controls were added to “Group 1 – Dual Use List”, including:

  • Item 1-5.D.1.e: Software specifically designed for monitoring or analysis by law enforcement which provides for (1) the execution of searches on the basis of “hard selectors” of either the content of communication or metadata acquired from a communications service provider using a ‘handover interface’; and (2) mapping of the relational network or tracking the movement of targeted individuals based on the results of searches on content of communication or metadata or searches as described in 1-5.D.1.e.1.[4]
  • Item 1-5.A.4.b: Items designed to (1) ‘extract raw data’ from a computing or communications device; and (2) circumvent “authentication” or authorisation controls of the device, in order to perform the function described in 1-5.A.4.b.1.[5]
  • Item 1-9.A.4.h: Sub-orbital vehicles. These are vehicles that are designed with the ability to reach space, but without the ability to complete an orbit of the earth.[6]

A new control was added to “Group 2 - Munitions List”:

  • Item 2-21.b.5: Specific “Software” that is (1) specially designed for military use and specially designed for modelling, simulating or evaluating military weapon systems; (2) "Software" specially designed for military use and specially designed for modelling or simulating military operational scenarios; (3) "Software" for determining the effects of conventional, nuclear, chemical or biological weapons; (4) "Software" specially designed for military use and specially designed for Command, Communications, Control and Intelligence (C3I) or Command, Communications, Control, Computer and Intelligence (C4I) applications; (5) “Software” specially designed or modified for the conduct of military offensive cyber operations.

New controls were added to “Group 7 - Chemical and Biological Weapons Non-Proliferation List”, including:

  • Item 7-3.1: Several new families of toxic chemicals identified as Schedule 1 chemical weapons by the Organization for the Prohibition of Chemical Weapons. These chemicals do not have industrial applications and are not produced in Canada.[7]
  • Item 7-13.1.30: Middle East respiratory syndrome-related coronavirus (MERS-CoV).

No entries were deleted from the ECL in the December 2020 update.[8]

Avoiding Delay in Canada’s Implementation of its Multilateral Commitments

As set out above, the Order attempts to reduce the lag inherent in Canada’s regulatory approach to implementing its international export control commitments.

Canada participates in four multilateral export control regimes: the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Australia Group (which seeks to limit the spread of chemical and biological weapons).[9] Each regime maintains and annually updates common control lists that specify certain goods and technologies that will be subject to export controls.[10] These lists are referenced independently in the ECL, and their contents are incorporated into the Guide.

Changes to the Guide are generally incremental, however, major enhancements do sometimes occur when, for example, Canada becomes a State Party to a treaty. Canada’s becoming a State Party to the United Nations Arms Trade Treaty resulted in the addition of “Group 9 – Arms Trade Treaty” and the expansion of Canadian export and brokering controls, and was discussed in our previous posts here and here.

The Order takes steps to address the hamster wheel of never-ending “catch-up” with the Guide and various control lists. It amends the ECL’s definition of “Guide” with the text “as amended from time to time.”[11] Identical amendments were made throughout the ECL at each instance where common control lists are referenced. Together, these amendments mean that nearly all future updates to the Guide and to the referenced multilateral export control lists will be incorporated into the ECL without the need for a regulatory amendment, and without the notice and comment period that accompanies regulatory amendments.

While these changes make it easier for Canada to keep up with its international commitments, the Order may catch unaware those exporters that do not maintain sufficient vigilance in relation to changes. Global Affairs Canada has advised that registered users of Export Controls On-Line (“EXCOL”) will continue to receive 30-days’ notice in advance of changes to the ECL, and that a notice will be published on the Export Controls website to advise the public at each instance where the ECL is amended.[12] Until now, these changes only came into effect once published in the Canada Gazette. It is therefore more important than ever to register on EXCOL in order to receive notice, even for companies that do not currently transfer controlled goods and technology but may do so in the future.

 

[1]       https://canadagazette.gc.ca/rp-pr/p2/2021/2021-06-23/html/sor-dors121-eng.html

[2]       https://www.international.gc.ca/trade-commerce/guides/summary-resume.aspx?lang=eng

[3]       https://canadagazette.gc.ca/rp-pr/p2/2020/2020-04-01/html/sor-dors48-eng.html

[4]       https://www.international.gc.ca/trade-commerce/guides/export_control_list-liste_exportation_controlee.aspx?lang=eng#category1

[5]       https://www.international.gc.ca/trade-commerce/guides/export_control_list-liste_exportation_controlee.aspx?lang=eng#category1

[6]       https://www.international.gc.ca/trade-commerce/guides/summary-resume.aspx?lang=eng

[7]       https://www.international.gc.ca/trade-commerce/guides/summary-resume.aspx?lang=eng

[8]       https://www.international.gc.ca/trade-commerce/guides/summary-resume.aspx?lang=eng

[9]       https://www.international.gc.ca/trade-commerce/guides/export_control_list-liste_exportation_controlee.aspx?lang=eng#category1

[10]     https://canadagazette.gc.ca/rp-pr/p2/2021/2021-06-23/html/sor-dors121-eng.html

[11]     https://canadagazette.gc.ca/rp-pr/p2/2021/2021-06-23/html/sor-dors121-eng.html

[12]     This information was received in a clarification provided by the Export Controls Policy Team of Global Affairs Canada on July 22, 2021. The contents of this post have been updated accordingly.

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