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Regulation of Controlled Military Goods and Technology in Canada and Conflicts with U.S. ITAR John W. Boscariol jboscariol@mccarthy.ca May 12, 2010 Export Compliance Training Institute Export Compliance Training Institute U.S. Export Controls on Non U.S. Export Controls on Non-U.S U.S. Transactions . Transactions A Practical Guide A Practical Guide at Le Centre Sheraton Montreal Hotel at Le Centre Sheraton Montreal Hotel Montreal, Ontario Montreal, Ontario Docs-#1227491
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  • Regulation of Controlled Military Goods and Technology in Canada and Conflicts with U.S. ITAR

    John W. Boscariol

    [email protected]

    May 12, 2010

    Export Compliance Training InstituteExport Compliance Training Institute

    U.S. Export Controls on NonU.S. Export Controls on Non--U.SU.S. Transactions. TransactionsA Practical GuideA Practical Guide

    at Le Centre Sheraton Montreal Hotelat Le Centre Sheraton Montreal HotelMontreal, Ontario Montreal, Ontario

    Docs-#1227491

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 1

    Today’s Focus

    • Canada’s Controlled Goods Program

    • interaction with U.S. ITAR

    • conflict with Canadian human rights and employment laws

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 2

    Canada’s Controlled Goods Program

    • domestic industrial security program

    • administered by the Controlled Goods Directorate (CGD) (part of Public Works and Government Services Canada)

    • background and history

    • relationship with U.S. ITAR and “Canadian exemption”

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 3

    Canada’s Controlled Goods Program (cont’d)

    • CGP applies to:

    • most ECL Group 2 munition items, including military simulators

    • ECL item 5504 (strategic goods)

    • ECL Group 6 items (missile)

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 4

    Canada’s Controlled Goods Program (cont’d)

    • key CGP obligations

    • registration required in order to examine, possess or transfer a controlled good

    • maintain security

    • prevent unauthorized transfers, examinations

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 5

    So We Have Controlled Goods, What Now?

    • as a CGP registrant, you must:

    • perform a “security risk management assessment”

    • develop and implement a written security plan

    • appoint a Designated Official

    • maintain records and supporting documentation

    • provide training programs and security briefings

    • advise CGD of any security breaches

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 6

    So We Have Controlled Goods, What Now? (cont’d)• ongoing duties of the Designated Officer

    • conduct security assessments of individuals requiring access to controlled goods or technology

    • determine extent to which individual poses risk of violation

    • make and keep individual evaluations of honesty, reliability and trustworthiness

    • authorize extent to which individuals may examine, possess, transfer controlled goods or technology

    • submit applications to CGD for temporary workers / visitors to access controlled goods or technology

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 7

    Who Can Access Controlled Goods at Your Facility?• access to your controlled goods and

    technology will be limited to:

    • officers, directors and employees authorized by DO

    • temporary workers or visitors (not Canadian citizens or residents) proposed by DO and authorized by CGD

    • contractual workers that are registered or employees of registered firm

    • officers, directors and employees of US companies registered under ITAR

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 8

    What About Exporting a Controlled Good or Technology?

    • exporting most controlled goods items from Canada for end-use in the United States does not require a permit

    • exporting controlled goods items to other destinations

    • must apply to DFAIT’s Export Controls Division for export permit and provide evidence of registration under CGP

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 9

    Canadian Human Rights vs. ITAR / EAR

    • compliance with U.S. ITAR licensing requirements

    • in order to benefit from “Canadian exemption”, transfers of technical data and defence services must be to Canadian registered persons • exemption unavailable if “dual national” of a proscribed country,

    including those holding citizenship or perhaps born there

    • terms of TAA or MLA approved by State may allow transfers only to certain “dual nationals”

    • compliance may require Canadian companies to determine citizenship, country of origin/birth, exclude access to certain areas, projects• may also require application for license or TAA/MLA amendments

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 10

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • compliance with U.S. EAR

    • deemed re-export: release of EAR-controlled technology or source code in Canada to a third country national

    • general BIS policy: last permanent resident status or citizenship obtained governs

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 11

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • but may not be the case where the Canadian citizen or permanent resident was born in or holds citizenship in certain sanctioned countries

    • temporary residents, students

    • in order to comply, companies in Canada may be required to determine country of birth, citizenship

    • if licence denied, required to restrict individual’s access to the controlled technology or software

    • denial of employment

    • denial of advancement, training opportunities

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 12

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • compliance in Canada with human rights law

    • Charter of Rights and Freedoms

    • federal human rights code

    • provincial human rights codes

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 13

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • the Ontario Human Rights Code: “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.”

    • prohibited grounds of discrimination under Canadian Human Rights Act:

    “For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.”

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 14

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • prima facie breach of Canadian human rights law, if on basis of citizenship or country of origin:

    • terminate an employee

    • deny employment

    • restrict access to training

    • treat others preferentially

    • promotions

    • overtime

    • scheduling

    • also - asking about citizenship, nationality, country of birth

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 15

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • possible defence to a complaint

    • bona fide occupational requirement

    • rule is rationally connected to job performance

    • adopted in honest and good faith belief that it is necessary

    • reasonably necessary and impossible to accommodate without imposing undue hardship

    • no case law re compliance with discriminatory laws

    • drug testing policy – accommodate to point of undue hardship

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 16

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • employees identified on “warning lists”?

    • not an enumerated ground under human rights codes

    • but wrongful dismissal case?

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 17

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • examples of conflicts (ITAR)

    • Standard Aero (1999- Manitoba Human Rights Commission)

    • Canadian citizen, born in Libya

    • student denied opportunity to participate in practical training at Aero

    • settled

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 18

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • examples of conflicts (ITAR) (cont’d)

    • General Motors Defense (2007 – Ontario Human Rights Commission)

    • complaints by six employees, Canadian citizens or landed immigrants, citizenships of third countries (ITAR proscribed states)

    • employees sent home with pay, restricted their access to information, reassignments

    • settled, including monetary remedies

    • employer to make “all reasonable efforts to secure such lawful permission as may be obtained to minimize any differential treatment”

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 19

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • examples of conflicts (ITAR) (cont’d)

    • Bell Helicopter (2008 – Quebec Human Rights Commission)

    • complainant born in Haiti, Canadian citizen for 30 years

    • applied for and hired on internship and training

    • subsequently denied internship because of ITARrules

    • claim for damages settled

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 20

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • Québec Human Rights Commission

    • “reiterates its opposition to the application of the ITAR rules in Québec because of their discriminatory impact”

    • “they include requirements that are inconsistent with the Québec Charter of Human Rights and Freedoms”

    • “can no longer accept that companies established in Québec submit to foreign rules that infringe on the values and rights of citizens as recognized by the National Assembly”

    • “following the political developments in this matter attentively … any person that believes that his or her rights have been infringed by the application of the ITAR rules may rely on the services of the Commission”

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 21

    Canadian Human Rights vs. ITAR / EAR (cont’d)

    • is there a solution?

    • May 17, 2007 – Department of National Defence agreement with U.S. State Department

    • access to ITAR defence articles and services

    • DND personnel who are Canadian citizens, even if dual nationals

    • possess minimum Secret-level security clearance, and need to know

    • includes Canadian Forces, civilians, embedded contractors, employees of other government department working with DND

    • June 19, 2007 – Canadian Communication Security Establishment, Canadian Space Agency, and National Research Council

    • private sector?

    • March 2009 request by DDTC to National Security Council to review treatment of foreign nationals under U.S. export control laws

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 22

    Proposed ITAR Revisions

    • March 10, 2010 U.S. Administration announcement

    • revise ITARs to eliminate the need for a separate license for foreign persons with dual- or third-country origins or nationality employed by a company, government, or international organization that is a recipient of USML exports

    • “danger of diversion to a proscribed destination does not come from dual- or third-country national who may have a relationship with a proscribed destination and who may have gained inadvertent access to U.S. technology, but rather from a foreigngovernment, company or organization that would deliberately sanction such access”

    • “begin to standardize the licensing treatment of dual- and third-country nationals under the U.S. Munitions and U.S. dual-use export control systems”

  • John W. Boscariol, McCarthy Tétrault LLP, International Trade and Investment Law Group Slide 23

    Canadian Human Rights vs. ITAR / EAR

    • in the meantime …

    • complaint-based process – you will be vulnerable

    • caution in making employee inquiries – sensitivities

    • steps to minimize exposure to human rights action

    • retaining Canadian labour/human rights counsel

    • undertaking best efforts to apply and obtain license

    • explaining the process, keeping employees apprised

    • accommodating to point of undue hardship

  • John W. BoscariolPartner McCarthy Tétrault LLPSuite 5300Toronto Dominion Bank TowerToronto-Dominion CentreToronto, Ontario M5K 1E6www.mccarthy.caDirect Line: 416-601-7835 E-mail: [email protected]