Originally published in Blakes Bulletin on International
Trade & Investment, July 2010
Foreign Affairs and International Trade Canada (DFAIT) published
a proposed amendment to the Export Control List (ECL) in
the Canada Gazette Part I on June 19, 2010. The proposed
amendment is intended to clarify the scope of item 5505 –
Goods and Technology for Certain Uses. This "catch-all"
provision was first included on the ECL in 2002, in response to
Canada's international commitment to non-proliferation. It
covers goods and technology not included elsewhere on the ECL that
are intended for use in chemical, biological or nuclear weapons.
Canadian companies and individuals who export or may export goods
or technology under item 5505 may want to consider making
representations to the government concerning the proposed changes.
Representations should be submitted to the Export and Import
Controls Bureau by July 19, 2010.
Currently, Canada participates in four multilateral export
control regimes and is a party to the Nuclear Non-Proliferation
Treaty and to the Chemical Weapons Convention. As part of
Canada's international commitment to non-proliferation, it
maintains a list of goods and technology that can be used in the
development and production of weapons of mass destruction. This
list is known as the ECL. The ECL is governed by the Export and
Import Control Act, which delegates discretionary powers to
the Minister of Foreign Affairs to control the flow of certain
goods and technology from Canada, including goods listed on the
Because it is not possible to control all goods and technology
that have the potential to be used in the proliferation of
chemical, biological or nuclear weapons, Canada implemented a
catch-all control by adding item 5505 to the ECL in April 2002.
When items not listed elsewhere on the ECL are likely to be used in
an activity associated with the development or production of these
weapons, item 5505 imposes an export permit requirement on those
Since the implementation of the catch-all provision, the
Standing Joint Committee for the Scrutiny of Regulations has
requested confirmation of DFAIT's legislative authority to
implement the control and clarification as to when a permit is
required. The proposed amendment to item 5505 is designed to
address these concerns.
The proposed amendment to the ECL specifies that an exporter is
required to submit a permit application if the item's
properties (i.e., technical characteristics or capabilities) and
any other information made known to the exporter would lead a
reasonable person to suspect that the item will be used in the
specified proliferation contexts. The amendment further provides
that in addition to the reasonableness test outlined above, the
Minister of Foreign Affairs may determine that an item is likely to
be used in proliferation activities or facilities and may require
that a permit be obtained for that item.
The proposed amendment also seeks to reduce the number of exempt
destination countries. Currently, item 5505 designates specific
countries that are exempt from the requirement to apply for an
export permit, when the final destination of the goods or
technology is in one of those countries. The proposed amendment to
item 5505 will limit the number of permit-exempt destinations to
those countries that participate in all four multilateral export
control regimes. In addition, the permit-exempt destination list
will only apply to a portion of item 5505 and will not apply to
goods and technology that the Minister has determined require a
Finally, the proposed amendment will broaden the types of
weapons subject to control under item 5505. For example, once the
amendment has been added, goods and technology not listed elsewhere
and relating to nuclear explosive and radiological dispersal
devices will now be included under this item.
Once DFAIT has considered the submissions received in response
to the proposal, the proposed amendment will be published as an
adopted amendment having the force of law in the Canada Gazette
Part II. Either the amendment will automatically come into
force on the date of publication or a future date will be specified
in the published regulation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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