Passing judgment on Canada’s export of military goods

By Justin Ling January 26, 201726 January 2017

Passing judgment on Canada’s export of military goods

A law professor’s personal quest to force the Minister of Foreign Affairs to account for the decision to sell armoured vehicles to Saudi Arabia — and to justify that decision to the court — has reached the end of the road.

In a decision passed down by the Federal Court on Tuesday, Justice Danièle Tremblay-Lamer found that while the decision to sign off on the $15-billion export of arms to the Saudi government is reviewable by the courts, the minister retains a broad discretionary power to approve such sales.

The decision was a mixed bag for Daniel Turp (pictured above), a Université de Montréal professor in international law: It amounts to a recognition that litigants can, against the protests of the Attorney General, file such applications in the court; there remains, however, a high bar to succeed in such cases.

Turp, also a former Bloc québécois MP, was arguing, as Tremblay-Lamer put it, that “all that is required” for the court to find that the ministry broke its own export rules “is a reasonable risk that the arms will be used in a prohibited manner” — meaning that no clear evidence that the arms had used is such a way was required. “Saudi Arabia’s past and present conduct were sufficient to establish that risk.”

The Attorney General fought back, in arguing that it’s the minister’s prerogative to determine those parameters: “Existing guidelines and policies provide for strict controls over the export of goods such as LAVs, but contain no prohibitions,” they argued.

While the court should consider cases such as these on a public interest standing, Tremblay-Lamer ruled, there must be a reviewable error present in the minister's process for the court to allow the judicial review that Turp was asking for.

“I am of the opinion that the Minister remains free to issue an export permit if he concludes that it is in Canada’s interest to do so, considering the relevant factors,” the justice wrote.

Cyndee Todgham Cherniak, founding lawyer of boutique trade law firm LexSage, noted the importance of the ruling, writing: “The Federal Court was cautious to allow concerns to be heard and considered whether those concerns were valid in the context of Canada’s export controls laws and the limitations of judicial reviews as a dispute settlement/review mechanism.” And, she notes, the court is cognizant of its role in the process.

“The Federal Court will not pass moral judgement and substitute views for that of the Minister and bureaucrats with export controls experience,” she writes.

But while the bar for judicial review — or for finding an actual finding of fault on the part of the minister — is quite high, Todgham Cherniak expects greater scrutiny in our international dealing. “Canadian businesses must be aware that things are changing and be more vigilant in their export controls compliance,” she writes. “It is possible that their transactions may be put under a microscope of public opinion and judicial review.”

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