Recent Developments in the Application of ITAR Dual Nationality Rules in Canada

National Security Law (NSL), 8, p.349-50.


Since research for NSL was completed, there have been several developments in US ITAR export controls and employment by Canadian defence contractors of dual nationals with a nationality from a state on the US proscribed list. First, in May 2007, the Department of National Defence (DND) announced a settlement with the U.S. government permitting DND “personnel” with the problematic nationalities to be omitted from the ITAR rules. As described by DND, “access to defence articles and services exported under the ITAR will be granted to DND personnel who are Canadian citizens, including dual nationals, who have a need to know and a minimum secret-level security clearance. DND personnel include Canadian Forces members, civilian employees, embedded contractors, and employees of other government departments working within DND. Canadian standards and procedures will continue to be used to process security clearances.”


Second, in July 2007, the Ontario Human Rights Commission announced a settlement in the several human rights complaints that had been brought against General Motors by dual nationals (with a nationality from an ITAR proscribed state). As described by the Commission, “[m]onetary remedies were provided to the complainants. Under the settlement, General Dynamics Land Systems Canada Corporation will continue with its practice of making all reasonable efforts to secure such lawful permission as may be obtained to minimize any differential treatment for such employees.”


Most recently, on January 18, 2008, a similar settlement was announced in a human rights complaint brought against Bell Helicopter in relation at the Quebec Human Rights Commission. In reporting the settlement, however, the Commission also underscored “its opposition to the application of the ITAR rules in Québec because of their discriminatory impact. It has conducted a legal analysis of the rules and concluded that they include requirements that are inconsistent with the Québec Charter of Human Rights and Freedoms. More specifically, they infringe the right to equality without discrimination based on ethnic or national origin.”


Given this observation, it seems certain that compliance with ITAR dual nationality rules will continue to raise human rights difficulties for Canadian defence contractors unless some sort of settlement on the issue is reached between the Canadian and U.S. governments.