The intersection between national security research guidelines and export/import laws in Canada: What institutions should know

9 minute read
17 November 2023

The old adage "knowledge is power" is true now more than ever. It is widely known that sensitive research areas have become key assets for foreign governments looking for insight into Canada's innovation and industry sectors (see CSIS Annual Report, 2022, p 14). These trends were recently publicly acknowledged by the head of Canada's Security and Intelligence Service.

In these critical times, universities and colleges are being encouraged to mitigate their exposure to foreign influence and protect their research interests. In some cases, the absence of mitigation measures could adversely impact research funding opportunities, integrity and more importantly, academic reputation.

Research compliance beyond borders

Some research areas are regulated through legislation and regulation. For example, where research is related to military/defence, conventional weapons and dual-use goods, and technology is being transferred beyond Canadian borders, researchers may be subject to the permit regime under the Export and Import Permits Act (EIPA), which regulates exports and transfers of items on the Export Control List and other lists. Research involving nuclear items and associated technology may also be subject to the EIPA, as well as the Nuclear Safety and Control Act and the Nuclear Non-proliferation Import and Export Control Regulations. Similarly, research related to items on the Controlled Goods List under the Defence Production Act (including primarily military/defence items as well as all ITAR-controlled U.S. origin items), may also be subject to the requirements established by the Controlled Goods Program, which requires registration based on mere possession of the item, even in circumstances where the technology will stay wholly within Canada.

Additionally, research partnerships with institutions and/or researchers located within any of the countries against which Canada has imposed economic sanctions pursuant to the Special Economic Measures Act or the United Nations Act require particular care and scrutiny. These initiatives require screening to ensure that no activities are occurring with sanctioned persons and entities, and that the research does not result in a sanctions violation, for example, by making goods available to a sanctioned party or by transferring/exporting technology and technical data that is captured on additional lists of restricted items imposed under the sanctions regimes.

Considering Canada's frequent collaborations with U.S.-based researchers on research that has a connection to the U.S., such as those involving U.S.-origin technology, thought leaders must also be aware that these partnerships could implicate the complex United States export control and sanctions regime, which often applies extraterritorially to activities that occur wholly within other countries. The U.S. regime is rigorously enforced and carries severe penalties.

Other research areas can be murkier. These tend to be areas involving goods and technologies that may be dual use in a broad sense (due to potential use for both military and civilian purposes), but that may not be specifically listed on Canada's Export Control List – perhaps due to their newness and/or stage of development (e.g. nanotechnology). However, the Government of Canada Guidelines applicable to research are broader than strict legal requirements, and therefore require precise analysis in case-by-case scenarios.

Understanding National Security Guidelines for research collaboration in sensitive and dual-use areas

The National Security Guidelines for research partnerships have been offered as a framework for research institutions doing research in sensitive (e.g. critical infrastructure, big data, critical minerals) or dual-use areas. The Guidelines are meant to be general in nature, but they are designed to encourage transparency in research. They include academic freedom, institutional autonomy, freedom of expression, equity, diversity and inclusion, research in the public interest, transparency, integrity and collaboration. It is expected that, where research projects do not bear these hallmarks, some due diligence is required to ensure that one is not embroiled in research that is intended to enhance foreign interference efforts.

Annex A of the Guidelines lists a host of sensitive areas of research that may also be considered dual-use, include but are not limited to:

  • advanced materials and manufacturing
  • artificial intelligence
  • space technology
  • biotechnology
  • advanced weapons
  • medical technology

Notably, many technologies that fall within the scope of the categories above will be subject to legal restrictions in the form of export controls, while others may not be due to comprising more general research or due to their pre-application stage of development.

"Sensitive" technologies as referenced in the Guidelines are always in a state of flux depending on perceived vulnerabilities, and currently include research areas such as critical minerals and infrastructure, and research that relies on personal data or large datasets.

Innovation, Science and Economic Development Canada offers an assessment form that can be filled out by researchers to request due diligence checks. There are no set service standards for feedback following the completion of these forms.

Ten considerations for establishing research partnerships in sensitive areas

Academic institutions should think critically about mitigating risk while not undermining their academic freedom and research integrity. In doing so, below are 10 considerations you should reflect on when forging research partnerships in sensitive or (broadly speaking) dual-use areas:

  1. Do you have a policy in place to ensure compliance with the legal requirements imposed by Canada's export control and economic sanctions regimes? Does the policy account for the fact that research may also implicate U.S. or other foreign jurisdiction export controls and economic sanctions laws?
  2. Have you assessed any potential affiliations between your research partners and any sanctioned entities? What is the proximity of these affiliations?
  3. Have you assessed whether your research, or certain aspects of it, touch on a sensitive area – whether explicitly identified in the National Research Guidelines or not – that could potentially run counter to national interests? 
  4. How well do you know your research team and research partners? Have you made inquiries of your partners in terms of who is on the team and their respective backgrounds? Do you have policies in place for your researchers to report the involvement of new affiliates or partners?
  5. Have you worked with external providers (IT, forensics, legal) to ensure that you have robust cyber security measures and policies in place in the event of a cyberattack on your institution's database?
  6. Have you studied the relationship between your research affiliate and their government? What conditions, if any, does your research partner have on their research with respect to confidentiality or scope?
  7. Are there parameters to your research that have been set by your partners? If so, what are those parameters and who set them?
  8. Who will ultimately use your research? Is there an intended audience? Will the results be made public? Is the end-user exclusively your affiliate or partner?
  9. Are you receiving another stream or source of dollars from your partner? Where is your partner receiving this source of income from and who are the donors?
  10. Are there elements of your project that are exclusively being researched by your partners or their affiliates? If so, do you have a line of sight on these areas of research and their end-use?

For specific legal advice as to whether your research would constitute a sensitive or dual-use purpose, please contact one of the authors.

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