Foreign Affairs Committee on Nov. 7th, 2013

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference of Friday, October 25, 2013, discussion of Bill C-6, An Act to implement the Convention on Cluster Munitions will start today.

I want to thank our guests for taking the time to be here and, as usual, for being here on such short notice as well.

We have Hugh Adsett, who is the deputy legal adviser and director general for the legal affairs bureau with DFATD. Welcome, sir.

We have Sabine Nolke, who is the director general of the non-proliferation and security threat reduction bureau, also from DFATD. Thank you, and welcome to you.

We have Brigadier-General Charles Lamarre, director general of operations in the strategic joint staff of the Department of National Defence. Thank you, and welcome to committee.

Joining him is Lieutenant-Colonel Chris Penny, who is from the directorate of international and operational law, in the office of the judge advocate general. Welcome, sir, to you as well.

Rounding it out at the end of the table, from the Department of Justice, we have Christopher Ram, legal counsel from the criminal law policy section. Welcome.

We're getting started a little bit early today. It is Thursday, so depending upon how many questions MPs want to ask, we'll go right to 5:30 or we may go sooner. Because it's Thursday afternoon, who knows? Maybe we'll finish a little bit early, as long as all the questions have been answered, and we'll certainly give all our colleagues here a chance to do that.

I'm going to start with Madam Nolke and her presentation.

You each have up to 10 minutes. I'm not sure—I thought it was maybe 10 minutes, 5 minutes, and 5 minutes. I'm not sure what you have with regard to that, but we'll start and work our way across the table. Then we will turn it over to the members of Parliament to follow up with some questions.

Madam Nolke, we'll turn the floor over to you. Thank you for being here.

[Sabine Nolke, Director General, Non-Proliferation and Security Threat Reduction Bureau, Department of Foreign Affairs, Trade and Development]

Thank you very much.

I am pleased to be here today to speak to you about Bill C-6, the prohibiting cluster munitions act, which is an important and necessary step toward Canada's ratification of the Convention on Cluster Munitions.

Cluster munitions are a very serious humanitarian concern. Deployed from the air or ground, some types of cluster munitions can release dozens or even hundreds of smaller submunitions, which can rapidly cover a large area. These can pose serious threats to civilians, not only during attacks but especially afterwards if they fail to detonate as intended. Unexploded bomblets can kill and maim civilians long after conflicts have ended. Sadly, many of these victims are children, who pick them up mistaking them for toys.

Even when they do not kill, cluster munitions cause horrific injuries that seriously jeopardize the future of those affected and their families. Furthermore, access to land and essential infrastructure contaminated by unexploded bomblets is blocked. This stalls the development potential of whole communities trying to rebuild their lives after conflict and undermines efforts at long-term stabilization.

Canada has long been committed to protecting civilians against the indiscriminate effects of explosive remnants of war. Canada has never produced cluster munitions, nor used them in Canadian Armed Forces-led operations. However, this weapon has been used by other states in more than 35 conflicts around the world since the end of the Second World War. Over 25 countries and other territories are thought to be contaminated by these munitions. Laos, Vietnam and Cambodia, for example, remain some of the most heavily contaminated countries in the world decades after the conflicts there have ended.

The Convention on Cluster Munitions entered into force in August 2010. To date, the convention has 83 state parties. This number will grow to 84 on March 1, 2014, when the convention enters into force for Saint Kitts and Nevis. An additional 29 states have signed the convention but have not yet ratified it. Most of our NATO allies have signed or ratified it, although some, including the United States, Turkey and Poland, have not.

The convention bans the use, development, production, acquisition, stockpiling, retention, and transfer of cluster munitions. It prohibits countries that agree to be bound by it from taking part in these activities and from assisting or encouraging anyone else to do so. It obliges them to criminalize these activities in domestic law.

Furthermore, it seeks to address past use by requiring clearance of contaminated areas, rehabilitation for victims of these munitions, and where possible, assisting affected countries in need.

The convention also permits military cooperation and operations between states that are party to the treaty and those that are not. This is the so-called interoperability clause. From the beginning of the negotiations, Canada strongly supported the need to ensure that state parties could continue to collaborate militarily with non-state parties. The interoperability clause was an essential compromise that allowed many countries, including Canada, to sign the convention. It ensures that Canada will be able to continue participating in multinational military operations with its key allies that are not party to the convention, particularly the United States, with which we enjoy a robust and vibrant military cooperation.

Drawing the line between prohibiting use by countries that are party to the convention while allowing legitimate and responsible cooperation with countries that are not was the most difficult issue in the negotiations, given the complex situations and scenarios in which military cooperation takes place.

Bill C-6 implements those parts of the convention that require legislation in Canada. Other provisions are carried out by other means and not necessarily through legislative mechanisms. The obligation to advocate in favour of the convention's norms, for example, will be implemented through diplomatic channels, while programming is in place to provide assistance to states affected by cluster munitions.

I'm turning now to those provisions that require legislative implementation and that are included in Bill C-6, which is before you today.

The convention requires a state party to give effect to the prohibitions it imposes on states by imposing certain criminal prohibitions on persons within its jurisdiction. Accordingly, the proposed act sets out a series of offences and the technical definitions needed to support their investigation and prosecution.

More specifically, the bill prohibits the use, development, manufacture, acquisition, possession, import, export, and cross-border movement of cluster munitions. It also prohibits aiding, abetting, counselling, and attempting or conspiring to commit such offences or such activity.

The proposed act also sets out some exceptions to these general prohibitions. Since the convention calls for the use of criminal law it is necessary to create these exceptions to ensure that members of the Canadian Forces and associated civilians who are engaged in the military activities that are specifically permitted by the convention, in particular those relating to the interoperability clause of the convention, will not be held criminally responsible for doing their jobs.

It is important to recall, as I mentioned earlier, that such exceptions are permitted by the convention itself. They do not authorize any specific activity at any particular time. They simply exclude Canadian Forces members and associated civilians who are engaged in military activities from the new criminal offences that Bill C-6 would create under specific circumstances. They have been strictly Iimited so that only persons who are acting on behalf of Canada are excluded, only when the activity in question is part of a permitted form of military cooperation, and only when the other country involved is not a state party to the convention. This is very important because it means that as other countries join the convention and renounce these munitions the legal exclusions become progressively narrower in effect.

I should also point out that these exceptions do not detract in any way from any other applicable legal obligations, including those established by the law of armed conflict. Under international law the indiscriminate or disproportionate use of any weapon is a war crime, whether or not the weapon is a cluster munition, and could be subject to prosecution in Canada under the Crimes against Humanity and War Crimes Act. Nothing in Bill C-6 changes this.

Canadian armed forces members would remain prohibited from using cluster munitions in Canadian operations and from expressly requesting their use when the choice of munitions to be used is under their exclusive control. DND will impose additional prohibitions for its forces. My colleague from DND will speak to those in more detail.

Canada has already taken concrete measures to implement aspects of the convention. For example, the Canadian Armed Forces have initiated the process of destroying all of their cluster munitions. Their last remaining inventory has been removed from operational stocks and marked for destruction.

Canada is also assisting countries that are affected by cluster munitions. Since 2006, Canada has contributed more than $200 million to mine action projects, which address the impact of explosive remnants of war, including cluster munitions. Most recently, Canada has provided $1 million in funding to Laos for cluster munitions clearance activities.

Canada is firmly committed to the goals of the Convention on Cluster Munitions. This bill, if enacted, will solidify that commitment by enabling Canada to ratify the convention and become part of the growing number of nations intent on eliminating the use of these weapons.

Thank you. Merci.

[The Chair, Conservative, Dean Allison]

Thank you, Ms. Nolke.

We'll now turn it over to Brigadier-General Lamarre.

[BGen Charles Lamarre, Director General of Operations, Strategic Joint Staff, Department of National Defence]

Thank you very much, sir.

Members of Parliament, I am pleased to be here today with Lieutenant-Colonel Chris Penny from the office of the judge advocate general. Lieutenant-Colonel Penny was a member of the Canadian delegation that negotiated this convention, and he has since assisted with its domestic implementation.

We are here to discuss the role of the Department of National Defence and of the Canadian armed forces in supporting Canada's efforts to ratify the Convention on Cluster Munitions.

Mr. Chair, the Department of National Defence and the Canadian Armed Forces are committed to the objective and purpose of the convention and to implementing all of its provisions. In this context, it is important to note that we have never used cluster munitions in any of our Canadian Armed Forces-led operations, and we are in the process of destroying our remaining stockpiles.

Bill C-6 was crafted carefully to reflect this commitment and to give effect to those obligations required by the convention within the domestic Canadian legislation. In short, it allows us to implement the convention, to meet our broader defence needs, to remain a strong and reliable ally, and to continue to contribute meaningfully on the international stage.

The Convention on Cluster Munitions itself strikes a necessary balance between humanitarian considerations and national security imperatives, and Bill C-6 reflects this balance. Bill C-6 was written in a clear and unambiguous way, which ensures that members of the Canadian armed forces understand the convention's obligations and its permitted exceptions.

In particular, direct use of cluster munitions during Canadian armed forces operations will be banned without exception. At the same time, as permitted by the convention itself, Bill C-6 protects and preserves the ability of Canada and the Canadian armed forces to continue to work with key allies that have not yet joined the convention. This continued cooperation with non-party states, also known as interoperability, helps enhance our national security by providing a wide range of collaborative opportunities such as exchange positions, intelligence-sharing, joint exercises, combined operations, and just as important, the placing of Canadians in command in key positions. This is particularly important in light of our valuable and unique relationship with the United States, our most important ally and defence partner.

In this context, it is vital that our men and women in uniform and the civilians working with them are not unjustly accused of criminal conduct when doing what we ask of them in the interests of our national security and defence. Bill C-6 thus affords them the legal protection they need to do their job, as permitted by the convention.

For example, under the convention and Bill C-6, these men and women can continue to ask for potentially life-saving military assistance from our allies, be they signatories to the convention or not, without fear of being disciplined or put on trial for the policy decisions of these other states. In situations where the Canadian armed forces have the exclusive choice of munitions to be used by the forces of a non-party state, we will prohibit our members from expressly requesting the use of cluster munitions. It is also worth underlining that nothing in the interoperability provisions of the convention, or within Bill C-6, detracts in any way from Canada’s existing obligations under international humanitarian law.

The Canadian armed forces and its personnel will at all times during all operations remain bound by obligations prohibiting the authorization of, assistance with, or participation in an indiscriminate attack, including one using cluster munitions, whether they are acting on their own or in concert with foreign partners.

In 2008, as evidence of Canada’s commitment to the Convention on Cluster Munitions and upon our signature of it, the chief of the defence staff issued an interim directive prohibiting the use of these weapons in any Canadian armed forces operations. As we move forward, the chief of the defence staff will issue another directive, which will reflect all the requirements of Bill C-6, as ultimately adopted by Parliament. In addition, this new directive will also prohibit Canadian armed forces members on exchange with allied armed forces from directly using cluster munitions and from giving or receiving training in their use.

It will also prohibit the transportation of cluster munitions in Canadian armed forces vehicles or vessels. This goes above and beyond the convention’s requirements and it will take the form of military orders that carry the force of law within the Canadian armed forces. All these restrictions will be incorporated into the Canadian armed forces rules of engagement, and will typically be communicated to allies when Canada enters into military cooperation activities with them, as one method of informing our allies of our obligations under the convention. They will be implemented when the bill receives royal assent and will be legally binding for Canadian armed forces members under the military justice system.

That concludes my statement.

[The Chair, Conservative, Dean Allison]

Thank you, Brigadier-General.

We're now going to move over to the Department of Justice and Mr. Ram. Sir, the floor is yours.

[Christopher Ram, Legal Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Mr. Chairman.

I'll try to focus on the actual construction of the bill, my colleagues having examined the underlying policy.

The Oslo Convention on Cluster Munitions will impose a range of obligations on Canada as a state party, but only one of the obligations in the convention actually requires legislation.

Article 9 of the convention requires us to use the criminal law or the penal law to prevent and suppress the same activities that the treaty itself will prohibit Canada from engaging in. That means that the same activities that Canada is agreeing not to engage in under international law, under the treaty, will also become criminal offences applicable to persons or organizations, which includes companies and other legal entities within the jurisdiction of Canada. We're essentially translating the international law obligations of the convention itself down into domestic law obligations that apply to people within Canada.

The role of the justice department in the bill has actually been to make sure the obligation is translated in a manner that is consistent with and can be enforced within our criminal justice system. In some cases that has meant translating the language of the treaty into Canadian criminal law terms. Words such as “stockpiling” and “transfer”, for example, have different interpretations in treaty law and in an international body between states than those interpretations they would be given by a Canadian criminal court. The object of the drafting is not to copy the language of the convention itself verbatim but to ensure that the offences can be prosecuted effectively here in Canada, that they meet charter requirements, and that they're consistent with Canadian criminal law so they won't cause interpretive problems with other provisions and so on, and that they wouldn't be interpreted by a Canadian court in any way that would later put us out of conformity with our international law obligations under the treaty. So the formulation of the bill doesn't necessarily track the language of the convention, which is annexed as a schedule.

The offences themselves track the prohibitions of the convention, and they also track the permitted exclusions—to which my colleagues have referred—dealing with military cooperation and a number of other scenarios that are permitted by the convention for things like defensive research and training. Training peacekeepers in what cluster munitions look like is an example; there are exemptions for that. The prohibitions themselves are set out in clause 6 of the bill. The actual offence provisions are in clause 17 of the bill, and the exclusions in various parts appear in clauses 7, 8, 11, which deals with the military cooperation issues that have been discussed, and clause 12, which deals with things like permitted research and training.

The offences themselves are consistent, in terms of the formulation of the offence and the punishment, with the Anti-Personnel Mines Convention Implementation Act. The same punishment applies. There are five-year maximum sentences, and they're hybrid offences that can be prosecuted on either summary procedure or on indictment, depending on the facts. That's a decision for the crown.

There are some additional jurisdictional rules in the bill. As with any Canadian offence, the offence proposed in the legislation will apply if it or any part of it takes place in Canada. If an offence happens in several places at once, if any one part of it is in Canada, then Canadian law applies and Canadian courts have jurisdiction. They also apply automatically to Canadians employed outside Canada as public servants under the Public Service Employment Act or as non-commissioned officers and attached civilians for the Canadian Forces under the National Defence Act Code of Service Discipline. That extraterritorial application happens automatically and it's not in the bill. But in order to make the exclusions in the bill match the automatic extension of jurisdiction under existing law, clause 11 of the bill extends the permitted exclusions on the same basis. You will find those references in clause 11 of the bill.

In ordinary Canadian criminal law, liability for conduct such as aiding and abetting other offences is also automatically addressed in the Criminal Code. If you enact an offence in another bill, the aiding and abetting—counselling, conspiracy, and so on—in the Criminal Code automatically applies under the Interpretation Act. But normally in Canadian law, the principle that applies is that what is—if I could use the example—aided and abetted has to actually be an offence. That means if someone is charged in Canada with aiding and abetting something in another country that's not an offence in that other country, it would not normally be a Canadian offence either.

The treaty asks us to go further than that, and the result is the last half of clause 6, which essentially excludes the application of the Criminal Code provisions and replaces them with specific enactments for aiding and abetting, counselling, conspiracy, attempting, and being an accessory after the fact. That means that if a transnational scenario happens in Canada, there will be a completed offence in Canada that can be prosecuted here.

In other words, in plain language, if I were to aid in Canada somebody in another country who was, for example, making cluster munitions, the Canadian offence is aiding in making cluster munitions, and I could be prosecuted for it here in Canada. The offence is complete. There is no jurisdictional extension necessary to make that happen.

In closing, I want to underscore one general observation that my colleague from foreign affairs has made about the overall scope. It's important to bear in mind that this is a criminal law bill. It implements only the small part of the convention that requires the use of criminal law to implement. The offence provisions are worded so that they have the general application that I just mentioned—they apply equally to everybody within Canadian jurisdiction. But the exclusions are much more narrowly crafted, as my colleague from foreign affairs pointed out.

The exclusions in clause 11, which deals with the permitted forms of military cooperation, apply only to Canadian officials and military personnel who are actually engaging in military cooperation, and that military cooperation has to involve at least one other state that's not a party to the convention. What that means is that as more and more countries ratify the convention, the scope of the exclusion will narrow until it closes completely. When that happens, most of what is now in clause 11 of the bill will become moot, and the only exclusions will then be in clause 12, which deals with defensive research and training peacekeepers and that sort of thing.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Ram.

We're going to start our first round, which will be seven minutes of questions and answers. We're going to start with the opposition, Madam Laverdière, for seven minutes.

I understand you are going to split your time with Ms. Liu.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Yes, thank you, Mr. Chair.

I'll start with a question on the last comment that has been made, that clause 11 would become moot as more and more parties sign the convention. Should we understand here from the witnesses that it is expected that some of our allies, such as the U.S.A., Turkey, and Poland, will sign and ratify the convention shortly?

[Sabine Nolke]

We cannot, of course, comment on the policy intention of other states. This is a prospective provision, and we're not in a position to make a prediction as to the speed of that narrowing at this time. Generally, the ambit of humanitarian law conventions is ratification by the maximum number of states.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you for those clarifications. I think that, in this context, it would be a good idea to consider clause 11 as a somewhat permanent provision.

I will discuss that clause. In a legal analysis by Virgil Wiebe, a law professor at University of St. Thomas, the following is stated:

The clause would allow for Canadian personnel, in some situations, to call in cluster munitions strikes while commanding other forces or to request cluster munitions in defensive situations [...]

Do you agree with that statement?

[Sabine Nolke]

My colleague from the office of the judge advocate general will take that question.

[LCol Chris Penny, Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence]

If I understood the question correctly, it's looking at whether paragraph 11(1)(a) would authorize a member of the Canadian Forces to direct or authorize these cluster munitions. Yes, that is correct on the basis that the convention itself would allow for that because ultimately the policy decision to use cluster munitions in that circumstance would be a policy decision of a state that is not a party to the Convention on Cluster Munitions.

[The Chair, Conservative, Dean Allison]

Mr. Ram.

[Christopher Ram]

I was just going to add that, again bearing in mind the criminal law nature of the bill, the legislation doesn't permit anything. It just defines certain pieces of hardware. It creates some offences and then it specifies when those offences don't apply.

[LCol Chris Penny]

As a follow-up to that, I would note—and this is something that was stressed already—there is nothing in this legislation that would allow a member of the Canadian Forces or anyone else to violate existing legal obligations. This does not change in any way Canada's obligations under the Law of Armed Conflict, nor does it change in any way any other domestic legislation that would relate to a person in a command position like that, so there certainly would be no legal authority to authorize an indiscriminate attack using cluster munitions or any other munitions.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

I'll pass for the time being because I know there are just a few minutes left. I'll come back to this issue. I'll pass to my colleague here.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Thank you, Mr. Chair.

The convention's preamble states that a state party should never assist anyone to engage in a prohibited activity and should discourage the use of cluster munitions.

We have already heard witnesses in the Senate and stakeholders say that Bill S-10 did not specify that the prohibition to assist applied to direct and indirect investments in the production of cluster munitions and their components.

Although 25 countries—including the United Kingdom, Australia, New Zealand and France—have adopted a position whereby investment in the production of cluster munitions is seen as a type of assistance prohibited by the convention, Canada does not seem willing to follow suit.

Could you comment on this government's position? Should that matter be clarified in Bill C-6?

[Sabine Nolke]

Concerning the position on investment, in Canadian law that would be subsumed in the aiding and abetting provision.

I will let my colleague from the Department of Justice explain that a bit further.

[Christopher Ram]

The first thing regarding investment is that the convention itself doesn't require states parties to criminalize investment and a number of states parties probably would have had concerns if that had been suggested in the negotiation.

“Investment” is not a term that is all that well known to criminal law, and using it in a defence would have posed a great deal of drafting difficulties and potential over-breadth. In Canada there are also federal-provincial divisions of powers issues that would have had to be dealt with.

What has been done instead is to incorporate the law of aiding, abetting, and counselling in clause 6 of the bill. What that means in practical terms is if someone in Canada invests in a company either in Canada—a company in Canada would be prohibited from doing this anyway, but if someone invests in a company outside of Canada that is engaging in prohibited conduct, a question of remoteness would arise. If someone's pension plan has a few shares in a company that does a lot of things, that possibly makes cluster munitions, then criminal liability doesn't attach. If it is close enough that it constitutes aiding and abetting, that it meets the case law for aiding and abetting, then it would.

[The Chair, Conservative, Dean Allison]

That's all the time, but we'll be back for another round.

Thank you very much, Ms. Liu.

We'll move to the government side, to Mr. Anderson, for seven minutes, please.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you, Mr. Chair.

I think it's clear to all of us that we're long past the time when we should be prohibiting the production and use of these munitions and encouraging their development and use. From the little I know about them, they seem to be disgusting because of their indiscriminate application. They seem to be devastating to non-military populations. They are appalling because of their long-term impacts on civilian populations.

When this is implemented, will the Government of Canada be supporting the use of cluster munitions in any way?

[Sabine Nolke]

No.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

What does it ban besides production and use? Can you run through it again just to remind us of the things this bans in terms of aspects of cluster munitions?

[Sabine Nolke]

As I indicated in my statement, it bans the use, production, stockpiling, and transfer of cluster munitions. That's what the convention does. Specifically, it bans cluster munitions themselves, it sets deadlines for the destruction of stockpiles and clearance of contaminated areas, it assists victims, and it provides for international cooperation.

With regard to the specific elements of the provisions of Bill C-6 and how they implement that into Canadian domestic law, I'll pass the floor to my colleague from the Department of Justice.

[Christopher Ram]

Thank you, Mr. Chairman. I'll be quick.

The actus reus of the offences that would be created if this were enacted would be using a cluster munition; developing, making, acquiring, possessing a cluster munition; and moving a cluster munition—“moving” is the transposed version of transfer—and importing and exporting. So if you move it into or out of Canada, it's covered by the import-export offence. It you cause it, from within Canada, to be moved from one place to another outside of Canada, then it's covered by moving.

In addition, as I mentioned earlier, it's attempting to commit—aiding, abetting, counselling, or conspiring to commit. In paragraph 6(h), where it says “receive, comfort or assist”, that is the language of the Criminal Code for being an accessory after the fact. It means helping the offender to hide evidence or escape justice.

Those are the criminal offences.

Thank you, Mr. Chair.