Evidence of meeting #6 for Foreign Affairs and International Development in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was munitions.
A recording is available from Parliament.
3:45 p.m.
Conservative
The Chair Conservative Dean Allison
All right, is there any more discussion on amendment LIB-2?
(Amendment negatived)
Colonel Penny, welcome to committee.
Yes, sir.
3:45 p.m.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
Mr. Chair, I had suggested removing the word “investment”. There was no real determination on that issue.
3:45 p.m.
Conservative
3:45 p.m.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
After the discussion, it is worth seeing if that would be acceptable.
3:45 p.m.
Conservative
The Chair Conservative Dean Allison
We've already voted, so it's now done.
We're going to move on.
Ms. May, welcome to the committee. You have Green Party amendment PV-2, if you would like to speak to that.
December 3rd, 2013 / 3:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
As this is the first time I have appeared before the Standing Committee on Foreign Affairs and International Development, I want to put on the record that although I am here at your invitation, I have found the provisions a more difficult process that doesn't involve rights of participation, so I participate with a small but not personal note of protest, and I appreciate those of you around the table today permitting me to present this amendment. I think these provisions coming up with this new process originated from the Prime Minister's Office since motions simultaneously appeared in front of about 20 committees. This is set to foreclose my ability to put forward substantive amendments at report stage
I apologize for missing my first amendment, part of the problem of coming to multiple committees one after the other.
Quickly, let me just say the provisions that I've put forward in Green Party amendment PV-2 are to take language we find in the convention, because it is very important, as everyone around this table recognizes, that Canada fully support and implement the convention on cluster munitions.
As Mr. Garneau pointed out, it has been eight years and we need the implementing legislation and this is to cover off one of the provisions in the convention. It's found in article 3, paragraph 2. My amendment is to add to clause 6, which would create a new paragraph 6(i) that would ensure that to:
(i) possess, contrary to the undertaking made in accordance with paragraph 2 of Article 3 of the Convention, any stockpile of cluster munitions more than 8 years following the ratification of the Convention was one of the prohibitions.
It is probably likely that such an additional provision isn't necessary when you look at paragraphs 6(a) to 6(h), but it is important to make sure that the implementing legislation of the Parliament of Canada be fully compliant with all articles that are found under the convention itself. It's in that spirit that I offer you an additional paragraph 6(i) to ensure that any stockpile of cluster munitions is eliminated more than eight years following the ratification of the convention.
Thanks, Mr. Chair.
3:50 p.m.
Conservative
3:50 p.m.
Conservative
3:50 p.m.
Legal Counsel, Criminal Law Policy Section, Department of Justice
Just in criminal law terms here, Mr. Chairman, I only had a short time to look at the amendment but, as I understand the policy of the amendment, it fits within the scope of the bill and certainly fits within the scope of the convention, not that I'm an expert on the convention, but being amended into a criminal law bill causes some concerns. It may weaken the existing offence of possession that's in the bill. This is one concern. We are criminalizing the possession of all cluster munitions in Canada with the bill and this speaks separately of stockpiles. The criminal law community feels we're not sure what a stockpile is, how many cluster munitions it would take before you could convict somebody of having a stockpile as opposed to a collection or something like that. We didn't use that word in the primary offences for that reason. We didn't want to leave it open to a Canadian court to interpret.
There are also a couple of certainty concerns. When we enact criminal offences they have to meet charter and other standards of certainty. This one incorporates part of the convention that could be amended. It's scheduled, but putting it in the schedule does not make it part of the legislation. It's only there as an interpretive aid, and the date it would take effect is uncertain. Normally there would be a proclamation clause that the offence would be coming into force on a day fixed by order of the Governor in Council, and it would be gazetted. This would be triggered by the coming into force of the convention, and Canadian law, if I could say, doesn't know what that date is.
3:50 p.m.
Some hon. members
Oh, oh!
3:50 p.m.
An hon. member
That's branding.
3:50 p.m.
Some hon. members
Oh, oh!
3:50 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
These mistakes happen all the time.
I don't believe that this speaks to entry into force. It speaks to ratification, which is Canadian ratification. Entry into force is the international moment when the entire convention enters into force.
3:50 p.m.
Director General, Non-Proliferation and Security Threat Reduction Bureau, Department of Foreign Affairs and International Trade
Thank you.
The difficulty with this particular amendment is that it conflates two issues. The eight-year stockpile destruction in the convention speaks to stockpiles held by state's parties, whereas the bill itself deals with possession by individuals. It implements the criminal law aspect that is the state's implementation by assigning individual criminal liabilities to certain acts and activities. That is what the criminal law does. So the eight-year limitation which starts with entry into force of the convention for a given state refers to that state's obligation, not to an individual obligation. I think that is what the difficulty here is. I certainly would agree with my colleague from justice that since we have a much stronger, broader prohibition on possession already, this might cause confusion in the court trying to interpret which provision would apply, and might give rise to unintended defences saying, well, I'm still within the eight-year period, therefore, you can't convict me of possession. I think that it would not strengthen the bill. It would probably rather weaken it.
3:55 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you, Mr. Chair.
I want to thank my colleague for her participation in this.
Just for the record, while I have the floor, along with my colleagues on the NDP side, we voted strongly against the provisions that were made to allow you to come to committee, because it actually undermines your ability to participate in our parliamentary democracy.
I wanted to hear from our experts on this because my read of it was, Chair, that this could undermine the bill, because if we do put the amendment forward then we'll have, if you will, two kinds of standards in play here. Is that the concern, that the eight-year provision might actually undermine what we already have in the bill as it exists?
3:55 p.m.
Director General, Non-Proliferation and Security Threat Reduction Bureau, Department of Foreign Affairs and International Trade
That is certainly my reading, and I believe my colleague's reading as well.
3:55 p.m.
Legal Counsel, Criminal Law Policy Section, Department of Justice
I didn't want to get too far into policy, but there are also other scenarios where possession of a stockpile might take place in Canada outside the eight-year period.
We've made provision in the bill, for example, if a Canadian company wants to go into the business of destroying these things, because it's quite difficult, and it's possible that we may want to import cluster munitions into Canada for the purposes of destruction at some point in the future. Also, there is the possibility that the Canadian Forces in operational scenarios may come into possession if they take hill 60 and there's an ammunition dump on the top of it. I'm not sure, but I think we then own the cluster munitions and we have an obligation under the treaty to dispose of them.
So we've tried to create scenarios, again bearing in mind that this is criminal law that creates the necessary envelope for unpredictable events.
Thank you, Mr. Chairman.
3:55 p.m.
LCol Chris Penny Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
Sir, just to build on what has already been said, I think following ratification of the convention, Canada will have an international legal obligation to destroy stockpiles. The convention doesn't require that to be translated into domestic law of Canada. I would note that the amendment isn't necessary, as the Canadian Forces is already in the process of destroying its munitions. It's expected that this will take place well before the eight-year deadline. In fact, the remaining stockpiles that Canada has have been removed from operational stockpiles since 2007, so there's no concern that they will be used. There's certainly already a well-entrenched process for contracting out for the destruction of those stockpiles.
