Foreign Affairs Committee on Dec. 10th, 2013

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

Ours is fairly straightforward and simple, and hopefully, we'll get support from everyone on this:

That Bill C-6, in Clause 11, be amended by replacing line 30 on page 6 with the following:

(c) acquiring or possessing a cluster

It removes in (c) the word “using”, which we hope goes some of the way to alleviating the concerns that the oppositions have. We believe this would prohibit the direct use of cluster munitions by CF personnel on exchange as a matter of law. We believe it needs to stay in paragraph 11(1)(b) in order to ensure that our members are not held criminally liable while performing their jobs, and the word “use” must remain in those two sections to ensure that our members are protected from the offensive indirect use. I'll leave it at that, and perhaps if anyone wants the experts to explain a bit more of the implications of this, they can. But we think this is a good balance in trying to reach out to the opposition and come at least part way to the position that they've held.

[The Chair, Conservative, Dean Allison]

Mr. Garneau

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Far be it for me to look a gift horse in the mouth. I think this is progress and I thank the Conservative government. However, it is only small progress. If we look at the change that the government is proposing, it means they are removing the exception of using a cluster munition “while on attachment, exchange or secondment, or serving under similar arrangement, with the armed forces of that state.” So there's an implicit recognition that it is wrong. It is not acceptable to use a cluster munition, explosive submunition, or explosive bomblet.

Yet if we look at paragraph 11(1)(b), they are not addressing the issue and consider it as part of the exceptions to expressly request “the use of a cluster munition, explosive submunition or explosive bomblet...if the choice of munitions used is not within the exclusive control of the Canadian Forces”.

In other words, a Canadian soldier can still expressly request the use of a cluster munition. Or if we look at the section above it, paragraph 11(1)(a), a Canadian soldier can direct or authorize “an activity that may involve the use...of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state”. So whilst the Canadian soldier cannot drop the bomb himself or herself, they can request the use of that munition. That to me, in my interpretation, is the equivalent of saying that it's acceptable for Canada to have its soldiers use cluster munitions.

So from my point of view, the amendment proposed by the government is a step in the right direction, but it contradicts itself in the sense that it is not consistently applied to the use. You can talk about indirect use, but the reality is that it is still implicitly.... As we know, if somebody commits a crime, but the other person suggests to him how to commit that crime, that person is also liable to prosecution as well.

[The Chair, Conservative, Dean Allison]

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

I mentioned that I was happy to see that the government was open to amending the bill. If you go back to the last session of Parliament—this did come from the Senate—it was no surprise to anyone that when it came from the Senate there was the attitude that there were to be no changes at all. That was clear. There were discussions with the minister. The point of view of the government was that we had all the hearings at the Senate and there was no need to change things.

I take the time because we'll probably be finishing things off soon to credit people for getting involved. There were a lot of people who put in a lot of time. These were people who were victims of cluster munitions. The minister himself bore witness to that. Something happened that caused the government to take a look at this. I want to underline what I said before. I welcome that and appreciate it. It doesn't always happen. It happens rarely, if ever. That should be noted.

The importance here is that enough people in this country, and internationally, understood the importance of this treaty. They got involved and decided that they should be active in trying to make this better. That's what we're all trying to do here. The fact that the government has brought forward this amendment is progress. It is suggesting that in the end what we'll have under clause 11 is that it does not prohibit a person who is subject to the code of service discipline under any of paragraph 60, etc., of the National Defence Act from acquiring or possessing a cluster. It takes away the element of use. It's akin to having something in front of you and being told you're not going to use it. I would have liked to have seen stronger language. In the last amendment we tabled, we wanted to be very clear, deliberative, and transparent about that.

If the government was willing to see this happen, I would hope that what we'll get to later is a reporting mechanism. That way, we'll be able to take a look at this in the future to say that maybe there is a possibility of looking at other subsections within section 11. The government obviously saw that there was an opportunity here to change. They did that. There were a lot of people who spent a lot of time trying to convince them to at least be open and we saw that happen. Great. Let's not lose sight of the fact that this is an incredibly important issue. It's about our reputation when it comes to arms control. It will affect other treaties in the future. One day we'll sign the arms trade treaty, I'm certain, and we'll be sitting around here trying to do a good job in implementing it. We'll understand that this is about people trying to make good law. Also, in thanking the government for attempting to change this for the better, I want to underscore the thanks I have for all the people who were involved in fixing the bill. They fixed it because they wanted to see not a political partisan win, but rather, good legislation to honour the treaty. I thank them for their efforts to do that. We'll support the motion. It's in process. Clearly, we can do better. I'll challenge the government to do that in the future.

I'll stop there.

Thank you, Mr. Chair.

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

I have a quick response to that.

We also acknowledge that there are a lot of people who are concerned about this. After the testimony that we heard, I don't think anybody around this table does anything but despise these munitions. We've made a commitment that we're going to try to convince non-signatories that it would be in their best interests to sign this as well. The best thing we could do is eliminate these munitions entirely, then we'd all be in agreement about what the solutions are.

The reality is that the opposition can take pretty much any position they choose. They have not taken a position that's irresponsible. They've tried to work with us on this and we appreciate that. As government, we need to find a realistic solution so that we strike a balance between article 21, interoperability, finding a place for our troops to be able to function, and yet not supporting the use of cluster munitions. That is what we've tried to do. That's what we believe we've been able to do for those few troops who will be affected by this.

I'll leave it at that. I want to thank all reasonable people for working together to try to find a reasonable solution.

[The Chair, Conservative, Dean Allison]

All right.

Is there any more discussion?

Then we'll do the roll call again on this particular one. Mr. Garneau, that's the way you want to proceed, right?

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Yes, Mr. Chair.

(Amendment agreed to: yeas 11; nays 0)

[The Chair, Conservative, Dean Allison]

We're going to now move to amendment BQ-2, which is inadmissible. I don't see our Bloc members here, but it was deemed moved.

I'm just going to read the ruling here: That Bill C-6, An Act to implement the Convention on Cluster Munitions, which provides for exceptions to the prohibitions list in clause 6 of the bill.... One of these exceptions could be found in subclause 11(2), which does not prohibit a person from doing certain acts listed in clause 6. The amendment proposes to alter the wording from “does not prohibit” to “prohibits”.

As the House of Commons Procedure and Practice, Second Edition states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, the amendment is contrary to the principle of the bill as it negates an exception provided in subclause 11(2) of the bill. The amendment is therefore inadmissible.

So that will be the ruling that I have on that one.

We've got amendment BQ-3, which is also been deemed to be inadmissible. I will once again read the ruling here.

That Bill C-6, An Act to implement the Convention on Cluster Munitions, which provides for exceptions to the prohibitions listed in clause 6 of the bill.... One of these exceptions can be found in subclause 11(3), which does not prohibit a person from doing certain acts listed in clause 6. The amendment proposes to alter the wording from “does not prohibit” to “prohibits”.

As the House of Commons Procedure and Practice, Second Edition states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

Once again, in the opinion of the chair, the amendment is contrary to the principle of the bill as it negates an exception provided in subclause 11(3) of the bill.

Thank you very much for your indulgence on that.

We're now going to move to amendment LIB-4.

Mr. Garneau, if you'd like to read that and discuss that for us.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

Again, in the exceptions it says clearly:

Section 6 does not prohibit a person, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from (a) aiding, abetting or counselling another person to commit any act referred to in paragraphs 6(a) to (d), if it would not be an offence for that other person to commit that act

In other words, what we're doing here is saying that it is acceptable for a Canadian soldier to aid, abet, and counsel another person to conceivably make use of cluster munitions. We have difficulty with that because this goes into the territory of being viewed as encouraging the use of cluster munitions by a Canadian soldier. So it's for that reason that we would like to delete paragraph 11(3)(a).

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Garneau.

Are there any comments from any of the committee?

(Amendment negatived: nays 6; yeas 5)

We'll now move on to amendment LIB-5.

Mr. Garneau, the floor is yours, sir.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

In the interest of saving time, I won't repeat all of the same rationale. We're looking at paragraph 11(3)(b), which in this case is “conspiring with another person to commit any act referred to in paragraphs 6(a) to (d)...”.

I'm applying the same logic here as I did previously and for that reason would like paragraph (b) to be removed.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Garneau.

Is there any additional discussion on Liberal amendment 5?

(Amendment negatived: nays 6; yeas 5)

We'll now move on to Liberal amendment 6.

Go ahead, Mr. Garneau.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

Now we're dealing with paragraph 11(3)(c) and what we're proposing is that line 14 be replaced by the following, “receiving or comforting another person”.

In other words, removing “or assisting”, for the same reasons.

[The Chair, Conservative, Dean Allison]

Is there any discussion?

(Amendment negatived: nays 6; yeas 5)

We're now going to move to the Green Party amendment 6.

Go ahead, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

My attempt at an amendment here falls again within the rationale of what Paul Dewar and Marc Garneau have been ably arguing through this afternoon.

We certainly recognize that there is a slight improvement in removing the word “using” through the government amendment that has been carried unanimously in paragraph 11(1)(c), but we still find ourselves with a piece of legislation that allows the undermining of the purpose of the convention, and needlessly so.

My attempt at an amendment leaves in place.... I would have rather seen the amendments that were just put forward by Mr. Garneau pass. That would remove aiding, and abetting, or counselling, or conspiring with another person, and so forth, basically allowing Canadian Forces on the ground to do things that actively encourage the use of cluster munitions when working in a collaborative, cooperative military activity with a non-party state.

But given that those are still on the books, here's an idea that could work for everyone. That is, adding to clause 11 an additional subclause (4). I'll read it because it's pretty clear:

For greater certainty, the exceptions referred to in subsections (1), (2) and (3) apply only if it has been conclusively demonstrated that all reasonable efforts have been made to dissuade the use, acquisition, possession, import or export of a cluster munition, explosive submunition or explosive bomblet by a state that is not a party to the Convention, in accordance with paragraphs 1 and 2 of Article 21 of the Convention.

So what's being anticipated in this amendment is that we found ourselves in the situation to which witnesses have referred. Canadian Forces are in a theatre of operations with a state that's not a party to the convention, and we find ourselves involved in the operational use of weapons that we have sworn under the articles of the convention that we want to ratify that we will work to completely eliminate from use.

So why not provide this additional safeguard that Canadian Forces on the ground in any of the circumstances anticipated in the earlier subclauses of clause 11 will only be carved out, from the purposes of the convention, to the extent that those personnel involved have done everything reasonable to persuade that non-party state from using cluster munitions or from all the different sub-verb headings: use, acquisition, possession, import, export? This is a way of living the purpose of the convention even in those circumstances that are anomalous where we're in a military operation with a non-party state.

I really would hope that perhaps in the spirit of compromise, since the government members have already brought forward removing the word “using”, this would go a long way towards improving the exceptions that remain in the legislation. Although I would rather they were deleted, since they're still here, I recommend my amendment, Green Party 6, to you.

[The Chair, Conservative, Dean Allison]

Okay.

I have Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

I fail to see how it can be demonstrated conclusively when you're in a war condition, a battle condition, and things are flying at you and you're trained to work in unison with the other party.

What could “conclusively” possibly mean under that scenario? I would think it would be putting on more restrictions. It would not allow for that freedom of interoperability that you're looking for in the rest of the bill by putting in an undefinable word saying to “conclusively” demonstrate.

[The Chair, Conservative, Dean Allison]

Is there any other discussion?

Go ahead, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Well, if Mr. Goldring would like, I'd be open to a friendly amendment.

If the governments members could pass it, we could just say “if it has been demonstrated that all reasonable efforts have been used”. If the word “conclusively” is the stumbling block, I would be happy—

[Peter Goldring, Conservative, Edmonton East, AB]

It would be difficult to demonstrate it as well.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I don't think it would be difficult to demonstrate that all reasonable efforts had been used.

In all operations, especially in these days of electronic communication, one could easily make a note to a Day-timer, a calendar, even in a military operation, very quickly: "Spoke to the officer in charge. Urged that we not use cluster munitions." This can be noted at the time.

[The Chair, Conservative, Dean Allison]

Mr. Anderson.

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

Quickly, we heard testimony from the general when he was here, and as Mike said, it was very compelling.

I thought he opened a new world for many of us that we don't understand, in terms of what's happening on the ground when you're in a military operation.

I agree with my colleague that this would bring a different level of legal ambiguity to the situation that we don't think needs to be brought in here.

[The Chair, Conservative, Dean Allison]

Is there any more discussion on the Green Party amendment 6?

Go ahead, Ms. May.