Foreign Affairs Committee on Dec. 10th, 2013

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

Mr. Chair, we're going to be suggesting an amendment later that we think deals with most of the problems that have been brought up with clause 11, so we'll be supporting that later, but we won't be supporting this.

[The Chair, Conservative, Dean Allison]

Okay.

If there is no other discussion, I'll just call the question on Liberal-3.

(Amendment negatived)

Liberal-3 is defeated, which means that Liberal-1 is also defeated. We will still deal with that clause 2 later, as we move on.

We're going to move now to Green Party-5. I will get Ms. May to introduce that to us.

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

Thank you, Mr. Chair.

I do want to again thank the government members—it was Deepak Obhrai—for pointing out that clause 11 is so significant that it needed its own time for review.

I would hope that we could move towards the kind of solution that Canada eventually found our way to in the relation to land mines. I think it's important to remember that this isn't the first time that we've gone down this road of wanting to work in military operations in collaboration with countries that have not ratified an important international treaty.

In this case with cluster munitions, I don't know why we would put ourselves in a position of loopholes and compromises when we have a workable solution that we've already had in relation to the Ottawa treaty on land mines. This is simply to say that we can participate in cooperative military operations with a country that isn't party to the convention on cluster munitions as long as Canadians are not actively assisting.

What I've attempted to do with this amendment, Green Party-5, is amend the chapeau paragraph, subclause 11(1), and to replace what now exists as language that wouldn't prohibit a person who is covered by the National Defence Act, or the Public Service Employment Act from participation in combined military activity with a state that is not party to the convention.

I've replaced the language—I propose, I should say , Mr. Chair, I haven't been able to replace it yet. I await the miraculous event in which a Green Party amendment to a committee of which I'm not a member passes. It's going to be fantastic, You all will be remembered when the movie comes out, Mike.

Anyway, here we go. This is the key language, the last clause of my amendment. It would replace the language with:

if that participation does not amount to active assistance in a prohibited activity.

I think that accomplishes the same thing as the compromise that was found under the Ottawa land mines treaty. I would hope that we could favourably consider this amendment as more in keeping with Canada's commitment to this international convention, which we will be ratifying now five years after signing it, once we get this passed.

Thank you, Mr. Chair.

[The Chair, Conservative, Dean Allison]

Just before discussion, I want to point out that if Green Party-5 is adopted, then NDP-1, Bloc-2, Bloc-3, Liberal-4, Liberal-5, and Liberal-6 cannot be put.

Is there any discussion on this particular amendment?

(Amendment negatived)

We are now going to move on to NDP-1 motion. I will get the NDP to read their motion and to speak to that, please.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair.

I also want to underline the importance of having had an opportunity to look at clause 11 of the bill. As you are probably aware, Chair, we were very concerned that this particular part of the bill was going to be problematic not just in terms of how we understand the treaty, but also the reputation of our country when it comes to international treaties. We also wanted to take the minister at his word when he came to committee and said that he wanted to be open to amendments.

Further to that, as important is the witness testimony we heard. Every witness we had who provided us with some background on the treaty said this had to be dealt with. So with that in mind, we decided we would take a look at understanding the feedback we were getting from government witnesses, as well as from the minister and some government members. If they weren't interested in the Ottawa language, and we heard some testimony as to why that was a problem, then certainly we could look at the treaty itself.

Article 21 of the treaty deals with this very issue of interoperability, and so we thought it made common sense to take the language in the treaty and apply it to the legislation. After all, this bill is about implementing the treaty, and if one of the issues...and Minister Baird identified this as a concern he had and wished we didn't have to have article 21 because of wanting to rid the world of cluster munitions point final, then indeed we should take him at his word and take a look at the treaty.

We know it was hard bargaining. I know that the lieutenant-colonel would probably have some tales he could tell us about negotiating section 21 of the treaty, and maybe he'll have a movie. But we know that was done, and we signed off on this, and we signed off on the treaty, and it included section 21.

That's the preamble to our amendment, which takes article 21 and applies it to the legislation and amends clause 11. Of course you know why we had problems.

In clause 11 of the bill the language itself says, and I'll read it into the record one more time:

...does not prohibit a person who is subject to the Code of Service Discipline under any of paragraphs 60(1)(a) to (g) and (j) of the National Defence Act...

Which means any Canadian soldier...does not prohibit them from:

directing or authorizing an activity that may involve the use, acquisition, possession, import or export of a cluster munition...

Why I'm saying this again is that we have a treaty to prohibit the use of cluster munitions, but we have a section that says you can go ahead and use them. So for obvious reasons this was a problem for many of us.

It goes on to talk about, we would be able to:

(b) expressly requesting the use of a cluster munition, explosive submunition or explosive bomblet....

Again this talks about the use of cluster munitions by our forces, notwithstanding the fact that we signed a treaty to ban cluster munitions.

It goes on to say:

(c) using, acquiring or possessing a cluster munition, explosive submunition or explosive bomblet....

Again, it says that we can use them.

So there is a clear problem here when we had a treaty that says let's ban the use of cluster munitions on the one hand; on the other hand we have legislation that very clearly in black and white says we can use them. This is why we're focused on this particular aspect, that there's a problem here if you're trying to ban cluster munitions on the one hand, and then you have implementing legislation that says you can still use them. That's problematic and that's why we're focused on this.

With that in mind, the following amendment has been brought forward by the NDP:

That Bill C-6, in Clause 11, be amended by replacing line 15 on page 6 to line 21— which is all those descriptors—on page 7 with the following: participating in operations, exercises or other military activities with the armed forces of a state that is not a party [that's where our friends from the United States come in] to the Convention and that engages in an activity prohibited under section 6, provided that the person does not:

(a) develop, produce or otherwise acquire cluster munitions; (b) stockpile or transfer cluster munitions; (c) use cluster munitions; or (d) expressly request the use of cluster munitions in cases where the choice of munitions used is within the exclusive control of the Canadian Forces.

In other words, we're proposing, from the official opposition, to take what was negotiated and signed off on in the treaty and put it in legislation, so that it's clear that notwithstanding that we are obligated to acknowledge our interoperability—particularly with our friends south of the border, but not exclusively—that we are able to have interoperability, ensuring that we will not be using, developing, stockpiling, or transferring cluster munitions.

I know that the government's going to come forward with an amendment about (c) and change that which is about the use of cluster munitions, which is great. It's a good start, but I think we need to incorporate all of those aspects of the treaty we negotiated and signed off on. That's why “stockpile or transfer” needs to be brought into the same mandate.

Finally, I want to share with you some feedback we got on this particular amendment. I'll read it into the record and then I'll finish off.

I asked to hear from one witness, and someone who's an expert on law, on our amendment. I got in touch with the Honourable Malcolm Fraser, former prime minister of Australia, and I asked him what he thought of our amendment. He said the following, Chair:

If you can achieve the amendment you propose, it would be a great advance, and Canada would then stand as an international leader in relation to this important Convention. I emphasise that amending the Act as you propose, would not and could not inhibit any cooperation with the United States.... I hope very much that you will be successful in your efforts, efforts that would result in Canada's reputation being not only maintained, but strengthened as a world leader.

That's from former prime minister Malcolm Fraser.

Finally, from a legal perspective, Professor Attaran, who holds the Canada Research Chair in Law at the University of Ottawa said the following:

...in the event of a conflict, statute trumps treaty always. So it is a good practice to have the two be identical—

in other words, that the treaty be in the legislation:

—as you have in mind [in your amendment]. Further, what objection can there be to legislating domestically that which you have already signed internationally, except possibly that—

Well, I won't say what he says here, that we could be liars and etc., and that our signature isn't worth it...but he says, finally:

I like your approach of just copying the language; it avoids...pitfalls [that we've seen before].

I'm reading into the records these two points of view because I think it's really important to understand not only how we see this around this table but also how this is understood internationally.

I think most of us were compelled, particularly by former prime minister Fraser and by the ICRC, the International Committee of the Red Cross—who rarely ever speak out on legislation because of the way they operate. I think it was telling that we were able to have the attention of the government, to listen, to look at amending this legislation, but I would plead to the government to consider what I've just read into the record, what I think is a reasonable amendment, because it's actually the treaty we negotiated. I hope that they see fit to adopt this amendment, understanding that they are coming forward with another amendment, but it's in the same light. It's taking what was negotiated, but not fully, and amending it. That is the government's amendment.

I will stop there, Chair, but as I said to the minister, when we sign international agreements, it's important that we live up to our signature. It's important that the legislation we adopt does not undermine the treaty we negotiated and signed on to and accepted. To do that not only undermines the treaty itself, as was mentioned by former prime minister Fraser, it undermines the reputation of our country.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Dewar.

I've got Mr. Allen on the list.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Chair.

I would like to ask a question of clarification from our witnesses, please, Mr. Chair. It's associated with paragraph (d) in the NDP amendment, which talks about expressly requesting the use of cluster munitions “where the choice of munitions used is within the exclusive control”.

I would like to get you to compare how that relates to paragraph 11(1)(b) that is already in the bill, because to me it seems that if the choice of munitions used is not within the exclusive control, that kind of covers off the other side of that as well. I was very compelled by General Natynczyk's testimony and also some of the comments that were made about troops calling strikes in on themselves, which was actually very compelling and actually very scary in some cases.

With that, I'd just like you to explain paragraph 11(1)(b) in the context of this, where it says “expressly requesting the use of a cluster munition”, and how that fits with “the choice of munitions...is not within the exclusive control of the Canadian Forces”. Could you clear that up?

Like I said in the last meeting, I'm just a lowly accountant, not a lawyer, so if you could explain that to me, that would be great.

[The Chair, Conservative, Dean Allison]

Ms. Nolke.

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

I'll take the first crack at this one, but I know that my colleagues will have comments as well.

The important thing to note if you're looking at the language in subparagraph 21(4)(d) of the convention, which is the same language that is imported into the NDP amendment in particular, you cannot look at that without also looking at the chapeau of paragraph 21(4), which refers to how “Nothing in paragraph 3 of this Article”—that is, the article of the convention—“shall authorize a State Party...[t]o expressly request the use...”.

Now, it's a tricky concept that international law does not bind individuals. It only binds states, so the caution provided in paragraph 21(4), which says that “Nothing...shall authorise a State Party” to do X, Y, and Z, applies only to the state party itself. Whereas if you look at paragraph 11(1)(b), you see that it imports individual criminal liability to a person, that is, to a member of Canada's armed forces, not Canada itself.

If you then look at the policy behind paragraph 11(1)(b), you see again that the choice of munitions here is that of another state, not of Canada. That is the distinction. Then the exemption applies to the Canadian soldier who is essentially caught up in the practice of another state party for whom the use, etc., of cluster munitions is lawful.

There are two layers here. There is one, the state party and its policy concerning the use of cluster munitions, which Canada cannot regulate for other states. Canada cannot dictate to the United States what they can or cannot do. Again, that is a principle of international law. We can, however, regulate what our individuals do.

If you incorporate, however, the language of paragraph 21(4) holus-bolus into Canadian law, what you're really doing is you're mixing that apple with that orange. You're looking at the provisions for the state party and trying to match them up to the individual criminal liability provisions. That is the difficulty here.

With that, I'll hand this over to my colleague from JAG, and then I think Justice will have a comment as well.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

If you could just address “expressly requesting”, who is the person that's protecting that—

[Sabine Nolke]

Yes, he will be doing that.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you.

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

To begin, I'll look as well at paragraph 4 of article 21 of the convention. Canada's position on this is that it constitutes an exhaustive list of the activities that are prohibited in the context of a combined operation with a non-state party.

Within that then, when we look at subparagraph 21.4(d), that isn't an absolute prohibition on expressly requesting the use of cluster munitions. It's a prohibition on doing so in the context where the choice of munition used is within the exclusive control of the state party, which is the Canadian Forces in this context.

That was a contentious aspect of the negotiations, and the words there were chosen for a very specific reason.

The key concern that led to that provision was that there may be circumstances in which an individual on the ground, who simply calls for “for effect” close air support or artillery support provided by another state will nonetheless be deemed to have, or could be seen to have, made an express request for the use of cluster munitions.

As an example, when a forward air controller—say a Canadian Forces member on the ground—calls in for close air support, they may well simply specify “for effect”, but when the aircraft shows up to the location, there will likely be communication between the pilot in that aircraft and the individual on the ground who has requested close air support and who may be told what type of munition is going to be delivered and be asked to authorize that. So their authorization or their request would certainly be considered an express request to use cluster munitions, whether they used the words “cluster munitions” or not. But they wouldn't, in that context, have exclusive control over the choice of munition used. That choice would have been made by the non-state party when they armed the aircraft.

Similarly, an individual calling for artillery support may call for it “for effect”. When the first round lands they'll know what they're getting, and if they provide revised coordinates or something further, that too might be seen as expressly requesting the use of cluster munitions. But again, the choice of munition used would be outside of the control of the Canadian Forces, or outside of the exclusive control, having been made by the non-state party.

That was the concern during the negotiations themselves and that's why subparagraph 21.4(d) doesn't simply read, “expressly request the use of cluster munitions”. That's why that second part of the subparagraph 21.4(d) is there, to recognize that there may actually be circumstances in which an express request is either made or deemed to have been made.

[The Chair, Conservative, Dean Allison]

Mr. Ram.

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

Thank you, Mr. Chairman.

Just very briefly, because my colleague from Foreign Affairs in particular has covered most of what I would have said.

Translating what was said by the other two witnesses here down into the practical realities of legislative drafting, our task in this bill has been to take the sorts of operational scenarios that the lieutenant-colonel has just explained and try to work out how those would apply in a Canadian criminal court.

With respect, when we draft legislation—especially criminal legislation—it has to meet charter requirements and clarity requirements and so on. It is very difficult a lot of the time for us to use treaty language because the words mean different things.

When we started with the cluster munitions convention in this particular case we took the language of the convention as a starting point and then we looked at how those words would be applied in a Canadian criminal court. As I said at an earlier session, stockpiling became possession because there's really no way without defining it of what an offence of stockpiling would look like. If you criminalize possession then if you've caught somebody who has one cluster munition or 100,000 it doesn't matter. It's a broader offence, but we're sure we're in conformity with the convention.

The concept of transfer in the convention.... First of all in any treaty if the treaty uses the word “transfer” it's generally talking about transfer between one state party and another state party. Whereas in Canadian law it might mean the sale of a house, or transfer of narcotics in the course of trafficking or something like that. So we had to rethink the whole concept of transfer. This particular convention had a very specific term that was targeted at stockpile movements, and stockpiles being controlled—being in one state and under the control of another. So we redefined that, we turned that into importing and exporting and movement instead. We deliberately avoided using the language of the convention so that we wouldn't be misinterpreted.

It is very difficult. Our task now is not, with respect, to draft for the international community. It's to draft for a Canadian criminal court. We want to make as certain as we possibly can that these offences will apply in the circumstances in which Parliament intends them—and how Canada as a state party to the treaty intends them to apply—and no further. That has been a very difficult exercise.

To use the lieutenant-colonel's example, if I call in an airstrike if I'm under fire, I am either counselling someone in the commission of an offence or I'm abetting them if dropping the munition is an offence. If I tell them where to drop it, I'm abetting in Canadian criminal law. If I'm in a room with four other people where a decision is made to do this I'm conspiring with them. If what we're discussing is a crime then discussing it is a conspiracy, and if I happen to be the only Canadian in the room I would be the only one criminally liable. The others, being from a non-state party, would not be subject to the same criminal offence.

So those are the sorts of scenarios that we had to deal with in crafting clause 11, Mr. Chairman. That's why we did not incorporate the language of the treaty more than we did. We did take some, but what is not there is not there for a reason.

Thank you, Mr. Chairman.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Mr. Chair, thank you very much for your indulgence and the committee's indulgence as I went from general ledgers to a legal definition.

[The Chair, Conservative, Dean Allison]

Thanks, Mr. Allen.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

I appreciate the evidence provided by our witnesses. I beg to differ slightly. The issue, I think, is that the bill needs to prohibit soldiers—we heard that from General Natynczyk—by the rules that bind the state parties.

We have to be clear and concise about what the rules of engagement are, or in this case non-engagement. If we don't have that explicitly in the legislation that enacts the treaty, I think it's problematic. We're about to adopt a motion from the government on the use. I find that interesting. We're going to amend part of clause 11 on the use, not all of it, but when it comes to article 21, maybe the experts are going to be not in favour of what we're about to adopt when we take out (c) of 11. I don't know. The fact is that the bill needs to prohibit soldiers from doing exactly what the convention prohibits state parties from doing. That's essentially what our amendment would do.

I listened deeply to our experts on the challenge they have, and I appreciate that. We've talked about this since we've been going through the debate on this particular bill. But I would also want to add one other aspect. When we are doing these arrangements with our allies, it's no surprise that we have caveats, as the general said. Caveats include what treaties we've signed onto and legislation we have implemented.

This is possible to do, Chair. Other countries have done it. I would suggest this is separate from or adjacent to—as my dad might have said—the debate we're having here, because we're asking certain people to look at it in a certain way.

At the end of the day, as parliamentarians, we are the ones who decide what happens. I would argue that, if this is a concern we have in terms of being explicit in understanding and trying to cover off all aspects of what we're hearing from our experts, it is up to us to guide and to lead what kind of arrangements we have with our allies in interoperability.

Caveats happen all the time. Being explicit about it is absolutely critical. And yes, applying it to our domestic law is important. But when you have the provisions in legislation that clearly identify what was in the treaty, and you also have directives—as we already heard is going to happen—about non-use, those same directives can happen in applying a treaty to our interoperability.

I want to put that on the table, and I respectfully submit that we all have different hats to wear. We've asked our witnesses to provide their expertise. But at the end of the day, we're the ones who decide how this treaty is going to be implemented. I think it's important to understand that we can also be explicit when we're working with our allies in the field—interoperability training, or even when it's in hot conflict. I want to put that on the record, because I know where this amendment's going, and not just say that, no, we can't do it, because clearly we can and clearly this treaty was negotiated with that in mind. This amendment would simply bring that into force through legislation.

Thank you, Chair.

[The Chair, Conservative, Dean Allison]

Go ahead, Mr. Anderson.

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

I have a quick response to that. I appreciate Mr. Dewar's and the opposition's attempt to amend this section, but the reality is that article 21 deals with interoperability. Our responsibility is to find that solution that covers the prohibitions but also protects our troops in the situations they find themselves in, in those joint operations. I don't think their amendment does that, so we will be opposing it.

[The Chair, Conservative, Dean Allison]

Go ahead, Mr. Garneau.

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

Thanks, Mr. Chair.

I asked at the last meeting and I'm going to ask it again today, that we record individual votes on this. This is a matter of such importance that I think we should all be on the record.

[The Chair, Conservative, Dean Allison]

Okay, thank you.

Is there any other discussion?

I'll point out before we vote that, if amendment NDP-1 is adopted, then amendments Bloc Québécois-2 and -3 and Liberal-4, -5, and -6 cannot be put.

Is there any more discussion?

(Amendment negatived: nays 6; yeas 5)

We're now going to move on to the government amendment. I will turn it over to the government members to talk about their amendment and to give us any introduction before we open it up for discussion.

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

Are the other amendments we have here coming later or are they set aside?

[The Chair, Conservative, Dean Allison]

We'll continue on this. This is the appropriate place for this amendment.