Bill S-10 (Historical)

Prohibiting Cluster Munitions Act

An Act to implement the Convention on Cluster Munitions

This enactment implements Canada’s commitments under the Convention on Cluster Munitions. In particular, it establishes prohibitions and offences for certain activities involving cluster munitions, explosive submunitions and explosive bomblets.

Prohibiting Cluster Munitions Act

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I am pleased to speak to this very important bill.

It is important to remember that it is in the House of Commons and in parliamentary committee that elected members of Parliament can help make contributions to the international community and to the world, and where they can make changes that impact millions of people.

I think it is truly unfortunate that this bill was introduced in the Senate, and that the government has remained inactive for four years, has not called a debate on this topic and has not asked Parliament to examine the issue. It waited for the Senate to decide to introduce a bill, which is inappropriate in this case. That will not change as long as there is no real debate in the House, where MPs are elected democratically. Unfortunately, after one hour of debate on May 29, at one in the morning, the government decided to move a time allocation motion. Only one person had debated this bill. That is completely unacceptable.

How can we ratify a convention if we amend it to add loopholes? When we sign a convention, we agree to abide by it. We agree to abide by the spirit and principles of the convention.

How can it claim to ratify a convention if its amendments completely obliterate the spirit of the convention? I want to point out that Canada's chief negotiator resigned because Canada's stance was too weak. That gives an idea of the government's method for negotiating treaties.

For example, Canada is in the process of sabotaging negotiations at the United Nations' Human Rights Council on sexual violence in conflict zones. The government is refusing to adopt a motion or trying to amend a motion regarding sexual violence against women and children in armed conflict. Why would a government oppose such negotiations? Believe it or not, it is because these negotiations and discussions include a section on abortion, reproductive choices and women who are victims of rape.

For purely ideological reasons, whether it be cluster munitions, sexual violence or arms trading, Canada is opposed to these principles. Another example is the arms trade. On several occasions, in the House, the Minister of Foreign Affairs stated that the convention was a back-door way of reinstating a firearms registry and of limiting the right to own a firearm. That is completely illogical. We are talking about the international arms trade. Ideology is the only reason the Conservative government is completely powerless on the world stage. This is completely unacceptable. Canada's reputation is taking a beating.

The former negotiator walked off the job because the legislation was too flimsy. This is weak legislation put forward by a weak government, which is often the case. The Conservatives do not walk the talk. The Government of Canada is weak. Unfortunately, it is also weak at the UN and on the world stage.

Canada is opposed to a motion against sexual violence and to the arms trade treaty. What other delights await us from a Conservative government that is trying to sneak in changes that would fundamentally alter the spirit of a convention that affects millions of people worldwide?

I have received several messages on my iPod from people around the world, including a young man by the name of Phongsavath, whose photo I have, and who survived a cluster bomb. He lost both his hands. What will the Conservative government say to this young man from Laos? Will the Conservative government say that it is sorry and that it wants to protect its soldiers?

I find it completely outrageous that the government is trying to shift the blame. In 2009, Germany, France, Japan and Mexico signed the treaty. In 2010, Great Britain followed suit, and in 2012, Australia came on board. Yes, these countries are all allies of the United States and they all have joint missions with the United States. Did their soldiers suffer because their countries signed the convention? No, they did not.

The government is trying to shift the blame onto the United States and soldiers. It is everybody else's fault, except the Conservative government’s. In fact, it is as if the Conservatives were in a playground refusing to do something that their friend is not doing. It is completely preposterous.

Canada should be a global leader, not just a follower—the black sheep, as we say. Why are we not able to display the same capacity for leadership as we did during the negotiation process for the treaty to ban landmines? What has happened since then? We were saddled with an ideologically driven majority Conservative government.

It is important to note that on June 3 of next year, the arms trade treaty will be ratified. Unfortunately, it would be foolish to hope for anything better from this government. It is hard to fathom why Canada continues to be a hindrance, refusing to save lives simply because the United States does not want to sign the convention.

One of my hon. colleagues said that we give a lot of money to countries whose populations are victims of cluster munitions. The government would like to allow cluster munitions to be used, and give those countries money. This is completely ridiculous. While we are here, let us do something to solve the problem; let us ratify the convention as it stands and try to persuade the United States.

What credibility would we have with the United States if we obliterated the spirit of the convention and asked them to sign it? What credibility would we have with the United States if we enacted Bill S-10? This is ridiculous. Canada’s credibility would be wiped out.

What can we hope for from a Conservative government that has no respect for the environment or workers’ rights or human rights? Canada is the only country in the world that has withdrawn from the United Nations Convention to Combat Desertification. Canada has zero credibility when it comes to negotiations. If we enact Bill S-10 as it stands, that will be undeniable.

I have received messages from a number of countries. I have been told that people in Iraq are still victims of cluster munitions. What credibility would we have on the world stage if we enacted Bill S-10? We would have zero credibility.

In addition, the Conservatives have supported none of our initiatives on respect for human rights or corporate social responsibility. That is a clear demonstration of their contempt, or their negligence.

This is an anemic, flawed, inadequate and mediocre bill that undermines the spirit of a convention that would save lives. The objective of the Convention on Cluster Munitions is to prohibit the use of those munitions. The convention provides that states that ratify it undertake never under any circumstances to use, develop, produce or acquire cluster munitions.

We already know that this is because the United States has not signed the treaty.

Essentially, all the blame is being cast on the United States. This shows how disconnected the government has become. These weapons kill women, children and civilians. In a majority of cases, they do not explode when they are used; they explode years later. This means that in conflict zones, for years afterward, women and children are dying.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Speaker, it must be a dark place to wake up every day and think what a terrible country one lives in. However, the reality is that Canada has been a leader with the land mine treaty. Canada has been a leader with the Oslo process. Canada continues to be a leader in the fact that we have never used or produced cluster munitions.

Contrary to the member's position, we have actually signed this process. We were one of the first countries at the table to sign it.

When the member met with Mr. Turcotte and when she met with Mines Action Canada, did they tell her we would be better off and children in Lebanon and Serbia and other countries around the world would better off if Canada did not ratify this treaty? Would they be better off if Canada did not fulfill its international obligations, as the NDP has proposed?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I would first like to say that this is like a contract. When you sign a contract, you read the clauses and then you sign it. You cannot sign the contract and be bound by it if right in the contract itself, you put a clause saying that you are not necessarily bound by the contract and you are not bound by it unless you decide you are.

It is the same thing in the case of a convention. A convention is made to be ratified and to be honoured. You cannot say that you are going to ratify the convention to look good, but unfortunately, you will only honour it when you decide to.

The NDP’s proposal is much stronger and much more consistent than the Conservatives’. We have to ratify the treaty as it stands now.

The Conservatives have to stop playing political games and trying to assert their extreme right-wing ideology on the international stage. Canadians will be a lot better off that way.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, I just have a comment.

Canada's former chief negotiator on a treaty to rid the world of cluster munitions urged the government not to water down the bill. Earl Turcotte ended a nearly 30-year public service career by resigning in protest from the foreign affairs department over how the government planned to interpret a key provision of the convention. He said:

I believed at that time, and continue to believe that Canadian legislation would simply be inadequate, it would be too weak. It would not accurately reflect the commitments we made during negotiations of the convention.... In my view, Canada will be isolated among the 111 signatory countries to the convention for our very weak interpretation...I think Canada's interpretation would simply be wrong in law as well as in spirit.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, it is important that this be said. I have received messages from all around the world. I have even received a huge banner from the United States, created by hundreds of elementary school students. They are calling on Canada to honour its original commitments and ratify the treaty as it stands, not make amendments that would destroy the spirit of the convention.

In 2008, when Canada started to be a leader in the negotiations and in taking action, people developed expectations, and they still expect Canada to play a role.

It is extremely disappointing for the entire international community to see how the Conservatives have done a complete about-face and decided not to honour the promises they made and not to ratify the convention as it stands.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I thank the hon. member for her remarks.

As the hon. member said, Canada signed the convention in December 2008. The implementation bill was introduced in the House of Commons on December 15, 2012, four years later. This is our first chance to debate the bill, and we have a very limited amount of time because of the time allocation motion.

I would like to know what the hon. member thinks about that.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I think it is simply a demonstration of the government's hypocrisy.

For hours, government MPs have made speeches about the importance of such a bill, but we see that there are two sides to every story and this is the other side.

Why did the debate on this bill not take place earlier, and why, especially, were members of Parliament not allowed to debate this issue?

The Conservatives' hypocrisy is quite evident. They boast about bills they did not even draft and whose impact they have not studied, and they do not let the members of Parliament do their job.

[Lois Brown, Conservative, Parliamentary Secretary to the Minister of International Cooperation]

Mr. Speaker, when one talks about ideology, I just heard the longest 15-minute rant on ideology that we have heard in the House tonight. The member does not understand that word. She needs to go and look it up.

It is my pleasure to rise this evening to speak to the prohibiting cluster munitions act, which fully implements Canada's legislative commitments under the Convention on Cluster Munitions.

Bill S-10, which was adopted by the other place on December 4, 2012, moves us closer to becoming a state party to the Convention on Cluster Munitions. Our ratification of this important humanitarian treaty will be a strong signal of Canada's unwavering commitment to reducing the impact of armed conflict on innocent civilians.

As others have rightly pointed out, cluster munitions are a grave humanitarian concern to the entire international community. Cluster munitions are a form of airdropped or ground-launched explosive weapon that can hold and release or eject dozens, or even hundreds, of smaller submunitions, or bomblets, to quickly cover a large target area.

Cluster munitions can pose threats to civilians not only during attacks but afterwards, particularly when they fail to detonate as intended. Unexploded bomblets can kill and maim civilians decades after conflicts have ended, and tragically, many cluster munition casualties around the world are children, who can mistake certain types of brightly coloured bomblets as toys. Access to land and essential infrastructure contaminated by unexploded bomblets is blocked to important uses, such as growing crops, raising cattle and fetching water. This stalls the development potential of whole communities trying to rebuild their lives after conflict.

Canada's commitment to the protection of civilians against the indiscriminate effects of explosive remnants of war, including those caused by cluster munitions, is well known and well established. We are proud to be part of the international effort to rid the world of cluster munitions, a weapon that Canada has never produced or used in its military operations.

Motivated by the harm caused to civilians by cluster munitions, the international community launched an initiative in February 2007, known as the Oslo process, to negotiate a treaty that would ban cluster munitions. Negotiations took place over several meetings throughout 2007 and 2008 and concluded with the adoption of the Convention on Cluster Munitions in Dublin in May 2008 and its opening for signatures in December of 2008.

Canada participated actively throughout the negotiations and we were among the first countries to sign on. Today, there are 83 states parties to the convention.

It is important to provide some context on how negotiations unfolded. Despite what the opposition would try to have us believe, it was recognized early during the Oslo process that not all states would be in a position to immediately sign on and join the convention. Early on, it was recognized that multilateral military operations, which are crucial to international security, required co-operation between states, including co-operation between states party to a possible convention and states that were not. This was not just Canada's position, but that of many of our allies. We had a clear mandate in negotiations. We have always been open and transparent in exactly what we want to accomplish.

From the beginning of the Oslo process, countries, including Canada, began to speak about military interoperability and the need to ensure that states parties could continue to collaborate militarily with states not party to the treaty. Canada, and the other states, made strong statements to that effect as early as at the Vienna conference in December 2007, as well as at the Wellington conference in February 2008 and during the Dublin conference in May 2008.

It is our view, and the view of many other states that had concerns with regard to interoperability, that article 21 of the convention meets the requirements in this regard. For Canada, authorizing our military personnel to carry out operations with the armed forces of a state not party to the convention allows us, among other things, to maintain our unique, co-operative relationship with the United States, which offers unparalleled benefits in terms of security, defence and industry. Article 21 allows Canada to comply with legitimate security requirements, while actively supporting the convention, fulfilling its legal obligations and working toward the universalization of the convention. This universalization goal is one to which Canada remains firmly committed.

In essence, the Convention on Cluster Munitions prohibits the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions. It also prohibits assistance and encouragement of anyone to commit a prohibited act.

Bill S-10 would prohibit the use, development, making, acquisition, possession, foreign movement and import and export of cluster munitions. In addition, stockpiling of cluster munitions on Canadian soil would not be allowed by this bill, as it would prohibit all forms of possession. Bill S-10 would also prohibit any person from aiding and abetting anyone in the commission of a prohibited activity, which would include direct and intentional investment in the production of cluster munitions.

Needless to say, Canada is fully meeting its obligations both in letter and in spirit.

It is important to note that Bill S-10 would implement the parts of the convention which actually require legislation in Canada. The convention itself applies a number of obligations to Canada as a state party. One of these requires each state party to impose on persons within its jurisdiction the same prohibitions which apply to the states parties themselves.

To do this, the proposed act sets out a series of prohibitions and offences, as well as the technical definitions needed to support their investigation and prosecutions. The act also sets out exceptions which reflect the convention's partial exclusions from some of its prohibitions for legitimate and permitted purposes, such as military co-operation between states parties and states that are not party, defensive research and training and transfers for the purpose of the destruction of stockpiles.

As I have already mentioned, clause 11 outlines the exceptions that provide our military personnel with the necessary legal protection to operate with the armed forces of states that are not party to the convention. These exceptions are crucial to allowing Canada to continue to participate in military co-operation and multinational operations with states that are not party to the convention and to keep pulling our weight internationally.

Our government will not apologize for protecting our men and women in uniform and ensuring that they do not face criminal repercussions for doing what we ask of them on a daily basis.

Despite this, it is important to emphasize that Canadian Armed Forces members remain prohibited from using cluster munitions in Canadian Armed Forces operations and from expressly requesting their use when the choice of munitions to be used is under their exclusive control.

In addition, the Canadian Armed Forces, as a matter of policy, will prohibit their members from using cluster munitions and from training and instructing in the use of cluster munitions when on exchange with another state's armed forces. The transportation of cluster munitions aboard carriers belonging to or under the control of the Canadian Armed Forces will also not be permitted by policy.

In response to some questions raised by the other place, I would now like to briefly explain why some of the specific terms in Bill S-10 may differ from the convention. This is simply the result of a required translation of multilateral treaty language into Canada legal terminology. This is necessary in order to meet domestic charter and other legislative standards for clarity and certainty in the eyes of the Canadian courts. For this reason, it was inadvisable to adopt a number of the amendments proposed by senators during deliberations on Bill S-10.

First, a certain number of those proposed amendments would have added the word “transfer” to the definition and prohibition provisions. The meaning of “transfer” as it is used in the convention requires prohibiting the physical movement of cluster munitions from one state to another when it also involves a change of ownership and control.

Using such a definition raised some domestic interpretive concerns, because the word “transfer” already occurs in many Canadian statutes with a different meaning.

The word “move” is therefore used instead. Moving prohibited cluster munitions from one foreign state to another is an offence if the intention is to change ownership and control, which is consistent with criminal law and easier to prosecute. Movement in and out of Canada itself is covered by the related offences of importing and exporting.

Another proposed amendment called for making it an offence for a person to knowingly invest in a company that produced cluster munitions. This is already covered by the bill, since direct and intentional investment in a commercial organization that produces cluster munitions is addressed by its prohibition on aiding and abetting. Those terms are clear in Canadian criminal law, and they cover all forms of investment that entail a sufficient proximity to the actual making of the munitions and the necessary criminal intent. Under the current wording in the bill, aiding and abetting or counselling from Canada will be a criminal offence, even if the activity aided or abetted takes place in a country where it is legal.

Similarly, the bill already deals thoroughly with stockpiling of cluster munitions, and therefore the proposed amendments regarding stockpiling are not necessary. Bill S-10 does not refer to “stockpiling” as such, because it is not a term used in Canadian criminal law. That notion is instead included in the bill under the term “possession”. Cluster munitions may pass through Canada within the scope of military co-operation, but they cannot be stored here except for permitted reasons, such as their destruction.

As for the amendment proposal that would require Canada to inform the government of a non-state party with which Canada is engaged in military co-operation regarding its obligations under the convention, it is important to remember that the current form of the bill is one of criminal law. It would not be advisable to create non-criminal obligations in this kind of text.

The obligation to notify non-party states of Canada's convention obligations and to discourage their use of cluster munitions applies to the Government of Canada when initiating military co-operation and operations with these states. It does not create any ongoing obligations for individual military personnel. The Government of Canada is expected to carry out its positive obligations as a result of the treaty itself, and it intends to fully do so.

Regarding the proposed amendment that would create reporting requirements, the convention itself already requires annual reporting by States Parties. In fact, even though Canada is not yet a state party, I am pleased to tell members that we have already begun carrying out this task voluntarily. To date, we have submitted two article 7 transparency reports to the Secretary-General of the United Nations, which are publicly available. Additional reporting to Parliament could hamper our diplomatic efforts to promote universalization around the world. In this instance, it would not be prudent to encourage countries to follow our lead and then shame them in our own Parliament.

Since much of the debate on Bill S-10 has been centred on the interoperability exemptions provided for in clause 11, it is important that I speak about this specific issue.

As already explained, the convention itself calls for the use of criminal law. As such, it is necessary to create exceptions to the prohibitions established in this legislation in order to ensure that members of the Canadian Armed Forces and the associated civilians who participate in military co-operation and operations permitted by the convention are not held criminally responsible for those acts when they are serving Canada.

The exceptions in clause 11 of the bill do not permit or authorize any specific activity; they simply exclude these activities from the new criminal offences created by the law. If these exemptions are not included in the act, it could lead to criminal liability for a wide range of frequent military co-operation activities with our closest allies that are not party to the convention and that do not plan on ratifying it in the near future.

It is important to point out that these exceptions are permitted by the convention itself and apply only to the specific prohibitions created in the proposed act. They do not detract in any way from other applicable legal obligations of members of the Canadian Armed Forces, including those established by existing international humanitarian law.

Even before the introduction of this bill, our government has taken concrete steps to fulfill its commitments under the Convention on Cluster Munitions. Canada has never produced or used cluster munitions in its operations. The Canadian Armed Forces have initiated the process of destroying all of their cluster munitions, and their last remaining inventory of cluster munitions has been removed from operational stocks and marked for destruction.

Canada is already active in promoting the universalization and implementation of the convention with international partners, and will continue doing so. Also, Canada has already been voluntarily submitting its annual transparency reports. All of these activities are being implemented outside of Bill S-10 and before Canada's ratification of the convention.

Canada is committed to the eradication of cluster munitions, and our government is proud to have tabled this legislation to enable us to ratify the Convention on Cluster Munitions. We are particularly proud of Canada's important role in striking the convention's essential balance between humanitarian and legitimate security concerns and in ultimately paving the way for ratification of the convention by a larger number of states than would have been the case otherwise.

I urge all parties to support this bill so that we can move it forward as expeditiously as possible.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, this makes me sick.

I am very disturbed that a Conservative member would begin her speech by talking about the children who play with bombs, children who die because of these bombs. I think it is hypocritical and perverse. It makes no sense that this hon. member, who is part of the Conservative government that is attempting to destroy a convention, is talking about these children.

I do not know if the hon. member is aware that her government wants to destroy Canada's international leadership on this convention. I would like the hon. member to try to explain that to me, because I do not understand. I find it inconsistent that she can make such a speech and support a bill that will destroy that convention.

I would like her to explain that, because I just cannot see how it works.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Speaker, I would like to advise the member that our party has been a strong leader on this file. We have taken the steps to put in place the ratification of this convention. Canada was one of the first countries to sign on.

I would like to read exactly what it says in the framework for the member. It says it will establish

...a framework for co-operation and assistance to ensure adequate care and rehabilitation to survivors and their communities, clearance of contaminated areas, risk reduction education and destruction of stockpiles.

It also requires countries that are States Parties to this convention to establish a way forward for victim assistance. Article 5 talks specifically about the countries establishing a budget and developing a plan for assisting these very victims who have been harmed.

We want to see these cluster munitions eradicated. We want them disposed of. We want to see them destroyed. We want to take a very active hold on this file and get this done.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, I would like to thank the member for bringing out some of what happens with these munitions, but I will provide more information.

One cluster munition contains enough submunitions to cover an area the size of two to four football fields. In Laos the United States dropped, on average, an entire planeload of munitions every eight minutes for nine years.

Cluster munitions have been used in at least 30 countries and areas. There are 34 countries known to have produced over 210 different types of air-dropped and surface-launched cluster munitions, and tens of thousands of civilians worldwide have been killed or injured by cluster munitions.

My question is this: why is the government weakening the bill and weakening the spirit of the convention?

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Speaker, I would say to my colleague that Canada has been a leader in getting this convention in place. We were one of the first ones to sign on to it.

The things she has said are absolutely horrific. We agree. That is the very reason we want to get this convention signed. That is the very reason why we want to get this piece of legislation through, because Canada wants to ratify this convention.

We want to be the strong leaders in the globe and to say that the world needs to be rid of these kinds of munitions. They need to be eradicated. Canada is a strong leader. We will continue with that leadership.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, I appreciate my colleague's thoughtful speech. It was actually a reflection on what exactly has happened. Obviously Canada was one of the first countries to sign on to the convention.

Canada has undertaken its responsibility the way that Canadians would expect: that it be responsible and be a proactive member in ensuring that these types of things are dealt with in the international community.

There are two things I would like to have the parliamentary secretary reflect on. First, I would like her to reflect on Canada's history when it comes to these particular munitions.

Second, I would also like the parliamentary secretary to reflect on what our allies are doing. Obviously we have heard members opposite wax eloquent on different aspects of the problems with these types of munitions. I am wondering how Canada's response resembles what has been done by other countries, such as the United Kingdom and Australia.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Speaker, our allies are working in concert with us, because they too, the United Kingdom and Australia, have done the same. These are the allies we work with in many situations with our military, and they are on side with us. They want to see cluster munitions eradicated from the world.

I would like to read from the very beginning of what this convention says. It is what Canada is signing on to. It says we are:

...deeply concerned that civilian populations and individual civilians continue to bear the brunt of armed conflict

and that we are

...determined to put an end for all time to the suffering and casualties caused by cluster munitions...concerned that cluster munition remnants kill or maim civilians...deeply concerned also at the dangers presented by the large national stockpiles...believing it necessary to contribute effectively to an efficient, coordinated manner to resolving the challenge....

These are the kinds of things that we and our allies are signing on to. We want to see these cluster munition stockpiles disposed of. We want to be a leader, and Canada is doing that through this legislation.

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

Mr. Speaker, I could not agree more with my hon. friend from Newmarket—Aurora that this convention is extremely important. Canada did sign on early, and that is why I am baffled. Maybe she could explain to me why there are these carve-outs.

I am looking at page 7 of the bill, subclause 11(3). It is not related to the movement of cluster munitions for the purpose of destroying them; that is a different section. This section says that earlier prohibitions do not apply to a person in the course of military co-operation or combined military operations involving Canada and a state not a party to the convention—which would include, for instance, the United States—for “aiding, abetting or counselling another person to commit any act referred to in paragraph 6(a) to (d) if it would not be an offence for that other person to commit that act”.

In other words, it looks to me as though we have a carve-out here that lets Canada help the United States invest in cluster munitions, use cluster munitions and transfer them in shared co-operative action.

If we are to adhere to the convention, should we not remove subsection 11(3) so that it is clear that we are not speaking out of both sides of our mouth?