Bill C-6 (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

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

Mr. Speaker, I want to start across party lines by saying how indebted I think all of us in this House should be for the consistent dedication and commitment from the member for Ottawa Centre, who is such a champion on these issues. I look to him for leadership on these issues, across green to orange, and I make no bones about that. We all should be in his debt. I am.

The member has really cast the light for me to understand what went wrong here. I have been struggling to understand how the bill could be this bad when I believe the intentions are actually good. This goes to what the member just explained, which I had not heard before, that the course of the bill started in the wrong place. Instead of going to the Department of Foreign Affairs, it went to the Department of National Defence. That is why we have legislation before us that falls so far short of what Canadians would want of our government to end the scourge of cluster munitions.

I thank the member for that explanation. I would ask him to expand on it.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank my colleague for her engagement as well, and for the amendments she put forward, which we supported.

In fact, there is a history here. I remember talking to former Prime Minister Clark about this not too long ago. He was at committee a couple of years ago. There was a notion when it comes to international treaties on arms control, et cetera, that we do the best we can with all hands on deck, to have the best and the brightest, the most professional people advising us. This is where the government has gone down the wrong road.

The Conservatives have looked at international treaties and have seen them as perhaps barriers or as undermining our sovereignty. I note that this is an issue right now with the Europeans. The strategic partnership agreement has not been signed, and perhaps it is getting in the way of the CETA.

The government should look back at when Canada had its biggest wins on the international stage. It was when all parties, and all departments if I may, as well as experts were providing their best advice so that we came up with the best legislation for international treaties.

Make no mistake: we have differences on domestic policy; I get that. However, when it is an international treaty, we should have the best minds looking at it. When we are being critiqued by the Red Cross, by former prime ministers of Australia, we are not doing our best.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I think it is always a difficult question for members of this House when we are presented with a flawed bill, and we have to ask ourselves whether a flawed bill is better than no bill.

I am looking at this bill. All members of this House, including the Minister of Foreign Affairs, has described cluster bombs as a horrific weapon. There is no question that this weapon is something that all right-minded people in civilized countries of whatever stripe, from the left, right or centre, all agree are weapons that simply should not and cannot be used in this world.

We have agreed as a country in this treaty that Canadian soldiers will not use these weapons. However, my understanding is that, through the loopholes that our government somehow led and negotiated, Canadian soldiers would still be allowed to acquire, possess or transport cluster munitions when they are acting with other non-party states because of the concept of interoperability. In others words, it wants to allow Canadian soldiers when we are working with countries that will not sign this treaty to keep using them.

We have this concept in our law about being an accessory. If using a horrific weapon is wrong, how can being party to transporting or facilitating the use of that weapon by someone else not be equally as wrong?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, my colleague, in asking that question, is showing his legal background.

This is an important point, because when we are considering legislation and the implementation of a treaty, if we are putting in loopholes that actually undermine the treaty, we can be an accessory to something we are trying to actually avoid. The member is absolutely right to note this.

We are flummoxed on this side as to why the government would go down this path under the guise of interoperability. Everyone knows that the section in the treaty, which was negotiated by a Canadian particularly to get it right on interoperability, is there in the treaty. All we had to do was cut and paste it, but the Conservatives decided not to do that. Instead, they put loopholes in, and that is very unfortunate.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, I am delighted to have the opportunity to join this debate tonight.

I want to begin by thanking and congratulating all the members of the committee, who I believe did an exceptional job of pulling this bill together and giving us a bill that we in this government should be very proud of.

As members well know, cluster munitions can be delivered by aircraft, rockets, or artillery shells. Rather than detonating on impact, they open beforehand and spread a number of smaller bomblets over the target area. There are variations intended for use against different kinds of targets, but all of them are capable of causing tremendous damage. Because they can strike a large area, there is a greater risk that non-military targets or non-combatants will be hit. With some types, especially those which contain large numbers of small bomblets, any remnants that do not detonate as intended can remain lethal long after the conflict itself has ended.

If the bomblet explodes later, the result is devastating, with victims sustaining horrific injuries or even being killed. The unacceptable harm to civilians caused by cluster munitions was the motivation for negotiations on a treaty to address these weapons. After three years of sometimes difficult negotiations, the Convention on Cluster Munitions was adopted in Dublin in May 2008. The convention entered into force in August 2010. It builds on and complements other international agreements that address weapons that are prone to having indiscriminate effects. The convention prohibits countries that ratify it from using, acquiring, developing, retaining and producing cluster munitions, weapons that continue to kill and maim innocent people long after wars have ended.

It also prohibits them from assisting or encouraging anyone to engage in any of those activities. The convention entered into force in August 2010. Canada has already taken concrete steps to fulfill its future commitments under the convention. Canada has never directly used cluster munitions and even though we have not yet ratified the convention, we have already committed not to use them in the future either. Canadian companies have never produced these munitions, and while Canada does not have an existing stockpile, the Department of National Defence has already removed cluster munitions from operational stocks and they are in the process of being destroyed.

Canada is also active in promoting the universalization and implementation of the convention with international partners. It has voluntarily submitted annual transparency reports under the convention. Canada has contributed more than $215 million since 2006 to mine action projects which address the impacts of explosive remnants of war, including cluster munitions.

During his visit to Laos on October 15, 2013, the hon. Minister of Foreign Affairs announced $1 million in Canadian support for two projects aimed at clearing unexploded ordnance in Laos, the most heavily contaminated country in the world in terms of cluster munition remnants. Hon. members of the Standing Committee on Foreign Affairs and International Development will recall that the minister undertook to set aside $10 million over the next 18 months to continue Canada's proud tradition of support to demining efforts, victim assistance and risk awareness programs. All of these activities are being implemented before Canada's ratification of the convention.

Only a small part of the convention actually requires legislation, and in keeping with its commitment, the government is now proceeding with this element to complete the package. The prohibiting cluster munitions act would fully implement the legislative requirements of the convention and its enactment by Parliament is the only major step that must still be taken before Canada can ratify the convention and join other states parties in working toward its full global acceptance and implementation.

For this treaty to be effective, as many countries as possible must join it and ensure that its provisions are enforced. Ideally, all countries will join, ensuring universalization of the treaty. To date, 84 states parties are already bound by it and another 29 states have signed it. If the bill before us becomes law, Canada can then take the final steps and ratify the convention.

The government is committed to do all it can to help ensure that the treaty is effective. To that end, the government will collaborate with our friends and allies, like the U.K. and Australia, as well as other states parties, to promote the universality of the treaty by ensuring that as many countries as possible join it and adhere to its requirements.

Bill C-6 will only implement those parts of the convention that require penal legislation in Canada. Other provisions are carried out by other means. 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.

Let me turn now to those provisions that do require legislative implementation and that are included in Bill C-6, which is before us today.

The convention requires states parties to extend the prohibitions it imposes into domestic criminal law. The bill, when enacted, will prohibit the use, development, making, acquisition, possession, movement, import, and export of cluster munitions.

The bill will also prohibit the stockpiling of cluster munitions in Canada through the broader proposed offence of possession in Canada. This offence will cover any form of possession, including stockpiling, and can be easily enforced and, if necessary, prosecuted in Canada's criminal justice system.

The bill will also prohibit anyone from aiding or abetting another person in the commission of a prohibited activity. This will capture a number of potential cross-border scenarios where people or organizations subject to Canadian law engage in activities that are prohibited by the convention and will also ensure that those who are subject to Canadian law can be prosecuted for the offences in Canada.

While many countries could agree to an immediate ban on cluster munitions, each country has its own defence policy and security concerns, and it is clear that not all states are currently prepared to accept this. Some of the countries that prefer a different approach to the problem are our friends and allies.

Other members of this House have suggested that Canada simply prohibit cluster munitions entirely and confront our allies with a choice between not having these munitions or not co-operating with Canada. The approach of the government, which is reflected in this bill, is more nuanced, and it is the approach which was ultimately agreed upon when the convention itself was negotiated.

Under the bill, and the convention itself, Canada will not have cluster munitions. We will not directly use cluster munitions. However, we will continue to co-operate with our allies in training and actual military operations. Some of these operations could well involve the use of these munitions by our allies, but Canada will not expressly request the use of cluster munitions if the choice of munitions used is within its exclusive control.

The policy that we are agreeing to in our international obligations will be given the force of law for Canadians by this bill. No person in Canada may possess, make, or use a prohibited munition, and no person in Canada will be permitted to take any part in activities, such as design or manufacture, even if it takes place in a country which does not ratify the convention.

On the other hand, no public servant or member of the Canadian Armed Forces will be subject to prosecution and punishment for participating in the kinds of Canadian co-operation with other countries that are specifically allowed by this treaty.

The bill will subject anyone who engages in illicit activities with respect to cluster munitions to prosecution and punishment, and it will assure other countries that we will not use private companies to retain stockpiles or manufacturing capacity that we would be prohibited from having as a states party.

However, we must take a responsible and prudent approach in deploying the criminal law so that we do not punish our own solders for military co-operation activities that are permitted under the convention.

The bill does not always use exactly the same language as the convention. This is because the convention is an international treaty that speaks to countries, while the bill is Canadian criminal law that speaks to the Canadians who are expected to obey it and the courts that will be called upon to apply it.

One issue that has been raised is whether the bill should make it an offence for a person to invest in a company that makes cluster munitions. It would send the wrong signal to markets to criminalize investments as such, it is not required by the convention, and it would be very difficult to enforce the practice. What the proposed legislation would do, however, is make it an offence to aid or abet another person or company in activities such as the making, development, or transfer of cluster munitions. This includes not only investment scenarios but other forms of encouragement or assistance as well.

If a person in Canada knowingly assists or encourages a company to commit a prohibited act, whether this is by investing capital resources or by providing technical or engineering expertise, then that person would be committing the offence even if the company aided or abetted is in another country where making the munitions is not a crime. This is an important balance to strike. If someone buys a company to make weapons offshore or specifically invests in order to fund illicit activities for a higher profit, it should be and would be a crime. On the other hand, if a Canadian, without any knowledge or intention to aid or abet the production of cluster munitions, holds a few shares in a large company that makes munitions, it should not and would not be a crime.

The bill would not implement investment policy but would establish criminal offences that can be prosecuted and punished. The use of established criminal law principles for aiding and abetting to draw the line between what is permitted and what is punishable would protect Canadians and ensure that the legislation complies with their charter rights.

The legislation before the House is solidly in step with Canada's commitment to protecting civilians against the indiscriminate effects of explosive remnants of war. Canada's ratification of the convention will give a strong signal of that commitment.

I am proud to support Bill C-6, which would enable us to ratify the convention and begin to end the scourge of cluster munitions, once and for all. I urge members of the House to join me in supporting this bill. There is work to be done under the convention, and the sooner Canada can take its rightful place with other state parties, the better.

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I cannot support my colleague and his conclusions on this bill. I thought I heard earlier in his speech that he said Canada currently has cluster munitions, or perhaps we did have cluster munitions. I am wondering if he could clarify that point for me.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, there are cluster munitions still on Canadian soil. The Chief of the Defence Staff and others in the defence department have committed to a full destruction of those munitions. We make it very clear, by this bill, that Canada will not and does not condone the use of cluster munitions and that any such product in a Canadian repository would be destroyed.

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

Mr. Speaker, we had a number of witnesses in front of the foreign affairs committee talking about the interoperability clause that is so necessary in this piece of legislation.

Interestingly enough, we were talking about some of our closest allies who also have to have interoperability clauses in their legislation: Australia, the Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Sweden, Switzerland, and the United Kingdom.

I wonder if my colleague could talk about the importance of our work with our closest ally, the United States, and how often our military is embedded in the operations it is doing and what clause 11 would do to protect our own Canadian military personnel.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, clearly the Obama administration has not signed on to this convention, so in the case of the United States, yes, it still operates with cluster munitions.

Interoperability gives us the ability to work with our allies in a way that is co-operative, both in training and in actual military operations; so it is critically important that our Canadian Forces personnel not be held liable when they unexpectedly or through no fault of their own are called to participate in an operation where they have no control over what our allies are carrying in ordnance on aircraft, as an example.

In this case with the United States, clearly our biggest ally, our biggest partner, we want to make sure we continue our ability to work with it, and therefore, we do not want to hold our forces accountable in a case such as that.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, there was a time when Canada had a very strong international reputation for its efforts around the world. One of the examples I would cite would be the Ottawa deal with the land mines. This was when we had Jean Chrétien as prime minister and Lloyd Axworthy, from Manitoba—I will give that extra little plug for my home province—who actually initiated and put together a treaty agreement that ultimately made a significant difference around the world.

Over the last number of years Canada's leadership on the international stage has diminished. When we look at the legislation before us, I am wondering if the member would not agree that there could have and should have been amendments that would have allowed this legislation to be a whole lot better. As a result, Canada is losing the opportunity to once again demonstrate leadership on the international stage, as Lloyd Axworthy and Jean Chrétien did in the nineties.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, let me begin by saying I absolutely reject the premise from which my hon. colleague is coming.

I am very proud of our Canadian Forces. I am very proud—and biased—of the operational effectiveness our Canadian Forces have had overseas, and I just cannot accept that we do not carry a leadership role in these types of engagements.

In fact, I listened intently yesterday as the Minister of Foreign Affairs spoke to this very issue. Let me bring this back to the topic at hand, as opposed to relating to something, which is just totally unacceptable, from the hon. member's perspective. The Minister of Foreign Affairs said yesterday:

...our legislation fully implements Canada's commitment to the convention and it is in line with our key allies, including Australia and the United Kingdom. We regret that President Obama does not support the convention, and the United States will not join.

We are, however, coming forward with legislation that is fully aligned with the convention. We have gone so far as to say Canada has never used cluster munitions, ever. We will completely destroy the entire stockpile that exists....

I think we are taking a leadership on this, and I stand firmly behind that.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I thank my colleague from Don Valley West for his speech, although I do not agree with the positions he put forward. I am sure this comes as no surprise.

The government’s bill has several troubling aspects, and I would like to ask my colleague about the length of time it took once the convention was signed by Canada, on December 3, 2008, to introduce the bill, which was not done until December 15, 2012. Now we are now debating it today in a disorderly and rushed fashion.

I wish to remind my colleague that Canada signed and ratified the convention on the prohibition of anti-personnel mines on December 3, 1997. The timeframes were much shorter. Canada genuinely met its commitments and showed leadership by being the first to move forward with the ban on land mines.

I would like my colleague to explain how the government could wait so long to introduce a bill that is so convoluted, if not contrary to the spirit of the convention.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, as I pointed out in my speech, we have taken a serious problem and we have implemented guidelines and legislation around that problem that would prohibit the use of cluster munitions.

While this may have been signed some years ago, our government has taken a leadership role in ensuring that our country and our forces are protected and are not distributing these types of munitions and ordnance, and that this country would make it illegal for anybody to do so.

We have taken a strong leadership internationally in establishing ourselves along with our allies Australia and the United Kingdom. We have preserved Canada's ability to work alongside all of our allies.

I would encourage my hon. colleague to join us and support the bill. Let us put partisanship and ideology aside and make this happen, as something that is required as international leadership.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I will certainly not question the integrity of my esteemed colleague.

The fact is that this kind of weapon is used to bombard an area rather than a target, regardless of who is in that area. That is the problem. It greatly increases the number of civilians affected.

Previously, a pilot locked on a target and dropped a bomb. Now, a missile is launched from a great distance and an area is destroyed. That is the problem. Civilians are made victims, something not permitted under the laws of war.

I would like my colleague to tell me how he justifies bombarding an area without knowing whether there are civilians present.

[John Carmichael, Conservative, Don Valley West, ON]

I clearly do not, Mr. Speaker. That is why I am standing up in support of a bill that would prohibit cluster munitions. Clearly, we stand against the use of these devastating and horrific ordnances.

I am a grandparent. These young children play out on the street with toys and things. The way that these cluster munitions are described, in fact by one of the members opposite, it is like dispersing toy-like elements that explode in the faces of children. It is a horrific situation, and you need to join with me in stopping it, by supporting the bill.