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.

Motions in Amendment

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I have a question for my colleague.

The hon. member knows that half the victims of cluster munitions are children, who are particularly drawn to unexploded sub-munitions because they look like brightly coloured toys.

Does the government agree that we should completely ban this weapon and put our words into action?

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, as I said in my speech, I thoroughly agree with the member. This is a very dangerous situation for children, who are damaged by these things. I agree with her that they should be banned completely. The unfortunate truth is that many countries still have not done so. As I said in my speech, we are forcing them to do so. Canada would like to do that. Therefore, we are taking a pragmatic approach to this by working with those countries that have not signed and only in a very narrow capacity. On a larger scale, our goal is to make sure that cluster munitions are banned all over the world.

Second, Canada is very much committed to helping those who have already gone through these accidents to ensure that they return to a normal life as quickly as possible by clearing the mines, helping in education, and destroying the mines that have not yet exploded.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I have a quick question. The interoperability issue, which is in question in clause 11, deserves to be addressed here. In the past, we have addressed it by saying that we strictly believe that we will not involve our military and the members of the military in this type of exercise in other operations. However, in this particular example, this does not seem to be exercised.

I really do not understand the logic in not accepting what we consider to be reasonable amendments to help ameliorate the situation by instructing our personnel to not get involved in this type of activity.

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, if the member would go deeper to understand the tremendous co-operation we have with our closest ally, the U.S.A., he would understand why we need a very narrow definition. It is to protect Canadian soldiers so that they do not break our laws.

In the larger frame of things, where possible, as was made very clear in my speech, Canadian soldiers would comply with the requirements of this convention. The need for what this convention is talking about is the bare essence of what Canadian soldiers would apply. However, should it happen that the U.S.A. does not sign this treaty, and we have such massive co-operation with each other, this is to protect Canadian soldiers. We agree with the member that we want to ban these munitions.

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I would like to thank the hon. member for his speech. He has travelled abroad and has represented Canada proudly. I thank him for his speech tonight as someone who knows this subject very well.

I was not aware of the many good things Canada is doing, not just in terms of education but in helping to clear the scourge of cluster munitions from countries. That kind of international work will be helpful to the people at home to know.

As we look to ratify this particular piece of legislation for this Convention on Cluster Munitions, what would that do? What kind of pressure would that put on countries that have not yet signed on? Canada is doing many things on the international stage to draw consensus in a positive way.

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, as I said in my speech, when Canada signs this convention and more and more countries sign the convention, it would become, as the member of the Green Party said in her speech, a moral obligation for other countries to sign the convention as well.

If they did not sign they would stand out when the whole world, including Canada, is looking to ban this kind of weapon around the world. There would be a moral pressure on other countries to sign this convention.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I thank all my hon. colleagues for allowing me this time, and as always, I thank my constituents for giving me the honour of speaking to this and other measures.

We have been talking for the past hour about cluster munitions. I just wanted to address the gravity of the situation, in addition to what was said by my hon. colleague from British Columbia, the leader of the Green Party.

Cluster munitions are a form of air-dropped or ground-launched explosive weapons that release or eject smaller submunitions. Commonly, a cluster bomb ejects explosive bomblets that are designed to kill personnel and destroy vehicles. Other cluster munitions are designed to destroy runways or electric power transmission lines, disperse chemical or biological weapons, or scatter land mines. Some submunition-based weapons can disperse non-munitions, such as leaflets. Of course, that is just a mild form.

As many people have said, over 95% of the victims, when it comes to cluster bombs, are civilians. For these cluster bombs, many would say, ratification has been a long-time coming. In this particular situation, and in all situations around the world, we must respect the spirit of the treaty that was signed.

Because cluster bombs release many small bomblets over a wide area, they pose risks to civilians both during attacks and afterwards.The weapons are prone to indiscriminate effects, especially in populated areas, the larger urban areas. Unexploded bomblets, and this is where it gets even worse, can kill or maim civilians and/or unintended targets long after a conflict has ended, and they are costly to locate and remove.

We draw the similarities between the work we did on the landmine treaty here in Ottawa and our ongoing efforts to defuse landmines around the world.

I am very grateful to have the opportunity to participate in the debate on Bill C-6. We worked hard to improve the bill while it was before the foreign affairs committee and have met with numerous organizations and individual Canadians who have shared their concerns with us about the legislation. I want to congratulate my colleague from Westmount—Ville-Marie, who was involved in that, for the hard work he accomplished.

Unfortunately, there was one improvement made to the bill, and only one, at committee. On balance, we find it still sorely lacking in terms of meeting Canada's commitments as a signatory to the Convention on Cluster Munitions.

Canada has long been a leader on humanitarian disarmament, most notably with the Liberal government's leadership in banning the use of landmines, and we must avoid undermining this Canadian tradition of international leadership.

The Convention on Cluster Munitions is an important convention, with an ability to reduce radically the number of cluster bombs and cluster bomb deaths and injuries around the world.

These are particularly heinous and indiscriminate weapons, as I mentioned earlier. Recent research indicates that more than 90% of reported cluster munition casualties are civilians, and about half of these are children, who often mistake these bombs and bomblets as harmless toys.

These are weapons that are hard to target. They are hard to control. Decades after the wars in Southeast Asia, hundreds of civilians continue to lose life and limb to those bombs in countries such as Laos and Vietnam. It not just a problem of the past. Cluster munitions continue to be used in the brutal war in Syria and will leave a legacy of death and injury in that country for years after the war ends.

Canada has a duty to ensure that we hold ourselves to the highest possible humanitarian standard in our international obligations. Leading the fight to ban these weapons would be consistent with that duty.

Bill C-6, Canada's ratification legislation in answer to the treaty, contains serious loopholes, in particular clause 11 of the bill, which has to do with joint operations with states that are not signatories to the Convention on Cluster Munitions.

The Conservative government has put in “exceptions” in this section of Bill C-6 that undermine the spirit and the objective of the convention and call into question Canada's commitment to ban cluster munitions.

Earlier I mentioned that we saw one improvement at committee stage. The government finally agreed to amend the wording of the legislation to indicate that Canada could not “use” cluster munitions. The practical effect of this change seems to mean that Canadian soldiers operating as part of joint military missions with non-signatory countries would be prohibited from dropping a cluster bomb.

However, as pointed out by the Mennonite Central Committee and other expert witnesses, Canadian Forces could still facilitate the ongoing use of these weapons in many instances, and here they are: directing or authorizing an activity that may involve the use, acquisition, possession, import, or export of a cluster munition; expressly requesting the use of a cluster munition; acquiring, possessing, or moving a cluster munition; transporting or engaging in an activity related to the transport of a cluster munition; aiding, abetting, or counselling another person to use, develop, make, acquire, possess, move, import, or export a cluster munition; conspiring with another person to use, develop, make, acquire, possess, move, import, or export a cluster munition; and finally, receiving, comforting, or assisting another person to use, develop, make, acquire, possess, move, import or export a cluster munition.

Including such major loopholes radically undermines the practical effects of the convention.

Either Canada is for or against cluster munitions. By passing this legislation as it is currently formulated, the government appears to be engaged in what my former colleague, Bob Rae, called organized hypocrisy. We sign legislation that appears, but only appears, to ratify the convention , but we include major loopholes in fine print that mean that nothing would really change on the combat field, at least when we participate in joint operations with non-signatory countries, such as the United States, which is typical of most Canadian deployments.

The government replied that the realities of interoperability mean that we had no choice but to include these loopholes if we wished to continue participating in joint missions with the Americans. This is clearly not true. In fact, 20 NATO countries have signed this convention without including these kinds of loopholes in their ratifying legislation, and they continue to operate in joint missions with the United States.

Department of National Defence representatives noted that there is always recognition in a partnership such as NATO that each country has different rules, and there are no repercussions from those differences inside a coalition. In a case where a nation would not use a particular weapon, we would not eliminate them from the coalition. We would simply employ them in the coalition in such a way as to not cause them to violate a principle or a domestic law, which would have fit in our amendments.

Bill C-6 is also missing key positive obligations that are outlined in the convention, including stockpiling, destruction, transparency reports, working to universalize the convention and promote its norms, notifying allies of our convention obligations, and discouraging the use of cluster munitions. This ratification legislation does not adequately promote the stigmatization of the use of cluster bombs.

The government likes to talk a lot about how its foreign policy is based on principled stands and seems to imply that this is novel for Canadian governments. What is principled, though, about passing legislation that appears to ratify an international convention we signed onto but then including loopholes within that fine print? It is not the way we have proceeded in many treaties past.

Respectfully, I would suggest that Canada's previous leadership of banning land mines was a much better example of principled foreign policy. I very much regret that we are not able to improve the legislation significantly.

We would like to thank organizations such as Mines Action Canada and the Mennonite Central Committee that did all they could do to raise awareness about this issue. I would also like to thank the expert witnesses we heard in committee.

I am also very sorry for the thousands of people all over the world who have been injured or killed by these weapons, which we can all agree are the most devastating and most vicious weapons known to humankind.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, my hon. colleague talked about circumstances and so on.

First of all, I have to point out that it is an offence and remains an offence to request the use of cluster munitions. Canadians cannot request use of cluster munitions.

He talked about aiding and abetting. If a Canadian refuelling aircraft is refuelling an aircraft from the United States that may or may not be carrying cluster weapons—most likely not, but it turns out that it is—is the pilot or crew of the refuelling aircraft committing a crime?

If an air traffic controller directs an aircraft toward a target area, and of course that controller has no idea what that aircraft is carrying, but let us say for argument's sake it is carrying cluster munitions, is that air traffic controller now guilty of an offence?

There are many more circumstances that could be gone into. Those are just two examples. Does my colleague think those people have committed an offence or should be considered as having committed an offence?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, the concept of knowingly doing so is involved here, which is what we discussed at the foreign affairs committee.

Once again I would like to remind that member that it is directing or authorizing an activity that may involve the use, acquisition, possession, import, or export of a cluster munition. We are talking about expressly requesting the use of cluster munitions, which his examples do not include. Acquiring, possessing or moving a cluster munition itself. These are quite explicit.

I certainly believe that allowing this amendment to go through would have explored these issues and would have closed a loophole to address all the questions that the member is asking. That brings up a point. By accepting these amendments I feel that those questions would have been addressed. By asking these questions, I would like to think that he would like to close these loopholes himself.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, my colleague is right to point out that Bill C-6 is an attempt to undermine rather than ratify the convention.

I had the pleasure of working in the committee that studied Bill C-6. We heard from many witnesses, including Paul Hannon, the executive director of Mines Action Canada, who had this to say on the bill:

Canada should have the best domestic legislation in the world. We need to make it clear that no Canadian will ever be involved with this weapon again but from our reading this legislation falls well short of those standards.

We also heard from other witnesses, including former Australian prime minister Malcolm Fraser who said:

It is a pity the current Canadian Government, in relation to cluster munitions, does not provide any real lead to the world. Its approach is timid, inadequate and regressive.

Has my colleague been able to consult with stakeholders on this issue, and what is his reading of the stakeholder situation?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, many stakeholders brought up these concerns. Let us face it: a lot of the thoughts and testimony that we have brought to the House today have come from many of those witnesses.

The witnesses that my colleague mentioned, Mines Action Canada and the Mennonite Committee, have certainly been an important part of that. They have been very vocal in their opposition to some of these loopholes.

Other people who have written editorials have brought forward some of the things they talked about, such as removing the word “using” from clause 11(1)(c), not going far enough to eliminate the use of cluster bombs. One of the examples was that other nations that closed those loopholes engage in interoperability missions with other countries that are not signatories. In other words, if they can do it, so can we.

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

Mr. Speaker, that was an excellent address. The member spoke so clearly to the issues that I think all of us on the opposition benches at least, and I imagine some friends on the Conservative side in their heart, would like to see changed.

I am going to refer to a brief that came from Human Rights Watch and Harvard Law School's International Human Rights Clinic, which made some of the same points. Their reading of this bill, as it is before us now, said that under this bill we may still be running, not only not meeting the convention's goals, but running “counter to, the convention's goals”.

They are concerned that the bill:

Permits assistance with cluster munition-related activities...in the course of joint military operations...;Allows stockpiling of cluster munitions in and transit of them through Canadian territory;Provides only a limited ban on transfer of cluster munitions; andFails explicitly to prohibit investment in the production of cluster munitions.

My question is for my hon. colleague. Given these failures, how does he believe Bill C-6 stands up to the promises and the commitments we have made in signing the convention in the first place?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I thank my hon. colleague for her earlier speech when she spoke so passionately to this issue.

The witnesses we have seen speak passionately about things that are in the bill that are considered to be loopholes, which I mentioned earlier. They also speak to things not addressed, things that live up to the spirit of the treaty that was originally signed. For example, stockpile destruction, transparency reports, working to universalize the convention and promote its norms, notifying allies of its convention obligations, discouraging the use of cluster munitions.

There is a basic investment in the public realm as to what these bombs can do and how we need to eradicate them, and how we keep our governments in check to always make sure that we propose legislation that eliminates these destructive and unbearable munitions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I am pleased to rise to contribute to the debate on Bill C-6, the prohibiting cluster munitions act, specifically clause 11.

In my previous life, I was very familiar with cluster munitions because it was my job. They used to form part of our war stock of weapons on the CF-104 and later on the CF-18. I instructed others on their tactical application of weapons effects, which were horrific. We never dropped the actual weapons, even in training, due to the residual hazard, and thank God we never had to drop them in wartime, but we were trained and prepared to do so. That was then.

Members of this House are well aware of the nature of cluster munitions and the kind of harm they can cause. We all know that they have terrible effects and that any unexploded remnants are a long-term threat to civilians seeking to rebuild their community after a conflict has ended.

These cluster bombs, as has been pointed out, can contain hundreds of small bomblets that are designed to cover a large area. The problem is, there is always a dud rate, or some number of bomblets that do not detonate on impact but remain armed and deadly. Sometimes they are harvested intentionally, and very carefully, and used in the production of improvised explosive devices. More often, they are simply left lying around for an unsuspecting person to accidentally detonate them, with catastrophic results.

As Canadians, we should all be committed to ridding the world of these weapons. As parliamentarians, we should all be committed to ensuring that the Convention on Cluster Munitions is fully implemented as a step towards that ultimate goal. Bill C-6 was drafted carefully to reflect this commitment and to give effect to those obligations required by the convention within domestic Canadian legislation.

Bill C-6 would allow us to implement the convention while at the same time meet our broader defence needs. It would allow us to remain a strong and reliable ally and continue to contribute meaningfully on the international stage, both as a contributor and participant in joint and combined military operations, in the interest of international peace and security, and as a participant in the effort to rid the world of cluster munitions and their explosive remnants.

While Canada is ready to join the convention and renounce the direct use of cluster munitions, not all countries share our approach and may not join the convention any time soon. Some of them, of course, are NATO allies, countries with whom we would likely enter into combined military operations in the foreseeable future.

All members of this House understand that Canada and the United States are close allies and that the Canadian Armed Forces have a long-standing tradition and practice of close co-operation with our American counterparts. This co-operation has been good for both countries, and it is important and necessary for our common security interests. It has also been in the interest of peace and security at the global level. We co-operate in training, we exchange personnel so that each of us can understand how the other's military forces are organized and commanded, and we co-operate in actual military operations.

The convention would require Canada itself not to make, possess, or directly use cluster munitions and to prosecute and punish Canadians who do. However, it would also allow us to continue to co-operate with our allies.

I believe that Canadian international security interests require that we continue to co-operate as closely in the future as we have in the past with our allies. I believe that the convention and this bill strike the right balance in this regard.

Clause 11 of Bill C-6 contains exclusions to the bill's prohibitions in order to provide legal protection to the Canadian Armed Forces and government employees, allowing them to perform a range of activities during military co-operation and operations that are undertaken with states that have not joined the convention. This is specifically permitted by article 21 of the convention.

Article 21 was purposefully included in the text at the request of a number of countries, including Canada. We are not alone in advocating for military co-operation. A number of other countries have had legitimate military interoperability concerns and shared Canada's concerns that it was necessary to preserve the ability of countries that were ratified to co-operate with countries that might choose not to ratify.

In Bill C-6, and in our defence and security policies, Canada is applying the provisions of the convention as negotiated and drafted. The government has always been clear about what these provisions require and transparent about how it intended to implement them.

Article 21 does not allow Canada itself to use, develop, produce, acquire, stockpile, or transfer cluster munitions or to expressly request their use when the choice of munitions used is within its exclusive control. All of these activities would be made offences in Canada. It would only allow individuals who participate in permitted forums of military co-operation involving Canada to do so without risk of criminal prosecution.

As the government has made clear, Canadian Armed Forces personnel would not be permitted to use cluster munitions, including when they are involved in military operations with allied forces or when deployed to allied military units. We have numerous Canadians on exchange with particularly American, but other NATO allies as well.

Bill C-6, as amended by the committee, would prohibit the direct use of cluster munitions by Canadian Armed Forces personnel in all circumstances. During committee hearings, we heard that the Chief of the Defence Staff has issued an interim directive prohibiting the use of these weapons in any Canadian Armed Forces operations and that another directive will be issued reflecting all of the requirements of Bill C-6, as ultimately adopted by Parliament, in addition to further restrictions relating to training and transport going beyond the requirements of the convention.

We were also told that all of these restrictions would be incorporated in the Canadian Armed Forces rules of engagement and would typically be communicated to allies when Canada enters into military co-operation activity with them, as one method of informing our allies of our obligations under the convention. They would be implemented at such time as the bill receives royal assent and would be legally binding for Canadian Armed Forces members under the military justice system.

The convention and Bill C-6 allow Canadian Armed Forces members to continue to ask for potentially life-saving military assistance from our allies, be they parties to the convention or not, without fear of being disciplined or put on trial for the policy decisions of these other states.

The amendment proposed by the hon. member opposite would remove the exclusion for Canadian Armed Forces personnel. This would have the effect not only of compromising Canadian security, but also of potentially subjecting our own soldiers to prosecution for activities that are not actually prohibited by the treaty itself.

Members of the Canadian Armed Forces have volunteered to serve their country and they have joined an honourable profession in which the directions of the organizations and the orders of commanding officers have the force of law. We have an obligation to ensure that companies and individuals in Canada do not have or use cluster munitions, but we need not, and we should not, enact criminal offences that could subject our own soldiers to liability for engaging in activities that the convention permits and that are essential to our own security and their safety.

Agreeing to renounce and dispose of our own duster munitions sends a strong signal as to where Canada stands on this important issue, but so does the message that we respect the decisions of our friends and allies and that we will stand with them in the defence of international security come what may. We have carefully considered the balance between security and disarmament, both in the long process of negotiating the convention and in our own review of the proposed implementing legislation.

We all agree that the ultimate goal is to eliminate cluster munitions from armed conflict. The best way to do that is for Canada to ratify the convention.

My hon. colleague from the NDP quoted Paul Hannon, Executive Director at Mines Action Canada. I will also quote Mr. Hannon. He said that the government's decision to remove the one word, “using”, was significant.

That was referred to by my colleague across the way as well. Mr. Hannon went on to say:

We were surprised to get any amendment and surprised that was the amendment we got. If they were only going to delete one word, “using” was the most important one.

It clarifies the fact that Canadian forces themselves can never use clusters, but it also means it will be more difficult for other countries to use them in joint ops when Canadians are involved.

We can interpret what other people say any way we like, I guess, but there seem to be at least some folks who are agreeing that what we are doing may not be what they would desire in their perfect world. However we are not operating in anybody's perfect world. Canada has gone a long way in this regard, as my colleague the parliamentary secretary for the minister of foreign affairs said. He talked about the mine clearing operations and so on. I have been to Afghanistan many times, and I have talked to the folks who are doing the mine clearing over there. They do tremendous work. This is an area that will take continued effort. It will go on for years and years. Yes, they are a terrible hazard and they do wreak terrible destruction, not just at the time of use.

I am not sure. I am having it checked, but I do not believe that the U.S. used any cluster munitions in their operations in Afghanistan. There were no Canadians killed by cluster munitions in Afghanistan, none. IEDs and so on are another issue.

The best way we can move forward on this is for Canada to ratify the convention with the measures of Bill C-6. I hope that members will look carefully at all the elements of the bill and will join me in supporting it.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I would acknowledge the amendment that was made. We pushed and worked with the government over months, even years, I could add, because there was the first iteration from the Senate bill, and then this one. The Conservatives were stubbornly refusing to make any amendments at all, so I acknowledge that one amendment, that one word, but it is not enough. I will just cite the one part of the clause that is still here.

It says the following:

Section 6 does not prohibit a person who is subject to the Code of Service Discipline under any of paragraphs...

Then it refers to the National Defence Act. It continues:

...or combined military operations involving Canada and a state that is not a party to the Convention, from....

Then it talks about directing or authorizing an activity that may involve the use or acquisition of cluster munitions.

Therefore it is not up to the standard that we accepted for ourselves before.

Finally, before I give it to my colleague to answer, clause 11 still has problems on interoperability that could be undermining our adherence to the treaty. That is what we have to look at: whether there is a scenario in which we could be undermining adherence to the treaty. That is the problem. I would say that the member would know that it would be clear working with our allies that our obligation to adhere to a treaty, as to our own legislation, could be worked out with our allies to let them know that we must not be in theatre in any way, shape, or form—