Foreign Affairs Committee on Nov. 7th, 2013

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

I think we all know the issue here is that many experts and analysts—everybody, in fact—quite a few people argue that the interpretation of article 21 in this bill goes far beyond the intent of the article itself.

I would like to suggest the following. It would be worthwhile for our committee analysts to draw up with a table—at least a comparative one—of the provisions for the implementation of article 21, both from Canada and from some of our key allies. I am thinking of Great Britain and others. It would be useful to have such a table for the information of the committee members.

I have another very brief question; I'm just curious. We heard this afternoon about the indiscriminate use of cluster munitions. I seem to have heard it often. What would be a discriminate use of cluster munitions?

[Sabine Nolke]

Essentially, the law on conflict distinguishes between the means and methods of warfare. Obviously, my colleague from the judge advocate general's office would be more qualified to comment on that than I am, but discriminate use is legitimate use targeting a valid, legitimate military objective within the law on conflict.

[LCol Chris Penny]

That is correct, and the reference to indiscriminate attacks comes from Protocol I additional to the Geneva Conventions, and is as well part of customary international humanitarian law.

I think on this point more broadly, it is important to note that there are scores of different types of cluster munitions that vary by number of submunitions and the safeguards they have, and Canada has certainly stressed throughout negotiations that, as a class of munition, they are prone to indiscriminate effect, which is why the Canadian armed forces has committed not to use them. Our other allies have not necessarily made that policy choice, and again, any of the interoperability provisions here would only support working with those states in the context of discriminate attacks, and again, that will depend on the type of munitions that are used by those states.

The key thing to keep in mind, as well, is that this is a forward-looking convention and forward-looking legislation. Different states are moving towards ensuring the humanitarian nature of their weapons systems, if you will, but that doesn't necessarily bring them into compliance with the technical requirements of the Convention on Cluster Munitions. They may well be capable of use in a discriminate way but not meet those technical standards in future.

[The Chair, Conservative, Dean Allison]

Thank you, Colonel Penny.

We are going to finish up with Gary Schellenberger.

You have the last intervention, sir, of five minutes.

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

Thank you, Chair.

Thank you very much for being here.

In the one presentation, General Lamarre, I think you said we have never used cluster munitions in any of our Canadian armed forces-led operations, and we are in process of destroying our remaining stockpiles.

If we've never used them, why do we have them?

[BGen Charles Lamarre]

At one point we thought it was a good idea. That's what it came down to, and so stocks were purchased. As a matter of fact, a significant amount of munitions were used, but as folks examined this, they decided not to employ them in any operations.

There was also a lack of operations, if you remember, during the Cold War. It wasn't as though we were lobbing a lot of things, but as time progressed and as we got closer and these discussions started to take place for the banning of cluster munitions, it was clear that was the way Canada was going. That is why the CDS in 2008 gave the order not to use them, to take them out of commission, and that's exactly what has taken place.

Now we are actually working with PWGSC to find contractors to conduct and finalize the destruction of these munitions that we have in our stocks.

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

Does this legislation allow transit of cluster munitions through Canada's territory?

[BGen Charles Lamarre]

I will take a first stab, and then I'm sure I'll be able to get a legal mind to help me out on that one as well, but the answer is yes.

For example, you may have an American aircraft that is transiting over top of Canada to go to a theatre of operation, flying over the North Pole or whatever the case may be. Any regulations right there really are nested in the Transport of Dangerous Goods Act. That is really why we have any sort of act that overlooks that and has to do with the safety of anything that is being carried, should there be a crash or any exposure to Canadians to that kind of material.

[LCol Chris Penny]

If I can add to that, the legislation does not prohibit transit because the convention itself does not prohibit transit. However, the legislation does not detract in any way from all of the applicable Canadian legislation that would apply to the transit of munitions through our territory.

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

Does this legislation allow for the import of cluster munitions from another country for the purposes of destruction, or where do we send our munitions to be destroyed?

[LCol Chris Penny]

Yes, it does. It allows for the importation of cluster munitions for the purpose of destruction.

My understanding is that there are no current facilities in Canada that would be interested in pursuing that, but the convention permits that, and so the legislation has been drafted to permit that.

The contracting process for Canadian armed forces munitions is still in process, but it would likely take place outside of Canada.

[Christopher Ram]

I would just add very quickly that the legislation also has a delegated authority. I believe it's for Governor in Council to make regulations in the event that it does happen, so it doesn't have to go back to Parliament.

If a Canadian company decides to go into the business of dismantling and destroying cluster munitions, the legislation permits them to be imported for that purpose, and there's a regulatory framework. We won't make regulations until it becomes necessary, but if it becomes necessary, then the Government of Canada can make sure they are destroyed and so forth.

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

The way I understand it, it's in process to destroy our munitions, the munitions that we have. Is there any way to accelerate that?

[Sabine Nolke]

Well, bureaucratic requirements on contracting have been imposed, and those take their time, but we are moving as quickly as we can toward the destruction of these munitions.

[LCol Chris Penny]

I would stress, though, sir, that those munitions have been removed from operational stockpiles since 2007.

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

Okay. Thank you.

Thank you, sir.

[The Chair, Conservative, Dean Allison]

I believe Laurin has one quick question, so why don't we just finish up with Laurin.

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

Thanks again to our witnesses for coming in to testify before committee today.

I just want to go back to my previous question on investments in the production of cluster munitions. My question wasn't specifically about why Canada's legislation doesn't mimic that of the countries I named—Australia, New Zealand, France—but about if, seeing as 25 countries have adopted the position that investment in production of cluster munitions is a form of assistance prohibited by the convention, Canada has taken a look at adopting the same position.

Mr. Ram, from your response, I take it the answer is no, but if you'd like to clarify, that would be very interesting.

[Christopher Ram]

We certainly did take a look at it. Again, the convention doesn't require us to put investment, per se, into a criminal offence, which would have been very difficult.

The way it's crafted now, there are 120 years of case law concerning what constitutes aiding and abetting and counselling and so on, and what degree of remoteness can associate criminal liability under the charter and so forth. By invoking that, we already have a self-regulating framework, if I could say, under the criminal law to accomplish that objective.

At some point, if I buy a company—I didn't have time to go into this before—and move my Canadian cluster munitions factory offshore, and I go to a company in another country and say, “I will invest heavily in your company if you build a factory and make cluster munitions”, then, if I'm participating in the activity from within Canada, I'm probably committing the offence of “making”, because I'm in Canada.

If not, if I make an investment on the condition that they make cluster munitions, I would be abetting.

If I make it much easier for them to make cluster munitions, I would be aiding.

If I urge them to do it, I would be counselling.

As I said, there are Supreme Court cases where the line is drawn between that and the scenario where a mutual fund has a few shares in a company that may suddenly engage in cluster munitions activities. We're talking about parts and components of cluster munitions. The word “investment” could become extremely remote. It was regarded as preferable to use the law of aiding and abetting, which we already know will work.

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

Would it be possible to define “investment” as it's been done elsewhere? Or would that be the only issue?

[Christopher Ram]

Nothing is impossible, but if you framed a bill—and we didn't do detailed advice on this—with an offence that included “investment”, you would have to do a federal-provincial analysis, for example, because property and civil rights are provincial concerns. The criminal law is a federal concern. So there would have to be an analysis there.

Parliament may criminalize things, but it may not regulate investment, or there is a limit on how far it can go. Again, I haven't done the research on that. There is that issue.

There is also the question of uncertainty under the charter. My professional colleagues on Bay Street in Toronto probably know what “investment” means, but I'm not sure a Canadian criminal court judge would know. It would be very difficult.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Chair, as a quick, quick follow-up—sorry about that—I'd like to clarify something.

Let's say a financial institution—I'm thinking about a bank or something—invests directly in a company that's producing, or lends money to a company that's producing, cluster munitions. Would that be aiding and abetting?

[Christopher Ram]

In a situation like that, it doesn't depend as much on what the company does as on what it knows and what it intends. It's the mental element, the mens rea of the crime. It doesn't matter if it's a company, an organization, or an individual, a person like you or me, in Canada; if you give someone money with the intention of helping them, or with the knowledge that it will help them, then generally criminal liability will attach.

I can't go much further than that, but that's the kind of consideration a Canadian criminal court would apply. I think the investment community will understand that. They will be able to get legal advice, which will guide them on what they can do and what they cannot do in financial management.

[The Chair, Conservative, Dean Allison]

Okay. I want to thank our witnesses today from DFATD, from defence, and from justice for being here. We appreciate that, and with that we're going to adjourn the meeting.

Thank you very much.

The meeting is adjourned.