Foreign Affairs Committee on Nov. 19th, 2013

[Paul Dewar, NDP, Ottawa Centre, ON]

This, if I may make a quick intervention, is exactly why we have to be careful here—

[John Baird, Conservative, Ottawa West—Nepean, ON]

What you said is fair.

[Paul Dewar, NDP, Ottawa Centre, ON]

—because of the guaranteed protection, that this treaty is not only something we support and sign on to, but something that assures us that when we act, we'll never have Canadian Forces in that position.

[John Baird, Conservative, Ottawa West—Nepean, ON]

Everything you've said is fair. You're doing your job well.

Can I ask Mr. Ram to comment on the Ottawa treaty? Then I want to come back.

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

Thank you, Minister.

I think there are two stages, to answer the original question that you posed. There are reasons for one treaty being drafted differently from the other, and those have to do with international negotiations.

[Paul Dewar, NDP, Ottawa Centre, ON]

Of course; there's no question.

[Christopher Ram]

But in terms of implementing the Convention on Cluster Munitions, what we have attempted to do is to criminalize the specific actions the convention calls on us to criminalize in, I think, clauses 6(a) through 6(d) of the bill,. Then the following paragraphs of the clause incorporate the elements of the Criminal Code on aiding, abetting, counselling, conspiracy, attempting, and being an accessory after the fact.

The bill itself was drafted, I may say, as a closed loop. Clause 6 creates a set of specific offences with specific actus reus elements, and then clauses 11 and 12 opt out certain people in certain situations from exactly the same offences. If you transpose something from another piece of legislation into this particular context, what you have is a codification of one offence—aiding and abetting in particular—and an exclusion from a different offence.

[Paul Dewar, NDP, Ottawa Centre, ON]

My time is up, and I don't want to waste your time on this, because I understand exactly what you're saying. We're just talking about how the spirit of what happened in the Ottawa treaty can be put in, in terms of clause 11 interoperability. But, alas, my time is up.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Dewar.

We're going to move over to Ms. Grewal for seven minutes, please.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Chair.

Thank you, minister, for your time and your presentation.

While some have made the criticism that the legislation before us does not go far enough in prohibiting cluster munitions, one area specifically that has come under criticism is article 21.

If article 21 had not been in the convention, would Canada have been able to ratify it? I understand that during the negotiations, countries such as Australia, the Czech Republic, Denmark, Finland, France, Germany, Italy, the Netherlands, Sweden, Switzerland, and the United Kingdom had expressed some kind of concern, if the convention were to include article 21.

[John Baird, Conservative, Ottawa West—Nepean, ON]

I agree with what you've said.

Obviously a number of countries want the interoperability and haven't used and won't use these type of munitions. I've expressed that the five people, out of the 80,000 or 90,000-odd members of the Canadian Forces, who might be in some exchange program in which they might be associated, wouldn't drop the bombs themselves.

But given the reason of the criminal power of law.... Let me think of an example in Afghanistan. If Canadian Forces were under attack—maybe they were outside a school where girls were being educated and they came under attack and ordered air support—could they guarantee that the air support that was coming would not have or not use these weapons? If they were ordering that support in and had to seek that clarification, it would be an untenable position to say, “Don't come and give air support unless you can guarantee me that you don't possess these things”. That's why there's an exception.

If someone were refueling a U.S. airplane, for example, or a non-state party's airplane—we did refueling, for example, in Libya—would the person refueling be liable if there were cluster munitions involved? Or would air traffic control be liable, in the case of overflight? Would we have to make sure that there was no overflight over Canada of any U.S. or non-state parties to the convention, or that they wouldn't have these munitions? Transport is part of a logistical chain. Or take intelligence sharing. We do a lot of intelligence sharing, obviously, with the United States and the United Kingdom, as has come out in recent weeks.

[Paul Dewar, NDP, Ottawa Centre, ON]

I heard about that.

[John Baird, Conservative, Ottawa West—Nepean, ON]

The command.... I think I understand that retired General Walt Natynczyk will come. He had an incredible experience in terms of his leadership training before he was CDS. It was quite convincing.

I guess we're, all in all, about 99.9% agreed. If this bill became law, I would be the happiest person ever that we could amend it and even amend the convention to get rid of section 21. But we're not there, and this tiny little exemption I think is necessary for national security and our interoperability with the United States.

I'm stunned that President Obama doesn't want to sign on the Oslo convention. I'm stunned that it isn't unanimous—that Russia, that China, that everyone might not want to.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Ram, Canada has a common law system, while such countries as the Netherlands, which has ratified the convention, have a civil law system. What effect does this have on the ratification process and on the domestic interpretation of the cluster munitions legislation? Could you tell us something about that?

[Christopher Ram]

I'll defer to my colleague from Foreign Affairs in a second, but essentially, in its application in Canada, the convention applies to Canada in terms, for example, of the destruction of cluster munitions. In international law, as a state we are obliged to comply with those requirements as a country. The only elements of domestic law are those that are required by article 9 of the convention, which are the offences and the exclusions in this particular bill.

[Sabine Nolke]

Let me respond as well.

Many civil law jurisdictions do not require specific implementation of a treaty or a treaty's provision into domestic law. The treaty becomes part of domestic law through the act of ratification. In other words, you will not see any legislation from certain states on treaties.

In the common law systems, we're required to give it effect domestically. It's called a “dualist” system of international law, as opposed to a “monist” system whereby essentially, once you ratify the treaty, it becomes law. That's the distinction.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Bill C-6 has evoked comparison with the Ottawa convention that bans the use of land mines. Some have noted that Bill C-6 should adopt the exact same approach as the Ottawa convention.

I recognize that there are stark differences between the two, such as the nature of the two weapons in question. I was wondering whether you could kindly share with this committee the reason that the government has not adopted the Ottawa convention as the model for Bill C-6.

[John Baird, Conservative, Ottawa West—Nepean, ON]

I can answer that.

Obviously these are two different treaties for two different types of weapons. The difference largely lies in the way cluster munitions are used in different operational scenarios. Planting land mines is a delicate and infrequent.... I'm not even sure whether it's employed any more, certainly by any of our allies. This weapon is used in a variety of planned and unplanned scenarios. It just differs from land mines.

As someone from the opposition said—it might have been Mr. Dewar—these are worse. The cluster munitions are worse, because at least land mines are planted strategically. These cluster munitions, these unexploded droplets, fall haphazardly everywhere. It could be just as easily in a forest, a child's playground, a schoolyard, or an agricultural field. They are everywhere.

[The Chair, Conservative, Dean Allison]

Thank you.

That's all the time we have for this round.

We're going to finish off the first round with Mr. Garneau, for seven minutes, please.

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

Thank you, Mr. Chair.

And please allow me to be blunt, Minister Baird. With all due respect, I believe that the position you have taken and that is embodied in Bill C-6 is a morally ambiguous position.

I found you to be very eloquent last Friday when you spoke in the House of Commons, when you were asked about these, and I found you to be eloquent in the first half of your speech today when you talked about the effects of cluster munitions and about why they're so horrific.

And why are they so horrific? Let me add my voice to this, because everybody has said it. It's because they kill innocent civilians for decades after they are deployed. You are clearly very aware of it.

The reason I am disappointed with your speech today—and I'm referring to the second part of the speech—is that you have provided a loophole. You have not shown Canada taking a position of leadership on this issue. You have invoked the fact that it is important for us to work with our allies and that Canada's safety would be jeopardized if we were to remove that interoperability clause.

I don't buy that for one second. Cluster munitions are one of an array of tactical weapons used in the battlefield. They are not the only weapon that is available for conflicts. As such, I don't believe the safety of Canada in joint operations that we might participate in offshore with our allies requires their use.

I would like to propose an amendment to you. That amendment would be that, although Canada continues, of course, to be a very strong ally of the United States and other countries, some of which may not have ratified the convention, if we are going to become involved in a conflict along with some of our allies who may still have arsenals of cluster weapons, we make our participation with them conditional by saying yes, we will participate, but only if you undertake not to use cluster weapons in those joint operations.

Is this something you would be prepared to consider?

[John Baird, Conservative, Ottawa West—Nepean, ON]

I appreciate the spirit in which we met and discussed this earlier, and I appreciate your comments today.

In government, we can't deal exclusively in what we'd like to see; we have to deal with the world the way it is.

In great fairness to you, sir, when your party was in government and when we went to war in Afghanistan, we did not make that request from the United States and from joint operations. If that was a good initiative and—

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

I'm ready to criticize—

[John Baird, Conservative, Ottawa West—Nepean, ON]

But that does demonstrate that you have to be realistic when you're in government.

I am not putting a loophole in this convention. This convention contemplated this exact issue.

There is no moral ambiguity in our position. We believe these weapons are wrong and we will not manufacture or use them. We will get rid of our stockpile of these weapons. Make no mistake about it.

It is not exclusive—

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

But Minister, you may be in a conflict—

[John Baird, Conservative, Ottawa West—Nepean, ON]

It is not exclusive—