Foreign Affairs Committee on Dec. 3rd, 2013

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference of Friday, October 25, 2013, Bill C-6, An Act to implement the Convention on Cluster Munitions, we're going to get started with that today.

I want to welcome our witnesses back again today.

We've got Sabine Nolke, who's the director general, who was here before. Welcome back.

We've got Lieutenant-Colonel Chris Penny. Welcome back, sir.

And, of course, we've got, from the Department of Justice, Christopher Ram.

They'll be there to answer any questions we may have.

Before we get started, we just submitted a couple of budgets. One is for this committee, which is for $3,300 for witnesses we had here for Bill C-6. I just want to ask the question, if we could get that approved.

All in favour?

[Some hon. members]

Agreed.

[The Chair, Conservative, Dean Allison]

Thank you very much.

The second budget is for our Subcommittee on Human Rights, and it's in the amount of $6,500 for their study on human rights in Sri Lanka.

Are there any questions?

All those supporting that...?

[Some hon. members]

Agreed.

[The Chair, Conservative, Dean Allison]

Thank you very much.

Okay, then, let's get right to clause-by-clause.

We're going to start with the short title, clause 1. We will postpone that until we've come back to move through all the amendments.

(Clause 1 allowed to stand)

We're now going to start with clause 2.

LIB-1 has been moved. I'm going to suspend that right now because it depends on what happens with LIB-3.

We will have to come back to clause 2. We will do that in due course.

I will now go to clause 3. There are no amendments on clause 3.

Is there any debate?

Then I'll just call the question.

(Clause 3 agreed to)

(On clause 4—Implementation of commitments)

For clause 4, we've got an amendment put forward by the Green Party, who is not here, but the amendment is put forward.

Is there any discussion on PV-1?

All right, then, I will just call the question.

(Amendment negatived)

Shall clause 4 be carried?

[Deepak Obhrai, Conservative, Calgary East, AB]

This is without the amendment?

[The Chair, Conservative, Dean Allison]

There's no amendment. The amendment was defeated.

(Clause 4 agreed to)

Shall clause 5 carry?

(Clause 5 agreed to)

(On Clause 6—Prohibitions)

We're going to move to clause 6 now.

In clause 6, we have LIB-2.

Mr. Garneau, do you want to speak to your proposed amendment LIB-2?

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

Yes, Mr. Chair.

Basically, I wanted to put in this amendment to specifically address the issue of investing funds, and, of course, making the difference between knowingly and unknowingly investing funds that might be used for the manufacturing of cluster munitions.

When there was testimony in the Senate, Senator Fortin-Duplessis suggested that direct investment in the production of cluster munitions would be covered as an offence by this bill. The Library of Parliament further suggests that aiding and abetting the production of cluster munitions would cover certain forms of investment. So part of it is covered. It remains unclear, however, what the required level of intention would be for investment to be covered by the bill as it's currently written. This clause makes it clear that the threshold for an offence, in terms of funding cluster munitions, is prior knowledge that the funds will be used in the production or development of cluster munitions. It's to clarify that if you knowingly invest in a fund of some sort that will ultimately be used, then you're liable to an offence. So it's to provide that clarification.

[The Chair, Conservative, Dean Allison]

Okay.

Is there any other discussion?

Mr. Obhrai.

[Deepak Obhrai, Conservative, Calgary East, AB]

Thank you.

I would like to call upon the Justice people here to respond to this amendment, to the question: why we are opposing this amendment?

[Paul Dewar, NDP, Ottawa Centre, ON]

I have a point of order.

Mr. Chair, I think it's not the role of our public servants to indicate whether someone supports or not, it's about providing the committee with advice.

Maybe my colleague could clarify his question.

[The Chair, Conservative, Dean Allison]

Indeed.

He hasn't been in committee for a while.

[Paul Dewar, NDP, Ottawa Centre, ON]

I know, he's new to this.

[The Chair, Conservative, Dean Allison]

He's a little out of practice.

[Deepak Obhrai, Conservative, Calgary East, AB]

Go ahead.

[The Chair, Conservative, Dean Allison]

Go ahead.

[Paul Dewar, NDP, Ottawa Centre, ON]

Deeply honest....

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

Let me add my thanks to the honourable member for preserving me from the hot seat.

We did look at the question of investment when we were developing the legislation. There were a number of concerns, not so much with the mental element that has just been raised by the honourable member, but with the question of referring to the word “investment” in the statute because it's not a term of art in criminal law. We would then have had to define it, and it could have been quite difficult to define.

There are a number of other questions. If it's not that distinctive or it's not defined, potential charter issues could arise. There are also division of power issues that could potentially arise. Obviously under the Constitution, criminal law is a matter for the Parliament of Canada, property and civil rights is a matter for the provinces, and criminalizing investment is on the boundary, so there could be federal-provincial issues. We didn't look into that in a lot of detail but we would have to do that to advise on the constitutionality of the amendment.

Over and above that, on the question of the mens rea or mental element that was referred to by the honourable member, when we use the language that we use in clause 6 and again in clause 11 of the bill, clause 6 paragraph (f), I believe, in the case of aiding and abetting, we specifically incorporated the language from section 21 of the Criminal Code, which takes with it all the case law. There are a number of cases, in particular a Supreme Court decision in the case called Dunlop and Sylvester that says that the mental element for aiding and abetting is the intention to assist someone in committing a criminal offence and knowledge that the offence is being committed, which I think is more or less the language of the proposed amendment.

The risk of using different language to accomplish the same objective in this statute as in the Criminal Code is that the courts will assume that if you use different language that you intend a different meaning and they will probably go looking for a different meaning and we're not really able to predict exactly what that meaning would be.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Mr. Garneau and then Ms. Liu.

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

If the word “invest” presents difficulty, would you be amenable to removing that word and talking about “knowingly provide” funds to be used in the development of, etc.? In other words to remove the word “invest”.

[Christopher Ram]

That would require some careful consideration on our part. But the framing of the legislation as it is covers any kind of aiding or abetting. It's not limited to investment. In other words there are a number of ways that I could aid or abet. For example, the making of a cluster munition from within Canada. I could design one on my computer and e-mail the designs to somebody in another country. “Aiding and abetting” covers that. If you focus the legislation on investment or providing funds or whatever the expression is, Expressio unius est exclusio alterius, you might have the effect of altering the interpretation in a way that narrows the legislation.

I can't go any further than that. We'd have to carefully consider it, I think.

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

I mentioned to myself at the beginning that “aiding and abetting” certainly does cover certain aspects of it.

But I want to specifically make the point about another way of potentially contributing to the manufacture, and that is through provision of funds, if it is done knowingly.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Garneau.

Ms. Liu.

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

I just want to briefly express my support for Mr. Garneau's amendment. I believe that many witnesses came forward to committee to expressly demand that we add this clause or this idea. I think it's true to the preamble of the convention.

[The Chair, Conservative, Dean Allison]

Ms. Nolke.