Foreign Affairs Committee on Dec. 3rd, 2013

[The Chair, Conservative, Dean Allison]

Mr. Ram.

[Christopher Ram]

Thank you, Mr. Chairman.

The reason is quite simple. The only function for which ministers can be designated under this bill is in clauses 7 and 8, which is a ministerial order allowing someone to possess a cluster munition or submunition for research or training purposes and that sort of thing. All of the other delegated powers in the bill, regulations, are made by order of the Governor in Council.

The other powers are not delegated directly to the ministers; they're exercised by other authorities. It was felt that a very general overturning of the administrative law rule against subdelegation would apply here.

Basically, all the minister does is to issue an order that opts somebody out of the offences and imposes conditions on that order, obviously to make sure that what is done with the submunition is safe.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Mr. Chair.

To understand it a little more, when I look at clauses 7 and 8, there are provisions there in terms of designation.

But I'm still trying to understand. If we look at previous manifestations—what I'm taking from is the Anti-Personnel Mines Convention Implementation Act, wherein it's similar in terms of scope and in terms of duty and authority. I'm trying to understand the difference between the two.

I guess what you're saying is that Bill C-6 lays it out in previous clauses, so that when we get to delegation of authority under clause 15 of this bill it's general because it was already defined previously.

Is that what you're trying to tell me?

[Christopher Ram]

Forgive me, Mr. Chairman, I have to go from memory here and I don't have the anti-personnel mines legislation in front of me.

We did start with that as the template for some of the provisions in this bill. The offences and things like that are based on it. When we looked at the ministerial powers, we basically tried to keep it simple in the drafting because there's very little that the minister can do. We wanted to make sure that the minister could delegate that to officials, in terms of issuing ministerial orders and placing conditions on them.

There's nothing really more to it than that. If it doesn't correspond to the Anti-Personnel Mines Convention Implementation Act, it may simply be that drafting practice has changed in the interim.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, I'll finish off.

My only concern is that when I look at what we're about to pass, it says, “a minister may delegate to any person, subject to any conditions that the minister considers appropriate.…”. That gives any powers, duties, or functions conferred on the minister under act. At first glance, the difference is that the other provision says as this one does; it mentions the convention, but the delegation of responsibility in the Anti-Personnel Mines Convention Implementation Act says:

The Minister may designate one or more persons to exercise the powers, and perform the duties and functions, of the Minister under this act or the Convention….

I guess what's missing here, and maybe it's not an issue—I just want to be careful because we're passing legislation—is that we don't have the same reference. It says “under the act”; it doesn't have language on the convention.

I'm just flagging that for the record. That's my read of it. If it's not an issue, I'll leave it. I wanted to raise that question, and I thank our experts for their point of view, unless there's something else that needs to be said.

[Sabine Nolke]

I don't think, quite frankly, that there's any nefarious distinction to be made. If memory serves, the Anti-Personnel Mines Convention Implementation Act was drafted in three days. If I look at it now, I see some glitches in it which, had I spotted them then, wouldn't be in it now. Referring to Canadian implementing legislation to ministerial powers under a treaty is not something that, had I noticed it and had been involved in the drafting then, would be in the legislation now.

The simple answer, Mr. Dewar, is that there was a drafting error in the original land mines bill that has now been corrected. The minister has no powers under the treaty because the treaty is something conducted among states. This is not something that Canadian legislation can confer on him.

[The Chair, Conservative, Dean Allison]

Mr. Ram, go ahead.

[Christopher Ram]

Thank you, Mr. Chair.

I have one final comment on the honourable member's comment on conditions the minister considers appropriate. The intention there is to allow for the possibility. Again, we considered that these things would be extremely rare. The object of the exercise was not to create a large, bureaucratic exercise that the minister would delegate to officials the job of working out who needs the exemption, what they're going to use it for, developing the conditions, and then the minister might personally approve it.

The minister may not delegate only part of the power unless the legislation allows him to do that. You have to delegate either the whole thing or nothing. This allows reservation of the ultimate discretion about whether to issue the order to remain in the hands of the minister personally, if that's the desired policy, and at the same time to allow officials to work out the conditions.

[The Chair, Conservative, Dean Allison]

Thank you.

Is there any other discussion with clauses 12 to 22?

All those in favour of clauses 12 through 22?

(Clauses 12 to 22 inclusive agreed to)

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're going to move now to a new clause 22.1, put forward by Liberal amendment 7.

I'll turn it over to Mr. Garneau to discuss that amendment.

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

Thank you, Mr. Chairman.

The rationale for this, Mr. Chair, and colleagues as well, is that article 21 of the Convention on Cluster Munitions places several positive obligations on Canada to promote the values of the treaty with our allies and to encourage them to sign the treaty. When he appeared at this committee, Minister Baird made it very clear that he supports the values of this treaty and would like nothing more than if more countries—especially the United States—signed the treaty. I distinctly recall him saying that.

This amendment creates a gentle and realistic political incentive for this government, and future governments, to continue the work of seeking to ban cluster bombs for good. It gives parliamentarians an opportunity to participate in the good work of ridding the world of cluster bombs. Essentially, it suggests that an annual report to Parliament be submitted, wherein the government describes what it has done, actively, proactively, to try to encourage other non-signatories to get rid of their cluster munitions.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Garneau.

Mr. Obhrai.

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Chair, before I go to the experts for their advice, I note that Canada is mandated to submit an annual transparency report to the United Nations. This report would be available to the public and would provide all the necessary information for Canada to meet its obligation under the convention.

Also, Mr. Chair, this would provide for another bureaucracy being set up to look into this to do that. It is for this reason that we don't think it's necessary, but if the experts would like to add something to that, they are more than welcome to do so.

[Sabine Nolke]

Thank you.

Parliamentary Secretary Obhrai has stated very correctly that we are already preparing an annual report, and certainly that is something that can be very readily made available to this committee or tabled in Parliament.

With regard to the very specific reporting requirements made in the draft amendment, I would suggest that what it does, in fact—speaking here as a professional diplomat—is that it in effect would require us to report on diplomatic activities undertaken. There is a wealth of legislation already passed by this Parliament that protects detailed information on diplomatic activities, because, quite frankly, some states don't want it to be known that certain diplomatic contacts have been made, so that would be problematic in and of itself.

But in addition, this is, as we have repeatedly stated here, and as my colleagues have repeatedly stated, a criminal law bill. To put a positive obligation into the context of a criminal law bill is, well...unconventional, I suppose, is one point, and I'm sure my colleague from Justice will comment on it, but it could also suggest that refusal to do so might give rise to criminal sanctions. That is certainly not something that I think we would want to see.

Essentially, the convention does apply these obligations on states, but they are not mandatory obligations. States are called upon to do these activities because, again, treaties cannot compel states how to conduct their relationships with each other. They can prohibit certain activities, but they cannot compel positive obligations. Therefore, putting such a kind of obligation into Canadian implementing obligations would go far above and beyond what, first of all, the treaty requires, but also what is state practice worldwide.

I think my colleague from Justice has some additional comments.

[Christopher Ram]

Yes, just very briefly, Mr. Chairman.

In general, if you put an obligation, and this applies more to some of the amendments, I think, that have been stood, but it applies here as well.... If you put a positive obligation into a statute and you don't provide otherwise in the statute, then the criminal offence under section 126 of the Criminal Code applies, which is disobedience of a statute. Anyone who does or admits to doing anything that is an obligation under the statute could be liable for that offence. It triggers a general criminal offence unless you provide otherwise.

The only other comment on this particular amendment is that there are several hundred reporting obligations in various federal statutes that cover various sorts of activities. If we were asked to draft something like that, again I would refer to my initial remarks about getting policy direction on exactly what the report was intended to include, but in a great many of them, there is some kind of an exemption that effectively does not compel ministers to report on something that might be sensitive in terms of international relations or national security.

That doesn't seem an obvious issue with this, but it's something that would have to be looked at, I think. If you look at it, there is a wide range of reporting requirements. There are several in the Criminal Code on things like electronic surveillance that are very detailed. Some of them are very general. Whether this is or is not a criminal law bill I think is in the hands of Parliament. Right now, I would describe it as a criminal law bill as it stands.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Mr. Garneau.

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

Thank you, Mr. Chair.

I'm not a lawyer, and I'm not an accountant like my colleague, Mike, across the way. I'm an engineer, and I have to say that you really threw me when you talked about an obligation that was not obligatory.

That's what you essentially said, Madam Nolke, today. It's an obligation in the convention, but it's not obligatory. Did I misunderstand you?

[Sabine Nolke]

No, you did not. That was my poor choice of words. It's a commitment under the convention.

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

Okay, and—

[Sabine Nolke]

International treaties distinguish very carefully between binding obligations and commitments and undertakings. They use different language. A binding obligation will use the word “shall”, as in “states shall do x, y, and z”. Otherwise, it would be “states undertake to” or “states are encouraged to”. The language differs.

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

So it's a commitment?

[Sabine Nolke]

Yes.

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

So to go to the annual report that goes to the United Nations, I'm sure that in it we will quite proudly say that we are getting rid of our cluster munitions and that we're not using them, we haven't used them, and all those good things. Do you know, based on past reports, whether we've ever said anything in there about any efforts to do the part that's the commitment with respect to trying to rid the world of cluster bombs?

Have we ever said anything about that? Because it is a commitment, but it's not an obligation. It's a commitment, though.

[Sabine Nolke]

Yes. At this point, we haven't ratified the treaty yet, so our reporting at this point is entirely voluntary in the first place.

Let me just check with one of my colleagues behind me to determine what the contents were on those reports because, quite frankly, I don't recall.

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

While you're checking, would it be possible to put something...? I'm sure there's a format for reporting of some kind even though we're not there, we haven't ratified. In that reporting format, does it say anything about that commitment? If it doesn't, is there any possibility that Canada could consider putting that in there? Because it is a commitment.