Thank you, Mr. Chairman.
Just very briefly, because my colleague from Foreign Affairs in particular has covered most of what I would have said.
Translating what was said by the other two witnesses here down into the practical realities of legislative drafting, our task in this bill has been to take the sorts of operational scenarios that the lieutenant-colonel has just explained and try to work out how those would apply in a Canadian criminal court.
With respect, when we draft legislation—especially criminal legislation—it has to meet charter requirements and clarity requirements and so on. It is very difficult a lot of the time for us to use treaty language because the words mean different things.
When we started with the cluster munitions convention in this particular case we took the language of the convention as a starting point and then we looked at how those words would be applied in a Canadian criminal court. As I said at an earlier session, stockpiling became possession because there's really no way without defining it of what an offence of stockpiling would look like. If you criminalize possession then if you've caught somebody who has one cluster munition or 100,000 it doesn't matter. It's a broader offence, but we're sure we're in conformity with the convention.
The concept of transfer in the convention.... First of all in any treaty if the treaty uses the word “transfer” it's generally talking about transfer between one state party and another state party. Whereas in Canadian law it might mean the sale of a house, or transfer of narcotics in the course of trafficking or something like that. So we had to rethink the whole concept of transfer. This particular convention had a very specific term that was targeted at stockpile movements, and stockpiles being controlled—being in one state and under the control of another. So we redefined that, we turned that into importing and exporting and movement instead. We deliberately avoided using the language of the convention so that we wouldn't be misinterpreted.
It is very difficult. Our task now is not, with respect, to draft for the international community. It's to draft for a Canadian criminal court. We want to make as certain as we possibly can that these offences will apply in the circumstances in which Parliament intends them—and how Canada as a state party to the treaty intends them to apply—and no further. That has been a very difficult exercise.
To use the lieutenant-colonel's example, if I call in an airstrike if I'm under fire, I am either counselling someone in the commission of an offence or I'm abetting them if dropping the munition is an offence. If I tell them where to drop it, I'm abetting in Canadian criminal law. If I'm in a room with four other people where a decision is made to do this I'm conspiring with them. If what we're discussing is a crime then discussing it is a conspiracy, and if I happen to be the only Canadian in the room I would be the only one criminally liable. The others, being from a non-state party, would not be subject to the same criminal offence.
So those are the sorts of scenarios that we had to deal with in crafting clause 11, Mr. Chairman. That's why we did not incorporate the language of the treaty more than we did. We did take some, but what is not there is not there for a reason.
Thank you, Mr. Chairman.