Foreign Affairs Committee on March 23rd, 2023

[Rachel Bendayan, Liberal, Outremont, QC]

Would the bill as currently written do exactly that, in your opinion? It would provide prior notice to....

[Heidi Hulan]

Yes. The part of the bill that would require prior notice would create this problem for us.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you.

In your opening and then in response to questions, you've indicated on several occasions that the term “prisoner of conscience” is not defined in either international law or Canadian law. As a lawyer, in my former life I would have found that very difficult to work with.

Would you believe that we would need to define that term in order to actually action the elements of this bill?

[Heidi Hulan]

Thank you for the question.

The term we use is “human rights defenders”. We use it explicitly, because it is a broad term. We would not—

[Rachel Bendayan, Liberal, Outremont, QC]

I understand that “human rights defenders” is the term we in Canada use, and it is also quite broad. How would you create a list of human rights defenders?

[Heidi Hulan]

It would be very challenging to create a list of human rights defenders worldwide, and it would require resources beyond what we currently have. However, the principal concern we have with this proposal is the constraint it would impose on how we support victims.

[Rachel Bendayan, Liberal, Outremont, QC]

On that point, you have mentioned that quiet diplomacy is the way Canada functions and that sometimes public amplification could risk the security of the individuals we are attempting to support and help. My colleague Mr. Oliphant had an extensive exchange on this with the drafter of the bill.

Can you be a bit more specific? In a previous question, you said that having such a list could impede the advancement of discussions that would lead to results. In perhaps more plain language, do you think the security of the individuals Canada is trying to support and protect would be at risk? Do you think we could actually harm the individuals we're trying to help?

[Heidi Hulan]

I'm going to give two answers to this question. The short answer is that sometimes we just don't know, and we are concerned about the very severe risk that would be borne by victims in this situation.

The second answer I would like to give is about our approach to this as consular officials and diplomats. We always craft strategies that are aligned with the local context, our depth of understanding of that local context and the actors involved. This is why we invest so heavily in our network of missions abroad as Canada, because the texture you can have through a mission in understanding how a government is likely to react, the range of risks a victim would face and who can apply the right pressure for a positive decision all depend on our analysis.

With respect to lists and generic approaches to consular cases, we would take the view that we are always better to have the scope to determine a situationally specific strategy to meet the objective of alleviating the suffering of the victims.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much.

We next go to Mr. Bergeron.

You have two and a half minutes.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

Bill C‑281, among other things, seeks to prohibit any person from having a pecuniary interest, directly or indirectly, as a shareholder, partner, or lender, in a business that has violated the prohibitions of the act or has aided or encouraged another person to violate the prohibitions of the act.

So you would legislate to penalize any person having direct or indirect interests in a business which manufactures cluster munitions. Yet is there not a risk that Canadians may have unknowingly invested in such a business and would then be targeted by the provisions of the bill?

Would it not be preferable to use New Zealand's legislation as a model? It focuses on the intent rather than on shareholders or participants having a direct or indirect financial interest in a business which manufactures cluster munitions.

[Heidi Hulan]

Thank you.

My colleague has addressed this point already. I'll invite her to elaborate on it.

[Angelica Liao-Moroz]

Thank you for the question.

You refer to the text of the amendment that talks about pecuniary or monetary interests. I would just add to what has already been said. Our understanding, based on legal advice in the department, is that Bill C-281, as it's currently worded, would expand the criminal liability beyond the scope of what's currently already prohibited in the language of “aiding and abetting”.

As an example, it could be considered a crime, with the current wording of the amendment, if an investment was made in a company that no longer produces cluster munitions but somebody had previously invested in that company, the legal assessment that our department has is that the individual could potentially be criminally liable, even though there may not have been the intent.

The intent is the key part of it. That's a really important element, and we look forward to the committee's further study of that and how we can work to have workable language.

If there are further questions in terms of what would constitute a criminal offence, we would have to circle back to you with an answer once we have further legal advice.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

We next go to Ms. McPherson.

You have two and a half minutes.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much, Mr. Chair.

Thank you again to the witnesses.

Ms. Hulan, you spoke about the directives that surpass the Prohibiting Cluster Munitions Act. If that is the case, does the government agree that section 11 of the Prohibiting Cluster Munitions Act runs contrary to the spirit and the letter of the convention? Would you support an amendment that made Canada compliant with the convention?

[Heidi Hulan]

Canada is already compliant with the convention.

With respect to the specific question, section 11 and section 21 are not separate. They're not exceptions to the convention. They are integral to the convention. I would just say further that these provisions are probably responsible for the breadth of support and adherence that the cluster munitions treaty has internationally, so we're very—

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I'm sorry to interrupt you, but why are 21 NATO countries able to not have those exemptions within their legislation?

[Heidi Hulan]

I'm sure that our NATO colleagues would all evaluate very carefully the nature of their own practices. Within Canada, our armed forces collaborate with a wide variety of NATO partners, including the United States and especially the United States in some instances. For us, during the negotiation of the treaty, article 21 was a very important provision for Canada.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Wouldn't it be an opportunity for Canada to show some leadership on disarmament and to in fact encourage other NATO members to increase their ability to limit the use of cluster munitions? I think that would be an option.

I have one other question for you very quickly, and I'm going to run out of time. Another element missing from Canada's existing legislation on cluster munitions is the positive obligation to provide assistance, in particular article 5, “Victim assistance”, as well as article 6, “International cooperation assistance”.

Would the government support an amendment that would include this in the law?

[Heidi Hulan]

Thank you.

I'm going to have to turn this one to my colleague.

[Angelica Liao-Moroz]

You're right that there is a positive obligation included in article 21, and it's not a passive provision. As my colleague said, that is a positive obligation for Canada and other state parties to encourage non-state parties to join the regime.

I would say that we are a member in good standing. We have underscored our obligation to never under any circumstances use these. In the same breath, we condemn the use of cluster munitions by any actor.

You talk about potential support in terms of victim assistance. I would say that Canada has, more broadly speaking, if we talk about unexploded ordinances, so cluster—

[Heather McPherson, NDP, Edmonton Strathcona, AB]

In this case, we are in the minority of NATO countries that are supporting—

[The Chair, Liberal, Ali Ehsassi]

I'm afraid we're considerably over time. Thank you.

For the last round of questions, we go to Mr. Genuis for two minutes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Chair.

Ms. Awad, I really wish we had more time for back and forth, but we're very constrained for time. I do look forward to your follow-up in writing.

If your departments are able to come up with an amendment that provides a clear, accessible and usable judicial objective mechanism for genocide recognition that would be binding in law, for the CRTC as well as other aspects of government, I think that would be a wonderful thing and a great effect of this bill. I think it's something, frankly, that we need to fully realize our obligations under the genocide convention in general. If an amendment could do that in a way that's meaningful and that would apply across domains, that would be great. I would welcome seeing that.

I think some good points have been made with regard to the need for points of clarity. I just hope that the amendments that we see come forward are as narrow as possible and that they get the substantive results that we're looking for without using potentially solvable technical problems as an excuse to throw out whole provisions.

For example, I think there would be acceptance that, in certain cases, there might be a reason not to publish a name. However, those exceptions need to be responsive to what the victims and their advocates are asking for and not to a situation where the government says it doesn't think the names should be published, even though the victims, their legal advocates and the experts in civil society say the names should be published.

Ms. Bendayan made some good points about whether this provision obliges names to be revealed in advance of sanctions being published. Surely that's not the intent, but that probably is a minor clarification issue.

On the issue of human rights defenders versus prisoners of conscience, I just want to say that I think “prisoner of conscience” is broader than “human rights defender”, because, to me, a human rights defender is someone who's actively involved in the work of human rights. Someone could be persecuted for their faith, for instance, someone who is not involved in human rights defender work. I think of someone like Asia Bibi, for example. She wasn't a media personality or a politician. She was an everyday person, but she was persecuted as a result of her faith—

[The Chair, Liberal, Ali Ehsassi]

Mr. Genuis, you're out of time, and I think that was more in the nature of a commentary than a question, so it should be fine and none of the witnesses should have to worry about that.

We will go to our last questioner.

Dr. Fry, you have two minutes.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much, Chair.

I listened very carefully to what the officials were telling us, but I think that, as most people are saying at this committee, the intent of this bill is excellent. I think we can all agree with it.

There are certain areas in the bill that we think are too broad. Is it possible for the department to accept clear definitions? For instance, the whole term “prisoner of conscience”, I think, is very specific. It's not a human rights defender. Nelson Mandela is a famous prisoner of conscience. Ms. Aung San Suu Kyi was another one. Navalny was taken as a prisoner of conscience, it was removed from his name and it is back again.

I think prisoners of conscience are people who are peaceful. The term is very broad. In every sense there is a definition. It's a person who is imprisoned for their peaceful expression of religious views, of conscientiously held values that a government does not agree with, or of identity. Race comes into it, when you look at certain people being imprisoned just because of their race.

I think it's an important term, and I wonder if we could look at an amendment that said, “providing that the prisoner's family and the prisoner's advocates agree to their name being published”. Otherwise, we would never have heard of Nelson Mandela and all the good work that was done in South Africa because of some of the things that went on, or of Ms. Aung San Suu Kyi and all of the work that she did in that part of the world. I just think it's an important distinction, and I'm hoping we can do something about clarifying it.

I agree with you on the issue of not giving a heads-up to people who are going to be sanctioned so that they can't take their money out of the country. I agree on that one.