Transport Committee on March 19th, 2018

[Capt(N) (Ret'd) Paul Bender]

I think it is one of policy, and all you have to do is to listen to what the German government has done in asking the U.K. government to apply U.K. law to the U-boats, whose torpedos sank the three Canadian ships that were trying to provide protection, and that are in U.K. territorial waters. The U.K. is quite prepared to do that, and they were very close to doing it until there was intervention on the part of the Government of Canada to prevent it from happening.

[Sean Fraser, Liberal, Central Nova, NS]

Just as a side note, I have a particular interest in the merchant navy. A few years back, when I was a university student, I took part in a History Channel miniseries and played—as an actor and not the real thing—a member of the merchant navy. I've taken a real interest since, so I'm finding this all very fascinating.

My final question, if I have time, Madam Chair, in the final minute, is this: we heard that one strategy to offer protection would be to remove the reward by saying, “You can't salvage these sunken vessels anymore.” Mr. White suggested there should be penalties similar to the desecration of another grave site.

I'm curious as to whether you think there is a particular type of penalty or protection that should be included.

[Capt(N) (Ret'd) Paul Bender]

In my commercial experience with the merchant navy, there should be no special protection for merchant ships unless it has been determined that the activity in which they were involved was definitely in support of the armed forces.

I cited one case in the U.K., which is the only one I have come across, where this happened. The descendants of the sailors who were lost when the ship was sunk made an appeal to the courts, and they were successful in their appeal.

In the commercial world, though, when a merchant ship is sunk or goes ashore or is abandoned—provided the ship is declared a constructive total loss, the insurance companies and cargo owners have been paid off, and the owner doesn't want anything to do with it—that ship is up for grabs for anybody.

[Sean Fraser, Liberal, Central Nova, NS]

Sir, I think that's my time. I thank you for your presence here today, and your career of service as well.

[The Chair, Liberal, Judy Sgro]

Madame Sansoucy.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you, Madam Chair.

I would like to thank the witnesses for their presentations.

Unlike my colleagues, I didn't have the opportunity to take part in the committee's work on Bill C-64. So I have to do a bit of catch-up today. However, your testimonies have really helped me to understand the importance of the matter, so thank you.

Mr. Bender, you said that you went to the United Kingdom, where three Canadian corvettes have sunk in British territorial waters. On your own initiative, you have asked the High Commission to submit a request for all three vessels to be protected by a special United Kingdom law, called the Protection of Military Remains Act. As I understand it, this law is strictly aimed at adding sanctions in international maritime law for vessels that sank in British waters. When the United Kingdom authorities examined your request, they asked if it was possible for a higher authority to present it. You told us about an email received in August 2016.

Am I to understand that you didn't get the support of the Naval Association of Canada to further your request?

[Capt(N) (Ret'd) Paul Bender]

I was getting very close co-operation from the Royal Navy, which manages the U.K. act, and they did not question my position in the negotiations. It was only when what I was doing came to the attention of a representative from the Government of Canada that it intervened and and did not support what I was doing.

There was no evidence from the U.K. side that they did not support what I was doing. In fact, they strongly supported it, and I came very close to getting what I was hoping for on behalf of the many sailors who were lost in those three ships.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

As you mentioned, it's interesting to note that German submarines are protected under British law, but that you can't get the same protection for Canadian vessels that have sunk in British waters.

Has Global Affairs Canada examined your request? What is the department's position on the need to protect these three Canadian corvettes? This isn't clear to me.

[Capt(N) (Ret'd) Paul Bender]

Quite honestly, I don't know what the Government of Canada's position is. I think you would have to ask MP Karen McCrimmon, because the position of the Government of Canada passed through her office to the British High Commission here in Ottawa. Nobody in the Government of Canada has explained to me why they oppose what I was doing—just that they opposed it.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you.

Mr. White, the last time you appeared before the committee, you said that Bill C-64 must be amended to define and ensure the protection of military cemeteries in accordance with subsection 163(2) of the Canada Shipping Act, 2001. I'm summarizing your remarks. You said that we must ensure that the penalties imposed on offenders are similar to those for grave robbers.

Could you please explain what the concrete effects of the amendment you've proposed would be? How can this amendment and your other recommendations be included in this bill, which you would like to see passed soon?

[Patrick White]

Thank you for your question, Ms. Sansoucy.

One of the things that becomes a problem when you group ocean war graves under general heritage designations is that you might end up with a situation where someone who desecrates an ocean war grave would only be committing a regulatory offence. They could find themselves in contravention of the Canada Shipping Act and could have a fine imposed on them, but the equivalent is that you're desecrating a cemetery. Human remains have been dumped in mass graves, as we've seen in the Java Sea off Indonesia as these salvagers have ripped these vessels apart. As Captain Bender has rightly said, the concern isn't for the metal or the ships. The concern is that these are metal tombs.

One of the things I remember, which Captain Bender has just mentioned, is Criminal Code provision 182. Essentially, you're looking at Criminal Code provisions that allow us to say that Canada's domestic laws will include criminal sanctions for those who desecrate ocean war graves. If you were to go the route of using just the Canada Shipping Act provisions and say that we'll add them under the heritage provisions—which under Bill C-64 would be section 131, currently section 163 of the act—it would mean that you're not capturing the spirit of what an ocean war grave really is: you're just lumping it in with some of the other heritage property, which I've mentioned. A stronger Criminal Code provision I think would be in line with the same kind of Criminal Code provisions that might apply to the desecration of a cemetery or any other war graves that Canada protects.

Even from just listening to what the officials were saying, as I think some members of the committee have picked up on, if you have to wait 50 years for something to be designated a heritage property, then the benefit of having legislation similar to that of the U.K. is that it's also forward-looking. God forbid that anything happens in the future, but the navy does take risks. I know, because I've also deployed. With separate legislation that doesn't classify naval wrecks or something to that effect as just heritage property, you could have protection that exists the minute those vessels or even aircraft go down. I think there was an issue in just the last few weeks when a United States Air Force plane went down with a pilot inside.

There are various elements, I think, as the committee has certainly picked up on. It is definitely appreciated in that regard—

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. White.

[Patrick White]

I'll leave it there.

[The Chair, Liberal, Judy Sgro]

Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Captain Bender, thank you for your service. Who knows, but you and my father may have crossed paths along the North Atlantic, because he was on one of those corvettes that was trying to keep the bad guys away from you.

I would presume that the wrecks we're talking about here would be located fairly close to the continent, on the continental shelf. Those that went down in the open ocean would be beyond reach to just about everybody, I would presume.

[Capt(N) (Ret'd) Paul Bender]

Yes. I think you're correct in saying that they are beyond reach to just about anybody, but there are some people who are owners of and operate extreme depth machinery. One of them chose to dive down on the German battleship Bismarck and was very severely reprimanded by the German government for doing so. It's the same person who discovered the Titanic. There are people who have the equipment. They are not as common as the regular diver who is looking for souvenirs to show his grandchildren or something like that.

Yes, the warships that I'm concerned about and the sailors' remains there, are within the Canadian exclusive economic zone.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

It's interesting that you brought up the Bismarck, because that came to mind as well. In fact, I saw a documentary about that dive. It occurs to me that documentary filming, or even tourism, I suppose, also could be classified as an invasion of sorts and a desecration. Would you agree with that?

[Capt(N) (Ret'd) Paul Bender]

Yes, indeed.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Have there been any examples of undue disruption of a wartime wreck in Canadian waters?

[Capt(N) (Ret'd) Paul Bender]

I know of only one person—and unfortunately I have agreed not to name him—who showed me a skull that he had taken from a Canadian ship, and that he displays on the mantelpiece in his house and shows to all his friends.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Oh. Well, he'll have to wrestle with that, then, won't he?

[Capt(N) (Ret'd) Paul Bender]

Well, so will I, every time I see it.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Indeed.

Do you think efforts should be made to somehow preserve the wrecks once they are identified? Or should we just simply let nature take its course and let them decay as the ocean will take them?

[Capt(N) (Ret'd) Paul Bender]

I think we should just let nature take its course. Nature has been taking its course for three-quarters of a century and we're far too late to do anything about it. We may have enough to do with the consequences of not having done anything for the last three-quarters of a century.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

With respect to munitions, petroleum products on board, etc., I presume it's not a great amount in the grand scheme of things.