Proceedings of the Standing Senate Committee on
Foreign Affairs

Issue 19 - Evidence - Meeting of June 28, 2005

OTTAWA, Tuesday, June 28, 2005

The Standing Senate Committee on Foreign Affairs, to which was referred Bill S-37, to amend the Criminal Code and the Cultural Property Export and Import Act, met this day at 5 p.m. to give consideration to the bill.

Senator Peter A. Stollery (Chairman) in the chair.

[English]

The Chairman: Honourable senators, we are here this afternoon to deal with Bill S-37, to amend the Criminal Code and the Cultural Property Export and Import Act. Our witnesses today from Canadian Heritage are Ms. Eileen Sarkar, Assistant Deputy Minister at Citizenship and Heritage; Ms. Lyn Elliot Sherwood, Executive Director of the Heritage Group; Ms. Kathy Zedde, Senior Policy Advisor, Heritage Policy; and Mr. Jean-François Bonin, Legal Counsel.

I wish to welcome our witnesses. If you would like to lead off, Ms. Sarkar, the committee would be happy to receive your evidence in regard to Bill S-37.

[Translation]

Ms. Eileen Sarkar, Assistant Deputy Minister, Citizenship and Heritage, Canadian Heritage: Mr. Chairman, it is my pleasure to appear before you today to speak on Bill S-37, to amend the Criminal Code and the Cultural Property Export and Import Act.

The chairman has introduced the colleagues from the Department of Canadian Heritage who are here with me today. I would also like to point out that officials from the departments of Justice and Foreign Affairs are also here in the room to answer your questions, if needed.

I would like to begin with a brief summary of our objectives with this bill, which deals with the obligations Canada would have under the two protocols to the Hague Convention, in order to situate the bill in the broader context of that convention.

Canada joined the Hague Convention in 1999 as another step in our long history of international cooperation to protect heritage. This bill will enable us to go forward to join the two protocols to the convention, as a further step in that larger commitment.

The first protocol to the convention deals with issues surrounding the export of cultural property from occupied territories, and the return of such material. The second protocol clarifies and expands a range of provisions of the convention, and resolves certain aspects of the convention that were not working well. Among the most notable of the provisions of the second protocol are a range of specific obligations related to prosecution of those who commit acts against cultural property during armed conflicts.

Many of our obligations under the protocols will be administrative in nature, and do not need to be implemented in law. Others, such as the obligation to prosecute violations of the protocols, must be enshrined in Canadian law.

[English]

Most of the required jurisdiction has already been established as a result of the introduction in 2000 of the Crimes Against Humanity and War Crimes Act. The National Defence Act also establishes the required jurisdiction over Canadian military personnel. Bill S-37 will fill the remaining gaps through amendments to the Criminal Code and the Cultural Property Export and Import Act.

From the military perspective, when we joined the convention in 1999, our colleagues at the Department of National Defence told us that the convention did not introduce new obligations or responsibilities and that no new practices were required in addition to those that the military had already introduced in response to such agreements as the protocols to the Geneva Conventions. The message of the Department of National Defence has been the same for The Hague protocols: Joining the protocols will not introduce new obligations or responsibilities for Canada's military.

From an administrative standpoint, the protocols expand on and clarify many of the obligations we have already accepted by acceding to the convention. As is normally the case with such agreements, each country has a high degree of flexibility to take the approach to implementation that is appropriate in its case.

For example, in Canada's case, obligations in peacetime to create inventories and plan for collections' care in the event of armed conflict are being met through a wide range of disaster preparedness activities by individual institutions and governments. While these activities are not being undertaken as a result of our Hague obligations, they do meet our responsibilities under the convention and those we will have under the protocols.

Bill S-37 represents the final piece of groundwork necessary to allow Canada to go forward. It will result in a more comprehensive implementation of our existing treaty obligations under the convention.

[Translation]

With Bill S-37 and the proposed amendments to the Criminal Code, certain acts that are now offences in Canada will also be offences when committed outside Canada, by Canadians, against significant cultural property.

Bill S-37 and the proposed amendments to the Cultural Property Export and Import Act will create a mechanism to return cultural property from occupied territories and prohibit the illicit export of cultural property from occupied territories. The act already allows prosecution of those who import cultural property illegally exported from a country with which Canada has a cultural property agreement.

By allowing us to go forward to join the protocols, the bill will reinforce Canada's commitment to protecting the world's heritage, and send a message that we will not be a haven for those who damage, destroy and loot heritage during armed conflict.

[English]

In closing, I would like to thank the honourable members of the committee for their time and welcome any questions pertaining to these issues.

Senator Johnson: I totally agree with what you are saying in your remarks. I have a few questions for clarification. I was the critic on the bill, but we support the bill.

What is the target date for assenting to The Hague Convention's two protocols?

Ms. Sarkar: I will turn to Ms. Zedde to respond to most of the questions.

Ms. Kathy Zedde, Senior Policy Advisor, Heritage Policy, Canadian Heritage: Depending on when the bill is passed, we are hoping at this point to be in a position to join the protocols before the end of the calendar year.

Senator Johnson: Article 34 of the convention states clearly that the means to comply with the convention's measures must be set up within six months of its coming into force. What measures have been taken by the government since the coming into force of the convention in Canada in 1999 to comply with these requirements — for example, plans for protection and evacuation of cultural property?

Preparatory measures required by article 5 of the second protocol are much clearer and more stringent than those in the convention. Have these already been met or will there be adjustments made to the existing plans?

Ms. Zedde: When we joined the convention, Canada issued a statement of understanding that limited our interpretation of article 28, which is the article of the convention dealing with prosecution of offences. At that time, we did not have the ability to prosecute those who had committed acts against cultural property abroad. We limited our interpretation of that article with a statement of understanding. This bill, when passed, will allow us to withdraw that statement of understanding. That is why we have not introduced those types of legislative measures before now.

In regard to some of the measures in peacetime, as Ms. Sarkar indicated, much of this has been undertaken by individual cultural institutions in the context of their own disaster preparedness plans. We also have at the federal level an interdepartmental risk preparedness committee that Canadian Heritage participates on with the national heritage institutions. That includes the national museums, Library and Archives Canada and Parks Canada. The committee coordinates efforts and shares information about disaster preparedness.

A larger initiative is being undertaken at the federal level by Emergency Preparedness Canada. The National Critical Infrastructure Assurance Program was undertaken in the post-9/11 environment to coordinate efforts for all types of disasters that could affect national critical infrastructure, which will include key national symbols and cultural institutions. Consultations are being undertaken at the moment. Those consultations should be finished this summer with the expectation that the plan will be in place by the fall.

Those are the things that have been done up until now. They have not been done in specific response to Hague. Canada's heritage community is sufficiently far advanced that they understand the benefit of having disaster preparedness plans as part of their normal business structure.

The Canadian Conservation Institute, which is an agency of our department, has been involved for a number of years in training professionals in the heritage community on disaster preparedness and on the preparation of those types of plans.

Senator Johnson: I am curious to know why there has been such a time lag between assenting to The Hague Convention in 1954 and our assenting to its protocols?

Ms. Lyn Elliot Sherwood, Executive Director, Heritage Group, Canadian Heritage: The Hague Convention was originally adopted in a Cold War context. In light of the tensions during the Cold War, a number of western countries were slow to adopt measures that might, in that context, have prevented them from dealing with military targets such as the Kremlin, which is both an extraordinary historic site and a military target.

In the post-Cold War glasnost environment, there was much more openness to considering the military consequences of acceding to the convention. Therefore, Canada joined in 1999.

Ms. Zedde: You were wondering why, if we joined the convention in 1999, we are only moving forward on the protocols now.

Senator Johnson: Yes. Is there not a meeting this fall? If this bill does not pass, then we will not be at the table. This is a Senate-originated bill and the House of Commons is adjourning for the summer recess. There is a meeting in October.

Ms. Zedde: I will answer the question in two parts. First, when the second protocol was passed in 1999, we first examined it to see what was necessary in Canadian law to completely implement it. In the midst of that, we had the introduction of the Crimes Against Humanity and War Crimes Act in 2000. Much of the time since then has been spent trying to narrow down exactly what is required. At one time we did not think we would need anything further. We did, however, quite recently identify several gaps that we will now close.

The second protocol came into force only last March, 2004. That, together with some of the things that have been happening in the international community, gave us the sense that we had a window of opportunity to go forward at this point.

With respect to the meeting in the fall, the next general conference of UNESCO, which takes place in October, will be the first general conference that will be held since the coming into force of the second protocol and the new committee will be elected at that time. It is true that originally we had hoped to have been a full state party in order to participate in that meeting as a member state at the second protocol. Evidently, that will not happen at this point. However, as is the case with all such meetings at UNESCO, we will participate as an observer. We have the ability to make interventions. Depending on how far along we are at that point with joining — for example, if we have deposited our instrument of accession but have not gone through the 90-day waiting period before we are considered a full state party — we feel that our points will be given extra weight even as an observer.

Senator Grafstein: I would like to talk about one of the principles of this bill: the definition of cultural properties. Turn with me to the schedule, section 6, article 1. This is a criminal offence in Canada that we are proposing. Therefore, it is rather important that there be a very precise definition of appropriating movable or immovable property that has a cultural connotation.

Article 1 reads:

(a) movable or immovable property of great importance to the cultural heritage of every people...

How is that definition in any way certain enough to provoke a criminal prosecution?

I will give you an example. Are these new cameras here that allow Canadians to watch a part of a new institutional framework for television of great importance to the cultural heritage of every people because they are televising this historic hearing? What is meant by "great importance"? Is it subject to legal definition?

As well, I will give you some examples that trouble me. When we look at these international agreements, we are imposing a criminal standard in Canada. I have no objection to the purpose of the bill; it is the drafting that bothers me. We are back to drafting and precision. This committee deals with international affairs, but we are all concerned about drafting with some precision. What do "great importance" and "the cultural heritage of every people" mean?

Ms. Zedde: This is the definition of cultural property that exists within The Hague Convention. As is often the case in agreements of that kind, some of the wording is imprecise.

Senator Grafstein: This is the heart of my concern. Is it not objectively vague for uncertainty?

Ms. Zedde: I will turn to one of my legal colleagues to answer the question about the legal implications of this wording.

Mr. Jean-François Bonin, Legal Counsel, Canadian Heritage: I understand your question very well. It is difficult because we are trying to implement a convention that is basically a compromise in the field of culture. Everything is so relative. At the end of a negotiation session, you come up with the expressions that find some kind of a consensus.

As a good world citizen, Canada normally tries to be as close as possible in its legislation to the words of the treaty that the legislation implements.

There is uncertainty. Those words are vague. If we look at the Canadian practice in prosecution, the authorities will only prosecute offenders or presumed offenders who commit an offence with regard to a good which is clearly of a high importance.

Senator Grafstein: You are now moving the test up from great importance to high importance. The public is entitled to know, sir, what the definition is. It is a criminal standard. We are here to bring precision to the bill. Do you mean that there is now discretion on behalf of the provincial Attorneys General or the Attorney General of Canada to decide what is important and what is not important? What is of higher importance or what is of lesser importance? That is not really the rule of law. The rule of consensus is not the rule of law.

Mr. Bonin: I do not want to contradict you, sir. I understand what you say. The courthouse will eventually have to decide what, in Canadian value terms, "great importance" means. No legislation is ever 100 per cent certain, unfortunately.

The Chairman: By the nature of the animal, as this is a protocol, I suppose that there are certain possible imprecisions. If we wanted to change the protocol, we would have to start all over again with a large number of countries. How many countries are involved in this protocol?

Senator Grafstein: Chairman, there is another way to deal with this issue. There is another international practice about dealing with vague international treaties. We have done this before. We put caveats on it. We say we will adopt this protocol but will only implement it insofar as these preliminary tests are met. There are corollaries. The British, French and Russians do this all the time, and certainly the Americans do it.

I am sure no member of this committee quarrels with the noble purpose of this bill. Obviously, as Senator Johnson pointed out, there has been a large lag in bringing it to fruition for many political reasons. I do not quarrel with those either. However, now we are confronted with a criminal act. When there is a criminal act, we have an obligation in this chamber to ensure that it is not vague for uncertainty.

Let me ask another question. How far back do we go with respect to cultural property? Are there any latches? Is there any estoppel based on a cultural movable or immovable piece of property of great importance to the cultural heritage of every people?

Mr. Christopher Ram, Legal Counsel, Criminal Law Policy Section, Department of Justice Canada: Mr. Chairman, if I could, to respond to Senator Grafstein's original question, in implementing a protocol like this, as a question of legislative drafting strategy, we face something of a dilemma. On the one hand, if you use the language of the protocol in this case, then you have a definition that could raise concerns about vagueness. On the other hand, if you incorporate a definition in the statute, then you run the risk that the courts will interpret it in a way that is not in conformity with the treaty requirement. Canada then drops out of conformity, and that triggers the necessity for amendments and other problems down the road.

In this case, the decision was made, in consultation with the Human Rights Law Section at Justice, which reviewed the legislation for Charter conformity, that the definition was clear and certain enough, given that obviously our courts will have to interpret, presumably taking into account the language of the treaty, whether it meets the test of certainty. It is not an easy choice.

Senator Grafstein: Parliament can be criticized if we do not do our job. We have been criticized and told that we are transferring responsibility for the interpretation of the precision of laws to the courts. However, our job is to not say, "This is vague, but let the courts interpret it." Before we allow the courts to interpret it, our job is to satisfy ourselves beyond some onus that it is reasonably precise. We are told now that it is vague for uncertainty and that we will leave it to the courts.

The Chairman: Is that what we have been told?

Senator Grafstein: That is what we have just been told.

Mr. Ram: With respect, our opinion is that it is not vague. We did consult the Human Rights Law Section on this particular issue. We did consider the alternative of incorporating a definition in the statute. This was the choice, but it was a difficult one.

Senator Grafstein: Fair enough, but what does the opinion say about the word "great"? How do you define "great"? What is "great importance"? Give us some examples of great importance.

Mr. Ram: That would have to be developed in the case law as it arises.

Senator Grafstein: Case by case.

Mr. Ram: If someone were being prosecuted, the Crown would have to prove beyond a reasonable doubt that the property in question was of great importance. They would have to call expert witnesses, and the courts would have to make a decision based on the evidence in the case. In the event that there were a sufficient number of these cases, then a case law standard would develop.

It is not within our grasp, if you like, either our grasp as a government or your grasp as legislators, to dictate the language of the protocol. It is negotiated among countries in a negotiating environment. As a criminal law drafter, certainly I would wish that the language were more precise, but this is the world in which we live.

Senator Grafstein: Yes and no. I have two other questions.

Mr. Ram: I hope that was helpful.

Senator Grafstein: It was an answer.

How far back will the Criminal Code reach? How far retrospectively will the Criminal Code reach with respect to these provisions? In other words, if a piece of property was taken 100 years ago, does it apply?

Mr. Ram: My understanding is that it will not apply retrospectively at all.

Senator Grafstein: It is from this date forward.

Mr. Ram: From the date of Royal Assent.

Senator Grafstein: If there is a piece of cultural property of great importance hidden in some attic in Canada, would that be subject to this particular legislation?

Mr. Ram: It could in some factual situations, but it would have to be a new offence. For example, the bill includes fraudulent concealment. If a piece of property was pillaged — I believe that is the word of the treaty — in the Second World War but was now being fraudulently concealed in Canada, it could apply, but it would not apply to the original theft or mischief of that item of property in 1946, to use the same example.

Senator Grafstein: I notice a mention in our notes of the U.S., the U.K. and Japan. Do you know why the U.K. has chosen not to ratify the convention?

Ms. Zedde: The U.K. announced a year ago in May that they will now be ratifying the convention and acceding to both protocols. They have not stated publicly why they have waited this long. They have announced that they will go forward. Japan has also indicated that it is in the process of ratifying the convention.

Senator Grafstein: And the U.S.?

Ms. Zedde: Nothing from the U.S.

Senator Downe: Do you know why the U.S. will not agree?

Ms. Zedde: Our general understanding is that this is consistent with their general approach to these kinds of multinational agreements.

One thing I would like to emphasize is that The Hague Convention and protocols are based on the same principles as not only other treaties such as the additional protocols to the Geneva Conventions, but international customary law concerning war. Thus, the U.S. has stated publicly that it respects the principles of those other agreements, which are consistent with Hague. That is as much as I can tell you.

Senator Downe: As far as you are aware, they have not stated any concern that the military might be prosecuted because of their actions overseas.

Ms. Zedde: I am not aware of any specific statement they have made on this particular convention.

Senator Downe: Is there anyone with you here from the Department of National Defence, or have you consulted them for their views?

Ms. Zedde: The Department of National Defence participates on this initiative in an interdepartmental working group. They are not present here today, but they are in support of the initiative.

Senator Downe: Do they have any objections?

Ms. Zedde: No.

[Translation]

Senator Robichaud: You said that this act will apply once it receives royal assent. If I have in my possession an item that is recognized as having some value by the country of origin where I got it and if I decide to sell or export it, does that become an offence? Might I suffer the consequences of the act?

[English]

Ms. Zedde: If you were the legal possessor in Canada of an object that you wished to export for whatever reason, it would simply be subject to the normal export permit requirements of the Cultural Property Export and Import Act. The provisions of this bill would only deal with things such as theft, misappropriation, et cetera, outside Canada after the act is in force.

Senator Robichaud: Can I be the legal owner of something that was stolen a few years ago?

Ms. Zedde: That is a larger question. The answer is that under certain circumstances in Canada you can.

Senator Di Nino: The pillaging of works of art that occurred during various wars would not be covered by this bill in any way?

Ms. Zedde: No.

Senator Di Nino: We are talking about the future rather than the past. The only time the past would be covered is if someone were hiding a piece of art or cultural property. Am I correct that under this bill that would be an offence?

Mr. Ram: Your question deals with fraudulent concealment. There are circumstances in which it is possible for someone to commit an offence today in respect of property that was pillaged, or some such thing, at an earlier date. I am not absolutely sure about that, but I think it is possible. Since the bill applies prospectively from the date of Royal Assent, if the Crown can prove that you fulfilled all the elements of the offence at any time after Royal Assent, you would be included.

Senator Di Nino: I understand that we waited some 45 years to accede to the 1954 convention, a decade after the end of the Cold War to ratify it and another six years to introduce this legislation. In the last 20 or 30 years, there has been an outcry about the theft of property of incredible historical value. Do any of you know why Canada waited this long to put into place legislation to deal with this?

Ms. Sherwood: The opening up of world relationships following glasnost enabled countries to take a more open view of their obligations toward cultural heritage that did not require what was viewed as excessive balancing with military obligations.

It is important to note that the conversations within Canada with other levels of government took place throughout the 1990s, leading up to the accession to the convention. In 1999, the legal framework for Canada to be able to prosecute offences that took place outside Canada was not well established as part of our legal framework. That issue was resolved in 2000 with the passage of the Crimes Against Humanity and War Crimes Act that established that principle.

The second protocol was adopted two years ago and has been working its way toward resolution. We have been working in parallel with that process inside the government with colleagues in the Department of National Defence to ensure that we are clear on the implications in terms of Canada's military, in the Department of Foreign Affairs to assess issues from their perspective, and in the Department of Justice to understand fully the legal implications of prosecutions outside this country. The second protocol only came into force in March 2004 with the accession of the requisite number of countries.

The mills of government do grind slowly. We are glad that we are here today with the necessary legislative amendments to take this forward.

Senator Di Nino: It is important to put on the record that the wheels of justice have not merely ground slowly; they have stopped completely in the past 55 or 60 years, which should not be acceptable to a country like Canada. There is a great need for the restitution of art that has not only artistic value but also represents the heritage of many countries around the world, particularly certain European countries.

This bill concerns an extra-territorial application of Canadian law. Can we apply this in any country where Canadians may have participated in the kind of illegal activity that this bill talks about, or do the other countries have to be part of this convention?

Mr. Bonin: Only the properties that were taken from a state that is a party to this protocol are protected under the protocol.

Senator Di Nino: If a Canadian happens to be in a country that would not be a participant to this protocol and commits an offence that would be recognized under this legislation, he or she would not be subject to the legislation; is that correct?

Ms. Zedde: The illegal export offence — in other words, the amendment to the Cultural Property Export and Import Act — does require that the illegal export take place from a country that is another state party to the second protocol. However, the Criminal Code offences — the theft, misappropriation, arson, et cetera — are not limited to those states who are parties to the convention or the protocols.

Senator Grafstein: I am trying to understand the restriction. When I look at the legislation, there does not appear to be any limitation about going backwards. Where do you find the fact that it is a forward-looking piece of legislation and does not affect previous actions? In other words, we have been told that this bill has a prospective effect. We have heard Senator Di Nino's concerns that perhaps the bill might affect previous actions. Where does the bill state that it will apply forward only? When I read the schedule and the recital, it refers to the convention done at The Hague on May 14, 1954.

The Chairman: The question is: Where is it written that the bill applies from the date of Royal Assent forward and not prior to Royal Assent?

Senator Grafstein: For cultural property taken previously, under the definition of article 1.

Mr. Ram: I may be a little bit beyond my depth here; this may be the Interpretation Act that we are relying on — I would have to check. There is a presumption against retroactivity. The statute has to specify that it is retroactive in order for it to be so; that is the general approach of our drafters. I would have to check.

Senator Grafstein: We have had some examples of retroactivity in the Senate without the reference to the Interpretation Act.

Mr. Ram: I can undertake to find out for you. I do not know the answer at the moment.

The Chairman: I would have to assume, Senator Grafstein, that if a bill has not been passed, it has not taken effect and only takes effect from the time it is passed.

Senator Grafstein: Yes and no, Mr. Chairman, because this relates to a convention that was passed in 1954, which we adopted in some form. What we are doing now is implementing legislation, but the subject matter of the convention predates the implementation of the act.

The Chairman: I do not want to contradict you at all, Senator Grafstein, but as I recall, Ms. Sarkar made the point at the beginning of the hearing that this bill fills in holes — that there are already areas that are covered but some areas were not covered. Bill S-37 is meant to cover certain gaps.

Is that what you said, Ms. Sarkar?

Ms. Sarkar: That is what I said. This discussion relates to another question asked about the delay, which is one of the reasons that it is easier now to align the different departments that had to come on board. We had the Crimes Against Humanity and War Crimes Act and the National Defence Act, so we are allowed to fill in the gaps, which we would not have been able to do until those laws had come into place.

Senator Grafstein: In your notes, you talk about "cultural property" being defined, and we have talked about the definition in article 1 of the convention. Proposed section 36.1(2) of the bill reads:

(2) No person shall knowingly export or otherwise remove cultural property as defined in subparagraph (a) of Article 1 of the Convention from an occupied territory of a State Party..."

What is the definition of "occupied"? Where would we find that?

Ms. Zedde: My understanding is that a state of occupation has a very specific definition in international law.

Senator Grafstein: It has a specific definition, but where would we find it? It is not referenced in the schedule. It is referenced in the bill. The schedule does not refer to occupied territories; it refers to cultural property "irrespective or origin or ownership." This is limited to a person exporting cultural property from an occupied territory.

We have been told that we are stuck with the definition in article 1, but where is the definition of the origin of the property?

Ms. Sarkar: We are trying to find the right person to answer.

The Chairman: While they are finding the answer to your question, I will go to Senator Johnson.

Senator Johnson: Are 105 states party to the protocols now?

Ms. Zedde: There are 114 parties to the convention, 91 to the first protocol and 31 to the second protocol.

Senator Johnson: I understand that the United States, while it has not acceded to the convention, accepts many of its principles during times of war. Is there any indication that they might be coming on board?

Ms. Zedde: None.

Senator Johnson: The Canadian Museums Association has been working with other organizations for some time now on establishing a Canadian Committee of the Blue Shield under the auspices of the International Committee of the Blue Shield. This committee was created in 1996 to help protect cultural property in times of conflict and was given a special advisory role to the intergovernmental committee in the second protocol.

According to the CMA, there has been tepid support at best within your department for the idea of a national committee to assist with responses to threats to cultural property. How supportive of the creation of such a body is the Department of Canadian Heritage? Also, is such a body necessary, in your view, and how would it best be constituted? If such a body did not exist, which government department or agency would take the lead in coordinating Canada's response to the threat to cultural property during times of armed conflict?

Ms. Sherwood: We have been working with the Canadian Museums Association primarily through the Canadian Conservation Institute, which is a national centre of expertise within the department. We have general agreement on the importance of disaster preparedness and planning for emergencies. We are still discussing the best means of proceeding, whether it is the creation of a new body or the addition of responsibilities to an existing organization such as the Canadian Conservation Institute.

We are also working with provincial and territorial colleagues under whose jurisdictions many of the institutions across the country fall. As part of our ongoing policy discussions with them, we will be pursuing the best organizational approaches. It is important to note the work and the training that has already taken place around disaster planning and emergency preparedness and response capacities.

Senator Johnson: Do you feel that this is an unnecessary body?

Ms. Sherwood: We are still considering the pros and cons and costs of establishing a separate organization as opposed to building onto an existing organization.

Senator Johnson: They have been very active in their lobbying on this issue.

Ms. Sherwood: It is important to note that the Canadian Museums Association did write a letter in support of acceding to the protocols, applauding the initiatives. We know that they are supportive.

The Chairman: I saw some heads nodding, and there may be an answer to Senator Grafstein's question.

Mr. Bonin: We have not found in the books we have with us the definition of "occupation." However, we know that "occupation, "occupying power" and "occupied territory" are terms well known in international law. We find them especially in the Geneva Conventions and the additional protocols. There is a great deal of case law and interpretation with regard to those terms. A case law study would give you what would be considered a definition.

Senator Grafstein: I understand. It is important, if the committee is passing a Criminal Code amendment, to have a precise definition, which we have concerns about. We should really know, at least attached to the bill, what is the situs, which is the definition of cultural property. We are not familiar with it. The term "occupied territory" has been in dispute from time to time.

Finally, I want to mention retroactivity. When we passed a tax measure, the Senate was concerned about retroactivity. It went back to the early 1980s. There was a great debate several weeks ago in the Senate about that very thing.

The Chairman: It was very controversial. I recall that the department gave a letter outlining certain limits or characteristics under which the retroactivity could take place.

Senator Grafstein: I was under the impression before I read this material that we already had in place provisions to protect the expropriation of cultural properties generally. This is a hole in the legislation with which I was not familiar.

If we are to prepare a criminal act — and this is Criminal Code amendment — we must have those provisions with some precision in front of us so we can explore them and decide whether they are precise or whether they are vague for uncertainty. That is our job. The courts will have their job, but this is our job.

Senator Corbin: Under tab 7 of the briefing book provided to us and prepared, I suppose, by the department, there are letters of support from a number of provinces. Is it required that all provinces endorse this initiative for it to move ahead? Why are there no letters of support from the Provinces of Ontario and Quebec?

Ms. Sherwood: It is a courtesy that we let the provinces and territories know of the federal government's intention to move ahead in this area. We have received no indications from either Ontario or Quebec that they have reservations, but they have not written back on the letter.

Senator Corbin: Is it possible that they will write eventually? The dates on some of these responses are recent. I see April 4, March 16, et cetera.

Ms. Sherwood: It is still possible that we may hear from them, but we have not yet heard from them. I had a meeting in another context with my counterparts in provinces and territories two weeks ago. In that context, no one raised any issues about it. It is possible that letters will come, but the fact they have not come is not an impediment to the federal government moving forward with an international initiative.

Senator Corbin: It is a courtesy. Even if Quebec, for example, did not respond, do you take for granted that since they have not signified an objection, you have their support?

Ms. Sherwood: We assume that they have not found an objection that they wish to raise with us. I would not want to speak for the provinces concerning their support, but they were very supportive of the joining of the convention itself and informally have not indicated any issues.

Senator Corbin: As far as you know, there are no new apparent reasons why they would now raise objections.

Ms. Sherwood: Exactly.

Senator Downe: It is more than a courtesy, is it not, because the bill allows for the option of provincial attorneys general prosecuting under this act.

Ms. Sherwood: Yes, sir. I should be clear. We conducted consultations with colleagues in the culture and heritage departments. The Department of Justice has consulted their counterparts in other jurisdictions.

Senator Downe: The same question that was posed a moment ago should be asked of the representative from the Department of Justice. Has there been any objection from Ontario and Quebec on the issue of prosecuting?

Mr. Ram: We did indeed consult with the provinces. They were silent or did not object. We did not receive responses from them all.

I would also point out that the approach of including concurrent federal and provincial jurisdictions in this bill is consistent with what we have done in the course of implementing the other treaties. If you look at section 7 of the Criminal Code and the Anti-terrorism Act offences, and maybe other offences as well, this is fairly well established practice. Should an offence occur or arise in Canada, it would then have to be determined on a case-by-case basis who would prosecute or which government would be best-suited to prosecute the case at hand.

The Chairman: Honourable senators, we have reached the end of our deliberations. I am in your hands. Shall we move to clause-by-clause consideration of the bill?

[Translation]

Senator Robichaud: I thought we were supposed to get answers to the questions that were asked and not given specific answers.

[English]

Senator Corbin: I am thinking along the same lines. Could we have responses in time for, let us say, third reading debate in the Senate? Those responses could be included in the record of the Senate at that stage of the examination of the bill. Would that satisfy our colleagues?

The Chairman: Could you commit to providing the committee with that information?

Ms. Zedde: I would like to confirm the two outstanding issues as we understand them. First is the definition of occupied territory and second is the issue of retroactivity.

Senator Grafstein: And how we find that.

Ms. Zedde: Yes.

Senator Grafstein: There was a question about the vagueness of the definition. We received a general response to that issue. Maybe we could have more case law on that subject to give us an indication of how this matter has been dealt with by the courts, if it has been. That would be helpful.

Again, witnesses, we agree with the objective, but this is a criminal act. We are entitled to some precision with respect to our responses.

The Chairman: Honourable senators, let us move to clause-by-clause consideration.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall clause 1 carry?

Senator Grafstein: I will abstain on all of these clauses until I see the material. I do not mean to impede this process, but I would like my vote recorded as "abstention." I am not opposing the bill. I may change my mind based on the evidence I receive on third reading.

Senator Downe: I am of the same position.

The Chairman: Fine.

Shall clause 2 carry?