Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 15 - Evidence - May 15, 2007
OTTAWA, Tuesday, May 15, 2007
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill C-48, to amend the Criminal Code in order to implement the United Nations Convention against Corruption, met this day at 7:26 p.m. to give consideration to the bill.
Senator Consiglio Di Nino (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I see a quorum. I would like to call this meeting to order. I extend special good wishes and welcome the honourable Robert Nicholson, M.P., P.C., Minister of Justice and Attorney General of Canada. This evening we are examining Bill C-48, to amend the Criminal Code in order to implement the United Nations Convention against Corruption.
We will be having as a witness Minister Nicholson. Joining him from the Department of Foreign Affairs and International Trade will be Keith Morrill, Director, Criminal, Security and Treaty Law Division. Welcome to you both.
Hon. Robert Nicholson, M.P., P.C., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chairman, and thank you honourable senators for your invitation to be with you this evening.
Momentarily Ms. Lisette Lafontaine, Senior Counsel in the Criminal Law Policy Section of the Department of Justice may be joining us.
Ladies and gentlemen, we are here for Bill C-48, to amend the Criminal Code in order to implement the United Nations Convention against Corruption. Our government has made it a priority to fight corruption. We are fighting it in Canada with the Federal Accountability Act but we also want to help the fight on the international level. The United Nations Convention against Corruption is a useful instrument in that regard.
[Translation]
The United Nations Convention against Corruption is the first comprehensive, international anti-corruption treaty. From the very beginning of the process, Canada has strongly supported the convention. Canada's ratification of the convention will be a logical and important continuation of our present commitments in the fight against corruption.
[English]
Before we ratify the convention we have to be in a position to ensure that we can fully implement it. Our domestic anti-corruption standards are already among the highest in the world. Canada already generally meets the requirements of the convention. However, to fully comply with the convention there are some technical amendments that we must make to our offences of corruption, and this is the sole purpose of Bill C-48.
The first group of amendments deals with the scope of the corruption offences. The convention requires that we criminalize both direct bribery and bribery demanded or offered through an intermediary. It also requires that we criminalize bribery where a benefit is demanded for or given to a third party.
I would like to speak first about the bribery offences as they currently appear in the Criminal Code. The code currently prohibits bribery of public officials and bribery in the private sector. Bribery of public officials is prohibited by a general offence of bribery that applies to all public officials and specific offences of bribery for certain categories of officials, such as members of Parliament or a provincial legislature, judges, officials involved in the administration of criminal law and municipal officials.
Some of these corruption offences in the Criminal Code already expressly prohibit direct bribery and bribery demanded or offered through an intermediary and bribery demanded for or given to a third party. However, not all of them expressly do so. In some cases courts have interpreted the offences that do not specifically provide for bribery through intermediaries and third parties as if they did. The proposed amendments would make it explicit in the offences where it is not already explicit.
This is what Bill C-48 does in clauses 3 through 7 of the bill, and nothing more. That is what those sections do. Generally speaking, therefore, we are codifying the jurisprudence in relation to the scope of these offences and we do not otherwise modify them.
There is a second area where we codify the jurisprudence. The convention defines public officials more broadly than the definition of "official" as it is read in section 118 of the Criminal Code. The convention defines "public official" as any person holding a legislative, executive, administrative or judicial office of a state party whether appointed or elected. The present Criminal Code definition specifically mentions only officials who are appointed to discharge a public duty.
However, the courts have already applied the definition to both appointed and elected officials. The proposed amendments, therefore, would codify this interpretation and insure that the definition is consistent with the requirements of the convention. This is what clause 2 of the bill does.
The convention also requires states parties to have measures in place to enable the confiscation or forfeiture of property used in the commission of offences of bribery of domestic and foreign public officials. The Criminal Code currently provides for the forfeiture of offence-related property, but only for the property related to Criminal Code offences.
These Criminal Code offences apply to the bribery of domestic public officials, but not to the offence of bribery of foreign public officials, which is found in the Corruption of Foreign Public Officials Act. The proposed amendments would make the forfeiture provisions apply also to the offence of bribery of foreign public officials; and this is what clauses 1 and 8 through 11 of Bill C-48 do.
The provinces have been kept informed of the negotiations. They were fully briefed prior to the signature of the convention, and they were informed of the amendments in Bill C-48. The first two only codify the interpretation that the courts have given to these offences, and the third extends the forfeiture provisions to an offence found in the Corruption of Foreign Public Officials Act. Offences in federal statutes other than criminal codes are normally prosecuted by the federal government and the forfeiture procedure would be conducted by the government that prosecutes the offence.
The United Nations Convention against Corruption is a comprehensive instrument. Apart from the criminalization of acts of corruption, which Bill C-48 deals with, the convention requires states parties to take preventative measures against corruption, to provide assistance to each other for the investigation and prosecution of convention offences and, where possible, to provide resources and expertise to other states parties that need such assistance for training and capacity building. We are already in a position to meet these obligations.
Canada signed the convention three years ago in May 2004. To date, 140 countries have signed the convention and 92 countries have already ratified it.
[Translation]
The government intends to ratify the convention. My colleague, the Minister of Foreign Affairs, will take the necessary steps to do so as soon as Bill C-48 becomes law.
[English]
Thank you very much for giving me the opportunity to appear before you, and I wish you well on your deliberations on this particular bill.
Senator Stollery: Thank you, minister. I gather Canada signed the convention in May 2004 but has not yet ratified it. What are the implications of us amending the Criminal Code for a convention that has not been ratified? I am sure there is a perfectly good explanation but I would like to hear it.
Mr. Nicholson: I think there is, senator. The signing on of a convention indicates Canada's intention to move forward and to bring its laws into compliance. Our general rule is that we do not ratify it until we have brought those laws into compliance.
This bill makes a couple of fairly minor changes to the corruption sections of the Criminal Code. It codifies some existing jurisprudence in the area and makes some minor changes. With the approval of this body, and with Royal Assent to Bill C-48, we would be in a position to ratify the convention, which would signal that we are in compliance.
As I indicated in my opening remarks, we are basically in compliance with it right now — certainly with the jurisprudence that exists — but we are cleaning it all up with these rather technical amendments. Then, with the approval of Parliament, we will be in a position to ratify it, as many other countries have done.
Senator Stollery: I get the picture.
As you may be aware, the committee has recently completed a major study on Africa. Among the problems we looked at was the theft of assets. Tomorrow, I believe, we will have Mr. Raymond Baker from Washington, who wrote a well-known and well-received book, Capitalism's Achilles Heel. He will be talking to us about the role of the international banking industry in taking deposits of stolen money.
The committee is aware that there are substantiated claims of literally billions of dollars being rifled from some of the countries we looked at in Africa, particularly oil revenues and revenues from natural resources. That is one of the big issues that we discussed, and one of the reasons we were delighted that you could come before the committee, because we are quite familiar with this background.
Does the United Nations Convention against Corruption have any teeth in it when it comes to dealing with the international banking sector? When an African leader — and I am not picking on that continent particularly, but it is Africa that we just dealt with — rifles $100 million, he does not put it in an African bank; he puts it in a bank based in Europe, North America or some place like that. Does the UN convention have any effect on putting a stop to this rifling of national assets?
Mr. Nicholson: That is a very good question. You have certainly illuminated a great problem that affects not just Africa but many parts of the world. This convention is a step in the right direction in ensuring that countries pledge the international cooperation, resources and sharing of information that are necessary. Obviously, these are first steps hopefully in trying to eliminate the corruption that sometimes plagues certain countries. Joining the convention indicates Canada's willingness to work with other countries on this problem.
Mr. Morrill from Foreign Affairs and International Trade Canada is an expert on this particular convention and I invite him to comment.
Keith Morrill, Director, Criminal, Security and Treaty Law Division, Foreign Affairs and International Trade Canada: Thank you, Mr. Minister. I was the chief negotiator for Canada for this convention.
In response to your question, one of the key discussions in the negotiation of this convention was the issue of what we came to call asset recovery, which is how we would deal with the return of assets stolen often from developing countries. Article 51 of the convention sums it up very well:
The return of assets pursuant to this chapter is a fundamental principle of the Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.
There is an entire section of the convention addressing what countries that are a party to this convention can do to return stolen assets to the countries from which they have been stolen. I have to say it is a complicated area. One country cannot simply receive a message from another country saying, "There is a bunch of money that belongs to us in a bank account; please give it back." A great deal of negotiation was needed around the kinds of cooperation that could be put in place to ensure that the proper evidence was obtained, the tests that would be followed and the reasons pursuant to which states could act.
Asset recovery is a core issue of this convention, and it was a core issue for our African colleagues when we negotiated it. The convention probably does not give them as much as they wanted, because essentially they wanted to get money when they asked for it. We had to ask for a little more than that, but the convention is a substantial step forward in asset recovery.
Senator Stollery: The question, though, is not only about asset recovery but also about the business of the banking system taking the deposits, or stopping taking the deposits, because not being able to deposit the money would certainly be a break in the rifling of assets.
Mr. Morrill: The convention also deals with that in the prevention aspects. For instance, the section relating to the prevention of money laundering — because stealing money and depositing it in a foreign account is money laundering — imposes obligations on banks and other financial institutions to take measures to ensure that they know their customer and they know where the funds have come from.
The Chairman: Do all of the signatory countries to this convention sign the same document, and if so, do those jurisdictions have any power or authority to initiate an investigation of that same issue?
Mr. Nicholson: Not all the countries are signing on to all the exact provisions of the UN convention. Canada is not signing on to everything as well.
For example, there is an offence in the convention known as illicit enrichment. Under that offence, someone who is living beyond their means or who appears to have wealth beyond what their role in the government or as a public official would indicate is likely could be called upon to explain how it is that they have that wealth.
Some countries, including Canada, have a problem with that because it violates our presumption of innocence. Mr. Morrill can elaborate on this, but my understanding was that there was some negotiation at the UN that a provision like this would be unacceptable to many countries, so as a result that particular provision is optional. Of course that is not included in the bill you have before you, for the reasons I have set out.
Mr. Morrill: There are a few provisions, especially in the criminal and the prevention structures, where the obligation one undertakes is to consider; illicit enrichment is one example. Other prevention provisions will be suitable for one state and not for another, depending on their level of development and where their problems are. Some states have big problems with their police, but their judiciary is in good shape. Some states will have problems with their judiciary, but their police are in good shape. Many of the structures relating to prevention are advisory in nature. However, all countries signing on to the treaty are undertaking certain core obligations in relation to prevention, to criminalization and to cooperation, which I think is one of the key issues that the senator raised.
Some countries are taking on provisions that are not obligatory in the convention but that countries have undertaken to consider. Canada will consider certain things, but there are certain things that Canada will reject. Our Latin American colleagues, for instance, are very fond of the concept of illicit enrichment and wished to ensure that it was in the treaty. As a result of the negotiations, it is in the treaty, but it is not absolutely obligatory. Certain countries, and a number of African countries are among them, find it a very attractive idea and they are taking it on as something they wish to proceed with.
The Chairman: Thank you for the clarification.
Senator Andreychuk: I believe this is the first time that we have tried on a global basis to incorporate the issue of corruption, and of course there was, as I recall, a lot of discussion as to what is corruption. In some states, commissions are corruption and corruption is just a finder's fee. There was a lot of discussion about the different legal systems, the different perceptions of corruption and the different levels of development of all the countries. This is the first attempt to pull it all together.
As I understand it, once we sign the convention, it is our obligation to attempt to enforce it to the greatest extent we can. Bill C-48 is here to try to rationalize some of the major concepts in an easier way than we have had. We have had some corruption for foreign officials and foreign issues and then we have had the Criminal Code. The bill has been a good tool for Canada to look again at our various pieces and to have some similarity. That is one of the advantages for Canada. Am I correct in that?
Mr. Nicholson: I think you have it right, senator. As you indicated, this is the first comprehensive attempt to bring together a treaty with this many countries in the fight against corruption.
At the federal level, we have used this as an opportunity to clarify and simplify the language that appears in our Criminal Code. When the Criminal Code we have in Canada was adopted in 1892, it contained many provisions that had been in place for decades, and as a result the language is out of date, even within Canadian standards quite apart from comparing notes and harmonizing with other judicial systems. This is an opportunity to clarify the law, simplify what we are talking about and signal our intention to cooperate with other countries. You have quite correctly pointed out the challenges that we have. There are a couple of major legal systems in the world that have their own vocabulary and their own way of looking at some of these issues. I think it is a remarkable document, frankly, and I have to believe that this is a step forward.
Even at our own level, corruption of a public official referred to an appointed official. Why would this apply only to senators? Should it not apply to elected officials? Jurisprudence tells us it should, and I say it is about time we cleaned up some of that wording within our Criminal Code. I am pleased we are doing it and I have no doubt that this is a positive step forward.
Mr. Morrill: The bill touches primarily on matters relating to the criminalization provisions. That is because we already have modern legislation on other important issues, such as the cooperation provisions and the mutual legal assistance provisions. We carefully negotiated to ensure that the provisions relating to those issues fit Canada's modern legislation.
Senator Andreychuk: As I understand it, illicit enrichment is considered almost a reverse onus. If you are found with more money than your paycheque, you suddenly have an obligation to prove that you did not get that money from an illicit activity. That also touches on privacy issues. You can inherit money or you might operate a legitimate business on the side that is consistent with your job and not in conflict at all. It might be money from a family enterprise, et cetera. Some other countries have not yet dealt fully with issues of privacy.
Mr. Nicholson: That is a very good point, senator. One of the basic presumptions of our Criminal Code is that you are innocent until proven guilty. You are you quite correct in saying that a provision around illicit enrichment would be building in a reverse onus for an individual to explain the wealth in his possession. You gave a number of examples of where an individual might receive money, possessions or wealth for legitimate reasons. It is an invasion of that individual's privacy to have to explain how that was acquired. Again, it is inconsistent with the presumption of innocence built into our Criminal Code.
It is an important element, and quite frankly one of the reasons the convention will be a success, that that requirement is not in there. As Mr. Morrill said, we do not have to sign on to that. Although it is popular in some quarters, for the reasons that I indicated and for the additional reason that you indicated, it does not work in this country.
Senator Andreychuk: There are many issues, such as offshore banking and the Organisation for Economic Cooperation and Development rules, so this is the attempt to develop a global picture.
We heard from officials from Justice Canada. We mentioned the municipal officials and bringing specific sections into line under the Criminal Code to incorporate municipal officers. In my research, I could not find why we are doing that. Is it because we never put municipal officers at the same level as provincial and federal officers?
Mr. Nicholson: The corruption of a municipal official has been in the Criminal Code since 1892, but since we were modernizing and expanding our definitions of "public officials," we wanted to clarify that we mean public officials at all levels. It is an expansion and a clarification of a section that has been in place for 115 years.
Senator Andreychuk: It seems to pick up directly and indirectly to bring the sections with municipal reference in line with the present and prevailing definitions for other officials.
Mr. Nicholson: Really, senator, it brings it into line with the jurisprudence. We have a whole host of court decisions that have expanded the definition of "public officials," and this provides us with an opportunity to clarify and modernize the Criminal Code. That is always a challenge we face, as you know, when dealing with such a document. Again, some of those provisions were old in 1892 when they went into the document. This gives us an opportunity to bring the code forward so that it complements existing jurisprudence from the courts.
[Translation]
Senator Robichaud: Under the new definition of an official appointed or elected to public office, do you not consider that this also includes municipal officials?
[English]
Mr. Nicholson: It does include them, Senator Robichaud, and the UN Convention against Corruption makes that more clear. I indicated to Senator Andreychuk that one provision, at least, regarding the corruption of a municipal official has been in the Criminal Code since 1892. Yes, it is included in our definition of "public officials." It could be a provincial member of Parliament or it could be a senator. Again, I indicated that the wording was so out-of-date that the Criminal Code spoke of appointed public officials; we have many public officials that are not appointed and it includes them at all levels.
Senator Robichaud: Clause 2 of the bill defines "official" as a person who (a) holds an office or (b) is appointed or elected to discharge a public duty. Senator Murray remarked in the Senate that he thought municipal officials would fall under that definition.
Mr. Nicholson: We take the position that municipal official falls under the definition of an "official" as a person appointed to discharge a public duty. It falls within that definition.
Senator Robichaud: It is mentioned again in clause 6.
Mr. Nicholson: The Criminal Code creates general offences of bribery and breach of trust, which apply to all officials, and specific offences of bribery for certain categories of officials. This allows the defence to be tailored for the particular duties of these categories of officials and to provide for different penalties. It applies to all federal, provincial or municipal officials.
Senator Corbin: My understanding is that the House of Commons passed this bill at all stages with no debate. Is that correct?
Mr. Nicholson: That is correct, senator.
Senator Corbin: Why is that so?
Mr. Nicholson: We got lucky, I guess. In the government there is the sense that we do not want to string these things out for too long. On occasion, we get bills where there is consensus that they be studied by the individual political parties. Of course, the government proposing the bill is obviously quite familiar with its provisions. It has been around and this particular convention was signed by the previous government, so the previous government was quite familiar with its contents. As happens sometimes, when we bring proposed legislation forward, there is general consensus or, in this case, unanimous consensus, and so the bill passed.
Senator Corbin: Do you think the public interest is well served when you proceed in this fashion? It seems to me that procedurally we have readings of bills to provide access for public commentary. That commentary was denied in this case. Can you give me a satisfactory explanation? I would say that you have not fulfilled your legislative duty in that respect.
Mr. Nicholson: Senator, we certainly try to do so. This has been part of the public record since 2004 when the previous government signed it. Again, sometimes governments and members of Parliament want to expedite the process. I remember in the previous Parliament the matter of the veterans charter. The benefits that would flow to veterans made sense to all members of the House of Commons but we were getting pushed toward the adjournment of the House. When approached on that, I, as the chief opposition whip, said that this kind of thing makes sense if the process could be expedited. That being said, we did not ask this chamber to pass it at all stages. Certainly, senators have the right to examine the bill. It has been studied very carefully by the government and the feedback we have received has been good.
In the Senate debate, Senator Murray asked if there had been any consultation. Had anybody consulted with the provinces? In my opening remarks I pointed out that there has been consultation and this bill had widespread support. Being part of the public record for the last three years, for anyone reasonably interested in it, they would have had that opportunity and indeed the public has an opportunity today to hear more about this.
Senator Corbin: Article 65 of the convention under chapter 8, entitled Final Provisions: Implementation of the Convention includes the following and I quote: "Each state party shall take the necessary measures including legislative and administrative measures, in accordance with fundamental principles of its domestic law."
I am not a lawyer. I do not always understand lawyers. What is the meaning of "in accordance with fundamental principles of its domestic law?" How should I read that as a common person? What does that mean?
Mr. Nicholson: In our case, in a parliamentary democracy, the bill would be introduced into the House of Commons, passed by the House of Commons, it would be passed by the Senate and it would then receive Royal Assent. We are part of the oldest legislative process on earth. Once having gone through this particular legislative process we would be fully in compliance.
They do not want some country to have it imposed by a dictatorship or have it otherwise proclaimed into law without due process. In our Parliament system, senator, you may not be a lawyer, but you are familiar with our legislative process. It is our job to ensure that it goes through the legislative process and indeed that particular section places an obligation on those who signed the convention to ensure their law is brought into compliance with the provisions.
These changes we are making are fairly minor provisions, but we have done that. We are consistent with that particular provision.
Senator Corbin: I am mystified by the wording of the commentary attached to each clause, stating it has no legal effect. If it has no legal effect, why in the world are we going through this process? I am referring to the commentary that follows the text of the bill. There are nine or 10 such commentaries. All of them except one say "the wording of the offence is also amended to modernize it and make it gender neutral. The change in wording has no legal effect." Why are we doing this? Is this one of the mysteries of the legal profession?
Mr. Nicholson: It may be, senator. When we get the opportunity to update the language and make it gender neutral we do it. We are not trying to make a substantive change to the law. The effect of a substantive change to the law would call into question the jurisprudence that has developed with respect to the corruption section.
When we are making it gender neutral or updating the language so it is more consistent with English and French in the 21st century, we are not trying to make a substantive change. It is a housekeeping effort and one thing we do from time to time. Sometimes we bundle them up in a bill, previously called an omnibus bill before that name took on negative connotations.
Senator Dawson: Not with everybody.
Mr. Nicholson: Perhaps not with everybody and it may have its day again, but for now we are not doing that. That is what we are trying to do there.
Senator Corbin: The summary on page 2 of the bill following the cover page reads as follows: "This enactment makes technical amendments to the corruption . . . ." This is the first time in my reading of hundreds of bills that I see this wording "technical amendments." Usually the summary explains briefly what the amendments attempt to do.
Again, this wording mystifies me. Is it proper drafting? I have seen bills that in colloquial language seem to put forward technical amendments but we never formally use that in the text. Here it is used for the first time in my many years on the hill. Why is it used in this instance?
Mr. Nicholson: It is an accurate term, senator. Much of what the bill does is bring into effect what the courts or as we refer to as jurisprudence have already confirmed. It has already been confirmed. Some of the definitions have been expanded. The one example is who is or who is not, a public official. By changing the definition slightly, updating the law, we generally refer to it as a technical amendment. We are making it consistent with the UN convention and as indicated in my opening remarks, we have substantial laws against corruption in this country so very minor changes were made. Most of them were confirming what the courts have already said. That is why they are referred to as technical amendments.
Senator Downe: Minister, you mentioned that the provinces were kept informed and fully briefed. Did any of the provinces object?
Mr. Nicholson: To my knowledge, senator, no one has objected to this.
Senator Downe: That was my only question, Mr. Chairman. My comment follows up on Senator Corbin's concern, about the scrutiny this proposed bill is receiving. I am not sure how this bill ended up with the Standing Senate Committee on Foreign Affairs and International Trade. Perhaps it is because it refers to the United Nations. It would seem better suited for the Standing Senate Committee on Legal and Constitutional Affairs. We have Senator Andreychuk here who is not only a lawyer but a former judge. Other than that, with the expertise on this committee, this may not be the best place for this bill. I leave that for discussions later.
Senator Dawson: I was at a meeting where someone requested the bill be sent here because we had been studying the question of corruption in foreign governments.
Senator Stollery: We are in charge of conventions and this is complying with an international convention.
Senator Dawson: If Senator Stollery wants to admit it was he, I am okay with that.
[Translation]
I do not want to get into clause-by-clause analysis, but I would like clarification on the French text in subsection 119 where there is a change. In the new text, we see the words "pendant qu'il occupe," whereas the previous text used "occupant une charge judiciaire." Can you explain the purpose of this clarification, which does not occur in the English?
[English]
We are looking at subsection 119, which is in clause 3 of the bill. The original text in English is older. The French was "pendant qu'il occupe" and now it is "occupant une charge judiciaire." I am wondering why we changed the French text to say "while he occupies a position" instead of "occupying a position." It might be technical. I want to understand.
Mr. Nicholson: My understanding is that the wording for this had been in place in 1892. They wanted to bring it into modern language. Again, the Department of Justice has individuals who can draft this legislation — I believe it is second to none — in both official languages. My understanding is that it clarifies it and updates it.
Senator Dawson: I am sure the previous government participated in having such good personnel in the Department of Justice.
Mr. Nicholson: I think it is one of the great things about this country that we have been pioneers in this area. It goes back many years that we have made tremendous progress in this area.
I was a parliamentary secretary for four years in the early 1990s and, prior to that, a member of the House of Commons Standing Committee on Justice and Human Rights. The amount of care and time exercised by officials of the Department of Justice was impressive. After all these years as a parliamentarian and a lawyer, I continue to be impressed by the level of sophistication and accuracy that goes into their work.
Senator Dawson: Having been with a few of my colleagues in the other House for a certain time, we were always be able to recognize then — and I think it should still be recognized today — that the Senate participates in its sober second thought in making this legislation. After 140-odd years of having this Constitution, most countries in the world — whether we are named, elected or chosen by the provinces — would recognize that the Canadian Constitution has been good for Canadians in the type of legislation we put forward.
I was surprised by your remark on the process of nominations. I recognize Senator Andreychuk, and mostly our chair, as being excellent nominations of senators by the previous government, and I am sure the quality of the nominations that will come in the future will live up to that standard.
I am sorry I was late, Mr. Minister; I was in another committee where we were passing Bill C-288 and we were delayed.
[Translation]
Senator Robichaud: Are all the countries that receive aid from Canada or take part in joint ventures with us parties to the convention? Even with the convention and Bill C-48, can changes be made, or do we have to refuse to do business with those people?
Mr. Morrill: I must tell you that 90 countries are already parties to the convention. Many of them are developing countries, and 50 countries, of which Canada is one, have signed the convention but have not yet ratified it. When we consider that it was negotiated only four years ago, that is a stunning success in the world of multilateral agreements.
Most developing countries have already come on board. I feel that most of the countries that have signed, but not ratified the convention, like Canada, will be doing so shortly. Perhaps, a decade after the convention went into effect, we may be able to find countries refusing to ratify it, but for the moment, it looks like there is a lot of enthusiasm for ratifying the convention in both developing and developed countries.
Senator Robichaud: I have no doubt that there is a lot of enthusiasm among countries that wish to live by the convention and bring their laws into compliance. The people we have to chase are rather the ones who refuse to sign on, or who put off doing so.
This is definitely a step in the right direction and you can never do everything in one go. I was just wondering if, during negotiations with countries that have not yet ratified the convention, we invite them to do so as quickly as possible so that it can be put in place.
Mr. Morrill: Since Canada has not ratified the treaty, we are not in the best position to make any demands on other countries. This is actually one of the reasons why it is important for Canada to ratify the convention. We would then be in a better position to encourage other countries.
Senator Robichaud: That is the point I wanted to make.
[English]
Senator Andreychuk: I wanted to follow up on what Senator Corbin said. The Standing Senate Committee on Legal and Constitutional Affairs has looked at drafting in a substantive way. Whether the term "technical" is correct or not, in looking at this bill, I think they are trying to bring our laws in line; the convention is not a substantial change compared to where we were going with our own laws.
I believe the phrase "change in wording has no legal effect" means that if we continued with the language that says "his" and "himself," it would cover women too. However, we have the Canada Evidence Act, which covers gender neutral: If it says "his," it means "hers" as well.
The drafting department of Justice Canada is attempting to put gender-neutral language in all the laws. Obviously, they have not picked up all of the instances in all of the acts. This was one of the gaps. As we change laws, the drafting department brings them up to modern standards.
There is also the French and the English. We have great debates in the Legal and Constitutional Affairs Committee about this. The wording is different because now — and this is where Canada excels — we give drafting instructions to the drafting department. They draft in English and they draft in French. Then there are obligations to ensure that the intent and the conclusion is the same in both languages. You will not see a literal translation, which is was we had in the past. Again, that is where you are picking up differences in the different areas. The Standing Senate Committee on Legal and Constitutional Affairs has been mindful of that.
I want to pick up on Senator Robichaud's question about why this bill is here in this committee. It is not a matter of a substantive change to our law. We are making sure that our laws are in line with an international convention, but we are not substantially changing our domestic laws; we are not changing our Criminal Code, nor the philosophy behind it or the way we look at criminal law.
If we put this convention into our laws and ratify it, we can then use it as a foreign policy tool. We often look at human rights records; we look at transparency and governance issues. Now we will have one more tool at our disposal when we go to these governments, to whom perhaps we are giving development aid or emergency aid, and determine what standard they are at. Are they living up to this convention, even if they have not signed or ratified it? We might be able to encourage them to do it. We might even say we will support them in complying with their laws and policies — we might provide technical assistance, for example — but we might also remind their conscience that the convention exists and that we expect some adherence to it.
The convention is also a tool people within their own countries can use when they see improprieties in their own government. It can be an education tool, an asset for the people inside and a foreign policy tool. Therefore, I think it legitimately belongs here in this committee so that we can look at the overall point that Senator Stollery was making about conventions, the issue of dealing with other states. It is a foreign policy tool, as well as a convention.
You will want to know what my question is, but I do not want to put to the minister, "Do you not agree?"
Mr. Nicholson: I always agree when a judge speaks. I think you have summed it up well, senator. This is a step in the right direction; there is no question about that. I wish you well in your deliberations and look forward to the passage of this bill.
Senator Downe: I have a supplementary on Senator Andreychuk's point; I think she made it well. The other side of the argument though, as Senator Corbin indicated, is that this bill breezed through the House of Commons. The government states that it is minor technical amendments. Maybe we should do some examination. There may be contrary views even though all the provinces apparently are onside.
I look at the list of countries that have ratified this. We studied some of them in our Africa report: the Congo and Nigeria. You then look at some who have not ratified it yet: Canada, Germany, Japan, New Zealand and Singapore.
I do not know how much of a tool it is, but I think it is the job of the Senate, and the Senate has a good reputation, to carefully review proposed legislation that may have breezed through the House of Commons.
My original concern as to why the bill is here and not at the Legal and Constitutional Affairs Committee pertains to the amendments to the Criminal Code and the fact that this committee does not have the legal expertise. Perhaps the bill should be before the two committees to get the legal view. You referenced how they look for certain wording which we do not normally do at this committee. That is the point I was making earlier.
The Chairman: We did ask for the bill to be sent to our committee because it does deal with international conventions, which is the direct responsibility of this committee. If there is any criticism, it should be directed at the previous chair and the current chair.
Senator Downe: Point well taken.
The Chairman: Minister, I want to thank you particularly for coming and also for your patience. The vagaries of Parliament sometimes interfere in the schedule we all have; therefore we held you up a little longer and we appreciate your being here and giving us some wisdom on this bill. I am sure that, as you have stated, this is a good step forward towards a big problem that exists in too many parts of the world, and I stress, as I have done many times before, not just in the Third World.
The committee adjourned.