Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 16 - Evidence - Meeting of November 7, 2012
OTTAWA, Wednesday, November 7, 2012
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill S-10, An Act to implement the Convention on Cluster Munitions, met this day at 4:18 p.m. to give clause-by-clause consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, we are here to proceed to clause-by-clause consideration of Bill S-10, An Act to implement the Convention on Cluster Munitions.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry? Senator Hubley?
Senator Hubley: I move that Bill S-10 be amended in clause 2:
(a) on page 2, by adding after line 6 the following:
" "cluster munition remnants " means failed cluster munitions, abandoned cluster munitions, or explosive submunitions or explosive bomblets that have not exploded. "; and —
The Chair: I just received your draft amendment here. You are moving clause 2 on page 2 by adding after line 6 the following, and you just recited the definition.
Senator Hubley: I did.
The Chair: It is all one motion, so do you want to move to the second part of your amendment, then?
Senator Hubley: On page 3, I will.
The Chair: It is still clause 2.
Senator Hubley: Yes, it is.
(b) on page 3, by adding after line 27 the following:
" "transfer ", in respect of a cluster munition, explosive submunition or explosive bomblet, includes
(a) the physical movement of that munition and, for greater certainty, includes the physical movement of that munition from a foreign state or territory to another foreign state or territory, and
(b) the transfer of title to and control over that munition,
but does not include the transfer of territory containing cluster munition remnants. "
The Chair: That is your full amendment at that point. I can then go to anyone who wishes to speak.
Senator Hubley: Using the word "transfer, " we are able to cover off both the physical movement of a cluster munition and also the transfer by a sale of a cluster munition. In that way, I think probably we have strengthened the legislation just to ensure that Canadians will not be involved in either the moving of cluster munitions or the selling of cluster munitions. I might also add that that definition will come up further in the bill, but I will cover that off as we go forward. For now, it is the term "transfer " that I am looking for the amendment on.
The Chair: Is there anyone else who wishes to speak to the amendment?
Senator Wallace: I am trying to piece this together. The reference to transfer, to movement, appears in clause 11. I am not sure I understand the distinction you are bringing up with this proposed amendment. It is hard to look at the definition without understanding the implication. I fail to see where it changes the bill. Maybe I am missing something.
Senator Hubley: It does a couple of things. Using the word "transfer, " we can use that one term to cover off both the physical movement of a cluster munition and also the sale of a cluster munition. The transfer covers off both of those very well.
Also, in some of the clauses coming forward, by using the word "transfer, " we are able to make a more concise statement that will have some consistency throughout the bill.
Senator Wallace: Would you not agree that the bill uses the word "moving " and does refer to the transfer of ownership? Are those two concepts not already included in the bill?
Senator Hubley: "Transit " is another term that is used, and I think it would be of benefit to the bill if we were able to be consistent in that. The word "transfer " seems to cover off any type of movement, whether it is a physical transfer or a transfer by sale or ownership. It really narrows in and points to the fact that we are tightening the definition by using the word "transfer. "
Senator Wallace: The definition of what?
Senator Hubley: Rather than using "sale, " rather than using "transit " or other terms that have been used within the bill, we would like to make it consistent. I think in that way it becomes much easier to understand and to read.
The Chair: If I understand you, Senator Hubley, it seems to me that the word "transfer " is used in the convention.
Senator Hubley: Yes, the word "transfer " is used.
The Chair: What I understood when we had the initial testimony on how this bill was drafted is they took the convention and then took that part, which is here before us, which is to make certain acts criminal in Canada, and therefore we are following the judicial interpretations and understandings in Canadian law. It is different, therefore.
The word "transfer " may be used in a concept and terminology for the purposes of the convention, but our job is to make sure that it is compliant with criminal law here in Canada. I understood the words that we have now take the intent of the convention and put it into Canadian context. I am not sure, going back to the convention, whether we could then implement this according to criminal law and what the consequence of that would be. Maybe you can help me out.
Senator Hubley: I think the term is probably interchangeable. From my perspective, I do prefer the word "transfer, " for those very reasons, namely, that it does cover off those issues of movement, whether it is by giving it away or putting it on a carrier. There has to be a very tight definition on movement, and that is hopefully also to include the sale of the cluster munition.
I think the word used in the convention itself might be ambiguous. It might be. Some would argue that. I feel this is certainly strengthening the legislation, just to ensure that Canadians will not be involved in moving cluster munitions or selling them.
Senator Wallace: Senator, I have one further comment. The word "transfer, " to me, from a legal perspective, tends to mean "conveyance, " and the way the word "transfer " is used in section 11, and that word does appear, it is "transfer " in the context of a change of ownership or control, as opposed to a transit or physical movement. I think there are two different concepts there. You are suggesting we use the word "transfer. " It tends to tie it back more to an ownership issue rather than a physical movement. My understanding is that when drafting the bill, the department wished to cover both circumstances, the conveyance of an ownership interest as well as the physical movement, or, which is referred to as "transit " in the bill, moving.
Senator Hubley: I would contend that both with respect to the conveyance and the transfer, the word "transfer " aptly covers both of those situations.
Senator Wallace: I would say those circumstances you described are covered now, in my reading of the bill, both the physical movement and the conveyance of ownership. That is my opinion.
Senator Hubley: It will appear six times. This is the first. It appears in other parts of the bill. Perhaps each one of those circumstances, which I will point out to you as we come to them, requires that kind of similarity in terminology, shall I say. The word "transfer " will convey the meaning that we are looking for within the bill as it reflects the convention.
Senator Wallace: With all due respect, you say the intention that "we " are seeking. I am not sure whom you are speaking on behalf of. I guess it would represent your thoughts; I am not sure it represents everyone else's.
Senator Hubley: It certainly would be a legal opinion. It is not my personal opinion, as such. As you know, amendments are drafted. This is one that was recommended to me, and I certainly agree with it, so I would like to see it go forward.
Senator Stratton: Question.
The Chair: Do we want to continue? If I understand the debate here, you have received legal advice that you think it strengthens the definition.
Senator Hubley: Yes.
The Chair: The departments and Senator Wallace are indicating that it might not be compliant with Canadian law in the definition of what "transfer " means within our context. I think there is a difference of opinion, maybe a difference of opinion from lawyers; I do not know.
Are we ready for the question on the amendment?
Senator Stratton: Question.
The Chair: Is there an agreement on the amendment? Those in favour of the amendment? Against the amendment? I think the amendment is defeated.
Senator Downe: Can we have a recorded vote?
The Chair: You want a recorded vote.
Adam Thompson, Clerk of the Committee: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Agreed.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, 3; nays, 7; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments to clause 2? Shall clause 2 carry?
Senator Downe: On division.
The Chair: On division.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 6 carry?
Senator Hubley: I have an amendment to clause 6. I move:
That Bill S-10 be amended in clause 6, on page 4, by replacing line 12 with the following:
"explosive bomblet, or stockpile cluster munitions, explosive submunitions or explosive bomblets; ".
The Chair: Do you wish to speak to the amendment? I think we are carefully hoping that we have all of your amendments here.
Senator Hubley: It is a fairly straightforward amendment and ensures that stockpiling is not allowed. The original drafters of the bill may argue that "stockpiling " is not a word used in Canadian criminal law and is covered by the prohibition on possession. This amendment adds extra clarity and brings us closer in line with the convention and its wording.
The Chair: Is there any discussion on the pro side? Is anyone opposed to the amendment? Are we ready for the question, then? No discussion? I am not seeing anyone indicating.
All those in favour of the amendment? Do you want a roll call for all?
Senator Downe: Could we have a recorded vote?
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, 3; nays 6; abstentions, nil.
The Chair: The amendment fails. Are there any other amendments on clause 6?
Senator Hubley: Yes. I move:
That Bill S-10 be amended in clause 6, on page 4, by replacing lines 13 to 17 with the following:
"(c) transfer a cluster munition, explosive submunition or explosive bomblet. "
Again, this has the word "transfer " in it, which I have already explained.
The Chair: Any further comments on either side, pro or con, to the amendment? No?
Do you wish a roll call on this?
Senator Downe: Yes, please.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, 4; nays 6; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments on clause 6, please?
Senator Hubley: I move:
That Bill S-10 be amended in clause 6, on page 4, by replacing lines 26 and 27 with the following:
"any act referred to in paragraphs (a) to (d);
(h) directly or indirectly, invest in the securities of a corporation, knowing that the corporation develops or makes cluster munitions, explosive submunitions or explosive bomblets; or
(i) receive, comfort or assist another person, ".
The Chair: Do you wish to speak to the amendment?
Senator Hubley: Yes, please.
This amendment will make it an offence for a person to knowingly invest in a company that produces cluster munitions. Even if the company may make other products, if an investor knows they produce cluster munitions, he or she may not lawfully invest in that company.
This amendment goes beyond what is covered in Bill S-10 already by the prohibition on aiding and abetting. While it could be argued that investing in a company that produces cluster munitions could be considered aiding and abetting, it would have to be proven that the person intended that their investment be specifically used to help make cluster munitions. With our amendment, however, it would not matter what the person's intent was; merely investing in a company that makes cluster munitions would be adequate.
Senator Wallace: Senator, when you say that, I am reminded of the evidence we heard from the departmental witnesses, the legal advisers to the department, and that very issue was raised with them. As I recall it — and I found it compelling — they were convinced that the wording that is now included in 6(f) — and you have referred to it — the aiding, abetting and counselling, is certainly broad enough to cover the circumstance you are highlighting in your amendment. That is my impression of it. That is my recollection of it.
Senator Hubley: I would like to reiterate that coming under the aiding and abetting, there has to be the proof that in fact that person who invested in the company knew that those funds were going to be used for the production of cluster munitions, whereas if we consider the amendment, it is very explicit.
Senator Wallace: I would say that in any issue like this you have to have the physical act occurring and there must be a mens rea or the mental intent. I believe that was addressed by the representatives of the department at the time. I am not seeing the gap that you are suggesting.
Senator Hubley: I would say that this certainly strengthens and clarifies the investment issue when it comes to cluster munitions.
Senator Wallace: At the time, we were very particular in the questions that were put to the representatives regarding whether there was any uncertainty about that because it was something everybody felt strongly about. I did not have a sense in what they said that there was any shortcoming. That is what I recall.
The Chair: I am troubled by the amendment. You say directly or indirectly invest in the securities of a corporation. The department did not want to trap people who have mutual funds and all those things they invest in and someone else does everything. You narrow it down saying "knowing that the corporation develops or makes cluster munitions, " but surely there is more than the corporations developing and making. There are all sorts of ways of contributing to the development of cluster munitions by corporations that are not just the making and the development. It seems to me you have narrowed the aiding and abetting and would cover any kind of a relationship or activity if you knowingly did it. Here you have reduced it down to two aspects. I am wondering why you did that.
Senator Hubley: You are correct in saying that there are many ways of investing in cluster munitions and who makes the components. We could become very technical and try to cover all of those bases, which we cannot possibly do, as you know.
What we can do is caution, through this amendment, that investing in the securities of a corporation — and those corporations would be known; I do not think it would be secretive — that if it is in the business of developing and making cluster munitions, then that is against the law.
The Chair: My point was that you have narrowed it to the developing and making of cluster munitions, whereas the way it is worded now seems broader to me. Having any activity that leads toward a cluster munition would be caught in those aiding and abetting sections. It is a narrowing rather than a broadening of what we are trying to do, namely, to keep people from actively and knowingly participating. It seems to me the amendment narrows the trap then enlarges it.
Senator Hubley: We do have the references to aiding and abetting, which are fine. However, if a person invests in a company, then we have to prove that they in fact knew that they were investing in a cluster munitions company to satisfy the aiding and abetting. I think this is certainly narrower, but I think it defines better the situation that we are trying to achieve here, and that is that we do curtail investment in a company that produces cluster munitions.
The Chair: Is there further discussion? Are honourable senators ready for the question? Roll call, again, on the amendment.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment has failed.
Are there any further amendments to clause 6? If not, shall clause 6 carry? On division.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Senator Hubley: I move:
That Bill S-10 be amended in clause 8, on page 5,
(a) by replacing lines 16 to 20 with the following:
"possesses, transfers, imports or exports that munition. "; and
(b) by replacing lines 29 to 32 with the following:
"transfers, imports or exports that munition. ".
There again it is the use of the word "transfer " that I would like to see used, and I think that has been debated.
The Chair: Are we ready for the amendment? As Senator Hubley pointed out, it has been debated. Roll call, please.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, five; nays; seven; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments to clause 8?
Senator Hubley: Excuse me, clause 8, did you say?
The Chair: We just had the amendment for clause 8.
Senator Hubley: Yes.
The Chair: That amendment failed. I am asking if there are any further amendments.
Senator Hubley: No.
The Chair: Shall clause 8 carry?
An Hon. Senator: On division.
The Chair: On division.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: There is an amendment to clause 10.
Senator Hubley: I move:
That Bill S-10 be amended in clause 10, on page 5, by replacing lines 39 to 44 with the following:
"acquiring, possessing or transferring a cluster munition, explosive submunition or explosive bomblet, if that munition has been ".
We are using, again, the word "transferring. "
The Chair: You have made your argument.
Senator Hubley: Yes.
The Chair: Are honourable senators ready for the question? Roll call.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments to clause 10? If not, shall clause 10 carry?
An Hon. Senator: On division.
The Chair: On division.
We now move to clause 11. I understand there are amendments.
Senator Hubley: I move:
That Bill S-10 be amended in clause 11,
(a) on page 6,
(i) by replacing lines 17 to 24 with the following:
"transfer, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state; "; and
(b) —
Sorry, just (a).
The Chair: Are you not moving (b)?
Senator Hubley: No. It will come up. It will be repeating if I do.
The Chair: I have received in a written form that subclauses (a) and (b) be amended, but you are just moving:
That Bill S-10 be amended in clause 11,
(a) on page 6,
(i) by replacing lines 17 to 24 with the following:
"transfer, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state; "
Is that your amendment?
Senator Hubley: Yes.
The Chair: Do you wish to speak to it?
Senator Hubley: The term in these circumstances again is "transfer, " and I will leave it at that.
The Chair: Is there any further discussion? Let us have a roll call on the amendment.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments to clause 11?
Senator Hubley: Yes. I move:
That Bill S-10 be amended in clause 11,
(a) on page 6,
(i) by replacing lines 24 to 32 with the following:
"over it, if the person does not expressly request that a cluster munition, explosive submunition or explosive bomblet be involved in the carrying out of the activity;
(b) requesting the carrying out of an activity that may involve the use of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state, if the person does not expressly request that a cluster munition, explosive submunition or explosive bomblet be used and the choice of munitions used is not within the exclusive control of the Canadian Forces; or
(c) moving a cluster munition, explosive submunition or explosive bomblet from a ", and
We will stop there, because there is an explanation that will come forward.
The Chair: Could you repeat the last part? Where do you want us to stop?
Senator Hubley: We will do paragraph (i) — by replacing lines 24 to 32. We have done that, and then we are adding (b) and (c) to that clause. Do you want me to reread it? Would it be helpful?
The Chair: The clerk and I are confused with the (b) and (c). We have received in written form an amendment that says that Bill S-10 be amended in subclause 11(a) on page 6, and there are paragraphs (i) and (ii). Do you wish to proceed with those two?
Senator Hubley: Yes.
The Chair: Then it is subclause (b), on page 7.
Senator Hubley: We will move that later; we will go back to paragraphs (i) and (ii).
The Chair: You have introduced it in this form. I do not know what you mean that you will go back to it later. If you wish the amendment, please either introduce it all —
Senator Hubley: I will read it again. I move:
That Bill S-10 be amended in clause 11,
(a) on page 6,
(i) by replacing lines 24 to 32 with the following:
"over it, if the person does not expressly request that a cluster munition, explosive submunition or explosive bomblet —
The Chair: I think we get that. Do you wish to include the subclause (b) part on page 7 in your amendment or not?
Senator Dallaire: We are still on page 6. We are taking subclause (b) that is currently on page 6, and we are replacing it with a new subclause (b) that starts with "requesting the carrying out of an activity. "
Then, in subclause (c), we are taking away the first three verbs — "using, acquiring and possessing " — and starting it with "moving a cluster munition, explosive submunition or explosive bomblet. "
The Chair: That is not my problem. My problem is that I, as chair, received a written amendment. Do you wish to proceed with the entire amendment?
We can remove and delete portions of it, but we cannot delay it to another amendment because then I need it in written form in both official languages. You cannot strike something off and then reintroduce it verbally. Either it is this amendment with parts taken out, or it is this amendment.
How do you wish to proceed? I think it was Senator Hubley's amendment, so I would like to know if she wishes us to proceed with the entire amendment as is.
Senator Hubley: Yes. We will proceed with the entire amendment. Do you wish me then to continue reading the amendment into the record?
The Chair: What is the wish of the group? We have it in written form. You have confirmed it will be the entire totality of the amendment, which goes to adding after line 21, in clause 11, subclauses (4) and (5) as stated before. Would you like to speak to it now?
Senator Hubley: I think what I would prefer to do is read it into the record, if I may. I will start with the paragraph (ii).
(ii) by replacing lines 43 and 44 with the following:
"engaging in an activity related to the transport — other than the actual transport — of a cluster munition, explosive "; and
(b) on page 7,
(i) by replacing lines 4 to 14 with the following:
"that is not a party to the Convention, from receiving, comforting or assisting another ", and
(ii) by adding after line 21 the following:
"(4) No person contravenes section 6 by reason only that the person engages in military cooperation or combined military operations involving Canada and a state that is not a party to the Convention that might engage in activities prohibited under section 6.
(5) A person who is subject to the Code of Service Discipline under any of paragraphs 60(1)(a) to (g) and (j) of the National Defence Act, or who is an employee as defined in subsection 2(1) of the Public Service Employment Act, and who is directing or authorizing activities in the course of engaging in military cooperation or combined military operations involving Canada and a state that is not a party to the Convention must make their best efforts to discourage the armed forces of that state from using, or planning to use, cluster munitions, explosive submunitions or explosive bomblets, and must provide those armed forces with advice respecting the availability of alternative and effective conventional munitions. ".
The Chair: Would you like to speak to the amendment?
Senator Hubley: I would like to have my colleague Senator Dallaire speak to this, please.
Senator Dallaire: If we go down the listing of the amendments, first, (a), which is in that paragraph, we are adding a clarification to ensure that we stay with the spirit of the convention and that we do not expressly give orders to anyone to actually use these submunitions. We can be directing, through staffing or whatever, we can be authorizing the activity and the use, but we are not expressly requesting that these munitions be used in order to carry out this activity. It amplifies and ensures that a Canadian who is committed in these operations never finds himself or herself in the position of actually ordering the use thereof, even though they are engaged in the staffing, planning and ultimately the ordering of the overall operation, but not specifically that munition.
The Chair: Are there any further comments?
Senator Wallace: Senator, in saying that, it would seem that you are attempting to restrict the interoperability clause, Article 21 of the convention. That provision does give a state party the ability to engage in military cooperation and operations with states not a party and those parties that might engage in activities prohibited. It would seem that you are trying to restrict the state party's abilities that are provided for in the convention, I would say.
Senator Dallaire: Not this one. The next one, maybe. On this one, in no way, shape or form are we putting any restrictions on the actual operations or meeting the interoperability, except for the fact that the Canadian who is in this operation will specifically not order the use of that weapon. It does not prevent them from writing directives or the staff planning and so on, even being a commander of an operation, but as a commander will not specifically order that they use that weapon. What we are doing is ensuring he does not. If they want to use it, they can. What we are just saying is that he or she will not order its use.
That has nothing to do with a problem of interoperability. It is just that we are guaranteeing that he does not get caught up in a scenario of actually finding themselves in a flexibility that they do not need in regard to actually potentially ordering those munitions being used.
Senator Wallace: With the exception, I would say to you, in paragraph 3 of Article 21, when it refers to military cooperation and operations, it concerns what is involved with that. What does that mean, in particular, in a circumstance where Canadian military personnel had been seconded? What abilities and what restrictions are there on our military personnel to be involved in those operations? It is very broad in the convention right now. I would say you are restricting that.
Senator Dallaire: We are, in the spirit, in fact, of tightening our position in regard to the convention. I will argue that, yes, people who will be seconded will have a caveat on them, and the caveat will be that they will never be in the position where they will specifically order the use of this weapons system. That caveat, as we present the amendments, will want the government to make sure that the government that is receiving this seconded person is aware of that in advance; and if they do not like it, then they do not take the secondment.
However, when you assess who we are seconded to, mostly we are seconded to the British, the French and the Americans, who are the dominant secondments. The Brits and the French have said they will not use it, so that does not cause a problem. The Americans are limiting their use of it, only in certain circumstances, if other systems may not be available. That does not really restrict a person on the ground from not ordering it. The weapons could still be used, fine, but they are not ordering it.
Senator Wallace: I have a final thought on that. I recall the minister saying that as a matter of policy we would not be directing our personnel to do what you have described. However, if, through the fog of war or whatever, any of our military personnel found themselves in that circumstance, the intention was to provide military personnel with some protection, criminal or civil liability. That is the purpose of section 11, as I am sure you are aware.
As a matter of substance, I do not know that there is any difference between what you are saying and what I heard the minister say, but it is a question of providing protection to our military personnel. That is what section 11 is for.
Senator Dallaire: If I may, what I am putting forward there is to make sure that our person is protected by, in fact, not finding themselves in the scenario where they would be permitted in any way, shape or form of using the munition; while, when you are talking about directing and so on, they could still find themselves in extremis in that scenario, and we are saying, "No, we do not want that to happen. " That will be "caveated " in advance by the arrangements of the secondment.
The Chair: If there are no further discussions, we will go to a roll call on the amendment.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson.
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Marshall?
Senator Marshall: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: Yeas, 5; nays 7; abstentions, nil.
The Chair: The amendment fails.
Are there any other amendments on clause 11?
Senator Dallaire: Forgive me, chair. I have only spoken about (a). I have not gone to (b) yet.
The Chair: We voted on the entire amendment.
Senator Dallaire: I have not spoken to the entire amendment. I made it quite clear that I was speaking to (a) and the part there. We got into a discussion right off the bat. I have discussions for (b) and for every other element that is in there.
Senator Finley: I heard the chair ask if there was any further comment on this amendment before we voted.
The Chair: I am afraid I did ask, Senator Dallaire, and I made it very specific, because of the confusion, that we were dealing with the full amendment. When the discussion occurred, I said, "Is there any further discussion? Can we go to roll call? " Then we went to the roll call.
Senator Dallaire: Madam Chair, you heard me also say that I was discussing (a).
The Chair: I had no idea you wanted to discuss more than that.
Senator Dallaire: I said I was discussing (a), and then I was intervened in (a) before I went into (b) and (c). In so doing, I do not feel I have had the opportunity of describing the information for all the other amendments. We have only presented them clinically but not debated them. In everything I was talking to, I kept referring to (a), never being left with the impression that I was not going to be continuing to (b) and (c) because I said I was just talking to (a) at the time. I could have said, "I want to talk to all of them, but I will start with (a). " In fact, that was my ultimate.
The Chair: I have to follow the procedure. I asked for further discussion.
Senator Dallaire: What a waste of rations. I cannot believe —
The Chair: Senator Dallaire, you still have opportunities to speak to this bill and to the amendments, but I have to follow a procedure.
Senator Dallaire: I cannot speak to the amendment. You said we were going to vote on it.
The Chair: We have already voted on the amendment. I asked for further discussion. I do not understand. If you misunderstood, I am sorry for that, but the amendment has already been voted on. We are going to have to move to the next amendment. Now, as I say, this is not your only opportunity. When we continue, you can bring up your comments. All right? This is just one part of a process.
Senator Dallaire: I will not be able to go back to it. Right?
Senator Stratton: In the chamber.
Senator Dallaire: Yeah, sure.
Senator Stratton: Help yourself.
The Chair: Senator Dallaire, I do not involve myself in tricks, and you know that. I asked for —
Senator Dallaire: I feel like I have been duped. I am sorry, but next time —
The Chair: The assumption —
Senator Dallaire: — we will really get it sorted out, and I will not have that problem with all of this.
The Chair: There was a lot of confusion on what part of this amendment was wanted. It was agreed that all of the amendment would be put forward, and the discussion started on it. Whether it was only on parts of it, I cannot force people to speak on all of the amendment. You choose what you speak to. Senator Wallace spoke. No one else chose to intervene at that point. We went to a roll call. I had asked for further discussion before I went to roll call. I do not know what else I can do within the rules, being fair to everyone. I think I have done that. I would hope you would respect that.
Are there any further amendments to clause 11?
Senator Hubley: Yes, there is, Madam Chair. I move that Bill S-10 be amended in clause 12 —
The Chair: Are there any further amendments to clause 11?
Senator Hubley: No. Sorry.
The Chair: Shall clause 11 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division.
Can we turn to clause 12?
Senator Hubley: I move:
That Bill S-10 be amended in clause 12, on page 7, by replacing lines 24 to 29 with the following:
"from acquiring, possessing, transferring, importing or exporting a cluster munition, explosive submunition or explosive bomblet for ".
The Chair: Do you wish to speak to it?
Senator Hubley: I believe we are referring again to the use of transferring in this instance, for added clarity. I believe that it will be considered debated, but we will vote on it.
The Chair: Is there anyone in the room who wishes to discuss this amendment further? I am looking both to my right and my left. I see no one indicating they wish to speak to the amendment further. We will go to a roll call.
Mr. Thompson: The Honourable Senator Andreychuk?
The Chair: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Marshall?
Senator Marshall: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment has failed.
Are there any other amendments to clause 12? No? Then shall clause 12 carry?
Some Honourable Senators: Agreed.
Senator Downe: On division.
The Chair: On division.
We will go to clause 13. Are there any amendments? No? Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 16 carry?
Senator Hubley: I have an amendment.
The Chair: The clerk is informing me that your amendment is not with clause 16. You want to add another 16?
Senator Hubley: It is 16.1.
The Chair: I will ask the clerk. We should carry clause 16, if there is agreement. Is that correct? We agree that clause 16 carry, and then there is an amendment before we proceed to 17.
Senator Hubley: I move:
That Bill S-10 be amended, on page 8, by adding after line 28 the following:
INTERNATIONAL RELATIONS
16.1 (1) The Minister of National Defence must advise the government of any state that is not a party to the Convention, and with which Canada is engaged in military cooperation or combined military operations, of Canada's obligations under the Convention.
(2) Any agreement between Canada and a state that is not party to the Convention pursuant to which a person referred to in subsection 11(1) is on attachment, exchange or secondment, or serving under similar arrangement, with the armed forces of that state, must provide that the person will not be ordered by, and will not be required to follow any order issued by, a member of those armed forces to perform an act that is prohibited in this Act.
The Chair: Do you wish to speak to the amendment?
Senator Hubley: Thank you very much, Madam Chair. I will refer to my colleague Senator Dallaire to speak to it.
[Translation]
Senator Dallaire: The amendment presented tends to reinforce section 11 in the spirit of the convention by making sure that a person is not in the position of ordering the use of these weapons and that, beforehand, the government has made it clear to the government to which the person is seconded that a Canadian will neither use nor order the use of these weapons.
[English]
The Chair: Do you wish to make a comment or question on the amendment?
Senator Wallace: I think, senator, part of all of that amendment was dependent upon one of the previous amendments that was not carried, unless I misunderstood.
Senator Dallaire: No. You could say this reinforces the other one, but it stands for its own. Essentially it says when we second someone to another force, the Government of Canada makes aware to the government of that force that the Canadian they will get will not be ordering or using that munition. It takes the responsibility away from the individual to make that clear and puts the onus on the government to ensure that point is part of the arrangement the individual comes to them under.
Senator Wallace: Essentially it is the same issue that we did deal with and that you spoke to in the previous amendment. It is the same fundamental issue.
Senator Dallaire: What I am saying here is instead of talking about the person in 11, I am talking about the government in 16 taking on its responsibility to ensure that a person is not caught in the position of compromise in the accomplishments of his or her duties.
Senator Wallace: Clause 11 of the bill, as it is worded now, purports to do that exactly, provide that protection to our military personnel.
Senator Dallaire: It provides protection to the individual, but we are saying we do not want the individual to be caught in an ethical and difficult position in regard to his employment by the fact that he is protected by the government that set the parameters of use. When we send people, as an example, to the UN, we lend people to the UN. We send them in and the UN will produce the rules of engagement. We review the rules of engagement, and if they do not meet our criteria, then we will ask for those rules to be amended and they will receive our forces with the amendment.
As an example, when the Belgians came to me, I wanted them to do crowd control. They came back and said their forces are not trained to do crowd control because that is the gendarmerie, so I could not use them in doing crowd control.
This establishes that the government, in its arrangement with the signing of the documents of a person being seconded, makes it clear that the seconded person will not be using those weapons.
Senator Wallace: Again, Canada's requirement as a member state to the convention is to comply with the convention. The country obviously has every intention of doing so. Some of these issues are dealt with in legislation. Some of these details we are talking about are dealt with through policy directives. Coming back to what I thought the minister was saying, it was his intention that through policy directives these types of issues would be dealt with. I understand your point.
Senator Dallaire: Policy directives are a political variant that changes while this is law. We created clause 11 because we wanted them to be protected legally, so this thing reinforces that protection by the commitment of the Government of Canada to ensuring that happens.
Senator Wallace: Again, as I understood from the minister and other representatives from the government, there is some flexibility — and you would know this from your past experience — required to deal with the realities of military engagement. Certainly, I understood the minister to say he understands the obligations that we have as a country but there does have to be flexibility, in particular when combined operations and military cooperation are spoken of. Again, you have lived it and understand the reality of that, but that is what I heard the minister saying, that flexibility is needed and there is that need to find a balance between international commitments, humanitarian commitments and the realities of dealing with armed conflict. As I heard the minister say, it is never perfect to find that, but that is what this bill is attempting to do.
Senator Dallaire: War is not perfect, and conflicts have all kinds of nuances. Whatever you plan goes up in smoke the minute you cross the start line.
It is essential in these complex and ambiguous missions we are sending people to, and the fact that they are employed by other forces that may not be signatories, to have the most clarity and protection we can give them in ensuring that who is employing them knows what he has and who is being employed knows what they can do. It becomes just that much more crucial and takes away a level of stress and ethical dilemmas, if not even legal dilemmas, in their employment.
We are saying essentially they do not have to order the use of cluster munitions because our doctrine really does not believe in them. When they are with another force, if they use them, fine, let them use them, but he will not order them. In so doing, the chain of command can be overruled, so the commander who has this guy under command can say because that possibility might exist he will not give him that employment and will simply not use him. That might limit our secondments, but that is following the spirit and our desire to meet the fact that we do not see Canadians using this horrific weapon.
Senator Hubley: In support of this, I would say that it does refer to the positive obligations that are required under Article 21. I know you have referred to the minister several times. It certainly was the government's intention when they signed the convention that they would not under any circumstances ever use cluster munitions again, and for very good reason. I think by being very specific in our treatment of the international relationships that we are looking at now, it only goes to again establish for the international community that Canada in fact is serious about the cluster munitions convention. This is just one more way of doing that, to put the onus on the government to abide by the positive obligations that are required under the convention.
Senator Wallace: I would say there is no need to put that in legislation. The obligation our country will have will flow from the obligations in the convention. The convention itself requires Canada to do just what you have described, to encourage states not a party to ratify and to notify other party states of their obligations. Again, I believe it is covered in the convention, but I think we have discussed that.
Senator Hubley: I would have to disagree with that. I feel that the major flaw in Bill S-10 is contained in parts of clause 11. That is what I have been trying to address in the amendments, perhaps tightening it up, allowing for interoperability, protecting the Canadian Forces against liability, being very clear and concise. It is not something that I would ever like to see in policy. I want to see it in law, and I think this is the way to do it.
Senator Stratton: Question.
Senator Dallaire: May I comment?
The Chair: Yes.
Senator Dallaire: With clause 11 not amended, this becomes all the more significant because there is all kinds of room to manoeuvre in clause 11 that will put those people in situations where they will use those weapons. This would make it quite clear, when you are interpreting clause 11, that the ultimate use, ordering of use of that weapon, would not be in the purview of a seconded Canadian.
The Chair: Are there no further discussions? This is an amendment for a new clause, 16.1. Roll call?
Mr. Thompson: The Honourable Senator Andreychuk?
The Chair: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Marshall?
Senator Marshall: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton.
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace.
Senator Wallace: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment fails.
Senator Downe: Did you record my vote?
Mr. Thompson: My apologies. Yes, I did record your vote.
The Chair: I think we are okay on that one.
We are moving then to clause 17.
Senator Hubley: I have a new clause.
The Chair: Is this a new clause after clause 17? I do not have it yet.
Senator Hubley: It has to do with amending Bill S-10 on page 9.
The Chair: Could we just wait a moment until I get a copy of the amendment? I understand it is a new clause, 17.1, so can clause 17 carry?
Hon. Senators: Agreed.
The Chair: Then you will put the amendment of 17.1. I just want to be sure. Does clause 17 carry?
Hon. Senators: Agreed.
The Chair: It is carried.
We will now move to your amendment; it will be 17.1.
Senator Hubley: I move:
That Bill S-10 be amended, on page 9, by adding after line 8 the following:
"17.1(1) Every person who commits, outside Canada, an act or omission that would, if committed in Canada, be an offence under this Act, is, if the person is a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a corporation incorporated under the laws of Canada or a province, deemed to have committed that act or omission in Canada.
(2) For greater certainty, section 130 of the National Defence Act applies in relation to this Act. ".
The Chair: Do you wish to speak to it?
Senator Hubley: Yes, I do. Just give me a moment on that, please.
The Chair: I have just read 17.1. You are trying to ensure that people outside of Canada are caught and you do not believe that section 17, as it stands now, is sufficient. Is that it?
Senator Hubley: That is correct. This will cover Canadian citizens and permanent residents outside of Canada and it makes sure that any Canadian citizen could not legally be involved in the use, et cetera, of cluster munitions while abroad. It covers off not only our Canadian military, but it covers all Canadian citizens.
The Chair: Is there any discussion?
Senator Wallace: Would your view be that the aiding and abetting provisions do not cover that situation?
Senator Hubley: I would like to make it perfectly clear.
Senator Wallace: Do you believe it is unclear?
Senator Hubley: I think it might be unclear; yes, I do.
Senator Wallace: I do not know that I agree with that. In any event, I think that circumstance is covered in the bill.
The Chair: Is there further discussion? Are we ready for the amendment?
Roll call again.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Marshall?
Senator Marshall: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: Yeas, five; nays, seven; abstentions, nil.
The Chair: The amendment 17.1 is defeated.
We go to clause 18. Are there any amendments? Is that correct, Senator Hubley, no amendments?
Senator Hubley: No amendments.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Senator Hubley: No amendment.
The Chair: Agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Senator Hubley: There is no amendment.
The Chair: Agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 23 carry?
It is a new clause, I have been told.
Senator Hubley: It is.
The Chair: Shall clause 23 carry as is?
Hon. Senators: Agreed.
The Chair: Now the amendment, Senator Hubley.
Senator Hubley: Thank you very much, Madam Chair. I move:
That Bill S-10 be amended on page 10 by adding after line 17 the following:
"ANNUAL REPORT
23.1(1) Within four months of the end of the each fiscal year, the Minister of Foreign Affairs, the Minister of National Defence and the Attorney General of Canada must jointly prepare a report on the implementation of the Convention and the enforcement of this Act, and the Minister of Foreign Affairs must cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which the House is sitting after the report is completed.
(2) The annual report must include a description of the progress made by the Government of Canada in relation to the following:
(a) the promotion of the norms established by the Convention;
(b) the encouragement of states that are not parties to the Convention to ratify, accept, approve or accede to the Convention;
(c) the notification of states with which Canada is engaged in military cooperation or combined military operations, but which are not parties to the Convention, of Canada's obligations under the Convention;
(d) the discouragement of states with which Canada is engaged in military cooperation or combined military operations, but which are not parties to the Convention, from using cluster munitions, explosive submunitions or explosive bomblets; and
(e) the deactivation, disposal and destruction of all cluster munitions, explosive submunitions or explosive bomblets possessed by Her Majesty in Right of Canada in a manner that protects the environment and human health. ".
The Chair: Discussion?
Senator Wallace: Senator, when I look at the list of what you are proposing be included, for the most part it seems to cover the issues that you have proposed in the previous amendments that were rejected. What you are talking about here is covered in the convention. Those are commitments that Canada has under the convention, but it seems to me you are back to detailing much of what was rejected in the amendments you proposed earlier that were rejected.
Senator Hubley: With all due respect, everything I have presented here tonight so far has been rejected. The annual report is something that must be for the benefit of both the House of Commons and the Senate. It is a report card of government and how they are interpreting and working with the convention. I think the annual reporting is a very important element in ensuring that, in fact, Canada is complying with both the spirit and the letter of the Convention on Cluster Munitions — the accountability, yes; that is a good word.
Senator Downe: Chair, what we are voting on here is not changing the legislation, as I understand; it is transparency in reporting. I am not sure we even need a vote. I am sure it will be unanimous.
Senator Stratton: Good try.
Senator Hubley: I came in here sure too.
The Chair: I rarely disagree with my deputy chair. I am very much for reporting. What troubles me is the form this is in, because you know the Senate put in a report about a process about annual international covenants and how they should be dealt with. This almost indicates a kind of reporting where you believe the government is not going to do it. It is almost: You have undertaken these, but we want to be sure you have done it.
While I believe that we should be transparent and the government should be accountable, I do not know; it is the first time I have seen it, and I am reticent to go there. I wish I had had more time to look at it. However, the process is not over, so I will reserve until later on my comment.
Senator Hubley: In terms of the commitment that Canada has made to the Convention on Cluster Munitions, how else do we, as legislators, find this out? I think it is important that the government inform us. The onus is on them to do that. I think the annual reporting is quite in order. It is an important addition to the legislation. For that reason, I certainly would like to see that included.
The Chair: I think the annual report is a good idea, but when I see things like that the government would have to say how they have encouraged non-states, we are right into a lot of delicate diplomacy that is often the type that you would not want to see in pages. We do a lot of work in camera, and we do a lot of work in diplomacy that is quiet diplomacy, and this would oblige everything to be put on the record. First, it would be a horrific task, because when you say "the Government of Canada, " we have a lot of embassies and they will all be involved in complying with this.
As I say, the sentiment, I am with. The actual paragraphs here are the ones that give me trouble because of where we are going. I lodge your intention; I am just not sure the practical steps are going to produce something that is achievable at all. If it is, it may violate a lot of other security and safety issues that we have to go into. I respect that you want to do it this way, and that is fine.
Senator Hubley: I certainly appreciate your comments. The things that we are asking the government to report on are the things that are established within the convention, so that these are the things they are required to do. All I am asking them to do is to tell us; tell us, in fact, what they have done in the process to abide by the convention. It is very specific, the things that Canada is required to do, and I certainly would like to know and have a report of that from the government.
The Chair: As I say, I do not disagree with your comment, but I am very worried about how that reporting could take place, when we have so many embassies, so many departments, so much military, and so many security issues. This is like a blanket that everything you do, wherever you do it, would have to be reported. It is the practicality of being able to deliver this.
I think the chair is being told that we want to go to a question. I will not say another word.
Senator Downe: Given your support for the intent of the motion, if the government members are reluctant to support the motion, the amendment as proposed, we would be willing, of course, to entertain some variation of it.
The Chair: I think it is the eleventh hour here. As I say, I had not seen it. I prefaced everything by saying that I really want to ponder this rather than agree to it. There is no agreement on this from me personally, but I think we can continue a discussion at some point.
Mr. Thompson: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Thompson: The Honourable Senator Dallaire?
Senator Dallaire: Yes.
Mr. Thompson: The Honourable Senator De Bané, P.C.?
Senator De Bané: Yes.
Mr. Thompson: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Thompson: The Honourable Senator Finley?
Senator Finley: No.
Mr. Thompson: The Honourable Senator Fortin-Duplessis?
Senator Fortin-Duplessis: No.
Mr. Thompson: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Thompson: The Honourable Senator Johnson?
Senator Johnson: No.
Mr. Thompson: The Honourable Senator Marshall?
Senator Marshall: No.
Mr. Thompson: The Honourable Senator Smith (Cobourg), P.C.?
Senator D. Smith: Yes.
Mr. Thompson: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Thompson: The Honourable Senator Wallace?
Senator Wallace: No.
Mr. Thompson: Yeas, 5; nays, 7; abstentions, nil.
The Chair: The amendment 23.1 fails, is defeated.
Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Shall the short title in clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Senator Downe: On division.
The Chair: On division.
Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Honourable senators, thank you. We have covered the bill and we have nothing further on our agenda for today. I remind you that our motion for our new study was passed in the Senate today, and so tomorrow morning we will commence our new study, with witnesses.
(The committee adjourned.)