Proceedings of the Standing Senate Committee on 
Foreign Affairs and International Trade

Issue 17 - Evidence - Meeting of October 30, 2014


OTTAWA, Thursday, October 30, 2014

The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill C-6, An Act to implement the Convention on Cluster Munitions, met this day at 10:34 a.m. to give consideration to the bill.

Senator A. Raynell Andreychuk (Chair) in the chair.

[English]

The Chair: Honourable senators, we're gathered today in committee to study Bill C-6, An Act to implement the Convention on Cluster Munitions. We have before us, from Foreign Affairs, Trade and Development Canada, Ms. Sabine Nolke, Director General, Non-Proliferation and Security Threat Reduction; from National Defence, Commodore Scott Bishop, Director General of Operations, Strategic Joint Staff; and Lieutenant-Colonel Chris Penny, Directorate of International and Operational Law, Office of the Judge Advocate General; and from the Department of Justice Canada, Mr. Christopher Ram, Counsel, Criminal Law Policy Section.

Before I go to the witnesses, I want to thank Senator Downe for chairing yesterday. The comment came back to me that he did such a good job that I thought my job was going to be in jeopardy. I thank you. It was necessary that I stay in Ukraine to complete the mission, and I appreciated the cooperation.

As to the witness who could not testify yesterday due to technical difficulties, Mr. Richard MacCormac, from Copenhagen, we attempted, this morning, to overcome the technical difficulties. Apparently, they continue to exist. His written remarks, however, are being translated and can form part of the record. I think his views were already known. I wanted the committee to know that we made our best efforts.

I think, Senator Fortin-Duplessis, you indicated that you wanted to make a comment or a statement after the witnesses?

Senator Fortin-Duplessis: Yes, after.

The Chair: Okay. Is there anything further the witnesses wish to state? Ms. Nolke?

Sabine Nolke, Director General, Non-Proliferation and Security Threat Reduction, Foreign Affairs, Trade and Development Canada: Thank you very much, senator. Honourable senators, I'm very pleased to have this opportunity to speak to you today about Bill C-6, the Prohibiting Cluster Munitions Act, which is an important and necessary step towards Canada's ratification of the Convention on Cluster Munitions.

Those familiar with the bill will recall that the draft legislation was previously Bill S-10. That bill was thoroughly reviewed by the Standing Senate Committee on Foreign Affairs and International Trade and adopted by the Senate in December 2012, before prorogation of Parliament. It was reintroduced as Bill C-6 in the fall of 2013. During House of Commons committee hearings, the government agreed to make one amendment to Bill C-6. The bill was subsequently adopted by the House of Commons as amended.

[Translation]

For those of you to whom the bill is new, please allow me to provide you with a bit of background. Cluster munitions have been used in more than 35 conflicts around the world since the end of the Second World War. Over 25 countries and other territories are thought to be contaminated by these munitions. Laos, Vietnam and Cambodia, for example, remain some of the most heavily contaminated countries in the world, decades after conflicts there have ended.

Cluster munitions are a major humanitarian concern. Some types can release large numbers of sub-munitions, over wide areas. When these sub-munitions fail to detonate as intended and remain on the ground, they pose a very serious threat to the civilians living in the area. Unexploded bomblets can kill and maim civilians long after conflicts have ended. Their presence also hinders the development of communities by rendering their land or infrastructure inaccessible.

Additionally, the cost of land clearance and treating the wounded pose a serious drain on scarce resources in countries already faced with post-conflict reconstruction challenges.

It was out of humanitarian concern that the international community decided to launch negotiations to ban cluster munitions in 2007. Canada has never used these weapons in its own military operations and has destroyed all of its stockpiles. Canada participated actively in the effort to rid the world of these weapons and signed the resulting Convention on Cluster Munitions in 2008.

[English]

The convention entered into force in August 2010, six months following the deposit of the thirtieth instrument of ratification. To date, 87 countries have ratified or acceded to the convention. An additional 27 have signed but not yet ratified it, including Canada. Most of our NATO allies have signed or ratified it, though some, including the United States, Turkey and Poland, have not.

The convention bans the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions. It prohibits states that agree to be bound by it from taking part in these activities and from assisting or encouraging anyone else to do so, and it obliges them to criminalize these activities in domestic law. Furthermore, it seeks to address past use by requiring clearance of contaminated areas, rehabilitation for victims of these munitions and, where possible, assisting affected countries in need.

Significant progress has already been made as a result of the convention. Eighteen states have ceased the production of cluster munitions — sixteen states parties and signatories to the convention, as well as two non-signatories. States parties have collectively destroyed 1.16 million cluster munitions and nearly 140 million sub-munitions. This represents the destruction of 80 per cent of cluster munitions declared as stockpiled by states parties. Thousands of square kilometres of land have been cleared of cluster munitions remnants.

Canada has assisted in these efforts. Since 2006, Canada has contributed more than $215 million to help countries affected by cluster munitions and land mines to clear land, provide risk education and rehabilitate victims.

[Translation]

The convention permits military cooperation and operations between states that are party to the treaty and those that are not. This is the so-called interoperability clause. From the beginning of the negotiations, Canada strongly supported the need to ensure that states parties could continue to collaborate militarily with states not party to the convention.

The interoperability clause was an essential compromise that allowed many countries, including Canada, to sign the convention. It ensures that Canada will be able to continue participating in multinational military operations with its key allies that are not party to the convention, particularly the United States, with which we enjoy a robust and vibrant military cooperation.

[English]

The convention requires a state party to give effect to the prohibitions it imposes on states by imposing certain criminal prohibitions on persons within its jurisdiction. Accordingly, Canada's proposed implementing legislation, Bill C-6, sets out a series of offences and the technical definitions needed to support their investigation and prosecution.

The proposed act also sets out some expectations to these general prohibitions. The convention calls for the use of criminal law, and criminal law is a blunt instrument. As a result, it was necessary to create some very limited exceptions to ensure that members of the Canadian Forces and associated civilians who are engaged in military activities that are specifically permitted by the convention, in particular those relating to the interoperability clause of the convention, will not be held criminally responsible for doing their jobs.

Bill C-6 implements those parts of the convention that require legislation in Canada. Other provisions are carried out by other means and not necessarily through legislative mechanisms. The obligation to advocate in favour of the convention's norms, for example, will be implemented through diplomatic channels, while programming is in place to provide assistance to states affected by cluster munitions.

The convention also requires states to do annual transparency reporting, which Canada has already engaged in on a voluntary basis for the last four years.

After listening to witnesses and parliamentarians, and after reviewing expert and legal advice, the government proposed an amendment to Bill C-6 to delete the word ''using'' from paragraph 11(1)(c) of the bill when it was being considered in the House of Commons last year. It was always the intention to have the Chief of the Defence Staff prohibit actual use, so the amendment is not a policy change, but codifying the policy responded to some of the concerns that had been expressed. This is the only change to the text that was originally introduced in the previous session as Bill S-10 and then reintroduced in the present session as Bill C-6.

The amendment was supported by all parties in the House of Commons Standing Committee on Foreign Affairs and International Development, and the bill was subsequently adopted by the House of Commons as amended.

This bill, if enacted, will enable Canada to ratify the Convention on Cluster Munitions and take its full place among the growing number of nations intent on eliminating the use of these weapons.

I thank you for your attention.

The Chair: Thank you.

Commodore Scott Bishop, Director General of Operations, Strategic Joint Staff, National Defence: I'm pleased to be here with Lieutenant-Colonel Chris Penny from the Office of the Judge Advocate General. We're here to discuss the role of the Department of National Defence and the Canadian Armed Forces in supporting Canada's efforts to ratify the Convention on Cluster Munitions.

Madam chair, the Department of National Defence and the Canadian Armed Forces are committed to the object and purpose of the convention and to implementing all of its provisions. In this context, it is important to note that we have never used cluster munitions in any of our operations. Moreover, we have already fulfilled Canada's future stockpile destruction obligations under the convention, as we completely destroyed our remaining stockpiles in July 2014.

The Convention on Cluster Munitions itself strikes a necessary balance between humanitarian considerations and national security imperatives, and Bill C-6 reflects this negotiated balance. Bill C-6 was written in a clear and unambiguous way that ensures that Canadian Armed Forces understand the convention's obligations and its permitted exceptions. In particular, direct use of cluster munitions during Canadian Armed Forces operations or by Canadian Armed Forces personnel will be banned, without exception.

At the same time, as permitted by the convention itself, Bill C-6 protects and preserves the ability of Canada and the Canadian Armed Forces to continue to work with key allies that have not yet joined the convention. This continued cooperation with non-party states — this concept of interoperability — enhances our national security by providing a wide range of collaborative opportunities, such as exchange positions, sharing of intelligence, the conduct of joint exercises, combined operations, and the placing of Canadian Armed Forces officers in command and in other key leadership positions during coalition operations.

This is particularly important in light of our valuable and unique relationship with the United States, which continues to be our most important ally and defence partner. However, the preservation of interoperability will also be important should the Canadian Armed Forces enter into multinational operations with other allies who have not yet joined the convention, allies such as Israel, Poland, Turkey and South Korea.

Bill C-6 is criminal legislation. If you violate it, you can be prosecuted. In this context, it is vital that our men and women in uniform, and the civilians working alongside them, are not unjustly accused of criminal conduct when doing what we ask of them in the interests of our national security and defence. Bill C-6 thus affords them the legal protection that they may need to do their job, as permitted by the convention itself.

For example, under the convention and Bill C-6, Canadian Armed Forces personnel on operations can continue to ask for potentially life-saving military assistance from our allies, be they parties to the convention or not, without the fear of being disciplined or put on trial for the policy decisions of these other states.

In situations where the Canadian Armed Forces have the exclusive choice of munitions to be used, however, our personnel will be prohibited from expressly requesting the use of cluster munitions.

Effective interoperability with states not party to the convention may require a wide range of other activities that might be considered ''assistance, encouragement or inducement'' of prohibited conduct, for example, developing an operational plan, sharing intelligence, providing logistics support, refuelling operations, or even providing air traffic control services.

Article 21 of the convention was negotiated precisely to ensure that such activities would not be permitted and section 11 of the bill establishes corresponding legal protections for individual military personnel and government officials.

It is important to underline that nothing in the interoperability provisions of the convention, or within Bill C-6, detract in any way from Canada's existing obligations under international humanitarian law. The Canadian Forces and its personnel will, at all times and during all operations, remain bound by these obligations, including the prohibition on authorizing, assisting or participating in an indiscriminate attack, including one that uses cluster munitions, whether they are acting on their own or in concert with foreign partners.

In 2008, as evidence of Canada's commitment to the Convention on Cluster Munitions and upon our signature to it, the Chief of the Defence Staff issued a directive prohibiting the use of these weapons in any Canadian Armed Forces operation. As we move forward, the Chief of the Defence Staff will issue another directive, which will reflect all of the requirements of Bill C-6, as ultimately adopted by Parliament. This directive will also formalize the policy decision to prohibit two additional activities that are not prohibited by the convention. The Canadian Armed Forces will prohibit its members from training and instructing in the use of cluster munitions even when on exchange with another state's armed forces. As well, it will prohibit the transporting of cluster munitions aboard carriers belonging to the Canadian Armed Forces or under its direct control. Violation of this directive may give rise to individual penal sanctions under the National Defence Act.

Moreover, this directive will be reflected in relevant Canadian Armed Forces rules of engagement, which are communicated to allies when Canada enters into military cooperation with them. These rules are developed according to Canadian legal and policy requirements, including all relevant Canadian obligations under international law, and may be more restrictive than coalition rules of engagement.

The Department of National Defence and the Canadian Armed Forces strongly support the Convention on Cluster Munitions and we believe this agreement highlights the importance of international cooperation for the defence of Canada and for the creation of a more secure world.

Thank you.

Madam Chair, my lawyer was just pointing out that I misread one line in my statement, and it's important that I put this on the record to correct it. What I was meaning to say is that Article 21 of the convention was negotiated precisely to ensure that such activities would not be prohibited, and section 11 of the bill establishes corresponding legal protections for individual military personnel and government officials. My apologies for that.

The Chair: Thank you. Now we'll turn to Mr. Christopher Ram, from the Department of Justice Canada.

Christopher Ram, Counsel, Criminal Law Policy Section, Justice Canada: If I may say, it's good to be back. As the Justice counsel on this bill, I'll try to explain as briefly and painlessly as I can what the bill actually does and the structure of the bill. It has been suggested to me that I take a couple of extra minutes and try to explain some of the issues with respect to aiding, abetting and investment that were raised in prior testimony, if that suits. It might save the committee time as you proceed.

International treaties that only create international law obligations for states parties don't normally require any legislative enactments in Canada. Bill C-6 is only needed for the Oslo convention because Article 9 requires us to extend some of the obligations that it imposes on states parties to persons or organizations within Canada who are subject to Canadian law but not subject to international law. So there are two layers here.

The convention tells Canada itself not to develop, produce, stockpile or transfer cluster munitions, and it also tells us to use Canadian penal law to ensure that persons or companies within Canadian jurisdiction don't do any of the same activities. It tells Canada not to do other things as well, but those obligations are imposed on Canada itself as a state party and they don't require legislative implementation, the obvious example being stockpile destruction, but there are others — reporting, for example.

The primary purpose of Article 9 in the convention is not to regulate what Canada does or what the Canadian Armed Forces do. It's to make sure that individual Canadians and Canadian companies who are not part of the state, the obligation on Canada as a state, don't engage in the same prohibited activities that would effectively circumvent the treaty. For example, it ensures that Canada's private sector cannot engage in developing or manufacturing, even in collaboration with other companies in other countries where that might not necessarily be illegal. It also makes sure that states parties cannot technically meet their obligations by simply transferring their stockpiles to the private sector. By privatizing a stockpile, it's no longer in the possession of the state. It's in possession of somebody who is not a state and therefore not covered by the convention. That was one of the concerns.

Clause 6 of the bill is also drafted to go beyond what Canadian law normally does and ensures that it will be a completed offence within Canada to aid, abet, counsel or conspire to commit any of the prohibited activities if the person who does the aiding and abetting and so on is in Canada, but the primary activity itself takes place in another country where it's not illegal. That is not the normal situation with Canadian law and that's why aiding and abetting is dealt with specifically in the bill.

The language of the bill tracks the meaning of the convention but not necessarily the same terminology. As criminal law, it has to be interpreted by Canadian courts in proceedings where the accused person has Charter rights and the burden of proof is always on the Crown. A judicial decision that narrowed or struck down any of the offences would affect Canada's conformity with treaty obligations, so it is important to ensure that the intention of Parliament will be made clear to Canadian courts using Canadian criminal law concepts and language. The statutory offence of possessing a cluster munition covers the convention prohibition on stockpiling, for example, and also extends to the possession of individual sub-munitions that would not necessarily be a stockpile.

The structure of the bill includes definitions transposing the convention language into Canadian law in clause 2. The items that are defined in clause 2 are then prohibited in elements of the prohibitions in clause 6 and then the activities relating to those items are made criminal offences by clause 17. The exceptions permitted by the convention are excluded from the prohibitions and offences by clauses 7 through 12. The remaining provisions of the bill are technical provisions that allow for delegated powers to regulate some of the permitted activities, governing the seizure, forfeiture and disposal of prohibited munitions, and requiring the minister to amend the schedule — the convention is a schedule to the proposed legislation — if the convention is amended in the future.

The convention is a schedule and it's attached to the bill as an interpretive aid, but it has to be clear that it does not become Canadian law when the bill is enacted. Any future change to the convention — if a future change to the convention requires changes to Canadian law — would require another bill. If there's a change to the convention that does not necessarily require amendments to Canadian law, the states parties can amend the convention but only Parliament can amend the legislation, essentially. So the changes to the treaty that don't require legislation would be tabled in accordance with the treaty policy but not the subject of legislation.

To deal with the general issues of aiding and abetting and investment, as I said, as briefly and painlessly as I can: Clauses 6, subparagraphs (e) to (h) enact specific offences for aiding, abetting, counselling, conspiracy, and being an accessory after the fact to any of the offences. That ensures, as I said in my remarks, that there will be a completed offence in Canada even if the primary activity is outside of Canada, it is not an offence. That's an important difference because if that wasn't done in the bill, the Criminal Code provisions would be applied by the Interpretation Act and that would not be the case. If three people in Canada conspire to commit a bank robbery and the bank robbery happens in a country where the bank robbery is not a crime, then it's not a Canadian crime either. This bill reverses that and it's a particular concern here obviously with investment. If there's investment in Canada in a company offshore that amounts to aiding and abetting, then it will be subject to the Canadian criminal law under the bill.

In terms of the questions that were raised about aiding and abetting itself and why not speak to the question of investment directly, aiding and abetting is broader than targeting investment. The aiding and abetting provisions are also intended to cover other forms of aiding and abetting.

A good illustration of that would be if I designed a cluster munition on my computer in Ottawa and emailed the plans to a company somewhere else where it was lawful to make them, I would either be aiding and abetting, and I might actually be participating in the making. It's clear, the way the bill is structured, that that would be covered, as long as I did the aiding and abetting within Canada.

On the other hand, aiding and abetting is not intended to cover every possible scenario of investment. If we wanted to target any conceivable investment scenario, we would have had to define investment, we would have had to narrow it for Charter purposes and so on to make the offence enforceable and would have ended up with something pretty much like aiding and abetting. By using aiding and abetting, and instead we bring in all of the case law on that, it gives certainty both for prosecutors and for the investment community. It's very easy to determine what is or is not aiding and abetting.

Essentially, if someone invests or does anything else with the knowledge and intention to either assist someone in making, for example, cluster munitions or is willfully blind that that would happen, then they would be subject to liability. Again, if they do the investment in Canada and the company is offshore, they would still be covered the way the bill is structured.

There was a question raised about subclause 17(3) with respect to conspiracy, but this applies to all of the other forms of indirect liability as well. It excludes conspiracy and the other elements from this bill, only because the bill deals with them specifically. Otherwise, both the Criminal Code and the elements of clause 6 would apply. But conspiring to do this is clearly an offence and that's why it had to be excluded in clause 11 as well.

I believe that covers everything that was raised, Madam Chair. I can respond to other things during the course of questions.

The Chair: If I can get a couple of clarifications. Aiding and abetting, you're talking about investment, but aiding and abetting can be used in the act beyond the investment.

Mr. Ram: That's correct. Again, if I helped somebody offshore or encouraged somebody offshore to make one, it wouldn't necessarily be by giving them investment funds. It might be by something else.

The Chair: Basically you're saying we don't know what they would do.

Mr. Ram: That's right.

The Chair: We want the words ''aiding'' and ''abetting.''

Mr. Ram: The convention requires us to deal with assistance. It doesn't mention investment, it says ''assistance.'' It wouldn't matter how I assisted. There are a lot of ways you could assist someone in making cluster munitions that wouldn't amount to investment.

The Chair: Now you're saying that section 17(3), the conspiracy sections, are specific in the act and therefore you're not drawing them from general law in Canada. If that's the case, would we be able to use the decisions on conspiracy as instructive for this section, or would we be following international conventions and their interpretations of conspiracy?

Mr. Ram: Canadian case law would apply. There's confusion sometimes, and there has been on this bill and other treaty implementing bills, because some of the people who look at them are not Canadian lawyers and they tend to apply treaty interpretation rules to what are effectively Canadian legislative provisions. There's a fundamental difference between a clause and a treaty that tells Canada not to assist other countries and a provision in a Canadian offence provision that says people and organizations within Canada must not aid or abet. It's a completely different interpretive framework.

The way clause 6 is worded, it uses essentially the same language as the conspiracy and aiding and abetting provisions of the Criminal Code, and it is intended to incorporate all of the relevant case law. That's the reason for using it. It gives certainty. In the case of aiding and abetting, it will invoke about 140 years of Canadian and English case law.

The Chair: Thank you.

Senator Fortin-Duplessis, you said you wanted to make a statement or clarification after the witness finished.

[Translation]

Senator Fortin-Duplessis: First of all, thank you for appearing before us this morning and for providing answers to all the questions that the people who have appeared before us might have had.

Even though you spoke about it in your statements, I need a clarification. On the one hand, the Government of Canada has stated that the convention would ban cluster munitions even when our armed forces are collaborating with other states that are not party to the convention. On the other hand, the bill proposes certain exceptions for activities during which cluster munitions are used.

Could you please explain the difference for the benefit of the committee? Because I want it to be very clear when we have to answer questions about this.

Ms. Nolke: Thank you for your question, senator. I will turn things over to my colleague from the Office of the Judge Advocate General.

[English]

Lieutenant-Colonel Chris Penny, Directorate of International and Operational Law, Office of the Judge Advocate General, National Defence: Thank you. There is considerable nuance here, and I'll walk through it. The convention does prohibit Canada from using cluster munitions, and Bill C-6 clearly entrenches that prohibition on the use of cluster munitions by members of the Canadian Forces. But the convention and the bill also permit Canada to continue to cooperate militarily with other countries that are not parties to the convention, in operational and other scenarios that might involve their use of cluster munitions.

Canadian Armed Forces will never use cluster munitions in any military operation. That is, they will never directly drop, fire, launch or otherwise deliver munitions themselves in any operations, whether acting alone or in concert with other states. However, they can still take part in military operations that do involve the direct use of cluster munitions by other states.

The references to ''use'' in paragraphs 11(1)(a) and 11(1)(b) concern the physical use of cluster munitions by persons who are not subject to the legislation because they are officials or military personnel of another country whose laws allow them to do so. That would also apply to the provisions of 11(3) which relate to the use of cluster munitions by others who are permitted to do so. The exceptions in those paragraphs provide legal protection for Canadian Armed Forces personnel and other government employees in those circumstances where they are involved in various specified activities, such as directing or authorizing the activities of those other states during military cooperation with states that may themselves lawfully use cluster munitions. Those exceptions do not relate to the direct use of cluster munitions by Canadian Armed Forces members. They relate to the direct use of cluster munitions by other states.

In contrast, 11(1)(c), related to the direct use of cluster munitions by Canadian Forces personnel themselves while on exchange or secondment, an activity that the Canadian Armed Forces was not going to engage in at any event. There are fundamental differences between that reference to use and the references to use in 11(1)(a), 11(1)(b) and 11(3).

[Translation]

Senator Fortin-Duplessis: Lieutenant-colonel Penny, you are saying that Canadian commanders cannot order the use of cluster munitions when they are on a mission with other foreign countries, whether they are party to the convention or not. But you also explain that there are certain exceptions in certain conflicts when other countries are in charge. Could you please be specific about these exceptions that would allow a soldier to use cluster munitions or to be involved with their use in some way?

[English]

Lt.-Col. Penny: With respect to the various exceptions, 11(1)(a) would apply in circumstances where a Canadian Forces member is in a command position or in a position of authority in a multinational operation involving other states that may use cluster munitions. There may be circumstances where an individual in that position is called upon to authorize the use of cluster munitions by members of the armed forces of a state that isn't a party to the Convention on Cluster Munitions.

Because of the nature of combined military operations, there may be numerous situations, whether at the command level or at a lower level, as a staff officer, where activities of a Canadian soldier might be seen as directing or authorizing the use of a cluster munition. For example, a commander signing an air tasking order that relates to the military activities of non-party states to the convention could be understood as authorizing or ordering the use of cluster munitions. However, the decision to have used those cluster munitions would be a decision of the state that is not a party to the convention, and it would be something that they would continue to be lawfully able to engage in.

[Translation]

Senator Robichaud: I would like to say to the witnesses appearing before the committee that there are so many nuances. If I have understood correctly what you said earlier, directives will be given to Canadian Armed Forces commanders indicating that they must never use cluster munitions. Did I understand that correctly?

[English]

Lt.-Col. Penny: Canadian Armed Forces members will never be permitted to use cluster munitions. That is, no Canadian Forces pilot will ever drop a cluster munition. No Canadian Forces artillery officer would ever fire cluster munitions. Command scenarios, whether in command of an entire operation or within a multinational command structure, would be different. That wouldn't involve the direct use of cluster munitions, but, pursuant to Canadian law, it might be seen as aiding and abetting or, conceivably, could be seen as indirect use.

The convention was drafted recognizing the difficulties of capturing indirect use of that nature because of the nature of combined operations and the requirement of many states, including Canada, to maintain command and influence in larger multinational operations.

Senator Robichaud: Yes, but I have a problem. You say it would be indirect, but he would be directing, at the urging of a non-party nation, the use of cluster munitions. How indirect is that? He's going to ask for them.

Lt.-Col. Penny: The way, for example, in an air operation, that that would frequently work is that target selection would be made at the multinational level, where specific targets might be identified. Individual states within that command structure would then indicate which targets they are going to address and how they are going to do that, that is, potentially, what type of munitions they are going to use. That would be a decision by those states, in accordance with their policy and in accordance with their legal obligations, but, because of the nature of multinational operations, those various national decisions would still be coordinated at the central level and signed off by either an air component commander or the combined force commander in an air tasking order.

So, technically, it would be seen as authorizing or, potentially, as an order, but the actual decision to use those munitions would not be within the exclusive control of Canada. That's where the difference is between clause 11(1)(a) and (b) and 11(1)(c), where it's also not Canada itself that is making the decision to use cluster munitions. It is still a decision of the non-party state.

Senator Robichaud: If I may, just one more supplementary: You say the nations will decide. If I'm in there, as a Canadian, and say, ''We cannot use those,'' what kind of influence do I have not to use those?

Lt.-Col. Penny: Article 21 is a collection of various obligations, some of them positive, including the obligation to discourage use by other states. That obligation does not apply to individual military personnel at that sort of operational or tactical level. That was intended to apply at the government-to-government level, at the outset of operations or military cooperation. So Canada, when it engages in operations with other states, would indicate to them that we have obligations under the convention not to use cluster munitions, and we would encourage other states not to use cluster munitions.

The decision of those states either to continue to use cluster munitions or not will rest with those states. So it is only in circumstances where those states, within a sovereign national decision, choose to continue to use cluster munitions that the other obligations would apply. Then there would be exceptions relating to potential direction or authorization of their activities, which was something that was foreseen when the convention was drafted. Because of the nature of combined operations, it's extraordinarily difficult to carve off Canadian activities in a bubble in relation to the activities of other states. So there was the need for substantial legal protection for the activities of commanders and for the activities of individual military personnel in situations where those other states would continue to use cluster munitions lawfully.

The Chair: Ms. Nolke, you wanted to add something?

Ms. Nolke: Actually, I wanted to invite Commodore Bishop, who has an additional point, and Mr. Ram, from the Department of Justice, to make a couple of supplementary points on this very tricky and complex issue.

Commodore Bishop: Senator, I would just add that, when Canada is about to enter into a coalition with other nations, we would advertise, at the very beginning, to all of our coalition partners, that Canada will not use cluster munitions. To get specifically to your point, it's important to note that no Canadian officer in any leadership position in the coalition would ever be able to specifically ask that a target be targeted with cluster munitions. That's definitely prohibited by the convention. But a lot of the targeting, how weapons are assigned to specific targets, would not necessarily be done by a Canadian officer in a leadership position. When those targets were targeted or weaponized by a coalition partner with cluster munitions and that was what was rolled up in the air tasking order, if the Canadian was the officer who authorized the air tasking order, then he would be able to do it.

As to the comment that you made earlier about saying, when we believe there's a prospect that cluster munitions might be used in a coalition, that we can no longer participate, it would be really problematic for us, working in a multinational coalition, in a command structure, to essentially stop what we're doing and back away and refuse to participate in bits or pieces of the coalition. That would be very difficult for us to do in practice.

Senator Robichaud: But, if I may, if the other partners know, from the beginning, that you will not, under any circumstances, engage in the use of those weapons, what's the complication there?

Commodore Bishop: As Lieutenant-Colonel Penny said, a Canadian Forces airplane will never be dropping cluster munitions.

Senator Robichaud: I hope.

Commodore Bishop: We make that perfectly clear. No Canadian artillery officer will fire artillery rounds that have a capability for cluster munitions. What we're talking about is being interoperable with our key allies so that we can continue to conduct military operations around the world in support of Canada's defence interests in a way where we can be full partners in the coalition. That's what the interoperability clause is striving to do.

The Chair: Mr. Ram, you were going to add something?

Mr. Ram: Very briefly, Madam Chair, just to remind you that we are essentially trying to apply what my colleague from Foreign Affairs described as the blunt instrument of the criminal law to complex military operational scenarios. In criminal law, we create offences. To take conspiracy as an example, conspiracy is intended to cover a group of people agreeing to rob a bank. It's also intended to catch the board of directors of a company that is making cluster munitions, assuming the facts are there. However, we have to make sure it doesn't apply to a group of military officers who are designing an operation that might include cluster munitions because some of them come from a country where they might be used.

Again, to use conspiracy as an example, if a group of people are conspiring to commit a crime and one of them doesn't agree with it, the law expects him to opt out. If you continue, even if you disagree with the consensus of the group, you would still be a co-conspirator; you would still be liable. Criminal law is designed to create fairly seamless liability as between aiding, abetting, counselling, attempting, and so forth, so that if it isn't one, it will be the other. It's difficult for us to predict with any real certainty how this is going to apply to all sorts of complex military operations. The convention has directed us to use penal law to implement this provision which has required us to be extremely careful in the drafting so that we get the board of directors but not the targeting committee, or whatever.

If I may correct something I said earlier, Madam Chair, I confused and combined two different provisions of the bill. Clause 17(3) of the bill excludes the Criminal Code provisions for aiding and abetting and so forth so we don't get double application. Clause 11(3) does what I just described. It says essentially that while the board of directors would be caught by the conspiracy provision, it is not an offence for the Canadian participant who conspires, aids, abets, or whatever — fuels the airplane, for example — if it's not an offence for the primary actor under his law. That's the provision that opts out the Canadian military participants, for example, from the offences that would catch the board of directors.

The Chair: So I don't get myself more confused, I want to go back to Commodore Bishop. I understand the convention recognized that some of our allies were not giving up cluster munitions. We, who were in the coalition and who wanted absolute prohibition of cluster munitions, didn't win. The world did not say ''no cluster munitions.'' So some countries continue. Some of them are our allies.

Am I understanding that if we go into a theatre of operation somewhere — name whatever country — and we go in with a coalition knowing that some of them have cluster munitions, our commanding officers may say ''We're going to attack these targets,'' but then there will be a portion by all the countries as to who's going here and who's going there. We will implicitly know that they may use cluster munitions because they have access to them, but we will not be commanding them to use them or to drop them; is that correct?

Commodore Bishop: That's correct. We will never be in a position where we will tell a coalition partner that we want that target attacked and we want you to use cluster munitions. We will never be in that position.

The Chair: In fact, we're prohibited from doing that.

Commodore Bishop: Exactly. But if we say that we need this target to be engaged and a country not a party to the convention decides the best way to deal with that target is to use a cluster munition, then we would not be in a position, nor would we want to be in a position, to prevent them from using those cluster munitions.

The Chair: But we wouldn't be in a position to be able to prevent them because we're in a coalition.

Commodore Bishop: No, because of the interoperability issue. If we took a hard stance on this, the ultimate impact is that we would not be put in positions inside a coalition where we had any kind of leadership or any kind of authority to direct or influence operations. That's why it's critical for us and for our national security interests that we have this interoperability clause. If you can't be fully interoperable with a key ally like the United States in the planning and conduct of an operation, the United States will not want us at the table.

The Chair: Or we may choose not to go into it knowing that may be a consequence. We're at that level of decision making.

Commodore Bishop: Yes, and I think that is a decision as well within the remit of the Government of Canada to consider when it chooses whether or not to use the military in an operation. Once the government has decided that we're going to participate in a multinational military operation, then we really need the interoperability clause in this bill to be present to protect all those officers and senior non-commission leaders in a coalition staff from any kind of criminal responsibility for essentially doing what the government has sent us to do.

Lt.-Col. Penny: To follow up briefly on that, the convention and the domestic legislation together prohibit Canadian Forces members from ever directly using cluster munitions. They also prohibit them from expressly requesting the use of cluster munitions when Canada has exclusive control over the munitions that are used: That's the way the convention is structured; that's the way the bill is structured.

There may be circumstances in a combined operation, as the commodore has discussed, in those leadership positions, where those activities are seen under Canadian law as directing or authorizing activity. That is, despite the discouragement at the outset of operations and despite not specifically requesting munitions, the law might still see it that way.

There are two important nuances with respect to this legislation that I think should be noted. First, the legislation does not authorize any activity at all. This legislation only establishes criminal prohibitions and exceptions to those prohibitions. What is specifically authorized in any given circumstance, in any given operation, will be a policy decision of the Government of Canada and the Canadian Armed Forces. So it's not a blanket authorization to do anything; it's simply a defence against criminal prosecution for those activities.

Second, it is important to note that there's absolutely nothing in this legislation that changes in any way the other legal regimes that apply to members of the Canadian Armed Forces. That is, the law of armed conflict obligations not to engage in or to knowingly assist an indiscriminate attack — all of those obligations — continue to apply whether or not this legislation is passed. No Canadian will ever be engaged in those types of activities and the bill doesn't change that.

Senator D. Smith: I'm going to ask a question in broad, general terms. Whoever wants to respond can do so. We have had submissions from a number of groups that are monitoring these issues and are quite familiar with them. I'm sure you've seen some of their submissions and have probably looked at them quite closely.

Everyone agrees that legislation is necessary to implement the convention, but none of them feels that this goes far enough. I think they feel it's out of date and doesn't go quite far enough to implement the things we feel committed to. When the issue of what would be the role model for legislation that would meet those criteria arises, without exception they refer to New Zealand. New Zealand, of course, is a fellow member of the Commonwealth. We're signatories to different organizations and we get along quite well with New Zealand. How closely have you looked at the New Zealand legislation and what problems it would cause? They're also an ally of the United States, but the United States is not a signatory of the convention and will never be.

Do you think there are problems in the New Zealand legislation that are causing difficulties between New Zealand and the Americans? Without exception, all of those who have made submissions think there's a piece of legislation that has been implemented and does the right things, achieves the right goals and doesn't seem to be causing any problems between New Zealand and the United States. What response do you have to that sort of broad overview?

Ms. Nolke: I don't claim to be an expert on New Zealand law, but there is a fundamental difference between New Zealand and Canada when it comes to interoperability with other states.

The defence relationship between Canada and the United States is the closest on the planet today. The number of Canadians embedded in the United States forces on any given day that might be exposed theoretically to some application of this legislation is far more extensive than the New Zealanders would have had to contemplate when they drafted their legislation. It's a question of the close links between the two militaries and our knowledge that our closest ally is not at this point in a position to or wish to become a party to the convention that has led us to draft the convention in such a way as to contemplate the engagement of Canadian officers with that state.

I turn to Commodore Bishop to give a very brief rundown of how close our links are with the United States that have essentially made it necessary for us to contemplate these small exceptions.

Commodore Bishop: I emphasize that by saying that on an ongoing basis we have many officers serving in the United States and around the U.S. combatant commanders' headquarters around the world.

If you look back over our history of operations over the last few decades, it's pretty easy to note that the United States is a key member, if not a leader, of any coalition that we participate in. It's really important for us to be in those coalitions when Canada decides it wants to be in those military operations and that we have positions from which we can exercise Canadian leadership, and also help to influence and shape the direction that the military campaign is taking. From my standpoint, that's the key element in this question of interoperability is that we need the ability to work within a U.S.-led coalition and be able to have positions in the coalition where we have a voice.

Senator Johnson: Given that we're talking about the United States right now, would you then address this matter of the U.S. Air Force moving gradually to phase out procurement of cluster munitions from its arsenal and achieve a complete stop by 2018? They're looking at cast ductile iron warheads. Perhaps you can enlighten us on that. You're talking about the small exceptions we're doing due to the U.S. relationship. We respect our American relationship, but at the same time they are working on this. Does that not make any difference? Given that our closest ally is trying to do this, wouldn't that be a huge factor going forward?

Lt.-Col. Penny: I can comment briefly on that. There are states, including the United States, which are not currently parties to the convention.

Again, I don't want to speak for the United States, but it has indicated that it has concerns with cluster munitions and has adopted a technical solution to address those concerns, targeted primarily at the failure rate of the sub-munitions of the cluster munitions that it has in its arsenal. That's, I believe, the policy that you're speaking of.

Senator Johnson: I'm speaking of the cast ductile iron warheads that defuse differently. They're working on this. My information says these bombs essentially defuse thousands of pieces of shrapnel in mid-air without leaving behind unexploded balls that kill or maim civilians. I'm saying that if they're working in this direction to eliminate cluster munitions, is this not a reality?

Ms. Nolke: That is consistent with information that we have. However, this is 2014. What that means, and the effect this will have on the legislation, is that access to these exceptions is going to be evermore rare.

At this point it's a protective provision to protect members of the Canadian Armed Forces from being potentially exposed to liability. The need for that protection will reduce gradually. I think that is the net effect.

I think my colleague from Justice has additional remarks as well.

Mr. Ram: First of all, following up on that, countries that don't have the sort of defence-cooperation relationships that we have are freer to implement an absolute prohibition, no exceptions. That clearly conforms to the convention. You don't have to have exceptions. We require them. The bill has been structured so that they're limited to cooperation with at least one non-party state. That's effectively what we lawyers would call a class-closing rule.

As more and more countries ratify the convention, the scope of our exception becomes narrower. It isn't even necessary for Parliament to amend the bill in the future. The exception can never apply. As soon as all of our defence partners are onside with the convention, then the prohibition effectively will become absolute without further amendments. The bill is intentionally designed to accomplish this.

On the question of New Zealand law, because it was raised yesterday, the New Zealanders did, I believe, address investment specifically. But as an illustration of the perils of relying on foreign law, New Zealand is not a federation. It doesn't have provinces that have a property in civil rights competence and it doesn't have the kind of split jurisdiction over regulating things like investment that I think some honourable members of this committee would know probably more about than I.

It was probably a lot easier for them to address investment because they have only one legislature that has control over the subject matter.

The Chair: Senator Johnson, was that it?

Senator Johnson: Yes. Especially given that we won't have to revisit this again in terms of the amendments.

Senator Robichaud: Ms. Nolke, you said this bill was to make sure that Canadian soldiers are not liable for the use — you didn't say that?

Ms. Nolke: No.

Senator Robichaud: To reduce the liability of the government. Would you say that again?

Ms. Nolke: Yes. Permit me to clarify, senator. Within the very limited exceptions contemplated in Article 11(a) and (b) of the convention, that's where the protection against liability arises. That's the only exception. Otherwise they're covered by the use provisions. They are covered by all of the prohibitions that are in the convention.

Senator Robichaud: I understand that part.

Mr. Ram, you said there are nuances. Don't lawyers make a living out of clarifying or clouding nuances? Legislators, too, according to my colleague Senator Dawson.

Mr. Ram: I would describe my job as trying to achieve as much certainty as we can. We're taking the provisions of a treaty that is intended to address states as such in international law and transpose some of what it says into Canadian criminal law, which applies by different rules under the Charter and so on to individuals, and obviously for which individuals can go to jail.

It's important to remember that the bill doesn't excuse anything. It doesn't permit anybody to do anything that they could do before. First and foremost, it makes it a crime to use cluster munitions, to possess cluster munitions in Canada.

Someone raised the question yesterday about other countries stockpiling in Canada. You can't do that. Any cluster munition in Canada is in someone's possession and they can be prosecuted for this. Then we take a much narrower set of scenarios, as clearly and certainly as we can, and opt those out of the offences created by the bill in order to permit the military cooperation we need to have.

Senator Robichaud: We're trying to do the same thing you are, but with a different point of view. I appreciate what you're trying to do.

Commodore Bishop, in your opening remarks you said Canada has never used cluster munitions. Were we part of operations where cluster munitions were used?

Commodore Bishop: I can't say definitively, but I would guess that, yes, probably we were in coalitions where at some point cluster munitions were used. I think that's entirely plausible, but I don't know for certain.

Senator Robichaud: Lt.-Col. Penny, you seemed to nod that, yes, we have.

Lt.-Col. Penny: There are operations in which Canada participated where other states used cluster munitions. That's one of the issues that we can see going forward as well. Kosovo, the first Gulf War, Afghanistan all involved the use of cluster munitions by some of our allies. So there is a real risk that future operations may too involve the use of cluster munitions by various allies.

Senator Robichaud: My problem is when you use those cluster munitions that are indiscriminate, they kill anybody; when they fall, they go all over the place. It's the families and the children down there that pay the ultimate price. What kind of pressures are we putting on the non-members, the non-signatories to this convention, to make them understand that this is the worst kind of ammunition that can be used?

Lt.-Col. Penny: In a narrow context, first, and then I'll move more broadly. In the context of the fight against ISIL, there are various states in the region not party to the convention. Turkey would be one of them, and the United States as a coalition partner would be another. But there are other regional states that aren't parties.

But I would stress, going to the concern that you have about individuals on the ground, civilians on the ground, that there is nothing in this legislation that would permit a Canadian Forces member to engage in an indiscriminate attack or to knowingly assist with an indiscriminate attack by another state. So it's a narrower subset of potential assistance than assistance with any use of cluster munitions by anyone, anywhere. That's clearly not what is being contemplated here, and that's not what Canadian law would generally permit.

The exceptions apply to the prohibitions in the bill, but as I mentioned, other law of armed conflict obligations place considerable restrictions on the potential to support the use of cluster munitions by other states.

More broadly, Canada, as a future party to the convention, will have a legal obligation to discourage the use of cluster munitions by states at the outset of any operation like this, and that would be engaged in with diplomatic pressure and simply noting expressly the restrictions placed on us and our desire that our allies not use cluster munitions. So that diplomatic pressure is an obligation as a convention party. You can see, I believe, the stigmatization of this weapon already through that sort of discouragement. As more states either ratify the convention or stop using cluster munitions for other reasons, the effects of these exceptions will narrow and narrow. They only apply in circumstances where other states continue to use them.

Ms. Nolke: It's a question of diplomatic advocacy, really. Of course, Canada's hand to engage in this type of advocacy would be strengthened significantly once we become an actual state party to the convention, hence the importance of the bill. Essentially, it's a process that feeds on itself. The more parties to the convention, the stronger, as Lieutenant-Colonel Penny said, the stigmatization. We are already engaging in remedial activities to remove cluster munitions from affected states. Again, that's a very strong point that shows Canada's stance against these particular weapons, these particular munitions.

[Translation]

Senator Robichaud: I still have many questions, Madam Chair, but I thank you and I thank the witnesses.

[English]

The Chair: Thank you to all of the witnesses.

Senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-6, An Act to implement the Convention on Cluster Munitions?

Some Hon. Senators: Agreed.

Senator Robichaud: On division.

The Chair: On division.

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?

Hon. Senators: Agreed.

The Chair: Agreed. 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?

Some Hon. Senators: Agreed.

The Chair: Agreed.

Senator Robichaud: On division.

The Chair: Clause 6, on division, I hear someone saying?

Senator Robichaud: Yes, all the clauses in my case.

The Chair: I have to hear your voice very strongly, then.

Senator Robichaud: Okay.

The Chair: All right. I'm at clause 6 now. So you're saying on division?

Senator Robichaud: Prohibitions, I agree.

The Chair: Okay. Clause 6 you agree to? Okay. So no ''on division'' there.

Senator Robichaud: No, because those are prohibitions.

The Chair: Okay. Shall I say it again? Clause 6, shall it carry?

Hon. Senators: Agreed.

The Chair: Agreed? I'm looking to you, Senator Robichaud. Do you want to say something like ''on division''?

Senator Robichaud: No, I said agreed.

The Chair: I want to be sure that you're given every opportunity.

Shall clause 7 carry?

Hon. Senators: Agreed.

The Chair: Agreed. Hearing nothing else, it shall pass.

Shall clause 8 carry?

Hon. Senators: Agreed.

The Chair: Agreed. Hearing nothing else, the clause carries. Shall clause 9 carry?

Some Hon. Senators: Agreed.

Senator Robichaud: On division on that one.

The Chair: On division, okay. Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Agreed. Hearing nothing, the clause passes. Shall clause 11 carry?

Some Hon. Senators: Agreed.

Senator Downe: Chair, I have amendments, and I would ask the clerk to circulate them.

The Chair: I was forewarned. You have two amendments on clause 11, right?

Senator Downe: That's correct.

The Chair: Could we circulate both of them and then you can put them in order.

Senator Downe: While the clerk is distributing those, chair, I might indicate that our lead on this bill, on this file, Senator Hubley, was injured and is not here today, but she has done the bulk of the work on this from our side. I want to acknowledge her tremendous contribution on not only land mines but cluster munitions and also acknowledge that she had the accident when she was travelling on Senate business and the tremendous role Senator Wells played in coming to her assistance, which was obviously greatly appreciated by us all.

If everybody has a copy of the amendments?

The Chair: I'm sure you can pass on to Senator Hubley — I have informally — our best wishes that she have a speedy recovery. We've also noted Senator Wells' great assistance to her, and certainly his understanding of seas and boats was very helpful to her and I think to the Senate. I think she should have a speedy recovery, and we look forward to working with her. I know her opinions on this from the previous bill.

Senator Downe: Colleagues, I'll move on to clause 11. I move:

That Bill C-6 be amended in clause 11, on page 6,

(a) by replacing line 16 with the following:

''may involve the acquisition, possession,''; and

(b) by replacing lines 24 to 30 with the following:

''over it; or

(b) acquiring or possessing a cluster muni-''.

The Chair: All right. Has everyone received this amendment? Did you put both of them together?

Senator Downe: Yes. I did, the two of them together.

The Chair: I think you should do them separately.

Senator Downe: Maybe the wrong document was passed out. I have one, obviously. Thank you.

The Chair: I have two motions, one dealing with —

Senator Downe: They're combined now, chair. The combined motion is now being circulated.

The Chair: We can put aside the separate motions and look to one amendment, then. So it would read:

That Bill C-6 be amended in clause 11, on page 6,

(a) by replacing line 16 with the following:

''may involve the acquisition, possession,''; and

(b) by replacing lines 24 to 30 with the following:

''over it; or

(b) acquiring or possessing a cluster muni-''.

You are moving that motion in two parts. Would you like to speak to it now?

Senator Downe: No. I think we've had enough debate on the previous bill and this bill as well. I think everybody understands, particularly after today, the clear intent of what we're doing.

The Chair: Right. As I think you pointed out, Senator Hubley addressed it previously.

Is there any discussion? If not, I can put the amendment forward. All those in favour of the amendment?

Senator Downe: Chair, I'd like a recorded vote.

The Chair: A recorded vote; okay.

Adam Thompson, Clerk of the Committee: The Honourable Senator Andreychuk?

Senator Andreychuk: No.

Mr. Thompson: The Honourable Senator Ataullahjan?

Senator Ataullahjan: No.

[Translation]

Mr. Thompson: The Honourable Senator Dawson?

Senator Dawson: Yes.

Mr. Thompson: The Honourable Senator Demers?

Senator Demers: No.

[English]

Mr. Thompson: The Honourable Senator Downe?

Senator Downe: Yes.

[Translation]

Mr. Thompson: The Honourable Senator Fortin-Duplessis?

Senator Fortin-Duplessis: No.

[English]

Mr. Thompson: The Honourable Senator Housakos?

Senator Housakos: No.

Mr. Thompson: The Honourable Senator Johnson?

Senator Johnson: No.

Mr. Thompson: The Honourable Senator Oh?

Senator Oh: No.

[Translation]

Mr. Thompson: The Honourable Senator Robichaud, P.C.?

Senator Robichaud: I have the last word: yes.

[English]

Mr. Thompson: The Honourable Senator Smith?

Senator D. Smith: Yes.

[Translation]

Mr. Thompson: The Honourable Senator Verner, P.C.?

Senator Verner: No.

[English]

Mr. Thompson: ''Yeas,'' 4; ''nays,'' 8; abstentions, nil.

The Chair: The amendment fails. Do you have any other amendments on clause 11 — not on clause 11?

Senator Downe: Not on clause 11.

The Chair: All right. Shall clause 11 carry?

Some Hon. Senators: Agreed.

The Chair: Agreed.

Senator Downe: On division.

The Chair: On division.

Shall clause 12 carry?

Some Hon. Senators: Agreed.

Senator Downe: On division.

Senator Robichaud: On division.

The Chair: On division.

Shall clause 13 carry?

Some Hon. Senators: Agreed.

Senator Downe: On division.

The Chair: On division.

Shall clause 14 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 15 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 16 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 17 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 18 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 19 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 20 carry?

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?

Senator Downe: Chair, I have amendments on clause 23. The clerk has copies.

The Chair: It's a new clause. So we carry 23 and then add to it. You agree, then, to clause 23?

Senator Downe: On division.

The Chair: On division.

Clause 23, carried, on division.

We will go to a new amendment, and it would be new clause 23.1.

Senator Downe: Chair, I move that Bill C-6 be amended in clause 23 on page 10 by adding, after line 17, the following: Annual report 23(1) — chair, do you want me to read it? Everybody has it in front of them. I don't mind reading it.

The Chair: If everyone agrees they have read it and they wish to dispense, we can dispense reading it, then, as it is formally before us; is that agreed?

Senator Dawson: Dispense.

The Chair: Dispense? Okay. Would you wish to speak to it?

Senator Downe: Chair, again, this is why we're proposing this amendment and it relates to the previous discussion on this bill in the committee, and the discussion we've had the last two days on this bill. If anyone has any questions, otherwise I would move the amendment, seconded by —

The Chair: No seconder required.

Since you're not speaking to it, we did address this in a previous forum, and at that time the comments were: How would this help, et cetera? I think Senator Hubley and others talked about it. But there's also a reporting mechanism within the convention, which is the normal way of handling the way that we report on the contents of it. So you're not changing any of our discussions from the previous time.

Senator Downe: No. It's an additional reporting, if you will, given the sensitivity of the matter. Senator Johnson correctly identified a key point today, how the Americans are trying to ease out of the cluster munitions. Given what's going on in the world, this is evolving. The Ministers of Foreign Affairs, Defence and the Attorney General should be reporting on a yearly basis to Parliament as to the status of what is being done on our part and hopefully what's being done by other countries.

The Chair: So we're ready?

Senator Downe: Recorded vote, please, chair.

Senator Robichaud: This could be unanimous.

Senator Downe: Yes, I suspect it will be unanimous.

Mr. Thompson: The Honourable Senator Andreychuk?

Senator Andreychuk: No.

Mr. Thompson: The Honourable Senator Ataullahjan?

Senator Ataullahjan: No.

[Translation]

Mr. Thompson: The Honourable Senator Dawson?

Senator Dawson: Yes.

Mr. Thompson: The Honourable Senator Demers?

Senator Demers: No.

[English]

Mr. Thompson: The Honourable Senator Downe?

Senator Downe: Yes.

[Translation]

Mr. Thompson: The Honourable Senator Fortin-Duplessis?

Senator Fortin-Duplessis: No.

[English]

Mr. Thompson: The Honourable Senator Housakos?

Senator Housakos: No.

Mr. Thompson: The Honourable Senator Johnson?

Senator Johnson: No.

Mr. Thompson: The Honourable Senator Oh?

Senator Oh: No.

[Translation]

Mr. Thompson: The Honourable Senator Robichaud, P.C.?

Senator Robichaud: Yes.

[English]

Mr. Thompson: The Honourable Senator Smith?

Senator D. Smith: Yes.

[Translation]

Mr. Thompson: The Honourable Senator Verner, P.C.?

Senator Verner: No.

[English]

Mr. Thompson: ''Yeas,'' 4; ''nays,'' 8; abstentions, nil.

The Chair: The amendment fails, so we move on to clause 24. 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?

Some Hon. Senators: Agreed.

Senator Robichaud: On division.

The Chair: On division.

Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: The bill will be reported to the Senate, without amendment, and that completes our work for today, right at 12 noon.

For the benefit of the other committees, we're watching the bill of Canada-Korea. I am given updates. It has passed the house and is now here and will be dealt with in this committee as soon as we receive it from the chamber. I'm not sure exactly when that will happen, but I'm sure it will be expeditiously.

We may be dealing with part of a budget implementation bill. We don't anticipate that that will be a lengthy hearing, as we're only getting one small piece of that bill. We will continue with our study on Canada-U.S.-Mexico. That completes our work for today. Thank you, senators.

(The committee adjourned.)