Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 14 - Evidence - Meeting of October 3, 2012
OTTAWA, Wednesday, October 3, 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 4:42 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, Senator De Bané and Senator Finley are just coming in, so we now have a full complement.
Before we start the proceedings, I want to indicate that the Senate photographer has asked to take pictures of our committee in its deliberations.
Minister, you just happen to be here on a good day, so you might find yourself in one of the Senate pictures. If you see them, it is within the Senate rules. I have checked because I have an allergy to photographs. They assured me that this is within our rules and that it is happening with all the committees.
I wish to thank honourable senators for making themselves available at 4:45 p.m.
We are here as the Standing Senate Committee on Foreign Affairs and International Trade. Before us today is Bill S-10, An Act to Implement the Convention on Cluster Munitions. Appearing as our first witness in our deliberations on Bill S-10 is the Honourable John Baird, P.C., M.P., Minister of Foreign Affairs and International Trade.
I will not go into biographies. We have a process here in that we want to maximize our time for your opening statements, minister, and to allow the opportunity for senators to question you. You are well known in your work. We are pleased that you have taken on your job with such vigour. You have probably travelled more miles than other ministers have, and in a very short time. You are well versed now in your portfolio. We welcome you. We will continue to work with you, as you have given us two references in the past — issues that were important to the Canadian public; namely, the Charter issue under the Commonwealth and also the study of Iran.
We assure you that our working relationship is good and will continue to be so. We appreciate the confidence you demonstrate in the committee by working with us.
Minister, you have officials with you. I will leave you to introduce your officials and to make your opening statements. Then we will go to questions. Welcome.
Hon. John Baird, P.C., M.P., Minister of Foreign Affairs: Thank you very much.
Honourable senators, it is a privilege to be here. I want to thank all honourable senators for the great work that they do with respect to foreign policy and international trade. It is very much appreciated by those of us in the other place, the government and the people of Canada.
On April 25, our government signalled Canada's ongoing commitment to reducing the impact of armed conflict on innocent civilians by introducing legislation to implement the Convention on Cluster Munitions. This is an important and necessary step that brings us closer to ratification. Canada has long played a leading international role in the protection of civilians from the use of conventional weapons that are prone to indiscriminate effects because we have seen the devastating impacts of that use.
Canada is proud to be a part of the international effort to rid the world of cluster munitions, a weapon Canada has never produced or used in its military operations, although there are some existing stockpiles.
Our government is proud to have participated actively in the negotiations on the Convention on Cluster Munitions, and we were one of the first countries to sign onto it in 2008. The convention itself is an international treaty that counts 111 countries as signatories.
In our view, the final treaty strikes a delicate balance between humanitarian considerations while allowing state parties the ability to preserve their own national security and defence interests. It does not mean the end of international efforts to ban cluster munitions. More so, it is a method of moving the goalpost forward. Canadians can be proud of our role in that effort.
[Translation]
Bill S-10, An Act to implement the Convention on Cluster Munitions, allows for the execution of all commitments requiring the adoption of legislative measures in Canada, and is in line with the commitments made by our main allies, in particular Australia and the United Kingdom.
Although the bill only touches on the parts of the convention that require the adoption of internal legislative measures, Canada will respect all of its obligations, through various methods I will discuss further on.
[English]
The convention itself applies a number of obligations to Canada as a state party, and one of these requires each state to impose on persons within its jurisdictions the same prohibitions that apply to the state parties themselves. To do this, Bill S-10 sets out a series of criminal prohibitions, offences and the technical definitions needed to support their investigation and prosecution. It contains partial exclusions from some of its prohibitions for legitimate and permitted purposes, such as defensive research and training, transfers for the purpose of destruction of stockpiles, and cooperation between state parties and states that are not party to the convention. These exceptions are also reflected as exclusions from the criminal offences set out in the act.
We believe it is vital that our men and women in uniform are not unjustly accused of criminal conduct and are in no way compromised in doing their jobs and what we ask of them in the interests of national security and defence.
As outlined in the convention, the legislation also prohibits the use, development, making, acquisition, possession, foreign movement, import and export of cluster munitions, as well as aiding, abetting, counselling, and attempting or conspiring to commit such prohibited activity.
While some specific terms in the act may differ from the convention itself, this is simply the result of required translation of multilateral treaty language into Canadian legal terminology in order to meet domestic Charter and other legislative standards for clarity and certainty in the eyes of the Canadian courts. For example, while the convention includes a prohibition on stockpiling, the "less 10" refers to possession, a Canadian criminal law term. This translation is a normal part of treaty implementation into domestic law.
One of the most discussed and, I recognize, controversial aspects of the convention relates to Article 21, which specifically allows state parties to engage in military cooperation and operations with states that are not party without breeching their obligations. During negotiations, it was recognized that not all states would immediately join the convention and that multilateral military operations are crucial to international security. This was not just the Canadian position, but it was shared by other countries. The provision of Article 21 was necessary to bring others on board.
[Translation]
The bill that is before you contains exceptions that will allow Canada to take part in these joint military operations and cooperate with states that are not party to the convention. It also provides to members of the Canadian Forces and civilians who work with them the assurance that they will not be held criminally liable, in performing their duties, for the actions taken and choices made by states that are not party to the convention. Bill S-10 thus allows Canada to continue to cooperate with its allies.
[English]
Nonetheless, in the context of military cooperation, the convention reiterates that state parties shall not engage in specified activities that are fully within their control. Bill S-10 extends this principle into domestic law. It will be prohibited for the Canadian Forces themselves to use cluster munitions in their operations. They cannot request their use if the choice of munitions is under exclusive Canadian control, even in the context of combined military operations. These exceptions apply only when Canadian Forces are cooperating with others who may still lawfully possess and use cluster munitions — actions which are not within the exclusive control of Canada, for example, an individual soldier or officer in an exchange position with the military force of a non-party state. Those exceptions are consistent both with the convention and with Canadian law. We do not hold Canadians criminally responsible for the acts or decisions of others.
As I have already stated, Bill S-10 addresses only our legislative requirements under the convention. In addition to Bill S-10, the Canadian Forces, as a matter of policy, will prohibit personnel on exchange, secondment or attachment with allied forces from themselves using cluster munitions for training and for instructing in the direct use of cluster munitions. The Canadian Forces will also prohibit, as a matter of policy, the transportation of any cluster munitions aboard Canadian assets.
Honourable senators, even before the introduction of this act, our government has taken concrete steps to fulfil its commitments under the Convention on Cluster Munitions.
The Canadian Forces have initiated the process of destroying all of their cluster munitions, and their last remaining inventory has been removed from operational stocks and marked for destruction.
We are already active in promoting the universalization and implementation of the convention with international partners and will continue doing so.
Finally, Canada is traditionally among the top international donors for addressing the impact of explosive remnants of war, including cluster munitions. All of these activities are being implemented outside of the bill in front of you.
Our government remains committed to the goals of the Convention on Cluster Munitions and to taking the necessary steps to meet our obligations under the convention.
The prohibiting cluster munitions act implements all of our legislative requirements while preserving our ability to operate and cooperate with our closest allies that have not joined the convention at this time.
I believe Bill S-10 strikes a good balance between humanitarian considerations while protecting our men and women in uniform.
With that, I would be pleased to hear your thoughts and take your questions.
The Chair: Thank you very much, minister.
Senator Hubley: Thank you very much, Madam Chair, and thank you for welcoming me to your committee today. Thank you as well, minister, and to your representatives here as well.
You did explain clearly that the Convention on Cluster Munitions can significantly reduce human suffering around the world. As noted in my colleague's speech, she did mention that 98 per cent of cluster bomb victims are civilians, and most injuries and deaths occur after the conflict has ended.
The convention seeks to ban the use of cluster bombs for all time. Canada believes in the goals of this convention. We are one of the first countries to sign, as you indicated, and it has always supported it strongly. It is now time for us to ratify the convention.
That being said, I would like to mention that Bill S-10 interprets Article 21 broadly and allows Canadian Forces to engage with cluster bombs in ways that they would never be allowed to do at home or on a Canadian mission. For example, subclause 11(b) of the bill allows a Canadian commander to specifically request that the Armed Forces of the United States or another state not party to the convention drop a cluster bomb.
Can the minister explain why clause 11 and, in particular, subclause 11(b), was included in the bill and whether he believes it conforms to the spirit of the convention and the goal of banning the use of cluster munitions?
Mr. Baird: Obviously, the Canadian Forces have never used cluster munitions. We never will with this convention. We do have a small number of Canadian Forces personnel that do secondments or training exercises with some of our allies, particularly the United States. We have, for example, three Canadian deputy commanders currently working in the United States. General Natynczyk, before he was Chief of the Defence Staff, was deputy commander of a group of some 60,000.
Obviously, it is a challenge when you have interoperability and when you have people on secondment and working with other forces that are not accepting the same responsibilities that Canada does to do that. That was the case, for example, in Yugoslavia, when Canadian Forces were there and other countries used cluster bombs as part of the NATO mission there. In Afghanistan, cluster bombs were used, for example, by the United States early on in the conflict, and there are a small number of less than 100 Canadians who would be working with these troops. It is just not possible as part of our rules of engagement to put Canadian Forces under the threat of breaking the Criminal Code if they were used.
Senator Hubley: I am not a military expert, but I understand that when one presents their terms of conflict, as you mentioned, that indeed Canada will be well known for the fact that they have signed the Convention on Cluster Munitions. That will be a term of engagement for them, and they will then not be party to the use. They will not be able to use them. That will be a term that will be accepted by the United States and by other countries if, in fact, Canada will be a party to that joint military operation.
Mr. Baird: In some cases, the United States forces are doing the Canadian Forces a favour by allowing a senior general to be a deputy commander of a force of 60,000. If we simply approached them and said, "Here are all the issues that we have in terms of what decisions Canada has made in terms of our sovereign authorities," I am not sure they would be willing simply to follow all of our rules if we have one member of the Canadian Forces working together with 60,000 members of the United States forces or if you had a private working in a joint mission in a war zone during the war in Iraq. Under the previous government, there were a small number of members of the Canadian Forces working with the United States as part of secondments in the war with Iraq. If they were under attack on the ground in the desert and had to call in air support to protect them and to save their lives, they could not, under those circumstances, be saying, "I am sorry; this airplane that is coming to save me, what kind of munitions will be fired?" I would not want to put that private in a position of breaking the Criminal Code of Canada by his or her actions. It is a very small number of people. Like I said, I am told at the current time there are maybe 100 Canadian Forces planted with the United States, for example.
Senator Hubley: I might mention retired General Bouchard who did not use the cluster munitions. I think he would be one retired general not supportive of ever using them, and he feels he has been able to be lead a joint mission and has not needed to use them. I think perhaps there are examples on both sides.
I did want to move on. You mentioned the delicate balance, and I understand this is very important. I am sure it was vigorously debated in Oslo to come up with the Convention on Cluster Munitions. I think I would point to the interoperability clause that is included. Canada supported that and worked towards that. We would go to article 21, I believe, which is the interoperability clause.
Within the convention itself, it has established that balance between security and humanitarianism, I guess would be the terms to use there. I think it is important in my question, when we move to the legislation in Bill S-10, especially to article 11, that it really does present just about every exception one can imagine, allowing them to use cluster munitions under just about any circumstance. How you would respond to that?
Mr. Baird: Canada, as a sovereign country, is making the decision to not use them. Furthermore, the Chief of the Defence Staff will issue a directive outlining that.
We are a member of NATO. There are a number of NATO countries that have not joined the convention: the United States, Estonia, Greece, Latvia, Poland, Romania, Slovakia and Turkey. A few short hours ago, Turkey was attacked by Syrian forces. Five Turkish citizens, including a six-year-old child, were killed a few hours ago and twelve people were injured. Turkey has not signed onto that convention. Obviously, as far as NATO is concerned, we will still remain a partner with those eight countries that have not signed on. Our hope is that leadership by example means signing the convention ourselves, ratifying it and fully implementing it. We would hope that at a future date the rest of these countries will consider following our example and the example of the other 110 countries.
Senator Hubley: I would like to refer back to Bill S-10. The prohibitions are outlined in section 6, but then when we move ahead to 11, it says:
Section 6 does not prohibit a person who is subject . . . in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from. . . .
It begins with:
Directing or authorizing an activity that may involve the use, acquisition, possession, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state or that may involve moving that munition by those armed forces from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it;
It goes on to say, "using, acquiring or possessing." There are many areas in section 11 that are problematic and troubling. It seems to diminish the strength of the convention.
As I perhaps mentioned in my first question, it was the spirit of the convention and the goal to ban the use of cluster munitions.
I wonder if you would comment on the need to have such a broad scope. We have never used cluster munitions and now we have many opportunities, or as many as situations might arise. There seems to be an exception in clause 11 that would allow us to use them. That is very troubling. How you would respond to that?
Mr. Baird: I want to tackle that issue head on, that somehow this is diminishing the convention or is in any way, shape or form running counter to the convention. It was always incredibly clear, both in the negotiation and the signing, and now in the ratification, that the convention had that exclusion. It is not a surprise: It is part of the convention. That section does not diminish the strength of the convention because it is actually part of the convention.
Canada, with many other countries, supported it being included there. I think it allows more countries to sign on to the convention. I should be very clear; the convention deals with things in our exclusive control, and we would not be doing it.
Senator Hubley: I understand the necessity of having that interoperability clause: It reflects reality. Canada will be in combined operations, so it is important to have it there. I think the fear would have been that that also presents a loophole, depending on how that is interpreted.
From where I am reading it, I have that sense, that indeed the number of exceptions far exceeds the intent of the convention.
Mr. Baird: With respect, I do not agree. I think it was quite clear, as the convention was being negotiated, this exclusion. Some agreed with it and some disagreed with it. When we deal with diplomacy and getting 111 countries to sign on board, we deal in the art of the possible, not the art of perfection.
Would we like all 193 member countries of the UN to adopt this convention so we would not need that section? Absolutely. Will we hope to see that day come forward? Absolutely. Until that day comes, we have to be realistic. In our existing military cooperation, obligations in NATO, we have a small number, less than 0.001 per cent of Canadian Forces on secondment or training missions with non-party state convention countries. You call it a loophole; I think it reflects the reality that not everyone is taking the progressive stand that Canada is in this regard.
Senator Hubley: If that is the case, then why would a Canadian commander ever request the use of a cluster bomb?
Mr. Baird: He was a deputy commander and his commander requested him to.
Senator Hubley: His commander was of what nationality?
Mr. Baird: For example, we have three Canadians right now who are deputy commanders currently working with the United States. One is deputy commander in of III Corps in Fort Hood, Texas. One is deputy commander of V Corps deployed in ISAF in Afghanistan. One is deputy commander in Fort Benning, Georgia. If their commanding officers gave the instruction, they are the deputy commander. We would not be using them ourselves. It would be the American forces.
Senator Hubley: The commander would have been an American; is that what you are saying?
Mr. Baird: Yes.
Senator Hubley: The deputy commander would be a Canadian?
Mr. Baird: Correct.
Senator Hubley: Would that commander not know that the deputy commander would not be permitted, under the Convention on Cluster Munitions, and not request that?
Mr. Baird: We would not ask that deputy commander, who is Canadian, to commit a criminal offence. That is why the convention and the legislation before us have the exclusions.
Senator Hubley: I will have more questions on a second round. Thank you.
[Translation]
Senator Fortin-Duplessis: Some people feel that Bill S-10 dilutes or weakens the Convention on Cluster Munitions. Do you share that opinion? Also, what do you think of the opinion of others who say that Canada has negotiated an instrument that it can no longer support?
Mr. Baird: I think that we abide by the convention and we meet our obligations. This is part of the convention, and was included in the negotiations. In certain cases, partnerships and other initiatives cooperate with other countries that are not party to the convention. This is expressly stated in the convention.
[English]
If every country agreed with Canada, we would be in great shape. A good number of countries, including eight NATO allies, have not signed on to the convention. Obviously, with any work we did with NATO, we, as a sovereign government, a sovereign Parliament, and a sovereign country, have made decisions about what we will do. Regrettably, we cannot impose all our decisions on other countries.
For example, General Walt Natynczyk, who I think is one of the great military leaders of his generation, got a tremendous amount of experience being the deputy commander of a force of 60,000 people. That leadership experience and training he could never get in the Canadian Forces before becoming the CDS. He was able to get that opportunity.
I think the Canadian Forces are stronger for that. That is why the convention specifically deals with it. That is why we fought with many other countries to get it included. Would we prefer not to have it if it was not necessary? Absolutely. However, this is the art of the possible, what we can accomplish. Do I hope that one day we will have every country signing on to the Ottawa convention on land mines? Absolutely. Until that day, this is the art of the possible.
I simply think it would be rather presumptuous of Canada to say, "We are sending one person to work with these other 60,000 people, and here is a long list of things that we want to impose on you." The one thing we are saying is that Canadians will not use them themselves. That decision will be made by another sovereign government, one that, regrettably, does not agree with us in this regard. Perhaps after the election, President Obama will reflect on his position.
An Hon. Senator: Assuming he is still the President.
Mr. Baird: He will be the President for two months.
[Translation]
Senator Fortin-Duplessis: In reference to prohibitions in subclause 6(b) of the bill, how can we be certain that Canadian companies are not making these cluster munitions? If that were the case, what would be the penalty for breaching the act?
[English]
Mr. Baird: Obviously, it is the federal government's power under the Criminal Code to deal with this. Maybe I could ask if either of my officials is able to deal with the specific enforcement authorities.
John Eric MacBride, Senior Defence Advisor, Foreign Affairs and International Trade Canada: Thank you, minister. I think what we are really addressing here is whether a Canadian company can produce a cluster munition, and that is specifically prohibited in the act. It cannot be done.
Was that the question you were asking, senator?
Senator Fortin-Duplessis: Yes.
Mr. Baird: Obviously, we have a significant regime on export controls of armaments, which this would fall under.
The Chair: I do not want to put words in Senator Fortin-Duplessis' mouth. It is clear in the act that you cannot build any cluster munitions, per se. The problem is the parts: Where do they come from? Where do you send them? To what extent can you monitor factories or companies that may be doing some part of the cluster munition?
Senator De Bané: I think the senator was asking about the maximum sentence that the person is liable to.
The Chair: Yes, and I think Mr. Kessel is going to answer that.
[Translation]
Senator Fortin-Duplessis: And what penalties could be imposed?
[English]
Alan H. Kessel, Legal Adviser, Foreign Affairs and International Trade Canada: Thank you, Madam Chair. If I could just jump in —
Mr. Baird: I can answer it. It is an indictable offence with a maximum of five years' imprisonment under the federal Criminal Code, what we are proposing in the bill.
Mr. Kessel: That is found in clause 17.
[Translation]
Senator Fortin-Duplessis: If I understand correctly, Canada has cluster bombs in its possession for training purposes, and they will have to be destroyed by the United States. How will the munitions that will be sent to the United States to be destroyed be moved there? Will that transfer be done by truck, by train, or by plane? Because after the convention has been signed, Canada will have eight years to destroy its cluster munitions.
[English]
Mr. Baird: The disposal of the cluster munitions, which Canada has stockpiles of but never uses, has already begun, and they would work to complete them in short order. Obviously, we do not need to wait for the passage of this legislation to begin to destroy these terrible weapons, and that is why we have already begun to destroy them. The Department of National Defence will be here tomorrow, I understand, and you could ask them about how they propose to get rid of the remainder.
Obviously, we have to dispose of them. It is not a matter of just transporting them to another party. We do not want them to be used. Another getting their hands on them would certainly run counter to the spirit of the convention, even though we would not legally be bound by it until Parliament passes it.
The Chair: I have a long list and we have about a half hour with the minister. However, the officials will be here for further time and, if necessary, tomorrow. If you have more technical questions that you think are to the administration, that will give you more time to put the hard questions to the minister on the policy and the actual convention.
Senator Mockler has yielded to Senator Robichaud, so you are next on the list, Senator Robichaud.
[Translation]
Senator Robichaud: My question concerns clause 8 of the bill, which discusses exceptions, such as "destruction on behalf of the Canadian Forces or the Department of National Defence." At the eighth line, it says that the Department of National Defence —
[English]
Mr. Baird: Are you talking about the convention or the legislation?
Senator Robichaud: The legislation.
The Chair: There is the legislation. Attached to it is the convention. You are talking about section 8(1) of Bill S-10, not the convention and the articles contained therein?
Senator Robichaud: That is what I think I am doing, but I am not sure.
The Chair: Thank you. That was just for clarification for the rest of us.
[Translation]
Senator Robichaud: The bill says:
The Minister of National Defence may, by order, on any conditions that he or she considers appropriate, exempt from section 6 a person or class of persons who, for the purpose of destroying a cluster munition, [. . .] on behalf of the Canadian Forces or the Department of National Defence, acquires, possesses, imports or exports that munition . . . .
My question is this: Why is there a reference to the import of munitions? I do not believe this bill concerns the import of munitions, especially not that type of weapon. Is that not so?
[English]
Mr. Baird: I am told by officials that there may be training for how to destroy these armaments. The Canadian Forces might have to import some in order to be able to teach others how to destroy them. We do a lot of support to smaller armed forces.
Mr. Kessel: Just as we do in situations where land mines have been, we do use them for training exercises. Sometimes we have to bring in the new versions that have been created. We also have to develop methodologies to counter these weapons. For instance, while we do not use them, we may encounter these weapons in theatre, in which case we may, on occasion, need to bring in those specific types of weapons. You would not want to criminalize the people who are training our staff because they had to bring them into Canada. The section is designed to avoid criminalizing those people who will be training and using these for countermeasures.
[Translation]
Senator Robichaud: This clause says "for the purpose of destroying." Training is not mentioned.
[English]
Mr. Kessel: The fact is that the convention does permit the capacity to move cluster weapons to other countries for the purposes of destruction. It is not out of the realm of possibility that we may actually be destroying some cluster weapons in the future.
Mr. Baird: For example, one of the 111 countries that was in possession of cluster munitions, signing on board the convention and committing to destroy them, may not have the capacity to destroy them if it is a smaller country. There could be a Canadian company who could make a business of importing those weapons from those third countries to destroy them here in Canada.
Senator Robichaud: Did I understand in response to Senator Fortin-Duplessis that the cluster munitions we have will be transported to the United States to be destroyed?
Mr. Baird: Future ones could be. We may put an RFP out, for example, by the Canadian Forces saying we have 100 cluster bombs and would like to destroy them, and a company in the United States, for example, could win the tender to destroy them, in which case we would not make it a criminal offence to be able to transport them there for destruction. Conversely, there may be a Canadian company who is in the business of destroying these weapons from a smaller country that does not have the capacity to destroy them, so they could be imported into Canada for destruction.
Senator Robichaud: Why would we put ourselves in that situation?
Mr. Baird: Any country wants to destroy these weapons. They are so terrible and horrible. If they do not have the capacity to destroy them themselves and we can help them destroy them, we would be pleased to do that.
Senator Robichaud: I agree that they should be destroyed, but I do not know if we should allow them to be imported into the country.
Mr. Baird: If country X has no capacity to be able to destroy these armaments, I would rather they find someone who can assist them in destroying them.
Senator Robichaud: Just one last reflection: If we had the expertise to destroy them, let us not import them. Let us go destroy them where they are.
Mr. Baird: I am not an expert on destroying cluster munitions.
Senator Robichaud: Neither am I, so we will not get anywhere.
Mr. Baird: This may be a small or never used provision of the act, but it does allow it.
For example, with the stockpiles of chemical weapons in Libya or Syria, we want to see those destroyed. If we could get them out of the country, where it is an unstable environment, and ensure they were properly destroyed, that would be a great service to humanity, in my judgment. When they stay in parts of the world that are unstable, that is obviously disturbing. If every country could easily dispose of these with no problem, that would be great. I do not think that is the world we live in, though.
Senator Wallace: As I am sure you are well aware that Article 5 of the convention provides for victims' assistance. As a signatory to the convention, once it is ratified, Canada would be obligated to do specific things in relation to victim assistance. One of them, as I understand it, would be to provide victim assistance in other states that have used these munitions. I am wondering what you might be able to tell us about Canada's involvement in providing that type of international assistance. Have we been involved in helping other states and, if so, to what extent?
Mr. MacBride: We have indeed been involved in providing victim assistance related to all explosive remnants of war, not just cluster munitions. We do that within our programs based on available resources. There has been an element of the program for years that has covered victim assistance, and we would hope to be able to continue that in the future.
Senator Wallace: Can you give us any sense of the order of magnitude of the financial commitment that Canada has made to victim assistance?
Mr. MacBride: Over the past 14 years, we have spent about $390 million on explosive remnants of war, including mines, cluster munitions and other explosive ordinance. Since 2006, we have spent $200 million of that $390 million. It is difficult to classify how much is devoted to victim assistance. In some cases, there are small projects that are specifically victim-assistance related. For example, CIDA has a program to assist countries in need with their health programs, and that has a direct impact on victims in those countries. It is almost impossible to refine the exact dollar amount for that specific activity.
Mr. Baird: If I could, senator, that is a good question. One of the priorities I would see ongoing, as it has been in the past for Canada, is that the single best thing we could do to support victims is to stop them from becoming victims. This is like a disease where there is a cure that is easily known. We can destroy these remnants of war before they cause any damage. As was stated by Senator Hubley earlier, 98 per cent of the victims are post-conflict, after they are dropped. We have consistently been in the top 10 since 1999-2000 as worldwide financial contributors to the disposal of explosive remnants of war. We are often in the top five. My colleague from the department has said that since 2006 we have spent some $200 million on 250 different projects around the world. That will continue to be a priority for the Government of Canada. When I speak of remnants of war, that would include cluster munitions and land mines. I am very focused on getting results, and I would like to see getting in and destroying these so people are not injured or become victims, before someone loses their life or a limb.
Senator Wallace: That is destroying what exists today. Again, as I understand the bill, within Canada, it would prevent the production of these munitions. I believe it also applies to the component parts as well. Again, to your point, we are concerned about victims and minimizing their number.
Mr. Baird: I can let you know that last year we spent $16.8 million on destroying explosive remnants of war. In 2010-11 we spent $30 million. In 2009-10 we spent $21.4 million, and in 2008-09 we spent $46 million. It goes up and down, depending on projects. There is a variety.
Rather than having conferences or studies, I am focused on what we can do to eliminate these weapons before they cause bodily harm, death or injury. When you think of what we can do to clear fields, make them productive for agriculture in parts of the world and make them safe for children, it is significant.
Senator Wallace: It requires a significant commitment, which we are doing. Thank you.
Senator Finley: Part of what I was going to ask has been asked since I was put on the list. Canada is taking a great step here in doing this and showing ourselves once again to be a world leader in this kind of activity.
Minister, could you perhaps give us a brief summary? There are 111 countries that are now in the process of passing this into legislation. I am aware of the fact that Russia, China and the United States have not signed onto it.
Tell me about the other countries. I do not know how expensive cluster munitions are and I do not know how accessible they are. What kind of countries outside those big three are we looking at that have not signed on? Do they have current stockpiles of these munitions? Are they likely to use them, or is it such a sophisticated piece of equipment that access would be difficult? Could you give me some idea of those things?
Mr. Baird: There are the large military heavyweights: the United States, China and Russia. There are also other countries in the world, like Syria and Iran. I will let you come to your own conclusions about why the latter would not want to get rid of those weapons when they have stockpiles of chemical weapons.
It is our hope that we can accomplish a lot by getting 111 countries. I am obviously disappointed in other countries, including allies of Canada, that have not signed on board. I hope that if we can eliminate the production of these in 111 countries, and eliminate the use and the stockpiles in 111 countries, that we can get more countries to sign on in the future. We hope, frankly, that it puts a stigma on their use and reduces their use by non-state parties.
However, this happens with just about every convention that we deal with; much of the same happened with the land mine convention. There will be those that do not sign on. Some have good reasons and some have less-than-good intentions.
I cannot speak to the cost or the availability of the weapons. There will be officials here from the Department of National Defence who can give you a window as to why some countries would not want to sign on.
There is a value in leadership and to stopping proliferation; that is, countries proliferating the use of these weapons. Canada, for example, has never used them, but at least the benefit will be that it will stop Canadian companies from producing them and will get rid of the stockpiles. I think that sends a powerful message and it is Canada's voice on this issue.
Senator Finley: I would like to follow up on what you said regarding the production of this equipment. Are there Canadian companies right now that can produce these munitions?
Mr. Baird: I do not know.
Mr. MacBride: There are Canadian companies that have the capability to produce this sort of munition, but none are producing them and none have produced them. Certainly with this act, none will be interested in producing them.
Senator Johnson: That is right.
Senator Finley: Good.
Senator Johnson: Thank you, Mr. Minister, and welcome to our committee today. The government has reiterated its position that the proposed legislation fully meets our humanitarian obligations under the treaty while ensuring that the Canadian Forces are not compromised in any way from working with our allies in doing what is asked of them. I pretty much concur, after reviewing Bill S-10. Could you elaborate on "meeting our humanitarian obligations" in terms of how it is applied to this cluster munitions area?
Mr. Kessel: If you take a look at what Canada has done in terms of trying to set the standard — the norm-setting we have done in terms of human rights, humanitarian law and trying to change the culture in the world — this is part of a continuing exercise, moving toward a world where we do not have these kinds of weapons.
The minister has indicated that part of our interest is not only to move toward a world that does not have cluster munitions or land mines but, at the same time, to be able to do the humanitarian work that we do with our allies, some of whom do not share that same, immediate view.
The balance that the minister was also talking about, which is to be able to take part in peacekeeping activities, coalitions, and to essentially bring the values that we as Canada believe in together with our allies, that is the bigger picture.
The balancing act that Canada is doing is to move the goalposts. The minister has indicated that this is a massive step forward from what we had before. Is it the penultimate step? It probably is not, but that does not stop us from creating a bridgehead now with this kind of legislation and then working together with allies and friends to move that bridgehead further in the years to come. At some point we have to make that stand, and Canada is doing that with this legislation, together with 111 others.
Senator Johnson: Thank you. That is what I think our role is and I think that is excellent.
Perhaps you can clarify one more thing for me. Like some other senators, my questions have been asked as well, and have been well answered. Many of the critics or commentators of this bill talk about the broad interoperability exceptions in clause 11. Why are they so concerned about that?
Mr. Baird: They are advocates for the elimination of any possible use of these terrible weapons. I think they are well motivated. They have to worry about that one issue of eliminating the stockpile and use of those weapons. Those of us in government have to deal with the reality of the Canadian Forces and not wanting to criminalize a member of the Canadian Forces from any capacity to have interoperability, exchanges, secondments or leadership development initiatives. That is the reality. We have to balance both.
We hope to see the day where we can eliminate all of these weapons from all 193 countries. We only have 111. I think that is a remarkable accomplishment; five years ago we did not even have this convention. If we can get 111 to sign on, that is great.
I was just in New York at the UN. We had a meeting of the parties to the nuclear testing ban treaty, the Comprehensive Nuclear-Test-Ban Treaty. This year, for example, we welcomed Indonesia; they have now ratified the convention, so we have one more country that has joined. Next year, hopefully we will have more. Indonesia is a big one. It is the third-biggest democracy in the world and the biggest Muslim country. That is an accomplishment; we moved the bar forward. Hopefully next year we will have more with this. Once we get it ratified, whether at Geneva or in New York at the United Nations, or bilaterally, we can encourage even more countries to sign on.
We need to constantly be trying to move the ball down the field. Now we have a clear set of goals and we are not standing alone; we have 110 other countries that are standing with us.
Senator Johnson: Excellent. Thank you so much, Mr. Minister.
The Chair: Minister, zero tolerance is what some people say. If we were absolutely not involved in any way, it would certainly put Canada in the position of saying, "It is not our problem; we have done all we can." However, if I understand, your argument is that you will continue to balance our lack of use or involvement in cluster munitions while trying to persuade others, including our allies, with whom we are in theatre in NATO or peacekeeping, et cetera, and they might not have signed onto it.
Are you weighing being there, continuing our effort for security while we are using ourselves as an example that cluster munitions are not necessary and that it is a better theory than just walking away from any theatre where we have some combined security and responsibilities?
Mr. Baird: I guess the short answer to that would be yes. Obviously, not all our NATO allies agree with us. We have three NATO allies who have nuclear weapons. Canada feels strongly against any country having nuclear weapons.
At the same time, we have to deal with the reality of the world that we live in. With this, if we had zero tolerance, we would probably get zero results. I think what we have is the capacity that Canada will not use these weapons, will not acquire them and Canada will eliminate its stockpile. That is a good accomplishment; 110 other countries joining us in doing that is more accomplishment. Hopefully, each and every year we can get one or two or more countries, and we can see a time when it will not be necessary for any country to want to possess let alone use these kinds of weapons.
Senator Hubley: I will try to be brief and sum up and reflect on some of the answers and some of the information that you have given to us this evening.
I must return to both the Ottawa convention, which was raised, and the Convention on Cluster Munitions and the exceptional role that Canada played in the success, certainly, of the Ottawa convention and the role we will hopefully play on cluster bombs. You yourself mentioned that cluster bombs are grossly inadequate; they are indiscriminate weapons that choose innocent people; and they may not be the response now to the new types of urban warfare that maybe we are engaged in these days.
For many of those reasons, I wish to reiterate that, when I look at the legislation, I still feel strongly that some of the exceptions that we see in clause 11 are terribly problematic. After clause 6, clause 11 is probably the most difficult one to deal with.
I know that Australia is having a difficult time getting its legislation passed because of how they have handled the interoperability clause. I think that ours is probably not as strong as theirs. With respect to our legislation, I do not like to use the term "worse," but when we are dealing with this section and how it will be applied, it somehow guts the integrity of the convention.
I think you have answered that carefully, but as you leave here tonight, I would like you to consider the implications of those sections because it opens up the legislation so wide that it presents a loophole that, I think, will in some way take away from the integrity of what Canada is doing here. I think Canada is doing a great job here.
I will leave that last comment, if I might, Mr. Minister, and thank you very much for your presentation.
Mr. Baird: I respect your thoughtful views on this.
If we could say to a country like the United States — and the United States is our closest friend and our best ally — if we could say to President Obama, "Before any of these three Canadian generals accept deputy commander roles, you will never, under any circumstances while they are there allow any cluster munitions to be used," and he would say yes, I would love that. That would be fantastic, but I think it would be naive to suggest we could put in one Canadian with 60,000 U.S. troops and say, "You will adopt Canadian rules on this and a variety of other issues."
Senator Hubley: Absolutely. I think you should try it.
Mr. Baird: And if President Obama were to say no?
Senator Hubley: He will not say no.
Mr. Baird: What if President Obama was to say no to the cluster munitions, as they have not signed on?
Senator Hubley: They have not signed, but we are talking about Canada. You and I will not argue about this, by the way.
Mr. Baird: My point is if they said no, would we say we would not want our military leaders to get this type of experience and training that they cannot get here in Canada?
Senator Hubley: If an American general came to Canada —
The Chair: Senator Hubley, I have Senator Nolin who wishes to ask a question now.
Senator Hubley: Yes, I could reverse it.
The Chair: Should we allow him to do so?
Senator Hubley: Yes, I think so. We absolutely should.
The Chair: He took himself off the list, but you have made your point.
Senator Hubley: Yes.
Senator Nolin: Minister, Canada has opposed our allies using caveats. I do not think we should start doing that because if we can have a member of the Canadian Forces being embedded or being part of the chain of command with an allied country, I think that is a good thing.
We played a leading role in the personal land mine treaty years ago. Even though Bill S-10 is not perfect, we have to live in a world where perfection is not reality, as the minister said, so we have to cope with the various realities.
Can we do some kind of parallel with the land mine treaty and the evolution of that treaty since it was ratified by Canada and we played an important role in moving the ratification of that treaty forward? Can we do that parallel?
Mr. Baird: I think we want to convince more countries to sign on board to this convention. I wish the United States had signed on board to the Ottawa treaty on land mines. I understood that if there was one exception given for the Korean Peninsula, they were prepared to do so. We did not make that exception, and the United States is not party to the convention. Sometimes you have to compromise.
Senator Nolin: In the treaties on land mines, we had those exceptions also. We have to live with our allies.
Mr. Baird: We had one member of the Canadian Forces working at the demilitarized zone on the Korean Peninsula, on the border between the Democratic People's Republic of Korea and the Republic of Korea, and the United States and the Republic of Korea have land mines there. We have one Canadian working there. We have not abandoned our commitment to the Korean people despite the fact that they do not share our values in this regard.
Senator Nolin: Have they all permitted that?
Mr. Baird: Yes.
Senator Nolin: Therefore, the art of the possible is an art. To achieve perfection is what we are trying to do.
Mr. Baird: Politics is the art of the possible.
Senator Nolin: Of course.
Mr. Baird: Unfortunately, not every country shares Canada's view in this regard.
Senator Nolin: Thank you, Mr. Minister.
The Chair: Minister, thank you for coming today and sharing your views so frankly and openly. I think you now understand some of the concerns that we have, which we have heard from other witnesses. We have a list of witnesses, and we will attempt to hear from everyone and make our final decision.
It has been helpful. I had some questions, but I think they are best left for the military as to what actions are balanced. As I understand it, this is not the only thing we are doing with respect to the convention. This is one piece, namely, the Criminal Code piece, but we have other policies, practices and military justice to look at. We will look at the totality of how we are supporting this convention and seeing whether it is the art of the possible, as you have said.
Thank you, Mr. Minister, for your time, and the officials also with you.
Senators, do you wish the officials to stay? We have until 6:15 to ask questions of the officials on more technical issues.
I will ask the officials to come to the table. I understand there are some questions from the senators.
Mr. Kessel and Mr. MacBride, are you the two, or will there be other officials coming to the table?
Mr. Kessel: We have one more colleague, Mr. Ram.
The Chair: We have until 6:15, but we do not have to go until 6:15. It is dependent on the questions you have for officials. I know we went into some technical questions, and the officials did answer some of those, along with the minister.
Senator Hubley: Thank you for staying. This will not take long.
We did hear a fair amount about putting the Canadian Armed Forces in positions of maybe breaking the law or something like that. I wanted to ask your opinion on something, and it concerns the reference to positive obligations under Article 21, such as encouraging states not party to the convention to accede to it, be included in the bill, without jeopardizing the ability of the Canadian Forces to undertake operations with armed forces of states that are not party to the convention.
Mr. Kessel: To follow up on what the minister was saying, there are multi-aspects to what Canada does when we take part in this kind of negotiation and when we promote the interests and the values of Canadians, which is to eliminate this kind of weapon, as we have on others. That is not only to convince people who believe this already but then to work with those who are the non-believers. That is probably the most difficult part.
When we go into a negotiation, as you can imagine, we are dealing with 190 countries, all with their own impression of where they should be and how it should conclude. At the end of the day, you are supposed to come out with a consensus, almost like Parliament. In a sense, what we have achieved here is rather remarkable. The minister was clear when he said that before this convention we really had nothing. Today we have a convention that sets a standard, and tomorrow we have an aspiration to move the goalposts even further.
Part of what Canadian foreign policy does is to take the values that we have, established in Parliament, through your work and our work, and then to promote them. Our view is that this is not the end of the process. This is merely a step in the process. That includes getting as many on to this convention and then to convince those who are the most difficult that it is in their interest, given the numbers that are on, to move away from their hardened positions.
In the meantime, of course, we have other very important roles and interests, which are to help in peacekeeping and to work with those others in maintaining that peace around the world. That is where that balance comes in. By no means are we shutting up shop on this particular issue; it is merely part of that mosaic that, as you add little bits to the picture, you start to see a better world that we can create.
Senator Hubley: My only comment is that I was somewhat taken aback by the fact that when a Canadian is working in a joint operation, say, with the United States, that the integrity of the Canadian person, or that officer, does not seem to be respected. This is an important convention for Canada. As a Canadian military man, he is reflecting that. I do not know if it happens all the time, but I would not like to see that just because he is a Canadian, and perhaps outnumbered by 60,000 other men, that that would, in fact, diminish his attempt to not only maintain his own integrity as a Canadian military person and his obligations under the convention but that the other state party would as well. That is only a comment, that I felt a bit disappointed in the comments of the minister. I thought I would raise that.
Mr. Kessel: If I may make one comment. This would not be with other states parties because other states parties would not be using cluster munitions. This would be on the occasion that Canada was with a country that was not a state party. Rather than diminishing Canadians, I think it actually takes into account the fact that Canadians have a different point of view: one — which was recognized in the convention — that there would have to be this cooperation; and two, what we are recognizing in this legislation is that we will not penalize Canadian Forces and criminalize them for doing things.
Senator Hubley: No.
Mr. Kessel: In essence, what we are saying is: How do we work with people who do not have the same view? What we do is we work with them and for them to try to bring them to a different point of view.
What we are trying to do in this case is to say that we acknowledge that you will not change now, but in working with you, and as part of our encouragement process, hopefully you will join us in the future.
Senator Hubley: Thank you very much.
[Translation]
Senator Fortin-Duplessis: The Handicap International organization listed at least 166 financial institutions, from 15 countries, that provide over $39 billion U.S. in investments and financial services to eight producers of cluster munitions. These facts are set out in a report entitled Worldwide Investments in Cluster Munitions: A Shared Responsibility, published in May 2011.
I would like to know the main countries that produce cluster munitions, and the main businesses that manufacture them.
[English]
Mr. Kessel: I will ask my colleagues, both of whom seem to have a point of view here to help answer that question. Mr. Ram will start and then Mr. MacBride will jump in.
Christopher Ram, Legal Counsel, Department of Justice Canada: I cannot answer the factual question about which countries or companies make cluster munitions, but the follow-up question — and it was also raised when the minister was here — dealing with investment in general is one that I think you will probably be asked or you will have put to you by some of the other witnesses as the hearings proceed.
The convention does not require Canada to criminalize investment, per se. It requires us to generally suppress the making, among other things, of cluster munitions. What we have done in the bill in terms of investment and dealing with companies — and this also applies to companies that make parts and components and things like that — is to make the manufacture of cluster munitions a crime. We have referenced special provisions on aiding and abetting, counselling, and so on, the so-called inchoate liability provisions. They parallel the provisions of the Criminal Code, but they are a bit different in this bill.
The effect of that is that if investment or any other business transaction or any other activity of any kind rises to the level of intention and knowledge to constitute aiding and abetting, then it becomes a crime. If someone invests in a company, knowing that it will make cluster munitions, with the intention of helping it to make cluster munitions, that sort of activity would rise to the level of a criminal offence. If that person or company does it in any part within Canada, it is subject to Canadian jurisdiction.
The bill is specifically constructed so that someone who invests in Canada in a company that is outside of Canada, even if it is not a crime for that company to make the cluster munitions in the country where it does make the cluster munitions, it is a completed offence within Canada to aid and abet, but it has to rise to the level of intent required for aiding and abetting because there is a vast range of possibilities that might or might not constitute investment. If it is too remote, then there would not be a criminal offence.
The Chair: Senator Fortin-Duplessis, we are televising this. You are using the word "investment," and that may throw some people. What you are saying is that we cannot manufacture in any way, use, add to, whatever. A company in Canada cannot produce, use or be part of a process. They can be criminalized. However, if someone invests in a company through financial dealings, international mutual funds, and is not aware that perhaps one of those companies somewhere in the world might be part of contributing to a cluster munition, they will not be charged in Canada unless they had a level of knowledge. Is that what I am hearing you say?
Mr. Ram: Yes, Madam Chair, that is essentially correct. There are 120 years of case law of what is and what is not aiding and abetting under the Criminal Code. It also enables the corporate counsel for mutual funds and so on to advise their clients about the nature of their investments. The case law is already there. Rather than creating a new and problematic offence, we have applied the existing criminal law here.
Again, when you look at the bill, much of clause 6 is there is because doing it this way in the bill makes it a completed offence within Canada even if the actual making is not a crime in another country where it takes place.
[Translation]
Senator Fortin-Duplessis: I simply wanted to know whether you were aware of this, or whether you know which countries produce cluster munitions. My question was not in reference to Canada or the companies; I simply wanted to know whether you know what countries are involved.
[English]
Mr. MacBride: We are well aware of the report that you quoted produced by Pax Christi and Handicap International. We know that there are a number of countries that have companies that produce cluster munitions. A goodly portion of that report is identifying U.S. munitions production companies, so there is a lot there. In terms of other countries that produce cluster munitions, there are a significant number of other countries. Most of the countries that own large stocks of cluster munitions also produce them, such as China, Russia and others. They quite legally produce them because they are not members of this convention. There is information, largely in the NGO community, that identifies the countries that produce them. Within this report, there is some identification of the companies that produce them.
The Chair: I am looking at prevention and awareness. I have been in the Senate for some years, and I dealt with land mines before I came to the Senate. Land mines were identified very quickly when we saw some horrific wars going on around the world. "Cluster munitions" was a phrase that came into our knowledge base more recently. Will there be some further understanding or knowledge? When I deal with people, they often confuse cluster munitions with land mines or other kinds of weapons of destruction that move in and out of many theatres around the world. Other than the NGOs that will be testifying before us, cluster munitions is not something that people understand as well. Do we have an obligation to share knowledge through our work, through aid, development and foreign affairs, about the horrific consequences of cluster munitions so that there would be a groundswell of understanding of the horrific nature of them? That is not happening in many countries.
Mr. Kessel: I am going to turn to my colleague in a second, but I think, Madam Chair, you have really hit the nail on the head there. It is about awareness. It is about understanding. It is about a kind of visceral, emotional grasping of the destructive nature of these weapons.
The NGO community has done incredible work, and we could not do our work without them. We work hand in glove with NGOs on so many things, including the International Committee of the Red Cross and the ones you have mentioned. My colleague Fergus Watt is not here. He was here earlier. We work with these people who are the foot soldiers of awareness building. Government, together with NGOs, has to do this to promote a particular point of view.
We have been more fortunate with the growth of awareness in the land mines campaign because people are attuned to certain things. They are attuned to the impact that other weapons can have. Just seeing that there are 111 countries already signed on, with 76 ratified, we should feel pretty good about that. Should we feel smug? No. Should this energize us? Absolutely. Our minister has said today that he expects us to be alight and leading, and those are instructions, as far as I am concerned.
I will ask Mr. MacBride, who has spent a large part of his career with us working on both of these subjects and has been through many of the negotiations, to give you a sense of where he sees this.
Mr. MacBride: In 1997, we had significant problems in 45 percent of the countries in the world. We had almost 30,000 casualties, survivors, every year from land mines. There started to be a large public outcry. That large public outcry has not occurred with this convention to the same extent. It has certainly not occurred to the same extent in Canada, but in some other countries it is sort of a big issue.
We need to realize that yes, there is a public awareness requirement, and we feel there is an obligation on the part of Canada to do universalization work for this convention as well as the other one. All of that continues to exist. However, this convention is more a preventive measure than the Ottawa convention was. It is more preventive because the problem was less. You could argue that in countries like Laos and Cambodia the problems were not less, but in terms of the number of countries and the total number of victims, the numbers were less. The desire by the core companies that started the Oslo process was to fix this early in the game so that we do not have to do another crisis management exercise like the Ottawa convention. That is essentially the way it was approached.
The Chair: Thank you, Mr. Kessel, Mr. MacBride and Mr. Ram.
We will be continuing our study tomorrow, senators. We have witnesses from the Department of National Defence and the Judge Advocate General so we can look at the military aspects of this. Thank you for your questions.
(The committee adjourned.)