Thank you, Mr. Chairman.

I'll try to focus on the actual construction of the bill, my colleagues having examined the underlying policy.

The Oslo Convention on Cluster Munitions will impose a range of obligations on Canada as a state party, but only one of the obligations in the convention actually requires legislation.

Article 9 of the convention requires us to use the criminal law or the penal law to prevent and suppress the same activities that the treaty itself will prohibit Canada from engaging in. That means that the same activities that Canada is agreeing not to engage in under international law, under the treaty, will also become criminal offences applicable to persons or organizations, which includes companies and other legal entities within the jurisdiction of Canada. We're essentially translating the international law obligations of the convention itself down into domestic law obligations that apply to people within Canada.

The role of the justice department in the bill has actually been to make sure the obligation is translated in a manner that is consistent with and can be enforced within our criminal justice system. In some cases that has meant translating the language of the treaty into Canadian criminal law terms. Words such as “stockpiling” and “transfer”, for example, have different interpretations in treaty law and in an international body between states than those interpretations they would be given by a Canadian criminal court. The object of the drafting is not to copy the language of the convention itself verbatim but to ensure that the offences can be prosecuted effectively here in Canada, that they meet charter requirements, and that they're consistent with Canadian criminal law so they won't cause interpretive problems with other provisions and so on, and that they wouldn't be interpreted by a Canadian court in any way that would later put us out of conformity with our international law obligations under the treaty. So the formulation of the bill doesn't necessarily track the language of the convention, which is annexed as a schedule.

The offences themselves track the prohibitions of the convention, and they also track the permitted exclusions—to which my colleagues have referred—dealing with military cooperation and a number of other scenarios that are permitted by the convention for things like defensive research and training. Training peacekeepers in what cluster munitions look like is an example; there are exemptions for that. The prohibitions themselves are set out in clause 6 of the bill. The actual offence provisions are in clause 17 of the bill, and the exclusions in various parts appear in clauses 7, 8, 11, which deals with the military cooperation issues that have been discussed, and clause 12, which deals with things like permitted research and training.

The offences themselves are consistent, in terms of the formulation of the offence and the punishment, with the Anti-Personnel Mines Convention Implementation Act. The same punishment applies. There are five-year maximum sentences, and they're hybrid offences that can be prosecuted on either summary procedure or on indictment, depending on the facts. That's a decision for the crown.

There are some additional jurisdictional rules in the bill. As with any Canadian offence, the offence proposed in the legislation will apply if it or any part of it takes place in Canada. If an offence happens in several places at once, if any one part of it is in Canada, then Canadian law applies and Canadian courts have jurisdiction. They also apply automatically to Canadians employed outside Canada as public servants under the Public Service Employment Act or as non-commissioned officers and attached civilians for the Canadian Forces under the National Defence Act Code of Service Discipline. That extraterritorial application happens automatically and it's not in the bill. But in order to make the exclusions in the bill match the automatic extension of jurisdiction under existing law, clause 11 of the bill extends the permitted exclusions on the same basis. You will find those references in clause 11 of the bill.

In ordinary Canadian criminal law, liability for conduct such as aiding and abetting other offences is also automatically addressed in the Criminal Code. If you enact an offence in another bill, the aiding and abetting—counselling, conspiracy, and so on—in the Criminal Code automatically applies under the Interpretation Act. But normally in Canadian law, the principle that applies is that what is—if I could use the example—aided and abetted has to actually be an offence. That means if someone is charged in Canada with aiding and abetting something in another country that's not an offence in that other country, it would not normally be a Canadian offence either.

The treaty asks us to go further than that, and the result is the last half of clause 6, which essentially excludes the application of the Criminal Code provisions and replaces them with specific enactments for aiding and abetting, counselling, conspiracy, attempting, and being an accessory after the fact. That means that if a transnational scenario happens in Canada, there will be a completed offence in Canada that can be prosecuted here.

In other words, in plain language, if I were to aid in Canada somebody in another country who was, for example, making cluster munitions, the Canadian offence is aiding in making cluster munitions, and I could be prosecuted for it here in Canada. The offence is complete. There is no jurisdictional extension necessary to make that happen.

In closing, I want to underscore one general observation that my colleague from foreign affairs has made about the overall scope. It's important to bear in mind that this is a criminal law bill. It implements only the small part of the convention that requires the use of criminal law to implement. The offence provisions are worded so that they have the general application that I just mentioned—they apply equally to everybody within Canadian jurisdiction. But the exclusions are much more narrowly crafted, as my colleague from foreign affairs pointed out.

The exclusions in clause 11, which deals with the permitted forms of military cooperation, apply only to Canadian officials and military personnel who are actually engaging in military cooperation, and that military cooperation has to involve at least one other state that's not a party to the convention. What that means is that as more and more countries ratify the convention, the scope of the exclusion will narrow until it closes completely. When that happens, most of what is now in clause 11 of the bill will become moot, and the only exclusions will then be in clause 12, which deals with defensive research and training peacekeepers and that sort of thing.

Thank you, Mr. Chairman.

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