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House of Commons Emblem

Standing Committee on Foreign Affairs and International Development



Thursday, April 27, 2023

[Recorded by Electronic Apparatus]



     Welcome to meeting number 61 of the Standing Committee on Foreign Affairs and International Development.
    Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room, as well as virtually.
    I would like to make a few comments for the benefit of members.
    Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourselves when you are not speaking.
    Interpretation for those on Zoom is at the bottom of your screen, and you have the choice of either floor, English or French audio. Those in the room can use the earpiece and select the desired channel.
    I will remind you that all comments should be addressed through the chair.
    Pursuant to the order of reference of Wednesday, November 16, 2022, the committee resumes consideration of Bill C-281, an act to amend the Department of Foreign Affairs, Trade and Development Act, the Justice for Victims of Corrupt Foreign Officials Act, the Broadcasting Act and the Prohibiting Cluster Munitions Act.
    It is now my pleasure to welcome back before the committee officials who will be supporting our clause-by-clause consideration of Bill C-281.
    From the Department of Foreign Affairs, Trade and Development, we're grateful to have back with us Ms. Ashlyn Milligan, deputy director, non-proliferation and disarmament, and Ms. Jennifer Keeling, acting executive director of human rights and indigenous affairs. In addition, from the Department of National Defence, we have Major-General Paul Prévost, director of staff, strategic joint staff.
    Before we get into it, I might as well welcome a lot of new members who are here as substitutes today: MPs Kusie, Kelly, Brunelle-Duceppe, Green and Anandasangaree. We also have Mr. Bains, who is joining us virtually.
    I will now open the floor in relation to clause 6, which was the next item for consideration when we adjourned debate on Tuesday, April 25. Please refer to version 8 of the package of amendments that was sent this morning to all members.
    I have Mr. Lawrence.
     As per the agenda, I would like to move amendment CPC-4.2.
    I'd also ask for a little grace from the committee, as well as from the chair, in that CPC-4.2 is a cleanup provision and relates to several other amendments. In order to discuss that, I have to discuss some later amendments, if that is okay with the committee.
    Concerns were raised by members of the government and officials that perhaps the scope of the original language of the bill would be too broad and could have some unintended consequences.
    The process that we have taken is to use language that is similar to language that was used in the Netherlands parliament to reduce the scope, thus protecting people who may have inadvertently invested in these stocks or mutual funds, as the case may be. Amendment CPC-4.3 contains that provision.
    This provision protects individuals who have bought stocks or mutual funds that may have inadvertently or accidentally invested in a company that engaged in cluster munitions. Obviously they are not the target of this legislation, and we want to make sure those people are protected.
    I will tell you, just as a bit of background, that right now in Canadian law, those people would actually be held accountable. They are actually technically offside if there is a mutual fund holder. This is actually a relieving provision compared to where we are right now.
    Fortunately, the government in its wisdom has not been going after those people, but this actually protects those people in law as opposed to just under an administrative policy.
    We propose—and I believe I have agreement from the NDP and the Bloc—to do three things. The first is to vote for amendment CPC-4.2, which is a cleanup provision, just changing the language to reflect what needs to be put in place for CPC-4.3 to be passed, and voting down G-4.
    Amendment G-4 is a Liberal amendment. We strongly believe, in consultation with stakeholders and NGOs such as Mines Action Canada, that the bar here is set far too high from a legal perspective.
    Amendment G-4 says that an individual will be held accountable if they “knowingly provide”—which, of course means mens rea in legal language, or you believe it would happen—“financial assistance for the purpose of enhancing the commit [an] act”.
    That is a very high bar to hit. I think any prosecutor would have an extremely difficult time achieving a conviction based on saying, “You had to know that this money was going to cluster munitions. In addition, you had to not only know that the money was going to a company that would produce cluster munitions but know specifically that those dollars could be traced back to the construction, manufacture and sale of cluster munitions,” which would be nearly impossible to hit.
    We would prefer to go back to the original language. That's why we'll be voting that down.
    To sum up, we'll be voting for the cleanup provision, voting against amendment G-4 because it's basically a gutting provision that will render the legislation without purpose, and then voting to respond to the government's concern that it might be overly broad, to protect Grandma who has invested in a mutual fund that inadvertently invested in the manufacture of cluster munitions.
    We will also be responding in an act of good faith to the government and reducing the maximum threshold from 5% to 2%. We believe that will limit the scope of this provision and therefore prevent us from, as staff have mentioned, perhaps looking like an outlier in that we are allowing any manufacturer of cluster munitions to be financed by a Canadian company.
    I hope those three provisions are somewhat clear. That's where we stand.
    We've had a lengthy discussion on this issue, so I would prefer to go to a vote on one after the other, with the proviso that we need to subamend CPC-4.3 to bring the threshold down from 5% to 2%.


    Thank you, Mr. Lawrence.
    We now go to Mr. Brunelle-Duceppe.


    Thank you, Mr. Chair.
    Many of the elements affect one another. For example, I would like to understand what would happen to amendment CPC‑4.3 if amendment CPC‑4.2 were defeated. Can my colleague tell me?
    As I understand it, we need to pass amendment CPC‑4.2 to discuss amendment CPC‑4.3.


     The legislation would not make sense without CPC-4.2. Because we're putting in a new clause, we then have to refer to that new clause in the legislation.
    In other words, CPC-4.2 cannot be adopted on its own. Is that correct?


    That's correct.
    Would anyone else like to speak to this?
    Is there unanimous consent for the adoption of CPC-4.2? No.
    We'll have a recorded division, please, Clerk.
    (Amendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])
    The Chair: Next we will go to G-4. Would someone like to move G-4?
    There has been considerable discussion on the matter. I think that at this point we ask for a vote.
    Do we have unanimous consent? No?
    (Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])
    The Chair: Shall clause 6 carry as amended?
    (Clause 6 as amended agreed to [See Minutes of Proceedings])
    Now we will go to a new clause, which is clause 6.1.
     Thank you very much. I'll make my remarks brief on this.
    This, of course, is what I would affectionately refer to as a “grandma” provision, whereby we are preventing a grandmother who has invested in mutual funds from accidentally running up against this legislation. I would also take this opportunity to propose a subamendment as an act of good faith in response to some of the government's and officials' concerns.
    Where it says “five per cent”—
    Mr. Lawrence, I'm sorry.
     I've just been advised that you cannot introduce a subamendment to your own amendment. Someone else will have to move it.
    I am pleased to move a subamendment, which will subsequently be explained in the particulars by Mr. Lawrence.
    I yield the floor.
    Thank you, Mr. Genuis. You're an exceptional colleague.
    With respect to that, anywhere it reads “five per cent”—I believe there are two instances, once under proposed paragraph 6.1(a), and once under proposed paragraph 6.1(b), both in the second-to-last lines in those paragraphs—we would subamend that from “five per cent” to “two per cent”.
    Is there unanimous consent to adopt clause 6.1? On division?



    You have to vote on the subamendment first.
    Mr. Chair, I guess whether it's the subamendment or amendment CPC-4.3 overall, I would like to get clarification from our experts on this in terms of what the essential difference would be in reducing it from 5% to 2%.
    Would it materially impact the original reason this clause is problematic?
    Mr. Chair, for the specific difference between five per cent and two per cent, unfortunately I'm not a financial expert by any means and I'm not a mutual fund person who understands investments either, so I don't know that I can speak about the intent of moving 5% to 2% or the material difference with enforcing that. The RCMP is responsible for enforcement, and the Public Prosecution Service of Canada does the actual investigating and prosecuting.
    I will take this opportunity just to make another couple of comments on this amendment and the potential effects it could have.
    One thing I would note is that Canada, along with many other countries, has interpreted article 1 of the Convention on Cluster Munitions to be a prohibition on investments. By adopting language within the PCMA that would explicitly allow for investments, the concern would be that we would leave ourselves open to criticism that Canada is no longer compliant with the Convention on Cluster Munitions.
    The other point I want to flag is on proposed paragraph 6.1(c) of the text, where we talk about “investments in certain projects”. “Certain projects” isn't defined, so we think that the potential impact of that language that's not well-defined is it would result in a lack of clarity for individuals and companies as to what would constitute an acceptable project under the law.
    I don't know if our colleagues from DND have any concerns about questions on investments and how that might impact their research and development with companies, but I would leave that to them to comment on.
    Thank you.


     Mr. Chair, can we get comment from DND on this as well, please? I understand they are on the line.
    Yes, you're absolutely correct.
    We have Major-General Prévost with us today.
    Major-General, did you hear the question?
    I did hear the question. We have no concerns at DND. Thank you.
    Thank you for that.
    We now go to Mr. Brunelle-Duceppe.


    Mr. Chair, I think we could vote on the subamendment to reduce the percentage from 5% to 2% right away.
    I have more questions about amendment CPC‑4.3. That is what I am concerned about. Once we get the percentages out of the way, I would like to have the floor so we can talk about amendment CPC‑4.3. So I would suggest that we vote on the subamendment and discuss the amendment right after.
    Thank you.


     That sounds good.
    Ms. Bendayan.


    Mr Chair, I have trouble understanding why my Conservative colleagues are trying to amend their own bill to achieve, essentially, the same thing.
    If I understand Ms. Milligan's testimony correctly, we have, in Canada, a ban on investing in cluster munitions. The Conservatives are trying to legalize investment in these cluster munitions. Amending their clause 6.1 and lowering the limit from 5% to 2% does not change anything. The bill would still have the effect of making cluster munitions legal, which is indefensible to me, personally.


    Thank you.
    Mr. Anandasangaree.
    I just want to echo my colleague's comments.
    The problematic feature here is that it potentially violates our convention obligations with respect to munitions.
    The fact that it's going from 5% to 2%, I believe, is immaterial, because it's really the principle of whether any portion of investments can have munitions. I think in this particular case it allows for that.
    I worry about whether this will breach our obligations internationally and about the impact it'll have on our reputation overall.
    Thank you, Mr. Anandasangaree.
    Mr. Brunelle-Duceppe.


    I understand the Liberals' position, but right now we should stick to the 5% to 2% change. They can vote against it.
    I think the Conservatives' reason for proposing this amendment was to protect Aunt Huguette, who has invested in a fund and is not necessarily aware of what is going on there. It's not about making it legal to invest funds in cluster munitions; it's about protecting citizens who don't know about all the investments of a fund, like a pension fund. Aunt Huguette doesn't know about this, and neither does Uncle Roger. They don't know where all these funds are invested. I think that's the point of this amendment.
    I have some questions about amendment CPC‑4.3, but before we move to CPC‑4.3, can we vote on the amendment that proposes the change from 5% to 2%? We'll have discussions afterwards.
    That's what I wanted to say.



    Thank you.
    We now go to Mr. Lawrence.
    My questions are with respect to CPC-4.3, so I agree with my esteemed colleague from the Bloc.
    If we just want to proceed to a vote on the subamendment, then we can get to the amendment there, if that makes sense.
    Mr. Genuis, do you have anything to say?
    Okay, do we want to vote on the subamendment first?
    (Subamendment agreed to: yeas 6; nays 3)
    The Chair: We now go to the amendment.
    A voice: As amended.
     Chair, I'm a bit confused insofar as it seems like there may be a wire crossed a bit on the government side. Currently in law, there is not a prohibition on investments in cluster munitions.
    This bill is aimed at combatting cluster munitions by prohibiting those investments. We have, in off-line conversation with members of the committee, gotten the sense that there are some concerns on the government side that this prohibition may inappropriately target those who are inadvertently investing in broader indexes, without their knowledge.
    Therefore, this amendment is designed to allay a concern with the original draft of the bill that was raised by members of the government.
    If that's no longer a concern, then that's fine, I suppose, but absent our efforts in putting forward this bill in the first place, there would be no prohibition on investments in cluster munitions.
    For members to suggest that somehow this is about making things easier for investment in cluster munitions—far from it. That's not the purpose of the bill. Moreover, if members want to defeat this amendment and leave in place the original text of the bill, which is a broader prohibition on cluster munitions, that was our original position. It was only through conversation with members of the government that we said we'd put in this exception for these exceptional circumstances.
    This is where the points that are made today are a little bit discordant with things we've heard before, but we can proceed either way, as far as I'm concerned.
    Thank you.
    Madam Bendayan.
    Ms. Milligan, would you be able to clarify what the current state of things in Canada is? Are investments in cluster munitions currently illegal?
    Thank you very much.
    From my understanding, based on advice we've received from our lawyers, the original text of the PCMA in the aiding and abetting clause was perceived to encompass investments. Our interpretation of the current law is that it does currently cover.... It's a prohibition against investments.
    Is it a prohibition against all investments or against a percentage?
    To the best of my knowledge, there's no percentage listed in the act. It's a prohibition on all investments.
    Thank you for clarifying, Ms. Milligan.
    Mr. Lawrence.
    Under the Prohibition of Cluster Munitions Act, how many people have been prosecuted successfully for financing the manufacture of cluster munitions?


    To the best of my knowledge, we don't know of any prosecutions that have gone forward under the PCMA. I defer, of course, to the RCMP and others who are responsible for that, but we're not aware of any.
    We're happy, candidly, Mr. Chair, to pull this.
    This is actually in response to Mr. Oliphant's speech in the House of Commons, in which he said it was overly broad and you could inadvertently get people who had inadvertently invested in a mutual fund—Grandma, if you will. We responded with this.
    We're happy to pull this and go with the original text that we put forward in the bill.
    We now go to Mr. Brunelle-Duceppe.


    Thank you, Mr. Chair.
    I have a thousand and one questions about the new paragraph 6.1(c) proposed in amendment CPC‑4.3. When I look at it, I don't find it clear. I think our officials had the same concern with the part talking about “certain projects of a company that produces, sells or distributes cluster munitions”.
    As I understand it, if a company produces, sells and distributes cluster munitions, but also funds other projects, there would be agreement on funding those other projects. The reason I am wondering about this is, first of all, because “certain projects” is not defined. It's also because these companies are communicating vessels. There are different projects.
    If you are funding a project that is not related to cluster munitions, but the company's premises, resources and equipment are communicating vessels, then you are indirectly funding the production, sale and distribution of cluster munitions. The same people are working in the same place. In one way or another, we risk funding these projects, since they are communicating vessels. We don't want that.
    I would like my Conservative colleagues to explain to me whether or not my concerns are justified.


     Thank you.
    I'll briefly discuss against that by putting it again on the floor.
    Chair, so that I'm aware, as it's my amendment, can I pull it off the floor or not? Okay. It has to be UC.
    Once again, it's to protect inadvertent investments in a company. You can imagine company A perhaps buying a percentage of or making a loan to a company with respect to an investment that has nothing to do with cluster munitions. They may be completely unaware that company B is involved in cluster munitions at all. It would perhaps be heavy-handed to prosecute them when they had no knowledge or awareness that they were inadvertently investing in a project that had nothing to do with cluster munitions, in a company that happens to have some involvement with cluster munitions.
    I would reiterate again what Ms. Milligan said. There have been zero prosecutions—I mean none—on financing cluster munitions. By putting a small carve-out in a precise piece of legislation, are we going to change our batting from zero to less than zero? I don't think so.
     They say it might be illegal right now, based on the interpretation. We are clarifying that and providing a precise exception, which is in response to Mr. Oliphant's comments in the House of Commons. You can grab the Hansard to read them. I'm perfectly happy to pull this and go back to the original text of it.
    We've been here for four meetings on human rights issues. This should not be something that devolves into partisan bickering. I've had my motivations questioned here. Somehow, advocating for human rights is not the right thing to do.
    I'm good with either side. I just want to go forward.
    Yes, go ahead, Mr. Brunelle-Duceppe.


    The amendment is worthwhile, and I will vote for it if paragraph 6.1(c) is removed. I think the amendment has merit and you have done a good job. That said, in my opinion, paragraph 6.1(c) makes the amendment much worse.
    If amendment CPC‑4.3 included only paragraphs 6.1(a) and 6.1(b), I would gladly vote for it, my friends.



    Go ahead, Mr. Anandasangaree.


    So I propose a subamendment, Mr. Chair.
    I move to amend amendment CPC‑4.3 by deleting paragraph 6.1(c).


    There's a subamendment on the floor.
    Do we want to vote on the subamendment? Does anyone want to speak to it?
    Yes, Mr. Anandasangaree, go ahead.
    Going back to the original amendment, I think it's relevant to this, so I'd like to get clarity from experts here with respect to the difference between the original text, the proposal in CPC-4.3 and the proposal brought forward by Mr. Brunelle-Duceppe, which is to delete paragraph (c).
    If you could give us the difference in terms of the impact and effect on all three parts of this.... This is the original piece, CPC-4.3 as presented and amended, and CPC-4.3 with (c) deleted.
    Thank you very much.
    I'll address deleting (c) first. That would eliminate concerns about the question of “certain projects”.
    Again, I would probably want to double-check with my colleagues over at the Department of National Defence, in case there are any concerns on their end about their ability to work with companies that produce cluster munitions. On potential research and development on items that are not cluster munitions, I would like to double-check that with them.
    The one comment I would make about.... If the proposed language amending clause 6 was rejected, it would raise some concerns about the original language proposed in Bill C-281, which doesn't focus clearly on intent. We think it is an important element under criminal law to prove that people invested with purpose, knowingly. Otherwise, the way Bill C-281 is currently drafted puts criminal liability on people who merely know that they have an investment, and that can happen at any time. It doesn't require that they have the intent to invest in—
     On a point of order, Mr. Chair, with respect to Ms. Milligan, we've already passed clause 6. I think it's fair that she restrict her comments to the amendment or subamendment that is currently on the floor.
    I apologize. That's totally fair. I'm probably a bit lost on which ones are being moved and that sort of thing. I apologize.
    I just want to—
    Mr. Chair, I don't think that the witness should have to apologize for informing the committee of relevant information.
    Thank you.
    Again, as I mentioned before, we viewed the section on aiding and abetting in the PCMA as covering the investments. Because I'm not a lawyer, it's difficult to comment on the addition of this text proposed by CPC-4.3 and whether that would have a conflict with the aiding and abetting part. I'm not sure if there would need to be some kind of reconciliation with that. I would defer to lawyers on that. However, I understand the intent to provide that clarity.
     We also appreciate the concern of not wanting to capture investors who are just holding pension funds or mutual funds and may not know where their money is being directed. We think that's also a very important consideration. We want to make sure we capture only those people who intend to invest in cluster munitions, and we don't want to penalize those who have no control over where their money is going.


    Thank you.
    Thank you.
    Mr. Chair, I'm wondering if we can get a response from the Department of National Defence.
     Again, at the Department of National Defence, we have no concerns with the amendment. We think we can mitigate some of the language in here in the way our ADM of materiel is procuring.
    Thank you.
    Thank you, Major-General.
    Now, we'll go to the legislative clerk, who has identified another concern with the subamendment.
    Thank you, Mr. Chair.
    I just want to point something out to Mr. Brunelle-Duceppe.


    Mr. Brunelle-Duceppe, with respect to your proposed subamendment, if you look at the English version of the amendment, at the end of 6.1(b) it says “or”.
    Are you referring to paragraph 6.1(c)?
    I'm talking about the subamendment you just proposed to remove paragraph 6.1(c).
    I don't have it in English; I have it only in French.
    Okay. In the English version of the amendment, it says that this provision does not apply with respect to paragraphs 6.1(a), 6.1(b) “or” 6.1(c). So, if we take out paragraph 6.1(c), there will be nothing after the word “or”. So I just wanted to ask your permission to move that “or” to the end of paragraph 6.1(a) and make the necessary changes. It would then be 6.1(a) “or” 6.1(b).
    Yes, of course, you have my permission.
    Thank you very much.


    That is now part of the subamendment. Okay, that's groovy.
    Yes, Mr. Anandasangaree.
    I ask for a recorded vote on the subamendment.
    (Subamendment agreed to: yeas 11; nays 0 [See Minutes of Proceedings])
    Thank you.
    Now we go to the amendment itself, as amended.
    Yes, Mr. Lawrence.
    I would first just like to thank the officials, particularly Ms. Milligan. I know she's working as best as she can. If I was in any way rude, I apologize.
    I'd like to just move to a vote on this.
    We will proceed to a recorded division, please, on CPC-4.3 as amended.
    (Amendment as amended negatived: nays 9, yeas 2 [See Minutes of Proceedings])
    (On clause 7)
    The Chair: We now proceed to amendment NDP-4 on clause 7.
    Thank you very much, Mr. Chair.
    I appreciate my friend Mr. Anandasangaree's bringing up the importance of making sure that Canada stays onside with the conventions. In fact, we are currently in violation of the convention. Back in 2013, the NDP and the Liberals fought very hard to have section 11 of Canada's cluster munitions legislation fixed. In fact, Paul Dewar, the NDP foreign affairs critic at the time, said that—
    On a point of order, and with apologies to my colleague, Mr. Green, I just want to make sure: Did we vote on the previous clause?
    The Chair: Yes.
    Ms. Rachel Bendayan: We don't need to vote on clause 6. Okay. That's perfect.
    I'm on NDP-6, am I?


    You're on NDP-4.
    Yes, Mr. Anandasangaree.
    Mr. Green, with your indulgence, I just want to bring up an issue.
    We voted on CPC-4.2. I believe that passed. I just want to get clarity from our legislative clerk in terms of the coherence of the legislation when CPC-4.2 passed and CPC-4.3 was defeated. I think the intention was that they would both be passed.
    Perhaps the clerk could give us some clarity on that.
    Yes. Go ahead.
    Thank you, Mr. Chair.
    Indeed, CPC-4.2 referred to proposed section 4.1, which would not exist in the act.
    There are two ways of doing it. Either you can do it at report stage to remove that part of the bill, or you can do it by unanimous consent now.
    Is there unanimous consent?
    Some hon. members: Agreed.
    The Chair: That's excellent. Thank you.
    Mr. Green, it's back to you.
     Thank you.
     Just for the record, this is pertaining to NDP‑6. We have pulled NDP-4 and NDP-5.
    I will start again, if that's okay, Mr. Chair. This is talking about ensuring that Canada adheres to the conventions that are before us. Back in 2013, the NDP and the Liberals fought very hard to have section 11 of Canada's cluster munitions legislation fixed. Paul Dewar, the NDP foreign affairs critic at the time, said, “[W]hen we sign international agreements, it's important that we live up to our signature. It's important that the legislation we adopt does not undermine the treaty we negotiated and signed on to and accepted.”
    This amendment, NDP‑6, is the exact same amendment that Liberal Marc Garneau introduced to the foreign affairs committee in 2013, when they were considering the prohibition of cluster munitions act. Of course, Marc Garneau, as you know, served in Canada's armed forces. He was a strong opponent of section 11 in Canada's legislation, as was Bob Rae. In fact, all Liberals at the time, including Mr. Trudeau, Ms. Freeland, Mr. Dion and Mr. McKay, were strong opponents of section 11.
    We've taken the exact same language here that the Liberals put forward then, and importantly, this is also the same language that you will find in Canada's legislation on landmines, which we can all agree sets an important precedent. I think we can all agree that under no circumstances should any Canadian ever order the use of or even transport cluster munitions.
    This amendment would allow Canadians to participate in joint operations with non-party states.
    Here's what Mr. Garneau said back in 2013.
We in the Liberal Party have stated that our preferred policy would be for Canada to insist that cluster bombs not be used at all in multinational operations that Canada is a participant in. But we accept the fact that the Canadian Forces may end up working with other countries that do use cluster munitions. In these cases, we believe the appropriate policy is to inform our allies that Canada will not participate in the use of cluster munitions, while simultaneously protecting our soldiers. We understand the need to protect our soldiers from legal prosecution for working with other countries.
The words “active assistance”, we believe, accomplish making it clear that the Canadian Forces cannot knowingly or intentionally assist in the use of cluster munitions. But they are protected from prosecution should they unknowingly or unintentionally assist in the use of these munitions.
    Further on, Mr. Garneau also said:
We don't want Canadians to use these cluster munitions, but we do want to protect them in combined operations with countries that may use them.
    As New Democrats at this table here today, we believe that fixing this loophole in the act would finally make Canada's legislation consistent with the convention and with the opinions of over 100 other countries, including many of our NATO allies, as we've heard clearly from witnesses.
    In 2013 and 2014, the Liberals argued strongly to fix section 11. Marc Garneau wrote an op-ed in The Globe and Mail that it needed to be fixed. Bob Rae gave strong speeches in the House against it, and at the third reading, in 2014, the Liberals voted against the unamended bill, then Bill C-6, with Justin Trudeau, Chrystia Freeland, Marc Garneau, Stéphane Dion, John McKay and other Liberals all voting against this. The objections were over this exact clause.
    This is the first opportunity in nine years to fix this legislation. As we heard from Ambassador Rae, he has not changed his position that this clause is wrong. Many Liberals, I think, would feel the same.
    Every expert witness who testified to this wants to see this fixed—Earl Turcotte, who negotiated the treaty for Canada; Alex Neve; Farida Deif.
    Cluster munitions are banned for a reason. The humanitarian impacts of cluster munitions are horrendous. Canadians should not use them.
    Our committee can make this choice today and fix the problem that could have been fixed nine years ago.
    Thank you.


     Thank you, Mr. Green.
    However, I just wanted to point out that clause 5 of Bill C-281 amends the Prohibiting Cluster Munitions Act to prohibit a person from investing in an entity that has contravened certain provisions of the Act. The amendment seeks to remove the various exemptions provided for in section 11 of the act. This is a new concept not envisioned in the bill when it was adopted by the House at second reading and not related to the prohibition from investing in an entity that has contravened certain provisions of the act.
    House of Commons Procedure and Practice, third edition, states this on page 770:
An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.
    In the opinion of the chair, and for the above-stated reason, the amendment introduces a new concept that is beyond the scope of the bill. Therefore, I rule the amendment inadmissible.
    On a point of order, I thank you for your thoughtful response to my intervention, Mr. Chair, but I respectfully disagree with your ruling on the matter, given the importance of this particular clause. At this time, I will challenge the chair's decision and would like to ask that this opinion be put to the committee for a vote.
    We will proceed to a recorded division, please.
    (Ruling of the chair sustained: yeas 6; nays 2)
    The Chair: Thank you. Shall clause 7 carry?
    (Clauses 7 and 8 agreed to)
    (On clause 2)
    The Chair: I'll go back to clause 2. We'll debate on NDP-1.


     Thank you, Mr. Chair.
    As you know, there were some technical issues with the package sent yesterday. The correct amendment ends in 578. It is considered to be in scope by the clerk, and it does what we were trying to do with the original NDP-1. It includes a list but with specific criteria, and it adds a description of the Government of Canada's communications with the families of prisoners of conscience and of its consultations with civil society on matters of human rights. That was something we had heard clearly from the witnesses was needed.
    It also now defines prisoners of conscience, which was also an issue for us. We understand that there have been discussions among the parties about the language for a subamendment, and we are open to that.
    Mr. Genuis.
     Thank you, Chair.
    I thank my colleague from the NDP.
    I have a subamendment to propose. In light of some further discussions, the subamendment I will propose verbally is not identical, though it is quite similar to the one that was distributed in advance.
    The subamendment I'm proposing is similar to reference number 12363478. It seeks to do a number of things. It seeks to require the government to maintain a list of the names of prisoners of conscience. It seeks to replace “Minister” with “government” in one place in terms of the reporting obligations. It also seeks to provide broad redaction powers to the minister in the context of this report in a way that would address situations when the government is of the view that the security of the prisoner or the advancement of human rights require that names not be disclosed.
    The amendment is as follows. First, in line 13 on page 1, we'd replace the word “Minister” with “government”. Instead of looking just at the actions taken by the Minister of Foreign Affairs, it would look at the actions taken by the government in general. We think that's reasonable, because, to be fair, there will be ministers other than the Minister of Foreign Affairs who will do work on human rights in the context of other issues and other engagements.
    The other changes are generally in the text of the reference number I read. They are, namely, that motion NDP-1, proposing to amend clause 2 by replacing line 12 on page 1 to line 2 on page 2, be amended by adding the following after subparagraph 10(4)(b)(i):
(i.1) the names of the prisoners of conscience,
    adding the following after subsection (4):
(4.1) In preparing the list referred to in paragraph (4)(b), the Minister must make all reasonable efforts to consult with family members or representatives of the prisoners of conscience and may decide not to include certain information in the list if a person consulted by the Minister requests that the information not be included or the Minister is satisfied that not including it would be in the best interests of the advancement of human rights or the personal safety of the prisoner.
     and by replacing “In subsection (4),” in subsection (5) with the following:
In this section,
    This is the subamendment that was previously distributed, just with the exception that it adds the words “or the personal safety of the prisoner” to the new proposed 4.1, and it proposes replacing “Minister” with “government” in the place described.
    That's the subamendment.
    Thank you.
    Go ahead, Mr. Anandasangaree.
    Thank you, Mr. Chair.
    Thank you, Mr. Genuis, for that.
    Could we recess for about five minutes to digest this and get back?
    Could I also, before you recess, ask them to resend the copy language? We can ask the mover of the amendment to send that to us.


    I can try. We're kind of—
    We will suspend for approximately five minutes.



     We will resume.
    We were at subamendment CPC.... Copies have been distributed to everyone. Am I correct?
    Mr. Garnett Genuis: I think everyone is aware of it.
    The Chair: Okay. Did you want to add anything? Do you want to go to a vote?
    I think you'll find that the committee agrees unanimously to adopt the subamendment.
    Is it the unanimous consent of all members that it be....
    Yes, Mr. Genuis.
    I'm sorry; there's agreement that the subamendment be adopted on division.
    Mr. Genuis, the legislative clerk is wondering if you could read it into the record, please.
    Okay, I will read the whole thing into the record again. Thank you.
    Here are the changes that it makes.
    First, in (a) of the NDP amendment, which currently reads, “an outline of the measures that the Minister has taken to advance human rights internationally as part of Canada's foreign policy;” the word “Minister” would be replaced with “government”, so it would now read:
(a) an outline of the measures that the government has taken to advance human rights internationally as part of Canada's foreign policy;
    It would add the following after subparagraph 10(4)(b)(i):
(i.1) the names of the prisoners of conscience,
It would add the following after subsection (4):
(4.1) In preparing the list referred to in paragraph (4)(b), the Minister must make all reasonable efforts to consult with family members or representatives of the prisoners of conscience and may decide not to include certain information in the list if a person consulted by the Minister requests that the information not be included or the Minister is satisfied that not including it would be in the best interests of the advancement of human rights or the personal safety of the prisoner.
    Then it would replace the words “In subsection (4),” in subsection (5) with the following:
In this section,
    To those who are referring to the distributed version of the subamendment, reference number 12363478, the subamendment that I moved does not make any deletions from that subamendment. It only adds to it. It takes the words of the existing draft subamendment that was distributed and adds “or the personal safety of the prisoner”, and then it also replaces the word “Minister” with “government” in paragraph (a).
    No text has been removed from that draft reference number. In those two cases only, text been added; it is otherwise the same as that draft reference number.
    Is that clear to the legislative clerk and to all the members?


    The legislative clerk has a question.
    Thank you, Mr. Chair.
    Indeed it is clear, except for the first part, replacing “Minister” with “government”. In French, the reference to the minister appears in the chapeau, which is above the amendment. It's in the bill, so it would need an amendment to the bill in itself, on line 12, page 1, to replace “le ministre publie” by “le gouvernement publie”. Is that what you—


     No. I hadn't looked at the French version before, but I think it is appropriate right now. It's interesting, because it's different from the English version. The French version says, “un résumé des mesures qu'il a prises pour”. That refers to the minister before any changes are made. In this part, we should say, “un résumé des mesures que le gouvernement a prises”.
    The minister has an obligation to submit the report, but the report must include actions that are taken by other ministers.
    Does that work? Yes? Okay.


    We got the sign-off from the legislative clerk.
    Yes, Mr. Anandasangaree.
    Thank you, Mr. Genuis.
    I want to go back to our officials to get some clarity.
    First, in terms of the merits and risks of publishing, I'd like to hear any kind of list of prisoners of conscience. I think that's an important consideration.
    Second, when it becomes clear that the list will remain.... For example, why is government discretion on releasing information related to Canada's work on the release of detained human rights defenders or prisoners of conscience important? What are the consequences of not having this discretion?
    Third, what is the consequence of a legislated requirement to disclose the full names and circumstances of Canada's work on the release of particular individuals?
    Yes, Ms. Keeling.
    I'll speak briefly about how we see the risks of publishing a list in any sort of human rights report. Witnesses before me have outlined significant concerns that the government sees in publishing any sort of list of names, or even the circumstances of potential conditions of detention and the circumstances of that detention. I'll briefly outline some of those again.
    The first, of course, is that the government has the responsibility and the obligation to do no harm. In supporting human rights defenders, what we would call in this case “prisoners of conscience” or any other person whose case we are engaging on or particular pieces we are doing advocacy for, Canada's approach is to do no harm and to make sure there is informed consent. The safety and privacy of these folks is paramount.
    If the government is required to publish a list that sets out the names and circumstances of human rights defenders detained worldwide or other people who might be detained in contravention of their human rights standards, it is not guaranteed in any way that these values will be respected. In addition to that, when we think about the personal safety of those who are detained, it's not just the personal safety of the potential prisoner who is detained; we have to also think about doing no harm to their family, their community and others who are working on these same issues, as well as potential consular issues and any Canadians who may be travelling in that area.
    We also want to think through the risk that a publicized list that sets out the names and circumstances of human rights defenders potentially endangers their safety and, in the most serious cases, their lives, so we would be very cautious about proceeding with any sort of publicized list.
    I think your second question was about the importance of the discretion—that the government have a level of discretion or some sort of assessment of that personal safety. Again, here I would say that there are legitimate reasons not to include certain cases on a list. Even if names are not included, there may be certain identifiable circumstances whereby that person could be identified while detained, and that person therefore may be in a position of facing reprisal by their detaining authority or by the detaining institution. There are also potentially reprisals for their families, their communities, their loved ones and Canadian consular cases, as I mentioned.
    It undermines our ability to make sure we are doing no harm and pulling in informed consent from all of those folks. Government discretion and an assessment of the personal safety of all involved in these cases would be vital for us to have in this amendment.
    I think I've answered all of them, so I'll leave it there. If there's anything else to be clarified, I'm happy to do so.


    Thank you for that comprehensive response, Ms. Keeling. I'm very grateful.
    Now I understand the legislative clerk has a concern and believes there's an oversight in the subamendment.
    Thank you, Mr. Chair.
    To come back to the subamendment, in English, when we say replace “Minister” with “government”, I want to make clear it's the Government of Canada. Is that right? Okay.
    In French, the amendment reads:


    “un résumé des mesures qu'il a prises”.


     It should be replaced by


    “que le gouvernement du Canada a prises”.


    Mr. Philippe Méla: Thank you.
    Mr. Garnett Genuis: I would never presume to correct a francophone on their French, so....
    Voices: Oh, oh!
    Mr. Chair, I just have a comment.
    Sometimes what's happened in the discussion of this section is that we've gone back to underlining discussion points that have already been agreed on by all of the committee. There is broad agreement that the original text of the bill required amendment because there needed to be legitimate redaction powers. The redaction powers proposed in the subamendment are extremely broad. They apply to all parts of proposed paragraph 10(4)(b), not just the names, but also the circumstances, the countries, the detaining authorities and so forth. The government can choose to redact any of that information based on its own assessment of what is in the best interests of human rights.
    The requirement is for the government to prepare this information and to publish information where they think the publication of such information is not contrary to the best interests of human rights. I hope members understand how deep and broad that opportunity is. One can't, I presume, argue against the subamendment or the amendment on the basis that some of the information published might cause other problems because the government has broad latitude to redact that information in any case where it thinks there's a problem—not just the names, but also circumstances, information about the detaining authorities, and so forth. The government has to publish a report, and it has to make an assessment about whether information should be published or not. It can redact the information it thinks shouldn't be public.
    Again, I think this is a very reasonable compromise. It's more than a compromise; I think it's the right thing to do. We don't want to see information published that shouldn't be published either. However, we think that having this report, having the obligation to prepare that list and make these determinations, is in the public interest.


    Thank you.
    We now go to Mr. Anandasangaree.
    Thank you for that clarification, Ms. Keeling.
    Could you further clarify whether there is any resource allocation required for this to be implemented, and clarify the impact of the broad scope of the information that's being disclosed?
    Without seeing the exact wording of the text, I would say, based on listening to what has been presented on the table, that this would likely increase the financial and human resources needed to prepare such a report and a list.
    Thank you.
    I would like just one further clarification.
    I know that, from a government perspective, human rights reporting currently is undertaken by Canadian Heritage, if I'm not mistaken . For example, the UN and all the treaty reporting is undertaken by Canadian Heritage. I think when we change it from “Minister” to “government”, the assumption is that it's whatever organ of the government is charged with this. Would this be Canadian Heritage, or would this be Global Affairs?
    You're correct that Canadian Heritage would lead on the reporting that would go to the UN about our domestic implementation of human rights. That's a job undertaken between the Department of Canadian Heritage, the Department of Justice and Global Affairs Canada. It would be hard to say for certain. In those cases where we're reporting to treaty bodies and where we're reporting to the UN on Canada's own domestic implementation of the treaties we have signed onto, and with regard to other issues we may need to report to the UN, that is done by a domestic body. In this case, I think it would take more than just Global Affairs Canada's pulling together such a list and making sure we have the proper names and all of the circumstances. It would be bit broader than only Global Affairs Canada—as a tentative understanding of how things are drafted currently.
     Thank you, Ms. Keeling.
    We will now go to Madame Bendayan.


    Thank you, Mr. Chair.
    I also have one more question for Ms. Keeling.


    Ms. Keeling, based on the evidence that I have heard so far in the context of this study, I remain deeply concerned about the publication of a list. It would seem to me that the government, as you said, has an obligation to do no harm, and that we could be doing harm by publishing a list. It would also seem to me, notwithstanding the fact that my colleagues have attempted to address that question through the subamendment, that the government does not always have perfect information, and it would be difficult for the government to know whether there are risks to the individual in detention through the publication of their information.
    I would like to understand from you—I understand that you may not have a completely definitive answer for me today—if it is possible for the Government of Canada to be liable for any aggravating circumstances, injury to or the death of somebody in detention through the publication of their name.
     Is it possible that the government may be held responsible legally for that?
    I'm not a lawyer, so I can't comment on the legality piece. I'll restate that the onus falls on the government to ensure that no harm is done by any actions it takes.
     I can't comment on the legality. I'm sorry.
    Did we want to—
    Let's vote.
    We'll have a recorded division, please.
    Mr. Chair, on division.
     All right. We're voting on the subamendment—
    I'm sorry. We agreed to adopt the subamendment on division. It's not unanimous, but it's adopted.
    It's either a recorded vote or on division, Mr. Chair. I propose it be on division.
    We're amenable to on division.
    Are we going back to the amendment?


    Yes, as amended.
    I have another subamendment.
    First we have to approve this, and then we can go to your amendment.
    It was adopted on division.
    We've adopted the subamendment on division, so now we're back to debate on the main amendment.
     It may be that Mr. Anandasangaree has another subamendment to propose to the main amendment.
    Yes. Is that correct?
    That's correct. I believe that's been circulated by—


    I have a point of order, Mr. Chair.




    The Conservative subamendment was just carried on division, without a recorded vote, but no one here was consulted. Do you understand what I mean?
    I would like a recorded vote, please.


    Can we go back and do a recorded vote on the subamendment?
    A voice: Yes.
    The Chair: Thank you.
    (Subamendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])
    The Chair: Thank you.
    Do you have a subamendment, Mr. Anandasangaree?
    I believe that Madam Clerk has circulated the subamendment. It's related to the amendment to (v). I'd like to move it.
    It essentially says “other actions taken by the Government of Canada to support prisoners of conscience, human rights defenders, including those detained or experiencing treatment in contravention to human rights standards”.
     That's been circulated in both official languages.
    Could that be read one more time?
    Mr. Anandasangaree, can you...?
    Clerk, I just have a clarification.
    Contrary to what was distributed, it should read, “other actions taken by the Government of Canada to support prisoners of conscience including those detained or experiencing treatment in contravention to human rights standards”.
    Do we have unanimous agreement?
    (Subamendment agreed to)
    The Chair: We now go back to the amendment itself. Did anyone want to speak to that?
    We'll just proceed to a vote.
    (Amendment as amended agreed to: yeas 6; nays 5 [See Minutes of Proceedings])


    I have a point of order, Mr. Chair.
    What's happening? We have 20 minutes left, Chair. What's the issue?
    The amendment was adopted. Is that correct? Okay.
    Did you want us to suspend? Is it all good?
    The Clerk: It carried.
    Have we passed clause 2 yet? I believe that's next.
    We're on NDP-2.
    Mr. Green.
     Thank you very much, Mr. Chair.
    We have a subamendment here. I want to note that we're eliminating the last line, so it should read, “The Minister must develop and maintain a government-wide international human rights strategy”, and that is it.
    I think, if you seek it, you might find unanimous consent.
    I just jinxed myself.
    On a point of order, Mr. Chair, if you seek it, I think you will find unanimous consent to deem this amendment in scope and adopted.
    (Subamendment agreed to)
    Hey, hallelujah.
    Mr. Green, the legislative clerk has asked you to read it into the record, please.
    I will happily do it.
    It is:
The Minister must develop and maintain a government-wide international human rights strategy.
    It is fairly non-controversial.


    Mr. Green, clause 2 of Bill C-281 amends the Department of Foreign Affairs, Trade and Development Act to add an obligation to publish a report outlining measures taken by the minister “to advance human rights internationally as part of Canada's foreign policy” and listing “the names and circumstances of the prisoners of conscience detained worldwide for whose release the Government of Canada is actively working.”
    The amendment seeks to add a new obligation to the minister to develop and maintain a government-wide international human rights strategy. This is a new concept that was not envisioned in the bill when it was adopted at second reading.
    As House of Commons Procedure and Practice, third edition, states on page 770, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.”
    In the opinion of the chair, and for the above-stated reason, the amendment is a new concept that is beyond the scope of the bill.
    Therefore, I will rule the amendment inadmissible.
    I have a point of order, Mr. Chair.
    I appreciate your learned interpretation of that. I also would present to you that committees are masters of their own domain. Therefore, respectfully, with the deepest and utmost respect for you and our legislative clerks, I am going to challenge the chair, with deep respect and admiration for your hard work and adherence to the Standing Orders.
    I'm going to challenge you. We're going to test the will here.
     Shall the ruling of the chair be sustained?
    (Ruling of the chair overturned: nays 6; yeas 0 [See Minutes of Proceedings])
     Let me say that we very much look forward to Ms. McPherson's return to this committee.
    Some hon. members: Oh, oh!
    The Chair: We will now put it to a vote.
    Yes, Mr. Anandasangaree, go ahead.
    Before we go to a vote, Mr. Chair, I would like to ask Ms. Keeling about any cost implications that this provision may entail for the department.
    As I can see right now from what is drafted in the amendment, the scope of a government-wide international human rights strategy as proposed is extremely broad and encompasses much of Canada's international work. Creating and maintaining the strategy would probably require the allocation of entirely new financial and human resources. Potentially, the creation of new units made up of several new personnel would be required to execute this initiative in an effective, professional and meaningful way.
    Shall we put it to a vote?
    It is a recorded division, Mr. Brunelle-Duceppe.
    (Amendment as amended agreed to: yeas 10; nays 0)


     Now the question is, shall clause 2 carry as amended?
    (Clause 2 as amended agreed to on division [See Minutes of Proceedings])
    The Chair: Shall the short title carry?
    Some hon. members: Agreed.
    The Chair: Shall the title carry?
    Some hon. members: Agreed.
    The Chair: Shall the bill as amended carry?
    Some hon. members: Agreed.
    The Chair: Shall the chair report the bill as amended to the House?
    Some hon. members: Agreed.
    The Chair: Shall the committee order a reprint of the bill as amended for the use of the House at report stage?
    Some hon. members: Agreed.
    The Chair: All that remains is to inform all the members that our next meeting, which is at 11:00 a.m., will be devoted to main estimates. We will have Minister Sajjan with us from 11:00 a.m. to 12:00 p.m. From 12:00 noon to 12:30 p.m. we have officials from the Department of Foreign Affairs, Trade and Development. From 12:30 p.m. to 1:00 p.m., we will have committee business.
    Is it the will of the committee to adjourn the meeting?
     Mr. Chair, I'm sorry. I wasn't aware of this extra half hour for committee business. Is that public or in camera? Can you share what is planned for that?
    My hope would be that we have a full hour to question officials. I think we should have two hours with ministers, but if anything, we should have two hours on main estimates.
    That's also a deviation from the calendar that was adopted previously.
    If there's something you need to discuss for half an hour in committee business, I would just like to know what that is, if we're going to change the calendar. Otherwise, we should just go with the calendar as it was adopted.
    I fully agree with my colleague, Mr. Chair.
    The purpose we set that aside for was travel. In the event we want to do so, we have to put in our proposal, because, as you know, there are a number of different deadlines looming. Members have made it known that they would like to consider the possibility of putting in a travel proposal.
    If I can follow up on that, I assume that's in camera. I think 10 minutes at most would probably be reasonable, based on previous discussions.
    I don't think we want to cut half an hour out of main estimates for that conversation.
    Are you good with 15 minutes?
    I was fine with 10, Mr. Chair, but 15 is good.
    Okay, 15 minutes it is.
    The meeting is adjourned.
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