FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, June 1, 2000

• 0941

[English]

The Chair (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Colleagues, I'd like to begin by making a few comments about the procedure we're going to follow this morning. It looks as if there are a lot of complicated amendments to this bill. I hope I can persuade you that with some goodwill and some movement, we can actually move this along fairly quickly, because there's a fair bit of compromise in what has been done.

I'd like to first, on your behalf, thank the clerk for what she did last night. It will help us a great deal, I believe. If you look at your agenda, you will see every clause for which there is a possible amendment.

I remind colleagues that an amendment is not actually an official amendment until it is proposed by a member of the committee. That's the first thing.

There are proposed amendments coming from two groups on this list. There's the G group, which is short for government, but it really should be C for Cotler, because Mr. Cotler has done two things. He has consulted with the opposition and the NGOs—

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): What opposition?

The Chair: I believe he consulted or listened to the opposition. Let's put it that way.

Mr. Daniel Turp: That's better.

The Chair: He consulted with as many NGOs as he could, and the government. So all amendments labelled G are the result of Mr. Cotler's work, and I want to thank him on behalf of the committee for going to the amount of effort he has. They are the result of his attempt to coordinate the various NGOs with the government. The government supports those amendments. There is no problem with any amendment that is labelled G. It has the support of many of the NGOs that came before committee and the government.

[Translation]

Mr. Daniel Turp: And what about the Liberals? That is different from the government.

[English]

The Chair: We're hoping—

[Translation]

Mr. Daniel Turp: MPs have the right to think for themselves. Irwin is good. We all agree on the draft.

The Chair: Mr. Turp, I am announcing to my Liberal colleagues that the government is supporting these amendments. It is up to them, individually, to decide if they wish to support them or not. I say this for your information, but not to give rise to reactions.

• 0945

[English]

So that's for the G amendments that are referred to on your agenda list and contained in this booklet. Everybody has a booklet in front of them, in which all these amendments are contained. They've been set out. Again, the clerk took a lot of time and effort to put all these in the booklet.

There is another set of amendments referred to on the agenda and contained in the booklet that are labelled R, which stands for Canadian Alliance—and we will have no further comments about that.

Some hon. members: Oh, oh!

The Chair: So in the Canadian Alliance amendments I think you will find, Mr. Lunn, many concordances with what is proposed in Mr. Cotler's amendments. We may be able to coordinate those fairly quickly.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): I'm prepared to move this along quickly.

The Chair: There is a third set of amendments that will be proposed.

[Translation]

Ms. Lalonde and Mr. Turp tell me that they will shortly be tabling four or five amendments. They are being photocopied.

Mr. Daniel Turp: The BQ amendments.

The Chair: I believe that these should rather be the C amendments, as in “confusion”...

Some hon. members: Oh, oh!

The Chair: ... or possibly “Constitution”.

Mr. Daniel Turp: That is a better idea.

The Chair: These constitutional amendments will therefore bear the letter B, as in “Bloc”, and we will begin as soon as they get here. We must wait for them. That is what I wanted to say.

[English]

I just want to remind members, however, that although these amendments have been circulated, they must be put forward by a member. I must rule that it's in order before we can proceed on it.

Don't forget we have several options when we deal with any clause. We can stand a clause down for later consideration, agree to it as amended, carry it, or negative it. According to the rules, and to avoid confusion, only one motion to amend and one subamendment to that motion can be entertained at one time.

Colleagues, I also want to ask a favour of you. I believe we can move this along fairly quickly if we cooperate with one another, partly because we had the opportunity yesterday to thresh out many of the philosophical underpinnings of the bill. I thought that was a very helpful discussion. Again, I want to thank Mr. Piragoff and Mr. Robinson and their colleagues for joining us and helping steer us through that. I think that was a useful exercise.

I'd like to suggest that today we won't need to repeat all the general arguments about the Constitution and the philosophy we had an opportunity to review yesterday. Maybe we can move along a little quicker that way.

Mr. Daniel Turp: Not too quickly.

The Chair: Never too quickly—just quickly enough to be efficient, but not so quick as to bruise anybody's desire to be heard.

[Translation]

Mr. Daniel Turp: That is what Mr. Kirsch wanted to tell us the other day: we must take our time so as to ensure that the bill we carry is a very good one.

The Chair: That is it. We are not hurrying anyone, but we will work efficiently.

[English]

Okay, we now have the proposed Bloc amendments in front of us, so add them to your list.

(Clause 1 allowed to stand)

(On clause 2—Definitions)

The Chair: Mr. Cotler.

[Translation]

Mr. Daniel Turp: I hope that this will not prevent us from discussing the amendment that we would like to make to the short title, because our amendments deal with the short title.

• 0950

The Chair: No. We always come back to the title at the end. You will therefore have the opportunity to move an amendment to the title.

Mr. Daniel Turp: I would like to point out that we also have an amendment to clause 2.

The Chair: Absolutely.

Mr. Daniel Turp: I would not want us to find ourselves in a situation, procedurally, in which, because the study of clause 2 is finished with, we are unable to examine the amendments that have not yet been distributed and that deal with clause 2.

The Chair: Very well.

Mr. Daniel Turp: Have they been distributed?

The Chair: Yes, they have all been distributed. Everyone has the amendments.

I now give the floor to Mr. Cotler, in order that he may move amendment G-1.

[English]

Mr. Irwin Cotler (Mount Royal, Lib.): I'd like to move that Bill C-19 in clause 2 be amended by replacing line 7 on page 2 with the following:

November 10, 1998, July 12, 1999, November 30, 1999 and May 8, 2000.

That is the amendment, Mr. Chairman. The reason for it is there are two additional procès-verbaux, those of November 30, 1999 and May 8, 2000, that could not be taken into account at the time of the drafting of this bill, since they arose after the bill and first reading in the House. It's a technical amendment.

The Chair: Okay, I understand.

I just want to quickly recall the discussion here that the Rome Statute, to some extent, is changed by virtue of the famous procès-verbaux. Therefore, as was pointed out in evidence, it is necessary to amend the definition clause to incorporate all possible references to the bill.

Now, if you look at it very quickly, Mr. Cotler's amendment refers specifically to all the procès-verbaux. We also have a proposed amendment by the Canadian Alliance that refers to setting out these things in the schedule. I would point out that the Bloc amendment is exactly the same as the proposed Reform amendment, so let's see if we can deal with that all at once.

Let's decide whether or not Mr. Cotler's proposed amendment satisfies everybody. I would just draw to your attention that if we go the Canadian Alliance and Bloc route, we will have to amend the schedule, whereas if we go with Mr. Cotler's route, we won't have to amend the schedule. Is that correct?

The Clerk of the Committee: That's correct.

The Chair: Do we want to amend the schedule? Is there any problem with that?

Maybe I could ask our experts. Do you understand what we're saying? Do you have any comments on whether it's advisable to just refer to the procès-verbaux in the definition or amend the schedule? Which would you propose?

[Translation]

Mr. Turp.

Mr. Daniel Turp: There is a question I would like to ask at the same as yours is being asked. Was it mentioned yesterday that there might be other corrections to the procès-verbaux? There have been four up until now, and two were missing. Thanks to Mr. Narvey, we have been made aware of the fact that there were others, and there is even one more recent one. Could there be more? If there were to be more, should we not add to our amendment the words: "and any other corrected procès-verbaux that might subsequently be approved"? If there are already four of them, could there not be a fifth and a sixth, that would not be covered by this amendment? The rest is a matter of substance that we will have to discuss.

The Chair: Very well.

[English]

Mr. Darryl Robinson (Legal Officer, United Nations, Human Rights and Humanitarian Law Section, Department of Foreign Affairs and International Trade): Thanks very much. There's a handful of questions there.

First of all, on the question of whether there will be more corrections, more procès-verbaux, when the Secretary General of the United Nations issued the last set of corrections, he indicated it would be the last set of corrections. The Rome Conference was two years ago today, and they're going to stop perfecting the text.

There is something I should clarify, as well, about the nature of procès-verbaux. None of them involve substantive changes to the text. The Rome Statute was negotiated, and the working language was English. All languages are equally authoritative text, however, so it was important to make sure that everything was properly drafted in all languages.

• 0955

With respect to Mr. Chairman's question about the schedule, I should clarify that with the government amendment or the Cotler amendment it will involve some minor changes in the schedule. We would bring the schedule up to speed to reflect all four procès-verbaux. But it does not involve as extensive a change to the schedule as the Bloc or Canadian Alliance proposals do.

With respect to the Bloc and Canadian Alliance proposals, that would be to then append the entire Rome Statute in both English and French. As we indicated yesterday, we don't think that's necessary, because we're not incorporating the Rome Statute itself into Canadian law, which is a device we've used a few times with other treaties, but it's not the norm and it's not what we're doing here.

In terms of dissemination, the Rome Statute will be disseminated. You can get it on the Internet in about 15 seconds. We will be tabling it in Parliament. If Parliament passes the implementing legislation and Canada ratifies, it will enter the Canada Treaty Series and would be tabled in Parliament.

There are two possible problems with trying to set out the entire Rome Statute in the schedule. The first one is simply purely a technical problem, that is, the justice department legislative drafters have compiled a corrected version reflecting all four procès-verbaux for just articles 6, 7, and 8, which was a lot of work by itself. To do the same for the whole Rome Statute, there simply.... That document isn't available yet. It could be compiled, but a complete Rome Statute, in English and in French, reflecting all the corrections.... It has certainly not been tabled here today.

So there's one technical problem, and there's another final comment.

To append the Rome Statute and to have Parliament specifically approve the Rome Statute seems to us to look like a change in the procedure. We are not objecting to a change in the procedure, but if Parliament wants to change its procedures, we think it should be done consciously, after debate and discussion and so on and so forth. Again, your private member's bill is the vehicle to do that, but we're hesitant to see us try to grapple with that one here today.

The Chair: Mr. Lunn, may I make a recommendation?

Mr. Gary Lunn: Yes.

The Chair: May I recommend that you at this point at least put your subamendment in so that we have it on the table. Then we can have a discussion about.... And it's pretty clear where we're going to go. We're either going to go where we refer to the two procès-verbaux and leave it at that and let the government move the text, or we go your route, which is to incorporate the whole statute. I don't know whether you want to change that by virtue of Mr. Robinson's—

Mr. Gary Lunn: Do you want to me to move that now?

The Chair: Yes. Why don't you move it now? Then we'll have that on the table and I can then clearly call for your amendment and the Bloc amendment. We can vote on it and then go to the other amendment and vote on it; we can move quickly that way.

Mr. Gary Lunn: I move that Bill C-19 in clause 2 be amended by replacing lines 7 and 8 on page 2 with the following:

November 10, 1998 and July 12, 1999, which is set out in the schedule.

The Chair: Right. So that would be a subamendment to—

Mr. Gary Lunn: I just have one very short question and then we can get on with this.

The Chair: Okay. May I just quickly say...?

[Translation]

Mr. Turp, do you agree that the amendment moved by Mr. Lunn is exactly the same as yours and that it is therefore not necessary to discuss yours?

Mr. Daniel Turp: Absolutely.

The Chair: Very well.

[English]

Mr. Lunn.

Mr. Gary Lunn: The only question I have, and one of the other reasons for putting it in the schedule, is that I understand they're still negotiating the rules of procedure and evidence. By appending it in the schedule, would that not also realign to make sure we're consistent by putting it in the schedule...? I understand that is not complete at this time. Am I correct? Have the rules of procedure and evidence been set out or finalized?

Mr. Darryl Robinson: The rules of procedure and evidence are now being negotiated in a body called the preparatory commission. The preparatory commission's last batch of negotiations, their last session, will take place from June 12 to June 30. At that time, it's still going to be draft rules and procedures suggested by the preparatory commission.

Mr. Gary Lunn: Yes.

Mr. Darryl Robinson: When the ICC statute enters into force, a body will be created called the Assembly of States Parties. That body has the authority to then approve the rules of procedure and evidence. But as for our own implementation efforts, the rules of procedure and evidence are not relevant. The reason is that the Rome Statute already specifies in really incredible detail what the procedures are going to be. These rules must be consistent with the statute. The rules cannot change the way the statute works and they're just a more detailed set to help the court off in the Hague do its work.

• 1000

Mr. Gary Lunn: Thank you.

The Chair: So does that help you in any way as to whether or not you want to incorporate the Rome Statute as a schedule or not? You're okay?

Mr. Turp.

[Translation]

Mr. Daniel Turp: I presented my arguments yesterday and it is my understanding that you submitted them to the higher authorities of your department, but I would nevertheless like to tell you that this is not a change in practice. It would not be a change in practice to include the Rome Statute in the schedule. In other treaty implementation acts, both present and to come, the conventions were included in their entirety in the act, and I am thinking specifically of the Geneva Conventions on international humanitarian law. This will facilitate dissemination. It is true that there are other means of dissemination, but in the specific case of international humanitarian law and international criminal law, this would in my view be justified.

There is therefore no change to practice, because there is an analogous practice for other analogous treaties and there are a good many provisions of the Geneva Conventions, to take this example, that are not directly enforced by the act itself. We could also take the example of the implementation act for NAFTA. It is thus justified to include a treaty in its entirety even if all the provisions it contains are not applied because they are institutional in nature, or whatever.

The difference with certain other implementing acts for agreements or treaties is that in this case we are not going to be saying that the treaty will have force of law in Canada. We would not want the entire treaty to have force of law here because that is not necessary.

This is why I find it perfectly justified that this important statute in the history of humankind and in the history of law be put in its entirety in the schedule. If for technical reasons you are unable to do that immediately, there will still be report stage, at which time you would be able to table an amendment. Mr. Cotler could table an amendment such that, when we pass the bill, next week or the week after, the text of the treaty might be added in its entirety to the schedule, which would give your colleagues in the Justice Department the necessary time to prepare a definitive version of the Rome Statute.

I would like to know if you would be prepared to envisage this possibility given the technical difficulties you mentioned today.

[English]

The Chair: That may be more directed to argument from the other side than asking a witness—

Mr. Irwin Cotler: I appreciate the considerations that Daniel proposed. There's this whole question of sensibilisation, and I think that's part of the idea of having the whole treaty. I think it's something that could be looked into. But I'm not sure that procedurally this is the time to go ahead and do this, because once we do that, as was explained yesterday, we may be pre-empting a process that should not be accomplished right now and it may change the whole nature of the amending process.

As I understand it from the comments that were made yesterday, for example, there was some witness testimony yesterday that was opposed to the whole of the treaty being included at this point, the whole schedule, as the annex to the bill. The amendments that I've tried to propose have been those that reached a consensus amongst all the NGOs. So I'd be reluctant to go ahead to support something that does not, at least in the canvassing I was engaged in, have the support of the NGO groups that appeared before us.

I'm saying it's something that we can still look into and still do. I'm just saying I don't think it needs to be done at this moment, at this hearing.

• 1005

[Translation]

Mr. Daniel Turp: I would like to add that several NGOs, namely B'nai Brith, but others as well, have asked that the treaty be included in its entirety in the bill. We are putting this forward ourselves because these organizations, like us, from the Bloc and the Canadian Alliance, are obviously all hoping for better dissemination and the appropriate instrument for this is this bill. It certainly is not an issue that should prevent us from passing this bill, but I would nevertheless like to sensitize the government to this issue and ask it to study the possibility, for technical reasons, of tabling in the House of Commons, at report stage, an amendment that would allow for the inclusion of the whole treaty.

Mr. Irwin Cotler: I am in agreement with that, but I believe that we should do the study before tabling such an amendment.

[English]

Mr. Gary Lunn: This is probably the most important amendment for us as well, so I want to reassure everybody that we're not going to be doing this on every amendment.

I'm still not convinced there's not a reason why we can't append it in the schedule. If we get this one amendment, I think the rest of them are all going to go by because we agree that we can resolve them very easily. But this is the one, and I still haven't heard anybody give me a reason why we can't do it. I know there are some, and I want to ask the witnesses—because it's done, and we've set that precedent before by appending the treaty—is there a good reason? I haven't a very strong reason why they'd be opposed to it.

The Chair: Okay.

Mr. Gary Lunn: I sense that the attitude is that it could be done but we would prefer not to, and nobody has really come up with a very substantive reason why it would be not a good thing to append it. If we appended it now, I think we could move through the rest of this very quickly.

The Chair: Maybe I could say something to you a little bit in layman's language—and we'll let the lawyers come back—maybe with a little bit of a lawyer's gloss on it, but maybe political.

To some extent, you will appreciate that the discussion in the room moves around two issues: the merits of the actual issue here, but also around the whole of the constitutional procedures under which we presently operate in our government, and about which, I would say, we are presently in a state of flux. Mr. Turp, by his various bills, and others, and often the Canadian Alliance as well, have often sought to move our procedures closer to that of a congressional system than—

Mr. Daniel Turp: The Australian.

The Chair: Okay, the Australian or other parliamentary systems, where Parliament is more directly involved in the process of treaty appropriation. As you know, our system is that we adopt legislation that implements treaties but we don't adopt the treaty.

So there's some political and constitutional dimension to this in addition to the merely technical thing: is it advisable to incorporate the treaty into the law? As the witnesses pointed out to us, there are some cases—and I think the Extradition Act is one—where the treaty is appended. There are various cases where treaties have been appended to law, so I can't say it's never been done before.

Mr. Gary Lunn: Right.

The Chair: But there might be a legal issue, once it's appended to the law, as to the extension of interpretation as to whether or not the treaty, as such, has been incorporated in Canadian law as the treaty, sort of holus-bolus. Then that becomes a whole host of constitutional law issues, which will end up in the Supreme Court of Canada, and lawyers in the future will make lots of money out of it and have a wonderful time.

As I understand it, the witnesses are telling us that's one way we can go, but if we choose to go that route, we're recognizing that in the case where there's a discrepancy between the statute and the treaty.... Previously constitutional lawyers and international lawyers have always said the statute prevailed because that's what the will of Parliament was. Once you get the treaty incorporated in too, then you get a whole host of competing rules and things like that.

As an international law lawyer myself, I have some sympathy for the idea that we'll put the treaty in, because then the treaty will prevail over the law, and in a way, that's what it should be, because we're supposed to be incorporating the treaty in. But this is a philosophical discussion and a constitutional discussion as much as a technical discussion. I think that's why you're getting some resistance, Mr. Lunn, from the government on what looks like a simple thing to do but that raises a lot of other issues.

• 1010

That's my answer, anyway. Then Mr. Turp has an amendment, and then we'll go back to—

[Translation]

Mr. Daniel Turp: I have a question on procedure. The Clerk might be able to enlighten me. Mr. Cotler is committing himself to calling upon the government to reflect upon the idea of moving an amendment the purpose of which would be the inclusion at report stage of the treaty in its entirety. I hope that you are going to respect the commitment you are now making before the committee. I wish to withdraw my amendment because I would like to be able to present it at report stage. If I understand correctly, if my amendment is defeated, I will not be able to present it at report stage. I would ask for the Clerk's assistance: if the Canadian Alliance amendment is defeated, will that prevent me from presenting a similar amendment myself?

The Chair: You have not presented your amendment.

Mr. Daniel Turp: If I have not presented it, then there is no need for me to withdraw it. But my question is the following: if the amendment of the Canadian Alliance dealing with the same issue is defeated today, will I nevertheless be able to myself present an amendment at report stage? Do you have an answer?

The Clerk: Mr. Lunn's sub-amendment relates only to the procès-verbaux. It does not deal with the same thing as yours. The sub-amendment that he has presented talks about the procès-verbaux

[English]

“which are set out in the schedule.”

[Translation]

We began discussing your amendment even though it had not been formally proposed.

Mr. Daniel Turp: Could you be more precise? Our amendments are exactly the same, at least in French.

The Chair: They are the same in English as well. I fully understand.

Mr. Daniel Turp: I have here R-1 and B-2, that are exactly the same. If R-1 is defeated, will I be able to propose an amendment identical to B-2 at report stage?

[English]

The Chair: I think what the clerk is saying that your other amendment, which is B-5, “That Bill C-19 be amended by replacing the Schedule with the entire text of the Rome Statute.” That's not on the table at the moment, so even if this is defeated you're still free—

[Translation]

You will still be allowed to propose the other amendment.

Mr. Daniel Turp: Very well. For greater certainty, Madam Clerk, does that mean that I will not be able to table that one at third reading because it will have been defeated in committee today? I could ask my friends from the Canadian Alliance Party to withdraw it.

[English]

The Chair: Mr. Lunn, if you'd consider adopting the strategy that Mr. Turp is moving towards, I understand the proposal both by him and by Mr. Cotler would be that if this amendment were withdrawn we would then be satisfied at this stage with the references at least to include the two procès-verbaux, and then, when we move this to the House, at that point we could have a discussion. Maybe the House leaders and the government and everybody would agree to an amendment that would deal with this deeper issue of incorporating the statute.

Could we have unanimous consent to withdraw the subamendment? We've had a discussion on this, I think, long enough. Could I put it to the vote?

(Subamendment withdrawn)

(Amendment agreed to)

[Translation]

Mr. Daniel Turp: Did you count me as well?

• 1015

[English]

The Chair: No, no, but you will see later on that we have many where there is nothing. So while this may be disturbing for some, as usual it's slower at the beginning.

[Translation]

Mr. Daniel Turp: We still have clause 2.1 that we are moving.

The Clerk: Forgive me. Are you moving this motion, Mr. Turp?

Mr. Daniel Turp: Yes.

[English]

(Clause 2 as amended agreed to)

The Chair: Now we have a proposal to add clause 2.1, and that's from Mr. Turp.

[Translation]

Mr. Daniel Turp: There are several, Mr. Chairman. I would point out to you that there are three clause 2.1 amendments, unless amendments R-2 and R-3 have been withdrawn.

The Clerk: They were never proposed.

[English]

The Chair: Okay, they were never proposed.

Mr. Daniel Turp: Okay.

The Chair: Just because they're on this sheet doesn't mean they're proposed. They have to be proposed by a member, and Mr. Lunn has them.

A voice: [Inaudible—Editor]

The Chair: No, he can't now...well, yes, because clause 2 is already carried as amended.

Do you want to propose your clause 2.1?

Mr. Daniel Turp: Monsieur le président, was clause 2 carried as amended?

The Chair: Yes.

[Translation]

Mr. Daniel Turp: We were against.

[English]

The Chair: Yes.

[Translation]

Mr. Daniel Turp: Fine. Then are we now going to move on to our suggested clause 2.1?

The Chair: Yes.

Mr. Daniel Turp:

2.1 The Rome Statute is hereby approved.

[English]

2.1 The Rome Statute is hereby approved.

[Translation]

As is the case with other acts aimed at implementing international treaties, the Bloc is suggesting the inclusion of a provision such that upon passage of the implementing bill, Parliament will approve the treaty.

I am hoping that one day Parliament will approve treaties as such and not simply within an implementing act, because we must fill this democratic gap that presently exists and that is such that the government is negotiating treaties without having truly consulted Parliament. Even if that is the way things were done in the past... You are aware that up until 1966, Parliament had the opportunity to approve treaties before they were signed and ratified by Parliament or only ratified. This practice was abandoned in 1966 with the Automobile Pact. But ever since, in several treaty implementation acts, in particular for NAFTA, a provision was included, stating that the agreement had been approved.

In the case of a treaty as important as the Statute of the International Criminal Court, I would suggest that we include in this act a provision stating that the Rome Statute is approved. This would be done through an act, as was the case previously. This would not be done through a resolution of Parliament as I and others had hoped for with the bill, in order to democratize the process of treaty conclusion. That is what is meant by this.

I would like to hear Mr. Robinson and Mr. Piragoff in this regard. This would have no effect legally speaking; it would simply be symbolic and would show approval of a treaty by Parliament.

The Chair: Before going into the details of your arguments, I must say that there is a matter of form here. I cannot accept this amendment because it goes completely beyond the scope of the bill. You know as well as I do that an amendment proposed here must relate to the bill itself.

• 1020

[English]

As I've been advised by the clerk's office, it is an implementing bill. If we suddenly say we're going to approve a treaty, then we're moving ourselves into the position of Parliament.

I'm going to have to rule this out at committee stage. It's not an appropriate committee stage amendment. I'm going to have to rule it out of order. If you want to argue about that, I'd ask you to address yourself to that issue before we get into the whole thing. All I can say is good try, but no cigar, as they say.

[Translation]

Mr. Daniel Turp: Concerning receivability, there are several implementing bills for existing international treaties

[English]

in the statute books.

The Chair: Yes, but the government put them into the bill. They weren't put in—

[Translation]

Mr. Daniel Turp: That was analogous.

[English]

The Chair: Can you give me an example where one was added at committee stage by a committee when it wasn't in the original bill as proposed in the House? That's what you have to give me.

[Translation]

Mr. Daniel Turp: I have not yet done the research on that, but if you grant me the time to do it before deciding...

[English]

The Chair: No. Because I'm advised by the clerks who have done this research that it's not in. If you want to challenge the chair, challenge me now, and that's my ruling. It's out of order.

[Translation]

Mr. Daniel Turp: Madam Clerk, how would one go about appealing the Chair's decision on this issue?

The Clerk: Through a vote.

The Chair: Yes, through a vote.

Mr. Daniel Turp: Well then, I ask for the vote to be taken.

[English]

The Chair: Okay. That's fair.

[Translation]

You are perfectly entitled to proceed in this way.

[English]

Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.): I'm with you on that—

[Translation]

Mr. Daniel Turp: We will have someone with...

The Chair: Ms. Beaumier is in agreement with you.

[English]

Ms. Colleen Beaumier: I don't know, you're the expert. However, it sounds good to me.

[Translation]

The Chair: Ms. Beaumier has always been charmed by the words of Mr. Turp, and I insist on the term "words".

[English]

The Chair: Mr. Turp is challenging my ruling. I just have to rule it out of order. It's well beyond the scope, so that's my ruling. Mr. Turp wants to put that question. Those in favour of supporting the ruling of the chair? Those challenging?

Okay, the chair's ruling—

[Translation]

Mr. Daniel Turp: May I ask a question?

The Chair: Yes.

Mr. Daniel Turp: Could Mr. Robinson and Mr. Piragoff enlighten us as to the scope of such a provision? I do not know if you have done research on this, but when a clause of an implementing bill states: “this statute is approved”, what is its legal impact?

[English]

Mr. Darryl Robinson: I guess I start actually with a question to the chairman. Was this just ruled out of order, in which case I shouldn't answer? Or should I?

The Chair: At this point the question is moot. It was ruled out of order, so it's more for intellectual curiosity than for edification.

Mr. Darryl Robinson: Okay.

The Chair: And members have to realize we have a lot to do, so we can't spend a lot of time on this.

Mr. Daniel Turp: He can answer quickly.

The Chair: Can you give a very quick answer?

Mr. Darryl Robinson: Sometimes there's a technique of implementing a treaty where you append the treaty, you make the treaty the law in Canada, you say this treaty is adopted, and then the Canadian courts could apply the treaty itself.

An example is the Geneva Convention, which creates rights for victims. In there we've made the Geneva Convention directly applicable in Canada. Sometimes that format is used, but that is the exception.

The format of Bill C-19 is, at present anyway, the normal format. It's confusing, I suppose, what the meaning would be of the expression, “The Rome Statute is hereby approved”. It's something we think Parliament should be discussing fully to determine what the procedures are.

I'll just stop there. I think that's my answer.

The Chair: I think what Mr. Turp is trying to do is get something for his next textbook on international law, so he can just incorporate it. That's very useful, but misguided.

[Translation]

Mr. Daniel Turp: [Editor's Note: Inaudible]

[English]

The Chair: This is the problem with this.

The next question is on clause 3. There were no amendments proposed.

(Clause 3 agreed to)

• 1025

(On clause 4—Genocide, etc., committed in Canada)

Mr. Gary Lunn: Can I move this now?

The Chair: Yes, if you want to.

Mr. Gary Lunn: I move that Bill C-19, in clause 4, be amended by adding, after line 18 of page 2, the following:

(1.1) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence under subsection 1, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

I think it's fairly obvious why we moved that amendment. I'd just like to hear the witnesses' comments on that.

The Chair: Bear in mind that there are other amendments as well.

Mr. Gary Lunn: Are there some that are similar to that?

The Chair: Maybe, Mr. Cotler, you could at least put yours.

Mr. Irwin Cotler: I thought we were going to be considering an earlier amendment.

The Chair: Well, no, it's clause 4. According to the agenda sheet, under clause 4 we have the Canadian Alliance amendment R-5 and a possible Canadian Alliance R-6 as well.

Are you not going to propose that one? Can we strike that one off our list, so we know we're not going to worry about it? You have R-5 and R-6. Then we have a whole series of Cotler amendments, G-2 and G-3. If we deal with G-2, it knocks out—

Mr. Gary Lunn: I'm going to move R-6, but it's a completely separate discussion from this. We don't need to get into a discussion; we can just put the question.

The Chair: Okay, fine. You can actually move to subamend his amendment by putting G-2 on the table and then we can—

Voices: No, no, no.

The Chair: No? It won't work. Okay, they're totally different.

Mr. Irwin Cotler: They're different, yes.

The Chair: Okay, so we'll have to leave that and we'll have a discussion about Mr. Lunn's amendment.

Mr. Gary Lunn: I'd just like the witnesses' comments on that.

The Chair: Could you comment, then, on Mr. Lunn's question?

Mr. Donald K. Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chairman.

This issue was discussed yesterday and this was a suggestion raised by one of the witnesses, or maybe two of the witnesses. The concern that is covered in the proposed amendment is already addressed in subsection 21(2) of the Criminal Code. By operation of subsection 34(2) of the Interpretation Act, the provision of the Criminal Code applies to this act.

The effect of this amendment is exactly what is already the law, which is that persons who act in common to carry out an unlawful purpose are each a party to the offence. They are equally guilty as the actual perpetrator of the offence. That is the existing law by virtue of the Criminal Code, which is carried over into this act by virtue of the Interpretation Act. Therefore, this amendment is not necessary because it is already the law by virtue of the combination of the Interpretation Act and the Criminal Code.

Mr. Irwin Cotler: Mr. Chair, on this point, I appreciate the intention behind this amendment. It was proposed by Mr. Matas, among others. It also was referred to by Bruce Broomhall. I myself considered this in discussions with the NGO and with the officials. Appreciating the application of the Interpretation Act, which incorporates section 122 of the Criminal Code by reference—and this is therefore a restatement of that—I am proposing an amendment that would expand that part of the Interpretation Act to section 122, which is not part of this legislation.

• 1030

In other words, what you're proposing is already part of Canadian law and comes into this act by reason of the Interpretation Act. But the principle behind what you're saying, namely to broaden the whole issue with regard to those who are involved in attempts, accessories after the fact, etc., is not included in the Interpretation Act. That's what I'm proposing by way of an amendment to the same clause, but just using different language. This includes matters not in the amendment that you're proposing, which is already part of the law.

If I can, Mr. Chairman, I'll just move—

Mr. Gary Lunn: Mr. Chairman, if he wants to amend mine, I'm quite happy to do that.

The Chair: I've been advised by the clerk that they're different. They kind of overlap, but they're sufficiently different that we can't.... If you withdrew yours, we could do that.

Mr. Gary Lunn: Sure.

(Amendment withdrawn)

The Chair: Mr. Cotler, do you want to put in yours, then?

Mr. Irwin Cotler: Yes. I move that Bill C-19, in clause 4, be amended by (a) adding after line 18 on page 2 the following:

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection 1 is guilty of an indictable offence.

and (b) replacing line 20 on page 2 with the following:

under subsection 1 or 1.1

That is just the technical part of that.

The Chair: As I understand it, this applies to your amendments G-4 and G-5, so they render those moot. We don't have to do them if we do this.

Mr. Irwin Cotler: That's correct.

The Chair: The vote applies to those two as well. Does everybody understand that?

I am going to put the question on the amendment.

[Translation]

Ms. Maud Debien (Laval East, BQ): Just a minute, Mr. Chairman.

The Chair: There is a conspiracy.

Mr. Daniel Turp: In the marginal note to the French version of amendment G-2, the comma after the word “tentative” should be removed.

Mr. Irwin Cotler: You are probably speaking to the translation of the amendment I have just read.

Mr. Daniel Turp: Yes, indeed. In the marginal note, we must remove the comma after the words “Punition de la tentative”.

The Chair: The text should read: “Punition de la tentative de la complicité, etc.”

Mr. Daniel Turp: It should read: “Punition de la tentative de complicité, etc.” We therefore must remove the comma and the word “la”. Let us ask the legal advisors for their opinion.

[English]

The Chair: The marginal notes, of course, don't count as part of the text. They're just there as explanations.

Mr. Piragoff, do you want to just—

[Translation]

Mr. Daniel Turp: Could you tell us how you would translate the words “Conspiracy, attempt, etc.”? Should we say: “Punition de la tentative, de la complicité, etc.”?

Ms. Francine Lalonde (Mercier, BQ): “Punition de la tentative, de la complicité.”

[English]

Mr. Donald Piragoff: The comma should be there because they are each separate.

The Chair: In other words, they're describing two different offences here.

Mr. Donald Piragoff: Yes.

The Chair: So we need the comma.

[Translation]

Mr. Daniel Turp: Is it necessary to use the word “punition” in the French version. This notion does not appear in the English version.

[English]

Mr. Donald Piragoff: I'd have to defer to the French editors who reviewed this. I could check what's in the Criminal Code.

The Chair: As we said, we're not adopting this. This is not part of the legislation.

[Translation]

Mr. Daniel Turp: No, it is the marginal note.

The Chair: It is a marginal note that is not part of the bill.

Mr. Daniel Turp: You must ensure that it is correct.

The Chair: We will ask the experts to ensure that the French version corresponds to the English version.

Mr. Daniel Turp: Or vice versa.

The Chair: Agreed. We will assure ourselves that the English version corresponds to the French version.

[English]

(Amendment agreed to)

The Chair: Shall clause 4 as amended carry?

[Translation]

Ms. Francine Lalonde: There are the definitions.

[English]

An hon. member: I have another motion.

[Translation]

Ms. Francine Lalonde: The government has moved amendments to the definitions that apply to this clause.

Mr. Daniel Turp: This is amendment G-3.

[English]

An hon. member: We have two more. There is a government one and we have an amendment.

• 1035

The Chair: I apologize. G-4 and G-5 come under clause 5, so get them off your sheet.

We have G-3 and then R-6.

Mr. Irwin Cotler: I'll move G-3 just because it's in sequence.

The Chair: Okay. What page is that on?

Mr. Irwin Cotler: It's page 10 in your amendments.

Again, this is an amendment that responds to the references made yesterday about bringing clauses 4 and 6 in congruence with regard to the definitions of the offences. I'll just read the whole text of the amendment.

I move that Bill C-19 in clause 4—

Mr. Gary Lunn: Dispense.

The Chair: Okay. We understand the thrust of this. This is technical language on which you have consulted with the government lawyers—

Mr. Irwin Cotler: And the NGOs, and have arrived at an amendment. That's correct.

[Translation]

Ms. Francine Lalonde: Does this amendment repeat word for word the text of clause 6?

The Chair: Could you repeat your question please?

[English]

Is this the same text as in clause 6? If so, why are we—

[Translation]

Ms. Francine Lalonde: I had intended to read the clause, but I was not given enough time.

[English]

Mr. Irwin Cotler: No, it's a different text.

[Translation]

The Chair: An addition is being suggested.

[English]

Mr. Irwin Cotler: We are including the line “is committed against any civilian population or any identifiable group” in the definition of crime against humanity. It was not there before. You could look at it and feel that it's the same one. It's just including that sentence by way of change.

The Chair: That is the one that the NGOs felt had been left out and should have been included.

Mr. Irwin Cotler: Exactly.

[Translation]

Ms. Francine Lalonde: Does the rest of the text remain the same?

The Chair: Yes, we have simply rendered the definition a little more precise than it was previously.

[English]

Ms. Diane Marleau (Sudbury, Lib.): Call the vote on the amendment.

The Chair: I've been asked to call the vote on the amendment. I will call the vote—

[Translation]

Mr. Daniel Turp: I would like to be given an explanation on subsection 4(4) that the government is moving in amendment G-3 and that begins with “For greater certainty” in English and by “Il est entendu que” in French. Could you explain to us what this means?

The Chair: Go ahead, Mr. Robinson.

[English]

Mr. Darryl Robinson: The way this works—which was formerly clause 6 and will now be the same structure in clauses 4 and 6—is that the Canadian courts may apply customary international law. In order to assist the courts, we then guide them to the fact that articles 6, 7, and 8 of the Rome Statute were specifically designed to reflect customary law existing on July 17, 1998.

But I should also clarify that those crimes in the Rome Statute are not, and do not purport to be, a complete codification of customary international law. For example, there are some crimes that we couldn't get agreement to include in the Rome Statute. The most obvious one is certain weapons of mass destruction, such as the use of chemical weapons, which in the view of the Government of Canada would be a war crime under customary international law. That's not in the Rome Statute.

Otherwise, the Rome Statue is a very helpful reference. It's a treaty that was developed by a large number of states. The intention of those states was to reflect customary law, and the endorsement of that treaty by so many states makes it a very authoritative statement of what customary international law is. So we can assist our courts by giving them a template to look at.

They can also go beyond the Rome Statute if something else evolves in the future. There are the chemical weapons I mentioned. Maybe someday in the future the prohibition on landmines will enter into customary international law so that courts could apply that.

I think I've explained everything. Is that a sufficient explanation?

• 1040

The Chair: You wanted to complement that—

Mr. Irwin Cotler: Basically the idea here is to harmonize clause 4 with clause 6 where this is already contained re clause 6. The second thing is to act as a guideline to our courts in the interpretation and application of what may be regarded as customary international law and, as well, not precluding any dynamic development with regard to international law.

I don't want to make direct reference to the Finta case, but there were some problems in the Finta case as to what constitutes customary international law, etc. This is really an interpretive guide for the courts domestically. That's why it says “For greater certainty”, just to make clear what is set forth in articles 6 and 7 regarding the international crimes.

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: Bill, this is most certainly a discussion that you will find interesting. In the interest of our preparatory work and in the interest of the courts that will eventually be applying this provision provided for in subsections 4(4) and 6(4), I would like us to be extremely clear. We had a debate here with Mr. Matas, who did not want to see a provision such as this one. He said that we were freezing customary law. We had subsequent discussions on this, and, if I understand correctly, this provision would not have that effect. The courts will, in applying this act, be able to apply the customary law that will be developed following the Rome Statute.

I would like you to confirm for us, for purposes of inclusion of this in the preparatory work, that the fact that this provision is included in this act and by virtue of the principle

[English]

that international law is part of the law of the land but yields to statute,

[Translation]

will not prevent the courts from applying customary law such as it has evolved since July 17, 1998. Is that the proper reading and the proper understanding of this subsection?

[English]

Mr. Darryl Robinson: I think that's actually a very fair question, because it's very important that everyone here is comfortable that we are not freezing the development of customary international law. What I'll do is point out certain aspects of this that I think will make it crystal clear to our courts.

First of all, the definitions of the crimes. Basically we're defining them by reference to customary international law. So the court is applying the crime as defined in proposed subclause (3) in this case, “crime against humanity”, according to customary international law. We're not instructing the courts now to apply “crime against humanity” according to the Rome Statute. That obviously would freeze what the courts can apply.

So, first of all, we're telling the courts to apply “crimes against humanity” according to whatever customary international law exists at the time and at the place.

Then in proposed subclause (4), note that subclause (4) does not say that for greater certainty, customary international law is the Rome Statute. That would arguably freeze the way our courts could interpret customary international law. It's the other way around: For greater certainty, these crimes in the Rome Statute are crimes according to customary international law.

Do you see what I mean about the difference there? We're not saying customary law is the Rome Statute; we're saying the crimes in the Rome Statute are customary international law. That's without prejudice. Then to make it extra clear, we've added on an additional sentence. That sentence says: “ This does not limit or prejudice in any way the application of existing or developing rules of international law.”

I think that even without this sentence, it's already clear that we're not freezing customary international law. But just to avoid any problem, we've added this sentence. And that sentence, by the way, is based on article 10 of the Rome Statute.

Mr. Irwin Cotler: It's the same statement.

Mr. Darryl Robinson: Yes.

Mr. Irwin Cotler: We leave it open for them.

Mr. Darryl Robinson: Exactly.

And the purpose of article 10 in the Rome Statute was exactly to make this point, that the Rome Statute is not going to freeze the development of customary international law.

So I hope that answers your questions. We absolutely agree with what you're driving at, and I hope you'll agree that I think we've captured it here in as clear a way as possible.

• 1045

The Chair: That's clear. It's clear to everybody in the room. So the usual question is, when a court is called to interpret this, they might incorporate as customary international law something that isn't in the Rome Statute and they might incorporate something that developed after the Rome Statute was adopted. It's clear for everybody. That's no problem.

Those in favour of the amendment?

[Translation]

Mr. Daniel Turp: Mr. Chairman, Ms. Lalonde had a question.

Ms. Francine Lalonde: I would like to know why you have added to the definition of “crimes against humanity” the words “or any identifiable group”.

Mr. Daniel Turp: That is a good question.

Ms. Francine Lalonde: One usually finds these words in the definition of “genocide”. Here, you are adding them to the definition of “crimes against humanity”.

Mr. Daniel Turp: Mr. Chairman, they may speak to that if they so wish.

Ms. Francine Lalonde: Yes, I would like to know why.

[English]

The Chair: So in English, that's the reference to an “inhumane act or omission that is committed against any civilian population or any identifiable group”.

Mr. Irwin Cotler: That is the amending line.

The Chair: That is what has been included. That is the term. So we've included “identifiable group” to that of “civilian population”.

[Translation]

Ms. Francine Lalonde: Could someone explain to me the reason for that?

[English]

The Chair: Could you explain why that's been included?

Since you proposed the amendment, Mr. Cotler, you explain it.

Mr. Irwin Cotler: It was included because it is in clause 6 and it is not in clause 4. We wanted, as recommended by the non-governmental organizations, to harmonize clause 4 with clause 6. Therefore, the definition of “crime against humanity” should be the same in both. This allows for that kind of harmonization at the same time as it adds, as I say, the specific language not in clause 4 but present in clause 6 on that point.

[Translation]

Mr. Daniel Turp: Could we ask general counsel to comment?

Ms. Francine Lalonde: I am asking this question because these words do not appear in clause 6.

[English]

Mr. Irwin Cotler: It's a matter of both—

The Chair: Mr. Piragoff is going to explain.

Mr. Donald Piragoff: Thank you, Mr. Chair.

The difference in wording in “crime against humanity”, the words that have been proposed to be added to the definition in clause 4—that is, the words “that is committed against any civilian population or any identifiable group”—is also the subject of amendment G-7, which would also amend subclause 6(3) to have this same effect.

The Chair: Clauses 6 will do the same thing.

Mr. Irwin Cotler: I was jumping ahead. In order to harmonize it, you will have to have the same amendment in both.

Mr. Donald Piragoff: If G-3 is adopted and if G-7 is adopted, then the definitions in clause 6 and the definitions in clause 4 will be harmonized.

The Chair: So by adopting G-3, we have to remember to adopt G-7.

[Translation]

Ms. Francine Lalonde: You have perhaps proposed an amendment to clause 6, but before passing amendment G-3, I would like to know why you made this addition.

Mr. Daniel Turp: To harmonize both sections.

Ms. Francine Lalonde: No, that is not the case, because these words do not appear in clause 6. This addition is being proposed for clauses 4 and 6.

Mr. Irwin Cotler: You are right. We must modify clauses 4 and 6 by adding these words, in which case there will be harmonization as to that specific mention.

Ms. Francine Lalonde: But that does not tell me why you are moving these amendments. My question is not technical in nature.

The Chair: Ms. Lalonde is asking why you are suggesting that this notion be added.

Mr. Daniel Turp: It is because of the Finta case. Say so

[English]

for the record.

Mr. Irwin Cotler: It's also to broaden the concept of crime against humanity and to make an inclusive reference, “ committed against any civilian population or any identifiable group”, which was the recommendation that was made by a number of the NGOs who appeared before us.

[Translation]

Mr. Daniel Turp: Could you explain to us precisely why we are doing this, apart from the fact that we are responding to requests made by non-governmental organizations that want us to guide judges for the future, so that once this bill is passed, they will no longer be able to hand down decisions such as that that was handed down in the Finta case? Could you state that before the committee?

[English]

Mr. Donald Piragoff: Thank you.

The original intent in drafting subclause 6(3) was to try to draft the crimes—all three, war crimes, genocide, and crimes against humanity—in a flexible manner to address the gist of the offence and not to load a number of other elements on these definitions, so that they would not be frozen in time, as Mr. Turp had indicated, so that they could grow with the development of international law.

• 1050

In other words, we did not want to have too detailed definitions, because if definitions evolve over time, we did not want to have a statutory definition that conflicted with an international definition. So we tried to ensure that our definitions captured the essence of the crimes but left some of the details to be elaborated under international law.

For example, at one time war crimes required that there be an international component to the armed conflict. That has been removed by international law. The original provision in the Criminal Code, in section 7, does say “international armed conflict”. We've taken away the word “international” in the definition of war crime, so that it would accord and not conflict with the developing state of international law.

We have also tried, in the definition of “genocide”, not to limit the type of identifiable group of persons who could be the subject of genocide. For example, the genocide convention limits it to only certain types of groups—ethnic, racial...I forget the other two. But customary international law may evolve to include other types of groups who may be the legitimate subject matter for the offence of genocide. So we tried to capture the essence of the crimes in these definitions, leaving it for international jurisprudence to add other elements as required by international law at the time of the commission of the offence. Because we're always going to apply international law as existed at the time of the commission of the offence.

During the deliberations by witnesses, there were some witnesses who thought that with respect to crimes against humanity, we had reduced the essence too narrowly, that we should have stayed more in line with our definition as contained in the Criminal Code. And the current definition in the Criminal Code, which reflects the definition from Nuremberg, does refer to a series of acts including any other inhumane act or omission that is committed against a civilian population or identifiable group.

So in order to address the concerns that we should have a little more precision in our definition, we are proposing to put back into the definition of crime against humanity words that already exist in the Criminal Code definition of crime against humanity. Because there was a concern that by removing those words in this bill, when they do exist in the Criminal Code, we might be unintentionally giving a message to the courts that we were fundamentally changing the concept of the crime against humanity, and of course that's not what we intended to do.

What we intended to do was permit the definition to grow with time, but that does not necessarily mean that we are saying that we do not agree with the Nuremberg definition, or that the Nuremberg definition that it has to be committed against a civilian population is wrong, because the essence of a crime against humanity is that it is committed against civilian populations or other identifiable groups.

So we just want to make that clear. If you read the clause 6(3) as it is, it simply says:

“crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission

But that doesn't say against one single individual, or against a civilian population or an identifiable group. It would be more accurate if we put the words back into the bill that exist in the Criminal Code to make it clear that crimes against humanity are crimes committed against civilian populations or identifiable groups, because that is the essence of the crime, which is different from a war crime. A war crime can be that one prisoner of war is killed, that's a war crime. But crimes against humanity are really crimes committed against populations or identifiable groups.

Mr. Chairman, I was long, but Mr. Turp wanted some historical record for the purposes of—

The Chair: No, it's very helpful, I'm not trying to cut you off—

• 1055

[Translation]

Mr. Daniel Turp: I have but one question. For the record, does this definition reflect the present state of customary law, so as to assist our courts later on?

[English]

The Chair: But this is just one expert's opinion. It's going to be a question of professors or courts that will argue this out.

[Translation]

Mr. Daniel Turp: That is perhaps the case, but I would like to hear the opinion of the Government of Canada.

[English]

The Chair: Okay. We have to move this along. He asked you a question. Just answer yes or no. Does it represent the present state of customary law?

Mr. Darryl Robinson: Yes.

The Chair: Thank you. We're all happy with that.

[Translation]

Mr. Daniel Turp: Mr. Chairman, despite the fact that our friends opposite are impatient and are pushing you to act, I would like this debate to carry on as it should. We must not rush. We are asking pertinent questions and I would not want our colleagues opposite to pressure you and to prevent us from having a good debate on this bill.

The Chair: We have had an excellent debate up until now. We discussed these questions during the entire afternoon yesterday.

Mr. Daniel Turp: Let us continue.

The Chair: We will have all the time we need, but let us not waste our time haggling over matters of procedure. This is a waste of time.

Mr. Daniel Turp: Yes, I agree. I will abstain from doing this further because I see that you agree that we should take the necessary time.

The Chair: Mr. Cotler has made enormous efforts.

Mr. Daniel Turp: That we much appreciate.

[English]

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): He's trying to educate at the same time.

Mr. Irwin Cotler: I just want to say on that point that the inclusive language, which I hope will be harmonized in both clauses 4 and 6.... That's where I may have inadvertently misled at the beginning. I hope the language will reflect both what is now in the Criminal Code, what is now in the international jurisprudence that was developed in international criminal tribunals re the former Yugoslavia and Rwanda, and the notion re civilian populations, which is also in the definition re crimes against humanity in the Rome Statute, although they're even more specific than we would care to be.

The Chair: Wait a minute. I have to put this amendment now. We understand that when we do this amendment, it will also apply.... Oh, I see. Clause 5 will then be amended. Where do we insert this same word subsequently? I thought it was under clause 6.

Some hon. members: G-7.

The Chair: Oh, I see, G-7. Yes, okay. So when we adopt this, we won't have to have this same discussion over G-7. It will just go through like that. Are we all agreed? Okay.

I'll call the question on amendment G-3.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Now we go to amendment R-6.

Mr. Gary Lunn: Thank you, Mr. Chairman.

I move that Bill C-19, in clause 4, be amended by replacing line 33 on page 2 with the following:

graph 2, excluding clause 2(b)(viii), of article 8 of the Rome Statute.

Basically what that is about is to delete the section that lists the movement of civilian population under occupied territories as a war crime. That's the intent of that amendment.

I just want to put into the record that when we get to the next.... Well, we'll finish this and then I'll do the next three. I think the next four or five of my amendments have just been dealt with by Mr. Cotler's G-3, but we'll discuss that in a minute.

The Chair: Okay. So you want to delete this.

Mr. Gary Lunn: Yes. That's what I propose. That's the intention of the amendment.

The Chair: Do you want to quickly say what your problem with this is? Isn't this what Stalin did with all those populations? This is what Stalin did, remember?

Mr. Gary Lunn: It's going over to places like Israel, where there is some dispute over certain territories. When civilian populations are moved into occupied territories right now, under this legislation that would be considered a war crime. We want to make sure that we have it right, because there is some dispute about whether in fact we want to do that.

So the intent of this is to delete that movement of civilian populations into occupied territories. There's a dispute over there as to whose territory it is, as you are fully aware. That's the intention of the deletion.

The Chair: Okay. This is the settlement in the West Bank, and it's the whole issue of that.

Mr. Gary Lunn: Exactly.

The Chair: But I thought Mr. Cotler addressed that.

Mr. Irwin Cotler: No, it's not in any of mine.

Mr. Gary Lunn: That's the intention.

The Chair: As long as everybody understands what that is about, then I'll—

Mr. Gary Lunn: Call the question.

[Translation]

Ms. Francine Lalonde: I would like to ask our experts if that is possible. I had understood that it was not.

• 1100

The Chair: Is it possible to do what?

Ms. Francine Lalonde: To change the text of the Rome Statute. We are removing a paragraph here. I looked at it.

[English]

The Chair: No, it doesn't.

[Translation]

Madam Lalonde, this does not change the Rome Statute, but it changes Canadian law to incorporate the terms of the Rome Statute.

Ms. Francine Lalonde: Yes, it changes the Rome Statute for us.

The Chair: Parliament is perfectly entitled to do so if it so wishes. The amendment constitutes an order. The question is whether or not it is advisable.

[English]

I think everybody understands it.

[Translation]

Are there any other questions?

Ms. Francine Lalonde: I asked for the opinion of the experts.

The Chair: You asked the experts a question that is up to me to answer. It is a matter of committee procedure. I have given you the answer.

Ms. Francine Lalonde: I have the advice of an expert who says that there are no reservations in that regard and that we therefore cannot change the text.

The Chair: But it is for us to decide. It is not up to the experts advising you to decide if it is an order or not. I said that the amendment was an order of the committee. It is therefore an order.

Mr. Daniel Turp: Just a minute, Mr. Chairman. If it is the equivalent of a reservation with regard to the statute, can we, through an act, do something that is equivalent to a reservation applied to the statute?

The Chair: Fine. Now I understand. Forgive me. This is another matter.

Ms. Francine Lalonde: Mr. Chairman, you will have to get used to this. I am not a lawyer. I do however demand for non-lawyers the right to express themselves on these extremely important issues. I would say, furthermore, that it seems to me that this legislation has to as large an extent as possible be written so that non-lawyers are able to understand it.

The Chair: Very well. Madam Beaumier.

[English]

Ms. Colleen Beaumier: I would like an answer on that. I'm swimming over my head here somewhat.

However, if we're going to begin amending treaties to which we're signatories, what's to prevent every other country who has signed this to take out what they don't like or what they find inappropriate? I'd like an answer as well, as much as I trust you.

The Chair: I understood the question to be whether or not this amendment was acceptable as an amendment—

Ms. Colleen Beaumier: Oh.

An hon. member: Yes.

The Chair: —which I ruled acceptable as an amendment. That's what I understood the question to be.

Ms. Colleen Beaumier: Oh, okay.

The Chair: This is a different question, as to whether or not Parliament should or could reserve in respect of a treaty, in other words, in terms of its application. So we'll turn to the experts.

Mr. Darryl Robinson: Thank you very much, Mr. Chairman.

First of all, you're obviously correct: Parliament can do whatever it sees fit here. The question is, could we then ratify the treaty if Parliament did this? The Rome Statute is a package. No reservations are permitted to the Rome Statute. If Canada picks and chooses which provisions it will be bound by, we invite other countries to do the same picking and choosing. Canada would probably not be in a position to ratify if we did this.

Actually, if I may, I'll take 40 seconds on the issue of occupied territories. As the chairman mentioned, this is something that dates back a long time. This is something, for example, that Stalin was doing in World War II. This prohibition in the Rome Statute that causes so much trouble is actually in the Geneva Conventions right now. It's in article 49 of the fourth Geneva Convention, which has been ratified by Canada and implemented by Parliament.

The prohibition is repeated in Additional Protocol 1, which has been ratified by Canada and implemented by Parliament. The only difference in the Rome Statute is that three additional words have been added, the words “directly or indirectly”, which did cause a lot of political concerns, particularly within Israel.

Within the preparatory commission, which is meeting in New York, we have managed to solve the problem. A consensus has been reached on a compromise, a footnote, which essentially has the effect that those three words that have been added have no meaning whatsoever and we are back with the offence as already exists, as has been approved by Parliament twice now.

[Translation]

The Chair: Very briefly.

Mr. Daniel Turp: Obviously, this proposal was to be a follow-up, in the form of an amendment, to a request made by Mr. Narvey and a partial answer to a request from the Canadian Jewish Congress.

• 1105

In my opinion, this would be the equivalent of a reservation on the statute introduced in the bill, which would not be advisable since it would most probably lead to a ratification problem.

The Canadian Jewish Congress made another proposal, which was to include in the bill a provision equivalent to section 4(1) of the extradition treaty between Canada and the United States. You have studied that proposal. What is your opinion on it?

The Chair: I will allow the question, but you are now discussing an issue that the committee has not studied since no one has moved such an amendment.

Mr. Daniel Turp: Could you compare the proposal of the Canadian Alliance to the proposal regarding... My question is pertinent because we are comparing an amendment that exists, that is before us...

The Chair: An amendment that is not before us.

Mr. Daniel Turp: ... to a proposal made by the Canadian Jewish Congress.

The Chair: Very well.

[English]

Mr. Donald Piragoff: Thank you, Mr. Chairman.

The amendment that Mr. Turp refers to, I believe, is an amendment that would say Canada has a right to refuse to surrender an individual to the International Criminal Court if the Canadian executive were of the opinion that the offence was of a political nature or was a political offence.

The Chair: Right.

Mr. Donald Piragoff: If Parliament were also to make that amendment, it would put Canada in a position where we would not be able to ratify the treaty. The treaty does not provide any grounds of refusal by states with respect to surrender.

States have agreed that the International Criminal Court will be an independent court and that it will abide by all international standards in terms of human rights and trial procedure. Therefore, they have agreed that they will waive the normal grounds of refusal that we apply for state-to-state extradition, because when we're dealing with state-to-state extradition we may be dealing with a state that does not have human rights standards to the level that we subscribe to or that the international community subscribes to, or a person may really be sought not for the purposes of prosecution but persecution—political persecution. That is why these grounds of refusal are appropriate for the purposes of state-to-state extradition.

In the context of the negotiations of the Rome treaty, states agreed that these usual grounds of refusal that exist in state-to-state matters are inapplicable, are not applicable to surrender to the International Criminal Court, because the International Criminal Court is not going to be dealing with political persecution of accused persons. It has been set up by the international community to render justice and to ensure that there is no impunity.

If we were to try to put grounds of refusal into Canadian legislation, then we may not be able to ratify the statute.

[Translation]

Mr. Daniel Turp: This will probably allow the Canadian Jewish Congress to obtain an answer with relation to what it suggested to the committee.

[English]

Mr. Irwin Cotler: Mr. Chairman, if I may—

The Chair: Yes, sir.

Mr. Irwin Cotler: —just for the

[Translation]

preparatory work,

[English]

for the record, I think your own characterization was correct, and I think some historical appreciation might be relevant here, just for Mr. Lunn and the Canadian Jewish Congress.

The reference to a constituent element of a war crime being the prohibition of the forcible transfer, directly or indirectly, by an occupying power of a civilian population into occupied territory was intended to reflect the kind of horrific conduct engaged in by the Nazis in the Second World War and by Stalin, and which found expression subsequently in this prohibition as a grave breach of the Geneva Conventions. It was not deemed to apply to the situation respecting the disputed final status issues—resettlements—in the Oslo Accords, now being debated between Israel and the Palestinians.

The Chair: Right. Otherwise you'd get Gibraltar being brought in—

Mr. Irwin Cotler: That's right.

The Chair: —the Spanish and Gibraltar, and there would be every territorial thing. We'd never get to the end.

We all understand that, so I can put the question on amendment R-6.

(Amendment negatived)

• 1110

(Clause 4 as amended agreed to)

The Chair: Thank you, colleagues. That's very helpful.

(On clause 5—Breach of responsibility by military commander)

The Chair: I draw your attention to the fact that those two proposed amendments are no longer necessary, by G-2, so there are no amendments proposed to—

A voice: They were adopted at the same time as G-2.

The Chair: Shall clause 5 carry?

Mr. Turp.

[Translation]

Mr. Daniel Turp: [Editor's Note: Inaudible]

The Chair: On our agenda, we have amendments G-4 and G-5 to clause 5 of the bill, but amendment G-2, that was voted upon, applies to clauses 4 and 5. This is why it is not necessary to propose them officially.

[English]

The Chair: Shall clause 5 carry?

Mr. Irwin Cotler: It's the same as clause 4.

The Chair: Right. Exactly.

(Clause 5 agreed to)

(On clause 6—Genocide, etc., committed outside Canada)

The Chair: Shall clause 6 carry?

Mr. Gary Lunn: No, I have some amendments.

The Chair: Right.

Mr. Gary Lunn: I suspect, Mr. Chairman, that a number of these will probably have been dealt with, so I'll just go through them really quickly.

Let's start with R-7. I don't want to propose it just for a second. The whole intent of this was that acts both in Canada and out of Canada should be punishable if they are criminal according to the international law at the time of the “act or omission”. I think we're trying to bring the two definitions of war crimes against humanity into one definition. Hasn't Mr. Cotler done that?

The Chair: Can you answer that question, Mr. Cotler?

Mr. Irwin Cotler: Which are you referring to now, sir?

Mr. Gary Lunn: I'm at amendment R-7. Basically the intent of this was to bring the two definitions of war crimes against humanity into one. I know we had some discussion about this yesterday. Have we done that at this point?

I can move the amendment if you like.

Mr. Irwin Cotler: Well, we've done part of that. I just want to check with the officials. My understanding is that we have, but I want to be sure.

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you.

With the amendment that we made to clause 4 in particular, amendment G-3, which has been adopted, and with clause 4 carried, and also, in addition, with the amendment that will be made on G-7—the chair said, as I recall, that the vote on G-3 also applies to G-7—we have merged the definition of the offences for both clauses 6 and 4. In other words, clause 6 and clause 4 will use the same definition of offences as appropriate, given the nature of the two different clauses, one being within Canada, the other being outside of Canada.

Mr. Irwin Cotler: It's the harmonization of—

A voice: That's true.

Mr. Gary Lunn: It harmonizes. Okay. That was the intent of that amendment, so we don't need to go there.

I'm going to to go to the next one, R-8. The intent of R-8 gets back—and I know this is going to be brought up again by Irwin—to R. v. Finta, to the mens rea element. The intent of this amendment is to ensure that the accused had the intent to commit the act of inhumanity.

The Chair: But it seems to suggest that they must have an intent, that they understand what international law is. It says “actions constitute an offence under international law”.

Mr. Gary Lunn: Yes. I can go through the whole amendment, the rationale, but—

The Chair: Are we going to get into an argument about whether people really knew what international...? You're not going to get any agreement around this table as to what it is.

Mr. Cotler.

Mr. Irwin Cotler: I think our approach was to have the present Criminal Code and criminal common law rules and approaches apply with regard to mens rea and intent. This type of amendment may not actually be in accordance with what you might have in mind, because it may be more restrictive than you're considering and it may create problems in terms of mens rea regarding international law.

Mr. Gary Lunn: Yes. I—

Mr. Irwin Cotler: That was one of the problems in the Finta judgment.

Mr. Gary Lunn: Exactly. That's where I was coming from.

Let's carry on. Amendment R-9 is not going to get moved.

R-10—

Mr. Daniel Turp: What about R-8?

Mr. Gary Lunn: We just did R-8.

[Translation]

Mr. Daniel Turp: Is he withdrawing it?

The Chair: Yes.

[English]

Mr. Gary Lunn: R-9 is not being moved. For R-10, I believe we dealt with it in G-3 or G-2, so that's done.

• 1115

The Chair: Right.

The Clerk: We're on to G-6.

The Chair: No, let him get through all his R's.

The Clerk: We have to go back to—

The Chair: R-11 and R-12.

Mr. Gary Lunn: R-11 and R-12. Do you want me to do them?

The Chair: Do them and get them out of the way, and then we can—

Mr. Gary Lunn: The intent of R-11—

A voice: It also has been done.

Mr. Gary Lunn: That has been taken care of too, that's right. R-11 is also done.

And then the last one, R-12, the intent of that amendment is that crimes in the Rome Statute should be described as crimes according to conventional international law, which obviously are not crimes of customary international law. So the whole purpose of that amendment is to ensure that it's under conventional international law as opposed to customary international law. I know we've had some discussion about that earlier as well.

[Translation]

Mr. Daniel Turp: Are you keeping it?

[English]

Ms. Francine Lalonde: Gary, are you keeping it?

Mr. Gary Lunn: R-12. I'm just going to have some discussion before I move it, because Mr. Cotler spoke earlier about the differences between conventional international law and customary international law—

Mr. Irwin Cotler: No, but it says “customary international law or conventional international law”, so it would include both. If you're concerned that it doesn't include treaty law, it does include treaty law as well as customary international law.

Mr. Gary Lunn: Right.

Mr. Irwin Cotler: We were just more specific on the definition of “customary international law”, but it does include treaty law.

Am I correct on that? That's my understanding of it, because it states it right there under clause 6 in the language, “according to customary international law or conventional international law”. And it goes on: “or by virtue of its being criminal according to the general principles of law recognized by the community of nations”, which is in paragraph 11(g) of the charter. It's just another—

Mr. Gary Lunn: So is it better to have it as both, as opposed to conventional international law? I pose that as a question.

Mr. Irwin Cotler: I'm not sure I understand.

The Chair: Maybe I can explain.

Mr. Irwin Cotler: Yes.

The Chair: My own personal answer would be yes, because it's more inclusive. Do you remember the earlier discussion we had about what is in the Rome Statute? That's conventional, but we believe there are elements of customary international law that are also war crimes that go beyond even what was included there. So it depends on whether you want to be more inclusive or less inclusive. Conventional, exclusively, would be much less inclusive because customary international law and the customary usage of nations are much broader. So at least for my purpose, I think the intention of at least the government and ourselves is to make it as broad as possible, unless you want to restrict it.

Mr. Irwin Cotler: I think it includes the three main sources.

Mr. Gary Lunn: Yes, I think the concern when this was drafted was that the customary international law could weaken the conventional.

The Chair: No, this strengthens it.

Mr. Gary Lunn: Fair enough. So this takes care of that.

The Chair: That takes R-12 out.

Mr. Gary Lunn: Yes.

The Chair: So we now go back to G-6, Mr. Cotler, which will then, if adopted, deal with G-8, G-11, G-12, G-13, etc., as shown in your agenda.

Mr. Irwin Cotler: I want to make sure that G-5, which is technical, has also been approved, because we did it earlier.

The Clerk: It has been, yes.

The Chair: What page is G-6?

Mr. Irwin Cotler: G-6 is page 23, which we've basically also done.

The Clerk: No, we have to do G-6.

Mr. Irwin Cotler: Yes, I know. The principle.

The Chair: We have to do G-6.

Mr. Irwin Cotler: Okay.

The Chair: But I think we've already discussed it, so everybody knows what it is.

[Translation]

Everyone understands.

[English]

I can put the question.

(Amendment agreed to [See Minutes of Proceedings])

Mr. Irwin Cotler: This is the same, with respect to G-7. This is harmonization of clause 6 with clause 4. We've already done that.

The Chair: Okay.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 6 as amended agreed to)

The Chair: Shall clause 7 carry?

The Clerk: We have a number of amendments from Mr. Lunn, who seems to have disappeared.

• 1120

The Chair: Okay. We'll stand down clause 7 for a moment.

(Clause 7 allowed to stand)

[Translation]

Mr. Daniel Turp: Why are we skipping amendment G-7?

An hon. member: Because it is not there.

[English]

The Chair: We'll stand it down.

[Translation]

We will have a discussion when Mr. Lunn is here.

Mr. Daniel Turp: He is not here? Very well.

On clause 7, there is also a government amendment.

The Clerk: We will come back to that.

[English]

The Chair: Oh, Mr. Lunn is back.

Sorry, Mr. Lunn. We stood down clause 7 because you were out of the room. You have a couple of proposals there, so I didn't want to discuss it while you were out. But since you're back, we might as well do clause 7 in order. We'll go back to clause 7, amendments R-13 and R-14.

(On clause 7—Breach of responsibility by military commander)

The Chair: It says here in my notes that these are only necessary if clause 4 has been negatived, and clause 4 wasn't negatived, so I presume these are no longer—

Mr. Gary Lunn: Yes, it was just to say “within or outside Canada”. That's been dealt with.

The Chair: Okay, so we can knock out those two.

[Translation]

Mr. Daniel Turp: R-14?

The Chair: R-14.

Amendment G-8.

[English]

Mr. Irwin Cotler: It's that Bill C-19 in clause 8 be amended by replacing lines 36 to 41 on page 8—

A voice: No, no, G-8.

The Chair: We've already dealt with that, haven't we?

A voice: Oh, yes. I'm sorry; excuse me. It applies.

The Chair: Yes, G-8 is already applied, so we don't need to deal with that. It's been included.

[Translation]

Mr. Daniel Turp: Could you grant us two minutes to look at the French version?

The Chair: Of G-8?

Mr. Daniel Turp: Yes.

The Chair: Very well. Forgive me.

[English]

(Clause 7 as amended agreed to)

(On clause 8—Jurisdiction)

The Chair: Shall clause 8 carry?

A voice: Whoa, whoa!

[Translation]

Ms. Francine Lalonde: You have an amendment, Mr. Chairman.

[English]

The Chair: But I have to put the question and then somebody has to move their amendment. Somebody has to say, “Hey! Put in the amendment.” If they don't put it in, it goes.

Mr. Irwin Cotler: The amendment is that Bill C-19 in clause 8 be amended by replacing lines 36 to 41 on page 8 with the following, referring in particular to paragraph (b):

(b) after the time the offence is alleged to have been committed, the person is

present in Canada.

The Chair: All right, and that was the discussion we had yesterday, as I recall.

Mr. Irwin Cotler: Yes.

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: I would like to know the ramifications of this clause once the amendment is carried, if such is the case. I would like to hear explanations from our friends from Foreign Affairs.

The Chair: Mr. Piragoff.

[English]

Mr. Donald Piragoff: I thought Mr. Turp said that after the adoption, he wanted—

Voices: Oh, oh!

Mr. Daniel Turp: Let me rephrase that then.

The Chair: Wow! Were you trained in a Jesuit school, Mr. Piragoff?

Voices: Oh, oh!

[Translation]

Mr. Daniel Turp: That is one of the advantages to having been trained by the Jesuits. Perhaps you could give us an idea of the ramifications of the amendment and of the jurisdiction that courts in Canada might exercise in this area?

[English]

Mr. Donald Piragoff: This provision is in line with the traditional concept of universal jurisdiction, which means if an offender of a war crime, crime against humanity, or genocide is found in Canada, we are able to prosecute that individual.

Basically it reflects a position that already exists in the Criminal Code in terms of other international extraterritorial offences where we have implemented universal jurisdiction. It reflects the international concept that these types of criminals are not simply committing offences against particular victims, they are committing offences against a community of nations, and any nation that gets its hands on an offender has the right under international law to prosecute that offender. This would reflect the traditional notion of universal jurisdiction that all states have the right to prosecute these offenders if they get their hands on them.

• 1125

Thank you.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Mr. Chairman, I would like to point out some discrepancies between the English text and the French text. In the English text, the word “after” is underlined, whereas in the French text, it is the words “la commission présumée de l'infraction” that are underlined. In the French text, we read “l'auteur se trouve au Canada”, whereas the English text says “the person is”.

Ms. Francine Lalonde: In any case...

Mr. Denis Paradis: Perhaps the two texts should mesh.

The Chair: It is because the French text must fit the French text of the clause itself.

Mr. Denis Paradis: Because of the lines.

The Chair: Indeed.

Mr. Daniel Turp: But the drafters have replaced “celui-ci” by “l'auteur”. Is that advisable? There is perhaps a problem with lines 37 to 42, because there is no line... Oh yes, there is...

Mr. Irwin Cotler: In the translation, “l'auteur” replaces “celui-ci”.

The Chair: Forgive me. You are saying that in the French version, the word “person” is translated by “auteur”.

Mr. Daniel Turp: In the present version, the word “person” is translated by “celui-ci”.

The Chair: Yes.

Mr. Daniel Turp: In the amendment, “person” is translated by “l'auteur”. Should we not favor “l'auteur” over “celui-ci”?

The Chair: Good question.

Mr. Daniel Turp: In the rest of the bill, have we favored “l'auteur”? I believe so.

[English]

Mr. Donald Piragoff: The original provision in the bill uses celui-ci, but of course we don't know who celui-ci refers to, because there are other words in paragraph 8(b) that would give some indication of who we're talking about that have been deleted.

[Translation]

An hon. member: The word “auteur” is generally used. The term “celui-ci” corresponds to “person”.

[English]

The Chair: Mr. Narvey, I'll have to ask you to leave the room if you interrupt the proceedings again. We cannot have interruptions of the proceedings. I know your intentions are good and you want to do the best you can. You've been very helpful in advising the committee, and I thank you for that, but we must proceed in a certain way, or we lose all control of the way the proceedings go.

So I'll have to ask you to respect that, and if you can't, maybe you'll be good enough to leave. But thank you very much.

Mr. Piragoff.

Mr. Donald Piragoff: As I've indicated, the original French text said celui-ci se trouve au Canada, but celui-ci does not indicate which person we're talking about.

If one looks at line 40 of paragraph 8(b), it does in the French text say l'auteur, which corresponds with, I believe, line 21 or 22 where it says l'accusé—the person who is accused. I think basically this is using language that already exists in the current bill. The term l'auteur already exists at line 40 in the French text, and this is simply replacing the word celui-ci with a more precise description of who we're talk about, which is l'auteur.

The Chair: Okay. Are we happy with the explanation?

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: There is a problem in the drafting of the amendment as we see it here. We read “substitution, aux lignes 37 à 42, de ce qui suit”, and that just does not work.

The Chair: Excuse me. Is it all right?

• 1130

Mr. Daniel Turp: I do not know if it is a habit of legal drafters, but what is interesting in English, is that the language is inclusive: “person”. However, when you use the word, “l'auteur”, in the masculine, it is less inclusive. The word "personne" could have been used because it is more inclusive. I am simply saying this so that in future inclusion might be as real in French as it is in English. I imagine that this will the cause of tremendous debate between translators.

An hon. member: Let us leave them to their debate.

Mr. Daniel Turp: Let us leave them there.

The Chair: Is that an observation?

Mr. Daniel Turp: It is an observation, Mr. Chairman.

The Chair: Thank you.

Mr. Daniel Turp: But wait one minute.

The Chair: Yes.

Mr. Daniel Turp: I have a point to make. We are dealing here with the provision relating to universal jurisdiction. We have had debates, yesterday and previously, on the scope of this universal jurisdiction and I understand that this is the position that is reflected here. The government, as we speak, is refusing to integrate a broadened universal jurisdiction, because it is only when a person accused of serious crimes arrives on Canadian soil that we will agree to try him or her. Have I understood correctly?

It is my understanding that this provision is such that the government will not wish nor will it be able to demand the extradition of a person who is accused or who could be accused of having committed a crime. For example, this provision would prevent Canada from calling for the extradition of General Pinochet.

[English]

Mr. Donald Piragoff: Thank you, Mr. Turp.

If an individual falls within paragraph 8(a)—that is, if the offender is a Canadian national or an ally or the victim is a Canadian national, or any of the other descriptions of individuals in subparagraphs 8(a)(i) to (iv)—Canada will be able to seek extradition of an offender.

The Chair: So to take Mr. Turp's analogy of Mr. Pinochet, my understanding is that the reason the Spanish authorities requested the extradition of Mr. Pinochet was that in fact there were Spanish victims, so there was a nexus with the crime.

What we are doing here is insisting on the same: that there be some nexus with Canada. We couldn't seek to extradite or get somebody just because something happened around the world but there were no Canadians involved. Is that basically—

Mr. Donald Piragoff: That is correct. There must be a nexus, either through paragraph 8(a) or that the person is present in Canada.

The Chair: Right. The nexus is either personal jurisdiction, which is a traditional criminal law jurisdiction, or a Canadian victim in this case.

[Translation]

Mr. Daniel Turp: I would like, for the purposes of this debate, to note formally that in the legislative measure as it stands, the nexus will be essential and that, contrary to Spain and Belgium, in the present state of affairs, the government is not ready to integrate a provision for broadened universal jurisdiction without there being a nationality link with the victim or the accused, or without this person being present on Canadian soil. I understand full well that with this provision, the government does not want to do the same thing as Spain and Belgium in the state of their...

The Chair: Forgive me. Mr. Turp, before moving on to the response to your question, I would like to say that I thought that you had agreed with me that in the case of Spain, there were Spanish victims and therefore a need.

• 1135

Mr. Daniel Turp: Yes, there we are talking about the Pinochet case. But Spanish law would allow Spain to demand extradition whether or not there is a nationality link and whether or not the person is on its soil. This is not what the government of Canada is prepared to do. Have I understood correctly.

[English]

Mr. Donald Piragoff: As I indicated, Mr. Chairman, the Canadian government intends to implement the concept of universal jurisdiction in the way it has implemented that concept in other amendments to the Criminal Code and in the way it has historically been understood. If other countries wish to assert jurisdiction in other manners or to interpret universal jurisdiction in another manner, they are free to apply their sovereignty the way they wish to apply their sovereignty.

The Chair: Subject to the constraints of international law.

Mr. Donald Piragoff: Subject to the constraints of the Lotus case and as long as it's not prohibited by international law. At this point in time, as I indicated yesterday in our discussion, the government intends to follow the traditional approach. Whatever happens in the future, the government can always change its policy.

Mr. Daniel Turp: Is it open to discussion, as you said yesterday, on this issue? Would you repeat that today?

Mr. Donald Piragoff: I said the government is always open—

Voices: Oh, oh!

Mr. Donald Piragoff: Did I not say yesterday we were progressive, Mr. Turp?

Mr. Daniel Turp: Yes, but I replied that it might not be progressive enough. Then you said you would be open to discussing the issue of super-universal jurisdiction. Would you want to repeat that today?

Mr. Donald Piragoff: Our discussion yesterday lasted over an hour, and I don't think people want to repeat our discussion of an hour of yesterday. Thank you, Mr. Turp. It was a very enlightening debate, but....

[Translation]

Mr. Denis Paradis: Mr. Chairman, I ask that we call the vote.

The Chair: Good idea.

[English]

Shall the amendment carry?

[Translation]

Mr. Daniel Turp: We are against the amendment.

The Chair: Very well. You are against.

Mr. Daniel Turp: We are against it for the reasons mentioned earlier: we would like to see broadened universal jurisdiction.

The Chair: Very well.

(Amendment agreed to on division)

Mr. Daniel Turp: Perhaps this could be the subject of an amendment at another stage of the study of this bill.

The Chair: Please remember that when the Americans exercised their jurisdiction in a broader more liberal fashion, to borrow the words of Madam Debien, we were unable to appose this imperialist vision of American law. We cannot be imperialistic ourselves and resist the imperialism of others.

Mr. Daniel Turp: Rarely do they use it for matters of serious crimes under international law. It is a very different situation. Mr. Cotler is quite sympathetic as far as that aspect is concerned. As to the matter of General Pinochet, Mr. Cotler was perhaps open to having the government of Canada, under international law, exercise broadened universal jurisdiction.

Mr. Denis Paradis: Irwin is sympathetic.

[English]

Voices: Oh, oh!

Mr. Irwin Cotler: I also want to say that earlier we adopted a “living tree” approach to the interpretation of international law, so it's progressive.

Mr. Daniel Turp: I didn't hear you, Irwin.

Mr. Irwin Cotler: I said that earlier, in another context, we adopted:

This does not limit or prejudice in any way the application of existing or developing rules of international law.

I said that's a “living tree” approach to international law.

Mr. Daniel Turp: No, that's something else. That's jurisdiction.

Mr. Irwin Cotler: I know.

[Translation]

Mr. Daniel Turp: Careful. This is not a matter of jurisdiction.

[English]

Ms. Jean Augustine: Mr. Chairman, let's go on.

(Clause 8 as amended agreed to on division)

The Chair: Amendment R-15 is not an amendment to clause 11; it's an introduction of a totally new clause. So I call the vote on clauses 9, 10, and 11.

(Clauses 9 to 11 inclusive agreed to)

The Chair: Now you'd like to move R-15?

Mr. Gary Lunn: That's correct.

The Chair: Okay.

• 1140

[Translation]

Mr. Daniel Turp: Could I ask, before we look at it, for the withdrawal of our proposal to add clause 11.1?

The Chair: Excuse me.

Mr. Daniel Turp: Before we debate amendment B-4, I would like to withdraw it.

The Chair: Agreed. But you have not yet formally presented it. It is therefore not necessary to withdraw it.

Mr. Daniel Turp: Fine.

[English]

Mr. Gary Lunn: I'd like to move that Bill C-19 be amended by adding, after line 41 on page 9, the following new clause:

11.1 Despite any other Act or law, no person may claim immunity under common law or by statute from prosecution for an offence under this Act.

Mr. Chairman, the intention of this is to make it clear that non-state actors or heads of state can be prosecuted for genocide, war crimes, or crimes against humanity. That is the intention, just to make sure that's crystal clear.

The Chair: This is amendment R-15, which is on page 35 of the booklet that's been handed out, and Mr. Lunn has given his explanation of it. Could you perhaps comment on it?

Mr. Darryl Robinson: This is an amendment that you have to sympathize with. The purpose here is something that's a priority for the Government of Canada. It's an attempt to ensure that there's no impunity. The problem with it is that Canada has existing international obligations in the arena of immunities, and this provision would breach a number of our international obligations.

I should explain that international law is progressing on the idea of immunities. For example, in the wake of the Pinochet case in the United Kingdom, it seems to us pretty clear that the Canadian courts would follow that precedent as a matter of common law, so that Canada could go after, for example, a former head of state like Pinochet. But there are other immunities that are not yet removed, and some of these are in customary law and some are in conventional international law.

For example, Canada has ratified the Vienna Convention on Diplomatic Relations. We extend diplomats here absolute immunity. There is no exception. Our only recourse would be to ask waiver. If we want to prosecute the person, we can request waiver and try to prosecute them here, for which we don't need a legislative amendment. But otherwise, where people have an absolute personal immunity, this provision would breach our international obligations.

So from the Foreign Affairs perspective of the office of the legal adviser, we would have great discomfort with this provision.

I should say, though, that this doesn't mean impunity. There are options. For example, someone who has an absolute personal immunity, such as a diplomat, can be prosecuted in their home country. We can seek a waiver and try to prosecute them that way, or—and best of all, this is exactly why we need an international criminal court—while states have secured these immunities through treaty regimes like the Vienna Conventions, states can by treaty give away those immunities, and that is what they've done with the Rome Statute.

So we then have clause 48 in our bill, for example, where immunities aren't going to-

Mr. Gary Lunn: I have one really short question. I understand you have previous agreements granting these people immunity, but this is just basically saying that with crimes specific to genocide, war crimes, and crimes against humanity, very specific crimes, we're not going to grant that immunity to heads of state.

Can we not do that right now? Why can we not proceed and say...? I just want the short answer.

Mr. Darryl Robinson: It's a brilliant question. The answer is how do you guarantee that the person has...? You see, you're imagining a Canadian court and you're confident that a Canadian court and Canadian prosecutors aren't going to go after a person unless it's been genocide, crimes against humanity, or war crimes. Imagine, if you will, we're in Iraq now and Iraq is purporting to adopt this provision. How do you feel about that?

Now we have a regime set up where heads of state and diplomats have an absolute immunity. The purpose of that is to protect diplomats and heads of state from being harassed and persecuted. Diplomats and heads of state cannot be charged for shoplifting, murder, what have you. All Iraq or whatever country you imagine would have to do, if this was allowed in international law, is charge the head of state of diplomat with a war crime, and then we've lost it. That's why the Vienna Convention is perfectly rigid, clear, no exceptions. That's the system we have. And again, this is why we need an international criminal court.

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I should point out that under article 98 of the Rome Statute, even the ICC is obliged to consider whether a person enjoys state or diplomatic immunities. If they do, the ICC is not going to request their surrender and put someone in breach of their existing international obligations.

The Chair: To put that in recent context, there were some allegations about certain heads of state at the time of the Francophonie conference in New Brunswick. Somebody could have brought in a charge against a visiting head of state in a local court. And then suddenly you have the whole...even though you have a diplomatic conference going. This is the type of concern you have over this, is it?

Mr. Darryl Robinson: Yes, and obviously it's a very difficult issue because it pits our desire to be aggressive against people who commit genocide, crimes against humanity, and so on against the need to maintain international discourse. So I understand it's very difficult. But the Vienna Conventions are clear.

The Chair: Yes. I understand.

I had Mr. Turp and then Mr. Cotler.

[Translation]

Mr. Daniel Turp: I have several questions on this amendment.

My first question deals with the immunity of former heads of state such as Mr. Pinochet. You talk about case law in the United Kingdom. Is it not true that this has a limited impact and that under present legislation, even if Mr. Pinochet were on Canadian soil, as a former head of state, he could nevertheless, given the jurisprudence of Privy Council, benefit from immunity? Should we not be doing something to stipulate that a former head of state has no immunity? If my understanding of Privy Council's order is correct, then it opens the door even wider for immunity in certain cases, for former heads of state. That is my first question. Perhaps we could first have a response to it.

[English]

Mr. Darryl Robinson: For the comfort of the committee, I should say that I've flipped through the amendments and it looks like this is the last hard question coming, so it's worth....

There are two different kinds of immunity. There are personal immunities—an absolute immunity giving inviolability of your person—and there are other kinds of immunity that relate to a particular capacity that you held. It relates to a particular conduct that you may have done in the past. It's that second type that a former head of state has.

The former head of state has immunity for the actions they carried out in the course of their official duties, and in the wake of Pinochet, it seems clear—and it's a common law that we expect Canadian courts would follow—that the concept of official duties does not include the commission of genocide, crimes against humanities, or war crimes. So our understanding is that in Canada someone in that situation would likely not enjoy immunities. In fact, the Pinochet case, I'm told by our people who follow these, revolved around a problem in U.K. legislation, a problem that Canada doesn't even have in the first place.

[Translation]

Mr. Daniel Turp: My second question is the following: should there not be an exception in this clause or in another clause dealing with immunity when the person has acted beyond the scope of his or her official duties?

[English]

Mr. Darryl Robinson: Again, it all comes down to a distinction between the two types of immunity. For the conduct type of immunity like the former head of state has, you're exactly right, where that person so grossly exceeded their.... I don't know if “exceed” is the word. Where they went outside the scope of their official duties by committing genocide, crimes against humanity, or war crimes, then they should not—and I think do not—enjoy any protections from those immunities.

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Mr. Daniel Turp: According to Canadian law, as is?

[Translation]

Would that be your position?

[English]

Mr. Darryl Robinson: Yes. I'm in a difficult spot, I guess, in giving anything looking remotely like legal advice on the spot. But that is what I understand to be the position of the Government of Canada. We've had discussions on this, and this is my understanding now. I think that's as certain as I can be with you.

Anyway, with respect to personal immunities, you don't get to inquire what they did, whether it was within or outside the capacity. It's a personal immunity. Their body is inviolable. Again, while it may seem harsh, this is necessary in order for heads of states and diplomats to travel around.

But inroads are being made, and one of the inroads is of course the International Criminal Court. Another inroad will be developing a culture where people will be more aggressive in insisting that violators be prosecuted, whether by sending them home, by seeking waiver, or by sending them to the ICC.

[Translation]

Mr. Daniel Turp: I have a third question, Mr. Chairman. It is very precise. I do not know if you will be able to answer. Let us say that in the context of the Sommet de la Francophonie, such as Mr. Graham presented it, a head of state is arrested. In the present state of affairs, what provisions of the Vienna Convention on diplomatic relations could be used to prevent our courts from prosecuting him or her?

Does this convention apply when a head of state or a head of government is travelling through a given territory as head of state or head of government for a Francophonie Summit or a Commonwealth Summit? If it is not the Vienna Convention, then is there not some common law type immunity that could be used before our courts if we chose to arrest the person and prosecute him or her?

[English]

Mr. Darryl Robinson: Your question gets a little bit out of my own area of expertise and depth, but it's important to distinguish the different types of immunity. There are the immunities that an accredited diplomat has under the Vienna Convention. There are others that are customary, such as the current head of state immunity. I believe there are also immunities that come when a state basically invites an official representative to be present for official business. There's an understanding of course that there's an immunity that goes with that. I think that flows from our Foreign Missions and International Organizations Act.

But I have to qualify that this is getting out of my depth.

Now, there's one aspect of your question that I'm not answering.

[Translation]

Mr. Daniel Turp: Allow me to restate my question in concrete terms. This will be my last question on this issue, Mr. Chairman. During the Sommet de la Francophonie, people demanded the arrest of the president of Burundi. There were very concrete demands and I imagine that the Minister had to deal with them, to do some research or to ask for legal opinions. In this particular case or in any similar case, do you believe that the person would have benefitted from immunity before our courts and that for this reason we would not have arrested him or her nor would we have wanted to?

[English]

Mr. Darryl Robinson: Yes. Thanks very much. Actually, that reminded me of the last aspect of your question.

If this bill, the Crimes Against Humanity Act, is passed, Canada is going to have to change its practice when we invite in diplomats or when we invite heads of state and so on for summits of the future. The way our practice will have to change is that, for the sake of transparency and reciprocity, we are going to have to specifically alert them that they're invited to Canada and they're going to enjoy the usual immunities, etc., but that they must understand that if there is a request from the ICC or from a tribunal created by the Security Council, then they will not enjoy immunity. So anyone coming will be given this warning in advance of this inroad that's been made.

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The Chair: For further precision, then, they'll have immunity against prosecution in a domestic court but they will not have immunity if an international arrest mandate is out against them by the International Criminal Court. So we're kind of halfway there.

Mr. Darryl Robinson: Yes. Even on the first kind of immunity, the immunity in the Canadian proceeding, it depends upon the person and what exact type of—

The Chair: Yes, I appreciate that. We're talking about heads of state, though.

Mr. Darryl Robinson: Yes, a current head of state.

Mr. Daniel Turp: Or former.

Mr. Darryl Robinson: A former head of state is a different situation.

The Chair: No, I'm trying to understand the heads of state issue in that we have one coming up. We have the heads of the Americas coming up in Quebec City in April. All these things are going to become current issues before us, so that's what we want to understand. We don't want to put ourselves in the position where we cannot even conduct an international conference in this country or we're not going to be able to conduct our foreign affairs.

On the other hand, if there's an international mandate, you're telling us, then everybody's going to understand. Those are the new rules we're operating under.

Everybody, as I understand the way the world works, wants to be protected against the irrational decisions of a domestic court, which might take a parochial view of things. There's your Iraq example, or something else. We all know how the American courts sometimes can be more aggressive in terms of taking jurisdiction that we wouldn't actually consider. But if it's the International Court that has the jurisdiction, then of course the world community itself accepts that, and the international heads of state are going have to accept that this is the new world we're operating in.

So we're in conformity going that way, as I understand it.

Sorry, Mr. Cotler. I know you've been trying to get in here.

Mr. Irwin Cotler: I just want to say that I think we've gone more than halfway. If you have a domestic prosecution in Canada, in my view, if a person sought to claim immunity for any of the offences under this act with regard to war crimes, crimes against humanity, or genocide, that person would brush up not only against the Pinochet doctrine with regard to former heads of state but also with regard to the indictment re Milosevic. That doctrine has also been extended to existing heads of state.

You also have—and this has not been mentioned—article 27 of the Rome Statute. Reference was made to article 98—and this was because of the complication regarding our international obligations—that:

The Court may not proceed with a request for surrender or assistance which would require the requested State

—and I'd say that's us in this instance—

to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person...

But it seems to me that article 27 of the Rome Statute would arguably be referred to by a domestic court in Canada. I would hope that we would, when the time comes, amend our other legislation to bring it into conformity with article 27 of the International Criminal Court statute, but courts in the meantime would have that before them.

The Chair: Right.

[Translation]

Yes, go ahead.

Ms. Francine Lalonde: Earlier, you made reference to the text of the Rome Statute and it was said that we could not disagree on this text. Clause 27 clearly states:

This Statute applies equally to everyone, without any distinction based upon one's official capacity.

And the text continues. Paragraph 2 states:

The immunities or special rules of procedure that might be linked to the official position of a person, under national or international law, do not prevent the court from exercising its jurisdiction with relation to this person.

How can this clause state that and how can Canada, that is going to be applying the Rome Statute, oppose complaints made in Canada against heads of state that could be prosecuted?

[English]

The Chair: Perhaps I can just have a quick attempt at an answer, and then we'll see if Mr. Robinson agrees with me or not.

As I understand the discussion so far, it's really a question of when we want our domestic courts to take jurisdiction and when it's the International Court. Article 27 is saying that the International Court will have jurisdiction over actual heads of state. So Mr. Milosevic cannot raise the Vienna Convention on the basis of the arrest mandate that's been given against him by the International Tribunal.

This will be given to the new International Criminal Court, which is very important, but to give the same power to every domestic court in 144 countries of the world, including Fiji in its present state, is entering into a whole new area of court competence, which, you might say, could lead to tremendous international chaos, where every court would arrogate unto itself power.

• 1200

So to some extent we're making a rational distinction here in saying that we've created an international instrument in which we all have faith and to which we're giving powers superior to what we would give our national courts.

To me, I don't think there's an intellectual problem with that. It makes sense.

An hon. member: Call the question.

The Chair: So that's what I would like to suggest.

Mr. Cotler and then Mr. Turp. I think we can probably move on to the question after that.

But do you agree with that, Mr. Robinson? I mean, you don't have to.

Mr. Darryl Robinson: No, you have it exactly right, sir. Article 27 is a big difference in terms of capacity of the court. To put it another way, under international law the framework principle is sovereign equality, and one of the corollaries of this is that one prince cannot judge another prince.

Mr. Turp is smiling; we had this conversation in our first hearing.

One prince cannot judge another prince, but the princes can all join together, make a treaty, create an institution higher than themselves, invested with all the safeguards that they need in order to be comfortable that there will be no political prosecutions, and then invest that court with the ability to pierce even absolute immunities.

The Chair: Okay.

Mr. Cotler.

Mr. Irwin Cotler: I was just going to say, Mr. Chairman, that I would see it as being appropriate, frankly, for us to adopt a principle of non-immunity based on article 27 of the International Criminal Court statute and coupled with article 98, regarding those problems that exist in other statutes, but I don't think we can technically do this now. We'd have to amend that collateral legislation for that purpose and we'd have to have the proper amendment before us for that purpose, and we don't.

I'm just saying I would hope that the principle as set forth in article 27 would be the principle that would be adopted by a domestic court dealing with that issue and that we will prospectively look to amend our legislation regarding immunities in that regard.

The Chair: So you are telling the committee that philosophically you're in favour of Mr. Lunn's amendment—

Mr. Irwin Cotler: Yes.

The Chair: —but you can't accept it at this time because it's too complicated.

Mr. Irwin Cotler: I'm in favour of it. I would even broaden it. I would just say that at this point it's—

The Chair: You're not going to vote for it because it involves too many other things.

Mr. Irwin Cotler: Right.

The Chair: Okay.

Monsieur Turp.

[Translation]

Mr. Daniel Turp: I am telling him how to vote.

The Chair: He will vote against the amendment because he does not accept this possibility in these circumstances.

Mr. Daniel Turp: If I understand correctly, Sirs, with the bill as it now stands, clause 27 of the treaty is not incorporated in it and perhaps it should be. Am I right? Perhaps it is later on in the provisions relating to the State Immunity Act. That is my first question.

Beyond that, it seems, given the order of the Privy Council in the Pinochet case and its limited scope, there might be some interest in including in our legislation some immunity, even limited, for former heads of state, because the treaty will not be coming into effect tomorrow morning. This will take time. I am hoping that things will move along quickly. I do hope that this will come into force before the end of the year, as Mr. Kirsch was hoping, or perhaps in the year 2001, once we have obtained the 60 ratifications. However, we must give ourselves the freedom, here, to prosecute former heads of state who are on our soil and who should not benefit from immunity. United Kingdom jurisprudence in the Pinochet case, that we have incorporated here, is perhaps not satisfactory. It might prevent us from prosecuting a Pinochet or another person accused of having committed serious crimes.

I would like to have an answer to my first question. Is clause 27 properly incorporated into this bill?

[English]

Mr. Darryl Robinson: Canada has implemented its obligations under article 27 of the ICC statute. We've done so in clause 3 of this bill and, more importantly, in clause 48. In clause 48, which will be coming up, we have specified that immunities are not going to prevent us from cooperating with the ICC. That is what article 27 requires, and that is what we've done.

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We can do that because states parties, by ratifying the statute, including article 27, agreed to that. But no state has come to Canada and agreed to offer us a treaty containing article 27 saying “We agree that Canadian courts can pierce our absolute immunities.”

I absolutely sympathize with what we're trying to do here and I have every confidence in Canadian courts. I know Canada would use this power fairly, but other countries do not necessarily have the same comfort that Canada will do it fairly. Other countries have not given Canada permission to do this, so I think you have to see the hesitation. More particularly, it simply conflicts with obligations we have today.

(Amendment negatived)

The Chair: Colleagues, let me take one minute to tell you where we are.

In terms of time, as I think Mr. Robinson put it well, that was the last serious, if you like, philosophical issue. There might be two others, but I don't know how long discussion of R-16 will be.

Mr. Gary Lunn: I don't talk much.

The Chair: I'd like to do clause 12. It would be wonderful if we could get down to the bottom of clause 24 before we break for lunch. Then we wouldn't have to meet this afternoon—many members said they weren't free this afternoon—and we could carry the discussion through until Tuesday. At that point there would be very few contested items left, and the balance would go through fairly quickly. That's my reading of where we are.

Mr. Daniel Turp: Why clause 24?

The Chair: Let's just keep going another five or six minutes and see what we can get done.

(On clause 12—When previously tried outside Canada)

The Chair: Mr. Lunn, quickly, on R-16.

Mr. Gary Lunn: I move that Bill C-19, in clause 12, be amended by adding after line 21 on page 10 the following:

(3) For greater certainty, a person may not plead pardon in respect of an offence under any of sections 4 to 7 if the person was not tried and dealt with in such a manner that, had they had been tried and dealt with in Canada, they would have been able to plead pardon.

The amendment prevents a pardon without a trial. So that's it.

The Chair: Okay.

Are there any comments on that?

[Translation]

Mr. Daniel Turp: I would like to ask our friends from the Department if this has already been covered elsewhere in the bill.

[English]

Mr. Donald Piragoff: Thank you, Mr. Turp.

It's already covered in subclause 12(1) and subclause 12(2) of the bill. Subclause 12(1) makes it clear that in order to plead pardon, the person has to have been tried and dealt with.

Mr. Gary Lunn: I will withdraw it.

Mr. Daniel Turp: Okay.

(Amendment withdrawn)

(Clauses 12 and 13 agreed to)

(On clause 14—Defence of superior orders)

The Chair: Mr. Lunn will speak to R-17.

Mr. Gary Lunn: I move that Bill C-19, in clause 14, be amended by replacing lines 34 to 40 on page 10 and lines 1 to 11 on page 11 with the following:

forms the subject-matter of the offence.

The whole premise of this amendment is to exclude the defence of superior orders.

[Translation]

Mr. Daniel Turp: I have a question for our friends from Foreign Affairs. Does this provision fit with international law?

• 1210

[English]

Mr. Darryl Robinson: My colleague Don Piragoff will deal with both the international and the local charter implications.

Thanks.

[Translation]

Mr. Daniel Turp: And the Canadian Charter.

[English]

Mr. Donald Piragoff: The Supreme Court of Canada in the Finta case recognizes that defence of superior orders exists. Canadian military law has traditionally recognized that the defence of superior orders exists. Clause 14 follows exactly the scheme set out in article 33 of the Rome Statute. It reflects the consensus and state practice of the 120 states that adopted the Rome Statute.

Given article 33 of the Rome Statute, the Finta case, and Canadian common law, it would not be prudent to put a provision on superior orders that is drastically different from what has been recognized by the Supreme Court or in the Rome Statute.

The other concern is that clause 14 also applies equally to offences in Canada or outside Canada, including offences committed in the past. We should not be applying retroactively a total abolition of a defence that was clearly recognized to have existed in the past, unless we have good charter grounds and the ability to justify such under the charter.

Mr. Gary Lunn: Call the question.

(Amendment negatived)

The Chair: Mr. Lunn, do you want to put R-18?

Mr. Gary Lunn: Did we not do that one?

The Chair: Yes, it was sort of the same purpose as the other one.

Mr. Gary Lunn: I thought we did R-18.

The Chair: Okay, R-18 has been dealt with.

(Clause 14 agreed to)

(On clause 15—Parole eligibility)

The Chair: Mr. Cotler's amendment G-10 is in conformity with other similar amendments.

Mr. Irwin Cotler: This amendment, which appears on page 39, is an amendment required for technical purposes dealing with the considerations. Do you wish me to read out the entire amendment, Mr. Chair?

The Chair: No.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 15 agreed to)

The Chair: Shall clauses 16 to 24 carry? There are no proposed amendments?

[Translation]

Mr. Daniel Turp: There are no amendments, but it nevertheless is there.

[English]

Mr. Gary Lunn: I have to go.

The Chair: Yes, we all have to go. I'm going to adjourn once we finish this.

(Clauses 16 to 24 agreed to)

The Chair: Colleagues, I propose we adjourn. Various people have obligations. Mr. Lunn's going. I have the Chinese ambassador waiting.

I propose—I'm in your hands—we meet Tuesday morning. I have to appear before the OAS foreign ministers on Tuesday morning. I personally can't be here. We could meet Tuesday afternoon, if that's all right, or you could meet on Tuesday morning and go on Tuesday afternoon.

I think we could finish this Tuesday afternoon, if we put it off until Tuesday afternoon, with concentrated work. Again, I know there are some issues, particularly in the—

[Translation]

Mr. Daniel Turp: That gives us the time to prepare new amendments.

[English]

The Chair: I recommend we go until Tuesday afternoon. Is that all right? We can hopefully do our Kosovo resolution as well on Tuesday afternoon.

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Morning or afternoon?

The Chair: Afternoon, if that's all right. Okay.

Thank you, colleagues.

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May I just say something? Maybe I shouldn't say this, but I sort of wish this discussion had been on in the television room. When you get into the Finta case, the Pinochet case, and the way domestic laws are incorporating new international norms, this is something that is going to be very important for Canada. I'm sorry that more Canadians aren't able to participate in it.

Thank you all for your tremendous cooperation. We really appreciate the level of debate.

[Translation]

Ms. Francine Lalonde: Mr. Chairman, you may thank Mr. Cotler, Mr. Turp and all of the non-lawyers.

The Chair: Especially the non-lawyers.

[English]

The meeting is adjourned.