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]

Tuesday, June 6, 2000

• 1541

[English]

The Chairman (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Colleagues, we got as far as clause 25.

Mr. Cotler, we're now at G-11. Would you care to explain that, sir?

(On clause 25—Offences against the International Criminal Court—outside Canada)

Mr. Irwin Cotler (Mount Royal, Lib.): This amendment, which is on page 41, is similar to the amendments regarding conspiracy and attempts that we made to clauses 4, 5, etc., which appeared earlier in this text, on pages 8, 15, and 23, for example. I'll move that Bill C-19 in clause 25 be amended by (a) replacing line 5 on page 17 with the following.... Do you want me to read the whole thing?

An hon. member: No, dispense. We have the text.

Mr. Irwin Cotler: This simply has to do, Mr. Chairman, with the inclusion here of offences that involve also conspiracies and attempts. As I said, earlier we made these amendments to clauses 4, 5, and the like.

The Chairman: So these are in conformity with your other amendments to deal with the conspiracy issue.

Mr. Irwin Cotler: Exactly.

The Chairman: I don't believe there is any need for debate, then.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 25 as amended agreed to)

(On clause 26—Retaliation against witnesses—outside Canada)

The Chairman: We have amendment G-12.

Mr. Irwin Cotler: This is a similar amendment regarding conspiracy and attempts but with regard to the matter of retaliation against witnesses.

The Chairman: So it's exactly the same.

Mr. Irwin Cotler: Yes.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 26 as amended agreed to)

(On clause 27—Possession of property obtained by certain offences)

The Chairman: We have amendment G-13.

Mr. Irwin Cotler: Mr. Chairman, that's just a housekeeping amendment to include section 25 as well as section 26.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 27 as amended agreed to)

(On clause 28—Laundering proceeds of certain offences)

Mr. Irwin Cotler: In clause 28 it's the same housekeeping amendment.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 28 as amended agreed to)

(Clauses 29 to 31 inclusive agreed to)

(On clause 32—Partial exclusion of Seized Property Management Act)

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): I'd like to move an amendment to clause 32.

The Chairman: That's why I didn't put it in the group.

Mr. Gary Lunn: Do I need to read the whole motion? You have it in front of you.

The Chairman: No. It's R-19.

• 1545

Mr. Gary Lunn: Yes. It's proposed section 32.1. You have it in front of you. Basically what we're asking is that the Minister of Foreign Affairs or any other ministry that is designated, when they receive the text of the amendments of the Rome Statute or the rules of procedure and evidence, which we do not have—

The Chairman: Oh, I'm sorry, Mr. Lunn. I apologize to you. Amendment R-19 is a totally new clause.

Mr. Gary Lunn: That's right.

The Chairman: So could we just adopt clause 32 and then we'll move to yours?

Mr. Gary Lunn: Done.

(Clause 32 agreed to)

The Chairman: I'm sorry to interrupt you.

Mr. Gary Lunn: Basically this amendment is that when the government receives amendments to the Rome Statute, the rules and procedures of evidence, which we do not have now, they table this in the House so that all parties will have access to this. So they'd have to table it within 15 days. That's what the spirit of the amendment is.

The Chairman: Should we ask for comments first from either Mr. Piragoff or Mr. Robinson and then go to questions?

Did you have any comments, Mr. Robinson?

Mr. Darryl Robinson (Legal Officer, United Nations, Human Rights and Humanitarian Law Section, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman.

The government inclination on this proposal is that it's not necessary. We agree with the objective of transparency and so on, but this particular provision doesn't appear to us to be necessary.

The Rome Statute itself will of course be tabled in Parliament. If Parliament passes this bill, Canada will be in a position to ratify. Then the treaty would enter into the Canada treaty series. It would be tabled in Parliament. I believe it would be available on CD-ROM as well.

With respect to amendments to the Rome Statute, which proposed section 32.1 refers to, if there are amendments that have any impact on the Canadian legislative structure, then obviously Parliament would have to decide whether or not to implement those. So any such amendments would come to the full attention of Parliament. Even if the amendment does not impact on the Canadian legislative structure, for example if it related only to the internal administration of the ICC, then we would still be tabling those amendments in Parliament. So this part of it would come to pass in any event.

With respect to the last element of this, which is the rules of procedure and evidence, we discussed the rules of procedure briefly in our last meeting on Thursday. The rules of procedure and evidence are extremely technical details on precisely how the court will handle its day-to-day cases. The procedures of the court are already well defined in the Rome Statute. In fact, the procedures already go on for some 50 pages. That is tabled in Parliament. The rules of procedure will simply flesh that out. We don't table the rules of, for example, the International Court of Justice, the Yugoslav tribunal, the Rwanda tribunal, or all the myriad of tribunals out there.

There is something else to point out, which is that these courts and tribunals tend to change their rules quite frequently. The ICC rules will be well over 100 pages. So in short.... Well, it's too late to be in short. Our inclination is that it's not necessary to do this tabling and it doesn't seem to have utility for Canadians.

The Chairman: Are there any other comments? Mr. Turp.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Chairman, I think that we could agree to that, first of all because the government, in other implementing legislation for recent treaties, had accepted an analogous provision further to certain proposals that had been made.

You know that this type of amendment would result in mandatory tabling, which is not the case currently. It is merely a practice, a practice which, moreover, was interrupted for many years until someone pointed out that the government was not tabling its treaties, even at times running counter to its own legislative obligations. This amendment would, therefore, make the tabling of treaties mandatory, including the amendments to the Rome Statute.

• 1550

In my opinion, it is important that this be done. There would be an obligation to table not only the treaties but also the rules of procedure and evidence as well as the other regulations that, because they are not treaties, do not have to be published anywhere.

It would be useful to table these documents in the House so that people are aware of them. Indeed, even if they are not treaties or amendments to treaties, they are so crucial to understanding the treaties that they should be tabled so that parliamentarians can become familiar with the content of these rules of procedure and evidence. I would also add the elements of crime, which are negotiated and which could also be tabled as supplements to the treaty.

I believe that this provision would promote transparency, which has not always been the case as far as treaties are concerned, and it would serve to better educate the members of the House of Commons on these issues.

[English]

The Chairman: Yes, Mr. Lunn.

Mr. Gary Lunn: Can I call the question? I agree with Mr. Turp. Let's call the question.

The Chairman: There might be somebody who has an opposing view. I don't want to railroad anything through.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I note Mr. Robinson did make a certain point, though, about the economy and the use of our skills. It is a requirement that every modification to a treaty be entered into our registers. There's an obligation to keep it up to date. But to build it into the statute adopting the International Criminal Court would put a very substantial test on.

I remember the amendments to the World Court rules at several successive stages. They were very long, and they kept going over a whole period of time. I sort of wonder, if we wish it done explicitly, that we put in a separate law the obligation that....

We don't incorporate treaties as the supreme law of the land in the American constitutional sense. They're binding on Canada, but they're not a treaty. This is specifically an act to implement this treaty in terms of its concrete consequences in Canadian law.

So I think it's a housekeeping problem of some considerable dimension if you build it in, but I'd rather see it probably in a separate law. Mr. Turp feels very strongly about it, but I thought Mr. Robinson made sense in his remarks.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): If I may, I would like to make a brief comment, Mr. Chairman.

The treaties are already tabled; some of them have been tabled late, but they are tabled none the less. In addition, with all of the modern publication mechanisms available, such as Internet, all of these documents can be consulted.

Finally, Mr. Chairman, I do not think that it would be appropriate to create a type of bureaucracy that would look after these matters, taking everything already found in the government files and tabling it all in the House. Aside from creating bureaucratic monitoring, I do not think that this would bring anything new to the table.

[English]

The Chairman: Well, you've heard the argument. We've discussed this before, about the need to deposit treaties in the House. It's obviously something that's an evolving situation. Whether it should be in one statute and not in others is a question.

(Amendment negatived)

The Chairman: Colleagues, from clauses 33 to 76 there are no proposed amendments, so I'm going to call all of them at once.

[Translation]

Mr. Daniel Turp: I have some questions about a few clauses, Mr. Chairman.

The Chairman: Could you indicate which ones so that I can proceed quickly?

Mr. Daniel Turp: Clause 48.

[English]

(Clauses 33 to 47 inclusive agreed to)

(On clause 48)

The Chairman: Mr. Turp.

• 1555

[Translation]

Mr. Daniel Turp: I would like to ask our two witnesses to explain, for our benefit and ultimately for the benefit of the courts, the scope of clause 6.1 of the Extradition Act as suggested in clause 48, and, especially, what is meant by the words "common law" that would be added to the Extradition Act.

[English]

The Chairman: So there are two questions, as I understand: What is common-law immunity, and can we get it somehow?

Voices: Oh, oh!

Mr. Daniel Turp: We have another kind of immunity as parliamentarians.

The Chairman: Mr. Robinson.

Mr. Darryl Robinson: The purpose of clause 48, which would create a new section 6.1 in the Extradition Act, is to ensure that Canada will be in a position to comply with any request from the International Criminal Court.

We've spoken about immunities in the past and the limitations there are on national courts being able to take action, and we spoke at our last meeting about the Pinochet case. I should clarify that, as we discussed then, former heads of state and current heads of state are in a different situation under the common law with respect to the ability of a national court to deal with them. The Pinochet case went to extreme lengths to reiterate over and over the Pinochet principles about former heads of state, whereas current heads of state retain an absolute immunity unless their state gives it up.

The International Criminal Court contains article 27, which says essentially states parties are giving up all forms of immunity to the ICC. So the ICC is in a different position from Canadian courts. The ICC enjoys this benefit that states parties have specifically, by treaty, given away whatever immunities they might have to the ICC.

That doesn't mean there are no immunities whatsoever with respect to the International Criminal Court. Under article 98 of the ICC statute, the court is obliged, before requesting surrender of a person, to consider whether there are any state or diplomatic immunities still existing. It seems to us that in the current state of international law, non-states parties would probably benefit from that. Non-states parties, having never agreed to give over immunities of their current heads of state, probably retain the protection of it. Although, where there is a Security Council referral, the enforcement powers of the Security Council under the UN Charter would apply. So in that situation I would expect non-states parties have no immunity.

That's how the ICC works. This legislation then basically ensures Canada can comply with any request. The ICC itself will make any determinations if there are immunities, and proposed section 6.1 enables Canada to comply. Basically Canadian courts do not need to make this immunities determination; it will be made by the ICC.

In summary then, if a request comes from the ICC, the immunities issue has been considered and dealt with by the ICC. Proposed section 6.1 enables Canada to comply without any need for the Canadian judiciary to look at this issue a second time. It's dealt with.

On your second question about the common law—

The Chairman: May I ask a question?

Mr. Darryl Robinson: Absolutely.

The Chairman: There seem to be three levels of people. If a head of state of a state signatory to this convention is in Canada and is sought to be extradited, such a person would clearly fall within it and would have no immunity, because they've surrendered their immunity.

Then there's the head of state of a non-state party to this convention, but who for some reason the ICC decides it's going to indict anyway, because they've decided they have jurisdiction over it. For that person, there might be a legal argument as to whether or not they had common-law immunity.

• 1600

The third category would be heads of state of non-state parties, but who are subject to an indictment that has been confirmed by the Security Council, which would have a kind of extra layer of authority to it that the second category didn't. This deals with all of those, does it?

Mr. Darryl Robinson: Yes, that's exactly right. Your three categories are actually very useful. The immunities issue and the interplay of articles 27 and 98 of the Rome Statute is something that we had a lot of discussions about in New York in regard to figuring out exactly how they work.

The Chairman: I'll bet you did. This was a lot of fun—

Mr. Darryl Robinson: Yes, and the way you've summarized it is exactly right. There would be the three categories of persons. Only the head of state of a non-state party, in the absence of a Security Council referral, seems to still have comfort here. Basically the whole problem, the whole immunities issue, will be decided by the ICC, and Canada is in a position to comply with it.

The Chairman: Thank you.

Mr. Turp.

[Translation]

Mr. Daniel Turp: I have an additional question, Mr. Robinson. The proposed clause 6.1 is limited to the International Criminal Court. It does not refer to the two other courts for the former Yugoslavia and Rwanda. Is there an equivalent to this clause 6.1 which pertains to the two other courts?

[English]

Mr. Irwin Cotler: It covers the other two.

[Translation]

Mr. Daniel Turp: No, I do not believe so. If the answer is yes, I would like you to confirm this to us. Would the expression “or by any international criminal tribunal that is established by resolution of the Security Council” apply to the two other courts?

A voice: Yes.

Mr. Daniel Turp: Very well. Are we currently in a very similar situation as far as these three courts are concerned?

[English]

Mr. Darryl Robinson: Yes, it's the identical situation. As I think Irwin Cotler was indicating, section 6.1 does apply to requests not only from the ICC but from any international criminal tribunal established by a Security Council resolution. Then the names of those tribunals appear on a schedule to the Extradition Act, so it's the exact same thing, and the reason is that they're set up in a similar way in that the statutes of these tribunals have that same principle that even current heads of state are covered.

[Translation]

Mr. Daniel Turp: I would like to point out to you, Mr. Chairman, that although it is good that we are doing this now, we should have done so earlier. We should have already made this correction. We are now fulfilling our international obligations, but we are doing so a little too late, although I do believe that that could not have applied. I simply wanted to point this out to you.

[English]

The Chairman: This is very interesting, because in fact if you looked at the papers yesterday this is exactly what Mr. Clinton, when he was moving around Europe, was trying to do: to persuade the Europeans to back off on some of this stuff to let the Americans sign it, because they're worried about non-state actors being seized and—

Mr. Ted McWhinney: Our conclusion, then, is that this may well follow in the evolution, the progressive development, of international law, but it is better left unsaid in this particular context.

I would certainly be prepared to argue such a general extension as you're referring to, Mr. Chairman, in the appropriate case in the future, but I think it might be better if we leave it unsaid in this context.

Is that our general understanding, Mr. Cotler and Mr. Turp?

[Translation]

Mr. Daniel Turp: I am not sure that Mr. Cotler and I will agree on that.

[English]

What do you think of it?

Mr. Irwin Cotler: Well, this refers to the question of a surrender to an international tribunal. The question arises as to a domestic tribunal and a claim of immunity being made here in Canada. As I understand it, here the common-law principles of immunity or non-immunity would apply, as well as related statutes in that regard.

Is that a correct reading?

Mr. Darryl Robinson: That's absolutely correct. In that manner, then, for example, the Pinochet principle would apply in Canada. The former head of state would not enjoy immunity for actions like genocide, crimes against humanity, and war crimes, which simply cannot be considered as official duties that he or she previously carried out.

[Translation]

Mr. Daniel Turp: Mr. Chairman, one final comment on that issue. We discussed the matter before we began our work, but it would in, all likelihood, be useful to codify the common law rule introduced in the legislation by the London Privy Counsel legal committee in order to give greater certainty to the immunity law pertaining to foreign heads of state who are no longer in power.

• 1605

Perhaps Mr. McWhinney does not agree, but you are aware of all the difficulties experienced by the British government throughout this episode, as it did not know the status of the immunity law, a law which had, in fact, been developed by the London Privy Council legal committee.

Perhaps it would be appropriate to draft an amendment by Friday. I would invite Mr. Cotler to participate in drafting an amendment to this effect, which could be examined at report stage in the House of Commons.

The Chairman: For the time being, unless you have...

[English]

Mr. Ted McWhinney: That's a very important point. I didn't think the difficulties of the British government were legal. I thought they were political. The courts made those two steps forward and the British government, the minister, made a major step and a half backward.

If Mr. Robinson's statement, though, would be more or less ex ratione legis.... You're saying it would follow; you're not stating it categorically, I take it. I'd be prepared to argue for the same result in a concrete case if it arises, arguing in the progressive development and all, but you would not be giving a categorical answer on our law as it now stands, would you, Mr. Robinson?

Mr. Darryl Robinson: No.

Mr. Ted McWhinney: Either way, your statement goes into the record. And as we were saying, the travaux préparatoires—

The Chairman: Colleagues, I don't think we want to get into too much theoretical discussion.

Mr. Ted McWhinney: We've almost said enough on this. On this point I think we've tied it up.

The Chairman: That's fine. I'm not sure he even understands the question, by the look on his face.

Voices: Oh, oh!

The Chairman: If you can give an answer, we invite you to give one quickly.

Mr. Darryl Robinson: We find it difficult to imagine that Canadian courts would not follow the very persuasive indications in Pinochet. We actually considered over the weekend the possibility of trying to develop a legislative provision that would reflect the Pinochet principle and therefore give the clarity that Mr. Turp and others have mentioned.

The difficulty, though, with drafting something in black letter is that by expressing one thing you implicitly, maybe, exclude something else. So if we made a provision governing former heads of state, what about former diplomats and all these other forms of immunity? It quickly became apparent to us that this would be a more complicated task, so that was why we came back to our preference to rely on the common law and the good sense of our courts.

Mr. Ted McWhinney: I think that meets.... The answer given as read into the record would probably meet the objective you're seeking and I am seeking.

[Translation]

Mr. Daniel Turp: Sometimes, people coming from a civil legal system prefer things to be codified. It would probably also be useful to codify the rule refered to by Mr. Robinson. In this area, I would say that the British courts or the British government experienced difficulties that were of a political nature, but which were linked to the problem of whether or not to recognize immunity. This was part of the political problems. There were, of course, other problems as well, but part of the problem was a result of the uncertainty as to whether to grant immunity to a foreign head of state no longer in power.

[English]

Mr. Ted McWhinney: I respect the view. I thought it was a lack of simple courage at the political level.

The Chairman: I wonder, colleagues, if we could—

[Translation]

Mr. Daniel Turp: Mr. Chairman, just one other point on this matter. Listen, we have to craft legislation properly...

The Chairman: Yes, but you have to think about...

Mr. Daniel Turp: I would like to point out that there may be a problem with the French in clause 6.1.

Ms. Francine Lalonde (Mercier, BQ): Mr. Chairman, perhaps it is just a question about where we should put the commas. Clause 6.1 reads as follows in French.

6.1 Par dérogation à toute autre loi ou règle de droit, quiconque fait l'objet d'une demande de remise présentée par la Cour pénale internationale, ou par tout tribunal pénal international établi par résolution du Conseil de sécurité des Nations Unies et dont le nom figure à l'annexe, ne peut bénéficier [...]

Does this mean: “Whose name appears in the schedule”?

Mr. Daniel Turp: We will have to ask the translator who is sitting in the back. Is a comma missing?

• 1610

Ms. Francine Lalonde: According to the comma, “quiconque ne peut”...

Mr. Daniel Turp: Is it clear...

Ms. Francine Lalonde: The first time I read that, I looked for a list of names in the schedule or somewhere else.

Mr. Donald K. Piragoff (General Council, Criminal Law Policy Section, Department of Justice): Thank you, Ms. Lalonde.

[English]

Clause 48 is an amendment to the Extradition Act, so the schedule in proposed section 6.1 is a schedule to the Extradition Act. That schedule already exists. There is a schedule to the Extradition Act that lists the two existing tribunals. So the schedule to which reference is made in proposed section 6.1 is not the schedule attached to this act but a schedule that already exists; it is the schedule at the back of the Extradition Act.

[Translation]

Mr. Daniel Turp: That is understood. I did think, however, there was one "et" too many:

ou par tout tribunal pénal international établi par résolution du Conseil de sécurité [...] dont le nom figure à l'annexe

Mr. Denis Paradis: That's the name of the two courts. It is good like that.

Ms. Francine Lalonde: That's it. There will be no ambiguity if we take away the “et”.

Mr. Daniel Turp: There is one too many “et” in the wording.

Ms. Francine Lalonde: The “et”, refers back to the “quiconque”.

Mr. Daniel Turp: We should say: “ou pour tout tribunal pénal international établi par résolution du Conseil de sécurité des Nations Unies dont le nom figure à l'annexe”. The “et” is not needed.

Our linguist is sitting back there. Does he agree? No, our expert. Is there no translator here?

Mr. Chairman, I believe that the “et” is superfluous in French.

Mr. Denis Paradis: In English, the same thing applies to the “and”, because the “et” translates the “and”.

[English]

The Chairman: Could we adopt the clause subject to verification?

[Translation]

Mr. Daniel Turp: I do not know if this should be done in English—there are people who are better at this than I am—, but I do believe that the "et" should not be there in the French.

The Chairman: Very well. Can we adopt this clause subject to it being reviewed by the experts? Very well.

[English]

(Clause 48 agreed to)

(Clauses 49 to 52 inclusive agreed to)

(On clause 53)

[Translation]

Mr. Daniel Turp: I have a question about clause 53 of the bill, which pertains to section 76 of the Act.

[English]

The Chairman: So your question is about clause 53, Mr. Turp?

[Translation]

Mr. Daniel Turp: Yes, with respect to clause 53. The first few lines state:

76. If a person being extradited or surrendered from one State or entity to another arrives in Canada...

Should we not add the word “remise” in French, to include “surrendered?” You do not extradite to an entity; you remet or “surrender” to an entity.

We had this discussion when we debated the Extradition Act at the Standing Committee on Justice, which was chaired by the sadly missed Shaughnessy Cohen. I really insisted that, when referring to an entity, we should use the word “remise” or “surrendered”, but this was not accepted at that time. Would it not be appropriate to mention not only the person who is “extradited from one State” but also who is “surrendered to an entity”? I do not know how this is said in English. How do you say “entité” in English? “Entity”?

Ms. Francine Lalonde: Yes, “entity”. That is what I read in English.

Mr. Daniel Turp: Should we not be saying “surrendered from one State or entity”?

A voice: No.

Ms. Francine Lalonde: That is what is said in paragraph (a).

Mr. Denis Paradis: No. It is a person being extradited from one State or entity to another State or entity. That is what is said.

• 1615

Mr. Daniel Turp: I may be mistaken, but I do want to make sure that we are truly consistent in the distinction made between extradition and surrender.

[English]

The Chairman: Mr. Piragoff.

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

Extradition is the entire process by which we remove people from this country to stand trial or to face sentence in another country. Surrender is part of that process, and it is that part of the process where the body is actually handed over. The term “surrender” is also the term that has taken on meaning in the context of the ICC, because the ICC has not used the word “extradite” to refer to the handing over of a person to the ICC from a state.

Proposed section 76 is supposed to be of general application. In other words, it may involve a situation where a person is being extradited or surrendered from one state to another and there is an unscheduled landing. It might involve a situation where a person is being handed over or surrendered by a state to the International Criminal Court. But it could also involve a situation where a person is being handed over by the International Criminal Court to a state, and that is also contemplated by the ICC statute. The court, for example, may decline jurisdiction or rule the case inadmissible because there is a state that is willing and is able to prosecute. In those situations the court would hand over the individual to that particular state.

So proposed section 76 has to be worded in such a way that it is either a state or an entity that is surrendering the individual, as well as a state or an entity that may be receiving the individual, in order to encompass all eventualities.

I think Mr. Turp's concern is that the opening line only uses the word “extradited”. I think he'd prefer it if it said:

If a person being extradited or surrendered from one State or entity to another arrives in Canada

[Translation]

and in French:

Si une personne extradée ou remise d'un État ou entité vers un autre

[English]

I think that is the gist of the amendment Mr. Turp would want.

From a drafting point of view, it causes no harm. It makes it more clear. So it's really up to the committee as to how they want to proceed.

The Chairman: I take it you feel it might compliment it and make clearer the purpose of the legislation.

Mr. Donald Piragoff: It could make it clearer that this provision encompasses extradition, surrender, or whatever other form of handing over the body. I'm trying to use neutral language, such as “handing over” a person, not to get caught up with the term “surrender” or “extradition”.

It could make it clearer. The question is whether it's not clear enough. But it's really up to the committee members.

[Translation]

Mr. Daniel Turp: May I suggest a very simple amendment?

[English]

The Chairman: Well, technically of course, we're supposed to get the amendments in writing, so this might be complicated for the table officers, but—

Mr. Ted McWhinney: [Inaudible—Editor].

The Chairman: Excuse me; I haven't finished, Mr. McWhinney.

Technically we should have them in writing, because of the complexity of making sure it gets right into the record, but since it's just two words you're trying to propose, that would be all right.

Mr. McWhinney had something to say.

Mr. Ted McWhinney: The explanations, which have been very thoughtful, and the exchanges are part of the record, and they are available to courts in interpreting this, as well as to legislatures. In other words, you have made your point, and it is part of the record now.

[Translation]

Mr. Daniel Turp: Mr. McWhinney, I do not agree. We have to craft the best laws. Let's take a few moments to do so, because our colleagues from Foreign Affairs also think that it would be useful to make a distinction here between extradition and surrender, and to add two words to clause 77. We are here to craft the best laws.

• 1620

[English]

The Chairman: Colleagues, if we wanted quickly to do this, the English would read:

If a person being extradited or surrendered from one State or entity

and it would be in French:

[Translation]

Si une personne extradée ou remise d'un État ou entité

[English]

It's not difficult. If colleagues are in favour, we can quickly do that.

Is the clerk happy with the formulation? Then I'm willing to call the vote.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 53 as amended agreed to)

(On clause 54)

[Translation]

The Chairman: Ms. Lalonde.

Ms. Francine Lalonde: I have a question about clause 57.

The Chairman: Clause 54?

Ms. Francine Lalonde: Fifty-seven.

The Chairman: Fifty-seven.

Mr. Daniel Turp: Wait. Clause 54.

[English]

The Chairman: Mr. Turp, you have a question about clause 54?

[Translation]

Mr. Daniel Turp: I would like to have one more explanation about the scope of the last part of sub-paragraph 5(1)(i) of clause 54: "and the agreement on privileges and amenities contemplated in that article."

In the explanations and observations you prepared in the briefing book, you mentioned the approach chosen when the United Nations Charter was adopted. What you want to do here, if I understand correctly, is also to give the Governor General in Council the power to pass regulations.

In the explanation you give on clause 54, you state:

While it is expected that existing Canadian legislation likely provides the required framework to implement these obligations, in order to ensure full compliance, it would be prudent to allow the Governor in Council to grant such privileges and immunities as are required to satisfy Canada's obligations under the Rome Statute and the eventual multilateral agreement on privileges and immunities.

You say: “privileges and immunities”. So you are conferring the regulatory power of granting privileges and immunities. I don't know, but usually, that's not done through regulatory power. It's done through legislation. I'm a bit worried that we are trying to grant privileges and immunities through regulations without any scruting by Parliament.

[English]

The Chairman: Mr. Robinson, we're at clause 54.

Mr. Darryl Robinson: Normally these sorts of privileges and immunities are actually granted by Order in Council.

I think section 5 of the Foreign Missions and International Organizations Act has actually a lengthy list of situations where Parliament has pre-approved the preparation of Orders in Council in these various circumscribed areas so that the immunities can be developed without delay. In the event though that the existing structure in section 5 of the Foreign Missions and International Organizations Act for some reason doesn't cover something in what we'll get out of article 48, there's this proposal here anyway to have a legislative provision allowing the Governor in Council to do so by Order in Council. But of course it's up to Parliament whether to allow this.

It is, however, simply a matter of convenience. This is not a blank-cheque situation. They're privileges and immunities for this one specific organization. The privileges and immunities are outlined in article 48 of the Rome Statute, which we have and we can see. It's just going to be further elaborated though in a multilateral agreement.

The multilateral agreement is not ready yet. So if Canada wants to ratify now, before waiting until the Assembly of States Parties comes into force, a provision such as this is needed to enable us to ratify now, knowing that we will be able to reflect whatever privilege. But the privileges and immunities will be in accordance with the sort the international community always does. It's a relatively standard form process.

Does that help?

[Translation]

Mr. Daniel Turp: That answers my question, but I'd still like to share a concern with you. Once the multilateral agreement on privileges and immunities is completed, and this is an international treaty, it will be implemented through a regulation, won't it? A treaty will be implemented through regulation without parliamentary intervention.

• 1625

[English]

Mr. Darryl Robinson: It would be implemented by a regulation pre-approved by Parliament through clause 54 of this. So right now, in fact, Parliament would be turning its mind to whether it wants to bestow this. Parliament could decide yes. Parliament could decide no. If there's a will here to strike this out, then we would just have to cross our fingers, I suppose, and hope that the privileges and immunities fit within the authorities already given.

Again, as I said, there's every reason to expect that. We know what article 48 says. We know that the multilateral agreement is going to be along the same lines as what's already been done in the international community. So I think there's every reason to be comfortable that nothing bizarre is going to happen in the preparatory committee.

My colleague Don Piragoff is also pointing out, just for greater certainty, that it is an obligation of implementing a statute that we respect the privileges and immunities enjoyed here. So we would need something along these lines in order to ratify.

[Translation]

Mr. Daniel Turp: I have a comment on that, Mr. Chairman, just to advise you that in this whole debate, which, in my opinion, is desirable, by passing this simple paragraph, 5(1)i), we are giving the government the power to implement an international treaty. This must be of concern for any parliamentarian because a Parliament should have the right to intervene more seriously than just through a delegation of legislative jurisdictions attached to a government. It's another way of showing the complexity of treaty implementation, which should be examined in a broader perspective.

The Chairman: Yes, but I imagine there are a lot of examples like this. Let's take the example of as broad a treaty as the NAFTA with the USA and Mexico. A lot of things in that treaty are completed either through orders in council or regulations.

Mr. Daniel Turp: You see, your comment adds to the idea that we don't know and it might be interesting to know.

The Chairman: That would doubtless be something to be submitted to the Library for research.

Mr. Daniel Turp: They have already done research on that.

[English]

(Clause 54 agreed to)

[Translation]

The Chairman: Now, Ms. Lalonde, you had a question on clause 55.

Mr. Daniel Turp: Fifty-seven.

Ms. Francine Lalonde: Fifty-seven.

[English]

(Clauses 55 and 56 agreed to)

(On clause 57)

[Translation]

The Chairman: Ms. Lalonde, do you have a comment or a question?

Ms. Francine Lalonde: Yes, on clause 57.

This comes back to the question put by some groups about the use, in the third person of the indicative, of the verb “may” rather than “shall”. I'd like you to explain how this clause works in view of clause 109 of the Rome Statute. There seems to be more leeway in this clause than in the one in the Rome Statute, but as I am not a lawyer...

Mr. Daniel Turp: That is a very good question.

Ms. Francine Lalonde: ...but hard-headed nonetheless...

[English]

Mr. Donald Piragoff: Thank you, Madam Lalonde.

• 1630

Article 109 of the Rome Statute concerns the enforcement of fines and forfeiture measures. Paragraph 1 of that article obligates state parties to give effect to fines or forfeitures ordered by the court, which appears to be an absolute obligation. And there is an obligation by states parties to give effect to orders of the court.

However, article 109, in paragraph 2, does recognize that there may be some discretion involved in giving effect to orders of the court. For example, paragraph 2 of article 109 of the treaty states:

If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

It contemplates that while there is an obligation to enforce fines or forfeiture measures, it also recognizes that there may be some discretion on how a state actually implements that particular obligation.

Also, if one looks at the statute, for example, article 93 of the statute, which is the general provision concerning cooperation with the court—in fact it's entitled “Other forms of cooperation”—it contemplates that there may be some situations where a state may not be able to comply with the order of the court as the order is actually written. For example, in article 93, paragraph 1(l) states:

Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

So the treaty does recognize that in some situations a state may not be able to directly enforce an order the way the order is written, and that the state accordingly shall enter into consultations. And there are consultation mechanisms in the statute that require that in situations where a state is not able to simply take the order of the court and enforce it directly, it is still under an obligation to achieve the effect of the order, but it may have to consult with the court as to how best to put that order into effect under its own domestic law.

By using the word “may” rather than “shall” in proposed section 9.1 of the mutual legal assistance act, which is in clause 57, it first empowers the minister or the Attorney General to undertake certain legal activity that the minister requires Parliament to empower it with, but it also signifies that the minister has some discretion in how the order will be implemented.

I guess the short answer is that there clearly is an obligation under the treaty that must be respected, but exactly how that obligation is put into effect may require some discretion on the part of the Minister of Justice or the Attorney General, and that is why the word “may” exists.

Also, if we look at, for example—

The Chairman: In the case of the linguistic issue, the word “may” in English and «peut» en français” import this notion of discretion. So there's no problem in terms of the accuracy of the translation, if I can put it that way. It's a problem of the concept.

[Translation]

It's the concept itself that is in question.

Ms. Francine Lalonde: Mr. Piragoff, are you through? You say that in the proposed paragraph 9.2(3), there is discretion as to how the order may be enforced, but that it must be enforced. Now, it says:

(3) Before filing an order referred to in subsection (1), the Attorney General of Canada must be satisfied that:

Is he keeping any leeway to decide whether the order is properly substantiated? That's not at all the interpretation you gave before, according to which the order must be enforced. Here, he may decide not to enforce it.

• 1635

[English]

Mr. Donald Piragoff: Under the treaty, Canada must give effect to the order. How Canada gives effect to the order is within the discretion of Canada. One way of giving effect to the order is to actually follow the procedure under clause 57. But there are alternative ways in which the order can be given effect under Canadian law.

For example, domestic proceedings could be instituted under the forfeiture provisions of the Criminal Code. What the opening words in proposed subsection 9.1(1) imply is that the minister has the discretion at that moment to decide whether to give effect to the order directly by using proposed subsection 9.1(1) of the Mutual Legal Assistance in Criminal Matters Act, or to give effect to the order by initiating domestic proceedings under the Criminal Code.

So the minister has a number of tools she can use in order to give effect to the order. The amendment to the mutual legal assistance act adds one more tool to the tools that exist under Canadian law. So the obligation under the treaty is to achieve the effect of restraint of assets. How the minister and how Canada does that is our decision. Proposed section 9.1 gives us one more tool for the arsenal of tools we already have.

Now, Madame Lalonde asked about the internal consistency, I believe, of proposed section 9.1. Why is it that proposed subsection 9.1(1) uses the word “may”, but then proposed subsection 9.2(3) says the Attorney General “must” be satisfied of the matters in proposed paragraphs 9.2(3)(a) and 9.2(3)(b) before filing an order?

It is still the discretion of the Attorney General to decide which tool to use. So the “may” in proposed section 9.1 and the “may” in proposed section 9.2 empower the minister to use this tool as opposed to using another tool—for example, the tool that exists in the Criminal Code. But if the minister decides to use the tool in proposed section 9.2, the minister must be satisfied that the conditions in proposed subsection 9.2(3) exist before this tool can be used. So it's a safeguard on the use of this tool.

In other words, before you use this tool, you must be satisfied the person has been convicted of an offence within the jurisdiction of the International Criminal Court, and that the conviction and the order are not subject to further appeal. That is to ensure that before we start forfeiting property, we know it is a final order of the court; it is not simply an order of the trial chamber, but it is an order that has been subject to appeal at the International Criminal Court and there are no more appeals. In other words, it safeguards so that before we interfere with people's property rights in Canada, we are assured we have a final order coming from the International Criminal Court.

I hope that long answer explained a very complex situation in Canadian law.

[Translation]

Ms. Francine Lalonde: If this wording were from a country whose record in matters of human rights was doubtful, would we find that very worrisome? Canada wants to be a leader by passing this legislation quickly, but it seems to me there is quite a wide gap here. Wasn't that what the NGOs were afraid of, actually? Isn't there a wide gap between the text of the Rome Statute and the enabling act here? You say there are many ways of choosing tools, but we are not recognizing our obligation to follow up on an order. We're giving ourselves ways not to follow up.

• 1640

[English]

Mr. Donald Piragoff: If we chose not to follow up, we'd be in breach of our obligations. The reason proposed sections 9.1 and 9.2 use the word “may” is they empower the minister. They give the minister a new legal tool.

Canada already has legal tools. We could enforce orders of the court without the necessity of enacting clause 57. We have tools in the Criminal Code. But the tool that would be provided by clause 57 is a much more expeditious tool than the one that exists in the Criminal Code.

But that doesn't deny us the ability to use the Criminal Code, because sometimes the Criminal Code might be more advantageous than to use clause 57. For example, if we wanted to seize all of the assets of a particular individual, not only because those assets are tainted because of criminality vis-à-vis the International Criminal Court, but because they may also be tainted because of domestic criminality, we may want to seize everything and then split up the proceeds between the court and other claimants to the property. In that situation we would use the Criminal Code provisions, because they are broader. This simply gives us one more tool in addition to what we have.

I think the concern of the NGOs was, are we sending the wrong message by using the word “may”? My reply to that is no; it is clear our obligation under the statute is that we must obey our obligations, subject to whatever consultation mechanisms are permitted under the statutes.

We are fortunate, and I guess maybe we are more progressive than other states, in that we have more than simply one tool. So we want to ensure the minister has the ability to use all of the tools available under Canadian law, including this new tool. That's why the opening words refer to “may”.

Maybe the NGOs can use this explanation to indicate why we have used the word “may”, but if we're talking about another country that does not have a number of different tools, then maybe the appropriate language for that country might be to say “shall”, because there is no other way to implement the treaty obligation. But we have a number of tools by which we can implement our treaty obligations. This is one. That's why it says “may”. The provisions in the Criminal Code also say “may”. This empowers the minister and gives the minister discretion.

As I said, the obligation is in the treaty. How we implement the obligation is a question of domestic practice in law.

[Translation]

Mr. Daniel Turp: For this to be clear, Mr. Piragoff, must one of the tools necessarily be used by the minister in such a way that there is no discretion and that the act, as amended, would not be a way to circumvent the treaty obligation? Am I correct in understanding that even though the word "may" or "peut" is used, there is no discretion, because the minister must use one of the tools available?

[English]

Mr. Donald Piragoff: There is no discretion to enforce. There is only a discretion as to how—that is, the manner by which—one enforces.

[Translation]

Mr. Daniel Turp: That is clear.

The Chairman: Agreed? Concerning international law, we must use one of the two or three processes available. So it is clear.

[English]

In that case, subject to those explanations, can we put the question then on clause 57?

(Clause 57 agreed to)

The Chairman: I take it there are no other observations until we get to amendment G-15, which introduces new clause 76.1. So I shall put the question on everything to that point.

(Clauses 58 to 76 inclusive agreed to)

The Chairman: On amendment G-15, proposed section 76.1, Mr. Cotler, sir.

• 1645

Mr. Irwin Cotler: Mr. Chairman, this is a conditional housekeeping amendment intended to harmonize the definition of “money laundering offence” under the prospective Bill C-22, which is the Proceeds of Crime (Money Laundering) Act, when it receives royal assent, with the definition of that offence under clause 28 of this legislation.

The Chairman: Nobody has any problems with this technical amendment? I call the vote.

(Amendment agreed to—See Minutes of Proceedings)

(On clause 77—Coming into force)

The Chairman: Shall clause 77 carry?

[Translation]

Mr. Daniel Turp: Hang on. Which is the coming-into-force clause?

The Chairman: Clause 77.

Mr. Daniel Turp: May I put a question to the people from Foreign Affairs?

The Chairman: On clause 77?

Mr. Daniel Turp: What is the intent concerning the coming into force and will there have to be a coming into force at different dates? I am putting the question because of the ratification process also. Am I to understand that you want the legislation to be in force before ratification or do you have other intentions in this respect?

[English]

The Chairman: Can you speak to this point, or is this the minister's decision?

Mr. Darryl Robinson: That in fact is my answer: this is several levels above my authority to decide.

When to proclaim the act into force is for the Governor in Council to decide. Our preference would be to enact the legislation and then ratify, but again, that's up to many levels above Don or I to decide.

[Translation]

Mr. Daniel Turp: What is the government's practice? Must the legislation be in force before the ratification or are there cases where the legislation had not yet come into force when an agreement was ratified and where the legislation came into force later?

[English]

Mr. Darryl Robinson: This is turning into all sorts of interesting issues here, isn't it?

The usual practice, as I understand it, is we proclaim in force before depositing the instrument of ratification. Whether that's.... Actually, I'll stop there. That's the usual practice.

Voices: Oh, oh!

Mr. Ted McWhinney: [Inaudible—Editor]...we got a similar answer. He said it wasn't necessary, but that's the way it's done.

You asked the question a year ago, remember?

The Chairman: We're just glad to see the answers are consistent.

[Translation]

Mr. Daniel Turp: They are consistent at Foreign Affairs. There is quite a corporate memory.

[English]

The Chairman: Mr. Robinson saw where he was going and was a very shrewd person. You've been very good witnesses.

(Clause 77 agreed to)

The Chairman: Mr. Cotler, does G-16 amend the schedule, or is that a new thing?

Mr. Irwin Cotler: It has to do with

[Translation]

a motion having to do with the translation in the French version, in the schedule on the provisions of the Rome Statute. We move that Bill C-19 be amended, in the French version, by replacing in the schedule, pages 39 to 45, with the following...

[English]

It's to bring the French translation in line with the English.

The Chairman: And, Mr. Cotler, you are assuring this committee that your translation of all these articles is much preferable to the translation that was already done?

Mr. Irwin Cotler: That's correct.

The Chairman: Is this a McGill University thing or what?

Voices: Oh, oh!

Mr. Irwin Cotler: I just looked at the English and the translation in the French, and the translation proposed here is a more refined appreciation and adaptation of the English.

[Translation]

Mr. Daniel Turp: That includes the corrections made by the secretariat.

The Chairman: Do our French-speaking colleagues agree with that?

Mr. Daniel Turp: I have a question. Were there no corrections to the English version in the record of the corrections? Did I understand clearly?

[English]

Mr. Donald Piragoff: These corrections are corrections that come from four procès-verbaux that were issued by the United Nations to correct the translation of the French text, the Spanish text, the Russian text, etc.

• 1650

The official negotiating text in Rome was English, and the other five languages were then translated. As indicated last week, after the translations were issued, some countries had concerns about the translations. They wanted certain words changed. Some of the procès-verbaux were issued by the United Nations after the bill was already drafted by the government back in November 1999. This new schedule picks up all of the new corrections in the procès-verbaux, and it checks again the first two, because Mr. Narvey, as you will recall, said he thought one or two corrections had been missed in procès-verbaux numbers one and two.

An hon. member: But there are four procès-verbaux.

Mr. Donald Piragoff: That's right.

[Translation]

Mr. Daniel Turp: This is my question: were there corrections in the English version of the Rome Statute that we should write into the amendment?

[English]

Mr. Donald Piragoff: Yes, there were some corrections to the English text as well following Rome. The corrections to the English text were picked up in procès-verbaux numbers one and two, which were incorporated in the bill as tabled at first reading. procès-verbaux numbers three and four only had corrections to the French text, and no corrections to the English text. That's why the schedule only has to correct the French text.

The Chairman: That's understood.

I'm disappointed to learn that the French here is not coming from Mr. Cotler but in fact coming from Rome, but anyway....

Voices: Oh, oh!

The Chairman: I'd always thought of Mr. Cotler as a sort of Roman person.

I call the vote.

(Amendment agreed to—See Minutes of Proceedings)

(Schedule as amended agreed to)

(On clause 1—Short title)

[Translation]

Mr. Daniel Turp: I have an amendment.

The Chairman: We're going to amendment B-1. Colleagues, you have all that in the small package. You have the big packages and the little packages.

Mr. Daniel Turp: May I explain the scope of my amendment?

The Chairman: Agreed.

Mr. Daniel Turp: I have already mentioned this here. I think it was during the first meeting. It is a bit technical, but it's a matter of accuracy. It concerns the fact that the short title of the bill must be an accurate reflection of its content. Now, the short title being proposed, Mr. Chairman, is: "Crimes Against Humanity Act". Crimes against humanity are one of the three categories of crimes mentioned in the Bill. The crimes of genocide and war crimes are also mentioned as being serious crimes. The notion of crimes against humanity includes the notion of crimes of genocide. We're agreed that the crime of genocide is a crime against humanity. Its collective scope means that we include the notion of genocide in the notion of crimes against humanity, but the notion of war crimes is not included in the notion of crimes against humanity. War crimes are not crimes against humanity.

If the short title chosen is: "Crimes Against Humanity Act", then it is an improper reflection of what is in the bill. I know that the title I am suggesting is longer and not as short: "Crimes Against Humanity and War Crimes Act", but it does provide a better description of what is in the bill.

The full title of the bill, as worded on the title page, is very complete:

An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other acts.

• 1655

For more rigor and so that the people reading the title of the Act here and elsewhere can really know what it contains, I think it would really be worth adding "and war crimes" in the short title of the act.

[English]

The Chairman: Do you have any comments, Mr. Robinson, or Mr. Piragoff?

Mr. Darryl Robinson: I think the government position is that a rose by any other name would still smell as sweet. We're completely flexible.

Mr. Turp makes some points about accuracy and thoroughness. We're flexible. The committee will decide. We just note that if the committee decides to change the title, the clerk should just recall the need to review each of the clauses that refer to the title.

[Translation]

Mr. Daniel Turp: I have already consulted the translator and it seems it's a technical matter.

[English]

Mrs. Diane Marleau (Sudbury, Lib.): If we're going to start playing around with the title, why don't we just go back to the original title?

[Translation]

The Chairman: The Rome Statute.

Mr. Daniel Turp: No, Mrs. Marleau, because it would be too long.

Mrs. Diane Marleau: Yes, but we're starting to play games.

Mr. Daniel Turp: Mrs. Marleau, as was the case before with Mr. McWhinney, it is a matter of our duty here, as lawmakers, to be rigorous.

Mrs. Diane Marleau: Crimes against humanity include war crimes.

Mr. Daniel Turp: No.

Mrs. Diane Marleau: No?

Mr. Daniel Turp: No, it does not include the war crimes. Saying that would be inexact. If I were to teach that to my students, the good students would say that the teacher is not teaching well.

Mrs. Diane Marleau: Yes, but we are not in the classroom, here.

[English]

The Chairman: That's okay.

Mr. Ted McWhinney: I think Madam Marleau is right. She's not objecting to your first amendment. But this bill does describe what we're doing. We are implementing the Rome Statute in the court and making consequential amendments to other acts in Canada. That's the tradition of legislative drafting, but it's a highly accurate description of what we're doing.

Mr. Daniel Turp: I agree with the full title, but the short title is not an accurate description. We should add et les crimes de guerre to be accurate. If we do not do that, we are not being accurate.

The Chairman: What's the feeling of the committee? Do you want to add “war crimes”, given the fact that, as you say, war crimes are referred to in the long title?

[Translation]

Mr. Daniel Turp: It wouldn't be much longer. We'd have: "Crimes Against Humanity and War Crimes Act". No, we are not touching the full title.

[English]

Mr. Ted McWhinney: Just the short title.... Well, it is technically correct that war crimes are separate and distinct historically and otherwise from crimes against humanity. So if that's understood, let's agree.

[Translation]

Mr. Denis Paradis: The amendment is not a problem for us.

Mr. Daniel Turp: You are being accurate. Congratulations for your accuracy.

[English]

The Chairman: It may not be a war crime, but it may be a crime in this committee to wear down the government side to the point where they give in to anything that's suggested at the end of the day.

[Translation]

Mr. Daniel Turp: They are not the ones to be pitied; it's the senators.

[English]

(Amendment agreed to)

The Chairman: I want to have this bill called the “Daniel Turp law school bill”, or something—“the law class bill”; “the Daniel Turp and Irwin Cotler law bill”.

Shall the title carry?

Some hon. members: Agreed.

The Chairman: Shall the bill as amended carry?

Some hon. members: Agreed.

The Chairman: Shall I report the bill as amended to the House?

Some hon. members: Agreed.

The Chairman: Shall the committee order a reprint of Bill C-19 as amended for use of the House of Commons at report stage, given the number of amendments?

Some hon. members: Agreed.

[Translation]

The Chairman: Everyone is in agreement.

Mr. Turp.

Mr. Daniel Turp: Has everything been passed? I would like to say some last words.

Some hon. members: Oh, oh!

Mr. Daniel Turp: It is important.

The Chairman: You can add a few words, but the bill has been passed.

Mr. Daniel Turp: I think you are going to like it.

I would like to thank Mr. Robinson and Mr. Piragoff. As you said the last time, Mr. Chairman, it was quite an extraordinary experience. I'd like to thank our two witnesses not only for having contributed to the emergence of the Rome Statute—you worked on it—but also for having contributed to passing a piece of good legislation. You worked hard on this legislation and you have made a very useful contribution to the work of this committee. I would like to thank you very sincerely for everything you have done for us during our committee's work.

• 1700

[English]

The Chairman: Thank you. Mr. Turp, I think everyone in the committee would subscribe to your observations. We've been very well served by both Mr. Robinson and Mr. Piragoff in some very complex legal issues, and we appreciate it very much.

I might just take this opportunity to share with you a thought I had earlier. One of the witnesses we had before us took it upon herself to suggest that various members of the foreign service, when negotiating the statute itself, were engaged in activities that didn't bring them into a good light, perhaps. I want to personally take objection to that.

The quality of advice we received from Mr. Piragoff and Mr. Robinson before the committee today is an example of the high quality of service we get from our foreign service officers, who—without going back into all the issues of remuneration we've heard a great deal about—deserve recognition. Any suggestions that Mr. Kirsch or other members of our team in Rome, when negotiating the treaty, did not conduct themselves with the highest of ethical and professional standards were quite out of order and quite inappropriate. I'd like to close the hearings with that.

Mr. Ted McWhinney: Might we also say it's an abuse of the privilege of a witness called before the House to make comments that are not relevant or germane to their evidence. It normally should require proper reprimand of the witness.

The Chairman: I lost the moment to do it, so I'm doing it now.

Mr. Ted McWhinney: Thank you, Mr. Chairman. Can we adopt that? I think it might be accepted by consensus of the committee as a resolution endorsing your position. Is that agreed?

Some hon. members: Agreed.

The Chairman: Thank you very much.

Thank you again, colleagues.

Some hon. members: Bravo!

The Chairman: Now, if I could go back to les problèmes de petite cuisine, we now have the Kosovo resolution before us. I understand the bells are going to begin at 5:15 for a 5:30 vote. We can start Kosovo now, bearing in mind we've been away from this so long it will be quite complicated to get our minds around exactly where we are. We'll have to get Jim and Gerry up here to take us through it.

The other thing I would propose is that we could move Kosovo to Tuesday morning. We could start with Kosovo and then do future business and globalization in the afternoon, hopefully after getting Kosovo through on Tuesday morning.

Mr. Ted McWhinney: I have one question.

The Chairman: Colleagues, just a moment. There are some observations.

Mr. McWhinney, then Madam Lalonde.

Mr. Ted McWhinney: As the practice of the committee, there are some highly subjective comments that have come in. I wonder what your attitude is to allowing even a six-line special opinion for members.

Mr. Robinson's observations had a very great prudent economy of unnecessary commentary, but there are some highly subjective opinions that might be better put in a six-line or ten-line addenda to the committee, as the views of those people, if it would allow a large consensus on a more factual statement.

The Chairman: This is a throw-out suggestion, Mr. Robinson. It might enable him—

Mr. Ted McWhinney: It's not a resolution, in any way.

The Chairman: If we're going to move to the study of the report, we probably should go in camera. That's the normal way we would do it. We're actually going to get into the study of the report, but with ten minutes left, I get the consensus of opinion that we would start.

[Translation]

Ms. Lalonde, followed by Mr. Robinson. I know that you are concerned with the problem of globalization.

Ms. Francine Lalonde: Of course. I have tried to find interesting and informed people who could help us. It seems that the least we could do is hear from the people who will be available Tuesday morning and afternoon for an informal discussion.

The Chairman: Will it be possible to get witnesses for Tuesday morning who can speak to globalization?

• 1705

The Committee Clerk: We have started calling the people who will testify on globalization Tuesday morning.

The Chairman: We have begun, but we still have not spoken with the witnesses.

[English]

Mr. Robinson.

[Translation]

Ms. Francine Lalonde: You have started calling witnesses.

[English]

Mr. Svend Robinson (Burnaby—Douglas, NDP): In light of the fact that there are quite a number of witnesses on the globalization study, I wonder if I might suggest an alternative. I agree that to take ten minutes now and just start the discussion doesn't make much sense. I wonder if at the scheduled conclusion of Tuesday's hearings, at 4:30, rather than first thing in the morning, we could proceed immediately to the discussion of the draft Kosovo report. That might make more sense.

The Chairman: Wait a minute. There are two things we're trying to do here. One, we're trying to accommodate the issue of the globalization study, which we're trying to get our minds around in terms of where we're going to go on that. Two, it seems to me we have actual business that we have to do before we get into future business. We have to do our Kosovo report presumably before the House rises. I mean, we can't just wander out of here, having heard all those hearings, and do nothing on it.

So I think it's very dangerous to shove that off to Tuesday afternoon and just assume that by Thursday morning...particularly if we're going to get into votes Tuesday. The bells will be ringing. I mean, members will have to be very disciplined about how we adopt these things so we get through quickly. We can't spend hours talking about it if in fact we want to....

So I'm willing to accommodate the globalization thing in the morning, but we're going to have to get an agreement around the table that when we get to the Kosovo resolution it'll have to be quick, and we get it done.

Mr. Ted McWhinney: It'll be a disgrace if we don't get it out. The Senate report has been out already.

The Chairman: That's right. We have to get it out.

Mr. Ted McWhinney: We have to get it out before we adjourn.

The Chairman: Mr. Paradis.

[Translation]

Mr. Denis Paradis: Am I to understand that the witnesses have been invited to come on Tuesday morning?

The Chairman: Not yet.

The Clerk: We have simply contacted them, but we have not yet set a time.

The Chairman: So we can ask them to come Tuesday afternoon.

Mr. Denis Paradis: That's right. We still have not set a time. I suggest we do that in the afternoon so that we can first finish with our study on Kosovo.

The Chairman: I also think it is a better idea if we finished with Kosovo in the morning.

[English]

Mr. Ted McWhinney: Are you in a position to synthesize sufficiently from the comments made? In other words, could the secretariat make us a new revised report that essentially incorporates most of the observations? That would advance us.

The Chairman: They've done their best to do it.

Mr. Ted McWhinney: But a third report, in effect.

The Chairman: No, this is it, isn't it?

Mr. Ted McWhinney: The third revised report? It would certainly speed things up.

The Chairman: You're asking something from the secretary.

You answer, since he's asking you.

I'm not too sure what you mean by that.

Mr. James Lee (Committee Researcher): If I may, sir, a number of the suggestions are contradictory. We've put them together, and it's up to the committee to decide which they prefer at this point. We could try to add more, but it still has to go through the committee.

Mr. Ted McWhinney: Would short addenda by individual members perhaps help the consensus?

Mr. James Lee: It might.

Mr. Ted McWhinney: You've read the individual comments—six-line addenda?

The Chairman: I don't quite understand what you mean from a procedural angle.

Mr. Ted McWhinney: I remember several reports of the House where.... I remember one where Senator De Bané put in a special opinion that allowed the unanimous report, but he added six lines or something. It was an important constitutional report.

I just wondered if the practice of this committee would allow it.

The Chairman: Well, yes, we think we can allow things, but in the context of this report what are you suggesting?

Mr. Ted McWhinney: I suggest a core report that we can all agree on, but Mr. Robinson, for example, made some very thoughtful points that probably could be best represented by a very short, half-page, added special opinion.

The Chairman: But we have two problems. First, things have moved on since we originally had this discussion. There have been new developments. Secondly, Mr. Robinson has given us, I take it, what is from his perspective a minority report if he doesn't get some of those things in.

Now, I want to make it clear....

I'll give you two examples, Mr. Robinson. If you are going to maintain, as you have in the document you gave us, that NATO, including Canada, is guilty of war crimes, then we're going to have a long debate over that, because we've just had a decision by Carla Del Ponte that there are no grounds. That's one.

Two, in my view, in the incident you choose, which is the bombing of the television station, there is clear evidence—Madam Lalonde and I discussed this—that in fact Mr. Milosevic made the people stay there so they would get bombed. When they were told it was going to be bombed, he literally chained them to their desks to make sure they got bombed. So I'd like to know where the war crime there is.

These are the types of things that will take a long degree of discussion if we're going to get into that.

I don't know whether you can help eliminate some of this or not.

Mr. Svend Robinson: Absolutely, Mr. Chairman.

• 1710

I appreciate Mr. McWhinney's suggestion. In fairness, there's never been any suggestion on my part that I was necessarily prepared to cooperate in a unanimous report. I think there's some fundamental differences of opinion on this issue. The chair is absolutely right. That's why I submitted quite some time ago a document that, should the committee's approach not reflect some of those concerns, I would likely submit. There have been other members of committee in the past who have at the last minute sprung documents, have taken part in discussions.... I'm not doing that. I'm being very clear about the perspective I bring to the table. I've circulated this well ahead of time.

With respect to, for example, the issue of war crimes, the chair has referred to the Serbian TV incident. I remind the chair of another incident, the bombing of a bridge in broad daylight, which was a deliberate decision. Certainly under any definition of war crimes involving undue risk to civilians I think it can be argued, and with considerable force, that this constitutes a war crime.

So unless there is significant movement in those areas, it would be my intention to submit that report. That's the position I've taken for some time.

The Chairman: Right.

Mr. Ted McWhinney: I suggest we accept this position, subject, obviously, to limitations of length. Senator De Bané's dissent to this major constitutional opinion years ago was about a half-page or a page. Once you get into 20 pages, of course, it's hopeless.

The Chairman: But Mr. Robinson's wasn't 20 pages.

Mr. Ted McWhinney: No, it's only a single page.

The Chairman: It's one page.

[Translation]

Ms. Lalonde.

Ms. Francine Lalonde: It seems that we have gone from one subject to another without deciding...

The Chairman: I believe that most committee members feel strongly about finishing with Kosovo in the morning so that we can move on to globalization in the afternoon.

Ms. Francine Lalonde: That's a big change. We went from one agreement... We have a suggestion on that matter as well as several questions. We ultimately decided that there would be a meeting, but it would have to be a full-length one.

The Chairman: Yes.

Ms. Francine Lalonde: To complete our work, we would at least need the whole morning. I think we should only deal with Kosovo in the afternoon.

The Chairman: That's what you are suggesting.

Ms. Francine Lalonde: That is what I am suggesting, that we deal with Kosovo in the afternoon.

The Chairman: All right, Ms. Lalonde.

[English]

Mr. Svend Robinson: Mr. Chair, maybe there's a compromise here. I had originally suggested that we proceed with the globalization hearings as scheduled, and then, at the conclusion of the afternoon, we turn to the Kosovo hearings. What we might want to consider doing is this: from 9:30 to 11 a.m. on Tuesday, globalization; at 11, the Kosovo hearings; and then in the afternoon, the globalization. That way we have the two sessions.

The Chairman: It seems to me Kosovo is pending business. It has to be done.

Mr. Svend Robinson: Oh, I agree.

The Chairman: The other is voluntary business, which we're taking on. It might be, the way the discussions go, that we take the whole of Tuesday doing Kosovo. We don't know. Look at how long it took us to do the crimes against humanity bill. If it does take all day, I think we have to stick at it until it's done. I don't think we have a choice. We cannot walk out of here on June 16 and say we just didn't get around to it because we were doing something else.

[Translation]

Ms. Francine Lalonde: In that case, why not do it Thursday morning? We won't be dealing with routine business on Thursday morning. We will be starting something new, such as globalization.

The Chairman: Whom are we hearing from Thursday morning?

The Clerk: We will be hearing from Grace White and Mr. Obhrai.

[English]

The Chairman: Colleagues, I am ruling that Tuesday morning we're going to start on Kosovo. We have to. And we're going to try to work our globalization in. Let's try to finish Kosovo before eleven, because we could start globalization right away. I mean, I'm all for that.

The Clerk: Thursday is Grace White. According to the Standing Orders, you have to hear from her before June 13.

The Chairman: Yes.

You see, we also have this problem of Standing Orders. We have to bring her before June 13. We don't have a choice. It's a standing order. It's a problem.

The Clerk: But you could push the debriefing, I guess.

The Chairman: We can push the debriefing around, but then can we get our witnesses?

• 1715

[Translation]

Ms. Francine Lalonde: Why couldn't we do it Thursday?

The Chairman: Would you like us to deal with globalization all day on Thursday, the 15th?

Ms. Francine Lalonde: All day on Thursday the 15th? Thursday is our last day.

The Chairman: Yes, that's right.

Mr. Svend Robinson: Perhaps Thursday at 11 a.m.

The Chairman: I am afraid there won't be too many people left.

Ms. Francine Lalonde: That's right.

[English]

The Chairman: There's Grace White from nine to eleven.

We can report the debriefing on the trip.

[Translation]

So we will begin our study of globalization at 11 a.m. on the 8th and continue until it is finished. Agreed?

Mr. Denis Paradis: Mr. Chairman, we are giving Grace White an hour and a half.

[English]

Why one hour and a half?

[Translation]

The Chairman: So we are agreed. If we can hear from Grace White in half an hour, we can then immediately begin our study of globalization.

[English]

Are you all right on that, on Kosovo?

An hon. member: That's fine.

The Chairman: Okay. That's fine.

[Translation]

Mr. Denis Paradis: First Grace White, then Kosovo.

Ms. Francine Lalonde: Thank you, dear colleagues.

[English]

The Chairman: The meeting is adjourned.