Bill S-10

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

senate of canada

BILL S-10

An Act to implement the Convention on Cluster Munitions

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Prohibiting Cluster Munitions Act.

INTERPRETATION AND APPLICATION

2. The following definitions apply in this Act.

“cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions. However, it does not include any of the following:

(a) a munition that is designed to disperse or release flares or pyrotechnic devices;

(b) a munition that is designed to produce, disperse or release smoke or chaff;

(c) a munition that is designed to produce electrical or electronic effects;

(d) a munition that is designed exclusively for air defence;

(e) a munition that is designed to contain fewer than 10 explosive submunitions, each of which

(i) weighs more than four kilograms,

(ii) is designed to detect and engage a target that is a single object, and

(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;

(f) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.

“Convention” means the Convention on Cluster Munitions, done at Dublin on May 30, 2008, as amended from time to time to the extent that the amendment takes effect for Canada, that is set out in the schedule to this Act.

“conventional munition” means a munition that is not a nuclear, radiological, chemical, biological or toxin weapon.

“explosive bomblet” means a conventional munition, weighing less than 20 kg, that is not self-propelled and that, in order to perform its task, is dispersed or released from a container affixed to an aircraft and that is designed to detonate before, on or after impact. However, it does not include any of the following:

(a) a flare, a pyrotechnic device or a munition that is designed to produce, disperse or release smoke or chaff;

(b) a munition that is designed to produce electrical or electronic effects;

(c) a munition that is designed exclusively for air defence;

(d) a munition that is designed to be dispersed or released from a container that is designed to contain fewer than 10 of those munitions, each of which

(i) weighs more than four kilograms,

(ii) is designed to detect and engage a target that is a single object, and

(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;

(e) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.

“explosive submunition” means a conventional munition, weighing less than 20 kg, that, in order to perform its task, is dispersed or released from another conventional munition and that is designed to detonate before, on or after impact. However, it does not include any of the following:

(a) a flare, a pyrotechnic device or a munition that is designed to produce, disperse or release smoke or chaff;

(b) a munition that is designed to produce electrical or electronic effects;

(c) a munition that is designed exclusively for air defence;

(d) a munition that is designed to be dispersed or released from another conventional munition that is designed to contain fewer than 10 of those munitions, each of which

(i) weighs more than four kilograms,

(ii) is designed to detect and engage a target that is a single object, and

(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;

(e) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.

“person” means an individual or an organization as defined in section 2 of the Criminal Code.

“use”, in respect of a cluster munition, explosive submunition or explosive bomblet, means firing, dropping, launching, projecting, dispersing, releasing or otherwise delivering it for the purpose of detonation.

3. This Act is binding on Her Majesty in right of Canada or a province.

PURPOSE OF ACT

4. The purpose of this Act is to implement Canada’s commitments under the Convention.

DESIGNATION OF MINISTER

5. The Governor in Council may, by order, designate one or more federal ministers for the purpose of section 7.

PROHIBITIONS

6. Subject to sections 7, 8 and 10 to 12, it is prohibited for any person to

(a) use a cluster munition, explosive submunition or explosive bomblet;

(b) develop, make, acquire or possess, a cluster munition, explosive submunition or explosive bomblet;

(c) move a cluster munition, explosive submunition or explosive bomblet from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it;

(d) import or export a cluster munition, explosive submunition or explosive bomblet;

(e) attempt to commit any act referred to in paragraphs (a) to (d);

(f) aid, abet or counsel another person to commit any act referred to in paragraphs (a) to (d);

(g) conspire with another person to commit any act referred to in paragraphs (a) to (d); or

(h) receive, comfort or assist another person, knowing that the person has committed, or has aided or abetted in the commission of, any act referred to in paragraphs (a) to (d), for the purpose of enabling the person to escape.

7. Any minister designated under section 5 may, by order, on any conditions that he or she considers appropriate, exempt a person or class of persons from section 6 if, in his or her opinion, the exemption is necessary for the development of, and training in, cluster munition, explosive submunition or explosive bomblet detection, clearance or destruction techniques, or for the development of cluster munition, explosive submunition or explosive bomblet counter-measures.

8. (1) The Minister of National Defence may, by order, on any conditions that he or she considers appropriate, exempt from section 6 a person or class of persons who, for the purpose of destroying a cluster munition, explosive submunition or explosive bomblet on behalf of the Canadian Forces or the Department of National Defence, acquires, possesses, imports or exports that munition or moves that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it.

(2) The Minister of Foreign Affairs may, by order, on any conditions that he or she considers appropriate, exempt from section 6 a person or class of persons who, for the purpose of destroying a cluster munition, explosive submunition or explosive bomblet other than on behalf of the Canadian Forces or the Department of National Defence, acquires, possesses, imports or exports that munition or moves that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it.

9. A minister may revoke an exemption that the minister has granted under section 7 or 8 only if the minister provides reasonable notice to the person to whom the exemption was granted.

10. Section 6 does not prohibit a person from acquiring or possessing a cluster munition, explosive submunition or explosive bomblet, or from moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership and control over it, if that munition has been deactivated by

(a) removing all explosive substances; and

(b) removing or destroying any priming, detonating, dispersal or release mechanism or rendering the mechanism inoperable in such a way that its function cannot readily be restored.

11. (1) Section 6 does not prohibit a person who is subject to the Code of Service Discipline under any of paragraphs 60(1)(a) to (g) and (j) of the National Defence Act or who is an employee as defined in subsection 2(1) of the Public Service Employment Act, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from

(a) directing or authorizing an activity that may involve the use, acquisition, possession, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state or that may involve moving that munition by those armed forces from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it;

(b) expressly requesting the use of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state if the choice of munitions used is not within the exclusive control of the Canadian Forces; or

(c) using, acquiring or possessing a cluster munition, explosive submunition or explosive bomblet, or moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it, while on attachment, exchange or secondment, or serving under similar arrangement, with the armed forces of that state.

(2) Section 6 does not prohibit a person, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from transporting or engaging in an activity related to the transport of a cluster munition, explosive submunition or explosive bomblet that is owned by, in the possession of or under the control of that state.

(3) Section 6 does not prohibit a person, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from

(a) aiding, abetting or counselling another person to commit any act referred to in paragraphs 6(a) to (d), if it would not be an offence for that other person to commit that act;

(b) conspiring with another person to commit any act referred to in paragraphs 6(a) to (d), if it would not be an offence for that other person to commit that act; or

(c) receiving, comforting or assisting another person, knowing that that other person has committed, or has aided or abetted in the commission of, any act referred to in paragraphs 6(a) to (d), for the purpose of enabling that other person to escape, if it was not an offence for that other person to commit that act.

12. Section 6 does not prohibit a person, in the course of the person’s duties or employment, from acquiring, possessing, importing or exporting a cluster munition, explosive submunition or explosive bomblet, or from moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it, for the purpose of destroying or deactivating it or for the purpose of investigations or proceedings under an Act of Parliament, if the person is

(a) an officer or non-commissioned member, as those terms are defined in subsection 2(1) of the National Defence Act;

(b) a peace officer as defined in section 2 of the Criminal Code;

(c) a person engaged or employed by or on behalf of Her Majesty in right of Canada or a province; or

(d) a person acting on behalf of a foreign state with the permission of the Government of Canada.

DETENTION IN A SAFE PLACE

13. An officer or non-commissioned member, as those terms are defined in subsection 2(1) of the National Defence Act, or a peace officer, as defined in section 2 of the Criminal Code, who seizes or acquires by any other means a cluster munition, explosive submunition or explosive bomblet may remove it to a safe place and detain it there.

14. If a cluster munition, explosive submunition or explosive bomblet may be required for any proceedings under an Act of Parliament, a justice of the peace, a provincial court judge as defined in section 2 of the Criminal Code, a judge as defined in subsection 462.3(1) of that Act or a military judge as defined in subsection 2(1) of the National Defence Act may order its detention in a safe place until it is no longer required.

DELEGATION

15. A minister may delegate to any person, subject to any conditions that the minister considers appropriate, any powers, duties or functions conferred on the minister under this Act.

AMENDMENTS TO THE CONVENTION

16. The Minister of Foreign Affairs must, by order, amend the schedule to incorporate any amendment to the Convention as soon as feasible after the amendment takes effect for Canada.

ENFORCEMENT

17. (1) Every person who contravenes section 6 is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both; and

(b) on summary conviction, to a fine of not more than $5,000 or to imprisonment for a term of not more than 18 months, or to both.

(2) Every person who contravenes a regulation made under section 23, the contravention of which has been made an offence by that regulation, is guilty of an offence punishable on summary conviction.

(3) Sections 21, 22, 23 and 24 and subsection 465(3) of the Criminal Code do not apply to any contravention of section 6.

18. Proceedings for an offence under section 17 or under a regulation made under section 23, other than proceedings before a service tribunal as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada.

19. Proceedings by way of summary conviction may be instituted within two years after the day on which the subject matter of the proceedings arose.

20. An order that a cluster munition, explosive submunition or explosive bomblet be forfeited to Her Majesty in right of Canada may be made by

(a) a provincial court judge as defined in section 2 of the Criminal Code or a judge as defined in subsection 462.3(1) of that Act, on ex parte application by the Attorney General of Canada; or

(b) a military judge as defined in subsection 2(1) of the National Defence Act, on ex parte application by the Director of Military Prosecutions.

21. (1) If a person is found guilty of an offence under section 17 or under a regulation made under section 23, the court may, on application by the prosecutor, in addition to any punishment imposed, order that anything by means of which or in respect of which the offence was committed be forfeited to Her Majesty in right of Canada.

(2) Subsection (1) does not apply to real property or immovables other than real property or immovables built or significantly modified for the purpose of facilitating the commission of the offence.

22. Anything that is forfeited under section 20 or 21 must be disposed of as the Attorney General of Canada directs except if the thing is a cluster munition, explosive submunition or explosive bomblet or if the order to forfeit is made by a military judge as defined in subsection 2(1) of the National Defence Act. In both of those cases, the thing must be disposed of as directed by the Minister of National Defence.

REGULATIONS

23. (1) The Governor in Council may make regulations that the Governor in Council considers necessary for carrying out the purpose of this Act.

(2) A regulation made under subsection (1) may make it an offence to contravene the regulation.

COMING INTO FORCE

24. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.