Standing Committee on
FOREIGN AFFAIRS AND INTERNATIONAL TRADE
Chairman: Bill Graham
Meeting No. 50 Tuesday, June 6, 1995
ORDER OF THE DAY:
That Bill C-87, An Act to implement the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, be read for a second time and referred to the Standing Committee on Foreign Affairs and International Trade.
The Canadian Chemical Producers’ Association:
- Jean Bélanger President
The Markland Group:
- Douglas Scott, President
- Walter Dorn, Research Associate, International Relations Program, University of Toronto
Department of Foreign Affairs and International Trade:
- Ralph Lysyshyn, Director General, International Security Bureau
- Geoff Weir, Acting National Director, Chemical Weapons Convention National Authority, International Security Bureau
The Vice-Chairman (Mr. Volpe): I call this meeting to order. I see we have members of both opposition parties present and government members as well.
I will begin with the reading of the order of reference as follows:
- Ordered that Bill C-87, an act to implement the convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction be now read a second time and referred to the Standing Committee on Foreign Affairs and International Trade.
- Those are our terms of reference.
We have before us this morning witnesses from the Canadian Chemical Producers’ Association. I believe we have with us Mr. Jean Bélanger, president; and David Shearing, project manager, business and economics. They’re going to present a statement. We will hear a statement as well from the Markland Group, which is represented here by Mr. Douglas Scott, president; and Walter Dorn, research associate with the international relations program at the University of Toronto.
Following those two statements, colleagues, representatives from the Department of Foreign Affairs and International Trade will answer any questions colleagues might have. They are Mr. Ralph Lysyshun, director general from the International Security Bureau; and Mr. Geoff Weir, acting national director, Chemical Weapons Convention National Authority, International Security Bureau.
I ask Mr. Bélanger and Mr. David Shearing to begin with their statement.
Mr. Jean Bélanger (President, Canadian Chemical Producers’ Association): Mr. Chairman, thank you very much for the opportunity to be with you today. I will not read our submission. You have received it and I understand it has been distributed to members.
Allow me to identify who the group is. The Canadian Chemical Producers’ Association brings together the companies that manufacture chemicals in Canada. This is the basic chemical industry. We have 65 member companies. Together they produce about 90% of the manufactured chemicals in value terms in Canada, value of sales being in the order of around $12 billion to $13 billion.
I’d like to look at a couple of aspects. One of them is that we have been involved for a long time in the development of the Chemical Weapons Convention both directly and through working with our colleagues in other countries — the Australians, the Japanese, Europeans, Americans and ourselves. We have been trying to ensure support for an international movement toward greater care being taken in the handling of chemical weapons. We were instrumental in the development of the convention and looked at the confidentiality provisions that need to be put in place in such a thing. We are satisfied that the convention as it stands now will provide adequate protection for doing this.
None of the chemicals in the schedules, I think it’s important to say, are produced by CCPA member companies. But some are imported for use in chemical productions, and we recognize that aspect.
Overall, we strongly support the objective of the CWC. It has taken a long time to develop and to come to fruition. We urged its adoption from the Australian meetings onwards. The International Council of Chemical Associations also fully supports the convention.
I should mention that the association believes this convention is fully in line with an initiative that was started in Canada by our association, called Responsible Care. We have given to the clerk copies of the approach we took on Responsible Care and I think she’s already distributed them — these are the blue copies, the books — in which we say that as a matter of ethics we do intend to make sure that our products are handled, from cradle to grave, in a responsible manner. So this Responsible Care initiative is underpinned by six codes of practice. We have reporting and we also have verification processes.
I think it’s important to recognize that CCPA started this and the approach has been adopted now in 37 countries, by the Americans, the Europeans, South Americans, African and Asian countries. So I believe this is the underpinning that promoted the full support of the Chemical Weapons Convention by the chemical industry.
It will impose some burdens on CCPA member companies. We recognize that, but we believe it is acceptable, that it is the only way to move forward. We think it is important for societies and we think the convention and the bill are structured in a way that is least onerous to industry while achieving the goals.
Thank you very much for the opportunity to make my initial presentation. We will be open for questions afterwards.
The Chairman: Thank you very much, Mr. Bélanger.
Was Mr. Shearing going to add anything to your statement?
Mr. Bélanger: No, not right now.
Mr. Douglas Scott (President, Markland Group): I am here on behalf of the Markland Group, and we have several others. Mr. Dorn will be addressing you after my presentation. We also have Mr. Edward Lee, a former Canadian ambassador and member of the board of governors for the IAEA. Mr. Jon Jennekens is here also. He was the former deputy director general of the International Atomic Energy Agency and also former president of the Atomic Energy Control Board here in Canada. We also have Mr. Robertson, also a former Canadian ambassador, who was very much involved with the negotiation of the Chemical Weapons Convention when it was being negotiated in Geneva.
To begin, we very much appreciate the opportunity to appear and tell you about some of the concerns we have about this bill.
Generally speaking, we are pleased with the bill. We’re particularly happy to see clause 5, which will make the act, when it comes into effect, binding on the Crown. This is one particular matter we paid a lot of attention to earlier on and advocated very strongly.
On the other hand, there are two areas where we think improvements are necessary and we hope those matters can be dealt with rather simply. We have provided you with some wording that could be used to alter the bill to cover the two points we’re concerned with.
One of these points will be dealt with by my colleague, Mr. Dorn. I’m going to speak about another point, and it deals with regulations.
We’re recommending that Bill C-87 be altered to provide additional authority to make regulations. What we’re concerned about is regulations relating to schedule 2 and schedule 3 chemicals. Those chemicals, as you may know, are what are called precursors, or ingredients for making chemical weapons. Most of them are dual-use chemicals, in the sense that they can be used equally well for making industrial or medical products as well as chemical weapons.
An example might be a chemical called thiodiglycol. That chemical is used very widely in industry and is used to make a number of things, including the ink that you put in your ball-point pens. It also is a key component for making mustard gas. That’s an example of what we’re talking about when we’re referring to schedule 2 and schedule 3 chemicals — thiodiglycol is on schedule 2.
Our problem is that as the bill stands at the present time there are no controls on schedule 2 and schedule 3 except for controls on exports and imports. With schedule 1 there are quite comprehensive controls. We’re not suggesting that there be similar controls on schedules 2 and 3, because the list is too long and it would cause upset with the chemical industry. However, we are saying that the minister ought to be empowered to select certain chemicals that he considers to be especially problematical and to impose controls on those particular chemicals, and those only.
To go into some specifics, we want the Governor in Council to be able to make regulations that would identify particular activities involving these schedule 2 and schedule 3 chemicals and to designate them on the basis that they can be considered as being prohibited under some very general wording in the convention relating to all chemicals, and that is the wording of articles I.1(a) and II.1(a) of the convention. I’m not going to go into that at present. I will say, however, that some very general wording covers all chemicals, but the convention does not go on to specify which particular activities should be prohibited.
Under this regulation there would be a possibility of the Governor in Council identifying activities related to those two schedules, making those activities illegal, and then providing enforcement measures that would include a licensing system, as you have already for the schedule 1 — fines, imprisonment, injunction, seizure, most important, and forfeiture.
Examples of the kinds of activities that might be hit by these regulations would be supplying the specified chemicals to unlicensed person or groups — they might even be terrorist groups — and stockpiling the chemicals in excess of the prescribed quantities. They would prescribe quantities and say no more stockpiles above that level. It might be producing or manufacturing those chemicals.
Probably that doesn’t apply in Canada’s case because, as Mr. Bélanger has already explained, we don’t produce any of these chemicals on any of these schedules. I was glad to hear that, but we use them, so it would be important as far as supplying and stockpiling are concerned.
We should of course note that the controls that would apply under our amendment would be subject to the minister’s discretion. Presumably he’s not going to put anything on that list without full consultation with the chemical industry.
We have four reasons why those regulations should be authorized. First, there’s an implied obligation — but only an implied obligation, I might say, it’s not direct — under the convention for the states parties to establish a control scheme covering at least some of the chemicals on schedules 2 and 3. That obligation arises under article VII, which requires states parties to enact legislation to prohibit certain activities to its citizens.
By the way, if you have a copy of my notes today — there’s a mistake on page 3. Instead of saying “activities to States Parties” — that’s not what’s required under article VII. It’s prohibiting activities on the part of its citizens.
Bill C-87 unfortunately does not prohibit any activities whatsoever in connection with schedules 2 and 3, nor does it refer to any regulations authorizing such prohibitions. That’s the first matter.
Secondly, these chemicals are potentially dangerous from two points of view: they can be used either across borders, as between nation-states, or by terrorists within the country. Since there’s nothing in the bill — if Canada were to discover a large cache of these chemicals, possibly in the hands of some secret organization, it would be powerless to do anything about the problem except to prevent the organization from exporting or importing the material through legal channels. What it could not do is what the Japanese police did, which is to conduct a raid on the headquarters of the group and seize whatever it finds. So that’s our second reason.
The third reason has to do with Canada’s position in the world and what the other countries are doing under the convention. We think it’s important that Canada control these substances in order to serve as an example to the other countries of the world, so that they might follow suit. If enough countries were to enact these provisions the point might be reached where this kind of thing could be very specifically put into the convention. No doubt they tried to do that, but there wasn’t enough time to agree on which chemicals would be put on the list. Therefore, they left it still in limbo. We think it’s important for Canada to show the way, show how it’s done, and it may be that eventually we’ll get that adopted as a provision in some amendment to the convention.
Finally — and this is probably the most important reason for these — without this kind of authority, Canada would not be in a position to cooperate on a prompt basis with the OPCW. The OPCW, as you might remember, is the Organization for the Prohibition of Chemical Weapons. It’s the administrative organization. It’s been set up under the convention with headquarters in The Hague.
It could be that the OPCW one day might become concerned about a problem in the Canadian chemical industry. If so, it would likely issue what is called a request, which would ask Canada to take steps to rectify the problem. For instance, it might want a reduction in the volume of production, or the amount stockpiled in Canada of a particular chemical. If Canada gets one of these requests it will need the authority to enact regulations that would carry out what is requested.
As matters now stand under the bill, Canada would have to tell the OPCW that we lack the authority to instruct our manufacturers to reduce their production or their stockpiling and the only way to handle the matter would be to enact legislation, something that is sometimes quite a tricky thing to do. Sometimes we’d be able to do it and sometimes we wouldn’t. So we would like that in the regulations, right now, in order that we could enact that kind of regulation.
I’m going to stop there, but I’ll just point out that in our material before you, on page 5, some specific wording is provided t hat we think would cover our concerns. It would follow on in paragraph 18(a) of the bill. We’ve just taken some of that wording and expanded it to cover schedules 2 and 3.
I would now ask Mr. Dorn to deal with our other concerns under Bill C-87.
Mr. Walter Dorn (Research Associate, International Relations Program, University of Toronto): Thank you for the opportunity to appear before this Committee.
For us in the Markland Group, few things are as important as Canada’s contribution to building global peace and security. The Markland Group is a concerned citizens’ organization and its goal is to promote the integrity of disarmament treaties and the arms control process.
It is our pleasure and honour to bring our thoughts and some constructive criticism to this committee on the chemical weapons implementing bill, Bill C-87.
We recognize Canada’s leadership in pressing for an effective and intrusive verification regime for the treaty. By 1984 Canada stood with the Americans in seeking an inspection regime based on the “any time anywhere” principle. In 1990, when the U.S. backed down, we continued to hold to the principle, and in the end the managed access provisions of the CWC were the best compromise that could be obtained. They still make the convention a milestone in the development of an international control mechanism over armaments, particularly weapons of mass destruction.
We hope the Canadian leadership shown in the negotiations will extend the process of legislation and implementation. We find the proposed bill to be progressive and thorough. We have, however, some concrete suggestions to make. One concerns the rights of the inspector from the OPCW.
Under clause 14 of the bill the representative of the national authority may direct the relevant person at the inspected site — for instance, a plant manager — to carry out a number of measures, such as providing access. This is the heart of the inspection process. The Canadian legislation is very progressive in giving the national authority representative powers that go beyond those provided in the convention but our concern is twofold.
One, the national authority representative should be required by the bill to seek whatever access or materials are requested by the inspector. This can be effected by using the word “shall” instead of “may” in subclause 14(1). We envisage that in some states, and potentially some cases in Canada, the national authority or its representative might serve as a focal point or source not only for promoting the implementation of the convention but, in some cases, in obstructing it. By requiring the national authority representative to carry out the wishes of the inspector or the inspection team, treaty implementation will be stronger and the possibility of obstruction reduced. We see Canada as providing model legislation, and this would be an important point to include as a model for other nations.
First, we recognize that the set of measures provided in paragraphs (a) to (f) go further in their intrusive nature than does the convention. Second, there may be times when the inspector oversteps his authority and requests access or materials that are beyond the scope provided for in the treaty.
We recognize that industry may not wish to be forced to accept inspection provisions greater than those imposed by the convention. Therefore, we recommend that the words “may direct” be replaced by the wording “shall, upon the request of the international inspector consistent with the Convention or on his own initiative, direct…”. I think I can provide the specific wording at a later time so it would be a little clearer as to what changes I am suggesting.
By specifying “consistent with the Convention”, the national authority representative is free to reject any requests from an inspector which goes beyond the scope of the treaty. He can, however, still accept the request but he is not obliged to pursue illegitimate requests. For legitimate requests, the national authority representative is obliged to follow through and give the directives. This modification puts the legislation in line with the requirements of the convention to uphold the inspector’s rights.
On a second point, the inspection powers of the national authority, we envisage that there may be instances in which the national authority may wish access to a site in the absence of an inspector. If there is a chemical weapons manufacturing site developed by terrorists — and of course we have the Tokyo incident in mind — it would be desirable for the national authority or another federal authority to inspect such a place. Of course, a country could call for a challenge inspection on itself, but this might cause great delays and serve as a warning to the conspirators. In order to provide for such inspections, we have explored the possibilities for minimal modification of the bill.
In subclause 13(1) the words, “or a representative of the National Authority” would be inserted after the words “an international inspector”.
On a smaller point relating to the drafting, we find that subclause 2(3), the so-called inconsistency clause, serves no purpose and in itself seems to be inconsistent. The subclause says that if there are differences between the provisions of the schedule to the act and the convention, the convention will prevail. Yet the schedule to the act contains only extracts from the convention itself, specifically extracts from article II, the annex on chemicals, and part I of the verification annex. So it is inconceivable how the two provisions — that is, of the act and the convention — can be inconsistent or even why this paragraph is included.
We also have a few suggestions not requiring modifications to Bill C-87 but which could be considered by this committee either at this point or at a future time. We believe they are matters for a parliamentary committee to discuss at least and, if possible, to remedy.
The first is with regard to secret treaties. Canada has entered into a number of secret treaties — we do not know how many — relating to chemical and biological defence programs. In the interests of promotion of transparency, as a push in the convention, Canada should seek to have these secret agreements published. There’s no reason, particularly with the end of the Cold War, why the Canadian government should hide its international treaties and commitments from its citizens and the rest of the world. The day is long past when such secrecy is in the national interest. Besides, in accordance with article 102 of the charter, the states and parties to these agreements, including Canada, are obliged to submit the treaty for registration and publication by the UN Secretariat. We should do so promptly in compliance with international law.
The second is support for the technical secretariat. Canada should take a leading role in providing the technical secretariat with scientific, technical and technological assistance. The OPCW should have at its disposal the best monitoring systems, sealing and tagging methods and research equipment to keep abreast of scientific developments.
Third, relating to legislation for the Biological and Toxin Weapons Convention, we remind the committee that Canada has not passed implementing legislation for the BTWC. We in the Markham group feel it is desirable, if not necessary, in accordance with article IV of the treaty. Australia, France and the U.K. passed legislation much earlier. The U.S. passed legislation some years ago under the title of the Biological Anti-Terrorism Act. It’s time for Canada to start developing implementing legislation. We do not want to be in the position of Japan, where parliamentarians had to pass legislation in a rush after an attack had occurred.
Biological weapons present an ever greater danger in the hands of terrorists or nations than do chemical weapons. The verification and implementation regime for the BTWC should be strengthened.
Fourth and last, we commend the government on the creation of the Biological and Chemical Defence Review Committee, which presented its first report to the Minister of National Defence in 1990. We believe it is the first civilian oversight body for a biological and chemical defence program anywhere in the world.
We recommend that the committee be given an extended mandate to look at the implementation of the CWC by government agencies in Canada. In such a case the BCDRC would report to both the Minister of National Defence, as it currently does, and the Minister of Foreign Affairs.
Finally, we wish you speed in the ratification process. We are confident that Canada’s noble aspiration to become one of the 65 nations that brings this treaty into force can be achieved. As we realize as arms controllers, it is one of the ironies of arms control that as the verification machinery becomes more difficult and complex, there’ll be greater delays in ratification. But this requirement for national implementation highlights the role of parliamentarians and international law and thus makes a stronger treaty. It is a progressive trend that we would like to support.
Again, we thank the committee for this opportunity to act as commentators on this important treaty in the legislation. In doing so, we are glad to contribute to the parliamentary process in this participatory democracy we call Canada.
The Chairman: Thank you, Mr. Dorn.
Before I go to questions, I’m going to ask if the representatives of the Department of Foreign Affairs might care to comment on the recommendations. I appreciate that we’ll have an opportunity to do this when we go to clause-by-clause study, but I thought, Mr. Flis, it might be helpful if the department has any immediate comments.
I’m not trying to put you on the spot. I appreciate you haven’t perhaps seen these before, but if you have any immediate comments you could perhaps give us the benefit of your reflected wisdom tomorrow when we do clause-by-clause study. Perhaps you could help us with immediate comments before I turn it over to questions.
Mr. Ralph Lysyshun (Director General, International Security Bureau, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman. We are indeed seeing these recommendations for the first time and we will need to look at them very carefully. This is particularly true of Mr. Dorn’s presentation, in which he went through a number of important areas and made a number of very different recommendations that we will look at. Certainly when we get to the clause-by-clause we will be prepared to give you some more detailed comments.
In terms of a general comment, though, I would like to note that all through the negotiation of this treaty a key element that guided us and guided other participants in the treaty was always the necessity of getting a clear balance between the needs of arms control and disarmament on one hand and the legitimate needs of the chemical industry to be able to go about its business and to be competitive in the marketplace. For that reason we always worked very carefully and very closely with the Chemical Weapons Producers’ Association in trying to ensure that we did not go too far or did not hamper them, particularly did not hamper their competitive position.
My initial reaction, therefore, with regard to putting elements into the legislation that would have Canada, for the purpose of setting an example, go further than the treaty requires would perhaps have us step over the line of creating difficulties for the industry, difficulties in an area of chemicals where we don’t produce them. I think particularly in a marketplace that is very very much competitive, for example, with the United States, if we were in a situation in which our industry was hampered in a way American industry was not, this would not work. I think there is merit to the idea that Canada should be setting an example in the arms control area, and we have always pursued that.
I think we are very proud of the example we have set in working with our chemical industry. What you have today is the chemical industry coming here and telling you they support the treaty rather than coming here and telling you they are causing us problems. I think gaining that kind of public support for a chemical weapons treaty is indeed very important.
In his suggestions regarding the rights of the inspectors, Mr. Dorn very much gets into the nuance of the role and responsibility of the person from the Canadian agency that would accompany the inspector, which is to ensure that the inspector gets what he is required to get under the treaty but not access to any more. This is again a very careful balance. We’re going to have to look very carefully at the words Mr. Dorn has suggested to see whether his words would change this balance. Beyond that I don’t think I can comment on his suggestions until I take a closer look at them. I have not seen them in writing.
The Chairman: Thank you very much. That’s helpful as a beginning.
Mr. Paré (Louis-Hébert): I would like to thank the witnesses. This is an extremely important subject, but it’s not easy to deal with. Fortunately, Mr. Chairman, you have allowed some exchange between the participants. It would be interesting that this exchange intensifies so that the experts who are here in this room could speak up and express their concerns very simply.
As far as I’m concerned, it is more a comment than a question. I’m willing to be sensitive to what was said by the last speaker concerning the protection of the chemical industry. However, it appears to me that there is certainly an extremely important balance to be maintained for the protection of humanity. On the other hand, I understand that it is necessary to protect the chemical industry.
I would have liked the witnesses to tell us how all this issue of production and stock piling of chemicals is compatible with the notion of sustainable development which we will have to take into account in the next few years if we don’t want to go straight to disaster.
The first speaker, Mr. Bélanger, talked about the life cycle of chemicals, and he said that it was something which was well managed. But I recognize that it makes me shiver a bit. I’m unable to say more about it because I’m not an expert.
Finally, I would like to express the wish that the stakeholders in this area, both at the industry level and at the level of the groups which try to protect the rights of humanity, demonstrate a very high sense of ethics to ensure that purely business — and profit — related issues don’t take precedence over sustainable development. This is the comment I had to make, Mr. Chairman.
Mr. Martin (Esquimalt – Juan de Fuca): Thank you all for coming here today. I have a question for Mr. Lysyshun.
We had a briefing by the ministry a few weeks ago on this, prior to it coming up in the House. I’m a little surprised. The Markland Group has brought up some excellent points, but it was my impression that this bill — in fact, the Chemical Weapons Convention — dealt with schedules 2 and 3 chemicals, saying they have the power… in fact, regular inspections of companies that are manufacturing chemicals under schedules 2 and 3 would occur.
As well, countries that are outside the country in which the chemicals are being manufactured also have the power to go directly to the OPCW or to the country in question to request — in fact, demand — that there be an inspection of a specific company.
For example, company X is manufacturing a chemical that could be used as a precursor to a chemical weapon under schedule 2. They know about this, and they go directly to that country in question and demand that they inspect and find out what these people are doing, because it’s suspected they are arming terrorist groups.
It was my understanding that this was already in this bill, that in fact it was an obligation, and that it was directly written into this bill that schedules 2 and 3 would have this. The only difference between those and schedule 1 is that in schedule 1 you have to have a permit to manufacture or use those chemicals, and you will have regular inspections. Schedules 2 and 3 are up to the jurisdiction of the country in question, but in fact you would have regular inspections.
Mr. Scott: Can I answer that?
The Chairman: I think we have to let the department answer first, and then, Mr. Scott, if you have a comment, by all means.
Mr. Geoff Weir (Acting National Director, Chemical Weapons Convention National Authority, International Security Bureau, Department of Foreign Affairs and International Trade): If I may, Mr. Martin, the convention and the act require that for schedules 2 and 3, countries and companies report on those facilities that produce above — or in the case of schedule 2, produce, consume or process above — certain thresholds, which are spelt out in the convention. We don’t spell them out in the act, but it’s not necessary to do so.
Companies that do produce above those thresholds, at one level of threshold, have to report and simply declare what they do: one case is 30 tonnes. That information is then passed on to the organization, and really nothing happens. This information is brought together, and we all know what they’re actually doing in terms of numbers. Companies that produce higher than another threshold are liable to inspections.
So all facilities producing schedule 1, 2 and 3 chemicals, or processing or consuming schedule 2 chemicals, above certain levels, are liable to inspection. In some cases there have to be inspections on a regular basis.
That is how the convention and the act deal with schedules 2 and 3.
Mr. Martin: The country in question also has the power within that to seize the chemicals being used for purposes that can be construed as being illicit.
Mr. Weir: The convention doesn’t require that. In the instance of the authorities investigating — quite separate from the act itself; the provisions of international inspections — if there is any reason for the government to believe a Canadian or a Canadian company may be engaged in activities in violation of the act, and by extension, of the convention, then under the Criminal Code we would investigate, and if necessary bring to prosecution the individual accused of that violation.
If that person is in fact found guilty by the courts and sentenced to a penalty of some type, and if in the process of all that goods are seized by the RCMP, customs or whichever authority is pertinent in this instance, then the act does provide for how those goods are disposed of.
Mr. Martin: I hope it addresses Mr. Scott’s —
Mr. Weir: It does not address this proposal that, first of all, you place schedule 2 and 3 chemicals under the same, or very similar, licensing restrictions that are to be applied to schedule 1. It does not propose that.
Mr. Martin: But I hope it addresses Mr. Scott’s queries about search and seizure of companies engaged in the production of chemicals that can be utilized for illegal activities. I think you’ve answered that they do, but Mr. Scott claimed, if I am not mistaken, through your intervention, sir, that it doesn’t provide for that.
This is where the confusion comes for me because of what I heard in the first intervention by the ministry some weeks ago.
The Chairman: Do you want to add something to that, Mr. Scott?
Mr. Scott: There’s no problem as far as we’re concerned with inspection rights or reporting requirements in connection with schedule 2 and schedule 3. There is a problem as far as what activities are prohibited, and unless they are activities that are prohibited under our legislation, then when a company is discovered to have excessive quantities on hand there is no way of taking action against that company. The only clause in the bill that mentions any kind of prohibition that might apply to schedule 2 and 3 is clause 6, and clause 6 is a very general clause saying no person shall “develop, produce, otherwise acquire, stockpile or retain a chemical weapon, or transfer” it, etc.
Now, theoretically you can get the company under paragraph 6(a), but unfortunately we have to look at the definition of a chemical weapon in order to convict this company. If we can’t convict the company, then there’s no way under the Criminal Code or any other legislation that you’re ever going to be able even to get a warrant to go in there and see what’s happening.
You might be able to get a warrant under other clauses, but at least once you’re in there you would never be able to seize anything and nothing could be done whatsoever, which was the very problem with the Japanese inspectors. They discovered even some weeks before that subway incident that there were a lot of those chemicals on hand in the hands of this funny religious group, but they couldn’t do anything about it. They didn’t have the legislation. We want to give them this legislation, and that’s why we want to see that.
Now, the reason I’m saying that clause 6 doesn’t cover the situation is because when you look at the definition of chemical weapon, which is of course going to be according to the definition under the Chemical Weapons Convention, you have very general wording, and the general wording comes out of article II.1(a) and it talks about: “Toxic chemicals and their precursors” – well, that’s fine – “except where intended for purposes not prohibited under this Convention”. They would be essentially intended for peaceful purposes or medical purposes or something like that. Then it says: “as long as the types and quantities are consistent with such purposes”.
Well, who’s to say that? This is a matter of intention. We want the minister to look at that thing and say that we’re concerned about thiodiglycol in excess of a certain quantity and so we’ll put that in the regulations and we’re going to prevent those companies from having on hand anything more than that quantity. But unless you’ve got the minister saying that in the regulations, when you go to court and you ask for the judge to convict this company or to give you a warrant or to allow you to seize the thing, the judge is going to ask, “Where’s the prohibition? Where’s the crime that’s been committed here? Are you expecting me, the judge, to say that the quantities of thiodiglycol over that level…? I don’t know anything about that.” But the minister would, and he would put that in the regulations. That’s why we want to see it in the regulations.
Now, in connection with schedule 1, those quantity limits are in there, but not for schedule 2 and 3.
Mr. Martin: Could I ask Mr. Weir to respond to that, Mr. Chairman?
Mr. Weir: I’m not sure which element you wish me to respond to, sir. That was a rather lengthy presentation.
Mr. Martin: I just asked. I don’t know if I have the —
The Chairman: Go ahead. I think the committee members would like to hear Mr. Weir’s response. But may I just ask a question to clarify where Mr. Scott is going on this.
Mr. Scott, could you confirm my impression of what you are telling the committee. Let me ask you a straightforward question. Do you say that in any way this bill does not give effect to our international obligations under this convention? Is it defective in that respect?
Mr. Scott: I say that the convention impliedly requires countries to enact the kind of regulatory mechanism that we are proposing.
The Chairman: Impliedly.
Mr. Scott: When I say “impliedly”…it says under article VII — we’re getting a little off the topic that Mr. Martin wants to talk about, but I’m quite happy to deal with it. I don’t know whether you want Mr. Weir to —
The Chairman: I’m just trying to understand where you’re taking us. My personal reaction to what you’ve said so far is that what you’ve said and what you said in your introduction is that the convention was one thing but you feel that Canada should be a leader and should go beyond what the convention provides. For example, the problem you brought up about the Japanese situation might well be something entirely outside the convention. It might require a look at this from a domestic perspective.
What the committee is concerned with is whether or not we are applying — or whether this law properly puts into domestic Canadian law our international obligations under the convention. That’s why I asked you that question. It ties in with Mr. Martin’s answer, because he too is trying to find out where you want to go and how far you’re expanding.
What I’m trying to find out from you is the extent to which your propositions add a gloss on our international obligations and go further than they go and the extent to which you say the bill, as it’s presently drafted, does not properly apply our international conventions. Then we can ask our officials for their opinion on that subject as well.
I hope that ties in with Mr. Martin’s intention.
Mr. Martin: Exactly.
All I want to know is, does this bill give us the power to go to a group of individuals, a company that is manufacturing a chemical on schedules 2 or 3, if they are manufacturing it for illicit purposes, and the power to search them, seize the chemicals, arrest the individuals and prosecute them with the information we have here? Does it enable us to do this? I think that’s part of the central issue we’re trying to determine here.
The Chairman: Mr. Scott, are you prepared to answer my question of you before we go on?
Mr. Scott: Yes, sir. Do you want me to answer that question first, or do you want Mr. Weir to answer Mr. Martin’s question?
The Chairman: I would appreciate it if you would answer my question first.
Mr. Scott: My answer to your question is that the convention — and you’ll have to decide for yourself whether you interpret in it the way we do — says “The legislation must prohibit” — and I’m reading from article VII.1(a) — “natural and legal persons from undertaking any activity prohibited to a state party under this convention”.
Now, are the state parties prohibited from undertaking activities with respect to schedules 2 and 3? My answer to that is specifically no, they aren’t. There are no quantity limits on those two schedules as there are for schedule 1. At the same time, there are prohibitions that apply to the state party and therefore should be put into our legislation to apply to citizens. There are prohibitions that can be extended to schedules 2 and 3 by reason of the general wording of articles II.1 and I.1. Now, in II.1 —
The Chairman: Are the numbers you are referring to in the convention?
Mr. Scott: That’s right. Article II.1 defines a chemical weapon as being toxic chemicals where the quantities are inconsistent with peaceful purposes. Well, the convention doesn’t say what is inconsistent with peaceful purposes; but, at the same time, if the quantity is of that nature, then the countries are required to enact legislation.
For instance, I suppose — and even my friends in the chemical industry would agree — that several million tonnes of thiodiglycol could have no possible peaceful application. There just is not enough market in all the world for that amount of thiodiglycol, and if we discovered that amount, it seems to me that there should be some way of controlling that. At present, under our bill, there is none.
I say that under the convention, you are required to enact legislation prohibiting that kind of quantity, even though that quantity isn’t specifically mentioned in the convention. So there is an obligation under the convention to draw the line somewhere, even though the convention doesn’t tell you where to draw it.
In effect, what the convention is saying is that each country should decide for its own industry where a reasonable limit should be drawn, where the line should be drawn. We say, yes, sure we’re going further than the convention says specifically, but not in the legal sense and not in the sense that would be understood by the man in the street.
The man in the street wants to know how we can prohibit that kind of stockpile of thiodiglycol. He wonders whether that’s required under the convention, and he says, well, certainly it’s required, because that quantity is not consistent with peaceful purposes.
The Chairman: Mr. Weir.
Mr. Weir: There’s one element I’d like to note in both Mr. Martin’s second question and in running through, I think, Mr. Scott’s latest intervention. It is a question of intent.
Mr. Martin — I had this phrase written down — mentioned as he asked his question, “if they’re manufacturing for illicit purposes.” Mr. Scott referred to the fact that in the definition of a chemical weapon, an important element of that definition is intent.
All of these chemicals on the schedules are, first and foremost, chemicals. They’re toxic chemicals. The ones in schedule 1, or most of them anyway, were deliberately designed to be chemical weapons. The ones in schedule 2 — I should say that I’m characterizing the general understandings — have limited commercial purposes, but they also constitute precursors to schedule 1 chemicals that by one or two more steps they can be processed and turned into.
The important thing to remember is that they are also commercial chemicals. Thiodiglycol is used in dozens of industries for different applications. Because of that fact, when you have a bunch of thiodiglycol, the question is why do you have it?
The answer is I use it to make ballpoint pens. Or it could be the intent is to use it to make chemical weapons. You do have to focus on what the intent is, because the mere existence of the chemical itself is not in violation of the convention.
As a consequence, anybody investigating such a stockpile would have to focus on why they have this. There might well be a completely legitimate response from one of the companies in Mr. Bélanger’s association, that it’s used to produce ballpoint pens. There’s nothing wrong with that.
The other case is — we’ve been referring frequently this morning to Tokyo and the group there — if you have someone who doesn’t have any reason for these chemicals and yet he has a huge stockpile of several millions of tonnes, then by all means the enforcement authorities are going to investigate why.
If they believe his purposes are indeed illicit and that the intent is to contravene the act and the convention, then they would proceed to prosecution. How they would gather their evidence and how they would present their evidence in court would, I think, very much depend upon the circumstances.
It isn’t simply the possession of the chemical that condemns the possessor. Thank you, sir.
The Chairman: My understanding of Mr. Scott’s evidence was that at least the regulation should provide that the minister would have the right to prescribe quantities, a threshold — if I could put words into his mouth — over which one could presume intent, because it would be totally commercially and industrially ridiculous to be accumulating such a quantity.
Perhaps now is not the time to discuss this, but I would like to leave that with you. Perhaps we could return to that question tomorrow when we’re doing clause-by-clause. Perhaps the other members of the committee might like a chance to review those issues with you.
Were there any other questions? I have one quick question, Mr. Dorn, and then we’ll adjourn. Sorry, Mr. Flis.
Mr. Flis (Parkdale – High Park): I have been interested in the producers’ response to this.
Mr. Bélanger: Thank you very much, Mr. Flis, for allowing us to participate a little bit in this.
The Chairman: Don’t hesitate to jump in.
Mr. Bélanger: I was quite interested in the debate. Mr. Paré mentioned the balance and le droit de l’humanité. Our association fully recognizes that and respects that aspect and supports the need to protect those rights. So that should not be in question.
The thing is that in all of these balancing acts we have, one of the aspects that can create problems is uncertainty from a Canadian standpoint. The more additional requirements you have in Canada that might say we could impose or the regulation could bring about a threshold, that leaves it uncertain.
That makes it another difficulty to overcome when an industry like the chemical industry, which is an internationalized, globalized industry where the decisions are made on an integrated basis…. Most of the time any plant that is going to be built will be greater than the Canadian market, particularly in Canada, and therefore must export and so on. Therefore, at those times the considerations are going to have to come into play as to whether there are more dangers in putting it here versus there.
So all we’re saying in here is that we believe very strongly that a very narrow balance has been reached in the convention. We believe the thresholds have not been applied in this case because of the balancing aspects. We believe there is protection, as mentioned by officials from the department, that will allow the intent aspect to be pursued if need be.
So I guess the plea is to allow us to work within an industry. I think based on our own industrial commitments from an aspect of Responsible Care, we believe we have an ethic. You’re going to hit us at the same time as you hit those that don’t have an ethic perhaps, and I think these are the dangers you add to the uncertainties. We believe it is adequately covered, we believe it respects the convention, and we would hope you would see it that way.
Unfortunately, we had not seen any of those recommendations. If you wish, we could very well look at those recommendations and provide you with some more direct, specific information. I understand that time is very limited, so I’m just offering that. I believe the bill meets the requirements of the convention.
The Chairman: Perhaps, Mr. Bélanger, if one of the members required specific information we could ask you, but for tomorrow I think the officials would consult with you for any problems they foresee. I think we will probably be all right.
Were there any other questions? No? Then I just want to thank Mr. Bélanger and the Chemical Producers’ Association for coming and helping us with their evidence, and the Markland Group for their helpful observations about the nature of the convention and our obligations under it. We will definitely take all those observations into account tomorrow when we go through it clause by clause.
We have the thrust of which clauses you feel should be amended and we’ll be asking the officials for their comments specifically on those. Thank you very much for coming, Mr. Scott and Mr. Dorn. I appreciate it.
We’re adjourned until 3:30 p.m. tomorrow, when we’ll do the clause-by-clause review of the convention. Thank you very much.