Five-Year Review: State Party Canada ratified the convention on 16 March 2015 and will become a State Party on 1 September 2015. In the year before ratifying, Canada enacted national implementation legislation and completed the destruction of a stockpile of 13,623 cluster munitions and 1.36 million submunitions. Canada has participated in all of the convention’s meetings and has elaborated its views on important issues relating to the convention’s implementation and interpretation. It has condemned the use of cluster munitions in Syria.
As a signatory, Canada provided five voluntary transparency reports for the convention in 2011–2015, confirming it has not produced cluster munitions. Canada imported cluster munitions, but has never used or exported them.
Canada signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 16 March 2015. The convention will enter into force for Canada on 1 September 2015.
Canada’s implementing legislation for the convention is the Prohibiting Cluster Munitions Act, which received royal assent on 6 November 2014 and took effect on 16 March 2015. The law elicited much criticism for provisions that could see Canadian soldiers assist states not party to the convention with the use of cluster munitions. In March 2015, the Chief of Defense Staff issued a directive that it said “reflects the requirements of the Act” to “provide direction on prohibited and permitted activities to CAF [Canadian Armed Forces] personnel who might become involved in cluster munition related activities” and “implement…additional policy restrictions.”
Canada’s initial Article 7 transparency report for the Convention on Cluster Munitions is due by 27 February 2016. It submitted five voluntary transparency reports for the convention between January 2011 and April 2015.
Canada participated in the Oslo Process that produced the Convention on Cluster Munitions and advocated for strong provisions on victim assistance and on international cooperation and assistance.
The Cabinet approved Canada’s ratification of the Convention on Cluster Munitions on 19 January 2012. The governing Conservative Party then introduced an “Act to Implement the Convention on Cluster Munitions” or in short the “Prohibiting Cluster Munitions Act” (Bill S-10) in the Senate on 25 April 2012, where it was adopted without amendment on 4 December 2012. The legislation was introduced to the House of Commons on 6 December 2012 and then reintroduced as Bill C-6 on 25 October 2013. After the House adopted the legislation on 19 June 2014, it was returned for Senate final consideration and approval. Many proposals and requests were made to amend and strengthen the Prohibiting Cluster Munitions Act, but ultimately just one change was made to the draft: an amendment proposed by the Conservatives to delete the word “using” from Section 11(1)(c).
Canada engages actively in the work of the Convention on Cluster Munitions. It has participated in every Meeting of States Parties of the convention, most recently the Fifth Meeting of States Parties in San Jose, Costa Rica in September 2014. Canada has attended all of the convention’s intersessional meetings held in Geneva since 2011. It has also participated in regional workshops on the convention, for example in Santiago, Chile in December 2013.
At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2014, Canada expressed its commitment to the Convention on Cluster Munitions and highlighted the completion of its stockpile destruction under the convention.
Canada has condemned the use of cluster munitions in Syria. At the Fifth Meeting of States Parties, Canada stated it was “disturbing to hear reports of continued use of cluster munitions, including in Syria,” and stated that it explicitly condemns this use. Canada voted in favor of UNGA Resolution 69/189 on 18 December 2014, which expressed “outrage” at the continued use of cluster munitions in Syria.
On 28 May 2015, Canada’s representative to South Sudan, Ambassador Nicholas Coghlan, tweeted a photograph showing the remnants of a cluster bomb dropped on the town of Kauda in Sudan’s Southern Kordofan.
At meetings of the convention in June 2015, Canada proposed that text in a draft political declaration and action plan that states will adopt at the convention’s First Review Conference in Dubrovnik be amended to water down language condemning the use of cluster munitions.
Canada is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.
Canada’s interpretation of the Convention on Cluster Munitions rests on its implementing legislation as well as policy statements. In September 2012, Canada emphasized that “we have gone even further [than the law] by prohibiting other activities as a matter of policy, policy which will be translated in operational directives which are themselves legally binding for our soldiers under the military justice system.”
Canada identified “interoperability” (joint military operations with states not party), addressed in Article 21 of the convention, as a key priority during the Oslo Process negotiations. Canada has described Article 21 as being designed to protect activities that “might involve or relate to the continued lawful use of cluster munitions by states not party.” Canada said it adopted the convention based on the understanding that “Article 21, paragraph 4, expressly and fully delineates activities prohibited” in the context of joint operations with states not party.
Canada has stated that the positive obligations of Article 21, paragraph 2—to notify states not party of its obligations under the convention, to promote the convention’s norms, and to make its best efforts to discourage the use of cluster munitions by states not party—do not extend beyond the governmental level and are not ongoing obligations “at the operation or tactical levels for individual military personnel.”
Canada’s Prohibiting Cluster Munitions Act contains a section on “Joint Military Operations” that raises a host of concerns. During joint military operations, the Act permits Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party performing activities prohibited under the Convention on Cluster Munitions. This interpretation could be viewed as running counter to the prohibition on assistance, encouragement, and inducement contained in the Convention on Cluster Munitions.
The Act allows members of the Canadian Armed Forces and public officials to “expressly request” the use of cluster munitions by a state not party if the choice of weapons is not within the “exclusive control” of the Canadian Armed Forces. In other words, Canada can expressly request the use of cluster munitions as long as a state not party actually uses them.
During joint military operations with a state not party, the Act allows a person to undertake the following activities, arguably violating the prohibition on assistance:
- “Transporting” cluster munitions in the possession or under the control of the state not party;
- “Aiding, abetting or counselling” another person with a prohibited activity if that activity is not prohibited to the other person;
- “Conspiring” with another person to perform a prohibited activity if that activity is not prohibited to the other person; and
- “Receiving, comforting, or assisting” someone who has committed a prohibited act if that act was not prohibited to the other person.
The legislation also allows Canadians themselves to acquire, possess, or transfer cluster munitions if they are temporarily assigned to the armed forces of a state not party. The word “using” was included in draft legislation but was deleted following an amendment proposed by the Parliamentary Secretary to the Minister of Foreign Affairs that was approved by a committee hearing on 10 December 2013.
The government have stated that the law’s interoperability provisions were necessary to ensure that Canada can honor its international security obligations and engage in joint military operations with allies that are not party to the Convention on Cluster Munitions.
Transit and foreign stockpiling
Canada’s Prohibiting Cluster Munitions Act does not explicitly address transit or foreign stockpiling of cluster munitions and could be read to implicitly allow these activities. The law allows Canadian forces to transport the cluster munitions of a state not party during joint military operations.
Stronger interpretive statements than the Act have been made with respect to transit and foreign stockpiling. Canada has reported that the March 2015 directive by the Chief of Defense Staff implements “additional policy restrictions” that require that “CAF personnel not transport cluster munitions in CAF or CAF-controlled vehicles, vessels or aircraft or instruct or receive training on the use of cluster munitions.”
In October 2014, Commodore Bishop said, “The Canadian Armed Forces will…will prohibit the transporting of cluster munitions aboard carriers belonging to the Canadian Armed Forces or under its direct control.” In 2012, Senator Fortin-Duplessis said, “the transport of cluster munitions by means of transportation belonging to or controlled by Canadian Forces shall be prohibited.” In 2012, a senior government official said the legislation “does not allow stockpiling of cluster munitions on Canada’s territory, including by a State not party to the Convention, as it prohibits all forms of possession.”
The Prohibiting Cluster Munitions Act does not contain a specific prohibition on investment in the production of cluster munitions because, according to a senior government official, “an investment that is executed with the knowledge and intention that it will encourage or assist cluster munitions production would be captured by the legislation’s prohibition on aiding and abetting any primary offence.”
In May 2012, Senator Fortin-Duplessis stated that under the legislation “it is prohibited to assist, encourage or induce anyone to engage in any prohibited activity including knowingly and directly investing in the production of cluster munitions.” In September 2014, Senator Fortin-Duplessis said “direct and intentional investments in a commercial organization that produces cluster munitions would fall under the prohibition against aiding and abetting.” In October 2014, Mines Action Canada reiterated the need for specific government legislation banning investment in companies that produce cluster munitions.
Use, transfer, and production
In May 2012, the government stated that, “Canada has never manufactured cluster munitions and has never used them in its operations.” Canada has declared that it has never produced cluster munitions. Canada is not known to have ever exported cluster munitions, but it imported the weapons.
Stockpiling and destruction
Canada once stockpiled 13,623 cluster munitions of two types and 1,361,958 submunitions, manufactured and imported from the US:
- Mk-20 Rockeye cluster bombs, each containing 247 submunitions; and
- M483A1 155mm artillery projectiles, each containing 88 M42/M46 dual-purpose improved conventional munition (DPICM) submunitions.
In its initial voluntary transparency report provided in 2011, Canada declared that 1,026 Rockeye cluster bombs containing 253,422 submunitions were destroyed over a two-year period ending in September 2006. The cluster bombs were destroyed by open detonation using a blasting agent and C4 plastic explosive at a location in Dundurn, Saskatchewan.
In April 2012, Canada reported a stockpile of 12,597 M483A1 projectiles and 1,108,536 DPICM submunitions (806,208 M42 and 302,328 M46), which had been declared surplus in January 2007 and removed from operational service for destruction. In January 2014, US company General Dynamics was awarded the contract to destroy the projectiles and submunitions at its facility outside Joplin, Missouri in the US. The destruction through disassembly and incineration was completed in June 2014 and Canada received the demilitarization certificates in July 2014.
In 2014, Canada destroyed 12,597 cluster munitions and 1,108,536 submunitions. At the Fifth Meeting of States Parties in September 2014, Canada announced the completion of the destruction of its cluster munition stockpile “well ahead” of the eight-year deadline required by the convention.
Canada has reported that the stockpile destruction was carried out in compliance with stringent laws and regulations, including Canadian Controlled Goods regulations. It reported that General Dynamics “provided a more environmentally acceptable method of destruction with the recovery of scrap material.”
Since 2011, Canada has reported that it is not retaining any cluster munitions for research and training purposes. In September 2014, Canada informed States Parties that “the Canadian Armed forces did not retain any of these cluster munitions for purposes permitted by Article 3 of the Convention” when completing the destruction of its stockpiles.
The Prohibiting Cluster Munitions Act permits the retention of cluster munitions for training and counter-measures.
 The law prohibits the use, acquisition, transfer, and possession of cluster munitions and also prohibits “aid[ing], abet[ting] and counsel[ing]” the commission of such activities. For violations of these prohibitions, the law contains penalties for persons “on conviction on indictment” of up to five years’ imprisonment or C$500,000 fine and “on summary conviction” of up to 18 months imprisonment or C$5,000 fine. The definition of person applies to both individuals and organizations. See: Justice Laws Website, “Prohibiting Cluster Munitions Act (S.C. 2014, c. 27),” 19 August 2015.
 Convention on Cluster Munitions voluntary Article 7 Report, Form A, 29 April 2015.
 The last voluntary report provided on 29 April 2015 covers the period from 1 April 2014 to 31 March 2015. See also Convention on Cluster Munitions voluntary Article 7 Reports, 24 January 2011 (for the period 1 August 2010 to 31 January 2011), 30 April 2012 (for the period 1 February 2011 to 30 April 2012), 30 April 2013 (for the period from 1 May 2012 to 31 March 2013), and 18 August 2014 (for the period from 1 April 2013 to 30 June 2014).
 For details on Canada’s policy and practice regarding cluster munitions through early 2009, see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 50–54.
 Remarks of Minister of Foreign Affairs, John Baird during House of Commons debates, 25 October 2013.
 That amendment deleted the word “using” from the clause, eliminating the loophole that had previously allowed Canadians to use cluster munitions in the context of joint military operations with a state not party to the Convention on Cluster Munitions.
 “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution A/RES/69/189, 18 December 2014. Canada voted in favor of similar resolutions on 15 May and 18 December 2013.
 Nicholas Coghlan (@NicholasCoghlan), “Partially-deployed cluster bomb dropped by SAF fighter over Kauda, Nuba Mtns, #Sudan, on May 27; has 108 bomblets,” 28 May 2015, tweet.
 Canada supported a proposal by Australia to amend the text to refer to “alleged” use and “allegations of use” rather than simply “use.”
 For more details on Canada’s role in the Dublin negotiations see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 50–54; and ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), pp. 127–130.
 Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, Geneva, 30 June 2011.
 As Parliamentary Secretary to the Minister of Foreign Affairs David Anderson stated, “The United States has not joined the convention and while Canada will continue to urge our American friends to do so, it is necessary for us to collaborate in a manner which will respect our new obligations on the one hand, while also respecting our obligations to our close ally on the other.” House of Commons Debates (Hansard), Volume 147, Number 106, 18 June 2014.
 The prohibition on transfer (section 6c) applies only if there is intent to transfer ownership (not mere physical movement), which arguably means that transit of cluster munitions through Canada could be permissible.
 Convention on Cluster Munitions voluntary Article 7 Report, Form A, 29 April 2015.
 Proceedings of the Senate Standing Committee on Foreign Affairs and International Trade, Issue 17, Evidence of 30 October 2014.
 Email from John MacBride, Senior Defence Advisor, Non-Proliferation and Disarmament Division, Department of Foreign Affairs and International Trade to Mary Wareham, Human Rights Watch, 9 July 2012.
 Proceedings of the Senate Standing Committee on Foreign Affairs and International Trade, Issue 17, Evidence of 29 October 2014.
 Convention on Cluster Munitions voluntary Article 7 Report, Form D, 24 January 2011; and Convention on Cluster Munitions voluntary Article 7 Report, Form D, 30 April 2012. The company Bristol Aerospace Limited was once listed as a producer of the CRV-7 70mm unguided air-to-surface rocket containing nine M73 submunitions, but it provided information to the Department of National Defence stating that it only produced the rocket motor and never produced the cluster warhead (which contains the submunitions) for the CRV-7, indicating this warhead is only produced by US company General Dynamics. Information provided to HRW by Department of National Defence representatives, Canadian Delegation, CCW Group of Governmental Experts on Cluster Munitions, Geneva, November 2007.
 In June 2011, Canada provided slightly different numbers, stating that the Rockeye destruction program included destruction of “over 248,000 bomblets contained within 826 bombs.” Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, 27 June 2011.
 Convention on Cluster Munitions voluntary Article 7 Reports, Form B, 30 April 2012, and 30 April 2013: and statement of Canada, Convention on Cluster Munitions Intersessional Meetings, 27 June 2011.
 Canada reported in 2015 that General Dynamics—Ordnance and Tactical Systems Munitions Services in Joplin was “one of two companies that were compliant from 6 bidders.” It stated Canada’s demilitarization strategy was to award a service contract through an open competition to a company that had demilitarized the same cluster munitions within the last five years, from US stockpiles. Convention on Cluster Munitions Article 7 Report, Form B, 29 April 2015. General Dynamics describes its destruction facility in the US as “the largest cluster munitions disposal facility in the world.” General Mechanics, “About Munition Services,” undated.
 Ibid., Form C, 29 April 2015, and 24 January 2011.
 The law does not specify that only “the minimum number of cluster munitions absolutely necessary” may be retained, as the convention itself does.