I'm very pleased to be joined by Mr. Greg Koster and Mr. Don Piragoff from the Department of Justice.
I'd like to welcome you, Mr. Chairman, and all the new members to this committee. I certainly wish you all the best. I'm sure you'll find it a very interesting role to be a part of. I was on this committee for just under eight years, and it was a great experience. I wish all of you who are joining it the very best.
I'm pleased as well to appear before you on Bill , the Nuclear Terrorism Act. The bill, if passed, will permit Canada to become a state party to both the 2005 amendment to the Convention on the Physical Protection of Nuclear Material and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
The diplomatic history and Canada's role in negotiating these two international instruments are well known and are already part of the parliamentary record.
I will focus my remarks before this committee on the specific elements of the bill, and I will take a moment to address some of the questions that were raised at the second reading debate in the other chamber.
The first new offence would be found at proposed section 82.3 of the Criminal Code. It is directed at persons who make a device or possess, use, or traffic in nuclear or radioactive material or devices for the purpose of causing harm to persons, property, or the environment.
This offence would also criminalize activity against a nuclear facility or its operations for those same nefarious purposes. The proposed maximum penalty for this offence would be a term of life imprisonment.
You will note that the concept of making a device was added by amendment during the review of this bill in the Senate.
A second new offence would be found at proposed section 82.4 of the Criminal Code. This targets persons who use or alter nuclear or radioactive material or devices, or do anything against a nuclear facility or its operations, in order to compel a person, a government, or an international organization to behave in a certain way. Again, the maximum penalty would be a term of life imprisonment.
The third new offence would be at proposed section 82.5 of the Criminal Code. This offence is directed at illegal activity done in order to obtain nuclear or radioactive material or devices or to obtain access to a nuclear facility. This uses elements of existing criminal offences, such as theft, fraud, and robbery, and adds an element—for example, to obtain nuclear material.
Finally, given the severity of the potential harm, as well the massive government and public reaction if there ever was a risk that one of the proposed offences in Bill would be committed, a new section, proposed section 82.6, calls for the creation of an offence of threatening to commit a nuclear terrorism offence.
The proposed penalty for this offence threat will be a maximum term of 14 years of imprisonment.
These four offences that I have just described make up the backbone of Bill S-9. The offences are targeted and the proposed penalties are appropriate, given similar provisions in the Criminal Code and related jurisprudence.
The treaties that Bill seeks to implement require state parties to assume extraterritorial prosecutorial jurisdiction. In this regard, Bill S-9 would give our courts the jurisdiction to try these new offences in the listed factual situations that are set out in clause 3 of the bill.
In addition, even though the majority of Criminal Code offences are prosecuted by the provinces and territories, the Attorney General of Canada would have new concurrent prosecutorial authority over these new nuclear terrorism offences, as is the case with existing terrorism offences in the Criminal Code.
The bill also seeks to define a number of terms, including “nuclear facility” and “radioactive material”.
The final point I would like to make on the technical aspects of the bill is that with the inclusion of these new offences in the existing definition of “terrorist activity” in section 83.01 of the Criminal Code, a number of important terrorism provisions will apply, such as consecutive sentencing, a reverse onus at bail hearings, and the availability of a one-year wiretap authorization. Taken together with the various general provisions in the Criminal Code that address different forms of party liability such as attempts and conspiracies, as well as existing Canadian law outside of the Criminal Code, these proposed amendments would put Canada in a position to ratify both of these important nuclear security treaties.
Some have questioned the timing of the introduction of Bill S-9, but when we look at some of our closest allies, we see that they too have recently taken steps to ratify and, in some cases, introduce these bills for discussion within their parliaments. For instance, the United Kingdom became a party to both these treaties in 2009 and 2010. Australia modified its laws to achieve ratification of the two treaties in 2008 and just recently again in 2012. Finally, I would note that the United States had a bill before Congress aimed at domestic ratification of these treaties, and it recently died in the Senate's Committee on the Judiciary.
Another question raised during second reading debate concerned the addition of the words “makes a device” to the proposed section 82.3 offence. As I mentioned earlier, this was an amendment that was made, and we accepted that amendment. In discussion with the Department of Justice we believed it wasn't strictly necessary; that said, to make it absolutely clear, we did agree to go along with that proposal.
The two treaties together have approximately 38 criminalization requirements, and therefore the offences were grouped together under the common offence element. The prohibition on making included making devices but not making nuclear or radioactive material. The proposed offence at 82.3, as introduced, was intended to apply to persons who, again, make a device. In this regard, the offence applies to anyone who possesses a device. It might be the same person who makes it, but either way it's covered. If you make it, you possess it. That being said, the government did have a look at the amendment, and we think it better reflects the intentions of the bill.
Questions have been raised about the scope of proposed section 82.5, one of other sections I enumerated, which deals with the commission of an indictable offence in order to obtain a nuclear or radioactive material or device. While a number of specific offences are listed in the treaty, such as theft, robbery, etc., the treaty language also refers to “the use of force or any other form of intimidation” at paragraph 9(1)(f) of the CPPNM amendment and “use of force” in paragraph 2.2(b) of ICSANT, the other treaty. This is broad conduct and beyond the specific offences listed in the treaties, but the notion of the use of force could include any act of violence or force and therefore any number of existing, indictable offences could be contemplated as falling within that conduct. It's for this reason that the present formulation in section 82.5 was used.
The final technical question raised during the debate on second reading of the amendments to the CPPNM under paragraph 9(1)(d) was the criminalization without a specific intent requirement of import or export of nuclear material without lawful authority.
In international law, states such as Canada are permitted to rely on domestic law to implement international treaty requirements. Given that this particular requirement under paragraph 9(1)(d) does not have a specific intent requirement such as to compel a government or cause a death, the existing offences under the Export and Import Permits Act, the Customs Act, and the Nuclear Safety and Control Act fully satisfy this treaty requirement, so there was no need to create a new offence in this particular bill.
Mr. Chairman, my remarks have addressed some of the important features of Bill and I have attempted to answer some of the technical questions that were posed in the debate.
As was highlighted by world leaders at the last nuclear security summit in the Republic of Korea in March of last year, nuclear terrorism continues to be one of the most challenging threats to international security.
With this particular piece of legislation, we have taken concrete steps to strengthen the way Canadian criminal law deals with acts relating to nuclear terrorism. The amendments proposed and the subsequent ratification of these instruments will deliver a global message that Canada continues to take nuclear security very seriously and that international collaboration yields beneficial results for everyone.
Thank you, Mr. Chair.
Welcome, Mr. Minister. This is your first appearance before this committee in 2013. That is the case for several other witnesses, I am sure. Given the announcements you regularly make, we expect to see other bills come before us.
The NDP has supported the bill. We are fully aware of the fact that this piece of legislation will help us fulfill our international obligations under various agreements. You did explain that.
Before we start discussing Bill S-9 as such, it would be important to talk about how bills are analyzed by your department. Some matters that were made public during the parliamentary break have made me seriously concerned as the justice critic for my party. Your answers may alleviate those concerns. However, it is clear that, under the Department of Justice Act, the minister must ensure that bills are consistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms.
I will not go into details when it comes to courses. I will let the courts do that. Nevertheless, some important concerns have arisen. They have to do with our actions, as a committee, when we study bills from your department. Rightly or wrongly, that situation makes us doubt the seriousness and thoroughness of your department's approach. I am talking about your department's lawyers complying with that legal obligation.
Regarding Bill S-9—I will remain within the context of that bill—it is clear that you, as minister, have to sign a certificate. In fact, that would apply to practically any other bill introduced by the government or submitted to us by the government through the Senate.
I would first like to know whether the examination provided for under section 4.1 of the Department of Justice Act has been carried out regarding Bill S-9. Also, as what we are hearing at different levels makes the whole situation somewhat unclear, I would like to know what steps are taken before you sign the certificate.
Finally—and this question follows up on my previous one—I would like to know if you have indeed signed the certificate of compliance with the charter. Before we begin the study of Bill S-9 or any other bill, we need you to clarify this situation.
First, thank you for your welcome to the committee in 2013.
Again, as you've underscored, our justice legislation is very important to the government. Yes, you can expect more legislation to come before this committee, and of course I hope it will have everyone's support.
As you quite correctly pointed out, under section 4.1 of the Department of Justice Act, I have an obligation to examine bills that are presented—not just by the Department of Justice, but all government bills. I must satisfy myself that they comply with the charter and Mr. Diefenbaker's Bill of Rights.
That said, I do get advice on legislation. It is provided to me by the Department of Justice, and they do an excellent job of analyzing these bills to ensure they're constitutionally sound and comply with the pieces of legislation and the constitutional requirements that I have just indicated. The actual signing is done by a legislative counsel, but again, that analysis is carried out by the department, and on all the bills that come before Parliament, I am advised by the department with respect to their constitutionality.
With respect to this bill, in your analysis and your study of it I think you'll come to the same conclusion that I have: that it does not raise constitutional questions, that it's completely within the purview of the Parliament of Canada to pass this law, and that it's consistent with other parts of the Criminal Code. This bill does comply, as do the other pieces of legislation I will be bringing forward for your consideration in the future.
I think it's very clear that nuclear terrorism is a significant threat not just to the security of Canada but to global security as well. Al-Qaeda, for example, as you may know, has had a long-standing desire to acquire weapons of mass destruction. There's no secret to that, and this government acknowledges that threat. In cooperation with other like-minded countries, we have examined the threat of the proliferation of nuclear materials and the consequences that could be brought about if they are used for improper or criminal purposes.
It's not surprising that the two treaties that are the subject of this bill came about, and it's no surprise as well that a number of countries, a number of which I have mentioned, are in the process of looking at them or have ratified them. Both of them have been ratified, for instance, by the United Kingdom. Australia is another example. Russia, France, and others have either ratified it or are looking at it. There was one attempt at ratification by the American Congress; I don't know if they use the term "died on the order paper”.
Nonetheless, this continues to be a concern for all countries.
We're doing our part. We're making a statement that we acknowledge this is a continuing threat, and we're doing something about it by signing on and bringing our laws into compliance with the recommendations in both treaties. With the passage of this bill by this committee—of course, subsequent to royal assent it will become the law of Canada—we will be able to sign on to those treaties.
I think this is a step in the right direction. It sends the message to individuals involved with illegal activity that Canada is a part of a group of nations that are going to continue their dedication to fight this kind of activity. It sends the message to our allies and partners that we're with them on this issue. As you're aware, these are not threats that just affect only one country or another. In a sense, we're all in this together when these threats and this type of activity take place.
Thank you for the question.
Regarding the minister's answers to my questions about section 4.1 of the Department of Justice Act, I would say, like my Liberal colleague, that they involved some generalizations. My understanding is that we are being asked for a blank cheque without actually knowing what exactly is happening.
So I am using this opportunity, Mr. Chair, to submit a notice of motion, which will obviously not be debated today, as we will continue with our witnesses. Notices of motion have to be submitted 48 hours in advance.
The notice of motion reads as follows:
|That the Standing Committee on Justice and Human Rights conduct a thorough study of the practice under section 4.1 of the Department of Justice Act since its enactment;
|and report its findings and recommendations to the House.
I am submitting this motion now.
I will continue with my questions, Mr. Chair.
Mr. Minister, will Bill be put into force by order? Can we expect it to come into force quickly? In 2004, the government introduced Bill C-7, which concerned a 2002 piece of legislation on public safety. Part 23 of that bill was used to implement the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. That part has still not been brought into force, and that should have been done by order.
It seems that we all accept that nothing will change in terms of this. I think this bill is extremely important, considering certain types of threats. That being said, if we want to be part of agreements and be able to ratify them, this must be implemented.
Do you think it will take you much longer to bring the bill into force by order? Will it follow the same course as the 2004 bill? A number of years have passed since 2004.
I'd like to thank the minister and the other witnesses for coming today to discuss this very important piece of legislation.
Before I begin my comments, Mr. Chair, I want to say that I found the briefing note brought by our analyst to be very informative, so thank you.
On Ms. Bennett's suggestion of the time that it takes for these kinds of bills, important bills, that maybe did not get through during the minority years, I've had the experience, Minister, of talking to a number of people. I'm a new member, so I wasn't there doing it, but I've heard from members from all sides that a lot of bills like Bill S-4, the Safer Railways Act, and Bill C-48, the Technical Tax Amendments Act, were important but just wouldn't have been able to get through because of the jousting of the minority years, so I'm very happy to see important issues like this move forward.
It's my understanding that the principal reason for the introduction of this bill is to amend Canada's Criminal Code to ensure that it reflects the obligations imposed by the International Convention for the Suppression of Acts of Nuclear Terrorism and the amendment to the Convention on the Physical Protection of Nuclear Material, both of which Canada has yet to ratify.
Minister, could you give some of your rationale on why it's important for Canada to become a state party for these important international counterterrorism instruments?
It certainly demonstrates Canada's continued commitment to nuclear security and it continues to show Canada's leadership in this regard. We have been most cooperative over the years in working with our allies and partners on this concern, and indeed all areas of mutual concern and mutual interest. It very clearly demonstrates our commitment to working with our international allies.
It becomes very apparent when you look into these areas that in many ways the world becomes borderless, in the sense that this kind of activity.... I mentioned al-Qaeda. They don't respect anything, I suppose, but they don't respect international boundaries; we can all become targeted via this kind of nefarious activity, as I said in my opening comments, so I think it's important for Canada to move forward on these concerns, and, I wish, on all these areas.
For instance, I think I introduced four times the bill that cracked down on people who bring drugs into this country, to up the penalties on those things. It wasn't a question of a lack of commitment on my part or the government's part or my colleagues' part, but you know the situation we went through. If it wasn't filibustered by the opposition parties in the House of Commons, the Liberal-dominated Senate would hold it up forever.
We've tried on several occasions, and I'm much more optimistic today. I'm very pleased with the progress we are making, but it was difficult that it took us about four years to send the message out to people who want to organize crime and bring drugs into Canada that they're going to jail. I never wavered on that. Time after time we introduced that measure, and I'm glad it's now the law in this country and that there's better protection for children in this country. As with all of these things, I hope they have the support of everyone, but you can check the record of the last seven years.
Thank you for the question.
When we were looking at the design of that particular offence, as you know, we were looking at the two treaties together, and they deal with separate subject matters: one is radiation material and devices, and the other one is nuclear material.
Now, the device is the only thing that is called to be made, so when we were designing that catch-all section 82.3 offence, we had to make some decisions. We saw that the “making” doesn't apply to nuclear material or radiation material; were there other verbs that could capture it? To be quite honest, we did look at “possess” and we looked at some of the existing offences in the code that used similar language, such as “manufactures”. The word “makes” was another one. There are a number of offences that use the concept of “make”.
Some of the courts have said that's a dictionary definition, which includes a completion, as the term is used—“to make it”—because if you haven't completed making it, you've attempted to make it. That's something different.
We said that if you've made it, you are in possession of it. When we made the decision about how to structure that offence, that was the thinking, to be honest.