Okay, ladies and gentlemen, I'm going to call this meeting to order. We'll use the BlackBerry time instead of the clock in the back. I know there will likely be bells at 5:30 for votes at 6:00, so I want to make sure we get this meeting completed by 5:30.
Welcome to the Standing Committee on Justice and Human Rights, meeting number 59. Pursuant to the order of reference of Friday, November 30, 2012, we're dealing today with Bill .
For the first hour we have scheduled two sets of witnesses. I will introduce them in a moment. Then we are going to go to clause-by-clause on this bill. If we don't last the full hour with the witnesses we have, we'll move right to clause-by-clause. Then after that, I anticipate the motion that was deferred to this meeting from Monday's meeting will be reintroduced and we'll deal with it then. That's the schedule for today.
First, let me thank our witnesses for coming.
We have from the Department of Foreign Affairs and International Trade, Mr. Shawn Barber, the acting director general for the global partnership program. I'll allow him to introduce the guests with him.
Via video conference from Cambridge, Massachusetts, I want to welcome Professor Matthew Bunn, who's from the Belfer Center for Science and International Affairs at Harvard University. Welcome, Professor.
We will have opening statements. We'll start with the Department of Foreign Affairs, and then we'll move to Professor Bunn, and then we'll have questions.
The floor is yours, Mr. Barber.
Thank you, Mr. Chairman, and good afternoon, everyone. My name is Shawn Barber, acting director general of the Non-Proliferation and Security Threat Reduction Bureau at the Department of Foreign Affairs and International Trade.
I am pleased to be here today to discuss with you what we are doing internationally to help reduce the threat of nuclear terrorism.
Joining me are two of my colleagues, Mr. Graeme Hamilton, who's the deputy director of the global partnership program, and Mr. Terry Wood, who's a senior coordinator for international nuclear cooperation, both of whom work with me in the Non-proliferation and Security Threat Reduction Bureau.
The proliferation of weapons of mass destruction, or WMDs, and related materials remains an ongoing security threat to Canada and the broader international community. Some terrorist organizations, including al Qaeda, have openly acknowledged they're interested in obtaining weapons-usable nuclear materials.
The illicit trafficking of nuclear and/or radiological materials, including by criminal organizations, was recently identified by the head of the International Atomic Energy Agency, the IAEA, as a growing concern. The IAEA has reported nearly 2,000 incidents of unauthorized use, transport, and possession of nuclear and other radioactive material between 1993 and 2011.
Responding to the threat of nuclear terrorism requires us to act across a number of fronts.
First, we must work with our like-minded partners to ensure better protection of nuclear facilities and stocks of nuclear materials around the world.
Second, where possible, Canada and its international partners must reduce domestic stocks of highly enriched uranium and weapons-usable radiological materials, so that there is simply less available supply that can find its way into the wrong hands.
I would add that in this regard the decision yesterday by North Korea to test a nuclear device and the ongoing efforts by Iran to increase its stockpile of weapons-grade uranium run precisely counter to this objective, and as such, represent a grave threat to international peace and security.
Third, we must work with others to enhance the ability of source countries to detect the cross-border movements of highly enriched uranium and dangerous radiological isotopes so we can disrupt the illicit flows of these materials.
Fourth, we need to ensure our domestic legislation and criminal sanctions are up to date and in compliance with our international treaty obligations in this area. That is what Bill intends to accomplish. It will allow Canada to ratify the amendment to the Convention on the Physical Protection of Nuclear Materials and the International Convention for the Suppression of Acts of Nuclear Terrorism.
Finally, the threat of nuclear terrorism must remain a focus of the international security agenda. That is what the recent Nuclear Security Summit process has been about.
There have been two nuclear security summits to date: in 2010 in Washington D.C. and in 2012 in Seoul, South Korea.
At last year's summit, Prime Minister Harper, along with 53 other world leaders, renewed the following commitments: strengthening the legal framework against the threat of nuclear terrorism and for the protection of nuclear materials; securing vulnerable nuclear materials globally; minimizing the civilian use of weapons-usable nuclear materials; enhancing transportation security; and preventing illicit trafficking.
The next nuclear security summit will be hosted by the Netherlands in The Hague in March 2014.
Canada is also a member of the global initiative to combat nuclear terrorism, GICNT, an international partnership of 83 nations working to improve capacity on a national and international level for prevention, detection, and response to a nuclear terrorist incident. As a GICNT partner, early last year Canada hosted an international tabletop exercise in Toronto, simulating a combined federal, provincial, and municipal response to a nuclear terrorist incident. The meeting was attended by more than 150 delegates from 45 countries and was an opportunity to share best practices in coordinating a response to these types of threats.
At the Seoul Nuclear Security Summit, announced Canada's intention to repatriate additional stockpiles of highly enriched materials from Chalk River Laboratories to the United States prior to 2018, and a new $5 million Canadian voluntary contribution to the IAEA's nuclear security fund to secure nuclear facilities in regions where urgent needs have been identified. Canada is the third largest donor to the IAEA's nuclear security fund, after the U.S. and U.K., with donations totalling $17 million since 2004.
The Prime Minister has also announced the renewal and continued funding of DFAIT's global partnership program, which I am honoured to lead, for an additional five years with $367 million in funding. That translates into an annual budget of $73.4 million from 2013 to 2018. The global partnership program has a mandate to secure and, where possible, destroy weapons of mass destruction and related materials and to keep them from being acquired by terrorists and states of proliferation concern.
Through the program, which supports the 25-member global partnership against the spread of weapons of mass destruction, Canada is actively implementing concrete nuclear security projects globally, and has spent more than $485 million toward nuclear and radiological security to date. This includes $209 million toward nuclear submarine dismantlement in Russia, $194 million on physical security projects in the former Soviet Union, and $13 million to prevent illicit trafficking of nuclear and radiological materials. We have also made major contributions to the elimination of WMD-related material including a $9 million investment to shut down the last plutonium-producing reactor in Russia.
The program has since refocused its efforts to target new and emerging threats in the Middle East, North Africa, Asia and the Americas.
For example, the global partnership program has recently contributed $8 million to remove highly enriched uranium and to convert research reactors to run on non-weapons usable nuclear material—low-enriched uranium—in Mexico and Vietnam. A $1.5-million contribution was also made to secure radiological sources in Libya, in co-operation with the U.S. and the International Atomic Energy Agency. Numerous projects elsewhere in the world have also received contributions.
A significant portion of the program's budget over the next five years is also expected to be spent on nuclear and radiological security projects.
In conclusion, Bill is an integral part of a comprehensive Canadian strategy to combat nuclear terrorism, and a key component of Canada's promotion of nuclear security abroad. We have made progress in addressing this threat, but much remains to be done.
My colleagues and I would be pleased to respond to your questions.
Thank you very much. It's an honour to be here to talk about a topic that I think is extraordinarily important to the security of Canada, the United States, and the world.
I agree with a great deal, essentially all, of what Mr. Barber had to say on these points. The potential consequences if terrorists did manage to detonate a nuclear bomb are so horrifying, both for the country attacked and for the world, that even a small probability is enough to demand urgent action to reduce that probability further. Canada and the United States have been leaders in that effort to secure nuclear material and prevent nuclear terror zones, as Mr. Barber described.
Since the September 11 attacks in the United States, both countries have improved security for their own nuclear materials, helped others to do the same, helped to strengthen the International Atomic Energy Agency's efforts, and worked to strengthen other elements of the global response. But if the United States and Canada are to succeed in convincing other countries to take a responsible approach to reducing the risks of nuclear theft and terrorism at the Nuclear Security Summit in the Netherlands in 2014 and beyond, then our two countries have to take the lead in taking responsible action ourselves.
Hence, it is important for both of our countries to ratify the main conventions in this area: the Convention on the Physical Protection of Nuclear Material, the amendment to that convention, and the International Convention for the Suppression of Acts of Nuclear Terrorism. This is what the 2012 Seoul Nuclear Security Summit called on countries to do. As you know, the leaders at the Seoul summit set a target of gaining enough ratifications to bring the amendment to the physical protection convention into force by the 2014 summit. The legislation before you would make it possible for Canada to ratify both of these conventions, and I urge you to approve that legislation.
Unfortunately, and embarrassingly, my own country, the United States, has not yet approved the comparable legislation. I regarded it as an embarrassment that we failed to do that before the 2010 summit, and it's a worse embarrassment that we failed to do it again before the 2012 summit. The process is still under way. I am at least somewhat optimistic that we will succeed in getting it done, if not this year, then before the 2014 Nuclear Security Summit. But I think we've got a good chance of doing it this year.
The danger of nuclear terrorism remains very real. Government studies in the United States and in other countries have concluded that if terrorists manage to get enough highly enriched uranium or plutonium, they might very well be able to make a crude nuclear bomb capable of incinerating the heart of a major city. In the case of highly enriched uranium, making such a bomb is basically a matter of slamming two pieces together at high speed. The amounts required are small, and smuggling them is frighteningly easy.
The core of al Qaeda is, as President Obama mentioned the other night, a shadow of its former self, but regional affiliates are metastasizing and some of the key nuclear operatives of al Qaeda remain free today. With at least two terrorist groups having pursued nuclear weapons seriously in the last 20 years, we cannot expect that they will be the last. Moreover, some terrorists have seriously considered sabotaging nuclear power plants, perhaps causing something like what we saw at Fukushima in Japan, or dispersing highly radioactive materials in a so-called “dirty bomb”.
Should terrorists succeed in detonating a nuclear bomb in a major city, the political, economic, and social effects would reverberate throughout the world. Kofi Annan, when he was secretary-general of the United Nations, warned that the economic effects would drive millions of people into poverty and create a second death toll in the developing world. Fears that terrorists might have another bomb that they might set off somewhere else would be acute. The world would be transformed, and not for the better.
Hence, insecure nuclear material anywhere is really a threat to everyone, everywhere. This is not just an American judgment. UN Secretary-General Ban Ki-moon has warned that nuclear terrorism is one of the most serious threats of our time. Mohamed ElBaradei, while he was head of the IAEA, called it the greatest threat to the world.
Russia's counterterrorism czar, Anatoly Safonov, has warned that they have “firm knowledge” that terrorists have been given specific tasks to acquire nuclear weapons and their components.
A little while ago my colleagues at the Belfer Center and I, working with Russian colleagues, produced a joint U.S.-Russian assessment of the threat of nuclear terrorism, which was then endorsed by a group of retired senior military and intelligence officers from both countries, which I would be happy to provide for the record.
Fortunately, since the collapse of the Soviet Union, we've made tremendous progress around the world in improving security for both nuclear weapons and the materials needed to make them. No longer are there sites where the essential ingredients of a nuclear bomb are sitting in what you and I would consider the equivalent of a high school gym locker with a padlock that could be snapped with a bolt cutter from any hardware store.
At scores of sites around the world, dramatically improved nuclear security has been put in place. At scores of other sites the weapons-usable nuclear material has been removed entirely, reducing the threat of nuclear theft from those sites to zero. More than 20 countries have eliminated all the weapons-usable nuclear material on their soil, and the nuclear security summits have provided new high-level political impetus, which has accelerated this progress.
Nonetheless, as Mr. Barber pointed out, there's a great deal still to be done. My colleagues and I at the Belfer Center, prior to last year's summit, produced a summary report that outlines what has been done and what remains to be done, and I would be happy to provide that for the record as well.
Let me mention a few of the more dangerous areas that still exist.
In Pakistan, a small but rapidly growing nuclear stockpile, which is under heavy security, I believe, faces more extreme threats than any other nuclear stockpile in the world, both from heavily armed extremists who might attack from outside and from potential insiders who might help them.
In Russia, which has the world's largest stockpiles of both nuclear weapons and weapons-usable nuclear material dispersed in the largest number of buildings and bunkers, the nuclear security measures have dramatically improved, but there are still important weaknesses that a sophisticated theft conspiracy might exploit. And sustainability remains a major concern, as Russia still has neither the strong nuclear security rules effectively enforced nor sufficient funds allocated from the federal government to sustain security for the long haul.
At more than a hundred research reactors around the world, you still have highly enriched uranium used as fuel or as targets for the production of medical isotopes, and in many of these reactors, security is very minimal. Some of them are on university campuses.
At the moment, unfortunately, the mechanisms for global governance of nuclear security remain weak. No global rules specify how secure a nuclear weapon or a chunk of plutonium or highly enriched uranium ought to be. There are no mechanisms in place to verify that every country that has these materials is securing them responsibly.
Fukushima made clear that action is needed to strengthen both the global safety regime and the global security regime, because some day terrorists might seek to do what a tsunami did in Fukushima.
A central goal leading up to the 2014 nuclear security summit must be to find ways to work together to strengthen this global framework and continue the high-level attention on this topic after nuclear security summits stop taking place.
Ratifying the conventions now is important, but it should be seen, as Mr. Barber said, as one part of an integrated strategy and really as the beginning of building and strengthening this global framework. I think there are very important roles Canada can play in that effort.
I am thrilled that Canada has taken action to begin reducing the highly enriched uranium left over from past medical isotope production and past research reactor operations in Canada. I think that's a major step forward. An even more important step forward is the efforts Mr. Barber described to help other countries. Also, there are the really dramatic steps, I think very effective and impressive steps, that Canada has taken to strengthen security for its own nuclear material within Canada.
One of the things that happened at the Seoul Nuclear Security Summit was a goal of each country making a statement about what it would do to minimize highly enriched uranium by the end of this year, by December 2013. It is my hope that at that time Canada will join with European and South African producers of medical isotopes in a firm commitment to eliminate the use of HEU in medical isotopes by a date certain, and that Canada will set a target for eliminating the civil HEU on its soil, which is no longer needed.
The passage of this legislation, both in your country and in my country, will be an important and useful step, and I hope that Canada's passage will help kick my own Senate and House of Representatives into action.
Thank you very much. I look forward to the opportunity to answer questions.
Both pieces of legislation are intended to make sure that this nation's laws are consistent with the obligations in the convention to prohibit certain acts related to nuclear terrorism, and to impose penalties that are consistent with the magnitude of those crimes.
Given the number of people who might be killed in the event of an act of nuclear terrorism, my view is that acts like nuclear smuggling should be considered as being like conspiracy to commit murder or something of that level of gravity.
In Bill , for example, the penalties are up to life in prison for many of the acts enumerated.
In the United States, part of what has delayed our passage of the relevant legislation is an attempt both in the Bush administration and in the Obama administration to include death penalty provisions for some of these acts. Some of the people in Congress were resisting that.
A bipartisan compromise in the United States was negotiated in the house—practically the only bipartisan compromise I can think of that's been negotiated in the house in recent years—but a small number of senators managed to hold it up, wanting to go back to the original death penalty provision. That's part of politics in the United States.
I would say the biggest difference is that difference between life imprisonment and death as the potential penalty.
But the particular acts included in Bill and included in the U.S. legislation are the acts specified in the conventions, so they would allow each country to ratify the conventions.
My own view is that if you take a broad reading of U.S. law, the relevant acts are already prohibited and the United States should have ratified these conventions long ago without bothering to pass any implementing legislation. But the Department of Justice took the view that we needed to dot every i and cross every t by passing this legislation.
Thank you to all our witnesses for being here; and to you, Professor Bunn, thank you so much.
Professor Bunn, I note that you are an associate professor of public policy at the Belfer Center for Science and International Affairs, which I think is part of the John F. Kennedy School of Government, and that your research interests include nuclear theft and terrorism, nuclear proliferation and measures to control it, the future of nuclear energy and its fuel cycle, and policies to promote innovation in energy technology. I feel we're well placed having you here today to give us the value of your opinion, so I thank you very much.
Professor, you referred in your opening remarks to the Belfer Center's 2011 report, entitled “The U.S.-Russia Joint Threat Assessment of Nuclear Terrorism”. Your report states, “Of all varieties of terrorism, nuclear terrorism poses the gravest threat to the world.”
When you testified before the Senate special committee on this bill in June of last year, you said:
||In Pakistan, a small but rapidly growing nuclear stockpile that is under heavy security faces more extreme threats than any other nuclear stockpile in the world, both from heavily armed extremists and potential insiders who might help them.
You also stated:
||In Russia, which has the world's largest stockpiles of both nuclear weapons and weapons-usable nuclear materials disbursed in the largest number of buildings and bunkers of any country in the world, the nuclear security measures have dramatically improved.
That is good news. You went on to say:
||However, some weaknesses remain....
Your colleague, Simon Saradzhyan, drew particular attention to the actions and intent of the terrorist groups based in Russia's North Caucasus. During his testimony before the Senate committee the professor pointed out that these groups have already “acquired radioactive materials. They have threatened to attack Russian nuclear facilities. They have plotted to hijack a nuclear submarine using expertise acquired by a former naval officer who was part of these networks.”
In your testimony here today you talked about the concern of terrorism doing what the tsunami did—or could even have done worse, I suppose—in Japan recently.
In taking all of this together, I would like to hear a little more from you on how significant this threat of nuclear terrorism is in our world, and how vigilant you feel we need to be in terms of addressing it as best we can.
Thank you, Mr. Chair. I want to thank all of our guests who are here today as witnesses. Your testimony and your experience and expertise are most welcome.
Professor, I'm going to pick up from my colleague, MP Findlay, in regard to some of the comments you made, both in previous testimony to the Senate and also in some of your academic work.
Last Monday we heard the case, Professor, of Mahmoud Yadegari, who was the first person in Canada convicted of supplying nuclear equipment to Iran. In the six months leading up to his April 2009 arrest, Mr. Yadegari had contacted 118 companies across North America and sent more than 2,000 e-mails to suppliers, in the hopes of getting his hands on parts used in the enrichment of uranium for nuclear fuel.
Professor, you referenced your 2011 report, “The U.S.-Russia Joint Threat Assessment of Nuclear Terrorism”, and I do appreciate your wanting to pass that on for the committee's consideration. In that report, Professor, I'm going to quote from page 44, where you say:
||...there is some evidence that Teheran has been secretly acquiring technologies and materials important in the production of nuclear weapons on the black market. This and other evidence, such as the behavior of the Iranian leadership, strongly suggests that Iran aspires to eventually become a full-fledged nuclear power—or to have the option to build nuclear weapons at any time of its choosing.
Professor, do you think that Bill will facilitate international cooperation and make it more difficult for rogue states and terrorist groups to illegally obtain such nuclear materials?
Yes, thank you, Mr. Marston. That is an excellent question, but probably more appropriately put to the Canadian Nuclear Safety Commission.
However, I will say this. This is part of a worldwide effort to repatriate to countries of origin highly enriched fissile material so this material can be down-blended, it can be reprocessed, it can be done away with.
Professor Bunn has correctly pointed out the critical issue here for us are the stocks of fissile material. We need to ensure that terrorist organizations and terrorists are not able to get enough of this material to create a weapon that will do calamitous things in our major urban areas.
Are there concerns? I understand the concern. We understand the concerns. As a citizen, I would have the same concern.
Other countries are doing this. In the last year we have helped Mexico to repatriate highly enriched uranium from a research reactor in Mexico City back to the United States. We are assisting Vietnam to repatriate highly enriched uranium from a research reactor back to Russia.
At Chalk River there is this material. It costs the Canadian taxpayer a lot of money to keep it there. We don't have the technology to reprocess it in place at the moment. That technology and the facility exist in Savannah, Georgia. As part of our Nuclear Security Summit obligations, our undertook to return this material, as other countries are doing around the world, as in fact many other countries are doing around the world.
The modalities for doing that, how it gets from Chalk River to Savannah, Georgia, is not an issue that's our responsibility, but it certainly raises citizens' issues. That's an issue for CNSC, Transport Canada, and ultimately—
Thanks, Shawn, and thank you for the question.
Under the global partnership program, we've been working cooperatively with Russia over the past 10 years. This work has allowed us to provide significant financial and technical support to upgrade the physical protection systems at 10 Russian facilities housing weapons-usable nuclear material.
Our objective here was to bring these facilities up to the international standards and norms as indicated by the IAEA in its various standards documents.
For the most part, these upgrades included the bricks and mortar type of work, such as replacing aging wooden fences topped with rusty barbed wire with modern metal fences equipped with appropriate detection and monitoring systems, as well as providing sustainability assistance through the provision of spare parts and training.
As Professor Bunn described in his opening statement, 10 to 12 years ago a number of facilities in Russia were literally the equivalent of storing usable nuclear material in a gymnasium setting, sort of in a locker. Through our engagement in the global partnership program, we saw very similar examples, and we've worked over the past 10 years on upgrading those.
We've also worked on the recovery of radiological sources across Russia's vast northern and far eastern coastline as well. We worked cooperatively with Norway, the IAEA, and the U.S. in efforts to secure radiological sources that were being used in navigational beacons in the north, replacing them with solar-powered equivalents and taking those dangerous radiological materials and storing them in a secure facility in Russia.
Ladies and gentlemen, I'll ask you to take your seats. We're going to start here and see if we can get this completed.
I want to welcome, from the Justice department, Mr. Koster and Madame Morency.
We'll call you Carole and Greg. How does that sound?
You're here to answer questions, I'm assuming, as we go clause by clause. Is that correct?
A voice: That's correct.
The Chair: Okay. Thank you very much.
Just so you know, this is not a very large bill, ladies and gentlemen. It's nine clauses or so.
There have been amendments submitted by the Liberal Party, and those are related to clause 5. Just so you know in advance, if amendment Liberal-1 is defeated, that automatically defeats Liberal-2; Liberal-3 will be defeated, Liberal-4 will be defeated, and Liberal-5 stands on its own.
If you do have a question about a clause, please put up your hand so we can ask the appropriate staff to respond, and then we'll go to a vote.
Let's get started.
Pursuant to Standing Order 71(1), consideration of clause 1 is postponed, so I have to start with clause 2.
(Clause 2 agreed to)
(On clause 3)
The Chair: Mr. Mai has a question.
Proposed section 82.3 starts out with a description of the mens rea
required for the offence, the mental element.
It starts out with “Everyone who, with intent...”, and then it talks about the physical element of the offence. It describes the mental element, and then it describes the physical element. So the mental element is the intent to cause death, serious bodily harm, etc., so everyone with that mental element who makes a device or possesses, uses, transfers, exports, and so on.... That is an offence with the mental and the physical element enumerated.
What I'm seeking to clarify is that, after it describes the physical element of that first offence, it uses the word “or”. The question that raises in my mind is, for everything after the “or”, does it require that you have that same mental element that's described in the first three lines, or does it not?
These amendments would specify that the mental element that is prescribed in proposed section 82.3, for example, the intent to cause death, serious bodily harm, etc., is also required for the other components set out there.
Without having that enumerated, it could be interpreted that the mere commission of the physical act is sufficient to warrant a conviction. So you don't need a specific intent. If you commit the physical act, you're culpable.
The sole purpose of all of these first four proposed amendments is to specify that the mental element described applies to all of the other physical acts contained in it. That's the rationale for the amendment. It's to make that crystal clear.
This amendment would remove the actus reus of acts against a nuclear facility, or an act that causes serious interference with or serious disruption of its operation, from proposed section 82.3.
If, as Mr. Casey suggests, the amendment is being proposed to make it clear that the mens rea or “intent to cause death, serious bodily harm or substantial damage to property or the environment” applies to both the making, possession, use, transfer, etc., and the acts against nuclear facilities and operations, this legislative intent is already clear in the parliamentary record, as stated in both the Senate and the House of Commons.
In fact, as Mr. Koster has just explained, the government amendment in the Senate to remove an extra “who” in the English version of the offence was made to be consistent with the French version. In so doing, it makes certain that the mens rea applied to both actions.
Therefore, in my view, this amendment is simply not necessary.
I don't have any specific issues with the amendment either. I thought it was useless because it did not add anything. All it does is cut the paragraph and continue from there, but I have already read that.
However, in going over the English version, I thought an “or” was missing. I think that's on line 9. It says
“of nuclear material, ”, with a comma, and in my view it should be an “or” if we make it consistent with the French, where there is an ou in the French version. We say, “of nuclear material, a radioactive material, or a device”, and it should be, “of nuclear material, or a radioactive material, or a device”.
That's the only thing. When I was trying to see the intent behind the amendment—because I couldn't see it—I thought maybe he was just adding an “or”, but I thought it was a pretty long amendment for just an “or”. Anyway, I suggest that we should at least....
This doesn't change anything. I don't know if the specialists from the Justice department realize it, or maybe I'm not reading it well. I wouldn't want a bunch of lawyers starting a big debate on a comma versus ou.
Other than that, I don't have a problem with the amendment. I just think it's totally useless.
Yes. Thank you, Mr. Chair.
The military exclusion language under proposed section 82.7 is similar to that presently set out in section 431.2 and subsection 83.01(1) of the Criminal Code. Adding such language to the military exclusion in this clause, while not adding it to existing law in both the military exclusions in section 431.2, relating to terrorist bombings, and subsection 83.01(1), relating to the definition of terrorist activity, may have unintended consequences for the interpretation of these two existing provisions.
The Supreme Court of Canada, in the unanimous December 2012 Khawaja decision, provided guidance on the application of the military exclusion clause used in the definition of “terrorist activity” in the Criminal Code. In rejecting the application of the military exclusion to the defendant, the court found that, one, the military exclusion clause functions as a defence, and therefore it is for the defence to raise an air of reality to the claim that it applies; and two, the conduct in question must otherwise be in accordance with applicable international law, such as the Geneva Conventions.
As the Khawaja court noted, “The Geneva Conventions prohibit acts aimed at spreading terror amongst civilian populations...”. In order for the defence, under proposed section 82.7 to apply, the act must be lawful under international law.
In my view, it is unlikely that a terrorist entity would meet that threshold. So we do not support this amendment.
Thank you for that answer.
We'll move on.
(Clause 9 agreed to)
(Clause 10 agreed to)
The Chair: Shall the short title carry?
Some hon. members: Agreed.
The Chair: Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill carry?
Some hon. members: Agreed.
The Chair: Shall the chair report this bill to the House?
Some hon. members: Agreed.
The Chair: Thank you very much.
Just so you know, I will not be in the House tomorrow morning, so I will take this to the House on February 25 upon my return.
That deals with our study of Bill .
Thank you very much, and thank you to the legislative clerks for joining me and for telling me that I would be okay today.
We'll move on to the next item on the agenda. We may have about half an hour, but probably not.
Madame Boivin, your motion had been deferred from the meeting on Monday until today, so I give you the floor to move your motion back onto the table, if you wish.
Excellent. Thank you, Mr. Chair. And here I was thinking I would have only about 15 minutes to discuss this motion, when in fact I will have a half an hour on Monday and another half an hour today. I appreciate that.
I think I have basically covered the whole issue by now. Within the last hour, I received from the Parliamentary Secretary to the Minister of Justice a document on section 4.1 of the Department of Justice Act. I don't know whether this document has been distributed to all my committee colleagues. That would probably be useful to those who are interested in those operations. I have not had the time to study the document in order to figure out whether it truly meets the objective of my motion. I am not convinced that this is a real response.
I may instead wish to go over the point raised by my colleague Mr. Rathgeber.
We distributed some information to explain a bit of what was behind this. Again, I would just stress the point that it is not to have a huge inquiry. My colleague talked about the sub judice concept, which is not the case, because it's not about touching the case that is in front of the tribunal. Maybe not all of us, but a lot of us parliamentarians have been made aware because of that case of the obligation from
section 4.1 of the Department of Justice Act. That obligation is also set out in the Statutory Instruments Act and various other documents, and it is part of our role as legislators.
My intention here is simply to suggest that we hold a meeting. I understand that the agenda of the Standing Committee on Justice and Human Rights is very full, and it will become more so with the study of bills that will be introduced. That's why I have not set a deadline.
However, it would be a good idea to study the matter in subcommittee or standing committee, so that we can have the opportunity to talk to Department of Justice lawyers in order to understand—beyond the terminology of section 4.1—how that applies to real life. They could provide us with some examples—not necessarily discuss specific cases, but provide us with some idea. It's one thing to say that the minister must ensure that all the provisions of the bill are consistent with the Charter, but it's quite another to explain how the process works and what kind of verification takes place. There are experts on the topic.
I don't know whether it has to do with the fact that I'm interested in this issue, but I find that there are so many experts. Among other documents, I gave my colleague an article by Concordia University's Professor Kelly titled
“The Canadian Charter of Rights and the Minister of Justice: Weak-form Review within a Constitutional Charter of Rights”.
Such statements worry me. I tell myself that I will at least be able to look people in the eye, tell them that, beyond politics, tests to ensure compliance with constitutional legislation and the Canadian Charter of Rights and Freedoms are carried out diligently, and explain to them what's involved in the process. So we can move on to the next topic.
To my colleagues, first of all, thank you so much for your indulgence on Monday in setting this matter over for 48 hours to allow the committee to carefully consider it. I do consider it to be very serious, and I think we all should, with respect to legislation being charter compliant.
I also want to thank my colleague and my colleague's office for providing me with some wonderful bedtime reading, which she had referred to. It was 39 pages, and I got through it—
Ms. Françoise Boivin: I'm proud of you.
Mr. Brent Rathgeber: —plus the pleadings of the Federal Court decision in Schmidt v. the Attorney General of Canada.
Upon reflection in regard to all of that, and I remain very sympathetic to the motion, the reality is that I think it is improper for a legislative committee to undertake this study for a very simple reason. We are a legislative committee, and our response to any problem, perceived or real...and I don't know if this problem is perceived or real, but regardless, our solution is legislation. And the legislation is there.
If the allegation is that the legislation is not being complied with, I'm not sure what Parliament or a parliamentary committee can do about it. That's a matter for the courts, and this matter is before the court; it has been pled specifically in Schmidt v. the Attorney General of Canada. They will adjudicate it; they will hear evidence, and if there's a section not being complied with, they will do what they need to do.
I'm concerned on sub judice, although I do agree that it's only sort of tangential; it's pled, but it's not the centre of the lawsuit. My main opposition to this motion is that I don't believe that a parliamentary committee such as ours could factor a remedy even if we found that there was a problem. I hope that the documents tabled by the parliamentary secretary dispose of the motion, but if they don't, I will be forced to vote against it.
Thank you, Mr. Chair.
I would like to respond to my Conservative colleague. I want to emphasize my appreciation for the fact that he took the time to read the motion. That's what we have to do when serious motions are put forward.
Here's how I have understood the parliamentary secretary's and Mr. Rathgeber's statements. They say that, in any case, the courts would be there to do their job if ever an error was made. That reminds me a bit of what would happen when I was working in labour law and a collective agreement was being drafted. Some people around this table may not agree with me, but I have always said that, when we produce something, we have to make sure it's as perfect as possible, even though perfection is unattainable.
Canada's legal system has rules. Jurisprudence and various other things provide us with tools, unless something totally new is created, in which case we have to go off the beaten track. I can understand that we may have a bit more difficulty in such cases. The best example is that of experts who talk to us about bills introduced by the government or the Senate and say that we have problems. You will tell me that this is their interpretation, but they say that we have problems when it comes to the charter, and that a given provision does not comply with the charter.
That's exactly the type of discussion or debate the Minister of Justice faced when section 4.1 was being studied and Department of Justice experts issued an opinion. I don't think it's appropriate to say that, in any case, the courts will do their job when we get to that stage. On the contrary, we should ensure, to the extent possible, that people subject to trial—those for whom we work, Canadians—do not have to go through the courts to find out whether or not the legislation complies with the charter.
There have been some challenges, and I don't think the fact that they were successful before the courts means that the courts are interfering in the wonderful world of legislative authority. All they are doing is restoring the right. The committee and House parliamentarians should have seen that. Section 4.1 was adopted so that people wouldn't have to go before the courts.
I will tell you the same thing I told my clients when we were drafting a collective agreement. I would tell them that, if I did my job properly, they wouldn't see me again, and if I didn't do my job properly, they would see me again, as all kinds of things would be unclear and there would be grievances arising from interpretation. If we do our job as legislators properly and ensure that our laws are consistent with charters and with the division of powers under the Canadian Constitution, in principle, there shouldn't be any problems.
I find our approach to be a bit casual, and I think we are trusting somewhat blindly if we think that, in any case, the courts will ultimately take care of things. As you and I know, anyone who has had to go before the courts knows how expensive that is. We are familiar with the issues in terms of access to justice. I am not sure I want to say to Canadians that, since the legislation may be illegal, all they have to do is go before the courts and challenge its legality under the charter.
The legal action taken by Mr. Schmidt may be sounding the alarm. That gave us all a bit of a jolt and made us wonder whether the tests are really being carried out properly or, as the parliamentary secretary said, whether the system has always worked well over the past 30 years.
We know that many appeals under the charter have been successful. I would like to say to the parliamentary secretary that all those appeals mean something. If I was the lawyer in charge of the case, I would be asked why I had said this matter made sense, yet our case was criticized by the Supreme Court of Canada. Don't tell me that, over the past 30 years, no appeals under the charter have been successful before the Supreme Court of Canada. On the contrary, we could come up with a whole list.
That doesn't mean that Department of Justice experts won't sometimes say so. I have prepared many such legal opinions, where we say that a given theory makes sense and state what we think is important, but where another argument is possible. At least, we know that the exercise is being carried out.
I'm worried about the fact that we are somewhat indifferent. That concern has made me suggest that the committee view the matter from another angle. I don't think it's enough to say that this is what the law stipulates, this is how things are done, and that, for an argument to pass the test, it must be bona fide and reasonable, likely to be heard and accepted by the courts. Usually, the courts will accept and hear just about anything submitted to them. However, that doesn't mean a careful analysis has really been carried out pursuant to the charter.
I think our obligation is not to rely on the courts in the future, as that does not necessarily contribute to Canadians' well-being. We have to do our work properly from the outset in order to avoid that kind of a situation.