Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 5 - Evidence
OTTAWA, Tuesday, December 7, 1999
The Standing Senate Committee on Foreign Affairs, to which was referred Bill C-4, to implement the Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station and to make related amendments to other acts, met this day at 5:50 p.m. to give consideration to the bill.
Senator Peter A. Stollery (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are here to deal with Bill C-4, which concerns our space program.
Please proceed, Mr. Evans.
Mr. William Macdonald Evans, President, Canadian Space Agency: Mr. Chairman, I understand that copies of my speech are available to you in your books. In the interest of time -- and I am sure you have heard many speeches today -- I would propose the following. I will say a few brief words of introduction. We have a 12-minute video that will explain the space station, thereby helping members of the committee to understand what we are talking about here. Following the video, we shall be pleased to answer any questions honourable senators might have.
The Chairman: Thank you, Mr. Evans. Perhaps we should run the video first, in the interests of time.
(Video Presentation)
Senator Carney: This is a very exciting project. It started under the administration of which I was a member, so I am familiar with some of the early work here.
The code of conduct is being drafted. Is it possible for this committee to see a copy of the code? I would like to know what the code of conduct is. You are talking about clause 9, where there is reference to making regulations, rather than legislative amendments. You say that the code of conduct that is being drafted will cover such issues as the chain of command on the ISS flights to and from the station, the flight disciplinary rules, the management hierarchy on the station, and so on.
Is there a way for this committee to see the code of conduct, just as a point of information? We would not hold up the legislation, but we would like to look at it because obviously there are some sovereignty issues there.
Mr. Evans: Absolutely. The code is something that all the partners have to agree to. It will be a common code, one that affects all the astronauts from all the nations. We would be delighted to share it with you when on completion.
Senator Carney: Would it be possible to extend that to all the regulations? In the normal course, regulations are not brought back before committee when the legislation is passed. The legislation usually stipulates that the act will be administered subject to regulatory processes, et cetera. However, because there are sovereignty issues here, would it be possible? Will there be 900 regulations -- in which case it would be too difficult to review them? Would it be possible this committee, as a matter of record, to know what the regulations are?
Mr. Robert S. Lefebvre, Director, Canadian Space Agency Legal Services, and Counsel, Canadian Space Agency, Department of Justice Canada: I would like to add something to what the president just has said. The crew code of conduct is being discussed this week in Vienna among the partners. The basic principle of the crew code of conduct is to establish the chain of command between the commander of the space shuttle and the commander of the space station and Houston or the earth terrestrial stations. In other words, it will establish how life is taking place on the space station.
It is not the intention of partners to get into criminal aspects in relation to the crew code of conduct. It will simply establish the chain of command, the relationship between the various astronauts. For example, when there is a shuttle coming to the space station, who is responsible? Will it be the commander of the space shuttle or will it be the commander of the space station?
Senator Carney: I am familiar with those issues. An simple analogy comes to mind. A few years ago, I was on an ice island, T-3, which is 250 miles off the North Pole. What I was doing there is not related to what you are doing. However, a crew member of one nationality shot the cook, who was another nationality -- and having spent six days on T-3, I could understand how that could happen.
There were many problems about sovereignty, territory, conduct. I notice that in the amendments it sets out that the agreement is that criminal law would be applied on a nationality basis rather than a territory basis.
I am asking that somewhere in Parliament -- and this would be the committee -- there is deposited the regulations of the code of conduct. That will ensure that they are somewhere on the public record. If it were possible to do that, this committee would be a good repository, so that if anyone gets mad at the cook on the space station, we know who is in charge.
Mr. Lefebvre: We do not expect, senator, that there will be thousands of regulations issued.
Senator Carney: I understand you have no problem with filing the regulations with this committee.
Mr. Lefebvre: I am not an expert in constitutional law or the business law of government. I know that Governor in Council does publish those regulations.
The Chairman: Senator Carney, does clause 10 affect your point?
Senator Carney: I am not familiar enough with the bill because, as you know, we just got here.
The Chairman: This was the only amendment that was made in the House of Commons, I believe.
Senator Carney: What does that say?
The Chairman: Clause 10 says:
The Minister shall, by order, amend the schedule to incorporate any amendment to the Agreement as soon as it is feasible after the amendment takes effect, and shall cause the amendment to be laid before Parliament on any of the first fifteen days that either House of Parliament is sitting after the order is made.
Senator Carney: That covers amendments. I am talking about regulations. There are very few acts in parliament where regulations are brought back to committee. The Canadian Environmental Act is one of them because there is public participation in the regulations and they are deposited with the committee.
Because this is a new area, and a very sensitive one, regulations should be filed somewhere in Parliament, where we can discuss them, not just in Treasury Board or somewhere else. The regulations should be referred to committee for review or information purposes, or something.
When I read the material that had accompanied this excellent piece of legislation, the thought occurred to me that this particular aspect -- that is, review of the regulations -- was not adequately covered. It is done on some legislation where there is public interest and not on others. In this case, I am asking if this committee could in fact have the regulations in question deposited with it.
Senator Grafstein: If understanding is correct, all regulations require scrutiny by the Standing Joint Committee for the Scrutiny of Regulations, which answers part of your question.
The other question really relates to the content of those and whether they should come back to the committee, which has a greater grasp of the principles of the bill. I do not know what you are asking for.
The Chairman: Honourable senators, would you please address the Chair because it makes everything a little more coherent.
Let us hear what Mr. Evans has to say in answer to your question.
Senator Carney: I would like to address what is the normal process. The normal process with legislation is that once it is passed the act states that the regulations will be published, et cetera. The regulations are gazetted. They go to the special cabinet committee, which reviews them. There is public input normally, if the people know about it, and they are gazetted again. That is the normal process.
My point is that concerning legislation where there is a high degree of public interest or a new area like this the regulations are brought back to committee. My question quite simply is this: Is it possible to do that with this new initiative?
Mr. Evans: Again, I am caught by not knowing all the regular procedures. As Mr. Lefebvre was saying, there will be very few regulations flowing from this. As far as we at the agency are concerned, the code of conduct and the other aspects of this are regulations that will be public. We would certainly have no issue with them being deposited.
Senator Di Nino: I should state that Senator Kelly, who has carriage of this bill, will not be here this evening. He has asked me to ask some questions.
I would like to continue on that. Most of the proposed agreement, I understand, will be through MOUs. In effect, the regulations that you are talking about will probably be the most extensive part of the treaty, as well as the code of conduct.
My question goes a little further than Senator Carney's. Is it the intent of the minister responsible for this legislation to bring these regulations to Parliament or at least to a committee of Parliament before they are actually put into law. From our understanding of reading the bill, the agreement will be carried out mainly by MOUs.
Mr. Evans: In January 1998 and intergovernmental agreement was signed by our minister and the other ministers of the other participating countries. It is a public document and is available to everybody.
Below that, there is a memorandum of understanding, which is an arrangement between agencies, that deals with how we are going to run the program and the program management aspects.
The purpose of this proposed legislation, Bill C-4, is to bring Canadian law in concert with the requirements of that intergovernmental arrangement. So, there is one document, the so-called IGA, which has been signed. The purpose of this bill is to bring our laws in concert with that agreement.
Senator Di Nino: What you are saying is that it is done. Will it be part of this legislation? Will it be brought to us before we actually pass it, or, in effect, is it a fait accompli, already accepted by all of the governments?
Mr. Evans: It has been signed by all the governments, yes. The process of the legislation in the various countries is to ratify that agreement. Each of the participant countries is currently in the process of ratifying the agreement.
Mr. Lefebvre: I should like to add a comment. As you know, it is the prerogative of the Crown to discuss, negotiate and conclude international agreements. Consequently, the executive does have the authority, as you all know, I am sure, to discuss, negotiate and conclude international agreements.
The prime reason, in fact the only reason, I believe, we are here before you and were before the House of Commons is that we must ensure that the Canadian Criminal Code applies to our Canadian astronauts when they are on the space station. This was referred to earlier as the nationality principle.
To be sincere, if we had not had to amend our Criminal Code to extend it to the space station, I do not believe it would have been required for us, legally speaking, to come to the house and pass a bill to enforce this international treaty. We could have gone through the executive to obtain the necessary ratification instruments. This has been done, incidentally, in other countries such as the United States. They have gone through what we call an executive order. There are other countries in Europe that also have this process.
This is our parliamentary system as it exists now. I do understand that there are proposals to open this process to have it before the House of Commons. Incidentally, clause 10 of the bill was amended such that, in the event of an amendment to the international space station, that amendment be tabled in the House of Commons for transparency purposes. But that amendment will be signed and duly executed. This is notwithstanding the fact that those amendments or those international agreements are already publicized and published in Canada Treaty Series.
That is the process as I know it in Canada. With respect to the regulations, as I said to Senator Carney, I agree with what you have said. It is a reflection of the parliamentary system in which we are.
I do not think the agency has any objections as to the transparency of the process with respect to having the crew code of conduct being presented here. I do not anticipate any difficulties, except that it may, to a certain degree -- and this is my question -- change the parliamentary system within cabinet.
As the president of the agency mentioned, we have the international space station agreement, which is like the umbrella agreement. Underneath that international treaty, which is a government-to-government agreement, we have an MOU between agencies -- that is between NASA and CSA. NASA has similar MOUs with ESA, with Russia, and with Japan. This MOU is to implement the IGA, to put it into effect.
Under the MOU, you may have -- and you will find this in article 4 of the agreement, which is in Schedule B -- you may have what we call implementing arrangements. For instance, we are currently negotiating with NASA. An example of implementing arrangements may be, say, to modify the participation of Canada from a hardware point of view, in light of the expenses and so on. We may be negotiating trading off some arrangements with one of our international partners, with NASA or ESA, and, consequently, it is really from a practical point of view is and based on programmatic views. It has no legal consequences.
Senator Di Nino: I am not sure that I am happy with the answer. Since most of the agreement will involve the implementation of memorandums of understanding, I am not sure that we are dealing with the full content of the agreement here. In my opinion, it certainly should come at least as information before this committee, if not through Parliament itself.
Let me continue on a couple of other points, if I may. Clause 4 states:
This Act is binding on Her Majesty in right of Canada or a province.
It is an unusual or odd piece of legislation that refers to binding the Queen in the right of a province unless a province is specifically involved. That may raise a constitutional issue. Was that addressed during discussions in the House of Commons or anywhere else?
Mr. Lefebvre: No, senator, it was not raised. This bill was prepared in consultation with the legislative drafters in the Department of Justice. My understanding is that this is a boiler-plate clause, the purpose of which is to ensure that this legislation shall apply to Canada as a whole. This is, after all, an international treaty, and we want to ensure that it does apply.
Senator Bolduc: This is not a good case. You do not have a good case when you say that, sir.
The Chairman: Would you please address the Chair? It makes it easier for everyone.
Senator Bolduc: Excuse me, Mr. Chairman.
Senator Di Nino: Perhaps I can continue, because I think Senator Bolduc is right. It is a question of whether the constitutionality of this clause has been cleared with those in Justice, who would understand that better than us. May we ask that this be clarified for us, if not today, perhaps at some future date.
Mr. Lefebvre: Yes, senator, we shall clarify that for you. It is my understanding that this bill was debated and discussed among all the sectors within the Department of Justice, including the Constitutional and International Law Division of Justice.
That is my understanding, unless my colleague from Industry Canada has some additional comments.
[Translation]
Mr. Ouellet: As Mr. Lefebvre just said, that constitutional issue was discussed, and the constitutionality of that clause was confirmed by the Department of Justice.
[English]
Senator Di Nino: Clauses 7 and 8 provide the method by which the minister may obtain information and documents. It talks about the minister making application for a court order. Our concern is that it would seem to us that most of the documents would be sought outside of Canada or could be sought outside of Canada. The court order obviously by a judge of Canada would have no extraterritorial authority. Is there some reciprocity in the agreement or in the proposed MOUs in dealing with this issue?
[Translation]
Mr. Lefebvre: I would like to answer that question. First, clauses 7 and 8 of Bill C-4 have been strongly suggested by the Justice legal drafters. Besides, those clauses were modeled on the provisions of previous pieces of legislation which had been tabled in Parliament with respect to the Anti-Personnel Mines Convention Implementation Act. That wording was suggested to us by the legislative drafters themselves. Consequently, it has nothing to do with clauses 7 and 10. So to speak, the provisions dealing with reciprocity clauses are found in the Intergovernmental Agreement on the International Space Station or in a Memorandum of Agreement -- MOU. The idea behind those provisions is that, for example in the case of the Space Station plan, there is a main contractor with whom we have a contractual arrangement. That main contractor hires subcontractors for the construction of the robotic arm, which you saw earlier in the video. The subcontractors, with whom the Crown has no contractual or legal relationship of any kind, might be well aware of some information needed by Canada for the implementation of its Canadarm program. If ever the main contractor was no longer in Canada -- and we've seen that kind of situation with the purchase of Spar Aerospace -- we would not have any contractual or legal link with those subcontractors. Subclause 7(3) and 7(4) allows the minister to seek an order from the Court. As you well know, a court order is not an easy thing to obtain, because such a request must be justified. That clause would allow us to go and get that information which otherwise would not be available. For example, the Access to Information Act and the Privacy Act do not apply here.
[English]
Senator Di Nino: Mr. Chairman, my concern here is that some of this information will have to come from other countries. I wonder if there is an undertaking on behalf of all of the participants that there will be a reciprocity in making sure that the information, regardless of which country needs it, will be available to them through this reciprocal arrangement that all participants would be signing?
[Translation]
Mr. Lefebvre: I simply want to confirm what Senator Grafstein just said.
[English]
Five partner states. They are all working together. Undoubtedly, we are exchanging constant information in order to build this project, which is of a complexity that humanity has never seen.
Mr. Poirier or the president will elaborate on this very easily.
Mr. Alain Poirier, Director General, Space Systems, Canadian Space Agency: Obviously, it is a partnership, and the space station could not be realized if we were not exchanging information. In the IGA, and even through the workings of all the committees, we have agreed to support the partnership. We support each other by exchanging information. We also have all the mechanisms needed to protect that information because our goal is also to protect the intellectual property that is being generated.
All of this is in place. The reciprocity exists through the IGA and the MOUs. It is a commitment we make to the program to support the partnership by providing the required and necessary information.
Senator Taylor: My question relates to what Canada gains. You referred to Spar selling out to McDonald Detwiller. If we are going to use contractors, then under NAFTA they can sell out to the U.S., or maybe even a European contractor could buy them out. The first question that comes to mind is: How does the Canadian Space Agency acquire all the information that it would normally get if it used a Canadian contractor if it uses a non-Canadian contractor? I am assuming that non-Canadian contractors can work for the Canadian Space Agency. How would you go about getting the information?
Mr. Evans: All of our work on the space station and other programs is the result of contractual relationships with the companies involved. To date, all of our major contracts are with Canadian corporations. We consider McDonald Detwiller to be a Canadian corporation, even though they are owned by an American company.
It is through the contractual process that we impose the ownership regime on intellectual property. For the space station program, for the Canadarm project, the Crown owns the intellectual property. Through our licensing agreements with these companies, we control how and by whom the intellectual property is exploited. Therefore, it is through the mechanism of intellectual property regime and the ownership that we control.
Senator Taylor: You were talking about each country having the right to prosecute malefactors, or whatever it is, in the space station. If a foreign contractor had a non-Canadian on that space station representing Canada, such as a Kosovar working for an American company such as McDonald Detwiller, and something happened, would the prosecution come back to Canada although the person is not a native of Canada and is not working for a Canadian-owned company but a company that was contracted to Canada?
Mr. Evans: Currently, all of our astronauts are Canadian citizens. Therefore, any Canadian who will be on the space station will clearly be a Canadian citizen. I think that applies to all the other partners. I am having difficulty envisaging how somebody from some other country will be representing us on the space station.
The purpose of this proposed legislation is to ensure that Canadians on board the space station are subject to Canadian law. That is the primary purpose.
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Perhaps I can be of assistance with respect to your question. The purpose of amendments to the Criminal Code that are found in this bill is to give Canada jurisdiction to prosecute offences committed up there or down there -- I do not know for sure where it will take place, but outside the confines of Canada.
The code, as amended by this bill, if it is passed by Parliament, will give jurisdiction to Canadian courts when it is a Canadian who is committing an offence. The definition of "Canadian crew member" can be found in the bill. It includes a Canadian citizen, or, as clause 11 indicates:
(b) a citizen of a foreign state, other than a Partner State, who is authorized by Canada to act as a crew member...
Those are the important words. Therefore, if someone from Brazil, just for the sake of discussion, who is authorized by Canada to be our representative, to be an astronaut -- he is not a Canadian citizen but is authorized by Canada to be up there -- commits an offence onboard the space station, that person would be prosecutable in this country.
Senator Taylor: Suppose the person authorized by Canada is also a citizen of one of your partners?
Mr. Roy: In the situation of one our partners being involved in an offence, the bill also speaks of when it is that we can seize jurisdiction for the purpose of prosecuting. The bill is quite clear. Canada would take jurisdiction in those circumstances when that someone -- American, Japanese, whoever -- threatens the life or security of a Canadian crew member or when the offence committed is committed in relation to a flight element provided by Canada -- the arm we have been talking about, which is part of the excellent video we have shown you.
In those circumstances, Canada would be in a position to take jurisdiction.
Senator Andreychuk: I will continue on that point. Clause 11 is related amendments to the Criminal Code. In clause 11(2.3), there is the phrase: "...crew member who, during a space flight..." Further down, it refers to "flight element" and "Space Station." Are these terms defined anywhere? If so, are they in one of the memorandums of understanding? I am having trouble understanding "during a space flight."
Does that refer to take off; is it during preparations; is it in the air?
The Chairman: Senator Andreychuk, there is a whole series of definitions on pages 5 and 6.
Senator Andreychuk: But you are not defining them here. Are you saying that there are crimes for Canadians, and then a different series of crimes for those that we may authorize under Canadian jurisdiction, and then finally those of our partner states?
Mr. Roy: With respect to Canadian crew members, which is the first question that you are asking me, the same circumstances apply whether you are a Canadian national or you are someone from another country outside of our partners who is authorized to fly that mission on behalf of Canada.
To go back to the example that we used with Senator Taylor, if it is a Brazilian who is flying on behalf of Canada, it does not matter whether that person is a Brazilian national or a Canadian national. Under the definition of Canadian crew member -- and you will find that definition on pages 5 of the bill -- that person is under the very same obligations, and Canada will take the very same jurisdiction with respect to that person. The jurisdiction that Canada can take starts and ends with the space flight as this notion is defined in the bill. The bill defines "space flight" as:
...mean the period that begins with the launching of a crew member of the Space Station, continues during their stay in orbit and ends with their landing on earth.
This is that period of time that we are covering with the legislation, no more and no less. Therefore "space flight" covers the period they are leaving earth, while in orbit around the earth, and their landing on earth. Canada's jurisdiction ends at that point on the basis of the person being prosecuted being a Canadian or the equivalent of a Canadian.
You also asked about offences committed by astronauts from one of the partner states, such as Japan or the United States, say. You have to go then to clause 11, which amends section 7 of the Criminal Code by adding subsection (2.31). What you have here is a narrowing of the circumstances under which Canada can take jurisdiction with respect to that foreigner. Why? Because we are saying that we will take jurisdiction in those matters only if that individual has threatened the life or security of a Canadian crew member.
It is important to give an example here. Let us say that, after being together in orbit for six months, someone slaps the face of a Canadian crew member. That is an assault; however, surely it does not threaten "the life or security of a Canadian crew member." In those circumstances, it is doubtful that Canada could take jurisdiction to prosecute this case here.
However, if the assault is of a nature that goes beyond that, then a decision will have to be made as to whether it is sufficiently threatening to the security of the Canadian member onboard for Canada to try to seek jurisdiction over that individual.
The other possibility, Senator Andreychuk, in those circumstances is something in the nature of a mischief that is committed against some equipment that is Canadian made. What the drafters had in mind is obviously the Canadarm, because that is basically the Canadian-made thing that we will have up there. In those circumstances, the law would say that Canada can take jurisdiction against that foreigner.
Senator Andreychuk: You are saying that this is complementary, that other countries will have similar capabilities to go after Canadians. Is that correct?
On the one hand, I am told in our briefing notes that the IGA that was signed agreed that the criminal law would be applied on a nationality basis rather than a territorial basis. From what I have heard, Canada would prosecute Canadians, our partners would prosecute their own, and that is through an understanding. However, in looking at proposed subsection (2.31) of section 7 of the Criminal Code, it seems that we can prosecute the officials of our partner states.
Mr. Roy: Let me try to clarify this. It is a difficult area of the law. I will do my best. Please do not hesitate to interrupt me, through the chairman, if there is a need.
In public international law, there are a number of ways to seize jurisdiction. Canada traditionally has gone with the territoriality principle. Something that takes place in this country is prosecuted here. It does not matter who you are: If you are a Canadian, we are going to prosecute you; if you are a foreigner, we are going to prosecute you in this country for what you have done.
As part of the common law tradition, Canada is also willing to extradite its own nationals abroad, for them to be prosecuted when they have committed an offence abroad. Some continental European countries have a prohibition on this. They will not extradite their nationals for crimes committed here.
Therefore, there is a balance here. Canada is willing to prosecute cases here but is also willing to send its nationals elsewhere to be prosecuted. That is why we have gone traditionally with the territoriality principle.
There are other bases that can be used under international law to seize jurisdiction. The notes that you have seen are correct. This bill is using the personality principle. There are two types of personality principles. There is the active personality principle and the passive personality principle.
What is the active personality principle? It is in cases where the person has committed the offence. Your offender is one of your nationals. You can seize jurisdiction and bring that person before your national courts for offences committed elsewhere.
If you look at proposed subsection (2.3) under clause 11 of the bill, it is doing exactly that. We are seizing jurisdiction over our own nationals or people that we consider fall in that sphere in those circumstances, that is people who are acting on our behalf up there.
In proposed subsection (2.31) there is the passive personality principle. In those circumstances, we are the victims of an offence committed by someone. In (2.31), we are talking about a crew member of a partner state. Hence, it is the reverse of the situation in proposed subsection (2.3), where we are the ones who have committed the offence; under (2.31), we are the victims of that offence. That is the basis on which we are taking jurisdiction in those cases.
This bill is giving Canadian courts jurisdiction, no more and no less. The agreement that was reached between the countries at article 22 relates to the possibility for each of the partner states -- Canada, the United States, Japan, -- to use the same basis for seizing jurisdiction over those matters. Hence, it is certainly possible for the Americans to use the same basis we are using here. I would expect the partner states to use the very same basis to seize jurisdiction over those matters.
Senator Grafstein: As I said earlier, the only reason we are here today is to deal with the criminality of extraterritorial jurisdiction of the Criminal Code. Otherwise, the executive could do this by agreement and thus it would not be necessary to use the time of Parliament. The executive could proceed. We are only here to deal with the extraterritorial aspects of the Criminal Code. Is that correct?
The key element here, the rationale for bringing it forward, is the extraterritorial aspects of it. I see that Mr. Lefebvre is agreeing with me. I asked him this while we were between the Senate and this meeting.
The second point is that this does not really have general application. It only applies to space stations. It does not apply to Garneau or others who might be in the space flight; it only applies to the space station. In effect, this is a very narrow application. My first question is: Why?
Mr. Evans: What is unique about the space station? What is unique about the space station is that we have codified with the intergovernmental agreement for the first time the fact that there will be international crews working together. This is different from a shuttle flight now. On every shuttle flight now, we enter into a specific agreement with the United States governing the terms and conditions of our astronauts flying. It is done flight by flight by flight.
Senator Grafstein: I am trying to point out to all of us that this is a very narrow application of the Criminal Code. It does not apply to space flights. It only applies to space stations, back and forth.
The second limitation, Mr. Chairman -- there is a sequence here and I want to come to my major point -- is that this only applies to indictable offences, not summary offences. If I am up in a space station and I kick somebody in the face, it is not aggravated assault, it is a summary offence, this will not apply. As I understand proposed subsection (2.3), it is limited to indictable offences.
Mr. Roy: Under the Interpretation Act, an offence that is hybrid -- that is, that can be prosecuted either on indictment or summary conviction -- is considered to be an indictable offence. Therefore, this offence that you are talking about -- simple assault is what you are talking about -- would be covered by this. We would be able to seize jurisdiction when it is a Canadian who is doing this.
Senator Grafstein: If somebody simply assaults a Canadian, we would not be able to seize jurisdiction. Correct?
Mr. Roy: The answer is in the words of proposed subsection (2.31)(a) and (b). It is only when the offence is related to someone who is not a Canadian. Only when that offence threatens the life or security of a Canadian crew member would we be interested in seizing jurisdiction under this piece of legislation. Or, as you can see in (b):
(b) is committed on, or in relation to, a flight element provided by Canada or damages a Canadian flight element.
Only in those cases would we be interested in seizing jurisdiction.
Senator Grafstein: Again, both (2.3) and (2.31) on the face of it refer only to indictable offences?
Mr. Roy: Indeed.
Senator Grafstein: The last element here -- and I do not want to belabour this -- goes to a question that the Senate is very familiar with -- it is a personal cause of mine -- and that is the question of extradition.
Let us assume for the moment the space shuttle takes off from Texas -- which is a reasonable assumption. The State of Texas has the death penalty. Let us also assume that Canadians are involved in that space flight; that Canada seizes jurisdiction of that individual because a Canadian is involved as a perpetrator or a victim. Also, the United States, through its state legislature, seizes jurisdiction over that individual. In effect, we have a conflict of jurisdictions, which is that one jurisdiction has the death penalty and the other, our jurisdiction, does not. How would that be resolved?
Mr. Roy: By chance, I brought with me my Extradition Act. You have an answer in the fact that the Minister of Justice, who is responsible for the application of the Extradition Act, may refuse to make a surrender order when the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against that person.
Senator Grafstein: You will recall, Mr. Roy, my position on that.
Mr. Roy: Yes, I do.
Senator Grafstein: There is a discretion to deal with the question of life and death under this act.
Mr. Roy: Mr. Chairman, you know that the matter actually is presently before the Supreme Court of Canada in Burns and Rafay. It may very well be that another section of this particular piece of legislation will have to be invoked, depending on what the Supreme Court of Canada will have to say if the death penalty were to be an option in the foreign state. According to current law, there is no such obligation, but that may become the law, depending on that judgment.
[Translation]
Senator Corbin: I realize that no minister has yet been designated as required under clause 5. There is no minister nor parliamentary secretary here tonight. If we look at the definition found in clause 5, a minister shall eventually be appointed, if he has not yet been designated by the Governor in Council. Who will be that minister? I mean which portfolio, not which person. Do you have any idea?
Mr. Lefebvre: The Canadian Space Agency was created under an incorporating act which still governs its administration, and the minister responsible who was designated by the Governor in Council is the Minister of Industry, the Honorable John Manley.
In this bill, which might be adopted by Parliament, the legislative drafters used the usual boiler plate provision, as they generally do in such bills. The Governor in Council would quite probably designate the minister who is already responsible for the Canadian Space Agency, which is itself responsible for the International Space Station Program. I assume that the Governor in Council will appoint the Minister of Industry to that office.
Senator Corbin: I find somewhat odd that the Minister of Industry would be designated to administer a legislation which deals primarily with criminality and other like matters.
Mr. Lefebvre: After all, Mr. Chairman and honourable senators, the main purpose of this bill is to make it possible for Canada to ratify the intergovernmental agreement, the whole responsibility of which falls on the Canadian Space Agency officials, as well as on its president and its director general who are here tonight. As mentioned by Senator Grafstein, if that amendment had not been needed, we would not have had to come before you and the Parliament in order to extend the application of the Canadian Criminal Code to our Canadian astronauts aboard the station.
Mr. Roy: Mr. Chairman, with respect to the provisions dealing with amendments to the Criminal Code, it is clearly the Minister of Justice who is responsible for them; she does not try to escape her responsibility there. You are going to discuss the proposed amendments. As Attorney General of Canada, she can seize jurisdiction over such prosecutions. Furthermore, a provincial attorney general has to get her prior consent before prosecuting. So, the Minister of Justice is actually concerned by those amendments, but only as far as they affect the Criminal Code. The rest of the bill falls on the responsibility of another minister who is still to be appointed.
Senator Corbin: Am I right in thinking that the only reason why the name of a minister is mentioned, whoever may be designated, is to meet some legal requirements regarding the administration of government? In practice, the Minister of Industry, Mr. Manley, will delegate most of its powers to the agency. The minister has not much to do. All the administrative tasks will be assigned by the minister to the agency. The minister will not have to look into the operation of the agency every morning.
Mr. Roy: I was going to tell you, Mr. Chairman, that this is what we are hoping. It is about what I would call political accountability. There is always a need, in our system, to have a minister responsible. We will have one. It is Mr. Evans, our president, who takes on the full responsibility of the daily operation of our agency. Clearly, this must continue to be so.
Mr. Lefebvre: I might add that, under the incorporating act which created the agency, the President of the Canadian Space Agency acts as a deputy minister. He is considered as a deputy minister like any deputy minister in any other department. So, you are right in saying that the responsibility of the administration of the agency will fall on that person.
[English]
Senator Di Nino: Question number one: Are we to assume, then, that each partner state will be signing a mirror document to this, particularly as it relates to the changes to the Criminal Code?
Question number two, to Mr. Evans: Could you share with us the known costs to date, as well as projected costs; and do you foresee that Canada will need a general budget for this particular project?
Mr. Roy: With respect to the first question, I can provide you some assistance, I hope.
Article 22 of the agreement that we have been talking gives all of the partner states the same jurisdiction, if they wish to use it. This is part of the understanding that they have.
Whether, through legislation, they will choose to do that, it is for them to decide. I would expect they will. The jurisdiction that we are talking about under Article 22 is the jurisdiction that is reflected in this bill, no more and no less.
With this amendment, we think we are completely in conformity with the agreement that was reached between the partner states. If they want to have a jurisdiction that is narrower than this, it is their prerogative; but they have signed on the dotted line and should, in my view at least, enact legislation that would be along the lines of what you have in the Criminal Code of Canada as per this amendment, if this is passed by Parliament.
Mr. Evans: Between the years 1984, when we started, and 2004, when we expect all of our equipment to be in space, the space station program will cost $1.4 billion. That is over a 20-year period. Once the space station is up and operational, we will have some ongoing costs in maintaining our equipment and flying our astronauts. Those costs are estimated to be in the neighbourhood of $35 million annually. All of these funds are appropriated funds in the budget of the annual appropriations of the Canadian Space Agency. There are no special funds for the space station.
Senator Andreychuk: Clause 7(1) gives the minister authorities to receive information. It refers to "reasonable grounds," and "within any reasonable period." Will any of these terms be defined, or are they going to be left to the discretion of the minister absolutely?
[Translation]
Mr. Lefebvre: When one reads clause 7, which contains several subclauses, one can see that the minister must send a notice, as mentioned in subclause (1). He must also give a 7 days notice under subclause (3). He might have to apply before the court to obtain that information. It is interesting to note that under subclause (4), the judge can exercise a judiciary control over the jurisdiction the minister is seeking to seize.
[English]
I hope I have answered your question.
Senator Andreychuk: I realize that, if there is non-compliance, there will then be an application in court. In other words, we will have to wait and see what the body of law is under that. Up to that point, the minister on the first notice simply sets what is reasonable. Is that correct?
Mr. Roy: I think your question turns on the meaning of the words "reasonable grounds." These words are terms of art in law. They have been used for at least 100 years by courts and by officials. What they are trying to say is that if you have only suspicion with respect to something then you have not met the standard.
In law, it is a form of words to say: Is it probable that these documents or this information is going to be in the possession of these people? If you can satisfy someone that that is so, you can go and get that information or ask for it. But if you only suspect something like this, then you are on a fishing expedition and you cannot do that.
In this particular case, if the person is not going to give you the information, in spite of the fact that you think you have those reasonable grounds, then you have to go to a judge and satisfy that judge that you have those reasonable grounds. Again, suspicions and fishing expeditions are out when you are using these words.
Senator Andreychuk: I am not talking about judicial scrutiny and definitions of the last 100 years, but this will be a totally new case reaching beyond the Canadian borders. Are they going to be asking for information of things that happened outside of the Canadian borders?
Mr. Roy: As Senator Di Nino raised as part of his questions, this applies only within Canada's four corners. You cannot get a superior court judge or a federal court judge to issue an order that will have any force of law outside of the four corners of this country.
What you have here is an order that will be applicable in Canada and in Canada only. The words that are used, I would submit to you, will be interpreted by the courts in the way they have been interpreted for 100 years, because they are chosen for that very purpose. I would be confident that this is the meaning that would be given to these words.
Senator Andreychuk: You are confident that under clause 7(1) the minister would be only asking for information within Canada. Is that what you are saying?
Mr. Roy: If the minister wishes to ask for that information outside of Canada, for sure the minister can. However, that minister cannot get an order from a Canadian court that would be applicable elsewhere. However, clearly there is nothing stopping the minister from asking the partners -- and, indeed, the answer that was given to the question clearly indicated, I thought, that there would be that exchange of information between the partners.
However, in Canada, if you want an order from a judge you will have to satisfy that standard under (2), the standard being reasonable grounds to believe.
Senator Andreychuk: I have a couple of other legal questions, but I will wait on those.
I understand that it is mandatory or certainly has been the requirement that a certificate that the proposed legislation complies with the Charter of Rights and Freedoms has to be obtained before it is filed in Parliament. Am I correct? If so, has it been done in this case?
Mr. Roy: You are correct. Section 4.1 of the Department of Justice Act requires the Minister of Justice to be satisfied that the legislation is not in breach of the Constitution; I am talking about the Charter of Rights and Freedoms here. If the minister is of the opinion that the proposed legislation is in breach of the Charter, the minister must advise the house. No advice to that effect was given to the House of Commons in this instance.
Senator Grafstein: Has the Rafay case been argued before the Supreme Court of Canada?
Mr. Roy: I believe that it has been argued and that the court has asked for a rehearing.
Senator Grafstein: At the lower courts?
Mr. Roy: No, before the Supreme Court. The case was heard. The court said that it is not ready to render a judgment, that it wants to hear the case again, presumably in the New Year.
The Chairman: Honourable senators, we have had a fairly exhaustive questioning on the legal implications of the bill. May I ask if you are ready for the clause-by-clause study?
Senator Grafstein: I find myself once again in the same invidious position that I found myself before the Constitutional and Legal Affairs Committee when it was examining the extradition bill. You will recall that another senator and I had some concerns about how that legislation applied to the death penalty in Canada. I moved an amendment to the extradition bill, which amendment was widely debated and hotly debated in the Senate; it was subsequently defeated.
Since that time, Mr. Chairman -- and we have heard from the witness -- the subject matter of that bill in part, in a narrower context, has since been referred to the Supreme Court of Canada. That is Rafay, which arises out of a case in British Columbia. That case went to appeal. It has now gone to the Supreme Court of Canada. It has been argued. And we have just heard from the witness that it has been argued yet again, which means that the Supreme Court of Canada, just based on what the witness has said, is obviously interested in the narrow points of the Constitution. We are dealing with somewhat the same material, as it applies to this narrow question of extradition.
Mr. Chairman, I just raise that as an issue. I have no objection to the bill, save and except with respect to the narrow application of the extraterritorial aspects of the Criminal Code as it applies or might apply to the death penalty. We do have a further complication in this bill, a complication that we did not have in our other amendment. The complication relates to the fact that in this bill one of our partners is the EU. The EU has the same law of Canada, which is that it has no death penalty. As a result, the EU will refuse, as a question of law, not as a question of discretion, to extradite a perpetrator of an indictable offence, say, murder, if that extraditing state has the death penalty, without assurances that the death penalty will not be applied.
This is a slight rerun of that in a very different way. I see Mr. Roy nodding gently his agreement. Therefore, Mr. Chairman, if you want to proceed, I have no objection to the committee proceeding, but I will abstain from the vote.
The Chairman: Thank you, Senator Grafstein. I will proceed because I am told that it is important that this bill be approved before the end of the year so that we can participate in the program.
Senator Andreychuk: Mr. Chairman, we have covered some questions; however, I still have others related to this bill. I see no reason to proceed this evening if we are meeting tomorrow. It has always been helpful to me in the Constitutional and Legal Affairs Committee to hear the evidence.
I would like to reflect on the testimony, to assure myself that I understand what is being said and the implications of it. Does deferring clause-by-clause until tomorrow afternoon present any difficulty?
Senator Di Nino: I would agree, if we could get the blues and read the testimony. In that way, we can put some of the pieces together.
The Chairman: The witnesses have to go back to Montreal.
The problem is that tomorrow our committee has to deal with Bill S-3. If we postpone clause-by-clause today, it will affect the timing around Bill S-3. I do not know when the Senate is going to adjourn, but I suspect at the end of next week. I am in the hands of the committee.
All senators are aware of the fact, because we decided amongst ourselves, that we are dealing with Bill S-3 tomorrow. However, if honourable senators do not want to proceed, I am in your hands.
Senator Andreychuk: Mr. Chairman, I do not think it is an either/or.
The Chairman: It is not an either/or, in the sense that if we do not want to deal with Bill S-3 and we do not want to deal with our NATO report next week. Senator Andreychuk, the schedule is tight. As I said, I am in the hands of the committee.
Senator Corbin: Can we accommodate you by continuing the questioning now?
Senator Andreychuk: You could do it that way; however, I do not understand why we could not adjourn the clause-by-clause until tomorrow. I would not think that clause-by-clause will take an inordinate amount of time.
Senator Corbin: Would you expect these people to come back from Montreal for that other meeting?
Senator Andreychuk: No, of course not.
The Chairman: Then you will not be able to get answers to your questions because they will not be here.
Senator Andreychuk: I want to go over some of the evidence over night. If I have questions, I certainly know where Mr. Roy is. I want to reflect on it. Otherwise, you put me in a position of saying I am not ready to do that. As such. I would have to abstain, and I am not sure I need to abstain.
The Chairman: I am in the hands of the other members of the committee.
Senator Taylor: Mr. Chairman, I do not see any harm of adding business we have to do to the front end of the meeting tomorrow.
The Chairman: Do we have an agreement that we will deal with this first thing tomorrow when we meet?
Senator Corbin: Mr. Chairman, you should make sure that the notice of meeting says so.
The Chairman: Yes. I am sure that Ms Gravel will take care of that.
Senator Di Nino: On the NATO business, will we have an opportunity to take a look at some presentation by the staff before we go to the meeting next week?
The Chairman: Senator Di Nino, all I can tell you is that we are working very hard on it. You will be the first to know.
Senator Di Nino: Thank you very much, Mr. Chairman. It would be nice to get that before we meet.
The Chairman: Senator Andreychuk reminds me of a very important point. At the moment, we are trying to ensure that next Tuesday we will have the recommendations and the table of contents, the index, as a minimum. That is where we are presently.
Senator Di Nino: If we get them on Tuesday, do you expect us to deal with it?
The Chairman: No. The plan is to get them to you on Monday, if not before.
Mr. Evans: As I understand it, you will be going through the clause-by-clause tomorrow. If you wish, we are quite prepared to support that to make sure that all your questions are answered. If you wish, we will be back here.
Senator Corbin: I understood Senator Andreychuk to say that that would not be necessary.
The Chairman: The impression that I have is that that is not necessary.
I want to thank the witnesses for being so patient.
The committee adjourned.