Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence for April 3, 2008
OTTAWA, Thursday, April 3, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-210, An Act to amend the Criminal Code (suicide bombings), met this day at 10:52 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I see a quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill S-210. Our witness this morning, representing the Royal Canadian Mounted Police, is Assistant Commissioner Mike McDonell, National Security Criminal Investigations.
Welcome, Mr. McDonell.
[Translation]
Assistant Commissioner Mike McDonnell, National Security Criminal Investigations, Royal Canadian Mounted Police: I wish to begin by thanking the honourable senators for giving the RCMP this opportunity to speak on Bill S- 210.
[English]
I will try to briefly indicate, in general terms, my initial thoughts on what I believe may be useful background to your deliberations in relation to the RCMP mandate, which is for criminal matters only.
Arguably, the best-known examples of suicide bombings are the attacks of September 11, 2001, and the July 7 bombings of London's transportation system.
On January 15, 2006, Glyn Berry, a Canada diplomat, was killed in a suicide car bomb attack in Afghanistan. He had volunteered for duty in Afghanistan and was appointed Political Director of the Provincial Reconstruction Team for Foreign Affairs and International Trade Canada. Two other civilians were killed in that incident and 10 people were wounded, including three Canadian soldiers. Since that time, a number of Canadian soldiers have lost their lives by the same lethal means.
These examples show that Canadians have been the victims of suicide bombings. However, up to this point, those Canadians have been killed abroad.
Suicide bombings are attacks on people or property in which the perpetrators die as well. Like all terrorist attacks, suicide bombings provoke horror and outrage, put pressure on legitimate authorities and demonstrate the power of the groups that sponsor them. Suicide bombings also tend to be driven by strategic political objectives rather than religion, although the political message may be couched in religious terms.
Suicide bombings are difficult to guard against. A person wearing a bomb is far more dangerous and difficult to defend against than a time device left to explode in a public area. A human weapon system can make last-minute changes based on the ease of approach, the scarcity or density of people and any security measures in effect. Suicide bombers do not need an exit strategy; and the attacks are often carried out using devices that are easily made and small enough to fit in backpacks.
Internationally, suicide bombing is gaining popularity as a terrorist tactic. It has not been seen in Canada, and predictions about its domestic potential are therefore difficult to make. I will state that Canada is not immune to terrorism, and I do believe the possibility of a suicide bomb attack here is real. We do know that domestic radicalization is a reality in Canada. Therefore, the possibility of suicide bombing can never be ruled out.
Given the nature of the current terrorist threat, the best response to the threat and risk of suicide bombing continues to be close collaboration between the police, the Canadian Security Intelligence Service, CSIS, other Canadian and allied intelligence and law enforcement agencies, as well as our prosecution service, to work together to protect, prevent, detect, investigate and prosecute all criminal terrorist activities. Such collaboration permits a coordinated, integrated and intelligence-led approach to identify and stop such plans before they can take shape and be put into motion.
Bill S-210 situates suicide bombing within the definition of ``terrorist activity.'' It expresses public revulsion at the phenomenon of suicide bombing and seeks to prevent it by criminalizing it.
While the intent of this bill, so eloquently stated by Senator Grafstein and others, is laudable, the question is whether the current definition of terrorist activity or the general conspiracy provisions in the Criminal Code are not already broad enough to capture suicide bombings.
Suicide bombers rarely act alone. Thus, the conspiracy provisions of the Criminal Code, as well as the provisions relating to a party to an offence or aiding and betting an offence, depending on the circumstances, would all seem to have application. The anti-terrorism provisions of the Criminal Code relating to the facilitation or participation in terrorist activity would also apply.
While the existing anti-terrorism provisions of the Criminal Code may be applied to the planning or attempting of a suicide bombing, I would ask this committee to look into whether the existing penalties contained in the code are appropriate. The current maximum sentence permitted for facilitation is 14 years, and the penalty for participating in a terrorist group is only 10 years. In my opinion, anyone participating in or facilitating a suicide bombing should face a penalty similar to that for murder or attempted murder, which is life in prison.
Thus, the committee might want to consider whether in the proposed legislation there is a sufficient bridge to section 83.2, the commission of offence for terrorist group, where both participants and facilitators are liable to imprisonment for life.
The rationale for codifying terrorist offences was that terrorism poses a risk to the public that greatly exceeds the risk posed by other forms of criminality. Terrorist attacks have the potential to result in a catastrophic amount of casualties. This increased public risk justifies the offences and increased penalties associated with the Anti-terrorism Act.
Finally, there may be some societal value in legislating this by virtue of raising the public's consciousness about the nature of suicide attacks in the aid of terrorism. It distinguishes suicide bombings from other crimes.
The term ``suicide attack'' may be more appropriate than ``suicide bombing,'' because it is more refined in denoting the act of terror. The key point is whether the law, as it presently stands, is effective in preventing and prosecuting acts of terrorism. That is the true yardstick, not its rhetorical value.
Senator Oliver: I am interested in the suggested penalty sections in relation to these issues. You talk about aiding and abetting and about participants and facilitators. However, under conspiracy to do it, what if there was a situation where the RCMP, following certain information received from CSIS and others, went into an apartment and found a knapsack and other items for making homemade bombs and that is all you had? You laid a charge of conspiracy to commit and the person was convicted.
What maximum-type penalty do you think that person should receive in relation to one who was a facilitator or a participant, who actually had the knapsack on, had the bomb and was going to do it? Should not the conspiracy to commit be just as strong?
Mr. McDonell: That is my point, senator. Anyone participating in the event or working toward a terrorist bombing attack should be engaged with the penalties of section 83.2 of the Criminal Code, which is life imprisonment. The intent was to commit murder.
Senator Oliver: In other words, if the RCMP found a person in a room in an apartment building with all the materials needed to create the bomb, and perhaps a note or plan or a diagram saying when and where it was to take place, that would be the conspiracy. You are saying that if that person was convicted, that person should get a penalty similar to murder, is that right?
Mr. McDonell: If we could prove the intent was to commit murder, yes, I do.
Senator Oliver: Right now, what is the penalty for conspiracy under the code?
Mr. McDonell: Conspiracy falls to the substantive offence for which they were conspiring. Murder is codified. However, if it was conspiracy to traffic in a certain drug that had a 10-year penalty, then conspiracy would be a 10-year penalty. It marries to the substantive offence.
Senator Milne: You suggest increased penalties. I would doubt if there is anyway that we can open up section 83.2. Even though it is the same section of the Criminal Code, this bill is a proposed amendment to section 83.01. Although your suggestion is probably valid, I am not sure we could do that.
In the last sentences of your presentation you said, ``The key point is whether the law, as it presently stands, is effective in preventing and prosecuting acts of terrorism. In your opinion, is it?
This is what we need to know to determine whether this bill is needed.
Mr. McDonell: From the point of the law itself, I believe it is not. However, there is value in the law in making a statement to society as well as to our international partners that Canada recognizes the threat of terrorism, the gravity of it, and is addressing it with specific legislation.
Although I say that it is not needed, I also say that it denotes that the specific intent of the crime was terror, not just an ordinary criminal event. We can charge them under conspiracy to commit murder. There are a number of charges that would be considered with respect to committing murder using explosive devices. However, when we can prove that it was for the purpose of terrorism, I think it should be denoted and expressed to the public in those terms.
Senator Milne: Should it be called ``suicide bombing?''
Mr. McDonell: We believe it should be ``suicide attack.''
Senator Joyal: I appreciated your presentation. It is well balanced and covers various elements that had not been put to us since yesterday when we heard the representative from the Department of Justice Canada.
Your presentation answers some of the arguments that the Department of Justice put to us. Giving the example of biological suicide initiatives, you propose to replace the word ``bombing'' with ``attack.'' The key concept is that it is societal. Bombing is only one technique. It could be a bomb or a biological element. Someone could use biological means to cause damage to persons or property. Thank you for that suggestion; it is worthwhile.
The major point from your presentation is what I call deterrence by naming the crime. The legal argument does not answer the reality. The legal arguments we heard yesterday and that you cover in your presentation are that the code already covers the crime. The definition of terrorist activity is so wide that if there is a suicide bombing attack in Canada, we could resort to the general provision of section 83.01 and others in the Criminal Code.
No one quarrels with that. No one around this table would sustain that suicide bombing could not be prosecuted in Canada because we cannot resort to a provision of the existing code. I share that view.
The major point of this bill is not to cover a crime that is not covered in the Criminal Code. The way I read it, the objective of this proposal of Senator Grafstein is to pinpoint that very crime by insisting that this is something forbidden in the code and ensuring people are aware of it.
Why is this? As you stated in your presentation, there is training of the values of the people who come to the conclusion that they will kill themselves and others and damage property. You are right that most suicide bombers are part of what I call the trail of terrorism. The trail, as you stated yourself, stems from various sources.
By including suicide attacks in the definition of terrorism activity, we are not preventing the fight against terrorism. People are involved in training or trying to instill suicide bombing techniques in others by telling them that they will go to heaven if they kill themselves. We are signalling to these people that such teaching or training of others would be covered with this definition.
That is why I believe there is merit in Senator Grafstein's proposal. If I have to answer the question of whether it is covered in the existing code, I will say, yes, it is covered in the code. The RCMP or the Crown prosecutor would not be prevented from prosecuting someone involved in the perpetration of that crime.
There is value in identifying this element of terrorism. We should alert anyone in Canada who would have it in mind to train people to go to heaven by killing themselves and others and damaging property for the cause of X, Y, or Z political, religious or other reasons. That is why there is merit in this bill.
You mention it on page 4 of your report indirectly when you say, on the third line, ``such collaboration permits a coordinated, integrated and intelligence-led approach.'' When you say, ``intelligence-led approach,'' it is because there is a process for someone before enacting the crime. That process can be prevented as long as there is a tool in the Criminal Code for the act of someone to cause death or damages.
The way I read it, it would be helpful to the RCMP to have a provision such as that.
Mr. McDonell: I agree, senator. The aid for us would be underlining the gravity of the event but educating the public as well. We require the public's help. They are our eyes and ears. We have to engage them and educate them that the threat of terrorism is real. We do not want to be alarmist or create paranoia. However, we want to identify the crimes for what they are, and one means is to educate the public that we are a target.
Senator Joyal: We are a target. We want to signal clearly to the people who might want to preach suicide attacks as being a means to save their life that it is forbidden. That would be helpful. I may be badly informed or under a misconception of reading the reality of how people can come to a conclusion of killing themselves and provoking death and extensive damage for the sake of a greater good.
If you want to convince someone to kill themselves, then what else would be the greater good except that they will get a better life in another world? That seems to be the seed of the crime. The seed of the crime is teaching about it. If we have a provision in the code that states clearly that teaching suicide attacks is a crime, it is helpful for everyone at the front row of fighting terrorism. If we consider the youth in Toronto, someone is responsible for their teaching and training. It stems from them, or from the Internet, or any other groups that want to form a cell of terrorism.
That is why I do not see this provision as inimical or creating more problems for the RCMP. In fact, it would help the police forces and all those involved in preventing terrorism to signal that there is another way to do it.
Senator Stratton: Is there a question?
Senator Grafstein: It is up to the witness to answer the question.
Senator Stratton: I am asking: Is there a question?
Senator Joyal: I am asking if it would be helpful or not.
Senator Stratton: I realize that, but I am wondering when you will get to the question.
The Chair: Senator Stratton, we have sufficient time available this morning.
Senator Stratton: I realize that.
The Chair: I have been giving senators a bit more latitude.
Senator Stratton: I appreciate that. It is the repetition.
The Chair: If you want to repeat yourself when you put your questions, that will be fine.
Senator Stratton: Thank you.
Mr. McDonell: I believe there is value in denoting or codifying the suicide attacks.
Senator Milne: Would this addition to the Criminal Code allow you to track or charge people who were out there teaching the sort of thing that Senator Joyal has been talking about in advance of a possible future suicide attack? Would it let you get ahead of the curve?
Mr. McDonell: It would be a tool to use when we are ahead of the curve. If we could prove the intent was to teach and put people out there — to provide them with the knowledge and perhaps some of the tools required to conduct a suicide attack — that would be the charge that I would go for; express to the courts and the Canadian public exactly what the intent of the crime was.
Senator Milne: In effect, your amendment to the code, Senator Grafstein, is creating a new crime.
The Chair: Senator Grafstein is not a witness.
Senator Grafstein: Not yet. You will have a chance next week.
Senator Di Nino: I, too, would like to applaud you for giving us a couple of ideas. ``Suicide attack'' is a much better description than ``suicide bombing.'' I am surprised that all of our creative thinking has not been directed there because it is a much more expressive term. I hope our report will indicate that this suggestion has been supported by a number of committee members.
I also like your suggestion — if I understand it correctly — that we should revisit the penalties. Are you indicating to us in your statement that it would be appropriate to revisit that section of the Criminal Code for these types of offences?
Mr. McDonell: I am asking that consideration be given to how strong the bridge is between the definition of a suicide attack and the provision of the code that allows for life imprisonment for a terrorist activity. Then there is no grey area with respect to whether to charge the person for facilitation or participation. It defaults immediately to section 83.2; the part of the act that defines life imprisonment.
Senator Di Nino: Are you suggesting linking it that way so — if one was able to get a conviction — the penalties would be appropriate?
Mr. McDonell: Yes, that is correct.
Senator Di Nino: I think that is not a very good suggestion. Thank you for that.
I want to come back to the real heart of this issue. We are skating around it a little, and I will try to be more direct. Do you believe the current provisions of the Criminal Code are sufficient, carry enough weight and are appropriate for you to deal with those who commit attacks by suicide bombings or suicide attacks?
Mr. McDonell: Without coming off as ambiguous, on the three points my answers are as follows: Are they are sufficient? Yes. Do they carry enough weight? No. That is why we denote that it was a suicide attack. We spell it out for everyone that that was the nature and the intent of the crime. Thus, that would lead to your question of whether they are appropriate, to which my answer is, no. However, as for sufficient, I have enough tools, if you will, that I can present a person to the court and then attempt thereafter, in the presentation by the Crown, to get out the gravity of the event. This proposed amendment would give that title right at the start.
Senator Di Nino: Do you believe, as Senator Joyal suggests, that it would deter those who commit heinous crimes from committing them if that word exists? I do not know if that is a fair question, but could you answer it?
Mr. McDonell: No, I do not believe it would be a deterrent. I believe those working toward this type of attack cannot be deterred. Those proselytizing cannot be deterred.
Senator Di Nino: If this amendment is approved, would it help the police agencies across this country dealing with these types of crimes do a better job?
Mr. McDonell: Yes, it would. When I say that the people at the high end, if you will, who are teaching, cannot be deterred, there are those people in the grey area who could be deterred. From there, when and if an event came out, it would spell it out to all Canadians and help us engage Canadians in fighting the threat of terrorism by being our eyes and ears. Without creating paranoia, of course, but spell out that we were meant to be victims of a terrorism attack, plain and simple.
Senator Di Nino: There is a difference between a terrorism attack and a suicide bombing. That is not what we are talking about.
Mr. McDonell: However, to spell out the abhorrent nature of a suicide bombing for everyone, that is what the intent was, in clear language, of this bill.
Senator Di Nino: Are you saying that by using the term ``suicide bombings'' as opposed to ``terrorist attack,'' you are adding value? I thought ``terrorist attack'' would be strong enough.
Mr. McDonell: If you look at 9/11, it was a terrorism attack; a suicide attack. July 7, 2005, was a suicide attack; one had a bomb, one had a plane. Yes, they are both abhorrent. However, it is the nature and the fact that it is a trend that is increasing; it is increasing at the root of terrorism. We are now seeing it in Europe. I believe it will migrate here to Canada. If we spell out that it is against every societal value we have — which this would do in one small increment — I believe there is benefit to that.
Senator Stratton: I can agree with what you said about suicide bombing — using ``suicide attack'' instead. You hit on the heart of the issue, which is to point out to the public the seriousness of this. I do not disagree with that.
The worry I have is that once we open the door by adding suicide attack, what else should be added? While something may be defined under the current law, how do we prevent someone coming forward in the future and saying that we should add something else? As we said yesterday, it is like opening Pandora's Box.
There was an article in today's media that said that Air Canada was to be hit on two flights — one to Toronto and one to Montreal.
Senator Grafstein: There was a prosecution in England where one of the target planes was a Canadian plane coming to Canada.
Senator Stratton: Two planes were involved, a flight to Montreal and one to Toronto. It was leaked, and I believe 15 conspirators were arrested in London. If you are looking at the term ``suicide attack,'' why would you not also look at that crime?
There is a very serious likelihood that that type of attack will occur. It is not a suicide attack, but it is an attack. Therefore, in defining this, why would you not attach that as well? To me, it is just as serious — even more serious because we had the Air India event. That was a classic example. Why would we not identify something such as that here as well?
Mr. McDonell: With the Air India event, they did not accompany their luggage.
Senator Stratton: That is my point. If they were to set up bombs in England and put them on two flights to Canada, they could or could not be suicides.
Mr. McDonell: Those particular bombs, it is alleged, required a person to initiate them on the plane.
Senator Stratton: Yes, I know. What I am trying to get at here is what if you set up an attack by people? They had a remote control when the plane took off; bang, they hit the remote control and the bomb goes off. They put it in someone's luggage. That has happened before.
Mr. McDonell: That clearly falls within 83.2 of the act.
Senator Stratton: Then why would this not fall under the same thing?
Mr. McDonell: Yes, it could.
Senator Stratton: That is my point. Once we have opened this door and said ``suicide attack,'' then why would we not cover off the other potential attacks? They are just as serious.
Mr. McDonell: That comes back to my point, senator, that, yes, there are sufficient charges presently; it is just underlining this particular phenomena that is growing.
Senator Stratton: I do not disagree, but I feel we should seriously look at the other side of this.
These are not just suicide attacks, but attacks of another nature that could be done by remote control or whatever. I have flogged the horse enough.
The Chair: My question is really societal in nature, but listening to the questioners — and in particular, to Senator Stratton — I would take it from the general tenor of your remarks that you think there is a qualitative difference between suicide attacks and other terrorist bombings, not in law but in the nature of the person committing the offence.
Mr. McDonell: The latter are much more difficult to plan.
The Chair: Yes, arising in some sense out of a slightly different mindset, I would think.
Mr. McDonell: Yes, very much so.
The Chair: They are perhaps a little less purely criminal and a little more fanatical. Do you think that the people who might be persuaded by the proselytizers to whom you referred, or even any fraction of them, would be deterred by a clear statement as distinct from something that you just interpret by going into the thickets of the law — a clear statement in law that this activity is contrary to Canadian law and values? Is that the point of what we are trying to do here, if we proceed with this?
Mr. McDonell: The people at the high end — the proselytizers and true advocates of terror — cannot be deterred, nor do I believe that the person who has been turned into a suicide bomber can be deterred by the law.
As I see it, the power of this amendment would be on those who facilitate the movement of the people, the acquiring of the needed materials, the transportation to the site and the videoing of the event. Most events are videotaped by the perpetrating network to get the message out; they do not let it go in the hope that someone will capture it. In many instances, they will attempt to capture it on video. This may deter those people that are involved in the crime — sponsoring the crime, if you will.
The Chair: My second question has to do with your very interesting suggestion that the bill should perhaps refer to suicide attacks rather than suicide bombings. That would certainly respond to some of the remarks we heard yesterday from Justice Canada, in particular — that bombings would not include, for example, bioterrorism.
However, we also heard a very interesting — and thankfully, so far, hypothetical — scenario from Senator Grafstein in one of his questions about someone who might put on a suicide bomb vest and then just stand across the street from a synagogue and blow himself up as a statement. That would not be an attack, would it?
Mr. McDonell: I do not see that as much different from self-immolation.
Senator Oliver: That was the answer they gave yesterday.
The Chair: Should we be bearing in mind the possibility of self-immolation as we consider this bill? In plain language, would it be appropriate just to shift the wording to ``suicide attacks,'' or should we be considering language such as ``suicide bombings and all other suicide attacks?''
Mr. McDonell: I believe ``suicide attack'' would cover it because it would take us from the extreme of what we witnessed in 9/11 right down to that person on the sidewalk.
The Chair: Do you think it would?
Mr. McDonell: I believe it would, yes.
Senator Baker: The definition of a ``terrorist activity'' found in subsection 83.01(1)(a) of the Criminal Code references the international conventions that Canada has signed. In section 83.01(1)(a)(ix) there is reference to the implementation of the International Convention Concerning Terrorism Activities. The vehicle used to implement that convention into Canadian law is, as referenced in that section, the use of section 7 of the Criminal Code.
Section 7(3.72) is written to utilize section 431.2 of the Criminal Code as the enactment. Section 431.2 of the Criminal Code therefore is the vehicle for the implementation in domestic law of that international convention concerning terrorist activities.
I just wanted to put on the record, Madam Chair, that it was Senator Grafstein's point that section 431 of the Criminal Code only applies the constituent elements of terrorism in subsection 431.2(2), which says that someone who intentionally sets out to kill people or to institute substantial damage to an institution, building or public transport, or to cause substantial property damage and extensive economic loss.
Senator Grafstein: It refers to causing substantial property damage whether public or private that is likely to result in harm or causes serious interference or interruption of services. It is substantial.
Senator Baker: For the record, Senator Grafstein was pointing out that if someone were to place him or herself in front of a church, synagogue, mosque or whatever and blow themselves up, they would not be caught under section 431 of the Criminal Code. Neither would they be caught under the international convention. Neither would they be caught by section 7 of the Criminal Code.
That they would not be caught was admitted by the Department of Justice here yesterday. That would not be called a terrorist activity. However, Senator Grafstein said that surely they are sowing terror. That is what he meant by his comments.
Mr. McDonell: I am in agreement with what he said.
Senator Grafstein: Thank you, commissioner, for your paper and your testimony. It has been fair and balanced. We all have the same objective in mind, which is to deter this egregious conduct in Canada.
We want to inform the public and anyone contemplating or assisting in any way, shape or form that if they do this, they will be caught by the Criminal Code. That is the purpose that we all share; the question is how we come at this in a way the public understands.
I found your suggestion about suicide attacks interesting. It does not detract from what I am trying to do here by this bill, which is to target the activity that people understand. They understand the term ``suicide bombing''; no one has to explain it to the public. It is part of the common lingo now and the Criminal Code has taken the words and incorporated them so that the public can understand. Under the Criminal Code, we all understand that ignorance of the law is no defence. If we have include suicide bombing in the code, no one can be under any delusion. It is trying to clarify, without impeding, the process. That is the purpose of this bill.
I understand your suggestion would be even better. However, you do not have any objection to the use of the words ``suicide bombing''; you suggest that would be helpful.
Senator Oliver: His words were ``suicide attack.''
Senator Grafstein: Let me finish my sentence.
I take your evidence to say that adding the term ``suicide bombing'' is helpful, but it would be more helpful if we used the term ``suicide attacks.''
Mr. McDonell: Yes, senator.
Senator Grafstein: That is a fair comment. However, the public does not understand the former term as well as they understand the latter term. Would you accept that? Yes, they may understand the term ``suicide attacks,'' but they understand the term ``suicide bombing'' better.
Mr. McDonell: I do not know that I agree with that, senator, taking 9/11 for what it was.
Senator Grafstein: That is fair enough. Essentially, we are singing from the same hymn book.
Mr. McDonell: Yes, we are, but in a different key.
Senator Grafstein: Let me turn to the other point that was raised yesterday. Senator Baker was more precise about this.
Let me ask hypothetical questions since you are involved in investigations. I assume you know that there are sites on the Internet today that educate or inform people how to build a suicide bombing vest.
Mr. McDonell: That is correct.
Senator Grafstein: Are you familiar with that?
Mr. McDonell: Yes, I am.
Senator Grafstein: There are many of them, and they are growing.
Mr. McDonell: Yes, they are.
Senator Grafstein: I understand they have gone from a few thousand to many thousands around the world. It is part and parcel of the proliferation of information going through the Internet. The net has become a manufacturer of this stuff in a way. Could you prosecute if you saw that on the Internet?
Mr. McDonell: I could, if I could tie it beyond a reasonable doubt to a Canadian person or someone with a Canadian interest.
Senator Grafstein: Assume it is a Canadian server that is facilitating the distribution of a site that shows youth how to assemble their own suicide bombing jacket. Could you prosecute them?
Mr. McDonell: I would do everything within my authority and ability to bring that person to the courts.
Senator Grafstein: However, you would have difficulty without talking about suicide bombing in the Criminal Code.
Mr. McDonell: I would not have diffficulty bringing it before the courts. To go back to my point, there are sufficient laws to bring them before the courts.
Senator Grafstein: Would this be more helpful to you?
Mr. McDonell: To spell it clearly to the courts and the public, yes.
Senator Grafstein: Senator Baker referred to my next example. We were given a scenario by the Department of Justice Canada officials — perhaps you have a different view. A person was trained to do a suicide bombing attack, and he decided he did not want to do it. However, he still wanted to fulfil his mission and decided to commit suicide using a bomb in front of a mosque, synagogue or other public place where people would see it, but he would not hurt anyone else or the surroundings.
Would this provision help you deter this type of intentional action where intent would be only to sow fear in the public? He would not physically harm an individual or property, only sow fear. It is the essence of terrorism to sow fear in innocent people. This goes back to anarchism and is nothing new in the history of humankind. We were told by Department of Justice officials that sowing fear in the public is not a criminal offence.
Would this provision help?
Mr. McDonell: If the person's sole goal is to commit suicide and cause no harm to others, that is difficult.
Senator Grafstein: However, he does this with a bomb.
Mr. McDonell: If the person is caught before committing the act, there are provisions in the Criminal Code for being in possession of those elements.
Senator Grafstein: I am not talking about that.
Mr. McDonell: I believe that if they are committed to committing suicide, there is not much that serves as deterrence.
The Chair: If what they are doing is the final product of a planning process involving other people, you would still want to be able to get at the other people, would you not?
Mr. McDonell: Yes, most definitely.
The Chair: The suicide bomber is gone.
Mr. McDonell: The point is to use the charge against co-conspirators.
Senator Grafstein: My final point is that which the chair raised, and she put it better than I could. I agree with you that if someone is ideologically bent on teaching and spreading fanaticism through the use of innocent victims with the methodology of suicide bombing, 17 Criminal Codes would not deter that individual because he is receiving his calling from a higher or different place. I agree that once the person at the bottom, who is the delivery mechanism, is imbued with the same ideological fanaticism, it is very difficult to deter.
Is it possible, however, that someone on the road to fanaticism could be deterred by recognizing that this was a criminal act from day one? In other words, I accept the fact that the mentor, the mind, is not susceptible to this type of stuff. Frankly, their whole methodology is to evade this and to set up a new world ideological order. However, is it not fair to say that there is a long way to go from being an innocent person who is drawn into this web to becoming the ultimate vehicle for this type of suicide bombing?
Is there not some value in this provision to deter people on the way to becoming a fanatic, or their families or people who influence them?
Mr. McDonell: Yes, sir, I agree.
Senator Oliver: Specifically, what does Bill S-210 do that is not in the Criminal Code now? You have said — and Senator Joyal on a couple of occasions — that we know that the activities of a suicide attacker would be caught by section 83.01 of the Criminal Code, plus those who aid and abet and those who conspire to. In response to Senator Joyal, you said that what you like about Bill S-210 is that it is a way of educating the public, of seeking public assistance to aid you, and of making the public more aware.
Are educating the public, seeking public assistance and making the public more aware things that should be put into the Criminal Code? That relates back to my question of specifically what Bill S-210 does that is not already in the code.
Mr. McDonell: Senator, I am not an expert in the law. The Department of Justice is the entity to respond to what the utility of the law is. They are the technical experts, if you will. I believe that there is societal value in this legislation, and it clearly spells out the abhorrent nature of the crime. As Chief Vince Bevin previously indicated before a Senate committee, let us call it what it is. It is terrorism, and it is over and above normal criminality. We should pinpoint exactly the disgusting nature of the intent and of the act and express how it is against every societal value Canadians have.
Senator Oliver: Are you saying that that is not currently in the code to the extent to which you would like to see it?
Mr. McDonell: That is correct.
Senator Oliver: Thank you.
Senator Joyal: In your presentation, you dealt with the issue of penalties:
While the existing anti-terrorism provisions of the Criminal Code may be applied to the planning or attempting of a suicide bombing, I would ask this committee to look into whether the existing penalties contained in the code are appropriate. The current maximum sentence permitted for facilitation is 14 years, and the penalty for participating in a terrorist group is only 10 years. In my opinion, anyone participating in or facilitating a suicide bombing should face a penalty similar to that for murder or attempted murder, which is life in prison.
Thus, the committee might want to consider whether in the proposed legislation there is a sufficient bridge to section 83.2, the commission of offence for terrorist group, where both participants and facilitators are liable to imprisonment for life.
I have the Criminal Code in front of me, and I see that you have a copy too. Section 83.19 of the code deals with facilitating and states the following:
Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Do you have that?
Mr. McDonell: Yes, I do.
Senator Joyal: Senator Grafstein referred to section 431.2(2), entitled ``Explosive or other lethal device,'' which is at page 683 of my edition of the code. Do you have that, sir?
Mr. McDonell: Yes, I do.
Senator Joyal: It says the following:
Every one who delivers, places, discharges or detonates an explosive . . . with intent to cause death or serious bodily injury or with intent to cause extensive destruction . . . is guilty of an indictable offence and liable to imprisonment for life.
You are saying that if a person delivers an explosive to me, that person is liable to life imprisonment. However, you say that a person who facilitates terrorist activity would be liable to imprisonment for 14 years as it currently stands. A person who gives information on the best time and place to detonate a bomb in a crowd would incur a 14-year penalty and the person who delivers the explosive would be liable to life imprisonment. There are different levels of involvement, and you are proposing that the person who gives the information of where to be when, who facilitates the perpetration of the crime, should be equally as liable as the person who provides the explosives.
Is that what you have in mind in this proposal?
Mr. McDonell: Yes, in layman's terms it removes any wiggle room. If it is a suicide attack, it goes immediately to life imprisonment.
Senator Joyal: In other words, would you ask us to make an amendment to section 83.19 in relation to whatever is the technique?
Mr. McDonell: Again, I am not the technical expert. I believe I asked for consideration of the bridge. You might want to consider if there is a sufficient bridge in the proposed legislation to a life imprisonment so that there is no wiggle room between the penalties of 10 years or 14 years or whatever.
Senator Joyal: Is that the nuance that exists that you suggest we consider filling?
Mr. McDonell: That is correct.
Senator Joyal: Because you did not request it, you say that we should consider it.
Mr. McDonell: Humbly, I ask for that, yes.
Senator Joyal: That is covered in section 83.22, entitled ``Instructing to carry out terrorist activity.''
Senator Milne: Yes, it talks about direct or indirect instruction.
Senator Joyal: I will read it for the benefit of the record. Section 83.22(1) of the Criminal Code — if you want to go back to refer to it, again, in my edition it is page 150 — states the following:
Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.
``Instructs'' is different from giving information. There are different levels of involvement there. However, you suggest to us essentially that anyone involved in a suicide attack should be caught under the provisions of life imprisonment.
Mr. McDonell: That is correct.
Senator Joyal: On the basis that instruction is assimilated to the fact of delivering the explosive.
Mr. McDonell: Without the instruction there may not have been an event.
The Chair: Senator Joyal, do you have in hand or do you remember what the French version says where the English says ``instruct?'' Sometimes that is clearer. Often the French is clearer, and I do not have the French code before me.
Here it is. The Library of Parliament is unfailingly helpful. The French version is as follows:
[Translation]
Quiconque sciemment charge, directement ou non, une personne de se livrer à une activité terroriste.
[English]
Is the term ``charge'' broader? Does it address your point?
Senator Joyal: As I say, the code presently makes a distinction in degree of involvement. That is the way I read the rationale behind those sections. The action of delivering the explosive is assimilated to the highest level of responsibility. The act of instructing is at the same level. The facilitating might be as important as to cause the damages that the person seeks to cause, and what you say to us is that the facilitating should be caught in the same level of responsibility under the code.
To answer your proposal directly, for me to say a plain, ``yes'' to you, I would need to reflect more about the implications for other terrorist activity that might not be a suicide attack to be sure we maintain a coherence within the level of facilitation.
I cannot answer you directly today because it needs to go back through the other section, which is a very complex section of the code. It is a helpful suggestion for us to look into before we conclude this.
Senator Milne: Since it is already in the Criminal Code that one cannot do these sorts of things, and one cannot instruct people on how to do them, could you charge someone on the Internet if they were in Canada? Could you charge them if they were outside Canada somehow or another? Can you charge the Internet service provider?
Mr. McDonell: They have to have knowledge of the offence. Just to provide it to the public, we would have to prove beyond a reasonable doubt that they actually knew what was happening and aided and abetted.
Senator Milne: I am horrified that there are thousands of these websites out there, which is a terrifying thought in itself.
Except for the fact that Senator Grafstein's bill does not provide the increased penalties that you have suggested, it seems to me that the intent behind this bill is pretty well identical to the intent behind a bill that we studied here in this committee last fall, and that was the street racing bill. The idea behind the street racing bill, other than the increased penalties, was to label street racing, even though it was already covered under the Criminal Code; to point out society's firm opposition to street racing. This bill is almost identical in intent to that one.
Senator Oliver: That is a very good point.
Senator Grafstein: Exactly.
Senator Stratton: The more we get into this the more fascinating it becomes.
I would like to go back to the issue of whether the term ``suicide attack'' really does all that we would like it to do. My concern is that, for example, as one of our researchers has pointed out to me, there were two women with Down's syndrome who were loaded up with dynamite and sent into a crowd where they were remotely triggered and blew the place up. That is not a suicide bombing; that is a pure out-and-out terrorist attack.
These explosive devices that they are using in Afghanistan and Iraq that are buried are growing exponentially; as was in the media this morning, the numbers are increasing.
Senator Grafstein: They are becoming a weapon of choice.
Senator Stratton: Absolutely. They are becoming more sophisticated, and we, in defence, are throwing heavier and heavier armament protection up. We are seeing the same type of trend in these attacks. To even comprehend that they would use people with Down's syndrome, load them up with explosives and send them in, is beyond the ken. It is just unbelievable.
I still go back to that concern of whether this should be called ``suicide attack.'' Is there anything else? How would we cover off something such as this attack of using those women? That, to me, is worse than a suicide attack — far worse. I do not know if I am making my point well. I do not think I am.
The Chair: Yes, you are making your point.
Senator Stratton: How do we instill in the minds of people that they cannot do that type of thing, and how do we define it appropriately? That is really what I am getting at. Do you have an answer?
Mr. McDonell: I believe this is one small step in that direction. Again, I would charge them with the suicide attack, if that provision was there, albeit that the person they used to transport the vehicle had no knowledge that they would be committing suicide.
Senator Stratton: However, they were murdered; they were not committing suicide.
Mr. McDonell: To me, it is still a suicide attack. The point is that the person carried it and pulled the trigger — it would be different if it was a remote.
Senator Stratton: It could be a remote. You could load these people up and send them into a crowd; you hit the remote, and they are gone.
Mr. McDonell: There are examples of that internationally. Each case has to be studied on its own merit and dealt with, but to have the tools is important. Also, as was pointed out, we could spell out clearly with the law our utter revulsion with such acts.
Senator Stratton: I will consider this.
Senator Di Nino: Senator Grafstein referred to this as the weapon of choice. Unfortunately, I believe a term that I heard after 9/11 was that it was a ``brilliantly evil weapon'' that is nearly indefensible, other than the deterrant. That is why I went to the deterrent question.
With all due respect, I am not sure that this will do much to deter — coming back to my colleague, Senator Stratton's point — without linking this with others, not just those who commit themselves to be blown up for that purpose.
Is there any international experience? Have any other nations included this type of definition in their code or international statutes that we can look at to see if it has been of any value to the police forces and police agencies in other countries? Do you know of any?
Mr. McDonell: No, I do not know of any. However, I can take note of that question and get back to the committee.
Senator Di Nino: It would be interesting information to have.
Senator Milne: It seems to me that the point of the Criminal Code is to advise and inform Canadians what is and is not legal. Therefore, from that point of view, if its core purpose is to provide information, putting wording like this in it for Canadians would be a positive move.
Mr. McDonell: Again, I am not a technical expert, but I would agree with your statement.
Senator Grafstein: I want to go back to the question of suicide attack versus suicide bombing or whatever. I am a long-time student of the common law; I was brought up in a common-law tradition. Others who are lawyers here were brought up in a common-law tradition as well.
When you study the Criminal Code, you know that it evolved from the common law. It is a statutory enactment of a series of individual cases. It was based on experience, and it was a step at a time.
The common law, as it evolved into the Criminal Code, was not perfect. It was good; every step was another small step in the right direction. Would you accept the fact that this notion of suicide bombing, of itself per se, is a good step in the right direction?
Mr. McDonell: Yes, I accept that.
The Chair: Thank you very much, Mr. McDonell. It has been an extremely interesting session. We are very grateful to you. As you can tell, I think all senators have been really engaged by your comments and opinions and your whole appearance here. We are very grateful to you.
The committee adjourned.