Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 4 - Evidence - Meeting of May 28, 2012
OTTAWA, Monday, May 28, 2012
The Special Senate Committee on Anti-terrorism met this day at 1:15 p.m. to study Bill S-9, An Act to amend the Criminal Code.
Senator Hugh Segal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this is the seventh meeting of the Special Senate Committee on Anti-terrorism, held during the first session of the 41st Parliament of Canada.
Today, we are pleased to welcome the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada. Mr. Nicholson is joined by Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, and by Greg Koster, Lawyer.
Today, we begin our study on Bill S-9, the Nuclear Terrorism Act. This 10-clause bill seeks to introduce four new indictable offences to part II of the Criminal Code, which deals with offences against public order. Those four new offences prohibit certain activities in relation to nuclear or radioactive material, or nuclear or radioactive devices. This bill was introduced in the Senate of Canada on March 27 and is before us today for the first time.
The minister, who has other obligations this afternoon, is here until 1:45 p.m. Ms. Kane and Mr. Koster will be available to answer any questions the minister will not have had the time to go over.
Minister, we are delighted to have you with us. You may go ahead and tell us about the bill.
Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada, Department of Justice Canada: Thank you very much, Mr. Chair.
[English]
I am here to speak to you about Bill S-9, the nuclear terrorism bill.
In March 2012, in Seoul, Republic of Korea, world leaders including, our Prime Minister, joined together to state that:
Nuclear terrorism continues to be one of the most challenging threats to international security.
Our government could not agree more and that is why we have taken concrete steps with Bill S-9 to strengthen the way that Canadian criminal law deals with acts relating to nuclear terrorism. Specifically, Bill S-9 would amend the Criminal Code in order to implement the criminal law requirements of two international counterterrorism treaties: the Convention on the Physical Protection of Nuclear Material as amended in 2005, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
The bill creates new Criminal Code offences related to nuclear terrorism. The first offence is found at section 82.3 and is really two offences rolled in one provision.
This new provision would create an offence for possessing, using, transferring, exporting, importing, altering or disposing of nuclear material, radioactive material or a device with intent to cause death, serious bodily harm or substantial damage to property or the environment.
Section 82.3 would also criminalize committing an act against a nuclear facility or an act that causes serious interference with or serious disruption of its operations with intent to cause death, serious bodily harm or substantial damage to property or the environment.
An individual convicted under this new section is liable to life imprisonment.
The second offence is proposed under section 82.4. This amendment would first create an offence for using or altering nuclear material, radioactive material or a device with intent to compel a person, government or international organization to do or refrain from doing any act.
It would also create an offence for committing an act against a nuclear facility or an act that causes serious interference with or serious disruption of its operations, again with the intent to compel a person, government or international organization to do or refrain from doing any act.
Upon conviction, an offender would face a maximum of life imprisonment.
Third, proposed section 82.5 seeks to create an offence for the commission of an indictable offence with intent to obtain nuclear or radioactive material or a nuclear or radioactive device, or to obtain access to or control of a nuclear facility.
The punishment upon conviction would be up to a maximum term of life imprisonment.
The treaty that I just mentioned specifically requires that state parties criminalize the theft of nuclear material or the use of violence to obtain nuclear material. Instead of creating a long shopping list of new offences in the Criminal Code, the proposed new section 82.5 uses a general approach to capture what Canada sees as the objective of these sections of the treaty, namely, addressing situations where people commit crimes to get their hands on these materials.
Finally, Bill S-9 would create a specific offence prohibiting threats to commit any of the offences in the bill. Both treaties I referred to require state parties to criminalize the threats to commit any of the treaty offences. This proposed offence provides a maximum penalty of 14 years imprisonment.
Those four offences that I described make up the backbone of Bill S-9. I would now like to discuss the issue of jurisdiction with regards to these new provisions.
The committee is likely aware that it is common in international treaties of this nature to call upon states to assume extraterritorial adjudicative jurisdiction, which is a technical legal way of saying "providing our Canadian courts with the authority to try offences committed outside of Canada in certain situations. "
In this regard, clause 3 of the bill would do just that.
Furthermore, as you know, the majority of Criminal Code offences are prosecuted by the provinces. However, as is the case with existing terrorism offences in the Criminal Code, the bill would provide the Attorney General of Canada with concurrent prosecutorial authority over these offences.
Finally, I would like to make a minor point on the domestic environment in which these reforms would operate. First, nuclear material and facilities are highly regulated in Canada and the physical protection measures contemplated in the treaty amendments are already in place in our country. In addition, the proposed offences in Bill S-9 and their specific intent requirements are designed in such a way so as to be clear that lawful activity is not captured. For example, these offences do not deal with lawful medical procedures involving radiation, the lawful exchange of material or devices, or other existing lawful activity in the nuclear industry.
In conclusion, honourable senators, the implementation and ratification of these counterterrorism treaties through Bill S-9 sends a message to our friends and partners around the world that Canada takes nuclear security very seriously and that without a doubt, international collaboration yields positive results.
This bill is balanced, targeted and timely and I believe it merits the support of this committee. Thank you.
The Chair: Thank you very much, minister. I will begin with an initial question relating to clause 9 dealing with section 607 of the Criminal Code, relative to the double jeopardy rule not applying in some circumstances under the provisions of the law proposed before us.
Would either you or your officials assist us in understanding why, and explicitly, for what reason in terms of the purpose of this bill, we have decided to suspend the double jeopardy rule as it might relate to the jurisdiction of a foreign court or the provisions of sentencing that may have transpired there not to provide the general context of double jeopardy? Is that about the competence of foreign courts or the seriousness of the crimes anticipated in this bill? I think we would all benefit from any advice or technical counsel we could receive on that front.
Greg Koster, Counsel, Criminal Law Policy Section, Department of Justice Canada: Clause 9 is what we call a consequential amendment, and it is there because you will see the only part of that paragraph underlined is 3.1. When we proposed to amend section 7 of the Criminal Code, there is a renumbering that is taking place and so that amendment in clause 9 accounts for the renumbering only.
The Chair: To be clear, it does not change the double jeopardy rule, as might otherwise be included?
Mr. Koster: That is not a substantive change of law; it is a renumbering consequential change.
The Chair: The rule — to the extent it exists in the Criminal Code — continues to exist in that fashion after this renumbering has transpired?
Mr. Koster: Correct.
The Chair: My second question relates to the evidentiary base that you think Crown prosecutors might find themselves addressing, as in this example. If I were part of a green group I would be in favour of nuclear power, but there is a green group opposed to nuclear power. They decide to have a demonstration outside a nuclear plant, denying access for workers, some of whom are involved with the safety of the plant, as would be the case, and the monitoring of operations. They decide to make that impossible for a period of time. Whether they are operating under provincial law allowing a permit for that demonstration or not is another matter, but they choose to do so. Is there any risk that that kind of activity, which could be interpreted in extremis as getting in the way of safety-oriented individuals doing their jobs at a nuclear facility in Canada, could get in any way touched upon or covered by this legislation, or is the evidentiary base around intent so specific in the way it is laid out here that we would not have to worry about that obvious potential miscarriage of the bill's intent?
Mr. Koster: I believe that the provision in question would be the proposed offence at proposed section 82.4, and this is the compel offence. It has a very specific and subjective intent, and that is to compel the government, person or organization to do or not do something. There is also the general exception for lawful protest in the terrorism activity definition, so taken together, section 82.4 and the related offences proposed in this bill are targeting terrorist activity. They are not targeting lawful protest.
The Chair: The division between lawful protest and terrorist activity is, in your judgment, clear enough as to avoid any future confusion in prosecutorial discretion terms about the provisions of this bill in the circumstances of a normal and lawful demonstration?
Mr. Koster: I cannot speak to the nature of the prosecutorial discretion, but I can say that the intent of the provisions is to exclude lawful activity, lawful protest.
Senator Tkachuk: In a demonstration that prevents access by people who look after the safety and maintenance of the plant, could the prosecutors decide that because of the demonstration the safety of the plant is jeopardized and use this bill to prosecute those people?
Mr. Nicholson: It turns on the facts of each case. We do not get into hypothetical situations, but I think the bill is clear as to the kind of activity that it prohibits.
The Chair: Minister, I want to ask about the way in which this bill interacts with the provisions of, I think it was Bill C-10, where specific protections for Canadians who might be the victim of terrorist acts abroad were put into legislation so that Canadians would have a litigious right in the event they suffered damage. That bill was considered by this committee some time ago, and therefore has an element of extraterritoriality to it. At that time, the representations we had from the Department of Foreign Affairs were quite anxious about the extraterritoriality. As you may recall, some of the earlier drafts of that bill dealt with a specific list of countries that might be those that could be prosecuted because they had been deemed to be countries supporting terrorist activities.
I take it that with this bill and its content, you and your officials are comfortable that there are no extraterritoriality problems that would suggest themselves in the way prosecutions might be pursued relative to activities that might take place abroad but which would constitute an offence under our Criminal Code as amended by this legislation.
Mr. Nicholson: This bill is consistent with the two treaties that I mentioned. They are international treaties that have been signed on to by I think at least 50 states in one case and about 68 in the other. We are implementing a general consensus among like-minded countries worried about attacks on nuclear facilities or the criminal misuse of nuclear material and the threat of that, and the bill is very specific to that and that alone. It is in compliance with the two treaties that this country has signed on to.
Senator D. Smith: The basic intent of this I do not think I have problems with. A couple of questions I did ask some earlier witnesses involved hypothetical situations, but if it was purely like a criminal offence, if someone drove from Windsor over to Detroit to rob a bank, I do not think you would use this one. However, if someone from Somalia is going over there it may get sort of grey. If they are just joining the pirates to make money, can you use it for that, or does there have to be an ideological or religious fanaticism component for it to kick in?
I must say I am glad to see that NATO has finally got boats there trying to stop the pirates, but if someone wants to go back just to make money and join in a pirate group as opposed to religious fanaticism or jihad stuff, does this apply?
Mr. Nicholson: It is probably more specific to Bill S-7 as opposed to this bill. This bill is very circumspect in terms of what it deals with. It deals with threats to nuclear facilities or criminal activity in relation to nuclear material. It is confined to that and it does not go beyond that. As I say, it is consistent with two of the treaties that Canada has indicated an intention to comply with. It is very specific on that.
Anything to do with, in your example, everything from bank theft to piracy, while those activities are abhorrent and we are all against them, this bill does not deal with that.
Senator D. Smith: That was my thought. Thank you.
[Translation]
Senator Dallaire: Mr. Minister, thank you for coming to provide us with some clarifications.
Although you are here specifically to talk about Bill S-9 as a punitive tool for the illegal use of nuclear material in a context of terrorism, the signed treaties also prompt us to go beyond the requirements involved in this very specific need. In fact, the treaty partners are also required to take action beyond their borders in order to help countries in trying to eliminate access to nuclear elements, and especially under United Nations Security Council Resolution 1540.
[English]
The global initiative to combat nuclear terrorism, it is asking for us to go beyond taking care of the in-house requirements. Have you been advised or has this bill been brought in as part of an overarching look at Canada's position in regard to meeting the full breadth of these conventions and resolutions? Are you in a position to speak at all of that, or are you limited to the content of this bill?
Mr. Nicholson: I think you would probably be more helpfully directed toward the Minister of Foreign Affairs with respect to that. The Department of Justice's involvement in this is to come up with amendments to the Criminal Code, the four you have before you, which specifically address the request and the two treaties that I referred to. From the view of the Department of Justice, it is confined exactly to that. Any international efforts to curb nuclear terrorism, of course, we all have a stake in, but again, with respect to what is or is not being done, it is probably more closely associated with the Minister of Foreign Affairs.
With respect to the Department of Justice, our task and the task of the department, as you see before you, is specifically to address the Criminal Code provisions to comply with the treaty. I am satisfied that the amendments that you have before you now will bring Canada into compliance with the requests and the requirement that we have specific Criminal Code amendments dealing with the misuse of nuclear material.
Senator Dallaire: I speak to you as the minister within the cabinet of government. In that light, you are bringing a bill forward. These bills are not created in isolation; they are meeting specific requirements that have been established, as you have articulated. As an example, we have had brought to our attention a number of bills on anti-terrorism with specific elements to them.
The question is this: Is all this within a framework of capturing all the elements of terrorism, of which this one is part and that this bill is touching, or is your department being called upon to look at these things individually and assess them in that context?
Mr. Nicholson: One of the things that would be of interest to you, senator, is the CSIS 2009-10 Public Report on the continuing threat of terrorism.
Senator Dallaire: I have that, yes.
Mr. Nicholson: Again, we have responded to that. You have had before you a couple of anti-terrorism provisions that had expired: investigative hearings and recognizance. It is part of our continuing effort to fight crime, whether domestic or on an international scale. This bill is specific to this.
However, as was underlined in the CSIS Public Report of two years ago, there is still a continuing threat of terrorism in this country, and we have to take steps. Certainly this is a part of that and it should be looked at in that context.
Senator Dallaire: The chair raised the arena of nuclear energy, which is being dubbed by some as clean energy. I am the patron of the Pugwash movement, which has maybe a different perspective as to whether it is clean, particularly with the fissile material. There are treaties regarding the handling of fissile material, as well as the production of fissile material, which opens up the opportunities of such scenarios being played out.
This is a punitive instrument. Is there anything that you thought might have been considered in this bill to look at limiting the possibility of creating scenarios of having access to nuclear material that could fall into illegal hands — that is, a more preventative mode versus a purely punitive, reactive one?
Mr. Nicholson: This bill was designed to tackle the requirements under the two treaties that I mentioned that call upon countries to have specific criminal law provisions dealing with the misuse of or terrorist activity related to nuclear facilities or nuclear material.
If you have a look at the treaties, as I guess you will, you will see they are almost grocery lists of all the things, but they are very specific. They are saying the country should have not only general Criminal Code provisions. Obviously this kind of activity is, in and of itself, illegal right now in Canada in that you cannot start attacking a facility or threaten the public in any way without coming under the provisions of the Criminal Code. However, this bill specifically addresses the concerns that were raised, and they were legitimate concerns as well; we are not just talking about mischief when we are talking about someone stealing nuclear material for the purposes of possibly committing terrorist offences. This is very serious.
I understand the rationale that went into the thinking behind both those treaties. This bill specifically addresses those.
With respect to any regulations or oversight of the nuclear industry, of course the Minister of Natural Resources has responsibility for that. This is something we take seriously and is something Canada is very careful about in that regard. To comply with the requirements of the treaty, this is the bill that you have before you today.
The Chair: Could I allow other senators to ask before the minister departs? We could continue on round two with the officials.
Senator Tkachuk: Have most of the signatories complied in the same way that Canada has, by introducing legislation of this kind?
Mr. Nicholson: It is interesting you should ask that because that is something that I asked. There is a bill before the United States Congress right now that deals with this. Both Great Britain and Australia have legislation already in place that deals specifically with this subject.
The officials may be able to provide you with a bit of a grocery list of the different countries that have complied with it. However, again, in terms of countries that have legislation and a judicial system similar to our own, Britain and the United States have already moved on this, and the United States is in the process of having legislation.
What you have before you is a Canadian answer to this. If you look at Australia's, you will see that it does not look the same. Great Britain's does not either, for that matter. This is a Canadian response to that. I like what we have done, quite frankly. Rather than enumerate on all the different aspects of it, we have brought it together with more general provisions that target this kind of activity. I have been pleased with the way this has been drafted.
Again, other countries are moving in this direction. The exact list of countries and responses I am sure would be able to be provided to you.
Mr. Koster: It certainly could be provided to senators.
Senator Tkachuk: Are there any countries that have not acted on it that you are surprised at?
Mr. Nicholson: It is not exactly a legal question if they are surprised.
Senator Tkachuk: Would there be countries that you wish would not only have signed on but acted upon it?
The Chair: Ministers are allowed to be surprised; officials are allowed to take note.
Senator Tkachuk: It was a question for all three.
Mr. Nicholson: The United States Congress now has this before them. To the extent that we all move in this direction, this is a good example of international cooperation, frankly. When we get together with other countries and harmonize our laws on everything from this issue to child pornography, we are better off. This is definitely a step in the right direction, but the officials will get you the list of who has complied.
[Translation]
Senator Dagenais: Minister, I would like some clarifications. You talked about amendments to sections 82.3 to 82.6 of the bill that have to do with the powers of the Attorney General of Canada and of provincial prosecutors. Could you tell us more about that?
[English]
Mr. Nicholson: Thank you for asking that. This will give current jurisdictions to the provincial and the federal attorneys general. It is consistent with other terrorism provisions. In practical terms, there will be discussions between both levels of government as to who will take the prosecution. If the prosecution is taken by the federal government, it would be done by the Director of Public Prosecutions. There have been a number of well-known terrorist cases that have been prosecuted at the federal level.
This is sort of an exception to the general rule, which is that on Criminal Code offences, they are prosecuted by provincial Crown attorneys and under the jurisdiction of the provincial attorney general. This is concurrent but does not say who will get it; that arises from discussions that will take place when charges are laid.
The Chair: Minister, thank you very much for making yourself available. Good luck in Question Period in the other place. We are delighted your officials can stay and take further questions from us.
I have a question for officials, but I want to defer to any colleagues who wish to pursue any matter.
Senator Dallaire: The Australians, who do reflect at times a more hardline perspective on things, have not gone down the route of life sentences in their legislation, as I gather. I think the maximum is 20 years. I know we are compliant with the convention that says life sentence, but was there any consideration of other options than life sentence for those who are found to be in offence of this?
Mr. Koster: Thank you for the question, senator.
The Chair: I will add, if I may, a little more to that. Often the suspects in these circumstances are people who begin with a suicide bomb approach to the process whereby what happens after the event is of less significance than might be the case with a traditional bank robber break and enter.
Any quality of thinking the department had with respect to why this particular kind of sentence would be constructive would be of great value to the committee.
Mr. Koster: From what we can gather from the Australian legislation, you are correct, Senator Dallaire, in that the majority of the offences provide for punishment of 10 years, and I see one at 20 years.
The thinking of the department in correcting the offence penalties that we did was, first, to acknowledge the seriousness of the nature of the offences for which the penalty is provided for but also to make it in line with some of the similar offences in the terrorism provisions already in the code. I would note section 83.21, which is the instruction offence, has a life maximum; section 83.22, another life; section 83.27 is another life. Commission of a terrorist offence for a terrorist group is life. The suggestion that a life maximum would be appropriate for the proposed nuclear terrorism offences was to make it consistent with the other part of that code.
The Chair: Often in the pursuit of criminal conspiracies on these sorts of issues — and I will defer to Senator Dagenais here who understands it, having been a peace officer professionally for many years — the police will often try to find people on the periphery of a crime who have, perhaps, some involvement. They may not be the central figures or the principals, but there are incentives built into the system about those individuals being of assistance to the police in the building of an evidentiary-based charge against more serious participants for good and substantive reason. Some of those incentives relate to prosecutorial discretion. Some of them also relate to the nature of what they might be charged with because there are different penalties associated with different charges.
Am I to therefore conclude that the Department of Justice in its wisdom concluded that having those differentiations in terms of sentences for specific crimes created by this law would not be of any value to the police, and that other aspects of the normal police investigation process would have to be used in place of those? On that basis, therefore, consistency across the board for the specific offences was of greater value than providing nuances for the police to use in various investigative activities.
I am not suggesting that is a wrong decision, but I would be interested in knowing whether that was some of the thinking that influenced the way this particular bill was drafted.
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: As my colleague has indicated, the sentencing structure was developed based on the existing offences in the Criminal Code and those of like seriousness.
In the scenario you are referring to, if the police were to seek the cooperation of a person and wanted to suggest that other charges would be laid, there may be other charges already in the Criminal Code that could be used for that purpose that would not be the specific nuclear terrorism or even terrorism offences. For example, they could be theft, assault, uttering threats, and so on, that would not have this same level of sentence. However, these were structured because of the very seriousness and gravity of these offences without placing of paramountcy on that consideration. We want to ensure the penalties are appropriate for the seriousness of the offence.
Senator Dallaire: You are a government department. You have a policy branch within the Department of Justice.
Ms. Kane: Yes.
Senator Dallaire: I come back to where this bill situates itself within the context of anti-terrorism. I have gone through the reports and what the minister has referred to. Do you have, in fact, a framework within the policy branch that is bringing forward these bills such as individual stand-alones versus a more comprehensive omnibus capability that would cover these?
I want to go to the policy framework in which a department works and brings forward things like legislation on top of doing its job.
Ms. Kane: The Minister of Justice has stated on a number of occasions that is he is taking an approach of dealing with bills that are targeted and focused so that committees such as yours can look at those bills in depth rather than an enormous bill that has many aspects.
There are exceptions, obviously, but usually they begin as individual bills so that an in-depth study can be done. However, they are not looked at in isolation. Obviously, for this bill, as the minister indicated, its origins are for Canada to be able to comply with the two treaties. It is certainly connected to Canada's efforts to counter terrorism.
There are a number of initiatives in the government at every level to ensure that efforts are coordinated and they are not inconsistent with each other. One of many is a legislative forecast, and the ministers discuss that with the house leader every year. Those are discussions that they have at the political level so that they are connected and integrated to the greatest extent possible.
Senator Dallaire: It is because as we sit as a committee and get these things, we are often doing it in the isolation of the specific legislation without getting a feel for the overall exercise that you are trying to achieve. I believe that when you pull a minister forward, you are looking for the framework in which these things fit in, not just as meeting a convention because we signed a convention but because this is part of an overarching position, be it anti-terrorism or anti-nuclear as a project. None of that is reflected in any of the information. Do you not consider that to be part of your purview to present when you are introducing a bill? Would that be correct?
Ms. Kane: As officials, when we attend a committee with respect to a bill, we aim to confine ourselves to explaining the elements of the bill in the most neutral and objective way possible. When you have the advantage of the minister being present, those are appropriate questions for a minister of the Crown to answer.
Senator Dallaire: That is what I thought, too.
The Chair: Next is Senator Buth, and welcome to the committee.
Senator Buth: Thank you. My question was relating to putting this bill in the context of all the anti-terrorism legislation. I do not know if that is an appropriate question for the witnesses or if it should be left for the minister. I would like it to be put in the context of other anti-terrorism legislation that we have in Canada.
The Chair: Give us as factual an answer as possible on that.
Mr. Koster: In designing this bill, one of the things that we had particular focus on was to ensure that it was consistent and it worked within the existing terrorism scheme.
When you read the bill in isolation, you do not get a sense of how the definitions work with the existing law that was brought into place, principally in 2001 with Bill C-36. This bill proposes to amend the definition of terrorist activity, and, by doing so, you get to link in the age of consent, the one-year wiretap and reverse onus at bail.
There is some internal logic to how this bill is drafted and how it relates to existing terrorism provisions in the code.
The Chair: As a committee, I think we could ask our Senate research staff to assist us in putting all the pieces of legislation that relate to anti-terrorism together and connecting the dots around enforcement, evidentiary rules where they exist and the nature of the sentencing and the crimes as they are defined and have been added to by the new legislation before us. I think that would be of great value to the committee, and we would be delighted to share it with our colleagues in the department to reflect on it and see whether it is in any way close to what their own documents tell them on this issue.
Senator Buth: I think that would be helpful.
The Chair: I have a set of questions for Mr. Koster on the issue of the renumbering on which he was good enough to be helpful to us on round one.
As I have consulted with our own research material, I think there is an aspect that is renumbering, just as you say, and I am appreciative of your frankness in that respect. However, I believe, and I could be wrong, that the double jeopardy rule is described in a different way with respect to this piece of legislation than is the case with other pieces of legislation. If that is true, could you share with us why that would be? If it is not true, can you tell me why you think my understanding is less than complete with respect to the double jeopardy rule?
If I may say, the reason I want to have that issue fleshed out is because double jeopardy is one of those principles around the presumption of innocence that will produce significant angst about the provisions of this bill or any other bill where they have been dealt with without being explained in some detail, which is why I think it would be constructive if we could perhaps bell the cat in some fashion today or perhaps latterly.
Mr. Koster: I will be frank. I think it would be best if I undertake to provide that information subsequently.
The Chair: That would be fine. Are you able to do that in writing?
Mr. Koster: Certainly.
The Chair: Are there any other questions?
Senator Dallaire: We are talking about possession of materials that, I am trying to understand, are not purely nuclear in nature but have the capability to create a nuclear device. Is my understanding correct in that the bill covers it from that angle?
Mr. Koster: The bill covers nuclear material, radiation material and device. "Device " is a defined term as taken from the treaty itself.
Senator Dallaire: Right, so the listing of materials that could be in the creation of nuclear material and the updating of those materials with regard to being on a list of considered elements of a device that could either create or use nuclear material, the responsibility of maintaining that updated with the technology that is evolving is the responsibility not of you or your department, correct? That would be the responsibility of the ministry of security to provide you with that information so that it can be applied within the application of the law.
Mr. Koster: The definition of "nuclear material " was a definition that existed in the Criminal Code from the previous implementation of the original physical protection treaty, and that, as you can see, is a very scientific definition. I would submit it is an internationally agreed-upon definition as contained in the treaties as well. The definition of "device " includes a nuclear explosive device; a device that disperses reactive material; or a device that admits ionizing radiation capable of causing death, bodily harm, damage to property or environment. Those are the four corners of the definition.
Senator Dallaire: It does not touch on, for example, the delivery means. I am an ex-artillery officer, so I certainly do not think that someone is running around with an M109 gun that can deliver a tactical nuclear device. There is, however, a restricted list of materials that are in the making of a device that at one point becomes a device. I am not sure this covers that angle. The audit trail to get to a device simply covers it when suddenly you have a device. Is that correct?
Mr. Koster: It would be a fact-by-fact scenario where if the item you are talking about meets the requirements of the definition of a device, then you are in; if it does not, then you are out.
The Chair: To follow on Senator Dallaire's points, do you worry that, as we have seen in the past when there has been an embargo on certain kinds of devices being shipped to certain countries, people who have purported to ship auto parts have in fact been shipping pieces that when put together with other pieces from another shipment would become a detonator? Or we have found circumstances where steel parts are being essentially sent for the purposes of being used on trains but can in fact be used for the purpose of the assembly of fuselages and others.
Are you comfortable that the definitions in this bill are not so narrow as to make prosecution for the conspiracy to do the same problematic? I am thinking from the point of view of a creative defence lawyer who would say, "This is not a nuclear device, and who knows what it was going to be used for at the other end. " Obviously, we have the evidentiary burden to prove that we have reason to believe it was going to be assembled, probable cause and real evidence that it was going to be assembled into a device that would violate this law.
You are comfortable that the nature of the definitions that exist here for the various pieces of the four sides, as you described it, will not produce prosecutorial problems down the road, that they are sufficiently broad as to give the Crown, with the ability to use intent and evidence of intent, sufficient ground to proceed pursuant to the provisions of this law?
Mr. Koster: Senators, without giving my own opinion of comfort, I will refer you to the 2010 Ontario Court of Justice decision in Yadegari. I believe it is an unreported case, so we can provide a copy of the decision to the committee. This was a case where an individual was doing the activity that we are discussing here today in that he was looking to export a nuclear component to a country.
Senator Dallaire: Nuclear or just a piece?
Mr. Koster: It was a piece. It was a device.
Senator Dallaire: Not nuclear?
Mr. Koster: Not the stuff. He was prosecuted under the Export and Import Permits Act, the Nuclear Safety and Control Act and with some forgery offences as well. You can see that there are other offences that deal with situations that do not fall within the four corners of what we are talking about here.
Senator Dallaire: I am wondering whether or not the minister of security and his ministry was involved in the drafting of this to ensure that you are covering that angle correctly with the definition of "device, " or whether you have limited yourself to terminology that purely came out of the conventions. The restricted list of materials is in his purview; they are his responsibility.
You are right, there are these other laws that cover that, but the link between them and the term "device " here and not purely nuclear material could be an intimate one. With the penalties you are including here of life and so on, you would perhaps want to have that link tighter, or was that seen as not necessary?
Mr. Koster: Our goal was to stick as close as possible to the defined terms of the convention.
Senator Dallaire: Sometimes the opportunity to do more may have been there to expand that. I feel we were limiting the exercise here where maybe we could have used it to do more. That is the point I am trying to raise, whether that debate happened within your department as you looked at the application of the bill.
Ms. Kane: When legislation is being developed, other departments at the official level are consulted, and those concerns were not brought to our attention by those colleagues. I cannot say they turned their minds to the specific issue you raise, but we do have interdepartmental consultation on legislation that touches on the mandates of several ministers or for which other departments have an interest.
Senator Dallaire: There is a matrix input that is completed?
Ms. Kane: Yes.
The Chair: Thank you, senator. Let us assume that this bill passes in a reasonably timely way, largely or substantively not amended. I have no reason to make any assumptions about that, but for the purposes of procedures thereafter — it goes to the House of Commons, it is debated there, passed and becomes law — I take it that in the normal course of events, the interaction between officials of your department, public security, the RCMP, the Canada Border Services Agency and CSIS plus colleagues in the provincial system, municipal police forces, plus the criminal intelligence system, which embraces a whole bunch of police forces, will be fundamental to the actual execution of the intent of this law.
I know that in my days in provincial government, there would be a memorandum of enforcement issued to the Ontario Provincial Police with respect to any changes to specific laws that related to their jurisdiction. Can you share with us — and I am not looking for the content obviously — the process by which the purview of this law, its new breadth and range, would be shared with officials who in the end, as you have said in prior testimony this afternoon, will be responsible for its enforcement, investigations, gathering evidence as necessary or appropriate and preventing bad things from happening? Can you share with us any of the process that might follow upon the successful passage of this law with respect to how those other pieces connect?
Ms. Kane: With any federal statute for which our minister is responsible, it is brought to his attention, sometimes at various stages of passage and definitely upon Royal Assent. Notification is sent out to all the provincial and territorial ministers of justice, attorneys general and others, a wide distribution. In addition, the minister generally alerts his provincial colleagues with respect to the status of legislation at annual meetings, as do deputy ministers of justice, and they meet generally biannually; and at the officials level, we do the same thing, alert our provincial colleagues to how legislation is progressing in the house so they can start to do their preparatory steps, whether that is training of police, training of Crown, any adjustments that have to be made to forms and procedures and so on.
As you know, most legislation is like this with a date to be proclaimed into force. It will not come into force on Royal Assent so as to provide that opportunity to share that information and sometimes also to seek the views of others in terms of their readiness for implementation. Once the date is known, it would be communicated so that people involved in the implementation could definitely be ready.
The Chair: As you will know, Ms. Kane, many pieces of legislation are made real by the regulations that are drafted to operate under the provisions of the act. Do you anticipate this piece of legislation having to be a relatively regulation-rich process so that much specificity is added with respect to regulatory implications, or do you see the bill, because we have had this discussion about another bill no not so long ago, as being pretty self-evident in terms of content and relatively precise and not in need of a massive regulatory addition to give it the teeth on the ground that its intent would require?
Ms. Kane: Mr. Koster may wish to elaborate, but there is nothing in the particular bill that delegates authority to make regulations with respect to any of these offences. These are definitely stand-alone offences. There may be other regulatory-making powers that are related, but not with respect to this bill.
The Chair: As we now find in many areas of legislation, a level of technical acuity is required by prosecutorial authorities, police authorities and judicial authorities so as to understand the nature of evidence that might be presented before them. Do you anticipate there would be a tutorial process by the judicial institute or others who would ensure that that kind of scientific understanding of the pieces related to this sort of proposition is available to our judges so they are able to assess the evidence on a reasonably informed basis, or do you expect that that will be different and roll out differently in every province?
Ms. Kane: Generally the judiciary identifies issues for which they want to engage in awareness raising or training, and when they call upon the Department of Justice for information or to assist in those, we are happy to do so, but we leave in their hands what new legal issues they would like to take on.
The Chair: You role is responsive in that respect because of the independence of the judiciary and their need to make their own decision about how they want to proceed?
Ms. Kane: Yes.
Senator Dallaire: Going back to both research and weaponry, there is considerable research done in Canada on nuclear capabilities being used in a variety of arenas, and there is always this position of intent, intent of use of this. Without any of the regulations that we see in other legislation, and as an example in the National Defence Act in regards to military persons using nuclear devices in their transport, is there any way that this will put them at risk as they are doing their jobs, be it in research, environments and so on, to be interpreted as their intention to use as they are simply doing research or is there any requirement to qualify that side of the realm? Nuclear is not a finite entity and we have it all aced. Nuclear is in continuous research and improvement, as are the devices and the people who use it.
Is the word "intent " there covering or protecting those people who are doing that work from not maybe being perceived wrongly and even be brought in front of the process because of a perception to be proven to be intent?
Mr. Koster: Thank you for the question. First, the bill does contain a military exclusion clause, which is a standard language that is used in international treaties. I know it is a side issue, but it suggests intent, that this is not meant to capture lawful military activity.
Second, as you said, it does have very specific intent requirements. We have had comments today from the Minister of Justice about what this is truly directed at at its core, which is terrorist activity.
The next point is the operation of the general criminal law of the defence of lawful excuse. It is open to people charged with criminal offences to say, "I might theoretically fit within this crime, but I did have a lawful authority to do what I did, " and so that is a common law defence.
The last is Crown discretion. Would a Crown prosecutor truly wish to charge a member of the military for what he or she was doing in legitimate lawful activity?
Senator Dallaire: I qualify my last comment, if I may. We are talking terrorism. When we are talking terrorism, we are talking panic. We are talking not necessarily the most objective area of our social security envelope, and that is why it can be very readily overreacted to. That is why I feel that the term "intent " seemed to be either not strong enough to protect people who are actually engaged in it, or — and I am not a lawyer — within the judicial process that is strong enough to protect them. I do not know. That is what I am asking.
The Chair: I think what you get to is the challenge of the evidence of intent. What would a Crown attorney, what would a police officer determine is probable cause with respect to intent, sufficient to lay a charge? There is much precedent on that in other operations of the Criminal Code and judicial precedent as to what evidence of intent is acceptable in a court of law and what is not acceptable, and my suspicion is that law officers of the Crown would do their best to live within that framework to use the bill in as prophylactic a way as possible to keep bad things from happening, but I would defer to the officials who are actually legal scholars, and I am not.
Ms. Kane: You are correct. It is one thing for the police to determine whether they have sufficient grounds to lay the charge, but then the Crown has to prove every element of the offence, and for these offences that have specific intent, the Crown would have to prove that the person acted with the intent to do any one of these, so research or other activities that are not conducted with the intent to harm or cause death or compel a person to do something would not be captured.
Senator Dallaire: This is not Big Brother potentially limiting people from participating in research in these areas because the laws are so compelling and restrictive that they do not want to go down that route? This law does not create that atmosphere?
Ms. Kane: It should not, and we are quite confident that anyone engaged in research with respect to any sort of nuclear materials or issues are very closely regulated and there are guidelines for ethical research that would shape their research.
The Chair: It would be fair to say those people who might be watching this committee early one morning would come at this from the perspective of what will this law do to prevent bad things from happening. We understand that a law that makes changes to the Criminal Code is about defining the law, defining what the sentencing is and therefore giving the law officers, the Crown, the ability to charge, prosecute, penalize, et cetera, based on due process, but the average citizen would ask themselves: Will this bill make it easier or more effective in terms of how government prevents this kind of terrorist activity with respect to any nuclear material from happening in our country? My assumption would be that it is the conspiracy provisions of the Criminal Code and related to and talked about in this bill, which basically say that anyone who would be planning such an event, was found to be planning such an event, or criminal intelligence finds to be planning such an event, is also guilty of a criminal offence. That would allow the Crown and its law officers to act in a prophylactic way to keep something bad from happening.
While making sure that people who do bad things face due process and do the time necessary if they are found guilty, I think the vast majority of Canadians would want to make sure that this bill helps us keep them safe from these kinds of events. I would be interested if there is something other than the conspiracy provisions that make it easier for us to keep them safe. I assume the fact that we are in the process of supporting treaties that have been signed by many countries in the world, so there is a network working together to keep these things from happening, is one of those areas. Is there something here that I might be missing or that could help reassure us on that front?
Ms. Kane: As the minister noted, there are other provisions in the Criminal Code that, were something to happen now, could be relied on in order to prosecute people, but they would not have the specificity that these offences have, or they would not carry the same penalties and they would not have the benefit of the other provisions of the Criminal Code that apply to terrorism offences, such as reverse onus at bail, different parole rules, consecutive sentencing, and so on.
To the extent that a strengthened criminal regime is a deterrent, there may be a preventative aspect there, but there are all sorts of other activities at play in terms of investigating, as you noted, the planning of criminal activities that should be enhanced through this. It is an added tool for law enforcement.
The Chair: Will the provisions of structured recognizance — which were in Bill S-7, the bill we considered earlier, relative to there being a belief that someone is in possession of information about a prospective terrorist act and that person being compelled to give that information — will that apply with respect to an act of nuclear terrorism in the same way as it would have applied generically across the board through Bill S-7 for other acts of terrorism?
Mr. Koster: The proposals in Bill S-7, both the recognizance and the investigative hearing, will apply to the proposed offences in Bill S-9.
The Chair: Any other questions for our guests from the Department of Justice?
That being the case, may I thank you on behalf of the committee for your forthright and frank answers today. We will look forward to the further material you have undertaken to send to us, which will be of assistance to us in the study of this bill.
Senator Dallaire: I wish to concisely come back to the point of all these different bills coming at us. We are covering the bases that are presented to us, but there is no feeling, even within reading the report, the 2010 report, of what the delta of gaps are in the security with regard to terrorism or anti-terrorism. It seems to me that it is fine to go through and do our legislative duty; however, without that framework, it seems to me that, as a committee, we are a bit ill- equipped to get a warm, fuzzy feeling that we are going down the road that we feel maybe should be done expeditiously enough by the department or by the ministries with regard to anti-terrorism.
The Chair: I would say two things. First, you are underlining a concern this committee has already expressed in a previous gathering, looking at different legislation last year about the absence of an overall legislative real-time oversight of national security activities. That absence is part of what I think you are touching upon, for which I am grateful.
Second, I would point out that ever since May of 2011, a cabinet committee on national security has been created, which did not heretofore exist, and it would be my assumption that all these pieces of legislation that relate to this matter would have to be cleared through that committee before a department was given charge of taking it forward for our consideration.
That being said, we have asked our staff to do an overall assessment of how all the pieces of legislation come together. I would not want to prejudge what, as a committee, we should decide to do about that. I think we should get the assessment from our staff, circulate it, and then we should have a discussion about how we wish to proceed on that basis.
Senator Dallaire: If I may conclude my point. When we are being brought these things, it would seem to me that you situate the scenario of why this appears. It is not just because we have conventions that have been taking years to come in, but it is within a framework.
As an example, you have mentioned national security. I noticed there is a two-star general being posted there within that structure. Why not have them come in and set the scene for us to study a particular element of legislation in the future so that we know where we situate this?
The Chair: I will, senator, take that to the steering committee as an excellent suggestion for their consideration.
(The committee adjourned.)