Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 4 - Evidence - Meeting of June 4, 2012
OTTAWA, Monday, June 4, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-9, An Act to amend the Criminal Code, met this day at 1:30 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the eighth meeting of the Standing Senate Committee on Anti-terrorism in the first session of Canada's Forty-first Parliament.
In our first session this afternoon, we welcome Terry Jamieson, Vice-President, Technical Support Branch at the Canadian Nuclear Safety Commission. Mr. Jamieson is accompanied by Raoul Awad, Director General, Directorate of Safeguards and Security, and Jason K. Cameron, Director General, Strategic Planning Directorate.
We also welcome Marie-France Dagenais, Director General, Transportation of Dangerous Goods at Transport Canada, and David Lamarche, Chief, Technical Advisor.
Today we are continuing our examination of Bill S-9, the nuclear terrorism bill. This 10-clause bill seeks to introduce four new indictable offences to Part II of the Criminal Code. These four new offences prohibit certain activities in relation to nuclear or radioactive material or nuclear or radioactive devices in conformity with international treaties we have signed on proliferation and terrorism issues. This bill was introduced in the Senate of Canada on March 27, 2012.
Mr. Jamieson, I believe you have a brief opening statement. We will begin with you and then move to Ms. Dagenais.
Terry Jamieson, Vice-President, Technical Support Branch, Canadian Nuclear Safety Commission: Thank you, Mr. Chair and senators, for the invitation to appear before your committee today to discuss certain aspects of Bill S-9, the nuclear terrorism bill, and how they relate to the mandate of the Canadian Nuclear Safety Commission.
[Translation]
As Canada's sole nuclear regulator, the CNSC is responsible for maintaining the health, safety and security of Canadians and the environment as it relates to our nuclear industry, as well as for implementing Canada's international commitments on the peaceful use of nuclear energy. We regulate pursuant to the Nuclear Safety and Control Act and associated regulations.
[English]
The CNSC and its predecessor organization have been regulating nuclear activities for more than 65 years. Actives regulated cover the entire nuclear cycle from uranium mining and milling through to fuel fabrication, to nuclear facilities such as nuclear power plants and ultimately to waste management. Regulatory oversight also extends to nuclear substances and to commercial, medical, academic and research applications.
I will focus my brief comments today on describing how the CNSC ensures that the security of nuclear materials and of nuclear facilities is accomplished in Canada.
The prevention of nuclear terrorism relies on several elements, which start with international treaties and conventions. In Canada, the CNSC oversees the application of physical protection, threat assessment and security measures. While Bill S-9 deals with Criminal Code offences if terrorist activity is found, the work of the CNSC is meant to be preventive so that nuclear terrorism efforts will be detected and thwarted as early as possible.
The CNSC was involved in helping to develop the amendments to the Convention on the Physical Protection of Nuclear Material. The CNSC's Nuclear Security Regulations were updated in 2006 to reflect these changes.
These regulations set out prescriptive and detailed security measures to which our licensees must adhere. Physical protection requirements are based on a graded approach, which is commensurate with the risk level and the resulting consequences. For example, with respect to Category I and II nuclear materials and the facilities in which they are stored, the requirements range from site access controls to an on-site armed response force capable of intervention in case of intrusion, theft or sabotage. Employees and supervisors must fulfill mandatory requirements for awareness and education of security protocols, and those workers with access to nuclear materials must undergo background checks.
[Translation]
Licensees must develop and maintain contingency plans as well as practise regular emergency drills. In fact, the North American nuclear industry holds an annual competition in which tactical and physical skills of nuclear security protection officers are demonstrated, and Canadian teams are regularly among the winners.
[English]
The transport of Category I, II and III nuclear materials is covered by the Packaging and Transport of Nuclear Substances Regulations and requires a licence from the CNSC. In order to obtain such an approval, the licensees must submit a transport security plan that provides detailed information, including a threat assessment, the proposed security measures, the route and other arrangements along the route in accordance with the Nuclear Security Regulations. Security plans are required for all shipments, including those in transit through Canada.
Transport Canada's transportation of dangerous goods regulations also apply to any transport of nuclear substances. Consequently, if Bill S-9 is enacted and Canada ratifies the CPPNM, as well as the International Convention for the Suppression of Acts of Nuclear Terrorism, no additional work will be necessary to implement the physical protection measures among Canada's nuclear facility operators. These measures have already been in place for years.
Similarly, Canada's framework and policy for the import, export, control and safeguarding of nuclear material is transparent and comprehensive, to the extent that the CNSC is routinely consulted by regulators in other countries seeking to replicate certain aspects of the Canadian model.
[Translation]
The Nuclear Safety and Control Act does contain regulatory offence provisions and penalties, and indeed an individual was successfully prosecuted in 2010 for trying to ship nuclear-related dual-use devices, which could have been used for uranium enrichment, to Iran. The proposed provisions of Bill S-9 will supplement the NSCA for more serious offences and acts of nuclear terrorism.
[English]
In closing, the CNSC has been on the leading edge of implementing safety and security of our nuclear material inventory here in Canada, as well as controlling the movement of nuclear materials, both domestically and across our border. Consequently, the regulatory framework in Canada is already in a position to accommodate the provisions proposed in Bill S-9.
Thank you for the opportunity to appear before you today. I look forward to your questions.
[Translation]
Marie-France Dagenais, Director General, Transportation of Dangerous Goods, Transport Canada: I am here with Mr. Lamarche in part to answer questions.
[English]
The Transport Dangerous Goods Directorate, as Mr. Jamieson indicated, plays a secondary role. We do have regulations in place. Our main goal, though, under the Transportation of Dangerous Goods Act is to promote public safety. We deal with all dangerous goods, so that includes nuclear, but we deal with a lot of the classes of dangerous goods. We enacted some security components prior to the Olympics to make sure transport of all types of dangerous goods was done in a secure and safe manner.
I am here to answer any questions you have.
Senator Joyal: Mr. Jamieson, my first question was partly answered in your brief on page 5. That question is this: Were there previous incidents related either to the storage of nuclear material or to the transportation of nuclear materials? You have referred to an incident that happened in 2010. Were there other incidents in the past years, especially in the last 10 years, starting after 9/11, that might have happened in relation to the substance of the bill that we are dealing with today?
Mr. Jamieson: There have been a few incidents in Canada, including the recent Toronto 18. When the investigation was carried out, it was determined that that group had considered the Pickering nuclear power plant as a potential target. However, on the basis of the physical security arrangements that the licensee had put in place to be in conformance with our regulations, that group decided to pursue other targets that would not be as difficult.
Senator Joyal: You mentioned the status of the licensees. Who oversees the licensees to ensure that they comply with the various regulations? Who monitors them? Is it the Canadian Nuclear Safety Commission or is it done with the help of Transport Canada? Who is responsible for monitoring and following up on the implementation of the applicable regulations, which they are expected to respect in the course of their operations?
Mr. Jamieson: These requirements are made part of the operating licences, which the CNSC grants to the operators. As such, the operators have an absolute requirement to follow those measures that we set in place. We ensure that those measures are respected through our compliance and inspection teams. There are regular inspections at major facilities. For nuclear power plants and for Chalk River, we have on-site staff to supervise the operations of the licensees on a daily basis.
Senator Joyal: Do you regularly publish those reports? Who has access to those reports?
Mr. Jamieson: For the larger facilities, such as the nuclear power plant, we have annual reporting in front of our commission tribunal. Those proceedings are open to the public. The annual reports are also published on our website; and the proceedings of the tribunal are carried via Webcast. That information is fully available, including high-level information on security. Of course, we cannot get into a lot of detail on some of the security aspects in an open forum.
Senator Joyal: I hesitate to use the word "violation, " but I will put it in more neutral terms: In your recollection, what are the major non-respects of the regulations that apply to licensees that you have been informed of in the last 10 years?
Mr. Jamieson: If we are speaking of our security requirements, all of the licensees take these requirements very seriously. I am pleased to report there have been no major violations of our security requirements.
Senator Joyal: What you have noticed is of secondary importance; there was no significant non-compliance with the regulations. Is that right?
Mr. Jamieson: Absolutely. In fact, for our major licensees, the security teams are typically made up of ex-police and military force officials, who are professionals in their fields.
Senator Joyal: My next question is about the substance of the bill. You concluded at page 5 of your brief, and I quote: "The regulatory framework in Canada is already in a position to accommodate the provisions proposed in Bill S-9. "
The bill creates two main offences: possessing and using radioactive devices to commit an act against a nuclear facility. The bill does not sanction the initiative that someone would try to take by using a dirty bomb or a bomb that would use some nuclear materials or could cause damage with radioactive material.
Do you think that the bill should contain such a formal recognition that someone would try to put together that type of bomb and should be formally sanctioned? Should the Canadian government send a signal to the field that anyone who tries to do that would be formally responsible for a criminal offence?
Mr. Jamieson: In fact, there are provisions under the Nuclear Safety and Control Act that allow for the prosecution of regulatory offences. One of those includes attempts by persons to acquire nuclear material for either a bomb or another weapon, such as a dirty weapon. Those are punishable by various terms up to approximately 10 years.
Senator Joyal: That is in your pool of violations of regulations, but it is not in the Criminal Code, per se. Is that right?
Mr. Jamieson: For questions about the Criminal Code, I would have to put those over to someone in Justice Canada; but if you would like an answer now, I can ask Ms. Lisa Thiele.
Senator Joyal: You know the Belfer report, which I have in front of me. It was published in May 2011 by a group of experts from the United States and Russia. They concluded in one of their substantial analyses that this is an important element in the prevention of nuclear terrorism. As we have seen from an initiative to try to ship nuclear-related dual- use devices to Iran, for instance, that does exist. It is not a scenario from a science fiction movie.
It is very important that we recognize such potential formally in the Criminal Code, as much as we would with Bill S-9, which I support without hesitation. The bill should signal that specific element because it is identified by the experts as something real and something that they make strong recommendations about.
I look as well to Transport Canada because they would be concerned about this. The bill should reflect those kinds of offences in clear and specific terms, as much as it reflects possessing or trying to use nuclear materials. The making of a bomb should be a preoccupation to anyone who deals with nuclear materials.
Mr. Jamieson: Certainly, the CNSC would view the adoption of such provisions as being supportive in efforts to further the international regime for the suppression of acts of nuclear terrorism. I would agree with you, sir.
Senator Joyal: I have raised the issue with some colleagues who have said that this is not recognized, per se, in the convention that we are implementing through this bill. As I said, the bill is totally welcome and should have been done some time earlier.
However, it seems that a real danger exists. We know that someone tried to ship devices to Iran. An expert could have used those devices to make a bomb using nuclear materials. That should be a preoccupation for you, certainly because it is part of your responsibility. I am sure that if it were to happen, you would be the first one questioned about it: Where did they get the materials? How were they able to do that without anyone detecting it?
Mr. Jamieson: Certainly, that is a concern of the Canadian Nuclear Safety Commission. The global structure for detection and prevention of such events is extensive and complete. We regularly work with our international and domestic partners to achieve the goals to which you are referring.
Senator Joyal: What kind of relationship do you have with the United States in terms of joint efforts to ensure that our legal protection level is comparable to what they have in the United States?
Mr. Jamieson: We work very closely with our U.S. partners. Certainly, the large border that we share makes such cooperation of vital importance to both Canada and the U.S. We have a number of bilateral and multilateral arrangements in place that facilitate such cooperation. We routinely, on a daily basis, work with officials at the U.S. Nuclear Regulatory Commission, for example.
Senator Joyal: Let me be more specific. If an incident were to happen in Canada, would you inform them that something has happened, in the nature of Iran, for instance? I would think that if something like that were to happen in Canada, it could happen in the U.S. This is important in terms of the person operating within a network of people. The U.S. might be investigating information on their side of the border that could be helpful to Canada when prosecuting such an individual to ensure that we have the overall picture.
Do you have such protocols or agreements? If so, can you explain them to us?
Mr. Jamieson: Yes, indeed, there are many protocols in place that would allow for and in fact require such notification on the part of both the U.S. and ourselves, whether for a security incident or an accident at a nuclear facility.
You referred to Yadegari, the individual who was prosecuted in 2010. In fact, Yadegari originally attempted to procure the so-called pressure transducers in the U.S. Canada was alerted by the Canada Border Services Agency of that initial attempt, and that resulted in the international system being activated to further prevent actions on the part of that individual.
[Translation]
The Chair: I will turn the floor over to Senator Boisvenu, to whom we offer a warm welcome.
Senator Boisvenu: Thank you, Mr. Chair, and thanks to our guests. I am interested in one clause in the bill and I would like to get some clarification on it: clause 82.7, where it says that clauses 82.3 and 82.6 do not apply to an act that is committed during an armed conflict.
Canada and the United States are engaged in an armed conflict in Iraq. We are, in a way, experiencing the aftermath of the conflict after the departure of Saddam Hussein. How is the individual who tried to transfer nuclear materials to Iran affected by this bill, if armed conflicts are excluded?
[English]
Mr. Jamieson: First, as a point of clarification, what Mr. Yadegari attempted to export to Iran was not nuclear material under the strict definition. The pressure transducers actually fall into a class of material known as dual-use items, which have both a conventional usage and a usage for enriching uranium. As such, the dual-use materials are highly controlled.
[Translation]
Senator Boisvenu: I could phrase the question differently. In an armed conflict, would an individual who procured radioactive materials in Canada and tried to send them to a country where there is a conflict enjoy the benefit of this exclusion or not?
Raoul Awad, Director General, Directorate of Safeguards and Security, Canadian Nuclear Safety Commission: Any export of radioactive sources or nuclear materials is subject to our approval, by granting an export licence. When there is a conflict in a country, you have to have an export licence, or permit, to send such materials. Export licences are ordinarily connected with the use, so there have to be assurances of peaceful use.
In order to export radioactive materials or radioactive sources, there has to be an agreement, called the Nuclear Cooperation Agreement, between the two countries; that is the guarantee that it is solely for peaceful use.
Senator Boisvenu: I have a corollary. An individual who transferred such products to a country in conflict would not be prosecuted under this act; it would be under different regulations, is that correct?
Mr. Awad: That is a hypothetical question, because you cannot export from Canada in that case.
Senator Boisvenu: That is a crime, today?
Mr. Awad: If there is no arrangement for radioactive sources, it is considered to be an act contrary to the Export Control Regulations.
Senator Boisvenu: Is it an act of terrorism?
Mr. Awad: No, under the Nuclear Safety Act, it is an offence, or it is non-compliance with our regulations.
Senator Boisvenu: Does this exclusion in some way weaken the bill?
Mr. Awad: You are talking about the military exclusion?
Senator Boisvenu: Yes.
Mr. Awad: The military exclusion is present in both conventions; it is not just in Canada.
Senator Boisvenu: Canada exports CANDU reactors, as you are certainly aware; is this act going to apply to the sale of reactors to foreign countries as well? In the sense that we will have the same, quote, controls, if the reactor is used for military purposes, essentially. Is my question sufficiently clear?
M. Awad: Yes. Exporting nuclear technology in Canada is subject to the Nuclear Cooperation Agreements. I will cite the example of South Korea or China: before the CANDU reactors were exported, a Nuclear Cooperation Agreement was signed between the two countries. The document has three aspects. There are assurances of the peaceful use of nuclear energy in the document. That is done with the IAEA, which applies guarantees in countries that import nuclear technology from Canada.
Senator Boisvenu: Thank you.
Senator Dallaire: Pakistan has not complied with the rules and has used nuclear materials to manufacture weapons. How can we make sure that the countries that make the purchases do not use the nuclear materials sold by Canada to manufacture weapons?
Mr. Awad: Since that incident, Canada's export policy has changed completely. From that point forward, the Nuclear Non-Proliferation Treaty has been applied in Canada by the CNSC. Nothing can be exported without an agreement and guarantees of the peaceful use of the nuclear materials.
Senator Dallaire: What methodology is applied in order to monitor it?
Mr. Awad: There is a two-part method. First, the equipment and facilities are under the oversight of the International Atomic Energy Agency. The IAEA has to do inspections. Second, we ourselves monitor the quantities of nuclear materials. We do an annual reconciliation of what has been used, what has been exported, and so on. We monitor it in full.
[English]
Senator Dallaire: Is the IEA responsible for ensuring that the fissile material resulting from these reactors that we have provided to or sold to these countries is secure also?
Mr. Awad: Exactly. The IEA will do the inspection and will do the reconciliation with the record. For the spent fuel, for example, according to the burn-up rate, we know exactly how much nuclear material they should have. We receive a report from this country and reconcile that with our report.
Senator Dallaire: Let me get to the threat assessment. You have, with great confidence, indicated that you have the security situation in hand and that this bill does not require any new engagements of any resources to achieve it because you have achieved it. It is meeting the threat assessment as seen today. However, there is enormous amount of discussion and even pressure from various groups, from even different environmental groups, that nuclear power is a clean material and that we should be building a whole whack of nuclear power plants. What is your capacity of handling more significant not only plants but fissile material and their long-term security? If we have a movement that is anti-nuclear plant, what is your capability of handling that type of threat that could go to an extreme of even wanting to endanger a facility?
Mr. Jamieson: I believe your question has two parts, and one is on the organizational capacity of the Canadian Nuclear Safety Commission. I am pleased to report that, with the staff level of approximately 840, we are adequately resourced for current operations and for the anticipated expansion of the nuclear industry in Canada, in particular for our security and safeguards organization led by Mr. Awad. We have approximately 60 full-time security and safeguard professionals, and they are supplemented by our on-site inspection staff.
On your question regarding the growing activities of environmental organizations, we have a number of mechanisms that exist under the Nuclear Safety and Control Act. We can issue orders to individuals that may be attempting to barricade access to a plant or otherwise impede the safe operations of a plant. That would simply be local police that we would call in at that point to clear roads and ensure that any environmental process never reached the point of endangering the safe operations of one of the facilities that we regulate.
Senator Dallaire: Coming back to fissile material, you speak of arms security and so on. Do you have an armed capability within the lines of your different plants?
Mr. Jamieson: Yes. Each of the nuclear power plants and the Chalk River facility have on-site armed response forces. These are highly trained individuals with special equipment such as rifles and guns and other tactical equipment to manage any threat to one of those facilities.
Senator Dallaire: How many do you have?
Mr. Jamieson: They are not Canadian Nuclear Safety Commission staff, but staff of the licensees. I would ask Mr. Awad to give an example of the complement size at the facilities.
Mr. Awad: It depends on how the site is structured. There are enough security guards that can guarantee the security of the site.
Senator Dallaire: Do you hire armed security companies to do that, or are they extensions of the RCMP? What about the selection and the training of these people to ensure that they have not been infiltrated by any possible terrorist organization? I realize that the documentation says that you do the normal police checks and so on, but so do the Boy Scouts. We are thinking a bit more than that. What do you have?
Mr. Jamieson: In fact, these on-site response forces are licensee personnel, so they are not outside security companies, to be specific in response to your question.
They are highly trained. We have regulatory documents in place, such as Bill S-298, which governs the medical and psychological and fitness requirements for each of these nuclear response officers. They are highly trained and highly practised, as I mentioned in my opening notes. In these North American competitions, teams from Bruce Power or Hydro-Québec take part and routinely are the winners of these competitions. They are highly trained staff, very well equipped and very well exercised.
Senator Dallaire: How many times a year do they use their weapons on practice?
Mr. Jamieson: Certainly, each of the sites has a fixed practice schedule. I think perhaps every three to six months the staff are required to re-qualify in their proficiencies with the two types of weapon, the long guns and the handguns.
Senator Dallaire: Can you confirm that for us?
Mr. Jamieson: We will take an undertaking to confirm that for you.
Senator Dallaire: In the fissile material, ultimately with the increased capacity of our plants more and more wanting to go that route, what is the evolution of the security of fissile material? There is the environmental one but also necessarily there are your installations where fissile material is being held. Is there a plan to build any increased capacity to handle that?
Mr. Jamieson: Currently the spent fuel discharge from CANDU reactors is stored on each of the sites, in below- grade water-filled pools through a certain cooling period, and then beyond that they are placed into above-ground containers where they are stored. There is adequate capacity at site for the next few decades to store the fuel, although as a national endeavour the Nuclear Waste Management Organization is now going through the process of determining communities that may be willing to host a national nuclear used fuel storage site.
[Translation]
Senator Dallaire: My final questions relate to the transport of these materials among the various organizations: hospitals, research centres, and so on. Are the transport vehicles monitored by armed forces? Do you have a threat analysis before transporting these materials?
Ms. Dagenais: The Transportation of Dangerous Goods Act says that the product must be classified and placed in the right container. It has to be labelled and that is how it is transported, but there is nothing to say that it has to be transported with an armed escort or other security measures. Perhaps the CNSC does that.
The Chair: Is the itinerary planned in advance? Are the police or security forces in the region notified?
Senator Joyal: As happened on the St. Lawrence River.
The Chair: As was done on the St. Lawrence River for the famous garbage shipment, for example.
[English]
Mr. Jamieson: I will start by giving some details of the transport of highly enriched uranium, which would be the most protected of our shipments.
There are armed guards along the route. The route is definitely planned in advance and the local security forces are engaged in all aspects of the transport.
Senator Dallaire: That is fine, but who does the threat assessment and who has the overarching responsibility of analyzing that threat assessment and engaging the security requirement?
Mr. Jamieson: I will come back to one of your earlier comments about the threat assessment. The Canadian Nuclear Safety Commission works with our partners in CSIS and the Integrated Threat Assessment Centre. Our design basis threat is routinely updated every three to five years and that is based on the current and evolving threats as determined by CSIS. The full spectrum of threats is taken into account, including the domestic terrorist organizations, the so- called insider threat, et cetera.
Senator Tkachuk: I will follow up on the previous question in relation to the oversight of the nuclear facilities.
I would think you work with CSIS, Public Safety Canada, the RCMP and maybe other agencies to oversee nuclear plants. Do you have protocols or agreements in place? Do you get together at meetings? How does that work?
Mr. Jamieson: The CNSC works with a number of other governmental organizations. Public Safety Canada is one of them. There is also Health Canada, Environment Canada, Transport Canada, and the Department of Fisheries and Oceans. For most of those organizations we have various memoranda of understanding and memoranda of agreements in place. We try as much as possible to harmonize our operations so there is not a duplication of effort required by our licensees.
Senator Tkachuk: Are there any deterrents to cooperation, or do you have any issues that need to be resolved that are not resolved as yet?
Mr. Jamieson: I would say there are no major deterrents. We work quite closely in cooperation and almost harmoniously with our federal partners.
The Chair: I take it that you would, at various points in your cooperative frame with these other agencies, do training exercises and other circumstances that would allow you to make sure that the linkages are working at a speed and intensity that meet your own very high standards.
Mr. Jamieson: Absolutely; the Canadian Nuclear Safety Commission would certainly participate in all government- level exercises. As well, we have a number of sector-specific exercises. The most recent of those was a so-called RadEx exercise in Toronto that looked at the ability of the local forces within Toronto to deal with a radiological incident. Health Canada, CNSC and other federal partners were there to ensure that all aspects of the operations had dovetailed.
Senator Day: My first question is technical but I would like to put it on the record. Bill S-9, as I understand it, is primarily creating four new offences under the Criminal Code, apart from some definition changes. That is highlighted in clause 2, where it gives the heading "Criminal Code " and subclause 2(2) talks about section 2 of the Criminal Code being replaced.
Everything is fine. We understand where this act is intended to direct the interpreter and the reader. However, then the rest of Bill S-9 refers, as you can see in subclause (2), to "Section 2 of the Act is amended. " What act are we talking about? That was my concern when I read this. If it refers to the Criminal Code in subclause 2(1) then subclause 2(2) is referring to something different from the Criminal Code, but my understanding is that it is the Criminal Code.
Is that your understanding as well?
Mr. Jamieson: I am not the best placed government official to comment on that. You would have to put that question back to the Department of Justice.
Senator Day: Could we check on that? It is at best confusing, and at worst I do not understand what it means.
The Chair: At the worst it is vague. We will get clarity from Justice for you, Senator Day.
Senator Day: Thank you. They would be helpful.
Senator Joyal: I will attempt to propose an answer. If you have the act in front of you and you look at clause 2, the title of clause 2 is "Criminal Code. "
Senator Day: I do.
Senator Joyal: If it is Criminal Code, it is relating to the Criminal Code. The intention might be another act but the title is pretty clear. It is under the title of that clause, which is Criminal Code. If clause 2(2) referred to the same act it means the Criminal Code.
Senator Day: That was my inclination to read it that way, but my training is that when you use different terminology it means different things. "Criminal Code " is used in 2(1) and the act is used in 2(2).
The Chair: Fair enough. We will get that clarified.
Senator Day: Second, Mr. Jamieson, can you help me with respect to the office of critical infrastructure and the role that you play. Is there some overlap, or do you coordinate your efforts? Let us think of a nuclear generating plant that would be a critical infrastructure in New Brunswick at Point Lepreau. What role does your Nuclear Safety Commission have in working with the Office of Critical Infrastructure?
Mr. Jamieson: We work with both Public Safety Canada and Natural Resources Canada on the broad file of critical infrastructure protection. Specifically we would, through the analysis of the threat and the establishment of the design basis threat, set the requirements for the physical protection of those facilities.
Senator Day: You were describing exercises to Senator Dallaire. Do you go through these exercises with the people at Critical Infrastructure? Do they do their own testing, protection and anticipation of potential problems?
Mr. Jamieson: We exercise alongside our licensees for the major facilities. As well, we participate in the broader exercises that touch more, strictly speaking, than one individual nuclear power plant or facility. We work closely with them on all those exercises that are relevant to our mandate.
Senator Day: My question will overlap. I want to ensure that there is enough contact between the different entities that deal with safety of critical infrastructure from a nuclear point of view and that there are not two solitudes. That is what I am looking for.
Mr. Jamieson: Absolutely. There are no gaps and no stovepiping. We work closely with our partners and have worked closely with them since the beginning of our physical protection scheme.
Senator Dallaire: On a supplementary, do you have an inspector general who has full authority over reviewing the levels of capabilities of security forces, who they are hiring and their abilities, standards, training and so on that can have an overriding authority into where we feel it is effective? Those plants belong to the provinces. Do you have an overriding inspector-general type of authority to bring people to task and to insist on the required changes that must be met, be they provided by provincial funds and direction?
Mr. Jamieson: We do have that power and it resides at numerous levels within the organization. Our commission could take action to order the shutdown of a plant if we felt that the security precautions in place were not sufficient. We also have a chief regulatory officer, who is also our executive vice-president. He is broadly in charge of all safety and security matters. I am directly in charge of security along with Mr. Awad. Our president, Dr. Michael Binder, could take action if need be.
[Translation]
Senator Boisvenu: My question is along the same lines as Senator Dallaire's. There are two components of the act. There is the "making the act of terrorism a crime " component, but there is also the "environment " component. As we know, the environment is primarily under provincial jurisdiction. For transport, where it is regulated, does it relate to interprovincial transport, or cross-border transport with the United States, or is it exclusively within a province?
Ms. Dagenais: The act applies between provinces.
Senator Boisvenu: So in the case of transport within Quebec or Ontario, is that under federal jurisdiction or provincial jurisdiction?
Ms. Dagenais: It is under federal jurisdiction when it is rail, air or marine transport, and it is partially under provincial jurisdiction when it is road transport, except that the provinces and territories adopt the federal Transportation of Dangerous Goods Act into their provincial legislation, along with our regulations. So it is completely harmonized.
Senator Boisvenu: So that will have an impact on activities within the provinces. Has there been a study of the cost of enforcing the act?
Ms. Dagenais: I am not familiar with that.
[English]
Mr. Jamieson: I would like to ask Mr. Jason Cameron to offer some words there.
Jason K. Cameron, Director General, Strategic Planning Directorate, Canadian Nuclear Safety Commission: Nuclear activities in Canada are exclusive federal jurisdiction. In terms of a description of additional costs imposed on the provinces, you would not see it through these elements we are discussing today.
Again, nuclear regulation is exclusive federal jurisdiction.
[Translation]
Senator Dagenais: Mr. Jamieson, I may have misunderstood the translation, but in your presentation, at page 4, in the final paragraph, you say:
If Bill S-9 is enacted and Canada ratifies the International Convention for the Suppression of Acts of Nuclear Terrorism, there is no additional work necessary to implement the measures.
You go on to say:
. . . these measures have already been in place for years.
I would like you to explain that sentence, "there is no additional work necessary " with the bill.
[English]
Mr. Jamieson: As I mentioned earlier in my remarks, Canada was involved in developing the amendments to the Convention on the Physical Protection of Nuclear Materials. As a result, we are aware of the upcoming requirements. Since 2006, we have incorporated those in our nuclear security regulations, which, therefore, become requirements for our licensees. Our licensees have put in place all those physical protection measures already. They would not have to undergo any additional incremental effort in order to be compliant if Canada ratifies the two instruments.
[Translation]
Senator Dagenais: You say that these measures have already been in place for years, but you have still changed them?
[English]
Mr. Jamieson: Some of the physical arrangements have been in place since the events of 9/11 — for over a decade.
Senator Joyal: Mr. Jamieson, I would like to come back to the Belfer report. I understand that Mr. Cameron would likely be aware of the substance of the report. I am not targeting you, but since your responsibility is the strategic planning directorate, I understand that you would be aware of the substance of the report. I see that it is passing on. I refer to page 18 of the report. Mr. Chair, maybe we can ensure that a copy of the report is circulated among the members of the committee for future use.
[Translation]
The Chair: Senator Joyal, I think those documents were distributed in both languages a week ago.
Senator Joyal: Thank you.
[English]
I will read from page 18, which is information that should be shared among the committee members. I want your reaction to it because the stand you take is that everything is fine now and that we are well protected. However, I am not convinced that we are aware of the scope of what is above our head. This paragraph, in a brief sentence, summarizes it well. It states:
Total world stockpiles of highly enriched uranium and plutonium separated from spent fuel amount to nearly 2,000 metric tons. Such weapons-usable nuclear materials exist in hundreds of buildings in over 30 countries, under security conditions that range from excellent to appalling.
The International Atomic Energy Agency (IAEA) has documented 20 cases of theft or loss of HEU or plutonium confirmed by the states concerned, and additional cases are known to have occurred. . . . What is not known is how many cases may have gone undetected, or how much stolen material may still be outside of state control. Theft of weapons-usable nuclear material, in short, is not a hypothetical concern but an ongoing reality.
It seems that the Russian and American experts who studied the situation internationally concluded that among those 30 states, most do not really take the proper steps to face the situation that the materials are in the hands of countries that we can label "mildly reliable " to say the least. There is no doubt that terrorist groups or people who would want to steal that nuclear or radioactive material certainly would have a field of operation that is not as tight as one would like to believe.
According to the experts who have reviewed the situations, the systems are loose in most cases. The report calls upon international leaders to take steps to tighten up their systems and better assess the risks. What is Canada doing to better protect ourselves in situations such as they have described?
Mr. Jamieson: I wish to assure the committee that there have never been any thefts of fissile material in Canada.
The situation to which you referred outside of Canada is certainly of concern to world leaders. The United States is taking a leadership role in attempting to repatriate that quantity of HEU that originated in the United States. In the other cases, it is taking large steps to lock down the security of that material.
It is highly unlikely that any of that material could find its way back into Canada. I cannot go into details, but there is an extensive system in place at our borders to prevent the shipment of such material into Canada.
I will ask Mr. Cameron to add a few words on that.
Mr. Cameron: In addition to what Mr. Jamieson said, when the Minister of Justice spoke to this committee on this legislation, he also mentioned the priority that world leaders placed on securing stockpiles of highly enriched uranium and the discussion that was held in Seoul, South Korea, just a couple of months ago.
Through the leadership that the United States has shown, as well as the recent heads of state that gathered from around the world in order to enhance efforts to secure those stockpiles, there is a lot of attention. This legislation demonstrates Canadian leadership on this front as well.
Mr. Jamieson: Canada takes a very principled leadership role in numerous areas. We support the U.S. in their attempts to convert research reactors from high-enriched fuel to low-enriched fuel. Also, Canadian experts from the Canadian Nuclear Safety Commission routinely participate in International Physical Protection Advisory Service groups that the International Atomic Energy Agency sends to countries to assist them with improving their physical protection of all nuclear materials, including fissile material.
Senator Joyal: The most important threat that I can envisage in relation to Iran is not that Iran would develop enrichment up to 90 per cent but that it would import the materials to enable them to make a nuclear bomb. I am sure that their first approach was to try to get it where it was already available rather than trying to make enriched uranium on their own such that they could make a nuclear bomb. That seems to be an important element in the overall situation in a country like Iran that is a real threat in that region of the world.
Mr. Jamieson: I agree. The fact that Iran had to embark upon a domestic path for producing enriched uranium is a testament to the strength of the international system.
Senator Joyal: However, as Senator Dallaire mentioned, we still have the situation of Pakistan. It seems to me that the attitude has been more of sticking with what we have and facing the situation when it arises. It is more unanticipated than anticipated. I am sure that you can make the distinction between those concepts. One tries to apply the regulations as they are; the other tries to ensure that we foresee what might be upcoming.
That seems to be one of the major recommendations of the Belfer report. In fact, it is their last recommendation, which reads as follows:
The insights into al-Qaeda's strategic and operational thinking afforded by Exoneration and other discourses must be exploited to prepare for future terrorist attacks. Counterterrorism strategies too often depend on current trends shaping al-Qaeda's status and activities. This is a prescription for being once again surprised by the unanticipated.
There is an element there of strategic approach once it is over our head with those 30 countries, besides the United States and Russia, that have nuclear materials. Some of them may not be as reliable as the United States might be in relation to dealing with this issue.
What additional improvements do we need in our approach to the control of nuclear, fissile and radioactive material? We sometimes concentrate too much on nuclear and not enough on radioactive material that could be used to make equally destructive bombs. It seems that we are still complacent to a certain extent on what underlies this report.
Mr. Jamieson: I would agree that the threat is constantly evolving, but that is why the CNSC works almost daily with our intelligence partners to ensure that we are kept abreast of the nature of the threat.
Senator Joyal: Mr. Awad, do you wish to add something?
Mr. Awad: We are working with international committees through Foreign Affairs to provide training and all the support needed, particularly with the Global Initiative to Combat Nuclear Terrorism, which is shared by the U.S. and Russia. This report was presented to that group. We are providing much technical support and training to this country and helping them to secure nuclear material.
Senator Day: The International Atomic Energy Agency visits facilities to ensure the proper use and handling of material. What is the commission's relationship with the International Atomic Energy Agency? How does the international agency acquire the right to go in and inspect? Let us talk about something that AECL would have sold in the past and that SNC-Lavalin will be selling in the future. Is there a contractual bilateral creation of a legal right that you can assign to the International Atomic Energy Agency, or is it all on an international convention basis? Do you have to ensure, before the sale takes place, that the recipient of our CANDU reactor has entered all of the necessary international conventions?
Mr. Jamieson: In terms of our interactions with the IAEA, Canada is a member state and was an early ratifier of the non-proliferation treaty. We sit on numerous committees at various levels within the IAEA. We help to develop international standards for safety and security. We also attempt to shape international policy through our participation at the IAEA.
As to the sales of Canadian nuclear-related products or technology abroad, as Mr. Awad said earlier, no such sales can occur unless we have a nuclear cooperation agreement in place between the two countries that specifies that the technology and equipment can be used only for peaceful purposes. We also need to have an administrative agreement in place that details in great specificity the steps that will be used to ensure that Canadian goods and services are used only for peaceful purposes.
Mr. Awad: Under the international non-proliferation regime, each country has an agreement with the IAEA — some call it the Comprehensive Safeguards Agreement — under which all declared activity is inspected by the IAEA. The additional protocol, which Canada has signed and which we encourage other countries to sign, allows IAEA inspectors to go to any part of a country and inspect without notice. That gives us a guarantee that when we export our material it is used for only peaceful purposes.
Senator Day: Do you have a policy to ensure that that is in place before we make any sales to China, Pakistan or Romania?
Mr. Awad: Definitely. It is under the non-proliferation policy of Canada.
Mr. Jamieson: Perhaps to address the last aspect of your questions, the enforcement is done because these are convention and treaty-level instruments that must be respected. The IAEA will intervene, and matters could go as far as the UN Security Council if in fact the conventions and treaties were not being respected.
The Chair: Before calling on Senator Dallaire, can I ask if Mr. Awad would forward to us those countries that are signatories to the extra protocol, the one referenced a moment ago?
Mr. Awad: It is on the website of IAEA. I can forward it to you.
The Chair: If it is on the website, we can access it.
Before calling on Senator Dallaire, I wanted to raise two technical issues. We talk about the physical protection with respect to the movement of goods. As we have seen with Stuxnet and other circumstances, we have cybersystems in place to protect the integrity of our plants and the integrity of our transportation system. I do not need to know how you protect those cybersystems, but I would like some assurance that we have an active, robust engagement on the protection of the cybersystems that are fundamental to our nuclear safety in this country.
The second question relates to the Livermore lab in California, which I have had the occasion to visit not in the context of this committee. They were very keen on showing us a risk management system that was based on the instant analysis of what would happen in the event of a dirty bomb explosion anywhere in North America relative to putting in all of the environmental, climactic, wind, population, demographic and traffic pattern issues that would allow them to give instant advice to their partners in North America about how to protect populations where the most intensive risk is and where the plume might be headed in the event of one of these events. Can I assume that we benefit fully from that and other sources of acuity in terms of how we would react in the event of something going terribly wrong? There are two parts to that question.
Mr. Jamieson: I will begin with the cyber threat question. Canada was actually the first nation to have a fully digital reactor, the Darlington reactors. Taking measures against potential cyber threats has long been within our arsenal of regulatory tools. Again, I cannot go into a lot of detail, but I will tell you that the control systems for these reactors are isolated from the broader Internet and, in some cases, there is not even a separate computer allowed in the control room that could access the Internet.
In terms of that predictive capability you are speaking of, we have access to very similar tools under agreements with the U.S. We also maintain a complete set of our own set of tools within the CNSC. We also work with Health Canada and Environment Canada to be able to make these sorts of predictions. We used those same tools during the Fukushima events of 14 months ago.
Senator Dallaire: If there is a debate between the government that wants to sell CANDUs and pressure on people to do that and your assessment in regard to them meeting the treaty, who arbitrates that?
Mr. Jamieson: I am looking at Mr. Cameron to see if he can offer some words. Unfortunately, I am only an engineer and not a lawyer.
The Chair: I say thank goodness for that. Canadians feel much safer.
Mr. Cameron: Maybe I could ask the senator's indulgence to try the scenario again. I am having some difficulty imagining the conflict arising. Is this before a sale takes place or after?
Senator Dallaire: There is a lot of pressure on selling CANDUs, so the possibility that the government puts pressure on the institutions that are engaged in that. I am taking for granted it is an independent assessment you are providing to government with regard to the non-proliferation treaties. Who would arbitrate if there was a problem that arises there, or will you tell me that will not happen?
Mr. Cameron: No. It is always difficult to predict the future. The country would have to be in good standing with all of the requirements in order to fulfill the policy obligations that Mr. Awad has mentioned. If the country is not in good standing, then it can be incumbent upon the CNSC to say no to the export.
Senator Dallaire: I have no problem with that, but what if the Canadian government wants to sell it.
The Chair: It cannot.
Senator Dallaire: I will take it for granted they cannot.
The Chair: If no export licence is granted, no one is allowed to sell.
Senator Dallaire: My wife went to the hospital. When we crossed the American border, they went nuts because she had nuclear material, whatever it was. Do we have those same systems to assess whether nuclear material is in a person inside a car crossing our borders?
Mr. Jamieson: The short answer is yes, we do. Those systems work on either direction of passage across the border. As you found out, they are quite sensitive systems, detecting amounts of radiation that would not be useful in terms of creating a radiological weapon.
Senator Joyal: On page 8 of the report, Mr. Cameron or Mr. Awad, I am quoting, and this a subject that we have not really touched upon this afternoon:
Radioactive sources that would be very dangerous if dispersed are widely used in hospitals, industry, and agriculture. Control and accounting of these sources remains insufficient in practically all countries. Therefore, acquiring radioactive material for a dirty bomb would be far easier than obtaining the HEU or plutonium needed for an actual nuclear bomb — and making the dirty bomb itself would also be a far smaller technical challenge.
Is it not our weaker flank in terms of protecting Canada against the trading or shipment of radioactive materials, or even someone in Canada making that kind of device that could cause as much destruction and disruption than what we could imagine at the worst level?
Mr. Awad: To answer the question shortly, definitely not. All these radioactive sources used in hospitals and the construction industry are licensed by the CNSC, and we keep track of all of it. We have a national tracking system that keeps track of all radioactive sources.
Senator Joyal: What do you mean you "keep track? " I can understand that the nuclear plant and materials could be well protected by police forces and so on, but when you are dispersing in so many hospitals, industrial sites and agricultural sites, you have to multiply the capacity of just monitoring the fact that the material stays there and is well kept. I do not really see how you can monitor all of that in practical terms.
Mr. Awad: We do regular inspections of where these radioactive sources are, and we are satisfied that they are in good hands. There is a rigorous requirement with respect to how to safeguard these radioactive sources. Depending on the risk that represents, it could go from a padlock to an arrangement with the local police or a very extensive alarm system. It depends on what kind of risk; we do regular inspections on every place where these materials are located.
Mr. Jamieson: Our licensees are also required to report to us any lost or stolen sources, and we are in turn required to report those to the International Atomic Energy Agency. Canada is also assisting with locking down some of these sources that are abroad and bringing them back when they are so-called orphaned or disused sources.
Senator Joyal: Who monitors the people who have access to that at all levels?
Mr. Jamieson: That is monitored by our staff. We also inspect the physical security arrangements that they have to have in place. For some of these smaller but still potentially risk important sources, we require locked separate cages with alarm monitoring and arrangements that must be in place with the local police should the alarms go off at those locations.
Senator Joyal: Do I understand that when they decide to employ X, Y or Z person, that person has a security check that you monitor yourselves?
Mr. Awad: We do not monitor 100 per cent of our licensees, for example, small licensees like a construction company. We do some inspections and a background check. There is a requirement for a background check for everyone who can handle radioactive sources. We have almost 2,500 licensees for these small quantities or low-level risk radioactive sources. We do sampling inspections to ensure safety compliance with security requirements for the very low-level radioactive sources.
Senator Joyal: I am more concerned with the personnel who have access to the material. I do not doubt that you have tight control over security checks and whether the safety measures are well protected to avoid disruption. I am more concerned about the personnel. If someone would want to use those materials it would probably be someone without suspicion. It would not be a break and entry type of operation. It would probably involve someone who is theoretically more neutral in terms of a security risk. That, in my opinion, would be the weakest link in the management of the security of those materials.
Mr. Awad: The personnel who have access to radioactive sources have to go through mandatory background checks and security clearance. Our security clearance system works very well. We have very extensive background checks for all these operators.
Senator Joyal: I appreciate the answer, but I will say what I was told one day in church: You have to have a lot of faith in many of the statements made around this table this afternoon for reasons of security checks and confidentiality. You will understand that we have to take your word, which I do not doubt.
We have to recognize, Mr. Chair, this is part of what is involved when we are not in the context of a permanent committee, whereby the members would be under an oath of secrecy.
Mr. Jamieson: I would add that of course the insider threat is a difficult threat, but it is one about which we are aware. We have many mechanisms in place. We also have a supervisory awareness program in place, so that should an employee exhibit suspicious behaviour that would be reported.
The Chair: Thank you, colleagues. I want to thank our witnesses for the time they have given us today for their very helpful and frank responses to our questions. Most importantly, on behalf of all Canadians, I want to thank you for the tremendous work you do in protection of our national security every single day.
Honourable senators, to begin our second session today, we welcome officials from the National Security Policy Division of Public Safety Canada: John Davies, Director General, National Security Policy; and Emmanuelle Deault- Bonin, Senior Policy Analyst, National Security Policy Division.
We are continuing our examination of 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. These four new offences prohibit certain activities in relation to nuclear or radioactive material or nuclear or radioactive devices.
[Translation]
Mr. Davies, I understand you have an opening statement.
[English]
I invite you to give us your opening comments before we offer some questions.
John Davies, Director General, National Security Policy, Public Safety Canada: I am pleased to be here today to help with your study of Bill S-9.
As I believe most of the committee members are aware, Public Safety Canada's role with regard to proliferation and terrorism is to coordinate and support interdepartmental efforts at the federal level, as well as leverage expert knowledge to better examine the threat, identify the risks that Canada faces, and develop sound policy and advice to help guide the government.
[Translation]
With this in mind, Bill S-9 represents a concrete step in strengthening Canada's criminal laws relating to nuclear terrorism. It will further allow Canada to ratify and implement two important international treaties, thus signalling our commitment to nuclear security.
[English]
We have had a chance to look at the previous testimony over the past week and read about the committee's concerns. I have tried to gear my remarks to the common themes as much as it relates to public safety.
We are of the view that should it be adopted, Bill S-9 would complement existing legislative policy and operational frameworks in place. I would like to take the opportunity to provide some information on the broader context.
While operational partners are best placed to give more of an in-depth understanding of what is involved in each of the activities, I hope my presentation will serve you as you pursue the study of this bill.
As you have learned throughout the review of nuclear terrorism issues, the threat of nuclear terrorism and of a proliferation more broadly continues to evolve. As noted in the public communiqué of the 2012 Nuclear Security Summit, nuclear terrorism continues to be one of the most challenging threats to international security. The 2009-10 public report of the Canadian Security Intelligence Service as well as Canada's Counter-terrorism Strategy also point to this challenge.
Canada has a number of tools that seek to ensure a continuum of success. We utilize a layered and risk-based approach to dealing with proliferation. These tools include investigations, screenings of individuals and cargo in and out of Canada and other operational legislative mechanisms. Through the strong collaboration of a number of federal partners, these tools seek to achieve four objectives. These include preventing the engagement of proliferation; detecting threats at home and abroad; denying access to or acquisition of restricted materials; and responding through law enforcement and other means to proliferation activity. It is worth my taking time to go into each of these pillars linked through a counter-proliferation lens.
First, we aim to prevent states, non-state actors and individuals from engaging in proliferation activities, including assisting our foreign partners in developing capacity; conducting outreach activities to build awareness in Canadian sectors that could come into contact with such threats, such as industry and academia; and relying on sanctions to support such policies as UN Security Council resolutions. As a specific example of our prevention work in respect of Canada's Global Partnership Program, at the Seoul Nuclear Security Summit 2012, the Prime Minister announced $365 million over five years for this program in continued funding. The Global Partnership Program supports the G8's global partnership against the spread of weapons materials of mass destruction. This program is under the responsibility of the Department of Foreign Affairs and International Trade. It aims, among other things, to help secure nuclear facilities to prevent illicit activities.
[Translation]
Second, we work to detect proliferation threats and activities, both at home and abroad, through intelligence, verifications of whether exported goods are being used for legitimate purposes, and training for front-line officers to increase their ability to detect activities of potential concern.
[English]
One of the key activities in this area is to emphasize intelligence efforts to monitor and evaluate threats posed by weapons of mass destruction programs and proliferation networks. This work is particularly critical as it directly supports other key enforcement regulatory activities.
Third, we look to deny the ability of actors of concern to acquire or transfer proliferation funding, information and goods. We use export controls, immigration tools, facility and goods access strategies, and financial systems to achieve this goal. For example, student visas can be denied under the Immigration and Refugee Protection Act when information points to proliferation risks. This helps to ensure that Canada's highly advanced knowledge in some scientific areas is not transferred to individuals who would use it for proliferation or other illegitimate purposes. Our legal framework in our deny objectives is quite strong. For instance the Export and Import Permits Act establishes Canada's legislative and regulatory footing to control exports and ensure that they are not diverted towards illicit use. You have just heard from colleagues from the CNSC about its role around the Nuclear Safety and Control Act.
Fourth, we seek to respond and take direct action against proliferators through strong enforcement activities and prosecutions, as well as the use of penalties for breaches of compliance to security regulations in the fields that could cause proliferation concerns. In Public Safety Canada's conceptualization of our overall counter-proliferation framework, Bill S- 9 provisions would complement an already robust set of offences and penalties that address the various illicit activities related to proliferation more broadly and help to codify some measures and bolster our current approach.
To take an even broader perspective, a critical part of the Government of Canada's efforts on counter-proliferation is to maintain resilience of Canadian society when faced with a potential though unlikely terrorist attack with weapons of mass destruction. On this front, Canada is prepared to respond if such an attack is ever launched against us. The government continues to work to monitor and develop our plans in this area. In this light, the Federal Emergency Response Plan, FERP, released in 2010 its design to harmonize federal emergency response efforts with those of the provincial and territorial governments, non-governmental organizations and the private sector and, in addition, the 2011 federal- provincial-territorial Chemical, Biological, Radiological, Nuclear and Explosives Resilience Strategy for Canada. CBRNE provides a policy framework that guides the creation and maintenance of sustainable capabilities and common standards and steers investments in CBRNE policies, programs, equipment and training in a common direction.
At the beginning of my presentation, I mentioned that we could look at our counter-proliferation activities in the optic of our counterterrorism efforts as well. In this respect, I would draw your attention to the Canada's Counter- terrorism Strategy announced by the minister in February. I have brought copies with me should anyone like to have one. One of the main points raised in the strategy is how terrorists can seek to exploit vulnerabilities created by fragile states, rapid technological changes and an increasingly networked society. All governments must try to keep pace with these rapidly changing global circumstances in order to protect their citizens from threats ranging from cyber-related incidents to the proliferation of more sophisticated weaponry, such as weapons of mass destruction.
Overall, the provisions of Bill S-9 will help us to build on a record of success by making it easier to investigate and prosecute nuclear terrorism.
[Translation]
And so, on that note, Mr. Chair, I will conclude by thanking you all again for your time. I hope my remarks are helpful to you as you pursue your study of the bill. I look forward to answering any questions that committee members may have.
[English]
The Chair: I have a generic question about the various anti-terrorism pieces we have. This question was put to officials by Senator Dallaire at a prior meeting.
We have Bill S-9, which is before us, and we have Bill S-7, which was passed by the Senate and is before the other place for consideration. We have various policy instruments to which you have made reference in your presentation, and we have various activities undertaken by our previous witnesses, the Nuclear Safety Commission of Canada. They are all part of the overall framework for national security in this country.
Can I assume that by virtue of your title and responsibility you would have all those pieces as instruments that you take some responsibility for? I understand there are statutory roles in each department, but is there some central clearing house, either at your level or at the level of the National Security Advisor in the Privy Council Office to the Prime Minister, and I assume he would work closely with your minister, where all the pieces and analytical frames and intelligence sets generating information and insight relative to those pieces are assessed? I assume that it is not done in stovepipes and there is an overall premise about coordination and integration.
I ask that question because, as many of us around this table will know and Senator Dallaire will understand, perhaps better than most, one of the great achievements of our Canadian Forces disposition in Afghanistan was the coming together of real-time intelligence sources from many different places involving many parts of our government, many technological capacities, including our allies, to ensure well informed theatre planning for our forces. It would be my assumption, and a notional assumption on the part of Canadian citizens, that we have a similar capacity somewhere in the system. Where it is and how it is managed I do not particularly need to know. Others may have questions in that respect, but I would not mind your assurance that, to the best of your knowledge, that kind of integrated analytical framework real time exists multi-source and that Her Majesty's subjects are protected by virtue of the work done by our public service, security agencies and others in that respect.
Mr. Davies: The short answer is, yes. Our department, my branch and my director, is very much at the centre of all the things you are seeing in this committee and elsewhere related to terrorism, to counter-proliferation and national security issues linked to admissibility and encountering violent extremism. "Clearing house " is one way to describe it. There are different statutory leads for different legislation or policy.
An all-of-government approach is critical for this area. Normally when we meet there are 12 to 15 departments or agencies in the room. They are always big meetings. There is a big horizontal push on all the policies we work on. The role of Public Safety has evolved a lot in the last few years. It is much better placed to take on these roles.
The Counter-terrorism Strategy sets out an all-of-government plan. We debated how to frame the issue on Bill S-9 for the committee, whether to use counterterrorism or counter-proliferation. I think we could have done it either way. It seems to have a bit more of a proliferation angle to it in terms of the question from the committee, but I could have run you through the pillars approach on a counterterrorism lens.
As we roll out the strategy, there will be a clear implementation and action plan to allow the relevant departments and agencies to help prioritize missing legislative policy program pieces in each of those areas work together and take lead in accountability as we go forward.
As you say, we work with everyone. Obviously we work with the NSA's office, the Privy Council Office, and the portfolio which we manage directly and for which the minister is responsible, as well as the much broader security and intelligence community.
Senator Dallaire: I have a technical question for you, chair. I am not a fan of in camera. However, to what extent does in camera give us an increased ability to acquire more classified material and permit bureaucrats to provide us with more details on, for example, the framework of standard operating procedure without getting into the actual hard material or sources?
The Chair: I will consult with our legal advisers here at the committee, but whether we go into camera or not, the legal interdiction under the secrets act that would prevent public servants from sharing with us what they cannot share with individuals who do not have an active security clearance at a certain level may not be helped by us going in camera.
It does not mean that we would not go in camera if it were deemed to be helpful or if requested to do so, but I think their problem is that law prohibits them from sharing certain things with people who do not have a certain level of clearance, and we have always respected that constraint around the table.
Senator Dallaire: When you work in that world, everything is secret. When I worked in National Defence Headquarters, every memo was secret. The question is to what extent they can go into the framework and structures without going into classified material. Everyone seems to be reticent to go down the route of debating it.
You could even seek clearance to be enabled to provide us with information.
The Chair: If we do come to a point where we need information and we want to seek an opportunity to receive it in another format, I will be more than delighted, on behalf of the committee, to make that request.
Senator Joyal: Senator Dallaire is starting to lose faith. As I said, we have to operate with a certain amount of faith around this table.
I welcome you to the club, Senator Dallaire.
The Chair: It takes a distinguished former general who has operated at the highest level of security clearance to understand the problem.
Senator Joyal: I apologize, Mr. Davies, for that remark.
I will preface my question by quoting your own words on page 2 of your opening brief. You said, "Nuclear terrorism continues to be one of the most challenging threats to international security. "
You were probably in attendance when we heard our previous witnesses this afternoon. I have been quoting the Belfer report. I understand that Ms. Deault-Bonin has copy of the report. On page 19, the last sentence in the second paragraph reads:
As Harold Agnew, the former head of the Los Alamos National Laboratory has put it, "those who say that building a nuclear weapon is easy, they are very wrong, but those who say that building a crude device is very difficult are even more wrong. "
I want to focus on the "crude device " aspects of the terrorist situation we are dealing with this afternoon.
As I read the amendments that Bill S-9 would make to the Criminal Code, they create four different sets of offences. The first group is about possession, use or importation or altering nuclear or radioactive devices, and then commit an act against a nuclear facility or commit an act that causes serious interference with or disruption of a nuclear facility's operations.
The second group of offences deals with using or altering nuclear radioactive material devices.
It does not appear to me that those new offences, which I personally totally support, explicitly prohibit the making of a nuclear or related device. It seems to me that it would be very important, especially on the basis of the Belfer report, to acknowledge that this is a reality. It is in fact one of the three greatest risks that the Belfer report describes, and that should be reflected in Bill S-9. In other words, we should spell out very clearly in Bill S-9 that making a nuclear device or a crude device, that is, with radioactive materials or other materials that could cause mass destruction, should be formally recognized in the bill.
We have put that question to previous witnesses and the answer we got is that the treaties that this bill seeks to implement do not formally recognize that aspect and the bill is limited to the scope of the treaties. It seems to me that this is a golden opportunity to recognize that formally because we are dealing here with nuclear threats generally or related nuclear threats.
The Department of Public Safety has the responsibility for having all the tools available. That seems to me to be a simple tool to include in this bill so that it would be more effective in terms of the Government of Canada maintaining the security of Canadians. How do you react to that?
Mr. Davies: You are right that the bill is very much concentrated on the two international treaties. It is about ratifying those treaties, so in that sense it takes the substance from those treaties.
I am not an expert on building clean or dirty bombs, but I imagine even a dirty bomb requires possession or alteration of nuclear material of some sort, so the essential materials are covered here.
I think you are getting at some of the other aspects of dual technology and so on that someone interested in creating a dirty bomb could do that not covered here. I think much of that would be covered by other forms, other controlled lists, other intentions that you could find elsewhere in the Criminal Code.
Senator Joyal: Why not put it formally in those sections of the Criminal Code? The short title of this bill is the nuclear terrorism act. It seems to me, therefore, that that should be included and not dispersed in various other sections of the code to address the problem.
It is important to signal to Canadians and to the department that trying to make that kind of device is a forbidden offence; do not try to make it. This is part of the overall objective that the proposed nuclear terrorism act should be seeking to sanction.
I understand your point, but since it is not clearly spelled out in those two international agreements, nothing prevents us from having that there since we are dealing with the general situation of nuclear terrorism.
Mr. Davies: I will have to get back to you on that. We will talk to our colleagues at Justice Canada about how that issue could be covered. The way I read it, other devices are covered. Altering or possessing nuclear material would also cover a dirty bomb, so you would need to look at the specifics of each case. We will look at whether the concept of device would cover what you are talking about, which is a narrow or hybrid thing.
The Chair: We are trying to understand the extent to which the present legislation is sufficient in its present form to cover not just nuclear devices or nuclear material, which is its primary purpose, but the transmission through the mail or elsewhere or through illegal means of other pieces that would be germane to the construction of a nuclear device, whether that is a detonator, cell phones or other pieces, transducers or whatever might be necessary. While in and of themselves they are not intrinsically illegal, if under the conspiracy provisions of this legislation they were deemed to be for the purpose of a conspiracy to build a weapon or to mishandle nuclear material in the fashion specified by the law, then that might be sufficient grounds for law enforcement agencies to act. If you get an opinion from your colleagues in Justice that there is sufficient coverage in other laws to give us protection in that respect, that would be of great benefit to this committee. If not, I know the committee would be open minded to looking for ways to strengthen this legislation so as to give the Crown all the options it needs in terms of investigation and prosecutorial discretion around the issues that are germane to this law. That is a specific question we would like your advice on at some point.
Mr. Davies: We will get back to the committee in writing on this. I imagine the answer from Justice would be the latter, that this would be covered through other acts and legislation, but they might also point to certain provisions here. I will get that in writing.
Senator Joyal: If I may add, is that possible within the next week or so? I know the committee wants to make progress on this bill. If we have to consider amendments to the bill, we would like to have that beforehand, so if possible, within the next week.
Mr. Davies: We will talk to them after this.
Senator Joyal: The second question is really into the plan that the department has put together in cooperation with other levels of government and police forces in the context of the destruction that would be caused by either that kind of crude device or a nuclear-related device that would cause extensive damages. Could you explain to us the approach taken by the department in such a case? In other words, who is called first? What kind of initiative has the department considered as being the priority one in such a case? We have seen what happened in Japan when there was the earthquake, and in parallel we can reflect upon what would happen in such a scenario and the danger that represents for average citizens in Canada. How can they be reassured that something is in place that would be sufficient to prevent additional damages and control the damages that would have been caused?
The Chair: As our witnesses will know, some of the post factum analysis of our Japanese allies has been that there were simply too many levels that had to be reported through before action could start, particularly with respect to the nuclear facilities.
Mr. Davies: I will have to preface my answer with the fact that I do not deal with emergency response but with national security right up to an event. There is a critical infrastructure group and an emergency management group with Public Safety that deals with natural disasters that is responsible for the Federal Emergency Response Plan, which is a federal-provincial plan, and the more recent chemical, biological, radiological and nuclear explosive, the CBRNE plan, which again is layered and not just federal but a provincial-industry-community approach as well. Those are both on our website. One of the things we were debating today was who to bring to the table here and what kind of questions might arise. Our emergency response people would be happy to come and brief you on this issue more particularly, because it is not just a public safety issue. A number of other organizations would probably have more detailed operational answers to how things would roll out should an event occur.
[Translation]
Senator Dagenais: Mr. Davies, in your law enforcement strategy, am I to understand that you work in collaboration with the other police and security services in Canada and abroad? I think it was even Senator Segal who mentioned it: information has to circulate freely among the various police forces and security services, in order to be effective. I would like to hear you on that point. I understand that you cannot disclose state secrets or investigative secrets, but how do you go about working with the various police forces so that information can be transmitted?
[English]
Mr. Davies: Particularly with the United States, we work a lot at the federal level with the FBI and other law enforcement agencies in the U.S., whether on counter-proliferation or anti-terrorism issues. The Beyond the Border Agreement with Canada and the U.S. is particularly looking at information-sharing protocols on how to improve information sharing and threat assessments and that type of thing. There is already a strong operational link with the U.S.
It is the same thing with a number of other countries around the world, whether on bilateral arrangements or multilateral forums. There are global counterterrorism forums. There are UN forums on counterterrorism. It depends on the angle, whether looking from a counter-proliferation or counterterrorism point of view. There are many different overlapping circles of discussion of coordination and cooperation.
[Translation]
Emmanuelle Deault-Bonin, Senior Policy Analyst, National Security Policy Division, Public Safety Canada: To add to the answer, the case of Mr. Yadegari, which was mentioned earlier, is an example of cooperation among the authorities: first between the American and Canadian authorities, and then among the various federal agencies and police forces that were involved in the case. It was cooperation not just in terms of law enforcement, but also in terms of access to the expertise that was needed for preparing the case, that made it possible to bring the case before the courts.
For example, colleagues at the Canadian Nuclear Safety Commission were involved in the legal proceedings, to explain what pressure transducers are used for, since that term is not necessarily familiar to everyone, and how they can be used in a nuclear context, and so on. That is an example of productive cooperation among the various agencies, and it is ongoing for all of the investigations currently under way.
[English]
Senator D. Smith: In our briefing note for today's meeting from our staff, and maybe you did not see it, reference is made in paragraph 13 to Mahmoud Yadegari, who was found guilty in the Ontario Court of Justice of attempting to export to Iran nuclear-related dual-use items without required permits, and he was found guilty of nine of the ten charges and acquitted of one count of forgery. I just sent a note to the staff as to whether it was appealed and what his sentence was. I am told that his sentence was 51 months in total, which included some time he had already spent, and it was appealed and upheld.
I am curious about something, and you are here, so I am asking you. If Bill S-9 had been in place, do you think there would have been more prosecutions? I am told that this was a challenging one, and I suppose, in part, Bill S-9 is in response to that. Do you think that other prosecutions might have occurred had it been in place, or do you have a view on that?
Mr. Davies: I am not sure I could answer that directly. I would say most of Bill S-9 helps change some of the penalties related to offences. It changes the Criminal Code definition of "terrorism " to include the treaties. There are other aspects, but I think the Yadegari case was an example that the Canadian system is robust. As you said, I think all the charges were upheld on all charges but for one of the minor ones.
The Chair: I realize that we cannot apply how a law that comes into effect in the future might have affected a specific case, but this new law has specific sentencing requirements that are quite substantial. Obviously, the Crown would have in the future other options with respect to recommendations on sentencing once guilt was established through due process based on the provisions in this law that did not heretofore exist. I think that is part of what our colleague is asking.
Senator D. Smith: I am curious as to whether, within the world in which you live, there is a view on what the sentence might have been had Bill S-9 been in place.
Ms. Deault-Bonin: We cannot speak to how, had that law been on the books, it would have applied to the specific case.
Mr. Davies said at the beginning that this bill adds to an already robust regime. The Yadegari case is an example of that as Mr. Yadegari was charged under the Criminal Code, the Export and Import Permits Act, the Customs Act, the Nuclear Safety and Control Act and United Nations Act. It complements an already robust regime that covers a number of actives, including, as was the case here, the export of dual-use technology to countries such as Iran.
Senator D. Smith: We all have 20/20 hindsight and I do not see any problem with asking if there is a viewpoint among people involved in this area on what kind of a stronger sentence he would have received had Bill S-9 not been in place. Is there no view on that, or is there a range of views? Do you think that it would have been more than 51 months?
Mr. Davies: I am hesitant to speculate on that. If there are different laws on the books requiring different penalties if someone is brought in, the new penalties would apply.
Senator D. Smith: Obviously there was a conclusion that there were deficiencies in the legal framework for dealing with a set of facts, as was the case there, which are part of the rationale for Bill S-9 coming into play. Maybe you do not want to speculate on it, but I think it is a reasonable question to ask.
Mr. Davies: Again, it is difficult to speculate. I have not seen a mapping exercise by anyone of what would happen if a case like Yadegari went through the system today or the day after Royal Assent. That is something you could talk to the people from Justice Canada or to the prosecutors about to see what they would have recommended.
Senator D. Smith: If Bill S-9 is passed, do you think that more prosecutions might proceed, which people may have been hesitant to pursue before, because they think the framework is now stronger, more precise and more clear?
Mr. Davies: The signal to the security intelligence community is that the framework is tighter. There is clarity on the penalties. The penalties have been strengthened in that way.
Senator Wallace: Mr. Davies, my question is along the lines of that of Senator Smith.
You said in your opening statement that in your view Bill S-9 would make it easier to investigate circumstances of nuclear terrorism. Aside from the prosecutorial side of it and the penalties and the new offences, could you give us examples of how Bill S-9 would make it easier to investigate these matters?
I know that the wiretapping provisions, for example, have been amended. There may be a litany of examples of how it would be easier to investigate. What are the top two or three things that would change under Bill S-9 that would make it easier to investigate?
Ms. Deault-Bonin: You offered part of the answer in your question. I would preface my response by saying that we are not lawyers, but in addition to introducing the new offences, the fact that the bill amends the terrorism provisions has some consequence, including for the reverse onus on bail. I will defer to our colleagues at Justice Canada for a more detailed answer.
As you mentioned, wiretaps can be used in the context of an investigation. Those are some of the tools that law enforcement agencies rely on to investigate those offences.
Mr. Davies: To take a further step back, for policy folks like ourselves, one of the important things about Bill S-9 is that it helps increase public attention on the issue of counter-proliferation. There is a lot of attention on counterterrorism. It is important for us to keep working on counter-proliferation to keep it a going concern. As the threat evolves, it is incumbent on us to keep up with it and to keep up with our allies. That is also an important aspect to this bill.
Senator Wallace: The general response to the state of nuclear terrorism is interesting, but I am interested in knowing what Bill S-9 is doing about it, what we can look to. Perhaps I will talk to my colleagues about that. I would be interested to know if there are ways in which the investigative side is greatly improved. I did not hear a lot about that, but I will leave it there.
The Chair: One of the benefits of both Bill S-9 and Bill S-7 has been the robust sections on conspiracy to commit any of the new criminal acts specified by the legislation, which gives police forces the capacity to launch investigations about conspiracies to commit, which allows them to be in a preventive mode as well as the classic mode of gathering evidence for the purpose of laying a charge and putting someone through the due process of our justice system to see if they have to in fact go to jail.
For most Canadians, it is important that you prevent the bad things from happening first. In our briefing from Justice Canada officials we were told that the provisions of this bill will give extra tools to our police forces to engage in a way that is completely responsive to our international obligations but also responsive to reality on the ground as seen by our national security and police officials who would have advised on the contents of this bill, I suspect.
[Translation]
Senator Boisvenu: Welcome, both of you. I am going to focus on the part where it says that investigations and prosecutions for this style of terrorism will be easier. If I understood correctly, this act will be primarily under federal jurisdiction, so it will not be legislation that is delegated to be administered by the attorney general of the province. Unlike the other sections of the Criminal Code, which are administered by the provincial government, this act will be administered by the federal government.
Ms. Deault-Bonin: I was referring to the presentation by the officials of the Department of Justice on that point, last Monday, in which they explained that the bill provided for concurrent jurisdiction. That means the federal authorities would have the option of trying to present a case at the federal level rather than it being at the provincial level. However, there are mechanisms for agreements between the various governments in this regard.
Senator Boisvenu: I understand that the information that will lead to a criminal investigation in this case is information that will be collected by federal officers, in large part. So I am trying to imagine how federal investigations can ultimately be brought to trial by provincial agents or by the provincial government. I am speaking in terms of effectiveness.
[English]
Mr. Davies: A lot of this goes back to how, in particular, the RCMP's national security group works with the provinces and local police forces. Quebec and Ontario have a different arrangement in terms of the rest of the country. Those arrangements are pretty strong and are growing all the time. In any national security investigation in Ontario or Quebec, there is very tight coordination there in how they work together in enforcing the transfer of evidence and so on.
[Translation]
The Chair: With respect to the famous "Toronto 18, " I think that was an integrated group: the RCMP, the metropolitan police and the provincial police worked together, if I recall correctly.
Senator Boisvenu: The other question relates to the aspect of potential offences. It says here that there will be a reverse onus at bail hearings. So the onus is reversed, and that is a good thing, in my opinion.
As well, there is the possibility of getting a wiretap for a longer period, one year. However, it is mainly the consecutive sentencing, which is very rarely applied in Canada. In the case of criminal offences, sentences are often concurrent rather than consecutive. Is some discretion going to be left up to the judge or the court, which will mean that it is going to be rare for consecutive sentences to be imposed? Will consecutive sentences be automatic or will it be left to judges' discretion to impose them?
[English]
Mr. Davies: That is really a question for our colleagues at the Department of Justice.
[Translation]
Senator Boisvenu: Right, pardon me. I am not familiar with your professional background, but I imagine you used to be a police officer. The success of investigations into this type of network depends a lot on undercover work, the quality of the agents who do that work, and the quality of the management of electronic networks, because, as we know, the way information is exchanged is on the Internet. In that regard, looking beyond Bill S-9, has your department developed competence in this field, and is it relatively easy to recruit undercover agents to carry out these investigations?
[English]
Mr. Davies: Again, the RCMP, the CBSA or CSIS, the operational level of the portfolio, is much better placed than we are to answer that kind of question. Ms. Deault-Bonin has something to add.
[Translation]
Ms. Deault-Bonin: I would like to point out a very important aspect: rather than taking a reactive posture, we prefer a preventive approach. One of the aspects that was mentioned in the introduction was the efforts that are made to speak with key stakeholders, including people in the industry and people who work in very advanced academic programs, to explain to them what the threat is and to make sure they are aware of certain unlawful activities. Collaboration with those partners also means that they can be alerted, whether by the RCMP or other authorities, concerning activities that might be suspicious.
As our colleagues at the Canadian Nuclear Safety Commission said, they work very closely with the people who have the licences, and it is precisely that collaboration that means we can be made aware of activities that might be worth investigating or call for certain law enforcement measures.
Senator Boisvenu: I believe this bill implements an agreement with the Americans; is that right?
The Chair: An international agreement.
Senator Boisvenu: Do the Americans have the same law as we have in this area, in terms of stringency?
[English]
Mr. Davies: I believe there is a bill before Congress to enact both treaties.
[Translation]
The Chair: The interpretation in a number of countries is virtually the same.
Senator Joyal: Senator Boisvenu raised the question of the court's jurisdiction. Which of the courts would have the authority to hear complaints or charges under this act? In the case of Yadegari, the citizen who was convicted of attempting to transfer materials to Iran, when he was convicted in Ontario, it was in Ontario's provincial Court of Justice. He was facing five charges laid under the Nuclear Safety and Control Act. So in practice, in the bill, I am not seeing anything that would change the jurisdiction of the court in question.
[English]
I stand to be corrected.
The Chair: The Criminal Code, of course, is adjudicated in front of various levels at different times depending on the frame of prosecution.
Senator Dallaire: Going back to the threat, in your threat assessments, have you looked at, exercised or war-gamed the yield size of any of these dirty bombs and the impact thereof?
Mr. Davies: I am not aware of that taking place. That could well be through a counter-proliferation operators group that I believe meets every month. They run through scenarios, and they have special analysis done that is presented to them. However, I am not aware of or seen any of that.
Senator Dallaire: Everyone says it is a big threat, but I am trying to get a feel for the scale of it. The two towers going down spooked the world power and created all kinds of panic. One of these would be a whole different endeavour and would be even scarier. If that is available and is unclassified, could that be made available to us?
Mr. Davies: I could look into it. On anyone's risk management scale, this is considered low likelihood. However, the fact that al Qaeda and other groups have clearly made statements on the desire to attain it makes it a growing concern. The issue here is that it will always be a high-impact outcome. The issue on how you do that analysis, scale it and quantify it will be tricky. We can look into that and let you know.
Senator Dallaire: Certainly you can get a scale of what is possible and reactions to it.
Mr. Davies: Yes.
Senator Dallaire: The government is investing, I believe, $327 million to assist nations in handling nuclear problems. With what we will be investing, have they come to you to seek advice on what threat areas are of particular concern and that they should be targeting their money towards, or has there not been any direct link between those working on this and your organization?
Mr. Davies: Yes, there are direct links. The number is $367 million over five years, from 2013 to 2018. There is an interdepartmental committee that meets. It is led by the Department of Foreign Affairs and their ministers accountable. They have looked at changing their terms and conditions.
Many years ago, this was a program for the former Soviet Union, particularly around Chernobyl, and decommissioning infrastructure and capital goods has evolved to be more of a capacity building, service-oriented, training and governance approach but much beyond the former Soviet Union and Eastern Europe. There is a strong system of consultation. Our input on threats and priorities is taken seriously.
Senator Dallaire: There is a direct correlation between those systems there and the threat.
Mr. Davies: Absolutely.
Senator Dallaire: Part of this bill is preventive and not purely punitive, at least part of it, but not enough.
Do you expect agencies that have nuclear instrumentation to provide their own counter-intelligence capability because they know they might be targeted, and that they are following what is going on with respect to threats to their organizations and infrastructure? Are they providing you with that, or are you solely the responsible body to provide that assessment?
Mr. Davies: Are you talking about outreach activities going on with industry?
Senator Dallaire: I am talking about the gang here before and how much counter-intelligence they are specifically doing. Although they say they have all the bases covered, including cyber, do they have a program integrated with yours with regard to threat assessments? Are they held accountable for doing their local, very specifically focused needs and vulnerabilities?
Mr. Davies: There are a number of assessments done from a kind of all-of-government or community level. With all of these departments, there is the critical infrastructure strategy or the action plan that I believe the government put out last year that the Nuclear Safety Commission would be a part of. It is all about figuring out our vulnerabilities and what is the plan. These plans are increasingly more integrated, not just with the United States but also abroad. There are a lot of multilateral exercises as well.
Any organization, department or agency responsible for activities or other organizations or infrastructure are included in part of this.
Senator Dallaire: If they have infrastructure, do you expect them to have that capability and to be integrated with yours?
Mr. Davies: Yes.
Senator Dallaire: Do you feel that you have achieved your aims after significant investments over the last years with respect to collating all this data and disseminating it in a timely fashion to those that would potentially require it? Have you achieved that? It is not the forte of intelligence or security organizations, particularly, to disseminate.
Mr. Davies: That is a big question. I think as any policy development process is always in motion, you are always trying to make things better. There are a lot of departments and agencies that are part of Canada's security intelligence community. We are leading a number of larger policy initiatives to improve policy bases and foundations going forward to identify gaps and weaknesses and where we need to go.
There are other broader commitments by the government through, for example, the Air India Inquiry Action Plan, that I think will help improve these things, including information sharing among federal and domestic departments. It is very important that we follow through on those commitments also.
Senator Dallaire: In light of your response, this legislation does not necessarily give us the warm fuzzy feeling that, with regard to the movement of nuclear-related devices, material or their ability to enter this country, we have covered all the gaps in any of the areas where some of this stuff might be able to sneak in under the radar.
Mr. Davies: I have not read all of the committee discussion of this bill yet, but every time I have looked at it, there is an underlying theme that the threat is evolving. The policy work, the legislative gaps and programs will also need to evolve to keep that up.
I am confident that in the next year there will be a lot of improvements in the policy regime in Canada in counter- proliferation and that a lot of important things we are working on as a government are certainly improving.
Senator Dallaire: It would be great to assess that in a committee. We are not New Zealand, so we let nuclear- powered vessels ply our waters. Do we have any inputs into the security risks they cause? There are nuclear-powered icebreakers in the North that are going through with tourists. This may seem off the shelf, but when you look at what al Qaeda has done, why not target a vessel that has a nuclear capability and take it on, if not to blow it up?
Do you have any sense of all nuclear-powered capabilities in our waters and whether that is being monitored by you and that the security risks are being provided to DND and our allies in accordance with that?
Mr. Davies: The intelligence services of Canada are absolutely aware of what is in Canadian waters and what kind of capabilities those boats are carrying and so on. At my level, again, I am not at the operational level. I do not personally see that or work on those issues; the operators would and would be aware of those issues. There would be layers through which threat assessments are put out, depending on what the organization and issue is. From an environmental point of view, I am not completely aware of how that would work.
Senator Dallaire: I am less worried about the environment than the actual device. From a policy point of view, do you have SOPs, standing operating procedures, so that DND and others would be informed that there might be a threat to a nuclear-powered capability — a ship or something — that is in one of our ports and whether or not security levels are sufficient to meet the requirements?
Mr. Davies: I will talk to my operations group, and I can also put that in the long letter I have to write to you.
Senator Day: My question is short. I keep reading about this new offence that is created. Maybe you can tell me if there are others. The one I am interested in is proposed section 82.5. It almost sounds like double jeopardy. I know there is another section on double jeopardy. This one says that if someone commits an indictable offence — there must be intent and all of that — and if he has intent to acquire nuclear material, he commits another indictable offence, so it is a two-step indictable offence. I just wonder how this will work in court. You have to prove an indictable offence; then you have to go on and prove another thing to say the first indictable offence is another indictable offence. This seems a little peculiar to me. Rather than saying if someone trespasses with an attempt to unlawfully obtain, or if someone breaks and enters with a view to, is this just an attempt to make it as broad as possible, any indictable offence that is related to it, namely, this other step of taking some radioactive material?
Mr. Davies: I am pretty sure our justice colleagues will describe this as a "preferable drafting approach. "
Senator Day: Could you tell me if you are aware of some other examples of this?
The Chair: Do you mean elsewhere in the Criminal Code, senator?
Senator Day: Yes, or elsewhere. It seems peculiar to me. Maybe that is because I do not work on the criminal law side of things and it is not unusual to have a two-step prosecution going on.
The Chair: We will also ask our own legal research people to give us an answer to that question as well.
Senator Day: That would be helpful.
Senator Joyal: Mr. Davies, I would like to come back to the issue of making a device, which I raised with you earlier on and that you have committed to review with your colleagues at the Justice Department.
I want to quote to you Article 2(1)(a) of the International Convention for the Suppression of Acts of Nuclear Terrorism that this bill seeks to implement. Article 2(1)(a) clearly states:
Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:
(a) Possesses radioactive material or makes or possesses a device . . .
It is quite clearly spelled out in the convention. As you mentioned, the Americans have a similar bill. Would it be possible to check what the Americans have put in their bill? In other words, did they clearly reproduce that Article 2(1) (a), since the provision that amends section 82.3 of the Criminal Code clearly uses the words "possesses, uses, " and so forth but omits the word "makes "?
If we are to implement the convention, this seems to me to be a substantial element of the convention.
Mr. Davies: I think the U.S. is trying to ratify the convention in the same manner. There may be a drafting interpretation there.
Senator Joyal: I think it might be advisable to look into the nuclear act of the United States as to whether that issue of "making " is covered in that act while it is not covered in our own act. That is why I think we have to check the two legal sources, the nuclear act and, of course, the American criminal code to ensure that we are on the same ground with the Americans on that and as to why we have not put the word "makes " into section 82.3 that I have quoted, if it is possible in your research.
Senator Day: In that section, the word "alters " appears, so that might be a broader word than "makes. "
Senator Joyal: We could debate that in the context of the word "makes. " As the chair said appropriately, somebody might want to use parts, or if somebody tried to assemble the parts, besides the nuclear radioactive material, that could be an offence. It could be a link into the making of a bomb. That is why I think the nuance "making " is important and the definition of "device " is important.
The Chair: As is the case of any part of the Criminal Code, the burden of proof requires proof around intent, so without intent that is provable, the Crown has a problem if it is seeking a successful prosecution.
If there are no other questions, I want to thank our witnesses for their straightforward, constructive engagement, for the work they do on behalf of all Canadians and for their commitment to write what might be the longest letter in history from a public servant to a committee. Any help you can give us on those technical issues will be very much appreciated.
The committee is adjourned until next Monday.
(The committee adjourned.)