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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 13 - Evidence for April 2, 2008


OTTAWA, Wednesday, April 2, 2008

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-210, An Act to amend the Criminal Code (suicide bombings), met this day at 4:03 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.

[English]

The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

We are pleased to welcome as our first witnesses on this bill, from the Department of Justice Canada, Glenn Gilmour, Counsel, Criminal Law Policy Section; Yves Parent, Senior Counsel, Criminal Law Policy Section; and Sabine Nölke, Director, United Nations, Human Rights and Economic Law Division, Foreign Affairs and International Trade Canada.

I would like to draw to your attention the excellent background papers that have been prepared for us by the Library of Parliament. There are the usual suggested points we might wish to raise, but there are also three good background papers on various topics raised by this bill. I commend them to your attention. Jennifer Bird who is responsible for those papers is right there.

Yves Parent, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Honourable senators, Mr. Gilmour and I are pleased to be here today to provide this committee with the view of the Minister of Justice on Bill S- 210. We are joined here today by Sabine Nölke from the Department of Foreign Affairs and International Trade.

Let me begin by saying that the Department of Justice, as well as DFAIT, welcomes the invitation to comment on any particular piece of legislation that comes before Parliament, especially when this piece of legislation involves a proposal for criminal law reform that has implications for our domestic criminal law and for our position on that matter internationally.

At the outset, let me say without reservation that there can be no doubt that suicide bombings in the terrorist context are abhorrent. They are horrific crimes that ought to be prevented as well as deterred.

Bill S-210 would seek, we believe, to add a new provision, which is section 83.01(1.2) to the Criminal Code for the stated purpose of ensuring that such conduct is in fact covered by the ``terrorist activity'' definition contained in the Criminal Code.

We understand Senator Grafstein's position to be that ``clarity is essential when the Criminal Code and the power of the state are arraigned against any person,'' and that because there is no specific mention of the words ``suicide bombing'' in the definition of terrorist activity, in his view it is unclear whether or not the definition of ``terrorist activity'' in fact covers suicide bombings.

We agree with Senator Grafstein that clarity is essential in the Criminal Code. However, with respect, we disagree with the underlying premise of this bill, namely that greater clarity is needed in the current definition of ``terrorist activity'' to ensure that it covers suicide bombing.

Indeed, honourable senators, the fact is that the suicide bombings are already very clearly covered in the current version of the definition of ``terrorist activity'' contained in the Criminal Code. To that effect, we do not believe that the words ``for greater certainty'' are required.

I invite honourable senators to look closely at both parts of the definition of terrorist activity found in subsection 83.01 (1) of the Criminal Code, particularly (a) and (b).

Paragraph (a) defines ``terrorist activity'' as an act or omission committed, in or outside of Canada, that would be an offence under the major international instruments that apply to terrorist activities such as hijackings or terrorist bombings. More specifically, it refers to:

(ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997,

Subsection 7(3.72) of the Criminal Code in turn establishes extraterritorial jurisdiction for the offence created in section 431.2 of the Criminal Code. What I am reading here is the definition in the Criminal Code.

This latter section of the Criminal Code, 431.2 (2), states clearly and unequivocally that:

Every one who delivers, places, discharges or detonates an explosive or other lethal device to, into, in or against a place of public use, a government or public facility, a public transportation system or an infrastructure facility, either with intent to cause death or serious bodily injury or with intent to cause extensive destruction of such a place, system or facility that results in or is likely to result in major economic loss, is guilty of an indictable offence and liable to imprisonment for life.

This specific offence was created by the Anti-terrorism Act in order for Canada to be able to ratify the International Convention for the Suppression of Terrorist Bombings. Article 2 of that convention has similar wording as section 431.2 of the Criminal Code, with minor differences. The wording of the Criminal Code provision, and the wording found in the convention, clearly catches suicide bombings since they apply to anyone who detonates an explosive device in a public place. I will not list all the other elements tied to it. With intent — and here is the key — to cause death or serious bodily harm to another person, et cetera. The ``et cetera'' deals with causing damage to a place and government facilities or any other facility. Moreover, the offences of attempt, counselling and conspiracy would also apply under the terms of our current legislation. In other words, whether the actual perpetrator survives, offences apply to any individual found to have assisted in the commission of the act.

Part (b) of the definition contained in the Criminal Code provides for a more general definition of terrorist activity. Under this definition, terrorist activity may also be:

(b) an act or omission, in or outside Canada,

(i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

The famous motive requirement that all senators are well aware of follows:

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada,

For our purposes, these various harms include, among many others, the harm of, `` . . . death or serious bodily harm to a person by the use of violence.''

Allow me to ask this question: By virtue of these two definitions, in what way is the phrase ``intentionally causing death or serious bodily harm'' unclear?

We believe and I hope that you can see that suicide bombing in the terrorism context is clearly covered by the current legislation. In our view and with respect, the claim that adding ``suicide bombing'' to the definition of terrorist activity is needed for the purpose of clarity is not made out.

At this point, we also wish to respectfully submit that this proposal, if enacted, could have potential negative impacts on the current legislation. For example, it could send the message to our courts that, because greater clarity in the definition of terrorist activity was needed to catch suicide bombers, the rest of the definition of terrorist activity may then become unclear and thus could undermine the court's interpretation of what constitutes the definition of terrorist activity.

Here is another issue: It could also open the door to others wishing to add other specific types of terrorist activity to the current definition, all for what may be intended to be ``for greater certainty'' yet which would end up creating lesser clarity.

The refrain would then become that, if it is not clearly stated in the legislation, it may not be covered. This is what we would fear.

Finally, this bill also raises a number of other important questions that are left unanswered. What would be the definition of ``suicide bombing?'' How would we distinguish a suicide bomber whose intent is only to kill himself by blowing himself up in a deserted field from someone whose intent is to engage in a terrorist activity using suicide bombing means?

What of a suicide carrier of a biological weapon, something which is not unknown or is not impossible? How is such a person to be treated if not listed specifically, or ``for greater certainty,'' under the definition as this bill proposes in respect of a suicide bomber?

Moreover, by focusing on the concept of a suicide bomber or suicide bombing, as is being proposed in this bill, it is respectfully submit that we lose sight of the real reason why terrorist bombings are justifiably criminalized. It is not that the person wishes to commit suicide that is the key, it is the fact that the person wishes to kill innocent persons in a terrorist context. From this perspective, whether he or she lives or dies in the attempt to commit the bombing is irrelevant.

Why would we want to put emphasis on the perpetrator instead of on the act itself? Why focus on the suicide bomber and not on other types of bombers? Is one more important than the other? Is it not the homicidal act of bombing with its consequences rather than the suicidal act that is of importance and should be criminalized? These are all serious concerns we have with the passing of this bill.

Not only is a ``for greater certainty'' clause unnecessary but, in fact, given that a ``suicide bombing'' is not defined, this bill would bring less clarity to the definition rather than more. Additionally, it would be harmful to the definition since it would import conduct that is clearly not a terrorist activity, such as the example given earlier: The person blowing himself up in a deserted field for no other purpose, at least not for a terrorism purpose.

I will close, honourable senators, by saying that it is also worth noting the results of the parliamentary review of the ATA that took place. Both the special committee of this house as well as the subcommittee on the review of the Anti- terrorism Act in the other place examined the definition of ``terrorist activity'' as part of their review. As you all know, that committee, as well as the other committee, heard a number of expert witnesses on security matters and other academics, and they made no recommendation in this regard when they tabled their final reports.

Also of importance, and something to consider, is the fact that on the international front, to the best of our knowledge, no country, ally or otherwise, has incorporated such words in the definition of ``terrorist activity,'' nor has there been any pressure from the United Nations to do so. Any questions in relation to international matters such as we are discussing here can be addressed to Ms. Nölke, who is the expert in this field.

Honourable senators, allow me to reiterate: The government unequivocally condemns suicide bombings. If evidence is found to fulfill all the requisite elements of the definition of ``terrorist activity'' as it is currently worded, suicide bombings can and will be prosecuted under our existing laws.

Finally, we wish to commend Senator Grafstein for drawing our attention to this important issue, and we hope that our presentation as well as our answers to questions you may have for us will contribute to your consideration of this bill. Thank you.

Mr. Gilmour is with me today. He is an expert in this field having spent a great deal of time on research on the definition of ``terrorist activity.'' He is here to answer any questions in that regard.

Senator Oliver: Thank you for your excellent presentation. My first question is could the bill before us now be cured if it did in fact have a definition of ``suicide bombing?''

It is not just the bomber that we want to get. Normally, if a person is doing this for religious, political or ideological purposes, there is probably someone else behind it with them. Is 83.01 (1)(b) of the Criminal Code able to catch someone who aids or abets or assists that suicide bomber?

Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice Canada: I draw your attention to two different things, though they are related. In the definition of ``terrorist activity'' in section 83.01, near the end of the general definition is the following, ``and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission . . .'' It then goes on to make an exception. In the actual definition of ``terrorist activity,'' there is a specific provision that terrorist activity can be committed through various means, such as attempting or counselling.

Another section I would to draw your attention to is section 2 of the Criminal Code which lists various definitions, and there is a definition in there of a ``terrorism offence.'' There are four paragraphs to that particular definition. The first three paragraphs list various kinds of offences. Paragraph (d) in the definition of ``terrorism offence'' states that terrorism offence also means ``a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or counselling in relation to, an offence referred to'' in the previous three paragraphs.

In other words, both in the definition of ``terrorist activity'' itself and in the definition of ``terrorism offence'' found in section 2 of the Criminal Code, there are specific references that those activities are also caught by those definitions.

Senator Oliver: Are you also of the view that the language ``for greater certainty'' does not in fact bring greater certainty from a legislative point of view?

Mr. Gilmour: We start from the position that the Criminal Code is already clear in the definition of ``terrorism activity.'' In paragraph (a) it lists specific offences under the various international conventions and specifically in relation to the offence described that allowed Canada to ratify the terrorism bombing convention. In paragraph (b), it states that any bombing that results in intentional death or causing bodily harm. In the general definition, it states where it intentionally endangers someone or causes a threat to the safety of the public. Our position is simply that we feel the Criminal Code is already sufficiently clear to catch that kind of activity.

Mr. Parent: If I may add on that point, suicide bombing is obviously a means by which a terrorism act is being committed. If we were to go the route as proposed in this bill, it would be similar to getting someone to say he who commits murder with a knife is guilty of the offence. What is important is not the means by which the general infraction is committed, it is the infraction and how it is defined within the current definition. If it catches it, if it is in there, there is no need to state that the knife is needed, so long as the loss of life is by the act that is the criteria by which some one will be charged. I am drawing that parallel because the means is important, but it is not the real issue that we should be looking at.

Senator Oliver: I understand. In your presentation, you actually gave us not just what was in the Criminal Code already in terms of an explanation and definition, but you also went into the convention. I would like to know whether other countries have ratified the convention and had the language tested to see whether it is capable of catching what Senator Grafstein would like to catch. Do you know of other examples?

Sabine Nölke, Director, United Nations, Human Rights and Economic Law Division, Foreign Affairs and International Trade Canada: Thank you. I have not prepared a general statement, but before responding to your question I would note that the matter we are discussing here is of some personal importance to me as well. One of my good friends and colleagues was murdered by a suicide bomber in Afghanistan two years ago.

With regard to the convention, I am not aware, but we do not follow the implementing legislation of every state. Over 160 states have ratified the convention. We have not monitored all the implementing legislation. I am not aware that any state has specifically made reference to suicide bombings.

I was privileged to be part of the negotiations of the convention and in fact of the preparation of the drafting text. The convention was an initiative of the G8. I was one of the G8 experts that put the negotiating text together. At the time, we talked about delivery of bombs. We wanted to keep it as wide open as possible to catch any potential means of delivery, whether by strapping a belt around yourself or whether by lobbing a missile or perhaps coming up with methods we have not yet thought of, for the simple reason that in the past, when international instruments were drafted on terrorism, they tended to respond to specific attacks. The offences they created were very specific to that attack and sometimes so narrow that it became obvious six months later that it was not sufficient to catch everything out there. When we negotiated the terrorist bombing convention, we deliberately tried to keep the definition of the offence as wide open as possible so that we could for once stay a step ahead of the terrorists and not be limited by our views of what and how they might commit their activities. For that reason, I am not convinced at all that any one of the states that implemented would want to make it narrower rather than the wide definition that it currently contains.

Senator Baker: If I follow your logic, you say that we should not include the words ``for greater certainty'' because it is already a terrorist activity under the definition in section 83.01.

If it is already there, what is your principal reason for not allowing us to recognize that it is there?

Mr. Parent: For all the reasons I mentioned in my statement, you are opening a Pandora's box. If there is no necessity, then there is no reason why we should put it there. That is the position.

There is a difference to be said between adding the words ``for greater clarity'' when you are taking something away from the general definition as opposed to putting more into the definition.

Senator Baker: You could use it to put something into the definition. It is to exclude something or to add something to the definition. There are two places in the clause where we see the words ``for greater certainty.''

Mr. Parent: Yes, senator and both of them are for exclusions.

Senator Baker: Would you not regard the first one as exclusionary and the second one as inclusionary? I suggest that because the first ``for greater certainty'' in that definition is to exclude conventional acts of war and what are regarded as being the recognized conventional acts of war. The second ``for greater certainty'' — and I was going to say ``for greater clarity,'' which is sometimes used, and is sometimes used for greater certainty and for greater clarity — says that religious, political or ideological causes are included if the elements in (b) form a part of the activity.

Are you following me?

Mr. Parent: Yes.

Senator Baker: Under that reading, which is the reading that is there, it is inclusionary, I would suggest, and that is already in the definition.

I would like to make one correction to what you said a moment ago and a correction to the minister's letter that he is sending out pertaining to this item. You mentioned a moment ago ``political, religious, and ideological purposes,'' and then you ran through the constituent elements identified in section 83.01(1)(b). That section, of course, has been struck down by the Superior Court of Ontario, as you are aware.

Mr. Parent: It was Justice Rutherford in Khawaja.

Senator Baker: Yes. That was appealed to the Supreme Court of Canada and permission to appeal was refused about a month and a half ago. It is perhaps for that reason that some people believe there should be a ``for greater clarity,'' that what is already assumed to be in the definition should be, for greater clarity, included in the definition, in that ``for political, ideological or religious reasons'' has been struck down.

Let me refer you to the Supreme Court of Canada in Suresh, 2002, in which the Supreme Court of Canada addressed the definition of ``terrorist activity.'' I refer you to paragraph 98, the paragraph before the conclusion to these words from the Supreme Court of Canada, ``Parliament is not prevented from adopting more detailed or different definitions of terrorism.'' The Supreme Court of Canada says that because what came before that was that there was confusion and it is an ever-changing definition as time goes on as to what terrorist activity is under the law. The Supreme Court of Canada suggests Parliament is not prevented from adopting more detailed or different definitions of terrorism. That was 2002.

If you look at your cases since 2002 regarding terrorism activities, you see statements such as this in Al Yamani v. Canada. In that judgement, 2006 CarswellNat 4252, Justice Snider said, ``. . . engaged in activities commonly associated with terrorism, such as airline hijackings and suicide bombings.'' The court consistently recognizes those two definitive areas as activities commonly associated with terrorism today.

As you pointed out a moment ago, we are signatory to a convention on airline hijacking. It is specifically defined as ``airline hijacking.'' It says ``taking possession of an airline.'' We are signatory to it. It is part of the definition in 83.01, which is enabled by section 7 of the Criminal Code. However, we have no section that identifies suicide bombings, although suicide bombings and airline hijackings are the two activities commonly associated with terrorism. Those are not my words but the words used consistently in cases before the Federal Court.

The Chair: This is a fascinating, Senator Baker, but do you have a question?

Senator Baker: I am putting forward a rebuttal to everything that has been said here today.

Senator Oliver: Mr. Gilmour is ready to respond.

Senator Baker: I will get to my point after Mr. Gilmour responds.

Mr. Gilmour: For the purpose of the trial, the judge struck down the motive requirement in the Khawaja case. That case was heard in the Ontario Superior Court. The appeal involved the defence counsel who wanted to appeal to the Supreme Court of Canada. He argued that some of the terrorism offences were unconstitutional and the judge had upheld their constitutionality with the effect that one of the additional criteria that would otherwise have had to be proved by the prosecution beyond a reasonable doubt no longer existed as a result of the judge's decision. The Khawaja case has yet to go to trial and the issue may be finally resolved by the courts later on.

Senator Baker: You are saying the Supreme Court of Canada rejected the appeal based on those other reasons.

Mr. Gilmour: If I remember correctly, it was a question of whether he wished to make an interlocutory appeal to the Supreme Court. It was a question of whether he satisfied the requirements for an interlocutory appeal. It was on that procedural basis that the appeal was denied.

The Khawaja trial has yet to take place. We will see at the end of the Khawaja trial whether the regular appeal routes will be taken in relation to any verdict that might take place. I cannot speculate about that. I just point out that I would not want to have the mistaken impression that all the appeals in the Khawaja case had finally taken place here. That is not what happened.

The result in Khawaja case was that the Superior Court judge in charge of the case said that particular motive requirement should be dropped. That, of course, meant that there was an expansion of the definition because that particular safeguard did not have to be met. It was added in an attempt to narrow the scope of the definition so that it would not catch regular forms of criminal activity; it was an attempt to define further the definition of terrorist activity to separate it out from regular forms of criminal activity that might involve intimidation, such as organized crime.

Senator Baker: As of now, it is severed from the legislation by the Superior Court.

Mr. Gilmour: It had an effect of taking out something that would have had to be proved and making it more expansive than it had been had the motive requirement been kept in. That trial is yet to be held: I would not want to speculate at this point as to the ultimate result.

In this particular case, you mentioned the quote from the judge that referred specifically to suicide bombing and I take your point. However, I would also point out that other bombings can take place that do not necessarily involve suicide but that are also particularly heinous. Two come to mind: The Bali bombing and the bombing in Madrid. Both of those were terrorist bombings that did not involve suicide bombing. If one were to put in suicide bombing ``for greater certainty,'' what does that say about these other kinds of bombings?

At the end of the day, you have the means to commit a terrible act. The terrible act is not terrible because the person has committed suicide; it is due to the intent to kill innocent people. Whether the person kills him or herself in the process seems to be irrelevant. If you were to have someone who was a relative of a victim who died, say, hypothetically as a result of a terrorist bombing such as the Bali or Madrid bombing and they looked at the definition of terrorist activity and saw a specific reference to suicide bombing, what message does that send to them about the other kind of bombing?

Senator Baker: I understand the point that but there is a rebuttal to that point.

The Madrid and Bali bombings are covered in the international agreements and under section 431 of the Criminal Code, as Mr. Parent pointed out.

He read it out. What was in that section? I do not believe a suicide bombing would be in that section. However, section 431.2 (2) that you read out, Mr. Parent has qualifiers in it. Section 431.2 (2) says this that the person is causing the death of people — this is the intent — or will cause a major economic loss or significant damage to public transportation or a facility. That section deals with extensive damage to a public building or facility, or disruption if the bombing causes economic disruption.

Madam Chair, the point is this: What the senators are after here is to stop those who are sowing terror. Under the definition of the Criminal Code 431.2 (2), someone could go to the entrance of a building or institution and could blow him or herself up, cause only damage to the entrance to the building, not cause major economic disruption or major damage under section 431. Those are the qualifying figures. I suggest they may not kill anybody else and not come under section 431 of the Criminal Code.

Section 431 of the Criminal Code, Mr. Gilmour, as was pointed out by Mr. Parent, is actually the gravamen of section 7 that brings in terrorist bombings. Section 431 triggers the offence and on a straight reading of it does not specifically cover a terrorist bomber. However, it would cover the blowing up of trains and disrupting major transportation links.

The honourable senator is simply saying, look, if we will stop those who sow terror, under section 431 you have to prove intent; you have to prove that the person has the intent to cause major economic disruption.

Senator Oliver: It is covered under section 83. 01.

Senator Baker: Yes, because section 83.01 recognizes section 431 as being the implementation of the international agreement. Do not you agree with that?

Mr. Gilmour: We agree that 431.2 is meant to implement the terrorist bombing convention which is found, as I mentioned, in (a) of the definition of ``terrorist activity.''

As was pointed out, the general definition of terrorist activity already covers a suicide bomber or any other kind of bomber where it intentionally causes death or serious bodily harm, or the other various listed kinds of intentional harms found in the general section concerning terrorist activity.

As Mr. Parent pointed out, I have been looking at what other countries have done in the context of their definitions of terrorist activity. I am familiar with other Commonwealth countries such as Australia, the United Kingdom and New Zealand. I have looked at the American legislation as well. Two of those countries — Australia and the United Kingdom — have had reviews of their definitions of terrorism over the last couple of years. In Australia, it was done by parliamentary committee. In the United Kingdom, Lord Carlile of Berriew conducted an independent review of their anti-terrorism legislation. He submitted his report last year. Neither country has in their definition of ``terrorist activities'' a specific reference to the term ``suicide bomber.'' Instead, they use phrases and definitions similar to what we have in our current definition of terrorist activity.

Ms. Nölke: I have a couple of comments in response to Senator Baker. With regard to the hijacking provision in the Criminal Code, in the international experience, that is the result of having specific conventions. The first hijacking convention was so specific that it only addressed offences committed on airplanes in flight. Within about six months, it was realized you could hijack planes that are sitting on the ground. Therefore, we needed a new instrument.

Two years after that, attacks on airports happened. Some people of a certain age will remember the image of the TWA airliner sitting on the airport. Then there was an attack on an airport. You could endanger civil aviation not only on board airplanes but in airports themselves. We needed a new instrument.

Two decades of experience on excessive specificity led to the creation of the terrorist bombing convention, the aim of which was to be as expansive as possible so that they would exclude as many different types of terrorist bombing attacks, including attacks by lethal devices that were not necessarily bombs or biological and nuclear and radiation agents. It was a very wide provision specifically to stay one step ahead of the terrorists and be as inclusive as possible.

The international community has made many statements condemning suicide bombings. The Security Council has issued a number of condemning statements, either in resolutions by the council or in presidential statements, but each time those statements are followed by an exhortation to UN member states to ratify the existing counterterrorism conventions. They do not suggest an additional instrument is needed to attack the particular phenomenon of suicide bombings. The conviction that I have seen in the international community on this point is that the terrorist bombing convention and then of course state's respective implementing legislation is sufficient to address that particular phenomenon.

Senator Milne: If I may take Senator Baker's analogy just one step further, if a suicide bomber blew him or herself up in the doorway and did not cause any great economic harm or death to anyone else except themselves, would his or her death be caught under the present laws?

Mr. Parent: There are a number of elements that have to be met in order for somebody accused under section 83.01 to be caught. If, in your example, a person simply blows him or herself up with no other intention to cause damage to other people or property, then no, suicide is not an offence under the Criminal Code. Obviously, it is impossible to place any accusations or charges if the person dies as a result of the bombing. If there is a failed attempt at committing such a suicide, that is also excluded. The person cannot be charged on an attempt to commit suicide under the terms that you specify. The person can be charged if the individual had the intent to commit the crime. Even if the attempt fails, if it can be proven that the individual intended to cause harm to people or property the individual may be charged. If the intent is present and if the deed meets the other elements of the crime as described in 83.01, whether for an ideological, political or religious purposes, then yes, that person is caught under that definition.

Senator Milne: Then you go after the people who abetted them.

Mr. Parent: If that person dies, you cannot charge the person and you would be only able to charge people who contributed, counselled, abetted or were in some way part of the commission of the act. If the person did not die, however, and it was a failed attempt, but the intent was as I have described, then that person can be charged under section 83.01 of the Criminal Code of Canada. That distinction has to be made.

In Senator Baker's example, where a person blows himself up and kills himself, that is simply the act of committing suicide. If the attempt fails, the person cannot be charged under the Criminal Code; however, if someone else helped him out, that is another matter. Then we are dealing with another issue.

It is all a matter of the evidence that you have and the facts that surround the commission of that suicide, and here we are talking about committing suicide with a bomb, but it could be committing suicide by any other means. Again, the criteria would be the same, and the analysis that follows would have to be the same. I hope that answers your question.

Senator Milne: I suppose it does.

Do you know if there have been any instances of suicide bombing either in or outside Canada that have involved Canadian citizens? If so, have they been charged and has our Criminal Code caught them?

Mr. Parent: I am not aware of any, unless Mr. Gilmour knows, here in Canada anyway.

Mr. Gilmour: Inside or out Canada, there was the example Ms. Nölke gave of her friend who was a Canadian diplomat who was killed in Afghanistan.

Senator Milne: It was not a Canadian committing the act.

Mr. Gilmour: No, it was not. I am not aware of any Canadian that has engaged in an act of suicide bombing, although I certainly stand to be corrected if that is indeed the case.

Senator Milne: Ms. Nölke, do you know if Canada has taken any steps other than ratifying the convention on combating suicide bombing outside Canada?

Ms. Nölke: Yes. We participated in a workshop that was held under the auspices of the Organization for Security and Co-operation in Europe in 2005, which brought together about 160 experts on suicide bombings, as well as members of 8 international organizations. About 40 states were represented. They studied the social and psychological aspects of suicide bombings from a prevention standpoint and the standpoint of trying to understand it. The workshop did not call for new legislation. The OSCE has consistently called for the ratification and implementation of the existing counterterrorism conventions.

We also were part of a G8 statement, which mentioned specifically suicide bombings as a subset of other terrorist activities as something the G8 would seek to prevent, but again in the context of the existing international legal framework.

Senator Milne: I believe most of the people who died in the Bali bombings were Balinese or Australians. Were Canadians caught in that attack?

Ms. Nölke: Two Canadians were killed in that bombing. Of course, Canadians have died in bombing attacks all over the world, Air India being the prime example. Of the eleven people who died in the Lockerbie bombings, two were Canadian. Canadians have died in the streets of Paris, and Canadians have died in Israel as victims of bombing attacks. The phenomenon has certainly affected Canadians all over the planet.

Senator Milne: Has Canada taken any steps to prosecute the people who have done this other than the ones we have here in Canada?

Ms. Nölke: The principle behind international legal cooperation on terrorist activity is the prosecute-or-extradite principle that underlies all the international counterterrorism conventions. Generally, it is preferable that prosecutions occur in the country where the evidence is. If someone has blown up a bomb in Paris, it is easier to prosecute them in Paris where you have the evidence and contacts and all the other aspects.

I am not aware that Canada has sought to extradite anyone connected with a bombing that has killed a Canadian. I am not an expert in that kind of law. The Department of Justice is responsible for making extradition requests. I am not aware that a request has been made or that perpetrators have been identified for the purpose of even making such a request.

Senator Joyal: I listened carefully to the arguments of Justice Rutherford in relation to the definition of ``terrorist activity.'' Do I understand that as long as, in the opinion of the Department of Justice, there is no final decision of the Supreme Court on the very issue of the definition of terrorist activity, that you will stand by the definition as it is now in section 83.01 of the Criminal Code?

Mr. Parent: As we stand now, the definition remains unchanged. It is to be said that the Superior Court came up with a ruling in Rutherford decision striking down the motive requirement. By virtue of the stare decisis concept, no other superior court is bound by that ruling, in the sense that any other judge can hear evidence over again on issues in relation to the terrorist activity and the definition, and find that the motive requirement is constitutional. That will raise a contradiction and there is no question that that case could end up in the Court of Appeal. It is all a matter of how things evolve. As we stand now, there has been no change to the definition. It is still the same as it was when it was enacted in 2001.

Senator Grafstein: The law of Ontario has been changed by that decision.

Mr. Parent: If there were a court that came under the Superior Court to hear a case, it would be bound by stare decisis. These cases will all be before the Superior Court. That is the first level at which the case would be heard.

Senator Baker: The decision has been made by the Superior Court.

The Chair: It is a fascinating discussion, but it is Senator Joyal's question.

Senator Joyal: It is one of the first questions I wanted to clear up so everyone understands where we sit in relation to the definition, which is a very important element of this bill.

Mr. Parent: The Department of Justice is monitoring the events in the courts. We will see as things flow. We do not know what will come out of the Toronto case. That issue may arise again and we will have to monitor and see how things unfold. As it stands now, the motive requirement is still in that legislation.

Concerning that specific issue, Senator Joyal, as well as the point you have raised with regard to the motive requirement, I suggest that if you have a chance, that you read an interesting article written by Ben Saul, which speaks to that point. You might be interested in finding out what is being said about motive requirement.

The Chair: Would you mind sending the committee a copy of that article, please? We can circulate it to all members

Senator Baker: On a point of order, if I understand Mr. Gilmour correctly, Justice Rutherford made a decision during a trial where he struck down and severed a portion of the definition of ``terrorist activity.'' What Mr. Gilmour told us a few moments ago is that in order to appeal that decision of the Superior Court judge, you cannot have an interlocutory appeal during a trial. You have to wait until the trial is over and then you appeal to the Court of Appeal on that particular matter.

However, on the principle of stare decisis, as Mr. Parent has said, any other Superior Court judge in the province of Ontario is bound until that matter is decided otherwise, and any other court below the Superior Court in Ontario is also bound. I would suggest that every single case of similar facts would use that particular case as a precedent to advance the same arguments in any other province in Canada.

The Chair: Senator Baker, that was not a point of order, but I will take it as an interesting supplemental question.

Senator Joyal: I myself make those comments.

The Chair: Do you wish to comment, Mr. Parent or Mr. Gilmour?

Mr. Gilmour: I want to make a brief statement for clarity. The article to which Mr. Parent referred is written Professor Ben Saul, who is an Australian law professor. He was with the University of New South Wales, but I think he may have moved to another university.

I will send the committee two articles, one written by Mr. Saul arguing for the motive requirement, and another, written by Professor Kent Roach, who I believe some of you know, arguing against the motive requirement.

Senator Joyal: You stand by your reasoning against the appropriateness of the bill introduced by Senator Grafstein based on the present definition of ``terrorist activity.'' However, if the Court of Appeal or the Supreme Court were to strike down the definition that means that your, as we say in French, ``échafaudage'' would fall apart.

Mr. Gilmour: As you know, in the Khawaja case, Mr. Justice Rutherford decided that the proper remedy was simply to sever the motive requirement from the remainder of the definition so that the remainder of the definition is, under his ruling, still constitutionally valid.

Senator Joyal: I do not disagree with you. However, since you based your reasoning on a definition of ``terrorist activity'' for which one of the essential elements is the motive, as long as the motive element disappears, we have to review your argument against the proposal of Senator Grafstein.

Mr. Gilmour: The point I was making is irrespective of the motive requirement, in paragraph 83.01 (1)(b) of the definition, the specific harms set out there, the acts and omissions, nonetheless, whether mode of activity is retained in the definition ultimately or not, specific harms would remain. They include the harms of intentionally causing death or serious harm to a person.

It seems evidently clear to me that whether it is a suicide bomber or a terrorist bomber either activity is caught by the definition of ``terrorist activity'' as it currently exists under the Criminal Code. In the case of the Madrid bombings, the terrorist wanted to plant the bomb and detonate it from a distance. Our argument is simply that the law is clear and for that reason, our position is that the definition should remain as it is.

Senator Joyal: On that basis, you are certainly aware, because you have quoted the report of the Senate, I think partially with great respect that did not include a specific reference to suicide bombing in the definition of ``terrorist activity.'' You omitted to say in the same sentence that the first three recommendations in the Senate report are about a review of the definition of terrorist activities. It makes sense that if you use the report, you use the whole report, the whole recommendation and not what is not in the recommendation.

The first recommendation states:

That clause 83.01(1)(b)(i)(A) of the Criminal Code, which requires an act or omission be ``. . . . committed in whole or in part for a political, religious or ideological purpose, objective or cause,'' be removed from the definition of terrorist activity found in section 83.01(1).

The second recommendation is, ``That the government legislate a single definition of terrorism for federal purposes.''

Recommendation three states:

That paragraph (c) of the definition of ``threats to the security of Canada'' in section 2 of the Canadian Security and Intelligence Service Act be amended by removing the reference to a political, religious or ideological objective and replacing it with alternate wording to indicate the type of violent activities against person or property that constitute threats to the security of Canada.

The position of the committee of the Senate is very clear based on the very definition that is in the Criminal Code.

With great respect to you, I expect that when officials testify and quote a Senate report recommendation, the officials quote the entire recommendation and not just whatever seems to suit their argument. I think you know the rules in that regard. I am surprised you did not mention the Senate recommendations. For reasons that are yours, — and I listened to them and tried to understand them — you conclude differently, as long as the court does not order you at the final level to say you are wrong.

Personally, I have a problem standing by the Department of Justice when there is prima facie doubt about the definition coming from a Superior Court and you wait until there be X number of cases before coming to the conclusion that perhaps you should review your definition. This is especially since the Senate report spent 43 days and heard 121 witnesses and came to that unanimous conclusion, with the agreement of both sides of the committee. When you testify on this, I would like you to take the whole picture and not just what seems to suit your arguments.

Mr. Parent: I apologize for not specifying that with regard to the Senate recommendations, we understood the Senate as having requested that the motive requirement be removed from the definition. However, what is before us today has nothing to do with the motive requirement. The issue before us today has no bearing on whether the motive requirement should or should not be part of the ``terrorist activity'' definition.

Currently, Justice Rutherford has recognized the entire definition as being constitutional save and except for the motive requirement. The case continues; let us not forget that the appeal put before the Superior Court of Canada was an appeal put by Khawaja's lawyer. I was under the impression that the Crown had a cross appeal, but I am told they had not. Khawaja's lawyer found himself in a situation where he had essentially permitted the Crown to prove the infraction with a lesser burden; that is he did not have to prove the essential element of the motive requirement. This is going into all the details of the actual Khawaja case.

With all due respect to senators around this table, I do not believe that issue has any bearing on the issue before us, which is whether there is any practical or legal advantage to adding the words ``suicide bombing'' to the legislation. Our view on that point, regardless of what happens with the motive requirement, is that we should not do that for the reasons I specified, and all reasons that I referred to have no bearing whatsoever on the issue of the motive requirement. I should have been clearer and raised that point, because we want to be clear and we want to ensure that you get all the information.

As we understood the recommendation from the Senate, it was simply to remove the motive requirement and, in our view, that had no bearing on the issue here today.

Senator Joyal: I understand you are against the Senate recommendation, based on the answer you provided.

Mr. Parent: The issue is before the court, and it is preferable that it stays there until the entire process is completed.

Senator Joyal: Ms. Nölke, the United Nations Human Rights Committee, in its report of 2006, said:

The committee, while noting the existence of a social protest protection clause, expresses concern about the wide definition of terrorism under the Anti-Terrorism Act. The State party should adopt a more precise definition of terrorist offences, so as to ensure that individuals will not be targeted on political, religious or ideological grounds, in connection with measures of prevention, investigation and detention.

What was your answer to that recommendation?

Ms. Nölke: I believe we answered that question in writing. I am not in a position to give you a specific answer; however, I notice this particular question addressed the issue of motive. From what I understand, the Human Rights Committee was concerned with issues relating to religious freedom. I can provide you with the specific answer. I believe we responded to the committee's recommendations in writing, and I can certainly make that available to you.

Senator Joyal: I accept that you are not in a position to answer, but I want it to be noted, because this is a very important element raised in the Senate report under the review of the definition of ``terrorism activity.''

The Chair: Ms. Nölke, as I understood your opening statement, you suggested that to include suicide bombing in a ``for greater certainty'' clause might open the door to novel defences down the line. I understand that you mean where people might suggest that some other nefarious act would otherwise have been caught under the definition of ``terrorist offences'' now might not be because it was not specified the same way as ``suicide bombing.'' That is what I thought I heard you say.

However, in my 10 years of experience in this place, we use ``for greater certainty'' clauses all the time to single out specific elements. They do not, as I understand it, generally give rise to the novel defence that because there is not a specific ``for greater certainty'' clause to this other offence, it is not captured under the general umbrella of the law. Why would this one be different?

Mr. Parent: I do not know to which specific sections of the Criminal Code you may be referring when you are talking about specificity. In drafting conventions, they normally state the general infraction and the means by which that infraction is committed is of no importance. The element of the crime is whether that infraction has been committed. In this sense, we are saying that currently, the way the definition is worded, so long as you can prove each and every essential element —

The Chair: I am not on the motive part of the definition. I am just coming back to the specific text of this very short bill and trying to determine why you think it would open the door to abuses down the line.

Mr. Parent: As I pointed out, there is no necessity to do it because it is already covered. This does not define suicide bombing. What of the suicide carrier, as I mentioned as another example?

As Ms. Nölke very ably put forward, they have tried to stay away from the specificity in order to ensure that acts of terrorism are covered. Who would have thought that bioterrorism 50 years ago? They left it open and made it general in such a way that any type of means by which the act would be committed would be covered. That is the message we are sending.

As I pointed out, to include one may simply put the court into a situation whereby, if asked to interpret it, it may not be helpful for the court to do so. The court might question it and ask why this and not this other one?

The Chair: That was my question. Given that it is fairly common practice in bills that come before this place, both those affecting the Criminal Code and others, to include ``for greater certainty'' clauses, are you suggesting that all ``for greater certainty'' clauses should be thrown out because they do not include everything?

Mr. Parent: That is not what I am suggesting. As has been pointed out by Senator Baker, there are two ``for greater certainty'' clauses. He interprets one as being inclusive, although I would say it is exclusive. Does that preclude the possibility of ever coming forward with some piece of legislation that would include those terms? That is not what I am saying.

Each piece of legislation has its own character and it must be analyzed along the lines of the goal of the legislation. In this sense, we are trying to catch a terrorism act no matter what the means. The way to do it is the way the act was drafted.

The Chair: You are doing a noble job of defending your positions. In your view, is suicide bombing a crime against humanity?

Mr. Parent: Crimes against humanity, of course, involve various essential elements that need to be proven in order to be caught under that specific act. I would prefer that question be directed to the person in charge of crimes against humanity section. However, my understanding is that it is if it meets all the elements, including ``widespread systematic attack.''

The Chair: I can refresh your memory, if you want.

Mr. Parent: That is fine. Nevertheless, I would consider the possibility of looking into whether it could be caught. It may be caught. Perhaps Ms. Nölke can address that issue.

The Chair: Let me read the definition, not in the convention but in the Canadian Crimes Against Humanity and War Crimes Act:

``Crime against humanity'' means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations . . . .

That seems to be set out in Canadian law. Does that cover suicide bombing?

Ms. Nölke: It can, but it does not necessarily. Not every suicide bombing attack is a crime against humanity. The customary international law is best expressed in the language of the Rome Statute of the International Criminal Court, which expresses that a crime against humanity is when it is committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.

For example, a concerted campaign of suicide bombings directed at the civilian population could constitute a crime against humanity. An individual suicide bomber, however, does not necessarily commit such a crime unless he is part of that systematic campaign.

It is a bit of a ``yes and no'' answer, but that is the case with most crimes against humanity. Murder, for example, is one of the listed crimes that could constitute a crime against humanity but only if the threshold is met that the Rome statute or the customary international law sets out. Not every act of murder is a crime against humanity but a campaign of murder would be.

The Chair: Would a campaign have to include more than one act or repeated acts or several simultaneous acts, or could it be taken to consist of one huge act, such as blowing up the World Trade Center? This assumes it could be proven that the act was the outcome of a sustained planning process involving a number of people.

Ms. Nölke: I think that is a determination I would leave to a court. You would have to know the specifics. I am sure you are probably referring to the September 11 attacks and whether they could constitute a crime against humanity. That was much debated at the time. There are no conclusive statements that it was a crime against humanity.

In some instances, whether to characterize a specific event or incident as a crime against humanity seems to be more about a political declaration or a particular condemnation rather than have specific legal consequences. That is something we have found in a number of instances. For example, about 18 months ago, the then-United Nations special representative in Afghanistan declared a specific attack that killed four Canadian soldiers to be a crime against humanity. That was, in essence, a very strong condemnation of the incident. Whether that statement had legal validity is not something I want to comment on; that is for a court to determine.

You have similar instances, for example, in crimes charged before the International Criminal Tribunal for the Former Yugoslavia — acts of genocide. Genocide requires a specific intent. That tribunal has found, for example, that a single incident, a single murder, could constitute an act of genocide if all the other criteria are met. It is a determination for a court to make under each specific circumstance.

Senator Grafstein: I am not a member of this committee but I do have a direct interest in the result.

The Chair: You have the same right as every other senator to put a question, Senator Grafstein.

Senator Grafstein: I have done this before and I appreciate you allowing me to ask questions, but I do not want to interfere with the existing time of the other members.

Perhaps Senator Milne can proceed and then I can deal with some of my other issues. I will be making a statement and then ask some questions.

The Chair: A brief statement followed by cogent questions.

Senator Grafstein: I think the witnesses have engaged us. We are here to have an exchange with the witnesses to see if we can understand what they are saying. Right now, I do not understand.

Senator Milne: Ms. Nölke subsection 7 (3.72) states:

Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 431.2 is deemed to commit that act or omission in Canada if

It seems to me this is a perfectly logical reason to bring any Canadian back to trial who has done one of these terrorist acts outside the country. It is also a very cogent reason to bring young Khadr back to Canada for trial. Does anyone wish to respond?

Senator Baker: On a point of order, I believe Ms. Nölke was recently part of a delegation sent by the Government of Canada to interview in this particular case.

The Chair: Have you been to Guantanamo?

Ms. Nölke: I have been to Guantanamo on four occasions, but I am not here to testify on Guantanamo. I believe my testimony is properly limited to the matters before the committee; namely the bill. I believe there may be other opportunities to ask questions about this particular case. With your indulgence Madam Chair, I will take a rain check on this particular aspect of the question.

With regard to the Criminal Code provision, what Senator Milne has read is the extraterritorial law provision. In other words, that is the basis for jurisdiction that Canada would take over certain offences committed abroad.

Whether or not that section is applied — and my colleagues can testify on that more knowledgeably — is subject to the consent of the Attorney General. That is precisely because of the technical and practical difficulties at times to prosecute extraterritorial offences. Again, we have evidentiary issues; we have witness availability issues, et cetera. While this gives us the power to charge such offences and prosecute them in Canada, whether that occurs will be a question of the individual circumstance of each case.

Senator Milne: It will be a political decision by the Attorney General, in other words.

Ms. Nölke: I am not sure you would necessarily characterize it as a political decision. I would defer to my colleagues on that issue. It is a decision that must be made based on input from the prosecution service and whether there is sufficient evidence to lead to a successful prosecution. The ultimate goal of such prosecutions is of course always success. You do not necessarily want to make a charge just for political reasons; you want to have the necessary evidence to ensure that justice can be served.

I would like to supplement my earlier response to you, senator. With regard to charges having been brought in connection with extraterritorial offences I believe — but this is before my time — that an extradition request was made to India in respect of the Air India bombings. I believe there has been an instance where Canada has sought to prosecute someone for an extraterritorial offence.

Senator Milne: I will let you off the hook on Khadr.

Senator Joyal: That is not suicide bombing. That is the nuance of Senator Milne's question.

Ms. Nölke: I believe Senator Milne asked me specifically whether there had been any cases of any bombings. That is right, that was not a suicide bombing, but that was a case where Canada sought jurisdiction over an extraterritorial offence.

Senator Joyal: On the basis of the section that Senator Milne has raised, there is an uncertainty if a suicide bombing activity that took place outside Canada could be sued under subsection 7(3.72).

It is not clear that suicide bombing activities perpetrated outside Canada could be prosecuted in Canada under that section. In other words, it is the kind of crime that would go unpunished.

Mr. Parent: It falls within the jurisdiction through the mechanism that is currently in the terrorism definition. If suicide bombing is made in the context of the commission of a terrorist activity or a terrorist offence then, yes, it would be caught and somebody could be tried for that offence.

It is all a matter of the facts tied to the case. Whether it is a suicide bombing or any other means by which the act is committed, so long as the essential elements of the infraction, as they currently exist, are present and can be proven before a court of law, and so long as it is in the interests of the public that this be done, prosecution can take place.

Senator Joyal: There is, it seems to me, a contradiction between what you say and what is in 83.01(1)(a). Terrorist activity means, (a), and then there is (iii), and then you have (ix):

the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations . . . .

However, when you look at how terrorist activity is defined, paragraph 83.01(1) (a) states that terrorist activity is an act or omission that whenever committed is one of the enumerated offences in section 7 of the Criminal Code as long as the enumerated offences describe an offence committed in Canada.

We are talking here about an offence committed outside Canada and we need to answer the question that comes from that contradiction.

Mr. Gilmour: I am sorry, senator. I had difficulty following your point. I understand your reference to 83.01(1)(b)(i)(A), which refers to offences referred to under subsection 7(3.72) on implementing national convention and that subsection then refers to 431.2. However, I did not quite catch the argument you are trying to make.

Senator Joyal: The argument is that, according to that interpretation, suicide bombing could not be charged on the basis of the definition of 83.01(1)(a), which is the general definition of ``terrorist activity,'' but would be charged only under 83.01(ix) which is the international convention section of the definition.

Mr. Parent: I do not think the intent is to get into a whole discussion on the issue. However, I will raise the point that it is clearly stated under (a) whether it is committed in or outside Canada and if you look under (b), if the infraction did not fall under (a), under (b) it is an act that is committed in or outside of Canada.

In both instances, if the elements of the infraction are there — whether by means of a suicide bombing or otherwise, whether it is inside or outside Canada — someone could be charged for it.

Mr. Gilmour: As long as they fall within the extraterritorial jurisdiction provision set out in subsection 7(3.72) of the Criminal Code.

What is it that is unclear about the current definition? The current definition of ``terrorist activity'' in 83.01(1)(b)(ii)(A) states that the act is committed intentionally to cause death or serious bodily harm to a person by the use of violence. A suicide bomber would surely do that. How else would it be described other than ``intentionally causes death or serious bodily harm to a person?'' In what way is it unclear that a suicide bombing in the context of terrorism is not already caught by the current definition?

Senator Baker: Under section 431.

Mr. Gilmour: We are not talking about (b); we are talking about (a). Is that the point that the senator is making?

Senator Joyal: I feel there is a contradiction between sections 7(3.72) and 83.01(1)(a)(x) I feel there is a contradiction between the two definitions. I do not argue with you that 83.01 covers an act committed in or outside Canada. The statute is clear on this. I am just stating that, when you read the section that Senator Milne has read it covers only a type of offence that is so general that you could argue that suicide bombing committed outside Canada would not be covered by that section. There is a gap between those two sections.

Mr. Gilmour: You are saying there is a gap in the definition in subparagraph (ix) referring to the offence of terrorist bombing and subsection 7(3.72).

Senator Joyal: I am referring to the jurisdiction question. I do not want to press it. Perhaps you could look into it and provide additional information.

The Chair: This is actually quite a large question. Unless Mr. Parent has prior consideration, I suggest that if you do not have a precise answer, perhaps you could write us a letter with the precise answer, because it is of some interest and direct relevance. Rather than have you reach desperately to find an argument, we would be better served by having your reflected views on that. I will ask you both to collaborate and send us your views as quickly as you can.

Senator Grafstein: I want to thank the witnesses. It has been an interesting and informative discussion. I have a better understanding of the Department of Justice's view about this. I must say I am still somewhat confused, but perhaps I can, with a few questions, clarify my confusion.

I agree with Senator Joyal. The reason this amendment did not go to the Special Senate Committee on Anti- terrorism is precisely as Senator Joyal said. The terms of reference of that committee were not to look at new and expansive or more comprehensive definitions; it was to review the existing definitions to see if they were flawed. You gave the rationale that somehow, the committee did not deal with this, and that gave you some support for your position. Senator Joyal, who was on the committee, demonstrated that was not the terms of reference. I leave that as a statement.

I do not think it is appropriate for the Department of Justice to come here, use this for an argument, and say that you disagree with a private member's bill. The fact the Senate itself had a committee and did not deal with it is not appropriate and is not a fair argumentation.

Senator Joyal has been on the committee, and I previously served on that committee, and the chairman of this committee served on that committee. We are familiar with the terms of reference and what it was to do.

Let me deal with Ms. Nölke's position. This goes to the argument that you have not addressed and which I did try to address in my speech in second reading, which is the purpose of the criminal law. The purpose of the criminal law historically had been to incorporate words of general usage into the criminal law so that people could clearly understand that this was conduct that fell below acceptable civic standards. Hence, exactly the argument that Ms. Nölke made, which was hijacking was a specific and very narrow offence. The legal community pulled it out of the common usage and incorporated it into a bill. As it evolved, they said it was too narrow and they evolved it, but they did not move away from hijacking, which is exactly my point.

Everyone here is skirting around the use of suicide bombing which is the terms of reference that is in the newspapers every day. We do not find it anywhere. There are good rationales for not doing it, but it not appropriate for the criminal law to say that is egregious conduct and not use the words that are in common usage. That is the purpose of the common law as it evolved into the Criminal Code.

The Chair: Do you have a question, Senator Grafstein?

Senator Grafstein: I am interested in this because they have not addressed that issue. The purpose of the criminal law is a philosophical question.

Mr. Parent: The commission of a hijacking in and of itself is obviously an infraction. We will recognize that, no matter how you look at it. The commission of suicide bombing is not necessarily an infraction.

Senator Grafstein: Let me deal with that.

Mr. Parent: That is the difference. We are trying to point out that if you are adding suicide bombing, how will you be able to make the difference, and that is being raised here today. I do not think I need say more, but there is a difference. As I pointed out in the example Senator Milne raised, there could be an instance, as she put to us, where that would not fall under the definition, and consequently a person would not be charged as a result of it.

Senator Grafstein: We agree that we are trying to, as Senator Baker put it, deal with the roots of terrorism through the use of the Criminal Code. We agree with that, and we say, ``What is the best way to do that?''

You have given us an example which I do not follow. You say that this would not be criminal conduct. A man straps himself to a suicide bomb, and we will not talk about how he got to that particular stage or the teaching or the methodology or bomb making or whatever, because you can do it on the Internet today. That person straps himself to a suicide bomb, and, as Senator Baker pointed out to me, he stands across the street from a synagogue and blows himself up. Is that a criminal offence? By the way, there is no damage to anybody. There is no damage to the building and no loss of life. Is that, first, an act of terrorism, and second, is that a criminal act of terrorism, based on your example?

Mr. Parent: It is all a matter of proving the intent behind the act. What are the facts that would lead a prosecutor to say this person has committed an act of terrorism? For him to answer positively to that question, you would have to ensure that the evidence is present and that he can make that case and that all the elements contained in section 83.01 are present. Failing that, the answer is no.

Senator Grafstein: The pre-conditions of those elements are injury to a person, injury to a building, injury to a public place, and they are not there.

Senator Baker: Substantial injury, substantial damage.

Senator Grafstein: There is no damage.

Senator Baker: There has to be substantial damage.

Senator Oliver: They gave the example of a person blowing themselves up in a field.

Senator Grafstein: He does it a public street, and no one is hurt, there is no damage to cars or anything, but he does it in front of a synagogue, and he rips himself apart. This would not be caught by the Criminal Code. Yet, one could argue that that is an act of terrorism. It is there, as Senator Baker puts it so eloquently, to ``sow the seeds'' of terror in a wider community, and you would say, sir, it is not a criminal offence.

Mr. Parent: Again, it is all a matter of what you can prove. Those facts do not indicate whether there was intent to commit a terrorist act. What you are describing is someone committing suicide.

You are saying it could be an act of terror, and I am not saying that it could not. It could be; however, are the facts there to determine that it was? If they are there and they meet the criteria set out by the legislation, then the commission of the act is consumed and consequently charges can be laid.

Senator Grafstein: It is a foul ball for the Department of Justice to say that by adding this for greater clarity, that this would widen the definition and somehow damage existing sections. You have missed a key element: The prosecutor would decide whether the facts are present there and which facts and under which words of the Criminal Code he would apply a charge. The discretion of the prosecutor is one of the safeguards of the system. The prosecutor will not move on a definition where he feels it would be too loose. He will try to choose carefully what words in the Criminal Code would apply. In my view, this gives him wider leverage and wider expanse to deal with the narrow question of proof. That is for another day; that is for the committee to decide.

Let us go back to the example. How to make a suicide bomb vest is on the Internet. You can find that information it today. Punch up a button and it is on the Internet. Is that a criminal offence? Somebody illustrates how to make a vest that is used by martyrs. They may not call them suicide bombers. They say, ``Here is a martyr and here is a vest of explosives. If you pull this chain, boom.'' Is that a criminal offence under our Criminal Code?

Mr. Parent: I am not sure I understand.

Senator Grafstein: On the Internet today you can find out how to manufacture a vest that is used by suicide bombers, what they call ``martyr's clothes.'' Is that an offence under the Criminal Code?

Mr. Parent: It is an interesting question. It would have to be evaluated: What is the description there? What is the motive behind such instructions? Whom are you looking as the target of the infraction: Is it the person who reads it, who makes the bomb or the person laying out the information there for the public to read?

Senator Grafstein: He is laying out the information for the public to read.

Mr. Parent: You would have to look at all the content. How does that translate? You are dealing with an issue of freedom of expression when you are talking about disseminating information, whether through the Internet or through any means.

Senator Grafstein: With all due respect, I understand the freedom of expression. I was deeply involved in the Charter. It is not freedom of expression to yell fire in the classic example of screaming fire in a theatre. There is no freedom of expression there.

My point is: One of the objectives of this amendment was to reach more deeply into the roots of terror. We know that suicide bombing has now become a catechism a mantra for terror. What I am getting from you is the mantra, the root of terror, is not being addressed by the Criminal Code because it does not have these narrow, constituent, subsequent elements. It does not address the creation of the offence. It addresses the processing or the mechanics and the result of the offence. The whole idea is to prevent it. The purpose of the Criminal Code, as I understand it, is to prevent egregious conduct; to prevent it, to make people frightened, to indicate that if one exercises this one small step, a person may lead himself or herself into the field of criminal conduct.

Let me give a better example: the classroom. Someone, somewhere in Canada, teaches some kids how to strap on a suicide bomb; that is all they do. They do not say anything. Is that a criminal offence to simply teach that when nothing happens? Is that a criminal offence?

Mr. Parent: You could list a whole number of examples. The issue before us with regards to the bill is to do with suicide bombing. You are putting forward that this may advance the cause or make the bill clearer. Our response is that suicide bombing is covered under the act.

Senator Grafstein: However, the words are not used. These witnesses have said there has been a studious attempt to avoid the words ``suicide bombing.'' Ms. Nölke you have said that; you said we would be better off to call it ``terrorist bombing'' because we want to broaden the ambit.

I am saying that the common usage is not ``terrorist bombing'' and the common usage is ``suicide bombing,'' which is directed towards innocent people.

Ms. Nölke: For greater clarity, I did not say that it was studiously avoided to use the term ``suicide bombing.'' The idea behind creating the definition of ``terrorist bombing'' at the negotiations was to be as wide and inclusive as possible so as to include all forms of terrorist bombings regardless of means, methods or forms of delivery. I did not say there was any attempt to avoid any particular form. It is quite the contrary: The idea was to include all of them.

Senator Grafstein: The issue is that the words are not included. The words ``suicide bombing'' are not included anywhere.

The Chair: We have established that.

Colleagues, we will have an opportunity to pursue that issue tomorrow morning, although not with these witnesses. Actually, we could if the senators so wished.

You have all received a revised notice for tomorrow morning's meeting which will occur at 10:45 a.m. in this room. We will hear from representatives of the RCMP, who are the only witnesses scheduled tomorrow on this bill.

The revised notice suggested that we would devote the second portion of our time to a consideration of the draft report of our study on the Canada Elections Act. However, I realize that the deputy chair of the committee, Senator Andreychuk, will still be away on public business tomorrow. I think it is only appropriate that she be present when we conduct that study.

Colleagues let me ask: If there is time left over after we hear from the RCMP, would you like us to invite these witnesses back tomorrow morning if they are free?

Senator Joyal: It is Senator Grafstein's bill. I do not want to continue the discussion or the arguments, but I am not convinced that ``for greater certainty'' muddles the water instead of giving one example of the purpose the senator tried to achieve.

The Chair: I am not asking any of us to reach conclusions on how we propose to vote on this bill. I am getting the signal that we need to do more work on this bill. It is conceivable we may ask these witnesses to come back after we have done more work on this bill.

In the meantime, on behalf of all the members of the committee, let me thank you for being here today. As you see, it is a subject that gets us going and you were helpful in explaining the position of the government and the grounds upon which that decision has been adopted.

Mr. Parent: Madam Chair, thank you and the members around this table for allowing us to come here and try to be helpful.

The committee adjourned.