Proceedings of the Special Senate Committee on
Issue 5 - Evidence - Meeting of June 18, 2012
OTTAWA, Monday, June 18, 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.
The Chair: Honourable senators, this is the tenth meeting of the
Special Senate Committee on Anti-terrorism in the First Session of Canada's
Forty-first Parliament. Today we welcome back Assistant Commissioner Gilles
Michaud with the National Security Criminal Investigations Program of the
RCMP. We also welcome Sabine Nolke, who is Director General of
Non-Proliferation and Security Threat Reduction with Foreign Affairs and
International Trade Canada.
We are continuing our examination of Bill S-9, the proposed 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.
Assistant Commissioner Michaud, I understand you have a brief opening
statement. Please proceed.
Assistant Commissioner Gilles Michaud, National Security Criminal
Investigations, Royal Canadian Mounted Police: Thank you for inviting me
here today to discuss Bill S-9 from a law enforcement perspective.
My name is Gilles Michaud, and I am the assistant commissioner of the
RCMP National Security Criminal Investigations program.
Canada's recently announced counterterrorism strategy asserts as one of
its six fundamental principles that terrorism is a crime and will be
prosecuted. The "deny " element of this strategy aims to deny terrorists
the means and opportunity to carry out their activities. A key objective in
this strategy is to disrupt the acquisition of weapons of mass destruction.
Bill S-9, the proposed nuclear terrorism act, would strengthen law
enforcement's ability to meet this important objective by specifying that
actions associated with possessing, using, transferring, exporting,
importing, altering or disposing of nuclear and radioactive material will be
deemed a serious crime with severe penalties.
Important steps have been taken to secure weapons-grade nuclear
materials, for example, by the recent 2012 Seoul Nuclear Security Summit.
International cooperation through the Global Initiative to Combat Nuclear
Terrorism has also proven somewhat successful in improving the capacity for
preventing, detecting and responding to a nuclear terrorist event. One of
its principles is to "ensure adequate legal and regulatory frameworks
to provide for the implementation of appropriate criminal liability for
those who facilitate acts of nuclear terrorism. "
I think one of the issues of concern for this committee is this: Are
there specific investigative techniques that come into play when
investigating acts of nuclear terrorism as opposed to other forms of
terrorism. In short, my answer is yes, there are.
It is critical for law enforcement to recognize opportunities to disrupt
a plot by detecting smuggled nuclear material in transit. Then we might be
able to detain an operative who could provide details about a plot. Customs
and border agents are vital in the detection of smuggled nuclear material.
Using radiation sensors and inspections, such officials are at the front
line in uncovering such plots. Intelligence and forensics also play a
critically important link in helping to prevent nuclear terrorism.
An important investigative avenue in the nuclear counterterrorism effort
that needs to be fully exploited is that of nuclear forensics. Preparing for
a radiological attack leaves all kinds of traces. The full range of forensic
techniques can be utilized to understand what the traces mean and who is
For example, nuclear forensics can help identify the specific type of
nuclear and radiological material, and provide information about the origins
of such material. Forensics can aid in reconstructing the sequence of events
in the preparation of a dirty bomb, for example, by analyzing the various
chemical traces. DNA and biometric forensics can also assist in identifying
the people involved in preparing for such an attack.
More traditional investigative approaches are also being used in nuclear
counter terrorism criminal investigations. The RCMP and its law enforcement
partners share the responsibility for the security of Canada's nuclear
material inventory with the Canadian Nuclear Safety Commission, which
administers the Nuclear Safety and Control Act and its regulations.
The RCMP has developed close partnerships with the CNSC, Atomic Energy
Canada Limited, as well as with the owners and operators of Canada's nuclear
power plants. These partnerships ensure that the RCMP is actively involved
in the overall safety and security of Canada's nuclear material inventory,
as well as controlling the movement of nuclear materials, both domestically
and across our border.
The key to denying terrorists the capabilities to engage in nuclear
terrorism is effective cooperation amongst the full range of security
partners, both domestic and international.
I refer to a recent case to illustrate the importance of cooperation in
the arrest of Mahmoud Yadegari, a Canadian- Iranian citizen, in April 2009.
This case highlights the type of cooperation required when a person's
actions could result in nuclear proliferation.
In the Yadegari case, a U.S. company tipped off U.S. export officials
about Mr. Yadegari's attempts to purchase and hide the specifications of
pressure transducers, which can be used in gas centrifuge plants to measure
the pressure of uranium hexafluoride. Such dual-use technology has been
linked to Iran's efforts to produce weapons-grade nuclear material. U.S.
Immigration and Customs Enforcement alerted both the CBSA and the RCMP about
Yadegari's efforts. In this case, Yadegari was prosecuted for violations of
the Canada Customs Act, the Export and Import Permits Act and the Iran
regulations under the United Nations Act.
This case illustrates the key point that information and the ability to
share it both domestically and internationally in concert with adequate laws
were essential in the successful arrest and prosecution of this individual.
Information sharing in nuclear counterterrorism efforts is likely to draw
on a range of domestic partners for their expertise in this area, including
CSE, CSIS, DND, CBSA, Transport Canada, Health Canada, the Canadian Nuclear
Safety Commission and the Public Health Agency of Canada.
The RCMP, through its critical infrastructure intelligence team, has also
developed partnerships with Canadian private sector nuclear industry
stakeholders. These stakeholders, who are required to daily manage the
safety and security of Canada's nuclear material inventory, are responsible
to provide the first line of defence.
To sum up, the need for specialized nuclear forensics expertise, as well
as the need for greater information sharing and cooperation between the
RCMP's domestic and foreign partners, is essential if we are to deny
terrorists the ability to use nuclear and radiological material. Then again,
we need laws that will support these efforts and provide a transparent
process where individuals involved in such activities can be held
Bill S-9 would aid law enforcement's counterterrorism capabilities by
specifying that activities associated with nuclear and radiological material
are serious crimes that will be prosecuted.
The Chair: Thank you, Mr. Michaud. I now give the floor to Ms.
Nolke, of Foreign Affairs and International Trade Canada, and she will speak
to us about the bill.
Sabine Nolke, Director General, Non-Proliferation and Security Threat
Reduction, Foreign Affairs and International Trade Canada: Honourable
senators, I am pleased to be appearing before you today in the context of
your deliberations on Bill S-9. I understand that you will be getting into
the details of the bill in the clause-by-clause hearing later this
The bill represents one element of the tool kit that Canada has in the
fight against the risk of nuclear materials falling into the hands of
terrorists. I am here to provide you with additional context on what Canada
is doing to reduce this threat.
The proliferation of weapons of mass destruction — WMDs — and related
materials poses a grave threat to international peace and security.
Terrorist organizations, such as al-Qaeda, have openly acknowledged their
interest in obtaining weapons-usable nuclear material and/or weapons. The
illicit trafficking of nuclear and radiological materials remains a major
The International Atomic Energy Agency has reported nearly 2,000
incidents of unauthorized use, transport and possession of nuclear and other
radioactive materials between 1993 and 2011. Furthering nuclear security,
enhancing the physical protection of facilities, installing radiation
detection equipment, especially at border crossings, reducing the use of
weapons-usable materials, is one of the key tools to prevent these materials
from falling into the wrong hands.
The potential consequences of a nuclear or radiological attack warrant
our utmost vigilance. At the 2012 Nuclear Security Summit in Seoul, Prime
Minister Stephen Harper said, "Nuclear terrorism is a serious threat
and presents a significant global security challenge. "
In March of this year, 53 world leaders and four international
organizations gathered for the second Nuclear Security Summit in Seoul. At
the summit, leaders renewed the political commitments generated from the
2010 summit in Washington to, inter alia, strengthen the legal framework
against the threat of nuclear terrorism and for the protection of nuclear
materials; secure vulnerable nuclear materials globally; minimize the
civilian use of weapons- usable nuclear materials; enhance transportation
security; and prevent illicit trafficking.
Canada is actively implementing concrete nuclear security projects
globally and is working in a number of fora to address the threats of
We are here today to discuss Canada's ratification of the Convention on
the Physical Protection of Nuclear Material amendment and the International
Convention for the Suppression of Acts of Nuclear Terrorism, which were
identified as the first point of action in the Seoul Summit communiqué.
Prime Minister Harper committed in Seoul to take the necessary steps for
the ratification of both instruments, and it is in pursuit of that
commitment that Bill S-9 is before you for debate today. However, as I
mentioned, these conventions are only one part of Canada's strategy to
combat nuclear terrorism. During the two nuclear security summits, Canada
demonstrated its commitment and leadership in furthering nuclear security
through concrete projects funded by DFAIT's Global Partnership Program to
secure and, where possible, destroy nuclear materials, including $8 million
to remove highly enriched uranium and to convert research reactors to run on
non-weapons-usable material, also known as low-enriched uranium, in Mexico
and Vietnam. We spent $120 million on nuclear and radiological security
projects in Russia. We made a $5 million voluntary contribution to the
IAEA's Nuclear Security Fund, for which Canada remains the third-largest
country contributor after the U.S. and the U.K., to secure nuclear
facilities and prevent illicit nuclear trafficking.
At the Seoul Summit, the Prime Minister also announced the renewal of the
Global Partnership Program, which I have the pleasure of heading, for an
additional five years, from 2013 to 2018, with $367 million in total
funding, which translates into $73.4 million a year. Not all of that goes to
nuclear security; it also works on biological security, knowledge
proliferation and implementation of Security Council Resolution 1540.
With that, honourable senators, I would be pleased to respond to your
Senator Tkachuk: Ms. Nolke, when you say "2,000 incidents, " what
is an "incident "?
Ms. Nolke: Some of those would be the interception of nuclear
materials at a border crossing. For example, radiological detection devices
provided by Canada to Ukraine managed to detect a small quantity of
radiological material that someone attempted to smuggle out of Ukraine. That
would be an incident that would be counted by the IAEA, as well as theft of
nuclear materials. There was an incident in, I think, 2002, where
individuals were captured trying to smuggle nuclear materials — in fact, old
strontium-90 batteries — from the former Soviet missile defence system
across the Caucasus, from Georgia into Turkey. Those would all be counted.
Senator Tkachuk: What was the amount of nuclear material in the
Ukraine? Was it a significant amount?
Ms. Nolke: Significant enough that it would raise concerns if it
were to be included in the making of a dirty bomb. I cannot remember the
exact quantity. It was not an enormous amount, but it certainly was enough
to cause concerns.
Senator Tkachuk: When they say "an incident, " it means there was
more to it than perhaps radioactive material that was an insignificant
amount, i.e., of no value, really, but perhaps contamination or something
like that that would cause the bells to go off?
Ms. Nolke: That is correct. You could set up the detection
devices, for example, if you have recently handled a radiological source,
but you do not actually have the source on you. However, those incidents
would be actual materials.
Senator Dallaire: I would like to ask two questions, if I may.
Here is my first one.
I am looking at the fund that was confirmed at the Nuclear Security
Summit in Seoul, where Canada is committing to the Global Partnership
Program of $367 million. This program started right after the Cold War. How
much have we invested in that process, grosso modo?
Ms. Nolke: The initial commitment was for $1 billion over the
first 10 years of the program. We are currently in the last year of mandate
1. The new mandate has been established for five years. At the Deauville
Summit, G8 leaders committed to continuing the Global Partnership Program,
and our commitment to that is now $73.4 million a year.
Senator Dallaire: When we get numbers like that, people are
impressed by the numbers, but we never really get the assessment of what the
deficiency is. That is to say, we are giving $367 million, or it has been $1
billion for last 10 years, but maybe we should have poured in $10 billion.
To the actual volume of materials and possibilities of weaponry,
dismantling and so on, including the submarines and all that, how far are we
from achieving the aim of significantly reducing the ability of this stuff
to be not used but reused or re-modified?
Ms. Nolke: The very simple answer is that you never can really
eliminate risk completely, so to quantify how much we have reduced it by is
perhaps a difficult question to answer with figures. However, what we have
done, for example, at the time the Global Partnership Program was
established in 2002, the former Soviet Union space was considered to be the
most serious risk for nuclear proliferation of nuclear devices or materials
falling into the hands of terrorists. Canada spent over $400 million in
nuclear and radiological security in Russia. For example, we have
contributed to physical security upgrades at 10 facilities in Russia that
house vulnerable nuclear materials. We have enhanced the security of nuclear
materials during transport, including providing six specialized cargo trucks
and five special railway cars to the Russian State Atomic Energy
Again, you cannot measure the risk reduction, but those facilities and
those times — i.e., the transport of the materials — were considered to be
the most critical and the most at risk.
We have also secured and removed 64 highly radioactive sources used to
power lighthouses from the Russian Arctic and Far East sea routes. We have
provided support for a U.S.-led project to shut down the last Russian
weapons grade plutonium production reactor, and we supported international
efforts, as you mentioned already, to help defuel and dismantle 18 Russian
decommissioned nuclear-powered submarines and to defuel 34 nuclear reactors.
Again, risk reduction has been the concrete effort, and you can measure
Senator Dallaire: That is what we have been able to do. The
question is: What is the delta left? It is not necessarily the risk. How
much is still out there that has not been achieved over the last ten years,
plus the next five, that will still have to be looked upon to be resolved?
I ask that because, parallel to that, we have been investing tens of
billions in modernizing the weapons systems that are still in the inventory.
Are we wrongly investing in modernizing capabilities while maybe not
dismantling enough of the old capabilities that are the bigger risk?
Ms. Nolke: The risk, at this point, is of materials falling into
the hands of terrorists. Securing the facilities is a separate step from
dealing with weapons capabilities in the hands of states. Securing
vulnerable facilities is where the threat of nuclear terrorism is most
Clearly, a lot of work still needs to be done. We are working, for
example, with Libya in a new project to secure radiological sources there.
These would be peaceful radiological sources except if the materials fall
into the wrong hands. We all know that it is a tough neighbourhood there; it
would be problematic. We are expanding our work into other areas of the
globe. We are also recovering radiological sources in Colombia, for example,
where FARC has indicated that it would like to get its hands on weapons of
mass destruction. We are also working on the non-nuclear side with the $367
million. For example, we are securing biological labs in West Africa where
they are very vulnerable and have very difficult pathogens that could be
made available to terrorist organizations.
It is very much a global effort. Canada is only one of the players. The
global partnership contains 24 partners. It has grown well beyond the G8,
and it is an effort where all countries have to step up to the plate. We are
currently looking to expand the partnership to include additional countries
that could contribute to this effort.
Senator Dallaire: Once begun, we see what we are doing, but it is
difficult to get the picture. The Cold War ended 22 years ago and we are
still fiddling. Are we putting enough into it? Are we just scratching the
surface, or are we actually getting rid of what is out there so as to
eliminate the possibility of this stuff becoming available?
The Chair: I just wanted to add a small supplementary version of
what I think our colleague is getting at.
If you had double the budget you now have, is there a further list of
decommissioning and other nuclear safety projects that Canada could support?
Is that list not now being addressed because the entire partnership — Canada
and other members — is not investing what might be helpful in that
Ms. Nolke: That is not an easy question to answer, but Canada is
only part of the puzzle. Our amount has been acknowledged by world leaders
as being, essentially, the gold standard. We are acknowledged as a leader in
the field of nuclear security. At the Nuclear Security Summit we were
acknowledged as such by a number of international organizations, so we are
certainly more than pulling our weight.
Yes, if you had more money, you could do more, but we also have to look,
of course, at the resource constraints on everyone. That is one reason that
we are looking to expand the global partnership to include new partners who
would not necessarily bring more money to the table but more expertise and
regional creditability. Players such and China and India, for example, have
influence in parts of the world where perhaps the U.S. or Canadian-led
efforts might not be as welcome.
We are working behind the scenes, as well, to expand the international
community's efforts to address these problems.
Senator Tkachuk: To add to that question, I understand that the
Prime Minister, at the Nuclear Security Summit in 2010, pledged to curb HEU
material use and to close Chalk River by 2016 to the enrichment of uranium.
He also said that we are doing research in non-reactor-based isotope
supplies. Is that correct?
Ms. Nolke: That is correct, and under this year's budget an
additional $17 million was pledged to that research, which is ongoing.
Canada is seeking to develop new technologies that would allow us to produce
medical isotopes with non-reactor-based technologies, leaving uranium,
whether highly or low enriched, out of the picture all together.
Senator Tkachuk: In my province of Saskatchewan uranium is a big
deal, and I understand that we are doing a lot of research on using other
methods to produce enriched uranium for the manufacturing of isotopes.
Ms. Nolke: That is correct.
Senator Dagenais: My question is for Mr. Michaud. Some countries
make an effort to procure nuclear weapons. You spoke about effective
cooperation between the various partners with respect to public safety,
obviously both in Canada and abroad. I imagine that collaboration must be
more difficult with some countries, particularly those that want to procure
nuclear weapons. Do you think this bill will help you to work with foreign
countries within your investigations?
Mr. Michaud: I do not think that the bill will help us directly in
working with foreign countries. Collaboration already exists with friendly
countries with respect to police investigations. We are focusing our efforts
on those collaborations.
However, this lends a little more credibility, in the sense that, all of
a sudden, with this bill, we will acknowledge that these are serious
criminal activities and that serious charges will be laid against
individuals who engage in these crimes. It gives a little more credibility,
in the sense that we are serious partners that can be trusted and that we
can make a difference. So, indirectly, yes, but directly, we are continuing
to work with countries we are already collaborating with.
Senator Dagenais: I understand that the bill will give Canada
credibility because the bill will be strengthened and because foreign
countries will take us even more seriously when we talk about nuclear
weapons. Is that what you mean?
Mr. Michaud: Exactly.
The Chair: Before giving the floor to Senator Day, I would like to
ask Mr. Michaud a question.
On the issue of the level and intensity of investigation that this bill
will in some way impact constructively, the purport of your statement to us
was that this bill will help. I think Canadians would like to understand
what will change for the Royal Canadian Mounted Police, your colleagues in
the Canadian Nuclear Safety Commission, the Canada Border Services Agency,
CSIS and all the rest based on these new provisions that will make Canadians
safer than they might have been before these changes to the Criminal Code
Mr. Michaud: I can only speak on behalf of the RCMP. We feel that
where the crimes are now will be captured under section 2 of the Criminal
Code. It makes it a more serious offence, one where usually you would see a
theft of radioactive material. Although you would say it is a national
security concern, it might not be captured in the Criminal Code under the
offences of section 2.
Under section 2, it would allow the police force of jurisdiction to call
upon other services that may have more capacity and expertise to assist and
investigate the crime per se. From that perspective, that is why I say it
Ms. Nolke: If I may supplement my colleague's response, the bill
enables Canada to ratify the Convention on the Suppression of Acts of
Nuclear Terrorism. The convention requires that states criminalize certain
offences. Until we have criminalized certain offences, we cannot become a
party to the convention. Once we deposit our instrument of ratification and
the treaty enters into force for Canada, it becomes the legal basis for
Canada to cooperate with other state parties to the convention in areas of
criminal investigation, mutual legal assistance and extradition. That
clearly is where international cooperation and the fight against people
suspected of such offences would be improved. It would not be the bill
itself; but the fact that we pass the bill will enable us to have access to
the provisions of the treaty at the international level.
The Chair: Are you suggesting that in the absence of having done
that, the cooperation between our partners and us in this engagement is not
at a level that is constructive and helpful?
Ms. Nolke: I would not go that far because Canada has ratified all
of the other counterterrorism conventions. Some of the provisions of those
conventions, in particular the International Convention for the Suppression
of Terrorist Bombing, cover some of the same ground. We also have bilateral
extradition and mutual legal assistance treaties. This particular treaty
already has 115 states parties so we would be able to cooperate more closely
on the specific provisions of this treaty.
Senator Day: Thank you for being here to help us to understand the
background of this a little bit better. Each session we seem to develop a
bit more of a sense for the challenge that each of you faces.
Ms. Nolke, the Global Partnership Program's forecast spending is $367
million over the next five years. Does that include the commitment of $120
million for nuclear radiological security projects in Russia? Is the $120
million part of that?
Ms. Nolke: No, that was the old mandate. That money was spent
under the previous mandate for the Global Partnership Program.
Senator Day: This would be for new things coming along.
Ms. Nolke: That is correct. We are currently in the process of
preparing our strategic framework for this new money that will become
available to us in 2013.
Senator Day: About $73 million will be available per year for the
next five years.
Ms. Nolke: That is correct.
Senator Day: Who administers the money?
Ms. Nolke: Very simply put, I do. I head the program for the
Department of Foreign Affairs. Obviously, the approval of various projects
rests with the government. At this time, we are developing our programming
framework for the next mandate, which is one year away. We are working with
existing commitments. It will be divided amongst various areas, and nuclear
and radiological security is only one of those areas. Other areas that
leaders at the 2011 G8 Summit in Deauville, France, have identified as
priorities for the Global Partnership Program are the elimination of
biological weapon threats, the implementation of the UN Security Council
Resolution 1540, which deals with proliferation issues, and interdiction, et
cetera, as well as knowledge proliferation or scientist engagement, which is
the technical term. As well, we are prepared to deal with our WMD threats as
they emerge. Just last year, even though it was not one of the identified
priority areas under Deauville, we made $6 million available to the
Organisation for the Prohibition of Chemical Weapons in The Hague to work at
the destruction of chemical weapons that Libya had disclosed after the fall
of the Gadhafi regime. They discovered two previously unknown chemical
weapon deposit sites. Of course, I mentioned earlier that it is a tough
neighbourhood and it was imperative that these facilities be secured and the
weapons destroyed. We are working with the OPCW to eliminate that threat.
Senator Day: It is like a grant or contribution from you to the
agency that is doing the clean-up.
Ms. Nolke: That is correct. It depends very much on the area in
which we are active. Much of the time we use Canadian implementing partners.
For example, if we do training activities, we use colleagues from the RCMP
and from CBSA for border control initiatives. We also work closely with the
U.S. Department of Energy in some areas and with Interpol. It depends on the
nature of the project.
Senator Day: In this time of constraint, $367 million is a lot of
money. I want to be satisfied that when the money is given out in a grander
contribution, like the $120 million to Russia, it is actually used for the
purpose intended. Do you have the people to follow up on that?
Ms. Nolke: Yes. As well, we file reports on an annual basis with
Parliament on how the money has been spent, and all that information is
Senator Day: When you file a report, you say how you spent it.
Ms. Nolke: That is correct.
Senator Day: I am interested in knowing if it was used for the
purpose intended. You sent $120 million to Russia to clean up some nuclear
facilities or improve security. Do you leave it up to the International
Atomic Energy Agency to confirm that has been done?
Ms. Nolke: No. For example, two officials who work with me are
currently at a chemical weapons plant in Russia and are verifying
milestones. When we make a grant or a contribution to a certain activity, we
set milestones that have to be met in order for the next tranche of money to
become available. We sent officials to verify that a particular facility has
been constructed or a particular railway track has been laid. We do
Our international partners that we give money to, such as the IAEA, have
in-house auditing mechanisms, which we have access to as member states.
There are constant audits. Currently, we are undergoing a summative
evaluation process of the Global Partnership Program. It is conducted by our
in-house auditors at the Department of Foreign Affairs. They evaluate
whether the work we have done has been done. They talk to the various
implementing partners and provide us with their assessment as to its
effectiveness and usefulness.
Senator Day: Mr. Michaud, you have heard that we are spending a
lot of money to meet our international obligations. We are number three in
the world in some instances. How are we doing at home? You talked about the
importance at choke points of detection of radiological material that might
be crossing the border. Do we have the equipment and are people sufficiently
trained to use the equipment, or are we into a program of acquiring this
equipment over time? Where are we?
Mr. Michaud: The equipment existing at the borders is basically
being managed by CBSA. I cannot comment precisely on that, but the RCMP
continues to invest in areas where we believe we need to allocate additional
resources. It is a reallocation from within toward areas such as this one,
where we have invested a lot in the training of our forensic specialists to
be able to operate within that environment where a nuclear or radiological
device may be triggered or may be used. We are investing in those areas.
Senator Day: Mr. Michaud, the RCMP has the first responsibility
for security and CBSA provides a service to you, in effect, to let you know
whether you should be involved when something is coming across the border.
Surely you would have some assessment as to how much detection equipment we
have now. Do we have enough or do we need more?
Mr. Michaud: Like I say, that equipment is not managed by the RCMP
but by CBSA. It exercises its mandate at the points of entry, and we
exercise a mandate between the points of entry. I am not in a position to
answer as to whether there is enough or a need for more capacity in respect
to equipment being used by CBSA.
The Chair: I have a supplementary, which I think Senator Day will
find supportive. I think Canadians want to be informed about and understand
that somewhere in our government is a place where all the strands on this
issue of nuclear safety, both international and domestic, come together. In
other words, the assistant commissioner may not be responsible for the
radioactive detection facilities at the borders, but I think most Canadians
would like to believe that the day-to-day operation of those detection
facilities and the results therefrom and the criminal intelligence which may
suggest to CBSA that they have to be particularly alert for a particular
vehicle or ship or aircraft is shared with the RCMP so that you have an
active and engaged file and are able to make decisions about the allocation
of resources for the apprehension of people potentially guilty of a criminal
offence and the protection of Canadians in that process. It gets to the old
question: Are all the pieces connecting on this file? Is there an
interdepartmental group? Is there a service group that supports the Cabinet
Committee on National Security, for example, that integrates this
information at the PCO level? I do not particularly care as a citizen or
taxpayer where it happens, but I do want to know that it is happening and
that the pieces do not operate in separate ways, because we all know in
other circumstances, in other times, the history of a disengaged proposition
that is not fully integrated.
It is not for me to suggest what Senator Day is looking for, but his
questions have suggested to me that as much clarity as you both can give us
on this would be of great value to the committee.
Senator Day: That is very helpful. If I thought I had that much
time, I would have asked my question more thoroughly. Thank you.
Mr. Michaud: From an intelligence gathering and intelligence
sharing perspective, that happens on a daily basis between the different
agencies that have a role to play. Where it all comes to together is at the
ADM-level committee called ADM National Security Operations. That committee
comes together whenever there is an incident or an event that requires that
close collaboration amongst all the agencies in finding a solution to make
sure that we keep Canadians safe, and usually that is at the government
level where we will come together on those highly sensitive type of
operations, where more than one department can contribute to resolving the
Ms. Nolke: We also consult closely with our other government
department partners when we set up projects. Part of our new programming
framework in particular foresees a consultation process where we will have a
look at our annual priority-setting and shop that around town, including to
the Canadian Nuclear Safety Commission, CSIS, the RCMP, Public Safety, et
cetera, to ensure that where we are planning on going is where we are
Those consultations will happen looking forward, but also on an ad hoc
basis, as threat assessments arise.
Senator Day: Our chairman has pointed out the importance of all of
this information coming together. Where is that lodged: the Privy Council
Office, the RCMP, Foreign Affairs?
Mr. Michaud: Basically, that information, that intelligence, is
lodged in all the respective agencies. When we get together around that
table, we bring all our information together for that discussion around what
is the greater good, what is the best avenue in order to find a solution to
Senator Day: I was trying to understand your comment that
intelligence and forensics play a critically important role. You then said
that customs agents and border agents are vital in the detection, and I
wanted to understand that role in relation to the RCMP. That is what I was
trying to get to. Now I think you have explained it, but it just seems to be
a round table that rotates various government departments and they discuss
what is happening weekly.
Mr. Michaud: It is not a rotation of all the departments. It is
more so departments that are there week in and week out. The same
departments are sitting around that table, and if for a specific issue we
need an additional department to come in, that department will be called in.
Senator Day: Where is that table located?
Mr. Michaud: It is run out of Ottawa here and chaired by both PCO
and Public Safety on the national security side.
Senator Dallaire: Will this committee have the authority to
establish priorities for acquisition of equipment to meet the security needs
or can it only share intelligence with respect to the information service?
To collate it and then disseminate it within all your different
departments, does it have any authority on prioritization of resources in
order to meet some of these deficiencies at all?
Mr. Michaud: No, it has no authority in order to meet acquisition
of equipment, so that is left to the respective agencies to deal with their
respective ministries if there is additional equipment that is required.
However, when that table sits, it is around sharing intelligence. It is
making decisions or guiding decisions around what is the best course of
action to resolve a specific operational issue. It is not about acquisition
of equipment or where gaps may exist and for them to take that on.
Senator Dallaire: This is the point. It is one thing to exchange
information, collate it and be transparent about it. Hopefully no one is
holding back because they do not want to compromise their sources.
Let us say they are all putting all their cards on the table. If you do
that in an intelligence brief, you are also throwing in what friendly forces
have. It is not just what the enemy has in front of you; you also throw on
the table what friendly forces have. That means every department is supposed
to say, "We have such and such a capability, but it is deficient; it is
broken or we do not have it or there is such and such a gap in our ability
to meet whatever new threat. " That is also significant intelligence to
guide the departments but more importantly to guide the PCO and the chair in
influencing the departments with regard to priorities. Do you guys exchange
Mr. Michaud: Yes, we do, because in the course of finding a
solution, gaps are identified. If DND says they have a certain capability
but are missing something else, going back to fill that void, the respective
agencies need to go back to their own departments in order to fill that
void. However, by raising it at that table, it does raise the concerns with
the PCO for that support eventually when it comes back up the cabinet chain.
Senator Dallaire: There is a permanent secretariat, right, on this
Mr. Michaud: Yes.
Ms. Nolke: We do not just share these kinds of assessments
internally or domestically. We also exchange information on threats on
emerging risks with other partners, both bilaterally and in some
multilateral forum. The global partnership, for example, has a working group
that meets between four and five times a year. The members of the
partnership exchange information as to where the gaps are, as well as the
capabilities, who can plug the gap. We might get together, for example, with
the Australians on some activity in Indonesia, or we might get together with
the Americans on an activity in Latin America. We try to match up needs and
capabilities in order to solve those issues. Those kinds of exchanges do
With regard to ADM NS Ops, if a domestic gap is identified and if it is
something that might fall under the aegis of the global partnership that
might fall within our mandate, we might be able to step in there as well.
Senator Frum: Assistant Commissioner, you told us about the
Yadegari case, an Iranian-Canadian who was trying to get a pressure
transducer, which is necessary for the creation of a nuclear device, and he
was prosecuted under the Canada Customs Act. Would Bill S-9 come into play
in that case at all? In terms of a dangerous device that disperses
radioactive material, would he have been covered by Bill S-9 in that case?
Mr. Michaud: I am not sure whether that piece of equipment would
fall under the definition of the word "device, " because it is one piece of
equipment that was seized. If it would, then Bill S-9 would be helpful in
respect to that; it would have come into play.
Senator Frum: It is also intent as well, I suppose.
Mr. Michaud: Yes.
The Chair: Before I go to Senator Dallaire for round 2, I wanted
to get your precise advice on the issue of delegated authority. If an RCMP
officer is on the beat doing his job in one of the provinces where the RCMP
is the de facto provincial police, there are rules of engagement. They are
his or her realm of responsibility; decisions he or she can make are clearly
spelled out, procedurally.
Part of the post factum analysis of the Fukushima nuclear plant
difficulties was — and the Japanese themselves have been very forthcoming on
this, to their credit — too many levels; too many levels between the people
on the ground seeing what was actually happening in terms of the risk
issues, and then getting the approvals all the way up and all the way back
down before something could actually start.
Let us assume that there is a specific, proximate circumstance such as a
threat on a container ship coming toward Canada or a threat on an aircraft.
Let us also assume that criminal and international intelligence is providing
information in a timely way. Are you comfortable with the level of authority
you need to get support so that your agents — whether they are CBSA agents,
local Peel Regional Police at the airport in Toronto, or whomever it might
be — can actually be deployed quickly enough to make a difference in terms
of preventing bad things from happening? We understand the process of
gathering evidence leading to the laying of charges and due process, and we
understand the benefits of that, but I think Canadians would be interested
in what we have done to shorten the approval cycle within the operating laws
of this country so that there can be a rapid deployment when necessary, when
circumstances, on occasion, may require. Could I ask either of you to share
a perspective on that with the committee?
Mr. Michaud: From a domestic perspective — and I will speak about
law enforcement — we feel we are always working at this to ensure we close
that gap as much as we can. As an example, from a law enforcement
perspective, when we require the assistance of the military because it is
beyond the capacity of law enforcement to be able to deploy certain
resources or capacity, we already have in place protocols, with letters that
are already drafted, such that, in a very timely fashion, we can get those
authorities signed by the right people, at the right level, to deploy the
resources that are required. However, it is a constant evolution for us.
Case after case, we always review what could have gone better, and from
there we build those processes to ensure that the next time it happens it is
The Chair: Are there training exercises by which these particular
protocols can be tried and sorted out so that people can see what works well
and what can be changed and improved? I know the military does that a lot,
but in this integrated approach, do you have the capacity to do that kind of
simulation for the purpose of training the men and women under your command
and those who work in the other agencies?
Mr. Michaud: I would say that is probably a gap that we have. From
a training perspective, we do have tabletop exercises. We do have some
training exercises. However, is there enough? I would say no because,
really, it is training that makes you better. We train a lot based on
response to real events, and we learn from those events. However, specific
training on specific protocols and whatnot, from my perspective, they are
probably not conducted on a regular enough basis to be helpful.
The Chair: Before I go to Senator Dallaire, Ms. Nolke, did you
want to add to that?
Ms. Nolke: Yes, as a matter of fact, on both points: first, the
delegated authority; and second, the training exercises.
On the delegated authority, in order for us to initiate a particular
project — i.e., make a particular payment for a new initiative — we need to
seek initiation approval from the minister, which can, of course, be given
very quickly. I myself have delegated signing authority for up to $5
million, which gives considerable flexibility; my assistant deputy minister
can go up to $8 million; and then anything up to $10 million, the minister
personally would sign off. Again, those things can be done fairly quickly.
The Chair: If I could just reverse train on this. You earlier
testified that you had officials who are now in Russia, looking at a
specific project with respect to whether certain thresholds had been met. If
they were to report to you, when you got back to your office and you found a
secure email on the secure system telling you that they are deeply concerned
about things that have not happened, what would your range of action be at
Ms. Nolke: My first step would be not to authorize the next
payment on this particular milestone. In fact, we have in the past pulled
out of a project altogether when we found that the host government was
becoming, as we say, an unreliable partner. We do not believe in spending
Canadian money in the wrong places.
Non-payment is always an issue, pulling out. We have contribution
agreements that specify, in great detail, the consequences of not meeting
certain milestones, so there can be no expectations of further payments if
the milestones have not been met. We would then, of course, try to work with
the implementing partner to ensure that the work does progress. Usually in
cases like this we would have already spent a considerable amount of money
and there would be an interest in ensuring that the work is completed. We
would try to find possible solutions, but holdback of further payments is
the immediate first step.
On the training side, Canada recently hosted a workshop, a tabletop
exercise, under the aegis of the Global Initiative to Combat Nuclear
Terrorism, GICNT, in Toronto, which was essentially practising as a tabletop
exercise the response of the various government agencies, on all three
levels of government in Canada, to a nuclear incident or, rather, a
radiological incident — a terrorist exploding a dirty bomb in downtown
Toronto. The workshop was held with the participation of 14 states, all
members of GNCIT. That exercise was very useful in pointing out where the
dots need to be connected in real time, in the case of an incident.
We also participate actively in interdiction exercises of the
Proliferation Security Initiative, and I understand that to date we have
participated in 49 such exercises. Again, exercises are happening at the
international level as well as domestically.
Senator Dallaire: I do not want to go into the detail of who was
on this command post exercise. All the departments so involved were engaged.
I will take that for granted.
One of the briefing notes I have is about the IAEA regulations and
standards on the physical security of nuclear facilities. Under that, the
Washington-based Nuclear Threat Initiative, NTI, does an assessment.
Thirty-two countries are assessed, 32 nuclear-capable nations. We come out
tenth. In one area, we are twentieth. It says "international legal
commitments, voluntary commitments, nuclear security and materials
What does Bill S-9 do to this? Will we get a better mark, and what do we
need in order to be more effective than tenth?
Ms. Nolke: I believe that would count, because one of the things
the NTI noted is we had not ratified the amendment to the Convention on the
Physical Protection of Nuclear Material or the ICSANT treaty. Yes, we would
hopefully climb the rank ladder the next time.
Senator Dallaire: How come we are tenth and not fifth? We are not
Ms. Nolke: We are not, but that is a question you also might wish
to ask the people doing the assessment. The NTI is an NGO. The criteria they
applied may not have been the kinds of things we would be looking at. As I
understand, the top states are very close together. I do not know the
details of the ranking system, but being tenth is really not a bad place to
Senator Dallaire: I am looking at the validation of what we are
doing. The government can say we are doing a great job, we can get an
assessment here, we are putting a bunch of money in, but you always try to
find out how that independent third party is validating what you are
actually doing. It is coming from various areas. The UN can do it and of
course NGOs can do it.
I have not seen that sort of assessment format that we use to say that we
are actually number three or four in whatever ultimate standards are
established. Are there a couple of other places where we can find that?
Ms. Nolke: Yes. For example, one of the elements of the current
summative evaluation process audit that is being done on the Global
Partnership Program as we speak includes auditors speaking to our partners —
the U.S., the U.K., as well as the Russians — to find out how they view the
program. Those findings will be part of the report.
There were previous reports done, and I believe they are available on the
Global Partnership Program website. I can certainly look into that and make
those available to you. They would be public documents.
Senator Dallaire: Please do, if you do not mind. It is part of our
assessment of how we are doing with the protection of nuclear devices or
nuclear capabilities. If we, with Bill S-9, have just scratched the surface,
maybe we want something more substantive coming down the pipe sooner in
order to achieve that. We do not have a clue, sitting here, about the
overall scenario that you could be describing to us.
Chair, if that is feasible, that would be very helpful for us to look
into the future.
The Chair: That would be helpful if you could share the
information with us or give us access to the sources. Then, as we work to
build our own terms of reference for future activities, that could be of
Ms. Nolke: We will undertake to do that.
The Chair: Are there any other questions for our guests?
There being none, please allow me to express, on behalf of the committee
and of all Canadians, our appreciation for the very important work that you
do in this difficult and technologically complex but very important area. We
are hopeful that the legislation that we are now considering will make your
jobs easier, not harder, and give you more tools with which to pursue the
public interest and protect Canadians.
I would like to welcome honourable senators, members of the public who
are with us in the room and viewers across the country who may be up early
in the morning so that they can watch this committee when it is broadcast.
We resume consideration of Bill S-9, An Act to amend the Criminal Code. We
have completed our public hearings on this bill and are now at the stage
where we will soon begin to go through the bill clause by clause.
Before I do that, I would like to remind senators of a number of points
of which many are already aware.
We are all eager to ensure that we do the best we possibly can so that,
when the Senate takes up this bill at the next stage, it has before it the
best possible product. If, at any point, any colleague around the table is
not clear about where we are in the process, please feel free to ask for
clarification. I consider it my duty, as chair, to ensure we do your utmost
together to ensure that we have, at all times, the same understanding of
where we are in the process.
I will also do my best to ensure that senators wishing to speak have the
opportunity to do so. For this, however, I will depend on your cooperation,
and I ask all of you to think of other senators and to ensure that we have
sufficient time to accommodate all colleagues who may have concerns or
suggestions to make.
I also remind colleagues that if there is ever any uncertainty of the
result of a voice vote or a show of hands, should we get to that, the
cleanest route is to request a roll call vote, which provides clear results.
The clerk should do that if it becomes necessary.
I will pause and ask if there are any questions from colleagues at this
point in the process.
If not, I would like to welcome Greg Koster and Catherine Kane from the
Department of Justice. They are here to assist us, once again, with any
technical or other concerns that we might have relative to the provisions in
this legislation. We appreciate their presence and look forward to their
technical assistance, as always.
We are now going to move to clause-by-clause consideration. When we get
to a clause where senators wish to make an amendment, they will so notify
and we will proceed on that basis.
Is it agreed that the committee now proceed to clause-by-clause
consideration of Bill S-9, An Act to amend the Criminal Code?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: With respect to clause 5, is there an amendment for
consideration? I am informed by the clerk that Senator Dallaire will go
Senator Dallaire: We went through a significant amount of
questioning and debate with regard to the addition of the term "making.
refer you to page 4, line 7. The line starts with "damage to property or
the environment, possesses, uses, transfers, " and so on.
From the American information we have received and from our witnesses, it
came as a reality check as to the nature of what the people are trying to do
with these nuclear instruments, be they devices or other material.
Ultimately, it is to create something that will go "boom " and that will be
It is not just by owning it. It is not like a piece of art, which you
own, hide and are very happy about. This stuff is taken because a subversive
element wants to use it. Ergo, the launching of all these qualifiers
should start by the fundamental premise that some of these people want to
make something with it. Therefore, I move:
That Bill S-9 be amended in clause 5, on page 4, by replacing line 7
with the following:
"damage to property or the environment, makes a device or
The Chair: Could I ask you to read that as well in French for our
Senator Dallaire: On line 10 in the French, we would replace:
"considérable à des biens ou à l'environnement, " with: "considérables à
des biens ou à l'environnement, fabrique un engin ou ". So, we are basically
adding a comma and "fabrique un engin ".
The Chair: The amendment is moved by Senator Dallaire, seconded by
Senator Joyal. It is now on the table. Are there comments or questions?
I have been informed that the Department of Justice has taken a look at
the provision and is comfortable with it. It does not in any way do anything
other than strengthen the bill. We appreciate that advice and counsel.
Do senators have questions of the proposers or the officials to ensure
that we have clarity on the intent and impact? Do not feel the need to do so
if you are comfortable; otherwise, this is the opportunity.
Senator Joyal: I do not want to arm-twist any representative of
the Department of Justice, but we would appreciate their comments.
Greg Koster, Counsel, Criminal Law Policy Section, Department of
Justice Canada: Paragraph 1(a) of Article 2 of the ICSANT treaty
includes the concept. The phrase is "makes . . . a device . . . with the
intent to cause death or serious bodily injury . . . substantial damage to
property or the environment. " I would note that the U.S. bill before their
Congress as well as the U.K. law and the Australian law contain the words
"make a device "; so it would be consistent with the foreign legislation.
A number of offences in the Criminal Code contain the notion of "makes
something, " for example, making child pornography and making explosives. It
is not a foreign concept to criminal law.
The Chair: Senator Joyal, do you want to add anything?
Senator Joyal: I will make the points I made earlier. The
convention that Bill S-9 seeks to implement contains specifically the words
"makes a device, " so we are exactly along the line of the text of the
convention. We are paralleling the wording of the convention at Article 2,
paragraph 1(a), as mentioned.
It is appropriate to have that amendment to the bill.
Senator Day: I keep reading it to try to determine whether the
word "or " should appear in this amendment. It reads "makes a device or.
There is no "or " where we are putting this in. It is "the environment,
possesses, " et cetera. Now, we are putting an "or " in here. How does that
change the English, if any?
Senator Dallaire: We included it because further down we saw
"alters or disposes of nuclear material. " It is one thing to make it and
one thing to possess it; so the "or " went in. I am not a linguist.
The Chair: It would read: ". . . property or the environment or
possesses, uses, transfers, exports, imports, alters a device, disposes of
nuclear material, radioactive material or a device or commits an act . . .
Senator Joyal: The "or " is already in the text. For instance, it
is used at lines 8 and 10. It is already in there.
Senator Day: However, there is not an "or " after "environment
in the text as it appears. In effect, we are putting one after environment.
Senator Joyal: No, not after "environment. "
Senator Day: I understand, but it says "property or
environment, " and then "possesses, uses, " et cetera.
The Chair: Correct.
Senator Day: Now we are putting in "property or environment,
makes a device or. "
Senator Joyal: "Possesses, uses. " It does not change the
The Chair: It has the effect of separating each one of those
activities as a separate indictable offence. That is the net benefit to
those who might be prosecuting or investigating such an allegation. You do
not have to have the cumulative acts, but by separating where this amendment
separates, you allow different bases for prosecution and investigation, each
one standing on its own relative to the general intent and purpose of the
Senator Day: I could use that argument to say the "or " should
have been there previously in the draft; and it was not.
The Chair: I am respecting the liberal wording of where the
Senator Day: How can I argue with that?
The Chair: That is why I made that case.
Senator Day: I am not convinced of your argument, but if everyone
else is happy with this, I will not argue this point further.
Catherine Kane, Director General and Senior General Counsel, Criminal
Law Policy Section, Department of Justice Canada: I would add that the
drafters at the Legislative Services Division of the Department of Justice
have looked at it. They are in agreement that it conveys the intention of
the senator and that it is properly positioned because it singles out
"makes the device. " You could not have "make " anything else in that
list. For example, you cannot make nuclear material but you can make a
device. "Makes a device " stands on its own; "or possesses, alters
so on. It has a good flow and is a logical and good amendment.
Senator Joyal: It maintains the rationale of the structure of the
section. That is the main argument.
The Chair: With your indulgence and permission, I would like to
deal with clause 5 as amended by Senator Dallaire. We will come back to see
if any other amendments may exist with respect to this clause.
Is it your pleasure, honourable senators, to adopt the motion to amend as
Hon. Senators: Agreed.
The Chair: The motion to amend is carried.
Are there any other amendments to this clause?
Senator Frum: I would like to propose two amendments. In proposed
sections 82.3 and 82.4 in clause 5, there is a discrepancy between the
English and French versions. In the English version, we have two additional
words "who " that help to create uncertainty around the required intent. We
are talking about the "who " that exists in line 10 and the "who
exists in line 19. We are proposing that they be deleted to remove any
confusion or uncertainty about the issue of intent that is created at the
top of each section.
The Chair: Could I ask you to read the amendment in English?
Senator Joyal: How would that fare in the phraseology of the text?
Could you read it, please?
Senator Frum: I propose:
That Bill S-9, in clause 5, be amended by
(a) replacing, in the English version, line 10 on page 4
with the following:
al or a device or commits an act against a
(b) replacing, in the English version, line 19 on page 4
with the following:
device or commits an act against a nuclear
In both cases you have the word "who " deleted before the word
"commits " because you only need the first "who " at the top of the
The Chair: Are there any questions? I assume if this amendment
came from the government it ultimately came from people at the Department of
Justice who work closely with our witnesses. Can you share with us the
benefit of clearing up that grammatical construct in terms of the purposes
of this section?
Mr. Koster: Yes. The removal of the word "who " midway through
both 82.3 and 82.4 is consistent with the government's interpretation of
what those offences are targeting. The Minister of Justice stated on the
record before this committee that both halves of the offences, both the
various activities like possess and use, as well as the commission of acts
against nuclear facilities, was to have that top intent. The removal of the
word "who " was to make that clear and consistent with both French
The Chair: Any questions?
Senator Joyal: The way I read it, we should make the amendment. It
adds an element of uncertainty about the first statement of the intention,
so I think it is much better, not only grammatically but intentionally for
what the bill seeks to do at sections 82.3 and 82.4.
The Chair: Are there any other questions for Senator Frum or the
officials from the Department of Justice on this provision?
There being none, is it your pleasure, honourable senators, to adopt the
motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the motion in amendment carried. If the
amendment is adopted, then I guess we can say we have adopted clause 5 as
amended; is that correct?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to discuss appending
observations to the report at this time?
Some Hon. Senators: Yes.
Senator Tkachuk: Did we move that you will report the bill?
The Chair: I was going to ask that question but was told by the
clerk I could not do that yet. We have to discuss observations first and
then we will move that. That is the normative procedure.
Honourable senators, we have some draft observations before us. We also
have a draft observation that was offered by Senator Dallaire. We will open
the table to any comments about the observations per se.
Do you want to have this discussion in camera or open for the entire
world to see? I am in your hands. Shall we leave it open? Let us leave it
The observations start with the words "Draft Observations — Bill S-9,
and there is an introduction right under the chair's signature. This has
been distributed already.
Senator Dallaire is now having distributed not just the "Private
Security in Nuclear Facilities " observation but a modest amendment to that.
We already have the observation with us, and there is a small amendment
being considered to that.
Before we get to Senator Dallaire's amendment, I would open the floor for
any comments — positive, negative, exculpatory, editorial — relative to the
draft observations that we have had in our hands for a few days. In my own
view, having gone through them, they do reflect both testimony we have heard
and some of the discussion that has transpired. They are what I would call
permissive in the sense that they suggest directions government may wish to
consider, both in implementation of this act and on a go-forward basis.
There is nothing here that is in any way limiting of the government's
perspective with respect to these issues, so they did not strike me as
compellingly unreasonable, and I want to thank our staff for working on them
in a diligent fashion.
I think we should have a discussion or deal with questions on these
observations first, and then I would like to move to the recommendation for
an additional observation made by our colleague Senator Dallaire.
I have Senator Buth and Senator Tkachuk who wish to discuss the
Senator Buth: At the top of page 2 it says:
Having said this, the Committee also recognizes that the enactment of
domestic legislation . . . if such legislation operates in the context
of a wider policy framework, designed and properly resourced to support
Could we have a discussion about removing the word "properly "? I think
it leaves an impression that we have not been properly resourcing
legislation that we do have. The last line would read "if such
legislation operates in the context of a wider policy framework, designed
and resourced to support it. "
The Chair: Are there any comments on that suggestion? I must say
it strikes me, in view of some of the large amounts of money we have
discussed around the table and had in testimony, as a completely reasonable
observation on the part of Senator Buth, but that is just one person's view.
Senator Tkachuk: It is my view as well.
The Chair: Would anyone be uncomfortable with the suggestion made
by Senator Buth relative to that editorial change? I will instruct staff,
with your approval, to do that.
Senator Tkachuk: The last paragraph, and we can all read it
ourselves, leaves the impression that we have done little in the world of
highly enriched uranium and that we should be catching up to the European
and South African models. In reality, as I pointed out when Senator Dallaire
was asking questions of the witness, Prime Minister Harper pledged to curb
non-military use of HEU material at the nuclear security summit in 2010, and
he said that Chalk River will be shut down in 2016. We have spent a lot of
money on research.
Minister Paradis announced a $35 million initiative on non-reactor-based
isotope supply programs. Saskatchewan Premier Brad Wall has been advocating
construction of a research reactor in Saskatchewan following the federal
announcement, placing Saskatchewan at the centre of Canada's non-HEU medical
isotope research production efforts, and also the Government of Saskatchewan
in March of 2011 announced $30 million in funding.
My view would be that this particular paragraph leaves a totally wrong
impression — well, not totally wrong, because it does say we believe that
Canada should continue its leadership role. I think we do have a leadership
role, and I think we should mention it or else get rid of the whole thing.
We only had one witness here who talked about this. It is not that we have
backup information, some guy from Harvard made a speech and we are going to
run it in here. We should be more careful.
The Chair: There are two suggestions. I want to be clear that I
understand what your primary purpose would be in this, senator.
Senator Tkachuk: I would like to get rid of the paragraph, but not
if people feel very strongly about it.
The Chair: There are a couple of options. One would be, where we
say "by committing " in that second last line, to say "by continuing
Canada's commitment, " which is not as negative in its implication. That is
one possibility. Changing the second last line of that paragraph to "by
continuing Canada's commitment to eliminating all civil use " implies that
the work is ongoing, as your comments have underlined. The other possibility
is to have a line that makes reference to the specific undertakings that
have been made, by Saskatchewan and others, with respect to this so that it
gives a balanced assessment of what is going on.
Senator Tkachuk: If you go to that first paragraph, "The
Committee believes the Government of Canada should further reduce the
risk, " we are reducing the risk. What more can we do?
The Chair: We could say "should continue to further reduce.
Senator Day: There are two private facilities that there has been
no announcement in relation to, two private university facilities that use
highly enriched uranium. It is not just Chalk River in Canada.
Senator Tkachuk: We cannot just close it all down; we need that
Senator Day: No, but we have to continue to provide incentives to
Senator Joyal: I suggest that we mention Saskatchewan. Those who
read the observation will learn about it, and I think that it is an
The Chair: I understand that we will, in the normal course of
things, ask for the committee to give the steering committee final editorial
approval on the commas, dots and whatever. However, would you be happy,
senator, to add a specific reference to the work already being done,
constructively, by the Government of Saskatchewan and by the federal
government, along with those other changes that talk about continuing the
commitment and continuing to further reduce? The paragraph would then give a
more even-handed view of progress to date and a more accurate reflection of
the work that has been done, constructively, on this file.
Senator Tkachuk: Yes, agreed.
Senator D. Smith: I am not trying to be partisan here, but would
your colleague, Cheryl Gallant, who represents the Chalk River area, agree
with your motion?
Senator Tkachuk: I am not sure what you mean.
Senator D. Smith: Is Chalk River right off the radar screen?
Senator Day: 2016.
The Chair: Present plans call for it to —
Senator Tkachuk: That has already been announced.
Senator D. Smith: If you are doing something new, are you saying
that it cannot be in Chalk River?
The Chair: I do not think that Senator Tkachuk said that.
Senator Tkachuk: No, I did not say that. I just think that it
should be clear. It says:
The Committee believes the Government of Canada should further reduce
the risk of fissile material theft by committing to eliminate Canada's
use of highly enriched uranium (HEU) as fuel in its two research
Then we have, "eliminating all civil use. " I do not know if it can be
done. We do not have the research to say that that can be done, so why would
we commit to something in an observation?
The Chair: Could I ask the committee to give the steering
committee the authority to edit that last paragraph so that it reflects some
of the core ideas in it now plus some of the new information given to us
today by Senator Tkachuk? The final wording, of course, would end up having
the approval of the steering committee as we go forward, and we would ensure
that it reflects the views of the committee as have been expressed.
Senator Day: I do not disagree with delegating that to steering,
but I would be concerned about mentioning Saskatchewan without recognizing
that there is a lot of effort going into using other means for preparing
medical isotopes from non-highly enriched uranium in other parts of Canada,
as well as in Saskatchewan.
The Chair: That is a very good comment. There is work going on in
British Columbia and in Chalk River.
Senator Tkachuk: We do not have the information to do a paragraph
The Chair: We have had some testimony about where the low uranium
stuff is being worked on. That has been discussed before.
Senator Day: I remember asking the question.
The Chair: Yes, you asked that specific question, so I think that
we do have the information to produce a final paragraph that is reflective.
Senator Tkachuk: Okay, that is fair enough.
Senator Joyal: I think that usually in these circumstances, based
on past experience, the researchers from the library can go back to the
minutes of the committee and take the wording of that testimony to ensure
that we remain within the confines of the evidence and information placed
before the committee.
The Chair: If we are okay with where we sit in that respect, we
will move on. We will see the final wording before it goes anywhere.
Senator Tkachuk, you are on that committee, so nothing will —
Senator Tkachuk: I am good.
The Chair: We have a recommendation for a further observation from
Senator Dallaire, which has been distributed.
Senator Dallaire: This may be perceived to be a bit of a verbose
observation. There is an enormous amount of responsibility being put on the
security elements of all sites and all areas where nuclear material is being
used and employed, from an energy production to hospitals, research
laboratories and the like.
However, the greatest failing, sort of like with sophisticated aircraft,
is the question of pilot error. One dimension that often gets forgotten
because it is not generally sitting at the vice-president's or president's
board meetings is personnel security, not only personnel who are working in
the place but also the personnel providing the security, which is now more
and more contracted out to civilian firms that are profit focused. Just as
it is not talked of often, it is an easy place to cut budgets, and we have
seen it being a soft target in budget cuts.
I felt that it was essential to remind us that these people are not
guarding Walmart against shoplifters but are guarding material that could
end up in weaponry and, ultimately, in the most horrific, catastrophic
scenarios imaginable, far beyond what the two towers in New York
What I am calling for in this observation is that the security checks on
the individuals who are hired in this endeavour, throughout the security
structure, be far more regularly reviewed because they can become fairly
easy victims to influence and could change their philosophy in regard to
nuclear power and devices or energy.
Right now, some of them get a security check every five years. I have
correspondence here from the Province of Ontario, which is not overly keen
on it being every five years because, currently, it is every ten years. I
come from a milieu in which a private gets a security check every five
years, but those who are in far more sensitive areas get them every year. I
would consider that security of nuclear material would require, at a
minimum, a review probably every three years.
I am asking that that be enhanced in order to ensure that someone is
working in this realm is not simply forgotten and that it is not taken
granted that they will be able and loyal and that the structure will train
them to be up to scratch throughout their career.
I would simply argue that we must be more sensitive to the personal
security classification of the individuals.
The Chair: I open the table to comments, suggestions, concerns
Senator Tkachuk: We received testimony here — it might have been
from the department, actually, Ms. Kane and Mr. Koster — that security at
our nuclear facilities is the gold standard.
The Chair: I think that was from the Nuclear Safety Commission.
Senator Tkachuk: They said that we usually place first on all
security scenarios. I do not think that we should be putting things in
observations that are apart from the bill itself. We did not have testimony
on the security, which is a separate matter from the bill. I have some
problem with this.
Senator Dallaire: I would like to rebut that. We did question a
number of people on that specific subject and they indicated that we should
be concerned about it. In fact, I have read a report that said we are ranked
twentieth in that dimension by the NGO.
Senator Tkachuk: What report is that?
Senator Dallaire: I am trying to find it.
The Chair: I think the ranking was tenth.
Senator Dallaire: No, we were tenth overall, but it was
The Chair: The substantive question before us is whether we want
to add an observation saying that the normative security checks that are
performed on individuals who are responsible for security organizations in
the various operating nuclear facilities across the country should be more
intense than they are now. I think that is the purport of these two
paragraphs. Senator Tkachuk has clearly indicated his concern with that.
Are there other comments on that?
Senator Joyal: I myself asked questions of the representatives of
the nuclear commission. I do not have the transcript of the committee in
front of me.
The Chair: I recall that the exchange did take place.
Senator Joyal: The exchange took place. As a matter of fact, I was
to continue questioning, but the time lapsed. I asked specific questions
about the security check to which personnel would be subjected, not only
before being hired but during the course of employment.
Senator Joyal: There are two risks; the risk of hiring someone who
was part of a network, about which I asked very specifically, and the risk
of someone already there being lured by a group to pass on information or
The transcript will reflect that.
Senator Buth: I support Senator Tkachuk's comments. In the draft
observations that have been prepared, in the second-last paragraph on page 2
The Committee recognizes that Canada operates under a world-class
nuclear safety and security regime. Nonetheless, continued vigilance
with respect to the physical, personnel and cyber protection of nuclear
materials and facilities is urged.
I think that covers, in a general way, the more detailed observations,
and I would concur that the observations need to be kept fairly general. If
we start getting specific, we may end up in many other areas.
Senator Frum: When Professor Bunn spoke about the 100 research
reactors where there is low security, I do not know that he was asked
specifically if that related to Canada. I am quite sure he was talking in an
international context, specifically about places like Pakistan. I think that
to include that observation in this recommendation makes implications about
Canadian security that were not intended by Professor Bunn.
The Chair: Before we come to a decision on this, I will point out
two things. First, Senator Buth has pointed to a reference to this issue in
the observations. Second, nothing prevents any of us from talking in great
detail on this issue when the matter comes before the chamber at third
reading. I am not suggesting that is an appropriate path, but I want to
remind colleagues that it exists for all of us all the time.
Senator Dallaire: I would have preferred the chair offering that
second option after I finished selling my product instead of giving an out
to our colleagues before I make my point.
I am speaking not only of information that we did receive, but also of
reality and experience. We are not just sponges that absorb information and
attempt to bring it together. We come with certain capabilities and
expertise. For example, many people who are on the Fisheries Committee are
from the Maritimes and may know something of the subject matter.
With regard to the security of nuclear material moving around, this law
is not meant to deal only with material that is inside the country, it is
also meant to ensure that people are not making it outside the country and
trying to get it in. We know that there are threats out there.
Also, we know that there are places that are sieves where this material
can still move around and it can come to our shores.
In normal practice, security checks are done on people who are employed
in this area every five years at a minimum. In this country we are doing
checks only every ten years. In my opinion, that is human security risk.
They are the first ones who will be able to intercept.
I would even argue that checks should be done every three years. When I
was in the military, we did checks every year. It is a matter of significant
concern to ensure that people employed in this field are continuously under
the watchful eye of our security people rather than being free to do
whatever they want for 10 years. We should continuously observe personnel
files and ensure that people have the level of security clearance that we
think they should have in order to work in this area.
Senator D. Smith: I concur with Senator Dallaire. This nuclear
stuff is more serious than money, and look what happened with that Brinks
truck in Edmonton. There obviously was not the required kind of security
there. I will support Senator Dallaire's motion.
The Chair: We seem to have different points of view on different
sides of the table. There is a procedure by which to address that. We could
go to a voice vote or a show of hands. In a show of hands, the chair would
not vote; in a voice vote, the Chair would vote first.
Are people comfortable with proceeding with a show of hands initially to
see where that takes us? Will all those in favour of including private
security in nuclear facilities in the observations raise their hands?
Will all those opposed to including that provision in the observations
raise their hands?
We had better take a voice vote.
Senator Tkachuk: No, it falls. A motion that is a tie falls. You
do not have a voice vote. It is over.
The Chair: Is that the rule?
Senator Joyal: On that one, I concur with Senator Tkachuk.
The Chair: With that decision, I will express the hope that the
sentiment in the addition that was not carried will find its way into debate
in the Parliament and Senate of Canada. I think that would very much be in
the public interest.
Is it agreed that the observations, as have been discussed, be appended
to our report? Is it agreed that this bill be reported with the
observations, as amended, to the Senate, as we amended it in section 5? Is
that agreed by colleagues?
Hon. Senators: Agreed.
The Chair: Could I make a motion that the observations for final
editorial clarity be referred to steering for the constructive refinement,
reflective of our discussions around the table today?
Hon. Senators: Agreed.
Senator Dallaire: Just to make sure that it will not have the
litany of initiatives that Senator Tkachuk announced that the government is
doing in order to prove the case.
The Chair: I think the understanding is that the final paragraph
would be a balanced one that reflects what our discussions have been and
makes reference to both what can be done in the future and what should be
done, and what has been done to date.
Senator Dallaire: Yes. I simply state that it does not have to be
that specific in order to make your case either.
Senator Tkachuk: Why?
Senator Dallaire: You do not need it.
The Chair: Why do we not leave the editorial work to the — I am
aware of the sensitivities that have been expressed and will do my best to
ensure that they are addressed in a balanced and communicable way.
What else do we have to approve?
Is there a motion to adjourn?
An Hon. Senator: I so move.
Senator Tkachuk: Do we move to report?
Senator Joyal: It has been adopted.
The Chair: We have done that. Until further call of the chair, I call this meeting adjourned.