Bill S-9 (Historical)

Nuclear Terrorism Act

An Act to amend the Criminal Code

This enactment amends the Criminal Code to create four new offences relating to nuclear terrorism in order to implement the Amendment to the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism.

Nuclear Terrorism Act

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I thank my colleague for his speech.

When the Senate studied the bill, it may have pointed out areas that were overly broad in scope in order to prevent criminalization. I will read a short excerpt.

The intent of the Department of Justice was to adhere as closely as possible to the provisions of the convention. However, some of the new offences in the Criminal Code are broader in scope than the offences found in the international agreements.

Must we ensure that the overly broad scope of this new part will not result in excessive criminalization and will not violate the Canadian Charter of Rights and Freedoms?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I thank the member for Joliette for her excellent question, which makes some very important clarifications.

The scope of this bill is possibly too broad, since the justice department's intention was to stick as close as possible to the provisions of the convention. However, some of these new offences in the Criminal Code have a much broader scope than the offences found in the international agreements.

We must ensure that the broad scope of this new part will not cause excessive criminalization and will not violate the Canadian Charter of Rights and Freedoms. The Standing Committee on Justice and Human Rights will have to make some clarifications.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, my hon. colleague from Châteauguay—Saint-Constant made a very good point about the delay of this legislation arriving in Parliament. We know that the operative treaties that underlie this legislation were both adopted in 2005 and it is now 2012, seven years later. Even giving the government a year or a year and a half to prepare the implementing legislation, this seems excessive.

Does my colleague feel that the government's approach to these two treaties has harmful effects on our reputation internationally, especially among the community of states that take very seriously measures to protect against nuclear terrorism?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I thank the member for Toronto—Danforth for his excellent question.

The answer can be found in the question itself, in that the seven-year wait was excessive. Many countries take these questions very seriously. We are talking about the safety of Canadian citizens.

Many countries took these issues much more seriously—if I may say so—and addressed nuclear safety issues much more quickly.

The fact that Canada waited so long to address the nuclear safety issue has only tarnished Canada's international reputation, which had been excellent up until now. Canada's reputation has been tarnished by our delay in addressing this issue. My colleague was correct in pointing that out.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, as my colleague pointed out and I just realized, unfortunately, since this morning only NDP members have been defending Bills S-7 and S-9, which have already been studied in the Senate. That does not surprise me. Each time, the Conservative government has washed its hands of these matters, and it has done the same with health concerns.

However, I am not surprised by how they have handled these two bills. They have let representatives appointed to the Senate do the work of members elected by Canadians to represent them in the House of Commons.

That being said, I listened carefully to my colleagues' speeches. Concerns were raised in the Senate, especially about the sentences. They say that there are no mandatory minimum sentences in Bill S-9. Can my colleague talk about that?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I would quickly say that it is a good thing that there are no minimum sentences in this bill because they are constantly challenged in the courts anyway. What is more, in the near future, they would probably be declared unconstitutional. So, it is a good thing that there are no minimum sentences. There are however maximum sentences that can be as long as life in prison for most of the offences. That is appropriate. This will give judges the flexibility to rule according to case law, case by case, and to come up with the right sentence.

[The Acting Speaker, Conservative, Bruce Stanton]

It being 6:30 p.m., this House stands adjourned until tomorrow at 10 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 6:30 p.m.)

The House resumed from October 15 consideration of the motion that Bill S-9, An Act to amend the Criminal Code, be read the second time and referred to a committee.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am happy to stand in support of the bill and to start today's discussion of Bill S-9.

I will be splitting my time with the fantastic member of Parliament from Nanaimo—Cowichan. Notwithstanding the fact that I was instructed to use those precise terms, I happily stand by them.

We are back to amending the Criminal Code but this time for a good cause. Bill S-9, the nuclear terrorism act, would amend the Criminal Code in order to implement the criminal law requirements of two international counterterrorism treaties, the Convention on the Physical Protection of Nuclear Material, as amended in 2005, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.

The nuclear terrorism act introduces four new indictable offences into part 2 of the Criminal Code, making it illegal to possess, use or dispose of nuclear or radioactive material or a nuclear or radioactive device, or commit an act against a nuclear facility or its operations, with the intent to cause death, serious bodily harm or substantial damage to property or the environment; to use or alter nuclear or radioactive material or a nuclear or radioactive device, or commit an act against a nuclear facility or its operation, with the intent to compel a person, government or international organization to do or refrain from doing anything; to commit an indictable offence under federal law for the purpose of obtaining nuclear or radioactive material, a nuclear or radioactive device, or access or control of a nuclear facility; and to threaten or commit to do any of the above.

In addition, the bill introduces into the code other amendments that are incidental to these four offences but are nonetheless important. It introduces a new section into the code to ensure individuals who, when outside of Canada, commit or attempt to commit these offences may be prosecuted in Canada. It amends the wiretap provisions found in the code to ensure that they apply to the new offences. It also amends the code to make four new offences primary designated offences for the purposes of DNA warrants and collection orders.

Finally, it amends the double jeopardy rule in Canada such that, notwithstanding the fact that a person may have been previously tried and convicted for these new offences outside Canada, the rule against double jeopardy would not apply when the foreign trial did not meet certain basic Canadian legal standards. In that case, a Canadian court may try the person again for the same offence of which he or she was convicted by a foreign court.

For a long time now, but particularly in the post-cold war era, it has been well understood that with the proliferation of nuclear weaponry and nuclear power generation around the world, a new and heightened regime of nuclear safety and security must be developed. A scenario in which nuclear weapons or materials fall into the hands of terrorists has prompted many to focus on the development of such a regime or framework. It is clearly understood that such a regime must be international in scope and must be grounded in the deep and good faith co-operation of states around the world. That regime needs to be put in place with considerable urgency.

This understanding forms the basis of the two aforementioned conventions that await Canada's ratification. The first of these, the Convention on the Physical Protection of Nuclear Material, dates back to 1980. Its importance is signified by the fact that it stands, still, as the only internationally legally binding undertaking in the protection of nuclear material.

In July of 2005, a diplomatic conference was convened to strengthen the provisions of the convention by doing a number of things, including expanding international co-operation between and among states with respect to rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences, such as sabotage, and prevent and combat related offences.

With respect to the other convention, in 1996 an ad hoc committee of the General Assembly of the United Nations was mandated by the General Assembly to develop an international convention for the suppression of terrorist bombings, and subsequent to that, the International Convention for the Suppression of Acts of Nuclear Terrorism. This later convention was adopted by the General Assembly in April 2005. This convention on nuclear terrorism imposes an obligation on state parties to render the offences set out in the convention as criminal offences under national laws and to establish jurisdiction, both territorial and extraterritorial, over the offences set out in the convention.

Both of these conventions await ratification by Canada, which is first dependent on the codification of the offence provisions of these conventions into Canadian criminal law.

We on this side of the House recognize the need and urgency to put in place a regime to counter nuclear terrorism. Moreover, New Democrats are committed to multilateral diplomacy and international co-operation, especially in areas of great common concern such as nuclear terrorism. Thus, we need to work with other leading countries that are moving forward toward ratifying these conventions.

We also believe that since Canada has agreed to be legally bound by these conventions, it is important to fulfill our international obligations. For these reasons we will vote in favour of the bill at second reading in order to further study it at committee. However, a few concerns need to be set out first.

The first has to do with the origin of the bill. I would urge those who embrace the anachronistic and undemocratic institution of the Senate on the grounds of tradition to employ the Senate in the traditional way, that being as the chamber of sober second thought and not as the place of origin of legislation. It is for those of us in the chamber who, for better or worse, were sent here by Canadians to do that work.

Second, as with so much legislation that the government puts forward through whichever chamber, we must be careful that we do not overreach in the name of anti-terrorism. On this point, our experiences with the Liberals' Anti-terrorism Act and the government's recent Bill S-7 are instructive. The provisions of that act and that bill run contrary to the fundamental principles, rights and liberties enshrined in Canadian law.

Moreover, perhaps more importantly, we have found that without such extreme provisions, without changing the legal landscape of Canada, without breaching the rights and civil liberties of Canadian citizens, we have successfully protected the safety and security of Canada and Canadians from terrorist attack and that the offending provisions have proven over the course of time to constitute an unnecessary, ineffective infringement.

I would note that this issue arose in the course of the bill's study in the Senate. No doubt the intention of the drafters at the Department of Justice was to adhere as closely as possible to the terms of the convention. However, it has been suggested that some of the new Criminal Code offences are broader in scope than the offences found in the individual international agreements. We must be sure that the overreach of these new sections will not result in undue criminalization or go against the Canadian Charter of Rights.

I anticipate that the justice committee will play a very valuable role in ensuring that the lessons of previous anti-terrorism legislation are applied to Bill S-9.

Last, I come to what I believe is a very important point in this discussion, that being the matter of delay. The implementation of the bill or some amended version thereof is a prerequisite for the ratification of both international conventions. Both of these conventions set out in their respective preambles the urgency with which the international community must act to implement a regime to control nuclear weapons and materials and to ensure they are not accessible for terrorist purposes.

For example, the preamble to the convention on nuclear terrorism talks about the deep concern of the parties to this convention of the worldwide escalation of acts of terrorism in all its forms and manifestations, and that acts of nuclear terrorism may result in the gravest consequences and may pose a threat to international peace and security. It also notes that existing multilateral legal provisions do not adequately address those attacks and that the “urgent need to enhance international cooperation between States” for these purposes needs to be moved forward.

Therefore, the question sitting out there is this. Why has it taken the legislation so long to get to the House for debate when both conventions have been open for ratification since 2005?

While there are other laggards in the international community, it is our expectation that Canada show leadership on issues such as these.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague and was especially interested in terms of the larger picture. Certainly we need to deal with the offences when someone is trying to deal in nuclear materials and the whole issue of nuclear terrorism. However, we see such a proliferation of arms already around the world that we need to have a proactive instead of a reactive response on the issue of nuclear proliferation. Reactive is just not good enough, no matter how many bills and legislation we bring forward. We are dealing with many countries, some of whom are unstable, that have used nuclear weapons or have access to nuclear waste or nuclear materials.

I ask my hon. colleague this. What does he think in terms of the big picture with respect to Canada playing a proactive role internationally to reduce access to nuclear weapons in every single country?

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, we on this side of the House have noted that Canada is falling behind both in its international reputation and participation in multilateral efforts to curb the proliferation of weapons. It is happening at a time of tremendous importance for countries like Canada to do the opposite and show international leadership on these matters. There are states around the world that are failing. Many of these states have a great deal of weaponry and those weapons are falling into the hands of people who should not have weapons. That is great cause for concern for the safety and security of folks around the world, including Canadians.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, my colleague from Beaches—East York mentioned a number of important points. In one part of his speech, he focused on something puzzling. In fact, the term “urgent” is used several times in these conventions. Yet, we have been waiting since 2005 for a bill to be introduced that really deals with this problem and that amends the Criminal Code, so that Canada can ratify these conventions.

One of the arguments trotted out by the Parliamentary Secretary when the bill was first introduced was that, at the time, there was a minority government in power.

To my knowledge, all members of the House agree with the general principle of this bill. Therefore, I will ask my colleague to speculate about why the government, which has been in power since February 2006, did not move more quickly on this bill.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, my response is a bit of a continuation of the response I gave to the last question in that what is happening is that Canada is failing to take its full place in the international community and show leadership on such issues. It seems to me that it was the urging of the international community at both the Washington nuclear security summit in 2010 and the Seoul nuclear security summit in 2012 that seems to have prompted the government to finally take action and put together a bill that would see the criminal codification of offences under those respective conventions put into place in Canada. It is interesting to read the Seoul communiqué that came out of the summit in 2012 and the very stark terms it spoke about of the urgency for countries around the world to ratify these agreements.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I thank the very hard-working member for Beaches—East York for sharing his time with me. He has done a tremendous amount of work in the House around the F-35 file and his speech today reflects his commitment to looking at some of these matters.

I also want to acknowledge the member for Gatineau and the member for Toronto—Danforth who spoke previously and very ably outlined some of the technical aspects of the bill. I will read from the legislative summary so that people who are watching are clear about the bill we are speaking about. It reads:

Bill S-9, An Act to amend the Criminal Code (short title: Nuclear Terrorism Act), is a 10-clause bill that introduces four new indictable offences into Part II of the Criminal Code, which deals with offences against public order. Adding these new offences, with respect to certain activities in relation to nuclear or radioactive material, nuclear or radioactive devices or nuclear facilities makes it illegal to

possess, use or dispose of nuclear or radioactive material or a nuclear or radioactive device, or commit an act against a nuclear facility or its operations, with the intent to cause death, serious bodily harm or substantial damage to property or the environment;

use or alter nuclear or radioactive material or a nuclear or radioactive device, or commit an act against a nuclear facility or its operation, with the intent to compel a person, government or international organization to do or refrain from doing anything;

commit an indictable offence under federal law for the purpose of obtaining nuclear or radioactive material, a nuclear or radioactive device, or access or control of a nuclear facility; and

threaten to commit any of the other three offences.

The bill would fulfill Canada's treaty obligations under the Convention on the Physical Protection of Nuclear Material, also known as CPPNM, and the International Convention for the Suppression of Acts of Nuclear Terrorism, ICSANT. This includes extending international measures beyond protecting against proliferation of nuclear materials to now include protection of nuclear facilities and it reinforces Canada's obligation under UN Security Council Resolution 1540 from 2004 to take and enforce effective measures to prevent the proliferation of nuclear materials as well as chemical and biological weapons.

In a case where the implementation of a treaty requires amendment to Canadian legislation, the treaty is ratified only when such amendments or new legislation has been passed. As the member for Beaches—East York very ably pointed out, Canada has not ratified even though it has signed on and it has been five years. The question is why the government did not take steps before. I know the parliamentary secretary mentioned in his speech that it was because of a minority Parliament, but there is broad agreement in the House about the need to ratify this treaty and for Canada to fulfill both its domestic and international obligations.

To date, Canada has not ratified either the ICSANT or the CPPNM amendment. This is because Canada does not yet have legislation in place to criminalize the offences outlined in the ICSANT or some of the offences outlined in the CPPNM amendment. The amendments Bill S-9 introduces into the Criminal Code represents Canada's efforts to align its domestic legislation with what is required by both conventions. If these amendments become law, Canada will presumably be in a position to ratify both the ICSANT and the CPPNM amendment. One would hope that Canada would move expeditiously to do that once this law has passed through both Houses.

I will quote from a handbook for parliamentarians supporting nuclear non-proliferation and disarmament because the bill has a larger context. It is important to note the larger context and why it is important for Canada to move ahead and ratify these treaties. This handbook was just released at the interparliamentary union last week in Quebec City. There was an address from the United Nations Secretary-General, a message dated July 2012, that was at the outset of this book. It reads:

The rule of law is coming to nuclear disarmament, and parliamentarians have important contributions to make in advancing this historic process.

Inspired or assisted by the efforts of the Inter-Parliamentary Union, parliaments are showing an increased interest in promoting nuclear disarmament. This should come as no surprise. Parliaments represent the people, and across the world today we are seeing a groundswell of opinion among diverse sectors of civil society--doctors, lawyers, religious leaders, mayors, human rights activists, women’s groups, environmentalists, economists and educators in countless fields--demanding concrete steps to control and eliminate these deadly, costly, wasteful weapons.

The core role of parliaments in ratifying treaties and adopting implementing legislation gives them tremendous potential to extend the rule of law even more deeply into the domain of disarmament.

This is part of what Canada can do in terms of fulfilling some of those international obligations. There is an important context, though, for this, and again in the Supporting Nuclear Non-Proliferation and Disarmament handbook, they quote from the 7th World Summit of Nobel Peace Laureates who concluded that:

The failure to address the nuclear threat and to strengthen existing treaty obligations to work for nuclear weapons abolition shreds the fabric of cooperative security. A world with nuclear haves and have-nots is fragmented and unstable, a fact underscored by the current threats of proliferation. In such an environment cooperation fails. Thus, nations are unable to address effectively the real threats of poverty, environmental degradation and nuclear catastrophe.

They go on to talk about the economic dimensions. I think this is also an important note about why it is so important for Canada to move forward. It goes on to state:

In December 2010, Global Zero released an analysis indicating that approximately US $100 billion per year was being spent globally on nuclear weapons, with almost 50 per cent of that being spent in the United States alone. In comparison, the biennial United Nations budget for 2012/2013 is US $5.1 billion, or 5 per cent of the yearly global nuclear weapons budget. The costs of meeting the Millennium Development Goals--of basic education, primary health care, minimum food, clean water, and environmental protection (including climate change prevention and alleviation)--are estimated at US $120 billion per year, just slightly more than the nuclear weapons budget.

We can imagine what a different world we could live in if all the money that was being spent on nuclear weapons was actually being spent on health care, education, poverty reduction measures and climate change.

The handbook goes on to say:

Allocating such massive budgets to weapons systems designed in the hope they will never be used not only steals economic resources from other vital programmes, it also drains the social capital required to stimulate economies. Dollar for dollar, investing in nuclear weapons creates far fewer jobs than virtually any other industry; nuclear weapon systems are high-tech and have virtually no economic flow-on to other industries or other economic activities. In addition, the intellectual activity devoted to modernizing and developing nuclear weapon systems steals such intellect from areas of social and economic need. The nuclear-weapon corporations might get richer, but everyone else gets poorer.

In the same handbook, it reads:

UN Secretary-General Ban Ki-moon, in a letter addressed to all parliaments in February 2010, noted that:

“At a time when the international community is facing unprecedented global challenges, parliamentarians can take on leading roles in ensuring sustainable global security, while reducing the diversion of precious resources from human needs. As parliaments set the fiscal priorities for their respective countries, they can determine how much to invest in the pursuit of peace and cooperative security.”

I have a quote that reads:

Dwight D. Eisenhower, from a speech before the American Society of Newspaper Editors,16 April 1953:

It is “The opportunity-cost of militarism....”

I think it is timely for us to remind ourselves of that in the context of this debate today. Mr. Eisenhower went on to say:

Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. This is not a way of life at all in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron.

The New Democrats are supporting getting this bill to committee for study because it is a very technical bill. There was one clause that needed to be amended at the Senate. We want to ensure that the bill reflects Canada's obligation under these international conventions.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I congratulate my colleague for Nanaimo—Cowichan for her speech. The Anti-Personnel Mines Convention is from another era, an era when Canada was a leader on the issue. We are now living with the shame of being a follower and having to make up for lost time. Fortunately, we are now taking action.

After listening to my colleague's speech, I have the following question. Does she believe that simple amendments to the Criminal Code and the government's measures are enough to ensure compliance with the terms of the convention? Changes to the Criminal Code can be useful, but they must be accompanied by precautionary measures and we must take concrete measures internationally that go beyond mere amendments to the text.