Bill S-7 (Historical)

Combating Terrorism Act

An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing for the purpose of gathering information for an investigation of a terrorism offence and to allow for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. In addition, the enactment provides for those sections to cease to have effect or for the possible extension of their operation. The enactment also provides that the Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness include in their respective annual reports their opinion on whether those sections should be extended. It also amends the Criminal Code to create offences of leaving or attempting to leave Canada to commit certain terrorism offences.
The enactment also amends the Canada Evidence Act to allow the Federal Court to order that applications to it with respect to the disclosure of sensitive or potentially injurious information be made public and to allow it to order that hearings related to those applications be heard in private. In addition, the enactment provides for the annual reporting on the operation of the provisions of that Act that relate to the issuance of certificates and fiats.
The enactment also amends the Security of Information Act to increase, in certain cases, the maximum penalty for harbouring a person who committed an offence under that Act.
Lastly, it makes technical amendments in response to a parliamentary review of these Acts.

Nuclear Terrorism Act

[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.

Public Safety

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

Mr. Speaker, I have two petitions to present today.

As we are in the midst of debating Bill S-7 in this House, I am pleased to present a petition with respect to the report and recommendations of the Standing Committee on Public Safety and National Security of the House of Commons of 2009, concerning the cases of Abdullah Almalki, Ahmad El Maati and Muyyed Nurredin.

The petition calls on the House of Commons to demand that the Prime Minister act immediately on those recommendations and bring a much-needed measure of justice and closure to these cases.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, just to clarify, I would have been quite happy to have consented to the motion had the member not included in it a provision for an additional opposition day. Had the member decided to conclude that NDP was prepared, since its subject for today was food safety, to make the balance of the day the debate on Bill S-11 and then have it proceed to committee, we would have been quite delighted to consent.

In terms of his suggestions on the budget bill, I am looking forward to meeting with him and discussing with him what opportunities might exist there further.

Earlier today, the Minister of Finance introduced Bill C-45, the Jobs and Growth Act, 2012.

This important piece of legislation will bolster Canada’s economy and help improve communities with initiatives that build a strong economy and create jobs, support families and communities, promote clean energy and enhance neutrality of the tax system, and respect taxpayers’ dollars.

We will start second reading debate of Bill C-45 on Wednesday—once honourable members have had a chance to review the bill and discuss it at next week’s caucus meetings. The debate will continue on Thursday and Friday.

I genuinely hope all members will take advantage of the budget bill study week that is available to review the valuable measures that are set out as the second half of our legislative arm of our comprehensive economic action plan 2012. One highlight of the study week will be a briefing arranged by the minister for all hon. members on Monday evening. I hope many MPs can attend, and certainly more than the paltry attendance of opposition members that appeared this spring for the briefing on Bill C-38.

I look forward to a vigorous policy debate on the economy and not on procedural games.

I turn now to the business of the House leading up to Wednesday.

This afternoon we will see the conclusion of the NDP's opposition day. Regrettably, I was personally disappointed that the official opposition did not answer my call last week to lay out the details of its $21.5 billion carbon tax and how it would raise the price of gas, groceries and electricity. Though, I was encouraged that this week in question period the New Democrats actually did acknowledge the subject and raised it.

Tomorrow and Monday will see us resume second reading of Bill S-7, the combating terrorism act. I understand we should finish that debate sometime on Monday, at which that time we will then turn to Bill C-15, the strengthening military justice in the defence of Canada act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; and Bill S-8, the safe drinking water for first nations act.

On Tuesday, we will debate the second reading of Bill S-11, the safe food for Canadians act, unless we find some other approach that would allow us to move on a more urgent basis. Since we did not get unanimous consent to move it forward quickly, we are hopeful there will be some other approach that can be agreed upon to move quickly with it. We hope that if we do debate it that day, we will be able to deal with it quickly and then spend the balance of that day debating Bill C-15 and Bill C-12, the safeguarding Canadians' personal information act.

Nuclear Terrorism Act

[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?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I feel fortunate because it is now my turn. I am tempted to pick up where the previous speakers left, namely the members for Toronto—Danforth and for Lac-Saint-Louis. The latter told the former that he should resort to political rants. I almost feel like doing just that because I see a problem. It is not the first time, because several justice bills are brought forward. You are aware of that because at one point you were our justice critic. Now, we are faced with the same scenario. A parliamentary secretary introduces a bill and then we hear nothing more from the government side.

We lack information regarding bills. Indeed, the bill is all we have. Again, all hon. members should read it, because it is fascinating. For some, this may be a relaxing exercise that will help them get to sleep, given how dry the document is. This legislation is not easy reading stuff. It is not what the member for Lac-Saint-Louis called a bill that is introduced following a big news story. It is not always easy to understand.

If these stages are followed in the House—and you know that Mr. Speaker, because you have been here a long time, probably longer than many of us—it is because they are all important. There is the first reading stage, when the minister introduces his bill. That is usually done quickly. This is followed by the second reading, which begins with a speech in which the government must explain its intentions. We ask some questions, but we do not always get answers. Then it is over, because there is nothing but silence from the other side, when we could already have an idea of where the government is headed with its legislation, what it is contemplating and whether it has considered all the issues. As the member for Toronto—Danforth pointed out, when listening to the parliamentary secretary, we got the impression that, maybe, something had been omitted. I am not imputing motives to her, but it is as though the government does not realize that it has been amended in the Senate. A rather important substantive amendment was made, but the government has not said much about it.

When we asked why it took the Conservative government so long to introduce Bill S-9, which does not present any problem—and we asked that question a number of times—we were told that it was part of our international commitments. And to quote the member for Toronto—Danforth, it may not even go far enough. We will see at committee stage. I am not sure I share this opinion. In any case we will see in committee, “but why five years”? Is it because, as the member for Lac-Saint-Louis suggested, the government thinks this legislation is not sexy enough—if I may use that expression—because it does not make headlines, because it will not be mentioned on the 11 p.m. news bulletin? I agree, but these are extremely important measures which seriously affect people's safety, and that is again the case here.

What is Bill S-9? This legislation was introduced in the Senate on March 27, 2012. If hon. members listened to my speech this morning on Bill S-7—at the beginning of the debate at second reading—they know that I am absolutely, and always will be, opposed to the introduction of a bill in the Senate first. In this House, we have elected members who represent the population. If a government wants to propose measures, it should introduce them in the House first. I realize that, sometimes, it may be practical because it seems that the other place has time to conduct studies. However, since we will have to do those studies in any case, I have a serious problem with that. Is that problem serious enough to prevent me from supporting the bill? It has to do more with the form. I am making a substantive criticism of the form, but Bill S-9 must fundamentally be approved by this House so that it can at least be referred to a committee.

We have various concerns regarding Bill S-9. The member for Toronto—Danforth presented a number of those concerns but I want to go back to some of them.

Bill S-9 amends the Criminal Code to implement the criminal law requirements contained in two international treaties to combat terrorism, namely the Convention on the Physical Protection of Nuclear Material, the CPPNM, which was amended in 2005, and the International Convention for the Suppression of Acts of Nuclear Terrorism, the ICSANT, signed in 2005.

As one can see, that is not necessarily an easy process. That is basically what the bill does. It simply allows us to join these treaties.

The bill on nuclear terrorism includes 10 clauses that create four new offences under part II of the Criminal Code.

It will make 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 seeks to introduce into the Criminal Code other amendments that are incidental to these four offences, but are nonetheless significant.

The bill also introduces definitions of certain terms used in the description of the new offences including, as the parliamentary secretary indicated, a definition of “environment,” “nuclear facility,” “nuclear material,” “radioactive material and device,” and the amendment to the definition of “terrorist activity.”

It will not be easy. The committee that will examine this bill will have to carry out several studies in order for everybody to properly understand the scope of the amendments being introduced.

The bill would also introduce a new section in the Criminal Code in order to ensure that individuals who commit or attempt to commit one of these offences while abroad can be prosecuted in Canada.

I am sure that members of the House have already heard about the concept of double jeopardy, which means being accused a second time for a crime for which the individual has already been found guilty or innocent.

A clause has been added under which it would be impossible to prevent the Canadian government from filing an indictment against a person found guilty abroad when that person is on Canadian soil.

The bill has a number of implications that will certainly need to be reviewed in committee.

The bill also amends the provisions in the Criminal Code—and this too is extremely important—concerning wiretapping so that it applies to the new offences. The bill will also amend the Criminal Code in order that the four new offences be considered primary designated offences for the purposes of DNA warrants and collection orders. It would also modify the Canadian rule concerning double jeopardy, as I stated earlier.

I should add, as background, so that people understand—because it is not always clear—that the bill meets Canada's international obligations under the Convention on the Physical Protection of Nuclear Material and the International Convention on the Suppression of Acts of Nuclear Terrorism. In my opinion, this is the cornerstone of the bill.

Concerns have been raised, but before speaking about this, it is important to remind members that Canada has not ratified either the CPPNM or the amended version of the ICSANT. This is explained by the fact that no legislation is in place criminalizing the offences contained in the CPPNM or those presented in the amended version of the ICSANT.

Canada will not be a party to the international treaties until Bill S-9 has been adopted. I think that this is extremely important. This is probably why all the parties in the House will support Bill S-9 so that it can be sent to committee as quickly as possible.

Here are some concerns raised during the review of the bill by the Senate committee. First, there was the issue of excessive scope. The intention of the Department of Justice was to adhere as closely as possible to the convention's provisions. The member for Toronto—Danforth made the point very well. Some of the new Criminal Code offences are even broader in scope than the offences included in the international agreements. Therefore, we will have to ensure that the excessive scope of these new clauses is not going to trigger undue criminalization and does not violate the Canadian Charter of Rights and Freedoms.

There is also the issue of sentences. I was very pleased to see, at last, the Conservatives introduce a bill that does not include minimum sentences. This means we can take a serious look at their legislation without having a problem from the outset, even when we agree with all the rest. However, the maximum sentences that may be imposed for one of the four new offences are heavy. Three of the four offences may result in a maximum penalty of life imprisonment. This meets the requirements of the ICSANT and of the CPPNM, which provide that member countries must impose sentences in line with the serious nature of these offences.

The Senate brought an amendment regarding the development of a nuclear or radioactive device, which is prohibited by the ICSANT, but which was not in the original proposed amendments to the Criminal Code. I am very pleased that the Senate amended this part of the bill and that the amendment was unanimously adopted. It was an oversight. However, because of this kind of oversight, when I see that a bill—which has gone through so many stages at the justice department, through so many supposedly experts and which was approved by the minister before being introduced—contains such a glaring error, I worry about other oversights in this legislation. It is the lawyer in me that always makes me worry about that.

It goes without saying that we will take a close look at this bill in committee. We are not going to give the Conservatives a blank cheque because if they made such a serious mistake, they may have made other ones. We will see about that during the committee stage of Bill S-9.

It is important to understand some facts and numbers. The term “nuclear” usually sounds scary to people. Between 1993 and 2011, the International Atomic Energy Agency identified close to 2,000 incidents related to the use, transportation and unauthorized possession of nuclear and radioactive material. That information was provided by the director general, Non-Proliferation and Security Threat Reduction, at Foreign Affairs and International Trade Canada.

Canada ratified the CPPNM in 1980. That convention promotes the development of measures related to prevention, detection and the imposition of penalties for crimes related to nuclear material. The CPPNM was adopted under the auspices of the International Atomic Energy Agency, the IAEA. There are many acronyms here.

The message I want to share with the House is this: we believe that we need to take a serious look at nuclear safety and that we need to meet our international obligations in order to co-operate better with other countries as regards strategies used to fight nuclear terrorism. There is no question about that.

I used to ask, again and again, why we were talking about five years. But I get the impression the Prime Minister really felt some pressure during his recent trips abroad: action was needed because relatively few countries have ratified the treaties.

In that context, since Canada usually enjoys a rather enviable reputation worldwide, if we can finally meet our international treaty obligations and pass a bill that makes sense, it may encourage other countries to do the same. At least, I hope it will.

Finally, we fully intend to foster multilateral diplomacy and international co-operation, obviously, especially in areas where we share common concerns, including nuclear terrorism. We must work with the leading countries that are in the process of ratifying these treaties. Since we have agreed to be legally bound by the treaties, it is important that we fulfill our international obligations. We cannot officially ratify the treaties until we have implemented national legislation. As we believe in co-operation and in the importance of this bill, we will support it at second reading so the committee can review it more thoroughly.

When it comes to nuclear issues, we have to be careful. Using less uranium would probably reduce risks. At committee, we will have a chance to bring forward some points about new technologies used to create isotopes. Members of the House will remember the isotope crisis. We have to be careful when we talk about burying nuclear waste. Will transporting nuclear waste be considered an act of terrorism? We also need to be careful when it comes to the methods used to bury nuclear waste.

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

Mr. Speaker, I would like to return to a question I asked earlier when we started the debate on Bill S-7. The hon. member made a very interesting suggestion about the need for a parliamentary committee that would have access to more information on the state of threats, specifically terrorist threats, to the country. I could well assume that would include elements related to Bill S-9 as well, with specific focus on the state of protection of nuclear facilities, radioactive material and so on.

I wonder if the member sees that connection and whether he could elaborate or offer some thoughts on how such a committee could actually assist, at least the understanding of Parliament, on the whole question of nuclear terrorism.

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

Mr. Speaker, I cannot say anything other than it remains a bit of a mystery. The member's fundamental point is correct. We do not need Bill S-7. The government is choosing to bring them together, but we do not need Bill S-7 to bring forward Bill S-9. Bill S-9 is indeed extremely important, but it is also quite technical and it is not facing any resistance in the House. It would not have faced any resistance in a minority government.

The best I can imagine is that Canada has been reminded of the fact that its ratifications are outstanding for these two instruments and that it had better get its house in order. The Prime Minister had to make a recommitment to ratifying the instruments recently in Korea and somewhere along the line the system clicked into gear, even though that should have happened four to five years ago.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I asked the parliamentary secretary a question a little earlier, and her answer surprised me. She said that it took five years for the government to introduce Bill S-9 and that it did not need Bill S-7 in order to comply with the international treaties that it had signed.

I would like to hear from my colleague about this. How does he explain this time frame, when we are being told here that the bill is so necessary and so important it must be passed quickly? This is certainly something that we are going to hear on a regular basis from witnesses suggested by the Conservative members.

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

Mr. Speaker, I regret I will not be able to add a lot to the excellent answers given earlier today by my colleague from Gatineau, because that deals mostly with Bill S-7, but the member is correct to ask the question simply because the government is presenting the two bills as a package.

The reason we are very concerned about these provisions dealing with recognizance and potential detention, if one actually refused to accept the conditions or breaches the conditions, is precisely that the standard is much lower than it would be for any other kind of process in terms of criminal prosecution. The basic concern is that it is a much lower threshold. I do not have the historical experience the member has drawn on in the case of Chile to know how easily in some countries and some times and some contexts a system like this could be abused.

Regretfully in the Chilean context, at least for a large part, probably no system at all was needed for the abuse to occur because there was no rule of law respected. What we would experience here would be a kind of slippage. The concern would be that this kind of provision would be used in a way that slowly would become wider and wider than anyone thought it should be from the beginning.

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

Mr. Speaker, the points are extremely well put. I had not been aware of that passage from Senator Dallaire.

In general, my point, and the point Senator Dallaire made in some frustration and that the member echoed, is that there is a certain kind of almost archaic tradition that governs many affairs in the House, but some things are not traditions that we need to keep. They are long past their usefulness in ages when we had less complex bills. For example, with respect to treaties, the fact is, and this may be an erroneous statistic, something in the region of 50% of statutes have some connection to an underlying international instrument or treaty. Therefore, the complexity we are dealing with is not just amending Canadian laws but also looking at background treaties and we do not get any kind of guidance that allows us to do our job. We spend too much time actually getting up to speed as opposed to engaging in the critical task that we should be as legislators.

Therefore, the point from Senator Dallaire about the 2010 report not leaving him all that much wiser is another instance of how parliamentarians can be frustrated by not having enough basis on which to make a decision. I would refer to an intervention from my colleague from the Liberal Party earlier in the debate on Bill S-7 when he made almost the same point with respect to parliamentarians' knowledge around terrorism and its incidence and whether we actually did not need a specific process in Parliament for a certain number of parliamentarians to be informed in ways that none of us were at the moment.

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

Mr. Speaker, the nuclear terrorism act, currently in the form of Bill S-9, would amend the Criminal Code to align our law with obligations under two international agreements, as the parliamentary secretary has so ably outlined. One is ICSANT, the International Convention for the Suppression of Acts of Nuclear Terrorism of 2005, and an amendment to another treaty in 2005, the Convention for the Physical Protection of Nuclear Materials.

In broad terms, those two instruments, along with the underlying Convention for the Physical Protection of Nuclear Materials, deal with the protection of radioactive material, nuclear material and nuclear facilities, and the protection from nuclear or radioactive devices.

The creation of criminal law offences is one aspect of the protection scheme, alongside ensuring there is a broad, in essence, kind of universal jurisdiction to prosecute for most aspects of these offences.

The present bill, Bill S-9, is overdue if one looks at the dates of the two instruments, both 2005, although this delay is mitigated by the fact that Canada is not yet bound to either instrument because it has not yet ratified. We have signed but that is not the same thing as ratification. The passage of Bill S-9 will put us in a position to be in compliance and, thus, to ratify.

However, why we have left this combined ratification and implementation for so long does remain a mystery to me, despite the answer just given by the parliamentary secretary. This is not a controversial bill from any side of the House and I cannot imagine a minority Parliament would have held it up.

As I have already indicated, the NDP very much supports the bill going to committee. We will vote for it at second reading and we expect to do so at third reading. Overall, we are completely behind the bill as a necessary measure as part of Canada's international co-operation against threats related to nuclear terrorism of various forms.

In a world of heightened technological sophistication that increases the ability to steal material, attack installations, make radioactive devices and so on, it is impossible to overstate the importance of such co-operation and, indeed, Canada's role in that co-operation.

We wish to see this bill become law as rapidly as possible. At the same time, we also emphasize that some close technical scrutiny of the bill in committee is still called for to ensure that it has been drafted in the best way to fulfill our obligations under these two treaties so that we can then go on and not be in non-compliance once we ratify.

It may be that some slight amendments will be needed in committee. I say this for three reasons.

The first reason is that there was what seems to have been a major omission in the government's bill that went to the Senate before coming to us. What was that omission? I referred to it in my question just now to the parliamentary secretary. Whereas ICSANT's article 2(1)(a) includes the offence of making a radioactive device, Bill S-9, in its original form before the Senate, did not include this activity despite mentioning every other conceivable form of activity that also was in the two treaties: possession, use, transport, export, import, alteration and disposal.

The Senate caught this omission, assisted, no doubt, by an alert Library of Parliament preliminary summary of the bill, and the mistake has been rectified in what we now have coming from the Senate.

However, and this is my main point, the situation does give one reason to pause and ask a question. If something as significant as making a radioactive device, which appears clearly in the text of the relevant treaty, was missed, has anything else been overlooked, or has there been some other slippage in the tightness or the accuracy of the drafting of this bill? The committee needs to ensure this is not the case.

The second reason there may be a need for amendments following directly on from the just asked question is that the committee may need to consider amendments in that there is some reason to believe that parts of Bill S-9 have been drafted in terms that are not just more general in their phraseology than the specific treaty articles they are meant to implement but are broader in the sense of criminalization of more than is required by the treaties.

I will, in a moment, outline where this may be a problem in Bill S-9, but a prior problem may be that the Minister of Justice and officials before the Senate committee do not appear to agree that there are any such aspects of over-breadth. The reason this is a problem is that such denial makes it impossible to go to the next stage of analysis, which is to ask whether over-breadth in relation to what is strictly required by the treaties is actually of any real concern.

If the treaties permit state parties to go further in what they criminalize, and the treaties probably do permit this, then it becomes a matter of sound public policy discussion as to whether we do wish to go further. However, if the government denies that Bill S-9 does go further, we cannot even have that discussion.

The third reason we may need to entertain a small amendment or two in committee is that there may, and I emphasize the word “may”, be under-breadth in terms of the coverage of one aspect of Bill S-9 offences. Now I may have misread the corresponding treaty provisions in relation to the sections of Bill S-9 in question, but one reading of them is that Bill S-9 may not go as far as required in one respect. If this is the case, then our legislation would put us in non-compliance after ratification. I will identify this possible glitch in a moment.

I will now proceed with a bit more detail on these points to illustrate why it is that we may have to pay some close attention in committee.

First, on the issue of potential over-breadth, and I do apologize to everyone listening that this will be as technical as it is starting to sound. In particular, with respect to proposed sections 82.3 and 82.4, article 2 of ICSANT is rather inelegant in expressing the need for specific intent on top of general intent for some of the offences mentioned. It talks about any person intentionally possessing, using, making a device and so on with the intent to cause death or serious bodily injury or with the intent to cause substantial property damage or harm to the environment.

The first point to note is that this double use of intentionality does cause a certain degree of inelegance. Bill S-9 does not repeat that. It uses simpler language, for the most part going straight to the specific intent formulations. This seems wise.

However, the problem that then appears on one reading of proposed sections 82.3 and 82.4 is that the specific intent formulations of the ICSANT treaty regarding use or damage to a nuclear facility are not reproduced in Bill S-9. Instead, proposed sections 82.3 and 82.4 of the bill merely assume a general intent standard. This is because, and again this is a very technical point, in proposed sections 82.3 and 82.4 the acts listed after the words “or who commits” are cut off from the specific intent references earlier in the provision.

In a similar vein, the amendment to the CPPNM treaty on acts directed against nuclear facilities also has a specific intent requirement that Bill S-9 does appear to omit.

Here is another point about over-breadth that I will simply state as a very clear problem, as there is no doubt or debate about this one. The references to crimes of threat in Bill S-9 go further than necessary under the treaties. This is very helpfully laid out in the very well put together legislative summary provided by the Library of Parliament.

Finally, there is a provision in Bill S-9 that talks about committing an indictable offence with intent to obtain material or a device versus the treaty provisions, which actually list the specific other forms of offence that are attached to this search for intent to obtain material or a radioactive device.

We have created a much broader tacking-on of this notion of committing any indictable offence as opposed to the offences specifically listed in the treaties: theft, robbery, embezzlement, fraudulent obtaining and so on.

All of this is as dry as the hon. member for Gatineau promised it would be. However, I did want to get this on the record so that it helps us at the committee stage to ask whether this is a correct reading, and if so, what needs to be done about it.

There is something quite significant however about the fact that if there is over-breadth in any respect, there is a multiplier effect that occurs throughout Bill S-9. That is because a number of other provisions tack themselves onto the offences. Four of them in particular are worth mentioning. One is the extraterritorial scope of the offences. The second is that they enter into the definition of terrorist activity, which is thereby broadened. The third is that the electronic surveillance provisions of the Criminal Code would be kicked in by the offence definitions, as are fourthly, the DNA sample provision of the Criminal Code.

The issue is not that these offences are simply more broadly worded in and of themselves, which may strike people as a slightly semantic issue. It is how one multiplies the potential significance of that across all of the other provisions I have just listed. It is what I call an amplification effect.

I mentioned that there is possibly an odd twist here. There may be one instance of narrowing our treaty obligations in Bill S-9 in such a way that might mean that Bill S-9 does not go far enough and, thus, may put us in breach of the treaty.

The new CPPNM amendment in article 7(1)(d) criminalizes “the intentional commission of...an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority”. Yet proposed section 82.3 of Bill S-9 would make the import and export offence subject to the specific intent portions of that section, which are not in Article 7(1)(d) of the treaty amendment. This could possibly be a misreading of the treaty amendment on my part or of what is intended by Bill S-9, but there does appear to be the possibility that we have under-inclusion in that respect.

All of this adds up to the fact that the committee will need to pay some attention to whether or not this legislation has been drafted as well and as tightly as needed, particularly in light of the fact that in asking questions of the parliamentary secretary just now, the responses that came back were fairly general. It is not at all clear that the government has its head around these problems, despite the warning of some of these questions being asked in the Senate.

I would like to say a few words about parliamentary democracy as it relates to this legislation. One might assume that I am referring to the fact that the bill started in the Senate, the unelected, second chamber of our Parliament. In fact, that is not my immediate concern. A much more real concern and affront to this chamber is that Bill S-7, on which debate started earlier today, first went to the Senate.

Having listened to myself for the last 10 minutes, Bill S-9 is very technical in nature. It may well be the kind of bill that can fruitfully be started in the Senate so that the House benefits from some preliminary cleaning up and does not have to allocate undue time to studying the bill. The fact that the Senate caught the omission of the making a device offence may actually prove my point, in part.

My immediate democracy concern does not relate to the Senate. Rather, it relates to the methods we use in Parliament to implement treaties and statutes. Again, I am not referring here to the mess that many in this room know exists with respect to the lack of consistency in the way that statutes are drafted to accomplish implementation of a treaty.

By one count in a law journal article I read some time ago, there are well over a dozen methods employed, ranging from verbatim reproduction of treaty text to very general language that does not even hint at there being an underlying treaty motivating the legislative change. While this is an important issue and while it does bear directly on how Bill S-9 may be over-broad in parts, I will leave that for another day.

Therefore, I turn to what my concern actually is.

What I want to discuss is much more procedural in nature. The way in which bills are introduced, presented and reported from stage to stage is close to a travesty when it comes to the twin goals of transparency and accountability. Parliament, and thereby the Canadian public, must be given every opportunity and tool to be able to understand precisely what is in a bill and how that content relates, in this context, to an underlying treaty or another international instrument such as a Security Council resolution.

However, that is not what happens here in Canada. Treaty-implementing bills almost always get plunked onto Parliament's desk with nothing resembling an overview, let alone a road map, from the government of how a statute's provisions line up with related treaty provisions. Parliamentarians end up reading a bill as if they have a jigsaw puzzle to solve. They track down the related treaty and then try to connect the dots between the treaty and the statute with absolutely no help from the government by way of a commentary that could easily provide explanatory charts showing side-by-side text so that Parliament's role of scrutinizing critically and effectively can be facilitated.

Instead, valuable energy is wasted at the preliminary stage of understanding what is going on in the relationship between the statute and the treaty text. As some members will be aware, I am speaking as someone who was not only a law professor in a previous life but has been an international law scholar for over 20 years. Therefore, if there is anyone in a position to put the jigsaw puzzle together it would be someone with my background. However, even I find it very frustrating.

More importantly, I find it undemocratic. Why? Anything that makes legislative details needlessly inaccessible gets in the way of clear and focused analysis and debate, both by and among parliamentarians, and in terms of how journalists and the public in general will have difficulty grasping analysis and debate if there are no well-presented documents that make the subject of analysis and debate reasonably easy to follow. At multiple levels, democratic scrutiny is undermined and the distance between Parliament and society is exacerbated.

Without dwelling further on the details of an ideal system of clear and transparent presentation of treaty-implementing bills, which this bill lacks, at minimum the government must be required to include alongside a bill a document that does at least the following three things.

First, the document should show the text of the treaty and statute in a side-by-side comparison that makes clear what the statute is intended to implement.

Second, the document should explain and justify the method of implementation that has been chosen. For example, if general language is used or if a treaty text is reproduced nearly but not entirely in verbatim form from the treaty, we need to know why that decision was made.

Finally, the document should provide a clear account of what is not in the implementing bill by reason of the fact that either Canadian law may already cover off the area, the treaty provisions in question may only operate on the international plain or the matter must be dealt with by a provincial legislature.

In order to appreciate that this is not simply a cranky protest, all we have to do is to consider what everyone knows about how inaccessible even basic bills are when presented to Parliament in terms of how well we can understand the underlying statute that is being amended. We also can refer to budget bills that do not come anywhere close to meeting OECD transparency guidelines.

In this immediate context, my main point is to draw attention to one problem we have with a very procedural dimension of accountability in this Parliament, which is not alone in the way we deal with legislation.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Mr. Speaker, as I said in my speech, one of the proposed methods is to have concurrent prosecutorial authorities for the attorney general of Canada, as well as the provinces and territories which are the ones, under our constitution, that generally administer the law. They are the ones applying what terrorism offences exist now. That is one of the ways we will be dealing with this.

This is where we are sort of partnering Bill S-7 and Bill S-9 together. We are taking steps to bring this together now in order to deal with it effectively and in a timely way. That is the understanding on the concurrent jurisdiction.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will begin by addressing Bill S-11, the food safety bill. It was introduced by this government in the Senate to bring about changes that would strengthen our food safety system further following the implementation of the 57 recommendations of the Weatherill report, which further strengthened our system.

I believe the comments, to which the member referred, by the Conservative caucus were not about the NDP obstructing the bill in the Senate but rather about statements that had been made by NDP members previously following the introduction of the bill that the NDP would oppose the bill. Of course, the issue we are looking forward to is having it pass successfully in the Senate. We hope that people will see the urgency more clearly, that we will get the support of the Liberals and that we will see its rapid passage here in the House. We would be delighted if we had support to do that very quickly from the NDP and other parties.

Now for the business ahead of us.

This afternoon, we will continue our safe streets and communities week with second reading debate on Bill C-43, Faster Removal of Foreign Criminals Act.

In last year's election, the Conservative Party promised to put a stop to foreign criminals relying on endless appeals in order to delay their removal. This bill follows through on our commitment to Canadians.

We will resume debate tomorrow, when I am optimistic, based on discussions, that debate will end—and, then, we will have concluded the first three weeks of our hard-working, productive and orderly fall sitting.

On our constituency week, I hope all members of Parliament and staff in this place will have an opportunity relax. Many of our pages will have their first opportunity to go home since they started the year here. I hope on our return we will all be ready to be productive and work hard because we have much to do.

On Monday, October 15, before question period, the House will start the second reading of Bill S-7, the combating terrorism act. We will also debate this bill on Wednesday and Friday of that week. This, of course, is designed to continue to make Canada and, in fact, the whole world, a safer place.

After question period on October 15, we will kick-off debate on Bill S-9, the nuclear terrorism act, which shares the same objectives. It would implement Canada's international obligations under the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism.

Tuesday, October 16, shall be the fifth allotted day, which will see the House debate a Liberal motion. We eagerly await the content of that motion.

Thursday, October 18, shall be the sixth allotted day when we will consider the New Democratic proposal.

It is my personal hope that having given the NDP three chances already this fall to articulate to the House and to all Canadians how it will implement its $21.5 billion job killing carbon tax that it will finally choose this as its subject for debate. I hope the NDP members will seize that opportunity and let Canadians know once and for all the fine details of their scheme to raise the price of gas, groceries, electricity and winter heat.

Should we have additional time that week upon our return, or even this week if we move quickly, the House will also consider second reading of Bill C-37, the increasing offenders' accountability for victims act; Bill C-15, the strengthening military justice in the defence of Canada act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; and Bill S-8, the safe drinking water for first nations act.

Of course, I am always open to suggestions from the opposition. If they are willing to accelerate any of those bills for quick passage, I will call them.

Finally, I wish everyone here a happy Thanksgiving. I hope that everyone has a productive and hard-working week working with their constituents.

Extension of Sitting Hours

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

moved:

That, pursuant to Standing Order 27, the ordinary hour of daily adjournment shall be 12 midnight, commencing on Monday, June 11, 2012, and concluding on Friday, June 22, 2012, but not including Friday, June 15, 2012.

Today I rise to make the case for the government's motion to extend the working hours of this House until midnight for the next two weeks. This is of course a motion made in the context of the Standing Orders, which expressly provide for such a motion to be made on this particular day once a year.

Over the past year, our government's top priority has remained creating jobs and economic growth.

Job creation and economic growth have remained important priorities for our government.

Under the government's economic action plan, Canada's deficits and taxes are going down; investments in education, skills training, and research and innovation are going up; and excessive red tape and regulations are being eliminated.

As the global economic recovery remains fragile, especially in Europe, Canadians want their government to focus on what matters most: jobs, economic growth and long-term prosperity. This is what our Conservative government has been doing.

On March 29, the Minister of Finance delivered economic action plan 2012, a comprehensive budget that coupled our low-tax policy with new actions to promote jobs and economic growth.

The 2012 budget proposed measures aimed at putting our finances in order, increasing innovation and creating suitable and applicable legislation in the area of resource development in order to promote a good, stable investment climate.

The budget was debated for four days and was adopted by the House on April 4. The Minister of Finance then introduced Bill C-38, Jobs, Growth and Long-term Prosperity Act, the 2012 budget implementation bill. The debate at second reading of Bill C-38 was the longest debate on a budget implementation bill in at least two decades, and probably the longest ever.

On May 14, after seven days of debate, Bill C-38 was passed at second reading.

The bill has also undergone extensive study in committee. The Standing Committee on Finance held in-depth hearings on the bill. The committee also created a special subcommittee for detailed examination of the bill's responsible resource development provisions. All told, this was the longest committee study of any budget implementation bill for at least the last two decades, and probably ever.

We need to pass Bill C-38 to implement the urgent provisions of economic action plan 2012. In addition to our economic measures, our government has brought forward and passed bills that keep the commitments we made to Canadians in the last election.

In a productive, hard-working and orderly way, we fulfilled long-standing commitments to give marketing freedom to western Canadian grain farmers, to end the wasteful and ineffective long gun registry, and to improve our democracy by moving every province closer to the principle of representation by population in the House of Commons.

However, in the past year our efforts to focus on the priorities of Canadians have been met with nothing but delay and obstruction tactics by the opposition. In some cases, opposition stalling and delaying tactics have meant that important bills are still not yet law. That is indeed regrettable.

In the case of Bill C-11, the copyright modernization act, a bill that will help to create good, high-paying jobs in Canada's creative and high-tech sectors, this House has debated the bill on 10 days. We heard 79 speeches on it before it was even sent to committee. This is, of course, on top of similar debate that occurred in previous Parliaments on similar bills.

It is important for us to get on with it and pass this bill for the sake of those sectors of our economy, to ensure that Canada remains competitive in a very dynamic, changing high-tech sector in the world, so that we can have Canadian jobs and Canadian leadership in that sector.

Bill C-24 is the bill to implement the Canada-Panama free trade agreement. It has also been the subject of numerous days of debate, in fact dozens and dozens of speeches in the House, and it has not even made it to committee yet.

Bill C-23 is the Canada-Jordan economic growth and prosperity act. It also implements another important job-creating free trade agreement.

All three of these bills have actually been before this place longer than for just the last year. As I indicated, they were originally introduced in previous Parliaments. Even then, they were supported by a majority of members of this House and were adopted and sent to committee. However, they are still not law.

We are here to work hard for Canadians. Adopting today's motion would give the House sufficient time to make progress on each of these bills prior to the summer recess. Adopting today's motion would also give us time to pass Bill C-25, the pooled registered pension plans act. It is a much-needed piece of legislation that would give Canadians in small businesses and self-employed workers yet another option to help support them in saving for their retirement. Our government is committed to giving Canadians as many options as possible to secure their retirement and to have that income security our seniors need. This is another example of how we can work to give them those options.

In addition to these bills that have been obstructed, opposed or delayed one way or another by the opposition, there are numerous bills that potentially have support from the opposition side but still have not yet come to a vote. By adding hours to each working day in the House over the next two weeks, we would allow time for these bills to come before members of Parliament for a vote. These include: Bill C-12, safeguarding Canadians' personal information act; and Bill C-15, strengthening military justice in the defence of Canada act. I might add, that bill is long overdue as our military justice system is in need of these proposed changes. It has been looking for them for some time. It is a fairly small and discrete bill and taking so long to pass this House is not a testament to our productivity and efficiency. I hope we will be able to proceed with that.

Bill C-27 is the first nations financial transparency act, another step forward in accountability. Bill C-28 is the financial literacy leader act. At a time when we are concerned about people's financial circumstances, not just countries' but individuals', this is a positive step forward to help people improve their financial literacy so all Canadians can face a more secure financial future. Bill C-36 is the protecting Canada's seniors act which aims to prevent elder abuse. Does it not make sense that we move forward on that to provide Canadian seniors the protection they need from those very heinous crimes and offences which have become increasingly common in news reports in recent years?

Bill C-37 is the increasing offenders' accountability for victims act. This is another major step forward for readjusting our justice system which has been seen by most Canadians as being for too long concerned only about the rights and privileges of the criminals who are appearing in it, with insufficient consideration for the needs of victims and the impact of those criminal acts on them. We want to see a rebalancing of the system and that is why Bill C-37 is so important.

Of course, we have bills that have already been through the Senate, and are waiting on us to deal with them. Bill S-2, which deals with matrimonial real property, which would give fairness and equality to women on reserve, long overdue in this country. Let us get on with it and give first nations women the real property rights they deserve. Then there is Bill S-6, first nations electoral reform, a provision we want to see in place to advance democracy. Bill S-8 is the safe drinking water for first nations act; and Bill S-7 is the combatting terrorism act.

As members can see, there is plenty more work for this House to do. As members of Parliament, the least we can do is put in a bit of overtime and get these important measures passed.

In conclusion, Canada's economic strength, our advantage in these uncertain times, and our stability also depend on political stability and strong leadership. Across the world, political gridlock and indecision have led to economic uncertainty and they continue to threaten the world economy. That is not what Canadians want for their government. Our government is taking action to manage the country's business in a productive, hard-working and orderly fashion. That is why all members need to work together in a time of global economic uncertainty to advance the important bills I have identified, before we adjourn for the summer.

I call on all members to support today's motion to extend the working hours of this House by a few hours for the next two weeks. For the members opposite, not only do I hope for their support in this motion, I also hope I can count on them to put the interests of Canadians first and work with this government to pass the important bills that remain before us.

Message from the Senate

[The Speaker, Andrew Scheer]

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed the following bill to which the concurrence of the House is desired: S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.