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

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, the previous member seemed to imply that he might have been delivering a cranky protest, However, if that is the case, I would urge him to protest crankily more often because it was a very erudite speech. It informed the House on so many aspects of what is an important bill, despite its dry nature.

I knew this, but I was quite interested to hear it repeated in the House by the hon. member who spoke before me, that something so fundamental as an offence against making a nuclear device was left out of the bill. It really shakes our confidence when something so fundamental that should almost be central to a piece of legislation like this is actually left out of the bill. I commend the Senate on catching that omission. I assume that if the bill had been brought to the House before the Senate, we would have caught it as well and if we had not, that the Senate would have been as good at catching it later on instead of at the very start.

I also take the point of my hon. colleague that it would help if legislation as complex and technical as this were accompanied by some notes that would allow us to clearly link its provisions to important international treaties that attempted to bring the world together in common action on such an important issue as nuclear terrorism.

In regard to that point, this is a general problem that we have in the House. We have heard how it is very hard for parliamentarians to truly understand the spending plans of the government because the documentation is not available. In fact when the Parliamentary Budget Officer attempts to add clarity to the government's spending plans, he meets a brick wall that is put up by the government. I do not think in this case the intent was to somehow make the issue opaque, it just was not something the people preparing the communications materials or the bill itself thought of doing. This is something we have to do in the future.

The reason it is important to link the bill clearly with our international instruments designed to prevent the threat of nuclear terrorism is that it is very important for Canadians to understand there are legal solutions to some of these fierce international problems that face the world and that we hear discussed on the news every night. For example, many Canadians are probably not aware that the United Nations is active on these kinds of issues, creating a legal framework for co-operation within which international legal action can be taken to dissuade, say, rogue states from pursuing very threatening and destructive agendas.

As an aside, I would like to draw attention to an article that my colleague, the member for Mount Royal, published in the Montreal Gazette not long ago on the subject of Iran's behaviour on the international stage. The headline was, “We have juridical remedies to halt Iran's genocidal threat”. He talks about Iran's nuclear program. What he is saying is that certain actions like recalling our diplomats are important symbolic actions, but at the end of the day all we have to hang our hat on really is law, not only domestic law but international law. He suggests a number of ways whereby Iran could be coaxed into better behaviour. These ways involve going to the Security Council and asking it to make complaints to the International Criminal Court and so on.

I would draw attention to the point raised by the previous speaker, which is that we have had seven years, to ratify the International Convention on the Suppression of Acts of Nuclear Terrorism and the amendment to the Convention on the Physical Protection of Nuclear Material. However, the law and order government is a government that acts tough on the international stage and takes all kinds of symbolic actions but seems to be leaving behind the maybe less interesting, less headline making actions that need to be undertaken by any country that really wants to call itself a citizen of the world and call itself an important player at the United Nations.

Maybe the government does not really want to be as active at the United Nations as it could be. Maybe it does not necessarily want Canada to take the multilateral route as often we used to. Nevertheless, it is an important route to take.

As I say, Canadians are sitting at home, we are sitting here in this Parliament and we are not aware of the options that are available to combat nuclear terrorism because we are unaware of the fact that these treaties exist. In fact, there are four UN resolutions and international treaties relating to nuclear terrorism that I believe deserve some mentioning here.

First, we have the United Nations Security Council resolution 1373, which, I believe, was adopted in 2001. That requires member states to adopt certain anti-terrorism legislation and policies, including those to prevent and repress the financing of terrorist acts; freeze the financial resources available to terrorist organizations; suppress the supply of weapons to terrorist organizations; as well as deny safe haven to the those who finance, plan, support or commit terrorist acts. It also calls on member states to become party to and fully implement the relevant international conventions and protocols related to terrorism as soon as possible.

That resolution was passed in 2001. I am pleased to say that the Anti-terrorism Act of 2001 was essentially a response to that United Nations Security Council resolution. The government of the day did take that resolution seriously and started to move in the direction of what that resolution called upon national governments to do.

A second resolution adopted in 2004 is another one worth mentioning. It is the United Nations Security Council resolution 1540, which focused specifically on non-proliferation of weapons of mass destruction. It asked member states to take steps to prohibit non-state actors from acquiring nuclear weapons and to put in place additional controls on nuclear materials.

Resolution 1540 also asked member states to: (a) adopt and enforce effective domestic controls to prevent the proliferation of nuclear chemical and biological weapons; (b) adopt legislation to prevent the acquisition, use, or threat of use of nuclear weapons by state or non-state actors; (c) to extend such criminal legislation to apply to citizens extraterritorially, which is one of the features of Bill S-9; and (d) include internal waters, territorial waters and airspace in the territory from which nuclear weapons are prohibited.

This is very important because we know that we are vulnerable. Our ports are vulnerable to the threat of nuclear terrorism. I know that since 9/11 the government has worked with port authorities, local police forces and other authorities to make it, hopefully, impossible for a nuclear terrorist attack to occur in a port, and Canadians should feel somewhat reassured by that.

That is another important issue that we obviously need to be vigilant about.

A third instrument and one that was mentioned before is the International Convention for the Suppression of Acts of Nuclear Terrorism, ICSANT, adopted in 2005. This was the first international convention related to terrorism open for signature after 9/11. It builds on both the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Terrorist Bombing.

ICSANT is comprehensive and contains detailed language on what particular aspects of nuclear terrorism should be criminalized. ICSANT is the inspiration for the bulk of this bill, Bill S-9. Several ICSANT articles are codified in Bill S-9, such as article 2 which outlines new offences created in section 82 of the bill, article 4 which exempts the acts of armed forces during conflicts, article 5 which provides that the offences in the treaty be appropriately punished given the grave nature of these offences, and article 9 which allows states to establish extraterritorial jurisdiction in order to prosecute nuclear terrorism.

Finally, we have the amendment to the Convention on the Physical Protection of Nuclear Material which was also adopted in 2005 and came out of a diplomatic conference convened in July 2005, three months after ICSANT opened for signature. The convention was signed in Vienna, Austria in March 1980. It is the only legally binding undertaking in the area of the physical protection of nuclear material and establishes measures related to the prevention, detection and punishment of offences relating to nuclear material.

The meeting in 2005 was meant to update and strengthen the convention's provisions. Obviously Bill S-9 is helping to bring Canada into line with the convention so that we can ratify it.

It is a very technical bill and I know there will be many important technical points raised at committee. We hope that the government understands that it is complicated and that parliamentarians are grappling with it, including Senator Dallaire, an eminent Canadian who has written many books, who knows a few things about international law and who has trouble in many ways wrapping his great mind around this bill.

We hope that the officials in the department who drafted the bill will see to it that committee members are well briefed and that officials appear for a lengthy period of time to explain the bill and answer questions that we might have.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am still trying to get answers to my questions and up until now, I am not sure the answers have been given. I am curious to find out what the Liberals think of the fact that it took five years. When we put the question to the parliamentary secretary, she said it was because at that time the government was in a minority situation. In terms of Bill S-9, I have not seen any opposition to it and I did not see any opposition in previous years either, except that it does not seem that any bills were introduced then either.

I wonder what my hon. Liberal colleague thinks about this. In his view, why did the Conservatives take so long to introduce Bill S-9?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, it is perhaps because, in those days, the government was more concerned about generating vote-winning headlines. In addition, this is a very technical bill that will not make headlines, despite the fact that it is very important. It is ironic, because we know the government really likes to talk about its law and order agenda. But when it is time to take real action, which is not as interesting in terms of political communications, it puts off taking action for too long and at some point it really must act. This is not a bill that is going to make headlines. This is a government that is very concerned about political communications.

[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.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, totally there is a connection because this is obviously a domestic piece of legislation. It is inward-looking. It is about adapting our legislative framework to our obligations under international treaties. However, in order for Canada to help combat nuclear terrorism, we need to work with our allies. We need to share information. For example, we are a party to the global initiative to combat nuclear terrorism which emphasizes the importance of member states assisting other states to meet their commitments and so on.

We might like to know, in an in camera session of a special committee, how the government is working with other nations. We would also like to get some information on how it is helping other nations and ourselves implement the provisions and the goals of these treaties. Obviously, this information would be very sensitive so we would need some kind of committee where members would be under oath and where information could be shared with confidence that it would not compromise national security.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank my colleague for his speech.

In his view, how is the government going to deal with the potential problems stemming from the fact that the new Criminal Code offences have a broader scope than those found in individual international agreements?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I believe that the member for Toronto—Danforth talked about it in his speech.

It may not be intentional; perhaps it is a drafting error. For that reason, the bill will go to committee, where the experts will tell us if better alignment is needed to ensure that the bill's measures do not go too far in either direction. It can go either way. These important questions must be raised. This could be the issue in committee.

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

Mr. Speaker, I rise a second time because my hon. colleague said that he was rather shocked by the omission of making a device from the bill that went to the Senate. In light of the fact that he has had more legislative experience than I have, I wonder if he has had other experiences to know what it is about the legislative drafting process or the decision-making process that could account for that, especially the fact that the government does not seem to have even mentioned it in its presentation.

What should parliamentarians take away from this experience to this point when we cannot even get a direct answer from across the aisle?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I think it has to do with where the political part of the government puts its emphasis. If the government is interested in legislation that has media appeal, it will ask its public servants to spend more time on that legislation. On the other hand, if it has to produce very technical legislation that will not really create much of a bang but which is required in order for us to meet our international commitments, it may send a message, unwittingly perhaps, to public servants that this is something to get rid of rather quickly because we want to get back to the business of introducing big headline legislation. It could be that this was not made a priority within the bureaucracy because the political leadership communicated the message to the public servants that it was not a big deal.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, what my colleague from Lac-Saint-Louis had to say was very interesting. I would like to ask him a question about a statement by Senator Dallaire, for whom I have a great deal of admiration. On the subject of Bill S-9, the senator said:

...this legislation does not necessarily give us the warm fuzzy feeling that, with regard to the movement of nuclear-related devices, material or their ability to enter this country, we have covered all the gaps in any of the areas where some of this stuff might be able to sneak in under the radar.

Does the member agree with Senator Dallaire?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, if I have understood correctly, Senator Dallaire is saying that it is well and good to have laws and legislative provisions that prohibit this or that, but that the resources must be provided, either by the Department of National Defence or by the Canada Border Services Agency. The resources must be on the ground in order to intercept the movement of dangerous devices and materials.

It is one thing to have laws. But in order for them to be effective, they must be accompanied by the necessary resources. We cannot sit on our laurels once the law is passed and forget about it.

[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.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I thank my colleague for her work.

Does she think that the government is capable of finding cases in which Bill S-9 goes beyond what is required by the amendment to ICSANT and CPPNM?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, that is a good question. I thank the member for Joliette, who has paid careful attention to the entire debate, which started this afternoon.

I do not know whether the government is capable of finding cases in which Bill S-9 goes beyond what is required by the amendment to ICSANT and the CPPNM. The question was asked of the parliamentary secretary, but there was no answer. It would have been a good opportunity to tell us whether the government was capable of finding an answer.

Is it because there is no answer? Or rather that there is an answer but the government does not necessarily want to give us the information?

Earlier, members spoke of a lack of transparency, which after a while becomes a little irritating. Although we want to work co-operatively, it is sometimes extremely difficult to do so. We are never sure whether the unstated objective is simply to have us vote against legislation and then turn around and make ridiculous accusations afterward, or whether it is simply because the Conservatives themselves do not know.

A select few in the Prime Minister's Office, along with a number of ministers, have their lips tightly sealed. That is why we do not get any answers to our questions when we ask others, or even when we ask the people concerned.

I do not know whether they have answers to these questions, but we are certainly going to ask them again when the bill is referred to committee.

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

Mr. Speaker, the hon. member for Gatineau, the justice critic for the official opposition, spoke extremely persuasively about the problem of Canada's reputation abroad and alluded to the fact that the government seems to have a different opinion of its reputation. I am just wondering if, along the lines of the rather acute analysis by the member of Parliament for Lac-Saint-Louis, if she could comment on what might be the impact on our reputation of the fact that we have taken so long to bring in domestic legislation to ratify a treaty that we could have ratified five, six, seven years ago.

That said, there may possibly be no problem with Canada's reputation abroad. After all, the Prime Minister just received the World Statesman of the Year award from an organization so important that he skipped speaking to the UN, even though he was in the same city. The award was presented by a famous humanitarian named Henry Kissinger. Surely, all is right with the government's reputation in the world.

I wonder if the member can sustain her point that Canada's reputation is suffering.