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

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to rise to speak to Bill S-9, the nuclear terrorism act, which would amend the Criminal Code to implement Canada's obligations pursuant to the International Convention for the Suppression of Acts of Nuclear Terrorism, which I will refer to as the “suppression convention”, and the Amendment to the Convention on the Physical Protection of Nuclear Material, which I will refer to as the “amendment”.

The suppression convention is a multilateral treaty, as has been described. It is intended to harmonize the criminalization of acts related to nuclear terrorism across all state parties. Regrettably, Canada has still not ratified this convention, though we originally signed it in 2005. I appreciate that we are finally getting to the point where we can now move to ratify it, but I regret the delay in this regard.

The Convention on the Physical Protection of Nuclear Material, which Canada signed in 1980, established legally binding undertakings on state parties in the area of the physical protection of nuclear material and also established measures relating to the prevention, detection and punishment of related criminal offences.

In 2005, Canada, along with 87 other state parties to the original convention, convened to amend and strengthen its provisions. At this conference, the amendment was adopted by consensus, and it will soon begin to enter into force, though it is yet to be ratified by a sufficient number of signatories, including Canada. We need to move forward in that regard.

Both the suppression convention and the amendment are fundamental components of the international community's approach to the prevention and detection of acts related to nuclear terrorism. Consequently, Bill S-9 would constitute necessary implementing legislation for the suppression convention and the amendment, thereby strengthening this international regime. The bill has been thoroughly debated in the House, studied extensively at committee and thoroughly debated in the other chamber. It represents a positive step forward in this regard.

Moreover, the safeguarding of nuclear material and facilities exists within the domestic implementing legislation, and it must never be forgotten that it exists within the context of the overall threat of expanding nuclear proliferation, as represented by the proliferation activities with respect to Iran and North Korea, and the ultimate imperative, therefore, of achieving nuclear disarmament, for which Canada must be at the forefront.

Because members in this place are by now quite familiar with this bill, and reference was made to it by the parliamentary secretary, as well, in his remarks, I will briefly describe its contents and significance.

Indeed, the prevention of nuclear terrorism and nuclear proliferation will require an internationally coordinated response. Canada must continue to take a leadership role in this regard.

Following preliminary discussion of the contents of the bill, I will then address what has just been raised in this House as the particular issue posed by the proliferation threat of Iran, which also has to been seen in the context of its overall, four-fold threat. It was the subject of an exchange between a previous speaker and the parliamentary secretary. I will address that issue, as well.

Let me very quickly move us to the contents of the bill.

First, Bill S-9 would make it an indictable offence to make a device or to possess, use, transfer, export, import, alter or dispose of nuclear material or device with the intent to cause death, serious bodily harm or substantial damage to property or the environment. It would also criminalize the commission of an act against a nuclear facility or an act that causes serious interference or disruption of a nuclear facility's operation.

Second, Bill S-9 would make it an indictable offence to do any of these acts with the intent to compel a person, government or international organization to do or refrain from doing something.

Third, Bill S-9 would make it a separate indictable offence to commit any indictable offence with the intent to obtain nuclear or radioactive material or to obtain access to a nuclear facility.

All three of the offences are punishable by a maximum of life in prison.

Fourth, Bill S-9 would make it an indictable offence to threaten to commit any of the aforementioned offences, which is punishable by a maximum of 14 years in prison.

Moreover, the bill would classify these new offences as terrorist activities, pursuant to section 83.01 of the Criminal Code, such that the commission of these offences would trigger other provisions of the Criminal Code relating, for example, to electronic surveillance and DNA collection.

It will also implement extraterritorial jurisdiction in relation to these new offences, such that Canadian courts will have jurisdiction over individuals prosecuted for the violation of these offences, even where the particular offence did not occur within Canadian territory. These are relevant steps, as they represent an internationally coordinated approach to the problem of nuclear terrorism.

Indeed, based on the debate that has occurred already, both in this House and in the other chamber, the bill appears to enjoy widespread support in both chambers.

The members in this place all recognize the importance of criminal law enforcement and the international harmonization of the criminalization of acts related to nuclear terrorism. It is precisely for this reason that the absence of any action on this matter for the last eight years, since the conventions were signed in 2005, is particularly regrettable.

In February, just one month ago, my colleague from St. Paul's had the opportunity to ask the Minister of Justice about the reasons for this delay when he testified at the justice and human rights committee. Indeed, the minister's explanation warrants referencing here. It is a lesson about the government's generally inverted approach to the setting of legislative priorities.

My colleague from St. Paul's asked the minister a very direct question to this effect: Since everybody seems to be in favour of this legislation, why did it take so long for the government to introduce the necessary domestic implementing legislation that is now finally being done eight years later?

Indeed, the minister answered that he was dissuaded from pursuing the bill because of what he described as the threat of filibuster in this House in matters relating to the criminal justice agenda. In particular, characterizing the debate on these bills as being a filibuster by the opposition, the minister stated at the justice committee:

...it was very difficult...to try to get any legislation through in the criminal justice area. ...dozens of bills...introduced into the House...opposed by one of the three parties, there was a desire many times by the opposition parties to talk about them incessantly, to go on and on....

The minister's explanation is itself objectionable insofar as it appears to imply that there is something wrong with the opposition parties seeking to address legislation before them, particularly important legislation in the matter of the criminal justice agenda, and particularly when that agenda of more crime and punishment emerges as a priority in the government's legislative agenda as a whole.

It is both wrong and, indeed in this instance, diversionary to equate thorough discussion and debate on the government's criminal law agenda to filibustering and use that as a reason that he did not introduce domestic implementing legislation regarding Bill S-9. I submit that, on both of these counts, the government has it upside down, as I said.

Number one, in the matter of the government's legislative agenda, members of this House have a responsibility to address this legislation, to vet this legislation. It is part of our responsibility of public oversight, as we sought to do whether it was to get costs of Bill C-10 or address an omnibus bill. In fact we could not even filibuster, because in most of these pieces of legislation, we had time allocation introduced in any case.

Leaving that aside, what relationship does the debate on the government's crime and punishment agenda have to do with a delay of eight years before we move to introduce domestic implementing legislation? I suggest that this cannot and should not have accounted for the delay in the introduction of this legislation.

Moving on to the issue of the nuclear threat and now moving to the question of the Iranian situation, which I said I would take up and is a part of the questions and answers, let me just say what we find with regard to what we are witnessing in Khamenei's Iran today—and I use that term because I want to distinguish it from the people and public of Iran, who are otherwise the object of massive domestic repression.

What we are finding in Khamenei's, Iran is really a fourfold threat, but a fourfold threat that is interrelated.

There is the nuclear threat; there is the genocidal incitement threat; there is the international terrorism threat, where the Iranian footprints are replete and evidence has come forward with respect to some 22 terrorist attacks in 2012 alone, spanning five continents with the Iranian Hezbollah connection in that regard; and finally, there is the massive domestic repression, which frankly will be leveraged if Iran should become a nuclear power. There is an interrelationship with all of these matters, because should Iran become a nuclear power, this will enhance the international terrorist threat. It will also leverage its domestic repression activity, let alone the problem of the incitement threat that underpins nuclear proliferation as a whole.

Let me move to the particular role Canada could play with regard to the Iranian fourfold threat. I am speaking about the P5-plus-1 negotiations that have just concluded in Almaty but will be re-engaged again. I want to commend the government's position in this regard, as stated most recently by the Minister of Foreign Affairs.

I want to put forth in particular a number of requirements that should underpin the negotiating position of the P5-plus-1 and, because of our chairperson role at the International Atomic Energy Agency as well as our linkage in that regard to the P5-plus-1 negotiations, how we can help frame the negotiations and combat what our own Minister of Foreign Affairs has referred to as the Iranian position of deception, denial and delay and using negotiations as a basis for delay and the period in between the negotiations not only as a pretext for delaying what has to be done, but where the acceleration of the nuclear weaponization program actually takes place in the context of the delay between negotiations, sometimes within the negotiation period itself.

Since I last spoke to Bill S-9 in the House, there has been, as the International Atomic Energy Agency reported, an acceleration of the nuclear capabilities in the Iran program in the installation of advanced centrifuges. All of this has been set out in the IAEA report, so I will not go further in that regard, but will only say that the intensification of the nuclear capability with respect to Iran is bringing us closer to Iran's becoming a nuclear power, with less capacity on our part to not only prevent it but even to detect it happening.

Let me close by making reference to what particular approach we should have to the P5-plus-1 negotiations.

First, Iran must, as a threshold requirement, verifiably suspend its uranium enrichment program, therefore allowing the international community to combat the three Ds of delay, denial and deception, which as I said, Iran has used to accelerate its nuclear weaponization program rather than, in fact, move toward disarmament.

Second, Iran must ship its supply of enriched uranium, and there is more enriched uranium at a higher level, out of the country, where it can be reprocessed and then made available to Iran under appropriate inspection and monitoring for use in civil nuclear programs. We have no objection to the Iranian civil nuclear program. Iran has the right like any other state with respect to civil nuclear program, medical isotopes use of uranium and the like. The objection we have here is to the weaponization program.

Third, Iran must therefore verifiably close and dismantle its nuclear enrichment plant at Fordow, embedded in a mountain near Qom, which Iranians initially denied even existed but where a zone of impenetrability will soon develop unless that facility is in fact dismantled. Iran has delayed any inspection of those facilities, let alone its dismantling as a whole.

Fourth, Iran must suspend its heavy water production facilities at Arak, because it is sometimes forgotten that an essential component for producing plutonium involved in nuclear programs could also be water, which is a nuclear component that North Korea uses for its own nuclear weapons. Simply put, the path to nuclear weaponization need not be travelled by uranium enrichment alone. The suspension of uranium enrichment, however necessary, will not alone ensure that Iran is verifiably abandoning its nuclear weaponization program.

Fifth, Iran must allow, as it is not, International Atomic Energy Agency inspectors immediate and unfettered access to any suspected nuclear site, as is required, as Iran is a signatory to the nuclear non-proliferation treaty. Iran is thereby bound by its obligations not only not to pursue nuclear weapons but also to open its nuclear sites and installations.

Sixth, Iranian authorities need to grant the IAEA access to the parts and military complex near Tehran, where it has been reported that Iran has conducted high explosives testing, and I am referring to the Parchin complex, possibly in conjunction with the development of a nuclear weapon.

Finally, Iran needs to allow the International Atomic Energy Agency—and again I mention Canada's particular role with respect to IAEA, our chairmanship now—to install devices on centrifuges to monitor Iran’s uranium enrichment levels.

These are the kinds of threshold approaches that Canada can assist in framing and thereby assist in combating proliferation and help to underpin the P5-plus-1 negotiations, which are about to be re-engaged next month.

I also want to mention the question of the incitement threat, because the state-sanctioned incitement to genocide is inextricably bound up with the nuclear proliferation program. In fact, an all-party committee of the foreign affairs committee in the House determined already in 2010, and I am really citing from that committee's report, that Iran has already committed the crime of incitement to genocide prohibited under the genocide convention. That all-party committee thereby recommended that state parties to the genocide convention have an obligation—not a policy option, but an obligation—to undertake the mandated legal remedies under the genocide convention to bring Iran to account.

Regrettably, as I speak in the chamber, not one state party to the genocide convention—not our country, not the United States, not any of the European countries—has undertaken any of these mandated legal remedies, which I will briefly summarize in my final remarks. Again, I remind everyone that this comes out of an all-party report.

First, Canada could be among the countries that could seek to simply refer the matter of this state-sanctioned incitement to genocide, the standing prohibition of the genocide convention I mentioned, to the UN Security Council for deliberation and accountability. It is a modest initiative. Certainly we should be able to do that.

Second, Canada could initiate tomorrow an interstate complaint before the International Court of Justice against Iran, which is also a state party to the genocide convention, for its violations of its own undertakings.

Third, Canada could ask the UN Security Council to refer the matter of the state-sanctioned incitement to genocide to the International Criminal Court for prospective investigation and prosecution of Iranian leaders engaged in the violation of this treaty.

Finally, I want to mention the human rights situation. We need to sanction the Iranian leaders not only with respect to the nuclear weaponization program, but we need to sanction Iranian leaders engaged in the massive domestic repression and hold them to account, as well as holding to account those involved in the proliferation of international terrorism.

These four threats, the nuclear threat, the genocidal incitement threat, the human rights violations and the international terrorism threat, are all finding expression in Khamenei's Iran. We need a comprehensive approach to the fourfold threat. The government has identified that fourfold threat. In fact, it referenced the fourfold threat as the basis for closing the Iranian embassy here and ours in Iran. I would like to suggest that the government undertake these particular juridical remedies in the implementation of our international responsibilities.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, that is an excellent question, but it is not an easy one to answer in the time that I have.

Bill S-9 defines the word “environment”. I understand the skepticism of members on this side of the House because the government does not have a very good track record when it comes to the environment.

Of course, such toxic and dangerous substances can have extremely harmful effects on the environment. Earlier, I quoted an article from the Ottawa Citizen regarding the issue of transportation from Chalk River. There is a very important environmental aspect to all of this.

Subclause 2(2) of the bill clearly states:

2.(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“environment” means the components of the Earth and includes

(a) air, land and water,

(b) all layers of the atmosphere,

(c) all organic and inorganic matter and living organisms, and

(d) the interacting natural systems that include components referred to in paragraphs (a) to (c)...

This definition is very relevant. I am not sure that the government still sees things this way.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I do not disagree with the Parliamentary Secretary to the Minister of National Defence.

I urge people to read the briefing notes on Bill S-9, An Act to amend the Criminal Code, the Nuclear Terrorism Act. These notes were written by Lyne Casavant, Cynthia Kirkby and Dominique Valiquet from the Legal Affairs division of the Parliamentary Information and Research Service and Holly Porteous from the International Affairs and Defence division of that same service. They do an extraordinary job because they explain things clearly, which the government often does not do.

Rather than attacking the opposition by saying that we are all fools who support criminals, perhaps the government should clearly explain its bills and what they are about.

This research, which was very well done, explains the threats that could come from Pakistan, Iran and other countries. It provides a good summary of the situation: who produces this material and who could be a threat. It is interesting to read and provides background information. These notes make Bill S-9, which seems very dry at first, easier to understand.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am pleased to rise in this House to speak to Bill S-9 at third reading stage. Members will recall that, at second reading, we recommended that the bill be passed so that the Standing Committee on Justice and Human Rights could study it in depth.

I am always skeptical about the Conservative government having a bill introduced in the Senate, which is made up of unelected people who are not accountable to Canadians. The government is bringing some very important bills in through the back door, including this one, Bill S-9, which takes a step required to ratify international treaties.

However, we are talking about something that pertains to public safety, which is an important issue to the NDP in this House, because we believe it is our duty to protect the public. That is one of the main reasons why we are here in Parliament.

That being said, it is also very important to approve the agreements and international treaties that we sign. People must understand that we often proceed a step at a time. The process often takes a long time, even too long. We agree to treaties at international meetings. Then, representatives return to their respective countries and have these treaties ratified, which is the reason for Bill S-9. The purpose of the agreement and the international commitments made was to create a legal framework to ensure that nuclear terrorism would be properly dealt with as a criminal offence. This required a number of amendments to the Criminal Code.

We know that the Senate passed Bill S-9 on March 27, 2012. It amends the Criminal Code in order to implement the criminal law requirements of the two international treaties to combat terrorism. The first is the Convention on the Physical Protection of Nuclear Material, which was amended in 2005. We were already a party to this convention, which we initially ratified in 1980. When I say that things move at lightning speed, I am not far from the truth. The other treaty is the International Convention for the Suppression of Acts of Nuclear Terrorism, which was signed in 2005.

The bill contains 10 clauses that add four new offences to part II of the Criminal Code, making it illegal to possess, use or dispose of nuclear or radioactive material or devices or to commit an act against a nuclear facility or an act that disrupts its operation with intent to cause death, serious bodily harm or substantial damage to property or the environment.

The Senate passed an amendment to add making a device to the bill, making it illegal to use or alter nuclear or radioactive material or devices or to commit an act against a nuclear facility or an act that disrupts its operation with intent to compel a person, government or international organization to do or refrain from doing any act; to commit an indictable offence under an act of Parliament with intent to obtain nuclear material, radioactive material or a device; to obtain access to or control of a nuclear facility; or to threaten to commit one of these three offences.

Other amendments have also been introduced that stem from these four new offences and are no less important. The bill adds the definition—and this is important—of certain terms used in the description of the new offences, including “environment”, “nuclear facility”, “nuclear material”, “radioactive material” and “device”, and amends the definition of “terrorist activity”. A new section of the Criminal Code is also introduced to ensure that people who commit or attempt to commit one of these offences when they are abroad can be prosecuted in Canada.

Amendments are made to the provisions of the Criminal Code relating to electronic surveillance to ensure that those provisions apply to the new offences. The four new offences are also considered primary designated offences for the purposes of DNA warrants and collection orders.

Lastly, this bill also amends Canada's rule against double jeopardy, in other words being tried and convicted more than once for the same crime. Accordingly, if an individual has been tried and convicted for any of the four new offences outside Canada, the rule against double jeopardy will not apply when the foreign trial did not meet certain basic Canadian legal standards. In such circumstances, a Canadian court can try this person again for the same offence for which he or she was convicted by a foreign court.

There is a lot of information here. Some have described this bill as a technical bill. Indeed, it might seem quite technical, because it deals with concepts that are not familiar to us. Nuclear terrorism in Canada is not the kind of thing we talk about when chatting with friends. It is definitely not the kind of conversation we have every day.

The Standing Committee on Justice and Human Rights took its role very seriously, considering the nature of the subject. We heard from some very interesting witnesses, including representatives from the Canadian Nuclear Safety Commission and people from the Department of Transport, since nuclear material is transported in Canada.

People might be shocked to learn what goes on right under their noses, which they are not told about for obvious reasons of national security. Also, we would not want to let potential wrongdoers know when nuclear material is being transported from point A to point B.

The committee also heard from representatives of the Department of Public Safety and Emergency Preparedness regarding policies related to managing national security and from the RCMP regarding criminal operations involving national security and related investigations. Representatives from the Department of Justice also appeared, including the Minister of Justice, who spoke about this bill.

We were able to ask questions before the bill was sent to committee. We have mentioned the time it took for the government to introduce Bill S-9 and the fact that the bill was introduced through the back door, through the Senate. We wanted to know why it took so long, especially since this is a huge national and international priority and, according to some, is one of Canada's biggest problems and most serious threats.

We also wanted to know why, when they were drafting the bill, they did not think about the concept of making a device, which came up in the Senate. Nevertheless, I am more or less satisfied. As a lawyer, I appreciate hearing from people at the Department of Justice. They said that the concept of making a device was already included in the bill. However, since we cannot be too careful, they agreed to add the wording, which they had considered included in the existing terminology. That settled that.

We could also leave out the concept of autrefois convict. In other words, if someone is being prosecuted in a foreign country, this law would allow Canada to retain the right to prosecute a Canadian who has committed one of the new offences. The charter includes provisions to enforce this.

The answers provided seem satisfactory, even though there may be some concerns when we see how tests for compatibility with the charter go at the Department of Justice.

In light of our international treaty obligations, we will support the bill, as it stands, at third reading. That is my recommendation. I think that my NDP colleagues will do the same. It is extremely important.

Nuclear terrorism is a difficult concept to grasp. People need to understand. I asked the parliamentary secretary what is the biggest threat in terms of nuclear terrorism. I do not want to scare people here, but we have to be realistic. There are some malicious people out there. There is no doubt about it. We cannot bury our heads in the sand.

Nuclear terrorism threats can come in different forms.

According to the explanations we heard in committee, there are four categories: the use of a stolen nuclear weapon; the use of an improvised nuclear device made of fissionable material; the use of a radiological dispersal device, often referred to as a dirty bomb; and the sabotage of a nuclear facility.

Canada is indeed a country that is rich in uranium, but we must not bury our heads in the sand thinking that we are immune. The article Graham Allison wrote in 2005 entitled “Is Nuclear Terrorism a Threat to Canada's National Security?” comes to mind. The title is quite striking, and in the article, the author makes some comparisons between the United States and Canada.

Having grown up in the Outaouais region, I admit that this article sent a shiver down my spine even though I am not an especially impressionable person. Yet, the fact remains that we need to be realistic about what is happening in the world. The question that Mr. Allison asked on page 717 of the summer 2005 issue of the fissionable material was “What about Canada?” He had this to say:

A nuclear bomb going off on Parliament Hill in Ottawa would cause everything from the supreme court to the Ottawa Congress Centre to disappear; everything for several blocks past the National Archives and the Canadian War Museum would be left in rubble; and fires would consume the Canadian Museum of Nature. Tens of thousands of people would die immediately and the seriously injured would number in the hundreds of thousands. Fallout from the blast would be carried by winds across Canada, contaminating farmland and cities alike and creating thousands of additional casualties.

I mention this to put things into context. Clearly, we would never want something like this to happen. However, as I was saying, we must do our utmost to protect Canadians, particularly when fairly accessible areas are left in the hands of malicious people, which could result in this type of damage.

Given that I am from the other side of the river in Gatineau, reading something like this really put things into perspective for me. We tell ourselves that this would be tragic but that it has never happened and that we are the greatest country in the world and that people here are friendly, open and welcoming. Yet, this is a strange world we live in.

We need to strike a balance. We cannot resort to hyperbole or forget to respect individual rights and freedoms. We need to have balanced policies that protect public safety while respecting human rights. If we manage that, we cannot go wrong.

Ian MacLeod wrote a series of articles in the Ottawa Citizen while we were studying the issue in committee. He wrote:

Nuclear officials are preparing to secretly transport a toxic stew of liquid bomb-grade uranium by armed convoy from Chalk River to a South Carolina reprocessing site.

The “high priority” mission marks the first time authorities have attempted to truck highly-enriched uranium (HEU) in a liquid solution, prompting nuclear safety advocacy groups on both sides of the border to sound the alarm for greater government scrutiny.

The Canadian Nuclear Safety Commission (CNSC) has confirmed the plan to the Citizen. It follows Prime Minister[...]’s commitment at last year’s global nuclear security summit to return HEU inventories to the United States to lessen the risk of nuclear terrorism.

I asked the officials from Transport Canada and Public Safety Canada what they thought about that. My objective was not to find out what route the trucks will be taking. Obviously, we do not want to provide malicious people with a map and the details of when a given convoy will be leaving and tell them that no one should be in the vicinity. We are not that naive.

However, I want to be able to respond to questions I get from the people of Gatineau. When they read this news in the Ottawa Citizen, a local newspaper, some of my constituents telephoned or wrote to me, asking if they should be worried. As the member for Gatineau, I want to be able to tell them that they have no reason to be concerned, because our experts are doing everything they can to ensure that we have nothing to worry about and that every possible safety measure is taken.

I sincerely hope that is the case. However, I cannot guarantee it, nor do I think that anybody here in the House of Commons can. We are counting on protocols being followed and we hope that all security and technological measures will be implemented so that nothing serious happens. Canadians are lucky to have so many waterways, but we are well aware that nuclear waste would eventually make its way to us. I have always been worried that, sooner or later, nuclear materials could enter our water and cause problems.

I do not want to make a mountain out of a molehill, but I do want to emphasize the importance of Bill S-9 given the international treaty requiring states parties to take tough measures. We have to look at how we handle this type of material, facilities, storage locations and manufacturing facilities so that we can implement critical security measures. We need to amend the Criminal Code to ensure that the necessary measures will be taken should offences relating to nuclear terrorism occur, although we hope that will never happen.

I have always believed that prevention is key. I am not against harsh and specific indictments in such cases. Some of these new offences are liable to life in prison, which is the maximum penalty available in the Canadian criminal justice system and shows just how serious such cases are.

I would like to talk about one witness who really impressed me during the committee study of Bill S-9. His name is Matthew Bunn, and he is an associate professor of public policy at the Belfer Center for Science and International Affairs at Harvard University. He described the context of this bill:

Since the September 11 attacks in the United States, both countries have improved security for their own nuclear materials, helped others to do the same, helped to strengthen the International Atomic Energy Agency's efforts, and worked to strengthen other elements of the global response. But if the United States and Canada are to succeed in convincing other countries to take a responsible approach to reducing the risks of nuclear theft and terrorism at the Nuclear Security Summit in the Netherlands in 2014 and beyond, then our two countries have to take the lead in taking responsible action ourselves.

He also convinced me of the following:

Hence, it is important for both of our countries to ratify the main conventions in this area, the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism, as the Seoul Nuclear Security Summit called on countries to do. As [we all know], the leaders at the Seoul summit set a target of gaining enough ratifications to bring the amendment to the physical protection convention into force by the 2014 summit.

That is why Mr. Bunn urged us to ratify these two conventions and pass Bill S-9. He was embarrassed by the fact that Canada is further ahead than the U.S in that regard. Canada has shown leadership in this matter, and I am pleased with that.

I will close by reiterating that, like it or not, the threat of terrorism is real. This does not mean that something will happen tomorrow and that we should create mass hysteria. However, we need reasonable and well-drafted measures. For once the government has a good bill, which it could have introduced directly in the House rather than in the Senate.

However, we must encourage the members of the House to work on protecting public safety and strengthening our role as an international leader.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the third reading of debate on Bill S-9, the nuclear terrorism act. This important counterterrorism bill, if passed, will put Canada into a position to ratify and become a state party to the 2005 amendment to the convention on physical protection of nuclear materials, the CPPNM amendment, and the 2005 international convention for the suppression of acts of nuclear terrorism, the ICSANT.

Let me begin by quoting former United Nations secretary, Kofi Annan, who warned that if nuclear terrorism attacks were to occur, “it would not only cause widespread death and destruction, but would stagger the world economy and thrust tens of millions of people into dire poverty”.

In my remarks today, I will describe the four offences proposed in Bill S-9.. I will also outline how these offences fit within the existing Criminal Code counterterrorism operations with the intent to cause death, serious bodily harm, or substantial damage to property or the environment.

The penalty proposed for a conviction under section 82.3 is a maximum term of life imprisonment. This offence captures the distinct criminalization requirements of both the CPPNM amendment and the ICSANT. It is important to note that in seeking to ratify international agreements, dualist countries like Canada can rely on existing domestic law to achieve compliance with the treaty requirements. In this regard, for the unlawful export or import of nuclear materials where no specific intent is called for by the CPPNM amendment, Canada will be relying on a number of offences which directly target this activity, notably under the Export and Import Permits Act, the Nuclear Safety and Controls Act and the Customs Act.

Second, the bill proposes, at section 82.4, an offence for using or altering nuclear or radioactive material, or a nuclear or radioactive device, with the intent to compel a person, government, or international organization to do or refrain from doing any act. The proposed offence also criminalizes the commission of an act against a nuclear facility or its operations, also with the intent to compel a person, government, or international organization to do or refrain from doing an act.

Common to all the criminal acts in this offence is the intent to compel or influence the behaviour of others. This intent requirement is a characteristic of terrorism. Given the seriousness of these nefarious acts, this offence would carry a maximum punishment of life imprisonment.

The third offence in Bill S-9 addresses the commission of an indictable offence for the purpose of obtaining nuclear or radioactive material, or nuclear or radio active device, or to obtain access to a nuclear facility. If convicted under this section, offenders would be liable to a maximum of life imprisonment.

Both the CPPNM amendment and the ICSANT specifically reference criminal conduct such as theft and robbery committed for the purposes of obtaining nuclear or radioactive materials or devices. However, the treaties also specifically prohibit the “use of force or any other form of intimidation”, at article 9(f) of the CPPNM amendment and “use of force”, at article 2(2) of the ICSANT to obtain these materials.

By prohibiting the use of force, the treaties contemplate prohibiting conduct beyond the specified conducts. The notion of use of force is quite broad and could include any acts of violence or force and therefore any number of existing indictable offences could be contemplated as falling within that conduct, such as murder. It is for this reason that the present formulation of section 82.5 has been used. The scope of this offence is comparable to the requirement of the treaties, although formulated differently.

The final offence set out in Bill S-9 proposes a specific offence to threaten to commit any of the other offences in Bill S-9. The proposed punishment is a maximum term of 14 years imprisonment. The 14 year maximum penalty in the new offence recognizes the heightened seriousness of a threat in a nuclear context, with a sentence proportionate to the potential chaos that such a threat could create.

Many existing offences in the Criminal Code use the concept of “threat“ to describe prohibited conduct. I would also note that the Criminal Code contains a general uttering of threats offence at section 264.1. When examining the meanings of threats, the case law in Canada for the uttering threats offence has indicated the words are to be interpreted objectively within the context and circumstances. In other words, would they convey a threat which is a threat to a reasonable person? In addition, the mens rea has been interpreted to require that the accused intended his or her words to intimidate or to be taken seriously.

These four offences that I have just described, combined with the general provisions of the Criminal Code that address different forms of party liability, such as attempts and conspiracies as well as existing Canadian law outside of the Criminal Code, would put Canada in a position to ratify both of the treaties.

When we look at the proposed level of punishment for the offences in Bill S-9, I think members would agree that they are appropriate given the grave nature of the prohibited conduct. They are also consistent with other terrorism acts in the Criminal Code, for example, section 83.2, commission of an offence for a terrorist group, and subsection 83.21, instructing others to carry out terrorist activities. Both of these carry maximum terms of life imprisonment.

Some of the other areas of Bill S-9 that warrant mention are, first, that it would provide for concurrent prosecutorial jurisdiction over the offences between the provincial and federal attorneys general, an arrangement which is consistent with other terrorism offences in the Criminal Code. Second, the bill would provide for new offences to be added to both the wiretap and the DNA provisions of the Criminal Code. Third, by adding the CPPNM amendment and the ICSANT to the definition of terrorism activities under section 83.01(1)(a) of the Criminal Code, a number of existing powers and procedures would apply to the new offences, including reverse onus at bail and one year wiretap authorizations, to name a few. These offences were designed in such a way so as to fit within the existing terrorism provisions of the Criminal Code.

In addition, these treaties require a sentence to assume extraterritorial prosecutorial jurisdiction over these offences. In this regard, Bill S-9 would give Canadian courts the jurisdiction to try these new offences in situations, for example, where the offence was committed outside Canada by a Canadian citizen or when the person who committed the act or omission outside Canada was, after the commission of the offence, present in Canada. Canada can already assume similar jurisdiction to prosecute other terrorism acts in the Criminal Code.

The final technical aspect of the bill that I will note is, as called for by both the CPPNM amendment and the ICSANT, these offences would specifically not apply to a lawful act that is committed during an armed conflict or to activities undertaken by military forces of a state in the exercise of their official duties to the extent that those activities were governed by other rules of international law.

The military exclusion language used in Bill S-9 is similar to that which is present as set out in subsection 431.2(3) and subsection 80.3(1) of the Criminal Code. Notably, the Supreme Court of Canada in the December 2012 Khawaja decision provided guidance on the application of the military exclusion clause used in the definition of terrorist activities in the Criminal Code. In rejecting the application of military exclusion to the defendant, the court found: first, the military exclusion clause functioned as a defence and therefore it was for the defence to raise an error of reality to the claim that it applied; and second, the conduct in question must otherwise be in accordance with applicable international law such as the Geneva Convention.

Over the course of Bill S-9 moving through the legislative process, much has been said about the impetus for Bill S-9 from both a domestic and international perspective. The context in which the bill has been brought forward has been debated and continues to be of vital importance.

The original CPPNM, which was negotiated in 1980, is presently the only legally binding international instrument in the area of physical protection of nuclear material. Canada signed it in September 1980 and ratified it in March 1986. Canada achieved ratification in 1986 through amendments to a range of statutes, including the Criminal Code.

Twenty-five years later the international community, through the International Atomic Energy Agency, recognized the need to revisit the original CPPNM. In this regard, in July 2005, state parties to the CPPNM, including Canada, adopted the CPPNM amendment. One of the key additions to the original treaty is a requirement for state parties to protect nuclear facilities and materials in peaceful domestic use, storage and transport.

Also, in 2005 under the guidance of the United Nations General Assembly, the ICSANT was negotiated and adopted. The purpose of the ICSANT was to cover a broad range of nuclear terrorism acts and possible targets.

Canada is not alone in seeking to become a state party with these two important nuclear security treaties. At a second world leaders nuclear summit held last year in Seoul, Republic of Korea, 53 heads of state, including the Prime Minister of Canada, recognized the importance of multilateral instruments that addressed nuclear security such as the CPPNM amendment and the ICSANT.

The world leaders committed to work together through a universal assurance of a CPPNM amendment and the ICSANT. If Bill S-9 is passed, Canada will be in a position to report this accomplishment at the next world leaders nuclear summit in 2014. The CPPNM amendment at last count has 64 state parties while the ICSANT has 83 state parties.

Some of our closest allies have recently taken important domestic steps in this area. The United Kingdom became a state party to the ICSANT in 2009 and the CPPNM amendment in April 2010. In addition, Australia modified its laws to achieve ratification of the CPPNM amendment in 2008 and the ICSANT in 2012.

Let me conclude my remarks by heightening what Belfer Center for Science and International Affairs at Harvard University said in its 2011 report entitled “U.S.-Russia Joint Threat Assessment on Nuclear Terrorism”. In a short yet powerful statement it warned that of all the varieties of terrorism, nuclear terrorism poses the gravest threat to the world.

Bill S-9 is balanced and timely and, most important, it is designed to target this new reality.

The House proceeded to the consideration of Bill S-9, An Act to amend the Criminal Code, as reported (without amendment) from the committee.

Business of the House

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

Mr. Speaker, this afternoon we will continue debating third reading of Bill C-42, the enhancing Royal Canadian Mounted Police accountability act, a bill that would give the RCMP the tools it needs to strengthen accountability and enhance public trust. I am puzzled why the NDP is putting up member after member to delay and block bringing accountability to the Royal Canadian Mounted Police. The New Democrats should let the bill come to a final vote so that these much-needed reforms can be put in place. In fact, the RCMP commissioner, Robert Paulson, was in front of the committee yesterday, and he called for swift passage of the bill.

If the New Democrats heed the commissioner's advice and allow the debate to conclude, we will be able to start third reading of Bill S-7, the combatting terrorism act, and help keep Canadians safe that way.

Tomorrow, we will start the second reading debate on Bill C-54, the Not Criminally Responsible Reform Act. This bill proposes to put public safety as the first and paramount consideration in the process of dealing with accused persons found to be not criminally responsible. It accomplishes this change without affecting the treatment these individuals receive.

The debate on Bill C-54 will continue next Thursday and—if necessary—on Friday. Monday, we will consider Bill C-47, the Northern Jobs and Growth Act, at report stage and third reading. We will continue that debate on Wednesday.

Tuesday, March 5, shall be the sixth allotted day, which will go to the New Democrats.

Finally, I hope that the opposition will support our hard-working approach to business so that we could also consider second reading of Bill C-48, the technical tax amendments act, 2012; the second reading of Bill S-12, the incorporation by reference in regulations act; and report stage and third reading of Bill S-9, the nuclear terrorism act.

In addition, in response to what I will take to be an invitation from the oppostion House leader, I would like unanimous consent to propose the following motion. I hope the opposition will not block it.

I move that, notwithstanding any standing order or usual practice of the House, Bill C-7, an act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits, be deemed to have been read the second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read the third time and passed.

Unanimous consent for this would show that they really do care about Senate reform.

Justice and Human Rights

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 18th report of the Standing Committee on Justice and Human Rights, in relation to Bill S-9, an act to amend the Criminal Code.

The committee has studied the bill and has decided to report the bill back to the House without amendment.

Business of the House

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

Mr. Speaker, I welcome the implicit offer of assistance from the House Leader of the Official Opposition.

I look forward to discussions with him later on the possibility of moving forward both Senate reform and Bill C-12 on a unanimous consent basis straight to committee. I would be happy to do that with him.

This afternoon we will continue debating the Liberal opposition day motion. Tomorrow we will hopefully finish second reading of Bill C-48, the Technical Tax Amendments Act, 2012, a measure supported by all three parties. After that we will turn to third reading of Bill C-42, the Enhancing Royal Canadian Mounted Police Accountability Act; third reading of Bill S-7, the Combating Terrorism Act; and second reading of Bill S-12, the Incorporation by Reference in Regulations Act.

When we return from our constituency week on Monday, February 25, we will start second reading of Bill C-55, the Response to the Supreme Court of Canada Decision in R. v. Tse Act. This bill needs to be passed by mid-April before the Supreme Court ruling takes effect, which would render the important powers available to police ineffective.

After Bill C-55, we will consider Friday's unfinished business.

Tuesday, February 26, shall be the fifth allotted day, which will go to the Official Opposition, and it will therefore choose the subject of debate.

On Wednesday and Thursday, we will continue debating the bills I have already listed.

Additionally, Bill C-47, Northern Jobs and Growth Act, was reported back from committee yesterday, and I anticipate Bill S-9, Nuclear Terrorism Act, will be reported back soon. So we could also call these bills at report stage and third reading, if we have extra time next week.

Finally, on Friday, March 1, the House will start the second reading debate on Bill C-54, Not Criminally Responsible Reform Act. The Prime Minister announced this bill last week as part of our efforts to ensure we have a justice system that puts the rights of victims first.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Just so you know, I will not be in the House tomorrow morning, so I will take this to the House on February 25 upon my return.

That deals with our study of Bill S-9.

Thank you very much, and thank you to the legislative clerks for joining me and for telling me that I would be okay today.

We'll move on to the next item on the agenda. We may have about half an hour, but probably not.

Madame Boivin, your motion had been deferred from the meeting on Monday until today, so I give you the floor to move your motion back onto the table, if you wish.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Yes, very quickly.

We raised the issue of

extraterritoriality. We have noticed that certain provisions of the convention have not been repeated in Bill S-9, including offences committed abroad against a Canadian citizen, offences committed against a state or a government facility of that state abroad, including an embassy or diplomatic or consular premises, and offences committed abroad by a permanent resident or a stateless person who habitually resides in that state.

Can you explain to us why that was not repeated in Bill S-9?

[The Chair, Conservative, Mike Wallace]

Thank you, Professor.

And thank you, Mr. Jacob.

That's the end of our time for this panel.

I want to thank Professor Bunn for joining us from Harvard and contributing to our discussion of Bill S-9. We very much appreciate that.

I also want to thank all the members who are here from the Department of Foreign Affairs and International Trade for their input.

Mr. Barber, you made a commitment to one of the members of the committee for a response. I would ask that that go to the clerk and that response be circulated to all members of the committee.

Thank you.

We will suspend for about one minute until we get the Finance people at the table, and we'll start on the clause-by-clause.

[Prof. Matthew Bunn]

I believe Canada already has, as you say, a good regime of safety and security rules and regulations to regulate its own use of nuclear energy and its exports of nuclear-related technologies.

Now, that's not to say things couldn't be made better. Certainly, I'm not as familiar with Canada's export control laws as I am with my own country's. My own country's could definitely use some improvement in a variety of ways. In fact, some colleagues of mine and I are organizing a major international meeting in a couple of months to talk about better ways to stop this kind of black market technology trafficking.

But I think what Bill S-9 would do is allow Canada to enhance further its leadership role in this international effort to get these treaties ratified across the world and in force. The International Convention for the Suppression of Acts of Nuclear Terrorism already has enough parties to enter into force. Obviously, it's not in force for countries that haven't ratified, like Canada and the United States. But the amendment hasn't even entered into force yet, and that was the goal at Seoul: to get enough countries to ratify to get it into force by the time of the next Nuclear Security Summit in the Netherlands. I think that's going to be difficult, but we've got a shot to do it, and it would be impossible if Canada and the United States don't ratify.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I do appreciate your articulating the difference between the two. When we had representatives from the Canadian Nuclear Safety Commission—they testified before the committee as well—all affirmed that Canada operates under a world-class nuclear safety and security regime.

Now the amendments to the Criminal Code in Bill S-9 reflect obligations imposed under many of these agreements. We've already mentioned the International Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material.

My question, Professor, is this. Once Bill S-9 is enacted, Canada would be in a position to ratify these conventions. Do you think the enactment of domestic legislation to implement Canada's obligations would be effective in further establishing that safe network, that technology supply network, as well as our own state use of nuclear technology?

[Prof. Matthew Bunn]

That's a great question, but I think we need to distinguish somewhat between two different and dangerous trades. One is the smuggling of materials that could be used directly to make a nuclear bomb, that is highly enriched uranium or plutonium, which so far—knock on wood—has mostly been not only a not-organized crime but what I like to call a comically disorganized crime. It's mostly sort of part-time hustlers and has been rare and not an organized operation.

Then the different situation is these technology supply networks that are mostly run by states, although one of the odd things about the A.Q. Khan network was, rather than it being driven by the demand of a state, it was driven in part by the available supply from the network looking for customers. These are sophisticated operations dealing with companies with sensitive technologies, well-to-do engineers. They are sophisticated in the use of front companies and various other means of hiding what they're doing. But they are really about acquiring the technology to make this kind of material, and then to make a weapon from it, rather than acquiring the highly enriched uranium, which is really more of the terrorist problem. Technology is really more of the state problem. I think it's implausible that terrorists, even if they could get relevant technologies, would be able to enrich uranium or produce plutonium on their own.

So I would argue that Bill S-9 would help us with the terrorist problem, in part because it makes illegal and imposes these very substantial penalties on acts such as smuggling or unauthorized possession of highly enriched uranium or plutonium. I think there are other things we need to do that will help us with the technology problem, including taking action, as Canada did, to arrest these kinds of players who are trying to get these kinds of technologies.