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.

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

Thank you, Mr. Chair. I want to thank all of our guests who are here today as witnesses. Your testimony and your experience and expertise are most welcome.

Professor, I'm going to pick up from my colleague, MP Findlay, in regard to some of the comments you made, both in previous testimony to the Senate and also in some of your academic work.

Last Monday we heard the case, Professor, of Mahmoud Yadegari, who was the first person in Canada convicted of supplying nuclear equipment to Iran. In the six months leading up to his April 2009 arrest, Mr. Yadegari had contacted 118 companies across North America and sent more than 2,000 e-mails to suppliers, in the hopes of getting his hands on parts used in the enrichment of uranium for nuclear fuel.

Professor, you referenced your 2011 report, “The U.S.-Russia Joint Threat Assessment of Nuclear Terrorism”, and I do appreciate your wanting to pass that on for the committee's consideration. In that report, Professor, I'm going to quote from page 44, where you say:

...there is some evidence that Teheran has been secretly acquiring technologies and materials important in the production of nuclear weapons on the black market. This and other evidence, such as the behavior of the Iranian leadership, strongly suggests that Iran aspires to eventually become a full-fledged nuclear power—or to have the option to build nuclear weapons at any time of its choosing.

Professor, do you think that Bill S-9 will facilitate international cooperation and make it more difficult for rogue states and terrorist groups to illegally obtain such nuclear materials?

[Sean Casey, Liberal, Charlottetown, PE]

I wasn't at the last meeting, but the note that had been provided by Mr. Cotler indicated that one of the things the minister said was that S-9 just particularizes offences that are already generally criminalized. I'm not asking you to get into a debate with the minister, of course, but I take it that that's exactly the point you're making, that it's....

Okay, thank you.

[Prof. Matthew Bunn]

Both pieces of legislation are intended to make sure that this nation's laws are consistent with the obligations in the convention to prohibit certain acts related to nuclear terrorism, and to impose penalties that are consistent with the magnitude of those crimes.

Given the number of people who might be killed in the event of an act of nuclear terrorism, my view is that acts like nuclear smuggling should be considered as being like conspiracy to commit murder or something of that level of gravity.

In Bill S-9, for example, the penalties are up to life in prison for many of the acts enumerated.

In the United States, part of what has delayed our passage of the relevant legislation is an attempt both in the Bush administration and in the Obama administration to include death penalty provisions for some of these acts. Some of the people in Congress were resisting that.

A bipartisan compromise in the United States was negotiated in the house—practically the only bipartisan compromise I can think of that's been negotiated in the house in recent years—but a small number of senators managed to hold it up, wanting to go back to the original death penalty provision. That's part of politics in the United States.

I would say the biggest difference is that difference between life imprisonment and death as the potential penalty.

But the particular acts included in Bill S-9 and included in the U.S. legislation are the acts specified in the conventions, so they would allow each country to ratify the conventions.

My own view is that if you take a broad reading of U.S. law, the relevant acts are already prohibited and the United States should have ratified these conventions long ago without bothering to pass any implementing legislation. But the Department of Justice took the view that we needed to dot every i and cross every t by passing this legislation.

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

Thank you for the information.

Maybe I'll move over to Professor Bunn.

Are you familiar with the provisions of Bill S-9, and can you compare it to what the U.S. will eventually put in place in terms of legislation?

[Shawn Barber]

Will Bill S-9 be delayed as Bill C-7—

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

Thank you, Mr. Chair.

Thank you, Professor Bunn. Thank you, Mr. Barber and all the officers, for very insightful presentations. It's really important for us to hear your expertise. Thank you very much for that.

My question is for Mr. Barber, and it has to do with the bill's extraterritorial aspect.

Clause 3 of Bill S-9 talks about extraterritorial jurisdiction that could apply in the case of certain actions.

The following offences are not covered: an offence committed abroad against a Canadian citizen; an offence committed against a state or a government facility of that state abroad, including an embassy or diplomatic or consular premises; an offence committed abroad by a permanent resident or a stateless person who habitually resides in that state. Can you explain to us why that is and tell us what consequences it could have?

[Shawn Barber, Acting Director General, Global Partnership Program, Department of Foreign Affairs and International Trade]

Thank you, Mr. Chairman, and good afternoon, everyone. My name is Shawn Barber, acting director general of the Non-Proliferation and Security Threat Reduction Bureau at the Department of Foreign Affairs and International Trade.

I am pleased to be here today to discuss with you what we are doing internationally to help reduce the threat of nuclear terrorism.

Joining me are two of my colleagues, Mr. Graeme Hamilton, who's the deputy director of the global partnership program, and Mr. Terry Wood, who's a senior coordinator for international nuclear cooperation, both of whom work with me in the Non-proliferation and Security Threat Reduction Bureau.

The proliferation of weapons of mass destruction, or WMDs, and related materials remains an ongoing security threat to Canada and the broader international community. Some terrorist organizations, including al Qaeda, have openly acknowledged they're interested in obtaining weapons-usable nuclear materials.

The illicit trafficking of nuclear and/or radiological materials, including by criminal organizations, was recently identified by the head of the International Atomic Energy Agency, the IAEA, as a growing concern. The IAEA has reported nearly 2,000 incidents of unauthorized use, transport, and possession of nuclear and other radioactive material between 1993 and 2011.

Responding to the threat of nuclear terrorism requires us to act across a number of fronts.

First, we must work with our like-minded partners to ensure better protection of nuclear facilities and stocks of nuclear materials around the world.

Second, where possible, Canada and its international partners must reduce domestic stocks of highly enriched uranium and weapons-usable radiological materials, so that there is simply less available supply that can find its way into the wrong hands.

I would add that in this regard the decision yesterday by North Korea to test a nuclear device and the ongoing efforts by Iran to increase its stockpile of weapons-grade uranium run precisely counter to this objective, and as such, represent a grave threat to international peace and security.

Third, we must work with others to enhance the ability of source countries to detect the cross-border movements of highly enriched uranium and dangerous radiological isotopes so we can disrupt the illicit flows of these materials.

Fourth, we need to ensure our domestic legislation and criminal sanctions are up to date and in compliance with our international treaty obligations in this area. That is what Bill S-9 intends to accomplish. It will allow Canada to ratify the amendment to the Convention on the Physical Protection of Nuclear Materials and the International Convention for the Suppression of Acts of Nuclear Terrorism.

Finally, the threat of nuclear terrorism must remain a focus of the international security agenda. That is what the recent Nuclear Security Summit process has been about.

There have been two nuclear security summits to date: in 2010 in Washington D.C. and in 2012 in Seoul, South Korea.

At last year's summit, Prime Minister Harper, along with 53 other world leaders, renewed the following commitments: strengthening the legal framework against the threat of nuclear terrorism and for the protection of nuclear materials; securing vulnerable nuclear materials globally; minimizing the civilian use of weapons-usable nuclear materials; enhancing transportation security; and preventing illicit trafficking.

The next nuclear security summit will be hosted by the Netherlands in The Hague in March 2014.

Canada is also a member of the global initiative to combat nuclear terrorism, GICNT, an international partnership of 83 nations working to improve capacity on a national and international level for prevention, detection, and response to a nuclear terrorist incident. As a GICNT partner, early last year Canada hosted an international tabletop exercise in Toronto, simulating a combined federal, provincial, and municipal response to a nuclear terrorist incident. The meeting was attended by more than 150 delegates from 45 countries and was an opportunity to share best practices in coordinating a response to these types of threats.

At the Seoul Nuclear Security Summit, Prime Minister Harper announced Canada's intention to repatriate additional stockpiles of highly enriched materials from Chalk River Laboratories to the United States prior to 2018, and a new $5 million Canadian voluntary contribution to the IAEA's nuclear security fund to secure nuclear facilities in regions where urgent needs have been identified. Canada is the third largest donor to the IAEA's nuclear security fund, after the U.S. and U.K., with donations totalling $17 million since 2004.

The Prime Minister has also announced the renewal and continued funding of DFAIT's global partnership program, which I am honoured to lead, for an additional five years with $367 million in funding. That translates into an annual budget of $73.4 million from 2013 to 2018. The global partnership program has a mandate to secure and, where possible, destroy weapons of mass destruction and related materials and to keep them from being acquired by terrorists and states of proliferation concern.

Through the program, which supports the 25-member global partnership against the spread of weapons of mass destruction, Canada is actively implementing concrete nuclear security projects globally, and has spent more than $485 million toward nuclear and radiological security to date. This includes $209 million toward nuclear submarine dismantlement in Russia, $194 million on physical security projects in the former Soviet Union, and $13 million to prevent illicit trafficking of nuclear and radiological materials. We have also made major contributions to the elimination of WMD-related material including a $9 million investment to shut down the last plutonium-producing reactor in Russia.

The program has since refocused its efforts to target new and emerging threats in the Middle East, North Africa, Asia and the Americas.

For example, the global partnership program has recently contributed $8 million to remove highly enriched uranium and to convert research reactors to run on non-weapons usable nuclear material—low-enriched uranium—in Mexico and Vietnam. A $1.5-million contribution was also made to secure radiological sources in Libya, in co-operation with the U.S. and the International Atomic Energy Agency. Numerous projects elsewhere in the world have also received contributions.

A significant portion of the program's budget over the next five years is also expected to be spent on nuclear and radiological security projects.

In conclusion, Bill S-9 is an integral part of a comprehensive Canadian strategy to combat nuclear terrorism, and a key component of Canada's promotion of nuclear security abroad. We have made progress in addressing this threat, but much remains to be done.

My colleagues and I would be pleased to respond to your questions.

Thank you.

[The Chair, Conservative, Mike Wallace]

Okay, ladies and gentlemen, I'm going to call this meeting to order. We'll use the BlackBerry time instead of the clock in the back. I know there will likely be bells at 5:30 for votes at 6:00, so I want to make sure we get this meeting completed by 5:30.

Welcome to the Standing Committee on Justice and Human Rights, meeting number 59. Pursuant to the order of reference of Friday, November 30, 2012, we're dealing today with Bill S-9, An Act to amend the Criminal Code.

For the first hour we have scheduled two sets of witnesses. I will introduce them in a moment. Then we are going to go to clause-by-clause on this bill. If we don't last the full hour with the witnesses we have, we'll move right to clause-by-clause. Then after that, I anticipate the motion that was deferred to this meeting from Monday's meeting will be reintroduced and we'll deal with it then. That's the schedule for today.

First, let me thank our witnesses for coming.

We have from the Department of Foreign Affairs and International Trade, Mr. Shawn Barber, the acting director general for the global partnership program. I'll allow him to introduce the guests with him.

Via video conference from Cambridge, Massachusetts, I want to welcome Professor Matthew Bunn, who's from the Belfer Center for Science and International Affairs at Harvard University. Welcome, Professor.

We will have opening statements. We'll start with the Department of Foreign Affairs, and then we'll move to Professor Bunn, and then we'll have questions.

The floor is yours, Mr. Barber.

[The Chair, Conservative, Mike Wallace]

That's it. Thank you very much.

Thank you to our panel for coming this afternoon.

I want to thank the Department of Public Safety and Emergency Preparedness for coming.

I want to thank the RCMP for being here. My grandfather was an RCMP officer and, in fact, in the Musical Ride. We're very proud of the work he did, and I want to thank you for your service.

Just as a reminder to committee members, it would be preferable that amendments come in advance. We will be doing this bill clause by clause in the second hour of our Wednesday meeting, so amendments to Bill S-9 would be greatly appreciated 24 hours in advance.

Also, to all parties here, if you have witnesses you're interested in seeing for the two studies we'll do after we get back from our break week, on Bill C-273 and Bill C-394, the two private member's bills, if you would provide those to the clerk in the near future, that would be greatly appreciated.

With that, we'll adjourn and call it a day.

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

You said there were 20 or so investigations. Will the passage of Bill S-9 and a larger arsenal of tools lead to more successful prosecutions? Will it change things?

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

Thank you, Mr. Chair.

I want to thank the witnesses for joining us today. Your input goes a long way towards helping us understand what happens on the ground when we review a bill.

Bill S-9 introduces new offences related to nuclear terrorism under the Criminal Code.

My question is for Mr. Malizia.

Do you think these new Criminal Code offences will mean more investigations and a heavier workload for the RCMP?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

My question deals with the enforcement aspect, so I'll direct it to Assistant Commissioner Malizia.

Assistant Commissioner, our Conservative government has recently announced that counterterrorism strategy asserts as one of the six fundamental principles that terrorism is a crime that will be prosecuted. The deny element of this strategy aims to deny terrorists the means and the opportunity to carry out their activities. I know you know that.

A key objective of this strategy is to disrupt the acquisition of weapons of mass destruction. Do you think that Bill S-9 would strengthen law enforcement's ability to meet this important objective by specifying that actions associated with possessing, using, transporting, exporting, importing, altering, or disposing of nuclear or radioactive materials will be deemed a serious crime with severe penalties?

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

It was noted by one witness who testified before the Senate committee that Canada has been a leader in the effort to secure nuclear materials worldwide and to prevent nuclear terrorism.

John, you mentioned the funding of $365 million from the 2012 Seoul Nuclear Security Summit. I think that was for the global partnership program. Taking that into account, do you support the swift enactment of Bill S-9 as moving with that, and if so, why?

James, if you want to answer that as well, I'm happy to hear that.

[John Davies]

Yes, I do very much. I think there are a lot of benefits to Bill S-9.

The Minister of Justice talked about the importance of particularizing the offence around counter-proliferation in the Criminal Code and extending the sentencing. I think both of those around proliferation offences send an important signal, a strong message, that the government considers this an important issue.

Also, there are more tools for law enforcement and for prosecutors: the reverse onus on bail, wiretapping provisions, and so on. There are more tools in the tool kit. Any national security issue is about expanding tools as much as you can to give flexibility and other options for law enforcement and for prosecution.

For us as well, this is obviously an important international commitment that we're living up to here. It strengthens the international regime around counter-proliferation. It's a good momentum piece for Canada and for the world going into the next Nuclear Security Summit in 2014.

I think there are a lot of benefits for this legislation.

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

Thank you, Mr. Chair.

Thank you all for being here today to enhance our understanding of this legislation.

Mr. Davies, when you testified before the Special Senate Committee on Anti-terrorism on June 4, 2012, you said this:

...Bill S-9 represents a concrete step in strengthening Canada's criminal laws relating to nuclear terrorism. It will further allow Canada to ratify and implement two important international treaties, thus signalling our commitment to nuclear security.

I note today in your remarks you talked about the bill being “an indication of Canada's commitment to engaging in international efforts to combat proliferation” and “signal to our international partners the importance Canada places on having a robust regime to address threats to global security”. Clearly, you're putting this within the international context of us working with our partners.

Public Safety Canada's role, as I understand it, with regard to proliferation and terrorism is to coordinate and support interdepartmental efforts at the federal level, as well as to leverage expert knowledge to better examine the threat, identify the risks that Canada faces, and develop sound policy and advice to help guide the government.

In that context, do you feel that Bill S-9 would complement existing national security policy and operational frameworks that are currently in place?