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.

[Assistant Commissioner James Malizia, Assistant Commissioner, Federal Policing Operations, Royal Canadian Mounted Police]

Yes, Mr. Chair.

Good afternoon, and thank you for inviting us here today to provide some law enforcement context about Bill S-9.

l have with me today Chief Superintendent Larry Tremblay, director general of federal policing, criminal operations.

Canada's counterterrorism strategy asserts, as one of its six fundamental principles, that terrorism is a crime that will be prosecuted. The deny-and-detect elements of the strategy aim to deny terrorists the means and opportunities to carry out their activities. A key objective in this strategy is to disrupt the acquisition of weapons of mass destruction.

Bill S-9, the Nuclear Terrorism Act, would strengthen law enforcement's ability to meet this important objective by specifying that actions associated with making, possessing, using, transferring, exporting, importing, altering, or disposing of nuclear and radioactive material with intent to cause death, serious bodily harm, or substantial damage to property or the environment will be deemed a serious crime with severe penalties.

Bill S-9 classifies criminal actions, for example, committing an indictable offence under federal law for the purpose of obtaining radioactive material, as terrorist acts. Bill S-9 raises the public consciousness about the seriousness of nuclear-related terrorist activities, and highlights the risks posed by people, organizations, and state actors engaging in these actions.

Another key aspect of this bill for law enforcement is that clause 3 criminalizes these activities if they occur outside Canada. Bill S-9 is thereby consistent with all other terrorist-related offences listed in the Criminal Code.

Nuclear terrorism is a threat to international security with the potential to cause significant loss of life, as well as substantial environmental and property damage.

Based on reports from the International Atomic Energy Agency, in the past two decades there have been approximately 20 cases of weapons-grade material on the black market. It is reported that illicit procurement networks are trafficking highly radioactive material across Europe, Africa, and the Middle East.

The investigative techniques that come into play when pursuing cases involving acts of nuclear terrorism are not significantly different from other complex terrorist investigations. Countering nuclear terrorism requires coordinated government action, including diplomacy and international cooperation, border controls, physical and information security, and law enforcement.

A primary objective of law enforcement would be to prevent nuclear radiological material from falling into the hands of terrorists. It would be critical to disrupt a terrorist plot at the earliest opportunity.

Law enforcement, the intelligence community, and border officials often work hand in hand to uncover plots. These actors are vital in uncovering the illicit movement of controlled goods and detecting and tracking illegal shipments. Intelligence and forensics also play a critical role in helping to prevent nuclear terrorism.

Law enforcement is critical to the government's response in countering nuclear terrorism, and therefore requires the appropriate authorities to execute its mission effectively. Bill S-9 will assist us when we investigate activities associated with nuclear and radioactive material.

The RCMP has developed close partnerships with the Canadian Nuclear Safety Commission, as well as with the owners and operators of Canada's nuclear power plants. The key to denying terrorists the capabilities to engage in nuclear terrorism is effective cooperation among the full range of security and intelligence partners, both domestic and international.

The Yadegari investigation and prosecution, while not a nuclear terrorism case, exemplifies how government agencies can and should work together to counter proliferation. Mahmoud Yadegari was charged for attempting to export pressure transducers from the United States to the United Arab Emirates through Canada. The investigation determined that the pressure transducers, which are crucial components used in uranium enrichment, were ultimately destined for Iran.

Yadegari was charged with 10 offences under various statutes, including the Customs Act, the United Nations Act, the Export and Import Permits Act, the Nuclear Safety and Control Act, and the Criminal Code for false documents.

Bill S-9 would criminalize proliferation in situations where an indictable offence is committed with intent to obtain nuclear and/or radioactive material, or to obtain access to a nuclear facility.

Global and domestic cooperation, sharing of intelligence and industrial security measures are critically important in achieving the goal of denying, detecting and deterring the trafficking of nuclear and radiological material.

Bill S-9 would contribute to law enforcement's counterterrorism efforts by specifying certain activities associated with nuclear and radiological material as serious crimes and enhancing the authorities available to police.

Thank you. I welcome your questions.

[John Davies, Director General, National Security Policy, Department of Public Safety and Emergency Preparedness]

Thank you.

My name is John Davies. I'm the director general, national security policy, at Public Safety Canada. I'm joined today by my colleague Emmanuelle Deault-Bonin, who is the senior analyst and manager in my group, and an expert in counter-proliferation policy.

I am pleased to be here today to speak with you about Bill S-9 and to explain how the bill, if passed, will complement the Government of Canada's counter-terrorism and counter-proliferation efforts.

Nuclear terrorism is a significant threat to Canada and to global security, and it is one that continues to evolve. The Government of Canada takes seriously its responsibility to mitigate this threat. Two of my minister's key responsibilities are to exercise national leadership on matters of public safety and to coordinate activities of Canada's federal law enforcement and intelligence agencies.

With regard to counter-proliferation, this means that Public Safety Canada works with more than a dozen federal departments and agencies to identify proliferation-related threats, to uphold Canadian laws and regulations related to proliferation, including sanctions against countries we know have nuclear aspirations, and to ensure that our policy and legal frameworks for counter-proliferation remain current and effective.

You've heard today from officials from the Canadian Nuclear Safety Commission. With me at the table are representatives from the Royal Canadian Mounted Police. These two agencies are examples of the breadth of expertise brought to bear in Canada's counter-proliferation efforts. Activities range from intelligence gathering to controlling the export of dual-use goods to raising awareness of proliferation risks in the private sector and academic world to enforcing sanctions against foreign states.

Bill S-9 will strengthen Canada's counter-proliferation framework by creating four new Criminal Code offences related to nuclear terrorism, such as the possession or export of nuclear or radioactive materials and devices.

Internationally, Canada is also a committed partner. For example, the Prime Minister announced at the 2012 Seoul Nuclear Security Summit a funding commitment of $365 million over five years for the global partnership program. Among other things, this program aims to help secure nuclear facilities to prevent nuclear materials from being used for illicit purposes around the world.

Further, the government promotes cooperation among its international partners through its diplomacy and advocacy work to implement and strengthen multilateral initiatives and international legal instruments such as the two treaties that Bill S-9 would allow Canada to ratify. This bill is an indication of Canada's commitment to engaging in international efforts to combat proliferation.

I would like to conclude by saying that should Bill S-9 be adopted, it will further improve our domestic framework to counter nuclear terrorism and signal to our international partners the importance Canada places on having a robust regime to address threats to global security.

Thank you to the committee. I would be happy to answer any questions.

[The Chair, Conservative, Mike Wallace]

Thank you.

I have no other questioners on my list, so we'll consider that everyone has asked their questions.

I want to thank the panel for being here for this discussion of Bill S-9. We will be dealing with it on Wednesday on clause-by-clause. I want to thank you for that.

You're excused.

With unanimous consent, I will now move to committee business and the notice of motion from Madame Boivin, because we have about half an hour, if that's okay with everyone.

[Marie-France Dagenais]

Yes, I believe so. As I say, we work in collaboration with the commission to ensure that the transport is done in a safe manner. They handle more of the security side of things under Bill S-9, but I believe the regulatory framework is quite appropriate right now.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you, Mr. Chair. I'm going to direct a couple of questions to our representative from Transport Canada.

Ms. Dagenais, do you think the regulatory framework in Canada is already in a position to accommodate the provisions of Bill S-9?

[Terry Jamieson]

Sir, that's one of the principles Canada has always acted by. I would suggest that ratifying the two instruments affected by Bill S-9 is an important step towards reaffirming our commitment to be 100% compliant with the international system.

As to the physical protection, I want to stress that all those aspects have been in place since 2006, and some aspects were in place before that.

As for the comment about being one of the items considered by the Nuclear Security Summit in securing vulnerable material, in no way would the HEU and other material in Canada be considered vulnerable in comparison to established international norms for the protection of such material.

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

Thank you, Mr. Chair.

First, let me thank our witnesses for their presence and their expertise in helping us study this important legislation.

It's my understanding that the Nuclear Security Summit process brings together 47 countries with a view to strengthening international cooperative efforts to prevent nuclear terrorism by enhancing global nuclear safety. At the inaugural 2010 summit in Washington, D.C., Prime Minister Stephen Harper and 46 other leaders agreed to a joint communiqué and work plan, which among other commitments welcomed a four-year international effort to secure all vulnerable nuclear materials worldwide.

It also highlighted the importance of achieving the universal ratification and implementation of the amended Convention on the Physical Protection of Nuclear Material and International Convention for the Suppression of Acts of Nuclear Terrorism. The March 2012 Nuclear Security Summit in Seoul provided countries with an opportunity to identify areas for cooperation to enhance nuclear security.

Mr. Chair, I'm going to direct my questions to Mr. Jamieson or his colleagues as they feel they can answer.

Mr. Jamieson, when you testified before the Special Senate Committee on Anti-terrorism back in June, you noted that “the regulatory framework in Canada is already in a position to accommodate the provisions proposed in Bill S-9”. Do you think it's important for Canada to become a state party to international counterterrorism instruments?

[Terry Jamieson]

Bill S-9 is required to allow us to ratify because there are specific requirements to have acts of nuclear terrorism considered as Criminal Code offences.

[Irwin Cotler, Liberal, Mount Royal, QC]

During the Senate committee proceedings it was suggested that Canada's regulatory framework for the import, export, control, and safeguarding of nuclear material has been in place for years and is already sufficient to implement the physical protection measures required for the International Convention for the Suppression of Acts of Nuclear Terrorism, the ICSANT, and the amendment to the Convention on the Physical Protection of Nuclear Material.

Would you say it's correct that our current legislative and regulatory regime is consistent with our obligations under ICSANT and the amendment to the CPPNM, or is Bill S-9 necessary for us to be in a position to ratify both treaties?

[Terry Jamieson]

I'll answer your questions in sequence, and in a moment I'll turn it over to Mr. Awad to talk perhaps about some of the more detailed aspects of security planning for such shipments.

To start with, yes we do have a formal manner in which we interact with our partners, so we'll regularly work with the RCMP and our CSIS partners in order to arrive at the latest assessment of the threat environment.

In terms of why we need Bill S-9, currently Canada has signed for the amendment to the CPPNM and also has signalled intent for ICSANT. Of course, we can't ratify them without modifying our legislative framework to make acts of nuclear terrorism a Criminal Code offence. That in fact is the driver for Bill S-9.

With regard to your remarks concerning the HEU shipments, such shipments of nuclear material, certainly of nuclear medical isotopes, occur routinely, hundreds of times a day in Canada.

For the proposed HEU shipments, from a number of viewpoints this is the right thing to do, to return that material, which was originally of U.S. origin, to the U.S. Of course, this is consistent with the Nuclear Security Summit commitments made by our Prime Minister directly to President Obama.

The proposed shipments will be entirely safe and secure. There will be a detailed security plan that will be filed before any shipments take place. The actual physical packaging for the material, which is in a liquid form, which is the only difference between the routine shipments that we have now, those transfer containers will be certified, and the safety and security of them will be demonstrated.

Also, as I mentioned, we will work specifically with our partners, our security partners, in order to review the threat assessment along the proposed transportation route.

[Françoise Boivin, NDP, Gatineau, QC]

Yes and no in a sense.

You talked about your partners in the matter, but how is the level of communication between.... I'm sure CSIS is involved. I'm sure a lot of agencies are.

Is there a formal format whereby you can review all these things? We get to study a bill and we don't know what it is needed for. I take it there are some conventions internationally that we have to conform to. All of you must have read the article in the Ottawa Citizen this morning entitled, “Liquid bomb-grade uranium to be shipped secretly from Chalk River to U.S.”. I might not have thought too much about it normally, but now that I'm reading Bill S-9, I'm thinking that my goodness, if somebody inside Canada had bad intentions, those are all types of events that could create some type of.... Are you reasonably assured that all the means are already in place, because that's what I gathered from your testimony, and if so, why do we need Bill S-9?

[Terry Jamieson, Vice-President, Technical Support Branch, Canadian Nuclear Safety Commission]

Thank you, Mr. Chair and members of the committee, for the invitation to appear before you today to discuss certain aspects of Bill S-9, the Nuclear Terrorism Act, and how they relate to the mandate of the Canadian Nuclear Safety Commission.

I'm accompanied by Mr. Raoul Awad, director general of the directorate of security and safeguards, and Mr. Jason K. Cameron, director general of the strategic planning directorate.

The CNSC is Canada's sole nuclear regulator and, as such, is responsible for protecting the health, safety and security of Canadians and the environment with regard to the use of nuclear energy.

The CNSC is also tasked with ensuring that Canada meets its international obligations as far as the peaceful use of nuclear energy is concerned. We carry out our mandate under the Nuclear Safety and Control Act and related regulations.

The CNSC and its predecessor organization have been regulating nuclear activities for more than 65 years. Activities regulated cover the entire nuclear cycle, from uranium mining and milling through to fuel fabrication, to nuclear facilities such as nuclear power plants, and ultimately to waste management. Regulatory oversight also extends to nuclear substances and to commercial, medical, academic, and research applications.

I will focus my brief comments today on describing how the CNSC ensures the security of nuclear materials and of nuclear facilities.

The prevention of nuclear terrorism relies on several elements, starting with international treaties and conventions. In Canada, the CNSC oversees the application of physical protection, threat assessment, and security measures. While Bill S-9 deals with Criminal Code offences if terrorist activity is found, the work of the CNSC is largely meant to be preventive, so that nuclear terrorism efforts will be detected and thwarted as early as possible.

The CNSC was involved in helping to develop the amendments to the Convention on the Physical Protection of Nuclear Material. The CNSC's nuclear security regulations were updated in 2006 to reflect those changes. These regulations set out prescriptive and detailed security measures that licensees must adhere to. Physical protection requirements are based on a graded approach commensurate with the risk level and the resulting consequences.

For example, with respect to category I and II nuclear materials, and the facilities in which they are stored, the requirements range from site access controls to an on-site armed response force capable of intervention in the case of intrusion, theft, or sabotage. Employees and supervisors must fulfill mandatory requirements for awareness and education of security protocols. Those workers with access to nuclear materials must undergo rigorous background checks.

Licensees must develop and maintain contingency plans, as well as practise regular emergency drills. In fact, the North American nuclear industry holds an annual competition in which the tactical and physical skills of nuclear security protection officers are demonstrated. Canadian teams are regularly among the winners.

The transport of category I, II, and III nuclear materials is covered by the packaging and transport of nuclear substances regulations, and requires a licence from the CNSC. In order to obtain such an approval, the licensee must submit a transport security plan that provides detailed information, including a threat assessment, the proposed security measures, the route, and other arrangements along the route, all in accordance with the nuclear security regulations. Security plans are required for all shipments, including those in transit through Canada. Transport Canada's transportation of dangerous goods regulations also apply to any transport of nuclear substances.

Consequently, if Bill S-9 is enacted and Canada ratifies the CPPNM as well as the International Convention for the Suppression of Acts of Nuclear Terrorism, there is no additional work necessary to implement the physical protection measures among Canada's nuclear facility operators. These measures in fact have already been in place for years.

Similarly, Canada's framework and policy for the import, export, control, and safeguarding of nuclear material is transparent and comprehensive, to the extent that the CNSC is routinely consulted by regulators in other countries seeking to replicate various aspects of the Canadian model.

The Nuclear Safety and Control Act does contain regulatory offence provisions and penalties. Indeed, an individual was successfully prosecuted in 2010 for trying to ship nuclear-related dual-use devices to Iran, which could have been used for uranium enrichment. The proposed provisions of Bill S-9 would supplement our Nuclear Safety and Control Act for more serious offences and acts of nuclear terrorism.

In closing, the CNSC has been on the leading edge of implementing safety and security of our nuclear material inventory here in Canada as well as controlling the movement of nuclear materials, both domestically and across our borders. Consequently, the regulatory framework in Canada is already in a position to accommodate the provisions proposed in Bill S-9.

Thank you for the opportunity to appear before you today. I look forward to your questions.

[The Chair, Conservative, Mike Wallace]

I call to order meeting number 58 of the Standing Committee on Justice and Human Rights. According to the order of reference of November 30, we're going to continue our discussion of Bill S-9, An Act to amend the Criminal Code.

We have two panels today, ladies and gentlemen. We have a motion that I'm going to make sure we reserve 15 minutes for at the end of the meeting, and we have a duly noted notice of motion from Madam Boivin. If this first panel finishes early, we will deal with that motion and then move to the second panel.

From the Canadian Nuclear Safety Commission, we have a number of guests. Mr. Jamieson is going to introduce his guests and give a short presentation.

We also have with us, from the Department of Transport, Madam Dagenais, who is the director general, transportation of dangerous goods. She has a very brief opening statement.

The floor is yours, Mr. Jamieson.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

The Criminal Code contains some provisions that make it possible to take action even if offences are committed outside our territory.

In addition, clause 9 of Bill S-9 talks about the autrefois convict defence, which applies to someone who may have been found guilty abroad. That would not apply in some specific cases. Of course, I'm talking about the autrefois acquit or autrefois convict defence, covered in section 607 of the Criminal Code. It was mentioned that this was so in cases where the foreign trial failed to meet certain basic Canadian legal standards, and where the individual had not served a sentence for those offences despite his or her conviction. What do you mean by “certaines normes juridiques canadiennes de base”? Nowadays, we no longer know what that means.

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

Thank you.

With regard to these offences under Bill S-9, my understanding is that they carry maximum life sentences and that the threat of the offences carries a maximum of 14 years.

Is that correct?