Citizenship and Immigration Committee on March 19th, 2013

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Sure. Thank you.

This bill also mentions that due process will be had.... This legislation would ensure due process under the law for anybody who was...I don't remember the exact wording other than that due process would be ensured under the law.

Which courts would actually hear the case? Does legislation make clear the burden of evidence to establish that a person is engaged in, of course, an act of war against the Canadian armed forces?

[Col Michael R. Gibson]

Again, Mr. Chair, I think that question really partakes of the field of citizenship and immigration law and that would be better responded to by CIC counsel. With respect to the question of act of war, then that concept, which I suggested is better articulated as armed conflict, would have to be precise if one were to take legal action with any substantive consequence for a citizen.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Maybe I wasn't clear in my question.

You are a legal expert, I understand, on military law. I'm just wondering if the burden of evidence is clear in the legislation as it is written right now.

[Col Michael R. Gibson]

Again, I think that given that this really partakes of citizenship and immigration, it would be better addressed by CIC counsel.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Okay.

I'll pass my time to Mr. Toone.

[The Chair, Conservative, David Tilson]

Sure, go ahead.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

How much time is left?

[The Chair, Conservative, David Tilson]

You have two minutes.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you. Two minutes is better than last time.

Thank you for your testimony. To get back to questions on act of war, because that is what's in the bill at the moment, Mr. Shory did say during his presentation at second reading in the House that this would also have to do with people who commit acts of treason.

Is there an ambiguity in the definition of “act of war” that it also unnecessarily includes the act of treason, or are they really two distinct subjects that have different jurisprudence in international law?

[Col Michael R. Gibson]

Mr. Chair, treason is an offence under the Criminal Code, so Parliament has created a criminal offence of treason with defined essential elements of that offence. What this bill is talking about in a general context, or a legal context, where this issue will play out, is a state of armed conflict. I would strongly suggest that “act of war” is too imprecise to be used in this context. It would be preferable to use the term “armed conflict”. This term sets the context that all this is playing out in. With treason, there's no ambiguity. It's a defined offence under the Criminal Code, so it has rigour. It's the difference between an offence and a legal state of matters, a state of being, or a state of context.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Are there any elements of mens rea in treason or in an act of war? Does there have to be proof of actus reus?

[Col Michael R. Gibson]

Treason is an offence under the Criminal Code, so it sets out the essential elements of the offence. There would be actus reus and mens rea involved in that, and I suspect that to convict somebody of treason, there would need to be a pretty rigorous application of mens rea.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

With the bill the way it's drafted right now, would there be any ambiguity about acts of treason being read into the text of the bill?

[Col Michael R. Gibson]

I'm not trying to be difficult, but it really is a little bit of an apples and oranges thing. Treason is an offence, whereas act of war is a legal state of being. If the question is whether I suggest that the bill could be improved by changing “act of war”, then the answer is yes.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Leung.

[Chungsen Leung, Conservative, Willowdale, ON]

Thank you, Mr. Chair.

I want to address a particular situation. Then perhaps you would help clarify some of the other points we've been discussing.

I've served as a civilian subcontractor to the military in a couple of United Nations missions, in UNTAC, UNOSOM, and East Timor. In those cases, although I am attached to a military unit, I'm not actually in a military unit. Perhaps you could distinguish, in a particular act of war or in a peacekeeping mission, whether that same definition applies when there's an act committed to the detriment of the serving military.

[Col Michael R. Gibson]

There are two prongs to that question.

First of all, in respect of the jurisdiction of a service tribunal, a court martial, to try somebody who was alleged to have committed an offence against the Canadian Forces, Parliament has provided at paragraph 60(1)(h) of the National Defence Act that a person who is accompanying the forces—and that's defined in section 61—is somebody over whom we would have jurisdiction. It boils down to whether they're accommodated with us, whether we provide them rations. If they're on one of our ships or one of our aircraft and they commit an act that's criminalized under either the National Defence Act or Criminal Code, we would have jurisdiction and we could prosecute them. In respect of the broader question that's relevant to the application of “armed conflict” in this bill, if there were a situation that Canada considered to be an armed conflict, and an individual was alleged to have committed an act hostile to Canada as a member of another armed forces or a member of an armed group, then he would be caught by the provisions of this bill. These are two slightly different concepts.

[Chungsen Leung, Conservative, Willowdale, ON]

Thank you for that clarification.

Mr. Chair, I'd like to share the rest of my time with Mr. Dykstra.

[The Chair, Conservative, David Tilson]

Your time's up, I'm afraid.

Gentlemen, I want to thank you for coming. You've made members of Parliament think on these important issues. I thank you for your contribution to the committee.

This meeting is adjourned.