Citizenship and Immigration Committee on March 19th, 2013

[Col Michael R. Gibson]

“Conflict” is essentially a question of fact. It really relates to the level of violence.

In terms of whether Canada considers that it's actually engaged in an armed conflict, sometimes the Government of Canada will issue a statement to that effect. But if that were a question of fact or of doubt, then in this context CSEC officials would consult with the Department of National Defence and the Department of Foreign Affairs, essentially for an opinion as to whether or not Canada considered itself to be in an armed conflict. The bottom line is that it would be a question of fact, which really turns on the level of violence that's involved.

[The Chair, Conservative, David Tilson]

Thank you.

Madam Groguhé, it's your turn.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

That was very interesting, in all aspects.

Thank you for joining us this morning.

I would like to go back to the figures. We are interested in getting the figures for permanent residents who are currently serving and who wish to submit citizenship applications. Is it possible to send those figures to us?

[Col François Bariteau]

We can send you what we know. The figures that I mentioned, 46 people in the regular forces and 15 in the reserve, are those currently in our database.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

My question was rather about permanent residents who are currently serving and who want to extend their service in order to obtain Canadian citizenship. Can we have that specific figure?

[Col François Bariteau]

Unfortunately, that is impossible. the administrative measure in place provides for a three-year engagement period. It is not a contract, but a three-year engagement period. It gives us the possibility to follow these individuals, but, since some of them enlisted at different times over the years, it becomes difficult to tell you who wants to obtain Canadian citizenship and who does not, who has been discharged and who is on the point of being discharged, whether as the result of a physical incident, because the individual did not meet basic military requirements, or for any other reason. It might be because the individual did not like his work, or that he did not know that he would be posted to Cold Lake, for example. As there are a number of reasons, it is difficult for us to give that kind of detail.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

That is a pity, but we are going to have to do without the information.

I would like to go back to the idea of an “act of war”. You mentioned that it has been replaced by “armed conflict”. You say that it is an act committed when an official state of war exists between two countries. Does that apply to people as individuals? How is it viewed when an individual commits an act against armed forces? Is that an armed conflict or not? What are those limits, if there are any?

[Col Michael R. Gibson]

Mr. Chair, I think the question illustrates why the utilization of the term “act of war” in the bill is problematic. The way it would be framed right now in the proposed bill, an individual who's a Canadian citizen and engages in hostile acts against the Canadian Forces in the context of a war would then be caught by the bill, but that is extremely imprecise, and the likelihood of there being a declared war is low.

Our suggestion is that it would be preferable to substitute the term “armed conflict” because it would cover a broad spectrum of activity. Whether as a member of an armed force of a foreign state, or of an organized armed group such as the Taliban, or as an individual, the key point is that it would have to occur in a context in which Canada considered that there was an armed conflict.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

So it really is limited to a very specific context, one that does not at all fall within the meaning of this bill, in my opinion. We cannot frame it in that way. Thank you, that is clear.

You shed a little light on the issue for us in the sense that the term acts of treason could be applied in the case of someone in the army committing an act of terrorism against the Canadian Forces.

But can that same principle apply when an individual is not a member of the regular forces and is just an ordinary citizen? Can a military tribunal intervene in situations like that, in the case of actions committed by individuals who are not in the army?

[Col Michael R. Gibson]

Mr. Chair, I think it's important to differentiate for the members of the committee between two different contexts.

The bill is dealing essentially with an administrative law concept of impacting on the person's citizenship if, as a member of an armed group or a member of armed forces of another state and they're a Canadian citizen, they engaged in acts of hostility against Canada.

In a criminal law context, or a military justice context, it's a different issue. If they committed specific acts such as treason, spying, assault, or murder, then yes, we would have jurisdiction to try them.

I think it's important conceptually to differentiate between criminal law and essentially an administrative law concept that this bill is discussing.

I hope that's of assistance.

[The Chair, Conservative, David Tilson]

Thank you, Madam Groguhé. I'd like you to go on, but we're going to hear from Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I'm sorry, but I have to go back to these definitions one more time. It's interesting that you keep referring to “act of war” and how it would be better described as “armed conflict”. I actually searched to see if I could find an internationally acceptable definition of “act of war”, and I couldn't. I found other things: armed conflict, nations normally at peace, aggressive acts, provoking a war, and so on.

I think the consensus from you, if you would agree, is that we need to clearly define what we mean by “act of war”, whether it's an alternative definition or something clearly spelled out. Is that what you're stating?

[Col Michael R. Gibson]

Yes, Mr. Chair. The “act of war” language would be a challenge to apply because of its imprecision and the potential for it to be misconstrued. I would suggest that it would be far preferable for the committee and for Parliament to consider using the “armed conflict” language instead.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you. I just wanted to make sure we got that as the final conclusion from all the discussions.

We've also talked about terrorism and treason. I'm going to ask a question after this, but I heard you say that treason is an offence under the Criminal Code, which we know, and that spying is defined in the National Defence Act.

I'm just wondering if the terms “treason” and “terrorism” are also defined in the National Defence Act. The reason I ask is that you've also mentioned that for treason it would go through the military justice system as well. I'm thinking there has to be a definition somewhere.

[Col Michael R. Gibson]

Mr. Chair, there are two prongs to the response.

First of all, with respect to terrorism, there are really four places that are relevant for our consideration in which terrorism is defined. It's defined in section 2 and section 83.01 of the Criminal Code. There are largely parallel definitions of terrorism and terrorist activity in the National Defence Act. Section 2 of the National Defence Act essentially adopts the language by reference to the Criminal Code. To make a long story short, the Criminal Code definitions of terrorism are adopted in the National Defence Act, although there are specific provisions.

With respect to treason, that's an offence under the Criminal Code. It would be triable within the military justice system under section 130 of the National Defence Act, which provides service tribunals with jurisdiction to try any offence created by an act of Parliament. A service tribunal, for example, a court martial, can try the most serious offences. It can try the specific offences that are created by Parliament in the National Defence Act itself, which tend to be particularly military-type offences like mutiny, insubordination, disobedience of lawful command, as well as any Criminal Code offence. In the hypothetical context where a Canadian citizen was charged with the offence of treason, that could be triable by court martial. It would be charged under section 130 of the National Defence Act as the offence of treason under section 46 or 47 of the Criminal Code.

[Roxanne James, Conservative, Scarborough Centre, ON]

You said “hypothetical”. I just honed in on that word. You talked about possible court martial, and so on. I'm just wondering what the other legal consequences are. What are the precedents? Have there been any cases related to treason or terrorism here in Canada from which there have been outcomes? I'm wondering if you could tell me what those have been.

[Col Michael R. Gibson]

Mr. Chair, in respect of treason, no one's been charged with that particular offence and tried before a court martial in recent memory, certainly going back to the Second World War.

There have not been any cases tried in the military justice system in a terrorism context. Those cases have all arisen and been tried in the civilian justice system to this point. In terms of speculation about how common that would be, it would be just speculation. Certainly the track record would suggest that it's pretty infrequent.

[Roxanne James, Conservative, Scarborough Centre, ON]

Earlier I heard someone from the opposition mention that the website said that to enrol in the military and so on you had to be a Canadian citizen. I just wanted to say that I've actually been to the National Defence and Canadian armed forces website. It clearly states that you can be a Canadian citizen or a citizen of another country who has permanent resident status here. It lists some of the reasons you talked about. I wanted to thank you for bringing to this committee all of the different variances for applying so that we're all aware these are not something new we're suggesting in this bill.

Do I have much time left?

[The Chair, Conservative, David Tilson]

You have about 14 seconds.

[Roxanne James, Conservative, Scarborough Centre, ON]

At this point, then, I would just like to thank the chair for doing an awesome job today and to thank our guests for being here as well. The information they've provided this committee is very helpful to us.

[The Chair, Conservative, David Tilson]

Ms. James, unless members of the committee object, I'm going to ask the analysts something. We seem to have a certain amount of confusion about the terms “act of war”, “terrorism”, “armed conflict”, and there's another term being bandied around.

Would anyone object if I were to ask the analysts to prepare a paper on these topics for the committee to review the source of those terms? Are they defined legally? I'm sorry to go on like this. If you look at clause 2 of the bill, which talks about an act of war, someone's going to have to be convicted of committing an act of war for this clause to apply. Already we've had a suggestion that the term be changed.

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Chair, I think there is some relevance to your suggestion. However, you went on a bit about defining a number of different terms. If we're going to do that, we should take a little bit of time to actually suggest or submit what we should be putting in the report. I don't want to just leave it wide open and then get a report back that has pieces that I like and pieces that we didn't even think of. I don't have a problem with it, but I think we need to define, through you to the analysts, what we actually want to find and what the scope will be.

[The Chair, Conservative, David Tilson]

All right. How about I let all of you think about it and we'll talk about it another time?

[Rick Dykstra, Conservative, St. Catharines, ON]

Okay.

[Col Michael R. Gibson]

Mr. Chair, if I could just....